Chapter 9 - Civil jury trials in the High Court


There are a number of arguments in favour of the repeal of Section 19A. Even back in 1988, Barker J noted in Shattock v Devlin that civil jury trials are uncommon in New Zealand, and are rarely, if ever, encountered in any claims for damages other than for claims based on defamation, malicious prosecution and false imprisonment.223 The Judge was sympathetic to restrictions on civil jury trials, particularly in light of the limited availability of court time, and the extra time civil jury trials take up when compared with judge alone trials. For jury trials, extra time must be spent, for example in selecting jurors, delivering an opening address to the jury, settling legal issues, final addresses to the jury and the judge’s summing up for the jury.

Further, a party that is unhappy with a jury’s verdict will inevitably apply to set aside the jury’s verdict or for a new trial. It is usually only when there has been a determination on the new trial application that judgment is entered and an appeal can be lodged. Conversely, in a judge alone trial, an appeal can be lodged at once.

There is also the issue of whether it is appropriate to expect members of the community to sit on a jury to consider a civil dispute. Generally, people who give up their time to undertake jury service do so because they accept there is a public duty to decide the guilt or innocence of a fellow citizen on a serious criminal charge. It is doubtful that potential jurors would be so willing to give up their time to adjudicate on what is essentially a private dispute between two or more parties. It is likely many employers would be less than impressed by the prospect of their employees taking time off work to sit on a jury considering a civil dispute.

In M v L, Giles J commented:224

…Over recent years there has been increasing demand and pressure on the Court system, accompanied by publicly expressed concerns as to delays, particularly in resolving civil litigation. Civil jury trials will do nothing to eliminate the perceived delay.

He contrasted the United Kingdom’s approach of recognising a right to a jury only in certain limited types of cases with the more general New Zealand provision, and went on to say:225

It is, of course, for Parliament to resolve this issue, not for the Courts which must simply construe and apply s 19A(5). In my view it is an area deserving of further consideration. Outside the field of defamation (and even there the need can be debated) there is, in my opinion, no demonstrable need for jury trials in the civil jurisdiction.

The relative inefficiency and costliness of jury trials in civil proceedings and the more restrictive approach in the United Kingdom and most Australian states are factors that add weight to the argument to repeal sections 19A and 19B, or to further restrict access to civil jury trials. In Palmer v Danes Shotover Rafts Ltd, William Young J commented that civil jury trials are now so rare that “an actual civil jury trial is regarded as a quaint curiosity within the legal fraternity”.226 He referred to the risk of “aberrant results”, because of the unfamiliarity of jurors, judges and lawyers with the civil jury trial process.227 However, he concluded that the balance struck by the legislation did not entitle the Court to interpret it as requiring jury trials to be treated as “an anachronism … to be discouraged or thwarted at every opportunity”.228 In McInroe v Leeks, the Court of Appeal stated:229

The importance of the right to a jury trial is not to be undervalued, even in today’s conditions where such trials are, comparatively speaking, not common in the civil jurisdiction of the High Court. At issue is a balancing exercise, under which if the threshold requirements are made out the Court must give careful consideration to how best the trial process and its management can meet the overall justice of the case, placing due weight on the entitlement of a party to seek trial by jury. The significance of the jury influence on standards of behaviour, and of vindicating in an appropriate way those who have been wronged and also vindicating those who have been wrongly charged with infringing another’s rights, must be kept firmly in mind.

The argument that civil jury trials are too costly and inefficient should not be overstated. There appears to be little evidence, other than anecdotal, for this view, or the alternative, that civil jury trials are valuable in spreading legal power within the community.230 The Ontario Law Reform Commission found in 1996 that civil jury trials on average cost $1,600 more than a trial conducted by a judge alone.231 However, they found that there were potential savings associated with civil jury trials because there appeared to be an increased number of claims that were settled before or during trial with jury trials. This meant that the overall cost of jury trials was insubstantial.232 We should be careful in considering the Canadian findings, however, as it is not clear that the same results would be seen in New Zealand, where there are far fewer civil jury trials, and the nature of those trials differs substantially from the majority of those in Canada.

A further perceived risk of civil jury trials, alluded to by William Young J in Palmer, is that they produce unpredictable results.233 The Ontario Law Reform Commission also examined this assumption. The views they received through consultation suggested that this was not a sufficient basis for eliminating the civil jury. Some lawyers and judges suggested that the increased settlement rates in civil jury trials was due to perceived unpredictability, but others suggested that judges are equally unpredictable, or that truly “predictable” cases are likely to settle before trial so that all cases that reach trial are intrinsically “unpredictable”.234 Research attempting to evaluate the competency of juries has found that juries have a strong tendency to reach the same conclusions as judges.235 The Commission concluded that perceived unpredictability was not a compelling argument for reducing civil jury trials.

There is a difference in New Zealand, however, where few counsel and judges have experience in civil jury trials. This raises questions of competence to deal with civil jury trials that would not apply in Canada.


What value do civil jury trials add?

Jacqueline Horan researched the perceptions of the civil jury system in Victoria, Australia. She concluded that the availability of civil jury trials creates a number of benefits.236 The civil juries have come to have symbolic value to the contemporary Australian community.237 The civil jury system has symbolised the citizens’ participation in the civil legal system. It allows community values to influence the legal system and allows the community to exert influence on future litigants.238 Research has found that civil juries are viewed positively in Victoria by jurors, which may have an impact on how they are viewed within the wider community. A further research finding was that jurors, judges and court staff expressed confidence in using the civil jury system.239 Horan argues that as a result of the positive community experiences with civil juries, the legitimacy of the legal system is promoted.240

Horan has also expressed concern about reforms of the civil jury system by Australian governments that have been based on opinions and biases, rather than facts. She has noted a lack of empirical data about the effects of abolition of civil jury systems.241

Although there is potential for the same benefits that Horan has noted to apply in New Zealand, because civil juries are now seldom used, there is unlikely to be any beneficial impact in terms of community participation in the legal system.

It is a value judgement as to whether a matter should be determined by members of the community or a judge sitting alone. Rare use of the right to civil juries suggests that they are no longer valued by our society as they once may have been.

However, we note that there may be a stronger case for the use of a civil jury in defamation cases than in other civil cases, because defamation involves injury to reputation – ie the esteem in which the plaintiff is held by his or her fellow citizens. There is thus some logic in a panel of those fellow citizens being asked to determine (a) what they take the words used about the plaintiff to mean; (b) whether those words lower the standing of the plaintiff; and (c) how much money the defamation is worth.

Shattock v Devlin (1988) 1 PRNZ 271 (HC) at 276.

M v L [1998] 3 NZLR 104 (HC) at 116.

At 116-117.

Palmer v Danes Shotover Rafts Ltd (1999) 14 PRNZ 57 (HC) at [8].

At [10].

At [11].

McInroe v Leeks [2000] 2 NZLR 721 (CA) at [21].

Jacqueline Horan “Perceptions of the Civil Jury System” (2005) 31 Monash U L R 120 at 120.

Ontario Law Reform Commission Report on the Use of Jury Trials in Civil Cases (1996) at 77.

At 77.

Palmer v Danes Shotover Rafts Ltd (1999) 14 PRNZ 57 (HC).

At 78.

Kalven and Zeisel The American Jury (University of Chicago Law School, 1966) at 58.

Jacqueline Horan “Perceptions of the Civil Jury System” (2005) 31 Monash U L R 120 at 148−151.

At 148.

At 148−149.

At 149−150.

At 151.

Jacqueline Horan “The Lore and Lore of the Australian Civil Justice System” (University of Melbourne, Faculty Research Workshop Paper) at 25.