Plaintiff v Defendant

1 In October and November 2023, a jury trial took place in this Court ('Kneale'). Adam Kneale was the plaintiff and Footscray Football Club Ltd ('Club') was the defendant.

2 Relevantly, Mr Kneale claimed that while he was a boy, in the 1980s, the Club negligently allowed him to be abused by a Club volunteer, Graham Barry Hobbs ('Hobbs'). At least some of the alleged abuse occurred at the Club premises known as the 'Western Oval'.

... in the period 1983 to 1991 it owed a duty to take reasonable care to avoid foreseeable risks of injury of which it knew or ought to have been aware to persons attending the FFC club premises

4 The present plaintiff, Carl McCullough, gave evidence in Kneale. Before the jury, the determinative issue seems ultimately to have been, in broad terms, whether the risk posed by Hobbs was reasonably foreseeable.

5 The jury found for Mr Kneale. The Club's appeal to the Court of Appeal was dismissed, by majority.[1] Earlier this year, an application to the High Court of Australia seeking special leave to appeal was refused.[2]

6 A little over a month after the jury delivered its verdict in Kneale, the present plaintiff commenced common law proceedings against the Club. The plaintiff's writ nominates the mode of trial as 'Judge and Jury of six'.

7 Many allegations in the present case are similar to those made in Kneale.

8 Among other things, the plaintiff will evidently seek to establish that -

(a) from about 1981 to about 1992, the Club engaged Hobbs to perform numerous roles and duties for and/or on its behalf, particularly in respect of fundraising and roles in the under-19s squad;[3]

(b) in that connection, Hobbs was 'under the direction, authority and control' of the Club;[4]

(c) in about 1987, the plaintiff, who was then 14 years of age, attended training sessions at the Western Oval;[5]

(d) the plaintiff was a friend of Mr Kneale who introduced him to Hobbs at the Western Oval;[6]

(e) in 1987, 'on at least three different occasions', the plaintiff was taken to the changerooms at the Western Oval by Hobbs and there abused;[7]

(f) the plaintiff was also abused by Hobbs on two occasions away from the Western Oval;[8]

(g) Mr Kneale reported Hobbs' abuse of him to police in 1993 and the plaintiff was also interviewed and made partial disclosures to police about abuse;[9]

(h) the Club 'knew or ought to have known that there was a risk of children attending the Western Oval on training nights as spectators being sexually abused by Club personnel including Hobbs';[10]

(i) in particular, in 1981, Steven McPherson had remarked on Hobbs' inappropriate conduct and described him as a 'quintessential dirty old man' to the Club's then finance manager, Stephen Smith;[11]

(j) former officials and employees of the Club gave evidence in Kneale and admitted that if they had been aware of the report by Mr McPherson to Mr Smith in 1981 they 'would have taken action to remove Hobbs from the club';[12]

(k) Mr Kneale had been sexually abused by Hobbs on 'innumerable occasions' at the Western Oval which 'ought to have been observed' by the Club;[13]

(l) at all material times during the plaintiff's attendance at the Western Oval -

... the [d]efendant owed to the [p]laintiff as a child present as a spectator at the Western Oval a general duty to take reasonable care to avoid exposing him to a foreseeable risk of injury, including injury as a result of sexual abuse by Hobbs;[14]

(m) the Club breached the duty of care owed to the plaintiff;[15]

(n) among other things, the Club failed to investigate and ban Hobbs from the Club after Mr McPherson's report to Mr Smith in 1981;[16] and

(o) as a result, the plaintiff suffered injury, loss and damage.[17]

9 For its part, among other things, the Club relevantly -

(a) says that Hobbs was an 'ad hoc volunteer' at the Club from about 1981 to about 1991, particularly in respect of 'limited fundraising activities together with other volunteers' and, on occasion, undertook 'some activities assisting those persons who ran the Club's Under 19s team';[18]

(b) admits that Hobbs 'may have been given some instructions from other volunteers or possibly a Club employee as to the method of sale of season and raffle tickets and collection of money from that sale';[19]

(c) admits that -

... it had some ability to prevent persons from having involvement in the Club but says that access to the Western Oval in 1987, particularly on match days, was a matter for the local council;[20]

(d) admits that Hobbs was sentenced in respect of abuse of Mr Kneale and 'another person who was not the [p]laintiff';[21]

(e) otherwise denies the plaintiff's allegations, including that the Club owed the plaintiff the alleged duty of care.

10 The trial of the present proceeding is listed to commence on 21 October 2025.

11 By amended summons filed 1 May 2025, the Club seeks an order that the proceeding be tried without a jury.

12 The Club's application is supported by two affidavits sworn by Blake John Pappas, solicitor.[22] Among other things, those affidavits refer to and/or exhibit -

(a) various newspaper articles;

(b) nightly news broadcasts;

(c) documents produced by Nine Entertainment Co Pty Ltd and the Australian Broadcasting Corporation in respect of 'geographical breakdown of circulation and viewership analytics';

(d) the continuing presence of certain articles and videos online;

(e) details of 'television viewership' relating to certain news broadcasts; and

(f) the results of certain Google searches.

13 In response, the plaintiff filed and served three affidavits affirmed by Nicole Joseph, solicitor.[23]

14 Among other things, Ms Joseph deposes to her own Google searches and comments upon some of the subpoenaed material. She also deposes to an 'independent public poll' carried out by Mr Gavin White, Research Director, Pyxis Polling & Insights, and exhibits a copy of his report.

15 The parties exchanged detailed written submissions.[24]

16 In that general context, the Club submits that a 'combination of factors' warrant an order that the trial proceed as a cause, particularly -

(a) the substantial risk that the jury pool, and hence any jury, will be unable to try the case impartially, by reason of the widespread publicity surrounding the evidence, verdict and damages award in earlier proceedings against the defendant arising from sexual abuse committed by Graham Hobbs; and

(b) the relative complexity of the factual matters and legal issues relating to liability, with the consequential risk of trial disruption, delay and inefficiency of [a] jury trial as well as the potential for inconsistent findings underpinning duty of care and breach determinations.[25]

17 Rule 47.02(3) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules') provides, relevantly, that -

... the Court may direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury.

18 In that connection, both parties referred to Birti v SPI Electricity Pty Ltd ('Birti'),[26] in which JHL Forrest J listed the following relevant principles -

(a) Subject to compliance with the Rules of Court a party is entitled to seek trial by jury provided the claim is founded in contract or in tort.

(b) For that entitlement to be enlivened, it is necessary for the party seeking trial by jury to comply with the procedural requirements of r 47.02(1)(a) and (b); otherwise the trial will be before a judge sitting alone (absent an order of the Court to the contrary). Part 6 of the Juries Act 2000 (Vic) provides the statutory basis for the conduct of the trial by jury.

(c) Where a party has given notice regularly that a trial by jury is required that will be the prescribed mode of trial unless the Court is persuaded to dispense with the jury.

(d) Notwithstanding the right of a party to opt for a jury trial, there resides in the Court an overriding discretion to determine the mode of trial, regardless of the wishes of the parties.

(e) A court may at any stage of a proceeding direct a trial without a jury if it is satisfied that it should do so.

(f) As a general rule in this State (where civil juries are still the norm in tortious injury and defamation litigation), juries should be regarded as capable of dealing with issues of legal complexity as well as difficult issues of fact.

(g) The onus in persuading a court to dispense with a jury trial rests upon the party making that application. A court will not lightly make such an order, given the entitlement of the other party to seek trial by jury. There must be some special reason to do so or, to put it another way, a party should not be deprived of such an entitlement in the absence of good cause.

(h) Even if it is established that there will be a substantial saving in time and cost in a trial by judge alone that is not necessarily sufficient cause to deprive a party of its prima facie entitlement to trial by jury. Notwithstanding that trial by judge alone may take less time, there are countervailing advantages in a trial by jury such as the promotion of settlement and finality and, in some cases, savings of court time[.]

(i) The considerations which may influence a court to dispense with a jury trial are unfettered; the discretion may be exercised where it is warranted by the dictates of justice.

(j) Subject to the statement of general principle set out in (i), in determining whether to accede to an application to dispense with the jury, the following matters may be relevant

(i) the complexity of the factual matters that the jury will need to consider

(ii) the complexity of the legal issues relating to liability, particularly where the claim involves consideration of multiple causes of action and multiple defendants

(iii) the complexity of the jury's task in relation to the assessment of damages

(iv) the potential duration of the trial (although this, of itself, could never be the determining factor); and

(v) the stage at which the proceeding or trial has reached.

(k) A decision as to the mode of trial (by a judge alone or by jury) cannot of itself amount to a miscarriage of justice as whichever form is a trial according to law.[27]

19 His Honour had set out the applicable principles earlier in Gunns Ltd v Marr (No 5) ('Gunns (No 5)')[28] and Messade v Baires Contracting Pty Ltd (Rulings No 2, 3, & 4).[29] As his Honour explained in Birti, the list was there augmented to take account of two matters identified in the reasons of the Court of Appeal in Trevor Roller Shutter Service Pty Ltd v Crowe ('Trevor Roller').[30]

20 The principles identified and stated in Birti have since been referred to and applied on multiple occasions[31] and, unsurprisingly, were relied upon directly or indirectly by both parties in argument in the present application.

21 That said, in argument, the Club also emphasised particular aspects of the relatively recent ruling of Keogh J in Gobbo v State of Victoria ('Gobbo').[32]

22 In that instance, among other things, the plaintiffs, a registered Victoria Police informer and her infant children, claimed to be owed duties of care breached by certain police officers. Those and other claims were denied.

23 The writ gave notice that the plaintiffs sought trial by jury. The defendant applied for an order that the trial proceed as a cause.

24 In that connection, his Honour referred to authorities including Birti and Svajcer v Woolworths Ltd ('Svajcer').[33] In Svajcer, Rush J accepted that there was a 'high risk' that a jury might use evidence of the plaintiff's prior conviction for sexual offences against a child unfairly and so ruled that the trial should proceed as a cause.

25 On any view, in Gobbo, the plaintiffs' claims, and the defendant's pleaded defences, gave rise to issues of novelty and very significant complexity. That said, the defendant also relied upon media attention concerning the first plaintiff (or, 'Lawyer X'). In that regard, it submitted that -

The factual matrix of Gobbo's claim has been the subject of High Court jurisprudence, a Royal Commission, and a subsequent wave of civil and criminal litigation. It has been the fodder for mainstream public entertainment including a book, television miniseries, investigative journalism podcast, and a television interview with Gobbo herself. Google searches conducted in August this year [2024] produced 548,000 results in 0.23 seconds for 'Nicola Gobbo' and 330 million results in 0.25 seconds for 'Lawyer X'.[34]

26 In that context, his Honour observed that the jury questions evidently proposed by the plaintiffs could amount to '100 or more' and that there were 'subtle differences in the factual circumstances underpinning each individual claim against different officers'.[35] His Honour also noted the contents of certain 'lists' or tables produced by the defendant and that the process of conferral between the parties was not complete.[36]

27 In those circumstances, his Honour concluded that the trial should proceed as a cause and reasoned, relevantly, as follows -

[44] The defendant denies the existence of the alleged duties, which it says are novel. The trial judge would usually determine whether the pleaded duty exists, and direct the jury accordingly. However, as the defendant submitted, a number of matters relevant to whether a duty exists are likely to also be relevant to breach and causation. These include whether Gobbo was induced to become a police informer and to provide confidential client information; her degree of reliance on what the different officers said to her; her vulnerability; and whether she voluntarily became a police informer and provided confidential information in full knowledge of any attendant risks to her health.

[45] There is a real risk of inconsistent findings on critical issues if duty is determined by the trial judge, and breach and causation by the jury. The most stark example is whether, in what circumstances, to what extent, and by whom Gobbo was induced to become a police informer and provide confidential information about her clients.

[46] The plaintiffs submitted that the risk of inconsistent findings could be avoided by the trial judge determining whether, if inducement is established, a duty existed, and leaving the jury to answer whether Gobbo was induced as she alleges. I reject that submission. The circumstances of inducement must be relevant to the assessment and weighing of salient features. Consideration of the salient features is not a box-ticking exercise. Determination of the inducement issue cannot be divorced from consideration of the salient features and whether a duty exists. Further, the risk of inconsistent findings is not limited to the issue of inducement but extends to issues such as vulnerability and reliance.

[47] Both P2 and P3 [infant children] were born well after the impugned acts and omissions of the officers and senior officers. Any duty allegedly owed to them is clearly novel. In circumstances where the material facts relevant to that duty have not been fully pleaded out, it is not possible to identify all of the complications that might arise during the trial in relation to determination of the existence of a duty and the resulting jury directions.

[48] The jury's task in this case must take into account the acts and omissions of the officers, senior officers and Gobbo in the context of their legal obligations. ... .

[49] I accept the defendant's evidence and submissions as to the notoriety of the factual matrix underpinning this case, and of the publicity surrounding Gobbo and some of the other witnesses. It is difficult to imagine a case with a history of greater publication across the Victorian community for such a sustained period. Whether the impact of that publicity is neutral or favours one party or another would vary between potential jurors. I accept that there is a risk of a jury being distracted from the fair and impartial adjudication of this case by its publicity and notoriety. The 'social imperative' identified in Dupas [Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 ('Dupas')] in the context of an application to indefinitely stay a criminal trial on the basis of prior publicity, does not apply in the context of a civil trial which can proceed by judge alone. I accept that in the circumstances of this case, the nature and degree of publicity surrounding the parties and the notoriety of the facts is a matter that weighs in favour of the trial proceeding before a judge alone.

[50] Finally, I conclude that there is the potential for significant practical trial management issues to arise should the trial proceed by jury. It is estimated that the evidence will take at least five and a half weeks to be heard, and potentially significantly longer. A jury would then need to be sent away to allow sufficient time for the trial judge to hear and determine the duty questions, whether the causes of action were barred by the LAA [Limitation of Actions Act 1958 (Vic)] and/or the prior settlement, and other legal issues that might be identified following analysis of the defendant's lists. It is likely that the range and complexity of the issues to be determined would require a lengthy break in the trial. Such a disruption would add to the complexity of the jury's task, who would be required to determine facts on evidence they heard many weeks before retiring to consider their verdict after having a lengthy break from the trial[.]

[51] The plaintiffs have a strong desire for a jury trial. The factual matrix on which the plaintiffs' causes of action are based is of significant public interest. I accept that, subject to the relevant considerations, a community determination of the case represented by a jury verdict would be appropriate. However, I conclude that in the circumstances to which I have referred, the most significant of which is the complexity of appropriately directing a jury and from the jury's point of view, answering the questions addressed to it, the proceeding should be tried by a judge alone.[37]

28 As I have noted, the Club advances contentions in respect of what might broadly be described as issues of 'public notoriety' and 'complexity'.

29 As to 'public notoriety', the Club submits that the case is factually similar to Kneale. From that point, it emphasises what is described as the 'wide publicity' referred to in and exhibited to the affidavits of Mr Pappas.

Not only is Kneale's case and the present case similar - there is substantial temporal and circumstantial overlap. ... It would be impossible for any potential juror who had heard directly or indirectly about the Kneale case or any details of it not to become aware of the similarities or circumstantial overlap.[38]

31 The Club submits that the 'fact and extent' of the publicity is relevant, as well as the 'nature and potency of the information conveyed'.[39] Among other things, it submits that -

The publicity generated by the Kneale case, much of which remains publicly accessible, creates a perception of prior determination of the major issues in the trial of the current proceeding. Questions of foreseeability and breach are likely to be perceived by potential jury members to be a foregone conclusion. The plaintiff's case is heavily reliant on the Kneale proceeding. There is an inevitability that mention of that trial will be made during the hearing of the current proceeding; the particulars to the pleaded case refer to evidence given at the trial of the Kneale case and the same witnesses are almost certain to be cross-examined by reference to consistent or inconsistent evidence given by them in Kneale.[40]

32 In that connection, the Club submits that the 'risk presented' is 'obvious' and of 'real and ... serious concern' because -

... the publicly available information on the ultimate issue of liability in the Kneale case will either already have indelibly tainted, or will during trial indelibly taint, the minds of jurors. Notwithstanding the required assumption that the jury will conscientiously discharge their duty, this irreparable taint will sterilise any judicial warning. The prejudice to the defendant will not be capable of remedy by direction to the jury.[41]

33 As to 'complexity', in contrast with the circumstances in Kneale, the Club points to its present denial of the alleged duty of care and submits that there is a 'likelihood of trial disruption, delay and inefficiency', because -

... The duty of care pleaded does not fall into an established category but is novel. Its existence and scope will need to be resolved by reference to the various salient features of the relationship between the plaintiff and the defendant - including close analysis of factual matters such as the precise circumstances and location of alleged abuse, knowledge of risk of abuse generally and from the alleged perpetrator, the defendant's control over the risk (which will include matters such as the capacity in which the perpetrator was at the club and came to know the plaintiff) and the plaintiff's vulnerability to the risk. The analysis will be extremely fact sensitive but will also require close consideration of relevant case law. The parties are likely to require some time after evidence to prepare submissions, and the trial judge will likely need to reserve. The consequence will be a delay, possibly of weeks, before the trial could be resumed. That disruption to trial is not conducive to fair jury consideration of evidence and deliberation. The duty question is appropriately dealt with by judge alone after hearing all evidence and then receiving closing submissions on all trial issues at once.[42]

34 The Club also submits that there is a risk of inconsistent findings. In that regard, it contends that -

... the evidence informing the legal question of duty and the factual question of breach will overlap. For example, the question of actual or constructive knowledge of the defendant of the risk of child abuse posed by Hobbs or a like volunteer will be critical to both duty and breach. The Kneale case demonstrated that on the breach question, the scant evidence in respect of foreseeability made the breach finding far from clear or inevitable, but finely balanced. Similarly, the practical ability of the defendant to control the conduct of Hobbs and his presence on the club premises and grounds (for example on training and game days) will be relevant to duty and breach. The judge will need to reach conclusions on these issues in determining duty (in respect of knowledge, unlike in the Kneale case, finally and not just for the purposes of determining whether breach could be left to the jury); and the jury will also need to reach final conclusions on knowledge in determining breach. The potential for inconsistent findings cannot be avoided if a jury is retained.[43]

35 The plaintiff emphasises that an order dispensing with trial by jury should not be made lightly.[44]

36 In respect of 'publicity', the plaintiff submits that the question, as framed by Keogh J in Gobbo, is whether 'there is a risk that the fairness of the trial will be adversely impacted because the minds of potential jurors have been indelibly tainted'.[45]

37 In that regard, in summary, the plaintiff submits that -

(a) the Club does not point to any publicity concerning the plaintiff's claim;[46]

(b) an overlap between the factual allegations in the present case and those in Kneale may be accepted;[47]

(c) the publicity about Kneale has not 'indelibly tainted' the jury pool;[48] and

(d) any concerns are capable of being addressed by appropriate jury directions.[49]

38 In that connection, the plaintiff emphasises that 'the reporting of childhood sexual abuse cases is not exceptional'[50] and points to the report of Mr White in support of a submission that it is unlikely that any juror would be familiar with the overlapping circumstances between Kneale and the present case.[51]

(a) time has passed since the Kneale trial in October-November 2023;[52]

(b) media coverage concerning Kneale has been 'intermittent' and decreasing over time;[53]

(c) much of that 'underscores the contingent nature of Mr Kneale's claim';[54]

(d) none of the more recent articles mention 'foreseeability' or 'breach';[55]

(e) the publicity is of a 'radically different order of magnitude' compared with that in Gobbo;[56] and

(f) to the extent that such material is or remains online, the jury would be directed not to undertake any external research and it is assumed that the jury will follow the directions given.[57]

40 In respect of the latter point, the plaintiff submits that Dupas[58] forcefully demonstrates the 'power' of jury directions.[59]

41 In Dupas, there had been 'extensive pre-trial publicity' in respect of prior convictions and the accused's 'reputation as a serial killer'.[60]

42 Prior to empanelment, the trial judge directed jurors repeatedly concerning -

... the need to act fairly, calmly, without prejudice and solely on the evidence led in court and to exclude from their considerations anything that they may have read or seen outside the court.[61]

The next thing is this, and this is very important in this case as in every case. Do not go and do your own homework or do your own research, don't go and look up old newspapers, don't go down to the local library, do not go and look at the internet, do not do any electronic searches about anyone connected with this case, that's very important ladies and gentlemen. You have sworn or affirmed to give a true verdict on the evidence led here in court, therefore looking at anything else cannot help you because that's not the evidence ...[62]

44 The unanimous High Court described such directions as both 'proper' and demonstrative of 'the capacity of the trial judge to relieve against the unfair consequences of the pre-trial publicity'.[63]

45 The High Court later referred to 'the policy of the common law respecting the efficacy of the jury system'[64] and stated -

[36] There is nothing remarkable or singular about extensive pre-trial publicity, especially in notorious cases, such as those involving heinous acts. That a trial is conducted against such a background does not of itself render a case extreme, in the sense that the unfair consequences of any prejudice thereby created can never be relieved against by the judge during the course of the trial.

...

[38] The apprehended defect in the [accused's] trial, namely unfair consequences of prejudice or prejudgment arising out of extensive adverse pre-trial publicity, was capable of being relieved against by the trial judge, in the conduct of the trial, by thorough and appropriate directions to the jury. ...

[39] There was no error in principle in ... [the trial judge] deciding that the [accused's] trial, if allowed to proceed, would be fair. ... Furthermore, in all of the circumstances of this trial, the pre-trial publicity was not such as to give rise to an unacceptable risk that it had deprived the [accused] of a fair trial. ...

46 For completeness, the plaintiff distinguishes the circumstances in Svajcer. In particular, he submits that Svajcer concerned 'the risk of misuse of evidence adduced in the proceeding, rather than the risk of jurors relying on prior knowledge'.[65]

47 As to 'complexity', the plaintiff identifies the presently contested question of duty of care as the primary source of the Club's concern and submits that the Court will be guided by the decision of the majority of the Court of Appeal (Beach JA and Forrest AJA) in Footscray Football Club Ltd v Kneale ('Kneale CofA').[66]

... the factual question of reasonable foreseeability is vital to the existence and scope of the duty of care alleged by Mr McCullough. In a jury trial, contested facts are "resolved" by the jury. Mr McCullough submits that the existence and scope of the duty of care should be determined by the trial judge subject to the jury resolving the issue of reasonable foreseeability. Such an approach was endorsed by the majority of the Court of Appeal in Kneale, and it is also appropriate in this case.[67]

49 The plaintiff also submits that the question of the Club's 'control' of Hobbs, and his presence on Club premises, can be left to and determined by the jury.[68]

50 In that general connection, the plaintiff submits that -

(a) the 'question trail' distributed by the trial judge in Kneale may be adapted to the circumstances of the present case;[69]

(b) the present circumstances may be distinguished from the 'nebulous additional complications' that affected Gobbo;[70]

(c) any prospect of inconsistent findings on reasonable foreseeability would be avoided as 'only the jury would determine the question of reasonable foreseeability';[71] and

(d) the Club's concerns about 'disruption, delay and inefficiency' are overstated.[72]

51 In detailed and densely presented written submissions in reply, the Club sought to address various points made by the plaintiff.

52 Parts of the Club's response constitutes a critique of aspects of the affidavit evidence of Ms Joseph as well as the report of Mr White.

53 The Club advanced the following further submissions of particular note -

(a) 'the risk of jury taint may be enough, by itself or combination with other factors, to warrant a direction of trial without jury';[73]

(b) the Club relies upon 'tainting before trial' as well as the 'high risk' of 'tainting during trial' arising from 'jury awareness of findings made in Kneale';[74]

(c) the process of jury selection -

... does not rid the jury of those who do not volunteer knowledge of the Kneale case, do not recollect it until their memory is jogged during the openings or evidence, or do not concede their lack of impartiality; ...[75]

(d) Reza v Summerhill Orchards Ltd ('Reza'),[76] to which the plaintiff referred, 'does not suggest that errors that may infect the jury in the discharge of its function can and should invariably be cured by direction';[77]

(e) further, cases such as Reza are 'not analogous to those where the potential for taint is apparent before trial' and 'a solution is available that guarantees the avoidance of the risk';[78]

(f) reliance by the plaintiff upon Dupas is 'misplaced' as '[c]riminal cases are not comparable to civil litigation';[79]

(g) Svajcer 'vividly demonstrates ... that there are cases in which it cannot be assumed that judicial direction will cure potential unfairness, and that any doubts about that risk are appropriately addressed ... by [such a] trial proceeding as a cause';[80]

(h) as to efficiency, the present trial will be different to Kneale, particularly because 'duty of care is now squarely contested and different evidential issues will arise' and carry the 'potential for inconsistent conclusions between judge and jury on matters relevant to duty of care';[81] and

(i) in that regard, the suggested solution of leaving the issue of reasonable foreseeability and control to the jury is -

... wholly unsatisfactory in the context of a novel duty the very existence of which depends on fact-sensitive matters such as foreseeability of risk and control over grounds, access to premises, and volunteer activities and conduct. The existence and scope of duty must be resolved before the jury can be properly charged and asked to consider breach issues. It is entirely different to what may be done where duty is uncontested or found to be admitted (as in Kneale), and the judge can leave reasonable foreseeability to the jury as a breach issue alone. The task of determining a novel duty requires the judge to determine first all facts upon which the duty is said to be based. If there is a duty, those same facts may be examined by the jury as relevant to breach. The potential for inconsistent findings cannot be avoided, and it does not matter which party stands to benefit. Keogh J was correct to recognise this potential for inconsistency in Gobbo on the issue there relevant (inducement); and His Honour's observations on that topic apply equally at least to the salient feature of control.[82]

54 The various submissions came to be focussed in the addresses of the respective senior counsel.

55 Senior counsel for the defendant commenced by focussing attention upon the issues in Kneale, as well as aspects of the decision in Kneale CofA.

56 In that regard, senior counsel referred to various witnesses called at the trial in Kneale, including the present plaintiff, Mr McPherson and Mr Smith. Senior counsel submitted that, in Kneale, liability turned on the issue of reasonable foreseeability which -

... hung on the thread of a piece of evidence which was a discussion said to have occurred by Mr Macpherson [sic] and Mr Smith during 1981.[83]

57 In that connection, senior counsel submitted that 'a different jury on a different day might form a different view'.[84]

58 Senior counsel then examined the plaintiff's pleading in the present case and submitted that -

... the issues will be the same, the period covered will be the same. Mr Kneale will be absolutely central in terms of supporting evidence that he'll give in relation to Mr McCullough, unless that part of the pleading is abandoned as [he] is referred to in the particulars.

Mr Macpherson [sic] and Mr Smith are referred to in the pleading and many of the other witnesses ... are referred to in the pleadings. On the pleadings as they now stand, it is exactly the same case in terms of reasonable foreseeability and breach as was presented in Kneale and will be conducted on the same evidence and in the same way, unless something unforeseen happens that we don't know about, which would be surprising and probably require an amendment.

So Kneale was on a knife's edge, McCullough is absolutely on a knife's edge, hanging by a thread in terms of that issue as well. And we would go so far as to say, as I've submitted, it is the same case on reasonable foreseeability and breach.[85]

59 From that point, senior counsel for the defendant examined aspects of the print media publicity exhibited to Mr Pappas' affidavits and emphasised the 'page views' as well as mentions of the award of damages by the jury in Kneale.[86] In that connection, senior counsel submitted -

... there is no way in which any direction from the [C]ourt could really rectify specifically anything that might lurk in the mind of the jurors as to a recollection of the damages award.[87]

60 In the course of developing that submission, senior counsel examined the publicity concerning the appeals process relating to Kneale, including the 'broadcast coverage'.[88] In that general connection, he submitted that -

... there's been a long period of relatively ... consistent media coverage which bubbles up at the various relevant points to the litigation. So before trial, during trial, upon verdict ... the appeals process ... and all of that, of course, is an indication of exactly what you would expect to occur, again, approaching the next trial and, perhaps, during the next trial.[89]

61 In that regard, senior counsel submitted that it is 'absolutely certain' that publicity in respect of the present proceeding would 'refer back to Mr Kneale'[90] and also emphasised that much or perhaps all of that to which he referred remained available to be searched and viewed online.[91]

62 In that overall setting, senior counsel for the defendant submitted that 'jury pool contamination or taint might occur in a number of ways'; particularly, 'members of the jury pool and hence the jury that have read or heard about [that] sort of material' and also jury members finding out about the 'prior case' because it is 'revealed in evidence'.[92]

63 From that point, senior counsel submitted that -

... you can instruct a jury ... all [you] like. ...

But it is not possible to know or prevent a member of the jury from doing the searches utilising the sorts of terms that I've just taken Your Honour to that Mr Pappas has deposed to; or even without those searches, a jury member who's heard about a case in the past thinks, 'Oh that's right. That was that $6m payout or that was that man that was so horribly abused by that monster Mr Hobbs and Footscray did nothing about it'. That sort of contamination is - and Your Honour won't know about it. The jury member's not going to stand up and say 'Oh sorry, Your Honour. I just remembered I've - know something about this' ...[93]

64 When I referred to an experience of just such an incident in another trial, senior counsel responded that I would not have known if the jury member had not '[p]ut their hand up' and also said that 'many jury members would not do that'.[94]

65 Senior counsel for the Club went on to identify the latter proposition as founded in 'human nature' and said that, while it might be thought to be a 'heresy', there has 'never been an evidential foundation' for the proposition that juries follow directions. Indeed, senior counsel submitted that the reduction in the awards of damages on appeal in Kneale CofA demonstrates that 'juries get things wrong' even if they are properly directed. In that general connection, senior counsel said -

... My submission is simply that that acknowledges juries get it wrong. They are human, and ... it follows as a matter of course that Your Honour can't expect - and no court can expect them to act differently than any other human being might or some human beings might. There will be jury members who simply will not acknowledge their prejudice. Some might not be aware of it. Some will know [of] it but not speak up.

That is the reality of human nature, and it takes one member of the jury to be able - particularly if they're persuasive, to be able to infect the rest. ...[95]

66 Senior counsel for the defendant thereafter addressed two specific contexts in which it was said that the presumption that a properly directed jury would put potentially prejudicial material out of its mind made 'perfect sense'. The first pertained to circumstances in which something erroneous has happened in a trial; in that connection, senior counsel referred to Reza. The second was said to be the criminal context exemplified by Dupas, in respect of which senior counsel said that '[t]he imperatives' were 'entirely different'. It was submitted that in the criminal context -

... you haven't got a solution presented to you by the [C]ourt [R]ules as we do in the civil context in Victoria, which avoids the risk of jury taint.[96]

67 Senior counsel moved then to examine aspects of the decision of Keogh J in Gobbo and submitted, ultimately, that -

... where there's a risk such as we say that presents itself in the present case, then that risk ought be avoided by exercise of the discretion.[97]

68 As to the defendant's further point - concerning the risk of 'inconsistent findings' - senior counsel also referred to the decision of Keogh J in Gobbo.

69 In that regard, while senior counsel acknowledged that the facts in Gobbo were 'very different', the present difficulty arises from the 'outright denial' by the defendant of a duty of care. Senior counsel submitted that the alleged duty is 'novel' and that there would need to be submissions about 'salient features', particularly 'the question of control'.[98] In that connection, senior counsel submitted that -

... Those questions of the capacity to control are ... squarely relevant to breach of duty. They're not like foreseeability where they can kind of sit in the middle and you can say, 'Okay, subject to reasonable foreseeability, there is a duty of care so you, the jury, can just decide reasonable foreseeability'.

In the present case the question of control presents matters that have to be determined by the trial judge. The trial judge can't say, 'Subject to resolving this question of control, there will be a duty of care so you, the jury, go off and find that.' ... It's a novel duty that needs to be determined on facts [by the judge].[99]

70 Senior counsel for the defendant submitted that there was a risk of the role of the Court being 'bifurcated'. In particular -

The risk is that the jury, without saying so, without articulating anything, has a different view about the control over the premises than the judge has, and that, with respect, would be an absolute nonsense.[100]

71 In response, senior counsel for the plaintiff took issue with many aspects of the submissions of the defendant, including that the alleged duty is 'completely novel'. In that regard, senior counsel submitted that there was a 'very great similarity between the duty ... alleged here and what was in play in Kneale' and also pointed to the assistance provided by the reasoning of the majority in Kneale CofA.[101]

72 In that general connection, senior counsel submitted that there had been evidence in Kneale about access to the change rooms and said 'this case is not different to what occurred in Kneale'.[102] Senior counsel also highlighted that the 'question trail' had been modified by the plaintiff to ask whether the Club '[c]ould ... have excluded Hobbs from [its] premises'.[103]

73 As to the suggestion of 'jury taint', among other things, senior counsel for the plaintiff referred to the empanelment process as operating to 'surface the potential tainted jurors ... before they even get onto the jury'.[104] More broadly, and essentially in summary, senior counsel came to submit as follows -

... this is a case where my client has elected to utilise the jury process. It is not a case where there is so much publicity ... - and nor is it a case where the nature of the allegations against the club are such that the [C]ourt can't trust the jurors to do what they do every day which is follow instructions; put other things out of their mind; and render a verdict according to law.

The judges have said time and time again that to their observation jurors do that task correctly. In the exchange that occurred between my friend and Your Honour, my friend basically said, 'Well, Your Honour doesn't know what Your Honour doesn't know'. Well, of course, that's right to a certain degree, but what this [C]ourt needs to move on, we would say, is the commentary and observations that judges of long experience have said in authoritative cases that bind this [C]ourt about how the [C]ourt is to treat how jurors are likely to do their job.

And that's what we're doing here: we're looking down the road to say how will a jury, if they're empanelled on this case, do their job? We would say that they'll do it as every other jury does: according to law. And of course we can't exclude the risk to zero. That's why there are cases that from time to time involve a discharge. But there is no basis on the present material, we would submit, to say that the [C]ourt should get ahead of that potential and rule out what my client has, as he's entitled to do, elected to proceed via jury trial.[105]

74 Senior counsel for the defendant made several points in reply, including that, in respect of the issue of 'control' -

... it's not possible to draw any inferences, at this stage, as to how the evidence on the capacity of the club to control what was going on between Mr Hobbs and the plaintiff might pan out. Control, we anticipate, will be very much up for grabs in the duty context, and, of course, the breach context.[106]

75 In broad terms, the submissions of the plaintiff should be accepted.

76 As earlier noted, r 47.02(3) of the Rules permits the Court to direct that trial be without a jury if, in its opinion, the proceeding should not, in all the circumstances, be tried before a jury.

77 I have earlier referred to the principles identified by JHL Forrest J in Birti[107] which both parties accepted to be presently relevant.

78 Aspects of those principles should be noted, particularly -

(a) where a party has given notice regularly that a trial by jury is required, that will be the mode of trial unless the court is persuaded to dispense with the jury;

(b) the considerations which may influence a court to make such an order are unfettered;

(c) such an order will not be made lightly as a party should not be deprived of the entitlement without 'good cause';

(d) juries should generally be regarded as capable of dealing with issues of legal complexity as well as difficult issues of fact;

(e) that said, matters of factual and legal complexity can be relevant to whether an order dispensing with trial by jury should be made; and

(f) such an order can be made at any stage of a proceeding.

79 It will be evident that the stated principles are based in the form of the applicable rule as well as the experience of generations of judges in the conduct and management of civil jury trials in this State.

80 So much is clear from the broader reasoning in Birti; but it is also clear from the reasons in many other cases which have considered the question posed by r 47.02(3).

81 In that regard, for example, in Gunns (No 5), which, as earlier noted, slightly preceded Birti, several plaintiffs made various claims in tort against six defendants in respect of separate incidents in 2003 and 2004. The defendants gave notice pursuant to r 47.02 of the Rules. The 'Gunns plaintiffs' sought an order dispensing with trial by jury.

[16] The Gunns plaintiffs contend that the legal issues alone involving consideration of principles such as acting in concert, interference with trade/business or with contractual relations and in trespass all militate against a jury hearing in this action. I am not so sure that the legal niceties pose the greatest problem to a jury hearing this trial. Juries in criminal trials are regularly charged in relation to concepts of common enterprise and/or acting in concert, and nowhere is it suggested that these concepts are beyond the wit of a properly charged jury; often such juries have to return verdicts relating to crimes with complicated elements requiring considerable explanation and consideration. Similarly, because the causes of action in trespass, conversion, nuisance and interference with trade or business/contractual relations are not regularly heard by juries in this State does not mean that a jury cannot be adequately charged in relation to such claims once the legal principles have been identified and reduced to "plain English".

...

[18] This State has a long and proud tradition of claims in tort (particularly in injury and defamation cases) being tried by juries (in this Court and in the County Court by juries of six). Judges, rightly, are reluctant to dispense with a mode of trial chosen by a litigant that ensures that the invaluable commonsense and knowledge of six members of the community of life outside and well away from 210 William Street, Melbourne is brought to bear upon a dispute between fellow citizens.

...

[20] I am firmly of the view that this is too great a task for a jury, given the multiplicity of claims, defendants and the different forms of damage sought. I am unaware of any civil trial in this State in which a jury has considered five separate causes of action allegedly occurring over a period of two years with multiple defendants, some involved in one claim but not in others. The concept of a jury considering over 60 separate questions relating to five different factual scenarios and requiring, as part of the task, separate verdicts as to different forms of damage is, I think, too great. Counsel for the HGR defendants placed reliance upon what was said by Brooking JA in State of Victoria v Psaila [[1999] VSCA 193 [24]] when his Honour spoke of the ability of a jury to deal with matters of considerable complexity. All who have practiced in this area would readily acknowledge this proposition. However, it is to be remembered that his Honour's observation was in the context of an appeal against the decision of a County Court judge who dispensed with a jury in a single issue trial involving alleged negligence on the part of a school authority. The claim related to a game of T-ball in a schoolyard at a primary school in Wendouree; eons away from the facts and issues in these two proceedings.

83 It followed that his Honour was persuaded that, in all the circumstances of the case, trial by jury was inappropriate.

84 It will be evident that, in some ways, the elements of complexity observed by his Honour in Gunns (No 5) were similar to those considered more recently by Keogh J in Gobbo. In both instances, the judicial officer concerned determined that trial should proceed without a jury.

85 By contrast, Belbin & Ors v Lower Murray Urban and Rural Water Corporation[108] concerned a trial of several defamation claims conducted over multiple sitting days in Mildura. The plaintiffs each elected trial by jury. The defendant pleaded multiple common law and statutory defences, including qualified privilege. Many issues would ultimately need to be determined by the trial judge, Kaye J.

86 At the commencement of the trial, the defendant applied for an order that the trial proceed without a jury.[109] In some ways similarly to the circumstances of the present case, that application was founded in, among other things, claims of 'complexity' together with 'a large quantity of publicity in the Sunraysia Daily'. In respect of the latter, senior counsel for the defendant submitted that -

... the issue with which this case is concerned would have affected persons or family members of persons or nearly every citizen of this area, and that it would be impossible to empanel a jury which did not contain people who had been, in some way or other, either directly or indirectly, affected by that matter.[110]

87 Kaye J referred to relevant authority, including Gunns (No 5).[111] His Honour thereafter acknowledged the complexity identified in argument, albeit that his Honour observed that at the commencement of the trial it was 'difficult to envisage just how much difficulty would be occasioned'.[112] His Honour also considered that it would be 'preferable' for the matter to proceed as a cause. However, his Honour was not persuaded that those matters were sufficient to disentitle the plaintiffs to their right to a trial by jury.[113]

88 I should add that his Honour had 'concerns' about the publicity which 'may well' have meant that members of the jury panel had 'lingering recollections of the type of issues ... which may well be agitated in court'.[114] That said, his Honour stated -

[16] On the other hand, if this case were to proceed in front of a jury, I would give strict directions to the panel, firstly, that any person who could not put any such publicity out of their minds should seek to be disqualified from service on the jury. And if a jury were empanelled, I would then give equally strict instructions to the jury that if, in the course of listening to the evidence, they were to be reminded of anything they had previously read, they should put that out of their mind.

[17] It has been the long standing experience of judges in this State, both in criminal and civil trials, that juries by their verdicts have time and time again demonstrated that they are most astute and conscientious in adhering to that type of direction. ...

89 Notwithstanding the concerns to which I have referred, his Honour did not accede to the defendant's application.

90 The matter proceeded to trial before a jury, which delivered answers to 13 questions in each claim, including special verdicts on various facts.

91 Various issues and defences then fell to be determined by Kaye J. In that context, his Honour paid the following tribute to the work of the jury -

... The trial was long. A number of witnesses were called. A substantial amount of detailed evidence was given concerning the circumstances leading to the closure of FMIT [First Mildura Irrigation Trust]. A large number of exhibits were tendered. For that purpose, the jury had two folders of copy exhibits. The exhibits were regularly referred to in evidence. At all times the jury were most conscientious in paying attention to the evidence, and in referring to the exhibits which were under discussion. The verdicts of the jury reflected the close and careful attention which the jury had consistently paid, throughout the case, to the evidence, to counsel's addresses, and to my directions. Indeed, such was the close attention paid by the jury to my final directions that, at one stage, during those directions, a juror drew to my attention an error which I had made in summarising the evidence of one of the witnesses. The performance by the jury in this case fully vindicates the faith which the courts have long held in trial by jury as the most fair and appropriate method of determining such cases.[115]

92 An appeal followed. Several grounds were directed to the verdicts of the jury. The appeal was dismissed.[116]

93 All of the decisions to which I have referred are those of common law judges of great standing and experience. From the various extracted elements of reasoning it will be clear enough that -

(a) during a civil jury trial, a judicial officer will tend to observe the work of the jury members very closely;

(b) over time, such observations allow conclusions to be drawn about the general behaviour and capabilities of jury members, but also about the likely limits of those capabilities;

(c) consequently, an experienced trial judge is often well placed to form opinions about whether particular issues and combinations of issues will be triable before a jury;

(d) in many cases, jury verdicts are consistent with (or, at least, reconcilable with) the assessments and experience of the presiding judicial officer;

(e) over the long term, those observations and assessments tend to 'vindicate the faith which the courts have long held in trial by jury';[117] and

(f) any consideration of the Birti principles is inevitably grounded in such conclusions, observations and assessments.

94 I should add that judicial officers who sit regularly in civil juries in this Court have access to a range of related practices and experiences that are also apt to instil in them a degree of confidence in the fundamental soundness of the system of trial by jury.[118] In that regard -

(a) at empanelment, prior to explaining the nature and circumstances attending the particular case, it is standard to explain to the assembled jury panel that -

It is essential that every member of the jury be completely open-minded about the case that they will hear, and not favour one side or the other. Sometimes a juror knows one of the people involved in the trial, or knows something about them. Even if that juror feels capable of treating the people involved in the case fairly, to the outside world it may appear that they will favour one side or the other.

A similar problem may arise if a juror had, or believes they have information about the facts of the case.

(b) it is common for some members of a jury panel to state 'excuse' during the call over of the panel and to explain, under affirmation or oath, that for one reason or another they do not feel that they could render a fair verdict in the case described, and so seek to be excused prior to empanelment;

(c) the prevalence of such excuses being proffered, and panel members therefore being excused, is no less in trials relating to allegations of 'institutional liability';

(d) after a jury is empanelled, but prior to counsel's opening and the commencement of the evidence, it is standard to give directions to the jury concerning their functions, the setting aside of emotional factors, the process of verdict, the asking of questions, the role of the judge, the making of investigations outside court (including using the internet) and the use of social media;

(e) the standard direction concerning the functions of the jury includes reminding the jurors that they, alone, are the 'judges of the facts' and will decide the case and so should conduct themselves 'in a way that you would expect a judge to conduct himself or herself';

(f) the standard direction concerning the making of investigations is as follows -

I will now give you a warning about investigations, including on the internet.

We live in a world of instant information. Almost any question can be Googled and explored via the internet.

It is important that you do not, in the course of this trial, make any of your own investigations about any aspect of the evidence or any issue, online or in any other manner.

If any juror is aware of any jury disobeying my direction on this, you must inform my associates immediately.

Such is the importance of this matter that the State Government has legislated to make it a criminal offence for any juror to make his or her own investigations of any matter in a civil or criminal trial. To do so may lead to prosecution.

Your verdict must be based upon the evidence and only the evidence presented to you in this Court. I'm sure you understand why that is so. Please keep that in mind and do not be tempted to conduct your own investigations.

(g) it is not uncommon for a judicial officer to enhance the latter point by asking the jurors to imagine that they were litigants in a court proceeding and therefore to consider the importance of the case being decided fairly and by reference to material that everyone in the case knows about, can respond to and make submissions about;

(h) such instructions are usually accompanied by slides that reinforce the directions given;

(i) it is common for jury members to be most attentive and, indeed, nodding, during those parts of those opening instructions directed to warning them against conducting investigations and in which it is sought to impress upon them the importance of fairness to all parties;

(j) I have never had an experience in or associated with any jury trial which would suggest that any jury member has made their own investigations;

(k) as indicated in argument, I have had the experience of a jury member coming to recognise the plaintiff in the course of evidence and raising the matter with my associates leading to the discharge of that jury and re-empanelment the next day with a second jury;

(l) during the running of almost every civil jury trial - perhaps now more than ever - it is common for the jury to ask multiple written questions via the foreperson;

(m) very often, the content of those questions exposes the engagement of the jury with the issues to be determined in the trial and, on occasion, exposes a remarkable degree of insight and collective intelligence;

(n) it is common for parts of the instructions to which I have referred to be repeated during the judge's charge;

(o) it is not uncommon for juries to ask questions seeking further explanation of the legal principles and other matters outlined during the judge's charge; and

(p) it is not uncommon for juries to ask questions during the course of their deliberations that, again, tend to underline the diligence with which they are attending to the performance of their task.

95 In short, contemporary experience tends to be confirmatory of the observations made over a very long period by judges of long standing and experience to the effect that jurors in this State generally go about their task as directed. In particular, jurors are regularly observed to attend to their tasks in the manner of responsible adults, evidently mindful of the seriousness of their tasks and the importance of the case before them being decided fairly and on the evidence presented.

96 That brings me to the decision of the High Court in Dupas, to which I earlier referred.

97 As noted, senior counsel for the defendant sought to diminish or distinguish Dupas as relating to the 'criminal context' and therefore as driven by what was described as 'entirely different' imperatives. However, in my view aspects of the reasoning of the unanimous High Court are of very great present significance. In particular -

(a) the case involved an accused with prior convictions and a very significant body of related publicity that was, to a considerable extent, also available online at the time of trial;[119]

(b) the trial judge (in the Supreme Court of Victoria) directed the jury firmly concerning, among other things, the need to give a verdict free of 'extraneous considerations and ... prejudice';[120]

(c) the trial judge also met the 'forensic challenge' presented by the reality that the jury would learn of the accused's history and prior conviction by directing the jury in advance;[121]

(d) the High Court described all of the trial judge's directions as 'proper' and demonstrative of 'the capacity ... to relieve against the unfair consequences of ... pre-trial publicity';[122]

(e) the High Court also described as 'important' the 'experience and wisdom of the law ... that, almost universally, jurors approach their tasks conscientiously';[123] and

(f) the High Court concluded that, in all the circumstances, the pre-trial publicity had not 'deprived the [accused] of a fair trial'.[124]

98 Much of the above is, of course, consistent with, and essentially confirmatory of, the earlier and contemporary observations in respect of civil jury trials in this State.

99 Importantly, it is also unanimous reasoning of the High Court and I do not accept that it should simply be disregarded on the basis of its 'criminal context' and the so-called 'different' imperatives.

100 In that overall context, I cannot accept the submissions of the defendant concerning the seemingly intractable 'human nature' of jurors. While it may, of course, be acknowledged that circumstances of an exceptional and perhaps singular kind can be capable of arising in a particular case, the broad attribution of traits of connivance and mendacity as well as unthinking suggestibility to members of jury panels in this State seems to me to be contrary to long observed experience and, indeed, authority. As I sought to indicate in argument, perhaps indirectly, such a submission seems to me to owe considerably more to John Grisham (or Hollywood) than the everyday reality of jury trials in this State.[125]

101 Further, I cannot accept the submission of the defendant that all of the observations of judicial officers made over many years concerning the general conscientiousness and diligence of jury members should be taken to have been made without any proper foundation. As I have indicated, such observations are founded in the indicia associated with the conduct of years of jury trials, including civil jury trials, by generations of judicial officers.

(a) errors can occur which require a civil jury to be specifically directed and sometimes discharged;[126]

(b) there can be a risk that particular evidence in a proceeding will be misused;[127]

(c) in particular circumstances, the risk of the jury being distracted from its task by publicity and notoriety can weigh in favour of a trial proceeding without a jury;[128] and

(d) jury verdicts can come to be set aside and corrected on appeal (including, as emphasised in argument, in Kneale CofA).

103 However, I do not consider it to follow from any of the above that -

(a) the conscientiousness and diligence of jury members in this State should generally be considered to be other than as indicated; and

(b) the mere presence of any degree of risk should be taken as sufficient to induce a court to dispense with trial by jury and proceed to hear the trial as a cause in order that any and all such risks might be avoided.

104 Indeed, a proposition of the latter kind seems apt to set almost at nought the fundamental proposition that an order dispensing with the entitlement of a party to trial by jury should not be made lightly and should be made only upon the demonstration of 'good cause'.

105 Further, it is, obviously, unsound to assume that trial by judge alone is without at least one of the risks identified.

106 In light of the above, I cannot accept that any of the risks presently said to arise from the publicity and notoriety of Kneale and its subsequent appeal processes amount to the showing of 'good cause' such that the entitlement of the plaintiff to trial by jury should be displaced.

107 In that regard, the circumstances in Gobbo were different to those pertaining to the present case. The defendant acknowledged that the present publicity tended to 'bubble up' at points relevant to Kneale and the subsequent processes of appeal.[129] By contrast, Keogh J described the publicity relating to Gobbo as follows -

The story of Nicola Gobbo or 'Lawyer X' continues to capture the close attention of the citizens of Victoria, and periodically saturates media outlets across Australia, years after the underlying events occurred. The factual matrix of Gobbo's claim has been the subject of High Court jurisprudence, a Royal Commission, and a subsequent wave of civil and criminal litigation. It has been the fodder for mainstream public entertainment including a book, television miniseries, investigative journalism podcast, and a television interview with Gobbo herself. ...[130]

108 Correctly, in my view, senior counsel for the defendant acknowledged that the circumstances in Gobbo were 'pretty extreme'.[131] In my view, there is little in the way of any true comparison between the circumstances of the two cases.

109 Further, by the time that the present matter comes to trial, much of the assembled publicity will originally have been published nearly two years ago. Indeed, even the most recent publications in the material assembled will have been surpassed by scores of news cycles by the time that the trial commences.

110 I am also mindful that the assembled material is, necessarily, curated and produced en bloc. In such circumstances it can be easy to overlook the fact that all of the individual items must originally have been published in particular sources at particular times and, inevitably, surrounded by hundreds if not thousands of other news items in dozens of channels, publications and sources.

111 In anticipation of such points, perhaps, the Club sought to emphasise what was described as elements of 'sensationalisation' in the material assembled.[132] In that connection, senior counsel referred to matters such as that -

(a) Kneale concerned an AFL Club;

(b) one or more of the stories were accompanied by photographs that were said to 'engage at an emotional level with the audience'; and

(c) some of the stories referred to a large award of damages.[133]

112 However, there is nothing unusual about the reporting and public discussion of litigation and other occasions enquiring into incidents of child sexual abuse in institutional and other settings. That has been a feature for some years - both before and since Kneale.

113 In that regard, I do not consider the publicity to which my attention was directed to be any different in character to the kind of reporting that is common. Nor do I accept that much or any of it is particularly 'sensationalist' or even memorable - including that, in Kneale, there were particular awards of damages.

114 Further, I doubt that the fact that the abuse in Kneale originated in circumstances associated with an AFL Club, and that the Club was the defendant, means that it has been likely to attract the ongoing interest of football fans. It was not said in argument that any of the publicity produced had appeared on a front page or in the 'Sports pages'. Moreover, none of it relates to 'football', in the sense of contemporary AFL players and games.

115 In those circumstances, it is conceivable that supporters of other clubs may have little to no interest in the story; and that even supporters of the Club could consider it to be essentially historical in nature and therefore little more than peripheral to their present interest. In a sense, the persons most likely to recall the story presently are probably those who already had an interest in stories of institutional sexual and other abuse.

116 In short, I do not accept that the publicity exhibited to the affidavits of Mr Pappas, including those aspects to which I was particularly directed in argument, is likely to give rise to an indelible or ineradicable 'taint'; certainly not of a kind that might be regarded as subsisting with any force by the time that the proceeding comes to trial later this year, and is otherwise unable to be dealt with via jury directions of the usual kind.

117 Notwithstanding the above, the Club sought to bolster the submissions made concerning the various elements of publicity by contending further that -

(a) the result in Kneale was on a 'knife-edge';

(b) there is likely to be a similarity between Kneale and the present case (in particular, 'it is exactly the same case' and 'will be conducted on the same evidence and in the same way, unless something unforeseen happens'[134]);

(c) the publicity relating to Kneale and its associated appeal processes creates a perception of prior determination of the major issues in dispute;

(d) much or all of the publicity remains available online;

(e) it may be anticipated that there will be publicity approaching the commencement of a trial in the present case; and

(f) jurors at a trial in the present case may find out that there was an earlier case.

118 It should be evident that I do not accept that the publicity to which I have referred would give rise to any real and subsisting perception of prior determination of the issues at a trial of the present case.

119 In any event, the real significance of much, if not all, of the above emerged when it was sought to be combined with the Club's ultimate contentions concerning 'human nature' and the like, which, of course, I have earlier addressed in some detail and rejected.

120 To be clear, in my view, there is nothing about the present circumstances that strikes me as particularly likely to elevate the risks presented to a level that could not be addressed in the forum of a jury trial in which firm instructions are given of the usual kind. Indeed, I would presently be quite confident that, properly conducted, both parties could have a fair trial by jury.

121 For completeness, I should add that I do not consider anything that I have said to be significantly altered one way or the other by the survey evidence and competing submissions of the parties concerning that evidence.

122 That brings me to the second of the Club's contentions directed to 'complexity' and the alleged risk of 'inconsistent findings'.

123 It will be evident that the present circumstances are not likely to involve extensive complexities of the kind considered in cases such as Gunns (No 5) and Gobbo. That is, it is not a case involving multiple and conflicting claims between multiple persons as well as differing measures of damage; it is simply a negligence claim made by one party against another.

124 The present complication - and suggested basis for apprehensions about 'inconsistent findings' - is said to arise from the simple denial by the defendant of the duty of care alleged by the plaintiff.[135] That, of course, did not occur in Kneale.

125 In that connection, I have earlier noted that the Club contends that the alleged duty of care is 'novel' and that the existence and scope of any such duty must be assessed by reference to the 'salient features' of the relationship between the parties. It is said that those questions would need to be the subject of submissions and ruled upon by the trial judge prior to any charging of the jury. All of that, and more, is said to be inconvenient and likely to give rise to a risk of inconsistent findings as between the trial judge and any subsequent determination by a jury.

126 In circumstances of the present kind, authority and practice contemplate that it may be necessary for a trial judge to determine whether, as a matter of law, an alleged duty of care arises before proceeding to charge the jury.

127 In that regard, in Swain v Waverley Municipal Council ('Swain'), Gleeson CJ explained as follows -

In an action framed in negligence, the judge (if necessary) will decide, as a matter of law, whether the facts alleged by the plaintiff are capable of giving rise to a duty of care in the defendant towards the plaintiff. A legal issue of that kind is often capable of being decided on the pleadings. On the other hand, the alleged duty of care might depend upon contested facts that need to be resolved as part of the trial process. ...[136]

128 In a jury trial, of course, some care is required owing to the delineation of functions between the judge and jury. That is, the judge decides issues of law; the jury decides issues of fact.[137]

129 In that connection, a finding as to the existence of a duty of care in cases that do not involve an established or recognised relationship can depend upon findings being made in respect of some or all of the 'salient features' pertaining to the relationship between the parties.[138] In some cases, that task will be so complex that it cannot be achieved by a combination of judge and jury.

130 However, in practice, there can be multiple avenues or means by which the issue might be determined whilst at the same time observing the delineation between the respective functions of the judge and jury. In that regard -

(a) as contemplated by Gleeson CJ in Swain, the issue may be capable of being determined on the pleadings;[139]

(b) some or all of the relevant evidence may be such that there can really be only one version of the facts relevant to a determination of parts or all of the salient features pertaining to a relationship between the parties;

(c) in that connection, there can be cases in which, for example, the duty is alleged to arise in relation to a statutory provision or provisions and the evidentiary landscape is otherwise such that the question may be determined by the judge;[140]

(d) in that regard, the circumstances and state of the evidence may well be such that responsible counsel would be able to agree upon its effect and so allow the trial judge to consider and determine part or all of the relevant issues;

(e) it might be appropriate to take special verdicts of the jury in respect of parts of the 'salient features' before determining the issues;[141]

(f) in other instances the evidentiary landscape might be such that the jury could be directed that a certain duty of care should be taken to have been owed if it finds one or more facts - for example, that the risk of injury was reasonable foreseeable; and

(g) in an appropriate case, it may be possible to combine parts of one or more of the above, or other, approaches.

131 In a sense, the penultimate of the above positions may be observable in Kneale CofA. In that regard, in respect of the issue of duty of care, the majority reasoned relevantly as follows -

[265] ... As the authorities we have referred to make clear, it is also necessary for this Court to determine whether the relationship between Hobbs, Footscray [i.e., the Club] and Mr Kneale was sufficient to found a duty of care and its content in the form of the judge's direction to the jury.

[266] A number of matters adduced in evidence point cogently to the scope of the duty owed to Mr Kneale by Footscray going beyond that owed by an occupier under the provisions of pt IIA of the Wrongs Act. These factors are interconnected by the underlying theme of the regular presence over five years at the Western Oval and its facilities of Hobbs, a Footscray volunteer, and that of young boys, including Mr Kneale.

[267] The class to whom the duty was owed was identified with precision as 'those young boys including Mr Kneale who regularly attended the Western Oval on training and match days'. The vulnerability of Mr Kneale, as a young teenage boy, to the sexual advances of an older man was self‑evident, at least at a general level as Mr Hinch's evidence confirmed. Unsupervised young boys of the age of Mr Kneale were susceptible to the proclivities and grooming activities of older males, such as Hobbs. Mr Kneale was not at an age in which he could protect himself and there could not be a reasonable expectation of him doing so.

[268] Mr Kneale's association with Hobbs, in the course of his role as a volunteer with Footscray, is important. He was not an employee or agent of Footscray. The function of volunteers was explained by several witnesses. In those days (and perhaps now), volunteers were, if not the life blood, vital contributors to the operations of a football club. Their efforts supplemented those of a club's employees and each club had its own group of volunteers - as demonstrated by the references in both the Footscray annual reports, 'The Bulldog' and the evidence of Mr Smith, Mr Galimberti and Mr Sherry. In practice, the volunteers were part (if only a bit part) of Footscray's workforce. Hobbs' involvement with Footscray was more than that of merely giving a hand. In one of the annual reports, he is described as a 'Jack of all trades'. He regularly attended home games and sold seasons tickets and raffle tickets, all of which, it can be inferred, produced revenue for Footscray. He was the contact person for volunteer helpers for fundraising with his address given in the June 1987 edition of 'The Bulldog' as 'c/o Footscray Football Club'.

[269] Footscray controlled Hobbs' entry to the ground and the administration offices. The abuse of Mr Kneale took place in the administration offices within the EJ Whitten grandstand. Footscray managed the offices and could determine who came and went. Hobbs had unfettered access, it would seem, to those areas, and could come and go as he pleased. Mr Kneale's evidence was that he, in the company of Hobbs, was able to be observed by those working in the administration area. To some extent, Footscray's level of control can be compared to that of the stevedoring authority in Crimmins v Stevedoring Industry Finance Committee [(1999) [1999] HCA 59; 200 CLR 1]. In that case, the stevedoring authority organised and marshalled waterside workers for allocation to stevedoring companies which then employed them on a pick up basis. The High Court held that by reason of the control exercised over the workers the authority owed a duty of care to the members of that labour force, which included Mr Crimmins. Here, Footscray provided the raffle and seasons tickets for Hobbs and other volunteers to sell to persons attending the Western Oval and, it can be readily inferred, gave instructions to Hobbs as to where to store the cash obtained from the sale of raffle or seasons tickets. It also organised the U19s team and those who assisted in its management and operations, including Hobbs.

[270] There was no suggestion of incoherence or inconsistency with any other legal principle.

[271] Footscray's submission that the scope of its duty should be limited to that prescribed by pt IIA of the Wrongs Act is not made out. For the reasons we have just set out, the content of the duty was wider and, subject to establishing reasonable foreseeability on the part of Footscray as to Hobbs' actions, extended to taking reasonable steps to protect young boys attending the Western Oval from Hobbs' abuse. It follows that the judge's direction to the jury on this issue was sound and consistent with the evidence adduced at the trial.

(a) the evidentiary landscape was such that there seems to have been little or perhaps no real dispute concerning the effect of the evidence relating to Hobbs, the role of Club volunteers such as Hobbs, the presence of young boys at the Western Oval and their vulnerability and the control by the Club of Hobbs' 'entry to the ground and the administration offices';

(b) there was no suggestion of incoherence or inconsistency with other legal principle; and

(c) the central (and determinative) factual controversy was 'reasonable foreseeability'.

133 In light of that reasoning, as I have earlier noted, the written submissions of the plaintiff contend that -

... the existence and scope of the duty of care should be determined by the trial judge subject to the jury resolving the issue of reasonable foreseeability.[142]

134 Later, as I have also noted, the plaintiff contended that the issues of reasonable foreseeability and 'control' might both be determined by the jury.[143] In that regard, the modified 'question trail' (which accompanies the plaintiff's written submissions) essentially accommodates a determination of both issues by the jury.

135 Such an approach would, of course, allow the delineation in function as between the trial judge and jury to be observed whilst at the same time avoiding any real risk of inconsistent findings as between the judge and jury.

136 In oral argument, the Club did not expressly take issue with the proposition that the issue of reasonable foreseeability might be determined by a jury in the manner suggested. Indeed, part of the Club's submissions might be thought to have acknowledged the possibility.[144]

137 Instead, the focus of the Club seems to have fallen upon the broad contention that findings in respect of 'salient features' are inevitably 'fact sensitive'[145] together with the more specific submission that 'questions of control' would need to be 'looked at and examined and decided by the trial judge' and, unlike the issue of reasonable foreseeability, could not be left to the jury.[146]

138 As I have earlier noted, the fact that determinations in respect of 'salient features' might in some cases or respects be 'fact sensitive' would not always prevent questions of duty and scope of care being determined appropriately by the judge in the setting of a jury trial.

139 Moreover, in respect of the more specific submission concerning 'control', the reasoning of the majority in Kneale CofA does not suggest that the evidence concerning the roles of Hobbs and volunteers together with the Club's ability to control access to its premises was there greatly in dispute (if at all).

140 In that connection, I am conscious that senior counsel for the present plaintiff stated that -

... there was evidence in the Kneale case about access to the change rooms, and to that extent this case is not different to what occurred in Kneale.[147]

141 More broadly, there seems to me to be a degree of tension between the contention of the Club that it is 'not possible to draw any inferences' about how the evidence on the issue of control 'might pan out' at a trial in the present case[148] and the Club's argument in respect of 'public notoriety' in which it was submitted that any such trial would be likely to be conducted 'on the same evidence and in the same way [as in Kneale], unless something unforeseen happens'.[149] As I have indicated, the relevant reasoning of the majority in Kneale CofA does not suggest that the relevant evidence was greatly in dispute in Kneale (if at all).

142 In the end, it seems to me that the present position is, in some ways, a little like that faced by Kaye J in Belbin (Ruling No 1). That is -

(a) it is not presently easy to define, with any certainty, the extent to which any difficulty would actually arise at trial; and

(b) on one view, it may be that there would prove to be little or no difficulty at all.

143 In that connection, as I have indicated, it seems possible that a jury in the present case might, at least, be able to be directed that a duty of care of a certain scope could be taken to arise if it were to accept that the risk of injury was reasonably foreseeable.

144 Further, I do not accept that it would be inappropriate to take essentially the same approach in respect of the issue of 'control'; that is, that the jury might consider and determine whether and the extent to which the Club could have managed a volunteer such as Hobbs and excluded him from its premises (particularly, the change rooms). If those matters ultimately come to be in issue at all, they seem to me to be largely or wholly issues of fact that might be able to be determined by a jury, properly instructed.

145 I am conscious, of course, that it is presently some months before the listed trial date and there is, presumably, no Court book or lists of witnesses relating to such a trial. In those circumstances, the situation seems to be even more debateable and uncertain than that which Kaye J considered at the commencement of the trial at the time of Belbin (Ruling No 1).

146 It follows that for the reasons which I have sought to outline, while it might well be that it would be easier, and therefore perhaps generally preferable, for the matter to proceed to trial without a jury, that state of affairs is not presently sufficient to disentitle the plaintiff to his right to trial by jury.

147 In all of the circumstances, the Club's contentions - considered individually and in combination - do not, in my opinion, amount to the demonstration of 'good cause' such that the plaintiff's right to trial by jury should presently be displaced.

149 I will hear from the legal representatives of the parties in respect to the form of appropriate orders and any consequential issues required to be determined.

[1] Footscray Football Club Ltd v Kneale [2024] VSCA 314 ('Kneale CofA').

[2] Footscray Football Club Ltd v Kneale [2025] HCADisp 73.

[3] Amended statement of claim filed 29 May 2024 ('ASOC') [5].

[12] ASOC (n 3) [10], particular (d).

[18] Defence filed 4 March 2024 ('Defence') [5(a)].

[22] Affidavit of Blake John Pappas sworn 21 January 2025; Affidavit of Blake John Pappas sworn 30 May 2025.

[23] Affidavit of Nicole Joseph affirmed 13 June 2025 ('First Joseph affidavit'); Affidavit of Nicole Joseph affirmed 19 June 2025; Affidavit of Nicole Joseph affirmed 20 June 2025.

[24] Club's submissions on mode of trial application filed 30 May 2025 ('Club's written submissions'); Plaintiff's submissions on mode of trial application filed 13 June 2025 ('Plaintiff's written submissions'); Club's reply submissions filed 18 June 2025 ('Club's reply submissions').

[25] Club's written submissions (n 24) [5].

[26] [2011] VSC 566 ('Birti').

[28] [2009] VSC 284 [9] ('Gunns (No 5)').

[29] [2011] VSC 75 [35].

[30] [2011] VSCA 16; (2011) 31 VR 249 ('Trevor Roller').

[31] French v Herald & Weekly Times Pty Ltd [2010] VSC 127; (2010) 27 VR 140, 142 [12]; Matthews v SPI Electricity Pty Ltd (Ruling No 8) [2012] VSC 318; (2012) 35 VR 643, 653 [56]; Halligan & Ors v Curtain & Anor [2013] VSC 124 [15]; Kyriackou v Edwards [2014] VSC 201 [4]; Baehnisch v G4S Australia Pty Ltd & Anor (Ruling No 1) [2020] VSC 64 [6]; Gobbo v State of Victoria [2024] VSC 603 [31] ('Gobbo').

[33] [2015] VSC 543 ('Svajcer').

[37] Gobbo (n 31) (citations omitted).

[38] Club's written submissions (n 24) [19].

[41] Club's written submissions (n 24) [23] (citations omitted).

[42] Ibid [25(a)] (citations omitted).

[44] Plaintiff's written submissions (n 24) [2]-[3], [9].

[51] Ibid [17]. Cf First Joseph Affidavit (n 23) Exhibit 'NJ-2', 82-100.

[53] Plaintiff's written submissions (n 24) [21]-[22].

[57] Ibid [25]. See also [29]-[34]. Cf Reza v Summerhill Orchards Ltd [2013] VSCA 17; (2013) 37 VR 204 [50] ('Reza').

[58] Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 ('Dupas').

[59] Plaintiff's written submissions (n 24) [33].

[60] Dupas (n 58) 242 [8], 250-1 [36].

[65] Plaintiff's written submissions (n 24) [34].

[66] Ibid [37]-[39]. Cf Kneale CofA (n 1).

[67] Plaintiff's written submissions (n 24) [39].

[69] Ibid [40], Annexure: 'Proposed Jury Question Trail'.

[73] Club's reply submissions (n 24) [2] (emphasis in original).

[74] Ibid [3] (emphasis in original).

[77] Club's reply submissions (n 24) [10]. See also [8]-[9].

[78] Ibid [11] (emphasis in original).

[81] Club's reply submissions (n 24) [15]-[16].

[82] Ibid [17] (emphasis in original).

[91] T15-17. I should, perhaps, add that defence senior counsel later relied upon the survey evidence produced by the plaintiff in support of the argument that '... the level of knowledge ... is sufficient on its own ... for Your Honour to have grave concerns about the ability of the case to be run impartially without jury taint': T28.

[108] [2012] VSC 535 ('Belbin Trial').

[109] Belbin & Ors v Lower Murray Urban and Rural Water Corporation (Ruling No 1) [2012] VSC 359 ('Belbin (Ruling No 1)').

[114] Belbin (Ruling No 1) (n 109) [15].

[116] Lower Murray Urban and Rural Water Corporation v Di Masi & Ors [2014] VSCA 104; (2014) 43 VR 348.

[118] Various aspects of the following are founded in the publicly available 'Civil Juries Charge Book'.

[120] Dupas (n 58) [9]. See also [21].

[136] [2005] HCA 4; (2005) 220 CLR 517, 520 [4].

[139] See also Kneale CofA (n 1) [257].

[140] Cf Stuart v Kirkland-Veenstra (2009) 234 CLR 215.

[141] Which, in another context, essentially occurred in Belbin Trial (n 108).

[142] Plaintiff's written submissions (n 24) [39].

[143] Plaintiff's written submissions (n 24) [46].

[144] See T32: 'They're [question of control] not like foreseeability where they [the jury] can kind of sit in the middle and you can say, "Okay, subject to reasonable foreseeability, there is a duty of care so you, the jury, can just decide reasonable foreseeability"'.

[145] See, eg, Club's written submissions (n 24) [25(a)]. See also Club's reply submissions (n 24) [17].