Should A Defendant Have to Elect Not to Give Evidence Before a No Case Application?




Aitken Whyte Lawyers acted for the Plaintiff in a proceeding in the District Court; Lee v Di Carlo (No 2) [2023] QDC 212.

This article discusses procedural aspects of evidence that arose relating to:

  • no case” submissions; and
  • if the Defendant should have to elect not to call evidence before the Court will hear the submission.


Our client, the Plaintiff, claimed repayment of loans from the Defendant.

The matter proceeded to trial and on the first day, our client gave evidence to support her claim. Following the Plaintiff’s evidence-in-chief, rather than give evidence to the contrary, the Defendant proposed:

  • that there was no case to answer; and
  • that the Court should not require him to elect whether to call evidence.

Burden Of Proof

Generally, the “burden of proof” is on the party who brings the claim. This means the onus is on the Plaintiff to prove their case by way of introducing evidence to support it. If a Plaintiff fails to make out their claim, they will lose the case.

This can come with costs consequences, such as the Court ordering them to pay the other side’s legal costs.

What Is A “No Case” Submission?

After hearing a Plaintiff’s evidence, a Defendant may submit that:

  • the evidence is insufficient to support the pleaded case; and
  • the Court should dismiss the claim as the Plaintiff has no case.

If successful, the Defendant would not need to present evidence to rebut the claim. They simply submit that the Plaintiff has not presented a case for them to answer.

Such a submission can be complex. The expertise of an experienced litigation lawyer and counsel may be necessary for it to succeed. There are potential risks, which we discuss below.

Contact us if you require legal representation to bring a Court application. Our civil litigation lawyers can offer advice on your prospects of success.

Electing To Give Evidence in A Civil Trial

Generally, a Defendant may elect whether they wish to give or call evidence. They may also (and almost always do) cross-examine the Plaintiff’s witnesses on their evidence.

A Defendant may present evidence to support their pleaded Defence. In this case, the Defendant’s pleaded Defence was that the money our client claimed was a loan, was instead:

  • money the Plaintiff intended to combine with funds from the Defendant; and
  • for both the Plaintiff and the Defendant to together lend to third parties.

Alternatively, a Defendant may submit that there is no case to answer. To make such a no-case application, and for the application to be heard and determined by the Court, the Court may require the Defendant to elect whether or not the Defendant will be giving evidence in the trial. If the Defendant elects to give evidence in the trial, the Court may refuse to hear the “no case” application and prefer to hear the entirety of the evidence before giving any decision. In this way, the evidence rules in civil trials differ from those in criminal trials.

Electing To Give Evidence After Submitting That There Is No Case In A Civil Trial

In a criminal trial, a Defendant (the accused) may submit that the prosecution has not made out a case against them. The Court would then review the prosecution’s evidence and decide if there was a case to proceed with and for the accused to answer.

In the event the Court agreed there was insufficient evidence, the Defendant would:

  • be discharged; and
  • not be required to present their defence.

The Court may instead determine that they had seen sufficient evidence for a case. The Court would then give the Defendant the opportunity to present their Defence.

In a civil trial, if a Defendant chooses to submit that there is no case, the Court may require them to first “elect“. This means they must confirm that they will call no evidence. The Defendant is then bound by this regardless of whether their submission succeeds. This relies on confidence by the Defendant’s legal team that the Plaintiff has indeed not made out a case. They will not have the option to “fall back” on adducing evidence if their submission fails.

Dutney J in Brian Geaney Pty Ltd v Close Constructions Pty Ltd [2003] QSC 235 summarised the reasoning for this requirement, saying:

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.

Courts have described a Judge being asked to give any opinion on the evidence before it is complete as “highly inconvenient”: Alexander v Rayson (1936)1 KB 169.

The Submission of No Case to Answer Without Being Put to An Election

Counsel for the Defendant asked the Court to decide on a “no case” without requiring their client to elect. This means they would not be precluded from calling evidence if the Court did not rule in their favour.

No Case to Answer

In support of their position regarding the no case application, they submitted that:

  • the Plaintiff’s evidence did not support the Plaintiff’s pleaded case;
  • the Plaintiff’s evidence supported the Defendant’s version of events; or alternatively
  • the Plaintiff’s evidence supported a third, unpleaded, version of events.

The Defendant’s barrister submitted on behalf of the Defendant that the evidence may support another cause of action. This suggested cause of action would not be able to be upheld under relevant legislation, so would fail.

This was that there was an oral guarantee by the Defendant for third parties to repay the Plaintiff. Section 56 of the Property Law Act 1974 (Qld) states:

No action may be brought upon any promise to guarantee any liability of another unless the promise upon which such action is brought, or some memorandum or note of the promise, is in writing, and signed by the party to be charged, or by some other person by the party lawfully authorised.

PROPERTY LAW ACT 1974 – SECT 56 Guarantees to be in writing

The Defendant submitted that without a written guarantee, such a claim was bound to fail at law.

For further information on this topic, see our article on evidencing guarantees in writing.

Our Submissions in Response

Our client’s legal team made written and oral submissions opposing the Defendant’s no case application.

The submissions detailed the evidence that supported our client’s case and the existence of a loan and referred to established authority that the “general practice” is to require the Defendant to make an election as to whether to call evidence, and to decline to rule on the no case submission until the election is made: Green v Wilden Pty Ltd [2004] WASC 105 at [27] citing BHP Steel (RP) Pty Ltd v ABB Engineering Construction Pty Ltd [2001] WASCA 294.

We also argued that the Court should not make a ruling unless the Defendant elected not to give evidence.

Determining the application would require an examination of our client’s evidence. Our position is that the Defendant’s own submissions supported this fact.

It would not afford procedural fairness to our client for the Court to:

  • comment on their evidence; and
  • then later allow the Defendant to give evidence.

The Court ultimately reached the same conclusion. Sheridan DCJ refused to determine the Defendant’s application without putting them to election.

Our experience and knowledge in Court proceedings allow us to make persuasive submissions. The knowledge of our lawyers benefits our clients when the Courts rule in their favour. If you require representation from a civil litigation law firm, contact us.

What The Court Considered

The general rule is that the Court will require an election before hearing a no case submission. This is not a rigid requirement, and the Court has a discretion to depart from the general rule. The facts of each case will be relevant.

Whether the Court requires this in an individual case is at the Judge’s discretion. A Judge will decide based on submissions by the parties as well as case law and other relevant factors. For this reason, it is important to rely on authoritative cases and good submissions. Our civil litigation lawyers can assist you in presenting your argument in court.

There are common exceptions to the general rule. For example, an election is not usually required where:

  • there is an allegation of fraud;
  • the application is to be decided on a question of law, as it was submitted was the case by the Defendant; or
  • an examination of the evidence is not otherwise required to determine the application.

Perry J of the South Australian Supreme Court outlined the situations a party might submit for no case as well as which may require an election to be made.

His Honour stated that the cases where the Court should not require an election were:

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.

Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 15 ACLR 416

His Honour also explained the situations where the Court should require an election, being:

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.

Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 15 ACLR 416

Issues To Be Determined

The issues for determination were:

  1. Whether the Plaintiff had presented sufficient evidence to support their case; and
  2. Whether the Court should consider this without first requiring the defendant to elect.

The first issue for the Court to determine was the matter of election.

Tadgell J said a Judge has four options when asked to consider a no case application. The first is that they can refuse to entertain the submission altogether. They stated that the other three options are:

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.

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

The Court’s Decision

Each party’s counsel had construed the Plaintiff’s evidence differently in their submissions. The version the evidence supported would determine if there was a case to answer. Therefore, an examination of the evidence would be required to decide the application.

The Court stated that the need for this analysis meant the adequacy of the evidence was not just a question of law.

Further, the Court reasoned that, per Dutney J, the Defendant would have “two bites of the cherry” if:

  • the Court considered the evidence and gave an opinion at this stage;
  • that opinion did not support the Defendant’s no case submission; and
  • the Defendant was then able to adduce further evidence in support of its Defence.

In the circumstances, the Defendant did not convince the Court to depart from the usual rule.

Before considering the no case to answer application, the Court required the Defendant to make an election. The Defendant elected to give evidence, so the application was dismissed.

Focused On Results

Aitken Whyte Lawyers Brisbane has significant litigation experience. We can assist you to bring or defend an application. We work hand in hand with knowledgeable barristers to provide top-tier in-court advocacy.

Our lawyers are focused on results and will work hard to achieve the results you need.

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We can provide legal advice and representation for all civil and commercial disputes. Contact us to speak to a lawyer about your situation.

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