Plaintiff v Defendant

1 By writ filed 12 October 2009, Duane Alex Crowe, the plaintiff, claims damages from Trevor Roller Shutter Services Pty Ltd, the defendant, for injuries he alleges he sustained during the course of his employment. The plaintiff endorsed the writ for trial by judge and jury.[1] Notwithstanding that endorsement, on 23 October 2009, the defendant filed a notice of trial by jury.[2]

2 On 10 February 2010, Daly AsJ fixed this proceeding for trial on 22 November 2010.

3 On 3 November 2010, Zammit AsJ made an order that the plaintiff pay the trial fee by 8 November 2010 and the first day's jury fees by 16 November 2010.

4 On 17 November 2010, Zammit AsJ made a further order as to the payment of the trial fee and first day's jury fees. Her Honour ordered:

"The plaintiff is to file a notice of trial, pay the trial fee and the first day jury fees by 4.00pm on 19 November 2010."

On 19 November, the solicitors for the plaintiff paid the notice of trial fee. However, they did not pay the first day's jury fees.

5 Rule 47.02(1) of the Supreme Court (General Civil Procedure) Rules 2005 provides:

"(1) A proceeding commenced by writ and founded on contract (including contract implied by law) or on tort (including a proceeding for damages for breach of statutory duty) shall be tried with a jury if-

(a) the plaintiff in the writ or the defendant by notice in writing to the plaintiff and to the Prothonotary within 10 days after the last appearance signifies that the plaintiff or the defendant (as the case requires) desires to have the proceeding so tried; and

(b) the proper jury fees are paid."

6 Rule 47.03 provides:

"(1) If a proceeding is to be tried with a jury, the proper jury fees shall be paid by the plaintiff.

(2) If a proceeding is to be tried with a jury because the defendant so signified by notice in writing, the proper jury fees shall be paid by the defendant to the plaintiff within 14 days after a date is fixed for the trial of the proceeding.

(3) In case of default under paragraph (1) or (2), the Court may order that the proceeding be tried without a jury."

7 Section 24 of the Juries Act 2000 provides:

"(1) A party requiring a civil case to be tried by a jury must pay the prescribed fee-

(a) if the case is to be tried in the Supreme Court, to the prothonotary; and

(b) if the case is to be tried in the County Court, to the registrar of that court.

(2) The party that required a civil case to be tried by a jury must pay to the prothonotary or the registrar (as the case requires) the prescribed fee for a jury for the second and each subsequent day of the trial.

(3) Subject to subsection (4), the fee required to be paid under this section for the second and each subsequent day of a trial must be paid before the trial resumes on the day in respect of which the fee is payable.

(4) The court may extend the time for payment of a fee required to be paid for any day of a trial, but not beyond the end of that day.

(5) If the prescribed fee is not paid by any party by the time required for payment, the court must discharge the jury and continue to hear and determine the case without a jury.

(6) If, on the last day of a trial, the jury serves for more than 8 hours, the party that is required to pay the fees for the jury for that day must pay a further day's fee for the jury before the end of the next day on which the court is open for business.

(7) If a party cancels a requirement for trial by a jury not less than 14 days before the trial is listed to commence, a refund of the fees paid under this section less prescribed administrative expenses may, on application, be made to the party and the Consolidated Fund is, to the necessary extent, appropriated accordingly.

(8) No fees are payable if the court, on its own motion, orders that a jury is required in a civil trial."

8 Rule 47.03(1) requires the plaintiff to pay the proper jury fees if the proceeding is to be tried with a jury. However, the rules do not provide for the time at which the plaintiff is to pay those jury fees. Ordinarily, the fees are paid when the plaintiff files a notice of trial. Indeed, so much is contemplated by the list headed "Supreme Court - Prothonotary's Office Fees - Effective from 1 July 2010", compiled by the Prothonotary's office.[3]

9 On the other hand, rule 47.03(2) provides that if the proceeding is to be tried by a jury because the defendant has so signified by notice in writing, then the proper jury fees must be paid within 14 days after a date is fixed for the trial of the proceeding. The plaintiff submits that in this case, this means the defendant should have paid the first day's jury fees by 24 February 2010. However, the defendant submits that rule 47.03(2) has no operation in this case because the proceeding was to be tried with a jury as a result of the plaintiff so specifying in his writ.

10 Pursuant to the orders I have already referred to, this proceeding came on for trial yesterday (22 November 2010). No jury fees had been paid. The proceeding was adjourned to this morning to enable the defendant to inspect and consider certain documents which had been late discovered by the plaintiff. The history of that discovery question does not need to be set out here.

11 The plaintiff did not comply with the orders of Zammit AsJ, made on 3 November 2010, requiring the trial fee to be paid by 8 November and the first day's jury fees to be paid by 16 November. Nor did the plaintiff comply with the order of Zammit AsJ, made on 17 November 2010, requiring the first day's jury fees to be paid by 4.00pm on 19 November. Instead, the plaintiff paid the trial fee on 19 November - but did not pay any jury fees. Up until at least 4.00pm on 19 November 2010 (two working days ago), the defendant was entitled to expect that the plaintiff would pay the first day's jury fees in accordance with the endorsement on his writ and the orders that had been made by Zammit AsJ on 3 and 17 November. Section 24(4) of the Juries Act permits the Court to extend the time for payment of a jury fee required to be paid for any day of a trial, but not beyond the end of that day. In the circumstances of the present case, s 24(4) permits the Court to extend the time for payment of the first day's jury fees to the end of today.

12 I accept that the defendant has always wanted this proceeding to be tried by a jury. The defendant, in the circumstances I have outlined, seeks an extension of time to pay the first day's jury fees. There has been no dilatory conduct on the part of the defendant. Had the plaintiff not signified a wish to have the trial heard by a jury, I accept the defendant would have paid the jury fees either within the time specified in rule 47.03(2) or within the time specified by any relevant Court order (had one been made).

13 In the circumstances, I would, all other things being equal, be prepared to extend the time for payment of the first day's jury fees to today.

14 However, during the course of argument, Senior Counsel for the plaintiff made application for this proceeding to be heard as a cause. The application was made on the basis of the time and cost involved in hearing the proceeding as a jury, compared to the time and cost involved in hearing the matter as a cause.

15 Prior to trial, the parties agreed that, as a jury, this proceeding would take eight to ten days. In substance, the plaintiff's claim is that he suffered a low back injury as a result of lifting, carrying and manoeuvring pallets of heavy metal springs in the course of his employment between 16 November 2002 and 11 January 2003. The substantial bulk of any trial will be taken up with an examination of the issue of what (if any) injury the plaintiff suffered as a result of performing his work, and the nature and extent of that injury. Much of the evidence called will be called from witnesses who have already provided reports. The reading of those reports (or the leading of that evidence before a jury) takes substantial court time - whereas a judge hearing such a proceeding will read such reports outside court hours.

16 Experience shows that trials of this kind take approximately twice the length of time when heard with a jury than when heard as a cause. The reasons for this include:

(b) the plaintiff's opening to a jury is usually substantially longer than the opening to a judge alone;

(c) all of the medical witnesses who are called must give evidence-in-chief - which evidence-in-chief usually more than doubles the length of their evidence when compared with the giving of evidence where the trial judge has read and digested the medical reports;

(d) a like point can be made in respect of other experts who may be called (for example, vocational experts (and in some cases) ergonomists, actuaries and engineers);

(e) time is taken with objections (sometimes necessitating the jury retiring while the objections or points are dealt with), where the same objections would not be taken in front of a judge alone;

(f) final addresses to the jury are longer than final addresses to a judge; and

(g) the charge to the jury has the capacity to add a further day to the trial.

17 As was said by French CJ in Aon Risk Services Australia Limited v Australian National University,[4] the time of the Court is a publicly funded resource. Inefficiencies in the use of that resource need to be taken into account.

18 It is well known that various provisions of the Civil Procedure Act 2010 come into force on 1 January 2011. Section 7 of the Civil Procedure Act defines the overarching purpose of the Act and the Rules of Court in relation to civil proceedings to be "to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute". Section 49(3)(i) of the Civil Procedure Act, when it comes into force, will empower the Court to make any order it considers appropriate with respect to the mode of trial so as to further the overarching purpose.[5]

19 In Thomas v Powercor Australia Limited,[6] J. Forrest J analysed a number of the provisions of the Civil Procedure Act and concluded that they required a court to be proactive and, if necessary, innovative in its approach. Further, his Honour said that there was no reason to wait until the Civil Procedure Act came into force. I agree.

20 Whilst the explanatory memorandum for the Civil Procedure Act provides that the provisions of the Act "aim to ensure the appropriate use of the court system by litigants and to prevent the wastage of court resources through inefficient processes or tactical litigation that has the effect of reducing access to the courts for other litigants with meritorious claims", it should not be thought that this is not an aim that the courts have not been seeking to achieve for some time now. The plaintiff's present application should be considered in the light of this aim. It is an aim that is not dependent upon the commencement of the Civil Procedure Act. It is an aim that modern courts must seek to enforce.

21 Court and judicial resources are scarce. We no longer have the luxury of allowing parties to run their cases for twice the length of time they would otherwise take simply because one party or the other prefers a particular mode of trial. In my view, where a court identifies substantial time and cost savings that can be made by changing the mode of a civil trial, then, in the absence of some compelling reason not to do so, the court is bound to change the mode of trial to the more efficient, timely and cost-effective mode.

22 The present case is such a case. I am satisfied that as a cause, this case will take less than half the time it would take to hear as a jury trial. In circumstances where there are other litigants waiting to have their matters determined in this Court, I am persuaded to dispense with the jury and to order that this proceeding be heard as a cause.[7]

[1] Cf rule 47.02 of the Supreme Court (General Civil Procedure) Rules 2005.

[3] Civil Procedure Victoria, paragraph [4250] at pp 9506 and 9507.

[4] [2009] HCA 27; (2009) 239 CLR 175, 182.

[5] Cf rule 1.14 which requires the Court to exercise the powers under the rules so as to endeavour to ensure that all questions in the proceeding are effectively, completely, promptly and economically determined.

[6] [2010] VSC 489.

[7] See rule 47.02(3) and cf Gunns Limited v Marr (No. 5) [2009] VSC 284 (J. Forrest J).