Fortron Automotive Treatments Pty Ltd v Jones & Ors - [2008] FMCA 622

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FORTRON AUTOMOTIVE TREATMENTS PTY LTD v JONES & ORS

[2008] FMCA 622

PRACTICE AND PROCEDURE – Submission of no case to answer – whether election to call evidence required prior to no case to answer submission – source of Court’s power to consider no case to answer submission – consideration of factors relevant to whether election to call evidence required prior to no case to answer submission.

Corporations Act, 2001 (Cth), s.181(2)
Federal Court of Australia Act, 1976 (Cth)
Federal Court Rules (Cth), O.35 r.1
Federal Magistrates Act, 1999 (Cth) ss.43(1), (2) & (3), 81(1)(a), (b) and (c) & (2)
Federal Magistrates Court Rules, 2001 (Cth), r.16.01
Fair Trading Act, 1987 (WA) ss.68, 79
Judiciary Act, 1903 (Cth) s.79
Trade Practices Act, 1974 (Cth) s.82

ACCC v Amcor Printing Papers Group (2000) 169 ALR 344; [2000] FCA 17 Alexander v Rayson [1936] 1 KB 169 Applicant N v Respondent C [2006] FMCA 1936 Applicant N v Respondent C [2007] FCA 1182 BHP Steel (RP) Pty Ltd Trading as BHP Reinforcing Products v ABB Engineering Construction Pty Ltd [2001] WASCA 294 Compaq Computer Australia Pty Ltd v Merry and Others (1998) 157 ALR 1 Da Silva v Fiocco Hopkins Nash & Anor [2005] WADC 37 Goodall v Nationwide News Pty Ltd [2007] FMCA 218 Green & Ors v Wilden Pty Ltd & Ors [2004] WASC 105 Humphrey v Collier [1946] VLR 391 J-Corp Pty Ltd v Australia Builders Labourers Federated Union of Workers(Western Australian Branch)& Ors (No 2) (1992) 38 FCR 458 Jones v Dunkel (1958) 101 CLR 298 Joyce v St. George Bank Limited [2005] FMCA 868 Mathews v Director of Legal Aid [2004] WASC 225 Protean (Holdings) Ltd (Receivers and Managers Appointed) & Ors v American Home Assurance Co (1985) VR 187 Ralph M Lee (WA) Pty Ltd v Fort (1991) 4 WAR 176; (1991) 22 ALD 465 Rasomen Pty Ltd v Shell Company of Australia Ltd (1997) 75 FCR 216 Salfinger v Mitchell [2005] WADC 44 Trade Practices Commission v George Weston Foods Ltd (No 2) (1980) 43 FLR 55 Young v Rank [1950] 2 KB 510
Applicant:	FORTRON AUTOMOTIVE TREATMENTS PTY LTD

First Respondent:

KENNETH JOHN JONES

Second Respondent:

TREBLEX AUTOMOTIVE PRODUCTS PTY LTD

Third Respondent:

SHEILA MARY JONES

Fourth Respondent:

WILLIAM PATRICK TULLY

Fifth Respondent:

HELEN GEORGINA TULLY

Sixth Respondent:

GAMMAR GROUPS (THAILAND) CO LTD

File Number:

PEG 172 of 2007

Judgment of:

Lucev FM

Hearing dates:

25, 26 and 27 February 2008; 12 and 14 May 2008

Date of Last Submission:

14 May 2008

Delivered at:

Perth

Delivered on:

20 May 2008

REPRESENTATION

Counsel for the Applicant:

Mr G Rabe

Solicitors for the Applicant:

Stables Scott

Counsel for the First to Fifth Respondents:

Ms G A Archer SC

Solicitors for the First to Fifth Respondents:

Sonia Edwards & Associates

Sixth Respondent:

No appearance

DECLARATIONS

Section 43(1) of the Federal Magistrates Act, 1999 (Cth) and Rule 16.01 of the Federal Magistrates Court Rules, 2001 (Cth) allow this Court to determine whether or not an election as to whether to call evidence must be made by a party before that party makes a no case to answer submission.
That in the circumstances of this case the Respondent is not required to make an election.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 172 of 2007

FORTRON AUTOMOTIVE TREATMENTS PTY LTD

Applicant

And

KENNETH JOHN JONES

First Respondent

TREBLEX AUTOMOTIVE PRODUCTS PTY LTD

Second Respondent

SHEILA MARY JONES

Third Respondent

WILLIAM PATRICK TULLY

Fourth Respondent

HELEN GEORGINA TULLY

Fifth Respondent

GAMMAR GROUPS (THAILAND) CO LTD

Sixth Respondent

REASONS FOR JUDGMENT

Introduction

At the close of the Applicant’s case in this matter on 12 May 2008 the First to Fifth Respondents indicated they wished to make a no case to answer submission.

Issue

The issue arose as to whether the First to Fifth Respondents are to be permitted to make their no case submission without having to elect whether or not to call evidence.
The Court heard argument on that matter late on 12 May 2008, and the matter was adjourned to the next schedule sitting day, which was 14 May 2008.

Declarations

On the resumption of proceedings on 14 May 2008 the Court made the following declarations:
a)Section 43(1) of the Federal Magistrates Act, 1999 (Cth) and rule 16.01 of the Federal Magistrates Court Rules, 2001 (Cth) allow this Court to determine whether or not an election as to whether to call evidence must be made by a party before that party makes a no case to answer submission;
b)that in the circumstances of this case the Respondent is not required to make an election;
and indicated that it would publish Reasons for Judgment (in Chambers) on 16 May 2008. These are those Reasons for Judgment, delayed a few days in their publication.

Background

The matter commenced in the Federal Court by application dated 9 December 2005. It was transferred to this Court on 17 August 2007.
The Applicant markets a range of automotive treatment products, known generally as “Forton”, in a number of countries, but relevantly, Australia and Thailand.
Reduced to its absolute essence the Applicant’s case is that the Respondents were engaged in a scheme whereby they substituted, marketed and sold other automotive treatment product for the Applicant’s product.
The Applicant seeks various relief:
a)against the First Respondent, relief including:
i)damages under s.82 of the Trade Practices Act, 1974 (Cth) [1] for misleading or deceptive conduct;
[1] “TP Act”.
ii)damages for misleading and deceptive conduct under s.79 of the Fair Trading Act, 1987 (WA);[2]
[2] “FT Act”.
iii)damages for breach of contract.
b)against the Second Respondent, relief including damages under s.82 of the TP Act for misleading or deceptive conduct.
c)against the Third and Fifth Respondents, relief including damages under the FT Act;
d)against the Fourth Respondent:
i)damages under the FT Act;
ii)damages for breach of fiduciary duty; alternatively an account of profits;
iii)compensation for contravention of s.181(2) of the Corporations Act, 2001 (Cth);
iv)exemplary damages.

Election

The question in this case is whether the First to Fifth Respondents are to elect or not to elect to call evidence before putting their no case submission.

Power

It is arguable that this Court has the power to consider a no case to answer submission, either under:
a)r.16.01 of the Federal Magistrates Court Rules, 2001 (Cth)[3] which provides that:
“The Court may, at any stage in a proceeding on the application of a party, give any judgment or make any order even if the claim was not made in an originating process”,
and which has been held to be to the same effect as O.35 r.1 of the Federal Court Rules;[4] or
b)s.79 of the Judiciary Act, 1903 (Cth)[5] which provides that:
“The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.”
[3] “FMC Rules”.
[4]
[5] “Judiciary Act”.
The question arises as to what is the true source of the power of this Court to consider a no case to answer submission and the manner of procedure to be followed.
Under s.79 of the Judiciary Act unless otherwise provided by the Constitution (which it is not in this case) or “the laws of the Commonwealth” then the procedure to be adopted in this case will be that of the State courts in Western Australia.
In Rasomen Pty Ltd v Shell Company of Australia Ltd[6] the Full Court of the Federal Court of Australia suggested, in a case in that Court in South Australia, that the source of power and manner of its exercise on a no case to answer submission was to be found in s.79 of the Judiciary Act. On that basis the procedure arguably ought to be that of the State courts in Western Australia.[7]
[6] (1997) 75 FCR 216 (“Rasomen”).
[7] Rasomen at 223 per Von Doussa, Drummond and Finn JJ; and see Compaq Computer Australia Pty Ltd v Merry and Others (1998) 157 ALR 1 at 6 per Finkelstein J (“Compaq”).
In Compaq a single judge of the Federal Court adverted to Rasomen, as well as the O.35 r.1 approach suggested in George Weston Foods.[8]In Compaq the Federal Court found that it was “not necessary to enter this controversy” because there was no difference in the approach of the Supreme Court of Victoria and that of the Federal Court when the Federal Court was proceeding on the basis that it was not required to apply State law.[9]
[8] Compaq at 6 per Finkelstein J.
[9] Compaq at 6 per Finkelstein J.
In Amcor Printing a single judge of the Federal Court found that O.35 r.1 of the FC Rules:
“is ample to authorise the court to entertain and rule on a no case submission without any need to invoke s.79 of the Judiciary Act.”[10]
[10] Amcor Printing ALR at 356-357 per Sackville J; FCA at para. 60 per Sackville J.
The Federal Court in Amcor Printing observed that the Full Court of that Court in Rasomen “did not advert” to the “suggestion” in George Weston Foods that O.35 r.1 of the FCR was the source of “power to entertain” a no case to answer submission.[11]
[11] Amcor Printing FCR at 356 per Sackville J; FCA at para. 59 per Sackville J.
In Applicant N – Appeal a single judge of the Federal Court noted both the s.79 approach and the O.35 r.1 (Federal Court) or r.16.01 (this Court) approach, and referred to Amcor Printing, Rasomen and Compaq, before finding that there was “no doubt” about this Court’s power to entertain a no case to answer submission, but without specifying which approach applied.[12]
[12] Applicant N - Appeal at paras. 35-37 per Sundberg J.
The question of an election appears to have arisen in two cases in this Court: Joyce v St. George Bank Limited[13] and Applicant N.
[13] [2005] FMCA 868 (“Joyce”) and Applicant N.
In Joyce the Respondent was, before lunch, put to an election.[14] After lunch the Respondent persuaded the Court to consider, at final hearing, an application to summarily dismiss the application under r.13.10(a) of the FMC Rules as disclosing no reasonable cause of action.[15] That application succeeded rendering the question of no case to answer and the election otiose.[16] In Joyce the source of power in relation to the question of election was not addressed by this Court.
[14] Joyce at para. 13 per Driver FM.
[15] Joyce at para. 14 per Driver FM.
[16] Joyce at para. 22 per Driver FM.
In Applicant N this Court determined not to put the Respondent to an election.[17] Again, the source of power in relation to the question of election was not addressed by this Court.
[17] Applicant N at para. 37 per McInnis FM.
Ultimately, the question of the source of the power of this Court in relation to the procedure as to whether a party making a no case to answer submission must make an election as to whether to go into evidence before putting that submission reduces to this: Is there a law of the Commonwealth prescribing that procedure, either generally or specifically, so as to displace the procedure of the State courts of Western Australia?
In relation to this Court the starting point is to examine the provisions of the Federal Magistrates Act, 1999 (Cth)[18] and FMC Rules to see if there is a general or specific procedure prescribed.
[18] “FM Act”.
Section 43(1) of the FM Act expressly provides that the practice and procedure of this Court “is to be in accordance with [the FMC Rules] made under [the FM] Act…subject to any provision made by or under [the FM Act] or any other Act with respect to practice and procedure.” Insofar as the FMC Rules made under s.43(1) of the FM Act are insufficient, s.43(2) of the FM Act relevantly provides for the Rules of Court made under the Federal Court of Australia Act, 1976 (Cth) to apply with necessary modifications so far as they are capable of application and subject to any direction of this Court.
This Court’s practice and procedure “includes all matters in relation to which Rules of Court may be made under” the FM Act.[19]
[19] FM Act, s.43(3).
Section 81 of the FM Act provides that the Federal Magistrates, or a majority of them, may make Rules of Court for or in relation to the practice and procedure to be followed in the Court, and all matters and things incidental to any such practice and procedure or necessary or convenient to be prescribed for the conduct of any business of the Court.[20]
[20] FM Act, s.81(1)(a) and (b).
The FMC Rules may also prescribe matters required or permitted by another provision of the FM Act, or any other law of the Commonwealth, to be prescribed by the Rules of Court.[21]
[21] FM Act, s.81(1)(c).
The FMC Rules have effect “subject to any provision made by another Act, or by rules or regulations under another Act, with respect to the practice and procedure in particular matters.”[22]
[22] FM Act, s.81(2).
Rule 16.01 of the FMC Rules is a specific rule which generally prescribes the practice and procedure of this Court as to the stage at which, and circumstances in which, judgment may be given by this Court. Rule 16.01 is:
a)a law of the Commonwealth;[23]
b)made under a law of the Commonwealth, namely s.43(1) of the FM Act; and
c)applies to the practice and procedure with respect to the giving of judgment at any stage of a hearing in this Court.
[23] Re Colina (1999) 200 CLR 386 at 397 per Gleeson CJ and Gummow J; (1999) HGA 57 at para. 25 per Gleeson CJ and Gummow J (with whom Hayne J agreed: CLR at 428; HCA at para. 108). The term “law of the Commonwealth” refers to laws made under the legislative powers of the Commonwealth”; CLR at 402 per McHugh J; HCA at para. 45 per McHugh J: “A law of the Commonwealth is simply a law made under or by the authority of the Parliament of the Commonwealth”.
On the above analysis s.43 of the FM Act and r.16.01 of the FMC Rules prescribe the procedure for this Court in relation to a judgment arising from a no case to answer submission, and when read together with s.81(2) of the FM Act, provide the source of power for the Court to make a judgment in relation to a no case to answer submission, and to deal with all matters incidental thereto, which must include the question of whether an election is or is not made by the party moving the no case to answer submission as to whether to call evidence.
There was no express submission that the procedure of the State courts of Western Australia applied by reason of s.79 of the Judiciary Act. However, Counsel for the Applicant did submit that “in this jurisdiction”[24] the First to Fifth Respondents ought to be put to their election and relied upon a judgment of the Full Court of the Supreme Court of Western Australia in BHP Steel (RP) Pty Ltd Trading as BHP Reinforcing Products v ABB Engineering Construction Pty Ltd[25] as referred to in an article on no case submissions by Dr MacMillan, a member of the Western Australian Bar.[26] Counsel for the Applicant submitted, on the basis of BHP Reinforcing Products “that other than in special circumstances a defendant is put to an election.”[27]
[24] Transcript at 315.
[25] [2001] WASCA 294 (“BHP Reinforcing Products”).
[26] Dr MacMillan’s article deals only with the practice and procedure in New South Wales, Victoria and Western Australia. And deliberately so: MacMillan at 63. Having expressed the view that the “position in Australia is unsettled” in relation to no case to answer submissions: MacMillan at 63, it is a shame that discussion was not extended to what were, even in 2004, the fertile fields of Federal law laid down on this topic. P. MacMillan “No Case Submissions: A Neglected Corner of Civil Procedure” (2004) 25 Australian Bar Review 63 at 67 (specifically, footnote 32) and 70-71 and 75. The Collected Works of Erasmus, Adages II vii I – III iii 100 (Translated and annotated by RAB Mynors, University of Toronto Press, 1992) records that the phrase “neglected corner” was “used of a man who just sat idle and indolent and attempted nothing worth doing.” and notes that it was recorded by Zenodotus (the Greek grammarian, scholar on Homer and the first Superintendent of the Library of Alexandria in the 3^rd century BC, and Hesychius of Alexandria (who compiled a lexicon of unusual and obscure Greek words) in the 5^th century AD. George Weston Foods, J-Corp Pty Ltd v Australia Builders Labourers Federated Union of Workers (Western Australian Branch) & Ors (No 2) (1992) 38 FCR 458 (“J-Corp”); Rasomen; Compaq and Amcor Printing.
[27] Transcript at 315.
BHP Reinforcing Products was a civil trial before a judge alone. It was an action seeking to recover monies due, plus damages or compensation under a number of heads, namely, contract, representations, trade practices (under the TP Act) and estoppel.[28] In relation to no case to answer submissions the Full Court observed:
“The general practice in civil cases tried by a Judge without a jury in Western Australia is for the Judge to require a defendant who wishes to make a submission of no case to elect whether to call evidence, and to decline to rule on the submission until that election is made. The primary reason for this practice is to avoid a new trial if an appeal against a decision of no case to answer is successful. The trial Judge does, however, have discretion and he or she may, in special circumstances, decide not to require the defendant to make an election”.[29]
[28] BHP Reinforcing Products at para. 1 per Kennedy J.
[29] BHP Reinforcing Products at para. 7 per Kennedy J, with whom Wallwork J and Pidgeon AUJ agreed.
The Full Court of the Supreme Court of Western Australia did not say what might constitute “special circumstances”, but cited the judgment of the Supreme Court of Western Australia in Ralph M Lee (WA) Pty Ltd v Fort[30] and noted that the practice described accorded with that in the United Kingdom, citing Alexander v Rayson[31] and Young v Rank[32].
[30] (1991) 4 WAR 176; (1991) 22 ALD 465 (“Ralph M Lee”).
[31] [1936] 1 KB 169 at 178 (“Rayson”).
[32] [1950] 2 KB 510 at 511-515 (“Rank”).
An examination of the judgment in Ralph M Lee shows that the Supreme Court of Western Australia in that instance did not refer at all to “special circumstances”, but rather said as follows:
“The practice in civil cases is to require a defendant who wishes to submit no case, to elect whether to call evidence and to decline to rule on the submission until that election is made…A decision will not generally be given on a no case submission unless the defendant announces that he calls no evidence…This is not an inflexible practice and it is in the discretion of the trial Judge whether to put a party to his or he election, but the general rule is as I have stated it.”[33]
[33] Ralph M Lee WAR at 180 per Anderson J; ALD at 467 per Anderson J; citing Humphrey v Collier [1946] VLR 391 (“Humphrey”); Rank and Jones v Dunkel (1958) 101 CLR 298 per Windeyer J at 331.
Rayson does not appear to be authority for the proposition that a judge sitting alone in a civil action has discretion in special circumstances to decide not to require a defendant to make an election. It is rather to the contrary. Having referred to the practice of making no case to answer submissions in jury trials the UK Court of Appeal then proceeded as follows:
“It also seems to be not unusual in the King’s Bench Division to ask for a similar ruling in actions tried by a Judge alone. We think, however, that this is highly inconvenient….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.”[34]
[34] Rayson at 178 per Greer, Romer and Scott LJJ.

In Rank the action tried was a civil one (for breach of warranty, wrongful dismissal and conspiracy) but was before a jury.[35] The passage cited by the Full Court in BHP Reinforcing Products discusses extensively the practice with respect to a no case to answer submission where the matter is before a jury, and reinforces the view that in the case of a judge sitting alone there was, at that time, almost without exception, no right to make an election. Unless a defendant told the court that no evidence was to be called the court would refuse to rule on any no case to answer submission. There were very limited exceptions to this in cases of defamation where there was no evidence of malice and slander if the submission was made that the words were not actionable without proof of special damage and no special damage was alleged.[36]
[35] A City of London Special Jury.
[36] Rank at 512-513 per Devlin J.
In Ralph M Lee the Supreme Court of Western Australia also referred to Humphrey when discussing the practice in civil cases. In that case the Full Court of the Victorian Supreme Court[37] was dealing with an appeal from an action under the Wrongs Act, 1928 (Victoria) alleging negligence, which caused death, in relation to a motor vehicle accident. Gavan Duffy J (with whom Herring CJ agreed)[38] said that the general practice was that the trial Judge should refuse to rule on the submission of no case to answer made at the close of the plaintiff’s evidence unless Counsel for the defendant said that the defendant was to call no evidence.[39] Gavan Duffy J when on to indicate that that practice was “very desirable” but the trial Judge should not be left without discretion in the matter because strict adherence to the rule might result in unnecessary loss of time and money.[40] Gavan Duffy J reviewed the cases and practice in England and Victoria (all jury cases) and indicated that the practice of some judges to enter judgment without taking the verdict of the jury, although giving leave to move after verdict for a directed judgment, was desirable and a practice justified by the Supreme Court Act, 1928 (Victoria) and the relevant rules.[41] The other member of the Full Court, MacFarlan J said:
“I agree with Gavan Duffy J that it is desirable that the practice of putting a defendant to his election should be uniformly followed and should not be departed from unless the circumstances are altogether exceptional.”[42]
[37] MacMillan wrongly refers to Humphrey as an English decision: MacMillan at 71.
[38] Humphrey at 396 per Herring CJ.
[39] Humphrey at 402 per Gavan Duffy J.
[40] Humphrey at 402 per Gavan Duffy J.
[41] Humphrey at 408 per Gavan Duffy J.
[42] Humphrey at 402 per MacFarlan J.
A close reading of the judgment of Gavan Duffy J however indicates that at no point did he indicate that “altogether exceptional” circumstances were required before the rule was departed from, but merely that the practice was justified under the relevant Act and Rules.
In the absence of reference to earlier Western Australian decisions (other than Ralph M Lee) indicating that it was only in special circumstances that a defendant was not put to an election on a no case to answer submission, it is difficult to understand how it is that the Full Court in BHP Reinforcing Products arrived at that view. All the cases referred to by the Full Court in BHP Reinforcing Products, and the cases referred to in Ralph M Lee, were jury trials. The only exceptions specifically referred to in those cases are defamation actions, seemingly before juries, in the English cases. In Humphrey the majority of the Full Court simply said, again in a jury trial, that the relevant Act and Rules allowed for a judge not to put a defendant to the election, while MacFarlan J (agreeing in the outcome, but in the minority on the election issue) said that it required not just special circumstances but “circumstances…altogether exceptional.”
If there was a practice in Western Australia of a judge having a discretion to not require a defendant to make an election in special circumstances it appears to have been a practice not founded in any authority cited in BHP Reinforcing Products or Ralph M Lee, at least insofar as civil cases without a jury were concerned.
The special circumstances principle set out in BHP Reinforcing Products has been followed and applied in Western Australia.
In Green & Ors v Wilden Pty Ltd & Ors[43] the Supreme Court of Western Australia said that the legal principles had been summarised in Rasomen, and that the general rule of practice 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, but that the trial Judge has a discretion to depart from the general rule where particular circumstances require it.[44] The Supreme Court of Western Australia in Wilden went on to say that those principles (that is the principles summarised in Rasomen), were applied in BHP Reinforcing Products and noted that in BHP Reinforcing Products the reasoning of Tadgell J in Protean (Holdings) Ltd (Receivers and Managers Appointed) & Ors v American Home Assurance Co,[45] included the discretion to entertain a no case to answer submission without requiring an election to be made by the moving party.[46] In Wilden the general practice was applied.
[43] [2004] WASC 105 (“Wilden”).
[44] Wilden at para. 25 per Hasluck J.
[45] (1985) VR 187.
[46] Wilden at paras. 27-28 per Hasluck J.
In Mathews v Director of Legal Aid[47] the Supreme Court of Western Australia referred to BHP Reinforcing Products and advised Counsel for the defendant that it was not minded to entertain the no case to answer submission unless the defendant elected to call no evidence.[48]
[47] [2004] WASC 225 (“Mathews”).
[48] Matthews at para. 2 per Commissioner Zilko SC.
In Salfinger v Mitchell[49] the District Court of Western Australia referred to the general rule and special circumstances exception, and referred to BHP Reinforcing Products and Ralph M Lee.[50] The District Court then cited Amcor Printing in determining that the defendant was able to proceed with a submission of no case without making an election.[51]
[49] [2005] WADC 44 (“Salfinger”).
[50] Salfinger at para. 3 per Sleight DCJ.
[51] Salfinger at paras. 1 and 4 per Sleight DCJ.
In Da Silva v Fiocco Hopkins Nash & Anor[52] a ruling that a defendant be put to its election as to whether to call evidence was supported by a reference to BHP Reinforcing Products.[53]
[52] [2005] WADC 37 (“Da Silva”).
[53] Da Silva at para. 6 per Mazza DCJ.
It would thus appear that the practice adopted with respect to whether or not an election need be made before a no case to answer submission is made is essentially the same in both Western Australia and Victoria, and that the principles for the exercise of discretion in that determination are consistent between the courts in Western Australia, Victoria and federally. Consistency between the procedure in Western Australia and Victoria can be seen from the judgment in BHP Reinforcing Products and Wilden and Salfinger. As the Federal Court observed in Compaq there appears to be no difference in the approach taken by the Supreme Court of Victoria and that of the Federal Court on this issue.[54] Thus, it would appear, that it is no longer the case that in Western Australia the “judicial discretion not to require an election appears to be more circumscribed.”[55] Rather, it appears that, particularly having regard to the judgments in Wilden and Salfinger, that the procedure with respect to the question of election in relation to no case to answer submissions is consistent between Western Australia, Victoria and the Federal Court, and, therefore, for reasons outlined above, this Court.
[54] Compaq at para. 6 per Finkelstein J.
[55] MacMillan at 75.
Ultimately, in a practical sense, even if s.79 of the Judiciary Act is relied upon as the source of the power for the procedure in this Court in relation to the question of election on a no case to answer submission, it appears that that procedure, and in particular the exercise of the discretion, is no different to what it would be if, as the Court has found to be the case, the source of the power is in s.43 of the FM Act and r.16.01 of the FMC Rules.
Therefore, to the extent that the Applicant’s submissions suggested that this Court ought to adopt the procedure followed in Western Australia, and that that procedure was limited to “special circumstances” and that the judicial discretion in relation to the election issue was more circumscribed than it was elsewhere, that submission is rejected.
Having regard to its determination that the proper source of power with respect to the ability to entertain a no case to answer submission and the procedure concerning no case to answer submissions and the question of election is s.43(1) of the FM Act and r.16.01 of the FMC Rules the Court will make a declaration to the following effect:
Section 43(1) of the Federal Magistrates Act, 1999 (Cth) and rule 16.01 of the Federal Magistrates Court Rules, 2001 (Cth) allow this Court to determine whether or not an election as to whether to call evidence must be made by a party before that party makes a no case to answer submission.

Whether an election is required or not in the circumstances of this case

The First to Fifth Respondents submitted that no election was required in the circumstances of this case. The Applicant submitted that there should be an election as to whether evidence would be called before the First to Fifth Respondents put their no case submission and it was entertained by the Court.
Both parties in arguing whether the general rule ought to be departed from in this case place significant reliance upon the factors outlined by the Federal Court in Amcor Printing.
It is appropriate to characterise the allegations of deception (under both the TP Act and FT Act) as allegations of serious deception involving a significant product substitution scheme in relation to all of the Respondents. The seriousness of the allegations made is a matter to be considered when determining whether an election must be made.[56]
[56] Compaq at 9 per Finkelstein J; Amcor Printing ALR at 358 per Sackville J; FCA at para. 68 per Sackville J.
In relation to the First Respondent accessorial liability is sought to be established under s.75B of the TP Act. Likewise with respect to the Third to Fifth Respondents under s.68 of the FT Act. It will therefore be necessary for the Applicant to establish intentional participation in the alleged contraventions, that is that the persons alleged to have been involved had actual (not just constructive) knowledge of the essential matters that make up the contravention.[57]
[57] Compaq at 4-5 Finkelstein J.
Given the seriousness of the allegations made, and the necessity to prove actual knowledge so as to establish intentional participation in the contravention, it is appropriate that the First to Fifth Respondents not be required to call evidence or submit themselves to cross-examination if there is an insufficient case against them.[58]
[58] Compaq at 9 per Finkelstein J; Amcor Printing ALR at 358 per Sackville J; FCA at para. 68 per Sackville J; George Weston Foods at 61 per Davies J.
Senior Counsel for the First and Third to Fifth Respondents has indicated to the Court that the no case submission will be advanced on the basis that no issue as to the credit of the Applicant’s witnesses already called will be raised. If no question of credit is involved then that is a factor which favours hearing the no case to answer submission without an election having to be made.[59]
[59] Amcor Printing ALR at 359 per Sackville J; FCA at para. 69 per Sackville J.
In this case the Sixth Respondent does not appear. All of the respondents who do appear (that is the First to Fifth Respondents) join in the no case to answer submission, which seeks to dismiss the application in its entirety, save for the allegation of breach of fiduciary duty against the Fourth Respondent. That latter cause of action can stand alone, and the fact that all appearing respondents otherwise join in the no case to answer submission with respect to the remaining matters alleged against each of them is a factor in favour of the election not being required to be made.[60]
[60] Amcor Printing ALR at 359 per Sackville J; FCA at para. 70 per Sackville J.
The Court anticipates that at lease some time and costs will be saved in the hearing of the issues if the no case to answer submission is successful, either in whole or in part. Obviously if it were successful in whole then significant time and cost would be saved because only the allegation of breach of fiduciary duty against the Fourth Respondent would remain. However, it is also relevant that even if the no case to answer submission were only partly successful, that there would be a saving in time and costs for at least some of the parties involved. In that regard it is relevant to note that at least two of the respondents, the Third Respondent and the Fifth Respondent, appear (on the face of the evidence and without prejudging the issue) to face an evidentiary case of manifestly weaker strength than that facing the First, Second and Fourth Respondents.
In this regard, on its face, it would be appropriate in the Court’s view to not require an election to be made before the no case to answer submission is put.[61] The Court’s view in this regard is strengthened by its consideration of the objects of the FM Act and FMC Rules discussed below.
[61] Amcor Printing ALR at 359 per Sackville J; FCA at para. 71 per Sackville J.
A further consideration in determining whether or not an election is required to be made is whether notice of a no case to answer submission has been given.[62] In that regard notice of a no case to answer submission was given early in the case in respect of the Third and Fifth Respondents.[63] It was further foreshadowed that it was possible that a no case to answer submission would also be made in respect of the First, Second and Fourth Respondents.[64] It might therefore have reasonably been anticipated that a no case to answer submission would be made in respect of each of the First to Fifth Respondents. There can be no question that Counsel for the Applicants was aware that a no case to answer submission would be made on the part of some Respondents because he had to hand Dr MacMillan’s article referring to the judgment in BHP Reinforcing Products.[65] Ordinarily, consideration of this factor may have been neutral, or perhaps even favoured the position of the Applicant insofar as it was not given express notice of the no case to answer submission against the First, Second and Fourth Respondents. There is of course no absolute requirement to give such notice.[66] However, because of the manner in which this case was listed (and for reasons related to the Court’s convenience rather than that of the parties) there was a free day following the day on which the Court heard the argument as to whether or not an election was required to be made, and that factor, alters the balance to one which favours the election not having to be made, or to at least rendering this factor neutral, as it affords the Applicant notice that the no case to answer submission will be run if an election is not required of the First to Fifth Respondents by the Court, and time to prepare.
[62] Amcor Printing ALR at 359 per Sackville J; FCA at para. 72 per Sackville J.
[63] Transcript at 36.
[64] Transcript at 36.
[65] Transcript at 315.
[66] Applicant N – Appeal at para. 76 per Sundberg J.
Finally, the Court must consider the objects of the FM Act and FMC Rules. The objects of the FM Act and FMC Rules have been conveniently summarised as follows:
“Reading together the objects of the FM Act in s.3, the mode of operation in s.42, and having regard to the objects of the FMC Rules in r.1.03, it is apparent that the Court is intended to operate in a manner:
(a)     as informal as possible in the exercise of judicial power;
(b)     which is not protracted in its proceedings;
(c)which resolves proceedings justly, efficiently and economically;
(d)     uses streamlined procedures; and
(e)     avoids undue delay, expense and technicality.”[67]
[67] Goodall v Nationwide News Pty Ltd [2007] FMCA 218 at para. 21 per Lucev FM.
The procedure in relation to whether an election ought to be made or not in relation to a no case to answer submission is rooted deep in pre-Judicature Act procedure of trial of actions (including civil actions) by juries. Those formalistic procedures adapted to modern civil actions by a judge alone are not necessarily compatible with the object of informal exercise of judicial power by this Court. The informal exercise of judicial power favours no election being required to be made. Similarly, streamlined procedure favours no election being required to be made. Further, insofar as the putting of a no case to answer submission has the capacity to truncate proceedings, and the requirement that an election be made is more likely not to truncate proceedings because it is more likely that the submission will not be made, then the requirement for an election to be made is inconsistent with the objects of the FM Act and the FMC Rules. Given the objects of the FM Act and the FMC Rules it may be that the general rule that an election must be made does not apply, or apply with the same force in this Court as in other courts. That said, each case must be assessed on the merits of the relevant factors as outlined in Amcor Printing, recognising that those factors are not necessarily rigid and that the categories of factors are not necessarily closed.
A consideration of the factors in this case leads to the conclusion that the First to Fifth Respondents ought not be required to make the election.
In those circumstances the Court made a declaration as follows:
“That in the circumstances of this case the Respondent is not required to make an election.”

Costs

The Court will hear the parties as to the costs of this argument at an appropriate time.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Lucev FM

Deputy Associate: S Gough

Date: 20 May 2008

“FC Rules”. Applicant N v Respondent C [2007] FCA 1182 at para. 35 per Sundberg J (“Applicant N – Appeal”) upholding the Judgment in this Court in Applicant N v Respondent C [2006] FMCA 1936

(“Applicant N ”); and following ACCC v Amcor Printing Papers Group (2000) 169 ALR 344 at 356-357 per Sackville J; [2007] FCA 17 at para. 60 per Sackville J (“Amcor Printing”). See also Trade Practices Commission v George Weston Foods Ltd (No 2) (1980) 43 FLR 55 at 56-57 per Davies J (“George Weston Foods”).