Coronis v Jilt Pty Ltd[2012] QCA 66

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  The appellant, Irene Coronis, brought an action in the District Court at Cairns against the first respondent, Jilt Pty Ltd, and the second respondent, Leslie James Williams (the director of the first respondent), arising out of the sale of her premises at 178 McManus Street, Cairns, to Jilt Pty Ltd for $170,000.  She alleged the parties made a collateral oral agreement at the time of the sale.  She claimed it allowed her to continue to occupy the premises after settlement rent-free for 12 months with an implied condition as to quiet enjoyment.  It also gave her, she claimed, an option to re-purchase the premises within three years for the sale price plus Mr Williams's outlays so that he would not be out of pocket.  She contended that Mr Williams had breached this collateral contract and was guilty of unconscionable conduct in denying its existence.  She claimed damages for breach of contract and unconscionable conduct, including exemplary damages.  She also contended that Mr Williams had committed the tort of malicious prosecution in falsely complaining to police that she had stolen fixtures from the premises.  Both respondents defended the claim.  Jilt Pty Ltd[1] counterclaimed seeking damages from Ms Coronis for conversion; breach of the tenancy agreement; unpaid rent; mesne profits; and restitution for use and occupation.  After a five day trial in which Ms Coronis was self-represented, his Honour Judge Harrison dismissed her claim and gave judgment in favour of Jilt Pty Ltd on its counterclaim in the sum of $8,510 together with interest. 

[2] Ms Coronis, who has remained self-represented, has appealed on the following grounds:

"A.The [appellant] did not receive a fair trial.

B.The learned trial judge erred in not considering or adequately considering the action for malicious prosecution.

C.The learned trial judge erred in not considering the order of Judge Wilson DCJ (as he then was) and the final amended statement of claim was drawn up in accordance with his instructions, particularly deleting paragraphs as directed.

D.The learned trial judge erred in not applying Justice Wilson’s findings, upon which the [appellant] relied, and if necessary amending the pleadings according to the UCPR rules.

E.The learned trial judge erred in law and fact in relation to malicious prosecution.

F.The learned trial judge erred in fact and law in his application of unconscionable conduct of the circumstances of the [appellant's] case.

G.The learned trial judge failed to consider all the facts and inferences that the [appellant] relied upon.

H.The learned trial judge erred in logic by failing to consider all relevant and conflicting evidence.

I.The learned trial judge erred in failing to enter judgement (sic) in favour of the [appellant] in the sum of $120,000.00."

[3] These grounds of appeal did not clearly tally with Ms Coronis's written outlines or oral submissions which she made by telephone link from Cairns.  She supplied this Court only with selected portions of the transcript of evidence.  I infer that these are the only parts of the trial transcript which she considers relevant to her appeal.  I apprehend from Ms Coronis's submissions and the grounds of appeal that she has five principal contentions.  First, Judge Harrison erred in not allowing her to have a trial before a jury.  Second, his Honour erred in not allowing her husband and barrister, Mr Bradshaw, to appear for her or to assist her at trial.  Third, his Honour erred in not giving proper consideration to an earlier order made by his Honour Judge Alan Wilson SC (as his Honour then was).  Fourth, his Honour's findings on the malicious prosecution case were not open.  Fifth, Ms Coronis contends that Judge Harrison erred in his factual findings. 

[4] Before discussing these contentions, it is necessary to set out something of the history of this matter, and of both Judge Wilson's and Judge Harrison's orders and reasons.

Judge Wilson's order and reasons

[5] On 6 October 2009, Judge Wilson, in an interlocutory skirmish in the action, struck out paras 5, 10, 15, 18-21 and 28-30 inclusive of Ms Coronis's further amended statement of claim; ordered her to deliver particulars of her claims for damages within 14 days; added Mr Williams as a party to the action with liberty to deliver a defence within 21 days after delivery of her further particulars of damages; gave Jilt Pty Ltd liberty to deliver a further amended defence within 21 days after the delivery of her further particulars of damages; and ordered that two-thirds of the respondents' costs of and incidental to the hearing of the cross-applications, assessed on the standard basis, be their costs in the cause.[2]

[6] His Honour noted that Ms Coronis had made six attempts to plead the action.[3]  The action had proceeded slowly but Ms Coronis had health problems and her husband, Mr Bradshaw, had had professional difficulties.  She was unable to obtain legal assistance and was impecunious.[4]  As an unrepresented litigant, she had clearly had difficulty framing her case[5] which turned ultimately on issues of credit.[6]  She had been unable to frame her case properly.[7]  Judges should do their best to ensure that poorly expressed or unstructured statements of claim of unrepresented litigants are not struck out when they may relate to a viable cause of action, and with proper amendment or permissible assistance from the court, could be put into proper form.[8]  His Honour noted that the claim was under a contract said to be collateral to the contract for the sale of premises[9] and added:

"[28]The claim based on unconscionable conduct seems to rest in the common law remedy and, as pleaded, appears to be of the kind discussed in cases like Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447. It is alleged that Mr Williams is a wealthy businessman who promised the [appellant] quiet enjoyment of her premises in circumstances where he subsequently denied that, and arranged for workmen to be on the premises '... on a nearly daily basis'. Moreover, he is now alleged to unconscionably deny any representation or promise about quiet enjoyment; and his conduct is said to have been '... intended to prejudice the tranquillity and a peaceful environment fundamental to the [appellant's] business'. It is also alleged that the conduct was '... unconscientious in his misrepresentations and conduct using workmen to disrupt the [appellant's] business'. The personal pronoun indicates a reference to Mr Williams and it is apparent that this cause of action is brought against him personally.

[29]An action based on what is now more commonly called 'unconscientious dealing' involves a position of significant weakness for one party, known to and unconscionably preyed upon by another [Turner v Windever [2003] NSWSC 1147 at [145] per Austin J]. Certainly the pleading is not, in this respect, well drawn. That said, the case the [appellant] says that she can make out can be discerned. Paragraph 7 alleges Mr Williams was a 'wealthy businessman'. Other paragraphs imply the [appellant] was anxious to remain in occupation and carry on her business, and he knew that and permitted her to stay but then, allegedly, made it impossible for her to do so.

[30]It does not, relevantly, appear that the [appellant] is trying to set aside the major contract for the sale of the premises to Jilt Pty Ltd. Rather, she is alleging a breach of the collateral contract, occurring against a background which made the breach unconscionable. It is intended, I think, to be another facet of the alleged contractual breach (and, if the allegations surrounding it had been advanced in that context, they would be unexceptionable). On its face the claim cannot be described as strong but it is not unknown to law, and Mr Williams can see the allegations he must meet" (emphasis as in original).

[7] As to costs, his Honour considered that the primary reason the matter was before the court was the state of Ms Coronis's pleadings.  The respondents' attack on them had been partially successful but their attempts to strike out the claim and pleading so far as it related to Mr Williams were "adventurous and inappropriate".[10]

Judge Harrison's order that the trial proceed without a jury

[8] The trial commenced before Judge Harrison on 16 August 2010.  Ms Coronis applied to have her husband, Mr Bradshaw, a former practising barrister, appear on her behalf.  The judge refused that application, noting that Mr Bradshaw had been found guilty of unsatisfactory professional conduct and did not have a practising certificate, the Bar Association having refused his application to renew it.[11]  The judge, however, allowed Ms Coronis to be assisted at the bar table by a woman she described as her office secretary, Ms Megan Browne.[12]

[9] In her pleadings, Ms Coronis elected to have a trial by jury.  The judge noted that no jury fees had been paid and there was no jury present.  His Honour enquired whether Ms Coronis was persisting with that election.  She stated she did want to have a trial by jury and had not been asked to pay anything; had she been asked she would have paid what was required. 

[10] The judge then attempted to assist Ms Coronis organise her case by ascertaining whether the witnesses she proposed to call were able to give relevant evidence.  Her submissions in response to the judge's efforts were unfocussed and difficult to follow.  His Honour expressed concern that if the trial were with a jury, she might mention irrelevant matters requiring its discharge.  Further, she wanted some witnesses to give evidence by telephone, a course objected to by counsel for the respondents if the matter was to be heard before a jury.  Counsel did not maintain that objection if the matter was before a judge alone.  Further, counsel contended that Ms Coronis's pleadings were so confusing that they would be too difficult for a jury to comprehend; she was clearly not able to give a focussed and accurate opening of her case because she had no concept of what evidence was relevant. 

[11] The respondents applied under Uniform Civil Procedure Rules ("UCPR") r 474 for an order that the trial proceed without a jury, contending that the inflammatory nature of the language in the pleadings, which had been criticised by judges in the past, meant that the matter would be more conveniently resolved by a judge alone.  In responding, Ms Coronis read out to the judge her proposed opening which was recorded in about six pages of transcript. 

[12] The judge noted that the action was lengthy and complicated and had been dragging on for years.  There had been arguments over the pleadings before Judges White, Wilson and Everson.  Ms Coronis had requested a trial by jury which was her right.  It was, however, apparent that there would be practical difficulties if the matter proceeded with a jury.  Ms Coronis was self-represented, although she had had some assistance from Mr Bradshaw and another barrister.  The respondents wanted the matter resolved and did not wish to take any further points about the pleadings even though they remained unsatisfactory.  Ms Coronis had read out what she proposed to open to the jury.  Portions of that proposed opening were not relevant.  It would be virtually impossible to get to the point where she could deliver a focussed opening.  If the matter were to proceed before a jury, it could go for weeks.  A judge alone would be in a position to differentiate between admissible and inadmissible evidence and a judge-alone trial would be a more convenient and expeditious course.  His Honour determined that because of the complex history of the case he should exercise his discretion under r 474 and order a trial without a jury. 

[13] Accordingly, Judge Harrison ordered that the matter proceed to trial without a jury.  He explained that the effect of his ruling was that he would hear the matter, to which Ms Coronis responded, "Okay."  The judge then assisted Ms Coronis to structure the presentation of her case and the trial proceeded over five days, concluding on 20 August 2010.

Judge Harrison's reasons in the action and counterclaim

[14] His Honour delivered his reasons on 24 June 2011, dismissing Ms Coronis's action and allowing in part Jilt Pty Ltd's counterclaim.  His Honour first explained the history of the matter.  Ms Coronis was previously the owner of the freehold premises.  She entered into a contract to sell them to Jilt Pty Ltd for $170,000.  Mr Williams was a director of Jilt Pty Ltd.  The sale settled on 12 December 2002.  The premises contained a beauty salon operated by Ms Coronis; an office rented to real estate agent, Mr Keith Masotto; and another area which Ms Coronis sometimes used as a training school for beauty therapists.  Mr Masotto prepared the contract of sale.  The parties agreed that Ms Coronis could remain in the premises rent-free for 12 months and thereafter she could lease an area of the premises for $830 per month inclusive of GST with payments to be made on or before the 12th of each month. 

[15] What was in dispute was the area which she was to lease after the 12 month rent-free period.[13]  Ms Coronis also claimed that there was a collateral oral agreement for her to repurchase the property within three years for the amount she paid for it plus any outlays incurred by Jilt Pty Ltd such that it would not be out of pocket.  The respondents denied this collateral agreement.  Ms Coronis also pleaded breach of an implied condition as to quiet enjoyment of premises.  The respondents denied the breach of any such term.  Ms Coronis raised unconscionable conduct on the part of both respondents, a claim which they denied and which they argued was not a cause of action disclosed in the pleadings.  She claimed damages from the respondents for malicious prosecution in respect of a charge of stealing items from the beauty salon, brought against her by the police on the complaint of Mr Matthews.  The respondents also denied that claim.  Ms Coronis claimed further damages for loss of reputation, exemplary damages and punitive damages.[14]

[16] Jilt Pty Ltd counterclaimed for damages for conversion in respect of fittings removed by Ms Coronis from the premises and associated damage totalling $21,000; legal costs incurred on a complaint for recovery of possession following breach of the tenancy agreement; unpaid rent; and mesne profits or, alternatively, a restitutionary claim for use and occupation.[15] 

[17] Ms Coronis denied these claims alleging that any items she removed belonged to her; she removed them at the direction of Mr Williams; the claim for breach of tenancy agreement was discontinued and the respondents did not seek costs in the Magistrates Court; the claim for rent was not payable because of the breach of quiet enjoyment; the claim for mesne profits or for use and occupation was not payable because of the respondents' breach of the implied term of the lease as to quiet enjoyment.[16]

[18] His Honour then set out the evidence as to Ms Coronis's claim concerning the collateral agreement.[17]  Ms Coronis's evidence was inconsistent with that of Mr Williams and Mr Masotto.  His Honour considered that it was very unlikely Mr Williams, a businessman, would ever agree to an arrangement where he would have lost the use of $170,000 for up to three years for effectively nothing.[18]  The original claim and statement of claim did not plead the allegation that the collateral agreement provided for a buyback at $170,000.[19]  It was not until four years later, when the amended statement of claim was filed on 18 September 2008, that there was a pleading alleging an agreement giving Ms Coronis a right to repurchase the building.[20]  His Honour reasoned that, if there had been such a clear and unequivocal agreement, Ms Coronis would have pleaded it in her original statement of claim filed on 20 September 2004.[21]  The judge accepted the evidence of Mr Williams and Mr Masotto on that point and found there was no concluded agreement, either at the time the contract was entered into or at any other stage, to the effect that Ms Coronis could repurchase the premises.[22]  In any case, such an agreement would not have been enforceable under s 59 Property Law Act 1974 (Qld).[23] 

[19] His Honour then dealt with Ms Coronis's claim for unconscionable conduct and breach of contract.  The pleading was not easy to interpret but from Ms Coronis's written submissions it seemed she was arguing a claim for unconscionable conduct at common law in that the property had a value of $230,000 but was sold for $170,000.[24]  No claim for unconscionable conduct at common law was made on the pleadings[25] nor made out on the evidence.[26]  The judge did not accept Ms Coronis's evidence as to the alleged buyback agreement.[27]  In any case, the purchase price of $170,000 was only $20,000 less than the forced sale price referred to in her valuation (ex 9) dated 21 February 2002.[28]  The respondents agreed she could remain in the premises rent-free for 12 months post-settlement.  This meant that the overall worth of what she received was close to the forced sale figure of $190,000 in her valuation.[29]  There was no evidence as to any market movements between the valuation on 21 February 2002 and 13 November 2002 when the contract was signed.  The judge was not satisfied that the respondents unconscionably took advantage of any disability or disadvantage suffered by Ms Coronis; the evidence did not establish unconscionable conduct at common law, even had it been properly pleaded.[30] 

[20] His Honour then turned to the claim for breach of implied condition as to quiet enjoyment.  The respondents conceded there was such an implied condition but denied any breach.[31]  The initial 12 month rent-free period was for the lease of the beauty salon and the training school area.[32]  It was not clear from Ms Coronis's evidence what area was to be rented at $830 per month after that 12 month period.[33]  Mr Masotto's evidence was also unclear on this point.[34]  The only evidence was from Mr Williams who said that, from 12 December 2003 onwards, the lease related only to the beauty salon area.  The judge accepted that evidence.[35]  His Honour set out Ms Coronis's evidence as to the alleged breach[36] and concluded that she did not make out a clear case of what constituted interference with her quiet enjoyment.[37] 

[21] His Honour turned to other evidence relevant to this aspect of Ms Coronis's case.  Mr John Bissell was a Tradestart officer employed by both the Commonwealth and Queensland governments to assist those developing export businesses.  Ms Coronis was trying to develop a business training Japanese students in the beauty industry.  Mr Bissell assisted her to develop an export business plan.  This was about 80 per cent developed when they ceased contact because she lost the premises.  She told him she would contact him again when she had found alternative premises.[38]  He also gave evidence that he noticed workmen present at the premises when he first visited in 2004.[39] 

[22] Ms Coronis's daughter, Rachel Gregory, gave evidence that her mother was exhausted, depressed and anxious over her dealings with the respondents, although she was uncertain about the timing of events.[40]  She recalled workmen at the premises sometime after her baby was born in September 2002.[41]  During the period when the baby was still young, these workmen regularly interrupted the beauty salon business and interfered with clients' relaxation.  This happened on average about twice a week[42] but she was uncertain as to dates.[43]

[23] Mr Terrence Ryan, an electrician, carried out work at the premises.  He noticed workmen making a lot of noise and dust from jackhammers over a two week period, probably within the first year after she sold the premises.[44] 

[24] Ms Lee Martin gave evidence but was not of assistance as she only visited the premises after they had been partitioned; Ms Coronis did not have much of a business by that time.[45]

[25] Shirley Veronese, a client at the beauty salon, also gave evidence in Ms Coronis's case.  She noticed some workmen at the premises after Ms Coronis had sold the building but could not be specific as to dates.  On two occasions building work caused the salon air conditioning to be turned off.  It was difficult for her to relax in those circumstances.[46]  At other times when she visited the salon, there were no workmen.[47]

[26] Mildred Rihia knew Ms Coronis as she was the girlfriend of Ms Rihia's brother.  Ms Rihia saw workmen at the premises on three separate occasions around mid-2004.[48]

[27] The judge referred to Ms Coronis's evidence that the registration of her business as a beauty training school was cancelled by the relevant authority on 2 March 2004[49] and that this was because Mr Williams had left the premises in a mess.  In the mid-1990s, students who undertook a beauty training course made a complaint against her, claiming her business was unregistered.  Mr Bradshaw eventually paid some damages on her behalf in respect of this claim.  Her business never recovered and this caused her to sell the building to Jilt Pty Ltd.[50]   But in an affidavit dated 28 May 2004 which she prepared in the case concerning the registration of the beauty salon business, she deposed that she was appealing against her deregistration; her landlord was being difficult and required the business to relocate; those difficulties, however, had been overcome after a period of disruption and turmoil.  His Honour found that affidavit was totally contrary to her evidence in this trial where she claimed that the respondents' interruption and interference continued up until she vacated the premises and her financial difficulties were caused by Mr Williams.[51]  By contrast, in the registration case she claimed she was in dire financial circumstances because of the registering authority.[52] 

[28] Mr Williams gave evidence that the agreement with Ms Coronis for rent after the first 12 months related to the beauty salon premises only and the work involving the rest of the premises and its partition did not commence until the following April.[53]  He denied interfering with her business at all in the first 12 months and denied causing any disruption to her business before work commenced in April 2004.  A few months later, eviction proceedings were commenced because she was not paying rent.[54]

[29] The judge concluded that Ms Coronis's evidence on this aspect of her claim was so confusing that he was not satisfied that she had made out a case for damages for breach of quiet enjoyment.  His Honour rejected the evidence of Ms Coronis and her daughter and accepted Mr Williams's evidence that this interference did not start until April 2004.[55]  There was some disruption from that point but the judge was not satisfied that Ms Coronis had any viable business to disrupt; she was by that time on a disability support pension.  Her claim for damages for breach of the implied condition as to quiet enjoyment was unsustainable.[56]

[30] His Honour next discussed Ms Coronis's claim for malicious prosecution.[57]  He set out the elements a plaintiff must establish in an action for malicious prosecution[58] and cited A v New South Wales & Anor.[59] The judge noted that Ms Coronis was charged by police on complaint by Mr Williams with stealing fixtures from the beauty salon premises.[60]  The transcript of the committal proceedings was tendered (ex 6).[61]  The respondents were not the actual prosecutor.  But they could be regarded as such if they counselled or procured the prosecuting authority to institute proceedings by dishonestly prejudicing the prosecutor's judgment; or by making a complaint which they knew to be false; or by influencing the prosecutor to assist in bringing about the trial of an innocent person.[62]  In support of these propositions, his Honour cited Balson v State of Queensland & Anor[63] and Davis v Gell.[64]  His Honour noted that Constable Ian Nichols gave evidence that he took the complaint of theft from Jilt Pty Ltd[65] on 16 November 2004.  He spoke to Ms Coronis on 21 December 2004 in the presence of Mr Bradshaw.  She told him she thought the property was hers and declined to answer further questions.  Mr Williams in his evidence referred to the Contract of Sale and the exclusions contained in its Items Schedule Note 4.  He considered that fixtures which were not listed in the exclusions in Note 4 were fixtures included in the sale which belonged to Jilt Pty Ltd.[66]  The prosecution of Ms Coronis for stealing was not proceeded with after Mr Bradshaw made representations to the Director of Public Prosecutions on her behalf.  She always believed the removed items were hers because she paid for them originally.  The judge noted that he could "well understand why the proceedings were terminated": it would have been difficult for the prosecution to negative a defence under s 22 Criminal Code 1899 (Qld) [67] (honest and reasonable mistake of fact).

[31] Mr Bradshaw gave evidence on behalf of Ms Coronis.  The items she took remained at his place in full view of Mr Williams or anyone else who passed by; the police visited him and did not charge him with receiving stolen property.  Mr Williams subsequently made a complaint about him to the Legal Services Commissioner.  Mr Bradshaw opined that this complaint supported the conclusion that Mr Williams was acting maliciously towards Ms Coronis and him.[68] 

[32] The judge set out a portion of Ms Coronis's cross-examination:

"Well, its true, isn't it, that when you moved from the premises you had given directions to the removalists to take everything? - Yeah, quite rightly so.

They took everything ----? – Yeah.

…

And the vanities, and basins, were ripped off the wall? - Yeah, well that - well, see, you're trying to compare it to a house. The vanities were part of my business. [Mr Williams] evicted me and he wanted to leave - me to leave all my sinks and that there. As you said, I didn't have any money. Right. I didn't have money to go and buy more sinks, so I was going to transfer at another premise.  … But it's part of my business. I could not run a business without them, and Mr Williams was telling me that Keith Masotto was going to move in there. He was a real estate guy. Why would he want it? … ."[69]

[33] The judge accepted that Ms Coronis believed she owned these fixtures and was entitled to take them.[70]  His Honour also accepted that Mr Williams believed the fixtures belonged to Jilt Pty Ltd under the contract of sale and concluded that this was probably the position at law.[71]  The prosecution proceedings were terminated in favour of Ms Coronis[72] but the relevant prosecutor was not Jilt Pty Ltd or Mr Williams.  There was no evidence that either respondent prejudiced the prosecutor's judgment or made a complaint which Mr Williams, either on his own behalf or on behalf of Jilt Pty Ltd, knew was false.  Nor was there evidence that Mr Williams influenced the prosecutor to assist in bringing about the trial of an innocent person.  His Honour again referred to the principles stated in Davis v Gell and noted that, for the purposes of the tort of malicious prosecution, the proceedings were not initiated by either Jilt Pty Ltd or Mr Williams.[73]  The judge was not satisfied that they acted maliciously in initiating or maintaining the proceedings against Ms Coronis, nor that the prosecution was initiated without reasonable or probable cause.[74]  This was simply a case where Ms Coronis and Mr Williams had opposite views about the merits of the case which ultimately did not proceed because the prosecution would have been unable to negative a defence under s 22.  The judge concluded that Ms Coronis's case of malicious prosecution was not made out.[75]

[34] His Honour stated his very serious concerns about Ms Coronis's credibility.  Whilst she genuinely believed what she said in evidence, that evidence was unreliable.[76]  The judge referred to the evidence of her former general practitioner, Dr Anderson.  Ms Coronis had been treated by many psychiatrists and had been variously diagnosed with a personality disorder; substance abuse of prescribed medications; alcohol abuse; unstable mood with disorganised behaviour; dysfunctional relationships and suicide behaviour; hypomania; bipolar disorder with manic episode; adjustment disorder with histrionic personality style; chronic depressive illness; gambling addiction and dependent trait.[77]  At the time when she entered into this contract for the sale of the premises she was taking prescribed medication and at times did not appear to follow the prescription recommendations.  Dr Anderson believed Ms Coronis had suffered from hypomania for many years.  She had very real problems throughout this period persisting up until he ceased treating her in 2007.  The judge concluded that these problems had affected the reliability of her evidence.[78]

[35] For these reasons, the judge held that Ms Coronis had not made out her claim as pleaded and dismissed it.[79]

[36] The judge then turned to Jilt Pty Ltd's counterclaim.  As to the claim for damages for conversion, his Honour found there was no direct evidence as to the actual worth of the property Ms Coronis had taken.  It was clear that its value was nowhere near its replacement value.  Doing the best he could on the limited information available, the judge assessed the worth of the fixtures taken at $2,500 and allowed a further $2,500 for repairs for patching up the damaged walls left after Ms Coronis removed the fixtures (consistent with a tendered quotation).[80]

[37] The judge dismissed Jilt Pty Ltd's claim for damages for the costs of the Magistrates Court proceedings.[81]  His Honour noted there was never any real dispute as to the claimed amount of $1,020 for unpaid rent and he allowed it.  Jilt Pty Ltd's claim for mesne profits was for three months rent from 12 August 2004 until termination.  Ms Coronis did not finally move out of the premises until 11 November 2004.  It was therefore reasonable to allow an additional three months rent at $2,490.[82]  For those reasons, the judge gave judgment for Jilt Pty Ltd on its counterclaim for $8,510 plus interest.

Did Judge Harrison err in ordering a trial by judge alone?

[38] Ms Coronis contended the judge erred in ordering that the trial proceed without a jury.  In her written submissions she emphasised that there were no records or technical or scientific evidence in the trial which was not particularly long.  She had prepared a written opening address with the help of Mr Bradshaw (ex 7).  The judge's error in ordering a trial without a jury means that the appeal must be allowed and she must have a re-trial.

[39] There is no common law right to trial by jury in civil cases in Queensland.  Since the enactment of the Judicature Act 1876 (Qld), the right to trial by jury in civil actions has been but a procedural right dealt with by rules of court: see Matthews v General Accident Fire & Life Insurance Corporation Ltd.[83]  The right to civil jury trial is now generally governed by the UCPR.[84]  Although a procedural question, dispensing with a litigant's right to trial by jury, even in civil cases, is no light matter.  As the former Chief Justice of the High Court of Australia, the Hon Murray Gleeson AC, explained whilst speaking extra-judicially on the topic:[85]

"Public participation in the administration of justice is part of our legal tradition. It is important for Parliaments to keep in mind the public interest in involving the community in the administration of justice, especially the criminal justice.  Through the jury system, members of the public become part of the court itself.  This ought to enhance the acceptability of decisions, and contribute to a culture in which the administration of justice is not left to a professional cadre but is understood as a shared community responsibility."[86]

"… Again, before Parliaments are tempted further to reduce the importance of civil juries they ought to reflect on the way they serve to promote public awareness of the court system.  Reduced public participation, through trial by jury, in the administration of civil justice has increased the separation between courts and the community … ."[87]

[40] Under UCPR r 472, a plaintiff in an action commenced by claim in Queensland may elect a trial by jury, unless it is statutorily excluded.  There was no applicable statutory exclusion of trial by jury in this case.  Ms Coronis elected in her pleadings for a trial by jury.  Rule 474 provides:

"474 Trial without jury

The court may order a trial without a jury if—

(a)the trial requires a prolonged examination of records; or

(b)involves any technical, scientific or other issue that can not be conveniently considered and resolved by a jury."

[41] The terms of r 474 make clear that the discretion it provides to order a trial without a jury only arises where the matters listed in either r 474(a) or (b) exist.  As Ms Coronis points out, this case did not involve a prolonged examination of records nor any technical or scientific issue that could not be conveniently considered and resolved by a jury.  The respondents' counsel submitted that the judge was entitled to make the order under r 474 because it came within "or other issue" in r 474(b).  I cannot accept that submission.  The phrase "or other issue" clearly relates to other issues of a kind involving some complexity which would be difficult for a jury to consider and resolve.  The fact that this case was to be presented by a self-represented litigant and that it was unfocussed and rambling was insufficient to bring it within the phrase "or other issue" in r 474.  As the circumstances enlivening the discretion did not arise, the judge had no discretion in this case to order a trial without a jury under r 474.  That conclusion is consistent with the approach taken in Kelly v Kelly[88] which considered O 39 r 4 and r 24A of the Supreme Court Rules which predated the introduction of the UCPR.  It is also consistent with the approach taken more recently under the UCPR by Mullins J in Smit v Chan[89] and by Daubney J in Syddall v National Mutual Life Association of Australasia Ltd[90] (where the application to proceed to trial without a jury was granted); and by Boddice J in Mizikovsky v Queensland Television Ltd & Ors[91] (where the application to proceed to trial without a jury was refused).

[42] But that does not mean the appeal must necessarily succeed.  Ms Coronis was expecting a jury panel to be present at the commencement of the trial.  The Sheriff was responsible for arranging the attendance of a jury panel[92] and one was available.  The Jury Act 1995 (Qld) s 65 relevantly provides:

"65.  Fee for jury in civil cases

(1)If a party to a civil trial requires a jury, the party must pay to the registrar of the court before which the trial is to be conducted –

(a)the fee prescribed under a regulation before the trial begins; …

(2)If the court before which a civil trial is to be conducted requires a jury, the plaintiff must pay to the registrar of the court –

(a)the fee prescribed under a regulation before the trial begins; … ."

[43] The prescribed fee under Jury Regulation 2007 (Qld) is currently $732 per day.[93]  Ms Coronis had not paid any fee.  The transcript records her stating that she would have paid it if she had been asked.  At the close of the appeal hearing, counsel for the respondent informed the Court that Mr Bradshaw had told him that the jury fees were waived in this case.  This seems inconsistent with Ms Coronis's statements at trial.  I have had the court file checked and there is no order or note to that effect.  In any case, I have been unable find power under any statute, rule or regulation to waive the prescribed jury fee.  The terms of s 65 are mandatory and Ms Coronis failed to comply with them. 

[44] The respondents' counsel was ready, willing and keen to proceed to trial after many interlocutory hearings.  Judge Harrison was available to hear the case.  Ms Coronis's right to a jury trial was not a common law right or a statutory right but a procedural right under UCPR r 472.  The UCPR are to be applied by courts with the objective of avoiding undue delay and expense.[94]  The purpose of the UCPR is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.[95]  Ms Coronis accepted Judge Harrison's ruling to the effect that the trial would be conducted before him without a jury.  She did not request an adjournment and she did not lodge an appeal from his order.  The trial proceeded over the ensuing five days. 

[45] In the circumstances of this case, I consider that Ms Coronis gave up her procedural right to trial by jury by not paying the prescribed jury fees before the trial began as mandated by s 65 Jury Act.  In the circumstances here, even though the judge had no power to make an order under r 474, his Honour was right to order that the trial proceed before him without a jury.  This was in accordance with the philosophy of the UCPR (r 5) and, as Chesterman JA points out, the order could properly have been made under r 367.[96]  I emphasise, however, that judges should not lightly remove a civil litigant's right to trial by jury.  First, it is a significant right, although a procedural one.  Second, as Gleeson CJ explained, there is a public interest in maintaining public participation and public confidence in the justice system through the use of juries in civil cases.  Judge Harrison has now conducted the trial and delivered his reasons and orders.  Ms Coronis has not persuaded me that the judge's order that the trial proceed before him without a jury now warrants the setting aside of those orders. 

Did Judge Harrison err in not giving proper consideration to Judge Wilson's orders?

[46] Ms Coronis contended that the respondents' counsel at trial wasted time and misled the judge in criticising her pleadings when Judge Wilson had considered them to be acceptable.  If her pleadings were inadequate, Judge Harrison, she argued, was obliged under UCPR r 375 to invite her to amend or to direct an amendment.  She emphasised his Honour's reasons at [23] to [76]. 

[47] His Honour's reasons at [23] to [58] did not deal with Ms Coronis's pleadings but with the evidence concerning her claim about the collateral oral agreement to repurchase the premises.  His Honour understandably was concerned about the legitimacy of this aspect of Ms Coronis's claim when she did not include it in her original pleadings.  In [59] to [76] of his reasons, Judge Harrison dealt with Ms Coronis's claim for unconscionable conduct and breach of contract.  Her pleadings were in their seventh version and there was no reason to think she would do any better in an eighth version.  His Honour was not obliged to invite Ms Coronis to amend them under r 375.  Whilst his Honour concluded that no cause of action for unconscionable conduct was disclosed on the pleadings, his Honour also determined that it was impossible to conclude on the evidence that the respondents acted unconscionably towards Ms Coronis in the sale, for the reasons I have set out earlier in [19].  As Judge Harrison's factual findings were open on the evidence, it does not matter whether her pleadings were, as Judge Wilson found, "not unknown to law";[97] or whether, as Judge Harrison found, "it is impossible to see where [Ms Coronis] has pleaded a claim for unconscionable conduct at common law."[98]  Accepting she pleaded the claim adequately, her evidence at trial did not prove it.  This ground of appeal fails.

Did Judge Harrison err in not allowing Mr Bradshaw to appear for or to assist Ms Coronis at trial?

[48] Although not a ground of appeal, Ms Coronis contended in her written and oral submissions that the judge erred in not allowing her husband and former practising barrister, Mr Bradshaw, to appear for her at trial or to at least assist her as a McKenzie Friend at the bar table.[99]  Judge Harrison's decision not to allow Mr Bradshaw to appear on behalf of Ms Coronis was an entirely orthodox exercise of discretion.  He did not have a practising certificate, the Bar Association of Queensland having refused to renew it: see Legal Services Commissioner v Bradshaw[100] and Coffey v State of Queensland & Ors.[101]  As this Court noted in Coffey,[102] to have allowed Mr Bradshaw to appear for Ms Coronis would have been contrary to the Legal Profession Act 2007 (Qld).  The fact that Mr Bradshaw was married to Ms Coronis did not require a different exercise of discretion.

[49] In any case, Mr Bradshaw was a witness in Ms Coronis's case.  This was yet another reason why it was inappropriate for him to appear for Ms Coronis or to assist her at the bar table.  This aspect of Ms Coronis's contentions is also without merit.

Were the judge's findings on the malicious prosecution case open?

[50] Ms Coronis contended that the judge erred in his consideration of her action against the respondents for malicious prosecution.  She contended that the judge did not address the argument she presented, refer to the appropriate law, nor give proper consideration to her case.

[51] On the material before this Court, the judge's reasons[103] demonstrate a sound grasp of Ms Coronis's contentions in her malicious prosecution case.  His Honour correctly stated and applied the law to the facts which he found and which were open on the evidence.  His Honour was entitled to conclude that Ms Coronis had not made out her claim for malicious prosecution.  Ms Coronis's contentions in this respect must be rejected.

Ms Coronis's complaints about Judge Harrison's factual findings

[52] It is not easy to apprehend Ms Coronis's many complaints about the factual findings which she says Judge Harrison should not have made.  She clearly continues to feel aggrieved by Mr Williams's conduct and holds deep animosity towards him.  The transcript references she has supplied do not support her contentions that the judge's factual findings were not open.  She submitted essentially that the judge should have accepted her evidence and rejected the respondents' witnesses, especially Mr Williams.  For example, she emphasised Mr Bissell's evidence and argued that the judge should have accepted him as credible as he was a person of standing in the community. 

[53] The judge does appear to have accepted Mr Bissell's evidence.[104]  The difficulty for Ms Coronis is that his evidence did not prove any of her claims once the judge was unable to accept Ms Coronis's evidence.  The judge's reasons for rejecting Ms Coronis's case and accepting part of the respondents' counterclaim, which I have set out in some detail,[105] are compelling.  They are based on factual findings which were well open on the evidence.  Ms Coronis has failed to demonstrate that the judge erred in reaching any significant question of fact.

Conclusion

[54] None of Ms Coronis's grounds of appeal have been made out.  Her contentions in her written and oral submissions do no warrant the granting of this appeal.  It must be dismissed.

ORDER: Appeal dismissed with costs.

[55] CHESTERMAN JA:  I agree that the appeal should be dismissed with costs and, with one reservation, I agree with the President’s reasons for proposing that order.  The reservation concerns the question whether the trial judge erred in ordering, pursuant to UCPR r 474, that the trial should proceed without a jury. 

[56] The relevant facts, the history of the action and the parties’ contentions are clearly and thoroughly set out in the President’s reasons.  They contain a succinct account of the learned trial judge’s reasons for ordering trial by judge alone.  The President has concluded that the case did not come within the terms of UCPR 474 so that his Honour had no jurisdiction to make the order. 

[57] If that be correct, I agree with the President that the error is of no consequence.  The appellant lost her right to trial by jury by failing to pay the prescribed fees without which a jury panel could not be summoned.  When the action was called on for trial her choice was to seek an adjournment (which, given the history of the matter, may not have been granted) to enable her to pay the fees so jurors could be brought to court, or proceed, as she did, by way of judge alone trial.  Having chosen the latter course the appellant cannot now complain of the mode of her trial.

[58] There is another reason why the order dispensing with the jury, if erroneous, would not have brought the appellant success in her appeal.  The appropriate remedy for an order wrongly made depriving a litigant of his or her chosen mode of trial is an order for a new trial which may not be granted unless the initial order has occasioned injustice.  Gaudron, McHugh and Hayne JJ said in Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 (at 485):

“The first question for the Court of Appeal was not, as appears to have been supposed, whether Judge Christie’s discretion had miscarried. It was whether, assuming the exercise of discretion to dispense with a jury had miscarried, that circumstance, standing alone, could warrant the conclusion that some substantial wrong or miscarriage had been thereby occasioned. If it had not, there was no power to order a new trial. Without an order for a new trial, a debate about the correctness of the order dispensing with a jury was wholly academic. The answer given by the Court of Appeal … lay in its conclusion that the action had not been tried according to law. But that is principally a statement of the conclusion it reached about the correctness of the order dispensing with a jury. As the terms of [‘the rules of court’] make plain, it is not enough to point to some error of law to warrant ordering a new trial. More must be demonstrated – that some substantial wrong or miscarriage has been thereby occasioned.”

[59] The relevant rule of court was Part 51AA, r 16(1) of the (NSW) Supreme Court Rules which provided that the Court of Appeal should not order a new trial unless it appeared that some substantial wrong or miscarriage (of justice) had occurred.  UCPR 770 is in less dogmatic terms.  It provides that the Court of Appeal may order a new trial if satisfied there ought to be one, subject to the limitation that the Court may not make such an order “merely because” of the improper rejection or admission of evidence, or a misdirection to a jury unless “… some substantial wrong or miscarriage happened …”

[60] The limitation on the power of the Court of Appeal to order a new trial in UCPR 770 is confined whereas Part 51AA r 16(1) of the (NSW) Rules applies generally to applications for new trials.  Notwithstanding that difference I would understand the approach described in Gerlach to apply in Queensland.  An order wrongly made changing the mode of trial will not justify an order for a new trial in the absence of some demonstrated injustice following from the changed mode.  As their Honours said (485):

“The proposition that trial by judge alone, as opposed to trial by judge and jury, can amount, without more, to a substantial wrong to a party or to a miscarriage of justice is a startling proposition … assuming … a party … has been wrongly deprived of the mode of trial … that party has had a trial … according to law.”

[61] As the President’s reasons make clear, the trial was conducted fairly and the appellant’s claims were tried and dealt with according to their legal merits.  The appellant did not suffer any injustice by reason of the order dispensing with the jury.  Indeed, she suffered no injustice at all.

[62] I am, however, not convinced that the trial judge did not have power to dispense with the jury, or that the order dispensing with it was wrongly made.  UCPR 474 provides:

“The court may order a trial without a jury if –

(a)the trial requires a prolonged examination of records; or

(b)involves any technical, scientific or other issue that can not be conveniently considered and resolved by a jury.”

[63] The rule replaced the former Supreme Court Rules 1999 O 39 r 8, the terms of which were:

“The Court or a Judge may direct the trial without a jury of any cause, matter, or issue requiring any prolonged examination of documents or accounts, or any scientific or local investigation, which cannot in their, his or her opinion conveniently be made with a jury or conducted by the Court through its ordinary officers.”

[64] When analysed the rules are very similar.  An order dispensing with a jury may be made if the trial were to require a prolonged examination of records (formerly documents or accounts) or if it involves any technical, scientific or other issue that cannot conveniently be resolved by a jury (formerly that there be a scientific or local investigation.)  The deliberate change in terminology, and the inclusion of the phrase “or other issue” indicate in my opinion, a legislative intention to widen the basis for dispensing with a jury.  “Other issue” is not to be read ejusdem generis with “technical or scientific”.  If a trial involves any issue which cannot conveniently be considered and resolved by a jury the Court has power to order trial by judge alone.

[65] What is meant by the “convenient consideration and resolution” of issues by a jury was discussed in some cases which Daubney J analysed in Syddall v National Mutual Life Association of Australasia Limited [2008] QSC 101.The cases concern s 69 of the Supreme Court Act 1981 (UK) which provided, in essence, that trials of inter alia defamation actions were to be heard by judge and jury, with a proviso in terms identical to O 39 r 8.  Daubney J said:

“[15]In Beta Construction Ltd v Channel 4 Television Co Ltd, the English Court of Appeal considered the statutory provisions in that jurisdiction relevant to the mode of trial in libel actions. Section 69 of the Supreme Court Act 1981 (UK) relevantly provided that where, on the application of any party to an action to be tried in the Queen’s Bench Division, the Court was satisfied that there is in issue a claim in respect of libel, ‘the action shall be tried with a jury, unless the Court is of the opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury ...’.

…

[17]Stuart-Smith LJ, with whom Ralph Gibson LJ agreed, considered the connotation to be attached to the word ‘conveniently’ in the context of the legislation before him, and said:

‘Convenience

Can the prolonged examination of the documents and accounts conveniently be made with a jury? The question of what is meant by convenience was considered by this court in two cases. The first in time is Goldsmith v. Pressdram Ltd. (Note) [1988] 1 W.L.R. 64, the second is Viscount De L’Isle v. Times Newspapers Ltd. [1988] 1 W.L.R. 49. In Goldsmith’s case Slade L.J. said, at p. 74:

“I infer that the legislature, in using the particular word ‘conveniently’ in the context of the subsection was directing its attention to the efficient administration of justice, rather more than the probable difficulty or otherwise of the issue involved.”

In Viscount De L’Isle’s case [1988] 1 W.L.R. 49 May L.J. agreed with this statement and added, at p. 59:

“The question is whether the trial is likely to involve so lengthy an examination of documents and accounts that it is likely that the administration of justice will suffer if the trial is with a jury rather than by a judge alone.”

In Goldsmith’s case [1988] 1 W.L.R. 64 Kerr L.J. said, at p. 74A:

“‘Conveniently’ means, as I see it, without substantial difficulty in comparison with carrying out the same process with a judge alone.’

I would adopt a similar interpretation of the word ‘conveniently’ in Rule 474(b), i.e. whether it is convenient for the effective and efficient administration of justice.” (citations omitted)

[66] Stuart-Smith LJ identified four features the presence of which could make a trial by jury inconvenient.  The fourth, relevant here, is:

“… [T]he risk that the jury may not sufficiently understand the issues … to resolve them correctly. The judge may also misunderstand them; but he has to give a reasoned judgment and if he is in error, it can be corrected … Not so with a jury; no one can ever know upon what grounds they reached their verdict.” (1990 1 WLR 1042 at 1049).

[67] Syddall was a case in which the trial would involve a prolonged examination of accounting records (UCPR 474(a)) and medical evidence i.e. a scientific or technical issue (UCPR 474(b)).  The issues in the case summarised at [2008] QSC 101 at [9] do not appear overly complicated and could be, with adequate advocacy and clear directions comprehended by jurors of ordinary intelligence.  Nevertheless, an order dispensing with a jury was made and an appeal against that order, [2009] QCA 273, was dismissed.  Significantly for present purposes Mr Syddall appeared for himself and had had considerable difficulty in formulating and presenting his claim.  In dismissing the appeal Muir JA (with whom Fraser JA and White J agreed) said at [20]:

“There is considerable reason for doubting the ability of the appellant to state his case and give his evidence precisely and logically with regard to relevant legal principles.”

There was, accordingly, a substantial risk that a jury trial would miscarry. 

[68] The same consideration applies here.  The appellant was, unhappily, incapable of presenting her case in accordance with legal principle, or formulating a case that fell clearly within recognised causes of action.  She did not understand what evidence was admissible and what inadmissible, and was given to exaggerated criticism of her opponents.  The scope for confusion, misunderstanding and prejudice in the conduct of a jury trial was substantial.  The risk was much diminished if the trial were by judge alone.  A judge can exclude from consideration irrelevant and inadmissible evidence.  He or she can question a litigant or witness to dispel confusion or misunderstanding.  He or she can disregard vituperation. 

[69] The rule speaks of an issue which cannot be conveniently resolved by a jury.  A question thrown up by this appeal is whether in so determining the Court is entitled to have regard to the manner in which the trial will be conducted.  The President has concluded that the phrase “or other issue” is limited to the issue itself and not the manner of its presentation.  That is to say, if the issue itself is not technical, or scientific, or complex, but is within the competence of a lay jury to comprehend, the fact that the issue will be presented by a litigant in person who will be unable to present it understandably does not enliven the Court’s power to dispense with trial by jury.  It must be said, with respect, that the terms of UCPR r 474 support that conclusion but it is one which, in my opinion, the Court should strive to avoid. 

[70] Cases presented by litigants in person are often, if not usually, longer and therefore more expensive, more confused, less focused on what is relevant and generally more inefficient than cases presented by qualified legal practitioners.  For that reason they add to the burden on the Court and the opposing litigant.  The potential for those features to be exacerbated if the tribunal of fact is a jury is obvious.  In such a case the potential for mistrials or miscarriages of justice is greatly increased.  Proceedings may well become vexatious or oppressive in effect even if the result is unintended.

[71] In my opinion a Court should have power to protect itself, and more importantly litigants, against such consequences.  The fact that issues in an action will be propounded by a litigant in person who has demonstrated an inability to argue coherently or marshall materials intelligibly, or to disregard irrelevancies, should be relevant to the consideration of an application under UCPR r 474.  Such considerations will not arise where litigants are legally represented, but where, as here, and in Syddall, parties appear for themselves and have the deficiencies described, the Court should be able to take that into account in determining whether the issues can be conveniently resolved by a jury.  This is not to say, of course, that no litigant in person may have a jury trial.  However, those who show that they will be unable to present a case coherently before a jury may be, and should be, prevented from proceeding by that mode of trial. 

[72] In my opinion, UCPR r 474 should be construed so as to confer the power to dispense with a jury in that circumstance.  Such an approach is consistent with the Court’s inherent power to control its own processes.  The power is undoubted.  Lord Diplock (with whom Lord Edmund-Davies and Lord Russell agreed) said in Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corporation Ltd [1981] AC 909 at 977:

“The High Court’s power to dismiss a pending action for want of prosecution is but an instance of a general power to control its own procedure so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice. … [I]t would stultify the constitutional role of the High Court as a court of justice if it were not armed with power to prevent its process being misused in such a way as to diminish its capability of arriving at a just decision of the dispute.”

Lord Diplock restated the principle in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536:

“[T]his is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied …”.

[73] The latter passage was quoted with approval by Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 at 393.  The cases in the House of Lords concerned applications to strike proceedings out, in Walton the remedy sought was a stay of proceedings, but the power is not limited to making such orders.  The power extends to any order which will suit the justice of the case and prevent injustice or rectify the abuse of process.  It extends, in my opinion, to ordering a trial to proceed without a jury or, alternatively, to ordering a stay of the action as long as the party in question insists upon trial by jury.

[74] This was a case in which the trial judge could properly conclude that the issues could not conveniently be resolved by a jury, and an order could be made under rule 474.

[75] If it be thought that UCPR 474 does not extend to cases where the inconvenience flows from the presentation of the issue rather than the issue itself, there is nevertheless power to make an order dispensing with a jury if to proceed with one would make the trial unfair.  The power is to be found in UCPR 367 which provides:

“(1)The court may make any order or direction about the conduct of a proceeding it considers appropriate, even though the order or direction may be inconsistent with another provision of these rules.

(2)In deciding whether to make an order or direction, the interests of justice are paramount.

…

(5)If the court’s order or direction is inconsistent with another provision of these rules, the court’s order or direction prevails to the extent of the inconsistency.

(6)The court may at any time vary or revoke an order or direction made under this rule.”

[76] The power is extremely wide.  The court may make any order about the conduct of a proceeding.  The power may be exercised by making an order different to, or inconsistent with what a rule dealing with a specific subject matter provides.  It clearly extends to making an order dispensing with a jury where the interests of justice require it.  The order may be made in circumstances additional to those identified in UCPR r 474.  Rule 367 was a sufficient source of power for the order made by the primary judge.

[77] I do not intend to suggest that an order dispensing with a jury may be had for the asking.  The right of a party to elect trial by jury is to be respected.  That point was made in Matthews v General Accident Fire and Life Insurance Corporation Ltd [1970] QWN 37; Kelly v Kelly [1990] 2 Qd R 147 and Smit v Chan [2003] 2 Qd R 431.  I respectfully agree with Mullins J in Smit that the consideration that trial by jury will necessarily be longer and more expensive than trial by judge alone does not make a jury trial inconvenient for the purposes of UCPR 474.  I also agree with Mullins J, and the President, that rule 5 does not have that effect.

[78] The appeal should be dismissed with costs, as the President indicated.

[79] MARGARET WILSON AJA:  The appeal should be dismissed with costs.

[80] I agree with the reasons of the President, and wish only to add the following observations.

[81] By s 65 of the Jury Act 1995 (Qld), the appellant was obliged to pay the fee prescribed under the Jury Regulation 2007 (Qld) before the trial began.  The Act is silent as to the consequences of non-payment.

[82] The practical consequence of the appellant’s not paying the fee was that at the commencement of the trial no steps had been taken to have a jury panel available.  The appellant did not seek an adjournment of the trial either before or after the primary judge made an order for trial without a jury.

[83] I agree with Chesterman JA that the appropriate remedy against an order wrongly depriving a litigant of his or her chosen mode of trial is an order for a new trial, and that before a new trial would be ordered, some substantial wrong to the litigant or a miscarriage of justice would have to be demonstrated.  The appellant failed to surmount that hurdle.

[84] As the President has explained, in Queensland there is no common law right to trial by jury.  The provisions of chapter 13 part 3 division 1 of the UCPR are concerned with “Mode of Trial”.  They are in these terms-

“471Application of pt 3

This part only applies to proceedings started by claim.

472Jury

Unless trial by jury is excluded by an Act, a plaintiff in the statement of claim or a defendant in the defence may elect a trial by jury.

473Third party proceeding

(1)A third party proceeding may be tried in the same way as the proceeding between the plaintiff and the defendant.

(2)However, if the court directs a third party proceeding be decided separately, the court may, on an application by the defendant or third party, order the third party proceeding to be tried by a jury.

474Trial without jury

The court may order a trial without a jury if—

(a)the trial requires a prolonged examination of records; or

(b)involves any technical, scientific or other issue that can not be conveniently considered and resolved by a jury.

475Changing mode of trial

(1)The court may order a trial by jury on an application made before the trial date is set by a party who was entitled to elect for a trial by jury but who did not so elect.

(2)If it appears to the court that an issue of fact could more appropriately be tried by a jury, the court may order a trial by jury.”

[85] I respectfully disagree with Chesterman JA’s opinion that r 474 should be so construed that it confers a power to dispense with trial by jury where an issue which is not technical, or scientific or complex is likely to be presented in an incomprehensible way.

[86] By r 474, a court may order a trial without a jury in certain cases.  It has power to do so if the trial requires a prolonged examination of records (paragraph (a)), or if it involves an issue of the kind described in paragraph (b).

[87] In paragraph (b), “technical” and “scientific” both have a connotation of being within some specialist field of skill or knowledge, perhaps even of some complexity.  In the context of the paragraph as a whole, “other” should, in my view, be limited to issues that are ejusdem generis with “technical” and “scientific” issues.

[88] “Issue” is qualified both by the words “technical”, “scientific” and “other” and by the clause “that cannot be conveniently considered and resolved by a jury”.  It is not enough, for example, that there is a technical issue to be resolved: it must be a technical issue which cannot be conveniently considered and resolved by a jury.  In Syddall v National Mutual Life Association of Australasia Limited[106] Daubney J (who was the primary judge) correctly observed –

“[6]It will be observed that the qualification of the examination or investigation not being able to be ‘conveniently ... made with a jury’ applied to each of the elements identified in Order 39 Rule 8 [of the former Supreme Court Rules], whereas the cognate qualification now expressly applies only to the element identified in UCPR Rule 474(b), that is if the trial involves any ‘technical, scientific or other issue that can not be conveniently considered and resolved by a jury’. The reason for this change is not apparent, but Rule 474 nevertheless needs to be applied according to its terms.”

[89] In Syddall the court’s power to order trial without a jury was enlivened both because the trial would require a prolonged examination of records (paragraph (a)) and because it would involve medical and accounting issues that could not be conveniently considered and resolved by a jury (paragraph (b)).  It seems to have been accepted that medical and accounting issues fell within “technical, scientific or other issues”.

[90] Although the merits of the primary judge’s order were not challenged on appeal, Muir JA (with whom the other members of the court agreed), commented that there was ample justification for dispensing with trial by jury.  His Honour recited the submission made to the primary judge that many issues were raised on the pleadings, and that a number of them would involve prolonged examination of documents.  He recited, too, the submission that the trial would involve medical and accounting issues that could not be conveniently considered and resolved by a jury.  His Honour did not discuss whether the medical and accounting issues were “issues” within the meaning of paragraph (b), and he did not consider whether the way in which those issues were likely to be presented might be relevant to deciding whether they were “issues” within the meaning of paragraph (b).  It was only in deciding whether the medical and accounting issues could be conveniently considered and resolved by a jury that his Honour took account of Mr Syddall’s being self-represented and there being considerable reason for doubting his ability to state his case and give his evidence precisely and logically with regard to relevant legal principles.

[91] Whether a court’s inherent powers to control its own processes extend to ordering that a trial proceed without a jury or, alternatively, to staying a proceeding for so long as a party insists upon trial by jury was not argued, and I decline to express any opinion upon the question.

[92] Nor was there argument upon whether such an order could properly have been made pursuant to r 367 of the UCPR, and in the circumstances of the present case, I decline to express any opinion on that question, also.