Cole v South Tweed Heads Rugby League Football Club Ltd

[2003] HCATrans 751

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S261 of 2002

B e t w e e n -

ROSELLIE JONNELL COLE

Applicant

and

SOUTH TWEED HEADS RUGBY LEAGUE FOOTBALL CLUB LIMITED

First Respondent

ANGELA JANE LAWRENCE

Second Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 JUNE 2003, AT 10.18 AM

Copyright in the High Court of Australia

MR D.A. WHEELAHAN, QC:   May it please the Court, in that matter I appear with my learned friends, MR E.G. ROMANIUK and MR P.J. WOODS.  (instructed by Hamilton Quinlan Fenwick)

MR C.G. GEE, QC:   May it please the Court, I appear with my learned friend, MR R.J. CARRUTHERS, for the first respondent, it being the case that the application no longer involves the second respondent.  (instructed by Colin Biggers and Paisley)

GLEESON CJ:   You had personal responsibility for an outlet for liquor yourself for a long time, Mr Wheelahan.

MR WHEELAHAN:   I did, and I remember that the Chief Justice was one of my more regular patrons.

GLEESON CJ:   Mr Wheelahan, there is a certificate from the Deputy Registrar saying that she has been informed by the solicitor for the second respondent that the second respondent submits to the order of the Court save as to costs.  Yes, Mr Wheelahan.

MR WHEELAHAN:   Your Honours, when the appeal was being prepared, the second respondent was retained at the request of the Registry and it was not ever suggested that we would pursue them in this Court.

The applicant was a patron of the South Tweed Heads Rugby League Football Club at a social function which was perhaps somewhat inelegantly described as a champagne breakfast.  She and some colleagues arrived at the Club at about 9.30 on a Sunday morning, where they were provided with virtually unlimited quantities of cheap sparkling alcohol.

KIRBY J:   You are referring to the morning so far?

MR WHEELAHAN:   Yes, your Honour.  This they consumed without regulation until that supply was exhausted at about 10.30 am.  The patrons were then permitted to purchase further quantities of liquor to avail themselves of the punting facilities that were available on the premises.  In order to encourage the patrons, they were provided with a quantity of so‑called free tokens which, when they were exhausted, the patrons could use their own money to continue to advance the financial state of the Club and the exchequer.

During the course of the morning it is apparent that Mrs Cole drank quite a deal and, to the observation of her close friend, by midday she was, as the friend described her, as being drunk.  I know that Justice Kirby has on a prior occasion referred to that phrase as having a pejorative entity or quality and ‑ ‑ ‑

KIRBY J:   We tend to laugh at these situations, but in some people they are serious health problems.

MR WHEELAHAN:   Yes.  Indeed, your Honour, later in his judgment, the leading judgment in the Court of Appeal, Acting Justice Ipp engaged in an excursus into the various conditions that people may be in and the various qualities or attributes they may have as they progress through a stage of intoxication.

GLEESON CJ:   According to what I understand just from reading in the newspapers, the moment she had had three glasses of wine she was out of the limit in which she would have been fit to drive a car.

MR WHEELAHAN:   That is basically so, your Honour.  She was drunk by 12.30 and she was still on the premises in a grossly intoxicated state at 5.30.

GLEESON CJ:   If your argument is right, would it be a breach of duty for a licensee – a publican, to use an old‑fashioned expression – to serve a woman a third glass of wine?

MR WHEELAHAN:   No, your Honour.

GLEESON CJ:   That would put her over the limit for driving a car, would it not?

MR WHEELAHAN:   It would, your Honour, but his duty as an innkeeper does not extend to being able to assess or determine whether or not a particular drinker may possibly later commit a breach of the traffic laws.

KIRBY J:   Remind me of what the statutory provision is.  There is a turnout provision, is there not?

MR WHEELAHAN:   Yes, your Honour.  It is an offence to serve any person who is intoxicated.  A publican always retains the unfettered power to refuse drink to any person without stating a reason in any event and it could not be – except for nominating particular matters which may offend racial or religious matters.

GLEESON CJ:   It was a power that was exercised against your client in this case.

MR WHEELAHAN:   Absolutely, your Honour, and that is where we want to go.  The formulation of the duty ‑ ‑ ‑

KIRBY J:   Before we go to the principle, could we just get very clear what happened in the afternoon.  I took a note myself that the judge was willing to infer that the Club did sell more alcohol in the afternoon.  I cannot find that note, but is that the finding that the primary judge made?

MR WHEELAHAN:   Yes, your Honour.  He found that they served her the bottle at 12.30 and inferred that during the course of the afternoon the Club served her more liquor.

GLEESON CJ:   Where do we get that from?

KIRBY J:   Perhaps Mr Romaniuk could turn that up and we can have that reference.

MR WHEELAHAN:   Yes, certainly.  Just before we go to that, your Honours – and we will come back to that in a moment – there was a submission made in the Court of Appeal which was an erroneous one.  It was accepted because it was not corrected by senior counsel for the then respondent, the current applicant.  At application book 80 line 10 my learned friend:

Mr Gee QC . . . submitted that the serving of alcoholic drinks while games were in progress was the responsibility of one of the sporting bodies affiliated to the Club, and he submitted that that body was an entity different to the Club.  Mr Hall QC, senior counsel for Ms Cole, did not contend to the contrary and the appeal was argued on the basis that Mr Gee’s submissions were correct.

Your Honours, there was no evidence in the trial that any entity other than the Club was selling liquor at the premises where the sporting contest was being conducted or the social activities and betting activities.

KIRBY J:   Was there a suggestion that your client went off the premises at some time?

MR WHEELAHAN:   Your Honour, she went out of the enclosed air‑conditioned premises where breakfast was served, where the drink was to be available and the poker machines were located.  Beyond that area was a viewing area for a football match which was being conducted on ‑ ‑ ‑

KIRBY J:   It was part of the Club’s premises, was it?

MR WHEELAHAN:   Yes, your Honour.  The whole area was the South Tweed Football Club.

GLEESON CJ:   That point that you make may be of considerable importance because, when I read what appears on page 80, I was given to understand that the Club stopped supplying her with liquor at about 12.30 and that while she was revisited by her thirst later in the afternoon, that was being supplied by some football group.

MR WHEELAHAN:   There was no evidence in the trial, your Honour.

GLEESON CJ:   So that represents a factual misunderstanding that ‑ ‑ ‑

MR WHEELAHAN:   Which was not corrected in the Court of Appeal, probably because Mr Hall of Her Majesty’s counsel was not in the trial.

GLEESON CJ:   We will have to hear what Mr Gee has to say about this but, if we were to grant special leave, we would be invited to deal with the case on the basis that the Court of Appeal made a fairly basic error of fact as a result of a common position adopted by counsel.

MR WHEELAHAN:   And the court would not be precluded from doing that.  It is like conservative advocacy.  If an advocate invites the Court of Appeal or any other tribunal to make a specific award, then the court is not bound by that if it turns out that in the court’s own view that application is erroneous in itself.  There is authority in this Court for that proposition.

GLEESON CJ:   But if what you say is right, then the Court of Appeal was, accidentally no doubt, misled by counsel on a very important factual matter.  That was:  who was responsible for providing her with the drink she consumed during the afternoon?

MR WHEELAHAN:   Where did she get it, if we may put it rhetorically?

GLEESON CJ:   Yes.

KIRBY J:   This is a bit of a trap for you, Mr Wheelahan, because, if counsel misleads the Court, we would not, save for our role to ensure against a miscarriage of justice, normally be there to try and save clients from their counsel.

MR WHEELAHAN:   Let me hasten to add, your Honour, that in my learned friend’s notice of appeal to the Court of Appeal, this very matter was raised, namely that liquor was available from sources other than the Club.  As I have read and the Chief Justice has read, that matter was put.  We have reviewed the transcript and there is no evidence that liquor was for sale by any other entity.

GLEESON CJ:   There is evidence, is there not, that she consumed quite a deal of liquor between 12.30 and the time she had her accident?

MR WHEELAHAN:   There is no doubt, your Honour, that her degree of intoxication escalated to an alarming state and degree between 12.30 when her friend, Mrs Hughes, described her as “utterly inebriated”.

KIRBY J:   Is that the point where the Club offered her the taxi or the bus home?

MR WHEELAHAN:   No, they offered her the taxi at 5.30, your Honour.  Mr Pringle, the secretary/manager of the Club, made an observation of her at about 4.45 when the football game finished.  He made an observation of her in a group.  He formed the view then that she was very drunk and kept her under observation until he made the approach at 5.30, which was when the offer of transportation was made.

GLEESON CJ:   She took up with some gentlemen friends.

MR WHEELAHAN:   Well, “gentlemen”, your Honour, is probably somewhat overstating it.

GLEESON CJ:   Their intention seems to ‑ ‑ ‑

MR WHEELAHAN:   - - - be less than honourable, Chief Justice.

GLEESON CJ:   Exactly.  They were sources of supply of liquor themselves, were they not?

MR WHEELAHAN:   Yes, your Honour, but they were not under the influence, according to Mr Pringle.  Mr Pringle’s phrase with regard to their interaction with the plaintiff was that they were seriously taking advantage of her.  She needed to be held up at that stage.  We want to come to that because Mr Justice Ipp has created a dichotomous view of intoxication.  He speaks of a lesser state and an extreme state and that there is a different duty that operates with regard to ‑ ‑ ‑

KIRBY J:   I think his Honour is making a point that we live in a free society where people are to some extent entitled to go to hell their own way and people are entitled to have a drink beyond what some prudish person of a Methodist upbringing might think was appropriate, and it does vary.  So there is a point at which a duty of the kind you suggest would, according to the Canadian authorities, descend upon the Club.  The issue is whether that is the law in this country.  If you can establish the factual premises that you have been putting to us, then the issue is tendered to the Court.  If you cannot establish those factual premises, the Canadian cases disappear out the window.

MR WHEELAHAN:   I understand that, your Honour, but what Mr Justice Ipp has done is say, “I don’t need to consider, nor does the Court of Appeal need to consider, the condition of a patron of an establishment like this who has reached that extreme state”, because the case was not put on that basis, the case at trial or the case in the Court of Appeal.  He, with respect, was wrong.  I can demonstrate that error shortly.  I am aware of a rebuke that was received quite unfairly the last time I was in this Court about not observing the lights, Chief Justice.

GLEESON CJ:   I was only suggesting that you develop a technique of breathing through your ears in order to extend the time that you can take.

MR WHEELAHAN:   Yes, and not looking at the Chief Justice or the lights.

GLEESON CJ:   Yes.

MR WHEELAHAN:   I will not make that error today.  Your Honours, Mr Justice Ipp says that the applicant’s case was not put in the context of his formulation of extreme intoxication.  May I put it this way?  Mr Justice Ipp said that for a patron of an establishment such as this, what might be described as the ordinary duty of care owed by an occupier to a lawful entrant operated, that if by voluntary ingestion of liquor the patron became intoxicated to the “lesser” extent and that level of intoxication was causative in some way of some injury to the patron, that there was no different response called for by the innkeeper.

He then developed, we would submit for the first time in the jurisprudence of this country, the concept of extreme intoxication when the duty which had evaporated revived but the content of it was unexplained because, Mr Justice Ipp said, the plaintiff’s case was not put that way.  He says in the application book 86 at the last line:

The fact is that there was no firm finding that, while at the Club, Ms Cole was so drunk as to be utterly incapable of exercising a rational judgment and looking after herself.  The appeal was not argued on the basis that she was in such an extreme state.  The trial, too, does not seem to have been conducted on that basis.

Acting Justice Ipp went on at 115 to repeat that error, as we will demonstrate at line 1 paragraph 191:

I do not now refer to extreme states of intoxication where the will of the persons intoxicated and their capacity to form an intent have been destroyed.  I exclude such persons from the remarks that follow.

GLEESON CJ:   Mr Wheelahan, if you look at page 94 paragraphs 130 and 131, you perhaps see the importance of this factual matter that you referred to earlier.  Justice Ipp concludes that 12.30, for reasons he later gave, was the last time any officer of the Club served her drink.  There was no reason to believe “that she was significantly intoxicated”.  Leave aside the question of what exactly that means.  Certainly he thought that by 12.30 she was capable of looking after herself and if she walked off, she would not go staggering into the path of an oncoming car.  But then he says on pages 96 and 97 that she was very drunk when she left the Club, she was drunk a long time before that, but there was no basis for concluding that anybody associated with the Club gave her any drink between ‑ ‑ ‑

KIRBY J:   On the contrary, he says at paragraph 141 it is a “matter of mere speculation”.

GLEESON CJ:   So he says in paragraph 143:

The conclusions –

I would interpolate the factual conclusions –

to which I have come are determinative of the Club’s appeal.

MR WHEELAHAN:   That is right.  We will be able to demonstrate when this matter comes before the Court for a full hearing that that was an error.  The analysis by Mr Justice Ipp of the progress of purchase of bottles of drink can be demonstrated to be erroneous.  What he concluded was that the plaintiff had not bought three bottles on her own to be shared with Mrs Hughes and that Mrs Hughes bought alternate bottles whilst the applicant bought her three.  He erroneously concluded that the plaintiff purchased the first, Mrs Hughes the second, the plaintiff the third, and that was the end of it.

The fact of the matter was that Mrs Hughes purchased two.  The plaintiff purchased the first, Mrs Hughes the second, the plaintiff the third, Mrs Hughes the fourth, the plaintiff the fifth; the fifth bottle.  Your Honours, the plaintiff said that she purchased them from the Club.  The trial judge found that she purchased them from the Club.  She purchased the last at 12.30 when at 12.20 she was observed to be completely drunk.  The purchase of that last bottle constituted the breach of duty at 12.30, we say, because in the Club premises she was drinking it with the bottle inverted as she walked from the poker machine area to the doors leading to the outside.

KIRBY J:   You say that tenders a very important principle as to whether there is any common law duty upon an alcohol‑supplying place to a patron in that stage?

MR WHEELAHAN:   Yes.  As the Chief Justice pointed out, paragraph 130 is a matter where Acting Justice Ipp deals with the matter and describes this conduct as “excited” and “extroverted”.  A more euphemistic description it is difficult to imagine to be applied to that behaviour that was observed by Mrs Hughes, who had herself been ‑ ‑ ‑

KIRBY J:   Do you say the evidence contradicts any sobering up in the course of the afternoon?

MR WHEELAHAN:   Yes, your Honour.

KIRBY J:   The accident happened at about 5.30, I think.

MR WHEELAHAN:   A bit after 6 o’clock, your Honour.  Every time she was seen by anybody – she went to buy another drink at 3 o’clock from Mrs Pringle, the wife of the secretary/manager, who could not understand her, could not understand what order she was placing for more liquor, said, “Get away, you’re drunk”.  Of course, when the taxi arrived at 1.45 she was described as “utterly intoxicated and an embarrassment”.

GLEESON CJ:   What was the time when she refused an offer of a taxi?

MR WHEELAHAN:   After 5.30, your Honour.  Earlier in the afternoon at about ‑ ‑ ‑

KIRBY J:   Did she refuse it or did the male companion say, “We’ll look after her”?

MR WHEELAHAN:   No, they never said “We’ll look after her”, your Honour.  That of course is a matter of some conjecture too, what that may have meant, in view of the fact that they were engaged in activities that were observed to be taking serious advantage of her.  But what Mr Pringle did, we say, was making an assessment that the plaintiff was incapable of looking after herself, and he agreed as to that in his cross‑examination.  He said she had completely lost control.  He then made her an offer of a taxi and a bus which she rejected in the most emphatic terms.  But the fact of the matter was he then walked away - avoiding a confrontation, as he put it – applying to Mrs Cole the same sort of reactive attitude that one would expect from a rational person, and she was no longer rational.  The case in

our additional submissions filed only yesterday, we set out what Mr Pringle observed about the plaintiff’s state of intoxication, and it is that 5.30 intoxication which is equally as powerful as the 12.30 state.  May it please the Court.

GLEESON CJ:   Thank you, Mr Wheelahan.  Yes, Mr Gee.

MR GEE:   Your Honours, could I deal first with the question that arose in respect of what appears at page 80 of the application book.  First of all, the point that I am about to address we heard for the first time now.  It does not seem to have been adverted to in written submissions.  Here is the substantive answer, with respect, your Honours.  The opening sentences of paragraph 70 at page 80 from which my learned friend read a minute ago were:

While rugby league was being played, alcoholic drinks (at least some of the time) were sold outside the Club building.  The liquor came from the Club premises but was not served by Club employees.

That is directly supported by evidence of Mr Pringle at transcript page 111, which I think is not in the application book and no doubt would have been if we had had to meet this particular point head on.  I will read if necessary the words at transcript 111 that permitted the submission that was read to your Honours a minute ago as recorded in paragraph 80.  So, with great respect, there was nothing accidental about ‑ ‑ ‑

KIRBY J:   Did not the primary judge say, “Whatever all this background was, I am prepared to infer that she was supplied further alcohol in the afternoon”?  I made a note to that effect but I did not note the paragraph.

MR WHEELAHAN:   By the Club.

MR GEE:   He did, your Honours.

KIRBY J:   If you have that finding, is that not sufficient to enliven arguably the duty which the Canadian courts have found in these circumstances?

GLEESON CJ:   But that finding was expressly overturned by the Court of Appeal, was it not?

MR GEE:   That is the very submission I was going to put in answer to your Honour Justice Kirby, that that precise inferential process was regarded by all three members of the Court of Appeal as being invalid.

KIRBY J:   And this was on the footing of the fact that at one stage in the afternoon drinks were being sold by other than Club employees outside the Club building?

MR GEE:   Not only that, your Honour, but also on the basis that there simply was no satisfactory evidence that would permit the inference that there was sale by the Club to the applicant.

GLEESON CJ:   What was the physical set-up, Mr Gee?  There was a club and there was some football ground, was there, alongside it?

MR GEE:   There was a football ground adjacent.  I am in my friend Mr Wheelahan’s hands, with respect, your Honours, on precisely the layout, but I understand ‑ ‑ ‑

KIRBY J:   But would not the commonsense inference be the one that the trial judge took?  They are in an alcohol‑serving club.  It may be that somebody in the football match sold something, but fundamentally she started with the champagne breakfast, she continued during the day, she is surrounded by people who are drinking, and your client did not do anything really to say, “Enough is enough; stop”.

MR GEE:   Mr Wheelahan, with respect, your Honour, referred to the fact that at 3 pm that is precisely what happened when Mrs Pringle refused her drink.

KIRBY J:   Yes, but they did not really take it very far.

MR GEE:   Your Honour, she refused her drink.

KIRBY J:   I am not saying your client is in an easy situation but the issue for us is:  does this case tender on the facts an important issue of principle?

MR GEE:   Your Honour, before ‑ ‑ ‑

GLEESON CJ:   That is what I am trying to work out.  This was a football club, was it not?

MR GEE:   Yes.

GLEESON CJ:   It is called the South Tweed Heads Rugby League Football Club.  This is not the Returned Servicemen’s Club or a bowling club; this is a rugby league football club.

MR GEE:   That is true, your Honour.

GLEESON CJ:   What I am interested to know is:  what was the factual connection between the activities at the Club in the morning and the drinking activities that Mr Wheelahan’s client engaged in in the afternoon?  I may be wrong, but I had had the impression that she had left the Club at about 12.30 and went out to watch a football match or a series of football matches.

MR GEE:   Or part thereof.

GLEESON CJ:   Closely associated in some way with the Club, no doubt.

MR GEE:   Yes, your Honour, that is true.  She did leave the premises and the evidence suggests but is very unclear about how long she was outside the premises, what supply took place after 12.30 either inside or outside the premises.  After all, there could have been supply in the premises but not from the Club.

KIRBY J:   But is it not fair to say Justice Ipp has put his processes of inference into suspension?  I mean, let us get real.  They are in a club that is selling alcohol all day for the purposes of football matches.  The football matches are carried on in the immediate vicinity and you are saying that we do not infer that the alcohol has come from the Club.  It just does not seem realistic.

MR GEE:   I give two answers, your Honours.  The first is that before the Court ever got to dealing with what I will accept against myself just for the moment are important points of ambit of duty, discharge thereof and so forth, the Court would have to spend a considerable time debating what it ultimately thought the facts would be and ‑ ‑ ‑

KIRBY J:   But not if we thought that the Court of Appeal ought not to have disturbed the inference which the trial judge was in the best position to draw and which seems entirely reasonable, rational, sensible.

MR GEE:   Your Honour, with respect, how could the trial judge be in any different position from their Honours in the Court of Appeal who unanimously looked at the same evidence, with respect - that is, decidedly unsatisfactory evidence – and came to their conclusion that that process of inference was not a reasonably‑based one.  The analysis appears, with respect, on page 96 of the application book from paragraphs 139 and following on this very question.  It is under the subheading at the bottom of page 94, where his Honour Acting Justice Ipp is expressly dealing with the supply of alcohol to Mrs Cole after 12.30.  The central factual issues were drawn together by his Honour at paragraph 139 and if we could go to paragraph 140:

In drawing the inference that, after the 12.30 pm bottle, Ms Cole purchased alcohol from the Club, Hulme J omitted to take into account the possibility that she went outside in the afternoon and purchased alcohol from persons other than Club employees.

GLEESON CJ:   Does he mean purchased or does he mean obtained?

MR GEE:   I do not know, your Honour.

GLEESON CJ:   Who apart from the Club would have been entitled to sell alcohol?  I could understand him considering the possibility that the men, of whom we have heard, might have acquired alcohol either from the Club or from somewhere else and supplied it for a variety of purposes to her, but there was not anybody else selling alcohol there, was there, except the Club?

MR GEE:   That is, with respect, either not right or, if that is too high, it is not established.  What we know is that Club employees were not sellers of liquor at the football ground.

GLEESON CJ:   Well, another thing we know is you need a licence to sell liquor.

MR GEE:   May I just read a couple of lines from 111 in the original transcript, line 35:

Q.  I think the Club owned a building in premises on the eastern side of Fraser Drive, Banora Point, is that right?
A.  Yes.

Q.  But leased adjoining football fields from the Tweed Heads Shire Council where the game was played on various days?
A.  I’m not sure whether that transaction had been completed at that stage.  The grounds were owned by the Club, I think, at that time.

Q.  When games were being played there, did the Club serve alcoholic drinks while the games were in progress?
A.  The Club did, yes, they did some of the time.

Q.  Both in the Club and at the Club?
A.  I believe that was the responsibility for one of the affiliated sporting bodies, whether it be the junior rugby league or the women’s auxiliary or one of the fundraising areas in the whole structure of the Club.  There are various bodies affiliated with the rugby league club.

Q.  The liquor was coming from the Club premises?
A.  That’s correct.

Q.  The liquor was being served by Club staff?
A.  No.

That was the foundation for the submission that I made which was, as Mr Wheelahan would put it, not corrected by my learned opponent below.

KIRBY J:   Yes, but the liquor was coming from the Club premises.  The suggestion would be that if you are the source of supply, you have to institute controls to ensure that you do not continue to serve alcohol to people who are seriously intoxicated.  That is an important issue of principle.  You might succeed on that point.  There is an argument that in a free society we do not turn publicans and clubs into policemen, but it is an important question of principle on which the Canadian courts have taken a different view to the Court of Appeal.

MR GEE:   Your Honour, with the utmost respect, all of your Honour’s latter observations cannot be gainsaid.  Before that is ever considered, this Court is now being asked to review a careful factual reconsideration of an unsatisfactory body of evidence by the Court of Appeal.  There was no differentiation among members of that court as to whether Justice Ipp’s review was unsatisfactory.  On the contrary, each agreed with it to the point where his Honour the presiding judge, Justice Heydon, after agreeing with the observations of Justice Ipp, said at paragraph 2 on page 61 of the application book:

Though the general questions relating to duty discussed in his reasons for judgment were not fully argued, and though their resolution is not crucial to the outcome of this case, it is convenient –

to do certain things.  He was at pains, your Honours, to make sure that should anyone be looking at this judgment such as your Honours, the matter was turning on questions of fact.

KIRBY J:   Yes, but he was not doing some separate independent or supplementary analysis of the facts.  It is either good or bad on Justice Ipp’s reasoning.  What I am saying to you is, with every respect to his Honour, his Honour seems to have suspended his reality.  The primary judge, who is in a good position to draw the inferences, said, “I would infer it’s come from the Club”, and that, with all respect, seems to be a very sensible conclusion to reach.

MR GEE:   Your Honour, may I come again with two answers to that, with respect.  The first is to take the Court to the observations of Justice Santow at page 63 of the application book.

GLEESON CJ:   It is really page 64 paragraph (c), is it not?

MR GEE:   Yes, your Honour.  That obviously evidences an independent bringing of mind to bear by his Honour who was at pains to say in the introductory words of those subparagraphs:

However, that result –

that is, success of the appeal below –

also necessarily follows from the reversal by this Court of certain of the trial judge’s findings of fact, based on appealable error of the kind which this Court may correct, though with the constraint which recognises the trial judge’s advantage.

All of those things were brought to account, with the utmost respect to your Honour Justice Kirby.  Secondly, the question would arise even if that was the situation and that he had suspended what your Honour described as his processes of reality for a moment – how would the Court be justified in substituting some other view?

KIRBY J:   We would say that the judge erred in interfering in the inference drawn by the primary judge.  We do that quite often.

MR GEE:   But if that inference itself, as is plain, was founded on very unsatisfactory evidence and did not support something other than guesswork, then that in turn would be an unsound interference, in my respectful submission, with what happened in the Court of Appeal.

KIRBY J:   It just seems a little ethereal to say that it has come out of the blue; there has been somebody stalking around on the football field handing out champagne to supplement your breakfast.  I mean, really.

MR GEE:   I do not know that we ‑ ‑ ‑

KIRBY J:   We are talking about a country place in New South Wales, Australia in the game of rugby league and a lot of local people collecting after a champagne breakfast.  The Club is the licensed premises.  The alcohol comes from the Club, according to your witness; it is just not actually served by liveried waiters.

MR GEE:   No, not served by Club employees at all, your Honour.  That was the clear unequivocal evidence that founded the submission, which in turn led to the suggestion before your Honours a few minutes ago that the court below, having been misled about an evidentiary state and not corrected, had itself fallen into an error which would open up what this Court normally sets its face against.

GLEESON CJ:   Mr Gee, let me make clear the problem that I have.  The problem that I have at the moment is whether this decision of the Court of Appeal turned almost entirely upon issues of fact and whether, if we were to grant special leave to appeal, we would find ourselves arguing not about any question of principle but about the findings of fact, and in particular the findings summarised on page 64.  One of the reasons I am unclear in my own mind about that is that I am unclear as to the evidence as to the circumstances in which people were able to obtain liquor outside the Club during the afternoon in question.  Could you state those in a summary form?

MR GEE:   No, your Honour, because, were this matter being opened up for general debate before the Full Court, we would be in exactly the same position of having a complete evidentiary vacuum in order to be able to answer that very question that your Honour poses.

KIRBY J:   There is certainly an evidentiary vacuum about the hypothesis of “purchase”, is there not – purchase from a third party?

MR GEE:   Not only purchase, your Honour, with respect; also supply.

GLEESON CJ:   I use the word “obtain”.  What were the circumstances?  I have to say that I personally do not have any experience or judicial knowledge that entitles me to conclude what goes on at Tweed Heads Football Club on a Saturday or Sunday afternoon, but I do know of the existence of things like eskies.  What I am interested to know is in what circumstances a person such as the present applicant could obtain, have access to, alcohol other than from the Club during the afternoon in question?

MR GEE:   If your Honour means other than from the Club in the sense that the actual original point of supply ‑ ‑ ‑

GLEESON CJ:   I mean other than from the Club in the sense of whether the Club had any control over the supply of it to her.  If the Club did anything wrong here, it was in a failure to exercise its control.  So my question is:  in what circumstances could a person such as the applicant have obtained – I did not say “bought” – liquor other than under the control of the Club during the afternoon in question?

MR GEE:   One leaps to mind, your Honour, and the evidence will not ever satisfactorily produce an answer to that question now or later, with respect.

KIRBY J:   Not unless you put barbed wire up.

MR GEE:   One immediate answer is:  by departing from the interior premises, going outside and meeting people – not necessarily the men who later escorted the lady away – and continuing to drink with them.  It would be a fantastic proposition, your Honours, that if one goes out – let us grant, intoxicated – meets people who themselves have a supply, which I will acknowledge against myself for the moment has originated in the Club, that the Club has then some form of control to be exercised over what those people do in supplying something to the inebriate.  That is one answer with respect to your Honour’s question which, as I say, on the case made by the plaintiff and the evidence produced before any of the courts that have looked at it so far is in a very unsatisfactory state.

KIRBY J:   Justice Glass used to say to me, Mr Gee, “We work with imperfect materials”.  It is rare that you get a perfect case, but here you have licensed premises.  The purpose of the Club is rugby football.  They are all there in the area.  You cannot have third parties selling it.  Justice Ipp said “purchased”.  That is wrong.  The issue is:  was it open to the primary judge to infer they got it from the point of supply in the Club?  Your witness says so.  In those circumstances, if there should be a plug put in, it is for you to put it in to the supply, or at least arguably the point is tendered to the Court.

MR GEE:   But we would be arguing that fact before we ever got near a Canadian or any other case about this matter.

KIRBY J:   Not really.  The Court of Appeal ought not to have said “purchased” and ought not to have intervened in the inference that the primary judge drew, which appears, with all respect, to have been a sensible one.

MR GEE:   But that, with respect, still would not solve the problem.  You still would not know whether some control exercised by the Club would have produced or could have produced any different result.  What you do know is – I am sorry, I am hectoring the Court and I will just draw back.

GLEESON CJ:   Where do we find the primary judge’s actual finding of fact?  The critical question is, is it not, whether she got liquor in circumstances where the Club had any control over how much she was drinking?

MR GEE:   Yes.  If your Honours look at page 24 paragraph 63 of the primary judge’s reasons for judgment:

There is no direct evidence that the Second Defendant served the Plaintiff again that day.

That remains through thick and thin the fact.  There is a reference to refusal and then his Honour just jumps to the proposition at the top of the next page:

I think the probability is that the Plaintiff was served alcohol again.

There is just, with respect, no foundation.

GLEESON CJ:   Does that mean “was served by the Club”?

KIRBY J:   It would have to be, would it not?

MR GEE:   That is presumably what his Honour meant.  Once you get away from the “served by the Club” and you start to ask questions about the Club’s role in intervening between persons who are giving an inebriate a drink, you are entering, with respect, into a totally different realm of possibility and not one that this case, in my respectful submission, begins to permit as a suitable vehicle.

GLEESON CJ:   Thank you.  Mr Wheelahan, could I just get clear the case that you would make out if you were granted special leave to appeal.  Would your case depend upon the proposition that at some time after 12.30 the Club itself served liquor to your client, or would your case be sufficiently sustained by a finding that at least up until 12.30 the Club served liquor to your client?

MR WHEELAHAN:   Not necessarily, your Honour.  We say that there are three periods that require consideration.  One is up to 12.30; between 12.30 and later in the day; and at 5.30 when Mr Pringle engaged in what we regard and would submit is a totally inadequate response to the condition that the applicant was then in.

GLEESON CJ:   Take the first two steps.  It is common ground between Justice Hulme and the Court of Appeal that the Club served your client with liquor until 12.30.

MR WHEELAHAN:   Yes.

GLEESON CJ:   There is a difference of fact between Justice Hulme and the Court of Appeal as to whether your client was served liquor after 12.30.

MR WHEELAHAN:   Yes.

GLEESON CJ:   Would the success of your appeal in this Court depend upon displacing the Court of Appeal’s finding of fact in relation to service after 12.30?

MR WHEELAHAN:   No.  Your Honour s, just to create the correct picture of the behaviour and presentation of Mrs Cole between 12.20 and 5.30, would the Court perhaps look at page 4 of the application book, line 20, where we see at 12.30 she is:

drinking from the neck of a full Spumante bottle in the vicinity of the poker machines.  At about 1 pm the Plaintiff went outside . . . drinking as she went.  At about 1.30 the Plaintiff was inside again and Mrs Hughes . . . again saw the Plaintiff dancing . . . with 2 handbags round her chest, 2 cardigans in one hand and a bottle in the other swinging it around . . . At about 1.45 . . . “absolutely drunk” and by about 2.20, “totally inebriated” and “an embarrassment”.

Then she deals with the taxicab.  At line 10, going on:

She said that the Plaintiff had approached the bar requesting an alcoholic drink –

So what we say, your Honours, is that any servant of the Club exercising routine care and observation must have made the observation at 12.20.  The plaintiff is permitted then to remain on the premises until 5.30 and at 5.30 she is observed with yet another bottle of Spumante available to her at the table where the gentlemen were congregated.

GLEESON CJ:   So your proposition is that no later than 12.30 they should have kicked her out?

MR WHEELAHAN:   They should have responded, but ‑ ‑ ‑

GLEESON CJ:   How?

MR WHEELAHAN:   That is the difficulty.  Mr Justice Ipp proposes that if there is a state of extreme intoxication, then a duty which has earlier evaporated as the patron goes through a state of lesser intoxication is revived or enlivened yet again.  He did not investigate it because he said the case was not put that way.

GLEESON CJ:   But what do you say they should have done to her at 12.30 – put her off the premises?

MR WHEELAHAN:   The argument is that the offer of transportation was an adequate response, which assumes that the person was capable of a rational response.

GLEESON CJ:   What do you say on behalf of your client the Club should have done to her?

MR WHEELAHAN:   Your Honour, either calm her down, rationalise with her.  There are opportunities for counselling; not to simply turn their back on her because there is a confrontation, which was the case of Mr Pringle at 5.30.  He did not want to be embarrassed because of the vigour of the rejection of the offer and he walked away, and that is not good enough.

KIRBY J:   They did have a statutory power to put her out and they did attempt to do something like put her in a bus - there apparently is a bus that will take people home – or a taxi, but they did not do it very affirmatively and they certainly did not do it successfully. 

MR WHEELAHAN:   No.

KIRBY J:   Instead, she wandered out of the Club into the path of an oncoming car and was seriously injured.

MR WHEELAHAN:   Mr Justice Ipp’s finding about her behaviour in front of the car was eloquent testimony as to the fact that she had completely lost control.  She stood there like a rabbit in the headlights.

GLEESON CJ:   One of the interesting things if you obtain a grant of special leave will be to see what in due course you argue on behalf of your client should have been done to your client.

MR WHEELAHAN:   Absolutely.

KIRBY J:   Justice Ipp makes some good points there, that he ‑ ‑ ‑

MR WHEELAHAN:   So does Justice Heydon.  They say “shackles and manacles, ball and chain”, all of those ‑ ‑ ‑

KIRBY J:   And there may be other torts and criminal offences that are done by taking control of people.

MR WHEELAHAN:   And we would have to deal with them.

KIRBY J:   You would have to deal with it.  But the Canadian courts have dealt with it in one way.

MR WHEELAHAN:   Yes, and so has the Court of Appeal in New South Wales with Mr Justice Grove and the Chief Justice.

KIRBY J:   Could I just ask is the issue of liability for the sale of tobacco in some ways analogous to a case like this?  In other words, does that raise similar issues concerning the entitlement of people to do what they want to do in their own lives, even though there are dangers in it?  I mean, if there were and if you were granted special leave, it may be that there are some analogies in that area of the law that might warrant consideration.  That is a large issue that is looming on the horizon somewhere.

MR WHEELAHAN:   Your Honours, we would submit no, because this is a matter where judgment is clouded and affected, and indeed our case here is that the capacity for rational thinking and response has been lost.

KIRBY J:   Yes, I understand that but one might say that addiction takes away entirely rational response.  However, it may be completely different, but you ‑ ‑ ‑

MR WHEELAHAN:   Your Honour, if we embarked upon the tobacco issue, we would probably have to embark upon the caffeine issue, for example, and we would say not.

KIRBY J:   I am just a little concerned that some of the words in the Court of Appeal might, if they stand, be relevant to the determination of those cases.

MR WHEELAHAN:   What was said in the Court of Appeal is already being applied in courts here.  That is, the non‑extended duty was referred to in the Wollongong University Case by Mr Justice Meagher just a week or so ago.

GLEESON CJ:   Provided the facts are clear enough, it could raise an important question of principle.  At what point do you say the judgment of a consumer of alcohol becomes clouded?

MR WHEELAHAN:   Your Honour, when it becomes obvious to any person in a position and with a duty to make an observation that that is so.

GLEESON CJ:   They used to say there are some people for whom one is too many and a thousand is not enough.

MR WHEELAHAN:   That was the Redemptorist fathers in 1954, your Honour.

KIRBY J:   I know nothing of these things.

GLEESON CJ:   Is that a judgment that the innkeeper has to make, whether a person is of that kind?

MR WHEELAHAN:   If the patron has had a thousand, your Honour, yes.

GLEESON CJ:   You have beaten us into submission, Mr Wheelahan.

MR WHEELAHAN:   If your Honour pleases.

MR GEE:   Your Honours, can I just say something given what has fallen from your Honour the Chief Justice?

GLEESON CJ:   Yes.

MR GEE:   Would it not be of assistance on what will now be the ultimate hearing to have it very clear that because our learned friends say that they do not depend upon subsequent obtaining after 12.30, that they are in effect not now challenging the ‑ ‑ ‑

KIRBY J:   I do not think that is what he says.  He just says he does not have to establish supply after ‑ ‑ ‑

MR GEE:   With respect, your Honour, that is not how I heard the question fall from his Honour the Chief Justice.

GLEESON CJ:   You will have the benefit of the transcript in due course, Mr Gee, and if you are able to use that to pin Mr Wheelahan down to anything, good luck to you.

MR GEE:   No one could do that.  The difficult we do at once; the impossible, in his case, is never going to be available.

GLEESON CJ:   In this matter there will be a grant of special leave to appeal.  We will adjourn for a short time to reconstitute.

AT 11.10 AM THE MATTER WAS CONCLUDED