Case: Sampson v Edwards [1949] VLR 6
Outcome: followed
In Sampson v Edwards [1949] VLR 6 Lowe J said: "The plaintiffs' case has been closed with the exception of his evidence as to damages which, by consent, is standing over until the issue of liability is determined. ... The substance of the matter argued before me is whether I should allow [counsel] to make that [no case] submission without putting him to his election as to whether he will call evidence or not on the issue of liability. In my opinion, I have a discretion as to whether or not to adopt that course, and I think that two of the factors, at any rate, which should operate with the Court in exercising that discretion are the saving of expense by hearing the application and the saving of time. They may not be, and probably are not, the only considerations, but those are two and I think both are present in this case. This action has now been going for the best part of four days and I have heard the evidence only of the plaintiffs and their witnesses and that only on the issue of liability. The particulars with regard to damages which were given this morning are such as to indicate that the plaintiffs' case before it is concluded will take some further considerable time, and on both those aspects of liability and of damage the defendants would have the opportunity to call evidence, and there has been an indication in cross-examination that if the case goes to its full conclusion evidence will be called by the defendants on both those aspects. Now with those matters in my mind it seems to me that convenience does point to my adopting the course which was adopted in Hannah v Stott [1928] VLR 168, and which I think has been adopted since then in many other cases. Those cases, and this case it is to be noted, are cases in which the Judge is sitting without a jury, and while jury cases stand on a somewhat different footing, even in those cases the Court has recognised ... that where there may be an unnecessary loss of time and money, it may be proper for a Judge to hear, at the close of the plaintiff's case, an application for judgment for the defendant. ... I only propose to add that I think the question of putting a defendant to his election is one which arises for the protection of the Court and is not, I think, a right which is given by law to the opposing party." The propriety of this last observation is confirmed by Protean at 238 where Tadgell J said: "The imposition of such a requirement [ie to elect] is not a right of the respondent party, for the fate of the submission of the moving party, once made, is in no sense dependent on election or no election." See also Rasomen at 505. 33 In the present case the plaintiffs' case took two weeks. The parties have thus already been put to great expense, both in terms of time and money. It is clear from what has thus far transpired that the defendants' case would have lasted at least the remaining week allocated to the proceeding. Mr Jenkins' affidavit evidence alone (including exhibits) occupies 982 pages of the Court Book. His evidence touches all aspects of the case: solvency, his awareness of the company's ability to pay its debts, and the quantum of the debts. I would be surprised if he were cross-examined for less than three days. Having regard to the cross-examination of the plaintiffs' experts, I would expect the defendants' expert, Mr Stout, to be cross-examined for at least a day. In those circumstances, as was the case in Sampson and Puddy , there may be a considerable saving in time and expense to the parties if the application is heard.