Plaintiff v Defendants

2 In this proceeding he sues his employer G4S Australia Pty Limited ('G4S') and the Commonwealth for damages for the injuries he suffered as a result of his exposure to the riots. G4S and the Commonwealth have cross proceedings between themselves.

3 The causes of action on the claim include negligence, breach of employment agreement, occupiers liability and breach of statutory duty. On the cross proceedings, the actions appear to involve rights and obligations under contract, agency law and occupiers' liability (both statutory and at common law).

4 The trial is fixed for hearing on 10 March, a little under three weeks' time. For reasons that appear below, it is relevant to note that there are currently 8 other proceedings of a similar nature that have been initiated in the court by plaintiffs suing G4S and the Commonwealth for damages for injuries allegedly suffered as a result of the riots at the centre.

5 G4S has requested trial by jury. This application, made by the Commonwealth and supported by the plaintiff, is for an order under rule 47.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('the Rules') that trial be by judge alone. Rule 47.02(3) provides that, notwithstanding that a party to a qualifying proceeding has requested jury, 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'.

6 In Birti & Anor v SPI Electricity [2011] VSC 566, J Forrest J set out the relevant principles for determining the mode of trial under r 47.02,[1] as follows:

(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 2000 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:

(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.

7 Additionally, s 9 of the Civil Procedure Act 2010 (Vic) requires that in making a decision under r 47.02 a court should further the overarching purpose that is set out in s 7 of the Act (viz, 'to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute').[2]

8 Addressing the considerations outlined in sub-para (j) from Birti, the Commonwealth and the plaintiff advanced a number of considerations which they contended, taken in totality, ought lead the court to exercise its discretion to direct a trial without a jury - that is to say, a cluster of considerations which in total amount to a 'special reason' or 'good cause' for the court to dispense with the jury.[3] Although amplified in both written and oral submissions, in summary those considerations were as follows:

(a) the factual complexity of the case because it concerns a psychiatric injury resulting from an encounter with a violent situation, the causation of which is itself multi-faceted: one that is likely to involve, for example, the analysis of inter-governmental arrangements and the interpretation of the terms of a number of overlapping instruments;

(b) the prospect that the law applying to the claims against the two defendants will differ (at least in so far as they rely upon statutory regimes affecting the scope of the duty and the assessment of damages) - that is to say, Victorian law as against G4S and Papua New Guinean law as against the Commonwealth;

(c) the negligence claim against the Commonwealth appears to involve a novel duty of care;

(d) to the extent a duty of care is found to be owed by the Commonwealth, there will be arguments as to the extent that a breach of it may be justiciable having regard to the distinction between 'policy decisions' and 'operational decisions';[4]

(e) rulings will likely be required on the admissibility of a body of documents, perhaps a large body, the consideration of which may give rise to public interest immunity issues;

(f) the contribution claims between the defendants not only give rise to the applicable law issues but also raise significant questions of statutory interpretation and legal questions of indemnity and agency;

(g) a number of lay and expert witnesses live in Western Australia, and some of those lay witnesses are themselves plaintiffs in other actions of a like nature and suffer significant psychiatric conditions - this gives rise to the prospect that their evidence (proposed to be given by video link) may require some interruptions to accommodate their particular needs;

(h) because of the likely number and complexity of rulings, some of which must necessarily await the conclusion of evidence, there is a significant risk that a jury will need to be absent for extended periods of time while legal points are resolved, including between the end of evidence and the commencement of final addresses;

(i) a hearing by judge alone will afford greater flexibility for the hearing and determination of those legal issues, and the accommodation of frail witnesses, than would exist if the matter were heard before a jury;

(j) given that there are a number of similar claims awaiting trial, and that this trial is the first, the promotion of settlements in other actions will be better facilitated by a judge's decision on points of contention than by a jury outcome, so that the interests of the administration of justice generally will be better served by a hearing by judge alone.

9 G4S, opposing the application, emphasised the onus that lies upon an applicant to persuade the court that it should depart from the starting position that trial should be by jury once a request is made by a party to a qualifying proceeding. Again, although its submission was amplified in both written and oral submissions, in summary G4S submitted that -

(a) the factual matters are not so complex that a jury could not properly determine the case with appropriate directions given by the trial judge;

(b) many of the legal issues said to require rulings (for example, the admissibility of documents and the choice of law) can be identified, argued out and ruled upon before empanelment of the jury;

(c) to the extent that rulings need to be made in the running, that is a commonplace occurrence in jury trials and should not cause untoward difficulties in the present case;

(d) the differences in applicable law, upon closer examination, are not so great and are unlikely to cause the court difficulty in giving directions to the jury or the jury difficulty in applying those different laws;

(e) the need to introduce a significant amount of documents to the jury is likely to be overstated; more likely, because the case is before a jury, the parties will focus their minds on what is really essential, probably resulting in a relatively modest bundle that is ultimately tendered;

(f) the issues concerning the duty of care owed by the Commonwealth can be adequately addressed after the evidence has been given and before final addresses, in the usual way, and those issues are likely to be crystallised and narrowed by the running of the trial;

(g) the promotion of settlements in other matters will at least equally be enhanced by the trial judge's rulings on the same matters of law that will arise in later cases and by the final outcome as determined by the jury.

10 Upon these arguments I conclude that there is a special reason or good cause why this case should not be heard by a jury. I reach that conclusion upon the totality of factors relied upon by the applicants for the order. Viewed alone, perhaps no individual consideration warrants that conclusion but, in combination, the overall weight of the considerations does. In other words, it is my opinion that "in all the circumstances" the proceeding should not be tried before a jury.

11 Although, below, I comment upon some particular factors, I do not intend to analyse, one by one, each of the considerations put forward for the dispensation of a jury. It is enough to say that each of the factors raised by the Commonwealth and the plaintiff are, in my view, relevant and add weight to the undesirability of the proceeding being heard by a jury. G4S submits that none of the factors amount to quite the problem foreshadowed by the applicants. Nonetheless even though some or even all of the factors may have somewhat less force than contended, the combined weight of them still warrants the making of the order in the interests of justice.

12 Of course, forecasting what issues will arise and how long they will take to argue and to resolve involves some educated guesswork on incomplete evidence. But it is not contended that arguments of the foreshadowed kind will not arise at all; rather G4S submits those arguments will not pose the degree of disruption and complexity that the applicants suggest. Neither was it contended that any real benefit will be gained by waiting for further steps before making a decision on the mode of trial.[5]

13 Given the nature of the issues raised and the evidence proposed to be led, I consider there is a strong likelihood of significant disruption to the jury sitting on the trial because of the need for rulings to be made in the running. Even if a number of rulings can be identified and argued out in advance of empanelment, I predict there will remain difficult issues to be determined while the trial continues. I further expect that the arguments before empanelment could be detailed and lengthy and that rulings on them may well take more than a matter of hours or even days. If heard as a cause, a number of rulings on admissibility or the other legal disputes can be deferred until reasons for judgment are given and therefore need not interrupt the flow of the trial, or hold up its commencement. The result of these considerations is that trial by jury is likely to result in a longer and more expensive trial than a trial by judge alone, with significant inconvenience caused to jurors.

14 I also think the factual issues are likely to be complex, and that the jury's task in relation to the assessment of damages will be complicated because of the potential application of different laws to the liability of each defendant. Of course, a degree of factual or legal complexity is not necessarily a reason why the proceeding should not be heard by a jury. But, obviously, it is a matter of degree. As it appears to me at this point, the factual and legal issues are of an unusual degree of complexity so that, overall, the matter is unsuitable to be tried before a jury.

15 For the reasons given, I will order that the trial not be heard by jury.

[1] Re-stated in Matthews v SPI Electricity & Ors (Ruling No 8) 35 VR 643 ('Matthews') [56].

[3] Trevor Roller Shutter Service Pty Ltd v Crowe [2011] VSCA 16; (2011) 31 VR 249, [39].

[4] Eg, Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540, 556-7 [12] (Gleeson CJ).

[5] For example, when asked, no party suggested that the court might make a more informed decision on the application by awaiting the settled list of proposed tender documents.