Case: Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344
Outcome: cited
Order 35, Rule 1 of the Federal Court Rules is the source of the power to entertain a 'no case' submission without the need to invoke s 79 of the Judiciary Act 1903 (Cth) ( Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 at [60] per Sackville J). The general rule of practice is that a 'no case' submission will not be entertained or, alternatively, no ruling made unless the moving party elects to call no evidence ( Protean (Holdings) Ltd v American House Assurance Co. [1985] VR 187; Stevenson v Barham [1977] HCA 4 ; (1977) 136 CLR 190 at page 202, per Mason and Jacobs JJ) although, the general rule is not an 'inflexible rule' ( Compaq Computer Australia Pty Ltd v Merry &amp; Ors (1998) 157 ALR 1 at page 7) and not necessarily the 'right course in every kind of case' ( Parry v Aluminium Corporation [1940] WN 44 at 46 per Goddard LJ). The general rule must 'give way to particular circumstances' in the exercise of the discretion ( Stevenson v Barham (supra) at page 203, per Mason and Jacobs JJ) and ultimately the matter is one for the discretion of the judge having regard to the just and convenient disposition of the litigation ( Protean at page 238 per Tadgell J) or, as French J observes, a function of judicial case management conditioned by the circumstances of the case ( J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) &amp; Ors (No. 2) (1992) 38 FCR 458. 86 The general rule recognises the undesirability of the judge embarking upon an assessment of the evidence and particularly the reliability of witnesses twice in the one proceeding, the importance of avoiding a delay in the conduct of the trial and the utility of avoiding a second trial if a 'no case' submission upheld by the trial judge with judgment for the respondent is set aside upon appeal. If the 'no case' submission turns solely on a question of law or jurisdiction ( Stevenson v Barham (supra)), or the cause of action relied upon by the applicant involves an allegation of fraud or allegations analogous to fraud ( ACCC v Amcor (supra)), the respondent (defendant) ought, as a matter of discretion, not be put to an election. If however, the submission involves taking the totality of the evidence of the applicant, assessing that evidence at its highest for the applicant and dealing with a contention by the moving party that the evidence does not support the causes of action pleaded or, alternatively, where it is contended that there is some evidence to support the plaintiff's claim but the evidence is sufficiently unreasonable that it should be dismissed without calling upon the respondents to adduce evidence, there seems no relevant point of departure from the application of the general rule that the respondents ought to make an election to adduce no evidence before being given leave to make the submission of 'no case' to answer (see Residues Treatment Trading Co. Ltd v Southern Resources Ltd (1989) 52 SASR 54 at page 68 per Perry J. 91 Mr Hatcher, having made the election, made extensive submissions in support of the application. Counsel for the applicant responded and Mr Hatcher made submissions in reply. In dealing with the disposition of the matter, I propose to review all of the evidence and the issues with a view to making final dispositive determinations on all matters. In James v ANZ Bank (supra), Toohey J made these observations at pg 400: 'If a defendant elects not to call evidence, the judge has before him all the evidence upon which he is called to make a decision. Any distinction between the role of the judge in ruling on a no case submission and the role of the judge as an arbiter of fact becomes largely illusory.' And in Prentice v Cummins (supra), Sackville J made these observations at [110]: 'In Rasomen Pty Ltd v Shell Co. of Australia Ltd (1997) 75 FCR 216, the Full Court held (at 228) that in addressing a no case submission the function of a judge sitting alone is no different from that which has to be performed by a judge who has heard all the evidence of the parties in the usual way and who has to give final judgment. In particular, where the moving party (in this case the respondents) contends that the evidence does not give rise to the inferences of fact alleged by the opponent (in this case the Trustees), it is appropriate for the trial judge to decide what inferences he or she would draw from the evidence and to act on those conclusions, if necessary to determine finally the issues in the case: Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 at 360.'