Industrial Relations Commission of New South Wales in Court Session CITATION : Brigitte Lipman and anor v AG Lifestyle Management Pty Limited and anor [2002] NSWIRComm 188 BRIGITTE LIPMAN First Applicant GARY CECIL LIPMAN Second Respondent PARTIES : AG LIFESTYLE MANAGEMENT PTY LIMITED (ACN 002 857 187) First Respondent AMANDA GORE Second Respondent FILE NUMBER: IRC 3967 of 2000 CORAM: Schmidt J CATCHWORDS : Practice and Procedure - interlocutory judgment - 'no case to answer' application - relief from obligation to make an election as to evidence sought - applicants' case closed - no warrant for departure from general rule in Davis v Amalgamated Television Services Pty Limited (1998) 364 - respondents' application refused LEGISLATION CITED : Industrial Relations Act 1996 Davis v Amalgamated Television Services Pty Limited (1998) 81 IR 364 CASES CITED : Garde v WorkCover Authority of New South Wales [1992] NSWIRC 21 (10 July 1992) HEARING DATES: 08/01/2002 EXTEMPORE JUDGMENT DATE : 08/01/2002 APPLICANTS: Ms KT Nomchong of counsel SOLICITORS: Shanahan Tudhope LEGAL REPRESENTATIVES: RESPONDENTS: Mr AR Moses of counsel SOLICITORS: Tress Cocks & Maddox JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 1 August 2002 Matter Number IRC 3967 of 2000 BRIGITTE LIPMAN AND ANOTHER v AG LIFESTYLE MANAGEMENT PTY LIMITED AND ANOTHER Application under s106 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT (Extempore) 1 An application has been made by the respondents that their no case submission be heard without their being called upon to make an election as to the calling of evidence. The general rule is that stated in Davis v Amalgamated Television Services Pty Limited (1998) 81 IR 364 at p399. The applicants oppose the application submitting that this is not a special case so as to warrant the exercise of the discretion sought. 2 I have considered the submissions which counsel have advanced. As the Full Bench has said this discretion is to be rarely exercised. I take the view that the question here is a finely balanced one. Given, however, the claims advanced in the summons, the evidence which has been led, and the arguments which the respondents wish to advance in their no case submission, I have come to the view that these circumstances do not fall into that category discussed in Davis as a special case, so as to warrant a departure from the general rule. 3 While I can understand why the opponents submissions were put, I am unable to conclude that the evidence led in the applicants case is so palpably inadequate, for example, that it would appear to be an unnecessary waste of time to consider. Here the claim is brought under s106 of the Industrial Relations Act 1996 ('the Act'). There is an argument to be advanced by the respondents that part of the claim is precluded by s109A. Consideration of that question and the exercise of any power under s106, involves a consideration of the evidence and in the latter case the exercise of various discretionary considerations. 4 In my view these circumstance make it necessary for the Court to be cautious when applications such as this are brought, so as to ensure that the case is not brought to an end prematurely. Generally, as the authorities indicate, the better course is to hear all the evidence before making any decision on its effect. I have concluded, on balance, that this case does fall into that category. 5 The further hearing of the case will plainly involve additional costs especially when it is considered that in a case fixed for five days hearing the applicants did not close their case until about noon on the fourth day. Also to be considered is the development in the applicants' submissions which would appear to involve a departure from the way in which the case had been opened and the evidence led. This, it was bluntly explained, was designed to meet the submissions foreshadowed by the opponents in relation to the operation of s109A of the Act. Plainly, as Hungerford J observed in Garde v WorkCover Authority of New South Wales [1992] NSWIRC 21 (10 July 1992) at p3: '… if truly a case should be dismissed then costs and expenses should be minimised.' and, at p2: '… an applicant should not be seen to be necessarily able to improve or make out his case by relying upon any evidence which the respondent might have available in its case.' Nevertheless, despite the various bases upon which the respondents submitted that the applicants' case was essentially hopeless, given the state of the evidence and the legislative impediment standing in the way of the applicants success, I am of the view there is sufficient doubt as to these matters, at this stage, to decline the respondents application to be relieved from the operation of the general rule. 6 In the exercise of my discretion, in all of these circumstances I have concluded that the opponent may not be relieved of the obligation to make an election as to evidence, if the no case submission is pressed. ------------------------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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