Impact of COVID-19 on Empanelment of Juries

As the Coronavirus crisis continues to cause disruption in Courts throughout Australia, with no juries being empanelled for the foreseeable future due to risk of transmission of COVID-19 and ongoing lockdowns, many cases have been subject to delays where one party has requested a trial by jury.

Carbone Lawyers’ recent win in the defamation matter of Wells v Cossari [2020] VCC 988 was one such case set to be subject to significant delay due to the trial having been arranged to be heard before a judge and jury.

The high-profile case saw Carbone Lawyers successfully argue that Victorian MP Kim Wells had been defamed by the defendant in a series of Facebook posts which made allegations of assault against Mr Wells.

Mr Wells was awarded $140,000 in the County Court for the defamatory posts.

However, the matter would have been adjourned indefinitely had the trial been required to proceed before a judge and jury.

Carbone Lawyers brought an application on behalf of Mr Wells prior to the scheduled trial date and successfully argued that in all the circumstances of the case, the Court should make a determination to dispense with the jury and the trial should instead proceed on the scheduled date before a judge alone via video-conferencing arrangements.

In her Honour’s reasons for ruling, Judge Tsalamandris found that Mr Wells would suffer ongoing stress and concern about ongoing damage to his reputation until the matter is determined and considered the maxim “justice delayed is justice denied” in her ruling. Her Honour also referred to the overarching purpose of the Civil Procedure Act 2010 (Vic) “to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute” and, as there was no particular reason as to why the case should proceed before a jury (weighed against the factors as to why the case should proceed on the scheduled trial date before a judge alone), her Honour found that a trial by judge alone would enable the case to be heard “equally justly” without the need for a lengthy adjournment. (See Wells v Cossari [2020] VCC 512 at [18]).

On appeal by the defendant, the first instance decision was upheld in the Court of Appeal. The Court of Appeal held that there was no error in the approach taken by her Honour Judge Tsalamandris and Justices Beach, Kaye and Osborn observed that: “each case must be considered on its merits. Relevant issues will include whether the matter has been fixed for trial, and if so how long; the likelihood of the matter being able to be heard as a jury within an appropriate timeframe; and the nature of the issues in the proceeding. The fact that, while there remains an indefinite suspension of jury trials, many applications to change the mode of trial from judge and jury to judge alone might succeed, is no basis for departing from a principled approach to each application that might be made to a trial court to change the mode of trial so as to permit the relevant proceeding to be tried in a timely fashion.” (See Cossari v Wells [2020] VSCA 133 at [39]).

This particular case demonstrates that, where one party to a proceeding has signified that it requires a trial by jury, the risk of an indefinite adjournment brought on by COVID-19 might provide an impacted party with the “good cause” required to convince a Court to utilise its unfettered discretion to dispense with the requirement for a jury if in all the circumstances such a determination is warranted so that the matter can proceed to trial expeditiously.

If you are concerned about the lengthy delays the COVID-19 crisis may bring to your case or potential case, contact Carbone Lawyers today.

This article is general information only. It is not legal advice. If you need legal advice, please contact us.

Crucial New Workplace Manslaughter Laws

With the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019 now in effect, having commenced on 1 July 2020, the Carbone Lawyers Law Lab podcast panel recently took the time to discuss these crucial new laws.

Read More »