Gerlach v Clifton Bricks Pty Limited S43/2001 [2001] HCATrans 574 (14 November 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S43 of 2001

B e t w e e n -

ARMIN HERBERT GERLACH

Appellant

and

CLIFTON BRICKS PTY LIMITED

Respondent

GAUDRON J

McHUGH J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 14 NOVEMBER 2001, AT 10.15 AM

Copyright in the High Court of Australia

MR J.McC. IRELAND, QC: May it please the Court, I appear with my learned friend, MR J.F. BURN, on behalf of the appellant. (instructed by Gary Robb & Associates)

MR B.W. RAYMENT, QC: May it please your Honours, I appear for the respondent with my learned friend, MR A.R. ASHBURNER. (instructed by Hunt & Hunt)

GAUDRON J: Yes, Mr Ireland.

MR IRELAND: Your Honours have the written submissions.

KIRBY J: This judge does not like civil juries and that is the problem, is it not? "I would get rid of them entirely", he says.

MR IRELAND: Yes, but reminds himself - - -

CALLINAN J: It is a very patronising attitude, I might say.

KIRBY J: It is not uncommon in New South Wales.

MR IRELAND: Well, your Honour, there is, of course, a stream of thought in the judiciary generally that the time which is occupied generally in jury trials is becoming such a pressure on the court system that the contraction of jury trials is desirable, certainly in some cases, and that is really not antithetic to the legislation that we are dealing with.

CALLINAN J: There have been some notoriously prolonged civil cases before single judges, not just in the Supreme Court but in the Federal Court.

MR IRELAND: Yes. Your Honours, I would not want to be distracted from my submission that that is not the basis upon which this jury was dispensed with.

KIRBY J: You say it is not, but he leads up to his reasons with the statement, "Well, you know, if I had my way there would be no civil juries in this State, but I don't make the law." Then he goes on to say, repeatedly - this is at page 4 of the supplementary book:

Yes that's right, and a lot of what you put is - I mean I'll tell you straight out, I would do away with all civil juries in the State, instantly and retrospectively. I think it leads to, quite frankly, perfectly obvious miscarriages of justice - - -

and he goes to say that plaintiffs who summon juries are guilty of professional negligence.

CALLINAN J: An outrageous thing to say that, absolutely outrageous.

MR IRELAND: Your Honour, the question is whether or not those remarks which, it is true, find themselves in the transcript of the argument, his Honour, having reserved at the conclusion of that hearing and then delivered a reserved judgment at 2 o'clock on the same day, whether those remarks should be taken - and this was not the basis of a decision of the Court of Appeal at all should I say, that that consideration drove the judge when he dispensed with the jury.

HAYNE J: How do we ever get to that issue? Why do we ever get to consider whether the judge was right or wrong in dispensing with a jury?

GAUDRON J: Because that order was not appealed.

HAYNE J: How was the Court of Appeal entitled to upset the judgment below on the basis of an interlocutory order that was not appealed against?

MR IRELAND: Your Honours, as I understood it, there was an amendment made to the notice of appeal.

HAYNE J: That may be.

GAUDRON J: But that was an appeal against the verdict.

MR IRELAND: Yes, to introduce the ground of dispensation with the jury.

HAYNE J: I understand that, but how can the Court of Appeal upset the verdict when there has been a trial according to one of the accepted methods of trial in the State of New South Wales on the basis that there is a miscarriage of justice apparently because there is a trial by judge alone? It is a perfectly startling proposition. How do you get to there?

MR IRELAND: By the same route that the Court of Appeal got to there in Patton, I suppose.

HAYNE J: Their Honours in this case refer to two decisions.

MR IRELAND: Bunning v Cross.

HAYNE J: Yes, which is a case about evidence. I can understand how wrongful reception or rejection of evidence can affect a verdict. The other case in 2 CLR seems to me at first blush not to support the generality of the proposition that the Court of Appeal attribute to it. How do you get to the result that they do? Perhaps it is perfectly obvious to others but it is not to me.

MR IRELAND: Your Honour, as I understand it, the Court of Appeal has applied the principle that an interlocutory order, which leads on the way to the determination against which there is a right of appeal, is in general a valid ground of appeal after the final result has been reached.

HAYNE J: That I can understand in the case of an interlocutory order that can be understood as affecting the outcome at trial.

MR IRELAND: Yes, your Honour.

HAYNE J: I cannot understand it for the moment in the case of an interlocutory order which goes to the mode of trial.

KIRBY J: This is in your favour.

MR IRELAND: I accept that. I am just trying to - - -

KIRBY J: It is because there are authorities in Victoria that say that, there being two modes of trial, once one is conducted and perfected in the judgment, that is it and even if the judge may, we think, have made mistake, it just does not alter the outcome. It is a somewhat startling idea that at the very end of the process - - -

MR IRELAND: Yes, I do understand, your Honour. One has had a regular mode of trial in one of two alternatives. There is an early order which displaces one mode in favour of the other. The trial is otherwise regular and the question is whether the principle in Bunning v Cross that his Honour - - -

McHUGH J: But it does not seem to me to have anything to do with Bunning v Cross, and what has to be made good at the end of the day is that this interlocutory order resulted in a miscarriage of justice. As Justice Hayne pointed out to you - and he has referred me to a case in Victoria, Darrel Lea v Union Assurance [1969] VR at 401 - the Full Court of the Supreme Court of that State thought it was just a hopeless proposition to suggest that there was a miscarriage of justice.

HAYNE J: "Unthinkable" was the expression their Honours used and, for me, it is.

MR IRELAND: Yes.

HAYNE J: The proposition that trial by judge alone is itself a miscarriage of justice is perfectly startling.

MR IRELAND: Your Honour, that was, I am reminded, the burden of Mr Burn's submission to the Court of Appeal, but it does not manifest itself in their reasons.

KIRBY J: But the Court of Appeal does say, and this seems to be the essence of it - - -

MR IRELAND: That it was accepted.

KIRBY J: - - - they do say that you get the retrial because there has not been a trial according to law and that seems to rest on principle that trial by jury, the constitutional right as it is sometimes described, is the trial by law of which a party has been deprived and that, having deprived that party of it, that that is enough because it is not the mode of trial that ought to have been from the start. So that is the proposition.

MR IRELAND: I accept that the basis of it is a trial not according to law. That is what Justice Handley says, and the other members of the court agreed.

McHUGH J: But it is a trial according to law. It is an order made within jurisdiction. It is not as if the judge had no jurisdiction.

MR IRELAND: That must be right in this case.

McHUGH J: He exercised his discretion wrongly, on one view, but still, it was an order made within jurisdiction.

MR IRELAND: I suppose we have all been distracted up until about 10 minutes ago by what happened in Patton, which is exactly the same thing. In Patton's Case, the Court of Appeal had set aside the judgment of a judge on the basis that he dispensed with a jury under this section - the same section - wrongly, because he did it after the jury had heard the evidence. This Court reversed the Court of Appeal and restored the trial judge's verdict.

KIRBY J: But that raised a slightly different question, that is, because the case had gone in one mode of trial and then midstream there was a switch to another mode of trial. This Court held that that was permissible and the Court of Appeal took a different view. But this is a case at the threshold, where the mode of trial was being selected - - -

MR IRELAND: Wholly with the judge alone.

KIRBY J: - - - and the judge appears to have great bias against jury trial, which the common law for centuries provided and which the Parliament has provided. I suppose the notion is that if a party was disaffected with that mode of trial, they could have rushed up to the Court of Appeal and sought an interlocutory appeal against that order. Would that have been feasible in the current arrangements of the Court of Appeal of New South Wales? It would have once, but I do not know.

MR IRELAND: The Court of Appeal in the present case said that the time between the Friday, when Judge Christie made his decision, and the Tuesday, when the trial of the action commenced, hardly gave any realistic opportunity for an intermediate challenge to the dispensation of the jury. That is what the Court of Appeal said.

KIRBY J: It is probably right.

MR IRELAND: Well, things have changed, your Honour.

KIRBY J: Theoretically - - -

MR IRELAND: One used to be able to rush up on a Friday afternoon and get an order - - -

KIRBY J: Yes, or on the Monday morning, and we would deal with it at once.

MR IRELAND: Yes, your Honour knows - - -

KIRBY J: But the press of business has increased, I suppose.

MR IRELAND: Coming back, if leave to appeal could have been sought, as it would be accepted it could have been if there had been an opportunity for intermediate challenge, then the trial would have been postponed. The problem arises in that the trial did go ahead with the judge alone on the following Tuesday. It was completely heard, as your Honour puts to me, contrary to Patton, by that judge. The question then arises: would there be a basis of challenge at all at the conclusion of the action being tried before Acting Judge Morrison?

Perhaps it could have been challenged by the respondent here by saying that there had been a deprivation of a trial with jury in circumstances where there was, to take up your Honour's remarks, some manifest bias on the part of the first judge and that that, as it were, undermined the proceedings so greatly that it deprived a trial according to law.

HAYNE J: Let it be assumed, for the purposes of argument, that his Honour, the judge who dispensed with the jury, was entirely wrong in his conclusion. It is a point that is at least arguable. What consequence and what process of legal reasoning leads to the conclusion that the subsequent trial is a miscarriage of justice?

MR IRELAND: Only if one could say that the decision to dispense with the jury was attended by such overwhelming bias that one was disbarred.

HAYNE J: Assume that in your favour; it is the next steps that are against you.

MR IRELAND: It is not in my favour, your Honour.

HAYNE J: Assume it against you. What is the next set of steps that have to be taken to demonstrate that the verdict obtained from the judge is to be set aside?

MR IRELAND: I suppose it rests only on the foundation that if a party is deprived in a constitutional sense by bias from a mode of trial which he is entitled to have, then the consequence is that the regular trial, which follows from that deprivation, could, in special circumstances, be set aside.

McHUGH J: Well, no. If a judge was affected by bias then there was a denial of natural justice and the cases hold that a denial of natural justice is a denial of jurisdiction, therefore, this being an inferior court, he had no jurisdiction to make the order if he was affected by bias and therefore it was, on one view, a nullity, but certainly - - -

MR IRELAND: But the problem arises whether it is a nullity, because one has a regular trial following in a mode that is permitted by the statute maturing into a judgment that is impeccable otherwise, let one assume.

KIRBY J: Could I ask, I have forgotten this, do you have to show a miscarriage of justice after a jury verdict to have appellate correction or is it enough that you show an error of law, because the theory, as I understand it, is that you can on an appeal challenge every interlocutory order that has been wrongly made on the path to the final judgment and often on a motion day we would say, "Well, why do you want to come up now? If a mistake has been made you can raise this in the substantive appeal if you have still got a gripe?".

MR IRELAND: Yes.

HAYNE J: But is that the theory, that every interlocutory order undermines the final verdict? It seems to me that that is at least a contestable proposition. I can understand the more limited proposition: every interlocutory order that has affected the outcome at trial is something of which complaint can be made on appeal against final verdict, but the wider proposition is one for which I would want authority.

McHUGH J: But even if you accept the wider proposition, even though legal error may have occurred, a court will always dismiss an appeal if there is no substantial miscarriage of justice.

MR IRELAND: From a juror.

McHUGH J: Well, for anything.

KIRBY J: Now, is that a proposition in the Rules of New South Wales?

McHUGH J: Well it used to be; it used to be Order 22 rule 15 in the old Supreme Court Rules and I am sure it is there somewhere.

KIRBY J: We had better get reference to that.

MR IRELAND: I accept what has been said, and I do not know if my friend does, but if there is error that does not mature into a miscarriage of justice then that will not be the basis for setting aside a trial verdict. That is my understanding of the position. I am sorry, your Honour, I am unprepared for this, for obvious reasons.

KIRBY J: Well we better have the exact Rules.

McHUGH J: In fact, under the judicature system the difference is that the onus is on the appellant to show that it has led to a miscarriage of justice, whereas at common law the onus was the other way.

MR IRELAND: Once the appeal was in play as it were.

McHUGH J: Yes. Once the plaintiff in error showed that there was an error, then the onus was on the respondent to the appeal to show that it had not affected the result, but under the judicature system it is the difference.

MR IRELAND: I remembered that name.

McHUGH J: Yes. The difference is referred to by Justice Cussen in one of those cases from Victoria, Holford against somebody or other, some tramways company.

MR IRELAND: But this is a slightly different case, as Justice Hayne is making clear. There is nothing irregular about the trial, so the interlocutory procedures one is looking at are not internal to the trial.

McHUGH J: No, but the hypothesis is that the judge has made an error. Let it be assumed against you that the judge has made an error. The fact is why should the verdict be set aside unless it has resulted in a miscarriage of justice? We can leave to one side who has the onus.

MR IRELAND: That was our very submission to Justice Handley and co in the Court of Appeal, that whatever you think about this, there has been a regular trial according to one mode. Where is the error? There is no error apart from this technical error about pre-trial decisions as to mode of trial. That was our first submission to the Court of Appeal and that is not even dealt with in the reasons.

KIRBY J: Can I just tell you how perhaps Justice Handley, or a judge in the Court of Appeal, might think. Unless we correct and say a defendant has been deprived of the mode of trial which common law used to provide, Parliament has provided for, defendants like and plaintiffs do not like and, unless we face up to the reality that there is no real prospect of getting up on an interlocutory application between a Thursday and a Friday, "We've got you", because you are not going to be able to change it and you cannot raise it because you have had a regular mode of trial and therefore there is no real way that that matter can ever be tendered for decision on appeal subsequently and you are stuck with the decisions of judges who like to sit alone, some of whom have not had jury experience, feel more comfortable sitting alone, do not like juries, do not want to sit with juries, when that is a right under statute.

MR IRELAND: Yes, unless the mechanism for section 79A is duly followed.

KIRBY J: I would not be surprised if that is the sort of broad way in which the Court of Appeal would say, "We are going to keep supervision on this and we're going to make sure that there still is a substantive right to appeal against these decisions when they're made on irregular or legally wrong bases".

MR IRELAND: The case is very odd because they did not hear argument on the other grounds of appeal. This obviously was in the forefront of the Court of Appeal's mind. It picked this point, heard argument on both sides and then upset the verdict, as it were, on a part-heard basis on the appeal. They did not need to get to anything else on quantum, so it was obviously in the forefront of the approach. In my respectful submission, the question becomes whether or not - and this is hypothetical - the decision to dispense with the jury, acceptably attended by some bias, attracts a different principle, not simply the interlocutory orders along the way to that trial's result but some different principle based upon natural justice, which allows the court in an appeal to hear submissions on and, if necessary, set aside that otherwise regular trial because the precondition to its happening was attended by bias and in a sense nullity. That is the question.

HAYNE J: Assume that a case of bias were not to be made out. Assume that the primary judge's repeated statements that he did not act on these rather general and remarkable views that he expressed were taken at face value. The reason given for dispensing with a jury was, in your submission, what?

MR IRELAND: The reason given for dispensing with the jury was the combination of witnesses from other parts of the country and the cost of one of those witnesses' attendance in the particular case.

HAYNE J: A specialist doctor?

MR IRELAND: Yes, your Honour.

HAYNE J: For my own part I do not understand how those reasons would warrant an order dispensing with a jury.

MR IRELAND: When one comes to review that question it is not what your Honour would have decided.

HAYNE J: I understand that, but I do not even see them to be arguable reasons. Evidence has to be called before a judge or before a jury.

MR IRELAND: I am sorry, your Honour.

HAYNE J: Evidence must be called no matter who the Tribunal is. Witnesses have to be scheduled no matter who the Tribunal is.

MR IRELAND: Just one qualification. I am sorry, your Honour - - -

HAYNE J: Yes, go on.

MR IRELAND: I beg your Honour's pardon.

HAYNE J: No, the qualification?

MR IRELAND: The only qualification is; there is - I do not know if the Victorian situation is the same, but in New South Wales it is regularly the position that medical evidence does not involve the attendance of the doctor before a judge, but in a jury trial you have to call the doctor.

KIRBY J: In this case the defendant said, we want the doctor present.

MR IRELAND: In fact, they did not in the end, but that is not to the point because the judge was acting on that assertion. Your Honour is right, Mr Mansfield, I think - - -

HAYNE J: I must say in Victoria it is common place for reports to be read to juries without the doctor attending, but assume that there is that distinction. Again, the rhetorical question I ask is, so what? Why does that warrant dispensing with a jury?

MR IRELAND: It warrants dispensing with a jury because you have a circumstance where the jury trial, everyone accepts, will take longer. There is no contest on that, and because of the procedures. Everyone in this case seems to accept that. It is also accepted, if it matters, by the Court of Appeal in this and another case, so that you have a circumstance where a case which is potentially shorter is aggravated in its length by the combination of circumstances that I have identified. You have people who have to be accommodated - and Judge Christie found as a fact that the doctor would have to be accommodated from, whether it was Melbourne or Canberra. That means stay overnight, I take it, in a circumstance where he might not have to come at all, or if there were a judge alone he could be slotted in in a more flexible manner than is available in a jury court. Those are the elements - - -

HAYNE J: I do not know how jury trials are conducted in New South Wales, I really do not, but these ideas that jury trials are to be conducted with great difficulty is something that comes as a quite startling proposition to me, it really does.

MR IRELAND: I do not think, your Honour, and I am not submitting, with respect, that there is difficulty. In all of these cases which have looked at the question of dispensing with the jury, notably Patton and, of course, Pambula's Case, it seems to be accepted that there is a universal benefit in getting rid of the jury in terms of brevity, efficiency, and - - -

HAYNE J: That may be a good piece of LORE, I am by no means certain that is at all warranted in fact or in LAW. In fact, I would dispute it vehemently.

CALLINAN J: The regular conduct of hundreds and hundreds of criminal trials in the courts give the lie to it. Criminal trials are often much more complex than civil trials, and daily criminal trials are conducted before juries.

MR IRELAND: I am not here to abolish jury trials in New South Wales or any other State.

CALLINAN J: No, I know, Mr Ireland. In fact, it is really unfair to be putting a lot of these matters to you.

MR IRELAND: It is very unexpected, I do not know about unfair, your Honour.

McHUGH J: Mr Ireland, Part 51AA rule 16 says:

The Court of Appeal shall not order a new trial -

on grounds (a), (b), (c), (d):

on any other ground,

unless it appears to the Court of Appeal that some substantial wrong or miscarriage of justice has been thereby occasioned.

MR IRELAND: I thought I accepted that. I am sorry, I just did not have the reference. Your Honour has been distracted - - -

KIRBY J: Now, presumably, Justice Handley must have thought there has been a substantive wrong and miscarriage of justice because a party with a right by law which has summoned a jury has been deprived of that right, which is described in this Court many times as a constitutional right - it is fundamental, it goes to the nature of the trial - and therefore there is a substantive miscarriage of justice. The fact that there is such passion by defendants to get juries and plaintiffs to get rid of them shows that it is not thought to be an insignificant consideration.

MR IRELAND: That is a fashionable thing. It used to be the other way around.

KIRBY J: Exactly, but it still is something for which parties fight bitterly and hard. Now, that is what Justice Handley has obviously thought. What is wrong with it? That that is a miscarriage, to deprive a party of a right which law gives them, and especially on wrong or erroneous or irrelevant or biased grounds.

MR IRELAND: That has been the basis of the discussion, that you get to an extreme position where there is a power in the Court of Appeal, where there has been a taking away, as it were, of that constitutional right, or denial of natural justice, or whatever it is, that has been the cause of the mode of trial that is under attack.

KIRBY J: Is there any way that the Court of Appeal can supervise judges who have an attitude of reluctance - - -

MR IRELAND: Yes, there is - - -

KIRBY J: - - - if they cannot get the case on against the interlocutory order within two days except by dealing with it on an appeal against the final judgment?

MR IRELAND: If I may say so, your Honour, the controlling factor is not special to this discretion. This Court has said in Norbis v Norbis, and otherwise, that there is a limit for discretions, rationality and the objects of the power, and if those are exceeded, then the decision on any discretionary matter is reviewable. House v The King says so.

KIRBY J: But that appears to accept that it is not a final answer to every such case to say, "Well, it might have been an error to have dispensed with the jury, but we are not going to look into that because you have had one of the two modes of trial and that is it. Go away. Don't bother us with this matter. It is finished."

MR IRELAND: I am wondering, your Honour - this matter having been raised, as I have said, surprisingly - where we stand in this appeal, because we did not - and I should say so, frankly - - -

KIRBY J: You did not advance that. This is a line of Victorian authority.

MR IRELAND: - - - we did not advance this as a basis for special leave.

KIRBY J: No. Do you embrace this proposition? It is supported by a Full Court of the Supreme Court of Victoria.

MR IRELAND: I remember a case, which I have not read lately - which may be the same case, your Honour, and I am sorry, I am not prepared for this, for obvious reasons - but I would submit that this case was fought on both sides, for whatever reason, upon the basis that the interlocutory order was reviewable. We said, at the end of the day, we have had one regular mode of trial and that ought to be an overwhelming reason to leave it alone. That was implicitly rejected, that submission. Then, down the conventional path went the Court of Appeal in looking at the Pambula principle. We say that the Court of Appeal has mistaken that principle and interfered too readily in an exercise of discretion that was not circumscribed by special rules, that section 79A is a general discretion, controlled only by the limits of general control of discretions of that type and that, when this is viewed, Judge Christie did not fall over the edge of that discretion.

KIRBY J: One could say, in this case, that on one view of Pambula, that this fell within Pambula. There was, after all, an interstate doctor who had to come - that would add to costs and inconvenience - and had to stand by and that there was something special in this case. It was not simply that jury trial was a more lengthy or difficult mode. This did have some special elements. It is, at least, arguable.

MR IRELAND: That takes us - I have not got there yet and I am wondering whether I am going to get there - to - - -

KIRBY J: We will let you get there in due course when we are ready.

MR IRELAND: One has to look at this distinction that Pambula creates between matters of universal application only and matters of universal application which somehow mature into a special factor in the case. That is what Pambula seems to decide, with respect, that matters which are such matters as brevity, cost, et cetera, which are of universal application, it seems to be accepted, when you shorten proceedings by getting rid of the jury, per se have no role to play in the discretionary decision under section 79A or section 89 of the Supreme Court Act which is said to be indistinguishable.

But one of these factors, such as delay, can obviously mature into a special circumstance in the case - and your Honour's example, I think, in Pambula was the case of a dying plaintiff. You cannot get the jury trial on quickly because of listing problems. The judge considered the weekend, et cetera. One now has these mesothelioma cases which are sometimes urgently heard over a weekend before a plaintiff dies. That could not be done with a jury. So that is an extreme example where mere urgency, which is a factor, or timing is a factor which becomes special to that case and nobody doubts that in that case the dispensation of the jury would fall squarely within the discretion under section 79A or section 89.

So the problem one has in the Pambula analysis is to look at this sliding of generality into particularity and where the line is to be drawn. That seems to be the essential problem with the principle and for reasons we have put in our written submissions, we say that the principle is erroneously encrusted on the discretion. If one leaves it to a general discretion, as the words of section 79A state, then that is a better means of controlling the situation, rather to engrafting upon it another refinement which itself is attended by logical and other difficulties.

KIRBY J: Can I put the contrary argument for your answer. Totally uncontrolled judicial discretion is a form of tyranny and does not exist under our law. Our law provides that the discretion must be exercised for the purposes for which the legislature has granted it. Therefore, you look at the discretion in the context of a legislation that has posited a right in certain circumstances to jury trial and this is a derogation from that right and, therefore, it must be harnessed to that and, therefore, you cannot, as it were, attack the right because that is granted by law. It has to be a derogation from the right, an exception, and, therefore, you cannot attack the mode of trial which the law has provided for as such, per se. You have to show something which indicates that in this case it is appropriate to a judge exercising a very broad discretion as a judge to dispense with the jury. That is the basic idea behind Pambula and I do not think it is a false idea.

MR IRELAND: No, but the problem is that when it talks about matters of universal application in relation to all jury trials, that is the nebulous concept. What is this matter of universal application which is to be disregarded in limine and yet treated as perhaps decisive in an acute case where the particular facts of that consideration cause injustice? That is the problem with the intermediate category of reference of matters of universal application which forestalls a more orthodox application of the discretion.

McHUGH J: One point that tells very heavily against any universal view is the fact that the section, both in the District Court and the Supreme Court, specifically empowers the judge to isolate a single issue of fact to be tried by the judge. Now, you do not have to dispense with the jury and you can - - -

MR IRELAND: I was going to add that. One does have cases where a judge decides a fact and the rest of the case is heard by the jury and once you get to that position - I am sorry?

McHUGH J: Scientific issues, or requiring a prolonged examination of documents, orders used to be frequently made. I do not know whether they still are.

MR IRELAND: They still are in some cases, and particularly in cases where juries - there are problems when juries are mandatory as well, in the section 88 cases.

CALLINAN J: There is usually a particular rule, is there not, to cover cases in which an examination of documents may be involved.

MR IRELAND: Yes, there is.

CALLINAN J: It is an expressed discretion conferred normally.

HAYNE J: Does that rule still exist? Certainly the old common form Judicature Act rule, which was reflected in Order 36 rule 5, I think it was, of the Victorian Rules was that "if the case involves prolonged examination of documents or scientific evidence", et cetera, "you can dispense" - - -

MR IRELAND: One can dispense with the jury. That still exists.

HAYNE J: Does that rule still exist in the District Court Rules in New South Wales, in that form?

MR IRELAND: It exists in the category of cases where - section 88 in the Supreme Court, where - are called the "sentimental cases" I think - categories - they call them, which is libel and these things, where that problem can arise. It used to be the case before section 79A was introduced in 1987, responsively to what Justice Clarke had said in Peck, that that was the controlling factor.

McHUGH J: Yes.

MR IRELAND: And this is the amendment in wide and general terms, to move to a position of greater flexibility. That is what this section is about historically, in terms of its introduction.

KIRBY J: The provision to which reference needs to be made is section 88 but particularly section 89(2):

In any proceedings to which section 88 applies, the Court may order, despite - - -

MR IRELAND: Yes, I am sorry I think I elided two things. It is the 88 cases where that section 89 operates. Thank you, your Honour, I am sorry. So that the question really becomes whether or not - at the first level the question is whether or not Pambula is correct in introducing this control on the discretion. Your Honour Justice Kirby has decided the case and then articulated the argument against me, but it is a textual answer to that at the first level that we put, based on Patton, for the reasons in our written submissions.

KIRBY J: Do not be too worried. I have sat here and I have decided things differently to what I have decided in the Court of Appeal. If I am convinced that that was error, that will be corrected.

MR IRELAND: Yes, your Honour

KIRBY J: A notion creeps into some of the discourse on this, in some of the cases, that because it is a discretion and because it is given to a court and a judge, therefore it is totally at large. Now that is not, as I understand it, the law. The discretion must be for the purpose for which the donee of power, the repository of power receives the discretion.

MR IRELAND: Receives it, I accept that, your Honour. There is no contest on that principle.

KIRBY J: Therefore, you have to look at it in the context that the statute does give a right and, therefore, you cannot use the discretion to vary the jury trial to say, "We don't like juries", as Judge Christie obviously does not, "and we want to get rid of" - - -

MR IRELAND: He said he did not, but that is not the basis of his decision.

McHUGH J: Do you not look at it - - -

MR IRELAND: He was disciplined to come back to the - I am sorry, your Honour, I did not mean to - - -

McHUGH J: No, answer Justice Kirby.

MR IRELAND: The judge was disciplined to reserve his decision, come back at 2 o'clock and say in terms, "My own approach to jury trials cannot control this. I have to look at the facts" and I think he says, "It is a lineball". Anyone would say it is a lineball, but the question is, is it over the line or inside the line in this case?

KIRBY J: When you have a discretion in these terms, and I will leave aside courts for the moment, is it not the proper approach that the discretion may be exercised on any ground that is not inconsistent with the objects of the Act which confers it? Is that not what Water Irrigation v Browning decides?

MR IRELAND: Yes, and in conformity with justice in the particular case.

KIRBY J: When you are dealing with a judge, dealing with a power conferred on a court, then it must be exercised judicially as well.

MR IRELAND: But also with an eye on the justice in the particular case. That is the ultimate - apart from the limits of the power as dictated by the purpose of the power, one has the injustice in the case. Those are the controlling extremes of the discretion, in my submission. So that is the first level of attack. So the Pambula principle is wrong on that approach. The Court of Appeal adopted it and, therefore, fell into repetitive error. Then your Honours would say, "Let's look at the facts. Was Judge Christie's position defensible with an orthodox approach to controlling discretion?". We put in our written submissions that, and I have already, in these oral submissions, encapsulated what we say the reasons were.

They were particular to the case. They were accommodation/ distance cost. They were not mere matters of generality. We say that that keeps Judge Christie's decision within the bounds of proper exercise of discretion under section 79A. So that there are really two levels of approach.

They were particular to the case, they were accommodation/distance cost, they were not mere matters of generality and we say that that keeps Judge Christie's decision within the bounds of proper exercise of discretion under section 79A. So that there are really two levels of approach.

KIRBY J: Well, there are potentially three: the first is, Pambula is wrong; the second is, even if Pambula is right, within Pambula this was a special circumstance particular to the case and therefore it is okay; and the third is, and in any case, the general principle that you can attack interlocutory orders on the way towards a final judgment, does not apply to the particular case of a mode of trial where two modes of trial are provided and one mode of trial has been conducted and perfected in a judgment, which cannot be attacked on a basis that does not fall within the miscarriage of justice to attack that judgment on the basis that a difference mode of trial should have been had. That is the Victorian line of authority.

MR IRELAND: That third matter was the first matter debated this morning when your Honours came on to the Bench.

KIRBY J: Yes. Are you embracing that or not?

MR IRELAND: Yes.

KIRBY J: You take every straw in the wind.

MR IRELAND: Well, but I am worried about my notice of appeal, I am worried about my special - I am sorry.

McHUGH J: It is not a straw; you would say it is a solid brick, it is almost an ediface.

MR IRELAND: It certainly has been put very forcefully; I was not sure whether it was for or against me at first.

HAYNE J: That is half the fun of appearing here, is it not?

MR IRELAND: But we do embrace that in this respect - special leave has not been specifically granted by this Court on that aspect.

GAUDRON J: No, but there was no limit on your grant of special leave - - -

MR IRELAND: No, there was not.

GAUDRON J: - - -and your grants of appeal do seem to me wide enough to embrace the point.

MR IRELAND: I think they are, your Honour, and I have not addressed a written submission to it, but it having arisen as a matter in this case we would embrace that point.

KIRBY J: Would you remind me, because I think you are coming to your crescendo and I would not like to miss your answer on it, what is your answer to Justice Handley's statement, that the Court of Appeal could not in the dispatch of its business have got this matter up within two days and therefore, effectively, if the Victorian rule is applicable, as a general principle, then that means that the defendant is stymied; you cannot really then raise the point, it is finished by the primary judge's decision?

MR IRELAND: My answer is this: if this Court sorts out this problem and says it is within Bunning v Cross or it is not - - -

KIRBY J: Bunning v Cross has nothing to do with it.

HAYNE J: It is not within Bunning v Cross; Bunning v Cross has got nothing whatever to do with this case.

GAUDRON J: It is a question of the powers of a court of appeal really.

MR IRELAND: I am sorry, let me try again. If this Court sorts out the question whether, in the special circumstances of this case, the Court of Appeal can set aside the judge's decision, on whatever basis, and the suggested basis that I have ventured into was bias, as an example, because it led to a mode of trial which was induced by bias - that is an extreme and I am not saying this is a case of bias -first of all, people would know before Judge Christie, when he made his decision, whether an adjournment of the trial should have been sought, because if it is only challengeable after that and before the trial then the appropriate attack was for Mr Mansfield, then appearing for the respondent, to jump up and say, "Well, look, if your Honour is going to get rid of the jury, we want to challenge that and there is doubt about whether we can do that at the end of the day, adjourn the trial."

As Justice Handley, I think, mentions, there could hardly have been any opposition to that, because if the only opportunity to review this decision is intermediately to the dispensation of the jury and the commencement of the judge trial, then an adjournment would be granted.

KIRBY J: Yes, but I can see a judge saying, "Look, I have formed a firm view on this. There is no way I am going to give an adjournment", and often these applications - sometimes, they are made on the very day of trial, because of something that is jumped up or a late application - "Get on with it." Judge Christie kept saying, "Get on with it", and there is pressure on judges to make people get on with it. I mean, I am not blaming the judge for that.

MR IRELAND: I am sure, but the pressure is real.

KIRBY J: And, in that event, you will really stymie the argument unless you reserve the right, which I used to say every Monday, and I thought that was the law - I would like to have some authority on this - if it is not the general principle, you can raise in an attack on a final judgment every substantive error of law on the way to that judgment that the party alleges. I thought that was the principle, and often it was used as a way of saying to parties on a Monday, "Go away. If you are still unhappy at the end of the day you can still raise that". I thought that was - - -

McHUGH J: That is right, that was established. In fact, I established it as counsel for the appellant in - - -

KIRBY J: Let me have the name of that case.

McHUGH J: It is David Syme v Lloyd.

KIRBY J: It seems a sensible argument.

MR IRELAND: It was a very useful principle because it meant that people were not clogging up the Monday list with things that could be sorted out at the end of the day but, in my respectful submission, your Honours and those at the Bar approached that on the basis that what was being looked at was the intermediate trial decisions.

HAYNE J: That is, decisions that affected the verdict.

MR IRELAND: Yes.

HAYNE J: Indeed, you will find if you go to Spencer Bower and Handley on res judicata, for which I have sent, that the principle is described as: you can complain of errors that affect the outcome.

McHUGH J: As in David Syme where the question was whether or not words were capable of a particular meaning. It had been held adversely to the defendant in the interlocutory, Part 31 rule 2, and it was held that that point could be taken on appeal because it affected the verdict.

HAYNE J: The learned authors in Spencer Bower refer to a series of cases out of Moo Ind App and Moo PCC which are cast in terms that are at best opaque, but the authority is traced back to the practice of the Privy Council that you may take at least some interlocutory points on an appeal against final verdict, but it is the generality of the proposition that is contestable in my view.

MR IRELAND: To take an example, before the commencement of the trial one might have a discovery fight, and one often does. Is that able to be the subject of the appeal? It may or may not depending upon its influence on the outcome.

McHUGH J: I think you can, so long as it may have affected the verdict.

MR IRELAND: Yes, but that is the controlling question.

McHUGH J: Yes, then you have substantial miscarriage of justice on top.

MR IRELAND: Yes, so there are at least two hurdles to get over there.

KIRBY J: Mr Ireland, it would be said in legal theory, how can it affect the verdict - and this is the way the Victorian Full Court thought - when you have had one of the two modes of trial? How can you say that a trial by judge is not leading to a proper result? The other argument is that this is a very bitterly and commonly fought issue. Obviously parties who put their money where their theory is think it is very important to them and therefore, what right do courts have to say it does not affect the mode of trial when the evidence of the case books and the evidence of practice is that parties want to hang on to or get rid of juries? Therefore, they contend it does affect the outcome.

MR IRELAND: In balancing the two approaches, greater weight should be given to the regularity of a judgment after a trial regularly held, which is what happened in this case. Parties' anxieties, tactics or strategies about whether they want one mode of trial or another in a formal sense, one would have thought, would yield to the first consideration. If trials can be upset because parties do not like the outcome - and that is what happened here. They participated for two days in a normal trial, did not like the outcome and threw in as one of their grounds of appeal that they wanted another trial on a special ground. Parties' flexibility to change their minds once they - and we argued in the Court of Appeal that they had fully participated in the trial as it was and that was a reason of itself not to grant this relief. That does not get any mention in the judgment either.

So, your Honour, we did put up in the Court of Appeal the relative arguments on this ground in substance but I must say I think everyone has been distracted by what happened in Patton, which is the very sequence of events. The Court of Appeal sets aside the judge's decision because it ought to have been a jury trial, this Court restores it. Nobody mentions along the way, "Hang on, how can this be happening?" So I think both the parties in this case and the Court of Appeal itself were probably not alive to the importance of the question now raised. Facing it now, my submission is that the regularity of the trial prevails over the so-called deprivation of the jury.

KIRBY J: I would be grateful if, when you have the time, you would send in a note about the point Justice Hayne has raised.

MR IRELAND: Of course.

KIRBY J: What is the general principle and what are the exceptions from it? There must be a lot of law on this. It would happen in every common law jurisdiction.

MR IRELAND: We will do that tomorrow. I think I have covered everything I want to cover, albeit it in a slightly unexpected order.

GAUDRON J: Thank you, Mr Ireland. Yes, Mr Rayment.

MR RAYMENT: Your Honours, so far as what might be called the new point is concerned, we wish to respectfully reserve our position on it to a very large extent because it arose here in the courtroom. The matter was not put below in the sense that one sees from Justice Handley's judgment, but it was common ground that the matter was capable of being raised on appeal as of right.

HAYNE J: You were the appellant below, your side was.

MR RAYMENT: We were.

HAYNE J: Your side was saying the verdict was infirm because of what had happened with the order dispensing with a jury. What was the chain of legal reasoning that you said led to that conclusion? Let it be assumed in your favour that the order made by the judge dispensing with a jury was wrong.

MR RAYMENT: The chain has to be, I would assume, as follows; that the result of the trial could have been different if the mode of the trial had been different. That, if there was a right, as we submitted there was, a prime facie right, which ought not to have been displaced, to have a trial by jury, depriving us of the right to have the trial occur in that way which might have altered the result would necessarily involve a miscarriage of justice. You do not need to take the view that the judge was right or wrong for a purpose like that if the matter was contestable. If a different mind - - -

GAUDRON J: That seems to subscribe to the "lottery theory" of litigation though, does it not?

MR RAYMENT: If the result might have been different had the defendant's right been observed then, we submit, it is very to say to say, its too bad because somebody else decided the case and the result was arrived at according to law, to that extent.

KIRBY J: Pretty obviously a lot of very experienced defendants' solicitors and barristers think it is not a lottery but that there is a real advantage to them in having a mode of trial by jury, and an awful lot of plaintiff's solicitors and barristers do a lot to try and get rid of it.

CALLINAN J: Judge Christie said that a plaintiff's lawyer who applied for a jury was professionally negligent.

MR RAYMENT: Yes, was negligent, yes.

CALLINAN J: That shows something about the perception on the District Court about plaintiffs' claims. How would a defendant - - -

MR RAYMENT: Yes. We wish to reserve our position generally about the new point, if I may so for this reason: it at least possible that if the matter had been agitated in the Court of Appeal, application might have been made to their Honours for an extension of time to appeal from the original order of Judge Christie.

HAYNE J: Let it be assumed that those procedural steps were either necessary or appropriate or had been granted. I do not, for the moment, see how that affects the disposition of the appeal that had been instituted by your client against the verdict, against the judgment of 390,000 that had been entered against it.

MR RAYMENT: If the matter is approached that way at least one would not be in the position of having to deal also with the question whether an interlocutory order, along the way to a judgment, could be challenged on the final judgment.

HAYNE J: Succeed or not in this interlocutory appeal of which we now speak, it is of no value to you unless you succeed in your appeal against the judgment for 390. The question at issue is, how can you upset the judgment for 390,000 on this basis?

MR RAYMENT: We just wish to have a look at the matter and if could have some, perhaps, directions from the Court about the filing of submissions on both sides on the new point. I would rather not trench upon such a point which was, at any rate, not raised below, not raised on the special leave application, and not raised in written submissions.

GAUDRON J: Mr Ireland has promised to do it tomorrow and I think you could have seven days thereafter to put in written submissions in reply.

MR IRELAND: May it please, your Honours.

GAUDRON J: You do not need a reply to the motion, I would not have thought, no.

MR RAYMENT: Can we go back to the issues that were raised in the written submissions and in the special leave application. At the heart of those, in our respectful submission, is a question of the relationship between the right conferred, or the prima facie right conferred by section 78(1) of the District Court Act, to require that a jury be summoned to try an action, and the discretion conferred upon the court by section 79A of that Act to order that all or any questions of fact be tried without a jury. It is a very similar question to the one which arose in the Supreme Court, the relevant amendments to the Supreme Court Act having been introduced at the same time. Those which were discussed in the Pambula Case, and the second reading speech applying to both lots of amendments.

A matter which was referred to on the special leave application was the rule in Knight v Special Assets, as it has been described, about which we do not seek on behalf of the respondent to raise any contest. In our respectful submission, the decision of the Court of Appeal in the Pambula Case does not depend on any different view. Indeed, the rule in Knight's Case, as it has been described, has its foundation in earlier matter. It perhaps starts most recently in the House of Lords in Hyman v Rose [1912] AC 623 at 631 and also in a later case which also preceded Pambula of FAI General Insurance v Southern Cross Exploration No Liability.

In Earl Loreburn's speech, page 631 of Hyman v Rose, the principle was, we submit, clearly stated as to the way in which one construes a discretion conferred upon a court to be exercised judicially. This Court referred to it in FAI General Insurance Company v Southern Cross Exploration No Liability [1988] HCA 13; 165 CLR 268 at 290, referring back to the speech of Earl Loreburn, in your Honour Justice Gaudron's judgment in that case. Your Honour cited Hyman v Rose and referred to Earl Loreburn's remarks:

It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a different thing to place conditions upon a free discretion entrusted by statute to the Court where the conditions are not based upon statutory enactment at all.

Indeed, that judgment was referred back to in Knight's Case as the foundation for the rule.

We submit that there was no reason to treat the Court of Appeal's decision in Pambula as arrived at without being aware of that rule. Indeed, if one looks at the way in which the matter was put in Pambula and the way in which it was decided, the decision was heavily dependent upon the context of the District Court Act which, of course, is the circumstance in which the rule in Knight's Case will make it plain, one of the classic circumstances in which one may regard the discretion as being limited or controlled.

Your Honours, in the judgment of your Honour Justice Kirby, as President of the court in Pambula at 392, between letters A and B, reference was made to:

the context in which the discretion provided in section 89(1) is to be exercised.

Your Honour said that the right to summon a jury, amongst other provisions, provides the context in which the discretion is to be exercised. Justice Samuels at 410C remarked that the court was:

urged to indulge ourselves in the benefits of what was described as the modern approach to statutory construction which required us to consider the words in suit in their statutory context -

His Honour remarked that there was nothing new about that modern approach to statutory construction. It is, after all, the same rule of construction as this Court referred to, of course, in CIC v Bankstown Football Club: the need to regard powers conferred by a statute, having regard to the terms in which they were conferred and the context in which the power was conferred. In our respectful submission, there is no violence done to the rule in Knight's Case in Pambula.

HAYNE J: Well, what are, do you say, the criteria of universal application to all jury trials that can be identified or distilled?

MR RAYMENT: If you look at the list given by Justice Cole of the circumstances which his Honour said in Pambula could be taken into account, it is a very good list of those circumstances which are universal to jury trials, in our respectful submission. If you applied that list, you would never have a jury trial in practice or, at least, never except in the most unusual circumstance.

KIRBY J: Where are they listed?

MR RAYMENT: They are set out in your Honour Justice Kirby's judgment at - - -

KIRBY J: I see. At 393 to 394.

MR RAYMENT: The list starting just below letter G. The length of the trial is thought to take longer before a jury.

HAYNE J: I know that is a commonly stated view.

MR RAYMENT: It may not be correct.

HAYNE J: Exactly. The length of the trial, if it be longer, will commonly stem from the length of counsel's addresses rather than the length or difficulty of taking evidence. Taking evidence is commonly before a jury done with more attention to the rules of evidence and often with greater celerity than it is before a judge.

CALLINAN J: With very, very few reservations of questions of admissibility. They are ruled on straight away, and a whole lot of what turns out to be irrelevant and inadmissible evidence does not come near the court.

HAYNE J: And counsel are mindful of the fact they have to persuade the six citizens who are sitting in the box.

MR RAYMENT: Or whatever the number may be, yes.

McHUGH J: So you pitch your argument on the hypothesis that the jury are rational beings and not according to what you think are the prejudices of the judge.

MR RAYMENT: Well, for hundreds and hundreds of years our legal system has so assumed, many hundreds - almost a millennium. It is really not difficult to assert it, in our respectful submission.

KIRBY J: I suppose the underlying hypothesis is juries, looked at from the point of view of defendants, have more common sense and will not have a bias towards plaintiffs, but it is thought judges might have, is that the theory? Is that why defendants do not like a judge-alone trial? I would just like to know, because when I was a solicitor it was exactly the opposite.

MR RAYMENT: I do not know that you can put that all defendants would be in that position.

CALLINAN J: Well, you would be quaking in your shoes if you were a defendant before Judge Christie, because he would say that it was professional negligence on the part of the plaintiff to have a jury.

MR RAYMENT: Yes, and views are fashionable for one generation and not for the next sometimes.

McHUGH J: Well, the change has come about because of the expanded scope of liability in personal injury cases. As I once said, but was rapped over the knuckles by this Court, that in the field of employers' liability the borders of liability have almost moved to strict liability. In the old days it was very difficult to win cases from judges sitting alone, so plaintiffs prefer juries. As long as you could get your case to the jury you could win. But these days it is pretty easy to win on liability. The real issue is damages and juries tend to look at things in globo. They see what is a reasonable sum and that is what they award, whereas the judge gets out his calculator and he awards damages for this head and that head and for Fox v Wood components and this and that component and it all adds up and a judge reaches a figure which a jury thinks just wrong. When I went on the Court of Appeal I can tell you it was a big shock to me. I used to think jury verdicts were very low and finally I realised I was out of touch; that I had a set of values that just were out of touch with what the ordinary person was - - -

MR RAYMENT: A good case or a good advocate before a jury though can produce a big sum, as one knows, occasionally.

McHUGH J: Well, sometimes.

MR RAYMENT: Sometimes. Your Honours, in our respectful submission the question is really this: if, as we submit, the Court of Appeal was right to hold that the provision for someone in the jury conferred a prima facie right to a jury trial, if that forms part of the context in which one considers the discretion, then, in our respectful submission, the reasoning of the Court of Appeal in Pambula is unexceptionable. The answer proposed by your Honour Justice Kirby at 391G about the effect of the juxtaposition of these two provisions, and by Justice Samuels at 411E to G, we submit, is in accordance with usual canons of construction.

We would add, with respect, that what Justice Davies said about this matter in the case which we included in our list of authorities, Combined Excavations & Supplies v Bowis [2000] NSWCA 298 in paragraphs [84] and [85], acceptably describes substantially the same matter about the relationship between the relevant sections, and it properly explains the rationale, we submit, of the Pambula Case. That judgment was one in which the Chief Justice of New South Wales concurred, Justice Heydon dissenting. We would respectfully submit that that reasoning correctly analyses the relationship between the relevant sections.

The alternative view that one would be entitled to read the section completely at large and just on the, as it were - nothing inconsistent for the purposes of the enactment basis, disregarding any prima facie right, we submit, would not do justice to the evident statutory scheme, and the view that, for example, as a court administrator, one may prefer the interests of other litigants by knocking off a jury trial or two at the top, as Justice Samuels said, in order to promote the interests of a litigant waiting at the bottom of the list - he referred to that at 413F - would be outside the scope of the enactment.

Justice Cole - in Pambula, "The right to requisition the jury was entirely circumscribed by a discretion to dispense with a jury in every case." Your Honours, his Honour would clearly have usually dispensed with juries if you have regard to the views which are commonly expressed about the length of jury trials and the like. We submit if that was the intention, it would be as if the right to summon a jury trial was not there in the statute. They are the very factors which might have caused Parliament, if the same views were held there, to abolish juries altogether. It is a matter for Parliament, we would submit, if one is going to do away with juries altogether.

In this Court Justice Fullagar looked at converse provisions of the High Court Procedure Act in McDermott v Collien [1953] HCA 44; (1953) 87 CLR 154. His Honour took the view that it was the Parliament that settled the question of the primacy of the considerations with respect to whether there should be a jury trial in this Court at that time; prima facie there was to be a trial without a jury. That matter was not regarded as being within his discretion to consider. It was settled for him by the High Court Procedure Act, as his Honour said at 157, about line 10.

We would submit that the same view about provisions which have the same effect was taken in the Supreme Court of Victoria in State of Victoria v Psaila [1999] VSCA 193 in paragraph [24] in the judgement of Justice Brooking. That case which your Honour Justice Hayne has drawn attention to in [1969] VR I think is not referred to anywhere in that case under the current rules in Victoria, but those current rules in Victoria are held to create a prima facie right to a jury, subject to displacement by the court.

The judge in the case had on grounds not too dissimilar from those enunciated by Judge Christie in this case dispense with the jury and Justice Brooking said in paragraph [24] that if those were the grounds upon which the jury was dispensed with, all juries would be dispensed with. Justices Ormiston and Batt agreed with that holding that the discretion was wrongly exercised. We gave a reference to the relevant paragraphs in our written submissions about that matter.

KIRBY J: I notice that in that case in the Victorian Court of Appeal that a new trial before a jury was ordered.

MR RAYMENT: Was ordered, yes.

KIRBY J: Now, what was the reasoning that led Justice Brooking to that conclusion?

MR RAYMENT: It would seem to be the same as led Justice Handley and others below to order a new trial in this case.

KIRBY J: This was the resistance of supervisory appellate courts of the States to the disinclination of trial judges to proceed with a jury trial, because I see the judge is quoted on page 2 of that Victorian decision as saying:

What is the injustice to your client in having the matter proceed before me?

That might be how it is in Victoria but under the New South Wales Act it is really putting the boot on the other foot. Maybe that is the same in Victoria. Maybe that was the mistake that the trial judge - - -

MR RAYMENT: That was the mistake. That was the matter that was corrected on appeal, if one looks at paragraph [24] of Justice Brooking's judgment which is agreed in by the other members of the court. Indeed, the case is relevantly similar to the reasoning which commended itself to your Honour.

KIRBY J: That does not seem to - you will have to deal with this, both sides, in the written submissions - but what Justice Brooking says at [24] does not seem to square with the decision in Darrel Lea because their Honours there said, "Well, it doesn't really matter. At the end of the day, even if the judge made a mistake, you have got to look at a perfected judgement". Whereas here it seems that the Court of Appeal of Victoria took a different view rather similar to the New South Wales Court of Appeal.

MR RAYMENT: And it could be that this Court's judgment in Patton bears upon this issue, although the matter was not expressly mentioned here. Your Honours, a challenge is made to the particular application - - -

KIRBY J: I see at [25] there is a reference to Darrel Lea. His Honour says:

The case is to be distinguished from Darrel Lea . . . That was a case under the old Rules of Court.

I did not think Justice Brooking would miss any case, especially one of practice like that.

MR RAYMENT: This will clearly be relevant to submissions filed on both sides after today.

KIRBY J: Yes.

HAYNE J: The case seems to have gone off, does it not - see paragraphs [40] and [41] - on the basis that the trial judge should have been disqualified on account of ostensible bias?

MR RAYMENT: Yes.

HAYNE J: I may be misreading the reasons, but it would seem to me that the cases are argued about cases of ostensible bias and go off on that point.

MR RAYMENT: We will need to deal with this matter in writing. Your Honours, can I deal finally with some kind of submission made by our learned friend that even if Pambula is right, Judge Christie's orders could be supported. We would say the opposite is true. Even if Pambula is wrong, what Judge Christie did was insupportable, we would respectfully submit.

KIRBY J: You say that, but there was something particular in this case, and that is that there was a doctor from out of Sydney. I am not sure in the end whether it was Melbourne or Canberra.

MR RAYMENT: He was said originally to come from Canberra, but during the argument it seems it was pointed out he came from Melbourne.

MR IRELAND: He had rooms in both places.

MR RAYMENT: Whether he had rooms in both places, he - - -

KIRBY J: He might have been like Justices of the High Court with a practice in both places.

MR RAYMENT: Maybe, but I have looked at the intervention before Judge Christie in the supplementary appeal book in this case and his Honour seems to have been told that, in fact, he came from Melbourne. If he came from Melbourne, it would not matter whether the trial was in Queanbeyan or Sydney. One would think it might be more convenient for it to be in Sydney in terms of time for travelling from Melbourne.

CALLINAN J: But how much time and extra expense would have been involved anyway?

MR RAYMENT: No, quite.

CALLINAN J: Really, it just strikes me as ridiculous, frankly.

MR RAYMENT: Yes, and that, we respectfully submit, is a fair summary of the basis of the decision of the judge. It was insupportable, we would say.

KIRBY J: On one view it is not something that is just general to a mode of trial that Parliament posits and therefore that cannot be challenged because it is a mode of trial in New South Wales but it is an aspect that is particular to this case, that because it would be a jury trial, you would have to have the doctor and he would have to come from another place and be waiting around and that that adds considerably to cost, and if the jury is discharged for any reasons, it leads to certain inconvenience in this particular case.

MR RAYMENT: It must be the general run of jury trials, with respect. Medical evidence would often be called in such cases, as one knows. Really, it does not make the case exceptional, in our submission.

Your Honours, it has been submitted that even within Pambula the decision of the judge was wrong and we respectfully submit that Justice Heydon dealt with this matter correctly in Combined Excavations & Supplies v Bowis, in paragraph [41] where his Honour recognised that the decision in the present case squarely accorded with Pambula.

CALLINAN J: It was interesting the way Judge Christie put it. He did not say, "I feel impelled to exercise my discretion", or that - - -

MR RAYMENT: It was a line ball.

CALLINAN J: - - - well, no - "The circumstances lead me to it". He said, "I think in this particular instance I would be justified in exercising my discretion", as if he was looking for some justification to support his obvious, express disposition against juries.

MR RAYMENT: Disposition, that is so.

KIRBY J: In fairness to his Honour, he probably had in mind the tussle that has been going on for a decade between the Court of Appeal trying, as it saw fit, to uphold the mode of jury trial for those who elect it, and trial judges who do not like it often are not as frank as Judge Christie and try to get rid of the jury.

MR RAYMENT: May it please, your Honours, those are my submissions in the case.

GAUDRON J: Yes, thank you, Mr Rayment. Yes, Mr Ireland.

MR IRELAND: Can I just respond on one aspect, namely the reference to Bowis, if your Honours have it. What we put as the almost impossible question of characterisation which is generated by the decision in Pambula is interestingly demonstrated by the comments of the Court of Appeal upon this very case. At paragraph [57] in Bowis Justice Heydon says, after reference to other cases:

A question of characterisation thus arises in each case. Is the party opposing jury trial appealing to the inconvenience, delay or cost of a jury trial as such or to inconvenience, delay and cost arising from particular attributes of the particular case against the background of universal features of jury trial?

And his Honour goes on to say in paragraph [59]:

In my judgment there is nothing in Clifton Bricks Pty Ltd v Gerlach [2000] NSWCA 90 -

which is the present appeal -

which falsifies the above conclusions. In that case the primary judge dispensed with a jury:

And within paragraph [59], and this is the crucial remark:

If there were added costs and delays occasioned by the need to call witnesses from the country and interstate which were simply the particular consequences in that case of the general consequences of trial with a jury in every case, the reasoning is impeccable -

So it is a question of characterisation. If it were not the particular consequences of the general consequences in the case, then implicitly, in Justice Heydon's view, the reasoning is not impeccable. So it becomes a question of characterisation and a difficult question of characterisation in each case. Finally, could I ask your Honours to, without going to it - - -

KIRBY J: In your submission, leave aside Pambula, but given the general principle that the discretion must be exercised for the power for which it has been given, is there any way to avoid a characterisation that is posited by avoiding the exercise in a way that is just completely at large because of the whim of the judge and not targeted on the particular purpose for which the power of dispensation of jury trial is given under the statute?

MR IRELAND: In this present case?

KIRBY J: Generally, first of all.

MR IRELAND: The problem of the universal characteristics is that they eventually develop into a particular problem in the case, so one starts off with a spectrum and then one looks at the facts of the case and sees whether that particular characteristic that one started off as a general matter has matured into a qualifying matter for discretion. That is a question of characterisation. I just wanted to give your Honours - the other reference in Bowis is the Chief Justice, Justice Spigelman, at paragraph [13], he says the same thing:

Difficult questions of characterisation arise in the application of these distinctions. In my opinion, what is required is the application of a test such as that which Justice Samuels described in Pambula as "singular circumstances" or "specific difficulties". These are matters of fact and degree on which differences of opinion are to be expected. I do not propose this test as a universally applicable formula. I adopt these words as a convenient formulation to distinguish a case in which something more appears than the difficulties usually attendant on a jury trial.

Those are my respectful submissions.

GAUDRON J: Yes, thank you Mr Ireland.

MR IRELAND: Could I beg another day, on reflection, until - - -

KIRBY J: No, you said you could have it done.

MR IRELAND: I was not worried about what Justice Hayne had said. It was what Mr Rayment had said that I wanted to deal with more thoughtfully. But I just needed to look at the Victorian cases. Could I have until close of business, as it were, on Friday or Monday?

GAUDRON J: Monday.

MR IRELAND: I just want to be of some assistance and do it properly.

GAUDRON J: Yes, certainly. Say Monday with a further seven days to Mr Rayment to reply.

MR IRELAND: If your Honours please.

GAUDRON J: Yes. The Court will consider its decision in this matter and adjourn briefly to reconstitute for the next matter.

AT 11.37 AM THE MATTER WAS ADJOURNED