Plaintiff v First Defendants

2. On 15 September 2010, in the proceeding brought by Raymond Halligan, the Second Defendant, Federal Hotel Nominees[2] (the proprietor and licensee of the hotel) filed a notice for trial by jury. On 11 November 2010, in the proceeding brought by Lisa Halligan and Shane Halligan, both the Federal Hotel and the First Defendants, Jacqueline and Michael Curtain (the occupiers of the hotel) filed a notice for trial by jury.

3. Beach J made orders on 7 November 2012 that both proceedings be listed for trial on the same day and be heard and determined at the same time subject to the discretion of the trial judge. The trial is listed for the Wodonga sittings commencing on Monday 18 November of this year.

4. The Plaintiffs want to dispense with the jury. Beach J ordered that their application to have the trial heard by judge alone be heard by the trial judge. On 24 January, as a trial judge had not yet been allocated to this case, I thought it appropriate that I determine the question expeditiously so that the parties know where they stand.[3]

5. At the directions hearing I requested written submissions be filed with the Court on three possible modes of trial:

c. A jury determining liability and a judge assessing quantum.

6. For the reasons outlined below, I have decided that the question of the liability of the Defendants to the Plaintiffs should be heard by a jury and the trial judge should determine the quantum of the claims, if necessary.

7. The Plaintiffs' claims arise out of incidents on Easter Saturday 2009 at the Federal Hotel. The three Plaintiffs assert that they were assaulted by intoxicated patrons and each was severely injured.

8. According to the solicitor acting for the Plaintiffs, Shane Halligan ("Shane") approached his father Ray Halligan ("Ray") and told him that his daughter, Lisa Halligan ("Lisa"), was being sexually harassed by a man at the bar. From there, the situation went downhill:

Ray then spoke to the man who had been harrassing his daughter. An apology was not forthcoming and afterwards Ray turned and walked away. As he was walking away, he noticed that his nephew Jarrod was being physically set upon by four other men. Ray then watched as his son Shane went towards the group, attempting to break up the fight. Ray went towards the group, and as he approached, the numbers involved swelled to about 8-10 people. It was during this time that Ray was punched in the head by one of the patrons at the Hotel, and he was then repeatedly kicked whilst lying on the floor by at least two hotel patrons.

Shane... was assaulted when he observed his cousin Jarrod being pushed and shoved around by a group of men.

Lisa... was assaulted when after she saw her father being kicked in the head whilst lying on the floor. Lisa dived onto her father in an attempt to shield him from being kicked.[4]

The relevant legislation, rules and principles.

9. The substantive law to be applied in civil proceedings in Australia is the law of the place where a wrong was committed.[5] The alleged wrong occurred in New South Wales.

10. There is some contest as to the applicable procedural law. The Plaintiffs submit that the Supreme Court Act 1970 (NSW) should be applied whereas the Defendants submit that the Victorian procedural law applies - in this case, the Civil Procedure Act 2010 (Vic)[6] and the Supreme Court (General Civil Procedure) Rules 2005 (Vic).[7]

11. Although the joint judgment in John Pfeiffer Pty Ltd v Rogerson[8] has clarified the position in terms of what constitutes the substantive law of the place of the wrong, the distinction between procedural and substantive law outlined in McKain v RW Miller & Co (SA) Pty Ltd[9] by Mason CJ still applies.[10] The High Court said in John Pfeiffer Pty Ltd:

[M]atters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure. Or to adopt the formulation put forward by Mason CJ in McKain, 'rules which are directed to governing or regulating the mode or conduct of court proceedings' are procedural and all other provisions or rules are to be classified as substantive (Stevens v Head).[11] (Citations omitted)

12. The law of the forum governs matters of procedure, including that of the mode of trial.[12] In this case it is the law of Victoria.

13. As the laws of Victoria govern the procedural aspects of these proceedings, the Supreme Court (General Civil Procedure) Rules 2005 (Vic) apply. 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 2000 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.

14. The provisions of the CPA also apply to the proceedings. 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:

(1) 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.

...

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

...

15. The Court of Appeal has considered the question of dispensing with a jury on a number of occasions;[13] most recently in Trevor Roller Shutter Services Pty Ltd v Crowe.[14] I have previously set out what I consider to be relevant principles to such an application.[15] I repeat them 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.[16] (emphasis added)

16. There are a number of examples of cases in which a court, notwithstanding a party's entitlement to a jury trial, has determined that the interests of justice require that it be heard by a judge alone. For instance in Altmann v Dunning[17] Smith J discharged a jury on account of the complexity and difficulty of the quantum issues which the jury would have been required to determine. His Honour's decision was affirmed by the Appeal Division of this Court. I took a similar view in Birti & Anor v SPI Electricity & Anor,[18] and Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling 8)[19] where, because of the complexity of the issues in the setting of class action litigation, I determined that it was inappropriate for a jury to try the case.

17. The Plaintiffs acknowledge that, in Victoria, if a jury is requested by any party the trial will be heard by a judge and jury unless another party brings an application and convinces the Court otherwise.

18. The Plaintiffs say that one of the issues to be determined at trial is whether the Civil Liability Act 2002 (NSW)[20] applies in these proceedings. They argue that in New South Wales, civil juries only determine aspects of defamation claims unless a civil jury is required in the interests of justice. They contend that the starting point should be a trial by judge alone (as it is under the New South Wales procedural provisions) unless the Defendants convince the Court that a jury is required.

19. The Plaintiffs then make four points as to why they say a jury trial is not appropriate in this matter.

20. First, the Plaintiffs submit that, because they are of the same family, there is a real risk that each of them will not be afforded a fair trial if the proceedings are heard by a jury. They contend that should the jury members form an opinion with regard to one or more of the family members, the other members' cases may be unfairly tainted consequent on that opinion. They also say that there is a risk that a jury may award a sum of damages to them as a family rather than give a proper assessment of each of the Plaintiff's individual loss and damage. They argue that only by a trial by judge alone will a court be able to consider and differentiate Shane, Ray and Lisa's claims.

21. Second, the Plaintiffs submit that the complexity of the factual matters in dispute will make it appropriate for the trial to be heard by judge alone. The precise sequence of events of the night in question, as well as the question of whether and to what extent there were security personnel at the hotel, will have to be ascertained through the evidence of at least 30 lay witnesses. This includes half the members of the Berrigan Football Club, some of which are the alleged perpetrators of the assaults. The Plaintiffs submit that determination of these facts may require the Court to undertake a "multifaceted intellectual exercise" which, on their submission, "a jury would not be capable of undertaking".[21]

22. Third, the Plaintiffs contend that the CLA complicates matters. It has to be applied to the question of causation and any assessment of non-economic loss. In relation to causation, they assert that the application of the relevant provisions of the CLA "will require enough technical and legal discussion, submissions and considerations" such that it will be beyond a jury to make this assessment. In relation to non-economic loss, they make a similar argument and note that a judge sitting alone carries out this task in New South Wales courts. They also again point to the complication in making an assessment for damages caused by the presence of three Plaintiffs.

23. Fourth, the Plaintiffs say that the trial will be unnecessarily long if heard by a jury. They say that a jury trial for just one Plaintiff could take six weeks, with a jury trial for all three Plaintiffs taking up to eight weeks. They do not estimate the length of time they say the trial would take if heard by judge alone, only to say that "a judge alone trial would result in considerable cost and times savings for all parties and the Court".[22]

24. The Defendants argue that the jury should determine both liability and quantum. If I am not persuaded on that point, their default position is that a jury should determine liability and the trial judge determine quantum.

a. juries should be regarded as capable of dealing with issues of legal complexity and difficult issues of fact;

b. a saving of time is not sufficient grounds for dispensing with a jury;

c. an inordinate number of questions to be answered by a jury would be an example of where a judge and jury would be an inappropriate mode of trial; and

d. juries are often required to (and are capable of) contending with complex issues of causation.

26. The Defendants contend that a jury is capable of determining the question of non-economic loss under s 16 of the CLA. They also dispute the Plaintiffs' estimate of the duration of the trial.

Applicable law - NSW substantive law; Victorian procedural law

27. As the cause of action arose in New South Wales, the substantive law of that State, including that of the assessment of damages, will be applied.[23]

28. As I mentioned earlier, the applicable procedural law is that of the court in which the proceeding is to be heard; the lex fori, or the law of the jurisdiction in which relief is pursued, governs all procedural matters as distinguished from substantive rights. Here that is Victoria.

29. The Plaintiffs' submission that, by reason of the CLA having application in these proceedings, the procedural provisions, namely those of the Supreme Court Act 1970 (NSW), apply to the question of mode of trial is plainly wrong. Therefore, in accordance with the law of this State, it is the Plaintiffs who carry the burden of persuasion that the Defendants should be deprived of their entitlement of a trial by jury. They must demonstrate a special reason for this course to be undertaken.

30. The submission of the Plaintiffs that this case involves a "multi-faceted intellectual exercise that a jury would not be capable of undertaking"[24] is patent nonsense. Indeed it is an insult to the men and women who serve on juries in this State. The reality is that this is a quintessential jury case. Questions of fact such as what actually occurred at the hotel, the role played by the Plaintiffs, their alleged assailants and the hotel staff are of the type juries in this State have regularly determined over many decades in civil and criminal trials.

31. Equally as devoid of merit is the suggestion that a jury will not be able to distinguish the claims brought by each of the Plaintiffs. Again, this is a task regularly undertaken by both civil and criminal juries: differentiating the claims or counts where there are multiple parties. The submission also ignores the role of the trial judge in assisting the jury to fulfil its role. Similarly, the suggestion that a jury will not afford the Plaintiffs a fair trial because they are members of the one family is absurd. There is not a shred of evidence to support this proposition and it ignores the fact, as I just mentioned, that the jury will be instructed to assess the merits of each claim individually.

32. The submission that a jury will have difficulties with causation is also hopeless. Juries in both civil and criminal trials regularly in engage in complex analyses of such questions. The relevant causation provision of the CLA, s 5D, mirrors its Victorian twin, s 51 of the Wrongs Act 1958 (Vic). Since its introduction in 2002, juries in occupiers' liability and medical negligence cases have been required to apply the provisions of the Wrongs Act which, in the main, replicate the common law position prior to the introduction of the Ipp reforms. No one except counsel for the Plaintiffs has suggested this task is beyond the ken of a jury.

33. Next is the question of the duration of the trial. The Plaintiffs' estimate of the length of the trial with a jury is at least six weeks for one Plaintiff and eight weeks for all three Plaintiffs. The Defendants say that a more realistic estimate is three to four weeks. Accepting the Plaintiffs' guesstimate as the extreme this factor does not carry much weight. The Court of Appeal said in Trevor Roller that:

although it may be that trial by judge alone takes less time and costs less than trial by jury, it does not mean that trial by judge alone is invariably the more efficient and cost effective mode of trial.[25]

savings of that order are not sufficient cause to deprive a party of its prima facie entitlement to trial by jury.[26]

34. I do not accept the Plaintiffs' estimate of the length of the trial. Trial management as is encouraged under the CPA will be employed by the trial judge. In any event, if the trial is confined to liability alone it will finish within five weeks.

35. The one point of substance in the Plaintiffs' submissions relates to the capacity of a jury to undertake the assessment of damages for non-economic loss under the CLA.

36. Neither the Plaintiffs nor the Defendants argue against the proposition that the determination of non-economic loss will involve the application of the CLA.

37. Section 16 states:

(1) No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case.

(2) The maximum amount of damages that may be awarded for non-economic loss is $350,000, but the maximum amount is to be awarded only in a most extreme case.

(3) If the severity of the non-economic loss is equal to or greater than 15% of a most extreme case, the damages for non-economic loss are to be determined in accordance with the following Table:

Severity of the non-economic loss (as a proportion of a most extreme case)

Damages for non-economic loss (as a proportion of the maximum amount that may be awarded for non-economic loss)

(4) An amount determined in accordance with subsection (3) is to be rounded to the nearest $500 (with the amounts of $250 and $750 being rounded up).

Note: The following are the steps required in the assessment of non-economic loss in accordance with this section:

Step 1: Determine the severity of the claimant's non-economic loss as a proportion of a most extreme case. The proportion should be expressed as a percentage.

Step 2: Confirm the maximum amount that may be awarded under this section for non-economic loss in a most extreme case. This amount is indexed each year under section 17.

Step 3: Use the Table to determine the percentage of the maximum amount payable in respect of the claim. The amount payable under this section for non-economic loss is then determined by multiplying the maximum amount that may be awarded in a most extreme case by the percentage set out in the Table.

Where the proportion of a most extreme case is greater than 33%, the amount payable will be the same proportion of the maximum amount.

38. Assuming questions of negligence and causation are answered favourably to one or more of the Plaintiffs, the Court would then need to determine in relation to non-pecuniary loss: "What percentage does the Plaintiff's condition represent of a most extreme case?" and then apply the table to fix the appropriate amount.

39. I do not accept the Defendant's submission that a jury can undertake the task, notwithstanding its apparent simplicity. How would a jury go about this task? How would it determine what is a most extreme case? How would it then make the apportionment based on a comparison?

40. These provisions of the CLA were introduced in a jurisdiction where such assessments are made by judges familiar with the gamut of personal injury general damages assessments ranging from catastrophic to trivial. On the other hand, juries in this State assess damages under the common law, the Wrongs Act 1958, the Accident Compensation Act 1985 and the Transport Accident Act 1986 in the traditional way by fixing a sum that represents fair and reasonable compensation for the consequences of the injuries caused by a defendant's negligence.

41. In my opinion the task of assessing non-economic loss under the CLA should not be performed by a jury. I accept that juries may on occasions in the past have carried out this task. However, in the context of this case potentially involving the assessment of damages of three plaintiffs, the task should be performed by a judge sitting alone as is the case in New South Wales.

42. Whilst I am of the opinion that the the fixing of an appropriate percentage is not a task that a jury can satisfactorily undertake that does not mean that a jury should not determine the substantive issue: that of the Defendants' liability to the three members of the Halligan family. For the reasons I have set out, I am not persuaded that there is good reason to order that the trial of both proceedings in their entirety be heard by judge alone. The question of the liability of the Defendants is perfectly well suited for a jury determination. None of the arguments advanced by the Plaintiffs on this point are persuasive.

43. The appropriate course is for a jury to determine whether the Defendants are liable to pay damages to one or more of the Plaintiffs and then for the trial judge to determine the quantum of the claim (or claims), if necessary.

44. The costs of this application should be costs in the cause.

I certify that this and the 13 preceding pages are a true copy of the reasons for Judgment of J Forrest J. of the Supreme Court of Victoria delivered on 22 March 2013.

[3] By Summons filed at the Supreme Court of Wangaratta on 25 October 2012.

[4] Affidavit of Kim Morys Bainbridge dated 2 November 2012 [4]-[6].

[5] John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503, 540; Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575, 606-607.

[8] John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503, ("Pfeiffer").

[9] [1991] HCA 56; (1991) 174 CLR 1, ("McKain").

[10] John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503, 543-544.

[12] This formulation was applied in Hamilton v Merck & Co Inc [2006] NSWCA 55; (2006) 66 NSWLR 48 where the New South Wales Court of Appeal determined that parts of the provisions of the Personal Injuries Proceedings Act 2002 (Qld) were procedural and parts were substantial. See also Stewart v Australian Crime Commission [2012] FCAFC 151 [35]-[36].

[13] See Altmann v Dunning [1995] VicRp 41; (1995) 2 VR 1; State of Victoria v Psaila [1999] VSCA 193; Trevor Roller Shutter Services Pty Ltd v Crowe [2011] VSCA 16; (2011) 31 VR 249.

[14] [2011] VSCA 16; (2011) 31 VR 249.

[15] Birti & Anor v SPI Electricity & Anor [2011] VSC 566 [14]-[16]; Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling 8) [2012] VSC 318; Nugent v Techniwaterjet & Anor [2012] VSC 465 [10].

[16] Birti & Anor v SPI Electricity & Anor [2011] VSC 566 [14]-[16].

[17] [1995] VicRp 41; (1995) 2 VR 1. See also Rigg v State of New South Wales (1993) Aust Tort Reports 81-230.

[18] [2011] VSC 566.

[19] [2012] VSC 318.

[21] Written submissions of the Plaintiffs dated 25 February 2013.

[22] Written submissions of the Plaintiffs dated 25 February 2013.

[23] John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503. See [11] above.

[24] Written submissions of the Plaintiffs dated 25 February 2013.

[25] [2011] VSCA 16; (2011) 31 VR 249, 260.

[26] Trevor Roller Shutter Services Pty Ltd v Crowe [2011] VSCA 16; (2011) 31 VR 249.