| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : SALFINGER -v- MITCHELL [2005] WADC 44 CORAM : SLEIGHT DCJ HEARD : 12 JANUARY 2005 DELIVERED : Delivered Extemporaneously on 17 JANUARY 2005 typed from tape and edited by Trial Judge FILE NO/S : CIV 1842 of 2003 BETWEEN : PAUL FRANCIS SALFINGER Plaintiff
AND
ZANE QUINTON MITCHELL
Defendant
Catchwords: No case to answer submission - Whether defendant needs to be put to election - No election required when special circumstances - Case to answer - Turns on own facts
Legislation: Nil
Result: Ruling of case to answer
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Representation:
Counsel:
Plaintiff : Mr M D Cuerden
Defendant : Mr M L Bennett
Solicitors:
Plaintiff : Bowen Buchbinder Vilensky
Defendant : Bennett & Co
Case(s) referred to in judgment(s):
Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd [2000] FCA 17
BHP Steel (RP) Pty Ltd t/a BHP Reinforcing Products v ABB Engineering Construction Pty Ltd [2001] WASCA 294
Cusack v Heath [1950] QWN 16
Haviland v Long [1952] 2 QB 80
Jones v Stroud District Council [1986] 1 WLR 1141
Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (1991) 33 FCR 1
National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569
Protean (Holdings) Ltd v American Home Assurance Co [1985] VR 187
Ralph M Lee (WA) Pty Ltd v Fort (1991) 4 WAR 176
Redding v Lee (1983) 151 CLR 117
Case(s) also cited:
Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1
Rasomen Pty Ltd v Shell Company of Australia Ltd (1996) 71 FCR 540
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1 SLEIGHT DCJ: My ruling in this matter is that the defendant can proceed with a submission of no case without making an election but I reject the defendant's submission that there is no case to answer. My reasons are as follows.
2 On Friday last the defendant made an application to present a no case submission without being put to an election as to whether to call evidence or not. 3 The general rule is that the defendant in a civil trial who wishes to present a no case submission must be put to an election, see BHP Steel (RP) Pty Ltd t/a BHP Reinforcing Products v ABB EngineeringConstruction Pty Ltd[2001] WASCA 294. However, it is not an absolute rule and the trial judge does have a discretion not to follow the general rule when there are special circumstances, see Ralph M Lee (WA) Pty Ltd v Fort (1991) 4 WAR 176. 4 In Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd [2000] FCA 17, Sackville J reviewed the authorities on the issue: "61 The general rule of practice is that a decision will not be given on a no case submission unless the moving party elects to give no evidence: Rasomen, at 223; Compaq Computer, at 6-7 (and cases cited there). There are good reasons for the rule, in particular the difficulty that if a judge rules in favour of a no case submission and the judgment in favour of the moving party is overturned on appeal, it would usually be necessary to order a new trial: Compaq Computer, at 7. A further problem is that a no case submission may require the judge to consider the evidence twice during the trial, namely, in connection with the submission and, if the submission fails, at the conclusion of all the evidence. This problem may be particularly acute if the no case submission requires an evaluation of the credit of witnesses. 62 Nonetheless, the Court has a discretion to depart from the general rule. In Protean,Tadgell J observed (at 238) that a departure from the general rule can seldom be justified unless adherence to the rule would not serve the ends of justice or convenience. Tadgell J continued (at 238):
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'In deciding which course to follow the Judge will be guided by the nature of the case, the stage it has reached, the particular issues involved and the evidence that has been given. The imposition of a requirement that the moving party make an election before the Judge entertains the submission, or before he rules on it, will depend on the just and convenient disposition of the litigation.' This passage was approved by the Full Court in Rasomen. As the Full Court said, Tadgell J's formulation allows the Court to consider 'wider public interest considerations'. Nonetheless, the ultimate aim must be the attainment of justice: Rasomen, at 224. 63 In a passage which is frequently cited, Perry J in Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54 at 68, said that there are primarily four situations in which a submission of no case to answer may be made. He identified them as follows: '1 Where no reference at all to the evidence is required. 2 Where a reference to the evidence is required only to establish that there is an evidentiary hiatus or failure to adduce any evidence as to an essential element in the cause of action. 3 Where it is argued that on a consideration of the evidence adduced by the plaintiff taken at its highest from the plaintiff's point of view, the evidence could not support the causes of action pleaded. 4 The situation where it is contended that although there is some evidence to support the plaintiff's claim, it is so weak and unreliable that it should be dismissed without calling upon the defendant.' Perry J made these further observations (at 69): 'As to category 1, this should normally be argued on the pleadings, preferably before the trial commences.
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No question of election arises in that situation. Likewise, consideration of a submission of no case to answer in category 2 should not involve an election. As to categories 3 and 4, these situations should normally be met by the application of what I have referred to as the general rule that counsel should be called upon to elect.' 64 In my respectful opinion, these observations are helpful, provided they are not treated as a rigid categorisation to be applied regardless of the circumstances of an individual case. As Olsson J said in Popovic v Tanasijevic (No 3) [1999] SASC 339, at [14], the four categories are not necessarily absolute and exclusive and there can be hybrid situations. There must be, as his Honour pointed out, a residual discretion to apply a reasonable degree of flexibility to meet the exigencies of particular cases and to achieve a fair and just result." 5 In my view where the no case submission is to be based upon the submission that there is no evidence on an essential point then that is a factor which may lead to an exercise of the discretion of the trial judge not to require the defendant to be put to an election. This is supported by Residue's case, a South Australian authority, referred to in the decision of Sackville J. Otherwise a defendant might be compelled to "play safe" and call evidence unnecessarily and then argue the point at the end of the trial. This could lead to an obvious waste of the court's time. 6 In order to decide whether the defendant should be put to an election I needed to know the nature of the no case submission. The thrust of the defendant's submission was that there was no evidence of the plaintiff having suffered any loss which was an essential element of the plaintiff's claim in negligence. This submission was based upon the contention that the plaintiff's case was that the payment of expenses incurred as a result of the alleged defects in the dam wall were made by the Salfinger Family Trust. 7 In Protean (Holdings) Ltd v American Home Assurance Co [1985] VR 187, Tadgell J at 237 said a no case submission could be dealt with by the trial judge in one of three ways other than by rejecting it outright:
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"1 He might decline to entertain a 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 submission to be made without putting the moving party to an 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." 8 In my view, the thrust of the defendant's application was sufficiently narrow for me to proceed on the basis of the second option listed in Protean's case and accordingly I heard submissions both as to (a) whether an election should be required, and (b) the no case issue itself. 9 In my view, this is a case where I ought to exercise my discretion not to put the defendant to an election. In reaching this decision I take into account the following factors: 10 I now turn to the merit of the no case submission. The defendant relies upon the evidence of the plaintiff which is contained at T158 - T159, which was to the effect that all accounts after July 1999 were paid by the Salfinger Family Trust.
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11 The defendant contends that there is no evidence as to:
12 Accordingly, the defendant contends that the payment by the trust might be a gift to the plaintiff, which the plaintiff has had the benefit of and which leads to the result that the plaintiff has not produced any evidence that he has suffered a loss. 13 As a general rule, the benefits of benevolence from a third party do not reduce the amount of damages recoverable where the purpose of the benevolence is to assist the plaintiff. The reason for this is such benevolence is given for the benefit of the sufferer, not for the benefit of the wrongdoer. See National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569. In that decision Windeyer J stated at 599 - 600 as follows: "By way of bounty, to the intent that he should enjoy them, in addition to and not in diminution of any claim for damages, the decisive consideration is not whether the benefit was received in consequence of or as a result of the injury but what was its character and that is determined by the intent of the person conferring the benefit. The test is by purpose rather than by cause." 14 The principle that benefits of benevolence for the plaintiff should not be taken into account is not confined to personal injury claims, see Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (1991) 33 FCR 1. In Monroe Schneider's case Burchett J at p 24 referred to a Queensland decision of Cusack v Heath [1950] QWN 16 where the Full Court of the Supreme Court of Queensland, in a claim for negligent damage caused to a motor car, ruled that it would be wrong not to allow the costs of repairs on the ground that it had been borne not by the plaintiff but by her parents out of charity so that she was under no legal obligation to pay for the repairs. 15 A similar result occurred in the English case of Haviland v Long [1952] 2 QB 80 which was also referred to by Burchett J in his decision.
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16 The evidence of the plaintiff was that it was at the suggestion of the plaintiff's accountant that the payments were made by the Salfinger Family Trust. This suggests that it was a financial resource available to and for the benefit of the plaintiff. In my view, an arrangement by the plaintiff to pay the accounts through the Salfinger Family Trust is not an arrangement which should benefit the alleged wrongdoer. It would be ludicrous to suggest that the payment was for the benefit of the defendant.
17 In my view, such payments come within the principle stated above that the benefits of benevolence from a third party for the purposes of benefiting the plaintiff do not reduce the amount of damages recoverable. See also Redding v Lee (1983) 151 CLR 117, Jones v Stroud District Council [1986] 1 WLR 1141. 18 In my view, it is also open for me to infer that the payments made by the Salfinger Family Trust were made from a financial resource of the plaintiff and therefore, in effect paid by the plaintiff. 19 In reaching this conclusion I rely upon the following evidence: (1) The plaintiff is a signatory to the trust account and was able to draw trust account cheques; (2) The trust is a family trust using the name of the Salfinger Family Trust; (3) The recommendation of the plaintiff's accountant for the plaintiff to arrange payment from the Salfinger Family Trust suggests that the Salfinger Family Trust was a financial resource available to the plaintiff. 20 Counsel for the defendant also referred to the fact that lot 58 is being advertised on the market at a greater price than the purchase price. In my view, this fact does not lead to the conclusion that the plaintiff has not suffered any loss. The true measure of damages in this matter is the costs that the plaintiff alleges he has been put to as a result of the defects in the dam that was built on his property.
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