Herman, Walter t/a Hermans Wally Wear v Levi Strauss (Australia) Pty Ltd

[1986] FCA 672

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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

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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

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LI.MITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	1 1
NEW SOUTH WALES DISTRICT REGISTRY	) No. G.34 of 1986
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DIVISION GENERAL )

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:

1. 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.

L I M I T E D D I S T R I B U T I O N

I N THE FEDERAL COURT OF AUSTRALIA

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NEW SOUTH WALES DISTRICT REGISTRY	)	No. G . 3 4 of 1986
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GENERAL DIVISION 1

BETWEEN : WALTER HERMAN t / a

HERMAN'S WALLY WEAR

A p p l i c a n t

AND: LEVI STRAUSS

( A U S T R A L I A ) PTY L I M I T E D

R e s p o n d e n t

CORAM :	WILCOX J
PLACE :	SYDNEY
DATE :	1 4 AUGUST 1986

EXTEMPORE REASONS FOR JUDGMENT

Th.e f i r s t matter w h i c h is raised by t h e Notice of

Motion before t h e C o u r t t h i s morn ing i s whether t h e pending

proceedings shou ld be heard w i t h a j u r y . The appl icant s e e k s

a n order f o r t h e e m p a n e l l i n g of a j u r y t o hear t h e issues.

The r e s p o n d e n t opposes t h i s .

2.

Section 40 of the Federal Court of Australia Act 1976

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empowers the Court or a judge to direct the t-rial 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.

3 .

The primary question must be whether the use of a

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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 ss112

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

4 .

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:

W .*

Date: 28 August 1986

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5.

Counsel for the Applicant: Mr A M Gruzman

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Solicitors for the Applicant:

Teakle, Ormsby &

Associates

Counsel for the Respondent:

Mr J V Nicholas

Sol.icitors f o r the Respondent:

Baker & McKenzie

Date(s) of hearing:

14 August 1986