Plaintiff v Defendants

2 These reasons address the plaintiff's application filed 21 January 2025 to change the mode of trial from judge alone to judge and jury.

3 The mode of trial is governed by rule 47.02 of the Rules which provides:

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

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

(b) the prescribed fees for the purposes of s 24 of the Juries Act 2000 are paid.

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

(3) Notwithstanding any signification under (1), the Court may direct a trial without a jury if its opinion the proceeding should not in all circumstances be tried before a jury.

(4) Trial with a jury shall be with a jury of six.

4 The plaintiff's application is therefore an application under rule 47.02(2) of the Rules.

5 In Deka v Johns,[1] J Forrest J dealt with an application under rule 47.02(2) of the Rules for an application by a defendant to change the mode of trial from judge alone to jury. In that application, all parties accepted that the failure of the defendant to file a jury notice in a timely manner was an oversight on the part of the defendant's solicitors.

6. I summarise the principles relevant to this application as follows:

(a) Subject to compliance with the procedures laid down by the rules of Court, a party is entitled to seek trial either by jury or judge alone as provided by rule 47.02.

(b) For the right to a trial by jury to be enlivened, it is necessary for the party seeking a trial by jury to comply with the procedural requirements of rule 47.02(1)(a) and (b). Otherwise the trial will be, as the rule provides, before a judge sitting alone (absent an order of the Court to the contrary).

(c) Where a party has given notice regularly that a trial by jury is required, that will be the prescribe mode of trial unless the Court is persuaded to dispense with the jury. Notwithstanding the right of the parties to seek a trial by either judge sitting alone or by jury, there resides in a Court an overriding discretion to determine the mode of trial regardless of the wishes of the parties.

(d) A court may at any stage of a proceeding, direct a trial with or without a jury if satisfied that it should do so.

(e) The onus in persuading a Court to dispense with the mode of trial determined by the operation of the rules rests upon the party making that application. A Court will not lightly make such an order given the right of the other party to seek a particular mode of trial (be it by judge alone or by jury). There must be a special reason to persuade a Court to dispense with the mode of trial sought by a party who has properly invoked the rules of the Court. [2]

7 The plaintiff's application relied on an affidavit of his solicitor affirmed 21 January 2025.[3] It deposed to the following chronology:

1. Neither defendant filed a notice that a jury is required. Over the course of time, we were instructed that the Plaintiff preferred for the matter to be heard by a jury.
2. On 27 March 2024, the Plaintiff issued a summons application to vacate the trial date and sought the following orders:
3. The trial date of 30 July 2024 be vacated, and the proceeding is fixed for trial on a date before 1 February 2025 before a judge and jury on an estimate by the parties that the trial will occupy 7 to 10 sitting days.
4. In order to secure the trial date, the setting down and hearing fees are to be paid in accordance with the Supreme Court (Fees) Regulations 2018 (Vic). Further, the first day jury fee is to be paid by the Defendants at the same time as the setting down fee.
5. On 11 April 2024, my office circulated the proposed consent orders which included the following orders...[as above]
6. On the same date, the First and Second Defendants signed the proposed consent orders and my office provided the fully executed consent orders to the Court
7. On 30 April 2024, Judicial Registrar Baker endorsed the proposed consent orders...[including]
   1. The trial date of 30 July 2024 be vacated;
   2. The proceeding is refixed for trial on 12 February 2025 before a judge and jury on an estimate by the parties that the trial will occupy 7-10 sitting days.

...

1. Since 30 April 2024, the Plaintiff has been operating under the assumption that the trial in these proceedings would be heard by a judge and jury.
2. On 18 November 2024, the First Defendant wrote to my office by letter and advised that the mode of trial noted in the timetabling orders of 30 April 2024 appears to be incorrect and ought be corrected by consent minute so the Court may be notified ahead of trial that the matter will proceed before a judge alone...

8 The correspondence between the parties indicated that the plaintiff considered the change of mode of trial not to be an error.[4] It is not clear why it would be the defendants who would pay the jury fees for a jury requested by a plaintiff. The first defendant filed a summons on 13 December 2024 seeking that the proceeding be fixed for trial before a judge alone. The application relied on an affidavit deposing that the first defendant signed the minute of consent with regard to the substantive relief sought which did not include any order under r 47.02 of the Rules changing the mode of trial and so did not intend to consent to a change in the mode of trial.[5]

9 At hearing of the summons on 19 December 2024, based upon a concession by the parties that the Judicial Registrar had no power to change the mode of trial without referral from a judge, orders were made amending the mode of trial to that of judge alone.

10 On 20 December 2024 the plaintiff paid a setting down fee and at the same time paid the first day jury fees in anticipation of success in the summons to change the mode of trial to judge and jury.[6]

11 It is common that such matters in the Institutional Liability List are determined by a jury at the request of one or other party. It may well be that this matter is one suitable to be heard by a jury. Matters relevant to an application to dispense with a jury under r 47.03 of the Rules were raised by the parties. However, the right to trial by jury is, for all parties, one that is enlivened in the first instance by compliance with the Rules. Failing that, it rests on the party seeking an order changing the mode of trial to persuade the Court. As J Forrest J said, such an application is to be approached on the basis that:

...A Court will not lightly make such an order given the right of the other party to seek a particular mode of trial (be it by judge alone or by jury). There must be a special reason to persuade a Court to dispense with the mode of trial sought by a party who has properly invoked the rules of the Court.[7]

12 In applying Deka v Johns, an application by a defendant to change the mode of trial, Keogh J said:

The first defendant bears the onus of establishing a sufficient reason to deprive the plaintiff of the mode of trial chosen by him. The reason must be sufficient to outweigh the factors which otherwise weigh in favour of the plaintiff maintaining the benefit of the mode of trial he chose.[8]

13 In this proceeding, the defendants have regularly invoked a right to trial by judge alone, and continue to seek that mode of trial. The plaintiff's reasons for changing the mode of trial must be sufficient to outweigh the maintenance of the mode of trial chosen by the other parties.

14 The plaintiff submits that the right to trial by jury is an important fundamental right and, all other matters being equal, that a preference for this mode of trial ought be accommodated. To that end he submits the application to change mode of trial ought to be accommodated in light of the consent of all parties to a trial by jury since April 2024, together with the absence of any evidence of prejudice or any difference in trial preparation conducted since that time.

15 The defendants submit that the plaintiff has not met the onus of persuading the Court to alter the mode of trial. The execution by the first defendant of minutes of consent orders was mistaken as to the mode of trial. While both defendants make submissions as to reasons why a trial by judge alone would be more suitable, those submissions are directed at matters more relevant than the exercise of a discretion where the plaintiff has discharged the onus of establishing special circumstances.

16 The availability of a trial by jury and the choice of any party as to the mode of trial is an important right of parties in civil litigation concerning personal injuries. That choice is communicated primarily by each party invoking the Rules. If no party elects a trial by jury, the default position is that of choosing a trial by judge alone. A party will not lightly be deprived of maintaining that choice.

17 In the present circumstances the plaintiff's affidavit material identifies two matters in support of the application: first, it identifies a change of heart by the plaintiff without explanation of the factors or the timing of that change of heart.[9] Secondly, it relies on a mistaken assumption by all parties and acted on by the Court that the plaintiff had exercised his entitlement to a trial by jury under the Rules.[10] An unexplained change of heart by a party does not rise to special circumstances. Were that the case, the purpose of rule 47.02 of the Rules, and the requirement on all parties to give notice of their desire for a trial by jury at the commencement of the proceeding on the writ or when filing an appearance, would be entirely sidestepped. A change of heart by a party at any time before trial, or even at trial without more, is not by itself sufficient to warrant a change in the mode of trial.

18 As to the mistaken assumption of the parties that this matter had been regularly notified by the plaintiff as a trial by a jury, I do not accept that this amounts to special circumstances. The absence of any application to alter the mode of trial in April 2024 by the plaintiff, or any communication that the plaintiff had had a change of heart and sought consent on this issue from the defendants, does not advance the plaintiff's position. The absence of the Judicial Registrar's ability to alter the mode of trial, notwithstanding apparent consent of the parties, is also relevant. In my view, it means that any mistaken assumption as to the mode of trial cannot in this case constitute special circumstances where that consent is not maintained.

19 In my view, the plaintiff has not discharged the onus of persuading me that the mode of trial chosen by all parties should, in the exercise of my discretion, be ordered otherwise than in accordance with the Rules.

20 The application by the plaintiff for a trial by jury is dismissed.

[1] [2009] VSC 296.

[3] Plaintiff, 'Affidavit of Ellen Irene FitzGerald', Affidavit in Ladd v Comensoli [2025] VSC 24, S ECI 2021 01424 (emphasis omitted) ('Plaintiff's affidavit in support').

[5] First defendant, 'Affidavit of Jacqueline Esther Goodwin' affirmed 12 December 2024, Affidavit in Ladd v Comensoli [2025] VSC 24, S ECI 2021 01424, [19]-[20].

[6] Plaintiff's affidavit in support, [25].

[7] Deka v Johns [2016] VSC 565, [6].

[8] Roland Von Marburg v Aldred and Anor [2016] VSC 565, [63].

[9] Plaintiff's affidavit in support, [12].