Arguing ‘no case to answer’

Cases

Arguing ‘no case to answer’

A ‘no case to answer’ application, which seeks to have particular proceedings dismissed, can only be made (generally speaking) after the applicant to the original proceedings has closed his/her evidentiary case.

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A ‘no case to answer’ application, which seeks to have particular proceedings dismissed, can only be made (generally speaking) after the applicant to the original proceedings has closed his/her evidentiary case. Also, if the ‘no case to answer’ application is unsuccessful, the applicant to those proceedings is then unable to call evidence in the original proceedings.

In Davis v Amalgamated Television Services P/L (see HR Link 1 July 1998; Issue 76/98), a Full Bench of the NSW Industrial Relations Commission (Cahill VP, Hill and Maidment JJ, and Redman C) considered the application of the ‘no case to answer’ principles within the NSW industrial relations system.

The Full Bench stated that the principles applying to a ‘no case to answer’ application ‘are well settled’:

"The first principle is, and on all of the authorities it is a well settled and general rule, that such an application cannot be made prior to trial and the closure by the appellant of its evidentiary case. There are few exceptions to this rule. They consist mainly of cases involving objections based on jurisdictional or legal grounds (Stevenson v Barham (1977) 136 CLR 190) or cases falling within the limited class illustrated by General Steel Industries Inc v Commissioner for Railways (N.S.W.)(1964) 112 CLR 125, namely, that the claim is obviously untenable, manifestly groundless or discloses no cause of action. Even in jurisdictional or legal objection cases, the application should not be permitted unless the tribunal has all relevant facts before it (see Nagle v Tilbury (1993) 51 IR 8). ...

"The second general principle is that if at the close of the applicant’s case the respondent wishes to make an evidentiary ‘no case to answer’ application he must elect not to call evidence if the application is unsuccessful. That is the general rule but it is not inflexible and the tribunal may, in exceptional circumstances, and in the exercise of its discretion, grant a dispensation from that requirement (see Jones v Dunkel (1959) 101 CLR 298; Stevenson v Barham (1977) 136 CLR 190and Edwards v Transport Workers’ Union (1989) 32 IR 206)."

In the case at hand, the Full Bench held:

"In our opinion, his Honour [Marks J in the decision at first instance] was in error firstly in permitting the [employer] to make the evidentiary ‘no case’ application before the trial and prior to the [employee] having opened and closed his evidentiary case, and secondly in not requiring the [employer] to elect not to call evidence if its application was not successful.

"It seems to us that the [employer] intended to achieve and in fact achieved, by the procedures advocated by it and permitted by his Honour, a ‘win win’ position. The procedure which developed before his Honour had the inevitable result that the [employee] was effectively deprived of his right to be heard, on 22 and 28 October 1997, on the questions of the proper time at which an evidentiary ‘no case’ application can be made and whether the [employer] should be required to elect."

Note that a Full Bench of the Australian Industrial Relations Commission recently paid passing attention to this issue in CSR Ltd v CFMEU (Print Q1491, [1998] 618 IRCommA).

 

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