Case: Protean (Holdings) Ltd v American Home Assurance Co [1985] VR 187
Outcome: applied
The Magistrate first considered whether as a condition of the no-case submission the respondent should be put to its election to call no evidence. His Honour referred to Protean (Holdings) Ltd v American Home Assurance Co [1985] VR 187 at 238 ( Protean ), where Tadgell J, with whom the other members of the Full Court agreed, said: "In deciding which course to follow the Judge will be guided by the nature of the case, the stage it has reached, the particular issues involved and the evidence that has been given. The imposition of a requirement that the moving party make an election before the Judge entertains the submission, or before he rules on it will depend on the just and convenient disposition of the litigation." 24 As to the "nature of the case" the Magistrate said: "28. ... the nature of the case involves what I regard as [the] serious allegation of unlawful discrimination against a Respondent, which, it is relevant to note, is the operator of a child care centre. To allege that a child care centre has unlawfully discriminated against a disabled child, in my view, is a serious and grave allegation. 29. It is particularly serious when the allegation is based not simply on a failure to provide an item of equipment or a means of access but is directed to what might be described as the day-to-day care of a child and/or the misuse of appropriate Commonwealth funding which in part is designed to optimise, in consultation with appropriate specialists, the use by the child of his right side 30. Hence, in my view, in considering the nature of the case, I am satisfied that these are significant, serious and grave allegations." 25 In considering the "particular issues involved" the Magistrate repeated what he had said about the nature of the case. As to the stage the case had reached, he said that it was at the close of the appellant's case in a hearing that had commenced in March 2006 and had been adjourned to other dates primarily for the convenience of the next friend. His Honour concluded that this was not a case where the respondent should be put to its election. 26 The Magistrate rejected the respondent's submission that there was no evidence that the respondent was an educational authority for the purposes of s 22 of the DDA. 27 The Magistrate then considered the no-case submission in the "broader sense", that is to say on the basis that the respondent was an educational authority. He examined in detail the evidence of Associate Professor Ochiltree, whose expertise in the area of child care he accepted. At the conclusion of this examination the Magistrate said that despite his misgivings about the lack of specifics the Professor provided in relation to certain documents, her untested evidence in chief "would go some way to supporting" the appellant's case. His Honour continued: "52. After the cross-examination of Professor Ochiltree, however, it is my conclusion that she accepted that when further materials concerning plans and like matters of the Respondent were brought to her attention she was satisfied overall that the Respondent's plans and arrangements for Applicant N were appropriate." 28 At the conclusion of a lengthy examination of the detail of the cross-examination of Professor Ochiltree his Honour said: "58. Those extracts ... reveal what I would describe as strong evidence, not in support of the Applicant's claim but rather in support of the Respondent's defence." 29 After quoting passages from the witness's re-examination the Magistrate said: "61. That evidence of Professor Ochiltree, in my view, directly addresses what I regard as the core issues of the claim set out in the extracts from the Statement of Claim earlier in this judgment and addressed relevantly in other evidence of the next friend ... and another supporting witness. 62. The evidence, as I have indicated, in my view, is evidence which goes not to support the Applicant's claim but rather, effectively and ultimately, to support the Respondent's defence. It does so in what I regard as a clear and concise manner and it is perhaps not surprising given that, in the circumstances, when the witness had completed her affidavit earlier this year, I am satisfied she was not in possession of what might be regarded as relevant documents." 30 The Magistrate then considered the appellant's father's evidence, and said that it "reveals what could only be described as a somewhat limited opportunity to make any or any adequate assessment of the reality of the Respondent's premises." The father had said in his evidence in chief that it was open to him to inspect what was happening with his son's special needs program, but he had no reason to suspect that there was anything wrong, and would rarely spend any time at the centre other than picking the son up and dropping him off. 31 The Magistrate examined the evidence of Brian Hoare, an occupational therapist. This witness spoke about the improvement in the appellant's handskills over the period 2002 to 2005. The following exchange occurred in the course of his cross-examination: "What I'm asking you, as an occupational therapist, is very simply this: this child could not have made significant progress that you observed over the previous four years, going back from March 2005 if the place where he spent most of his time was not implementing appropriate therapies on his right hand. It follows, doesn't it?---It does make some sense, yes. Of course, it does. It's an absolute inevitable conclusion, isn't it, Mr Hoare? Do you agree with that?---Yes in terms of his development, he did improve quite a lot over those four years. No that's not the question. I'm saying it's an inevitable conclusion that the cr&egrave;che provided the appropriate therapy to his right hand. That's the only way he could have made significant progress?---I can't answer that because I wasn't at the cr&egrave;che." 32 The Magistrate concluded that neither the father's nor Mr Hoare's evidence: "assist the applicant's case in any meaningful sense or would enable this court to make findings in favour of the applicant." 33 The Magistrate concluded his reasons as follows: "72. On my analysis of the material it is evident and leads to a strong conclusion that in applying the relevant principles, which I am bound to apply, set out in Protean the no-case submission should be upheld. I conclude that the evidence for and on behalf of the Applicant is not sufficient to de-bar the Respondent from obtaining judgment without having to answer the evidence adduced against it. In my view, the evidence against the Respondent is so unsatisfactory and/or unreliable that it should not be acted upon. ... 74. I am satisfied that the key expert witness, Professor Ochiltree, gave her evidence in what I describe as a fair and genuinely independent manner. She gave answers, however, which I have indicated earlier, effectively support the Respondent's defence rather than the Applicant's claim. My assessment of the evidence ... is based not on the Briginshaw test but rather on the normal balance of probabilities standard of proof. I have done that, out of an abundance of caution, in order to give the greatest advantage that I may to the Applicant when considering this 'no case' application." 39 In my view there is no obligation on a judge determining a no-case submission to view an applicant's case "at its highest". Over 20 years ago this kind of submission was rejected by the Full Court of the Supreme Court of Victoria in Protean , a decision that has been followed on numerous occasions in this and other Courts. The submission made in Protean is recorded at [1985] VR at 218: "The learned Judge, in deciding the no case submission, embarked upon the wrong exercise, in that he 'finally decided the issues'. The question he should have posed himself, it was said, was not 'should I find the critical result in the defendant's favour, but would it be open to me to do so if the trial went on'. It was submitted that 'the learned Judge misconceived his function in deciding on the no-case submission, because it reads as a final judgment on the facts, as a final resolution of the issues, with inferences drawn and applied as if he were deciding at the end of the whole case. His true function was very special, to decide whether the evidence before him (treating it in the most favourable way to the defendant) permitted the inferences to be drawn in favour of the affirmative defences, and not to decide whether his Honour should draw these inferences." 40 In an oft quoted passage, Tadgell J said at [1985] VR at 239 that in dealing with a no-case submission a judge sitting alone "must be entitled ... to assess the quality of the evidence. Were it otherwise the Judge, being the tribunal of fact, would be placed in an impossible position: he would have to assess the validity of the case for the respondent party without being able to assess the worth or weight of the evidence led in support of it .... If it falls to the Judge to decide whether he could find for the respondent party on the evidence so far led, it is quite unrealistic to expect him to do so without being able to consider all questions which bear on the sufficiency of the evidence and without power to draw or to decline to draw all inferences from the evidence given on which the respondent party might seek to rely." 41 The same submission that was thus rejected in Protean was put to the Full Court of this Court in Rasomen . The submission is recorded at 75 FCR at 227. It was rejected in reliance on what had been said in Protean . At 228 the Full Court said: "the function to be performed by a trial judge sitting without a jury ... is no different from that which has to be performed by a judge who has heard all the evidence of the parties in the ordinary way and who has to give final judgment. In both situations, the judge must make findings of fact, after assessing the quality of the evidence." See also Amcor 169 ALR 344 at [76] per Sackville J and Tru Floor Service Pty Ltd v Jenkins (No 2) (2006) 232 ALR 532 at [36] to [40] per Sundberg J ( Trufloor ). Accordingly this ground of appeal has no substance. 43 Next the appellant attacks the Magistrate's "failure" to put the respondent to its election. As appears from [23] to [25], the Magistrate took into account the matters adverted to in Protean [1985] VR at 238. 44 As the Magistrate said, the appellant alleged that the respondent had engaged in unlawful conduct. Both ss 22(2) and 24(1) of the DDA begin with the words "It is unlawful ...". Furthermore, the broad complaint was that the respondent, a child care centre operator, had discriminated against a child with a disability. In addition, a particular complaint was that the respondent had misused Commonwealth funding that was intended to benefit the child. The Magistrate was clearly entitled to take into account, in the exercise of his discretion not to require the respondent to elect, the seriousness of the allegations made by the appellant. 79 The appellant then relied on the observation of Tadgell J in Protean [1985] VR at 238-239 that in deciding whether or not the general rule as to election should be followed, the Judge "will sometimes be assisted to know the basis on which the moving party seeks to rest his submission of no case". His Honour went on to distinguish three situations: &#8226; where the submission is that there is no evidence at all in support of the applicant's case &#8226; where although there is some evidence in support of the case, the Judge should not act on it because it is so unsatisfactory or inherently unreliable or equivocal that he should find that the burden of proof has not been discharged &#8226; a combination of the above. 80 The appellant's contention was that the respondent had not made this "delineation" and accordingly had denied him procedural fairness. Tadgell J did not posit any requirement that the respondent's counsel state his position. As appears above, his Honour merely said that "sometimes" the Judge will be assisted to know how the case is put. In any event, the transcript shows that counsel put the matter squarely on the first basis. There was no denial of procedural fairness. 81 Then it was said the respondent relied on untendered affidavit material. Nothing turns on this, because the Magistrate made clear at that the material was not before him for the purposes of the no-case submission. This related submission must be rejected. 82 The final complaint under this head relates to the documents Professor Ochiltree was shown in cross-examination. They were marked for identification, but did not go into evidence because of the no-case submission. The Magistrate made clear in the course of the submission that the respondent's documents did not form part of the material on the basis of which he was to rule on the submission. The Magistrate made clear in his reasons that the documents did not go into evidence. However, as he said, this did not preclude his reliance on Professor Ochiltree's evidence in which she referred to those documents. The appellant's complaint that it is not clear whether the documents were part of the evidence on which the no-case submission was decided is rejected.