McDermott v Collien [1953] HCA 44

High Court of Australia Fullagar J. McDermott v Collien [1953] HCA 44

ORDER Summons dismissed with costs. Certify for counsel.

Cur. adv. vult.

Fullagar J delivered the following written judgment:

Aug. 7 Fullagar J

This is a summons by a plaintiff asking that his action be tried by a justice with a jury of six men. The plaintiff is a resident of the State of Victoria, and the defendants are residents of the State of New South Wales. The claim arises out of an alleged sale by the defendants to the plaintiff of a motor car for the price of £1200. The plaintiff alleges an express condition, and also relied upon conditions implied by statute that the car should be reasonably fit for the purpose of being used as a motor car and that it should be of merchantable quality. He alleges breaches of these conditions. He claims that he rejected the goods, and on that basis seeks to recover the sum of £1150 paid by him to the defendants and also certain damages representing expenses incurred by him before the rejection of the car. Alternatively, he relies upon the alleged conditions as warranties and claims damages. The defence denies the express condition and the implied conditions, denies breach, and alleges that the plaintiff accepted the goods.

The provisions material to an application of this kind are contained in the High Court Procedure Act 1903-1950 and in O. 36 of the High Court Rules. Section 12 of the High Court Procedure Act provides that in every suit in the High Court, unless the Court or a justice otherwise orders, the trial shall be by a justice without a jury. Section 13 provides that the High Court or a justice may, in any suit in which the ends of justice appear to render that mode of inquiry expedient, direct the trial with a jury of the suit or any issue of fact.