Relevant principles in respect of "no case to answer" submission
60 In the recent decision Fair Work Ombudsman v Offshore Marine Services Pty Ltd (No 2) [2013] FCA 943 Gilmour J considered circumstances similar to those currently before me, in that a respondent union made a submission of no case to answer to claims of alleged contraventions of the Fair Work Act. Importantly, his Honour observed as follows:
120. In Australian Securities and Investments Commission v Healey (2011) 196 FCR 291 at [535], Middleton J approved the principles concerning a no case submission identified by Kaye J in Oakley v Insurance Manufacturers of Australia Pty Ltd [2008] VSC 68 at [3] as follows:
[3] In my view the authorities, to which I shall shortly refer, establish the following broad principles which should apply to the application which is before me:
1. Where a no case submission is made in a trial by jury, the role of the judge is to determine whether, on the view of the evidence most favourable to the party against whom such a submission has been made ("the respondent party"), the jury could (not would) find in favour of the respondent party.
2. The test which is applicable, where a judge is sitting without a jury, is less stringent. In such a case the judge may uphold a no case submission, notwithstanding that the evidence, on the view most favourable to the respondent party, could support a judgment in favour of the respondent party.
3. In such a case the judge may perform an assessment of the quality of the evidence which has been called on behalf of the respondent party. In some cases, such an assessment may involve the judge evaluating the credit of witnesses from whom such evidence has been called.
4. In determining a no case submission, the judge is entitled to draw inferences from the evidence.
5. On a no case submission, the judge cannot draw an inference against the party making the submission ("the moving party") based upon the absence of evidence from that party.
6. Although the judge, sitting alone, may assess the quality of the evidence in determining a no case submission, nonetheless the test which is to be applied by the judge, at that stage, is different to the test which the judge would apply in determining the ultimate outcome of the case, at the conclusion of a trial. Notwithstanding that the judge, in determining the no case submission, may assess the quality of the evidence, nonetheless the test remains whether, on the evidence so assessed, the judge "could" (not would) find for the respondent party on the evidence so far led. In such a case, the judge would only find against the respondent party if the evidence, so far adduced, is so unsatisfactory or inherently unreliable or equivocal that he were to conclude that he could not be reasonably satisfied of the case made by the respondent party on the evidence thus far adduced.
121. Justice Middleton at [536] observed that these propositions were consistent with authority and the Full Court's decision in Rasomen Pty Ltd v Shell Company of Australia Ltd (1997) 75 FCR 216. This observation seems to have been directed to the question confronting his Honour and which was before the Full Court in Rasomen, whether the moving party in a no case submission ought be put to its election to call no evidence.
122. Jones v Dunkel was adverted to in Rasomen at 226, but in the context of the approach of a trial judge, sitting without a jury, faced with a no case submission. The Full Court adopted what had been said by Windeyer J in Jones v Dunkel at 330-331:
When there is no jury, the proposition 'no case to answer' may obviously mean far more than, 'is there evidence on which a jury could find for the plaintiff?' It may mean, 'would you, the judge, on the evidence given, find for the plaintiff?'
123. Nothing was said in Rasomen on the issue of whether inferences could be drawn against the moving party in a no case submission, based in Jones v Dunkel, by reason of their failure to adduce evidence.
124. In Protean (Holdings) Ltd (Receivers and Managers Appointed) v American Home Assurance Co [1985] VicRp 18; [1985] VR 187, the appellant had argued that the trial judge had wrongly upheld a no case submission in that he had made determinative findings of fact and indeed had finally decided the issues in the case. The Full Court of the Supreme Court of Victoria rejected this ground of appeal. Chief Justice Young said at 214:
The appellant carried the burden of proving those defences and ex hypothesi all the evidence that the appellant could adduce had been given.
This passage was referred to with apparent approval in Rasomen at 227.
125. Ultimately, the Full Court in Rasomen concluded at 228:
In a case like this, the function to be performed by a trial judge sitting without a jury who has decided to entertain a no case submission is no different from that which has to be performed by a judge who has heard all the evidence of the parties in the ordinary way and who has to give final judgment. In both situations, the judge must make findings of fact, after assessing the quality of the evidence.
126. This is an echo of what was said by Toohey J in James v Australia and New Zealand Banking Group Ltd (1986) 64 ALR 347 at 400:
If a defendant elects not to call evidence, the judge has before him all the evidence upon which he is called to make a decision. Any distinction between the role of the judge in ruling on a no case submission and the role of the judge as an arbiter of fact becomes largely illusory.
127. The effect of the observations in Rasomen, in my opinion, is that in a case such as this case, involving a no case submission based on the evidence, there is no two step process and no different evaluative test to be applied. I do not think the position to be any different where the moving party has elected not to call evidence. If that be correct then Jones v Dunkel inferences will, it seems, be available to the trial judge.
128. Thus, Sackville J in Prentice v Cummins (No 5) (2002) 124 FCR 67, as here, having considered relevant authority including Rasomen, said at [114]:
[114] ... As a matter of principle, it is difficult to understand why, in such a case, once the respondents have made the election not to call evidence, the material to be taken into account should not include any inferences that may be available on the principle of Jones v Dunkel (1959) 101 CLR 298, by reason of their failure to call evidence. The respondents, by their election, have chosen to adduce no evidence in support of their case. The position is different from that which obtains where the respondents have reserved the right to call evidence if the no case submission is rejected. In such circumstances, it would be inappropriate to draw adverse inferences against the respondents for not doing something they have not yet been called on to do.
His Honour had resort to the principle in Jones v Dunkel in support of inferences he drew.
129. Justice Greenwood in McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111 expressed his apparent agreement with what Sackville J said in Prentice as to the availability of Jones v Dunkel inferences on a no case submission. As it transpired in McIlwain it was unnecessary for his Honour to apply those principles by reason of a combination of other evidence and a statutory presumption operating against the respondent.
130. I too, respectfully, agree with the reasoning of Sackville J in Prentice and will apply it, to the extent necessary, in this case upon an evaluation of the whole of the evidence on the basis, as Toohey J said in James, that in substance I am in the position of an arbiter of fact on those issues at the conclusion of the trial.
61 In my respectful view, these observations of his Honour helpfully and accurately state principles applicable in this case. In particular, I adopt the views of his Honour concerning the application of the principles in Jones v Dunkel as necessary or appropriate in the circumstances.