Chapter 9 - Civil jury trials in the High Court


Options for reform

If civil juries are to be retained, when should they be available? There are several options for how the law could address this.

One option would be to repeal section 19A and retain section 19B. Section 19A provides a prima facie right to a jury trial in certain civil proceedings, with judicial discretion to decline this if relatively limited grounds are met. Section 19B gives no right to parties to the proceedings, but allows the court the discretion to grant a civil jury trial based on convenience. If section 19A was repealed it seems unlikely that all of the same cases that would result in a jury trial under that section would be granted a jury trial under section 19B.

Another option for the reform of the civil jury provisions would be to adopt an approach similar to that used in the United Kingdom, and in some Australian and Canadian states, where only particular types of civil cases can be tried by jury. Some causes of action, generally those involving an assessment of the veracity of witnesses, such as defamation or false imprisonment, seem to be better suited to trial by jury. Such a restriction may provide more rational limits on the right to a civil jury trial than the current law, as they relate to the content of the issues to be decided. However, this option would limit the existing right.

At the very least, the $3,000 threshold in section 19A(2) for the value of the debt, damages or chattels at issue should be raised. This amount was increased from $1,000 in 1980 but has not been altered in more than 30 years. As the value of $3,000 is now very different from what it was in 1980, and the sum is well below that which is generally sought in High Court actions, any threshold sum should be increased. This would limit the cases to which section 19A applies. It is highly unlikely that the $3,000 threshold currently restricts any parties from being able to apply for a jury trial under section 19A. Amending the threshold would provide the opportunity to create a more meaningful gateway to the right under section 19A so that only the more serious cases have the option of a civil jury trial.


Should the new courts legislation make provision for civil jury trials?


If so, in what circumstances should a civil jury trial be available?