Case: Commonwealth Bank of Australia v Rigg [2001] FCA 590
Outcome: followed
This Court unquestionably has a discretionary power to direct that a trial be by jury. The relevant source of that power is said by the Applicant to be ss 30(3) and 31 of the Bankruptcy Act . Those sections relevantly provide as follows: 30 General powers of Courts in bankruptcy ... (3) If in a proceeding before the Federal Court under this Act a question of fact arises that a party desires to have tried before a jury, the Federal Court may, if it thinks fit, direct the trial of that question to be had before a jury, and the trial may be had accordingly in the same manner as if it were the trial of an issue of fact in an action. ... 31 Exercise of jurisdiction (1) In exercising jurisdiction under this Act, the Court shall hear and determine the following matters in open Court: ... (i) applications for the trial of questions of fact with a jury and the trial of those questions; ... (2) All other matters under this Act may, in the discretion of the Court, be heard in open Court or in Chambers. Section 30(3) is a provision which " specifically provides for a discretion to order trial by jury in a bankruptcy matter " : Commonwealth Bank of Australia v Rigg [2001] FCA 590 at [8] per Beaumont J. 28 Also to be noted, however, are ss 39 and 40 of the Federal Court of Australia Act , which provide as follows: 39 Trial without jury In every suit in the Court, unless the Court or a Judge otherwise orders, the trial shall be by a Judge without a jury. 40 Power of Court to direct trial of issues with a jury The Court or a Judge may, in any suit in which the ends of justice appear to render it expedient to do so, direct the trial with a jury of the suit or of an issue of fact, and may for that purpose make all such orders, issue all such writs and cause all such proceedings to be had and taken as the Court or Judge thinks necessary, and upon the finding of the jury the Court may give such decision and pronounce such judgment as the case requires. 29 It was understood that Counsel for the Applicant quite properly did not contend that the Applicant had any entitlement to a trial by jury -- whichever Act was invoked. It was understood that Counsel for the Applicant accepted that the question as to whether or not there should be a trial with a jury was ultimately a matter -- not of entitlement -- but a matter for the discretion of this Court. 54 Moreover, and although there may be trial by jury in bankruptcy proceedings, it is the exception rather than the rule: Re Shields; Ex parte Australia and New Zealand Banking Group Ltd (1994) 51 FCR 308. Einfeld J there observed (at 309): ... in bankruptcy proceedings jury trials will be the exception rather than the rule. ... A jury trial involves a great deal of expense and time both to the parties and the Court, as well as considerable inconvenience to the members of the community who constitute the jury. The use of juries in civil matters has steadily declined during this century and is now largely reserved for those areas where serious imputations are to be made against the character of a party. Like divorce, bankruptcy is no longer regarded as such a matter. In the absence of some very compelling special circumstance, the intention of Parliament is clearly that bankruptcy proceedings be heard by a judge. See also: Re Allen (1905) 5 SR (NSW) 55 at 57; Draper v Official Receiver [2004] FCA 1379 at [5] per Mansfield J. Some " special reason " must be shown for a departure from the normal mode of trial: Commonwealth Bank of Australia v Rigg [2001] FCA 590. Section 30(3) only applies where " a question of fact arises ". See: Ray v Perrett [2007] FCA 1672. " While fraud generally is some ground for giving the parties or one of the parties a right to trial by jury, this fact is not conclusive ": Stapleton v Brady [1952] QWN 15 per Clyne J.