FEDERAL COURT OF AUSTRALIA

Lakshmanan v Janarthanan (No 1) [2006] FCA 831

PRACTICE AND PROCEDURE – submission of no case to answer – election - whether moving party must elect to call no evidence

Held - application refused

Federal Court Rules O 35 r 3

Australian Competition & Consumer Commission v Amcor Printing Papers Group (2002) 169 ALR 344 distinguished

ARUNACHLAM LAKSHMANAN & ANOR v PERUMAL JANARTHANAN & ORS

NSD 1689 OF 2004

RARES J

8 MARCH 2006

SYDNEY

THE COURT:

1 Dismisses the application of the fifth respondent that it be permitted to make a submission of no case to answer, without first having to elect not to call evidence.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1                     Mr Wood who appears for the fifth respondent has made an oral application without notice that he be allowed to advance on behalf of his client a no case submission pursuant to O 35 r 1. Mr Wood seeks to have a ruling as to whether if I were to entertain such a submission by him I would require an election on the part of the fifth respondent not to call evidence. The fifth respondent relies on a decision of Sackville J in Australian Competition and Consumer Commission v Amcor Printing Papers Group Limited (2000) 169 ALR 344 and in particular the discussion by his Honour at 169 ALR 356-359 [57]-[73].

2                     In this case there are two principal claims affecting the fifth respondent, the circumstances giving rise to which, albeit spread over various periods of time, occurred early in the calendar year 1999. The claims against the fifth respondent have two sources: one, s 52 of the Trade Practices Act 1974 (Cth), and the second a claim in fraud at common law. The only respondent wishing to make this submission is the fifth respondent. Mr Wood has directed my attention to the considerations to which Sackville J referred at 169 ALR at 358-359 [67]-[72]. His Honour prefaced the consideration of those matters by adverting to the fact in par [66] that the ‘circumstances of the present case were sufficiently unusual’ that it was in the interests of justice for the respondents to be permitted to follow that course.

3                     I am of the opinion that the true test in such an application must be the consideration of the overall interests of justice as to whether a party or parties be allowed to apply for, in effect, a summary remedy part-way through a trial. I do, however, consider that it is relevant for the purposes of assessing the interests of justice in the context of the present case to have regard to the fact that there are serious allegations of fraud made against the fifth respondent and to have regard to what counsel for the applicant, Ms Williams, accepted was appropriate at this stage of the argument, namely that, as Sackville J adverted to in par [69], that I should look at this on the basis that I should accept the applicants’ evidence at its highest and not at this stage consider issues as to credit.

4                     This application has been made, as Mr Wood frankly conceded, without any notice to the applicants. It is made at the close of the applicants’ case on the third day of this trial by only one respondent, in circumstances where that respondent is involved in a complex of events which gave rise to both limbs of the applicants’ causes of action against it, a claim for misleading and deceptive conduct as well as a claim for fraud. Mr Wood submitted that it would save some time if he were not required to elect in terms of cross-examination of other respondents witnesses.

5                     Balancing as best I can all of the matters to which I have adverted and the stage the case has reached, I am mindful that the suggestion of a shortening of time is not likely to affect the length of these proceedings to any significant degree. In the case before Sackville J, two days were said to be saved.

6                     I am of the opinion that it would unfairly disrupt the trial to permit the fifth respondent to make an application of a no case nature without requiring it to elect whether or not to call evidence.

7                     In my opinion it is in the interests of justice in a case such as the present where the circumstances said to give rise to the liability of the fifth respondent occurred during the course of communications and meetings at which the other parties to the proceedings or their human principals were present or involved, allegedly at the same time, that one party should not be allowed, as it were, to seek to extricate themselves entirely without having to make the election that, if it fails it, will not be in a position to call evidence. In my opinion it is not in the interests of justice for the fifth respondent to be permitted to make the submission of no case to answer, unless it elects that it will not call evidence.

Associate:

Dated: 30 June 2006