Trial without a jury is the normal mode of trial of actions in the High Court Aug. 5, 7.
of Australia and some special reason must be shown for a departure in any particular case from that normal mode. It is not sufficient to show that a cause of action is of a kind which could properly be tried with a jury, and which was normally tried with a jury in England before the Judicature Act 1873, although the nature of the cause of action may be a relevant matter for ACTION.
Peter Joseph McDermott of Caulfield, Victoria, on 17th February 1953, commenced an action as plaintiff in the High Court of Aus- tralia against K. Collien and J. Luff, both of Gundagai, New South Wales, as defendants. The nature of the action and of the present application are sufficiently set out in the judgment hereunder.
Dr. S. H. Z. Woinarski, for the plaintiff. R. K. Fullagar, for the defendants.
Cur. adv. vult.
FULLAGAR J. delivered the following written judgment: 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 H. C. 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 con- tained 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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
McDermott v Collien [1953] HCA 44
Case
[1953] HCA 44
Decision Date
CaseChat Overview and Summary
In *McDermott v Collien*, Peter Joseph McDermott, a resident of Victoria, commenced an action in the High Court of Australia against K. Collien and J. Luff, residents of New South Wales. The dispute arose from an alleged sale of a motor car for £1200, with the plaintiff claiming breaches of express and implied conditions regarding the car's fitness for purpose and merchantable quality. The plaintiff sought to recover the purchase price paid and expenses incurred, or alternatively, damages for breach of warranty. The defendants denied the alleged conditions, breach, and asserted the plaintiff's acceptance of the goods.
The central legal issue before the Court was whether the action should be tried by a justice with a jury of six men, as requested by the plaintiff, or by a justice without a jury. This required the Court to consider the provisions of the *High Court Procedure Act 1903-1950* and Order 36 of the High Court Rules, specifically sections 12 and 13 of the Act and rules 3, 4, and 5 of Order 36, which govern the mode of trial.
The Court reasoned that trial without a jury is the normal mode of trial in the High Court of Australia, and a departure from this norm requires a special reason. It was not sufficient to demonstrate that the cause of action was of a kind traditionally tried by a jury. The Court found that the plaintiff had not shown any special reason or that the ends of justice would be better served by a jury trial. The nature of the claim, involving questions of implied conditions and acceptance of goods, was considered likely to involve interwoven legal and factual issues, making a trial by a single justice potentially more convenient. Previous applications for jury trials in the High Court had also been refused.
Consequently, the summons by the plaintiff for trial with a jury was dismissed, with costs awarded to the defendants.