The Supreme Court of Queensland recently made a surprising
decision to allow an upcoming trial of a civil case between a bank
and its customer to proceed before a jury.
This article takes a look at the decision in The
Commonwealth Bank of Australia trading as Bankwest v Ross &
Ors  QSC 149, and the circumstances resulting in the
The dispute between Mr Ross and Bankwest is a typical one: the
bank sues for a shortfall owing. Mr Ross enters a counterclaim
against the bank and its receivers. His counterclaim includes
allegations that the bank and the receivers breached statutory
duties to exercise reasonable care when exercising the power of
sale, and claims that the bank acted unconscionably. When filing
his defence, Mr Ross requested that the trial be heard by jury. Mr
Ross also specified that a jury trial was required when the trial
dates were requested.
Civil jury trials
Jury trials are rare in civil cases for reasons which include
that, most civil litigants prefer that the disputed facts be
determined by a highly trained judge rather than a jury, and jury
trials generally take longer and cost more money.
There are also administrative reasons why jury trials for civil
matters are not standard. Rhetorically: why should the
publicly-funded justice system be burdened unnecessarily? Civil
disputes do not generally involve the serious outcomes which might
follow from a criminal trial and are generally between parties (at
least for the purposes of the law) on equal footing. Civil cases
also generally involve a contest between private rights.
Unsurprisingly, there is usually little public interest in the
conduct of civil cases warranting the participation of the public
in the form of a jury.
In Queensland, either party to a civil dispute may make an
election for the trial to be by jury if the case is started by
claim. Courts have discretion under the Jury Act 1995
(Qld) and the Uniform Civil Procedure Rules 1999 (Qld) to
order that the proceedings be conducted without a jury. In NSW, all
proceedings are tried without a jury unless the court orders
otherwise. To make that order, the court must be satisfied that the
interests of justice require a trial by jury in the
Arguments and outcome
The decision in Bankwest v Ross concerned an
application by the bank to the court asking the Judge to exercise
the discretion and order that the case proceed without a jury. The
bank argued that:
A jury trial was not appropriate because the factual issues
were numerous and involved complex commercial and quasi legal
interests. Her Honour dismissed this argument and found that the
real factual issues are not numerous and, that to the extent there
were complications, a jury is more than capable of dealing with
those matters with appropriate directions (as they do often in
The duration of the trial is likely to be lengthened and at
substantial expense. Her Honour disagreed that trial would be
unduly prolonged by a jury. The estimated increase in time was only
three days to a six day trial. Her Honour pointed out that the
matter was still a short one even if it lasted for six days.
There is no substantial public interest in the nature of the
allegations made in the proceedings. Again, her Honour did not
agree with this argument stating that: "I also consider that
there would be some significant public interest in a trial
involving the conduct of receivers, the lending practices of banks
and the interrelationship between the receivers and the bank as
well as the duties owed."
Undoubtedly, there is public interest in the proper conduct of
civil disputes before the courts. However, it could be said that
the public interest is served every day without the involvement of
juries. It may be taking things one step too far to suggest that
allegations made against a bank in this particular case would be of
"significant public interest". It is a standard line of
defence in many commercial banking cases to allege misconduct by
the bank and its receivers. In our view, civil jury trials should
be reserved for the cases which raise serious allegations (such as
fraud), important credibility issues, or where the nature of the
dispute itself has wider implications for the public.
This case does however highlight that, at least in Queensland,
there is a right to elect a trial by jury in civil cases. Time will
tell whether the 'green light' given to the Mr Ross in
Bankwest v Ross will have an influence upon those making
similar allegations against banks.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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