Jones v Dunkel
[1959] HCA 8 (3 March 1959)(1959) 101 CLR 298
[1959] ALR 367
(Decision by: Windeyer J.)
Jones
v Dunkel
Judges:
Dixon C.J.
Kitto
Taylor
Menzies
Windeyer JJ.
Subject References:
Negligence
Action
Collision between motor vehicles
No direct evidence of negligence
Matter of inference from proved facts
Sufficiency of facts to support inference
Practice
Direction to jury
Inference of negligence open on proved circumstances
Whether inference should be drawn
Defendant able to explain facts from which inference sought to be drawn
Failure of defendant to give evidence
What reliance to be placed by jury on such failure in deciding whether or not to draw inference
Nature of direction to jury
Practice
Non-suit
Verdict by direction
History
Application in New South Wales
Judgment date: 3 March 1959
Decision by:
Windeyer J.
WINDEYER J. I consider that there should be a new trial in this case. (at p313)
2. I reach that conclusion with misgiving, because of the different view of some members of this Court and of the judges who sat as the Full Court of the Supreme Court. Furthermore, I think that, speaking generally, it might be better if questions of the sufficiency of a summing-up at nisi prius could be settled finally in the Supreme Court. Historically it was the task of a common law court, sitting in banc, to deal each term with questions which had arisen in the course of the trials at nisi prius before the judges of the court. Applications to set aside the verdicts of juries or for new trials thus came before judges accustomed to sit regularly at nisi prius. They were closer to the fray than a court of appeal can be. Some questions, however, which arise at nisi prius, such as complaints of the wrongful rejection or reception of evidence, are questions of law, which in earlier times could have been brought before a court of error by bill of exceptions. A misdirection might be made the subject of a bill of exceptions, but a mere non-direction could not be (Anderson v. Fitzgerald (1853) 4 HLC 484 (10 ER 551) ). The sufficiency of a summing-up was thus historically a matter for the court in banc rather than for an appellate court. The procedure to-day is different. Nevertheless, if the Full Court had had to determine only a complaint of the form and sufficiency of the summing-up of the learned trial judge, and the case had not been complicated by any other question, I would have thought this Court, in exercising its appellate jurisdiction, should be most reluctant to disturb the decision of the Full Court, and should give full effect to every presumption in favour of its soundness. But, as Lord Blackburn said in Prudential Assurance Co. v. Edmonds (1877) 2 App Cas 487 : - "although it is generally said, and said truly, that non-direction is not a subject of a bill of exceptions, yet when the facts are such that in order to guide the jury properly there should be a direction of law given, the not giving that direction of law would be a subject for a bill of exceptions and would be a ground for a venire de novo. When once it is established that a direction was not proper, either wrong in giving a wrong guide, or imperfect in not giving the right guide to the jury, when the facts were such as to make it the duty of the judge to give a guide, we cannot inquire whether or no the verdict is right or wrong as having been against the weight of evidence or not, but there having been an improper direction there must be a venire de novo." (1877) 2 App Cas, at pp 507, 508 Were the jury, then properly guided in this case? Blackstone in the Commentaries (Book iii, 375), (1809), in his account of the course of a trial, describes the judge's summingup: "When the evidence is gone through on both sides, the judge, in the presence of the parties, the counsel, and all others, sums up the whole to the jury; omitting all superfluous circumstances, observing wherein the main question and principal issue lies, stating what evidence has been given to support it, with such remarks as he thinks necessary for their direction, and giving them his opinions in matters of law arising upon that evidence." (at p314)
3. This is the ideal; but as Chitty's Archbold (Book i, 11th ed. 400) (1862) states, after a somewhat similar description, "As all this, however, is intended merely as an assistance to the jury, the judge, in his discretion will omit any part of it he may think unnecessary". It has often been said that to examine a summing-up, sentence by sentence, in search for a fault, is not the right way to see whether the judge put the case to the jury fairly and adequately. So much depends upon what counsel said in their addresses; upon incidents in the course of the trial, the significance of which at the time, and their apparent impression upon the jury, the transcript cannot reveal. So much, too, depends upon the judge's view of what guidance the particular jury should have in the particular case; upon how far he may think it unnecessary to go over matters on which counsel addressed; or, on the other hand, on how far he may think he should bring into sharper focus matters which counsel blurred. And much depends on how far he may think it desirable, after advocacy is spent, to redress the balance. On top of all this, the summing-up has to be given promptly at the conclusion of the trial, without the opportunity for careful composition which a reserved judgment may get. (at p314)
4. I say this, trite though it all is, because in the present case counsel for the appellant picked out passages and sentences from the summing-up of the learned trial judge, subjected them to some detailed textual criticism, and contended that the summing-up as a whole was inadequate and so unfavourable to the plaintiff as to make it unjust. This was one of the grounds taken in the notice of appeal to this Court. Yet at the trial no such general exception had been taken; and, quite apart from the express requirements of O. XXII, r. 15 of the Supreme Court Rules, general principle requires that, if objection is to be made to a judge's direction, the matter should have been brought to his attention at the time: Macdougall v. Knight (1889) 14 App Cas 194, at p 199 ; Nevill v. Fine Art & General Insurance Co. Ltd. (1897) AC 68, at p 76 ; Seaton v. Burnand (1900) AC 135, at p 143 ; Barber v. Pigden (1937) 1 KB 664 ; Mutual Life Insurance Co. of New York v. Moss [1906] HCA 70; (1906) 4 CLR 311, at p 322 and Banbury v. Bank of Montreal (1918) AC 626, at pp 660, 661, 674, 697, 698 . There may be cases where, when the complaint is of the general effect of a summing-up, the taking of particular exceptions is unnecessary (McVicker v. Forbes (1941) VLR 266 ). But, in the present case, the plaintiff's counsel asked for some directions and some corrections by the judge of what he had said. In part his requests were met; and then, apart from one matter, he made no further specific objection to the summing-up. In my view there was, apart from that matter to which I shall come later, no reason for thinking that, in its setting against the background of the trial, the summing-up misled, or would be likely to mislead, the jury. However, the circumstances of this case are unusual; and it is necessary to refer to them. (at p315)
5. The main facts are set out in the judgment of the learned Chief Justice of New South Wales. It is enough to say here that, from the evidence, the manner in which the accident occurred could, at best, be only a matter of inference; and whether there could be any rational inference, as distinct from mere conjecture, was debatable and debated. Any hypothesis of what occurred runs into some difficulty. How did it come about that, within the very short time which elapsed before the witness, Burdus, came on the scene, the two vehicles, both badly damaged, were at a standstill on the western side of the road, with the deceased man dead or dying in in the cabin of his truck; and with the truck which the defendant, Hegedus, had been driving, some twenty paces behind, and both trucks facing in the same direction, north? And how did it happen that when, shortly afterwards, the police came, they found the nearside door of the truck driven by Hegedus, which had been broken from its hinges, lying forty feet away below the bank on the eastern side of the road, with blood on the ground beside it? And how did two heavy vehicles collide, and one finish facing in the opposite direction from that in which it had been travelling before the accident, without leaving marks on the road? (at p316)
6. At the trial the evidence led by the plaintiff established the circumstantial details. No evidence was led as to where Hegedus was or what he was doing, either when Burdus first arrived on the scene or when he later came back with the ambulance. And no evidence was led as to whether Hegedus said anything to either Burdus or the ambulance superintendent who took him to hospital. However, a signed statement, which Hegedus had made three days after the accident when a police officer visited him in hospital, was put in evidence for the plaintiff. In it he said he was travelling to Marulan, that is in the opposite direction from that in which the deceased man, Jones, was travelling. The statement included the following passage, elicited by the policeman's question "What happened?" "I was travelling down a slight grade at a speed of about 35 miles per hour and had just taken a right hand bend in the roadway when I saw a vehicle coming from the opposite direction. The lights of the on-coming vehicle appeared to be bright. I applied my brakes and I do not remember anything further. Light rain was falling at the time and the roadway was wet and slippery. I have been driving heavy vehicles for about 2 1/2 years and I have not previously been involved in an accident." (at p316)
7. When the plaintiff's case was closed counsel for the defendant applied for a verdict by direction on the ground that it was not open to the jury to infer that the accident was caused by the negligence of the defendant. The learned trial judge refused this application saying: "If a plaintiff leaves the evidence in a state where a jury are to speculate or to guess, it might be said that there is no evidence of negligence, but a jury is entitled to draw inferences from proved facts. In dealing with Mr. Ross' application, I have to consider whether there are proved facts from which reasonable men might properly draw an inference in favour of the plaintiff's case. The question whether such inference is proper or not in this case I think should be left to the jury, but I propose to warn them that if they are of opinion that the case is left in such a state that they must speculate or guess what happened, their verdict must go to the defendant." (at p316)
8. Counsel then addressed the jury. What they said is not before us. But it is apparent from passages in the summing-up that the plaintiff's counsel laid stress, as naturally he would, on the failure of the defendant to call evidence. In his summing-up his Honour adverted more than once to this matter. He said: "Here, let me say, Mr. Ross who appeared for the defendants was within his rights in adopting the course which he did. He elected not to call evidence and that is a practice which is adopted very often in these courts from day to day and you must not criticise Mr. Ross for his conduct of the case or his decision to call no evidence." And: "The fact that Mr. Hegedus has not been called does not absolve the plaintiff from adducing some evidence of the facts. The onus is upon her to prove the facts, but very slight evidence pointing to their existence may be treated as sufficient to justify you in holding that they do exist; and so I come to this very important question, what are the proved facts?" (at p317)
9. He warned the jury not to mistake mere conjecture for reasonable inference; and then, after some generalities about speed and rule of the road, he referred to some of the theories and suggestions which counsel had advanced and said: "With this set of facts, the law to be applied is this, where direct proof is not available, it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference; but they must do more than give rise to conflicting inferences with equal degree of probability so that the choice between the two is a mere matter of conjecture. Applying those principles to this case can you really say whether Jones was on his correct side and Hegedus was on his incorrect side?" (at p317)
10. This was apposite. At the end of the summing-up, and as the jury were about to retire, a juryman said to his Honour: "Rightly or wrongly I have it in my mind that the defendant could have come here to-day and given evidence. Am I entitled to regard that in my mind as a weakness in the case of the defendants, that he did not?" (at p317)
11. The proper answer to this question, if an answer were to be given in one word, was "yes". The matter is discussed in Wigmore on Evidence under the heading "Conduct as Evidencing a Weak Cause"; and those were the juryman's very words. What his Honour actually said was: "Counsel for the defendant has the responsibility for the conduct of the defence. Counsel decided not to call evidence, and having directed you already with regard to that matter I do not propose to say anything more to you." Whatever the learned judge had said earlier, and whether or not it was sufficient, clearly the juryman felt the need of further guidance. Lawyers are accustomed to the concept of a civil action as a matter to be decided on the evidence produced by the parties, one of them bearing the burden of proof. They do not always appreciate that laymen may well feel, not only that such proceedings are not well designed to get at the real truth, but that they ought to be. Jurymen seeking to get at the truth might naturally have qualms when the only man who was able to tell them what really happened did not vouchsafe to do so. However, the matter did not stop with his Honour's statement. A discussion ensued, in which counsel for both parties addressed his Honour, and in which the judgment of Jordan C.J. in De Gioia v. Darling Island Stevedoring & Lighterage Co. Ltd. (1941) 42 SR (NSW) 1; 59 WN 22 was referred to. Mr. Bowring, the plaintiff's counsel, put the view for which he was contending succinctly: "If the judge says there is no evidence to go to the jury that is an end of the matter; but when the matter does go to the jury, then I do submit that the jury are entitled to take into consideration that . . . there was one person who could have told them the facts and they have no answer from that person". (at p318)
12. In the upshot his Honour said to the jury: "This is the position, the defendant having called no evidence, it is a matter of common sense that you should accept the plaintiff's evidence with respect to the facts as being accurate. The fact that the defendant Hegedus has not gone into the box and offered any explanation leaves you in this position, that you can accept the facts given by the plaintiff as proved, but the question then is whether you should find negligence against him as a matter of inference to be drawn from those facts, and that is the question for you, whether you think from the proved facts an inference of negligence ought to be drawn. If you think so, the plaintiff is entitled to your verdict. If, on the other hand, you think no such inference can be drawn, then the verdict must go against the plaintiff and in favour of the defendant." (at p318)
13. The jury then retired, and returned later with a verdict for the defendants. On the plaintiff's moving in the Full Court for a new trial, some question arose whether the plaintiff could object to the direction finally given by the learned judge in response to the juryman's question. It was said no request had been made to him to deal further with it than he had. It seems to me, however, that the question of what was a proper direction in the circumstances was sufficiently raised at the trial. It is true that Mr. Bowring did not, having interrupted during his opponent's address and at the end of the summing-up, seek to continue the discussion after his Honour had said what finally he did. But he had, with it seems to me proper persistence, made the point that the juryman's question should be correctly answered; and he did not, as I read it, acquiesce in the answer finally given. It was not necessary for him to do more than he did (cf. Blackler v. McElhone (1913) 13 SR (NSW) 487; 30 WN 126 , Petree v. Knox (1917) 17 SR (NSW) 503; 34 WN 235 ). Moreover, the question had become one between the judge and the jury. His Honour's direction to the jury really amounted to no more than saying that, the defendant having called no evidence, the facts proved by the plaintiff were uncontradicted, "but the question then is whether you should find negligence as a matter of inference to be drawn from those facts". But silence may amount to much more than an acquiescence in the primary facts. It may be eloquent in support of an inference to be drawn from those facts. Until facts were proved from which an inference of negligence could be drawn, the defendant was not called upon to say anything. His Honour, however, had thought that such an inference could be drawn; he had refused to direct a verdict for the defendant, and had left the matter to the jury. Having done so, he should have directed them appropriately on the conclusions they might draw from the silence of Hegedus. In my view he did not. Therefore, whether there should now be a new trial really depends upon whether he should have left the case to the jury at all. If he should not have done so, then his misdirection becomes irrelevant. In the Full Court all the learned judges thought that the trial judge should have directed a verdict for the defendants; and this really determined their views on the questions argued. (at p319)
14. I, however, think there was evidence to go to the jury. It is, I realise, always possible to confuse mere conjecture with reasoned conclusion (see per Jordan C.J. in Bell v. Thompson (1934) 34 SR (NSW) 431; 51 WN 138 ), and to regard the mere fact that circumstances are consistent with a conjecture as corroboration of it. Nevertheless, I think that a jury properly directed might - not necessarily should - reasonably infer that immediately before the vehicles collided that driven by Hegedus was on the wrong side of the road. A jury could, in my view, properly think it more probable that this was so than that it was not (Cofield v. Waterloo Case Co. Ltd. [1924] HCA 18; (1924) 34 CLR 363 , per Isaacs J. (1924) 34 CLR, at p 375 ; Holloway v. McFeeters (1956) 94 CLR, at pp 480, 481 and Carr v. Baker (1936) 36 SR (NSW) 301; 53 WN 110 , per Jordan C.J. (1936) 36 SR (NSW), at p 306; 53 WN, at p 112 ). The cause of the collision can be only a matter of conjecture; but on which side of the road it occurred is, I think, susceptible of rational inference. If there is to be a new trial, it is not desirable to say more than that, in my view, an inference could properly be drawn from the positions where the vehicles were found immediately after the collision, taken in conjunction with the nature of the damage to each, the gradient and conformation of the road and other circumstances. If immediately before the collision Hegedus's vehicle was on the wrong side of the road, that, unexplained, is, I consider, some evidence of negligence on his part. I should add that I attach no weight to the fact that, in his statement made in hospital, Hegedus did not say he was on his correct side. It seems to me that his Honour was right in telling the jury that the fact that Hegedus did not in this statement say he was on his correct side could not rationally lead to an inference that he was on his incorrect side. I think that little, if anything, is to be gleaned from the statement, which to me seems quite inconclusive on any critical matter. It may be of some slight significance that Hegedus, when he made this statement, did not attribute the accident to anything the other vehicle did; but that is not an admission that he was himself to blame. It may also be of some significance that the question "how did it happen" elicited, among other remarks, "I applied my brakes and I do not remember anything further. Light rain was falling at the time and the roadway was wet and slippery". But I consider the trial judge was quite right in thinking that no conclusion could be drawn from the statement alone either to inculpate or exculpate Hegedus. (at p320)
15. As I think that the matter was properly left to the jury, I turn to what directions the judge should have given them concerning the failure of Hegedus to give evidence. I think, firstly, that in referring to his statement, his Honour rightly told the jury that they could have regard to it as recording what Hegedus had said; and I can see little force in counsel's objection to his Honour's, perhaps incautious, description of it as "his evidence"; but, in the circumstances, it would have been better if he had explained that it was unsworn, and that, as Hegedus had not been called, there was no opportunity of testing it by cross-examination. Then, I think, his Honour should, when the juryman asked his question, have given an answer in accord with the general principles as stated in Wigmore on Evidence 3rd ed. (1940) vol. 2, s. 285, p. 162 as follows: "The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted." (at p321)
16. This is plain commonsense. If authority be needed, two passages from R. v. Burdett (1820) 4 B & Ald 95 (106 ER 873) may be cited. Abbott C.J. said: "No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction; can human reason do otherwise than adopt the conclusion to which the proof tends? The premises may lead more or less strongly to the conclusion, and care must be taken not to draw the conclusion hastily; but in matters that regard the conduct of men, the certainty of mathematical demonstration cannot be required or expected." (1820) 4 B & Ald, at pp 161; 162 (106 ER, at p 898) And Best J. said: "Nor is it necessary that the fact not proved should be established by irrefragable inference. It is enough, if its existence be highly probable, particularly if the opposite party has it in his power to rebut it by evidence, and yet offers none; for then we have something like an admission that the presumption is just." (1820) 4 B & Ald, at p 122 (106 ER, at p 883) (at p321)
17. As Wigmore points out (Evidence 3rd ed. (1940) vol. 2, ss. 289, 290, pp. 171-180), exactly the same principles apply when a party, who is capable of testifying, fails to give evidence as in a case where any other available witness is not called. Unless a party's failure to give evidence be explained, it may lead rationally to an inference that his evidence would not help his case. These considerations have been discussed or applied in the following among other cases in Australian Courts: Morgan v. Babcock & Wilcox Ltd. [1929] HCA 25; (1929) 43 CLR 163, at p 178 , per Isaacs J. [1929] HCA 25; (1929) 43 CLR 163, at p 178 ; Insurance Commissioner v. Joyce [1948] HCA 17; (1948) 77 CLR 39 ; per Rich J. (1948) 77 CLR, at p 49 and per Dixon J. (1948) 77 CLR, at p 61 ; May v. O'Sullivan [1955] HCA 38; (1955) 92 CLR 654 ; Black v. Tung (1953) VLR, at p 634 ; Waddell v. Ware (1957) VLR 43 and Ex parte Jones; Re Macreadie (1957) 75 WN (NSW) 136 . Clearly, it is not necessary that any particular form of words be used in explaining all this to a jury. Every case is different; and standardised directions are not necessary. (at p322)
18. The learned judge more than once told the jury that the responsibility for the decision that Hegedus would not give evidence lay with his counsel. This was well enough; but the way in which he emphasised it could lead the jury to think that Hegedus's silence somehow lost significance because it was on his counsel's advice that he was silent. It did not. The true inference in the circumstances was that counsel, on his instructions, thought the defendants were more likely to succeed if he kept Hegedus out of the box. One aspect of the matter does, however, need further consideration. Obviously, just as no inference can be drawn from the defendant's silence until facts be proved requiring an answer, so no inference can be drawn from his silence if he be precluded from answering. Mr. Ross, naturally and properly, contended at the conclusion of the plaintiff's case that there was no case to answer. The judge took a different view; and, as I have said, in my opinion he was right. But if, as has been suggested, the consequence of seeking a ruling that there is no case to answer be to prevent the defendant calling evidence if the judge refuses so to rule, then a difficulty arises. For what, it might be argued, can silence mean, if speech would not be heard? (at p322)
19. It has long been generally accepted in New South Wales that a party who, at any stage of a trial, seeks a verdict by direction thereby precludes himself, if his application be refused, from calling evidence (if he has not gone into evidence) or from calling further evidence (if he has already gone into evidence), unless, for some special reason, he is allowed to re-open the case. This, it seems, is because what a party seeking a verdict by direction asks is that the case should go at once to the jury, and that the judge should thereupon, and by way of, or in lieu of a summing-up, direct them how they should find. Counsel who takes this course thus treats the evidence as complete; for not until the evidence be closed can the case be submitted to the jury. (at p322)
20. But a defendant's counsel who considers that the plaintiff has failed to adduce evidence on which the jury could properly find a verdict for the plaintiff has an alternative course. He can apply for a non-suit. One result of the difference between an application for a verdict by direction and one for a non-suit is that, if the judge refuses the former, no further evidence can be called; if he refuses the latter, the defendant may then go into evidence. This distinction, important in practice, is but the consequence of a fundamental difference. If a defendant applies for a non-suit, he asks that the case be withdrawn from the jury before they give a verdict. If he asks for a verdict by direction, he asks that the case be submitted to the jury and that they be directed to give a verdict. In the former case, he seeks, without verdict, a judgment which will determine the action in his favour but will not prevent the plaintiff bringing another action for the same cause. In the latter case, he seeks a verdict to found a judgment which will bar the plaintiff for ever in respect of that cause of action. (at p323)
21. It seems possible that the conduct of this trial may have been affected by observations in English decisions which relate to the practice prevailing in England since the Judicature Act and since the abolition there of non-suits. But these decisions, to be mentioned later, ought not to govern actions at nisi prius under the Common Law Procedure Act 1899 of New South Wales; for "the usages and practices of the common law should still be observed unless they have been destroyed or modified by the judicature system and its rules" (per Rich J. in Phillips v. Ellinson Brothers Pty. Ltd. [1941] HCA 35; (1941) 65 CLR 221, at p 229 ). Some reference to history is necessary. (at p323)
22. Non-suit began as a method by which a plaintiff might discontinue his action and still be at liberty to bring another for the same cause. The name discloses its origin. The plaintiff did not follow up his cause: non sequitur clamorem suum. "'Non-suit' is a renunciation of the suit by the plaintiff or demandant when the matter is so far proceeded in as the jury is ready at the bar to deliver their verdict" (Cowell's Interpreter; see also Termes de la Ley). A plaintiff thus abandoning his claim before verdict escaped amercement, the pecuniary penalty which, in very early times, was imposed upon an unsuccessful plaintiff for making a false claim. He got another advantage too; he was not estopped from prosecuting his claim again in another action. A non-suit thus differed from a retraxit. A plaintiff who felt his prospects of success were slight, or who had been unable to procure some essential evidence, or who feared the effect in the court in banc of some formal defect, might therefore find it desirable to apply for a non-suit. At common law he was at first quite free then to begin again; but later, as a result of 23 Hen. VIII c. 15, 8 Eliz. I c. 2, and 4 Jac. I c. 23, he had first to pay the defendant's costs of the action in which he had had the non-suit. In very early times a plaintiff might even have a non-suit after a verdict in his favour when he was not satisfied with the damages; but after 2 Hen. IV c. 27 there could be no non-suit after verdict (1668) 1 Wms Saund 195 (85 ER 196) ; Keat v. Barker (1696) 5 Mod 208 (87 ER 613) ). The right of a plaintiff to have a non-suit at any time before verdict was ultimately restricted in New South Wales by r. 93 (3) (made in November 1930) of the Regulae Generales of the Supreme Court. Thereafter a plaintiff could not be non-suited on his own application without the leave of the court or a judge. The Regulae Generales have been rescinded and replaced by new rules which came into operation on 1st January 1953. Order XIV, r. 3, now, in substance, replaces the old r. 93. But, the reference to non-suit has been dropped, and only discontinuance and withdrawal of the record are now mentioned as requiring the consent of the court or a judge. What is the effect of this is not clear; for non-suits are still part of the procedural law of New South Wales, being mentioned in O. XVIII, rr. 8, 12 (incongruously under the title "Proceedings after Verdict"), and provided for in the Supreme Court Procedure Act 1900-1957, s. 7. In my opinion the judges could not, by rule, deprive a subject of the right to put an end to his action before judgment and bring another action for the same cause; for this right is part of the common law and not merely a matter of practice (Outhwaite v. Hudson (1852) 7 Ex 380 (155 ER 995) ). But O. XIV, rr. 1-3 may be intended to provide exhaustively for the means by which a plaintiff may do this (Fox v. Star Newspaper Company (1898) 1 QB 636; (1900) AC 19 , cf. Rich v. Strelitz Bros. & Moss [1906] HCA 68; (1906) 4 CLR 601, at p 611 ). Whether or not, as the result or these provisions, non-suits at the instance of the plaintiff be abolished, non-suits of the plaintiff at the instance of the defendant, which evolved from them, remain, And to these I now turn. (at p324)
23. Although non-suit began as a procedure whereby a plaintiff could discontinue his action, it was, at an early date, adapted to serve also as a means whereby a defendant could, when the plaintiff had failed to bring evidence of a matter essential to his case, have the case withdrawn from the jury. When a plaintiff was non-suited at the instance of the defendant he was not, in theory, non-suited against his will; for the judge could not compel a plaintiff to submit to be non-suited. A judgment of non-suit retained too much of its origins for that. Therefore, when the judge non-suited the plaintiff, what historically he did was to recommend him to acquiesce in a non-suit because, as a matter of law, he could not, as the evidence stood, succeed in his action; and the plaintiff then, out of deference to the judge, as it was said, assented to a non-suit. But, because a plaintiff could not be non-suited at the trial against his will, the Court in banc could not, if it set aside a jury's verdict, enter either a non-suit or a different verdict unless empowered to do so by leave reserved at the trial. It could only order a new trial. This limitation was removed in New South Wales by the Supreme Court Procedure Act 1900. (See Watkins v. Towers (1788) 2 TR 275 (100 ER 150) ; Heydon v. Lillis [1907] HCA 73; (1907) 4 CLR 1223, at p 1227 ; Shepherd v. Felt and Textiles of Australia Ltd. [1931] HCA 21; (1931) 45 CLR 359, at p 379 and Hocking v. Bell [1945] HCA 16; (1945) 71 CLR 430, at p 466 ). Nevertheless a plaintiff non-suited at the instance of the defendant is, in effect, compulsorily non-suited; and therefore he was always at liberty to move the court in banc that the non-suit be set aside (Alexander v. Barker (1831) 2 C & J 133, at p 136 (149 ER 56, at p 57) ; Ward v. Mason (1821) 9 Price 291 (147 ER 96) ; Sweet v. Lee (1841) 3 Man & G 452 (133 ER 1220) ; Rolfe v. Lea (1895) 16 LR (NSW) 168 and Dowling v. Farrell (1903) 3 SR (NSW) 42; 20 WN 27 ). But a plaintiff who was thus non-suited could not appeal to a court of error. If he wished to appeal to a court of error instead of applying for a new trial to the court in banc, his proper course was to decline to be non-suited: Corsar v. Reed (1851) 17 QB 540 (117 ER 1388) . If, however, a non-suit be affirmed or entered by the Full Court, it is a "final judgment", within the meaning of that term in the Judiciary Act for the purposes of an appeal to this Court (Coroneo v. Kurri Kurri and South Maitland Amusement Co. Ltd. [1934] HCA 21; (1934) 51 CLR 328, at p 334 ). But, of course, a plaintiff who himself asked to be non-suited could not thereafter have the non-suit set aside (Simpson v. Clayton (1836) 2 Bing (NC) 467 (132 ER 183) ; Wilkinson v. Whalley (1843) 5 Man & G 590 (134 ER 696) ; cf. Vacher v. Cocks (1830) 1 B & Ad 145 (109 ER 741) ). If, when a defendant's counsel asked for a non-suit, the plaintiff's counsel contended that there was evidence sufficient to go to the jury, he was ordinarily taken to have assented to be non-suited if the judge should take the opposite view and think a non-suit would be proper. As Darley C.J. said in Dashborough v. Perpetual Trustee Co. (1896) 13 WN (NSW) 92 : "a plaintiff cannot argue a point and then refuse to abide by the Judge's decision. He may, in the first instance, before argument, say, 'I refuse to be nonsuited', but he cannot lie by, and, after the matter has been argued, refuse to abide by the decision if it is against him. A plaintiff cannot be nonsuited without his consent, but he may be nonsuited against his will after having submitted the point to the Judge for decision, and argued it. He is then too late to refuse" (1896) 13 WN (NSW) 92 . Whether in New South Wales to-day a plaintiff can still refuse to be non-suited I shall discuss later. Here it is only necessary to say that, though a plaintiff could refuse to be non-suited, he always did so at the risk that the judge might of his own motion direct a verdict for the defendant. This is very clearly stated in Smith's Elementary View of an Action at Law, 8th ed. (1863) p. 150. "it is very dangerous to resist the judge when he is of opinion that there ought to be a nonsuit; for, if the plaintiff disregard his intimation, he is certain to direct the jury to find a verdict for the defendant; and though it is true that the plaintiff, whether he submit to a nonsuit or have a verdict found against him, must equally pay costs to the defendant, still there is this great practical difference between a verdict for the defendant and a nonsuit, namely, that the former has in general the effect of for ever barring and determining his right of action, whereas, after the latter, he may bring a fresh action, and, if he come prepared with better evidence, may perhaps succeed in it." (at p326)
24. Originally, by common law, a plaintiff was non-suited if he were absent from the court on any occasion when his presence could be demanded (Co. Litt. 138 b, 139 a). The most usual occasion of a non-suit in early times was when the plaintiff deliberately absented himself when the jury were about to give their verdict. The plaintiff was originally required to be present then, to be amerced if the verdict were adverse. By staying away he demonstrated that he had abandoned his action; a non-suit was thereupon entered; and the jury were discharged without giving a verdict. Until the early years of the nineteenth century it was still common practice in England, when the jury announced they were agreed upon their verdict, for the court officer to call the plaintiff by name to hear it (Murphy v. Donlan and Marshall (1826) 5 B & C 178 (108 ER 66) ). If he did not come, he was non-suited. A relic of this continued until about the time of the Judicature Act. If a plaintiff wished to be non-suited, he would leave the court, his counsel would inform the judge, and the plaintiff's name was then called three times; "John Smith come into court or you will be nonsuited"; when he did not respond he was non-suited (see Encyclopedia of the Laws of England (1898) under Nonsuit). In the case of non-suit on the application of the defendant, the formality of calling the plaintiff's name also took place; and a judge would intimate that he thought there should be a non-suit by saying that the plaintiff should be called, an expression which in old reports does not mean called to give evidence - indeed, before 14 & 15 Vict. c. 99, the parties were debarred completely from giving evidence. (at p327)
25. The Chief Justice has pointed out to me that in the notable case of MacBeath v. Haldimand (1786) 1 TR 172 (99 ER 1036) in 1786 Buller J. had been of opinion at the trial that the plaintiff ought to be non-suited, "But the plaintiff's counsel appearing for their client when he was called, he left the question to the jury, telling them they were bound to find for the defendant in point of law." (1786) 1 TR, at p 176 (99 ER, at p 1038) The following passages from other cases also illustrate the attitude of judges when the plaintiff refused to be non-suited. In Watkins v. Towers (1788) 2 TR 275 (100 ER 150) in 1788: "Several instances have happened, in which the plaintiff has insisted on his right to appear at the trial when the Judge has been under a necessity of directing the jury to find a verdict against him" (1788) 2 TR, at p 277 (100 ER, at p 151) . In 1821 in Ward v. Mason (1821) 9 Price 291 (147 ER 96) Garrow B. - who dissented there and in Elworthy v. Bird (1824) 13 Price 222 (147 ER 972) because he was inclined to restrict plaintiffs narrowly in refusing to be non-suited - referred to current practice: ". . . how very many times have we all witnessed, that after a Plaintiff's case has been gone through, the Judge has suggested to his Counsel, that he had better be called. Sometimes it has happened, undoubtedly, that the Plaintiff refuses to be nonsuited, and then the case goes to the Jury, with the disadvantage of the Judge's decided opinion against the merits of it." (1821) 9 Price, at p 296 (147 ER, at p 98) In Minchin v. Clement (1818) 1 B & Ald 252 (106 ER 93) , Lord Ellenborough in 1818 after referring to a plaintiff's option to refuse a non-suit said: ". . . if at the trial he had refused to be nonsuited, and the Judge had then directed the jury to find a verdict against him . . . " (1818) 1 B & Ald 252 (106 ER 93) . The practice is fully explained in Corsar v. Reed (1851) 17 QB 540 (117 ER 1388) . And most definite of all, in Stancliffe v. Clarke (1852) 7 Ex 439 (155 ER 1020) , in 1852, Parke B. said: ". . . it is optional with the plaintiff whether he will submit to be nonsuited; and in the event of his refusing, if there is no case to warrant a verdict for him, it is the duty of the judge to direct the jury to find for the defendant" (1852) 7 Ex, at p 446 (155 ER, at p 1024) . And Platt B. said: "The meaning of a nonsuit is, that the plaintiff will not stay in Court to hear the verdict of the jury. But if he chooses to take their opinion, and the facts shew that he has no cause of action, it is the duty of the judge to direct the jury to find for the defendant" (1852) 7 Ex, at p 451 (155 ER, at p 1026) . (at p328)
26. The form of the postea and judgment in non-suit recounted its history; they ran: "The jurors having withdrawn from the bar to consider of the verdict to be by them given; after they had considered thereof and agreed among themselves, they returned to the bar to give their verdict; whereupon the plaintiff, being solemnly called, comes not, nor doth he further prosecute his suit against the defendant. Therefore it is considered that the plaintiff take nothing by his said writ, and that the defendant do go thereof without day etc.: And it is further considered that the defendant do recover against the plaintiff pound - for his costs of defence". This form, which is old (Murphy v. Donlan & Marshall (1826) 5 B & C 178 (108 ER 66) , survived the Common Law Procedure Acts (see the Schedule to the Hilary Rules of 1853 and Chitty's Forms, 9th ed. (1862) pp. 245, 259, 260.) (at p328)
27. It is worth noting that the rule that the Crown cannot be nonsuited is attributed to the fiction that the King, as the fountain of justice, is in court and cannot withdraw. "The King's Majesty cannot be nonsuit, because in judgment of law he is ever present in all his Courts" (Co. Litt. 139). (at p328)
28. There has been a suggestion recently in New South Wales that by refusing to submit to a non-suit a plaintiff can put the defendant in the position of either asking for a verdict by direction (and thereby precluding himself from calling evidence if the judge should be against him on the point) or foregoing his contention that there is no case to answer. I know of no warrant for this. It seems to be not only opposed to former practice, but unsound in principle. A plaintiff who refuses a non-suit thereby insists on having the jury's verdict. The judge, however, remains in control of the trial. If he thinks a non-suit would have been proper, he has only to tell the plaintiff's counsel that if he insists on the jury giving a verdict, he will direct them to find for the defendant. Alternatively, if he would have refused to non-suit, he need only say that he will sum up and take the jury's verdict in due course. In that event the defendant can then, if he wishes, go into evidence, for he did not close his case; he did not ask for a verdict; he asked for a non-suit instead of a verdict. Had the judge because of the plaintiff's attitude directed a verdict instead of non-suiting, he would have done so of his own motion. Indeed a judge probably can non-suit without being asked to do so; although such a course might often be unwise. "In the abstract" said Lord Atkinson in Banbury v. Bank of Montreal (1918) AC 626 , "I incline to the opinion that a requisition to a judge to enter a nonsuit or direct a verdict for a defendant is not a condition precedent which must be fulfilled in order to entitle him to do either" (1918) AC, at p 674 . (at p329)
29. Order XVII, r. 6 of the Supreme Court Rules does not affect a defendant's right to apply for a non-suit. It requires that, at the close of the case of the party who begins, the opponent or his counsel shall state whether or not he intends to call evidence. It is apparent from the context that this statement is required for the purpose of determining the order of counsel's addresses. It has no relation to an application for a non-suit, which must ordinarily be made and disposed of before the question whether the defendant will adduce evidence can arise (Roberts v. Croft & Miller (1836) 7 Car & P 376 (173 ER 167) ), although sometimes a non-suit has been granted on the defendant's application after evidence called by him (Davis v. Hardy (1827) 6 B & C 225 (108 ER 436) and Giblin v. McMullen (1868) LR 2 PC 317, at p 339 ). If, after the trial judge has rejected a defendant's application that he non-suit the plaintiff, the defendant goes into evidence, and in his case incidentally cures the deficiency of the plaintiff's case, he cannot by motion in banc or on appeal have a non-suit entered; for the court will look at the whole of the evidence (Allen v. Cary (1857) 7 El & Bl 463 (119 ER 1318) , and Ostermeyer v. Harrold (1895) 12 WN (NSW) 38 ). (at p329)
30. In my view, modifications in New South Wales of the common law on this topic have certainly not been to the disadvantage of a defendant who applies for a non-suit. Indeed it is clearly arguable, although I do not find it necessary to express any conclusion on the matter, that the right of a plaintiff to refuse a non-suit has now gone leaving, however, unimpaired his liability to be non-suited in a proper case. This is because a plaintiff's option to refuse to be non-suited was a correlative of the origin of non-suit as a plaintiff's right. But, as mentioned above, the effect since 1953 of O. XIV, r. 3, in relation to a plaintiff's right to a non-suit is uncertain; and, as far as I am aware, has not been judicially determined. Moreover, since 1907 a non-suit might be entered by the Full Court against the will of a plaintiff (Supreme Court Procedure Act, s. 7). And, finally, the present form of a judgment of non-suit in New South Wales, which is prescribed by O. XVIII, r. 8, and which may be contrasted with the older form set out above, runs: "whereas on the . . . day of . . . this action was tried before his Honour Mr. Justice . . . and a jury of four persons and his Honour directed that a non-suit be entered: Therefore it is adjudged that the abovenamed plaintiff recover nothing by his writ and that the said defendant recover against the plaintiff his costs of defence". This form is significant. In accordance with the reality of the position, it treats a non-suit as suffered by the plaintiff at the direction of the judge, not as, even formally, sought or assented to by the plaintiff. The wording is perhaps somewhat anomalous in describing an action which came on for trial before a jury but was withdrawn from the jury as an action "tried before a jury"; but the effect is clear. Assuming, however, that in New South Wales, a plaintiff is still at liberty to refuse to be non-suited and to insist that the judge in lieu of a non-suit direct a verdict against him, I cannot see what advantage he can now get by this course. The position was very different before the present system of appeals, before bills of exceptions became obsolete and while, apart from reservations by consent, the court in banc could do no more than grant a new trial. (at p330)
31. In England a radical change occurred after the Judicature Acts. The Act of 1873 did not abolish non-suits but the Rules of 1875 provided that a judgment of non-suit should, unless the judge otherwise directed, have the same effect as a judgment on the merits for the defendant. And in the Rules of 1883 the word "non-suit" did not appear. Non-suits then ceased to exist, being "no longer capable of being reconciled with the new procedure either in form or substance" (per Earl of Halsbury L. C. in Fox v. Star Newspaper Co. Ltd. (1900) AC, at p 20 ). That decision, however, dealt with non-suit as a method by which a plaintiff could discontinue. The word continued to be used to describe the action of a judge withdrawing a case from the jury and entering judgment for the defendant. But, since there was no provision for a judgment of non-suit, the old non-suit principles ceased to apply; and a lack of any uniform practice became manifest. The Encyclopedia of the Laws of England (1898) states under Nonsuit: "the proper time for the defendant's counsel to submit to the judge that there is no case for him to answer, is at the close of the plaintiff's case. Some judges, however, decline to allow the question to be argued at this stage of the action, unless defendant's counsel at once announces that he intends to call no witnesses." This has come to be the accepted rule (Parry v. Aluminium Corporation Ltd. (1940) 162 LT 236 ; Alexander v. Rayson (1936) 1 KB 169 and Laurie v. Raglan Building Co. (1942) 1 KB 152, at p 155 ). But the remarks in these cases relate principally to trials by a judge without a jury, as was recognised in Alexander v. Rayson (1936) 1 KB, at p 178 . When there is no jury, the proposition "no case to answer" may obviously mean far more than, "is there evidence on which a jury could find for the plaintiff?" It may mean, "would you, the judge, on the evidence given, find for the plaintiff?" (at p331)
32. In Victoria the adoption of the judicature system led, as in England, to the disappearance of the old law as to non-suits (Rees v. Duncan (1900) 25 VLR 520 ). The Chief Justice has brought to my notice the Victorian decisions on the practice there when an application is made that there is no case to answer. My brother Fullagar, when he was a member of the Supreme Court of Victoria, surveyed the matter fully in The Union Bank of Australia Ltd. v. Puddy (1949) VLR 242 . He concluded that it had become an established but not inflexible rule of practice, in civil actions in Victoria, that a decision would not be given on a submission that there is no case to answer unless the party making the submission announced that he did not intend to call evidence; and that that rule of practice applies whether the trial be by judge and jury or judge alone. The discretion which, in Victoria, the judges have exercised on this matter has led to fluctuations in practice (The New Zealand Loan and Mercantile Agency Co. Ltd. v. Smith (1893) 15 ALT 92 ; Hannah v. Scott (1928) VLR 168 ; Rees v. Duncan (1900) 25 VLR 520 ; Humphrey v. Collier (1946) VLR 391 ; Sampson v. Edwards (1949) VLR 6 ; Jones v. Peters (1948) VLR 331 and The Union Bank of Australia Ltd. v. Puddy (1949) VLR 242 ). But in New South Wales, where in trials at nisi prius the clear distinction between non-suit and verdict by direction remains, there is less need for any flexibility in practice. The same questions do not or ought not to arise there if the established usages and rules of common law procedure be followed without admixture of modern English practice developed under a different system. The practice concerning non-suits on the application of a defendant is, in my opinion, too firmly rooted in the common law and in old statutes to be disregarded in New South Wales (see Supreme Court and Circuit Courts Act 1900, s. 16). The practice of the Supreme Court is a matter solely for that court. Whether the judges collectively could by rule abrogate procedures basic to the Common Law Procedure Act and the Supreme Court Procedure Act seems very doubtful (cf. Poyser v. Minors (1881) 7 QBD 329, at p 332 ), and they have not sought to do so. (at p331)
33. I have written this lengthy excursus to make it clear that the proper inference to be drawn from the absence of Hegedus from the witness-box is not to be cut down because his counsel by asking for a verdict by direction could not thereafter call him as a witness. Had counsel wished to preserve a right to call evidence if the judge should rule that there was a case to answer, he could have asked for a non-suit. The idea that this course was not open is, I have sought to show, based on a misconception. Moreover, the words which counsel used when he applied for a verdict show that he accepted the consequences of the course he took and knowingly elected not to call evidence. The jury, when they asked, should therefore have been told fully of the inference they could draw from the silence of Hegedus whom counsel had deliberately chosen not to call. (at p332)
34. I would allow the appeal. (at p332)