Rouvinetis v Knoll & ors

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Deu v Victorian Railways Commissiosners (1949) 78 CLR 61 Forge & Ors v Australian Securities & Investment Commission & Ors [2006] HCA 44; (2006) 228 CLR 45 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Leighton Contractors Pty Ltd v Fox; Calliden Insurance Limited v Fox [2009] HCA 35 Maroubra Rugby League Football Club v Malo [2007] NSWCA 39; (2007) NSWLR 496 CASES CITED : McDonald v Coles Myer Limited, New South Wales Court of Appeal, 12 September 1995, unreported Myer Stores Limited & Ors v Soo (1991) 2 VR 597 Rouvinetis v Varady & Ors [2009] NSWSC 109 Spautz v Butterworth & Ors (1996) 41 NSWLR 1 Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161 Trustees of the Roman Catholic church v Ellis & Anor [2007] NSWCA 117; 70 NSWLR 565 Webster v Lampard (1993) 177 CLR 602

TEXTS CITED : F Trindade, P Cane and M Lunney, The Law of Torts in Australia, 4th ed, Oxford University Press 2007

Evangelos ROUVINETIS (Plaintiff) PARTIES : David KNOLL & 22 ors (First & third to twenty third defendants) PALIGUARD PTY LIMITED (Second defendant)

Mr J Gormly SC (Plaintiff) COUNSEL : Mr P Blacket SC (First & third to twenty third defendants) Mr D Llloyd (Second Defendant)

TD Kelly & Co SOLICITORS : Messrs Holman Webb Messrs Lee & Lyons

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 HIS HONOUR: By a Further Amended Statement of Claim the plaintiff, Evangelos Rouvinetis, claims various types of damages including exemplary and aggravated damages, interest and costs from twenty three defendants in respect of an incident that occurred at Sydney Girls High School ("the school") on 9 April 2008. The first and third to twenty-third defendants are sued for negligence and wrongful imprisonment. The second defendant is sued for assault, battery, negligence and wrongful imprisonment.

2 The plaintiff applies to the Court for the proceedings to be heard by a jury. The basis of the application is that the third defendant is a judge of this Court. That application is opposed by each of the defendants.

3 The first and third to twenty-third defendants apply for the further amended statement of claim to be either dismissed or struck out under r 13.4 and r 14.28 Uniform Civil Procedure Rules 2005 ("UCPR"). It is appropriate to deal with this application first. For convenience I will simply refer to the defendants but unless otherwise indicated that should be taken as a reference to all but the second defendant.

4 For an overview I gratefully adopt the description of the incident at the school that is set out in the defendants' written submissions: The plaintiff's claim arises out of an event ["the event"] on 9 April 2008. That night the Jewish Board of Deputies held a Passover dinner at Sydney Girls High School. The plaintiff entered premises (near to where the dinner was being held) and security personnel (of the second defendant's) told him that it was a private function and that he had to leave the premises. The plaintiff did not leave, and the security personnel restrained him and contacted the Police. The plaintiff alleges that he was restrained for 25 minutes until the Police arrived who then escorted him off the premises.

5 It is common ground that the first defendant, David Knoll, was at the relevant time the president of the NSW Jewish Board of Deputies ("NSW JBD"). The NSW JBD is an unincorporated not for profit association of Jewish individuals and organisations. The defendants comprised the committee of management, known as the Executive, and they are each sued personally because they held that office at the relevant time: see, for example, Trustees of the Roman Catholic Church v Ellis & Anor [2007] NSWCA 117; 70 NSWLR 565 at [46] - [51]. The second defendant, Paliguard Pty Limited, provided licensed security services including events security services to the Jewish Community. There is an issue between the parties as to whether it carried on a business. There is also an issue as to the plaintiff's claim that it was a body that was promoted, influenced and controlled by the first defendant. The third defendant, the judge of this Court, was the sole director and shareholder of the second defendant.

6 The statement of claim includes that the plaintiff is a 68 year old pensioner who lived in Department of Housing accommodation near the school. He claims that as a local citizen he took a benevolent interest in the school and had visited it on school open days and had met and spoken with the principal. It is alleged that on the night of the event he was out for an evening walk and as he passed the school he noticed that a door was open and unattended. Out of concern for the school he entered the property to investigate. He says that he walked through numerous doors and areas until he reached a source of activity that attracted his attention. He was then approached, stopped and ordered to leave by persons he did not know and who he did not identify as officers of the school. He inquired as to the nature of the event and called for an officer of the school or the police. He attempted to continue his investigation by walking around the persons who had confronted him.

7 The plaintiff claims that at this point five "large male persons for all of whom the second defendant was responsible" seized him, threw him violently to the ground, restrained him, pulled his arms behind him, handcuffed him and forcefully held him to the ground without his consent and against his wishes for a prolonged period. He alleges that the male persons became aware that he was a person known to the school and did not represent a threat but they nevertheless continued to restrain him. It is not indicated in the statement of claim how those male persons became aware that he was known and was not a threat. It is said to be the case that he was handcuffed and restrained for about 25 minutes with his head and lower body pressed to the ground. Police officers then arrived and after they made some short inquiries they took the plaintiff to the front gates of the school. The handcuffs were removed and he was allowed to leave.

8 The statement of claim continues, in paragraph 30, by describing the persons who restrained the plaintiff as being "officers and agents of the second defendant in the form of security guards providing security services to the first and third to twenty third defendants' function". It is also alleged, in paragraph 31, that "during the course of the seizure, handcuffing and restraint of the plaintiff, duly authorised agents of the first and third to twenty third defendants became aware of the seizure of the plaintiff, became aware that he was known to the school and that he represented no threat, but made no appropriate inquiries, issued no instructions and took no action to ensure his immediate release". Whilst the "duly authorised agents" are not identified, it is clear from the wording of this part of the pleadings that the reference is not to security guards working for the second defendant but to some other persons who were agents of the defendants.

9 "Particulars of Duty" of the defendants are set out as follows (paragraph 32): (a) Ensuring that the security services used by the First and Third to Twenty Third Defendants did not exceed legal and legitimate boundaries;

(b) Ensuring that any security services which they used were not only licensed but maintained adequate, professional and legal standards in the exercise of their security activities;

(c) Ensuring that their own influence and involvement in the existence, operation and management of the Second Defendant did not interfere with, impair or restrict compliance by the Second Defendant with its legal obligations and limitations;

(d) Ensuring for the night of 9 April 2008, that adequate monitoring of the actions of the Second Defendant were carried out by officers of the First and Third to Twenty Third Defendants particularly when notified of an alleged securing incident;

(e) Compliance with term (h) of the Agreement for use of the School facilities which term required the First and Third to Twenty Third Defendants to ensure that any person they allowed onto the premises would properly conduct themselves, a term which among other things provided protection to persons such as the Plaintiff.

10 "Particulars of False Imprisonment" in respect of the defendants (paragraph 35) are: (a) Failing to instruct the Second Defendant to free the Plaintiff from restraint as soon as particulars of the Plaintiff were known;

(b) Failing to instruct the Second Defendant to release the Plaintiff as soon as it was learned from Dr. Varady that the Plaintiff was known to the School and did not represent a threat;

(c) Allowing the Plaintiff to remain handcuffed and restrained after the First and Third to Twenty Third Defendants became aware that the Plaintiff did not represent a risk;

(d) Failing to ensure that the Second Defendant adequately instructed its officers as to their rights to issue orders and directions to members of the public

11 "Particulars of Negligence" in respect of the defendants (paragraph 35) are: (a) Failing to ensure (having regard to its control over the Second Defendant) that the Second Defendant could provide competent, safe and appropriate security services at the First Defendant's function;

(b) Failing to adequately instruct the Second Defendant to use restraint and exercise respect for ordinary common law rights and obligations;

(c) Failing to ensure that the Second Defendant adequately instructed its officers as to their rights to issue orders and directions to members of the public;

(d) Failing to ensure that appropriate signage was erected advising that a private function was being conducted at Sydney Girls High School;

(e) Failing to instruct the Second Defendant to free the Plaintiff from restraint as soon as particulars of the Plaintiff were known;

(f) Failing to instruct the Second Defendant to release the Plaintiff as soon as it was learned from Dr. Varady that the Plaintiff was known to the School and did not represent a threat;

(g) Allowing the Plaintiff to remain handcuffed and restrained after the First and Third to Twenty Third Defendants became aware that the Plaintiff did not represent a risk.

12 In paragraph 36 it is pleaded: Further, and in the alternative the Plaintiff asserts: … (b) The First and Third to Twenty Third Defendants allowed or permitted excessive force to be used by the Second Defendant after it became aware that the Plaintiff represented no threat.

13 The plaintiff's particulars of damage include humiliation, rage, anger, frustration, physical injuries, psychological distress, loss of freedom and liberty, deprivation of the ordinary dignity of a free person and persisting emotional and psychological consequences.

14 It is also claimed that the plaintiff suffered further loss in that he "reasonably endeavoured to give expression to the loss and damage he had suffered by bringing mispleaded and mistaken legal actions thereby suffering the stress and difficulties of litigation as well as costs ordered against him". This is a reference to earlier attempts to bring proceedings himself before he obtained legal representation. He sought to sue the school principal, the Department of Education and Training and the State of New South Wales. Those proceedings were summarily dismissed on 5 March 2009 by Schmidt AJ (as her Honour then was) on the basis that no reasonable cause of action was disclosed: Rouvinetis v Varady & Ors [2009] NSWSC 109. 15 The present proceedings were instituted on 28 October 2008 when, without legal representation, the plaintiff filed the statement of claim. Still without representation he filed an amended statement of claim on 20 November 2008. In May 2009 an order was made by Buddin J pursuant to UCPR 7.36 that the plaintiff be referred to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. Thereafter Mr Gormly SC instructed by TD Kelly & Co., solicitors, assumed the representation of the plaintiff. Another amended statement of claim was filed on 14 July 2009 and then the further amended statement of claim was filed on 22 July 2009.

16 The statement of claim filed on 14 July 2009 only nominated one member of the NSW JBD as a representative pursuant to UCPR 7.4. The plaintiff's solicitors subsequently became aware of the names of each member of the Executive and so the Further Amended Statement of Claim expanded the list of defendants to the present 23. Mr Gormly conceded during the course of the hearing that there is material in the present version of the statement of claim that is no longer required because it was only relevant to a representative defendant. He submitted that none of that material offends, it is simply extraneous, and this can be cured by further amendment. I will say more about the need for amendment later.

17 At an early stage of the hearing of the motion, Mr Blacket SC tendered documents produced on subpoena by the Department of Education and Training. An objection was taken but I provisionally admitted the material and indicated I would rule on the objection once I had an opportunity to consider the documents in detail. The documents were said to be relevant, in part, as confirmation of the regularity of the hiring by the NSW JBD of the school premises for the event. That is not in issue. It was also sought to rely upon some material within the documents that established, so it was said, that the plaintiff, upon being told that the event was a private function and that he should leave, became a trespasser. Such material is in a letter written by the plaintiff to the Minister for Education on 14 April 2008. Mr Gormly indicated that there was material in that letter that would be the subject of considerable contention and that was the basis of his objection. He also pointed to the fact that it is included in the pleadings on behalf of the plaintiff that he was "approached, stopped and ordered to leave". It is the terms of the conversation that was had in that context that the plaintiff set out in his letter to the Minister that appears to be in contention. Having regard to the nature of the application with which I am concerned I confirm the admissibility of the documents but I will not have any regard to the material within them that is contentious.

18 It is contended on behalf of the defendants that the claim of false imprisonment cannot lie against them because there is no proper pleading that any of them engaged in any action of either imprisoning the plaintiff or causing the plaintiff to be imprisoned. It is also contended that the claim in negligence is misconceived insofar as it seeks to make the defendants vicariously liable for the acts of the second defendant, an independent contractor.

Principles 19 The Court's discretion to order summary dismissal is one which must be exercised with "exceptional caution": General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129. A party is ordinarily to be permitted the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. There needs to be a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57]. The discretion should only be exercised if it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99; Dey v Victorian Railways Commissioners (1949) 78 CLR 61 at 91; Webster v Lampard (1993) 177 CLR 602.

20 As to the claim of false imprisonment, counsel for the defendants drew my attention to McDonald v Coles Myer Limited, New South Wales Court of Appeal, 12 September 1995, unreported; Myer Stores Limited & Ors v Soo (1991) 2 VR 597 at 629; Spautz v Butterworth & Ors (1996) 41 NSWLR 1 at 26; and F Trindade, P Cane and M Lunney, The Law of Torts in Australia, 4th ed, Oxford University Press 2007, p56, in support of a submission that what the plaintiff was required to prove was (a) total deprivation of the plaintiff's liberty, and (b) that each defendant (or their agent) must either imprison the plaintiff or be active in promoting and causing the imprisonment. There is no issue that these are the elements of the tort. It is a matter for the defendant on a claim of false imprisonment to establish that any imprisonment was lawful or justified but that is not a relevant consideration on the present application.

21 Submissions were made on behalf of the defendants that on the plaintiff's case, he had been ordered to leave but he persisted in remaining. It was contended that he thereby became a trespasser on inclosed lands and was liable to arrest and handing over to the police. That would be a relevant matter on an application to dismiss or strike out on the grounds of abuse of process because the proceedings were foredoomed to fail but that was not the basis of the application advanced on behalf of the defendants. In any event, the material placed before me is inadequate to allow a definitive determination of this trespassing issue.

22 It was submitted that the claim for damages for false imprisonment is defective and must fail because there is no allegation that each defendant, either personally or by an agent, either imprisoned the plaintiff or was active in promoting and causing the imprisonment.

23 The only portion of the pleaded facts that deals with this issue is paragraph 31 which is repeated for convenience: 31 During the course of the seizure, handcuffing and restraint of the Plaintiff, duly authorised agents of the First and Third to Twenty Third Defendants became aware of the seizure of the Plaintiff, became aware that he was known to the School and that he represented no threat, but made no appropriate inquiries, issued no instructions and took no action to ensure his immediate release.

24 It was submitted on behalf of the defendants that this pleading is inadequate in that it fails to plead: (a) the identity of the "duly authorised agents";

(c) that the unidentified "agents" either imprisoned the plaintiff or was active in promoting and causing the imprisonment; and

(d) that imprisoning the plaintiff, or promoting and causing his imprisonment, the "agents" were acting within the scope of their authority under their agency with the defendants so as to make the defendants liable as principals for their agents' conduct.

25 The claim as pleaded appears to be that persons working for the second defendant as security guards initiated and maintained a false imprisonment of the plaintiff. Then it is claimed that the other defendants were liable for this because their agents became aware of this state of affairs and did nothing about it. The plaintiff alleges that there were two groups of "agents", one responsible for the seizure and detaining and the other responsible by becoming aware of this (and other matters) and not doing anything to ensure the plaintiff's release. It is clear that the plaintiff's case is that the first mentioned agents were security guards working for the second defendant but there is no indication in the pleadings of the identity of the second mentioned agents.

26 It appears that the defendants may have been confused by the pleadings. I should interpolate that confusion by the pleadings is forgivable because they are not, with respect to their author, a model of clarity. In a request for particulars sent to the plaintiff's solicitors by letter of 6 August 2009 there is a request for the identity of the "duly authorised agents" mentioned in paragraph 31 together with a request for particulars as to how such persons were agents of the defendants. In addition, however, there is a request for particulars as to which of the defendants became aware, et cetera, and as to how they became so aware. It is not alleged at all in the claim that any of the defendants themselves became aware of any of the matters alleged in paragraph 31, or that any of the defendants themselves did nothing in response. It should be noted that in relation to the request for particulars in respect of paragraph 31 the solicitors for the plaintiff replied: We will respond to this when we have had the benefit of answer to our notice to produce, discovery and interrogatories.

27 In written submissions, Mr Gormly clarified the claim as follows: It is pleaded that the second defendant's officers restrained the plaintiff in the relevant sense and that the first and third to twenty third defendants maintained the restraint by failing to terminate it when they should have done so. Whether these matters are established on admissible evidence at trial remains to be seen but the pleading of control of the second defendant by the committee of management, false imprisonment carried out by agents and by prolongation and failure to terminate are valid and arguable components of the action of false imprisonment as pleaded in the statement of claim.

28 That leaves the question who were the second group of "agents" referred to in paragraph 31. Mr Gormly was unable to identify them except to say that it included an employee of the NSW JBD who was known to be present, possibly Ms Ydele Nathan (employed by the NSW JBD as an events co-ordinator). It was also thought that a person named Rothman (not the third defendant) was present. He continued, "What we do know is that there (were) members of the Jewish Board of Deputies, that is, defendants one and three to twenty-three present, some of them, and that there were authorised employees or agents of those people present, we just don't know their names" (T19.10).

29 Despite the present disarray of the plaintiff's case in terms of evidence to establish the matters alleged, the present application, insofar as it concerns the claim of false imprisonment, must be determined on the sole issue raised by the defendants as to whether "there is no proper pleading that any of (the) defendants engaged in any action of either imprisoning the plaintiff or causing the plaintiff to be imprisoned". I am satisfied that a case for liability of the defendants has been pleaded in that it is sufficiently alleged that liability arises from the actions of their agents (either members of the Executive of the NSW JBD or its employees) in failing to ensure the termination of the plaintiff's detention and allowing it to continue by the security guards who were also agents of the defendants. It is not alleged that the agents actual imprisoned the plaintiff themselves and whether the awareness and inactivity amounted to a promoting or causing of the continued imprisonment is tenuous. But the material before me is inadequate to permit a conclusion that no reasonable cause of action is disclosed and that the plaintiff should be denied a hearing on the merits after all appropriate interlocutory processes have been availed of.

30 The other submissions made on behalf of the defendants in respect of the false imprisonment claim are really criticisms of the adequacy of particularisation - for example, the identity of the "duly authorised agents", the facts giving rise to their agency, the scope of that agency, and the precise nature of the defendant's liability. The case for the plaintiff will obviously need to be pleaded with a far greater level of detail in order to meet the requirement of UCPR 15.1 that the defendants are able to identify the case that they are required to meet.

No duty owed for the work methods of the second defendant

31 In respect of the claim of negligence the submission on behalf of the defendants is that they "do not owe the plaintiff any duty of care vis the work methods of the second defendant". It was submitted that as a result, sub-paragraphs 32(a), (b) and (c) (see [9] above) should be struck out.

32 The defendants are sued in their capacity as members of the Executive of the NSW JBD. The plaintiff has pleaded the following facts in relation to the second defendant: 1 The Second Defendant is a body corporate carrying on business under the name "Communal Security Group" and is sued as a corporation.

2 The Second Defendant carries on business providing licensed security services including events security services to the Jewish community.

3 The Second Defendant is a body promoted, influenced and controlled by the First Defendant.

14 By its duly authorised agents and employees including Ydele Nathan and upon or consistent with, instructions from the members of the Executive of the NSW JBD, the First and Third to Twenty Third Defendants instructed and/or contracted with the Second Defendant to supply security services for the dinner event described in paragraph 13 above.

15 The Second Defendant, at all material times, provided volunteer and other security services for events of the NSW JBD and related services.

16 The protocols and procedures of the Second Defendant, for security services at NSW JBD functions were (subject to security licensing requirements) determined or influenced by instructions from duly authorised employees or agents of the First and Third to Twenty Third Defendants complying with decisions of the Executive of the NSW JBD represented by the First and Third to Twenty Third Defendants.

33 Further particulars were sought by the defendants as to paragraphs 3 and 14 to 16 but the reply on behalf of the plaintiff was that this must await the response to a notice to produce and, perhaps, discovery and interrogatories.

34 On behalf of the defendants it was contended that they were not vicariously liable for the actions of persons working for the second defendant because the second defendant was an independent contractor and in this regard reference was made to Leighton Contractors Pty Ltd v Fox; Calliden Insurance Limited v Fox [2009] HCA 35. I accept that there is a distinction between employees and independent contractors when a question arises as to whether a principal bears vicarious liability but the distinction is one that is not always easy to draw. The current approach to such an issue is to consider a range of indicia and the totality of the circumstances of the relationship between the parties. Even where the principal's agent can be classified as an independent contractor that is not necessarily the end of the inquiry as to potential liability of the principal. See generally Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16; Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161.

35 The pleadings involve some uncertainty as to whether the plaintiff is in fact alleging that the defendants are liable for the actions of the second defendant. It is at least implicit in the "particulars of duty", sub-paragraphs 32(a) - (c) (see [9] above), that the plaintiff alleges the defendants had various forms of duty in relation to the work of the second defendant. However, the "particulars of negligence" (see [11] above) refer solely to actions of the defendants themselves in failing to "ensure" and "instruct" the second defendant as to various matters, "allowing" the plaintiff to remain under restraint, and paragraph 31 pleads that "duly authorised agents" (persons other than persons working for the second defendant) became aware of certain matters and did nothing to ensure the plaintiff's release.

36 If it be the case that the plaintiff is alleging that the defendants are vicariously liable for the actions of the second defendant then at this point it cannot be said that this cannot be because the second defendant was an independent contractor. As Mr Gormly submitted, the precise relationship between the second defendant and the NSW JBD is to some extent unclear at this stage but it is pleaded, in effect, that there was a "special relationship of influence and control". This is a matter that must await determination at a final hearing.

37 It was also submitted on behalf of the defendants that the alleged duty arising from sub-paragraph 32(d) (see [9] above) and the allegations of breach in sub-paragraphs 35(e), (f) and (g) (see [11] above) suffer from the same fault as the false imprisonment claim in that there is "no proper pleading that the first and third to twenty third defendants were aware of the plaintiff's imprisonment" and so those sub-paragraphs should be struck out. For the reasons given earlier I am not satisfied that this is so.

38 A case has not been made for striking out any of the pleadings on negligence.

Civil Liability Act exclusion of personal liability of volunteers

39 It was submitted on behalf of the defendants that the provisions of s 61 of the Civil Liability Act 2002 applied to exclude them from liability on the basis that they were acting in the capacity of volunteers. For this to be a basis for summary dismissal under the principles referred to earlier (at [19]) it would need to be established beyond question that the defendants were volunteers doing "community work" (work that is not for private financial gain and that is done for a charitable, benevolent, philanthropic, sporting, educational or cultural purpose) organised by a "community organisation" (a body corporate, church or other religious organisation, or an authority of the State), or as an office holder of a community organisation. There is no material before the Court that establishes these matters.

40 A similar submission was made in respect of the second defendant. Section 3C of the Civil Liability Act operates to exclude vicarious liability for a tort committed by a person who is subject to a provision of the Act excluding or limiting their liability. Again, there is no material before the Court that establishes this beyond question in respect of the second defendant.

41 The plaintiff moves for an order that the proceedings be tried with a jury. A requisition under s 85 of the Supreme Court Act 1970 and a notice of motion were filed on 2 October 2009, well out of the time required by UCPR 29.2(6). No point was taken in relation to this on behalf of any of the defendants. The explanation for the delay is most related to the fact that the plaintiff did not have representation for a considerable time after the proceedings were commenced. The time limit in UCPR 29.2(6) is prefaced with "Unless the court otherwise orders". In the circumstances, and having regard to the fact that no issue was taken by the defendants, it is appropriate that the time for filing the notice should be extended to 2 October 2009.

42 The Court is empowered to make the order sought if satisfied "that the interests of justice require a trial by jury in the proceedings": s 85(2)(b) Supreme Court Act. The principal authority in relation to this provision is Maroubra Rugby League Football Club v Malo [2007] NSWCA 39; (2007) NSWLR 496. The judgment of Mason P, Ipp and Tobias JJA agreeing, includes the following propositions. It is the general rule that proceedings in any Division of this Court are to be tried without a jury (at [13]). The "interests of justice" refer to considerations going beyond the private interests of one or all of the parties (at [17]). The Court must be positively satisfied that the disinterested interests of justice require departure from the general rule of trial by judge alone (at [18]). The question is not whether the interests of justice "warrant" a trial by jury but whether they "require" it (at [24] - [25]). To consider whether the proceedings raise questions that "ought" to be resolved by a jury is to depart from the statutory mandate (at [26] - [27]). Whether general community contemporary values are involved, such as may be the case in proceedings where moral, ethical or general social values are involved, is not the touchstone which enlivens the power. Section 85 is concerned, and only concerned, with whether the interests of justice require departure from the mandated general rule of trial without jury (at [28] - [29]). Absence of a "representative" or "community" viewpoint is not an inherent defect of a trial by judge alone (at [31]). The standard required by s 85(209b) is high and absolute (at [32]). A matter that serves the interests of justice is that unlike juries, judges' reasons are fully exposed, thereby aiding appellate accountability (at [33]). It is the judge, not the jury, who decides whether a duty of care exists and what is its scope (at [35]).

43 A specific passage from the judgment that attracted attention in the submissions was: "33 … (T)he combination of serious credibility issues and something more (for example, a serving judge as a potential witness) might require trial by jury in the interests of justice".

44 Evidence tendered in support of the application includes that the third defendant, a currently serving judge of this Court, was at the relevant time the secretary, sole shareholder and director of the second defendant company as well as being an honorary life member and former president of the NSW JBD.

45 Mr Gormly submitted that the third defendant "may well be called as a witness", more so than any of the other defendants who were members of the Executive of the NSW JBD because there is an issue as to the relationship between the two entities in which he held positions and that it was the NSW JBD that engaged the second defendant company to provide security services at the event in question. Indeed, it was submitted that if the third defendant did not give evidence this would be a matter of adverse comment against all of the defendants that his evidence would not have assisted their case.

46 It was submitted that the credit or the interests in one form or another of the third defendant may be affected. His evidence would require evaluation by the tribunal of fact. It was said to be "inappropriate and potentially damaging to the justice system to have one Judge assessing the interests or evidence of another, particularly where there is an alternative".

47 An ancillary submission was that the proceedings include the involvement of senior figures of the legal profession. The first defendant is a barrister. The current president of the NSW JBD is a senior counsel. It was contended that their involvement alone may, in the interests of justice, require a jury. The only specific submission made in support of this proposition, however, was that some judges may consider it necessary to disqualify themselves if they were friends of, or knew, the people in question.

48 Another reason for ordering trial by jury was said to be that the plaintiff "is an unusual individual, highly focussed on philosophical issues, the obligations of one citizen to another and the role of litigation as a means of expressing rights and obligations". It was alleged, in this context, that he had been described as anti-Semitic at an earlier directions hearing. These considerations were said to highlight the need to protect the integrity of the system of justice as it deals with the plaintiff's case.

49 The involvement of "senior figures of the legal profession" and the idiosyncrasies of the plaintiff are, as was submitted on behalf of the defendants, situations which not infrequently confront the Court. The interests of justice do not require trial by jury for those reasons.

50 It was the assessment of counsel for the second defendant and senior counsel for the other defendants that it is unlikely that there would be a need for the third defendant to give evidence. It is, however, premature for definitive assessment of that question. It would be appropriate to consider the application upon the basis that it is a possibility. Aside from the third defendant giving evidence there is also the issue of his interests being affected by the outcome of the proceedings, whether or not there is insurance to protect those interests as was suggested.

51 There is force in the submission on behalf of the defendants that trial by jury would not be the cure for which the plaintiff contends. A judge would still be required to making rulings and give directions on a variety of questions of law, including the existence and scope of any duty of care and the applicability of any exclusion of liability under the Civil Liability Act.

52 The position of each of the defendants was that nothing was required to be done in the interests of justice in this case but that if it did emerge that the Judges of this Court were embarrassed in any way by the prospect of presiding at the hearing of the matter then a judge from another State or Territory could be appointed to preside. Reference was made to the judgment of Gummow, Hayne and Crennan JJ in Forge & Ors v Australian Securities & Investment Commission & Ors [2006] HCA 44; (2006) 228 CLR 45 at [94] - [96] where their Honours referred to such a practice as having no adverse effect on the institutional integrity of the court.

53 Mr Gormly characterised this suggested remedy as a "special arrangement" which was unwarranted when there is already a "regular arrangement" available by way of trial by jury which would adequately deal with the matter. I am not satisfied that it would "adequately deal with the matter" having regard to the significant role the presiding judge would still be required to play if there was a jury. Mr Gormly responded to this suggestion by submitting that decisions of law by the presiding judge are amenable to appeal which provides a protection for what he described as the "impartiality issue". Generally he described the application as being concerned with adopting a prudent course to prevent damage by a perception of partiality.

54 Some reference was made in the submissions to other cases in which sitting or former judges have been involved in litigation. I am not of the view that reference to other cases with varying degrees of similarity to the present is of any real assistance. The statutory mandate requires me to determine the issue upon the interests of justice as they pertain to this case and its own unique array of circumstances.

55 I am not persuaded that the interests of justice in this case require that there be trial by jury. It would not provide the panacea for the problems that senior counsel for the plaintiff foresees, if those matters be problems at all. If it is necessary there is available an alternative course but that is a matter best left for determination after the parties are more completely aware of the nature of the evidence to be led and the issues to be joined at the final hearing.

56 As indicated earlier when dealing with the defendants' motion for summary dismissal or striking out, there are a number of features of the statement of claim in its present form that require attention. Mr Gormly conceded that it needs further amendment in certain respects. Those amendments he referred to should be made. There should also be a far greater attempt made to fulfil the requirements of UCPR 15.1. I propose to grant leave to the plaintiff to file a further amended statement of claim to remedy these deficiencies. Costs 57 I did not hear submissions from any of the parties on the question of whether any costs orders should be made. Having regard to the orders I am making my tentative view is that no orders should be made but I will allow liberty to restore if any party wishes to be heard on this issue.

58 The motion of the first and third to twenty third defendants for summary dismissal or striking out is dismissed. I extend time for the filing of the plaintiff's motion for trial by jury until 2 October 2009.

That motion is dismissed. The plaintiff has leave to file and serve a further amended statement by 18 December 2009. Liberty to restore on the question of costs upon 7 days notice. **********

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