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Cite as: April 2011 85(4) LIJ, p.62

Entitlement to trial by jury in civil cases

Trevor Roller Shutter Service Pty Ltd v Crowe [2011] VSCA 16 (unreported, 10 February 2011, No S APCI 2010 0151, Warren CJ, Nettle and Ashley JJA).

The plaintiff/respondent claimed damages from the defendant/appellant for injuries alleged to have been suffered by the plaintiff during the course of his employment with the defendant.

The plaintiff had given notice requiring trial by jury. The defendant had filed a notice of trial by jury.

On the trial of the proceeding, the first day’s jury fees remained unpaid. Orders had previously been made in relation to the payment of those fees. Counsel for the plaintiff submitted to the trial judge that the defendant did not have the option of paying the fees itself. In counsel’s submission, when a trial date is fixed, if the defendant wishes to have a jury it must put the plaintiff in funds to pay the jury fees.

The trial judge decided that the proceeding should go to trial as a cause. The defendant sought leave to appeal that decision and leave to appeal was granted and it was ordered that:

“With effect from the completion of final addresses in the trial below, there be a stay of further proceedings until the hearing and determination of the appeal”.

The trial continued and the trial judge reserved his decision pending the hearing and determination of the appeal.

The Court of Appeal noted the relevance of the following provisions:

“Rule 47.02(1) of the Rules provides that:

  • A proceeding commenced by writ and founded on contract (including contract implied by law) or on tort (including a proceeding for damages for breach of statutory duty) shall be tried with a jury if –
  • the plaintiff in the writ or the defendant by notice in writing to the plaintiff and to the Prothonotary within 10 days after the last appearance signifies that the plaintiff or the defendant (as the case requires) desires to have the proceeding so tried; and
  • the proper jury fees are paid.
  • Any other proceeding shall be tried without a jury unless the Court otherwise orders.
  • Notwithstanding any signification under paragraph (1), the Court may direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury.
  • Trial with a jury shall be with a jury of six.

“Rule 47.03 provides that:

  • If a proceeding is to be tried with a jury, the proper jury fees shall be paid by the plaintiff.
  • If a proceeding is to be tried with a jury because the defendant so signified by notice in writing, the proper jury fees shall be paid by the defendant to the plaintiff within 14 days after a date is fixed for the trial of the proceeding.
  • In case of default under paragraph (1) or (2), the Court may order that the proceeding be tried without a jury.

“Section 24 of the Juries Act provides that:

  • A party requiring a civil case to be tried by a jury must pay the prescribed fee –
  • if the case is to be tried in the Supreme Court, to the Prothonotary; and
  • if the case is to be tried in the County Court, to the registrar of that court.
  • The party that required a civil case to be tried by a jury must pay to the prothonotary or the registrar (as the case requires) the prescribed fee for a jury for the second and each subsequent day of the trial.
  • Subject to subsection (4), the fee required to be paid under this section for the second and each subsequent day of a trial must be paid before the trial resumes on the day in respect of which the fee is payable.
  • The court may extend the time for payment of a fee required to be paid for any day of a trial, but not beyond the end of that day.
  • If the prescribed fee is not paid by any party by the time required for payment, the court must discharge the jury and continue to hear and determine the case without a jury.
  • If, on the last day of a trial, the jury serves for more than 8 hours, the party that is required to pay the fees for the jury for that day must pay a further day’s fee for the jury before the end of the next day on which the court is open for business.
  • If a party cancels a requirement for trial by a jury not less than 14 days before the trial is listed to commence, a refund of the fees paid under this section less prescribed administrative expenses may, on application, be made to the party and the Consolidated Fund is, to the necessary extent, appropriated accordingly.
  • No fees are payable if the court, on its own motion, orders that a jury is required in a civil trial”. [3]-[5]

The Court of Appeal noted:

“During the course of oral argument before this Court, a question arose for the first time as to the validity of Rule 47.03(2). Counsel were invited to address the apparent inconsistency between the requirement in Rule 47.03(2), that a defendant requiring a trial by jury pay the amount of the jury fees to the plaintiff, and the requirement in s24(1)(a) and (2) of the Juries Act 2000 (‘the Act’, for the purposes of this part of our reasons), that a defendant requiring a trial by jury pay the jury fees to the Prothonotary. Ultimately, counsel for the appellant contended, and counsel for the respondent accepted, that those requirements are inconsistent with, and thus prevail over the requirement in Rule 47.03(2).

“In our view that concession was properly made; but the matter is not of any consequence. The judge may have concluded that Rule 47.03(2) applied in the circumstances. If he did, then in our opinion, he erred. The true position was that Rule 47.03(2) had no application in the circumstances. The situation was governed solely by s24 of the Act.” [14]-[15]

Rule 47.03(2) did not apply given that the plaintiff had given notice of trial by jury. The defendant was, therefore, not a party to whom r47.03(2) applied. [21] The sub-rule by intent applies only to the situation where a defendant – but not the plaintiff – has signified a requirement of trial by jury. [21] Therefore it followed that “no question arose of the defendant being out of time under Rule 47.03(2) to pay the first day’s jury fees – because Rule 47.03(2), did not apply”. [27]

Moreover, no question arose of the defendant being out of time under s24 of the Juries Act “because, in the absence of an applicable rule, it was implicit in s24 that the defendant was able to pay the first day’s jury fees at any time before the trial began. The defendant did not need to make an application for extension of time to pay the first day’s fees, and thus it was not correct to say, in the circumstances of this case, that if the defendant were to have a trial by jury an order under s24(4) needed to be made. By recourse to s24(5) it was able to pay the fees for the first day of trial – which we take to have been 23 November, notwithstanding that there had been a brief hearing culminating in an adjournment on 22 November – before the trial began. Only if the defendant did not make payment before the trial commenced could the occasion have arisen for it to apply, under s24(4), for an extension of time to pay to day’s end”. [27]

Nothing, however, really turned on any misapprehension of the effect of the provisions mentioned. Rather, the trial judge decided that the defendant should not have the opportunity of an extension of time to pay the jury fees and that the proceeding should proceed to trial as a cause “by reference to what the judge conceived to be ‘trials of this kind’ (namely, trials of actions for damages for personal injury), rather than according to the particular facts and circumstances of this case”. [29]

The Court of Appeal was of the view that the trial judge’s discretion was to be exercised by reference to the particular facts and circumstances of the case. [36] This approach had not been adopted by the trial judge. There was a prima facie entitlement to trial by jury. Perceived cost and efficiency considerations should not of themselves be determinative.

The High Court’s decision in Aon Risk Services Australia Ltd v Australian National University (2009) 235 CLR 175 on the importance of giving effect to the overriding objective (see, as an example, r1.14), concerned as it was with whether a court should give leave at a late stage in a proceeding to amend pleadings and adjourn the trial of a proceeding, could not determine the question of whether there was an entitlement to trial by jury. Nor could the provisions of the Civil Procedure Act 2010 (Vic) which came into effect on 1 January 2011 affect the matter.

There remained the question whether the Court of Appeal should interfere with the exercise of the trial judge’s discretion on the basis that not to do so would give rise to a substantial injustice. As to this, the Court said:

“Counsel for the appellant submitted that it would be unfair to the appellant to refuse to intervene, because it would leave the appellant without a remedy in circumstances where it had acted fairly and responsibly in seeking no more than the limited stay which was granted. Such a limited stay, he said, was calculated to ensure that, if the appellant failed to establish that the judge erred in ordering trial by judge alone, the plaintiff would not lose the benefit of the order or trial and be subjected to more costs than was necessary. The appellant should not be prejudiced, he submitted, as a result of having acted beneficently.

“We do not think that submission to be persuasive. If the appellant had wished to preserve its entitlement to trial by jury, it should have applied to the judge, forthwith after the judge made the order for trial by judge alone, for an interim stay of proceedings to enable the appellant to apply to this Court for leave to appeal and an interlocutory stay of proceedings. As it was, no matter how beneficent the appellant’s motives may or may not have been, the appellant acquiesced in the trial continuing until completion, and thus in the respondent incurring all the financial costs and emotional burden of conducting the trial. The situation now, therefore, is tantamount to that which the High Court decided in Gerlach [Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478] is not productive of substantial injustice”. [51]-[52]

The appeal was dismissed.

As an aside, readers should note the Victorian government has announced that the pre-proceeding provisions in the Civil Procedure Act 2010 are to be repealed.

PROFESSOR GREG REINHARDT is executive director of the Australasian Institute of Judicial Administration and a member of the Faculty of Law at Monash University, ph 9600 1311, email The numbers in square brackets in the text refer to the paragraph numbers in the judgment. The full version of this judgment can be found at


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