Adeels Palace Pty Ltd v Moubarak.doc; Adeels Palace Pty Ltd v Najem

[2009] HCATrans 179

[2009] HCATrans 179

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S69 of 2009

B e t w e e n -

ADEELS PALACE PTY LTD

Applicant

and

ANTHONY MOUBARAK

Respondent

Office of the Registry
  Sydney  No S70 of 2009

B e t w e e n -

ADEELS PALACE PTY LTD

Applicant

and

ANTOIN FAYEZ BOU NAJEM

Respondent

Applications for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 31 JULY 2009, AT 11.24 AM

Copyright in the High Court of Australia

__________________

MR J.E. SEXTON, SC:   May it please the Court, I appear with my learned friend, MR M.J. GOLLAN, for the applicant in both matters.  (instructed by Lee & Lyons Lawyers)

MR D.R CAMPBELL, SC:   May it please the Court, I appear with my learned friend, MR D.C. MORGAN, on behalf of the respondent in the first matter.  (instructed by Leitch Hasson Dent Solicitors)

MR S.G. CAMPBELL, SC:   May it please the Court, I appear with my learned friend, MR J.W. CATSANOS, for the respondent in the second matter.  (instructed by Sanford Legal)

GUMMOW J:   Well, as between you, who should go first?

MR D.R. CAMPBELL:   The stance taken by your Honours, I was trying to suggest my learned friend ought to go first.

GUMMOW J:   Yes, Mr Campbell.

MR D.R. CAMPBELL:   If I could put it succinctly, your Honours, the question which is obviously thrown up in this application concerns the matters that were raised by his Honour Justice Hayne at paragraph 117 of Modbury, the issue in this case being not the condition of the land but the foreseeability of harm to persons who the occupier invited onto the land for the purposes of his business coupled with the control they had over those who were there. 

The factual situation of this case, however, we would respectfully submit, is one which is sufficiently special and individualised that would not justify a substantive hearing before the Court.  That is because, if I could ask the Court to go to paragraph 40 of the judgment of his Honour Justice Giles at 73 of the application book, on the facts of this case it was asserted that the applicant had security guards, namely, at least two security guards were retained on the evening.  It was asserted that their duties were to the front door, to eject perpetrators and to ensure that ejected persons were refused entry to the defendant’s premises:

Generally speaking, a patron ejected from the premises was not allowed to re‑enter.

The finding of fact as found by the trial judge and set out at paragraph 41 of the Court of Appeal’s judgment was that at the relevant time there were no security guards present and that finding was not challenged on appeal.  This becomes important because the facts that led up to the incident that gave rise to the injuries sustained by the two respondents were, in short, as follows. 

Firstly, each of them paid an entry and $60 fee in order to attend the nightclub.  That circumstance is set out at application book 65, lines 35 to 55.  Secondly, the premises were unusual in that they only had one means of access from the street, up a set of stairs to a landing, then up another set of stairs into an area which was regulated by doors, inside which the activities on this New Year’s Eve were engaged in by some 400 people.  The dispute that started was at about 2.30 am on the morning of 1 January.

GUMMOW J:   You can take it we know all these facts.

MR D.R. CAMPBELL:   The point that I am coming to is this, your Honour.  The dispute escalated. 

GUMMOW J:   We know that too.

MR D.R. CAMPBELL:   The assailant then left ‑ ‑ ‑

GUMMOW J:   We know that too.

MR D.R. CAMPBELL:   ‑ ‑ ‑ with a bloody face and he returned ‑ ‑ ‑

GUMMOW J:   The question you have got to fact up to perhaps is paragraph 107 on page 104.  That seems to be a critical step in the Court of Appeal’s reasoning, does it not?  That postulated result?

MR D.R. CAMPBELL:   Yes, your Honour. 

GUMMOW J:   Namely, the assailant would not have got back in.

MR D.R. CAMPBELL:   Yes, your Honour, and there is a finding of fact by the trial judge that he would not.

GUMMOW J:   Where do we see that?

MR D.R. CAMPBELL:   I am sorry, your Honour.  It is under the discussion of causation.  At page 103 is the relevant finding – paragraph 60 at the foot of the page:

The critical matter, in the judge’s reasoning, was that on the probabilities Mr Abbas would not have been permitted ‑ ‑ ‑

GUMMOW J:   Whereabouts in the judge’s reasons, not in the extract in the Court of Appeal?

MR D.R. CAMPBELL:   I am sorry, page 27 is the primary judge’s reasons.  He deals with the question of causation and he says at line 43 on page 28:

there was no evidence to support a conclusion that, had there been proper arrangements for security including access control, Mr Abbas would in any event have entered the premises successfully to conduct further violence.

He then goes on to find at paragraph 66 of his judgment on page 29:

I therefore find on the balance of probabilities that the failure of the Defendant to have an adequate or any security system . . . materially contributed to injuries suffered by both Plaintiffs . . . 

67.      I have reached the conclusion –

the defendants owe a duty, they breached and over the page that ultimately found negligence as the consequence.  Then his Honour Justice Giles picks

that up, as I said, at page 103 and then expresses his conclusion at page 105 in paragraph 111.

GUMMOW J:   What do you say about Mr Sexton’s point at page 151, paragraph 43, namely, that there is an assumption in all of this and the assumption is that:

the gunman would have acted rationally when confronted by unarmed security staff by obeying a command or request that he not re‑enter the premises.

MR D.R. CAMPBELL:   Your Honour, there was expert evidence as to the question, which was accepted, that the function of security was to do just that. 

HAYNE J:   I am sure the function was, but ‑ ‑ ‑

MR D.R. CAMPBELL:   It was quintessentially a question of fact which was resolved adversely to the respondent at trial, we would respectfully submit.  Two persons arming the door downstairs would have had either, what we would submit, the consequence that the person would not try to re‑enter or, secondly, as was said, the probability that he would have either stopped them or been able to search them before they came in.  But it certainly, we respectfully would submit, is not a circumstance which would justify a consideration of this matter at this stage.

So far as the other issues are concerned, your Honours, we would respectfully submit that the object of the having of the security, which they ordinarily had, was to do just that, to deter people from seeking to re‑enter into the premises.  Just because somebody decides to have a concealed weapon on them to try and return does not mean that they will be successful in endeavouring to do so.  Indeed, knowing.....he may not even have attempted to do so.  We would respectfully submit that is a factual matter that would not warrant attention by this Court, in any event. 

If your Honours wish me to deal with any of the other aspects of the matter, I could move on to those as well.  We would respectfully submit that, given the special factual circumstances that I have articulated, this is not a case in which the issue of duty would need to be reconsidered.  Those would be the matters that we would put at this stage, your Honours.

MR S.G. CAMPBELL:   Thank you, your Honours.  The questions that your Honours have put to my learned friend, Mr Campbell, one can assume that the real concern that your Honours have in relation to the decisions below in this case is the question of causation, as identified by your Honour the presiding Justice’s question.  Your Honours, can I put this in relation to that, that assuming a duty of the type found in this case, it cannot, with respect, be the law that a plaintiff must always fail if the assailant concerned is armed with a gun.

HAYNE J:   Well, the duty is articulated at paragraph 64, page 86, is it?

MR S.G. CAMPBELL:   Yes, your Honour.

HAYNE J:   That is a duty:

not only in relation to the physical state or condition of the premises, but also in relation to the criminal conduct of another patron or other patrons ‑ ‑ ‑

MR S.G. CAMPBELL:   It may extend to that, your Honour, and can I answer your Honour’s question about the nature of the duty because, in our submission, that is critical to answering the concern about causation that the Court has expressed today.  The real reason why we submit, your Honours, that this case does not raise the special leave question, does not raise the question that your Honour Justice Hayne expressly reserved in Modbury, is because the critical factor that was absent in Modbury as bespeaking a duty of care in the law of negligence is, in fact, present in cases of this kind.  That critical factor which determined that the general rule applied and that no duty was imputed in that case was the absence of a capacity of the occupier in Modbury to control the conduct of the assailants.

Now, in a case in what we have called, your Honours, the club or hotel category, in a case like this that factor is not only present, because of the nature of the activities carried on in the premises, because of the nature of the premises, but also because of the statutory obligations which the occupiers of such premises are subject to throughout the Commonwealth.  Those factors all bespeak, your Honours, the presence of the factor which was the critical factor, as I have said, absent in Modbury.

GUMMOW J:   What do you say about the formulation of duty by Justice Campbell at page 112.

MR S.G. CAMPBELL:   Yes, your Honour.  May I just refresh my memory, your Honour?  Your Honour, Justice Campbell’s formulation of duty, we respectfully submit, is – and your Honour is referring to paragraph 139, I apprehend – (a) entirely consistent with what Justice Giles said in his judgment, that is to say, that foreseeability and – and one must emphasise the “and” – the capacity of the defendant to control the conduct is ‑ ‑ ‑

GUMMOW J:   It is really the last sentence, perhaps, in paragraph 143.

MR S.G. CAMPBELL:   Thank you, your Honour.  Well, that was an observation no doubt of a factual kind, your Honour, that was relevant in a sense in this way because, unlike the circumstances of the case in Modbury where one was dealing with an open car park which basically any member of the public might resort to for any number of purposes, most licensed premises are within a confined space which it is possible to control and which the occupier or the licensee as the case may be is under an obligation to control imposed by statute. 

Even though the question of whether a duty exists and if it does exist, what is its nature, scope of content is always a question of law.  Sometimes in looking at whether that duty arises in a particular case one has to look carefully at what the particular facts are.  If the case has an element of occupier’s duty about it or occupier’s liability about it, then it is important, we respectfully submit, to look at the nature of the premises; not only are there residential or commercial, but also what are they like?

That goes to, your Honours, this capacity to control not only entry and egress to and from the premises, but also to control what happens on the premises and, in the particular circumstances of this case, whether or not it would have been – dealing with the causation issue perhaps, your Honours, but whether or not it would have been possible or probable that two security guards, as were normally appointed to guard the door, would have stopped this particular assailant gaining entry to the premises.

Now, your Honours, my learned friend, Mr Sexton, has got, of course, Modbury (2000) 205 CLR 254 on his list of authorities and I think your Honours have it with you in Court. Could I just give your Honours a couple of references to short passages in Modbury to make good the submission I am making that it is the presence in this case of the capacity to control the conduct of others on the premises which makes all the difference.  If I could take your Honours – and may I do it by reference to the paragraphs – to what Chief Justice Gleeson had to say, your Honours, at paragraphs 17 to 19. 

Your Honours, I do not propose to read all of it to you, but can I just highlight some passages, some phrases which the Chief Justice used in this passage and then I would propose, your Honours, to go to some of the things that your Honour Justice Hayne said, from about paragraph 107 onwards.  If your Honours have paragraph 17 there, your Honours will see, if we can go to about two‑thirds of the way down, a sentence commencing at the second word in the line, your Honours, the second word is “it”, “It must have been a duty” – this is a posited duty, or the duty posited by the first respondent in that case:

It must have been a duty, as occupier of land, to take reasonable care to protect people in the position of the first respondent ‑ ‑ ‑

GUMMOW J:   We can read that, but I think you better attend, in particular, to paragraph 42 and what Justice Gaudron said.

MR S.G. CAMPBELL:   Thank you, your Honours.  Could I say this that the answer to those matters raised by her Honour Justice Gaudron is the type of considerations, your Honours, we see referred to in the judgment of Justice Giles in the New South Wales Court of Appeal in this case and also that we see referred to in the judgment of the Victorian Court of Appeal in the Club Italia Case.  That is to say that another factor or a factor which is relevant to the capacity in cases like this of the occupier to control the conduct of others, your Honours, is the fact that the environment in which violent, quarrelsome, intoxicated or disorderly conduct might occur is created by the occupier of the premises who, for the purposes of his, her or its business attracts people to places where alcohol is to be sold and where human experience, your Honours, if I may put the submission, suggest that trouble may often erupt.  It is that matter which is, with respect, the matter which is, of course, made clear by the various statutory provisions to which we have made reference in our summary of argument.

Your Honours, could I go back to where the dialogue started and that is to say the question that the Court asked about causation.  Now, we have dealt with this, your Honours, at application book 161 in paragraph 33 and we have dealt with it, your Honours – and I did not go what Justice Hayne said, but we have referred to it in the written submissions, but what we have taken here, as your Honours will know and can see, is what Chief Justice Gleeson said about the causation issue in cases of negligence. 

Could I add too, your Honours, and we have taken from his Honour’s judgment at paragraph 39 and the answer to the question, whether upon that hypothesis the appellant’s omission was the cause of the first respondent’s injuries depends upon the view that is taken of the appellant’s responsibilities.

Once you come to the conclusion, if you do, that there is a duty of care in the case of the occupier of licensed premises to exercise reasonable care to protect one patron from the violence of another – not an indeterminate class, your Honours – as amongst patrons, and you posit that hypothetical question in that context, then the finding that security guards would have, as a matter of fact, stopped this assailant from re‑entering becomes one open, with respect, to the tribunal of fact. 

Could I say finally, your Honours, in relation to the matter that if your Honours were disposed to grant special leave in this case,

your Honours will be aware that there is, of course, a notice of contention which remains outstanding in relation to the contractual entrant point and the terms implied under section 74 of the Trade Practices Act.  Furthermore, your Honours, we would wish to ‑ ‑ ‑

GUMMOW J:   But they were not dealt with by the Court of Appeal, were they?

MR S.G. CAMPBELL:   They were not dealt with, your Honour, because it was unnecessary to deal with them in the findings of ‑ ‑ ‑

GUMMOW J:   Well, it was necessary.

MR S.G. CAMPBELL:   I beg your Honour’s pardon.

GUMMOW J:   .....time out of mind.

MR S.G. CAMPBELL:   I do beg your Honour’s pardon.  They were not dealt with in ‑ ‑ ‑

GUMMOW J:   We would not then be faced with what we may now be faced with. 

MR S.G. CAMPBELL:   It is still there, your Honour.  Could I say, your Honours, given that this matter might be considered by the High Court of Australia, we would wish to raise in a notice of contention the question addressed by way of obiter by the Victorian Court of Appeal – and I see the light, your Honours – about whether this is a special relationship.  May it please the Court.

GUMMOW J:   We do not need to call on you, Mr Sexton.  There will be grants of special leave in these matters and the appeals obviously will be heard together.  The Court has listed for hearing on 1 September 2009 an appeal from the Supreme Court of Tasmania in a matter of CAL No 14.  That raises questions of occupier’s liability where the occupier is a hotel licensee which may have some affinity with the issues that seem to be arising in this case.  So the parties should get themselves ready for a listing, not in the next sittings which cannot be done, obviously, but in the sittings commencing 22 September 2009 and these will constitute a one‑day case.

MR S.G. CAMPBELL:   May it please the Court.

MR D.R. CAMPBELL:   May it please the Court.

GUMMOW J:   The Court will adjourn to reconstitute.

AT 11.47 AM THE MATTER WAS CONCLUDED