Edwards & Ors v Olsen & Ors No. Scgrg-86-2556, Scgrg-87-742

[2000] SASC 263

EDWARDS and ANOR v OLSEN and ORS
MURPHY v STEVENS and ANOR
[2000] SASC 263

Civil

1................ PERRY J.......................... Mr Bell of counsel for the defendants has made a submission of no case to answer with respect to certain elements in the various claims.

1. Ordinarily, a submission of no case to answer which dealt with only part of the claim or claims would not be favourably entertained, as in most instances if a case is to proceed on some issues, it is usually convenient to let it proceed on all issues in dispute.

2. However, these cases, which have been tried jointly, have occupied the Court’s time for a considerable period. So far the hearing has extended between the months of February and June this year, at which stage the cases of both plaintiffs were completed and the no case submissions were dealt with.

3. The length of time to be taken up in the presentation of the case for the defendants is unlikely to take so long as that, but it will nonetheless occupy a substantial period of some weeks, if not more than a month. I am satisfied that a ruling in favour of the submission of no case to answer, or even parts of the submission, is likely to effect a considerable saving in the time taken to complete the case, and the calling of at least some witnesses may become unnecessary. In those circumstances, I perceived some utility in allowing the submission of no case to answer to be made.

4. While in some cases such a submission will not be entertained unless the defendant elects not to call evidence, I reject Mr Edwards’ submission that I should put the defendants to their election.

5. Mr Bell presented his argument orally. Mr Murphy and Mr Edwards are appearing in person, and I heard them briefly after the conclusion of Mr Bell’s submissions. In Mr Edwards’ case, I gave him leave to put in written submissions in amplification of the oral submissions which he had made. He has put in some 39 pages of written submissions which I have studied in the process of coming to a decision as to my ruling.

6. I do not propose to canvass the legal authorities, or to set out the facts and circumstances of the cases. I note, however, that the not insignificant body of case law which has developed on the question of the procedure to be followed in dealing with a submission of no case to answer in civil proceedings since my decision in Residues Treatment & Trading Co Ltd and Anor v Southern Resources and Ors[1] has generally supported the validity of the conclusions which I reached in that case.

   [1] (1989) 52 SASR 54.

7. The pleadings in this case, particularly those put forward by the plaintiffs, are far from satisfactory. This is in part explained by reason of the fact that the plaintiffs have, during much of the pre-trial interlocutory stage of the case, and during the whole of the trial, been unrepresented. It is important in those circumstances that I have regard to the substantial merits of the cases and to the issues as they have emerged during the course of the presentation of the evidence for the plaintiffs, rather than tie myself to the limited issues exposed by the somewhat inadequate pleadings.

8. Both plaintiffs seek an extension of time for the commencement of the proceedings pursuant to s 48 of the Limitation of Actions Act 1936. Mr Bell has contended that his submission of no case to answer should succeed insofar as he contends that no material facts which could support an extension of time with respect to some of the causes of actions pleaded in each case have either been identified in the Statements of Claim or in the evidence presented by the plaintiffs.

9. He may well be right, and the plaintiffs cannot assume that their claims for an extension of time will be allowed. It follows that, at the end of the day, their claims may be dismissed in their entirety. At the commencement of the proceedings I made them well aware of the risks that that might happen, during the course of endeavouring to explain to them what it was that they would have to prove if that particular hurdle was, in each of the cases, to be surmounted.

10. However, I am not prepared to dismiss any part of their claims or of their applications for an extension of time on that ground at this stage. I refrain from doing so as a matter of discretion and not because of any conclusion that Mr Bell’s submissions in that respect could not be substantiated. While this may not be terribly satisfactory to the defendants, and while it may mean that the defendants may call some evidence unnecessarily, there are a number of reasons why it is simply not possible for this trial to be proceeded with to its conclusion in a tidy, cut and dried fashion. There will remain a number of loose ends which I will only be able to tie down at the conclusion of the hearing.

11. However, I am of the view that the submission of no case to answer should succeed in two respects. It will be seen that as to the second of those, I express my ruling as a ruling on a question of law.

12. I uphold the submission of no case to answer with respect to the issue of the ownership of an abalone permit or authority by a body corporate or jointly by or in the name of the partners constituting a partnership. I do so on the footing of the answers by the Full Court to the special case submitted for its consideration, the final form of those answers having only just been settled and sealed in an order dated 18 May 2000.

13. In his written submissions, Mr Edwards puts arguments which, if accepted, would fly in the face of the judgment and order of the Full Court. Clearly, I cannot accept any such arguments. Furthermore, I reject Mr Edwards’ contention that reg 31 of the Managed Fisheries Regulations 1971 is invalid.

14. It follows that all claims on any cause of action which are based on any refusal or failure by the defendants or any of them to permit corporate or partnership ownership of an abalone permit or authority, or which are based on any representation that such form of ownership was not permissible, will be dismissed.

15. Given the state of the pleadings, I do not pause to attempt to disentangle the claims which will be dismissed accordingly, but the ruling will serve to condition the calling of evidence from this point on of the trial, and will operate to exclude the further pursuit of any claim for damages in respect of those matters.

16. Secondly, insofar as the Fisheries Act (Amendment) Act 1980 (No 41 of 1980) which came into force on 27 June 1980 inserted subsections (5) and (6) to s 32 of the Act, and insofar as those new subsections permitted the imposition of conditions upon a licence to employ limiting the circumstances in which an employee might take fish, I rule that conditions subsequently endorsed on the plaintiffs’ licences imposing such a limitation are and were at all times valid.

17. An example of such a condition appears in the commercial fishing licence granted to Mr Murphy on 6 September 1982, being exhibit P4968.

18. It follows that any claim based on the assertion that such a condition was invalid will be dismissed.

19. I mention in parentheses, however, that the validity of regulation 35(5)(b) made under the Fisheries Act 1971 is not ruled upon at this stage. If and when I do rule upon that aspect of the matter, such a ruling will not affect the view which I have expressed as to the validity of licence endorsements precluding an authorised employee from taking fish or abalone in the terms set out in the endorsements on the licences which have been tendered in this case.

20. Apart from the two matters upon which I have accepted the arguments put forward by Mr Bell, the submission of no case to answer is otherwise dismissed.

21. I stress, however, for the benefit of the plaintiffs’ understanding of the significance of that ruling that it in no way is to be interpreted by them as indicating that the defendants will not ultimately succeed upon the other arguments which they have advanced during the course of their submission of no case to answer. In effect, I have in my discretion postponed ruling on those matters until the completion of the hearing.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

(1989) 52 SASR 54.