Voluminous documents do not necessarily displace a party’s right to elect a jury in a Civil trial

In Silver v Amaca Pty Ltd,[1] the defendant applied under s 65A of the Jury Act 1995 for an order that the trial proceed without a jury because it would require a prolonged examination of records.

On 28 August 2020, the Supreme Court of Queensland dismissed the defendant’s application because lengthy documents are insufficient per se to satisfy s 65A(a) of the Jury Act 1995. The Court concluded that further factors should be considered, such as the length of the parts of the documents that the parties intended to rely upon and whether an ordinary jury could understand the issue.

Principle

The right to a jury is a procedural right governed by Rule 472 of the Uniform Civil Procedure Rules 1999, which provides that unless an Act excludes trial by jury, a plaintiff in their statement of claim or a defendant in their defence may elect trial by jury.

Trial by jury is excluded in proceedings for personal injury damages by s 73 of the Civil Liability Act 2003. However, this section does not apply when damages sought resulted from a “dust-related condition”, such as injury of the disease of mesothelioma.[2]

Additionally, the right to elect trial by jury in civil proceedings can also be limited by the Court if any or both conditions of s 65A of the Jury Act 1995 are satisfied: (a) the fact that the trial requires a prolonged examination of records; or (b) it involves any technical, scientific, or other issue that could not be conveniently considered and resolved by a jury.

The case

In September 2018, Mr Silver started an action against Amaca Pty Ltd seeking damages for personal injuries caused by its negligence. Mr Silver claims that he contracted malignant pleural mesothelioma (cancer) because of exposure to asbestos dust and fibres when he renovated part of his home and disturbed asbestos products made by Amaca.[3] When he commenced proceedings, he elected trial by jury.[4]

Amaca applied for an order that the trial proceed without a jury under s 65A(a) of the Jury Act 1995, on the basis that the trial would involve three sets of documents – Reid documents, medical reports, and statement of claim – which would be lengthy and complicated for a jury to examine.[5]

The Findings

The Court analysed each set of documents mentioned by Amaca in its application and concluded:

  • The mere fact that many documents might need to be placed before a jury is insufficient for s 65A(a) to apply.[6] The test is whether a “prolonged examination” of such documents will be required.[7] While an individual document might have thousands of pages, what is examined are the parts of the document that the plaintiff intends to use to support their case.[8] In this case, the Court found that the parts of the ‘Reid documents’ and ‘statement of claim’ which the plaintiff relied upon were not long enough to require trial without jury, saying that needing to read extracts from documents of less than ten lines does not justify exclusion of a jury from a civil trial.[9]
  • Regarding the expert medical reports, the Court concluded that a 150-page document did not satisfy s 65A(a) of the Jury Act 1995, nor did the fact that those documents required cross-examination of the authors and careful consideration by a jury.[10]
  • The Court expressly confined its decision to s 65A(a) of the Jury Act 1995, as that was the defendant’s application.[11] Subsection (b) of s 65A, which refers to the legal or factual complexity of the case, was not considered.

Commentaries

  • This decision confirmed the relevance of the right to a jury, despite its procedural nature, as highlighted in Coronis v Jilt Pty Ltd.[12] In that case, Judges McMurdo and Wilson concluded that there was a public interest in maintaining public participation and public confidence in the justice system by using juries in civil cases. Therefore, judges should not lightly remove a civil litigant’s right to trial by jury.[13]
  • This decision also confirmed the decision in Smit v Chan.[14] The applicant must first establish the factual existence of the preconditions in section 65A of the Jury Act 1995. The Court will then weigh these inconveniences against the significant consideration that a party has a right to elect trial by jury.
  • This decision cautioned that even though voluminous documents may indicate that a case involves complex and legal factual issues, the applicant must then argue that s 65A(b) applies.
  • Combining the analysis in Smit v Chan, Mizikovsky v Queensland Television Ltd & Ors,[15] and Silver v Amaca Pty Ltd, the following may be used to argue the factual existence of the preconditions in section 65A of the Jury Act 1995:
  1. If there is physical inconvenience in handling large bundles of documents.
  2. If the extracts of the document on which the parties intend to rely are lengthy.
  3. If the expense involved in the trial will be significantly increased, or
  4. If there is a risk that an ordinary jury may not sufficiently understand the issues.

[1] [2020] QSC 266.

[2] Civil Liability Act (Qld) Part 2(5)(1)(c), Schedule 2.

[3] Silver v Amaca Pty Ltd [2020] QSC 266 [1] (‘Silver v Amaca Pty Ltd’).

[4] Ibid.

[5] Ibid [3]-[8].

[6] Ibid [6].

[7] Ibid.

[8] Ibid.

[9] Silver v Amaca Pty Ltd [6], [8].

[10] Ibid [7].

[11] Ibid [10].

[12] [2013] 1 Qd R 104; [2012] QCA 66.

[13] Coronis v Jilt Pty Ltd [2013] 1 Qd R 104; [2012] QCA 66, [45] (McMurdo P), [80] (Wilson AJA).

[14] [2003] 2 Qd R 431, [32].

[15] Mizikovsky v Queensland Television Ltd & Ors [2011] QSC 205.

Written by Eduardo Cruz & Marisol Tobon

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