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- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
Silver v Amaca Pty Ltd  QSC 266
LARRY ANDREW SILVER
AMACA PTY LTD (formerly James Hardie & Coy Pty Ltd)
(ACN 000 035 512)
BS No 9955 of 2018
Supreme Court of Queensland
Orders made 28 August 2020
Reasons delivered 1 September 2020
28 August 2020
JURY – OTHER MATTERS – where the plaintiff commenced an action against the defendant seeking damages for personal injuries caused by the negligence of the defendant – where the plaintiff elected trial by jury when commencing proceedings – where the defendant applied under s 65A(a) of the Jury Act 1995 for an order that the trial proceed without a jury – where the defendant argued that three sets of documents that are to be put into evidence will be lengthy – where orders were given on 28 August 2020 dismissing the application with reasons to follow – whether the trial “requires a prolonged examination of records”
Jury Act 1995, s 65A
King v Amaca Pty Ltd  VSC 433, cited
G O’Driscoll for the applicant/defendant
M Grant-Taylor QC and D Cormack for the respondent/plaintiff
Holman Webb for the applicant/defendant
Bennett & Philp for the respondent/plaintiff
- On 14 September 2018, the plaintiff commenced an action against the defendant seeking damages for personal injuries caused by the negligence of the defendant. Mr Silver claims that he contracted malignant pleural mesothelioma as a result of exposure to asbestos dust and fibres when he renovated part of his home and, in doing so, disturbed asbestos products made by the defendant.
- When the plaintiff commenced proceedings, he elected trial by jury.
- The defendant applied under s 65A of the Jury Act 1995 for an order that the trial proceed without a jury. On 28 August 2020, I dismissed that application. These are my reasons for doing so.
- The defendant confined its application to s 65A(a) which provides:
“A court may order a civil trial without a jury if the trial—
- (a)requires a prolonged examination of records …”
- The basis for the defendant’s argument on this point is that there are three sets of documents which will be lengthy.
- The first set was called the “Reid documents”. It bore that name because the documents consisted of the notes and observations of Andrew Reid who, in 1912, had bought the business which later became known as James Hardie & Coy Pty Ltd. Those documents are relied upon by the plaintiff for the purpose of establishing that the defendant was aware of the serious problems which can be caused by exposure to asbestos. There are some 1,135 pages of documents in this set. The mere fact that a large number of documents might be required to be placed before a jury is insufficient to attract s 65A(a). The test is whether there is a requirement that there be “prolonged examination” of such documents. On the material which was put before me, it appears that, while there will be over a thousand pages of documents which might be tendered, it will only be select parts of those documents which will be relied upon. In the most recent statement of claim, the extracts relied upon are pleaded and they rarely exceed 10 lines.
- The second set of documents consists of expert medical reports. These should not exceed about 150 pages in total. The authors of the reports will be cross-examined and there will be a need for careful consideration of those reports but not an examination which is prolonged to the extent that an ordinary juror cannot deal with it.
- The third set consists of documents which are referred to in paragraph 9 of the most recent statement of claim. These are documents relied upon by the plaintiff to demonstrate that the defendant knew that their asbestos-containing building products were capable of causing severe injury or death. The particulars provided to support that allegation consist of a series of documents, commencing in 1930, in which there have been statements made by persons apparently qualified to make them, about the dangers of asbestos and exposure to asbestos. Again, this is somewhat similar to the Reid documents in that while an individual document might be lengthy and complex, the plaintiff seeks to rely on only a part of the document specific to the allegations in this case. The defendant could not direct me to any document which might require prolonged examination.
- I am not satisfied that the applicant/defendant has established that there will be the “prolonged examination” referred to in s 65A(a) which would allow an order to be made that the trial proceed without a jury.
- I note that cases similar, in a number of respects, to this case have been tried with juries in other jurisdictions. I also note that in cases such as King v Amaca Pty Ltd, an application for a trial to proceed without a jury has been refused, in that case, on the basis that the case involved complex legal and factual issues. That was not the argument advanced on this application.
- The orders I made on 28 August 2020 were:
- (a)Application dismissed.
- (b)The defendant to pay the plaintiff’s costs of the application.
 VSC 433.
- Published Case Name:
Silver v Amaca Pty Ltd
- Shortened Case Name:
Silver v Amaca Pty Ltd
 QSC 266
01 Sep 2020
- White Star Case:
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 266||01 Sep 2020||Application for trial by jury; application dismissed: Martin J.|