Case: Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1
Outcome: followed
The defendants' counsel then developed his no case submission, without then being required to elect. The plaintiffs' counsel responded. I then reserved my decision on the no case submission and on whether the defendants should be required to elect not to call further evidence. This course was followed in reliance on Protean at 237-240, Rasomen at 498-499 and Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 at 6-9. In those cases approval was given to the approach to a no case submission described by Tadgell J in Protean at 237: "[The Judge] might allow the submission to be made without putting the moving party to any election at that stage but leaving, until he had heard it, the question whether or not he would rule on it without requiring an election to be made; and having heard the submission, and any answer to it by the respondent party, he could either rule on it or not, perhaps requiring an election to be made as a prerequisite to his doing so...." (His Honour had earlier indicated that the expression "moving party" meant the defendant making the no case submission and "respondent party" meant the plaintiff responding to the submission.) Young CJ expressed a similar view at 215 and Fullagar J agreed with what Tadgell J had said. 20 In William H Muller &amp; Co's Algemeene etc v Ebbw Vale Steel, Iron &amp; Coal Co Ltd [1936] 2 All ER 1363 at 1365-1366 Branson J said: "It seems to me that it must be a matter for the judge who is to try the case to decide for himself whether, in the particular case before him, and having regard to all the circumstances of it, it is likely to save the litigants before him expense and time and trouble to deal with the case by way of ruling upon the submission without putting any terms upon counsel upon either side, or whether it is better to say: 'In this case I think it would be desirable that before I rule I should hear the whole of the evidence." This passage has been referred to or quoted with approval in many cases. See, for example, Protean at 238, Rasomen at 504, J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) (No 2) (1992) 38 FCR 458 at 461-462 and Union Bank of Australia Ltd v Puddy [1949] VLR 242. In Puddy at 245-246, after reviewing the earlier decisions on the circumstances in which, in the exercise of the discretion, it is appropriate to depart from the general rule requiring an election, Fullagar J said: "I would add only two observations of my own. In the first place ... something may turn on the nature of the case itself. ... [W]here, as in the case before me, 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. In the second place, it would seem that the exercise of the discretion must generally involve an estimating of probabilities. If I accede to the application made to me, I may save the parties a great deal of time and expense, or I may cause them much greater expense and delay in the event of a new trial being ordered. In order to assess these probabilities, it seems to me that it must generally be necessary to form some preliminary estimate of the evidence before ruling as to whether the submission is to be entertained without election. In the present case I felt no doubt that I ought to entertain and rule on the submission without requiring the plaintiff to elect to call no evidence. I felt clearly of opinion that the balance of convenience was heavily in favour of this course. The case for the defendant, consisting of the opening and examination in chief, with very little cross-examination, had lasted over three and a half days. Then, coming to determine the application on its merits, I have felt satisfied that there was no case for the plaintiff to answer on defence or counterclaim." Other cases which show that the discretion to depart from the general rule requiring an election is more readily exercised where fraud is alleged are Protean at 215 and 236 and Merry at 7. 28 The considerations that led Finkelstein J in Merry not to require the respondents to elect can usefully be noted. The first was the nature of the allegations made against them. It was alleged that they were involved in a scam to defraud Compaq. The cause of action that they procured a breach of trust required proof of dishonesty. His Honour said that the respondents should not be required to call evidence or submit themselves to cross-examination if a sufficient case of wrongdoing had not been established against them. The second factor related to the efficient disposition of the case. The respondents' evidence would have taken well over a week. The considerable expense thus involved suggested that the respondents should not be required to go into evidence before the merits of the applicant's case had been ruled upon. The final factor was the Judge's impression that the applicant's case had weaknesses. His Honour's conclusion was that both the interests of justice and the efficient disposition of the case indicated that the respondents should not be put to their election. 29 All three factors relied upon in Merry exist in the present case: an offence of dishonesty, the saving of court time and expense, and the perceived weakness of the plaintiffs' case on insolvency. 39 This approach has been approved in many cases. See, for example, Rasomen at 508-509, Merry at 8 and Sarkis v Deputy Commissioner of Taxation [2005] VSCA 67 at [14] .