Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd
[1988] FCA 393
•22 Jul 1988
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NOT SUITABLE FOR PUBLICATION JLICul'dtcluT Ido.
CATCHWORDS
Practice and procedure - self-executing order for filing and
service of affidavlts containlng evidence which a party
proposes to adduce - application to have proceedings
dismissed - 0.20 r.2 Federal Court Rules - whether alleged
deficiencies in affidavits require finding of default in
compliance with order - relevance of possibility that party
filing affidavits may supplement evidence-in-chief - principles governing application of 0.20 r.2 - whether
Court's consideration limited to the statemcnc of claim or
extends to "proceedings generally" - factors weighing with
Court in exercise of discretion - whether party submitting no case to answer should be put to an election to call evldence or not.
0 .20 r.2 Federal Court Rules
Brisbane CABOOLTUHE PARK SHOPPING CENTRE PTY. LTD. v WHITE INDUSTRIES (OLD) pry. LIMITED
No. G198 of 1986
Ryan J
22 July 1988
IN THE FEDERAL COURT OF AUSTRALIA ) )
QUEENSLAND DISTRICT REGISTRY ) No. G198 of 1986 1
GENERAL DIVISION )
BETWEEN : CABOOLTURE PARK SHOPPING CENTRE PTY. LTD.
(Applicant)
WHITE INDUSTRIES (OLD)
PTY. LIMITED(First Respondent)
AND BETWEEN: WHITE INDUSTRIES (OLD) PTY. LIMITED (First Cross-Claimant) CABOOLTURE PARK SHOPPING
CENTRE PTY. LTD.(First Cross-Respondent)
Judqe Makinq Order: Ryan J Date of Order: 22 July 1988 Where Made: Brisbane
MINUTES OF ORDER
THE COURT ORDERS:
1. That the motion on notice dated 8 June 1988 be
dismissed.
That the costs of the said motion be reserved.
m:
Settlement and entry of orders is dealt with in 0.36 of
the Federal Court Rules. .. - _._
IN THE FEDERAL COURT OF AUSTRALIA ) ) OUEENSLAND DISTRICT REGISTRY
) No. G198 of 1986 ) GENERAL DIVISION )
RETWEEN : CABOOLTURE PARK SHOPPING
CENTRE PTY. LTD.(Applicant) WHITE INDUSTRIES (OLD) FTY. LIMITED (First Respondent) AND BETWEEN: WHITE INDUSTRIES (OLD)
PTY. LIMITED(First Cross-Claimant) CABOOLTURE PARK SHOPPING
CENTRE PTY. LTD.(First Cross-Respondent)
Coram: Ryan J Date:
22 July 1988 Place : Brisbane
REASONS FOR JUDGMENT ON MOTION BY
WHITE INDUSTRIES (OLD) PTY. LTD. FOR DISMISSAL
OF PROCEEDINGS BY CABOOLTURE PARK SHOPPING CENTRE PTY. LTD.
In this matter the applicant, Caboolture Park Shopping
Centre Pty. Ltd. ("Caboolture Park"), issued proceedings on
22 December 1986 claiming against the respondent, White
Industries (Qld) Pty. Ltd. ("WIQ''), damages for contravention
of s.52 of the Trade Practices Act (1974), fraudulent
misrepresentation, or negligent misstatement. In the original
statement of claim, no particulars were given of the damage
alleged to have been suffered by Caboolture Park.
On 13 February 1987, Pincus J ordered that Caboolture
Park deliver an amended statement of claim with full
particulars by 12 noon on 2 4 February 1987. An amended
statement of claim in purported compliance with that order
was filed on 25 February 1987 but it furnished no particulars
of the loss and damage allegedly suffered by Caboolture Park.
Pincus J then, on 25 February 1987, ordered that Caboolture
Park supply the best particulars it could in respect of:-
(a) the allegations of negligence in paragraph 12(a)
of the statement of claim;
(b)
the allegations of fraud in paragraph 12(b); and (c)
the loss and damage alleged in paragraph 15.
In response to that order, a further amended statement
of claim was filed on behalf of Caboolture Park on 3 March 1987 in which the following particulars of damage were sub-joined to paragraph 15:- “PARTICULARS OF DAMAGES
Had the Applicant not entered into the said agreement in reliance upon the representations
referred to in paragraph 7 hereof and the beliefs thereby induced referred to in paragraph 8 hereof, it would have entered into an agreement for the performance of the works provided for in
the said agreement for a fixed contract sum.
At the time when the Applicant entered into
the said agreement with the Respondent, the
Applicant could have entered into a contract for the performance of the works provided for in the
said agreement for a fixed contract sum of
approximately FOURTEEN MILLION, EIGHT HUNDRED
THOUSAND DOLLARS ($14,800,000.00).
In the premises, the loss and damage
suffered by the Applicant by reason of the
aforesaid misleading and eceptive conduct, negligence and fraud of the Respondent is the
difference between the said sum of approximately FOURTEEN MILLION, EIGHT HUNDRED THOUSAND DOLLARS
($14,800,000.00) and the total sum which the
Respondent claims is payable to it by the Applicant in respect of the works provided for in
the said agreement, less any part of that sum which is referable to variations to the original
contract works authorised by the Applicant duringthe course of construction.
The Applicant is unable to particularise the
precise amount of its damages until the Respondent has made its final claim upon the
Applicant in respect of the works performed by the Respondent in purported pursuance of the said agreement, or has given discovery in this action.
The best particulars which the Applicant is
presently able to give are as follows. To date, the Respondent had claimed from the Applicant in
respect of works performed by the Respondent in
- - purported pursuance of the said asreement sums amounting to approximately TWENTY MILLION, FOUR HUNDRED THOUSAND DOLLARS ($20,400,000.00), of
which approximately TWO MILLION, SIX HUNDRED
THOUSAND DOLLARS ($2,600,000.00) relates to variations approved by the Applicant during the
course of construction or claimed by the Respondent as variations without the approval of the Applicant, and which claims are not admitted
by the Applicant. On the basis of those figures,
the amount of loss and damage suffered by the Applicant to date is as follows-
Total Sum claimed by Respondent $20,400,000.00 _Less variations $ 2,600,000.00 Accepted or claimed $17,800,000.00 Less cost to the Applicant of the
contract works under
a “fixed sum”
contract ( approx) $14,800,000.00
( appr ox ) $ 3,000,000.00”
The question of the sufficiency of the particulars of
..
damages was again considered by Pincus J on 2 8 May 1987. On
that occasion, Senior Counsel for WIQ complained that no
. .
particulars had been given of the "contract that was
available for entering into but was not entered into because
-
of our misrepresentations". In the course of argument,
Pincus J observed:-
"They might call a quantity surveyor to say, you could have got a contractor to do this for 14.8
million. They do not necessarily have to show
that there was a physical contractor available who volunteered at the time to do it for that, do they, to prove their case?
... They could have entered into a contract. Mr
Callinan [Senior Counsel for Caboolture Park3 could prove that by calling a quantity surveyor and saying many contractors would have done it for that sort of money."
The following exchange then occurred between his Honour
and Mr Callinan, Q.C., who appeared for Caboolture Park:-
"HIS HONOUR: Could you tell me what your case is about? MR CALLINAN: It is really, as your Honour put it, a lost opportunity case.
HIS HONOUR: Have you got a specific contractor in mind? MR CALLINAN: No. HIS HONOUR: You have not?
M R CALLINAN: No, and indeed, we do not allege
that we did. If your Honour looks at the allegation you will see that we say we could have
entered into a contract; in other words, we lostthe opportunity of entering into a contract for a
fixed sum of about $14,800,00." In the light of that intimation on behalf of Caboolture
Park, Pincus J then ordered that Caboolture Park:-
- -
“With respect to the allegation in the first and
third paragraph on page 20 of the amended
statement of claimed filed on 3 March 1987 supply
particulars in the form of a statement that it is
not alleged that any specific contractor or anyspecific contract of an alternative kind was
available. ” On 22 October 1987, again before Pincus J, a suggestion
was made by Counsel for WIQ which Mr Callinan Q.C. neither
supported nor opposed, that each of WIQ and Caboolture Park should provide to the other party, statements or affidavits
of the evidence on which each proposed to rely. By 15 December 1987 when the matter first came before me for
directions, Mr Callinan Q.C. was able to announce:-
“Could I mention the matter of the exchange of
evidence on affidavit? ... Pincus J made an order, or he intimated he would make such an
order, for such an exchange. We have no
objection to that, and I do not think my learned
friend has any objection. I think there is agreement now between us that evidence should be
taken on affidavits and in due course, thoseaffidavits exchanged.
Upon the basis that we would file and deliver our
affidavits on the claim, there would then be
affidavits on the counterclaim, and then we would
file and deliver affidavits on the reply andanswer. I think that has either been ordered or
is something the parties will attend to.”
Accordingly, an order which I made on that day included
the following paragraphs:-
“(4) That the applicant CCaboolture Park3 file and
serve by 20 February 1988, any affidavit or affidavits containing the evidence on which it proposes to rely in support of its claim at the hearing of this application;
( 5 ) That the respondent CWIQ3 file and serve, by 20 February 1988, any affidavit or affidavits
containing the evidence on which it proposes
to rely in support of its cross-claim at the
hearing of this application;
( 6 ) That the applicant file and serve, by 21 March 1988, any affidavit or affidavits on
which it proposes to rely in answer to the
respondent's affidavits referred to in paragraph ( 5 ) of this order;
(7) That the respondent-file and serve, by 21
March 1988, any affidavit or affidavits on which it proposes to rely in answer to the
applicant's affidavits referred in to paragraph (4) of this order."
Those time limits were not observed, or insisted on,
perhaps partly because orders were made between 14 March and 8 April 1988 for the joinder as respondents herein of some fourteen sub-contractors to WIQ who had been involved in different aspects of the construction of the Caboolture Park Shopping Centre. Accordingly, on 8 April 1988, directions
were given providing, amongst other things:-
"1. That Caboolture Park Shopping Centre Pty. Ltd.
('Caboolture Park') file and serve, by 4 May 1988, affidavits cont ining the
evidence-in-chief which it proposes to adduce
in support of its claims against White
Industries (Qld.) Pty. Ltd. C'WIQ') and by way of defence to the claims in WIQ's cross-claim,
except to the extent that such claims raiseissues pertaining to the subcontract of or the
performance work of the an of by subcontractors which are the subject of orders
for separate trials already made herein.
2 . That WIQ file and serve, by 27 May 1988,
affidavits containing the vidence-in-chief which it proposes to adduce in defence of the
claims against it by Caboolture Park and in support of its cross-claim against Caboolture Park, except to the extent that such claims
raise issues pertaining to the subcontract of, or the performance of work by any of the
subcontractors which are the subject of ordersfor separate trials already made herein.''
The time limits specified in those directions were
extended on 4 May 1988 by one week, and on 25 May 1988 I
-- . -L. - . _ _
granted leave to Caboolture Park to amend further its amended
statement of claim. The permitted amendments included
particulars raising two alternative bases on which Caboolture Park claimed that its damages should be measured. Those bases
were indicated by the following new introductory paragraph
which it was proposed should be inserted in the particulars subjoined to paragraph 15 of the statement of claim as already amended:-
“Had the Applicant not entered into the said agreement in reliance upon the representations
referred to in paragraph 7 hereof and the beliefs
thereby induced referred to in paragraph 8 hereof, it would have:-
(i) entered into an agreement for the performance of the works provided for in
the said agreement for a fixed contract
sum; or(ii)alternatively, undertaken the performance of the said works itself; or
(iii) alternatively sold the land without constructing the shopping centre thereon.“
Despite the extension of time given on 4 May 1988, by 25 May 1988 Caboolture Park had not filed any of the
affidavits which it had been ordered to provide containing the evidence on whlch it proposed to rely in relation to
issues other than those touched on by the sub-contractors‘
claims. Accordingly, on 25 May 1988 orders were made which included, with the acquiescence of Counsel for Caboolture
Park, the following paragraphs:-
“ 2 . That the order of 8 April 1988 be varied further by extending to 3 June 1988 the time
by which Caboolture Park is to file and serve
affidavits containing the evidence which itproposes to adduce in support of its claims
against WIQ and by way of defence to the claims in WIQ's cross-claim, except to the
extent that such laims raise issues
pertaining to the sub-contract of, or the
performance of work by, any of the sub-contractors which are the subject of orders for separate trials already made herein.
3. That in default of compliance by Caboolture
Park with paragraph 1 of the order of 8 April
1988 as varied this day, Caboolture Park's proceedings be dismissed as to the whole of
the relief claimed by it herein."
Caboolture Park had already filed, on 25 May 1988, one
of the affidavits on which it proposed to rely, that of
Arthur George Briggs sworn 23 May 1988. As a result of the
order made on 25 May, it filed, on 3 June 1988, three further affidavits, one by George Herscu sworn 2 June 1988, and two by Ian Charles Bennett both sworn on 3 June 1988.
By motion on notice dated 8 June 1988, W I Q sought,
amongst other things, the following orders:-
"2. Pursuant to Order 20 Rule 2 or in the
inherent jurisdiction of this Honourable Court, that the proceedings by the Applicant
be dismissed on the grounds that no
reasonable cause of action is disclosed, or
that he proceedings are frivolous and
vexatious, or are an abuse of the process of the Court.
3. Alternatively, a declaration that the proceedings commenced by the applicant stand
dismissed as to the whole of the relief
claimed by it herein, consequent upon the Applicant's failure to comply with Orders of
this Honourable Court made in paragraph 1 of the Order of 8 April 1988, as varied by
paragraph 1 of the Order of 4 May 1988, as
further varied by paragraph 2 of the Order of 25 May 1988."
As argued by Mr Fraser of Counsel for WIQ, that motion
proceeded from two bases. In the first place it was
contended that significant deficiencies became apparent - when one examined against the background of Caboolture Park's
amended reply and answer, Caboolture Park's affidavits, and particularly the longer of the two affidavits sworn by Mr Bennett. That affidavit, it was submitted, was no more than
a draft containing much tendentious and speculative reference
to alleged "anomalies" and "discrepancies" but no assertions
of fact to support particular allegations in the reply and
answer. From that critical examination of its affidavits, I
was invited to infer that Caboolture Park intended, when they
were filed, later to adduce further evidence and that, therefore, it had not complied with the self-executing order of 25 May 1988 that it "file and serve affidavits containing the evidence which it proposes to adduce in support of its
claims against WIQ and by way of defence to the claims in
W I Q ' S cross-claim . . . ' I .
One specific aspect in which Mr Fraser contended
Caboolture Park's affidavits filed in purported compliance
with that order were deficient, was in proof of the damage
which it alleged in its statement of claim it had suffered as
a result of WIQ's contraventions of the Trade Practices Act,
fraudulent misrepresentation, or negligent missstatement. It
was said that Caboolture Park accepted that the measure of
damages applicable to those three causes of action is the
measure in tort as indicated by the High Court in Gates v
The City Mutual Life Assurance Society Ltd (1986) -160 CLR 1.
That acceptance, Mr Fraser argued, entailed the requirement
of showing that, had it not been for WIQ's conduct,
Caboolture Park would, and could, have let a contract for the
erection of the shopping centre by some other contractor for
a price less than that ultimately claimed by WIQ. It was
then urged that nothing in any of the four affidavits filed
on behalf of Caboolture Park even arguably satisfied that requirement.
In addition, MY Fraser identified other matters which
pointed up further deficiencies in the affidavits filed on
behalf of Caboolture Park. He referred first in this context
to the following paragraph on sheet 158 of MY Bennett's longer affidavit:-
"With respect to that trade package concerning East Coast Plastering I say that the applicant was in I think March, 1988 serviced with a writ seeking relief in the Supreme Court of Queensland
pursuant to the Subcontractors Charges Act. In
view of the joinder of the Subcontractors
currently before this Honourable Court I say that it is the intention of the applicant to join East
Coast Plastering in these proceedings and to proceed in a manner similar to that in respect of
the other subcontractors."
By thus claiming that it was relieved from including in
any of the affidavits filed in compliance with the order of 8
April 1988, Caboolture Park, according to Mr Fraser, had
simply defied that order.
Secondly, MY Fraser referred to the omission from
Caboolture Park's affidavits of any reference to "trade
package 9" which was the subject of specific allegations in
.- - _- --- .
Caboolture Park's reply and answer. Finally, in this
context, Mu Fraser contended that Caboolture Park could not
defend its failure to comprehend in its affidavits all of the
matters raised by its pleadings, by asserting that the
omissions were in respect of issues "pertaining to the
sub-contract of or the performance of work by any of the
sub-contractors which are the subject of orders for separate
trials". Separate trials, Mr Fraser pointed out, have been
ordered in respect of only twelve sub-contractors, whereas
there were in all about forty sub-contractors' trade packages
giving rise to issues between Caboolture Park and WIQ.
On the questlon of whether there has been compliance
with the order of 8 April 1988, I consider, with respect,
that the approach taken by a Full Court of this Court (Bowen CJ, Deane and Ellicott JJ) in Broers v Forster (1981) 36
A.L.R. 605 correctly requires me, first, to construe the
language of the self-executing order of 25 May 1988 and then
to determine whether the facts on which the order is
predicated have occurred.
The stipulation that Caboolture Park, by 3 June 1988,
"file and serve affidavits containing the evidence which it
proposes to adduce in support of its claims against WIQ and
by way of defence to the claims in WIQ's cross-claim", does
not permit the Court to measure the sufficiency of Caboolture
Park's affidavits against some objective standard.
Whether there has been default in compliance with that
order turns not on the adequacy of Caboolture Park's
affidavits to prove all of the allegations asserted in its
pleadings, but on whether, by 3 June 1988, there had been
filed in good faith documents which could fairly be regarded
as affidavits containing the evidence then available to it on
which Caboolture Park, by its directors and legal advisers,
intended to adduce in chief in support of its claim against
WIQ, or by way of defence to WIQ's cross-claim. Thus in
Reiss v Woolf C19523 2 All E.R. 3 Devlin J, with whom the
Court of Appeal agreed on appeal (C19523 2 Q.B. 557),
observed at 5:-
"If 'default' means default in the sufficiency of one or more of the answers, I should not consider
that the event was defined with precision.
Whether or not it had taken place might be the
subject of a genuine conflict of opinion which could only be resolved by further adjudication.
If I thought this to be the right construction of the order, I should follow Abalian v. Innous
C193611 2 All E.R. 834 and treat it as
inoperative. The order can conform with the
principle in that case only if it is treated as
an order that is dealing with the time of
compliance rather than with the mode of
compliance. The order does fix a time very preclsely, and I think it can and should fairly
be construed as a time order. So construed,
'default' refers to default in the delivery of a
document within the specified time. I do not, of course, mean that any document with writing on it will do. It must be a document made in good faith whlch can fairly be entitled 'Particulars'.
It must not be illusorv. That is the word used
by Mr. Bankes in argument in Davev v. Bentinck
CC19833 1 Q.B. 185, at 1861. That, in my judgment, is the test, and not, as the plaintiff
contends, whether each demand for particulars h s been substantially met." Consistently with that approach, I decline, for present
purposes, to examine the affidavits filed on behalf of
Caboolture Park to determine whether they contain evidence of
each element of each cause of action or defence raised by Its
pleadings. If there are omissions like those conceded to
exist in relation to trade package 9, and the sub-contract of
East Coast Plastering, or deficiencies like those asserted by
Mr Fraser In proof of any damage allegedly suffered by Caboolture Park, leave may be necessary, as its Counsel
accepted in their written submissions, before evidence can be
adduced in chief on behalf of Caboolture Park in respect of those areas. Whether that leave should be granted will
depend on a discretionary review of all the relevant
circumstances, lncludlng the reasons for the failure to
incorporate the evidence in the affidavits ordered to be
filed by 3 June, and any prejudice suffered by WIQ as a
result of the omission or deficiency.
The second basis for WIQ’s motion for the dismissal of
Caboolture Park‘s proceedings was said to be founded on 0.20
r.2 of the Rules of this Court and the Court‘s inherent
jurisdiction. Order 20 r.2 provides:-
“(l) Where in any proceeding it appears to
the Court that in relation to the proceeding
generally or in relation to any claim for relief
in the proceedlng-(a) no reasonable cause of action 1s disclosed; (b) the proceeding is frivolous or vexatious; or
(c)
the proceeding is an abuse of the process of the Court,
the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.
(2) The Court may receive evidence on the
hearing of an application for an order under
sub-rule (1) . "
The language of that rule is identical with that of Pt
13, r.5 of the New South Wales Supreme Court Rules 1970 which was considered by Cross J in Brimson v Rocla Concrete Pipes Ltd., C19823 2 N.S.W.L.R. 937 where his Honour observed, at
944, "On such a motion the court's consideration is not limited to the statement of claim, i.e. to whether it has the
defects or negative qualities specified in this rule, but to
the 'proceedings generally'." His Honour also expressed the view, with which I respectfully agree, that the principles
governing the application of this rule are substantially the
same as those which should guide the exercise of th inherent jurisdiction of the Court to stay or dismiss proceedings which are an abuse of its process as being frivolous or vexatious. His Honour then went on to observe, also at 944:-
"Where the court is asked to reject a plaintiff's
case, either under its statutory rules or itsinherent jurisdiction, the fundamental principle
is that prima facie a plaintiff is entitled to have his case come to trial; and appllcations to
deprive him of that right will succeed only in
the clearest of cases. True, the court will not
look merely at the suggested weakness of the
plaintiff's case but - though to a less extent - at the suggested strength of the defendant's
case; and, true, forensic argument a d subsequent
judicial reflection are n t necessarily
inconsistent with a firm conclusion that the
cause of action should not be allowed to proceed. But fatal defects in the plaintiff's case must be very clear before the court will intervene in
this fashion. 'I The facility afforded by 0.20 r.2(2) for the Court to
receive evidence on the hearing of an application for an
order under 0.20 r.2(1) enables a respondent to seek to demonstrate by evidence, either oral or on affidavit, that notwithstanding that a cause of action is disclosed on the
face of the pleadings there is no factual basis on which it
can be made out in the pleadings. Here, WIQ has attempted to
discharge that onus, not by relying on evidence filed or
adduced on its own behalf, but by pointing to deficiencies
and omissions in the affidavits filed on behalf of Caboolture
Park pursuant to the order of 25 May 1988. It claims to be
assisted in that task by the presumption arising from the
terms of that order that those affidavits contain the whole
of the evidence which Caboolture Park proposes to adduce in
support of its claims against WIQ and by way of defence to
KIQ’s cross-claim. However, that presumption is ot
conclusive because, first, it remains open to Caboolture Park
to rely in support of its own claims, or as part of its
general defence to WIQ’s cross-claim, on evidence which
emerges in one or other of the separate trials of issues
pertaining to the sub-contracts of, or the performance of
work by, the cross-claiming sub-contractors. Secondly,
Caboolture Park may seek to rely on documents produced on
subpoena by sub-contractors or strangers to the litigation, the existence of which was not known to it r its advisers on
3 June 1988. Another consideration which precludes a
conclusive presumption that the affidavits filed on that date
by Caboolture Park are exhaustive is the possibility, to
which I adverted earlier in these reasons, that leave may be
granted to adduce evidence to supplement that contained in
those affidavits.
A more fundamental objection to this ground of WIQ's
application for summary dismissal of Caboolture Park's
proceedings is that it essentially involves a submission that, having regard to the totality of the evidence contained
in Caboolture Park's affidavits filed by 3 June 1988, WIQ has
no case to answer in respect of the substantive claims
against it. A question arises at the outset of any
consideration of a contention of that kind, as to whether the party advancing it should be permitted to do so without being put to its election to call evidence or not. That question may be resolved in one of three ways identified as follows by
Tadgell J in Protean (Holdinss) Ltd. v American Home
Assurance Co. C19853 V.R. 187 at 237:-
"Normally, however, the Judge would not feel
justified in refusing outright to hear a
submission of no case if to hear it would carry
the prospect justly of facilitating the disposition of the litigation. Usually there
would be three courses open to him, short of refusing altogether to entertain the submission,
name 1 y : -
1. 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 2 . He might allow the submlssion 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
3 . 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. "
In the present case, as in The Union Bank of
Australasia Ltd. v Puddv E19491 V.L.R. 242, it was the second of those courses which was taken. I therefore reject the
contention on behalf of Caboolture Park that by making the submission which it did, WIQ had positively elected not to call evidence in support of its defence to the causes of
action raised by Caboolture Park's statement of claim.
Having heard, at least in outline, the submission
advanced on behalf of WIQ and Caboolture Park's answer to it, I consider that I should not rule on it at this stage. I
have been influenced to reach that conclusion principally by
the possibility, referred to earlier in these reasons, that
Caboolture Park may supplement the evidence contained In its
affidavits filed, pursuant to the order of 25 May 1988, by reliance on evidence given in the course of one or other of
the separate trials of sub-contractors' issues, by the tender
of documents obtained from a sub-contractor or a stranger to the litigation such as the architect, a structural engineer or one of the other consultants, or by adducing, by leave, further evidence not contained in its four affidavits filed between 25 May and 3 June. The principal reason for the general rule that a party making a no-case submission must first elect to call no evidence himself, is that a judge should not express an opinion on the sufficiency of the
evidence until it has been completed. Thus in Alexander v
Rayson C19361 1 KB 169 at 178 the Court of Appeal observed at 178:-
"Where an action is being heard by a jury, it is, of course, quite usual and often very convenient
at the end of the case of the plaintiff ... for the opposing party to ask for the ruling of the judge whether there is any case to go to the jury, who are the only judges of fact. It also seems to be not unusual in the Kings Bench Division to ask for a similar ruling in actions tried by a judge alone. We think, however, that this is highly inconvenient. For the judge in
such cases is also the judge of fact, and we cannot think it right that the judge of fact
should be asked to express any opinion upon the
evidence until the evidence is completed.
Certainly no one would ever dream of asking a
jury at the end of a plaintiff's case to say what
verdict they would be prepared to give if the
defendant called no evidence, and we fail to see why a judge should be asked such a question in
cases where he and not a jury is the judge that
has to determine the facts. In such cases we venture to think that the responsibility for not
calling rebutting evidence should be upon the
other party's counsel and upon no one else."
That passage was cited with approval by Toohey J in this Court in James v ANZ Bankins Group Ltd (No 2 ) (1985) 9 F.C.R. 448 at 451.
In my view, that policy applies with even more force
where the possibility remains that the plaintiff or applicant
himself may introduce additional evidence.
Had I been able to regard Caboolture Park's evldence as
complete, I would still have required WIQ to make the
election, before ruling on its submission. As developed, the submission did not isolate a discrete question of law capable
of being resolved without a detailed exammation of the
evidence including the identification of inferences available
to be drawn from it. Accordingly, I do not regard Mr Fraser's
submission as coming within the exception to the general rule
noted by Young CJ in Protean (Holdinqs) Ltd. v American Home Assurance Co., (supra) at 215:-
"When a trial judge has to consider an application to be allowed to submit that there is no case to
answer, whether by a defendant or by a plaintiff, he must first decide whether he will allow such a submission to be made without requiring the party
wishing to make the submission to elect to call
no evidence. It will not often be right for a
judge to allow that course to be followed except
perhaps where the answer depends principally on aquestion of law."
Indeed, when I canvassed with Mr Fraser the possibility
of deciding as a separate question of law, pursuant t o 0.29
Division 1, whether Caboolture Park had suffered any damage
as a result of the contraventions of 5.52 of the Trade
Practices Act, fraudulent misrepresentation or negligent
misstatement alleged in its tatement of claim, the
concession was made that:-
"I would assume that if the matter was set down
for the trial of a separate question, then presumably a prudent defendant would take the
course of treating it as a trial, and gaining
whatever advantage could g in it by cross-examination or evidence."
My refusal to entertain its submission, at this stage,
should not be taken as precluding WIQ from renewing it later
in these proceedings when the relevant evidence can more
conclusively be regarded as complete. Nor should I be taken
as having expressed any view on whether the Court should, at
some appropriate point, determine, before investigating the
other allegations in Caboolture Park's statement of claim, a
suitably formulated question of law as to Caboolture Park's
proof of the damage which it allegedly suffered. Because the
issues with which these reasons are concerned may be revived
in one or other of those ways, and because I have not
considered the sufficiency of the affidavits filed by
Caboolture Park pursuant to the order of 25 May 1988, I shall reserve the costs of WIQ's motion on notice dated 8 June 1988 which, for the reasons indicated above, is refused.
I certify that this and the preceding
nineteen (19) pages are a true copy
of the Reasons for Judgment herein of
his Honour Mr Justice Ryan. /PF-Ezm% Associate
Dated: 2% / Y e $ .
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