Australia: Queensland Supreme Court orders bank to face trial by jury

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 [2014] QSC 149, and the circumstances resulting in the decision.

Background

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 proceedings.

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:

1. 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 criminal trials).
2. 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.
3. 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."

Comment

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.