Messade v Baires Contracting Pty Ltd (Rulings Nos 2,3 & 4) [2011] VSC 75 (10 March 2011)

March 22, 2011 |

In the recent decision of Messade v Baires Contracting Pty Ltd (Rulings Nos 2,3 & 4) [2011] VSC 75 Justice Forrest made rulings arising out of an error ofcounselcounsel and the highly unusual circumstance of jurors finding themselves in the vicinity of a party outside the court during a trial .


The first issue was the failure of counsel for the defendant to put findings/conclusions contained in the defendant’s psychiatric report to the psychiatrist engaged by the plaintiff  so as to compyl with the rule in Brown v Dunn.  Upon  realising her error counsel made application to recall the defendant’s expert. This application was resisted by the plaintiff.  The plaintiffs expert witness was most reluctant to attend again.

The second issue was whether it was appropriate in all the circumstances to discharge a jury because of inadvertent contact between three jurors and the plaintiff during the course of a trial.  There was no suggestion that the plaintiff sought out the jurors or had a conversation with them. The contact, on two occasions,was confined to the three juror finding themselves in the vicinity of the plaintiff while all were waiting for a train at Flagstaff Station. The jurors volunteered this information to the Judge’s associate out of an abundance of caution. An enquiry was made by his honour in the presence of counsel for both parties.


Browne v Dunn

His Honour, at [6], set out the ruling in Brown v Dunn which is always worth recounting:

If you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and a fair dealing with the witnesses.

In determining an application to recall a witness so as to put matters under the Brown v Dunn rule his Honour regarded the guiding principles, as set out in Bulstrode v Trimbleas as being:

  • the rule is designed to achieve fairness is fairness to witnesses and a fair trial between the parties; and
  • the rule relates to weight and cogency of evidence

His Honour referred to in extracted part of the decision of Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation, [8] , where the court was of the view that where during a trial counsel may not have been aware of material which should have properly been put to a witness that witness should be recalled. Forrest J regarded the first aspect of the rule in Brown v Dunn as being enlivened here. While he recognised the circumstances were different to those of Allied Pastoral he regarded it was necessary to prevent the fairness of the trial being frustrated for the plaintiff’s experts to be further cross-examined. He granted the application although the plaintiff’s expert was permitted to be examined by teleconference.

Discharge of jury

His Honour set out the circumstances giving rise to the application to discharge the jury, at [12] – [14]. The transcript of his enquiry of a juror is extracted at [15]. He was exceedingly troubled by the application, [20], because he was not convinced that the contact by the plaintiff was intentional. He set out the appropriate test as being, at [25]:

..whether the trial judge is satisfied that in all the circumstances and taking into account;

(1) his or her power to give appropriate directions to the jury; and

(2) the jurors own belief in their ability to return a fair verdict on the evidence alone –

the jury will act fairly and impartially in determining the assessment of the plaintiff’s damages.

In this case he was unable to be so satisfied. The focus of his concern was one of the jurors comment that she felt a little intimidated. His Honour was of the view that notwithstanding higher court injunctions that proper jury directions should be sufficient to cure the damage such directions were not sufficient here because of the direct contact between a juror and the plaintiff, [28], and the nature of the task that the jurors have to undertake.

The issue then was whether the trial should proceed as a cause or should a new trial be ordered. The  principles are found in Gunns Ltd v Marr which he set out as follows:

(a) Subject to compliance with the Rules of Court a party is entitled, to seek trial by jury provided the claim is founded in contract or in tort. (b) For that entitlement to be enlivened, it is necessary for the party seeking trial by jury to comply with the procedural requirements of r 47.02(1)(a) and (b); otherwise the trial will be before a judge sitting alone (absent an order of the Court to the contrary). Part 6 of the Juries Act 2000 (Vic) provides the statutory basis for the conduct of the trial by jury.

(c) Where a party has given notice regularly that a trial by jury is required that will be the prescribed mode of trial… unless the Court is persuaded to dispense with the jury.

(d) Notwithstanding the right of a party to opt for a jury trial, there resides in the court an overriding discretion to determine the mode of trial, regardless of the wishes of the parties.

(e) A Court may at any stage of a proceeding direct a trial without a jury if it is satisfied that it should do so.

(f) As a general rule in this State (where civil juries are still the norm in tortious injury and defamation litigation), juries should be regarded as capable of dealing with issues of legal complexity as well as difficult issues of fact.

(g) The onus in persuading a Court to dispense with a jury trial rests upon the party making that application. A court will not lightly make such an order, given the right of the other party to seek trial by jury. (I shall amend the word right to an entitlement). There must be some special reason to do so.

(h) The considerations which may influence a court to dispense with a jury trial are unfettered; the discretion may be exercised where it is warranted by the dictates of justice.

(i) Subject to the statement of general principle set out in (h), in determining whether to accede to an application to dispense with the jury, the following matters may be relevant.

– the complexity of the factual matters that the jury will need to consider – the complexity of the legal issues relating to liability, particularly where the claim involves consideration of multiple causes of action and multiple defendants

– the complexity of the jury’s task in relation to the assessment of damages

– the potential duration of the trial (although this, of itself, could never be the determining factor)

– the stage at which the proceeding or trial has reached

And those will be set out in the judgment, the one relevant for the purpose, immediate purpose of this ruling, is the stage at which the proceeding or trial is reached.

(j) A decision as to the mode of trial (by a judge alone or by jury) cannot of itself amount to a miscarriage of justice as whichever form is a trial according to law.

His Honour also referred to the recent Court of Appeal decision in Trevor Roller Shutter Service Pty Ltd v Crowe where the court stressed that a party has a prima facie entitlement to a trial by jury and should not be so deprived without good cause. Their Honourst rejected the rationale adopted by the trial judge below (which I blogged here) that a cause is more efficient or time effective than a jury trial. In any event it is not a relevant factor to deprive a party of his/her entitlement to trial by jury.

His honour noted that the credit of witnesses was a critical issue. He described that as a quintessentially jury task, [42]. The ultimate determinant however was that a party seeking a jury trial is entitled to such a trial absent any greater countervailing consideration which in this case he identified was the saving of costs and the effect on the administration of justice. Those countervailing factors were not sufficient in this case. He ordered a new trial.


Failing to comply with the rule in Brown v Dunne where there are competing experts can fatally weaken a case.  Forrest J’s ruling is very useful as a reference  if the need arises to make such an application.  His detailed ruling on the discharging a jury and whether to proceed as cause  is also a very useful summary of the law in the infrequent but dramatic instances where there is such a controversy.


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