BORG WARNER AUSTRALIA LTD T/AS THOMPSON SCOUGALL v SIMMONS [1989] NSWCA 24

BORG WARNER AUSTRALIA LTD T/AS THOMPSON SCOUGALL v SIMMONS [1989] NSWCA 24

The orders dispensing with the jury, continuing the trial before the judge, and granting intervention to the second insurer were set aside because: the grounds advanced for dispensing with jury involved general features not specific to this case; without consent, it was impermissible to continue the part-heard trial before a judge after a jury was discharged; and the intervention of the second insurer should not occur in a proceeding to be tried by jury.

Parties
Claimant: Borg Warner Australia Ltd trading as Thompson and Scougall; First Opponent / Plaintiff: David Simmons; Second Insurer (intervener): Switzerland and General Insurance Co
Jurisdiction
Australia
Judgment Date
15 December 1989
Procedural Posture
Appeal / Appeal From Interlocutory Orders of Webb AJ in the Common Law Division
Outcome
Appeal allowed; orders set aside except for discharge of jury; matter remitted for retrial.
Legal Topics
Jury Trials, Amendment of Pleadings, Discharge of Jury, Intervention by Insurer, Retrail Procedure
Civil Procedure Torts Jury Trials Amendment of Pleadings Discharge of Jury Intervention by Insurer Retrail Procedure

Case Brief

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Parties

Borg Warner Australia Ltd trading as Thompson and Scougall

Claimant

David Simmons

First Opponent / Plaintiff

Switzerland and General Insurance Co

Second Insurer (intervener)

Procedural Posture

Appeal / Appeal From Interlocutory Orders of Webb AJ in the Common Law Division

Legal Issues

  1. 1 Whether the discretion to dispense with the jury had miscarried under s89 of the Supreme Court Act 1970
  2. 2 Whether it was permissible without consent for proceedings to continue part-heard before a judge after the jury was discharged
  3. 3 Whether the order joining or permitting intervention by the second insurer should be made in a jury trial

Ratio Decidendi

The orders dispensing with the jury, continuing the trial before the judge, and granting intervention to the second insurer were set aside because: the grounds advanced for dispensing with jury involved general features not specific to this case; without consent, it was impermissible to continue the part-heard trial before a judge after a jury was discharged; and the intervention of the second insurer should not occur in a proceeding to be tried by jury.

Court Disposition

Appeal allowed; orders set aside except for discharge of jury; matter remitted for retrial.

Orders

  • Leave to appeal granted.
  • Appeal allowed.