Wilson & ors v NSW Land and Housing Corporation

The exception created by ss 87 related to running down cases. Section 88 was concerned with common law claims that raised issues of fraud, defamation, malicious prosecution, false imprisonment, seduction or breach of promise of marriage. Section 89 provided for the making of orders for the determination of certain issues of fact without a jury. Relevantly it was in the following form: "1. In any proceedings on a common law claim (except proceedings to which section 88 applies), the court may order, despite sections 85, 86 and 87, that all and any issues of fact be tried without a jury." 5 The Courts Legislation Amendment (Civil Juries) Act 2001 (The Civil Juries Act), which was assented to on 19 December 2001 commenced on 18 January 2002. By that Act, the then ss 85-89 of the Supreme Court Act 1970 were repealed and different provisions were substituted for them. The substituted s 85 provides: "(1) Proceedings in any Division are to be tried without a jury, unless the Court otherwise orders. (2) The Court may make an order under subsection (1) that proceedings are to be tried with a jury if: (a) any party to the proceedings: (i) files a requisition for trial with a jury, and (ii) pays the fee prescribed by the regulations made under s 130, and (b) the Court is satisfied that the interests of justice require a trial by jury in the proceedings." 6 Under s 85 as it now stands, an additional requirement is imposed on a party who seeks a trial by jury. That requirement establishes quite a high threshold for the making of an order. It is not merely that the making of an order would be "consistent with the interests of justice", or that it would be "in the interests of justice", rather, the interests of justice must "require" trial by jury. This provision, at least to some extent, appears to echo the effect of the English decisions in relation to applications for trial by jury. The form of the present section imposes an onus which is the reverse of the onus which applies in the circumstances of the present case. 7 By Notice of Motion dated 20 March 2002, the defendant sought an order that the proceedings be tried without a jury. It initially contended that the amended legislation applied to the present action, that there was no right to a jury unless the interests of justice so required and that the matter should be tried without a jury because a hearing without a jury was necessary for, or consistent with, the proper and efficient administration of justice. The law governing the constitution of the court for the hearing of the action, as contended for by the defendant, was challenged on behalf of the plaintiffs. Senior counsel for the plaintiffs pointed out that the amendments to the Supreme Court Act 1970 effected by the Civil Juries Act, were subject to a saving provision as follows: "Section 85, 86, 87, 88 or 89, as in force immediately before its amendment by the Courts Legislation Amendment (Civil Juries) Act 2001, continues to apply in relation to proceedings commenced but not finally determined before the commencement of that amendment as if the section had not been amended." 8 As a consequence, the plaintiffs contended that in the circumstances of the present case the law governing the constitution of the court for the determination of the action is that the proceedings are to be determined by a jury, that they had an accrued right in this regard and that this prevails unless the court is persuaded that an order for trial without a jury should be made. This was ultimately conceded on behalf of the defendant to be the correct situation. Such a concession carries with it the consequence that the motion filed on behalf of the defendant must be taken to be a motion pursuant to s 89 of the Supreme Court Act 1970 as it stood prior to the Civil Juries Act coming into force. Relevantly, that section provided: "In any proceedings on a common law claim (except proceedings to which s 88 applies) the court may order, despite ss 85, 86 and 87, that all or any issues of fact be tried without a jury."

The Causes of Action and Factual Issues 9 The Statement of Claim alleges that the first and second plaintiffs were owners of premises at Mount Pleasant, and resided in those premises with their three children. During the period covered by the action, the defendant, a statutory corporation that is part of the Government of New South Wales, was the owner of a number of properties that were in close proximity to the property of the first and second plaintiff. The properties owned by the defendant were leased to a number of tenants who proved to be most difficult and damaging to the plaintiffs, but despite complaints by the plaintiffs to the defendant, nothing was done by the defendant under the terms of the leases which it had issued, to prevent or control the behaviour of its tenants by terminating, or threatening to terminate, their leases, which were being breached by the actions taken by them against, or in relation to, the plaintiffs. The actions of the defendant's tenants are said to have caused personal injury and economic loss to the plaintiffs. 10 The action as framed involves the determination of the rights of citizens against the state. The Statement of Claim in its final form alleges that consistently and persistently from late 1993 until early 1995 the plaintiffs informed the defendant of the nature and extent of problems that they were experiencing and sought action on the part of the defendant to prevent or alleviate such problems by exercising rights which the defendant had under leases it had issued to the persons who were creating the problems. The allegation is that there was a failure on the part of the defendant through its staff to take reasonable and appropriate steps, and that in fact by their actions and inaction the defendant, as an entity of government, adopted or consented to the actions complained of. This, it is alleged, amounted to an adoption of the a nuisance and a breach of a duty of care owed to the plaintiffs. The plaintiffs claim damages, including exemplary damages and aggravated compensatory damages, against the defendant. 11 The factual issues in the case will involve a determination of what occurred, the extent of knowledge of the situation on the part of the relevant government entity, namely the defendant, and its actions or inactions. It will then be necessary for the tribunal of fact to compare the response of the defendant with community standards applicable under both the law of nuisance and the law of negligence. A jury drawn from the community is particularly well equipped to know and apply appropriate community standards. 12 The determination by juries of issues of fact at common law in actions for nuisance and negligence was the norm for the greater part of the life of the Supreme Court. Such norm has a very long history in English law. The method of trial in civil cases in England for 500 years up to 1854 was by jury. Indeed, as Lord Denning MR pointed out in Ward v James (1966) 1 QB 275 at 290, until 1854 there was no other mode of trial available. Such a mode of trial was described by Blackstone as "the sacred bulwark of the nation" (Commentaries, Book IV, 349-50). In Ford v Blurton (1922) 38 TLR 801 (which was referred to with approval in Ward v James (supra)), Atkin LJ (as he then was) described a trial by jury as "the shield of the poor from the oppression of the rich and powerful" (supra at 805). He went on to say: "Anyone who knows the history of our law knows that many of the liberties of the subject were originally established and are maintained by the verdicts of juries in civil cases. Many will think that at the present time the danger of attack by powerful private organisations or by encroachments of the executive is not diminishing … I do not myself see any inconvenience in trying before a jury contested facts, even though upon their ascertainment questions of law may emerge." (at 805). 13 It is only in relatively recent times that Parliamentary enactment, in fulfilment of government policy, has truncated the long standing right to jury trial in civil actions in New South Wales. 14 It is the defendant, a government entity, that seeks to change the mode of trial to which the plaintiffs became entitled prior to the amendment of the Supreme Court Act 1970. That being so, it is incumbent on the defendant, as applicant, to show by reference to factors particular to the instant case that trial by jury should be dispensed with, and that the accrued right of the plaintiffs to a jury trial should be set aside. In Pambula District Hospital v Herriman (1988) 14 NSWLR 387, Kirby P said: "…whether of not s 86 of the Act confers a 'right', strictly so called, it does envisage that a party to proceedings on a common law claim will continue to have an entitlement to requisition a jury. Having done so … the exercise of the discretion called for by s 89 requires the party seeking the alternative mode of trial to discharge the onus to satisfy the court that it should exercise its discretion upon the particular application made, to order that the trial be had, despite that fact, without a jury. It is therefore not to the point to consider universal characteristics of jury trials. They must be taken to have been known to, and accepted by, Parliament when contemplating that jury trials should continue, except where the discretion under s 89(1) of the Act was exercised." (supa at 402-403).

Samuels JA said: "… the legislature … has plainly confirmed the individual litigant's right (in the class of case which s 86 contemplates) to have a trial with a jury; and has affirmed that this right may be divested only if there are grounds for the proper exercise of the discretion to order that a jury should be dispensed with." (supra at 411-412). 15 It is against such a legislative background that the power conferred by s 89(1) of the Supreme Court Act 1970 is to be understood. The discretion conferred by s 89(1) is a judicial discretion. It is not a completely uncontrolled or unfettered discretion to dispense with trial by jury in common law actions. The factors on which the discretion is to be exercised must be particular to the case; not universal or general in relation to trials by jury. 16 The law in this regard in New South Wales is in marked contrast to the law in England. Rules of Supreme Court Ord 36 Rule 1 confers on the English Court a power to determine whether the trial of a civil action is to be with or without a jury. Order 36 Rule 1(3) provides that: "the discretion of the Court or judge in making … any order under this rule is an absolute one."

The earlier English decisions on this rule, e.g. Hope v Great Western Railway Co (1937) 2 KB 130 suggested that the judge had a "completely untrammelled discretion". This decision was followed by Maxwell J in Barnes v Hornibrook Group Ltd (1986) 12 NSWLR 185. However, later English decisions, e.g. Hennell v Ranaboldo (1963) 3 All ER 684 and Sims v William Howard & Sons Ltd (1964) 2 QB 409 introduced the need for "special circumstances" to be demonstrated before a trial by jury would be ordered. As a consequence of the differences in the rules and in judicial approach, the English decisions on this topic need to be approached with caution (see paragraph 19 below).

Defendant's Arguments 17 The defendant supported its application by an affidavit sworn by its solicitor. The affidavit is somewhat argumentative in form and most of the issues raised in it were the subject of submissions by counsel. However, comment should be made in relation to the reliance placed by the defendant's solicitor on the affidavits that have been filed in the matter. In his affidavit he argues that these should be considered as voluminous documents. I do not think that this a correct approach to those affidavits. They will provide excellent proofs for the evidence to be given at the trial and will undoubtedly be a valuable source of material for cross-examination. However, their existence is not of itself an adequate reason to dispense with a trial by jury. 18 In support of its motion the defendant submitted that "the critical question is whether dispensing with a jury is consistent with a proper and efficient administration of justice," and placed reliance on Pambula District Hospital v Herriman (supra). However, in my opinion that decision does not support the defendant's submission. In that case, a judge at first instance dispensed with trial by jury in a common law action for damages. On appeal, the order was set aside with the result that the hearing of the matter was to proceed before a jury. Kirby P said: "The normal rule in the Court, including the Common Law Division, is that proceedings should be tried without a jury (s 85(1)) but that rule is, in turn, subject to the qualifications introduced by the succeeding ss 86, 87 and 88. Section 86, which is of general application, confers on a party, which files a requisition for trial with a jury and pays the prescribed fee, a prima facie entitlement to have issues of fact so tried." (supra at 391).

The qualifications in ss 87 and 88 have no application to the present case. 19 The defendant also relied on Taylor v Anderton (1995) 2 All ER 420. That case concerned an action for malicious prosecution, misfeasance in public office and conspiracy. The English Court of Appeal decided that the matter should be heard by a judge, since it would not be convenient to have the matter determined by a jury in view of the likelihood that the trial would be very lengthy, expensive and burdensome, and require prolonged examination of the documents. The pleadings in that case were extremely voluminous. On their own, they occupied four substantial ring binders. The number of documents was so great as to require a special court to accommodate them. The documents ran into the thousands. Thus, there were 462 pages of particulars, 2,900 pages of transcript from a criminal trial, 6,700 documents in the defendant's list of documents and 4,500 in the plaintiff's list. The issues involved an examination of the performance of eleven companies over a period of ten years. This in turn required prolonged examination of complex commercial documents and accounts. The trial was expected to be very long. The additional cost of the trial if there were to be a jury was expected to be in the order of £GBP 500,000. It should be remembered that this figure is a 1995 figure. Furthermore, the additional cost of the trial was so great as to perhaps make it impracticable for one party or other to pursue the proceedings. As can be seen from the foregoing, Taylor v Anderton (supra) was very different from the present case. I do not think that the defendant gets any real assistance from it. In addition, it should be remembered that in Pambula District Hospital v Herriman (supra), the Court of Appeal cautioned about the use of English authorities in relation to dispensing with a jury because of, inter alia, the different approach adopted in England with the result that "the English authorities can be applied only with great caution" (supra at 412 per Samuels JA).

20 It was also submitted on behalf of the defendant that the factual disputes involve conduct that extends over a period of approximately 15 months and claims for physical harm and economic loss, and that such matters are unsuitable for trial by jury. Such a submission is, in my opinion, without substance. It flies in the face of a long history of determination by juries of civil actions in the Supreme Court as well as in other courts of this State and elsewhere. To suggest that issues of fact of the kind involved in the present case are unduly complex and beyond the scope of determination by a jury (as was inherent in the submissions of the defendant), flies in the face of decade upon decade of this court's history. Furthermore in the criminal sphere juries regularly determine complex issues of fact involving the liberty of the subject, not just monetary amounts. This again confirms the suitability of a jury to determine factual issues of the kind raised in the present matter. 21 Next it is said on behalf of the defendant that "oral evidence will have to be given". In the determination of the rights of a citizen against the State, as is the situation in this case, I can see no vice in this. It may have the effect of requiring otherwise anonymous public servants to come forward and justify what they have done, or not done, or written or said. That is, it may involve public accountability. In this day and age, public accountability of public officials should be encouraged, not avoided. In an action involving people who claim personal injuries and economic loss there is no reason, in my opinion, why their claims should not be aired orally. In common law actions, oral evidence is the norm. 22 The defendant contends that the action will take significantly longer with a jury than without a jury. I am not satisfied that the hearing will take significantly longer if there is a jury. I do accept that it will take somewhat longer. The defendant itself estimates the additional length of the trial to be no more than five days. Even if this be so I do not think it is significant or otherwise sufficient to displace the accrued right of the plaintiffs to a trial by jury. Furthermore, it may well be that a consideration of additional length is one of the matters of a general kind which, in Pambula District Hospital v Herriman (supra at 402-403; 413), were held to be extraneous or irrelevant. In my opinion this is not an adequate reason for dispensing with a jury. 23 The defendant further contends that "there are (sic) a large amount of documents which each party wishes to rely upon". Those documents are largely letters and faxes of complaint and requests for action, as well as notes and memoranda recording or commenting on such complaints and requests. They are not documents that require "prolonged examination" of the kind referred to in s 89(1) of the Supreme Court Act 1970. They have not been shown to be of a kind that cannot conveniently be read and understood by a jury. This submission on behalf of the defendant does not, in my opinion, justify the exercise of a discretion to dispense with a jury. 24 The defendant then contends that there are unsettled legal principles involved in the case, and that resolving these will involve "detailed submissions … (that) … are likely to be lengthy and … are likely to be dealt with in the absence of a jury". There are mechanisms for dealing with this, either before the jury is empanelled or at the conclusion of the evidence and before the summing up. Such mechanisms are regularly resorted to in criminal trials that, in the litigious climate of present times, frequently involve complex issues of law - both substantive and adjectival. In my opinion this contention is not an adequate ground for exercising a discretion in favour of the defendant which will have the effect of depriving the plaintiffs of their accrued right to a trial by jury 25 The final submission on behalf of the defendant was that "because exemplary damages are claimed and because, on the plaintiffs case, there is to be a detailed scrutiny of the operation of the Department (which includes the files and Departmental procedures) a Judge alone is more suited to determining the issues". This submission states the issues in the case as if they were terms of reference in a Royal Commission. The factual issues will involve an understanding of what it was the defendant knew, what it could have done, what it did or did not do, and then making a comparison between the facts as found in relation to those matters and the appropriate community standards. There may then be a determination of damages, including punitive elements of damages. The expression of a sense of community concern at bureaucratic action or inaction (or "oppressive bureaucratic conduct" as senior counsel for the plaintiff characterised it) by a jury is, in my opinion, quite appropriate. Who better than the members of the community who form the jury to know and apply a community standard? In my opinion this final submission on behalf of the plaintiff fails. 26 Where, as in the present case, the claim is against the State it would, in my opinion, be inappropriate to deprive citizens - in this case the plaintiffs - of their preferred mode of trial, unless there are good reasons for doing so. I am not satisfied that such reasons exist in the present case. Trial by jury is not inconsistent with the proper and efficient administration of justice in the instant case. 27 Having examined individually the various reasons advanced by the defendant in support of its submission that the trial of the action should be before a judge above, it is necessary to consider the various reasons in combination. Having done so the result is that neither individually nor cumulatively or in combination do the reasons advanced on behalf of the defendant satisfy me that the discretion to dispense with a jury should be exercised in favour of the defendant. Indeed, in this action in which a government entity and the bureaucrats who staff it seek to justify what they have done or not done, it seems to me appropriate that the of the rights of the plaintiffs, as citizens, should be determined by citizens: that is by a jury drawn from the community. 28 For the foregoing reasons I am of opinion that the application for the trial of the action without a jury should be dismissed. 29 ORDERS

1. Motion dismissed. 2. The defendant is to pay the plaintiff's costs. **********

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