Hogan, P. v Koala Dundee Pty Ltd

[1988] FCA 238

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY	1 N.S.W. G749 of 1987
GENESAL DIVISION	)

I

: - B PAUL HOGAN

First Applicant

AND: RIMFIRE FILMS LIMITED

Second Applicant

AND: KOALA DUNDEE PTY LIMITED

Respondent

...	MINUTES OF ORDER
t

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	8 A P R I L 1988
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1. the appllcation for trial by jury be dlsmlssed;

2. the costs of and incidental to the notice of motlon

filed on 29 March 1988 be taxed and pald by the

NOTE:	Settlement and entry of orders is dealt wlth In
Order 36 of the Federal Court Rules.

respondent to the appllcants, such taxation not to

.	take place until d general order for costs	1s made
in this sult or further earlier order.

c ,

IN THE	COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY	1	N.S.W. G749 of 1987
GENERAL DIVISION	)

EIWEEN:  PAUL HOGAN

First Applicant

AND:  RIKFIRE FILMS LIMITED

Second Applicant

AND: KOALA DUNDEE PTY LIMITED

Respondent

PINCUS J. 8 APRIL 1988

M TEMPORE REASONS FOR JUDGMENT

In thls matter the respondent in the prlnclpal

proceedings seeks an order, under 5 . 4 0 of the Federal Court of

Australia Act 1976, directing the trial of the issues in the suit by jury- The applicant in the principal proceedings is the

leading character in the film "Crocodlle Dundee" and he and	the
second applicant, the producer	of the film, complain that the

. respondent is exploiting commerclal advantages, which are sald

properly to belong to the applicants associated wlth that	film, in
a way which breaches the Trade Practices Act	1974. The details do

not matter, for present purposes, but the material before the

Court suggests the complaint is principally of use of the

expression "Dundee Country" in the context redolent of the film

and accompanied	by an image of a koala dressed in	a way which also
reminds one	of the dress	of the applicant in the film.

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2.

The convenient course is to use the designations the

parties have in the principal proceedings, that is, the party
applying for this relief will be hereafter referred to as the

respondent.

The relevant provisions of the statute are as follows:

5.39 says:

“In every suit in the Court, unless the Court or a

Judge otherwise orders, the trial shall be by a

Judge without a jury.“

Section 4 0 says:

“The Court or a Judge may, in any suit n which the

ends of lustice appear to render it expedient to do

so, direct the trial with a jury of the suit or of

an Issue	of fact, and may for that purpose make	ll
such orders, issue	all	such wrlts and cause all

such proceedings to be had and taken as the Court

or Judge thinks necessary, and upon the finding	of
the	~ury the Court may give such declslon and

pronounce such judgment as the case requlres.”

Those provisions are, so far relevant, as

indistinguishable from ss.12 and 13 of the Hiqh Court Procedure

. Act 1903-1950, the effect of which were considered by Fullagar J.

in McDermott v. Collien (1953) 87 C.L.R. 154. That was an

interlocutory application to Fullagar J. seeking trlal by jury of an action brought by residents of different States, relating to

the question whether	a motor car was of merchantable quality. His
Honour refused to order	a jury, remarking at p.157:

“Trial without a jury is the normal mode f trial of

actions in this Court, and some special reason must

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3.

be show for a departure in any particular case

from that normal mode."

MK O'Donnell, who referred me to the case on behalf of

the respondent, pointed out that the McDermott litigation seemed

to be one in which there was no possible justification for

ordering trial in the mode sought. With that contention I agree.

Nevertheless, it is important to notice that the principle which

Fullagar J. expressed appears to be equally applicable in

construing ss.40 and 41 of the Federal Court of Australia Act. Mr

O'Donnell also referred	me to a decision of Northrop	J. in
Insurance Commissioner	v.	Australian Associated Motor Insurers

Ltd (No. 2 ) (1982) 49 A.L.R. 714.

His Honour there referred to the relevant provlslons of

the Act which I have mentioned and remarked at p.716: "In the

Federal Court, the normal method or mode of trial of a sult	is by
judge alone..." He then went on to say:

"Before the court or a ~udqe exercises the

discretion conferred by s.40 of the Federal Court of Australia Act, some substantial reason must be

shown for a departure from that normal method or

mode of trial."

In making the latter remark his Honour followed the vlew of	Mr
Justice Fullagar.

Accepting the principles thus laid down, Mr O'Donnell

argues that the case is one in which a jury should decide the

facts, as being a body peculiarly fitted to form an accurate view

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4 .

of the reaction of the ordinary member of the public to the images

presented in the	respondent's premises,	of which the applicants
complain.

Mr Campbell, on the other hand, says that cases of this

sort are tried in this Court and in Supreme Courts by judges alone

and he argued, as it seems to me correctly, that it is at least

unusual to have what is at common law called a passing off suit

tried by jury. In my experience, passing off suits in the Supreme

Court of Queensland are not tried by a jury, although as Mr O'Donnell (as it seems to me, correctly) has pointed out, it would seem that a plaintiff has at least a prima facie right, under the

Supreme Court's rules, to a jury.	In this Court the law is
otherwlse.

There are evidence disadvantages in a jury trlal, from

the point of view of length and expense. I would add that in my

view a peculiarity of jury trial, which adds to its inconvenlence, is that it is more difficult in the event of the ~udge's having been held to have misdirected the jury or made some error as to

the admissibility of evidence, to have the appellate Court deal

. with the matter finally. The ordinary result of its being held

that such an error has been made is	a new trial and	that contrasts
with the practice	in appeals from judges sitting	alone.

Those considerations of convenience, however, are

subsidiary. The point appears to be whether some speclal reason

has been shown, in this case, for ordering a jury trial. Despite

the able submissions made by Mr O'Donnell, I remain unconvinced

5 .   .

. ... . I _ -

,.__ there is any such sp lecial re !ason- Althoughthe .. facts concern a

-lj + .+#*en--- -c * .:

character who has attained some fame, in other respects the case is a perfectly ordinary one. It is not, as Mr O'Donnell points out, (L passing off case but has been brought under the Trade

Practices Act; nevertheless it is quite similar in character, as

to the issues which have to be determined, to a passing off suit

and such cases are not ordinarily, if ever, tried by jury. The

application for trial by jury will, therefore, be refused.

1 h t i f y that this and the I!-/ precedlng

pages are a trua copy of the reasons for

IdJrrent herein of His Honour

Mr Justice Pincus L & d

' - 0 Associate

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