Hay v Dalgety & Company Ltd [1907] HCA 5; (1907) 4 CLR 913 (26 March 1907)

In this case, which is an action by a mortgagor against his mortgagees claiming damages in respect of a breach of a covenant entered into in one of two mortgage transactions, an application was made by the plaintiff to Hodges J., upon summons for directions as to the mode of trial, that the case should be tried before a jury. The learned Judge refused to make an order for trial before a jury, and the Full Court dismissed an appeal against that refusal.

The case made by the plaintiff depends upon Order XXXVI., rr. 4, 5 and 6, of the Rules of the Supreme Court 1884. Rule 4 provides that:—"The Court or a Judge may, if it shall appear desirable, direct a trial without a jury of any question or issue of fact, or partly of fact and partly of law, arising in any cause or matter which previously to the passing of the Act could, without any consent of parties, have been tried without a jury." Rule 5 provides that:—"The Court or a Judge may direct the trial without a jury of any cause matter or issue requiring prolonged examination of documents or accounts, or any scientific or local investigation, which cannot in their or his opinion conveniently be made with a jury." Rule 6 provides that:—"In any other cause or matter, upon the application of any party thereto for a trial with a jury of the cause or matter or any issue of fact, an order shall be made for a trial with a jury." The plaintiff relied upon r. 6. The defendants relied upon r. 5, alleging that the case was one which required a prolonged examination of documents and accounts which could not conveniently be made with a jury. That view commended itself to the learned Judge of first instance. The pleadings, which alone were before the learned Judge, set out a number of mortgages and assignments, and the learned Judge thought that those documents would have to be examined at length, and that there would be a prolonged examination of them within the meaning of r. 5. He also thought that, as the measure of damages would depend on the amount owing under the main mortgage and the subsidiary mortgages, that would involve a prolonged examination of accounts. The learned Judges of the Full Court appear to have been of the same opinion.

In my opinion the words "any prolonged examination of documents or accounts" refer to an examination by the jury before they can give their verdict, and not to an examination by the Judge, although the documents or accounts may be long and may take some time to examine. In the present case the documents referred to would not be submitted to the jury, but it would be for the Judge to tell the jury what was their legal effect. As to accounts, there would be no more than a few sums in arithmetic. So that I cannot agree with the reason of the learned Judges in either Court in refusing a jury.

But attention is now called to rule 4, which provides that "the Court or a Judge may ... direct a trial without a jury of any question or issue of fact, or partly of fact and partly of law, arising in any cause or matter which previously to the passing of the Act could, without any consent of parties, have been tried without a jury." It is settled by the case of Baring Brothers & Co. v. North Western of Uruguay Railway Co.[1] that, if the action is one which before the Judicature Act might have been brought in Chancery, the circumstance that the plaintiff frames his action as one in the Queen's Bench does not entitle him to a jury as of right.

Could, then, this action have been brought in the equitable jurisdiction of the Court and tried without a jury before the passing of the Judicature Act? Rule 3 is called in aid. It says:—"Causes or matters heretofore within the cognizance of the Court in its equitable jurisdiction shall be tried by a Judge without a jury, unless the Court or a Judge shall otherwise order." Could, then, this action be cognizable in the equitable jurisdiction of the Court? The plaintiff's claim is thus stated:—He is the mortgagor and the defendants are his mortgagees. Under the terms of the mortgage he was entitled to have certain parts of the mortgaged property realized in a specified order, and he alleges that, by reason of the defendants failing to perform that express obligation, he sustained considerable loss. That is obviously a claim of precisely the same nature as a claim based on wilful default on the part of a mortgagee. It is called here a breach of covenant. It cannot be disputed that, in a suit for redemption by a mortgagor, he would be entitled to have all those matters investigated, and to get credit for all money which would have been received by the mortgagee if he had performed his covenant instead of breaking it. It seems to me perfectly obvious that this is a case which before the Judicature Act would have been within the cognizance of the Court in its equitable jurisdiction; and, therefore, that it must be tried without a jury unless otherwise ordered. The learned Judge refused to make such an order, and I am of opinion that his order was right.

I entirely concur. I think it is impossible to escape from the authority of Baring Brothers & Co. v. North Western of Uruguay Railway Co.[2]. One cannot help feeling glad that a jury need not be summoned to try a case of this kind.

I am of the same opinion. It is quite clear that the defendants have not established that the case is one coming under Order XXXVI., r. 5. The onus is upon the party asserting that the case requires a prolonged examination of documents or accounts to bring the case within that rule, and there is no evidence furnished by the pleadings themselves to support that assertion. I agree with His Honor the Chief Justice that the prolonged examination of documents or accounts must mean a prolonged examination by the jury and not by the Judge. But, on the ground last argued, I think it is clear that the right to a trial before a Judge without a jury exists in this case, inasmuch as it is a cause or matter which was heretofore within the cognizance of the Court in its equitable jurisdiction. From the authority of Baring Brothers & Co. v. North Western of Uruguay Railway Co.[3] it is impossible to escape. The substance of that case is this:—That where a cause of action is one which might be brought either in a Court of equity or in a Court of common law, the plaintiff cannot insist on a right to a jury merely because he puts his claim in a form in which it would be cognizable in a Court of common law. For these reasons I am of opinion that the appeal should be dismissed.

[1] (1893) 2 Q.B., 406.

[2] (1893) 2 Q.B., 406.

[3] (1893) 2 Q.B., 406.

High Court of Australia

Hay v Dalgety & Company Ltd [1907] HCA 5; (1907) 4 CLR 913 (26 March 1907)

HIGH COURT OF AUSTRALIA