“In accordance with subsection 170ED(2) of the Industrial Relations Act 1988 the Commission hereby certifies that it has been unable to settle this matter by conciliation.”

I find that the matter is properly before the court.

The applicant, Lachelle Uzcateguigaymon, was born on 13 May 1961 in New York, New Jersey, United States of America. Ms Uzcateguigaymon is now thirty-five years of age and an Australian citizen.  Her curriculum vitae records that a BA in psychology was awarded to her in 1985 by the William Patterson College of New Jersey, USA. That document (Exhibit 3) also outlines her skills and qualifications as follows:

“*Experience and understanding of the government and community sectors, particularly in the area of employment.

*Co-ordination and planning/evaluation of independent living and employment training programs.

* Knowledge and understanding of disability issues.

* Sound knowledge and experience of vocational counselling practices.

* Knowledge of and commitment to Equal Employment Opportunity.

* Excellent communication and liason skills.

* Knowledge and implementation of case management.

* Ability to work as a member of a multi-disciplinary team or individually as is required.

* Appreciation and knowledge of NESB / Aboriginal and Torres Strait Islander Issues.”

The applicant also in Exhibit 3 gave a history of being employed from July 1994 to the present in an Industrial Rehabilitation Service as a rehabilitation consultant.  Her role was the case management of compensable clients from allocation to closure. From June 1993 to July 1994 the applicant was employed by Commonwealth Rehabilitation Services at Ashfield and held the position of rehabilitation counsellor there.

An examination of her curriculum vitae suggests that the applicant has established a capacity to work in the health and community employment areas as a rehabilitation counsellor. Other positions included project officer,  residential care worker and  program developer and co-ordinator.

The applicant arrived in this country in May 1987.  It is not necessary for me to examine her experience in America.  However, it is apparent from her curriculum vitae that the applicant has always been gainfully employed.

At the commencement of the case Mr. Britt on behalf of the respondent stated that he wished me to decide two matters as a preliminary issue, these being firstly, an allegation that the applicant had resigned and therefore there was no termination at the initiative of the employer; and secondly, that at the time of the termination of her employment, the applicant was  a casual employee who came within the exclusion provided for in section 170CC of the Act and regulations 30B(1) (d) and 30 B(3) of the Industrial Relations Regulations.

In accordance with the well established practice of the court I declined to deal with these issues separately.  I directed that they be dealt with as points of defence during the trial.

The applicant gave evidence that on 6 June 1995 there was an initial meeting with the organisers of the job club in answer to an advertisement regarding the position. As I understand the position, this was with Mr Phil Lambert.

The respondent company was apparently established to operate a labour market program which was sponsored by the Department of Education, Employment and Training. This was done through a series of “job clubs”, which teach employment techniques to the long term unemployed, including resume and employment application writing, cold canvassing through the Yellow Pages, reading job advertisements, interview techniques, rights and responsibilities of employers, EEO principles, etcetera.

Apparently there was a number of job clubs operated by the respondent and the applicant was originally offered a position in either Liverpool or Campbelltown which she declined.  According to her evidence, Mr Phil Lambert offered her a job in Petersham and Newtown by telephone some two weeks after the initial interview. Furthermore, the applicant testified as follows:

 “Between 9.30 and 10.00am I had a phone call from Phil Lambert to say that the position was available at Petersham. He asked, ‘Are you still interested as a job club leader at Petersham?’  I answered, ‘Yes, I am.’”

The applicant needed to give two weeks notice to her then employer and started her employment with the respondent two or three days later on 5 July 1995 at 373 Parramatta Road, Leichhardt.

The applicant was employed on the basis that she was to work six hours a day for 30 hours a week. The applicant commenced employment in a casual capacity with the employer for 30 hours per week  at a rate of $15.60 per hour and an additional $1.31 for casual holiday pay was included, bringing the total hourly rate to $16.91. Apparently the applicant carried out her duties properly until 21 December 1995. The applicant was aware that the next job club did not start until January 1996.

The applicant did not lead any evidence of payment of wages between 6 June 1995 and 5 July 1995.

It is part of the case for the respondent that the applicant resigned from her employment on 21 December 1995  following a discussion with Mr Phil Lambert earlier in December.  In any event, whether or not the applicant resigned her position on 21 December 1995,  it is quite clear that on 8 January 1996 she was terminated from her employment by way of a telephone call. This was reinforced by a letter dated 9 July 1996.

The applicant strongly disputes the claim that she resigned from her position but is unable to contest the fact that her employment as a casual ceased on 21 December 1995, that is, at the time of the office Christmas party and at the conclusion of that particular job club.

The applicant was carefully cross-examined  by Mr Britt on behalf of the respondent.  His cross-examination centred on an apparent alteration to her application in the section dealing with “period of employment”, which now reads “6/6/1995” under the heading “date started work”.  It is not necessary for me to make any finding at this time on the allegation that this alteration was done deliberately to improve her case.  It is quite clear that the applicant first commenced work on 5 July 1995 and worked as a casual until 21 December 1995 .

The applicant was supported in her evidence by Melissa Jane Carr, administrative assistant of the job club.  Ms Carr was there before the applicant had started and had been working with the job club for a year.   Ms Carr confirmed  that the applicant started work on 5 July  1995 and worked on a weekly basis.  Her testimony supports the proposition that the applicant remained at work till 21 December 1995.  Moreover, as far as Ms Carr was concerned, she was expecting the applicant to be back to work on 11 January 1996.

Ms Carr conceded that she had had some discussions with the applicant about the applicant being unhappy at work, insufficient computer facilities and other equipment for the use of the applicant and her clients.  I do not place a great deal of emphasis  on these discussions, as it seems to me that these are the general types of issues that trouble all employees in the workplace from time to time.  This is more so when the employees are part of a community organisation which is partially funded by the government but often not resourced  to the full extent required.

The respondent cannot dispute that the employment of the applicant for the new job club was due to commence on 11 January 1996.

At the conclusion of the applicant's case I asked the industrial advocate for the respondent if he had any submissions to make to me. Mr Britt said that he wished to make a no case to answer submission.  In accordance with a practice which I feel is  appropriate for this type of case,  I indicated to the parties that, notwithstanding the outcome of the application, I would give the respondent the opportunity of presenting further evidence in reply should my decision be adverse to the respondent. My reasons for adopting this practice are more fully set out later in this decision.

The submission of Mr Britt can be briefly summarised:

“The applicant’s case could not succeed in this court because the period of employment of the applicant failed to exceed the requirements of regulation 30B(3) of the regulations under the Act.”

 Regulation 30B is as follows:

            “30B(1) Excluded employees.  Subject to subregulation (2) for the purpose of section 170CC of the Act, the following employees are excluded from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act:

      (a) an employee engaged under a contract of employment for a specified period of time, being a contract that was entered into before 16 November 1994;

      (aa) an employee engaged under a contract of employment for a specified period of time, being a contract that was entered into on or after 16 November 1994, if the specified period is less 6 months;

      (b) an employee engaged under a contact of employment for a specified task;

(c) an employee serving a period of probation or a qualifying period of employment, if the duration of the period or the maximum duration of the period,  as the case requires:

(i) is determined in advance; and

       (ii) is reasonable,  having regard to the nature and circumstances  of the employment;

(d) a casual employee engaged for a short period within the meaning of subregulation(3).” 

There was no allegation made that regulation 30B(1)(a),(aa),(b),(c) or 30B(2) are relevant in these proceedings.

Regulation  30B(3) is the relevant  regulation as follows:

            “For the purposes of paragraph (1)(d), a casual employee is taken to be engaged for a short period unless:

(a) the employee is engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least six months; and

(b) the employee has, or but for a decision by the employer to terminate the employee's employment, would have had, a reasonable expectation of continuing employment by the employer.”

In this matter I have considered detailed written submissions on behalf of the applicant. In his submission Mr Harper, Solicitor, states:

“In the matter before the court the applicant's application for relief states that she started work on 6 June 1995.  The certificate of employment issued by the employer states that the applicant was employed from 5 July 1995.  The evidence of the applicant is that she received a telephone call from the office of the respondent on 8 January 1996 informing her that her employment had been terminated. 

It is understood that the case of the respondent is to the effect that the applicant resigned from her employment with the respondent on 22 December 1995.  Her certificate of employment from the respondent states that she was employed to 22 December 1995.  The evidence before the court at this time from the applicant is to the effect that the applicant was terminated on 8 January 1996 and did not resign from her employment with the respondent.

It is not in dispute that the applicant was a casual employee of the respondent and the law relating to casual employees is settled in that it is clear that a casual employee is engaged on a separate contract of employment for each distinct period of casual employment (Moore J, Andison v Woolworths Limited).   In terms of the first limb of regulation 30(B), in terms of this matter, the issue of six months is critical.  It is submitted that the meaning of the regulation is that six months will have passed during which the applicant was engaged on periods of employment on a regular and systematic basis.

The evidence before the court is to the effect that the applicant was engaged on 6 June 1995  or 5 July 1995  and that she was terminated on 22 December 1995, (certificate of employment Exhibit 6), or 8 January 1996. However, the certificate of employment is not helpful in that, even if it accurately describes the actual periods of employment,  it does not identify the date of termination of that employment.  In fact it is clear that it does not deal with this issue.  In other words, the regulation does not require actual employment for a total of six months, only regular and systematic employment during a period of engagement of six months.

Indeed, the effect of the letter to the applicant from the respondent dated 9 January 1996 is to the effect that the applicant's alleged resignation was effective that date.  ‘Further to  meeting with you in late December 1995 and subsequent  telephone  conversation with you on Monday 8 January 1996, your resignation from Hospitality Horizons as Job Club Leader of the Petersham Job Club is now effective. 

As agreed at the meeting and reiterated in conversations as a condition of your resignation you offered to provide services as Job Club Leader until another Job Club Leader was engaged.  Another Job Club Leader has now been engaged to deliver the program when it resumes for the next information session from 11 January 1996.’

 It is submitted that the only issue before the court is whether or not the applicant resigned from the respondent and the evidence at this point in time is that she did not.  At this point in time there is no evidence from the respondent to refute the evidence of the applicant.  The evidence of the applicant is that she had been engaged by the respondent for the job club leader program commencing 11 January 1996.

Please refer to the words of Moore J in  Andison -v- Woolworths  as follows with regard to the regulation:

‘Thus the paragraph contemplates the the possibility of a number of engagements during the period of 6 months. In my opinion the regulation was intended to confer the rights arising in Division 3 on casual employees who have already worked on a regular and systematic basis for 6 months or more....’

It is submitted that in this case the applicant had worked as at the date of termination of employment for a period of 6 months or more (whether that be from 6 / 6 / 95 or 5 / 7 / 95 to 8 /1 / 96 )  and therefore the first limb of the regulation is satisfied.”

In paragraph (b) the submission deals with the second limb of the regulation :

“(b) the employee has, or but for a decision by the employer to terminate the employee’s employment, would have had, a reasonable expectation of continuing employment by the employer.”

It is not necessary to deal with that submission in the light of the findings I make in this case.

It is my finding that the applicant commenced her employment with the respondent on 5 July 1995, which means that, had a job club for example started on 6 January 1996, then the applicant would have been employed for “a sequence of periods of employment during a period of at least 6 months”. Consequently, if she was terminated on 8 January 1996,  then the applicant would not be excluded from the benefit of the Act.

The applicant’s 1995 contract of  employment  finished on 21 December 1995 (or at the latest on 22 December 1995), in my view not for any reason other  than that the job club ceased to function  on that day.  At this stage of the proceedings it is not necessary for me to determine whether  the applicant resigned on 21 December 1995, as is maintained on behalf of the respondent.

It is quite clear on the evidence of all parties that on 21 December 1995 the applicant's period of employment was complete and that she was not due to commence a new sequence of employment until 11 January 1996. The applicant's version is that she did not resign and was due to be re-employed on 11 January 1996. The respondent's version is that the applicant  resigned on 21 December 1995 (or earlier) but had agreed to continue her employment until a new job club leader was found. I have not heard the evidence from the respondent on the resignation issue.  In my view I do not need to go to that extent. I should keep an open mind on the question of the alleged resignation.

It is strongly submitted by the applicant  that the fact that her termination  occurred on 8 January 1996,  being a date after the six months period which commenced on 5 July 1995 had expired, is sufficient for the applicant to succeed. I cannot accept that proposition. I am unable to distinguish the facts of this case from those in  Andison v Woolworths Limited.  In that case it was found  initially that the handing to the applicant of a roster with a series of engagements covering a future period which finished after the expiration of the six months was sufficient to indicate that he had been "engaged within the meaning of the regulation".  I am unable to find any distinguishing features between the facts of that case and this case.

It is clear that the applicant finished working with the respondent on 21 December 1995, although the respondent has certified 22 December 1995 as the date of completion of her employment. The difference between the dates is not significant in this case.  Whether the applicant resigned on either date is a matter on which I can and should maintain an open mind.  The respondent’s point of view is that the applicant had resigned on the basis that she was to remain working for it until they got a new job club leader. The company did not get a new job club leader until just before the start of the next session. Therefore it is clear to me that the applicant was engaged but not employed subject to there being no-one to take the job before 11 January 1996. Contrast this with the applicant’s point of view that she had not resigned and intended to keep working. In either case that is not what happened. In my view on either version there would be an engagement in terms similar to those outlined in Andison -v- WoolworthsLimited.  However, Moore J  decided as follows:

“The construction advanced by Mr Andison and accepted by the Judicial

Registrar was that paragraph (a) was satisfied if a casual employee was engaged in circumstances where it could thereafter be expected that the employee would work for a period of at least six months.  Thus Division 3 might apply to a casual who had worked only a short period over a period of substantially less than six months.  Woolworths Limited contends that on its proper construction, paragraph (a) refers to casual employees who have, in fact, been employed on a regular and systematic basis for six months or more.

 Support for the first construction of paragraph (a) is said to be found in

the use of the word ‘engaged’ which might be thought to focus on the  time of initial employment and the period of employment which was likely to follow.  While the use of the word ‘engaged’ does provide some limited support for this construction of paragraph (a), it is not, in my opinion,  what the paragraph means.  The paragraph requires satisfaction of the condition that there has been employment on a regular and systematic basis for periods of employment during a period of at least six months.  That characteristic of the employment of a casual will only be apparent after six months has elapsed from initial employment or engagement. The word ‘engaged’ may have been used because of the settled legal principle that a casual employee is engaged on a separate contract of employment for each discreet period of casual employment.  Thus the paragraph contemplates the possibility of a number of engagements during the period of six months.  In my opinion the regulation was intended to confer the rights arising in Division 3 on casual employees who have already worked on a regular and systematic basis for six months or more and not confer them on casual employees who have not.”

In this case the termination occurred past the anniversary of the six month period.  However, it occurred during a time in which the applicant was not in the employment of the respondent but was engaged to renew her contract of employment on 11 January 1996.

It is sufficient for me to determine that “a period of at least six months” of employment had not been completed and could not expire until after 11 January 1996 when the applicant was due to commence “her next sequence of periods of employment”.  Had, for instance, the applicant commenced her employment on 11 January 1996 and the respondent then said on that day or on 12 or 13 January 1996, “we have a new job club leader  and we want you to leave”, then the applicant would have had the benefit of the Act.  In the facts as they occurred, the applicant did not and is therefore excluded from the operation of Division 3 of Part VI (A)of the Act.

Although the evidence is at an early stage,   the most appropriate course is that I dismiss the application now.

I confirm that I remain openminded on whether or not there was a resignation. The testimony of Ms Carr provides some independent although indirect and circumstantial support for the applicant’s version.  Although the evidence of Ms Carr may be persuasive, I have to acknowledge that I have not yet heard the evidence of the respondent on this issue. I do not have to decide this issue now and it seems to me I ought not to express any further view in case there is a review of this decision and the matter may be referred back to me for further hearing.

I also make no finding as to the credit of the applicant on the apparent alteration on the application form.

Having found against the applicant and in favour of the no case to answer submission,  the question as to whether the respondent may call further evidence is no longer an issue. However,  I should outline my reasons for not requiring the respondent to make an election as to whether it could call evidence in reply if the submission failed.

This is particularly so as the position in New South Wales is clearly provided for by Part 34 Rule 8 of the Rules of the Supreme Court of that state as follows:

“ 8 (1) This rule applies to a trial.

(2) An opposite party may, after the conclusion of the evidence in the beginning party’s case in chief or after the conclusion of the evidence given for all the parties, move the Court for judgment for that opposite party in the proceedings generally or on any claim for relief in the proceedings on the ground that, on the evidence given, judgment for the beginning party could not be supported.

(3) Where the ground of an opposite party’s motion under subrule (2) is established, the Court shall give judgment for the opposite party accordingly.

(4) Where an opposite party moves the Court under subrule (2), he may not adduce evidence or further evidence in the proceedings generally or on the claim for relief in question, as the case may be.

 (5) ........ ” 

The judgment of Toohey J in James v ANZ Banking Group Ltd (No2)  9 FCR 448 provides a good starting point for a discussion of this issue at page 451:

“The very term no case submission was described in Tate v Johnson  (1953) 53 SR (NSW) 492 at 494 as ‘an unfortunate phrase to use in civil proceedings’.  Street CJ, who delivered the judgment of the Full Court, referred to ambiguity in the expression for it may mean that there is no evidence of the elements necessary to be proved or that there is some evidence of those elements but that it is so weak or unsatisfactory that it should not be accepted. Again it may mean that by reason of some question of law the case cannot succeed in any event. The criticism by the court was made in the context of an argument whether, in proceedings in a court of petty sessions for recovery possession of premises, the lessee was required to elect whether or not he would go into evidence before making a no case submission. And of course there is much authority  on this matter, both in the context of civil and criminal proceedings.”

There is a helpful analysis of the concept at paragraph 11090 in  the looseleaf service “Cross on Evidence” (Australian Edition), hereinafter referred to as “Cross”:

“A party may make a submission that there is no case to answer and that accordingly a verdict should be directed in favour of that party [1]but it is controversial whether the judge may decline torule on the submission unless the party making it elects not to call evidence. Where an application is made for a verdict by direction, it will succeed if there is no evidence on which a properly directed trier of fact would be entitled to find the material facts of the claim proved on the balance of probabilities² But there is authority that it may also succeed if the evidence is so weak or so unsatisfactory that it should not be accepted.”

And in the same paragraph at page 11054:

“In New South Wales the defendant cannot go into evidence without  leave if the no case submission fails in the Supreme Court, District Court and Local Court. ⁹

In Queensland it is possible to put a no case submission without election if it is based on the want of evidence in support of a material element, but the putting of a submission that there be judgment on the ground that, though  there is evidence it is so weak and unsatisfactory as not to be accepted is not possible unless the party putting it elects not to call evidence.¹⁰

In South Australia  there is a discretion and no general practice one way or the other,¹¹ as to whether  or not the party making a

no case submission should be put to an election.

The Federal Court of Australia tends to follow the practice of the state  in which it is sitting,¹² though there are authorities which are for and against election. These turn on the extent to which there is a sound reason against exercising a discretion to put a defendant to his election,¹³ so that it may be assumed that the discretion exists in that court.”¹⁴

For the sake of convenience, the relevant footnotes referred to above are included as an appendix to this judgment.

A further discussion occurs on this issue with additional emphasis on the position in New South Wales in the looseleaf service “The ABC of Evidence” by Bartley and Brahe at paragraph 41001 and following.  In particular a more detailed reference is made to Tate v Johnson (1953)53 SR (NSW)492.

A similar issue  has recently been considered in this court  by Marshall J in Richtsteiger v Century Geophysical Corporation (No.IT 95/1256: reported in IRCA Judgments as No167/96) and an outline of the circumstances leading to the no case submission is set out in his unreported judgment as follows:

“BACKGROUND - THE PROCEEDING

On 7 September 1995 the applicant lodged in the Tasmania District Registry of the Court an application pursuant to s170EA Industrial Relations Act 1988 (‘the Act’).  The applicant alleged that he was employed by the respondent as a manager in 1986 and that his employment was terminated at the end of April 1995. He sought compensation and other relief in the associated jurisdiction of the Court.  Although the applicant resided in South Australia and the respondent’s head office was located there, the application was lodged in the Tasmania District Registry by the applicant’s Hobart-based solicitor.  When filing ‘a notice of employer’s appearance’, the respondent alleged that it was not the employer of the applicant but that the true employer was Schogar Pty Ltd (‘Schogar’).

On 28 September 1995, Judicial Registrar Parkinson made an order transferring the proceeding to the South Australia District Registry pursuant to Order 10, Rule 1(2)(f) of the Rules of Court. On 19 October 1995, Judicial Registrar Farrell referred the matter to the Australian Industrial Relations Commission (‘the Commission’) for conciliation.  On 17 November 1995, Senior Deputy President Hancock certified that the Commission had been unable to settle the matter by conciliation. Certain procedural directions were made by von Doussa J on 19 December 1995.  On 2 February 1996, von Doussa J ordered that the hearing proceed on 24 and 26 April 1996 up until the close of the case for the applicant, ‘and that the hearing then be adjourned to a date to be fixed so as to permit the respondent to make a submission of no case to answer, and have such submission determined, before calling.... in evidence from any witness who resides overseas.’  The making of an order in the terms set out above was advanced by the respondent and not opposed by the applicant.  In fact, Mr Crotty, who appeared for the applicant then and later before me, said that:-

 ‘I cannot see how that prejudices the applicant’s case in any way.’

FURTHER HEARINGS

The Court will now hear submissions from the parties as to whether the respondent should elect whether it wishes to call evidence before making its no case to answer submission.  In light of the order of von Doussa J on 2 February 1996, I will invite the applicant’s counsel to address the Court first on that issue.”

A further judgment in  Richtsteiger v Century Geophysical Corporation was delivered by Marshall J in Perth on 9 May 1996:

“As foreshadowed in the reasons for judgment of 26 April 1996, the Court heard the applicant on that day as to whether the respondent should be put to its election on the question of it calling evidence before making its no case submission.  Having regard to the order of the Court made by von Doussa J on 2 February 1996, referred to in the decision of 26 April 1996, the Court did not need to hear from the respondent on the question of election.  The immediate issue for determination is whether the Court should accept or reject the no case submission of the respondent.  Counsel for each party agreed that the test to be applied is whether there is ‘evidence upon which the Court could enter judgment for the applicant’.  See James v ANZ Banking Group Ltd (No. 2) (1985) 9 FCR 448, 451 per Toohey J.”

Marshall J then summarised the evidence in the applicant’s case which closed on 24 April 1996. I need not refer to the detail of the evidence in that case. Marshall J continued:

            “Accordingly the Court is satisfied that as the evidence now stands it can accept the submission of the applicant that he was employed by the respondent continually from 1986 until 30 April 1995.  This does not necessarily mean that the Court will ultimately find that the relevant employment relationship existed throughout that period.  It also does not mean that the Court will ultimately find the changed circumstances were in fact a sham.  Rather the Court’s view is that the evidence of the applicant taken alone has disclosed that the respondent has a case to answer.The Court orders that the respondent’s no case submission be dismissed. ” 

On 2 February 1996  von Doussa J also ordered that “paragraph 1 of the notice of motion that the whole of the applicant’s claim for relief be dismissed by way of summary judgment pursuant to Order 20 be adjourned for consideration by the trial judge at the trial.”  This order is in accordance with the general practice of the court. I am not aware if there were any reasons published by von Doussa J  when making this order. The earlier order as outlined by Marshall J in his judgment with respect to the no case submission is not inconsistent with the practice said by “Cross” to operate in South Australia.

I consider it likely that this court would generally follow the practice of the Federal Court as is outlined in “Cross” and deal with the submission in accordance with the relevant state practice. However, I have not followed this practice in this case for the following reasons:

1. It is the general practice of the court to deal with interlocutory motions by way of defence in the trial and not to allow such issues to develop a life of their own often obscuring the real reason or reasons for  the termination of employment.

2. In this case there is an established interpretation of the relevant regulation including by way of a review of a first instance decision.

3.  The facts emerged clearly at an early date and it was possible to make a decision without ruling on some of the matters still in contention between the parties, such as the resignation issue. In my view this was not contrary to the intention behind the practice outlined in paragraph 1 above and my decision  to treat that claim as a part of the defence case of the respondent.

4.  It is important that, should a review of my decision be successful for the applicant, it would still be possible for the remaining issues to be tried without involving another hearing or Judicial Registrar, thus reducing the risk of  the evidence and cross-examination which has already been completed being wasted.

5.  If the court were to find in favour of the applicant on the submission  in respect to its jurisdiction,  it would still require to hear  the evidence and obtain assistance from the respondent so as to determine the question as to whether reinstatement was impractical.  Additional evidence would also be required on the issue of compensation.

6.  In this case, if a termination at the initiative of the employer were to be found,  the respondent bears the onus of proving that it had a valid reason for the decision .  To force the respondent to an election in such circumstances seems to me to have an inherent unfairness about the rule.

For these  reasons it seemed inappropriate to me to put the respondent to the election as is the practice in New South Wales.

To be fair to the respondent and the applicant, I should give their representatives  an opportunity to make submissions to me on the question of costs.  I propose to determine the issue of costs after the parties have had an opportunity of considering this judgment. 

I grant the parties liberty to have the matter restored before me for directions regarding the costs argument. That application can be made in writing to my associate and must be done within seven days of 22 November 1996. The respondent should file a detailed list of the costs that it would be seeking in writing and this must be served on the applicant at least three days before I hear the matter. I note the respondent was represented by an employers’ organisation and I would require the assistance of the advocates in relation to the awarding of any moneys for fees which could be regarded as “legal fees”. Subject to this qualification,  I propose to deal personally with the assessment of costs, if any, in order to reduce the need for the parties to incur any further professional fees.

If an application for costs is not made within seven days of 22 November 1996, then I propose after noon on 2 December 1996 to order that:

1. The application be dismissed

2.  There be no order as to costs.

I certify that this and the preceding       pages are a true copy of the reasons for decision of Judicial Registrar McIlwaine.

Associate:

Date:               20th November 1996

APPEARANCES:

Solicitor for applicant:        Mr A Harper

Advocate for respondent:   Mr A Britt

APPENDIX

1.         For the distinction between “verdicts by direction” and “non-suits”             see Windeyer J’s  discussion in Jones v Dunkel [1959]  101 CLR 298 at 322-32.

2.         Metropolitan Railway Co v Jackson [1877] 3 App Cas 193 at 707     per Lord Blackburn; Jones v Dunkel [1959] 101 CLR 298 at 319-        20 per Windeyer J.

3.         Tate v Johnson (1953) 53 SR (NSW) 492 at 495 (FC) per Street CJ

            Owen and Herron JJ: Protean (Holdings) Ltd v American Home                 Assurance Co [1985] VR 187 at 239 (FC) per Tadgell J.

4.         Alexander v Rayton [1936] 1 KB 169; [1935] All ER Rep 185           (CA).  This rule was described as “general” in Stevenson v Barriam

            [1976] 136 CLR 190 at 202-3; 12 ALR 175 at 185.  It is only in the   most exceptional circumstances that a new trial will be ordered by          the Court of Appeal after an election (Portland Manufacturers Ltd   v Harte [1977] QB 306; [1976] 1 All ER 225 [CA]).  The use of         the expression “no case to answer” in civil as opposed to criminal

            cases has been described as unfortunate:  Tate v Johnson [1953]

            70 WN (NSW) 302 at 304 (FC).   

5.         Per Rouser LJ [1936] 1 KB 169 at 178; [1935] All ER Rep 185 at

            189 [CA].

6.         Young v Rank [1950] 2 KB 510; 2 All ER 166 where the authorities

            are reviewed by Devlin J.

7.         Union Bank of Australia v Puddy [1919] VLR 242.

8.         Protean (Holdings) Ltd (Receivers and Managers Appointed) v         American Home Assurance Co [1985] VR 187 (FC).

9.         The rule appears in Pt 34 r8 of the Supreme Court Rules, Pt 26 r 8     of the District Court Rules and Pt 21 r 6 of the Local Courts (Civil           Claims) Rules 1988.

10.       Bank of New South Wales v Signori; ex parte Signori [1966] Qd R    322 (FC), applying the former NSW practice in Tate v Johnson   (1953) 53 SR NSW 322 (FC).

11.       Copper Industries Pty Ltd (in liq) v Hill [1975] 12 SASR 292 at         294 per Walters J ( unless “the basis of the submisssion were that            the evidence was  so “ vague or ambiguous ” or “so weak and             indefinite that the court should not accept it.”); Antique Pty Ltd         v          Securities and General Insurance Co Ltd (1984) 112 LSJS 317; Preston v Dowell (1987) 45 SASR 111; Residues Treatment &            Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54.

12.       See eg TPC v Nicholas Enterprises Pty Ltd (1978) 40 FLR 74 at 77   (Fed C of A); Treharne v Geo McEwin & Son Pty Ltd  (1982) 44             ALR 534 (Fed C of A). See also James v Australia and New             Zealand Banking Group Ltd (1986) 9 FCR 448 at 451-2; 64 ALR      347 at 400 per Toohey J. In J-Corp Pty Ltd v Australian Builders           Labourers Federated Union of Workers - Western Australian             Branch  (1992) 38 FCR 458; 111 ALR 377, French J followed the     Victorian position.

13.       Cf TPC v George Weston Foods Ltd (No 2)  (1980)  43 FLR 55           (Fed C of A) and TPC v Allied Mills Industries Pty Ltd (1981)      ATPR 40-237 (Fed C of A).

14.         Skeate v Slaters [1914] 2 KB 429 at 434 per Lord Reading CJ. In    Grinstead v Hadrill [1953] 1 All ER 1188, it was held that a                           judge ought not to enter a verdict for the opponent once he had        decided that there was some evidence in favour of the proponent’s            contention fit to go to the jury.  As to the power of the judge to         enter judgment non obstante veredicto, see Phillips v Ellinson                                                                  Bros Pty Ltd (1941) 65 CLR 221