* Hall v The Nominal Defendant

Supreme Court of SA|1999-02-15|Before: Doussa J, Olsson J

The application seeks the striking out of all of the above paragraphs.

The only authority said to be directly in point as justification for the procedure sought to be adopted was what fell from von Doussa J in Barnes.

That case focused on a notice of motion brought pursuant to both the inherent jurisdiction of the court and FCR O20, r2(1)(a) and O11, r16(a). It was contended, on the calling on of the action for trial on affidavit and documentary evidence, that there was simply no basis established, on the evidence before the court, which was capable of supporting a cause of action in damages based on breaches of contracts of service under a relevant Award prescription. von Doussa J was, in effect, invited to so rule, thereby, it was said, bringing about a substantial saving in time and expense.

In the course of his reasons, which are not fully reproduced in the published report, the learned judge took, as his commencement point, the dicta of Barwick CJ in General Steel Industries Inc v Commissioner for Railways & Ors (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128-129. That was a summary dismissal case. The learned Chief Justice pointed out that resort to the inherent jurisdiction of the court to terminate the litigation of a case without full trial could only be justified in rare and demonstrably justifiable circumstances. He clearly accepted the type of formulation of Griffith CJ in Bayne v Baillieu [1908] HCA 39; (1908) 6 CLR 382 to the effect that a strike out applicant must be able to demonstrate that under no possibility could there be a good cause of action consistently with the pleadings and the facts.

On an examination of the material then before him von Doussa J concluded that there was no fact asserted which could support a finding that, had the breaches of the Award alleged not occurred, the employment of the plaintiffs would not have been terminated at or about the time when it was, by reason of their redundancy. There was, therefore, what he described as a "factual abyss" in the plaintiffs' case, which had the effect that they could never have established any entitlement to damages. For all practical purposes the claims made therefore wholly fell to the ground. Thus, it was apparent that any losses sustained "are the unfortunate result of their redundancy, not any breaches of the Award conditions".

For that reason, in exercise of the inherent jurisdiction of the court, von Doussa J struck out the claim for damages "on the ground that there is no possibility that ... [it] ... could succeed on the evidence to be adduced by the applicants". In practical terms this effected a dismissal of the whole action.

I have dwelt on Barnes at some length because it is necessary to appreciate the precise nature of the application and its context, as there under consideration.

There are two features of distinction between Barnes and the instant case which must be noted.

First, it arose against the background of rules of court which, collectively, are not fully in pari materia with the rules of this Court. Second, what was there under consideration was the potential termination of the whole cause of action; and not merely some, of a greater number of, factual issues going to establish it.

In limine, Mr Greenwell, of counsel for the defendant, argued that the present application fell foul of SCR 67.01(6). He argued that the application before the court was an interlocutory application because any order would not determine the rights of the parties or put to an end the action between them - at least as to any specific cause of action. It could not be prosecuted at trial except in special circumstances which demand that such order be made in the interest of justice.

Considerable debate ensued before me as to the proper characterisation of the present application.

It is, I think, unnecessary for me to plumb the depths of the various relevant authorities. It will suffice to advert to only some of them.

A useful commencement point is what fell from the High Court in Hall v The Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423. As Windeyer J there pointed out the general effect of the authorities is that, whether an order made in the course of an action is interlocutory depends on whether or not it results in a final determination of that action. Prima facie it is necessary to look at the action as a whole, rather than specific causes of action within it. The critical factor is the effect of a proposed order in establishing finally, or otherwise, the rights of the disputant parties and thus put an end to an existing dispute or an existing action. (See also Licul and Ors v Corney [1976] HCA 6; (1976) 8 ALR 437 ("Licul").

As Bollen J stressed in T.R.A.M.S. Pty Ltd v The Grand Hotel Pty Ltd (1993) 170 LSJS 312 at 315, Barwick CJ said in Licul, "To be final ... the order ... must of its own force put an end to the action or proceeding between the parties". It is not enough that, by reason of circumstances unconnected with and uncontrolled by the order itself, it may become impossible or impractical to proceed with the action.

In the instant case the making of the orders sought cannot possibly bring the overall action to an end. The desired result is, in effect, to prohibit the defendant from further agitating some factual issues related to asserted breaches of duty and those breaches themselves, on grounds akin to a submission of no case to answer in relation to them. In that setting the character of the application is (to employ the expressions of Bollen J) undoubtedly procedural or adjectival. All that it would achieve, if successful, would be the striking out of certain pleadings. There would be no final adjudication and determination of the issues, the subject of those pleadings, on the merits.

That is not to gainsay the point made by me in Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126. I there referred to the decision of the Court of Appeal in Bromley v Housing Commission of New South Wales (1985) 3 NSWLR 407 ("Bromley"). That case recognised the possibility of there being an order, which is a final order, because it effectively disposes of an identifiable part of a case which is divisible into separate parts, in the sense adverted to in Blue Mountains City Council v Hudson (1985) 56 LGRA 360 at 363.

So it is that, had the present application been for an order dismissing the whole of an identifiable and severable cause of action pleaded, then it may well be that it could properly have been characterised as an application for a final order. In substance this was the true situation in Barnes. However, in the present case what is in contemplation is a thinly disguised, indirect attempt to do what is impermissible in a direct manner - namely, to strike out but a selected portion of the overall factual and legal issues (not being all of the issues going to establish the relevant cause of action) on the basis that there is no case to answer in relation to them.

I am firmly of the view that the application of the third party, in the context in which it is prosecuted, is, in essence, procedural and interlocutory, within the concepts established by the authorities. I reiterate, it seeks to prevent further ventilation of issues which comprise no more than a portion of the relevant causes of action on a strike out basis without finally determining the merits of these issues.

Is this, then, a situation in which the third party is able to demonstrate the requisite "special circumstances" postulated by SCR 67.01? They must, of course, be not only special circumstances - they must also be special circumstances which "require the order to be made in the interest of justice".

As was pointed out by Cooper J in Holt v Hogan [1993] FCA 463; (1993) 117 ALR 378, the phrase "special circumstances" indicates a need for the existence of circumstances which are exceptional. The phrase implies a presumption against the making of a relevant order.

It is clear that the Rule contemplates that such an application will only be entertained in the most compelling circumstances. Its rationale is that to permit uncontrolled interlocutory applications after a case is set down for trial (and particularly during the course of a trial) would not only negate any semblance of orderly case flow management procedures, but would also, inevitably, precipitate situations inherently disruptive to an orderly and efficient trial process itself.

Moreover, to permit applications of the present type is, inevitably, to give rise to disruptive mini-trials in the course of a main trial proper, of which the present situation is a classic example.

Mr Trim QC argues that he is justified in prosecuting the application because the third party ought not to be put to the trouble and expense of having to call evidence with regard to (and meet) a segment of the defendant's case which, he says, is foredoomed to failure by virtue of a patent evidentiary lacuna.

The short answer to that contention is that, if his assessment is correct, he need call no evidence on the relevant aspects and may advance the lacuna argument in his final address. He will be no worse off than he now is and the present type of disruptive and expensive lateral excursion would not be necessary.

Be that as it may, there is a more important issue, which bears on the essential merits of the application, regardless of SCR 67.01(6) considerations.

In considering an exercise of the inherent discretion of the court to control abuse of its process (which is what this application seeks to invoke) an important consideration is the true nature of the application and what it seeks to achieve.

As I have said it is, in substance, of the nature of a partial no case to answer submission. Moreover, it is also a far cry from the practical situation in which von Doussa J was confronted in Barnes.

There it was patent that the whole action was foredoomed to failure because, on the admitted facts, no damage or loss could possibly be proved. It would have been a patently fruitless exercise to continue the trial. By way of contrast, the present application cannot possibly operate to negate the overall causes of action in negligence or under the relevant statutory provisions.

This is not a situation in which the pleaded issues sought to be struck out can be said to relate to a clearly identifiable and severable part of the case in the sense adverted to in Bromley. What was there in contemplation was a separate, self contained, issue or cause of action, rather than the mere subject matter of particulars which are some of many relied on as founding a single, indivisible cause of action.

My attention has not been invited to any published authority which advances the proposition that it is proper either to entertain a no case to answer submission, or to strike out at trial at the conclusion of the case of a claimant party, those elements of a statement of claim which do no more than particularise certain of a greater number of grounds upon which it is said that the other party has been negligent or in breach of statutory duty.

The reason for the dearth of decided cases is not difficult to perceive. To accede to such an application is potentially mischievous, because of the manner in which, potentially, it will necessarily disrupt the orderly trial process. On any view it gives rise to a need to divert from the mainstream trial and conduct an analysis of the evidentiary material to date in circumstances in which, dependent on the outcome, it may later be necessary to revisit the same area again in light of the whole of the evidence led at trial.

True it is that there is some initial attraction in the criticisms of the defendant's case, as proffered by Mr Trim QC.

As to the line protection issue he contends that there is simply no evidence going to either breach of duty or causation to support the relevant pleas in the statement of claim. As to the assertions of misleading or deceptive conduct, he argues that no evidence has been adduced to provide a factual basis upon which it could be held that there has been misleading or deceptive conduct and/or loss resulting from it. He presented a table which sought to relate the effect of the evidence led in relation to the impugned paragraphs of the statement of claim in order to demonstrate the points made by him. A key plank of his argument is that the opinion evidence of the witness Cheeseman had not been supported by evidence to prove the factual basis upon which that witness expressed his views - in particular the actual relevant recloser settings relied on. He argued that Cheeseman's calculations were based upon information of which he had no personal knowledge. This being so, it was argued, the expert opinions are valueless. Mr Trim QC further asserts that even if it were otherwise there is no evidence that, had the reclosers been appropriately set and relied upon (instead of fuses), the fire would probably not have occurred.

In relation to the line inspection issue he contends that the assumption underlying the defendant's case is that, prior to the fire, ETSA conducted line inspections either by using elevated platform vehicles or other forms of aerial inspection to inspect pole tops. The evidence, he says, falls far short of establishing that any such regime had been adopted by ETSA. Indeed the only evidence indicates that any inspections contemplated were ground inspections.

As to the lastmentioned submission all that need be said is that to state it immediately reveals a need to review a significant quantum of documentary and oral evidence in detail and evaluate it as to its proper construction and weight. The documentary summaries provided by counsel as to both topics speak eloquently of such a need. This is the very type of exercise which underpins the now well developed rules applicable to no case submissions, as discussed by Perry J in Residues Treatment & Trading Co Ltd and Anor v Southern Resources Ltd and Ors [1989] SASC 1397; (1989) 52 SASR 54 ("Residue Treatment"). If this was a specific no case submission it would plainly fall within Class 3, rather than Class 2 as argued by Mr Trim QC.

Mr Greenwell joins issue with Mr Trim QC as to the suggestion of the existence of an evidentiary hiatus related to the line protection issue.

He submits that what is in issue is not a simple matter of an obvious hiatus, but a need to carefully evaluate the evidence of the expert witness Cheeseman and the data and materials relied upon by him, given that certain of this material emanated from ETSA's own records - although not separately tendered. He also draws attention to specific admissions by the third party in its pleadings which, inter alia, concede that the defendant adopted and used in its electrical undertakings the settings provided by the third party as detailed in paragraph 25 of the defendant's further amended statement of claim. It is contended that the compelling inference on the evidence is that these were the recloser settings at the time of the fire and were those used in the Greeneckle report referred to by Cheeseman.

He further argues that the contention that there is no evidence that any alternative protection system would have prevented a fire over simplifies the relevant causation issue, given that it is admitted on the pleadings that the fire was caused by a spark from the Eagle Hill conductor as it lay on the ground. As I understand his contention it is that a case to answer on this aspect can be made out by establishing - as the evidence does establish - that one system is more sensitive than another and would have reacted more rapidly. The court is, he submitted, entitled, in light of the evidence as a whole, to draw obvious inferences from such a situation.

In the course of debate some confusion arose as to the significance of the R1 and R5 reclosers respectively. However, I accept the point made by Mr Greenwell that any suggestion of an alleged dearth of evidence as to the line protection issue necessarily involves a careful and definitive analysis of a significant volume of evidence. Whilst it may well be that there is considerable force in the riposte of Mr Trim QC that the critical issue, at the end of the day, may well be whether setting either the R1 or the R5 recloser to "one shot to lock out" would necessarily have prevented the fire, the fact remains that no firm conclusion can be arrived at without a careful analysis of all of the relevant evidence and the inferences which reasonably arise from it.

I have dwelt on these aspects at some length because they serve to illustrate the true nature of the application now before me and its implications.

It is fair to say that Mr Trim QC has vacillated somewhat over time as to the proper characterisation. At one stage he was constrained to concede that it was, in fact, a "no case" submission. However, it is not being unduly cynical to observe that, when he appreciated the troubled waters into which that concession might lead him, he retracted and nailed his colours firmly to the mast of inherent jurisdiction to prevent an abuse of process.

How it can be said that there is an abuse of process when there is no suggestion of bad faith on the part of the defendant in prosecuting its claim is somewhat difficult to see. As I have said, if the situation is as clear cut as is asserted by Mr Trim QC, the course open by the third party is to lead no evidence on the relevant topics and ultimately make the submissions upon which it currently relies.

The reality of the situation is that, as I have already suggested, the third party is simply seeking to clothe what is, in truth, a no case submission in the garment of "inherent jurisdiction" to avoid the potential consequence of having to face an evidentiary election as to the whole of its case, or, at the very least, as to the whole issue of negligence. (See Perry J in Residues Treatment at 74.)

The present application must be seen as akin to a no case submission as to its substance and it must be considered in that light.

Just as it is inappropriate to entertain a no case submission as to but portion of a cause of action, so also is it inappropriate to rule on the present application in the circumstances in which it is brought. The essential notion of a no case submission is that, apropos the relevant cause of action, the applicant party, in effect, submits that it is entitled to judgment on the relevant cause or causes of action as the case stands. (See Tozer Demsley & Millbourn (A/Asia) Pty Ltd v Collier's Interstate Transport Service Ltd [1956] HCA 6; (1955-1956) 94 CLR 384 at 401.) That would not be the effect of a submission in relation to only certain particulars of negligence.

Even if that was not the situation I would not be prepared to embark on the necessary evidentiary review and rule on the application without an election on the part of the third party to call no further evidence in the case. There can be no question that the application calls upon me, in terms, to exercise a discretion which is no less absolute than that adverted to by Tadgell J in Protean (Holdings) Ltd v American Home Assurance Co [1985] VicRp 18; [1985] VR 187 at 237 and Perry J in Residues Treatment at 60, given the setting in which it is presently prosecuted.

Further than that, I am driven to the conclusion that, in any event, this interlocutory application does not meet the test of SCR 67.01(6). The very exercise upon which I am invited to embark, is disruptive to the orderly conduct of the trial and involves a need, potentially, to review evidence twice, dependent on the conclusion come to. I am not satisfied that the position is by any means as clear cut in relation to either the protection issue or the inspection issue, as Mr Trim QC would have me accept.

The application must be dismissed for all of the above reasons.

Misrepresentation Act 1972

OLSSON J. At the conclusion of the evidentiary case of the defendant against the third party in these proceedings, Mr Trim QC, of senior counsel for the third party, made an oral application seeking to invoke the inherent jurisdiction of the court. On the basis of the reasoning of von Doussa J in Barnes & Ors v Ranger Uranium Mines Pty Ltd [1993] FCA 411; (1993) 44 FCR 331 ("Barnes") he sought orders that various paragraphs of the statement of claim be struck out to prevent an abuse of the process of the court.

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