The single-judge interlocutory ruling of Justice O'Meara in the Supreme Court of Victoria in McCullough v Footscray Football Club Ltd (Jury Ruling) [2025] VSC 443 (24 July 2025) (McCullough) signals the Victorian judiciary's preference for maintaining civil juries, including in complex institutional liability proceedings involving historic child abuse.   

This case follows the recent civil jury trials and appeals of Kneale v Footscray Football Club Ltd [2024] VSCA 314 (Kneale) and Bishop of Wagga Wagga v TJ (a pseudonym) [2024] VSCA 262 (TJ).   

The proceeding in the Victorian Supreme Court is in relation to allegations of historic child sexual abuse by an ad hoc football club volunteer, Graeme Hobbs, in 1987. The case involves the same alleged perpetrator and defendant as the Kneale case, and the plaintiff gave evidence in Kneale. This pre-trial judgment dismissed the defendant's application for the trial to proceed by judge alone without a jury.  

The Court has the discretion to decide that a proceeding should proceed by judge alone, even where a jury is requested by a party. In this matter, the plaintiff requested a jury trial. The defendant applied for a ruling that the matter proceed to trial by judge alone with no jury, referring to Kneale, in which jurors awarded the plaintiff over $5.8 million in damages, which were substantially reduced on appeal. See our article on the Kneale appeal here.  

Defendant submissions

The defendant submitted that the trial should proceed by judge alone on the basis that there is a substantial risk the jury would not be impartial due to the publicity of the earlier Kneale proceedings, due to the complexity of fact and law, and because the running of the trial would be inefficient. It was argued the potential for a jury making inconsistent findings could not be avoided, in particular in relation to questions of duty of care and findings of fact and breach. The defendant contended that a judge, rather than a jury, should determine a novel duty of care such as that alleged in this case. To proceed by jury would mean they must consider actual or constructive knowledge of the risks that Hobbs posed and require the jury to conclude both whether Hobbs was controlled by the defendant and, if so, whether the defendant breached its duty of care.

Plaintiff submissions

The plaintiff submitted that strong jury directions would minimise the risk of “tainted” jurors, that significant time had passed since Kneale (which took place between October and November 2023), and that the pre-trial publicity in Kneale did not taint the jurors’ final decision. It was submitted that the media attention in Gobbo v State of Victoria [2024] VSC 603 was far greater and should not be used as a direct comparison, and that strong and direct jury instructions are able to correct the possibility of juror bias, even in the face of very high media coverage, as demonstrated by Dupas v The Queen [2010] HCA 20 (Dupas).

The plaintiff accepted that the existence and scope of the duty of care should be determined by the trial judge, subject to the jury resolving the issue of reasonable foreseeability. 

Justice O'Meara dismissed the defendant's application, ruling that the current case should proceed with a jury. His Honour stated that whilst there is always some risk associated with jurors, it would be unfair to deprive the plaintiff of their right in Victoria to a civil jury.

In considering his decision, Justice O'Meara set out the principles of Birti v SPI Electricity Pty Ltd [2011] VSC 566 for whether a matter should proceed before a jury, citing in particular:

• during a civil jury trial, a judicial officer will tend to observe the work of the jury members very closely;

• over time, such observations allow conclusions to be drawn about the general behaviour and capabilities of jury members, but also about the likely limits of those capabilities;

• consequently, an experienced trial judge is often well placed to form opinions about whether particular issues and combinations of issues will be triable before a jury;

• in many cases, jury verdicts are consistent with (or, at least, reconcilable with) the assessments and experience of the presiding judicial officer;

• over the long term, those observations and assessments tend to “vindicate the faith which the courts have long held in trial by jury”; and

• any consideration of the Birti v SPI Electricity Pty Ltd [2011] VSC 566 principles is inevitably grounded in such conclusions, observations and assessments.

He found that the High Court decision of Dupas is of “great significance”, with the case involving publicity in relation to prior convictions, and observed that in circumstances where the trial judge “directed the jury firmly concerning, among other things, the need to give a verdict free of ‘extraneous considerations and... prejudice’”, the jury directions were proper, juries almost universally approach their task conscientiously, and the publicity had not deprived the accused of a fair trial (Birti v SPI Electricity Pty Ltd [2011] VSC 566).

His Honour further commented that the Victorian approach to juries is based on the “observations of judicial officers made over many years concerning the general conscientiousness and diligence of jury members" (Birti v SPI Electricity Pty Ltd [2011] VSC 566).

Justice O'Meara observed that although errors can occur, there are risks that particular evidence can be misused, and that there are risks of a jury being distracted by publicity, an order dispensing with the entitlement of a party to trial by jury should not be made lightly and should be made only upon the demonstration of “good cause" (Birti v SPI Electricity Pty Ltd [2011] VSC 566).

His Honour stated that reporting on incidents of child abuse is not unusual and the reporting in Kneale was not enough to indelibly taint a jury. He accepted the plaintiff's submissions that reasonable foreseeability and “control” might be determined by a jury with a modified “question trail,” which he considered reduced the real risk of an inconsistent finding between the judge and jury. His Honour went further to state that in the present case, a jury is able to be directed that a duty of care of a certain scope could be taken to arise if it were to accept that the risk of injury was reasonably foreseeable (Birti v SPI Electricity Pty Ltd [2011] VSC 566).

Justice O'Meara concluded that while it might well be that it would be easier, and therefore perhaps generally preferable, for the matter to proceed to trial without a jury, that state of affairs is not presently sufficient to disentitle the plaintiff to his right to trial by jury (Birti v SPI Electricity Pty Ltd [2011] VSC 566).

If your organisation is navigating issues of liability, duty of care, or the potential impact of publicity on litigation, we encourage you to contact our Institutional, Risk & Liability team for tailored advice.