Trkulja v State of Victoria
[2001] VSC 73
•13 March 2001
| SUPREME COURT OF VICTORIA | |
| COMMON LAW DIVISION | Not Restricted |
No. 8187 of 1992
| MILORAD TRKULJA | Plaintiff |
| v. | |
| STATE OF VICTORIA AND ROBERT PATTISON | Defendants |
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JUDGE: | NATHAN, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF RULING: | 13 MARCH 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 73 | |
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CATCHWORDS: Ruling – "No case" submission – Whether defendants should be put to their election.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Appeared on his own behalf | |
| For the Second Defendant | Mr. D. Masel and Miss S. MacDougall | Victorian Government Solicitor |
| For the 15th Defendant | Mr. R. Cameron | Peter Eggleston & Associates |
HIS HONOUR:
Both defendants intend to make a no case submission. Mr Masel for the State of Victoria has made a further application that he not be put to his election in respect of the no case submission although Mr Cameron, for Mr Pattison, has indicated that if put to his election he would indeed proceed with a no case submission. The court has a discretion not to require the defendant to elect and the grounds for that were set out in the Protean Holdings case. The discretion is to ensure that that which is just inequitable in the case should be pursued. Generally the discretion is exercised when the no case submission relies solely on issues of law, being issues which would not vex a jury. I am satisfied this is one such case. The pleadings indicate the nature of the action in negligence arising out of what is said to have been misstatements by the second defendant. I can see that discreet issues of law arise as to whether or not a duty of care exists in the circumstances, its extent, and whether or not there was a breach of that duty upon which the plaintiff relied. They are accordingly, discreet issues of law which require my adjudication rather than that of a jury, I can accordingly deal with them singularly. That being so I shall not require the State of Victoria to elect as to its course and I will permit the no case submission on legal issues to be put to me by the State of Victoria. If that submission is successful, that will of course affect the position of the second defendant but I will hear the second defendant and the plaintiff in respect of that matter if it arises. Accordingly you may proceed and I do not require you to be put to your election.
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