ACCC v SIP Australia Pty Limited [2000] FCA 1476

FEDERAL COURT OF AUSTRALIA

ACCC v SIP Australia Pty Limited [2000] FCA 1476

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v SIP AUSTRALIA PTY LIMITED & ORS V 189 of 1999 GOLDBERG J 18 OCTOBER 2000 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 189 of 1999

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: SIP AUSTRALIA PTY LIMITED

(ACN 003 458 884)

First Respondent

FILIPPO IPPASO

Second Respondent

JOHN EDWIN GATES

Third Respondent

BAKER BROS (AUST) PTY LTD

(ACN 006 977 886)

Fourth Respondent

ANDREW CLIVE BAKER

Fifth Respondent

GUY EDWIN BAKER

Sixth Respondent

JUDGE: GOLDBERG J

DATE: 18 OCTOBER 2000

PLACE: MELBOURNE

RULING 1 The trial of this proceeding commenced on Monday 16 October 2000. Senior counsel for the applicant opened the applicant's case, read the affidavits which had been filed and three deponents were cross‑examined. At the conclusion of the viva voce evidence the applicant tendered some further documents, in addition to the documents which are exhibited to the various affidavits and closed its case shortly before noon yesterday, 17 October 2000. 2 Counsel for the first, second and third respondents ("the respondents") then indicated that the respondents wished to make a submission of no case to answer and submitted that they should not be put to their election as to whether they wished to call evidence before making the submission. Counsel for the applicant submitted that I should put the respondents to their election. 3 Counsel for the respondents then submitted that I should entertain the submission of no case to answer and rule upon it without requiring the respondents to make an election. He submitted in the alternative that I should allow the respondents to make their submission without putting them to any election at this stage and that I should leave the question whether or not I would rule on the submission without requiring an election to be made until after I had heard the submission. He submitted that on this basis I should not rule on whether I would require the respondents to make an election as a prerequisite to making the submission. 4 The appropriate steps to take, and the options open to a judge when a respondent wishes to make a submission of no case to answer upon the closing of an applicant's case, have been the subject of consideration in a number of cases: see, for example, Protean (Holdings) Ltd (Receivers and Managers Appointed) v American Home Assurance Co [1985] VR 187; Rasomen Pty Ltd v Shell Co of Australia Ltd (1997) 75 FCR 216; Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1; Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344. 5 In Rasomen Pty Ltd v Shell Co of Australia Ltd (supra) a Full Court quoted with approval the following passage from the judgment of Tadgell J in Protean (Holdings) Ltd (Receivers and Managers Appointed) v American Home Assurance Co (supra) at 218: "The judge is entitled, for reasons that seem appropriate to him, to decline out and out to entertain such a submission at the stage at which he is asked to do so. Normally, however, the judge would not feel justified in refusing outright to hear a submission of no case if to hear it would carry the prospect of justly facilitating the disposition of the litigation. Usually there would be three courses open to him, short of refusing altogether to entertain the submission, namely: 1. He might decline to entertain the 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 any 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." 6 Mr Lockhart, who appears for the respondents, has outlined in very general terms the submission which he wishes to make as to there being no case for the respondents to answer. That submission has been foreshadowed in the respondents' outline of contentions fact and law which was filed before the trial commenced. 7 In Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54, Perry J said at 68 that there were primarily four situations in which a submission to no case to answer might be made as follows. This passage was quoted by Sackville J with approval in Amcor (supra) at 357: "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 ." It should be remembered that the general rule is that ordinarily a judge will not rule on the submission of no case to answer unless the party wishing to make the submission elects to give no evidence: Rasomen Pty Ltd v Shell Co of Australia Ltd (supra) at 223. 8 Although counsel for the respondents has outlined, in general terms, the nature of the submission he wishes to make and although I have had the opportunity of reading the respondents' outline of contentions of fact and law in this respect, I am not satisfied that I have such a sufficient understanding as to the manner in which the respondents wish to put the submission of no case to answer that I should rule at this stage whether or not they should be put to their election. 9 I propose, in all the circumstances, to adopt the second course adverted to by Tadgell J in Protean, namely allow the submission to made without putting the respondents to their election but leaving the issue whether I should rule on the submission without requiring the respondents to make an election until I have heard the submission and any response of the applicant to it. 10 I will therefore allow the respondents to make their submission of no case to answer and the applicant to make any response to it that it may wish to make. I reserve my decision on whether I require the respondents to make an election whether they will call any evidence as a prerequisite to making the submission, and my ruling on the submission, until after I have heard the submissions.