Case: Tru Floor Service Pty Ltd v Jenkins (No 2) (2006) 232 ALR 532
Outcome: considered
In the present case, for the reasons indicated at the hearing, I determined that I would not rule on whether the respondents should be required to make their election until after the parties had addressed argument on the no-case submission, and as to whether the respondents should be required to make an election. It seemed to me that it was appropriate to take this course in order to understand the nature of the argument the respondents sought to make in saying that they had no case to answer. This was the approach adopted by Fullagar J in Union Bank of Australia Ltd v Puddy [1949] VLR 242 (" Puddy "); by Finkelstein J in Compaq Computer ; by Branson J at first instance in Rasomen (see Rasomen Pty Ltd v Shell Co of Australia Ltd (1996) 71 FCR 540 at 543); by Sundberg J in Tru Floor Service Pty Ltd v Jenkins (No 2) (2006) 232 ALR 532 (" Tru Floor ") at 537; and approved by the Full Court of the Supreme Court of Victoria in Protean . 21 The remainder of the respondents' no-case submission attracts different considerations as to the application of the general rule: compare Residues Treatment at 68-9; William H Muller &amp; Co's Algemeene etc v EBBW Vale Steel, Iron &amp; Coal Co Ltd [1936] 2 All ER 1363 at 1365-6 per Branson J; and Tru Floor at 538-9 (and the cases there cited). 22 In support of their submission that they should not have to make an election as a condition of my ruling, the respondents relied heavily on the fact that the alleged contraventions of the BCII Act attract civil penalties; and they submitted that it would be unjust to expose Mr Mates to cross-examination if a case had not been established against them. They referred to Tru Floor , Compaq Computer and Amcor . 23 In Tru Floor, Sundberg J determined that the defendants (who were directors of a building contractor company) should not be put to their election before his Honour ruled on their no-case submission against the plaintiffs (who were building subcontractors). The plaintiffs alleged that the defendants had contravened the Corporations Law or the Corporations Act 2001 (Cth), by trading while insolvent. A contravention such as this attracted a civil penalty. His Honour noted (at 540-1) considerations in favour of this course included the fact that "part of what is alleged against the defendants is an offence involving dishonesty", his impression that the plaintiffs' case on insolvency was not strong, and that there were likely significant savings involved in entertaining the no-case submission. His Honour said (at 541) that "it would be wrong for the defendants to be subjected to cross-examination on the dishonesty component of the offence before it is seen that there is some evidence of the insolvency component". As Sundberg J noted, similar factors affected Finkelstein J's decision in Compaq Computer not to require the respondents to elect, including the nature of the allegations made against them, which were allegations of dishonesty, as well as his impression about the weakness of the case, and that well over a week's hearing time remained to complete the trial: see Compaq Computer at 9. In Compaq Computer Finkelstein J commented, at 7, that: Another instance where a departure from the rule would be justified is in a case where fraud is alleged. It was accepted by the Full Court in Protean that in such a case normally it would be wrong to require a party to subject himself to cross-examination if there really was no evidence of fraud against him: see [1985] VR at 236 where Puddy's case is cited as authority. And there will be other circumstances where the justice of the case will permit the court to determine a case at an early stage ... His Honour held (at 9) that "[t]he respondents should not be required to call evidence or submit themselves to cross-examination if a sufficient case of wrongdoing has not been established against them". 27 I doubt, however, that these considerations provide an answer in this case. First, whilst I appreciate the force of the respondents' no-case submission, I doubt that the respondents' no-case submission in this case is as strong as that considered by Sundberg J in Tru Floor or Sackville J in Amcor . To my mind, the position now reached in this case is more akin to that described by Davies J in Trade Practices Commission v George Weston Foods Ltd (No 2) (1980) 43 FLR 55 (" George Weston ") at 60-2.