Case: Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344
Outcome: considered
At the close of the applicant's case on the evening of 17 July 2008, the respondents stated that they wished to make a no-case submission in respect of parts of the applicant's claims against them. Whilst there has been judicial disagreement about the source of the Court's power to hear a no-case submission and the manner in which it should be dealt with, neither issue requires examination in this case. It is accepted that the Court has power to entertain such a submission: see Rasomen Pty Ltd v Shell Co of Australia Ltd (1997) 75 FCR 216 (" Rasomen ") at 223 per von Doussa, Drummond and Finn JJ referring to O 32, r 4(4) of the Federal Court Rules 1979 (Cth) ("the Rules") and s 79 of the Judiciary Act 1903 (Cth); and Compaq Computer Australia Pty Ltd v Merry [1998] FCA 968 ; (1998) 157 ALR 1 (" Compaq Computer ") at 6 per Finkelstein J, Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 (" Amcor ") at 356-60 per Sackville J and Australian Competition and Consumer Commission v Leahy [2004] FCA 1678 ; (2004) 141 FCR 183 (" Leahy ") at 210 per Merkel J referring to O 35, r 1 of the Rules. The approach is the same, whatever the source of the power: compare Compaq Computer at 6. 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 . 24 In Amcor , the applicant alleged that the respondents had contravened s 45(2)(a)(i) of the Trade Practices Act 1974 (Cth), a provision which attracted substantial penalties. The applicant's evidence in chief concluded on the first day of the trial, when counsel for the respondents submitted that they should be permitted to make a no-case submission without being put to their election. Sackville J held that the circumstances justified a departure from the general rule that a decision will not be given on a no-case submission unless the submitting party elects to call no evidence. His Honour accepted that the case fell within the third category mentioned by Perry J in Residues Treatment at 68 (on consideration of the evidence adduced by the plaintiff taken at its highest from the plaintiff's point of view, the evidence could not support the cause of action pleaded) and that, in such a case, "there must be unusual circumstances to warrant the respondents being permitted to make their no case submission without being required not to adduce any evidence": see Amcor at 358. Sackville J held, however, that the circumstances were sufficiently unusual and that it was in the interests of justice for the respondents to be permitted to make their no-case submission without making an election. His Honour said (at 358): First and most important, I took the view that this is a case in which serious allegations of contraventions of the TP Act had been made against each of the respondents. If the allegations were to be established, the corporate respondents would be exposed to pecuniary penalties of up to $10,000,000 and the individual respondents to pecuniary penalties of up to $500,000. Adverse findings might well have serious consequences in terms of loss of business reputation. The authorities recognise that a departure from the general rule is often justified where fraud is alleged against the moving party. In Union Bank of Australia v Puddy [1949] VLR 242 , Fullagar J said (at 246) that where fraud is alleged: it may often be wrong to suggest that a party should submit himself to cross-examination before it is seen that there is really some evidence against him. See also Protean at 215 per Young CJ; at 236 per Fullagar J; [Compaq Computer] at 7. The present case is not one in which fraud has been alleged, but in my opinion it is analogous to a fraud case by reason of the very serious allegations that have been made against each of the respondents: see [Trade Practices Commission v George Weston Foods Ltd (1980) 43 FLR 55] at 61; Trade Practices Commission v Nicholas Enterprises Pty Ltd [1978] ATPR 40-097 (Fisher J), at 17,958. The analogy is in my view strengthened by the fact that the definition of 'exclusionary provision' in s 4D of the TP Act incorporates the concept of 'purpose' in a subjective sense: ASX Operations Pty Ltd v Pont Data Australia Pty (No 1) (1990) 27 FCR 460 at 474-7 ... The respondents in this case relied on these passages. 25 There were other factors that also affected Sackville J's assessment, including the fact that the no-case submission did not require an assessment of the credit of any witness, since the facts of the case were largely not in dispute. His Honour observed that he would not have entertained the no-case submission unless the respondents had made their election if it had required him to make an assessment of credit. Additionally, all respondents in Amcor desired to make the submission; there were possible savings in court time and costs; and the applicant had been on notice prior to trial that the respondents proposed to make a no-case submission. His Honour also noted that he formed the impression that the no-case submission was strongly arguable. 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. 28 Secondly, the respondents' no-case submission is a limited one. They advanced this submission only in respect of the events of 21 and 22 February 2006 and following (which are said to give rise to the breaches of ss 38 and 43 of the BCII Act referred to above). Whatever the outcome of this submission, the events of 15 and 17 February 2006 (which are said to give rise to breaches of s 43) would go forward to the end of the trial and the evidence as to them would fall for consideration. It must be borne in mind that Mr Mates is as much a central actor in the events of 15 and 17 February as 21 February and, on the applicant's case, 22 February 2006 and following. Furthermore, the applicant's case against the respondents does not readily permit the dissection the respondents seek. The applicant's case depends, at least in part, upon a consideration of the whole factual matrix, commencing with the alleged conversations on 15 February and, subsequently, 17 February 2006 and culminating with the picket on 22 February 2006 and following. On the applicant's case, Mr Mates' stopping of the crane on 21 February 2006 (which the respondents concede) was within the relevant time-frame. On the applicant's case, this event on 21 February 2006 not only amounts to breach of ss 38 and 43 , but also formed part of the factual matrix upon which other parts of his case against the respondents must be assessed. The temporal link is, on the applicant's case, "extremely important". The applicant's counsel submitted that, whether or not the respondents were put to their election, the evidence regarding the picket and stopping of the crane would remain relevant to the case against the respondents on the other alleged contraventions that were not covered by the no-case submission. Hence, even if the no-case submission were successful, the Court would be obliged to reconsider the evidence that it had already considered as part of the no-case submission, although from another perspective. The applicant also foreshadowed that there might be related difficulties for the conduct of the trial, especially if the Court were to accept part (e.g., regarding the picket), but not all (e.g, regarding the crane stoppage) of the respondents' no-case submission. I agree that there is a risk of embarrassment arising from dealing now with part only of the applicant's case against the respondents, especially having regard to the way the applicant would put its case: compare Residues Treatment at 71-3, Popovic v Tanasijevic (No 4) [1999] SASC 351 (" Popovic ") at [124] per Olsson J and Leahy at 210-12. Of course, in the absence of an election, if the no-case submission were to fail, then the Court would be required to reconsider the evidence considered on the no-case submission in any event. As Sackville J noted in Amcor at 357, this problem may be particularly acute if a no-case submission requires some evaluation of the credit of witnesses. Whilst I accept that, strictly speaking, the respondents' no-case submission may not involve an evaluation of credit, their submission at this point calls for assessments of evidentiary reliability that in some instances give rise to similar concerns: compare Residues Treatment at 69 and George Weston at 58-9. 29 There is, of course, good reason for the general rule that a decision will not be given on a no-case submission unless the submitting party elects to call no evidence. If a judgment in favour of a no-case submission is overturned on appeal, it would generally be necessary to order a new trial: see Compaq Computer at 7 and Amcor at 357. The trial in the present case has proceeded over 4 days. There has been significant cross-examination of the witnesses called by the applicant. Whilst the respondents have filed witness statements from five persons, at the commencement of the trial, they stated that they would not be relying on two of these statements. They have not indicated whether or not Mr Mates will give evidence and, if he does, in what circumstances he would do so: compare Evidence Act 1995 (Cth), s 128. The trial is unlikely to take any more than 2 days to complete.