(5) If not all opposite parties apply to the court under subrule (1), the court must not deal with any such application before the conclusion of the evidence given for all parties."
3 In this Court those rules replaced Part 34 rr 7 and 8 of the Supreme Court Rules 1970 ("the SCR"). Those rules themselves replaced the earlier practice of this Court under the general law in relation to non suits and verdicts by direction. Rule 29.10 is generally to the same effect as Part 34 r 8. There is one important exception, namely, that the prohibition on the giving of evidence after an unsuccessful application under the rules was in the case of Part 34 r 8 absolute, whereas r 29.10(4) provides that the Court may grant leave for evidence to be given. The regime at common law was somewhat different. The Court did generally, but not necessarily, require a party who made an application for judgment on the basis that there was no case to answer to make an election before the application proceeded not to give evidence in the case of failure of the application. It is important to bear these differences in mind when considering authority on such applications.
4 After I ruled that the application under r 29.9 could not proceed further once the plaintiff had declined to argue the question raised by the application, the third defendant announced that he made an application under r 29.10. The application that he made under r 29.10 was an application that there should be judgment in his favour on the plaintiff's claim generally. He did not make any application in relation to individual claims for relief in the proceedings either in his announcement of the application or in the written submissions which have been subsequently lodged in relation to the application.
5 I directed that the application was one which could be determined on written submissions only, subject to the right of the Court to require further submissions on any matter after receipt of the parties' written submissions. After receiving those submissions, I did ask the parties very limited questions concerning their cases. The parties were, in fact, as recently as this morning, given an opportunity to make any further submissions that they desired to make, but have not made any further submissions.
6 On the plaintiff's behalf it was submitted that, as the third defendant's application was for the dismissal of the whole of the proceedings, the easiest way to resolve this application was for the plaintiff to demonstrate that there is sufficient evidence to support at least one of its claims for relief. It submitted that, if it is successful in that respect, the whole application must be dismissed. The plaintiff's counsel have informed the Court that they are unable to find discussion of this matter in any of the authorities and I have not been able to discover any such discussion. However, it is my view that, bearing in mind the form of the rule, that that proposition is correct. The third defendant has not submitted to the contrary.
7 The third defendant's written submissions proceeded in the first instance to make preliminary submissions which are quite misconceived, before proceeding to the substance of the application. The first of those submissions was that the application being dealt with "can only be viewed by the Court as an application for dismissal under section [sic] 29.9(2) of the Uniform Civil Procedure Rules. This must be so by the mere fact that the plaintiff is given the opportunity to respond to the application and, accordingly, must be taken to have elected to [sic] the third defendant's application." It is said that it flows from that that, upon the failure of the application, the third defendant would be given the opportunity to adduce further evidence. This submission completely misconceives the fact (which is really quite apparent on the face of the rules) that the applications under r 29.9 and r 29.10 are quite separate applications. Rule 29.9 applications are governed by the provisions of that rule, just as the regime applying to a r 29.10 application is governed by that rule. The application being dealt with was stated by the third defendant to be and is clearly an application under r 29.10, particularly in the context that a r 29.9 application had already been made and dealt with.
8 The second preliminary submission by the third defendant that is misguided is that "the decision by the liquidator not to either enter an appearance or file a defence on behalf of any or all of the eight named corporate defendants or give a reason for the decision not to do so is ... fatal to the plaintiff's case". It is patent that the liquidator's decision not to defend on behalf of the corporate defendants flows from the fact that each of them is in liquidation and there is no leave to proceed against them. Equally, there is no obligation on the plaintiff and there is no point, in view of their status, in pursuing them in the case. It is quite erroneous to suggest that a plaintiff in circumstances such as the present must proceed (or obtain relief) against the corporate defendants as a basis for making out a case against a director of those defendants. The failure of the plaintiff to pursue and the liquidator to defend the proceedings against the corporate defendants cannot assist the third defendant on the present application.
9 Thirdly, the third defendant, rather bizarrely, asks that he should be given relief or that the Court should act in some way upon the provisions of r 14.28(1)(c) of the UCPR relating to the striking out of matter in pleadings as being an abuse of the process of the Court. It is claimed that the relevant portion of the fifth further amended statement of claim and the relief sought are equally applicable to the fourth defendant and, furthermore, that the declarations and orders sought apply to the eight corporate defendants and also to seven trusts, which are not named as parties to the proceedings. It is claimed that for the plaintiff to proceed in those circumstances amounts to an abuse of the process of the Court. That proposition is clearly quite incorrect and the submission is rejected.
10 The fourth of the preliminary points to which I have referred is "that the plaintiff's settlement with the fourth defendant wittingly or unwittingly prejudiced the proceedings and defence of the third defendant". The third defendant correctly observes that that settlement took place on the fourth day after the hearing commenced. The fourth defendant, against whom the proceedings had continued up to that point, was also sued as a director or a person who had acted as a director of the corporate defendants. As the settlement by the making of orders by consent against the fourth defendant involved the fourth defendant making admissions, I was asked not to deal with the effectuation of the settlement, and, indeed, I should not in any event have done so. I made an order for the separate determination of those questions, which order was subsequently modified in some regards by Hammerschlag J, who dealt with the effectuation of the settlement. In his written submissions, the third defendant raised a number of questions which he says "would cause a sense of disquiet and discomfort. This sense of disquiet and discomfort is solely caused by the plaintiff's failure to address the issues and complexities that was [sic] bound to be caused by the settlement with the fourth defendant taking place at the same time that the plaintiff opened its case and commenced calling witnesses. The third defendant submits that the sense of disease and discomfort is of sufficient gravity to cause dismissal of the plaintiff's case". These submissions are without foundation. The plaintiff and, indeed, the fourth defendant were perfectly entitled to settle the litigation between them if they were minded to do so. They did settle the proceedings as between them. That has no effect upon the entitlement of the plaintiff to continue to conduct the proceedings against the third defendant, which remain on foot.
11 The third defendant commented in his written submissions about my communications with Hammerschlag J and the fact that a copy of the terms of the settlement is in the Court file, which is obviously in my Court. I should make clear in this judgment, as I have made clear several times before in the course of the proceedings, two matters relating to this. The first is that my discussions with Hammerschlag J were limited to the fact that I approached his Honour in his capacity as List Judge of the Equity Division to ask him to identify a Judge who could deal with the effectuation of the settlement between the plaintiff and the fourth defendant. I was informed by his Honour that he would do so himself. I was subsequently informed orally by his Honour that he had in fact disposed of the matter as between the plaintiff and the fourth defendant. The second is that I take it that there is a copy of the terms of settlement in the file, although I have not actually laid eyes on them. I am aware and I have seen that there is a copy in the file of the reasons for judgment which Hammerschlag J gave in disposing of the matter as between the plaintiff and the fourth defendant. I have not read those reasons for judgment and I have been careful not to discover in any way what the admissions were that were made by the fourth defendant to found the settlement between himself and the plaintiff.
12 I turn from those preliminary matters to the matters actually submitted by the third defendant in support of his application under r 29.10. In the forefront of those submissions there was a submission that the affidavit and, indeed, the other evidence of Mr Olde, the liquidator, was "tainted with bias, prejudice, and are not an accurate reflection of the complete record [held by the liquidator]". In amplification of that submission, the third defendant submitted "that Mr Olde's evidence is tainted by the adverse opinion that he formed about the honesty and integrity of the third defendant immediately [sic] or prior to his appointment as a liquidator of the eight corporate entities". A further ground of bias alleged was that the final report prepared by Mr Olde "was prepared pursuant to a request by the plaintiff and upon payment of a fee of $100,000". Detailed submissions were then made of regards in which it is said that Mr Olde's knowledge of or reference to the records and investigations relating to the company were said to be defective. The third defendant continued in his written submissions to submit that "in light of the above list of gaps, due to omission, ignorance or dismissal of facts the Court should treat the evidence of Mr Olde with extreme caution. It should do the same with Mr Olde's selective method as to the issue of solvency of the various corporate entities". Equally the third defendant submitted "that Mr Olde is not an impartial witness from whose evidence the Court is able to draw comfort in making any decision in favour of the plaintiff on any of its pleadings". In his written submissions in reply the third defendant submitted "that on any view Mr Olde is not an arm [sic] length independent witness and as such his evidence should be rejected in its entirety".
13 The plaintiff submitted that those submissions do not form any basis upon which the third defendant's application under r 29.10 could or should be upheld.
14 The law on the basis of which the sufficiency of the evidence should be judged on a r 29.10 application has been considered by the Court of Appeal in two decisions under the statutory regime initiated by Part 34 r 8 of the SCR and substantially continued under r 29.10. Those decisions are Mailman v Ellison NSWCA 25 November 1993 unreported and Hunt v Watkins (2000) 49 NSWLR 508. In the latter case, the judgment of the Court of Appeal was delivered by Stein JA, with whom Fitzgerald and Heydon JJA agreed. The application under consideration in that case was made under Part 26 r 8 of the District Court Rules 1973, which, although a little different in wording, was the same in substance as Part 34 r 8 of the SCR and therefore as r 29.10. Stein JA said at 510:
"Rule 8(2) speaks of whether 'on the evidence given' judgment for the plaintiff 'could not be supported'. The District Court rule is in the same form as Pt 34, r 8 of the Supreme Court Rules 1970 which the Court of Appeal considered in Mailman v Ellison (Court of Appeal, 25 November, 1993, unreported). The judgment of the Court was given by Mahoney JA and concurred in by Kirby P and Sheller JA.