Case: Prentice v Cummins [2002] FCA 1503 ; (2002) 124 FCR 67
Outcome: cited
Put simply, the parties came to a case managed trial to have a trial and hear all the evidence once. If the respondents wish to contend, in the circumstances of these issues between these parties that 'no case' to answer arises on the evidence and as a matter of law, the fair and just disposition of the litigation required the orthodox application of the general rule. No special or differentiating circumstance was identified by the respondents to displace the orthodoxy of the general rule (see Prentice v Cummins [2002] FCA 1503 ; (2002) 124 FCR 67 at pgs 93, 94 and 95 and The Trustees of the Property of Cummins v Mary Cummins [2006] HCA 6). 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.' 92 Accordingly, I propose to address the totality of the evidence, examine the inferences that are open on the evidence, determine whether any inferences can be drawn from the failure by Mr Ramsey to give evidence, assess the submissions put to me concerning the evidence of Mr Davis and Mr Broadway and make dispositive findings. A further question is the extent to which inferences might be drawn from the failure of Mr Ramsey to give evidence in circumstances where the respondents have been put to an election. Since the 'no case' submission rests on the grounds I have identified, '... it is difficult to understand, as a matter of principle, why, in such a case, once the respondents have made the election not to call evidence, the material to be taken into account should not include any inferences that may be available on the principle of Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298, by reason of the failure to call evidence' : Prentice v Cummins (supra) per Sackville J at [114]. Nevertheless, I propose to analyse the evidence adduced by the applicant, determine what inferences might be drawn from that evidence and determine whether the statutory presumption conferred by s 298V operates. I will then consider, additionally, whether the failure to call evidence might be taken into consideration. In The Trustees of the Property of Cummins v Mary Cummins (supra) the High Court in considering the inferences drawn by Sackville J in Prentice v Cummins (from which the appeal came), was invited to consider the applicability of the reasoning that inferences are available to be drawn by reason of the application of the principles in Jones v Dunkel when the party against whom those inferences might be drawn has elected to adduce no evidence in its case. Their Honours found it unnecessary to embark upon that matter as Sackville J did not err in putting his conclusion on its primary basis unassisted by Jones v Dunkel . 370 The applicant contends that the evidence establishes contraventions of s 298K both independently of and having regard to s 298V. As to the state of the evidence generally, I am satisfied the evidence supports the inferences I have drawn. The evidence giving rise to those inferences and the ultimate facts in issue have not been the subject of any evidence from the respondents and in particular, from Mr Ramsey. It seems to me, consistent with the approach adopted by Sackville J in Prentice v Cummins (supra) that as a matter of principle, an election by the respondents in the circumstances of the foundation for the 'no case' submission provides a proper basis for drawing inferences consistent with the principles identified in Jones v Dunkel (supra), adverse to the respondents.