Edwards v Golden Cockerel Pty Ltd

Judgment (2 paragraphs)

[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?" (emphasis added)

In my respectful opinion, these observations are helpful, provided they are not treated as a rigid categorisation to be applied regardless of the circumstances of an individual case. As Olsson J said in Popovic v Tanasijevic (No 3) [1999] SASC 339, at [14], the four categories are not necessarily absolute and exclusive and there can be hybrid situations. There must be, as his Honour pointed out, a residual discretion to apply a reasonable degree of flexibility to meet the exigencies of particular cases and to achieve a fair and just result.

In considering the present proceeding in respect of whether there is a case for the respondent to answer, the following issues require determination:
whether Golden Cockerel should be put to election as to whether to call evidence prior to the Court ruling on the no case to answer issue; and
whether Ms Edwards' arguments for a breach of provisions of the Fair Work Act were properly pleaded, and if so, whether Golden Cockerel has a case to answer in respect of those arguments, concerning:
1. Section 340 of the Fair Work Act; or
2. Section 351 of the Fair Work Act;
Irrespective whether Golden Cockerel has a case to answer in respect of either ss 340 or 351 of the Fair Work Act, in light of the arguments put to the Court it is appropriate that I consider whether parts (or the entirety) of the ASOC should be struck out pursuant to r 16.21 of the Federal Court Rules.

(1) Should Golden Cockerel be put to election as to whether to call evidence?

Where a party submits there should be a ruling that there is no case to answer, the question arises whether that party should first be put to election as to whether they propose to call evidence, before being given the opportunity to develop the detailed arguments upon which the submission of no case was to proceed. This issue was explained by Kenny J in Cahill v Construction Forestry Mining and Energy Union (No 2) [2008] FCA 1292. There her Honour said: 17 The general rule is that "a decision will not be given on a submission of no case to answer unless the moving party elects to call no evidence": see Rasomen at 223. The judge hearing the submission has a discretion to depart from this general rule, however, where the particular circumstances warrant it. In Protean (Holdings) Ltd (Receivers and Managers appointed) v American Home Assurance Co [1985] VicRp 18 ; [1985] VR 187 ("Protean") at 237 Tadgell J explained the nature of a no-case submission and the courses open to the judge in the following terms: When ... a party indicates that he desires to submit that he has no case to answer upon a contested issue, he is really inviting the Judge to rule that he should not have to adduce evidence, or further evidence, on that issue in order to have it finally decided in his favour. Usually, but not inevitably, the invitation will be issued at the end of the evidence called against the party desiring to make the submission (whom I shall call "the moving party") and before that party calls any evidence on the relevant issue in answer to that of the other party (whom I shall call "the respondent party"). ... The judge is entitled, for reasons that seem appropriate to him, to decline out and out to entertain such a submission at the stage at which he is asked to do so. ... Usually there would be three courses open to him, short of refusing altogether to entertain the submission, namely:
He might decline to entertain the submission at that stage unless the moving party were to elect before making it not to call any evidence, either generally or on the issue on which the ruling was sought; or
He might allow the submission to be made without putting the moving party to any election at that stage but leaving, until he had heard it, the question whether or not he would rule on it without requiring an election to be made; and having heard the submission, and any answer to it by the respondent party, he could either rule on it or not, perhaps requiring an election to be made as a prerequisite to his doing so; or
He might indicate that he would both entertain the submission and rule on it without requiring an election to be made by the moving party. 18 The respondents submitted that not only should the Court entertain their no-case submission, but that it should do so upon the basis that they would not be put to their election. The applicant opposed this course, arguing that the no-case submission should only be heard upon the basis that the respondents were put to their election. In Protean (at 238) Tadgell J said that, in deciding upon the preferred course on such occasions, "the Judge will be guided by the nature of the case , the stage it has reached, the particular issues involved and the evidence that has been given". He added (at 238): The imposition of a requirement that the moving party make an election before the Judge entertains the submission, or before he rules on it, will depend on the just and convenient disposition of the litigation. The imposition of such a requirement is not a right of the respondent party, for the fate of the submission of the moving party, once made, is in no sense dependent on election or no election.
Similarly in McIlwain v Ramsey Food Packaging Pty Ltd [2006] FCA 828 Greenwood J said:
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.
Cases in which a Court permitted a no case submission to be made without requiring the moving party to elect whether it would call evidence are Protean (Holdings) Ltd (Receivers and Managers Appointed) v American Home Assurance Co [1985] VR 187 and at first instance in Wijayaweera (Wijayaweera V St Gobain Abrasives Ltd (No 2) [2012] FCA 98.
In Protean, Marks J at first instance observed at 193: Here [Counsel for the moving party] has indicated that his submissions are substantially ones of law including submissions, in effect, as I understand him, that the particulars to which evidence has been addressed cannot substantiate, or are irrelevant to, the allegations they are said to support. Further, Mr. Chernov's submissions may, if permitted, help to crystallize the relevance, if any, of the wide-ranging investigation of the financial status of the first plaintiff which has possibilities for substantial expansion should the plaintiffs be put to their election. There is a danger, of course, that accession to this application be taken as reflecting a conclusion already formed in the mind of the judge that the submissions will succeed. That would be a wrong inference to draw. The proper inference is, I think, that the judge thinks at this stage that there are serious matters which can be raised in favour of the submissions, that his mind may be better clarified by hearing them at this stage, and that the interests of justice, convenience and saving in costs may be better served by doing so. I should make no secret of the difficulty which I think has confronted the defendant throughout its case and persists on the present state of the evidence in relation to the allegation of fraud and deliberate lighting by or on behalf of the first plaintiff. It is apparent from the documents recently tendered that the defendant has itself been well aware of it, has been so advised and I have from time to time raised with its counsel the nature of inferences which it is contended can be drawn from the evidence. Accordingly, that issue in particular may be usefully the subject of submissions at this stage. I am prepared to hear your submissions, Mr. Chernov, without putting you to your election. (emphasis added)
On appeal in Protean, Young CJ materially said at 215: …before ruling whether the submission is to be entertained without election, it will generally be necessary for the trial judge to form some preliminary estimate of the evidence: [Union Bank of Australia Ltd v Puddy [1949] VicLawRp 46; [1949] VLR 242)
In the same case, Tadgell J observed at 238: The imposition of a requirement that the moving party make an election before the Judge entertains the submission, or before he rules on it, will depend on the just and convenient disposition of the litigation.
In Wijayaweera, Gordon J at first instance ruled that that case fell within the two categories to which Perry J had referred in Residues to which no election was required. Her Honour said:
The present case involves, at the very least, categories 1 and 2. Given the length of the hearing (less than one day), the serious and unsubstantiated nature of the allegations, the saving of Court time and expense and the fatal flaws in the applicant's pleaded claim, the respondents will not be required to elect: see also Compaq Computer Australia Pty Ltd v Merry [1998] FCA 968; (1998) 157 ALR 1 at 9 and Tru Floor at [28]-[29].
At [24] in the Full Court appeal decision in Wijayaweera, their Honours found that Gordon J made no error in exercising her Honour's discretion on the basis of those considerations.
In the present case, Golden Cockerel sought to make a no case to answer submission on 16 April 2024 without the need for it to elect to call evidence. This submission was made at the close of Ms Edwards' case, where:

Ms Edwards had called no witnesses;
Ms Edwards had relied on no expert evidence to support her claims;
the only affidavit on which Ms Edwards relied was her own affidavit filed 14 March 2023;
despite the matter having been set down for a 2 day hearing commencing 16 April 2024, Ms Edwards closed her case within minutes after opening her case;
there were extensive objections by Golden Cockerel to aspects of Ms Edwards' affidavit on the basis of opinion and hearsay, which prima facie appeared to have merit such that I was satisfied that it was likely that the evidence of Ms Edwards was substantially inadmissible;
there appeared to be ambiguity as to the claims which Ms Edwards pressed; and
the respondent had proposed to call several witnesses for cross-examination referable to the affidavits and expert report already filed.

In such circumstances, it appeared that reference to the evidence in the case was required only to establish that there was an evidentiary hiatus or failure to adduce any evidence as to an essential element in the cause of actions pressed. Alternatively, it appeared at that preliminary stage that, on a consideration of the evidence adduced by Ms Edwards taken at its highest from her point of view, the evidence could not support the causes of action purportedly pleaded. I was satisfied that a just and convenient consideration of the case was promoted by the Court entertaining a no case submission without requiring the respondent to elect whether to call evidence, or if it did, to go to the expense of a trial of calling witnesses.
As a result, I ruled that Golden Cockerel was entitled to apply for a ruling of no case to answer, without making an election as to whether it would call evidence (transcript 14 April 2024 p 14 lines 19-21).
This ruling was not challenged by the applicant at the time. I am aware that the applicant at that stage was a litigant in person. However, trials must proceed irrespective whether one of the parties is at the disadvantage of being unrepresented. I further note that, despite me suggesting that Ms Edwards could benefit from legal advice, including potentially pro bono legal advice, such suggestion was rejected by the applicant because she was "just happy to go with the flow at the moment" (transcript 16 April 2024, page 16 line 45).
In my view, the issue of election to call evidence by Golden Cockerel was resolved on 16 April 2024, and is not open to being re-opened at this late stage.

(2) Principles concerning a no case to answer application in respect of claims involving ss 340 or 351 of the Fair Work Act

In Fair Work Ombudsman v Offshore Marine Services Pty Ltd (No 2) [2013] FCA 943 Gilmour J examined the principles concerning a no case to answer claim referable to alleged contraventions of the Fair Work Act. His Honour helpfully observed as follows:
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:

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