Case: Residues Treatment &amp; Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54
Outcome: considered
Having heard the parties' arguments, I would not put the respondents to their election in respect of that part of their no-case submission that concerned the scope of the definition of "building industrial action". Had the respondents been successful on this aspect of their no-case submission, they would have defeated the applicant's s 38 case against them, without needing to answer this part of the applicant's case further. The respondents' argument was to the effect that there was an evidentiary hiatus in the applicant's case because the applicant had not adduced any evidence that any "ban, limitation or restriction" had been imposed by employees in respect of the work to which the ban, limitation or restriction related. In order to succeed on this limb of their no-case submission, the respondents had to persuade the Court that their construction of the definition of "building industrial action" was the preferable one, and that the applicant had adduced no evidence on an important element of it. For the following reasons, the respondents have failed to persuade me that their construction of the definition should be adopted, but, equally, it seems to me just and convenient that I rule on this question now without putting them to their election. I have heard the argument. The consideration of this part of their no-case submission involved no consideration of disputed evidence, and, as stated above, if accepted, it would have completely answered the applicant's allegations that they had contravened s 38 of the BCII Act : compare Compaq Computer at 7; Residues Treatment &amp; Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54 (" Residues Treatment ") at 68 per Perry J; and Puddy at 245. 21 The remainder of the respondents' no-case submission attracts different considerations as to the application of the general rule: compare Residues Treatment at 68-9; William H Muller &amp; Co's Algemeene etc v EBBW Vale Steel, Iron &amp; Coal Co Ltd [1936] 2 All ER 1363 at 1365-6 per Branson J; and Tru Floor at 538-9 (and the cases there cited). 24 In Amcor , the applicant alleged that the respondents had contravened s 45(2)(a)(i) of the Trade Practices Act 1974 (Cth), a provision which attracted substantial penalties. The applicant's evidence in chief concluded on the first day of the trial, when counsel for the respondents submitted that they should be permitted to make a no-case submission without being put to their election. Sackville J held that the circumstances justified a departure from the general rule that a decision will not be given on a no-case submission unless the submitting party elects to call no evidence. His Honour accepted that the case fell within the third category mentioned by Perry J in Residues Treatment at 68 (on consideration of the evidence adduced by the plaintiff taken at its highest from the plaintiff's point of view, the evidence could not support the cause of action pleaded) and that, in such a case, "there must be unusual circumstances to warrant the respondents being permitted to make their no case submission without being required not to adduce any evidence": see Amcor at 358. Sackville J held, however, that the circumstances were sufficiently unusual and that it was in the interests of justice for the respondents to be permitted to make their no-case submission without making an election. His Honour said (at 358): First and most important, I took the view that this is a case in which serious allegations of contraventions of the TP Act had been made against each of the respondents. If the allegations were to be established, the corporate respondents would be exposed to pecuniary penalties of up to $10,000,000 and the individual respondents to pecuniary penalties of up to $500,000. Adverse findings might well have serious consequences in terms of loss of business reputation. The authorities recognise that a departure from the general rule is often justified where fraud is alleged against the moving party. In Union Bank of Australia v Puddy [1949] VLR 242 , Fullagar J said (at 246) that where 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. See also Protean at 215 per Young CJ; at 236 per Fullagar J; [Compaq Computer] at 7. The present case is not one in which fraud has been alleged, but in my opinion it is analogous to a fraud case by reason of the very serious allegations that have been made against each of the respondents: see [Trade Practices Commission v George Weston Foods Ltd (1980) 43 FLR 55] at 61; Trade Practices Commission v Nicholas Enterprises Pty Ltd [1978] ATPR 40-097 (Fisher J), at 17,958. The analogy is in my view strengthened by the fact that the definition of 'exclusionary provision' in s 4D of the TP Act incorporates the concept of 'purpose' in a subjective sense: ASX Operations Pty Ltd v Pont Data Australia Pty (No 1) (1990) 27 FCR 460 at 474-7 ... The respondents in this case relied on these passages. 26 In the second part of the respondents' no-case submissions, the respondents have argued that, the evidence adduced by the applicant taken at its highest from the applicant's point of view, does not make out certain of the contraventions alleged against them. This part of their no-case submission therefore falls within the third category mentioned by Perry J in Residues Treatment at 68. Generally speaking (and allowing that the court retains a discretion in the matter) there must be some unusual circumstance to justify the respondents making a no-case submission without being required to elect to call no evidence. As already noted, the respondents rely on the fact that the applicant alleged contraventions of the BCII Act , which, if established, would expose the CFMEU to pecuniary penalties of up to $110,000 and Mr Mates to pecuniary penalties of up to $22,000. I accept that this factor militates against adherence to the general rule; and that, in considering the applicant's evidence, I should take account of the gravity of the matters alleged against the respondents: see Evidence Act 1995 (Cth), s 140 and Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 361-2. I also accept that, ordinarily, it is not in the interests of justice for a party against whom civil penalties are sought for statutory breaches of this kind to be subject to cross-examination where there is no evidence to support the case against him or her. 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. 30 As regards the second part of the respondents' no-case submission, I am not persuaded that justice and convenience justify departure from the general rule. Accordingly, I would not rule on this part of the respondents' no-case submission unless the respondents elect to call no further evidence. The respondents are put to their election, and in respect of all causes of action. This is notwithstanding that their no-case to answer submission did not relate to all that the applicant pleaded against them. Any other approach would undermine the basis upon which I have ruled that they should be put to their election: compare Residues Treatment at 74, Popovic at [124] per Olsson J and Prentice v Cummins (No 4) [2002] FCA 1215 at [25] per Sackville J. As already noted, the applicant's case is that the events on 15, 17, 21 and 22 February 2006 and following are related to one another and not susceptible to the dissection the respondents would make.