Case: Australian Competition and Consumer Commission v Leahy [2004] FCA 1678 ; (2004) 141 FCR 183
Outcome: cited
At the close of the applicant's case on the evening of 17 July 2008, the respondents stated that they wished to make a no-case submission in respect of parts of the applicant's claims against them. Whilst there has been judicial disagreement about the source of the Court's power to hear a no-case submission and the manner in which it should be dealt with, neither issue requires examination in this case. It is accepted that the Court has power to entertain such a submission: see Rasomen Pty Ltd v Shell Co of Australia Ltd (1997) 75 FCR 216 (" Rasomen ") at 223 per von Doussa, Drummond and Finn JJ referring to O 32, r 4(4) of the Federal Court Rules 1979 (Cth) ("the Rules") and s 79 of the Judiciary Act 1903 (Cth); and Compaq Computer Australia Pty Ltd v Merry [1998] FCA 968 ; (1998) 157 ALR 1 (" Compaq Computer ") at 6 per Finkelstein J, Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 (" Amcor ") at 356-60 per Sackville J and Australian Competition and Consumer Commission v Leahy [2004] FCA 1678 ; (2004) 141 FCR 183 (" Leahy ") at 210 per Merkel J referring to O 35, r 1 of the Rules. The approach is the same, whatever the source of the power: compare Compaq Computer at 6. 28 Secondly, the respondents' no-case submission is a limited one. They advanced this submission only in respect of the events of 21 and 22 February 2006 and following (which are said to give rise to the breaches of ss 38 and 43 of the BCII Act referred to above). Whatever the outcome of this submission, the events of 15 and 17 February 2006 (which are said to give rise to breaches of s 43) would go forward to the end of the trial and the evidence as to them would fall for consideration. It must be borne in mind that Mr Mates is as much a central actor in the events of 15 and 17 February as 21 February and, on the applicant's case, 22 February 2006 and following. Furthermore, the applicant's case against the respondents does not readily permit the dissection the respondents seek. The applicant's case depends, at least in part, upon a consideration of the whole factual matrix, commencing with the alleged conversations on 15 February and, subsequently, 17 February 2006 and culminating with the picket on 22 February 2006 and following. On the applicant's case, Mr Mates' stopping of the crane on 21 February 2006 (which the respondents concede) was within the relevant time-frame. On the applicant's case, this event on 21 February 2006 not only amounts to breach of ss 38 and 43 , but also formed part of the factual matrix upon which other parts of his case against the respondents must be assessed. The temporal link is, on the applicant's case, "extremely important". The applicant's counsel submitted that, whether or not the respondents were put to their election, the evidence regarding the picket and stopping of the crane would remain relevant to the case against the respondents on the other alleged contraventions that were not covered by the no-case submission. Hence, even if the no-case submission were successful, the Court would be obliged to reconsider the evidence that it had already considered as part of the no-case submission, although from another perspective. The applicant also foreshadowed that there might be related difficulties for the conduct of the trial, especially if the Court were to accept part (e.g., regarding the picket), but not all (e.g, regarding the crane stoppage) of the respondents' no-case submission. I agree that there is a risk of embarrassment arising from dealing now with part only of the applicant's case against the respondents, especially having regard to the way the applicant would put its case: compare Residues Treatment at 71-3, Popovic v Tanasijevic (No 4) [1999] SASC 351 (" Popovic ") at [124] per Olsson J and Leahy at 210-12. Of course, in the absence of an election, if the no-case submission were to fail, then the Court would be required to reconsider the evidence considered on the no-case submission in any event. As Sackville J noted in Amcor at 357, this problem may be particularly acute if a no-case submission requires some evaluation of the credit of witnesses. Whilst I accept that, strictly speaking, the respondents' no-case submission may not involve an evaluation of credit, their submission at this point calls for assessments of evidentiary reliability that in some instances give rise to similar concerns: compare Residues Treatment at 69 and George Weston at 58-9.