Plaintiff v Defendants

2 There is no question, at least to my way of thinking, that if the choice was as simple as that of having this trial heard by six members of the community as opposed to a judicial officer, then a trial by jury wins hands down as the appropriate forum; this is particularly so given the significance and impact of the fire on the Victorian community. However, the application is not to be determined by reference solely to the natural forum for such a hearing, but rather by consideration of a number of issues, including the complexity of the trial and the tasks that a jury will be required to undertake in reaching its verdict.

3 Ultimately and regrettably, I have come to the view that it is inappropriate for the trial to be heard by a jury and it should proceed before a judge alone. My reasons for reaching this conclusion, as well as my decision in regard to a number of preliminary matters, now follow.

4 The background can be understood, at least in part, from my previous seven rulings. However, I think it is necessary to set out in a little detail those matters relevant to the question of the mode of the trial.

5 The claim is brought pursuant to Part 4A of the Supreme Court Act 1986 (Vic)[1] by Mrs Matthews on behalf of group members who sustained personal injury and/or property damage, and/or economic loss as a result of the bushfire.

6 The fire commenced, so it is alleged, as a result of the failure of a wire conductor which formed part of a single wire earth return ("SWER") electricity distribution line known as the Pentadeen Spur line ("the line"). It is undisputed that, whatever the cause of the fire, in the conditions that prevailed on Black Saturday, it spread rapidly with devastating consequences for communities in its path, particularly in the Kinglake area.

7 There are five defendants to the claim: SPI Electricity Pty Ltd ("SPI"), which owned and operated the electricity distribution network, including the line. Utility Services Corporation Ltd ("USC"), which was contracted by SPI to inspect specified SPI electricity distribution assets on the line. Then there are three "State parties": the Secretary of the Department of Sustainability and Environment ("DSE"), The Country Fire Authority ("CFA") and the State of Victoria ("the State").

8 Mrs Matthews asserts that the conductor failed on the morning of 7 February 2009 and ignited the fire; that she and members of the group suffered injury or loss as a result of negligence on the part of each of the defendants. She alleges the following:

• SPI was negligent in its management, inspection and maintenance of the line;
• USC was negligent in its inspections of the line and its assets;
• DSE was negligent in failing to reduce fuel loads in lands under its control prior to the fire and failing to provide adequate warnings about the bushfire;
• CFA was negligent in failing to contain the bushfire and failing to give adequate warnings about the bushfire; and
• the State is liable for the failure of Victoria Police officers to give appropriate warnings about the approach of the fire.

9 There are also claims against SPI in nuisance and breach of statutory duty.

10 Each of the defendants denies the allegations made by Mrs Matthews and there are a number of cross claims.

11 The generally endorsed writ was issued on 16 February 2009 in the name of Mr Leo Keane against two companies associated with SPI. The writ did not seek trial by jury and no notice was given by the SPI companies seeking a jury trial.

12 On 18 June 2010, Mrs Matthews sought, amongst other orders, that the mode of trial be that of judge and jury and that she be substituted as plaintiff in place of Mr Keane.

13 On 23 July 2010, Mr Keane was removed as the plaintiff and Mrs Matthews substituted. The two SPI-related companies were also removed and SPI substituted.[2]

14 On 28 January 2011, Mrs Matthews filed an amended writ and statement of claim joining USC and the three State parties.

15 None of the defendants have given notice that they require a jury trial.

16 A separate proceeding was initiated this year by the related entities against SPI and USC seeking damages as a result of the fire. I recently made orders that both proceedings be set down for trial to be heard together on 29 January 2012.

17 The statutory framework for class actions (referred to as group proceedings) is set out in Part 4A of the SCA, which is, with a couple of minor exceptions, cognate with the provisions of Part IVA of the Federal Court of Australia Act 1976 (Cth).[3] There is no reference in either the State or Federal provisions concerning group proceedings as to the mode of trial.

18 There are odd references in other parts of the SCA to trial by jury in civil proceedings, but nothing dealing specifically with an entitlement or right to trial by jury.

19 The Juries Act 2000 (Vic)[4] sets out the mechanics of a civil jury trial (numbers of jurors, jury fees et cetera). However, it is also silent on a right or entitlement to a jury trial.[5]

20 The specific source of the entitlement of a party to a civil jury trial in this State is not to be found in either the SCA or the Juries Act, but rather in the Supreme Court (General Civil Procedure) Rules 2005,[6] and particularly under Order 47.[7]

21 Order 47 of the SCR deals with the "place and mode of trial". Rule 47.02 reads as follows:

(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 prescribed fees for the purposes of section 24 of the Juries Act are paid.

(2) Any other proceeding shall be tried without a jury, unless the Court otherwise orders.

(3) Notwithstanding any signification under paragraph (1), 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.

22 The Civil Procedure Act 2010 (Vic)[8] came into effect on 1 January 2011 and applies to all civil proceedings, save for those specifically exempted by s 4(2) and (3) (which are irrelevant to this proceeding).

23 Section 7(1) of the CPA defines the overarching purpose of the Act and the rules in relation to civil proceedings as being "to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute". More specifically, s 49 deals with the Court's power "to order and direct trial procedures and conduct of hearing". In particular, s 49(1) provides as follows:

In addition to any other power a court may have, a court may give any direction or make any order it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding.

Section 49(3) provides:

Without limiting subsection (1), a court may give any direction or make any order it considers appropriate with respect to -

...

(i) the place, time and mode of trial;

...

24 Mrs Matthews, by paragraph 2 of her summons filed on 17 June 2010, sought an order that the mode of trial be by judge and jury. By agreement between the parties, the hearing was deferred and was eventually heard on 22 June 2012.

25 Mrs Matthews, in both written and oral submissions, contended that a jury trial was the natural forum for a case of this magnitude affecting so many Victorians. She argued that the case was neither sufficiently complex or difficult for a jury's consideration and that there were other examples in the past of jury trial arising out of calamitous bushfire. She sought that the Court exercise its discretion under r 47.02(2) and order a trial by jury.

26 In its written submissions, SPI opposed the application, asserting:

(1) rule 47.02(2) of the SCR has no application to a claim under the group proceeding provisions of Part 4A of the SCA);

(2) if a group proceeding can be tried by jury, then the Plaintiff has irrevocably elected the mode of trial, that being by judge alone, exhausting her right to a trial by jury and there are no grounds upon which the Court should exercise its discretion to order trial by jury; and

(3) if grounds existed for the Court exercising the discretion invoked by the Plaintiff, it would be inappropriate for the proceeding to be tried by jury.

28 The State parties argued that r 47.02(2) was not engaged by Mrs Matthews' application, and therefore fell at the first hurdle. Alternatively, they argued, as SPI did, that it was inappropriate for the trial to be heard by a jury.

Can a group proceeding be determined by a jury?

29 In written submissions, SPI argued that it is impermissible for a proceeding under Part 4A of the SCA to be heard by a jury. It contends that the language employed in Part 4A, particularly the lack of reference to any entitlement to trial by jury, demonstrates that the legislature did not intend that class actions be tried in this way.

30 In oral argument, counsel shied away from this blanket proposition, preferring to contend that the manner in which a group proceeding is conducted as set out in Part 4A militates against this form of trial. In particular, counsel argued that the structure and text of Part 4A directs the Court to formulate common questions and in the event that the common questions involve a high degree of complexity then it was less likely that the legislature intended for such a claim to be tried by jury.

31 I do not accept the first submission. Mere non-reference in Part 4A to trial by jury does not demonstrate the legislature's implied intention to exclude the option of trial by jury for class actions. As I mentioned earlier, the entitlement to a jury trial flows from r 47.02. Its terms are clear: a claim based in contract or in tort may, subject to compliance with the provisions of the rule or the exercise of discretion by a judge, be heard by a jury. That entitlement existed at the time of the enactment of Part 4A. It can be assumed, I suggest, that had the legislature wished to exclude such an entitlement, it would have done so by the use of clear words limiting the mode of trial in group proceedings. No such words are to be found in Part 4A.

32 Claims under Part III of the Wrongs Act 1958 (Vic)[9] for loss of dependency arising out of death are regularly heard as jury trials. There is nothing in that part which dictates the mode of trial. Rather, provided the claim has a tortious or contractual basis, then a party has an entitlement to a jury trial as prescribed by r 47.02. By analogy, a like position must apply to a class action brought under Part 4A, provided the claim is based in contract or tort.

33 There is nothing in the provisions of Part IVA of the FCA which leads to a different conclusion. That part, like its Victorian counterpart, does not refer to mode of trial. However, s 39 of the FCA provides:

[i]n every suit in the Court, unless the Court or a Judge otherwise orders, the trial shall be by a Judge without a jury.

and s 40:

The Court or a Judge may, in any suit in which the ends of justice appear to render it expedient to do so, direct the trial with a jury of the suit or of an issue of fact, and may for that purpose make all such orders, issue all such writs and cause all such proceedings to be had and taken as the Court or Judge thinks necessary, and upon the finding of the jury the Court may give such decision and pronounce such judgment as the case requires.

34 It follows that the Federal Court, unlike this Court, starts from the position that a trial will be by a judge without a jury. In this State, the provisions of r 47(2) mandate a different approach, depending upon the parties' signification.[10] But what is unequivocally clear is that the Court is empowered with a discretion in relation to the mode of trial in both the Federal and State jurisdictions.

35 At the hearing of this application, SPI's counsel helpfully directed me to the Australian Law Reform Commission's[11] 1988 report entitled "Grouped Proceedings in the Federal Court"[12] which specifically considered the question of trial by jury in a group proceeding. The report was the precursor to the introduction of Part IVA into the FCA, which was introduced in 1991. The ALRC effectively left the question open as to whether a group proceeding should be tried by a jury.

36 The report noted that no jury trial in a civil proceeding had ever been held in the Federal Court (which is in contrast with the position in the Supreme Court). It also noted that, notwithstanding this fact, it was still open for a civil trial by jury (see s 40), and concluded:

207. No change recommended. It is recognised by the Commission that some grouped proceedings may be so novel and complex as to be beyond the ability of most jurors to decide competently. However many individual proceedings may also fall into this category. Equally many grouped proceedings will be well within a jury's ability to decide competently. The Commission has concluded that there is no inherent difference between grouped and individual proceedings which justifies depriving the Court of its existing discretion to order trial by jury in appropriate cases. In practice it is most unlikely that this discretion would be exercised to order a jury trial in grouped proceedings.

37 The first contention of SPI based upon the construction of Part 4A of the SCA should be rejected. I also reject its second contention that the internal provisions of Part 4A militate against a jury trial being available in a group proceeding. The provisions of Part 4A establish a scheme by which the liability of the defendant to the plaintiff and group members is determined by a judgment under s 33Z of the SCA. In practice, courts dealing with group proceedings, both Federal and State, have identified questions and issues the answers to which are binding upon the representative plaintiff, the group members and the defendants. The fact that there may be multiple questions or issues to be resolved in the course of a group proceeding does not of itself dictate that such cases cannot be tried by a jury. As the ALRC noted, juries in both civil and criminal proceedings often have to resolve complicated issues with a variety of potential answers. The fact that in one claim this may become a complex task does not of itself mean that all group proceedings must be determined by a judge. Rather, those considerations are relevant to the determination of whether the case should or should not be tried by a jury in accordance with the principles set down by decisions of this Court over a number of decades.[13]

38 It follows that I do not accept SPI's submission that this Court cannot entertain an application by Mrs Matthews for a trial by jury by reason of the nature of the proceeding. Before I move to the next preliminary question, I should mention one other matter.

39 Section 49(3)(i) of the CPA empowers the Court to make any order it considers appropriate in relation to the mode of trial. On its face (and without reference to r 47.02), this on its own would give the Court sufficient discretion to make an order notwithstanding any conclusion relating to the application of r 47.02 to a Part 4A claim.

40 The following passage appears in the Explanatory Memorandum which accompanied the passage of clause 49 the Civil Procedure Bill 2010:

In relation to a court's power to make orders with respect to the place, time and mode of trial in subclause (3)(i), 'mode of trial' refers to trial by judge or jury. Rule 47.02 of the Supreme Court (General Civil Procedure) Rules 2005... currently sets out substantive rules as to mode of trial. It grants some litigants a limited prima face right to trial by jury. This prima facie right to trial by jury is subject to the court's discretion - rule 47.02(3) provides that a court may 'direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury'. The Bill merely restates this general discretion in subclause (3)(i). It is not intended that the Bill should change the status quo in regard to the court's discretion as to mode of trial. A party's prima facie right to trial by jury under rule 47.02 will remain.

41 It was not suggested that proceedings under Part 4A of the SCA (or, for that matter, any other form of proceeding) were immune to the exercise of this statutory discretion.

Is there a power to make an order for trial by jury where no signification by either party?

42 As I mentioned earlier, the State parties contend that in r 47.02(2) - the provision that gives the Court a discretion to make an order for a jury trial in the absence of signification - the words "[a]ny other proceeding" means proceedings other than those described in r 47.02(1) - that is, proceedings which are 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).

43 The result of this construction means that the only method by which a jury can be required to try a case involving a claim in contract or tort is by signification under r 47.02(1). On the State parties' construction, any retained discretion would only apply to trials involving claims other than those in contract or tort.

44 I do not accept this submission. In my opinion, the words "Any other proceeding" in r 47.02(2) must be read in the context of the signification provided for under r 47.02(1). The reference to "other proceeding" is not a reference to a proceeding not founded in tort or contract, but rather to a proceeding in which the signification of a jury trial pursuant to r 47.02(1) has not been invoked by either party.

45 The interpretation contended for by the State parties would lead to a most unusual situation. Almost without exception, cases heard before civil juries in this State are founded in tort. It is difficult, in the extreme, to see what cases would be covered by the residual discretion if it is confined in the manner suggested. Moreover, it could not have been the intention of the rule maker to preclude an overall discretion to order trial by jury in the event of one of the mechanical provisions of r 47.02(1) being overlooked or ignored by a party if the interests of justice pointed to a jury trial.

46 When dealing with the previous decision of the Full Court in Darrel Lea (Vic) Pty Ltd v Union Assurance Society of Australia Limited,[14] Brooking JA in State of Victoria v Psaila[15] said the following in relation to a failure to exercise the right to elect a jury trial and the general discretion under Order XXXVI of the Court's Rules (the predecessor to Order 47):

Now what is important for present purposes about this decision is the emphasis placed by the Court, more than once, on the fact that the right of either party (subject of course to a contrary order) to fix the mode of trial had been exhausted. As regards the plaintiff, it had determined against requiring trial by jury when it issued a writ specifying trial by judge alone, and it had failed to exercise the right which the Rules, as they had been interpreted, gave not only the defendant but also the plaintiff to require a jury by application within ten days after appearance. The result was, said the Court, that when the plaintiff issued its summons seeking an order for trial by jury which ultimately came before Lush, J. by way of re-hearing it had no entitlement as of right to that mode of trial: it was entitled only to ask for an exercise of discretion in its favour. This matter is mentioned by the Court no less than four times in its reasons for decision. The first mention is at 407. The second and third are at 409-10, in the paragraph commencing "in considering those circumstances". The fourth is near the end of the reasons, at 410, where the same distinction is drawn between entitlement to trial by jury as a matter of right and mere entitlement to seek the exercise of a discretion. It was this circumstance which led the Full Court to conclude that, even if the decision of the judge was erroneous, no substantial injustice would be done by permitting his order to stand. If the view of the Court had been that, because it cannot be said that a trial by judge alone will not be perfectly fair and satisfactory, an erroneous determination that an action should not be tried by a jury can never occasion substantial injustice, the Court would no doubt simply have said so, without drawing repeatedly, as it did in the course of its reasons, the distinction between a party who has a right to a jury and a party who has only an entitlement to ask that a discretionary determination in favour of trial by jury be made. (emphasis added)

47 Whilst there are distinctions between the terms of Order XXXVI and the present Order 47 in its current form, the concept of signification of intent and a residual discretion is found within both. In my opinion, just as it was with Order XXXVI, r 47.02(2) permits a court to exercise its discretion to order a jury trial where there is no signification of intention.

48 A similar view as to the breadth of the discretion given to the Court under r 47.2(3) was expressed by Fullagar J in relation to Order 47 under the 1986 version of the Rules. In substance, r 47.02 as contained in the current Rules, replicates r 47.02 of the 1986 Rules.[16] In Adams v ABC:[17]

In this case the plaintiff by writ filed 6th June, 1989, has sued the defendant Corporation for damages for libel and seeks as well punitive damages. By the writ the plaintiff claims trial by a Judge alone. The defendant failed to ask for trial by jury within the time prescribed by the Rules of the Court, Rule 47.02(1). Accordingly the effect of the Rules was that the proceeding should be tried without a jury "unless the Court otherwise orders".

49 Similarly, in Altmann v Dunning,[18] Marks J said of the discretion under r 47.02:

It is nevertheless to be conceded that in modern times, our Rules of Court, generally speaking, have provided (subject to exceptions) civil litigants with a right to choose between trial by judge alone and trial by jury. The right is nevertheless limited by the time frames in the rules within which the choice must be made. Outside those times the automatic right is lost and subordinated to the general discretion of the court.[19]

50 I should add that the explanatory memorandum to the Civil Procedure Bill 2010 to which I have already referred does not suggest that there is any restriction on the general discretion given by r 47.02(2) - and that leads to another point against the State parties' submission. Assuming, against my conclusion, that they are correct in their interpretation of the interaction between r 47.02(1) and (2), there still remains the residual statutory discretion under s 49(3)(i) of the CPA to order trial by jury.

51 For these reasons, I am satisfied that it remains a general discretion to order a trial by jury where no signification has been made.

52 The importance of r 47.02 in providing the entitlement to a trial by jury was reaffirmed last year in Trevor Roller Shutter Service Pty Ltd v Crowe,[20] in which the Court said:

The mechanism whereby a party may require trial by jury is specified in r 47.02(1)(a), the text of which we have earlier set out. Although not plainly expressed in the alternative, sub-rule 1(a) should be read to mean that a defendant may give notice of trial by jury if the plaintiff has not done so. So to read the sub-rule will ensure consistency with s 24 of the Act.[21]

53 This year, in Denney v Cassar,[22] Dixon J accepted that the decision of the Court of Appeal in Altmann v Dunning[23] demonstrates that civil litigants have an entitlement to choose between trial by a judge alone and trial by jury but that entitlement is limited by the constraints imposed by the Court's rules within which the choice must be made.

54 The original plaintiff, Mr Leo Keane, did not elect for trial by jury at the initiation of the proceeding. Had he done so, there would have been "a prima facie entitlement to trial by jury, and... the party should not be deprived of such an entitlement in the absence of good cause".[24]

55 Accordingly, the failure to give appropriate signification pursuant to r 47.02(1) is not fatal, but as discussed previously, in practice it means that Mrs Matthews is confined to seeking that the Court exercise its discretion in her favour in making an order for a jury trial.

Appropriateness of jury trial: discretionary considerations

56 In Birti & Anor v SPI Electricity & Anor,[25] I set out what I thought to be the principles relevant to an application for a jury trial under r 47.02. I restate those here:

(a) subject to compliance with the rules of the 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 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 of proof 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 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:

• the complexity of the factual matters that the jury will need to consider;

• the complexity of the legal issues relating to liability, particularly where the claim involves consideration of multiple causes of action and multiple defendants;
• the complexity of the jury's task in relation to the assessment of damages;
• the potential duration of the trial (although this, of itself, could never be the determining factor); and
• the stage at which the proceeding or trial has reached; and

(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.

57 The primary discretionary consideration relied upon by Mrs Matthews was the desirability of such a trial being heard by a jury, rather than a judge. As emphasised by counsel, in my view correctly, a trial involving a civil calamity of these proportions should be determined, if practicable, by a jury, rather than a judicial officer. Counsel pointed to previous cases, including those arising out of the Ash Wednesday bushfires in 1983, which have been determined by a jury.

58 But acceptance of this proposition does not resolve the issue in favour of Mrs Matthews. The fundamental question is whether, in the context of a class action (none of the cases referred to by counsel for Mrs Matthews were class actions) of these dimensions can be appropriately determined by a jury.

59 The first point to note is the complexity of the case. At the conclusion of the hearing, it will be necessary, for the purpose of a judgment under s 33Z of the SCA, to determine a raft of common questions of law, fact and mixed law and fact. Those questions are attached as a schedule to this judgment. The questions will not be limited to Mrs Matthews' claim, but will also involve findings in relation to the claims of the five sample group members.

60 I do not accept the contention put by counsel for Mrs Matthews that, "The task of the jury in this case is no more than what a juror is traditionally asked to do", and, "The degree of complexity is not burdensome".

61 Putting to one side determination of the contractual claims, it can readily be seen that a number of these questions could form the basis of a special verdict by a jury, for instance - the cause of the ignition of the fire, the areas damaged by the fire, as well as questions of breach of duty (statutory or common law) which are regularly resolved by jury verdict. However, a number of the questions also raise issues concerning the existence of duty (statutory or common law) which would need to be resolved by the trial judge before troubling the jury.

62 The questions raise potentially 20 to 25 questions (probably more given the need to deal with the sample group members' claims) which will need to be determined by a jury. Those questions include resolution of claims involving breach of common law duties on the part of each of the five defendants; breach of statutory duties on the part of three of the defendants, and the claim in nuisance against SPI.

63 The considerations in relation to the common law negligence claim may well be difficult. If Mrs Matthews' case is accepted, then a cause of the fire was the failure of the conductor and therefore arguable negligence on the part of SPI. The case against DSE involves a totally different consideration - whether it, acting reasonably, should have carried out planned burning in particular areas prior to the fire. The claim against CFA raises a different issue altogether: the adequacy of its efforts to suppress the fire before it reached particular areas.

64 The question of causation in relation to the damage wreaked by the fire may not be that difficult in the claim against SPI; however, determining the nature and extent of the causal effect of any breach by CFA or DSE is a complex and difficult issue. For instance, the alleged failure of CFA to control the fire may affect only a part of the whole area burnt out. Similarly, the alleged failure by DSE to carry out effective fuel redirection may relate to limited areas. I have little doubt that more complications will emerge at trial.

65 Then there is the case against DSE, CFA and the State of Victoria (Victoria Police) in relation to the alleged failure to warn of the risk of the impending fire which is confined to those claimants who sustained personal injury. This also may have variants depending upon where the particular group members lived and the nature of the warnings provided.

66 Additionally, the jury would also be required to determine questions of breach and causation in relation to the claims for breach of statutory duty against SPI, DSE and CFA, if such a duty is held to exist.

67 The question of actionable nuisance would also need to be resolved by the jury in the claim against SPI.

68 If this was not enough, then, as was submitted by Mrs Matthews' counsel, the jury would be required to apportion liability as between the five defendants. In the personal injury claims, this would represent an apportionment in accordance with Part IV of the Wrongs Act. However, in the property damage and economic loss claims, the apportionment will be by way of a defence for each of the parties pursuant to s 24AI of the proportionate liability provisions of the Wrongs Act.

69 Finally in relation to the first point, I should mention that I do not accept the submissions of SPI that a jury could not cope with the expert evidence in this case. Juries in civil and criminal trials regularly cope with highly complicated expert evidence. Inevitably, the presence of a jury requires the experts to convey their opinions in a comprehensible fashion.

70 The second point is the nature of the claim. As SPI submitted, to have a trial by jury would defeat part of the purpose of having Part 4A proceedings being dealt with by common questions. Trial by jury will not provide an articulation of the reasons for the answers to the common questions. Those answers will provide the foundation for further steps in the proceeding. For instance, it may be that a certain question can only be answered as binding on particular members of the group (for instance, those living in a limited geographic area) and not others. To my mind, an explanation as to why there is a distinction between the two is close to essential. Similarly, it may be necessary as a result of the evidence led at trial, to defer aspects of the common questions to be determined by reference to sub-groups. It is not possible at the moment to anticipate all the issues that may arise as a result of the evidence led, save that it is reasonable to assume that the case is full of "hidden dangers and traps".

71 A number of the provisions of Part 4A point to the need for an explanation of a particular conclusion - for instance s 33Z(1), s 33ZB and s 33ZC. The opaque nature of a jury verdict, particularly in this case, will frustrate the aims of these provisions. That is not to say that in an appropriate case a jury could determine a Part 4A proceeding. Nor does it shut out Mrs Matthews or group members seeking a jury trial of a discrete issue subsequently.

72 The third point is that of the duration of the trial and the likely inconvenience to the jury. Estimates based on a trial proceeding before a judge alone are that it will take roughly five months and will traverse the Easter break, with the evidence concluding shortly prior to July. As a jury trial it may take longer, although one can never be sure whether a trial is lengthened or shortened by the presence of a jury. One thing, however, is certain in the event of a jury trial: once the evidence has been concluded - say, in late June - there will need to be a significant break before the jury is charged. I anticipate that there will be a number of submissions directed towards questions of existence and scope of duty - all of which will have to be resolved prior to counsel addressing the jury. I do not think it would be appropriate to endeavour to deal with the question of existence of duty on the basis of a non obstante veredicto determination as the existence of the duty is fundamental to the task then engaged in by the jury. Rather, I think there will need to be a sizeable delay whilst the parties are given the opportunity to argue whether a particular duty exists. Whilst a ruling could be given relatively promptly (accompanied by reasons supplied at a later date), simply getting the case ready to go to the jury after the conclusion of the evidence will lead to a further significant delay. To that might be added addresses and the charge - which almost certainly would take the case into a sixth month. A significant delay between hearing the evidence and then determining the issues is undesirable, notwithstanding that the jury would have a copy of the transcript and a DVD of the trial.

73 Then there is the added complication of the recovery proceeding by the State entities against SPI and USC.[26] Counsel for The State entities in that proceeding have indicated that their involvement in the trial will be limited, and that they will seek to have the evidence in this proceeding stand as evidence in their claim. As I understand their position, they wish to proceed to trial by judge alone at the conclusion of this proceeding. If the current proceeding is heard by a judge and jury, this, to some extent, has the potential to produce inconsistent findings, particularly if the question of apportionment (as between SPI and USC) is to be addressed by two different triers of fact.

74 Finally, I am not persuaded that the reference to previous cases by Mrs Matthews involving claims arising out of bushfires are of much assistance. Self-evidently, each case turns on its own features. The cases arising out of fires in 1977, 1980 and 1983 were not class actions conducted under Part 4A, did not involve five separate defendants and did not require determination of different types of claims - personal injury, property damage and economic loss.

75 Equally so, I am not satisfied that the question of publicity and potential partiality of jurors, as submitted by SPI, cannot be overcome by appropriate directions and jury screening.

76 When each of these considerations are evaluated and balanced against the desirability of a jury trial, I think it to be in the interests of justice for the trial to be heard by a judge alone.

77 For the above reasons, I consider that the proceeding should be tried by judge alone. Mrs Matthews' application is dismissed.

1. What was the cause of the ignition of the Kilmore fire ("the fire")?
2. What areas were damaged by the fire ("the fire areas")?

1. Did section 75 of the ES Act impose upon SPI any and if so what statutory duty which gave rise to or created any private right or cause of action for the benefit of any claimants and/or class of claimants?
2. Did SPI breach the statutory duty in relation to the SWER line and/or the pole and its infrastructure?
3. If SPI breached the statutory duty, was this a cause of any losses sustained by the claimants and/or class of claimants?

1. Did SPI owe a common law duty to any claimants and/or class of claimants to exercise reasonable care in relation to the management, maintenance and control of the SWER line and/or the pole and its infrastructure to avoid:

1. personal injury or death; and/or 2. physical damage to property; and/or

1. economic loss resulting from damage to property; and/or

1. economic loss which did not result from damage to property?
2. Did the common law duty extend to SPI ensuring that reasonable care was taken by any contractors engaged by it in relation to the management, maintenance and control of the SWER line?
3. Did SPI breach the common law duty in relation to the SWER line and/or the pole and its infrastructure?
4. If SPI breached the common law duty, was such breach a cause of any losses sustained by the claimants and/or class of claimants?

1. Did SPI create a nuisance, in the form of the fire, which unreasonably interfered with the use or enjoyment of land (or interest in land) of any of the claimants and/or class of claimants?
2. Is SPI liable to any of the claimants and/or class of claimants for any loss or damage caused by the creation of a nuisance, in the form of the fire?

1. Did UAM owe a common law duty to any claimants and/or class of claimants to exercise reasonable care in carrying out its operations in relation to the SWER line and/or the pole and its infrastructure pursuant to the UAM Contract to avoid:

1. personal injury or death; and/or 2. physical damage to property; and/or

1. economic loss resulting from damage to property; and/or

1. economic loss which did not result from damage to property?
2. Did UAM breach the duty in relation to the SWER line and/or the pole and its infrastructure?
3. If UAM breached the common law duty, was such breach a cause of any losses sustained by any of the claimants and/or class of claimants?
4. Is SPI liable for any losses caused by the breach by UAM of its common law duty?

1. Did section 62(2) of the Forests Act impose upon DSE any, and if so what, statutory duty which gave rise to or created any private right or cause of action for the benefit of any claimants and/or class of claimants?
2. Did section 17(2)(b) of the National Parks Act impose upon DSE any statutory duty, and if so what, which gave rise to or created any private right or cause of action for the benefit of any claimants and/or class of claimants?
3. Did DSE breach either of the above statutory duties?
4. If DSE breached either of the statutory duties, was such breach a cause of any losses sustained by any claimants and/or class of claimants?

1. Did DSE owe a common law duty to any claimants and/or class of claimants to take reasonable care, by itself or its agents, to ensure that timely and adequate planned burning was undertaken in the forested area so as to achieve the planned burning benefits?
2. Did DSE owe a common law duty to the personal injury claimants to exercise reasonable care in the provision of bushfire warnings to persons in the fire area?
3. Did DSE owe a common law duty to the personal injury claimants to take reasonable care in the provision of advice to members of the Victoria Police to enable them to issue bushfire warnings to persons in the fire area?
4. Did DSE breach any of the common law duties?
5. If DSE breached any of the common law duties, was such breach a cause of any losses sustained by any claimants and/or class of claimants?

1. Did section 20 of the CFA Act impose upon the CFA any and if so what statutory duty which gave rise to or created any private right or cause of action for the benefit of any claimants and/or class of claimants?
2. Did CFA breach the statutory duty?
3. If CFA breached the statutory duty, was such breach a cause of any losses sustained by any claimants and/or class of claimants?

1. Did CFA owe a common law duty to any claimants and/or class of claimants to exercise reasonable care in relation to effective suppression of fires for protection of life and property in the fire area to avoid:

1. personal injury or death; and/or 2. physical damage to property; and/or

1. economic loss resulting from damage to property; and/or

1. economic loss which did not result from damage to property?
2. Did the CFA owe a common law duty to the personal injury claimants to exercise reasonable care in the provision of advice to members of Victoria Police to enable them to issue bushfire warnings to persons in the fire area?
3. Did CFA owe a common law duty to the personal injury claimants to exercise reasonable care in the provision of bushfire warnings to persons in the fire area?
4. Did CFA breach any of the common law duties?
5. If CFA breached any of the common law duties, was such breach a cause of any losses sustained by any claimants and/or class of claimants?

1. Did the emergency response plan State Coordinator, Deputy Coordinator or the Kilmore Fire Emergency Response Coordinators owe a common law duty to the personal injury claimants to take reasonable care to issue effective and timely bushfire warnings to persons in the fire areas?
2. Did any of the identified members of the Victoria Police breach the common law duty?
3. If an identified member(s) of the Victoria Police breached the common law duty, was such breach a cause of any personal injury sustained by the claimants and/or class of claimants?

1. Are claims for economic loss or property damage against the First, Second, Third and Fourth Defendants 'apportionable' claims within the meaning of Part IVAA of the Wrongs Act?
2. For any apportionable claims, are any of the defendants concurrent wrongdoers and, if so, what is the proportionate responsibility of each concurrent wrongdoer in each case?
3. To what extent, if any, are SPI, UAM, DSE, CFA and the State of Victoria are liable to make contribution to or indemnify each other pursuant to Part IV of the Wrongs Act in respect of their respective liabilities?

1. Did UAM breach the UAM contract?
2. If UAM breached the UAM contract, did SPI suffer loss or damage as a result of that breach?
3. If UAM breached the UAM contract, and SPI suffered loss and damage, was any loss and damage caused by that breach?
4. If UAM breached the UAM contract and SPI did suffer loss or damage, is UAM obliged to indemnify SPI for that loss and damage?
5. If SPI suffered loss and damage and damages are recoverable by SPI against UAM:
   1. Was SPI contributory negligent; and
   2. If so, to what extent, having regard to SPI's share in the responsibility for the SPI loss and damage, should the damages recoverable by SPI against UAM be reduced?

[2] A more detailed summary is contained in Ruling No. 1, [2011] VSC 167, [15]-[37].

[4] "Juries Act".

[5] To avoid confusion with a substantive right, I have referred to this "right" as an "entitlement" in these reasons. In this State, there is no presumptive "right" in a civil proceeding to a trial by jury. As Marks J explained in Altmann v Dunning [1995] VicRp 41; (1995) 2 VR 1, 5-6:

The so-called 'right' to jury trial repeatedly emphasised by counsel and said to have been handed down by English law over many centuries is not strictly relevant nor accurately described...

This is not the occasion on which to embark on the long, complex and somewhat uncertain history of jury trial. To speak of it, however, as some kind of long held civil right savours more of forensic fancy than of historical accuracy. Jury trial was less a 'right' or 'jus' than an imposed mode of trial.

[7] See State of Victoria v Psaila [1999] VSCA 193, [3].

[9] "Wrongs Act".

[10] See Altmann v Dunning [1995] VicRp 41; [1995] 2 VR 1, 16.

[12] Australian Law Reform Commission, Grouped Proceedings in the Federal Court, ALRC Report 46, 1988, [203]-[207].

[14] [1969] VicRp 50; [1969] VR 401.

[15] [1999] VSCA 193, [26].

[16] Rules of Civil Procedure (1986). The terms of r 47.02(1) are somewhat differently expressed, however sub-clauses (2) and (3) are identical.

[18] [1995] VicRp 41; (1995) 2 VR 1.

[20] [2011] VSCA 16.

[21] Ibid, [19]. See also Altmann v Dunning [1995] VicRp 41; [1995] 2 VR 1 and [45] above.

[22] [2012] VSC 246, [8].

[23] [1995] VicRp 41; [1995] 2 VR 1, 6 (Marks J).

[24] Trevor Roller Shutter Service Pty Ltd v Crowe [2011] VSCA 16, [39]; see also State of Victoria v Psaila [1999] VSCA 123, [24].

[25] [2011] VSC 566, [14]-[16] (footnotes omitted).

[26] [2011] VSC 566.

[27] Utility Asset Management is a division of USC.