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

(1) An opposite party may apply to the court to give judgment for the opposite party, either generally or on any claim for relief in the proceedings, on the ground that, on the evidence given, a judgment for the beginning party could not be supported.
(2) Such an application may be made at any time after the conclusion of the evidence for the beginning party in his or her case in chief.
(3) The court may not give judgment under this rule unless the opposite party satisfies the court that, on the evidence given, a judgment for the beginning party could not be supported.
(4) If the opposite party fails to satisfy the court that, on the evidence given, a judgment for the beginning party could not be supported, the opposite party may not adduce evidence or further evidence in the proceedings generally or on the claim for relief concerned, as the case may be, except by leave of the court.
(5) If not all opposite parties apply to the court under subrule (1), the court must not deal with any such application before the conclusion of the evidence given for all parties.

2 Although similar to the former Supreme Court Rules 1970 Pt 34 r 8 which it replaced, one significant difference is that UCPR 29.10(4) provides for the Court to grant leave to call evidence if the application fails whereas there was no such provision in the old rule.

3 It is common ground that the Court has a discretion not to entertain such an application unless the moving party elects not to call evidence. The council submits, and the respondents contest, that the respondents should be required to make that election.

4 The principles concerning election were reviewed in Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 by Sackville J at [52] - [54].

[52] In Rasomen Pty Ltd v Shell Co of Australia Ltd (1997) 75 FCR 216; 144 ALR 497, a Full Court rejected a contention by the appellant that the trial judge had erred in ruling on a no case submission without requiring the respondent to elect to call no evidence. The Full Court (at FCR 218) quoted with approval a passage from the judgment of Tadgell J as a member of the Full Court of the Supreme Court of Victoria in Protean (Holdings) Ltd (recs and mgrs appointed) v American Home Assurance Co [1985] VR 187.

[53] In Protean , an insurer defended a claim for an indemnity under a fire policy on grounds that the insured had lit or connived at the lighting of the fire and had misrepresented or failed to disclose certain facts to the insurer. At the close of the insurer's case, the trial judge, Marks J, allowed the insured to submit that there was no case to answer in respect of the defences without requiring the insured to elect whether or not to call evidence in relation to the defences. Marks J (whose judgment is also reported at [1987] VR 187) approached the matter by indicating that he would both entertain the submission and rule on it without requiring the insured to make an election. He did so after some 16 days of hearing evidence. The Full Court upheld this approach.

[54] Tadgell J pointed out (at 237) that, where a party flags an intention to submit to a judge sitting alone that there is no case to answer on a contested issue, that party is really inviting the judge to rule that he or she should not have to adduce evidence or further evidence on that issue in order to have it finally decided in his or her favour. As his Honour said (at 237):

Usually, but not inevitably, the invitation will be issued at the end of the evidence called against the party desiring to make the submission (whom I shall call ` the moving party’ ) and before that party calls any evidence on the relevant issue in answer to that of the other party (whom I shall call the respondent party ). It might be issued after the moving party has called some but not all of his evidence.

5 His Honour decided that, although the general rule of practice is that such an application will not be entertained unless the moving party elects to give no evidence, the circumstances of the case were sufficiently unusual that it was in the interests of justice to permit the respondents not to make that election. In particular, his Honour noted that it was clear that the no case submission could be addressed by him without having to assess the credit of any of the witnesses: at [69]. His Honour said, “Had I concluded that the no case submission required me to assess the credit of any of the witnesses, I would have declined to entertain it unless the respondents elected [not] to call evidence”. I have inserted the word “not” in this passage because it seems to me (and the parties agreed) that that is the sense of what his Honour intended to communicate.

6 In the present case, the assessment of the credit of a particular witness, Mr Holstein, seems to be important to the outcome of the case. That being so, and consistently with the Amcor case, I decline to entertain the applications unless the moving parties elect not to call any evidence.

7 If they elect not to call any evidence, then on the hearing of the applications the applicable principles would be those discussed in Hunt v Watkins (2000) 49 NSWLR 508. There the Court of Appeal held that (a) the “jury test” is to be applied; (b) the jury test requires that a judgment by direction should be given in favour of an opposite party if the evidence adduced is such that a verdict by a jury in favour of the beginning party would, if challenged, necessarily be set aside; and (c) in applying the jury test the beginning party’s evidence should be taken at it’s highest and a distinction should be maintained between the conclusion of fact which the judge might make and the conclusion of fact which a jury could, without error, make. The principles are also discussed in Khan v Hadid [2007] NSWSC 314 (Rothman J); Glass, Seminars on Evidence (Law Book Company, 1970) 22; and Glass, “The Insufficiency of Evidence to Raise a Case to Answer” (1981) 55 ALJ 842.