McDermott v Collien

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.