Case: Protean (Holdings) Ltd (Receivers and Managers appointed) v American Home Assurance Co [1985] VR 187
Outcome: followed
The general rule is that "a decision will not be given on a submission of no case to answer unless the moving party elects to call no evidence": see Rasomen at 223. The judge hearing the submission has a discretion to depart from this general rule, however, where the particular circumstances warrant it. In Protean (Holdings) Ltd (Receivers and Managers appointed) v American Home Assurance Co [1985] VR 187 (" Protean ") at 237 Tadgell J explained the nature of a no-case submission and the courses open to the judge in the following terms: When ... a party indicates that he desires to submit that he has no case to answer upon a contested issue, he is really inviting the Judge to rule that he should not have to adduce evidence, or further evidence, on that issue in order to have it finally decided in his favour. Usually, but not inevitably, the invitation will be issued at the end of the evidence called against the party desiring to make the submission (whom I shall call "the moving party") and before that party calls any evidence on the relevant issue in answer to that of the other party (whom I shall call "the respondent party"). ... The judge is entitled, for reasons that seem appropriate to him, to decline out and out to entertain such a submission at the stage at which he is asked to do so. ... Usually there would be three courses open to him, short of refusing altogether to entertain the submission, namely: 1. He might decline to entertain the submission at that stage unless the moving party were to elect before making it not to call any evidence, either generally or on the issue on which the ruling was sought; or 2. He 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; or 3. He might indicate that he would both entertain the submission and rule on it without requiring an election to be made by the moving party. 18 The respondents submitted that not only should the Court entertain their no-case submission, but that it should do so upon the basis that they would not be put to their election. The applicant opposed this course, arguing that the no-case submission should only be heard upon the basis that the respondents were put to their election. In Protean (at 238) Tadgell J said that, in deciding upon the preferred course on such occasions, "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". He added (at 238): The imposition of a requirement that the moving party make an election before the Judge entertains the submission, or before he rules on it, will depend on the just and convenient disposition of the litigation. The imposition of such a requirement 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. 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 .