Shellharbour City Council v Stewart - [2008] NSWLEC 69

Land and Environment Court

of New South Wales

CITATION: Shellharbour City Council v Stewart [2008] NSWLEC 69

PARTIES:
APPLICANT:
Shellharbour City Council
FIRST RESPONDENT:
Helen Stewart
SECOND RESPONDENT:
Geoff Rose

FILE NUMBER(S): 41097 of 2006

CORAM: Biscoe J

KEY ISSUES:
Practice and Procedure :- Judgment for want of evidence - no case submission - application under Uniform Civil Procedure Rules 2005 Pt 29 r 10 - discretion not to entertain application unless moving party elects not to call evidence - whether election should be required where Court is required to assess credit of witness.
Evidence:- Judgment for want of evidence - no case submission - "jury test" - evidence to be taken at its highest.

LEGISLATION CITED: Local Government Act 1993 s 664
Supreme Court Rules 1970 Pt 34 r 8
Uniform Civil Procedure Rules 2005 r 29.10

CASES CITED: Australian Competition and Consumer Commission v Amcor Printing Papers Group Limited (2000) 169 ALR 344
Hunt v Watkins (2000) 49 NSWLR 508
Khan v Hadid [2007] NSWSC 314

TEXTS CITED: Glass, Seminars on Evidence (Law Book Company, 1970)
Glass, “The Insufficiency of Evidence to Raise a Case to Answer” (1981) 55 ALJ 842

DATES OF HEARING: 13/02/2008

EX TEMPORE JUDGMENT DATE: 13 February 2008

LEGAL REPRESENTATIVES:
APPLICANT:
Mr F M Douglas QC and Mr K Connor SC
SOLICITORS
Maddocks
FIRST RESPONDENT:
Mr W Moss, barrister
SOLICITORS
Robert Watson Solicitor
SECOND RESPONDENT:
Mr P G Maiden SC
SOLICITORS
Russell McLelland Brown

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

13 February 2008

41097 of 2006

SHELLHARBOUR CITY COUNCIL v HELEN STEWART & GEOFF ROSE

EXTEMPORE JUDGMENT

1 HIS HONOUR: In these proceedings the applicant council claims that the respondents, who are councillors, breached s 664 of the Local Government Act 1993 by disclosing confidential council information. At the conclusion of the council’s case, the respondents each made an application for judgment for want of evidence (commonly described as a no case to answer submission) under the Uniform Civil Procedure Rules 2005 (UCPR) Pt 29 r 10 which provides as follows:

29.10 Judgment for want of evidence

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: [2008] NSWLEC 69
Decision Date: 13 February 2008

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Shellharbour City Council brought a claim against Helen Stewart and Geoff Rose, both councillors, alleging that they had breached section 664 of the Local Government Act 1993 by disclosing confidential council information. At the end of the council's case, the respondents applied for a judgment for want of evidence, also known as a no case submission, under UCPR Pt 29 r 10. This rule allows an opposite party to apply for a judgment if they believe that the evidence given does not support a judgment in favour of the beginning party. The rule was amended to allow the court to grant leave to call evidence if the application fails, which was not possible under the previous rule.

The court had to decide whether the respondents should be required to elect not to call any evidence before the application could be entertained. While it is generally required that the moving party makes such an election, the court found that this requirement could be waived if the circumstances of the case warranted it. In this case, the assessment of a particular witness's credibility was crucial to the outcome. As such, the court decided not to entertain the applications unless the moving parties elected not to call any evidence. If they did, the principles for applying the jury test, as discussed in Hunt v Watkins and other cases, would apply.

In conclusion, the court declined to entertain the respondents' applications for a judgment for want of evidence unless they elected not to call any evidence. This decision was based on the importance of assessing a particular witness's credibility in the case. The matter will proceed with the respondents' election to call evidence or not, and the applicable principles will be those discussed in previous cases.

Orders