More juries, please … NSW barristers seek to shift control of personal injury trials away from judges … Claims that civil trials with juries are cheaper and quicker … More research needed … Campaign underway with luminaries in support … Turning back the clock … For and against 

IN 2001 the NSW government thought it was terribly modern to introduce a presumption against juries in Supreme Court and District Court civil trials. 

Today, the era of post-modernism is on our doorstep with the local bar council calling for the reintroduction of civil juries. 

From  being regarded as a slow and costly beast of yesteryear, juries are now seen as a sleek, efficient and inexpensive way to conduct civil litigation. 

What gives?  

At the time the 2001 amendments were introduced attorney general Bob Debus said they were “not intended to abolish civil juries”. 

Everyone at the time thought that sounded pretty convincing – civil juries were here to stay. However, the Court of Appeal and Mason P got their claws onto the amendment in the Maroubra Rugby League Club case and decided that “require” in the interests of justice had a very narrow meaning. The effect was to wipe out civil juries altogether (Defamation Act excluded).  

Sydney solicitor Timothy Kelly, who has done quite a bit of research on civil juries for personal injury cases and agitated for their return, says there has been a “de facto abolition of civil jury trials in NSW”, which will continue as long as the legislation remains in place. 

Research conducted by his firm showed that in 2013, without civil juries, the average period between the last hearing day and delivery of judgment was 23 weeks and in one case it was more than one-and-a-half years. 

The average for the same period of time in cases involving trials of seven days or more, in 2013, was more than six months, down from the comparable figure in 2012 of almost 12 months. 

Borrowing from other research Kelly added that there is a “far higher likelihood” of settlement in a case listed to be tried by a jury, than in one without a jury.  

Senior briefs are also on board. 

Ian Barker has urged the bar to sponsor a move to scrap the 2001 amendment. He wrote to then bar president Jane Needham in December 2014 and again in January 2015:  

“Experience has shown that the notion that jury trials cause unnecessary delays is a fallacy.” 

He pointed to a paper by Murray Gleeson where the Smiler claimed that the virtual disappearance of jury trials has increased the opportunity for unhappy litigants to attempt to reverse findings of fact. 

“The trial has now become a hearing at first instance with an implied promise of more to come until one part or the other has exhausted its available resources or its avenues of appeal.” 

Bret Walker also has weighed-in with a submission to the bar n’ grill, written in February last year, where he said he regrets that NSW “wrongly decided to treat civil juries as outdated and inefficient”. 

“In my opinion they are neither. Their likely influence on advocacy, courtroom paperwork and restrictions on appellate challenge combine to cast great doubt on the misguided modernism that has virtually eliminated civil juries in the state.” 

Further: 

“I see great merit in the bar council considering this project. It is a more promising direction for genuine improvement in civil litigation than any other I know. I would regard apprehended resistance from some quarters of the judiciary as more a reason for the bar to pursue such reform, than to let this error of history to continue.” 

Jeremy Gormly in February 2015 also wrote to the bar council to support the removal of “the clogs on access to civil juries”. 

Tellingly, one of his arguments was that the bar needed to recapture its patch – that civil juries would return more control of the trial process to the bar, and away from the bench. 

“The modern case managed hearing is such a trussed up, judicially controlled exercise that the scope and role of counsel has come to be more confined than is healthy even if for good administrative reasons. 

The judge has come to hold the stage in the modern common law court in a way that the advocate for a party used to do. That is an unhealthy development for the judiciary (and probably not one it sought), unhealthy for the bar, and I suggest, for the standing of the civil justice system.” 

Gormly added that juries act as a protection for everyone, “against systematic and administrative reforms aimed at justifiable goals (such as list control) but which have unintended consequences, including for the bar”. 

In June last year, retired District Court judge Tony Puckeridge also wrote to bar president Needham urging the bar council to get behind the push for more juries. 

However, the Puck added: 

“In individual cases and particularly in country sittings there may be good reasons to dispense with a jury …” 

See Kelly submission and letters from Barker, Walker, Gormley & the Puck  

The bar council has accepted this material and has put out the call for juries to be restored to personal injury cases. 

Whether the government is inclined to listen is another matter. They’re not listening too well on the QC submission. 

When asked did it have any research material that backed its case, bar officials pointed Justinian to two old studies on civil juries. 

One was from 1993 by then deputy Supreme Court registrar Joanne Harrison, now associate justice Harrison.  

She reported that jury matters settled earlier than non-jury trials, but there was evidence that jury trials did take longer to complete. 

According to Harrison the delay period from notice to set down for trial to finalisation, for non-jury matters, was three years and two months. Jury matters took 17 months longer. She added: 

“However, these figures may not be reliable as there may be too few matters included in the sample to extrapolate these figures.” 

She said that the cost to the court for holding jury trials was cost-neutral, when offset against jury requisition and retention fees. 

There was no clear evidence that the cost to the parties in a jury trial was materially cheaper. In fact, of the cases examined by Harrison it was $800 more expensive to run a jury trial than and a non-jury trial. 

“As the overall cost is around $27,000 to $28,000, the amount of $800 is insignificant,” she said.  

Clearly, Harrison’s findings are not a firm enough basis now to mount a campaign for the restoration of civil juries. More research needs to be done, particularly in the period before the 2001 amendment took effect and the following 14 years. 

Harrison Ass J has also provided a useful history of juries in NSW, here  

The bar also points to what is says is a supportive 1996 report from the Ontario Law Reform Commission, The Use of Jury Trials in Civil Cases. 

Again the argument was that jury trials result in more settlements and this frees everything up.  

Justice Gordon Wallace’s 1965 paper in the ALJ, Speedier Justice (and Trial by Ambush) set the cat among the pigeons and started the political moves to scrap civil juries. 

The insurance companies were also on the government’s back, because juries occasionally would hand down whopping damages verdicts. 

The abolition contagion spread and now South Australia, Western Australia, Queensland and the ACT are without juries for civil trials. In Tasmania and the NT civil jury trials are a matter for judicial discretion, although extremely rare. 

NSW, Queensland and WA retain jury trials for defamation cases, although it is the job of the judges to determine the awards of damages. 

In NSW, contrary to Smiler Gleeson’s idea about juries delivering finality, when meanings in defamation cases were decided by juries at separate section 7A trials, there were frequent appeals on the ground that the jury verdict was perverse or embarrassing. 

There are a number of other considerations. A large number of barristers have never run a civil jury trial; the Supreme Court has been redesigned without jury facilities; and there would have to be increased state funding, particularly for the Sheriff’s office. 

Importantly, in a world awash with publishing through social media, and an anarchic internet, criminal jury trials have become difficult to manage. The large volume of non-publication and suppression orders are a constant challenge to the principle of open justice, and this would magnify if civil cases also had to be wrapped in cotton wool.  

The NSW Law Society has not yet made up its mind about the advantages, if any, of civil juries. Society president, Gary Ulman told Justinian: 

“I’d be surprised if juries were quicker and cheaper.” 

It would surprise if this latest project of the bar’s took wing. There’s the sniff of an agenda that fresh research would uncover.