Mode of trial, sections 7 & 49 of Civil Procedure Act 2010; Crowe v Trevor Roller Shutter Services Pty Ltd [2010] VSC 536 (23 November 2010)

November 23, 2010 |

Earlier this week Beach J, in a preliminary ruling, declined to grant a defendant’s application to extend the period within which to pay jury fees (“green fees” in the old parlance) citing the principles in Aon Risk Services Australia Limited v Australian National University and the Civil Procedure Act 2010.


The Plaintiff’s endorsed writ sought a trial by jury (see [1]) . The Plaintiff did not make payment of first  day’s jury fee by the date previously ordered by Zamitt AsJ (see  [11])   The Defendant made application to extend the time within which jury fees could be paid ([11][12]).  The  Plaintiff applied to have the matter tried as a cause ([14]) on the basis “… of the time and cost involved in hearing the proceeding as a jury, compared to the time and cost involved in hearing the matter as a cause.”


While his Honur stated that “all other things being equal” he would be prepared to grant the Defendant’s application he was mindful of the time and expense of a jury trial compared to a cause.  He estimated that the former would take twice as long to complete (see [16]) because of:

(a) the time taken to empanel a jury;

(b) the plaintiff’s opening to a jury is usually substantially longer than the opening to a judge alone;

(c) all of the medical witnesses who are called must give evidence-in-chief – which evidence-in-chief usually more than doubles the length of their evidence when compared with the giving of evidence where the trial judge has read and digested the medical reports;

(d) a like point can be made in respect of other experts who may be called (for example, vocational experts (and in some cases) ergonomists, actuaries and engineers);

(e) time is taken with objections (sometimes necessitating the jury retiring while the objections or points are dealt with), where the same objections would not be taken in front of a judge alone;

(f) final addresses to the jury are longer than final addresses to a judge; and

(g) the charge to the jury has the capacity to add a further day to the trial.

Beach J cited commentary by French CJ  in Aon Risk Services Australia Limited v Australian National University when stating that “inefficiencies in the use of that resource need to be taken into account” (in exercising his discretion).

He further cited sections 7 and 49 of the Civil Procedure Act 2010 in support of his decision, stating at [18]:

“…Section 7 of the Civil Procedure Act defines the overarching purpose of the Act and the Rules of Court in relation to civil proceedings to be “to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute”. Section 49(3)(i) of the Civil Procedure Act, when it comes into force, will empower the Court to make any order it considers appropriate with respect to the mode of trial so as to further the overarching purpose.”

Beach J agreed with J Forrest J’s view in Thomas v Powercor Australia Limited that there was no reason to wait until the Act came into force to give effect to its objectives (see [19]) especially as these have been the aim of the modern courts for some time ([20]).

At [21] Beach J stated:

Court and judicial resources are scarce. We no longer have the luxury of allowing parties to run their cases for twice the length of time they would otherwise take simply because one party or the other prefers a particular mode of trial. In my view, where a court identifies substantial time and cost savings that can be made by changing the mode of a civil trial, then, in the absence of some compelling reason not to do so, the court is bound to change the mode of trial to the more efficient, timely and cost-effective mode.


This decision is quite significant as an early application of the principles of the Civil Procedure Act in the exercise of discretion as to mode of trial.  On a broader note it is an example of a more muscular approach the court may take in case management in the future.  Practitioners must factor in how the overarching purposes will impact on applications and the proposed mode of trial.  But also it is an early expression of the Supreme Court’s willingness to give effect to the operation of the Act.  The Act  has given the courts considerable powers in both management of cases and sanctions for non compliance with its provisions.  It is worth considering section 37M of the Federal Court Act 1976 (The overarching purpose of civil practice and procedure provisions) as a point of reference on how the Federal Court has considered similarly drafted provisions; in particular Fraser-Kirk v David Jones Limited [2010] FCA 1060 and Mijac Investments Pty Ltd v Graham [2010] FCA 896.

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