As Australian businesses and sports have had to drastically change the way they operate, so too have Australian courts. Globally, cases are being heard virtually, from small civil claims in the Magistrates Court to generation-defining decisions by the Supreme Court of the United States.
The changes have extended to civil jury trials, which have been indefinitely postponed in Victoria. The recent decision in Gatto v Australian Broadcasting Corporation & Ors (No 1)  VSC 420 highlights the impact of the Covid-19 pandemic on the ordinarily uncontroversial procedural request for trial by a jury.
In February 2019, the ABC published an article on its website which made allegations as to the illegal activities of Mick Gatto as an ‘underworld figure’. In response, Mr Gatto sought damages at the Supreme Court of Victoria for alleged ‘defamatory inferences’ contained in the ABC report.
In April 2019, Mr Gatto formally requested that the trial be heard by a judge and a jury containing six members of the community.
However, by 16 March 2020, the Supreme Court of Victoria determined that it was unsafe for civil jury trails to continue in light of the COVID-19 pandemic and understandably were not able to provide a definitive timeframe for their return.
Mr Gatto applied for the trial, that had been set down for 22 July 2020, to be vacated until civil jury trials were reinstituted. Interestingly, the trial had actually been set down to be heard by a trial judge alone, due to an apparent error by Mr Gatto’s legal representatives in signing consent orders which provide for a trial without a jury that was entirely unrelated to the COVID-19 pandemic.
Mr Gatto made a number of submissions in support of his position. One of these arguments attached significant importance to the place of juries in the civil justice system, being that Mr Gatto’s public stature and profile meant that the question of whether the article was defamatory was best answered by a jury of “six fellow members of the community” rather than by a “judge sitting alone".
Conversely, the ABC contended that the ongoing suspension of jury trials amid the COVID-19 pandemic meant that Mr Gatto’s application for an adjournment until such time as a jury trial could occur again was effectively an application for an “indefinite adjournment of the trial”.
Drawing on the recent decision of Macauley J in Mulquiney v Reynolds & Anor (Ruling No 1)  VSC 119, the ABC submitted that if Mr Gatto’s position were accepted in relation to all jury trials, it would see a “substantial strain placed on the resources of the court, causing inevitable further delays”.
Trial to proceed by judge alone
Keogh J first emphasised that although there were errors by Mr Gatto’s legal representatives which led to the orders that the trial be by judge alone, Mr Gatto had always expressed a desire for a jury trial and therefore had a prima facie entitlement to such a trial.
However, His Honour nevertheless dismissed Mr Gatto’s application, and confirmed the current order fixing the proceeding for trial by judge alone. In doing so, His Honour placed considerable emphasis on the effects of the COVID-19 pandemic, noting that:
“The current worsening of the COVID-19 situation in Victoria and the associated reintroduction of stage 3 restrictions on metropolitan Melbourne may represent the fluctuating and restrictive circumstances in which this court, and the community more broadly, will have to operate for a considerable period.
“The postponement of the planned reintroduction of criminal jury trials in light of recent developments is an example of the complications which will probably arise with the reintroduction of civil jury trials. Any reintroduction is likely to be gradual and may consume more court resources at least until the pandemic is resolved. It is uncertain how many such trials will be able to be accommodated by the court at any time.
“The result is that there is an increased need to make efficient use of court resources, in particular where time to accommodate a trial has been allocated. The adjournment and lengthy delay before trial would result in failure to use court time and judicial resources currently available and allocated to hear the matter, and add to the list of trials for hearing by the court next year when it seems likely there will still be complications caused by the COVID-19 pandemic.”
In light of the above, Keogh J said that if Mr Gatto’s application for trial by jury was granted, the trial would be given a date in November 2021 that would remain subject to civil jury trials actually being permitted by that time and the capacity of the court to accommodate such a trial in Mr Gattoo’s proceeding.
His Honour concluded that such a “lengthy and indefinite adjournment” of Mr Gatto’s trial is “inconsistent with the overarching purposes of the Civil Procedure Act, that is to achieve the just, efficient, timely and cost-effective resolution of the real issues in the proceeding”.
In supporting his decision, Keogh J also noted that:
- on analysing the ABC’s admissions to date, the major issues in dispute would be matters for the trial judge even if there were a jury; and
- the defendants would be prejudiced by an indefinite and lengthy adjournment, as they had been operating for over 12 months on the basis that the proceeding was fixed for trial by judge alone in the week commencing 20 July 2020.
While the COVID-19 pandemic continues, it seems that civil trials by jury may become the exception rather than the norm, even where applicants have a prima facie entitlement to a trial by jury.
While this case concerned a trial that had already been fixed to be heard by a judge alone, and the major issues in dispute seemed to be issues for the trial judge and not a jury, Keogh J gave a very strong statement as part of his judgment of the need for courts to use their resources as efficiently as possible during the pandemic.
Given that the reintroduction of civil jury trials is likely to be “gradual” and “consume court resources until the pandemic is resolved”, legal practitioners and parties should be very alive to the significant possibility that civil proceedings which might ordinarily proceed by way of trial by jury may instead be fixed to be heard by judge alone. Such a position is consistent with the powers of the Supreme Court of Victoria under r 47.02(3) of the Supreme Court Rules.
In this context, the inherent uncertainty with regards to how many civil jury trials can be “accommodated by the court at any time” suggests that civil trials by jury may become very much the exception in the new normal as the COVID-19 pandemic continues.
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