Lee v Di Carlo [No 2][2023] QDC 212

DISTRICT COURT OF QUEENSLAND

1. [1]
   At the conclusion of the plaintiff’s evidence-in-chief, and prior to the defendant commencing cross-examination of the plaintiff, counsel for the defendant made a “no case to answer submission without being put to an election” and indicated that he would like to see the transcript before bringing the application formally.
2. [2]
   By agreement between counsel, orders were made for the filing of a formal application, the filing of written submissions and the hearing of oral argument.
3. [3]
   At the end of oral argument, I ruled that I would require the defendant to make an election before hearing the substantive application.  These are my reasons.
4. [4]
   The primary issue for determination on the pleadings is the terms of an agreement between the plaintiff and the defendant in respect of money given by the plaintiff to the defendant.  As summarised in submissions by the defendant, the particular issue is whether that money was:

   1. a loan to the defendant, as pleaded by the plaintiff; or
   2. to be pooled with funds of the defendant and lent by the plaintiff and the defendant to third parties, as pleaded by the defendant.
5. [5]
   In their written submissions in the no case application, each counsel detailed, by reference to the transcript, the evidence of the plaintiff in support of their respective client’s cases.
6. [6]
   The defendant submitted that the plaintiff’s evidence did not support the pleaded case but rather that of the defendant, or another case not pleaded; namely, it was submitted, the existence of an oral guarantee by the defendant for repayment of the monies by third parties to the plaintiff which, pursuant to s 56 of the Property Law Act 1974 (Qld), would fail because it was not in writing.
7. [7]
   Counsel for the plaintiff referred in his submissions to passages of the plaintiff’s evidence supporting the plaintiff’s case as to the existence of a loan.
8. [8]
   Counsel for the plaintiff maintained that the court should not be prepared to hear the no case application unless the defendant elected not to call evidence.
9. [9]
   At a further mention of the matter, I indicated that I wished to determine that issue first and I listed the matter to enable the making of oral submissions on that issue. Counsel for the defendant delivered further written submissions addressing that issue.
10. [10]
    In support of his position, counsel for the defendant listed what he described as the good reasons why the defendant should not be put to an election as including that the case was set down for one day and the plaintiff’s evidence occupied the whole of that day, the judge (in the absence of a jury) was well placed to determine the insufficiency of the plaintiff’s evidence, the adequacy of the evidence was a question of law, there would be significant savings for the parties if the application was successful as the balance of the trial was likely to take a further two days and the making of an election did not impact the outcome of the application.
11. [11]
    The authorities to which reference was made support the proposition that to allow a party to make a submission of no case without putting him to his election not to call evidence is regarded as a departure from a general rule that an election should be required.^[1]
12. [12]
    In Brian Geaney Pty Ltd v Close Constructions Pty Ltd,^[2] Dutney J expressed the reason for such an approach in the following way:

“It seems to me that the purpose of requiring an election in a case such as this is to avoid the prospect of, in effect, giving an advisory opinion to the party making the submission in a case which really turns on its facts so that the party gets two bites of the cherry, that is, to seek to submit that the plaintiff has failed to make out a case, and if it fails in that after examining all of the evidence, to then lead further evidence to support that same submission.”

13. [13]
    It has been recognised that the rule is not rigid.^[3]  It is accepted that the judge must always retain a discretion whether there should be adherence to it and there are some well recognised exceptions; in particular where fraud is alleged or if the case to be decided is to be decided on a question of law without the need to examine the evidence.^[4]
14. [14]
    In a Supreme Court of South Australia decision in Residues Treatment & Trading Co Ltd v Southern Resources Ltd,^[5] Perry J categorised the circumstances in which a no case submission could be made as:

“1. Where no reference at all to the evidence is required.

2. Where a reference to the evidence is required only to establish that there is an evidentiary hiatus or failure to adduce any evidence as to an essential element in the cause of action.

3. Where it is argued that on a 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 causes of action pleaded.

4. The situation where it is contended that although there is some evidence to support the plaintiff’s claim, it is so weak and unreliable that it should be dismissed without calling upon the defendants.”

15. [15]
    His Honour said that cases in categories 1 and 2 should not involve an election, but that the general practice should be applied to cases in categories 3 and 4.
16. [16]
    In Protean (Holdings) Ltd v American Home Assurance Co,^[6] Tadgell J referred to there being three courses open to a judge faced with a no case application, 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.”

17. [17]
    In the present case, I have had the benefit of full submissions on the matter.  Those submissions made it clear that if I were to determine whether there was a case to answer it would be necessary to consider in some detail the evidence which has been given by the plaintiff.  In their submissions, each counsel sought to give a different construction to the evidence given, including whether the evidence supports, as suggested by the defendant, a case not pleaded and not sustainable.  The need for that analysis made it clear that the determination of the no case submission is not simply a question of law.
18. [18]
    If I were to conduct that exercise at this stage and to resolve the matter against the defendant, as observed by Dutney J in Brian Geaney Pty Ltd v Close Constructions Pty Ltd,^[7] the defendant would have “two bites of the cherry”. In a case such as this, which turns on its facts, the court should avoid the giving of an advisory opinion.
19. [19]
    In the circumstances, it does not seem to me to be a case where I should depart from the usual practice of requiring the defendant to elect.  Accordingly, I required the defendant to make his election.