Victorian Supreme Court affirms the bar is high to remove a jury from a civil trial

The Victorian Supreme Court has emphasised in a recent decision that when a plaintiff elects to have their case heard by a jury, the bar to have the jury displaced is high.

Background

Footscray Football Club (Club), the defendant, applied under r 47.02(3) Supreme Court (General Civil Procedure) Rules 2015 (Vic) for a historical abuse negligence claim against it to be tried by judge alone, despite the plaintiff's election for a civil jury of six.

Issues

• Does extensive publicity from the related Footscray Football Club Ltd v Kneale [2024] VSCA 314 ('Kneale') litigation create a risk that a jury cannot fairly try this case?
• Does the Club's denial of duty and the assessment of salient features make a jury trial unworkable or risk inconsistent judge/jury findings?

Reasoning

O'Meara J emphasised the default position: emphasised the default position: once a plaintiff properly elects a jury, the bar to displace it is high. Convenience or even preference for a judge alone trial does not amount to good cause.   

Publicity issue

The Court was not persuaded that publicity from Kneale created an irremediable risk.

The High Court in Dupas v The Queen (2010) 241 CLR 237 (Dupas) has said '[t]here is nothing remarkable or singular about extensive pre-trial publicity… [its] unfair consequences… [are] capable of being relieved against by the trial judge, in the conduct of the trial, by thorough and appropriate discretions to the jury'.

The Club's attempt to confine Dupas to crime was therefore rejected. The Court held that aspects of its unanimous reasoning are of 'very great present significance'  to civil juries.

Additionally, the Court analogised Belbin (Ruling No 1) , citing Kaye J's observation that the jury's performance 'fully vindicates the faith'  courts place in juries. This supported the view that publicity and complexity can be managed and do not warrant displacing a jury.

Complexity Issue

The Court was 'quite confident'  both parties could obtain a fair jury trial through the use of appropriate judicial directions. The Club's 'human nature' argument (that jurors cannot or will not follow directions) was rejected. There was no ongoing media saturation, and any residual knowledge from Kneale could be addressed through standard empanelment questions and directions, consistent with Dupas.

The Court distinguished Gobbo  and Gunns  on complexity and notoriety.

As O'Meara J observed: 'The present circumstances are not likely to involve extensive complexities of the kind considered in [those] cases… it is simply a negligence claim'.  

There was no multiplicity of parties, sprawling pleadings, or extraordinary notoriety that justified judge-alone trials like those in Gobbo or Gunns.

The Court held that novel duty and salient features are manageable with a jury, and described any risk of inconsistent findings as speculative, not concrete. The Court acknowledged that legal questions – such as the existence or scope of a duty – can be appropriately sequenced after the jury's determination of factual matters.

The Court further noted:

'In practice, there can be multiple avenues… by which the issue [of duty] might be determined whilst at the same time observing the delineation between the respective functions of the judge and jury'.  

Moreover, there are 'largely or wholly issues of fact…[including] "in respect of the issue of control [over the premises]" … that might be able to be determined by a jury, properly instructed'.

Bottom Line

The bottom line was 'the Club's contentions… do not… amount to the demonstration of "good cause".'  The Club failed to point to practical, unworkable trial management consequences.

Key takeaways

• There is a high bar to displace the jury, must require a 'good cause'.
• Directions can cure even notorious coverage, unless publicity is extreme and ongoing.
• Complexity must be exceptional, a single-plaintiff negligence suit is 'not likely to involve extensive complexities'  justifying judge-alone trial.
• There are 'multiple avenues or means'  to manage judge/jury roles on duty, such as sequencing questions of law after the jury's factual findings.
• Courts maintain faith in juries' ability to navigate complexity and follow instructions, as reinforced by Belbin.

Authors

Cameron Roberts | Partner | +61 3 9641 8696 | croberts@tglaw.com.au

Hannah Sowdon | Partner | +61 3 9641 8840 | hsowdon@tglaw.com.au

James Cheng | Law Graduate

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