Chapter 9 - Civil jury trials in the High Court

 

Civil jury trials in other jurisdictions

Civil jury trials are available in most comparable jurisdictions.

United Kingdom

In England, jury trials are required in the Queen’s Bench Division if, upon application, a claim is made for fraud (against the party applying for the action to be tried by jury), defamation, malicious prosecution or false imprisonment. In other cases, the Court has a discretion to order a jury trial.203 English case law suggests that, other than those actions for which a jury trial is generally required if requested, a jury trial order is rarely made in civil proceedings. In actions for personal injury, an order for a jury trial will only be made if there are exceptional circumstances.204

A recent United Kingdom Ministry of Justice report stated that there are now almost no civil cases decided by jury in England and Wales.205

Australia

In Australia, there has been a trend towards restricting the right to civil jury trial.206 The right to a civil jury trial has been abolished in South Australia,207 and restricted to claims of defamation, fraud, malicious prosecution, false imprisonment, seduction or breach of promise of marriage in Western Australia.208 In Tasmania, the right to a civil jury trial exists for most claims other than motor vehicle accidents, but it is virtually never used. In Queensland, there is a prima facie right to a civil jury trial, but there are numerous statutory limits on this, and civil jury trials are uncommon. In ACT, Northern Territory and the Federal Court, there is no prima facie right to a civil jury trial.209

The right to a civil jury trial has also been limited in New South Wales.210 From 2001, a civil jury trial has only been available on application where the Court is satisfied that the interests of justice require the case to be tried by jury, or for all defamation cases unless the case involves prolonged examination of documents or scientific evidence, or both parties consent to the case being tried by judge alone. Most Australian civil jury trials are now conducted in Victoria,211 and some commentators have argued that Victoria may follow suit in reducing the right to civil jury trials.212

 

Canada

In Canada, the Ontario Law Reform Commission reported on jury trials in civil cases in 1996.213 The Commission noted that civil jury trials were available in all Canadian provinces,214 except Quebec, which abolished them in 1976.215 In Manitoba and Nova Scotia, jury trials are mandatory for specified claims, unless the parties consent to a claim being tried by judge alone. In Alberta, Saskatchewan, New Brunswick and Newfoundland, jury trials are not mandatory, but are available for certain claims. In British Columbia, jury trials are available for all types of civil claims, but the party requiring the jury must pay the costs of having a jury, which effectively limits the use of civil jury trials. On Prince Edward Island, jury trials are precluded for specified claims, but are otherwise available.216 The Ontario Law Reform Commission found that civil jury trials are not used often in Canadian jurisdictions.217 After reviewing and consulting on the experience in other jurisdictions and the arguments for and against retaining civil jury trials, the Ontario Commission recommended retaining civil juries and clarifying the grounds on which judges could strike out a jury notice.218 However, these recommendations do not appear to have been implemented. It has been noted that in Canada personal injury cases and motor vehicle actions are the type of civil claims that are most frequently tried before a jury.219

United States

Civil jury trials are much more common in the United States than in Canada. The Ontario Law Reform Commission estimated that there are 50,000 civil jury trials each year in the United States.220 The importance of civil jury trials in United States federal and state courts reflects the fact that the right to a civil jury trial is entrenched by the Seventh Amendment to the United States Constitution and by similar provisions in state constitutions.221 However, even in the United States the use of civil jury trials has reduced as a proportion of the overall number of civil claims.222

Senior Courts Act 1981 (UK), s 69; Rules of Senior Courts, O33, rr 2 and 5.

Ward v James [1966] 1 QB 273 (CA); Sims v William Howard & Sons Ltd [1964] 2 QB 409 (CA); Hennell v Ranaboldo [1963] 3 All ER 684 (CA).

Ministry of Justice (UK) Diversity and Fairness in the Jury System (Ministry of Justice Research Series 2/07, 2007) at 2.

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

Juries Act 1927 (SA), s 5. No investigation into the workings of the civil jury system was conducted before the right to a civil jury trial was removed in South Australia: Jacqueline Horan “The Lore and Lore of the Australian Civil Justice System” (University of Melbourne, Faculty Research Workshop Paper).

Supreme Court Act 1935 (WA), s 42.

Jacqueline Horan “The Lore and Lore of the Australian Civil Justice System” (University of Melbourne, Faculty Research Workshop Paper) at 1−2.

Courts Legislation Amendment (Civil Juries) Act 2001 (NSW).

Jacqueline Horan “Perceptions of the Civil Jury System” (2005) 31 Monash U L R 120 at 121.

James Crawford and Brian Opeskin Australian Courts of Law (4th ed, Oxford University Press, 2004) at 82.

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

Alberta: Jury Act RSA 2000 c J-3, s 17; British Columbia: Supreme Court Act RSBC 1996, c 443, s 17, Jury Act RSBC 1996 c 242, ss 14−23; Manitoba: Jury Act CCSM c J30, s 32, Court of Queen’s Bench Act CCSM c C280, s 64; New Brunswick: Jury Act SNB 1980 c J-3.1, s 33, Rules of Court, NB Reg 82-73, rule 46; Newfoundland and Labrador: Jury Act 1991 SNL c 16, s 32; Nova Scotia: Judicature Act RSNS 1989 c 240, s 34; Prince Edward Island: Jury Act RSPEI 1988 c J-5.1, s 3; Saskatchewan: Jury Act 1998 SS 1998 c J-4.2, ss 15−19.

Jurors Act SQ 1976 c.9, s 56.

Ontario Law Reform Commission Report on the Use of Jury Trials in Civil Cases (1996) at 13−14.

Ontario Law Reform Commission Report on the Use of Jury Trials in Civil Cases (1996) at 16.

At 87.

At 1.

At 17, citing Galanter “The Regulatory Function of the Civil Jury” in Litan (ed) Verdict: Assessing the Civil Jury System (1993) 61 at 63.

Ontario Law Reform Commission Report on the Use of Jury Trials in Civil Cases (1996) at 17; Ontario Royal Commission Inquiry into Civil Rights (1968) Report no 1, vol 2; Ontario Law Reform Commission Report on Administration of Ontario Courts (1973) Part I.

Galanter “The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts” (2004) 1 J Empirical Legal Studies 459 at 460−461. Galanter found that as a percentage of civil dispositions in 2002, civil jury trials were less than one-sixteenth what they had been in 1962: in 1962, 5,820 (11.5%) dispositions were by jury trial, while in 2002 jury trial dispositions were 4,569 (1.8%).