Hogan, P. & Anor v. Koala Dundee Pty Ltd [1988] FCA 238

filed on 29 March 1988 be taxed and paid by the respondent to the applicants, such taxation not to

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

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

IN COURT OF AUSTRALIA ) Ss Tr CT REGIS ) N.S.W. G749 of 1987

BETWEEN: PAUL HOGAN First Applicant AND: RIMFIRE FILMS LIMITED

proceedings seeks an order, under s.40 of the Federal Court of

Australia Act 1976, directing the trial of the issues 1n the suit by jury. The applicant in the principal proceedings is the leading character in the film "Crocodile Dundee" and he and the second applicant, the producer of the film, complain that the respondent is exploiting commercial advantages, which are said properly to belong to the applicants associated with 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.

applying for this relief will be hereafter referred to as

the parties have in the principal proceedings, that is, the party the

The relevant provisions of the statute are as follows:

"In every suit in the Court, unless the Court or a Judge otherwise orders, the trial shall be by a Judge without a jury."

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

ends of justice 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 all such orders, issue all such writs and cause all such proceedings to be had and taken as the Court or Judge thinks necessary, and upon the finding of the jury the Court may give such decision and pronounce such judgment as the case requires."

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

Act 1903-1950, the effect of which were considered by Fullagar in McDermott v. Collien (1953) 87 C.L.R. 154. That was

interlocutory application to Fullagar J. seeking trial by jury

the question whether a motor car was of merchantable quality.

Honour refused to order a jury, remarking at p.157:

"Trial without a jury is the normal mode of trial of actions in this Court, and some special reason must

an action brought by residents of different States, relating to His

be shown for a departure in any particular case from that normal mode."

Mr 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

nsurance Commissioner v. Australian Associated Motor Insurers

His Honour there referred to the relevant provisions 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 suit is by

"Before the court or a judge 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 view of Mr

Accepting the principles thus laid down, Mr 0O''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

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

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

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

There are evidence disadvantages ina jury trial, 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 inconvenience, is that it is more difficult in the event of the judge'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 special reason has been shown, in this case, for ordering a jury trial. Despite

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

there is any such special reason. _ Althou gh_the facts concern a, , - 20S: 2 Peeters 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, a 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.

Ltertify that this and the L{ preceding Pages are a true copy of the reasons for juz jment herein of His Henour Mr Justice Pincus