Herman, Walter t/a Hermans Wally Wear v Levi Strauss (Australia) Pty Ltd [1986] FCA 672

612] \48L

LIMITED DISTRIBUTION CATCHWORDS

PRACTICE AND PROCEDURE - Application for trial by jury - Claim under Trade Practices Act 1974 with claim in defamation and for injurious falsehood - Necessity for applicant to show that

usual mode of trial is inappropriate - Application refused.

Federal Court of Australia Act 1976 s.40 Trade Practices Act 1974 ss.52, 53

Insurance Commissioner v Australian Associated Motor Insurers Ltd (1982) 65 FLR 172 and McDermott v Collien (1953) 87 CLR 154 referred to.

NSW G.34 of 1986 WALTER HERMAN t/a HERMAN'S WALLY WEAR v LEVI STRAUSS (AUSTRALIA) PTY LIMITED

Wilcox J Sydney 14 August 1986

LIMITED DISTRIBUTION -

IN THE FEDERAL COURT OF AUSTRALIA ) )

NEW SOUTH WALES DISTRICT REGISTRY ) No. G.34 of 1986 ) )

GENERAL DIVISION

BETWEEN: WALTER HERMAN t/a HERMAN'S WALLY WEAR

Applicant

AND: LEVI STRAUSS (AUSTRALIA) PTY LIMITED

Respondent CORAM : WILCOX J PLACE: SYDNEY DATE: 14 AUGUST 1986

MINUTES OF ORDER

THE COURT ORDERS THAT: l. The application for trial by jury be refused. Note: Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules.

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY No. G.34 of 1986

GENERAL DIVISION

BETWEEN: WALTER HERMAN t/a : HERMAN'S WALLY WEAR

Applicant

AND: LEVI STRAUSS (AUSTRALIA) PTY LIMITED

Respondent

CORAM: WILCOX J PLACE: SYDNEY DATE: 14 AUGUST 1986

EXTEMPORE REASONS FOR JUDGMENT

The first matter which is raised by the Notice of Motion before the Court this morning is whether the pending

proceedings should be heard with a jury. The applicant seeks an order for the empanelling of a jury to hear the issues.

The respondent opposes this.

Section 40 of the Federal Court of Australia Act 1976

empowers the Court or a judge to direct the trial with a jury - of a suit or an issue of fact in any case in which the ends of justice appear to render it expedient to do so. This provision was considered by Northrop J in Insurance Commissioner v Australian Associated Motor Insurers Ltd (1982) 65 FLR 172 at pp.182 and 183. His Honour followed a view expressed by Fullagher J in the High Court of Australia in McDermott v Collien (1953) 87 CLR 154 in which Fullager J 'rejected a similar application. In McDermott Fullager J pointed out that trial without a jury was the normal mode of trial of actions in the High Court and'held that some special reason must be shown for a departure in any particular case from the normal mode. He said that it was not enough that the cause of action was of a kind which could quite properly be tried with a jury and which was normally tried with a jury in England before the Judicature Act 1873. It was not enough to say that the kind of action was one suitable for trial with a jury and it was a complete answer to such a claim for a defendant to say that it was a kind of action which is also quite suitable for trial without a jury. Northrop J took the view that, having regard to the fact that the normal mode of trial in this Court is by a judge alone, there was a necessity to show some special circumstances making it appropriate in