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 the instant case that a jury be empanelled. The primary question must be whether the use of a jury is likely to lead to a more satisfactory trial, having regard to the end result; although it is not possible to leave entirely out of account matters of convenience and length of trial. In support of the motion, Mr Gruzman has pointed out that the matter complained of is alleged to be defamatory of the applicant as well as contravening both ss.52 and 53 of the Trade Practices Act 1974 and constituting the tort of injurious falsehood. He points out that the customary mode of trial in the Supreme Court of New South Wales in defamation actions is with a jury and that the relevant broadcast was one made to the public at large and in relation to which a jury would be able to inject their common experience of life and to reflect their experience as hearers of public broadcasts. I think it must be said that trial by jury of the defamation count would be a suitable method of trial. Had the defamation action been brought in the Supreme Court, it is extremely probable that a jury would have dealt with the matter. There is no particular aspect of any of the other three causes of action which would render them unsuitable for a trial by jury. However, as Fullager J held, and Northrop J agreed, it is not enough merely to say that trial by jury would be a suitable method of trial. As Mr Nicholas has submitted, it is an everyday experience for members of this Court to have to determine the effect upon members of the public of words which are used and given wide publicity. This includes material broadcast over radio programmes. There would be no novelty for a judge in having to consider the effect upon radio listeners of the material complained of. I think that this must be said to be one of those cases where either method of trial would be likely to be satisfactory. Under these circumstances the question arises ; whether there is any particular matter relating to this case which makes it likely that a more satisfactory result would be obtained in a trial by jury. I do not think that there is any such matter. Although it is true to say that the usual practice in New South Wales is for trial of defamation actions by juries I think that this is based more on traditional practice than any articulated reasoning or empirical evidence. The practice in some of the other States of Australia is directly the opposite. I see nothing about this particular publication which makes it more appropriate to be dealt with by a jury than by a judge sitting alone. Under these circumstances I reject the application for trial by jury. I certify this and the three (3) preceding pages to be a true copy of the Reasons for Judgment of his Honour Mr Justice Wilcox. Associate: bdewk . Date: 28 August 1986 Counsel for the Applicant: Solicitors for the Applicant: Counsel for the Respondent: Solicitors for the Respondent: Date(s) of hearing: Mr A M Gruzman Teakle, Ormsby & Associates Mr J V Nicholas Baker & McKenzie 14 August 1986