Case: Compaq Computer Australia Pty Ltd v Merry [1998] FCA 968 ; (1998) 157 ALR 1
Outcome: discussed
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. 19 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 . 20 Having heard the parties' arguments, I would not put the respondents to their election in respect of that part of their no-case submission that concerned the scope of the definition of "building industrial action". Had the respondents been successful on this aspect of their no-case submission, they would have defeated the applicant's s 38 case against them, without needing to answer this part of the applicant's case further. The respondents' argument was to the effect that there was an evidentiary hiatus in the applicant's case because the applicant had not adduced any evidence that any "ban, limitation or restriction" had been imposed by employees in respect of the work to which the ban, limitation or restriction related. In order to succeed on this limb of their no-case submission, the respondents had to persuade the Court that their construction of the definition of "building industrial action" was the preferable one, and that the applicant had adduced no evidence on an important element of it. For the following reasons, the respondents have failed to persuade me that their construction of the definition should be adopted, but, equally, it seems to me just and convenient that I rule on this question now without putting them to their election. I have heard the argument. The consideration of this part of their no-case submission involved no consideration of disputed evidence, and, as stated above, if accepted, it would have completely answered the applicant's allegations that they had contravened s 38 of the BCII Act : compare Compaq Computer at 7; Residues Treatment &amp; Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54 (" Residues Treatment ") at 68 per Perry J; and Puddy at 245. 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". 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.