Kirkpatrick v Kotis [2004] NSWSC 1234

New South Wales Supreme Court

CITATION : Kirkpatrick v Kotis [2004] NSWSC 1234 HEARING DATE(S) : 18/11/04 - 22/11/04 JUDGMENT DATE : 19 November 2004 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : Compliance with Part 34, rule 8(4) dispensed with. Defendant permitted to call evidence.

CATCHWORDS : PROCEDURE - contempt, attachment and sequestration - submission of no case to answer - case to answer found to exist - whether defendant precluded from calling evidence - whether Part 34, rule 8(4) Supreme Court Rules to be applied - whether Part 34, rule 8(4) to be dispensed with LEGISLATION CITED : Supreme Court Rules Builders Licensing Board v Mahoney (1986) 5 NSWLR 96 CASES CITED : Rich v Australian Securities and Investments Commission (2004) 78 ALJR 1354 Whitham v Holloway (1995) 183 CLR 525 PARTIES : Benjamin David Kirkpatrick - Plaintiff Michael Kotis - Defendant FILE NUMBER(S) : SC 4369/04 COUNSEL : CJ Bevan - Plaintiff TS Hale SC; S Docker - Defendant SOLICITORS : John Carmody & Co - Plaintiff Bartier Perry - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

CAMPBELL J

FRIDAY 19 NOVEMBER 2004

4369/04 BENJAMIN DAVID KIRKPATRICK v MICHAEL KOTIS JUDGMENT – Ex Tempore (On submission that defendant ought not be permitted to call evidence, following an application of no case to answer) 1 JUDGMENT: Mr Bevan submits that an application of no case to answer having been made, the defendant ought not be permitted to call any evidence. He submits that these proceedings are proceedings which are being brought in accordance with the Supreme Court Rules. He points to the provisions of Part 34, rule 8, which, so far as relevant, provides: "(1) This rule applies to a trial. (2) An opposite party may, after the conclusion of the evidence in the beginning party's case in chief or after the conclusion of the evidence given for all parties, move the Court for judgment for that opposite party in the proceedings generally or on any claim for relief in the proceedings on the ground that, on the evidence given, judgment for the beginning party could not be supported. … (4) Where an opposite party moves the Court under subrule (2), he may not adduce evidence or further evidence in the proceedings generally or on the claim for relief in question, as the case may be." 2 He submits that this is a situation to which Part 34, rule 8(4) in terms applies. He directs my attention to the decision of the Court of Appeal in Builders Licensing Board v Mahoney (1986) 5 NSWLR 96, where Priestley JA, with whom President Kirby and Hope JA agreed, said that the District Court Rule, in similar terms, meant what it said. His Honour, at 100, said that because the District Court Rule meant what it said, it was not open for counsel for a defendant to keep open the possibility that if the motion for judgment did not succeed, evidence for the defendant could still be called. 3 I accept all that. The case that is before me is, nonetheless, a case which is essentially criminal in nature, even though not equated in all respects with a criminal trial. See Whitham v Holloway (1995) 183 CLR 525. Though I was referred to the decision of the High Court in Rich v Australian Securities and Investments Commission (2004) 78 ALJR 1354, I do not find that that case decided anything beyond that discovery was inappropriate in proceedings for a civil penalty. The powers under the Rules are to be exercised in a way which aims at a just, quick and cheap resolution of the proceedings. I was not asked, before the no case submission was made, to require the defendant to elect whether to go into evidence or not. It does not strike me as just that a defendant, faced with the prospect of a criminal penalty, should lose the opportunity to call evidence through this sort of technicality. This is a situation where I propose to exercise the power under Part 1, rule 12, and to dispense with compliance with Part 34, rule 8(4). I so dispense. **********