case_text: detailed consideration of the law in relation to bail under the Act is found in United Mexican States v Cabal (2001) 209 CLR 165. Although directly referrable to the bail provisions under s 21(6)(f)(iv) of the Act it is, nonetheless, apt to a consideration of a bail application under s 15(6) of the Act and the rationale for the "special circumstances" requirement, which was described in these terms: [60] Because the typical extraditee is a person who has fled from another country after committing a serious crime, granting bail to that person provides a further opportunity for him or her to flee from the reach of the extraditing country. The ever present risk of flight in extradition situations was the rationale for the "special circumstances" requirement of s 15(6) of the Act [107]. The Explanatory Memorandum stated [108]: "Sub-clause (6) provides that a person shall not be granted bail unless there are special circumstances. Such a provision is considered necessary because experience has shown that there is a very high risk of persons sought for extraditable offences absconding. In many cases the person is in Australia to avoid arrest in the country where he is alleged to have committed the offence, ie the person left the jurisdiction to avoid justice." The circumstances relied upon by the second respondent in granting bail is more referrable to a bail application in the criminal jurisdiction generally. However, the position in extradition cases is different as appears from Cabal at [45] and [72]: [45] However, it does not follow that the principles that apply in criminal cases are fully applicable to extradition cases. First, Australia's international relations and standing are involved in extradition cases. They are seldom involved in domestic criminal cases. Secondly, the Court must take account of the purpose and policy of the Act. It would be a serious error to take the view that the enactment of the Act has no bearing on the application of the Court's incidental power to make an order granting bail to a person held under a s 19(9)(a) warrant [55]. That enactment cannot alter the power implicit in s 73 of the Constitution . But it can affect its application to the circumstances of the particular case. That is because the provisions of the Act illuminate the object of the proceedings that give rise to the application or appeal to this Court. [72] In our opinion, it is an error in a bail application in an extradition matter to take into account that there is "a predisposition against unnecessary or arbitrary detention in custody". The Parliament has made it plain that bail is not to be granted unless special circumstances are proved. However unpalatable such a conclusion may be to the mind of the common lawyer, the Parliament believed that the fulfilment of Australia's treaty obligations makes the principles governing bail in domestic cases inapplicable in extradition cases. In extradition cases, the general rule is that defendants are to be held in custody whether or not their detention is necessary. Only when there is something special about a defendant's circumstances can the question of bail be considered. For that reason, it is erroneous to take into account "those circumstances which ordinarily would fall for consideration on an application for bail where a person is charged domestically for the commission of a crime". Those circumstances may be taken into account in considering the exercise of discretion after special circumstances have been established. But they can play no part in determining whether the applicant has established special circumstances. In Cabal the grounds for granting bail were explained: [61] Given this background and the rationale for the "special circumstances" condition, bail in extradition cases should be granted only when two conditions are fulfilled. First, the circumstances of the individual case are special in the sense that they are different from the circumstances that persons facing extradition would ordinarily endure when regard is had to the nature and extent of the extradition charges. This means that the circumstances relied on must be different in kind from the disadvantages that all extradition defendants have to endure. To constitute "special circumstances", the matters relied on "need to be extraordinary and not factors applicable to all defendants facing extradition" [109]. Secondly, there must be no real risk of flight. Absence of a real risk of flight is ordinarily a necessary but not a sufficient condition of bail. When there is a real risk of flight, ordinarily bail should be refused . Further, the risk of flight should be considered independently of the effect of the proposed bail conditions. In this area of law, the history and character of the defendant and the potential punishment facing the defendant are likely to be surer guides to the risk of flight than bail conditions -- even rigorous conditions. A person, fearing punishment and inclined to flee, is unlikely to be diverted from that course by the prospect that his or her sureties may forfeit their securities or by stringent reporting conditions. Even if the defendant has to report twice daily to the police, he or she will have a period of twelve to fourteen hours in which to leave Australia. (Emphasis added) As to the issue of confusion surrounding the charges, the materials provided by the Applicant in support of the extradition request clearly set out the history of the matter and the reason for the present charges differing from those originally preferred against the first respondent. The applicant provided information that the investigation into the first respondent's alleged criminality commenced in 1998 resulting in him being originally charged in December 2001. Subsequent to this, the authorities learned of a second investigation into the first respondent's alleged criminal activity which resulted in the merger of those investigations in March 2002. Following the merger, the first respondent's alleged criminality was reconsidered and a provisional arrest warrant was obtained in August 2002 after the allegations against the first respondent had been supplemented in July 2002. In December 2006 further amendment of the case resulted in one charge being discontinued due to a limitation period which applied resulting in the remaining two counts the subject of this extradition request giving rise to a further provisional arrest warrant in January 2007. As a consequence of this decision, the provisional arrest warrant issued in August 2002 was revoked. There is nothing which emerges from these circumstances, in my view, which qualifies as a special circumstance for bail reasons. I do not consider that delay by Poland in making the request for the first respondent's extradition is a special circumstance warranting the grant of bail. It would be different perhaps in the case of unacceptable delays in the extradition process itself: Cabal at [66]. The fact that the first respondent has no current Polish or Australian passport is not, inevitably, a barrier to flight. The case of Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 demonstrates this point. Schoenmakers had, as a condition of his bail, been required to surrender his passport to the Australian Federal Police. Nonetheless he managed to flee from Australia to Thailand upon his release on bail from extradition detention: Cabal at [67]. The second respondent, in my opinion, erred in his findings regarding the existence of special circumstances on the basis that the matters noted at [13] above were more properly characterised as ones that might ordinarily fall for consideration on an application for bail by a person charged with a domestic offence. The second respondent erred as a matter of law in so finding. Flight Risk In the materials provided by the applicant in support of its request for extradition it is noted that the first respondent left Poland in 1993 shortly after his alleged criminal activity, indicating that the first respondent was leaving Poland with the intent of absconding from criminal justice. There was no material before the second respondent to contradict this assertion. It is evidence of the first respondent's preparedness to take flight from Poland to this country in order to evade alleged criminal conduct. In Cabal it was said at [70] and [74]: [70] The purpose of the extradition proceedings is set at risk if an applicant is entitled to bail upon proof of special circumstances and a probability that the applicant will not abscond. If there is a real risk that the applicant will abscond, the objects of the Act and the rationale of ss 15 and 21 require the refusal of bail in all but exceptional cases. Unless the special circumstances are so cogent and the risk so very low that the proper exercise of discretion requires the grant of bail, any real risk of flight should be decisive against the grant of bail. (Emphasis added) [74] It is no doubt true that the test is not whether the proven special circumstances are such that it is not probable that the applicant will abscond. But it is not a question of whether the personal and other public interests outweigh the objects and rationale of the Act. Once special circumstances are proved, the Court must consider all the circumstances of the case, the chief of which is the risk of flight. If a real risk of flight exists, the proper exercise of the discretion will ordinarily require the refusal of bail. That the first respondent departed Poland in the circumstances asserted is not a necessary factor to a finding that he is a risk of flight. As was said in Cabal at [65] it is a mistake to think that a person is unlikely to abscond simply because that person did not leave the extraditing country "to avoid justice". In any event, in my opinion, risk of flight ought not to be confined to flight from Australia. It is capable of including flight within Australia. In my opinion, the second respondent failed to take into account a material matter namely, evidence that the first respondent posed a real risk of flight. This was an error of law. Conclusion In my opinion, reviewable error has been demonstrated both in respect to the question of the existence of special circumstances under s 15(6) of the Act as well as the question whether there is a real risk of flight in relation to the first respondent.


case_outcome: followed

case_title: Harrington v Rich [2008] FCAFC 61

case_text: No question arises in the present Application as to whether it was filed within time; the question is whether leave should be granted or refused. Considerations relevant to the exercise of that discretion are: (i) whether in all the circumstances, the judgment of the primary judge is attended by sufficient doubt as to warrant it being reconsidered by the Full Court; and (ii) whether substantial injustice would result if leave were refused, supposing the decision were wrong. See: Harrington v Rich [2008] FCAFC 61 at [25] per Sackville, Emmett and Jacobson JJ. 10 In the present proceedings it is considered that leave to appeal should be refused. The judgment of the Federal Magistrates Court is not attendant with sufficient doubt to warrant it being reconsidered. Relevant to that conclusion is a review of the reasons for decision of both the Refugee Review Tribunal and the Federal Magistrates Court. 11 The reasons for decision of the Tribunal recount the claims being made, the findings of fact which were made and the reasons for decision. Those findings include findings made adversely to the now Applicant -- but findings which were open to the Tribunal. It thus concluded, for example: As is set out herein, the Tribunal is satisfied the applicant has sought to at least embellish if not entirely fabricate material parts of his case. Therefore, even though the Tribunal accepts the above claim (to have been abducted) is possible, the Tribunal does not intend to give the applicant the benefit of the doubt and thus does not accept this claim. ... ... the Tribunal is not satisfied the applicant is being pursued by the Indian authorities; for the reasons he claimed or at all. The Tribunal therefore does not accept the applicant had to hide in Bangalow. ... ... ... the Tribunal is satisfied the applicant could safely relocate in India and by doing avoid a well founded fear of persecution for a Convention reason.


case_text: The Application sought an order dispensing with compliance with Order 52, r 5(2) of the Federal Court Rules . However, in SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543 at [9] Lindgren J correctly concluded that " there is no rule providing for a time limit for the seeking of leave to appeal from an interlocutory judgment of the FMCA ". His Honour further concluded that " there is an implied time limit of 21 days after the date of the interlocutory judgment ".


case_outcome: cited

case_text: The Federal Magistrates Court dismissed an application to review the decision of the Tribunal on 20 February 2008: SZLQZ v Minister for Immigration & Citizenship [2008] FMCA 194. The Federal Magistrate dismissed the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). 5 Rule 44 of the 2001 Rules provides as follows: Show cause hearing (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed -- dismiss the application; or (b) if it is satisfied that the application has raised an arguable case for the relief claimed -- adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application. (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory. As rule 44.12(2) expressly provides, the dismissal of an application under rule 44.12(1)(a) is an interlocutory decision. 6 An appeal to this Court from an interlocutory decision of the Federal Magistrates Court requires leave: Federal Court of Australia Act 1976 (Cth), s 24(1A). The Applicant appeared before this Court this afternoon unrepresented, although he did have the assistance of an interpreter.


case_outcome: referred to

case_text: fact that symptoms abate on each occasion that the worker ceases work does not preclude compensation where enhanced susceptibility to the onset of symptoms has been caused by the work. In those circumstances, the enhanced susceptibility constitutes an aggravation of the disease ( Asioty v Canberra Abattoir Proprietary Limited [1989] HCA 40 ; (1989) 167 CLR 533 at 540). Neither the absence of change in the underlying condition nor the temporary nature of the symptoms experienced preclude the existence of an aggravation of an ailment for the purposes of the SRC Act ( Federal Broom; Asioty; Beattie ). In Asioty, there had been an increased susceptibility to dermatitis caused by the employment of the worker in an abattoir. That constituted the aggravation or exacerbation of the disease. Here, the Tribunal did not find any increased susceptibility but rather that employment resulted in temporary pain from Mr Mellor's back without any permanent effect. At [259] the Tribunal stated that it accepted that increased symptoms in the form of pain constituted a temporary aggravation of the constitutional kyphoscoliosis of the thoracic spine. The Tribunal then turned to consider whether that temporary aggravation constituted an aggravation to a "material degree". It is at that stage of the reasoning that the Tribunal concluded that the thoracic pain did not fulfil the requirements of an injury under the SRC Act. In considering the lumbar spine, the Tribunal accepted that the pain constituted an aggravation of Mr Mellor's condition but found that it was a temporary aggravation that ceased when he stopped his work activities or shortly thereafter. The Tribunal found that this did not fulfil the requirement that Mr Mellor's employment contribute to his lower back conditions in a material degree.


case_text: is, the Tribunal concluded that the employment was the cause of the aggravation represented by the pain but that the effect of that aggravation was not material because it was temporary and not severe. Is the requirement of materiality directed to the cause of the aggravation or its effect? "Disease" means an ailment or aggravation of an ailment ' that was contributed to in a material degree by the employee's employment '. "Injury" means, relevantly, a disease or an aggravation of an injury other than a disease. In Sahu-Khan , Finn J traced the legislative history of and judicial consideration of the requirement of materiality, including the decision of the Full Court in Comcare v Canute [2005] FCAFC 262 ; (2005) 148 FCR 232. In Canute at [67], French and Stone JJ said that the term "material" ' imposes an evaluative threshold below which a causal connection may be disregarded '. Justice Finn in Sahu-Khan adopted that analysis at [13]. It is the nature of the contribution that is necessarily material ( Sahu-Khan at [15]). Australia Post submits that the requirement of materiality qualifies the word "ailment" in the expression ' the aggravation of any such ailment; being ... an aggravation [of any such ailment] that was contributed to in a material degree by the employee's employment '. I do not accept this to be the case. It is also inconsistent with the discussion of materiality in Canute and Sahu-Khan , although neither of those cases directly considers the issue raised in the present case. Australia Post submits that Parliament would not have intended that the Commonwealth be liable for any aggravation of disease regardless of how insignificant that aggravation might be. However, s 4 does not give effect to such an intention.


case_outcome: considered

case_text: requirement of materiality is, by reason of the definition of "disease" in s 4, a requirement that the employee's employment contribute materially to the suffering of the ailment in question ( Comcare v Sahu-Khan [2007] FCA 15 ; (2007) 156 FCR 536 at [16] per Finn J) or to the aggravation of the ailment, that is, '[i] n a material degree; substantially, considerably ' (the Shorter Oxford English Dictionary cited by Finn J in Sahu-Khan at [15]). Mr Mellor submits that, in his case, the correct question is not whether the underlying pathology of a disease or frank injury had been materially contributed to but whether the aggravation of symptoms, being an injury, had been materially contributed to. The worsening of symptoms of an injury can, he submits, be sufficient to ground liability without any change in the underlying pathology. That is, the Tribunal concluded that the employment was the cause of the aggravation represented by the pain but that the effect of that aggravation was not material because it was temporary and not severe. Is the requirement of materiality directed to the cause of the aggravation or its effect? "Disease" means an ailment or aggravation of an ailment ' that was contributed to in a material degree by the employee's employment '. "Injury" means, relevantly, a disease or an aggravation of an injury other than a disease. In Sahu-Khan , Finn J traced the legislative history of and judicial consideration of the requirement of materiality, including the decision of the Full Court in Comcare v Canute [2005] FCAFC 262 ; (2005) 148 FCR 232. In Canute at [67], French and Stone JJ said that the term "material" ' imposes an evaluative threshold below which a causal connection may be disregarded '. Justice Finn in Sahu-Khan adopted that analysis at [13]. It is the nature of the contribution that is necessarily material ( Sahu-Khan at [15]). The Tribunal correctly summarised the principles in Sahu-Khan at [227]. It appreciated that there was a requirement of materiality for a causal connection to be found. However, at [286]-[287], in considering the lumbar spine, it said that because there was no lasting effect of the aggravation and no underlying change in the condition, the contribution by the employment to the lower back conditions was not material. With respect to the thoracic spine, the Tribunal stated at [260] that it did not accept that the temporary increase in Mr Mellor's symptoms represented an aggravation of his condition in a material degree. This was to confuse the requirement that the employment be a material cause of the aggravation with a requirement that the effect of the aggravation be material. The confusion on this point is also evident from [225] of the Tribunal's decision, where the following statement is made: Mr Mellor claims that his employment contributed to or aggravated all of these ailments, and that the contribution or aggravation was to a material degree so that these ailments constituted an injury within the meaning of the [SRC] Act, and therefore he is entitled to claim compensation pursuant to s 14 of the [SRC] Act. (emphasis added) The Tribunal may have been led to take this course because of the way in which the cased was argued by Mr Mellor. Australia Post submits that the requirement of materiality qualifies the word "ailment" in the expression ' the aggravation of any such ailment; being ... an aggravation [of any such ailment] that was contributed to in a material degree by the employee's employment '. I do not accept this to be the case. It is also inconsistent with the discussion of materiality in Canute and Sahu-Khan , although neither of those cases directly considers the issue raised in the present case. Australia Post submits that Parliament would not have intended that the Commonwealth be liable for any aggravation of disease regardless of how insignificant that aggravation might be. However, s 4 does not give effect to such an intention.


case_text: was pointed out by the Full Court in Commonwealth of Australia v Beattie (1981) 35 ALR 369 , the definitions in issue in Federal Broom were different from those in Beattie (as they are from the definitions in s 4 of the SRC Act). The Full Court said at 377-378 that, notwithstanding differences, Federal Broom establishes that there may be an exacerbation or aggravation, which relevantly mean the same thing, notwithstanding that there is no change in the underlying pathology. Whether there is such an exacerbation or aggravation is a question of fact in each case. For present purposes, the relevant part of the definition of "injury" is the reference to "disease", which, in turn, is defined as an ailment or an aggravation of an ailment to which the employee's employment contributes in a material degree. On the Tribunal's findings, Mr Mellor's employment did not affect the underlying pathology of his back conditions but, in causing pain, it rendered the back conditions temporarily symptomatic, or irritated them ( Macquarie Dictionary , definition of "aggravate"). Pain may constitute an aggravation of an ailment or injury ( Beattie ). The Tribunal's conclusions on aggravation and materiality In the case of each of Mr Mellor's thoracic kyphoscoliosis and lumbar spine, the Tribunal concluded that the requirement of materiality was not satisfied. This was because the Tribunal did not accept that a temporary increase in symptoms represented an aggravation of the thoracic spine condition in a material degree and found that the temporary aggravation of the lumbar spine condition meant that the contribution to the lower back condition was not sufficiently significant to meet the threshold of "in a material degree". Further, Australia Post points out that the Tribunal was referred to Tippett v Australian Postal Corporation (1998) 27 AAR 40 , which inaccurately summarised the joint judgment of Evatt and Sheppard JJ in Beattie as stating that an injury will be aggravated if the experience of the injury is increased or intensified. In fact, their Honours said that ' it is enough to say that pain brought on by work activity may constitute an aggravation ' (emphasis added). Australia Post submits that this may well have influenced the Tribunal to make findings that pain and discomfort in Mr Mellor's thoracic and lumbar regions constituted temporary aggravations, notwithstanding its reservations made apparent by the qualifications indicating that the Tribunal was not persuaded that the pain in each case actually amounted to aggravations of the underlying ailments. Australia Post submits that I should draw the conclusion that, had the Tribunal been aware of the correct statement in Beattie , it would have concluded that no aggravation had occurred and that Mr Mellor was not suffering from work-aggravated diseases in his thoracic and lumbar spines. It follows, in Australia Post's submission, that I should come to that conclusion and not remit the matter to the Tribunal. I see the force of the submission but I do not accept that the conclusions that the Tribunal would make in applying Beattie are so clear from its reasons. The Tribunal expressed its conclusions in terms of a requirement that the aggravation be material. The Tribunal did not correctly address the question whether or not the pain that Mr Mellor felt, being only temporary but experienced when he returned to work, constituted an aggravation of an ailment to which his employment contributed in a material degree and which, in turn, constituted a disease and thereby an injury for the purposes of the Act. It may be that the Tribunal will conclude that the symptoms suffered by Mr Mellor do not amount to an aggravation but that is not conclusive from the reasons. The matter should be remitted to the Tribunal to enable it to make findings in accordance with law.


case_text: Mellor relies for that principle on Federal Broom Company Pty Limited v Semlitch [1964] HCA 34 ; (1964) 110 CLR 626 , where the High Court held that there is a compensable exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensification of the symptoms. In that case, the plaintiff was already suffering from a disease but her employment resulted in a new manifestation of it. Justice McTiernan observed at 629 that, for the purposes of the Act then under consideration, the Workers' Compensation Act 1926-1960 (NSW), manifestations of a disease are relevant only so far as they cause incapacity and where the manifestations are causally related to employment. Justice Kitto, with whom Taylor and Owen JJ agreed, said at 632-633 that employment can be said to be a contributing factor to the aggravation of a disease where it provides an incident or state of affairs to which the worker is exposed in the performance of his (sic) duties and to which the worker would not otherwise have been exposed. There is no requirement that the underlying disease is made worse; it is sufficient if a new manifestation is suffered. Indeed, his Honour noted at 634, "exacerbation" applies to the effects of the disease rather than to the disease itself. Justice Windeyer said at 642 that it was not to the point that the plaintiff might have broken down because of her illness in any event; the precipitating event occurred at work. As was pointed out by the Full Court in Commonwealth of Australia v Beattie (1981) 35 ALR 369 , the definitions in issue in Federal Broom were different from those in Beattie (as they are from the definitions in s 4 of the SRC Act). The Full Court said at 377-378 that, notwithstanding differences, Federal Broom establishes that there may be an exacerbation or aggravation, which relevantly mean the same thing, notwithstanding that there is no change in the underlying pathology. Whether there is such an exacerbation or aggravation is a question of fact in each case.


case_text: Australia Post points out that the Tribunal was referred to Tippett v Australian Postal Corporation (1998) 27 AAR 40 , which inaccurately summarised the joint judgment of Evatt and Sheppard JJ in Beattie as stating that an injury will be aggravated if the experience of the injury is increased or intensified. In fact, their Honours said that ' it is enough to say that pain brought on by work activity may constitute an aggravation ' (emphasis added). Australia Post submits that this may well have influenced the Tribunal to make findings that pain and discomfort in Mr Mellor's thoracic and lumbar regions constituted temporary aggravations, notwithstanding its reservations made apparent by the qualifications indicating that the Tribunal was not persuaded that the pain in each case actually amounted to aggravations of the underlying ailments.


case_text: At the close of the applicant's case on the evening of 17 July 2008, the respondents stated that they wished to make a no-case submission in respect of parts of the applicant's claims against them. Whilst there has been judicial disagreement about the source of the Court's power to hear a no-case submission and the manner in which it should be dealt with, neither issue requires examination in this case. It is accepted that the Court has power to entertain such a submission: see Rasomen Pty Ltd v Shell Co of Australia Ltd (1997) 75 FCR 216 (" Rasomen ") at 223 per von Doussa, Drummond and Finn JJ referring to O 32, r 4(4) of the Federal Court Rules 1979 (Cth) ("the Rules") and s 79 of the Judiciary Act 1903 (Cth); and Compaq Computer Australia Pty Ltd v Merry [1998] FCA 968 ; (1998) 157 ALR 1 (" Compaq Computer ") at 6 per Finkelstein J, Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 (" Amcor ") at 356-60 per Sackville J and Australian Competition and Consumer Commission v Leahy [2004] FCA 1678 ; (2004) 141 FCR 183 (" Leahy ") at 210 per Merkel J referring to O 35, r 1 of the Rules. The approach is the same, whatever the source of the power: compare Compaq Computer at 6.


case_outcome: discussed

case_text: At the close of the applicant's case on the evening of 17 July 2008, the respondents stated that they wished to make a no-case submission in respect of parts of the applicant's claims against them. Whilst there has been judicial disagreement about the source of the Court's power to hear a no-case submission and the manner in which it should be dealt with, neither issue requires examination in this case. It is accepted that the Court has power to entertain such a submission: see Rasomen Pty Ltd v Shell Co of Australia Ltd (1997) 75 FCR 216 (" Rasomen ") at 223 per von Doussa, Drummond and Finn JJ referring to O 32, r 4(4) of the Federal Court Rules 1979 (Cth) ("the Rules") and s 79 of the Judiciary Act 1903 (Cth); and Compaq Computer Australia Pty Ltd v Merry [1998] FCA 968 ; (1998) 157 ALR 1 (" Compaq Computer ") at 6 per Finkelstein J, Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 (" Amcor ") at 356-60 per Sackville J and Australian Competition and Consumer Commission v Leahy [2004] FCA 1678 ; (2004) 141 FCR 183 (" Leahy ") at 210 per Merkel J referring to O 35, r 1 of the Rules. The approach is the same, whatever the source of the power: compare Compaq Computer at 6. 19 In the present case, for the reasons indicated at the hearing, I determined that I would not rule on whether the respondents should be required to make their election until after the parties had addressed argument on the no-case submission, and as to whether the respondents should be required to make an election. It seemed to me that it was appropriate to take this course in order to understand the nature of the argument the respondents sought to make in saying that they had no case to answer. This was the approach adopted by Fullagar J in Union Bank of Australia Ltd v Puddy [1949] VLR 242 (" Puddy "); by Finkelstein J in Compaq Computer ; by Branson J at first instance in Rasomen (see Rasomen Pty Ltd v Shell Co of Australia Ltd (1996) 71 FCR 540 at 543); by Sundberg J in Tru Floor Service Pty Ltd v Jenkins (No 2) (2006) 232 ALR 532 (" Tru Floor ") at 537; and approved by the Full Court of the Supreme Court of Victoria in Protean . 20 Having heard the parties' arguments, I would not put the respondents to their election in respect of that part of their no-case submission that concerned the scope of the definition of "building industrial action". Had the respondents been successful on this aspect of their no-case submission, they would have defeated the applicant's s 38 case against them, without needing to answer this part of the applicant's case further. The respondents' argument was to the effect that there was an evidentiary hiatus in the applicant's case because the applicant had not adduced any evidence that any "ban, limitation or restriction" had been imposed by employees in respect of the work to which the ban, limitation or restriction related. In order to succeed on this limb of their no-case submission, the respondents had to persuade the Court that their construction of the definition of "building industrial action" was the preferable one, and that the applicant had adduced no evidence on an important element of it. For the following reasons, the respondents have failed to persuade me that their construction of the definition should be adopted, but, equally, it seems to me just and convenient that I rule on this question now without putting them to their election. I have heard the argument. The consideration of this part of their no-case submission involved no consideration of disputed evidence, and, as stated above, if accepted, it would have completely answered the applicant's allegations that they had contravened s 38 of the BCII Act : compare Compaq Computer at 7; Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54 (" Residues Treatment ") at 68 per Perry J; and Puddy at 245. 22 In support of their submission that they should not have to make an election as a condition of my ruling, the respondents relied heavily on the fact that the alleged contraventions of the BCII Act attract civil penalties; and they submitted that it would be unjust to expose Mr Mates to cross-examination if a case had not been established against them. They referred to Tru Floor , Compaq Computer and Amcor . 23 In Tru Floor, Sundberg J determined that the defendants (who were directors of a building contractor company) should not be put to their election before his Honour ruled on their no-case submission against the plaintiffs (who were building subcontractors). The plaintiffs alleged that the defendants had contravened the Corporations Law or the Corporations Act 2001 (Cth), by trading while insolvent. A contravention such as this attracted a civil penalty. His Honour noted (at 540-1) considerations in favour of this course included the fact that "part of what is alleged against the defendants is an offence involving dishonesty", his impression that the plaintiffs' case on insolvency was not strong, and that there were likely significant savings involved in entertaining the no-case submission. His Honour said (at 541) that "it would be wrong for the defendants to be subjected to cross-examination on the dishonesty component of the offence before it is seen that there is some evidence of the insolvency component". As Sundberg J noted, similar factors affected Finkelstein J's decision in Compaq Computer not to require the respondents to elect, including the nature of the allegations made against them, which were allegations of dishonesty, as well as his impression about the weakness of the case, and that well over a week's hearing time remained to complete the trial: see Compaq Computer at 9. In Compaq Computer Finkelstein J commented, at 7, that: Another instance where a departure from the rule would be justified is in a case where fraud is alleged. It was accepted by the Full Court in Protean that in such a case normally it would be wrong to require a party to subject himself to cross-examination if there really was no evidence of fraud against him: see [1985] VR at 236 where Puddy's case is cited as authority. And there will be other circumstances where the justice of the case will permit the court to determine a case at an early stage ... His Honour held (at 9) that "[t]he respondents should not be required to call evidence or submit themselves to cross-examination if a sufficient case of wrongdoing has not been established against them". 29 There is, of course, good reason for the general rule that a decision will not be given on a no-case submission unless the submitting party elects to call no evidence. If a judgment in favour of a no-case submission is overturned on appeal, it would generally be necessary to order a new trial: see Compaq Computer at 7 and Amcor at 357. The trial in the present case has proceeded over 4 days. There has been significant cross-examination of the witnesses called by the applicant. Whilst the respondents have filed witness statements from five persons, at the commencement of the trial, they stated that they would not be relying on two of these statements. They have not indicated whether or not Mr Mates will give evidence and, if he does, in what circumstances he would do so: compare Evidence Act 1995 (Cth), s 128. The trial is unlikely to take any more than 2 days to complete.


case_text: At the close of the applicant's case on the evening of 17 July 2008, the respondents stated that they wished to make a no-case submission in respect of parts of the applicant's claims against them. Whilst there has been judicial disagreement about the source of the Court's power to hear a no-case submission and the manner in which it should be dealt with, neither issue requires examination in this case. It is accepted that the Court has power to entertain such a submission: see Rasomen Pty Ltd v Shell Co of Australia Ltd (1997) 75 FCR 216 (" Rasomen ") at 223 per von Doussa, Drummond and Finn JJ referring to O 32, r 4(4) of the Federal Court Rules 1979 (Cth) ("the Rules") and s 79 of the Judiciary Act 1903 (Cth); and Compaq Computer Australia Pty Ltd v Merry [1998] FCA 968 ; (1998) 157 ALR 1 (" Compaq Computer ") at 6 per Finkelstein J, Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 (" Amcor ") at 356-60 per Sackville J and Australian Competition and Consumer Commission v Leahy [2004] FCA 1678 ; (2004) 141 FCR 183 (" Leahy ") at 210 per Merkel J referring to O 35, r 1 of the Rules. The approach is the same, whatever the source of the power: compare Compaq Computer at 6. 22 In support of their submission that they should not have to make an election as a condition of my ruling, the respondents relied heavily on the fact that the alleged contraventions of the BCII Act attract civil penalties; and they submitted that it would be unjust to expose Mr Mates to cross-examination if a case had not been established against them. They referred to Tru Floor , Compaq Computer and Amcor . 24 In Amcor , the applicant alleged that the respondents had contravened s 45(2)(a)(i) of the Trade Practices Act 1974 (Cth), a provision which attracted substantial penalties. The applicant's evidence in chief concluded on the first day of the trial, when counsel for the respondents submitted that they should be permitted to make a no-case submission without being put to their election. Sackville J held that the circumstances justified a departure from the general rule that a decision will not be given on a no-case submission unless the submitting party elects to call no evidence. His Honour accepted that the case fell within the third category mentioned by Perry J in Residues Treatment at 68 (on 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 cause of action pleaded) and that, in such a case, "there must be unusual circumstances to warrant the respondents being permitted to make their no case submission without being required not to adduce any evidence": see Amcor at 358. Sackville J held, however, that the circumstances were sufficiently unusual and that it was in the interests of justice for the respondents to be permitted to make their no-case submission without making an election. His Honour said (at 358): First and most important, I took the view that this is a case in which serious allegations of contraventions of the TP Act had been made against each of the respondents. If the allegations were to be established, the corporate respondents would be exposed to pecuniary penalties of up to $10,000,000 and the individual respondents to pecuniary penalties of up to $500,000. Adverse findings might well have serious consequences in terms of loss of business reputation. The authorities recognise that a departure from the general rule is often justified where fraud is alleged against the moving party. In Union Bank of Australia v Puddy [1949] VLR 242 , Fullagar J said (at 246) that where fraud is alleged: it may often be wrong to suggest that a party should submit himself to cross-examination before it is seen that there is really some evidence against him. See also Protean at 215 per Young CJ; at 236 per Fullagar J; [Compaq Computer] at 7. The present case is not one in which fraud has been alleged, but in my opinion it is analogous to a fraud case by reason of the very serious allegations that have been made against each of the respondents: see [Trade Practices Commission v George Weston Foods Ltd (1980) 43 FLR 55] at 61; Trade Practices Commission v Nicholas Enterprises Pty Ltd [1978] ATPR 40-097 (Fisher J), at 17,958. The analogy is in my view strengthened by the fact that the definition of 'exclusionary provision' in s 4D of the TP Act incorporates the concept of 'purpose' in a subjective sense: ASX Operations Pty Ltd v Pont Data Australia Pty (No 1) (1990) 27 FCR 460 at 474-7 ... The respondents in this case relied on these passages. 25 There were other factors that also affected Sackville J's assessment, including the fact that the no-case submission did not require an assessment of the credit of any witness, since the facts of the case were largely not in dispute. His Honour observed that he would not have entertained the no-case submission unless the respondents had made their election if it had required him to make an assessment of credit. Additionally, all respondents in Amcor desired to make the submission; there were possible savings in court time and costs; and the applicant had been on notice prior to trial that the respondents proposed to make a no-case submission. His Honour also noted that he formed the impression that the no-case submission was strongly arguable. 27 I doubt, however, that these considerations provide an answer in this case. First, whilst I appreciate the force of the respondents' no-case submission, I doubt that the respondents' no-case submission in this case is as strong as that considered by Sundberg J in Tru Floor or Sackville J in Amcor . To my mind, the position now reached in this case is more akin to that described by Davies J in Trade Practices Commission v George Weston Foods Ltd (No 2) (1980) 43 FLR 55 (" George Weston ") at 60-2. 28 Secondly, the respondents' no-case submission is a limited one. They advanced this submission only in respect of the events of 21 and 22 February 2006 and following (which are said to give rise to the breaches of ss 38 and 43 of the BCII Act referred to above). Whatever the outcome of this submission, the events of 15 and 17 February 2006 (which are said to give rise to breaches of s 43) would go forward to the end of the trial and the evidence as to them would fall for consideration. It must be borne in mind that Mr Mates is as much a central actor in the events of 15 and 17 February as 21 February and, on the applicant's case, 22 February 2006 and following. Furthermore, the applicant's case against the respondents does not readily permit the dissection the respondents seek. The applicant's case depends, at least in part, upon a consideration of the whole factual matrix, commencing with the alleged conversations on 15 February and, subsequently, 17 February 2006 and culminating with the picket on 22 February 2006 and following. On the applicant's case, Mr Mates' stopping of the crane on 21 February 2006 (which the respondents concede) was within the relevant time-frame. On the applicant's case, this event on 21 February 2006 not only amounts to breach of ss 38 and 43 , but also formed part of the factual matrix upon which other parts of his case against the respondents must be assessed. The temporal link is, on the applicant's case, "extremely important". The applicant's counsel submitted that, whether or not the respondents were put to their election, the evidence regarding the picket and stopping of the crane would remain relevant to the case against the respondents on the other alleged contraventions that were not covered by the no-case submission. Hence, even if the no-case submission were successful, the Court would be obliged to reconsider the evidence that it had already considered as part of the no-case submission, although from another perspective. The applicant also foreshadowed that there might be related difficulties for the conduct of the trial, especially if the Court were to accept part (e.g., regarding the picket), but not all (e.g, regarding the crane stoppage) of the respondents' no-case submission. I agree that there is a risk of embarrassment arising from dealing now with part only of the applicant's case against the respondents, especially having regard to the way the applicant would put its case: compare Residues Treatment at 71-3, Popovic v Tanasijevic (No 4) [1999] SASC 351 (" Popovic ") at [124] per Olsson J and Leahy at 210-12. Of course, in the absence of an election, if the no-case submission were to fail, then the Court would be required to reconsider the evidence considered on the no-case submission in any event. As Sackville J noted in Amcor at 357, this problem may be particularly acute if a no-case submission requires some evaluation of the credit of witnesses. Whilst I accept that, strictly speaking, the respondents' no-case submission may not involve an evaluation of credit, their submission at this point calls for assessments of evidentiary reliability that in some instances give rise to similar concerns: compare Residues Treatment at 69 and George Weston at 58-9. 29 There is, of course, good reason for the general rule that a decision will not be given on a no-case submission unless the submitting party elects to call no evidence. If a judgment in favour of a no-case submission is overturned on appeal, it would generally be necessary to order a new trial: see Compaq Computer at 7 and Amcor at 357. The trial in the present case has proceeded over 4 days. There has been significant cross-examination of the witnesses called by the applicant. Whilst the respondents have filed witness statements from five persons, at the commencement of the trial, they stated that they would not be relying on two of these statements. They have not indicated whether or not Mr Mates will give evidence and, if he does, in what circumstances he would do so: compare Evidence Act 1995 (Cth), s 128. The trial is unlikely to take any more than 2 days to complete.


case_text: At the close of the applicant's case on the evening of 17 July 2008, the respondents stated that they wished to make a no-case submission in respect of parts of the applicant's claims against them. Whilst there has been judicial disagreement about the source of the Court's power to hear a no-case submission and the manner in which it should be dealt with, neither issue requires examination in this case. It is accepted that the Court has power to entertain such a submission: see Rasomen Pty Ltd v Shell Co of Australia Ltd (1997) 75 FCR 216 (" Rasomen ") at 223 per von Doussa, Drummond and Finn JJ referring to O 32, r 4(4) of the Federal Court Rules 1979 (Cth) ("the Rules") and s 79 of the Judiciary Act 1903 (Cth); and Compaq Computer Australia Pty Ltd v Merry [1998] FCA 968 ; (1998) 157 ALR 1 (" Compaq Computer ") at 6 per Finkelstein J, Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 (" Amcor ") at 356-60 per Sackville J and Australian Competition and Consumer Commission v Leahy [2004] FCA 1678 ; (2004) 141 FCR 183 (" Leahy ") at 210 per Merkel J referring to O 35, r 1 of the Rules. The approach is the same, whatever the source of the power: compare Compaq Computer at 6. 28 Secondly, the respondents' no-case submission is a limited one. They advanced this submission only in respect of the events of 21 and 22 February 2006 and following (which are said to give rise to the breaches of ss 38 and 43 of the BCII Act referred to above). Whatever the outcome of this submission, the events of 15 and 17 February 2006 (which are said to give rise to breaches of s 43) would go forward to the end of the trial and the evidence as to them would fall for consideration. It must be borne in mind that Mr Mates is as much a central actor in the events of 15 and 17 February as 21 February and, on the applicant's case, 22 February 2006 and following. Furthermore, the applicant's case against the respondents does not readily permit the dissection the respondents seek. The applicant's case depends, at least in part, upon a consideration of the whole factual matrix, commencing with the alleged conversations on 15 February and, subsequently, 17 February 2006 and culminating with the picket on 22 February 2006 and following. On the applicant's case, Mr Mates' stopping of the crane on 21 February 2006 (which the respondents concede) was within the relevant time-frame. On the applicant's case, this event on 21 February 2006 not only amounts to breach of ss 38 and 43 , but also formed part of the factual matrix upon which other parts of his case against the respondents must be assessed. The temporal link is, on the applicant's case, "extremely important". The applicant's counsel submitted that, whether or not the respondents were put to their election, the evidence regarding the picket and stopping of the crane would remain relevant to the case against the respondents on the other alleged contraventions that were not covered by the no-case submission. Hence, even if the no-case submission were successful, the Court would be obliged to reconsider the evidence that it had already considered as part of the no-case submission, although from another perspective. The applicant also foreshadowed that there might be related difficulties for the conduct of the trial, especially if the Court were to accept part (e.g., regarding the picket), but not all (e.g, regarding the crane stoppage) of the respondents' no-case submission. I agree that there is a risk of embarrassment arising from dealing now with part only of the applicant's case against the respondents, especially having regard to the way the applicant would put its case: compare Residues Treatment at 71-3, Popovic v Tanasijevic (No 4) [1999] SASC 351 (" Popovic ") at [124] per Olsson J and Leahy at 210-12. Of course, in the absence of an election, if the no-case submission were to fail, then the Court would be required to reconsider the evidence considered on the no-case submission in any event. As Sackville J noted in Amcor at 357, this problem may be particularly acute if a no-case submission requires some evaluation of the credit of witnesses. Whilst I accept that, strictly speaking, the respondents' no-case submission may not involve an evaluation of credit, their submission at this point calls for assessments of evidentiary reliability that in some instances give rise to similar concerns: compare Residues Treatment at 69 and George Weston at 58-9.


case_text: There were essentially two limbs to the respondents' no-case argument. In the first place, they argued that, even if proven, the conduct alleged in paras 13 and 14 of the applicant's statement of claim could not amount to "building industrial action", as defined in paras (b) and (c) of the definition in s 36(1) of the BCII Act . The respondents argued that this was because, in order to constitute "building industrial action" within these paragraphs, the action must be that of employees in respect of their work. The respondents contended that this was the effect of the Full Court judgments in Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 ; (1999) 165 ALR 550 (" Davids ") and Construction, Forestry Mining and Energy Union v Giudice (1998) 159 ALR 1 (" Giudice "). Hence, the respondents argued that, even if the Court found that Mr Mates had caused the crane from Independent Cranes to shut down and leave the site on 21 February 2006, this conduct alone could not constitute "building industrial action" as defined in s 36(1) of the BCII Act . In support of this argument, the respondents pointed out that there was no imposition of bans or limitations in relation to the performance of their work by the employees of either Hardcorp or Independent Cranes. At most, on the applicant's case, Mr Mates had caused Independent Cranes to terminate its provision of services to Hardcorp. 37 As already indicated, the respondents' argument depended largely on the judgments of Full Courts of this Court in Davids and Giudice . Giudice involved an application by three unions for prerogative writs directed to a Full Bench of the Australian Industrial Relations Commission ("the Commission"), following the quashing of orders under s 170MW(1) of the WR Act . Subsection 170MW(1) gave the Commission power to suspend or terminate a bargaining period if satisfied that certain circumstances existed. Subsection 170MW(3) provided that a circumstance for this purpose was "industrial action" being taken to advance claims in respect of a proposed certified agreement, which was threatening to endanger the health or welfare of the population or cause significant damage to the economy. An issue arose as to whether "industrial action", as defined in s 4(1) of the WR Act , covered picketing. At 13-14, the Full Court, constituted by Spender, Moore and Branson JJ, said: The only basis on which picketing might be comprehended by the definition of industrial action is if it is conduct of the type identified in para (c) of the definition. That is, if it is a restriction on the performance of work or on the acceptance of or offering for work. The word 'picketing' may simply describe a lawful assembly outside a workplace (or elsewhere) protesting about and drawing attention to conditions of employment in the workplace. The word 'picketing' may also describe an assembly which engages in protest of this type but also prevents or impedes access into and out of the workplace (or elsewhere). Even if used to describe the latter situation, it is unlikely that picketing is conduct comprehended by the expression 'a ... restriction on the performance of work' as it appears in para (c). Having regard to the context in which that expression appears, it is more likely to relate to restrictions imposed by an employee or a group of employees on the work they do so as to limit the scope of that work or the time or the circumstances in which it is done. While the expression 'a ... restriction ... on acceptance of or offering for work' in para (c) might comprehend picketing of the latter type which prevented employees who were continuing to work from attending the workplace it is unlikely to have such a wide meaning if the other elements in para (c) relate to circumstances of the type just discussed. It is likely that para (c) in its entirety is directed to the conduct of employees who engage in conduct limiting the work they do or the circumstances in which they offer to do it. (Emphasis added.) Their Honours declined, however, to express a concluded view about the scope of the definition as it might apply to picketing. The respondents relied on these passages. 38 In Davids , Wilcox and Cooper JJ, with whom Burchett J relevantly agreed, stated their agreement with the view tentatively expressed in Giudice . In Davids , the respondent union commenced proceedings for a declaration that the appellant employer had engaged in conduct in contravention of s 170MU of the WR Act and an order restraining the employer from giving effect to purported terminations of its employees' employment. The employer had sent letters of termination to employees identified on a picket line. The Court was, in part, concerned with an entitlement under s 170ML to take "protected action" during a bargaining period, and ss 170MM and 170MN which imposed limitations on permissible "industrial action" as defined in s 4(1) of the WR Act . The union argued that the picketing was "protected action" and, in consequence, the employer's action contravened s 170MU. The employer said that this was wrong for a number of reasons, including that the picketing was not "industrial action" and was, therefore, not "protected action". 40 It is clear that an important consideration in Davids was the relationship between s 127 of the WR Act , as it then was, and the definition of "industrial action". This was because, by virtue of s 127 , the Commission had no power to deal with picketing if it was not "industrial action". As their Honours noted, French J had previously discussed this relationship in Communications Electrical Energy Information Postal Plumbing and Allied Services Union of Australia v Laing (1998) 159 ALR 73 (" Laing "), where his Honour had relied on Lockhart and Gummow JJ's discussion of picketing in Australian Builders' Labourers' Federated Union of Workers (WA Branch) v J-Corp Pty Ltd [1993] FCA 266 ; (1993) 114 ALR 551 (" J-Corp ") at 555-7. At 569-70, Wilcox and Cooper JJ said: One question [in Laing] was whether the picketing activity at Muja was 'industrial action', as defined in s 4 of the Act. At 88 French J noted that the Muja picket line did not prevent entry and exit of staff of the power station who wanted to cross it, but 'fuel supplies to the power station were disrupted because fuel tankers did not want to cross the picket line'. He went on: The general concept of picketing was discussed by Lockhart and Gummow JJ in Australian Builders' Labourers' Federated Union of Workers (WA Branch) v J-Corp Pty Ltd [1993] FCA 266 ; (1993) 114 ALR 551 at 555-7. It is apparent that it is a wider class of conduct than industrial action under s 127. At common law it is not necessarily unlawful but may become so if it involves obstruction and 'besetting': Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 at 767 (Mason JA). To constitute 'industrial action' under s 127 picketing must fall within the statutory definition of that term. It is not the performance of work. It can only qualify as industrial action if it amounts to a 'ban, limitation or restriction on the performance of work'. So a picket line whose purpose is to prevent or deter or discourage employees from attending on their employer's premises and from carrying out their work could constitute a ban for the purpose of s 127. There are therefore circumstances in which picketing may be the subject of an order as industrial action under s 127. In this case the Commission's order literally applied only to such participation in picket lines as was industrial action. The term 'industrial action' provided the umbrella class within which all classes of conduct specifically proscribed by the order had to fall. This was reinforced by the reference in para (4) of the order to the application of the statutory definition of industrial action 'for the purposes of this order'. The particular picket line did not prevent entry to the power station premises nor was there evidence to suggest that it deterred or discouraged entry. Fuel truck drivers, however, did not want to cross it. It is arguable that the order did not apply to such picketing activity as had been undertaken. Whether it did or not would no doubt require a close investigation of the facts concerning the establishment and conduct of the picket. Australian Builders' Labourers' v J-Corp, referred to by French J, was a case under s 45D of the Trade Practices Act 1974 (Cth). That section did not use the words 'picket' or 'picketing'. The value of the passage cited by French J is that it demonstrates that activities falling within the general description of 'picketing' may range from a protest in which the picketers do no more than communicate their views to persons entering or leaving particular premises, through various degrees of hindrance to total prevention of ingress and/or egress. Activity that merely involves communication of information to persons entering or leaving a site is not 'industrial action', within the meaning of the definition in the Workplace Relations Act . Such activity clearly cannot constitute a 'ban, limitation or restriction on the performance of work' by the picketers. If the picketers do no more than communicate information, it is immaterial that the recipient of the information may be persuaded not to perform, accept or offer for work. On the other hand, if the picket takes the form of preventing or hindering people from performing, accepting or offering for work, its effect is to limit or restrict the performance of work, or the acceptance of, or offering for, work. Such conduct may be regarded as falling literally within para (c) of the definition of 'industrial action'. However, consistently with the tentative view of the Full Court in [Giudice], we think the paragraph ought to be read as applying only to limitations on the work of those imposing ban. The history of the legislation and policy considerations persuade us it is likely parliament intended to confine the paragraph in this way. (Emphasis added.) 42 The foregoing passages show, as indeed the respondents submitted, that, consistently with Giudice , the Full Court in Davids considered that para (c) of the definition of "industrial action" in s 4(1) of the WR Act applied only to a restriction imposed by employees on the work they did. 43 There is little doubt, however, that Giudice and Davids were much concerned with the nature of picketing, which, as these cases both noted, is a wider concept than industrial action. The applicant argued that the real question in Davids was whether picketing was capable of constituting "protected action" and that this consideration affected the Full Court's construction of the definition of "industrial action". Davids was not, so the applicant submitted, authority for the proposition that a union could not impose a restriction on the performance of work for the purpose of para (c) of the definition of "industrial action" in s 4(1) of the WR Act (and thus, as the respondents would have it, para (c) of the definition of "building industrial work" in s 36(1) of the BCII Act ). I accept this submission in part. That is, I accept that the Full Court in Davids was concerned with the scope of "protected action", as the passage set out at [41] above shows. Here the Full Court reasoned that, to the extent that picketing involved obstruction and "besetting", it could constitute "industrial action", but that it did not do so because such conduct was an actionable tort in respect of which the Parliament was not to be taken to have conferred statutory immunity. Subject to what appears at [49] below, this reasoning is independent of, and separate from, the Full Court's earlier conclusion that para (c) of the definition of "industrial action" ought to be construed so as to extend only to bans, limitations and restrictions imposed by employees performing the work in question. 44 The discussion of French J in Laing cannot support the contrary conclusion, since it was not specifically concerned with the question whether para (c) of the definition of "industrial action" referred to bans, limitations or restrictions imposed by those performing the work. Rather, it was concerned with the nature of picketing as industrial action. In any event, Laing was the subject of the Full Court's consideration in Davids. 45 I accept that, in relying on Laing , Dowsett J in Temple v Powell [2008] FCA 714 at [50] - [52] apparently adopted a broad view of the scope of paras (b) and (c) of the definition of "building industrial action" in s 36(1) of the BCII Act , which would extend the paragraph to unions. This case, however, proceeded by way of an agreed statement of facts, the parties agreeing that the union had contravened s 38 of the BCII Act , and his Honour's attention was not drawn to the relevant passages in Davids or Giudice . The same may be said of the earlier judgment of Le Miere J in Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (No 4) [2006] WASC 317 (" Leighton "), at [28]-[31] where once again reliance was placed on Laing without reference to Davids or Giudice . 46 Transfield Construction Pty Ltd v Automotive Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413 (" Transfield ") cannot be explained in the same way. In this case, Merkel J referred to Davids and said (at [46]): In my view nothing said by Wilcox and Cooper JJ in [Davids] detracts from the observations of French J in Laing to the effect that a picket line, established by unions or their organisers for the purpose of preventing or deterring or discouraging employees from attending at their employer's premises and from carrying out their work, could constitute industrial action for the purpose of s 127. At first blush, his Honour's analysis is apparently inconsistent with the view expressed in Davids that para (c) of the definition of "industrial action" in s 4(1) of the WR Act referred to bans, limitations or restrictions imposed by those performing the work. It is to be borne in mind, however, that the picket line in Transfield was made up of the applicant's and its subcontractors' employees. This fact may serve to avoid the apparent inconsistency. 47 In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Langley (unreported, 26 February 2004, Federal Court of Australia, BC200404666), where Finkelstein J was concerned with an application for an interlocutory injunction, it was sufficient for his Honour to note that whether or not picketing can be "industrial action", for the purposes of para (c) of the definition in s 4(1) of the WR Act was far from clear. As his Honour said (at [12]), a possible interpretation of the cases is that "picketers only engage in industrial action when they are limiting or restricting the performance of their own work". His Honour added: This is a reasonable approach which requires picketers to be manning the picket lines on a work day. It also seems to be the view of Goldberg J in Original Juice Co Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2001] FCA 675 [at para 32]. Whilst this approach was broadly supportive of the respondents' position, it also emphasised that the effect of Davids and Giudice was far from clear, a proposition reinforced by the intervening decisions referred to by Finkelstein J and in paragraphs [45] and [46] above. 48 After argument, the applicant referred the Court, with leave, to the Commission's decision in NMHG Distribution Pty Ltd t/as Yale Asia Pacific v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 104 IR 158 (" NMHG "). This was an appeal to the Full Bench of the Commission, which raised the question "whether a ban imposed by the AMWU through its delegates employed by CUB at the Abbotsford plant on the performance of work by Yale employees at that plant [was] capable of coming within the meaning of the definition of industrial action in s 4(1) of the WR Act ". As to this the Commission said (at 160): [I]t is necessary to examine whether the ban is capable of constituting 'a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work' within the meaning of those words in pars (b) and (c) of the definition ... [I]n the Commissioner's view the action alleged could not constitute industrial action because it did not relate to the work of the delegates themselves, but to the work of the Yale employees. After referring to Davids and Giudice , the Commission said (at 161-2): Whilst these decisions provide some support for the construction of the definition advanced by the AMWU, in each of the cases referred to the Court was considering whether picketing was industrial action for the purposes of the definition. It follows that neither case constitutes binding authority on the question which arises in this case. Furthermore in [Giudice] the relevant passage was clearly not an integral part of the court's reasons for its decision, while in Davids the court based its decision for the most part on indications to be found in various sections of the Act that the legislature did not intend to include picketing in the statutory concept of industrial action ... This case is not concerned with picketing. In this case employees of one employer and their union ... placed bans on the performance of work by employees of another employer at the first employer's premises in circumstances where the employees of the second employer normally perform such work at those premises. ... As a matter of ordinary language, a prohibition by employees of CUB (and their union) on Yale employees carrying out work on the CUB premises when the Yale employees normally perform work on those premises can be described as a 'ban ... on the performance of work, or on acceptance for or offering for work' within the terms of pars (b) and (c) of the definition. There is no indication in the objects of the Act, in the objects of Pt VI or anywhere else in the Act that the legislature intended to exclude such conduct from the definition. We can see no basis for limiting the ordinary meaning of 'ban' where it appears in pars (b) and (c) of the definition to a ban imposed by employees in relation to their own work. 49 Of course, as the respondents noted, NMHG is not binding on this Court. It seems probable, however, that neither in Davids nor in Giudice was the Full Court considering the kind of situation that arose in NMHG . This supports the proposition for which the applicants contend that the effect of these two decisions must be assessed having regard to the context with which each was concerned. Further, it is plainly correct to say, as NMHG does, that the observation of the Full Court in Giudice was obiter dictum. The status of the observations in Davids is less clear, but, plainly enough, as already noted, the focus of Davids was on picketing. Accordingly, the observations in Davids on the scope of the definition of "industrial action" in s 4(1) of the WR Act are to be considered in this light. Furthermore, it is to be borne in mind that the Full Court in each case was not concerned with the BCII Act but with the WR Act , being different though related legislation. Whilst I must take such guidance from Davids and Giudice as I can, they provide no clear and definitive answer to the question whether or not the words "a ban, limitation or restriction on the performance of building work" in paras (b) and (c) of the definition of "building industrial action" in s 36(1) of the BCII Act refer to a ban, limitation, or restriction imposed only by employees, or can extend to union action. 57 Thus, the BCII Act is evidently directed to industrial action in the building industry, with emphasis on the conduct of all industry participants, including unions, and is designed to overcome some of the perceived deficiencies of the WR Act . The considerations that informed the introduction of the BCII Act differ to an extent from the historical and policy considerations referred to by Wilcox and Cooper JJ in Davids , and which led their Honours to construe paras (b) and (c) of the definition of "industrial action" in s 4(1) of the WR Act as referring to a limitation on the performance of building work imposed by those to whom the work related. 58 As the second reading speech and REM to the BCII Bill make clear, there is a distinct relationship between the operation of the WR Act and the BCII Act . It is to be borne in mind, however, that when the definition of "industrial action" in the WR Act was amended by the introduction of s 420 , with the effect that it became clear in terms that a relevant "ban, limitation or restriction on the performance work" must be imposed "by an employee" (see [34] above), the Parliament did not adopt the same course with respect to the definition of "building industrial action" in the BCII Act . Whatever the position be with respect to the definition of "industrial action" in the WR Act , I am not persuaded that, in the context of the BCII Act , the reference to a ban, limitation or restriction on the performance of building work should be construed as if the Parliament had made this amendment to it. That is to say, the ban, limitation or restriction on the performance of building work to which paras (b) and (c) of the definition of "building industrial action" in s 36(1) of the BCII Act refer is not limited to a prohibition or restriction imposed by employees to whom the work relates and may refer to that which is imposed by a union, such as the CFMEU. It does not follow, of course, that every ban, limitation or restriction on the performance of work imposed by a union or other industry participant satisfies the definition of "building industrial action" in paras (b) and (c) of s 36(1) of the BCII Act . As noted already, each paragraph is constrained by other factors, including, in the case of para (b), "an [applicable] industrial instrument" and, in the case of para (c), the existence of "an industrial dispute". 59 For the reasons stated, I reject the respondents' submission that, even if proven, the conduct alleged in paragraphs 13 and 14 of the applicant's statement of claim could not amount to "building industrial action", as defined in paragraphs (b) and (c) of the definition in s 36(1) of the BCII Act , because, in order to constitute "building industrial action" within these paragraphs, the relevant "ban, limitation or restriction on the performance of building work" must be imposed by the employees in respect of whom the work relates. For the reasons stated, I would make this ruling without putting the respondents to their election.


case_text: There were essentially two limbs to the respondents' no-case argument. In the first place, they argued that, even if proven, the conduct alleged in paras 13 and 14 of the applicant's statement of claim could not amount to "building industrial action", as defined in paras (b) and (c) of the definition in s 36(1) of the BCII Act . The respondents argued that this was because, in order to constitute "building industrial action" within these paragraphs, the action must be that of employees in respect of their work. The respondents contended that this was the effect of the Full Court judgments in Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 ; (1999) 165 ALR 550 (" Davids ") and Construction, Forestry Mining and Energy Union v Giudice (1998) 159 ALR 1 (" Giudice "). Hence, the respondents argued that, even if the Court found that Mr Mates had caused the crane from Independent Cranes to shut down and leave the site on 21 February 2006, this conduct alone could not constitute "building industrial action" as defined in s 36(1) of the BCII Act . In support of this argument, the respondents pointed out that there was no imposition of bans or limitations in relation to the performance of their work by the employees of either Hardcorp or Independent Cranes. At most, on the applicant's case, Mr Mates had caused Independent Cranes to terminate its provision of services to Hardcorp. 37 As already indicated, the respondents' argument depended largely on the judgments of Full Courts of this Court in Davids and Giudice . Giudice involved an application by three unions for prerogative writs directed to a Full Bench of the Australian Industrial Relations Commission ("the Commission"), following the quashing of orders under s 170MW(1) of the WR Act . Subsection 170MW(1) gave the Commission power to suspend or terminate a bargaining period if satisfied that certain circumstances existed. Subsection 170MW(3) provided that a circumstance for this purpose was "industrial action" being taken to advance claims in respect of a proposed certified agreement, which was threatening to endanger the health or welfare of the population or cause significant damage to the economy. An issue arose as to whether "industrial action", as defined in s 4(1) of the WR Act , covered picketing. At 13-14, the Full Court, constituted by Spender, Moore and Branson JJ, said: The only basis on which picketing might be comprehended by the definition of industrial action is if it is conduct of the type identified in para (c) of the definition. That is, if it is a restriction on the performance of work or on the acceptance of or offering for work. The word 'picketing' may simply describe a lawful assembly outside a workplace (or elsewhere) protesting about and drawing attention to conditions of employment in the workplace. The word 'picketing' may also describe an assembly which engages in protest of this type but also prevents or impedes access into and out of the workplace (or elsewhere). Even if used to describe the latter situation, it is unlikely that picketing is conduct comprehended by the expression 'a ... restriction on the performance of work' as it appears in para (c). Having regard to the context in which that expression appears, it is more likely to relate to restrictions imposed by an employee or a group of employees on the work they do so as to limit the scope of that work or the time or the circumstances in which it is done. While the expression 'a ... restriction ... on acceptance of or offering for work' in para (c) might comprehend picketing of the latter type which prevented employees who were continuing to work from attending the workplace it is unlikely to have such a wide meaning if the other elements in para (c) relate to circumstances of the type just discussed. It is likely that para (c) in its entirety is directed to the conduct of employees who engage in conduct limiting the work they do or the circumstances in which they offer to do it. (Emphasis added.) Their Honours declined, however, to express a concluded view about the scope of the definition as it might apply to picketing. The respondents relied on these passages. 38 In Davids , Wilcox and Cooper JJ, with whom Burchett J relevantly agreed, stated their agreement with the view tentatively expressed in Giudice . In Davids , the respondent union commenced proceedings for a declaration that the appellant employer had engaged in conduct in contravention of s 170MU of the WR Act and an order restraining the employer from giving effect to purported terminations of its employees' employment. The employer had sent letters of termination to employees identified on a picket line. The Court was, in part, concerned with an entitlement under s 170ML to take "protected action" during a bargaining period, and ss 170MM and 170MN which imposed limitations on permissible "industrial action" as defined in s 4(1) of the WR Act . The union argued that the picketing was "protected action" and, in consequence, the employer's action contravened s 170MU. The employer said that this was wrong for a number of reasons, including that the picketing was not "industrial action" and was, therefore, not "protected action". 42 The foregoing passages show, as indeed the respondents submitted, that, consistently with Giudice , the Full Court in Davids considered that para (c) of the definition of "industrial action" in s 4(1) of the WR Act applied only to a restriction imposed by employees on the work they did. 43 There is little doubt, however, that Giudice and Davids were much concerned with the nature of picketing, which, as these cases both noted, is a wider concept than industrial action. The applicant argued that the real question in Davids was whether picketing was capable of constituting "protected action" and that this consideration affected the Full Court's construction of the definition of "industrial action". Davids was not, so the applicant submitted, authority for the proposition that a union could not impose a restriction on the performance of work for the purpose of para (c) of the definition of "industrial action" in s 4(1) of the WR Act (and thus, as the respondents would have it, para (c) of the definition of "building industrial work" in s 36(1) of the BCII Act ). I accept this submission in part. That is, I accept that the Full Court in Davids was concerned with the scope of "protected action", as the passage set out at [41] above shows. Here the Full Court reasoned that, to the extent that picketing involved obstruction and "besetting", it could constitute "industrial action", but that it did not do so because such conduct was an actionable tort in respect of which the Parliament was not to be taken to have conferred statutory immunity. Subject to what appears at [49] below, this reasoning is independent of, and separate from, the Full Court's earlier conclusion that para (c) of the definition of "industrial action" ought to be construed so as to extend only to bans, limitations and restrictions imposed by employees performing the work in question. 45 I accept that, in relying on Laing , Dowsett J in Temple v Powell [2008] FCA 714 at [50] - [52] apparently adopted a broad view of the scope of paras (b) and (c) of the definition of "building industrial action" in s 36(1) of the BCII Act , which would extend the paragraph to unions. This case, however, proceeded by way of an agreed statement of facts, the parties agreeing that the union had contravened s 38 of the BCII Act , and his Honour's attention was not drawn to the relevant passages in Davids or Giudice . The same may be said of the earlier judgment of Le Miere J in Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (No 4) [2006] WASC 317 (" Leighton "), at [28]-[31] where once again reliance was placed on Laing without reference to Davids or Giudice . 47 In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Langley (unreported, 26 February 2004, Federal Court of Australia, BC200404666), where Finkelstein J was concerned with an application for an interlocutory injunction, it was sufficient for his Honour to note that whether or not picketing can be "industrial action", for the purposes of para (c) of the definition in s 4(1) of the WR Act was far from clear. As his Honour said (at [12]), a possible interpretation of the cases is that "picketers only engage in industrial action when they are limiting or restricting the performance of their own work". His Honour added: This is a reasonable approach which requires picketers to be manning the picket lines on a work day. It also seems to be the view of Goldberg J in Original Juice Co Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2001] FCA 675 [at para 32]. Whilst this approach was broadly supportive of the respondents' position, it also emphasised that the effect of Davids and Giudice was far from clear, a proposition reinforced by the intervening decisions referred to by Finkelstein J and in paragraphs [45] and [46] above. 48 After argument, the applicant referred the Court, with leave, to the Commission's decision in NMHG Distribution Pty Ltd t/as Yale Asia Pacific v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 104 IR 158 (" NMHG "). This was an appeal to the Full Bench of the Commission, which raised the question "whether a ban imposed by the AMWU through its delegates employed by CUB at the Abbotsford plant on the performance of work by Yale employees at that plant [was] capable of coming within the meaning of the definition of industrial action in s 4(1) of the WR Act ". As to this the Commission said (at 160): [I]t is necessary to examine whether the ban is capable of constituting 'a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work' within the meaning of those words in pars (b) and (c) of the definition ... [I]n the Commissioner's view the action alleged could not constitute industrial action because it did not relate to the work of the delegates themselves, but to the work of the Yale employees. After referring to Davids and Giudice , the Commission said (at 161-2): Whilst these decisions provide some support for the construction of the definition advanced by the AMWU, in each of the cases referred to the Court was considering whether picketing was industrial action for the purposes of the definition. It follows that neither case constitutes binding authority on the question which arises in this case. Furthermore in [Giudice] the relevant passage was clearly not an integral part of the court's reasons for its decision, while in Davids the court based its decision for the most part on indications to be found in various sections of the Act that the legislature did not intend to include picketing in the statutory concept of industrial action ... This case is not concerned with picketing. In this case employees of one employer and their union ... placed bans on the performance of work by employees of another employer at the first employer's premises in circumstances where the employees of the second employer normally perform such work at those premises. ... As a matter of ordinary language, a prohibition by employees of CUB (and their union) on Yale employees carrying out work on the CUB premises when the Yale employees normally perform work on those premises can be described as a 'ban ... on the performance of work, or on acceptance for or offering for work' within the terms of pars (b) and (c) of the definition. There is no indication in the objects of the Act, in the objects of Pt VI or anywhere else in the Act that the legislature intended to exclude such conduct from the definition. We can see no basis for limiting the ordinary meaning of 'ban' where it appears in pars (b) and (c) of the definition to a ban imposed by employees in relation to their own work. 49 Of course, as the respondents noted, NMHG is not binding on this Court. It seems probable, however, that neither in Davids nor in Giudice was the Full Court considering the kind of situation that arose in NMHG . This supports the proposition for which the applicants contend that the effect of these two decisions must be assessed having regard to the context with which each was concerned. Further, it is plainly correct to say, as NMHG does, that the observation of the Full Court in Giudice was obiter dictum. The status of the observations in Davids is less clear, but, plainly enough, as already noted, the focus of Davids was on picketing. Accordingly, the observations in Davids on the scope of the definition of "industrial action" in s 4(1) of the WR Act are to be considered in this light. Furthermore, it is to be borne in mind that the Full Court in each case was not concerned with the BCII Act but with the WR Act , being different though related legislation. Whilst I must take such guidance from Davids and Giudice as I can, they provide no clear and definitive answer to the question whether or not the words "a ban, limitation or restriction on the performance of building work" in paras (b) and (c) of the definition of "building industrial action" in s 36(1) of the BCII Act refer to a ban, limitation, or restriction imposed only by employees, or can extend to union action.


case_text: The general rule is that "a decision will not be given on a submission of no case to answer unless the moving party elects to call no evidence": see Rasomen at 223. The judge hearing the submission has a discretion to depart from this general rule, however, where the particular circumstances warrant it. In Protean (Holdings) Ltd (Receivers and Managers appointed) v American Home Assurance Co [1985] VR 187 (" Protean ") at 237 Tadgell J explained the nature of a no-case submission and the courses open to the judge in the following terms: When ... a party indicates that he desires to submit that he has no case to answer upon a contested issue, he is really inviting the Judge to rule that he should not have to adduce evidence, or further evidence, on that issue in order to have it finally decided in his favour. Usually, but not inevitably, the invitation will be issued at the end of the evidence called against the party desiring to make the submission (whom I shall call "the moving party") and before that party calls any evidence on the relevant issue in answer to that of the other party (whom I shall call "the respondent party"). ... 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. ... 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. 18 The respondents submitted that not only should the Court entertain their no-case submission, but that it should do so upon the basis that they would not be put to their election. The applicant opposed this course, arguing that the no-case submission should only be heard upon the basis that the respondents were put to their election. In Protean (at 238) Tadgell J said that, in deciding upon the preferred course on such occasions, "the Judge will be guided by the nature of the case, the stage it has reached, the particular issues involved and the evidence that has been given". He added (at 238): The imposition of a requirement that the moving party make an election before the Judge entertains the submission, or before he rules on it, will depend on the just and convenient disposition of the litigation. The imposition of such a requirement is not a right of the respondent party, for the fate of the submission of the moving party, once made, is in no sense dependent on election or no election. 19 In the present case, for the reasons indicated at the hearing, I determined that I would not rule on whether the respondents should be required to make their election until after the parties had addressed argument on the no-case submission, and as to whether the respondents should be required to make an election. It seemed to me that it was appropriate to take this course in order to understand the nature of the argument the respondents sought to make in saying that they had no case to answer. This was the approach adopted by Fullagar J in Union Bank of Australia Ltd v Puddy [1949] VLR 242 (" Puddy "); by Finkelstein J in Compaq Computer ; by Branson J at first instance in Rasomen (see Rasomen Pty Ltd v Shell Co of Australia Ltd (1996) 71 FCR 540 at 543); by Sundberg J in Tru Floor Service Pty Ltd v Jenkins (No 2) (2006) 232 ALR 532 (" Tru Floor ") at 537; and approved by the Full Court of the Supreme Court of Victoria in Protean .


case_text: In the present case, for the reasons indicated at the hearing, I determined that I would not rule on whether the respondents should be required to make their election until after the parties had addressed argument on the no-case submission, and as to whether the respondents should be required to make an election. It seemed to me that it was appropriate to take this course in order to understand the nature of the argument the respondents sought to make in saying that they had no case to answer. This was the approach adopted by Fullagar J in Union Bank of Australia Ltd v Puddy [1949] VLR 242 (" Puddy "); by Finkelstein J in Compaq Computer ; by Branson J at first instance in Rasomen (see Rasomen Pty Ltd v Shell Co of Australia Ltd (1996) 71 FCR 540 at 543); by Sundberg J in Tru Floor Service Pty Ltd v Jenkins (No 2) (2006) 232 ALR 532 (" Tru Floor ") at 537; and approved by the Full Court of the Supreme Court of Victoria in Protean . 20 Having heard the parties' arguments, I would not put the respondents to their election in respect of that part of their no-case submission that concerned the scope of the definition of "building industrial action". Had the respondents been successful on this aspect of their no-case submission, they would have defeated the applicant's s 38 case against them, without needing to answer this part of the applicant's case further. The respondents' argument was to the effect that there was an evidentiary hiatus in the applicant's case because the applicant had not adduced any evidence that any "ban, limitation or restriction" had been imposed by employees in respect of the work to which the ban, limitation or restriction related. In order to succeed on this limb of their no-case submission, the respondents had to persuade the Court that their construction of the definition of "building industrial action" was the preferable one, and that the applicant had adduced no evidence on an important element of it. For the following reasons, the respondents have failed to persuade me that their construction of the definition should be adopted, but, equally, it seems to me just and convenient that I rule on this question now without putting them to their election. I have heard the argument. The consideration of this part of their no-case submission involved no consideration of disputed evidence, and, as stated above, if accepted, it would have completely answered the applicant's allegations that they had contravened s 38 of the BCII Act : compare Compaq Computer at 7; Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54 (" Residues Treatment ") at 68 per Perry J; and Puddy at 245. 24 In Amcor , the applicant alleged that the respondents had contravened s 45(2)(a)(i) of the Trade Practices Act 1974 (Cth), a provision which attracted substantial penalties. The applicant's evidence in chief concluded on the first day of the trial, when counsel for the respondents submitted that they should be permitted to make a no-case submission without being put to their election. Sackville J held that the circumstances justified a departure from the general rule that a decision will not be given on a no-case submission unless the submitting party elects to call no evidence. His Honour accepted that the case fell within the third category mentioned by Perry J in Residues Treatment at 68 (on 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 cause of action pleaded) and that, in such a case, "there must be unusual circumstances to warrant the respondents being permitted to make their no case submission without being required not to adduce any evidence": see Amcor at 358. Sackville J held, however, that the circumstances were sufficiently unusual and that it was in the interests of justice for the respondents to be permitted to make their no-case submission without making an election. His Honour said (at 358): First and most important, I took the view that this is a case in which serious allegations of contraventions of the TP Act had been made against each of the respondents. If the allegations were to be established, the corporate respondents would be exposed to pecuniary penalties of up to $10,000,000 and the individual respondents to pecuniary penalties of up to $500,000. Adverse findings might well have serious consequences in terms of loss of business reputation. The authorities recognise that a departure from the general rule is often justified where fraud is alleged against the moving party. In Union Bank of Australia v Puddy [1949] VLR 242 , Fullagar J said (at 246) that where fraud is alleged: it may often be wrong to suggest that a party should submit himself to cross-examination before it is seen that there is really some evidence against him. See also Protean at 215 per Young CJ; at 236 per Fullagar J; [Compaq Computer] at 7. The present case is not one in which fraud has been alleged, but in my opinion it is analogous to a fraud case by reason of the very serious allegations that have been made against each of the respondents: see [Trade Practices Commission v George Weston Foods Ltd (1980) 43 FLR 55] at 61; Trade Practices Commission v Nicholas Enterprises Pty Ltd [1978] ATPR 40-097 (Fisher J), at 17,958. The analogy is in my view strengthened by the fact that the definition of 'exclusionary provision' in s 4D of the TP Act incorporates the concept of 'purpose' in a subjective sense: ASX Operations Pty Ltd v Pont Data Australia Pty (No 1) (1990) 27 FCR 460 at 474-7 ... The respondents in this case relied on these passages.


case_text: In the present case, for the reasons indicated at the hearing, I determined that I would not rule on whether the respondents should be required to make their election until after the parties had addressed argument on the no-case submission, and as to whether the respondents should be required to make an election. It seemed to me that it was appropriate to take this course in order to understand the nature of the argument the respondents sought to make in saying that they had no case to answer. This was the approach adopted by Fullagar J in Union Bank of Australia Ltd v Puddy [1949] VLR 242 (" Puddy "); by Finkelstein J in Compaq Computer ; by Branson J at first instance in Rasomen (see Rasomen Pty Ltd v Shell Co of Australia Ltd (1996) 71 FCR 540 at 543); by Sundberg J in Tru Floor Service Pty Ltd v Jenkins (No 2) (2006) 232 ALR 532 (" Tru Floor ") at 537; and approved by the Full Court of the Supreme Court of Victoria in Protean .