Case: Stevenson v Barham [1977] HCA 4 ; (1977) 136 CLR 190
Outcome: cited
Order 35, Rule 1 of the Federal Court Rules is the source of the power to entertain a 'no case' submission without the need to invoke s 79 of the Judiciary Act 1903 (Cth) ( Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 at [60] per Sackville J). The general rule of practice is that a 'no case' submission will not be entertained or, alternatively, no ruling made unless the moving party elects to call no evidence ( Protean (Holdings) Ltd v American House Assurance Co. [1985] VR 187; Stevenson v Barham [1977] HCA 4 ; (1977) 136 CLR 190 at page 202, per Mason and Jacobs JJ) although, the general rule is not an 'inflexible rule' ( Compaq Computer Australia Pty Ltd v Merry &amp; Ors (1998) 157 ALR 1 at page 7) and not necessarily the 'right course in every kind of case' ( Parry v Aluminium Corporation [1940] WN 44 at 46 per Goddard LJ). The general rule must 'give way to particular circumstances' in the exercise of the discretion ( Stevenson v Barham (supra) at page 203, per Mason and Jacobs JJ) and ultimately the matter is one for the discretion of the judge having regard to the just and convenient disposition of the litigation ( Protean at page 238 per Tadgell J) or, as French J observes, a function of judicial case management conditioned by the circumstances of the case ( J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) &amp; Ors (No. 2) (1992) 38 FCR 458. 85 Nevertheless, the generality of the usual practice is well recognised and approved by the High Court ( Stevenson v Barham (supra) at page 202; Tozer Kemsley &amp; Millbourn (Australasia's Asia) Pty Ltd v Collier's Interstate Transport Services Ltd (1955 1956) [1956] HCA 6 ; 94 CLR 384 at pg 402 per Fullagar J), recognised by the Federal Court ( James &amp; Ors v Australia and New Zealand Banking Group Ltd (1985 86) 64 ALR 347 per Toohey J at pg 400 (Appendix); Compaq v Merry (supra) at pgs 6 and 7) and applied in State superior courts (see the discussion of the authorities by Finkelstein J in Compaq v Merry (supra) at pages 6 and 7). 86 The general rule recognises the undesirability of the judge embarking upon an assessment of the evidence and particularly the reliability of witnesses twice in the one proceeding, the importance of avoiding a delay in the conduct of the trial and the utility of avoiding a second trial if a 'no case' submission upheld by the trial judge with judgment for the respondent is set aside upon appeal. If the 'no case' submission turns solely on a question of law or jurisdiction ( Stevenson v Barham (supra)), or the cause of action relied upon by the applicant involves an allegation of fraud or allegations analogous to fraud ( ACCC v Amcor (supra)), the respondent (defendant) ought, as a matter of discretion, not be put to an election. If however, the submission involves taking the totality of the evidence of the applicant, assessing that evidence at its highest for the applicant and dealing with a contention by the moving party that the evidence does not support the causes of action pleaded or, alternatively, where it is contended that there is some evidence to support the plaintiff's claim but the evidence is sufficiently unreasonable that it should be dismissed without calling upon the respondents to adduce evidence, there seems no relevant point of departure from the application of the general rule that the respondents ought to make an election to adduce no evidence before being given leave to make the submission of 'no case' to answer (see Residues Treatment Trading Co. Ltd v Southern Resources Ltd (1989) 52 SASR 54 at page 68 per Perry J.