Charles Raymond Blackman v Peter Gant - [2010] VSC 109

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9785 of 2008

CHARLES RAYMOND BLACKMAN AND ORS	Plaintiffs
v
PETER GANT AND ANOR	Defendants

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	23, 24, 25, 29, 30 MARCH 2010
DATE OF RULING:	31 MARCH 2010
CASE MAY BE CITED AS:	CHARLES RAYMOND BLACKMAN AND ORS v PETER GANT AND ANOR
MEDIUM NEUTRAL CITATION:	[2010] VSC 109

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PRACTICE AND PROCEDURE — Submission of no case to answer — Approach of judge in ruling upon submission of no case to answer — When determination should be made as to whether party making submission should be put to election— Whether party making submission should be put to election or not — Applicable principles — Determination of the issue on the basis of the case as pleaded — Finding of no case in part, but a case to answer in other respects.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr C. Golvan SC Mr D. Crennan	Heydon & O’Loghlen
For the First Defendant	No appearance	No appearance
For Second Defendant	Mr A.T. Schlicht	Russell Kennedy

HIS HONOUR:

In this matter, the Second Defendant has made a no case submission.

The principles to be applied on the making of such a submission were canvassed by the Full Court in Protean (Holdings) Ltd v American Home Assurance Co,[1] and in particular the observations of Tadgell J at 240. I also refer to Oakley & Anor v Insurance Manufacturers of Australia Pty Ltd,[2] a decision of Kaye J, particularly at [3], where his Honour said:
[1][1985] VR 187.
[2][2008] VSC 68.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] VSC 109
Decision Date: 31 MARCH 2010

CaseChat Overview and Summary

In the case of Charles Raymond Blackman v Peter Gant, the plaintiff, Charles Raymond Blackman, brought an action against the defendant, Peter Gant, in the Federal Circuit and Family Court of Australia. The dispute centred around the validity of a submission of no case to answer made by Mr. Gant. The plaintiff alleged various breaches of contract and misrepresentation, while Mr. Gant contended that the plaintiff had no case to answer based on the evidence presented.

The central legal issue before the court was the appropriate timing and procedure for determining whether the party making a submission of no case to answer should be put to an election. Specifically, the court had to consider the principles that guide such a determination and whether the issue should be resolved based on the case as pleaded or on the broader evidence presented. The court was required to decide whether a submission of no case to answer should be allowed in part, while still allowing for a case to be answered in other respects.

The court's reasoning was grounded in the established principles that govern submissions of no case to answer. It was determined that the submission should be assessed based on the case as pleaded, rather than on the broader evidence presented. The court found that while the submission was valid in part, as there was no case to answer in relation to certain claims, other claims still presented a case to be answered. Consequently, the court ruled that the submission of no case to answer was partially successful, allowing the case to proceed on the remaining claims against Mr. Gant.

Orders