Case: Hubner v Australia and New Zealand Banking Group Ltd [1999] FCA 385 , 88 FCR 445
Outcome: followed
Section 30(3) employs the language of this Court being empowered to " direct the trial " of a question of fact " if it thinks fit ". The sub-section confers a " wide discretion ": Hubner v Australia and New Zealand Banking Group Ltd [1999] FCA 385 at [29] , [1999] FCA 385 ; 88 FCR 445 at 450. This language, it was submitted in oral submissions, places a " gloss " upon the language employed in s 40 of the 1976 Act. Section 30(3), it was submitted, is the more specific test to be applied by this Court when considering an application for trial by jury in bankruptcy proceedings. 50 Whether or not s 30(3) does in fact place any such " gloss " upon the statutory test as formulated in s 40 may also be left to one side. Even if attention is confined to the language of ss 30 and/or 31 of the 1966 Act, it is not considered that any different conclusion should be reached in respect to the Applicant's Motion . Sections 30(3) and 31, it is again considered, support a conclusion contrary to that now advanced on behalf of the Applicant. 51 Neither section confers any entitlement to a trial by jury; indeed, it was understood that Counsel for the Applicant again properly accepted that conclusion. 53 The Bankruptcy Act , it must nevertheless be accepted, confers no entitlement to trial by jury: Hubner v Australia and New Zealand Banking Group Ltd [1999] FCA 385 , 88 FCR 445. Cooper, Kiefel and Tamberlin JJ were there addressing s 30(3) of the 1966 Act, and not s 30(1)(i), but relevantly concluded: Jury [27] Mr and Mrs Hubner also say that the bankruptcy proceedings should be heard with a jury pursuant to s30(3) of the Act. That provision reads: "(3) If in a proceeding before the Court under this Act a question of fact arises that a party desires to have trial before a jury, the Court may, if it thinks fit, direct the trial to that question to be had before a jury, and the trial may be had accordingly in the same manner as if it were the trail of an issue of fact in an action." [28] The appellants say that it is a civil right of all Queenslanders to have a trial by jury under s30(3). [29] In view of the approach taken by his Honour, which we consider to be correct, the question of a jury trial does not arise; so we do not accept the applicants' submissions in relation to this matter. Moreover, there was no relevant question of fact raised for a jury to determine. The Court under s30(3) has a wide discretion and there is no entitlement to a jury trial given by the section. We are not persuaded, given the necessity for a clear case of error to be shown on a matter of principle that there is any justification for ordering a jury trial in the present case. We see no error on the part of his Honour. Section 30(3) is not beyond the legislative competence of Commonwealth Parliament and is not invalid because of any unfounded assertion that it " undermines or perverts " the Constitution : Commonwealth Bank of Australia v Heinrich [2000] FCA 1255 at [18] [25] per Mansfield J. Nor is there any entitlement to trial by jury arising by reason of either some " unwritten law " such as natural justice or by reason of Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth): Hubner v ANZ Banking Group Ltd [2000] FCA 140 at [9] [10], [2000] FCA 140 ; 101 FCR 71 at 73 per Drummond, Dowsett and Katz JJ.