Case: Rasomen Pty Ltd v Shell Company of Australia Ltd (1997) 144 ALR 497
Outcome: followed
That O 32 r 4(4) does not operate in the manner suggested by the plaintiffs is supported by what the Full Court said in Rasomen Pty Ltd v Shell Company of Australia Ltd (1997) 144 ALR 497 at 503: "Apart from O 32, r 4(4) of the Federal Court Rules which gives a general discretion to the court to regulate the conduct of the trial, there is no statutory provision or Rule of Court which provides for the procedure to be adopted in the Federal Court in a civil case where a ruling of no case to answer is sought." Further, what is said in Rasomen at 505 cannot stand with what the plaintiffs seek to derive from sub-r (4). Similarly, in a passage concerned solely with no case submissions in this Court, the sixth Australian edition of Cross on Evidence renders (at 297) the presently relevant effect of Rasomen and Protean (Holdings) Ltd (rec and mgr apptd) v American Home Assurance Co [1985] VR 187 at 237 (Full Court), namely that there is no general rule that requires a party making a no case submission to elect to call no further evidence if some evidence has already been led, or if exhibits have been tendered during cross-examination, without any reference to sub-r (4). 17 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. 19 The general rule is that a decision will not be given on a submission of no case unless the moving party elects to call no evidence. However, the judge has a discretion to depart from the general rule where the particular circumstances require it. It has been said that in deciding which course to follow, the judge will be guided by the nature of the case, the stage it has reached, the particular issues involved and the evidence that has been given. The imposition of the requirement that the moving party make an election before the judge entertains the submission or rules on it will depend on the just and convenient disposition of the litigation. See Protean at 238 and Rasomen at 504. 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. 21 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. 30 I do not understand the plaintiffs to have submitted that the tendering of exhibits required the defendant to elect not to call further evidence. Rather, the contention was that tendering the exhibits disabled them from making a no case submission. I have dealt with that at [11] to [16]. In any event, had such a submission been made, I would have rejected it. There is no general rule that requires a party making a no case submission to elect to adduce no further evidence if some evidence has already been led, or if exhibits have been tendered during cross-examination. In a particular case, the fact that the party has taken steps of this kind will be one of the circumstances to be taken into account in the exercise of the discretion whether to require an election. See Protean at 237 and Rasomen at 505. 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] .