Industrial Relations Commission of New South Wales in Court Session CITATION: Leckie v Crockett and Others [2007] NSWIRComm 11 APPLICANT: Stuart Leckie FIRST RESPONDENT: Owen Crockett PARTIES: SECOND RESPONDENT: Judy Crockett THIRD RESPONDENT: Peter Crockett FILE NUMBER(S): IRC 1188 of 2006 CORAM: Schmidt J CATCHWORDS: Practice and Procedure - unfair contract - no case to answer submission - respondents seek not be required to elect to call evidence - application declined CASES CITED: Davis v Amalgamated Television Services Pty Limited (1998) 81 IR 364 HEARING DATES: 31/01/07 EXTEMPORE JUDGMENT DATE: 31 January 2007 APPLICANT: Mr I Latham of counsel SOLICITORS: Harris & Company LEGAL REPRESENTATIVES: RESPONDENTS: Mr A Moses of counsel SOLICITORS: Garden & Montgomerie JUDGMENT: - 4 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Schmidt J 31 January 2007 Matter No IRC 1188 of 2005 STUART LECKIE v OWEN CROCKETT AND OTHERS Application under s.106 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT (EXTEMPORE) [2007] NSWIRComm 11 1 The respondents have sought to advance a 'no case' submission, at the close of the applicant's case, without being called upon to make an election as to the calling of evidence in their own case. That application is opposed by the applicant. 2 The law applying to such applications was discussed by a Full Bench in Davis v Amalgamated Television Services Pty Limited (1998) 81 IR 364 at 399. While the Court has a discretion to grant such an application, it is one available only to be exercised 'in exceptional circumstances' (at 397). In the ordinary case, the determination of such an application must await the hearing of all of the evidence (at 399). 3 I am not satisfied that the circumstances in this case may properly be described as exceptional or taking the case out of the ordinary. 4 While the respondents are critical of the particulars provided in the applicant's summons, I am satisfied that it is clear that the applicant complains that he was a party to an arrangement in which, as members of a family, he and the respondents worked together in a farming operation, which the respondents brought to an end, without notice, in 2004. The applicant's case is that the arrangement was unfair in a number of ways; and orders of variation and consequential money orders of various kinds are pressed. 5 The application which the respondents wish to press is that that there be judgment for the third respondent, Peter Crockett, generally and for the first and second respondents, Owen and Judy Crockett, in respect of the money orders sought in parts D3 and D4 of the applicant's summons and various of the orders of variation of the arrangement in question, sought in part A3. The claims sought to be dismissed include claims in relation to compensation for the value of stock and equipment and compensation for distress. 6 It follows that the hearing as to the balance of the applicant's claim would have to continue, so far as the first and second respondents are concerned, even if the no case application succeeds entirely. 7 The applicant's claim that the arrangement was unfair in not providing for notice of termination, it being his case that the arrangement was brought to an end without notice by the respondents, must be determined, at least in so far as the first and second respondents are concerned. 8 I am unable to conclude, at this stage of the proceedings, that the various claims and the evidence led by the applicant to support them, are so distinct from each other, that the case may justly be dissected in the way advanced for the respondents, so as to relieve them from the obligation to make an election. 9 To give but one obvious example, in relation to the notice aspect of the claim, it is the applicant's case that Mr Peter Crockett, the third respondent was one of the parties to the arrangement between the applicant and the other two respondents when it came to an end in 2004. It is claimed that the arrangement was brought to an end by the respondents without notice; that the arrangement should be varied to require the giving of fifteen months' notice and that Mr Peter Crockett should be made responsible, with the other respondents, for the payment of any money orders flowing from an order of variation requiring the giving of such notice. 10 The respondents wish to submit that there was no evidence of any such arrangement existing between the applicant and Mr Peter Crockett, its termination, or that he derived any benefit as a result, but without being required to elect not to call any evidence. Having in mind the evidence as it stands, which includes various concessions made by the respondents, which appear in Exhibit 2, I am not able to be satisfied that justice would in this case be best served by not requiring the election to be made. I find nothing extraordinary about this aspect of the case, which would warrant the exercise of the discretion. 11 I have reached similar conclusions in relation to the position of the other respondents. Whatever be the outcome of their no case application, the balance of the applicant's claim would have to be heard. The respondents wish to submit that some aspects of the applicant's claim are 'simply hopeless', given the evidence called in his case. The applicant seeks to demonstrate that there is no foundation for such a submission, given that evidence. 12 I am unable to conclude at the stage that the proceedings have reached, that the applicant's notice and other claims are so distinct from each other, that the dissection necessarily implicit in the respondents' approach, may be properly accepted. I am also satisfied that there is nothing exceptional about the circumstances with which the Court is here confronted and that justice also requires the making of the usual election by the first and second respondents. Orders 13 For those reasons, I decline to exercise the Court's discretion to relieve the respondents of the obligation to make an election about the calling of evidence. ------------------------ 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.