5. Civil Procedure

K.  Trials by judge alone

 i.  Legislation

​As of the last update, we are not aware of any COVID-19 related legislation in this area.  Existing legislation allows for trials of civil proceedings, which might otherwise proceed before a jury, to be tried by judge alone.

ii.  Case law

In Mulquiney v Reynolds and Anor (Ruling No 1) [2020] VSC 119, the Supreme Court of Victoria identified certain considerations relevant to determining whether a common law trial should proceed by judge alone, in circumstances where it had been fixed for trial by jury and the Court had suspended all jury trials in response to COVID-19 (see [3]-[5], [8]-[9]). In granting an application by the plaintiff for a trial by judge alone under r 47.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), the Court placed weight on the following considerations (see [7]-[8]):
​
  • that the proceeding merited an expedited trial and had already been granted one;
  • that the unprecedented nature of the COVID-19 crisis meant that it was totally uncertain when the trial could proceed by jury and the case would be competing with many other cases for a hearing date;
  • that it would not be unjust to either party for the case to proceed by judge alone;
  • that there may have been injustice to the plaintiff caused by the delay and uncertainty that would result from the case not proceeding; and
  • the public interest in the disposition of cases in an orderly, timely and cost-effective way (in light of the overarching obligation in s 7 of the Civil Procedure Act 2010 (Vic)).

Mulquiney was cited with approval, and followed, in Wells v Cossari [2020] VCC 512. In that case, in exercising its discretion to allow a defamation case to proceed as a cause, rather than by jury, the County Court took into consideration ([18]):
​
  • that there was no reason why the case was required to proceed before a jury; 
  • the delay that would result from the case not being able to proceed in 2020 and the stress and concern the defendant would experience, during that time, about ongoing damage to his reputation; 
  • the overarching purpose of the Civil Procedure Act 2010 (Vic) to achieve a just, efficient, timely and cost-effective resolution of the real issues in dispute; and 
  • that the Court had the capacity to hear the trial as a cause and that that mode of trial would enable the case to be heard “equally justly” and without the need for a lengthy adjournment.

​The Court also noted that the factors usually considered by a court in deciding whether to dispense with a jury are irrelevant to an application to dispense with a jury that arises solely as a consequence of the indefinite suspension of new jury trials because of COVID-19 (Wells v Cossari [2020] VCC 512, [12]).  ​That decision was upheld on appeal, in Cossari v Wells [2020] VSCA 133, [30]-[39], in which the Court of Appeal rejected the proposition that jury trials are the preferable mode of trial in defamation proceedings and, accordingly, that such proceedings must proceed by that mode: Cossari v Wells [2020] VSCA 133, [33]. 

The Court further observed: "… the proposition that juries are somehow to be preferred in cases which involve a conflict about the natural and ordinary meaning of words is not, and cannot be, one of universal application. Each case must be determined on its own facts and circumstances, and in the particular circumstances that the parties and the Court find themselves in at the relevant time": Cossari v Wells [2020] VSCA 133, [33].  

The above passage was cited with approval in Gatto v Australian Broadcasting Corporation [2020] VSC 420, in which the Court considered the fact that the major issues in dispute in a defamation proceeding would necessarily be determined by the trial judge to be a significant consideration weighing in favour of the Court exercising its discretion to direct that the trial proceed by judge alone: [38]. 

In exercising its discretion in that case, the Court also had regard to:
  • the increased need to make efficient use of court resources, in circumstances where time to accommodate the trial had already been allocated, civil jury trials had been indefinitely suspended and the conditions of the pandemic were worsening in Victoria ([34]);
  • that a lengthy and indefinite adjournment of the trial would be contrary to the overarching purpose of the Civil Procedure Act 2010 (Vic) ([36]); and
  • that, for over 12 months, the defendants had been operating under the assumption that the trial would proceed by judge alone – the plaintiff having consented (through his representatives, albeit by mistake) to orders for a trial by judge alone – and they would be prejudiced by an indefinite and length adjournment, with such extending beyond costs thrown away ([39]).