Last month, the NSW Bar Association, through its president Noel Hutley SC, called for juries to be reintroduced in civil matters in NSW.
While juries have previously been used in civil matters, section 85 of the Supreme Court Act 1970 (NSW) and section 76A of the District Court Act 1973 (NSW) were amended in 2001 to restrict the use of juries unless a court otherwise orders, or if a party in the proceedings requests a jury trial and the court is satisfied that “the interests of justice require a trial by jury”.
These amendments have resulted in very few civil trials in NSW being heard by a jury. Most states and territories in Australia have also restricted the use of juries in civil trials to defamation cases only.
The amendments to restrict the use of juries were introduced to mitigate concerns relating to inconsistencies in the findings of juries as well as the damages awarded. It was also believed that eliminating juries would increase efficiency in civil trials, reduce costs for all involved and ease the case load of the District and Supreme Courts.
However in a Press Release issued by the NSW Bar Association in February, Mr Hutley argues that the purpose of the amendments has not been realised.
He argues that “it is by no means obvious that time is saved by removing a right to jury,” stating that jury trials are usually not longer or more expensive than judge only trials. One reason for this is that judges have to prepare lengthy written judgments while juries do not. There may also be less appeals as typically jury decisions are harder to overturn than judge-alone decisions.
Mr Hutley states that juries provide a “crucial community contribution to the justice system.” He also advocates that trial by jury is a civil right and democratic safeguard that is being denied.
Interestingly, Mr Hutley also says that juries will ensure “that the legal system is not dominated by judges and legal practitioners.” Where previously it was believed that legal professionals were those best placed to deal with matters of law, Mr Hutley suggests a more open and transparent system to promote community acceptance of civil justice system outcomes would be more beneficial.
If the NSW Bar Association can prove their case there may be a chance that the government will reintroduce juries in civil trials. A spokeswoman for the NSW Attorney-General Gabrielle Upton said there “are no plans to reinstate the right to juries in civil claims,” but that “the Government looks forward to receiving further detail from the NSW Bar Association on its proposal.”
For now, the jury is out.
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