Geelong Football Club Ltd v Clifford

[2002] VSCA 212

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 6403 of 2000

GEELONG FOOTBALL CLUB LTD.
	Applicant
v.
GREGORY ALLAN CLIFFORD	Respondent

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JUDGES:	ORMISTON and CALLAWAY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 November 2002
DATE OF JUDGMENT:	29 November 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 212

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Courts - Practice and Procedure - Trial date vacated and proceeding adjourned indefinitely to await outcome of possible grant of special leave to appeal (and appeal) in High Court from judgment in N.S.W. Court of Appeal - Wrong exercise of discretion - Relevant factors in such circumstances - Application and consequent appeal allowed - Trial ordered to be refixed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S. Kaye, Q.C. and Mr B. Griffin	Ebsworth & Ebsworth
For the Respondent	Mr M. Gorton	Messrs Petersons

ORMISTON, J.A.:

1. The applicant, the defendant in a proceeding brought by the respondent in the County Court, seeks leave to appeal against a decision of Judge Holt sitting in the Practice Court of that court whereby his Honour vacated the date then fixed for trial, being 20 November this year, and adjourned the proceeding, effectively indefinitely, so that it might await the outcome of an application for special leave to appeal to the High Court, and the determination of that appeal if special leave be granted, brought in relation to the decision of the New South Wales Court of Appeal on 12 July this year in South Tweed Heads Rugby League Football Club Ltd. v. Cole[1].  Essentially the plaintiff's claim in the present proceeding arises out of his attendance at a President's lunch function of the Geelong Football Club some two years ago, at which, in terms of his own claim, he consumed "excessive quantities of liquor" supplied by the Club, but, so he maintains, it should have exercised reasonable care "to conduct the said function in such a way that persons consuming liquor at the said function were reasonably safe" on the premises.  It is claimed in addition that the applicant "permitted ... and/or aided or abetted the plaintiff in consuming excessive quantities of liquor", with the result that he fell down stairs at the Club premises, so suffering severe injury.

   [1][2002] Aust. Torts Rep. 81-670; [2002] N.S.W.C.A. 205.

1. Although we do not have the benefit of a transcript of his Honour's reasons, it seems clear from the affidavit material that only one contention was put forward to Judge Holt as the basis for the adjournment sought, namely, that it was "not appropriate" for the trial to be held in the present case until "the appeal" (as it was described) in the South Tweed Heads Rugby Club case had been dealt with by the High Court.  In fact at the time, though the application for special leave to appeal had been filed, that had not been heard and, to my knowledge, has still not been heard.  It seems that Judge Holt took the view that it was inappropriate that the trial should take place on the appointed date, as the unsuccessful plaintiff in the South Tweed Heads case might induce the High Court to a conclusion in her favour which would be founded on a ratio that would permit the present respondent to assert and rely upon a duty of care to drunken club patrons, which was rejected, at least obiter, by the New South Wales Court of Appeal in the South Tweed Heads Rugby Club case.  So Judge Holt's order adjourned the proceeding for mention in the Practice Court on 15 July 2003.  Presumably then, if the special leave application has been refused, the case might be refixed for trial, but, if leave has been granted by then, likewise the parties may expect the case to be adjourned further to await the hearing and determination of the High Court appeal, which in all likelihood would not occur until well into the year 2004.

1. Before dealing with the present application the nature of the New South Wales proceeding and the Court's reasoning should be briefly noted.  The case has some similarity to the present in that, although the accident to the plaintiff there took place while she was wandering drunkenly in a street 100 metres from the club and was directly caused by a car colliding with her on the roadway, it was also alleged that the club was liable for continuing to serve her with liquor while she was intoxicated.  Though the trial judge had apportioned responsibility between driver, club and plaintiff, the Court of Appeal upheld both defendants' appeals and dismissed her claims entirely.  In the course of his reasoning Ipp, A.J.A., with whom in substance Heydon and Santow, JJ.A. agreed, held that the law should not recognise a duty of care in bodies such as clubs to protect persons from harm caused by becoming intoxicated, nor did the club owe her a duty of care to stop serving alcoholic liquor to her while she was obviously intoxicated, or those matters at least, so it would appear, formed in part the basis for the decision.

1. The applicant undertakes a heavy burden in seeking to have an appeal court overturn the exercise of a discretion related to a court's ordering of its business, not merely because it is ordinarily difficult to detect any arguable error of principle or fact in reaching a decision of that kind, but also because the justice of the case is rarely capable of being invoked when a discretion of that kind has been exercised.  So, as Mason, P. observed correctly in Meggitt Overseas Ltd. v. Grdovic[2]:

"A decision to grant or refuse an adjournment will be interfered with by the Court of Appeal only in exceptional cases and then only where the discretion has been exercised on a wrong principle or resulted in a serious injustice."

[2](1998) 43 N.S.W.L.R. 527 at 528. See also: Smith v. Gannawarra Shire Council (2002) 4 V.R. 344.

1. This case, however, like Meggitt, is one which calls for interference by this Court.  Not only should leave be granted, but also, as we were invited to do in the circumstances, the appeal itself should be treated as having been heard at the same time, with the result that it should be allowed and the matter remitted to the County Court to allow it to be listed as soon as practicable.

1. The error here demonstrated was the judge's failure to appreciate that a party is entitled to a trial of a proceeding ready for hearing unless it is clearly shown that injustice is likely to be caused if the adjournment is refused.  It is not ordinarily sufficient to show that an appeal yet to be heard in another case may reach a legal conclusion which could support the claim made by the party seeking the adjournment.  Of course there are no black and white rules preventing adjournments in appropriate circumstances.  It is not, for example, necessary to say anything here about the adjournment of criminal trials, where the accused may suffer the stigma of being found guilty of an offence where the constituent elements are under direct challenge in an appeal court.  On the civil side there may be cases involving some technical rule of law or the disputed meaning of a particular section, where an appeal court has reserved its decision (or, even, is just about to hear argument), where the hearing and the resolution of the case will directly depend on the outcome of an appeal in a test case, such that it would be preferable to await the expected outcome.  The sooner the appeal is likely to be resolved, the stronger may be the argument in favour of delay, especially in terms of convenience to parties and the trial court itself.

1. Generally speaking, however, a possible change in the law, whether judicial or legislative, is not to be treated as justification for failing to hear a case fixed and ready for trial.  It is not necessary to examine such authorities as there are on the subject, for they were not referred to in argument and all deal with particular cases.  Possible changes in the law are too speculative and it is ordinarily rare that one can foresee that a decision on appeal will necessarily apply in the subject proceeding.  In the end, as I have said on another occasion, it is the principle which counts, not the outcome of a particular case.  Many issues are on appeal in the High Court at any one time and many applications for special leave are in the pipeline, but one cannot demand that trials be delayed and adjourned merely because the outcome of any one of those appeals may have a bearing on the outcome of a particular trial.  One may think of exceptions, particularly where the issue is limited and the appeal to the High Court is intended to resolve a dispute between two directly conflicting lines of authority binding on the trial court, but that would seem to be a rare situation.

1. In the present case there was no justification for taking the case out of the list.  There is in fact no appeal on foot in the South Tweed Heads Rugby Club case and it would be quite wrong to await the outcome of that particular appeal before hearing the present case, even assuming special leave to appeal will be granted.  If there is an error in principle here, then the unsuccessful party can appeal the outcome and the answer to that appeal may lie in the High Court's decision, if it reaches one, in the South Tweed Heads Rugby Club case or possibly in some other case relating to liability in negligence.  Each case must depend on its facts and it is significant to notice that even on the stated question of principle in the South Tweed Heads Rugby Club case Heydon, J.A. said at para. [2]:

"Though the general questions relating to duty discussed in his reasons for judgment [i.e. those of Ipp, A.J.A.] were not fully argued, and though their resolution is not crucial to the outcome of this case, it is convenient, in examining the case as a whole, to take into account those questions."

From this it would seem that it is by no means clear that the matter will be resolved by reference to the asserted principle nor, looking at the present case, will the facts necessarily depend precisely on what statement of principle is reformulated by the High Court, if any principle is reformulated.  But in any event, as I have said, there is no reason to assume for the purposes of such an argument and for such applications as the present, that there will be a change in the law, unless that appears as a likely consequence.  Every case, of course, depends on its own facts.  But the circumstances here outlined are clearly not ones which justified the grant of the adjournment.  The consequential delay was clearly going to be excessive and it was quite unjust to the parties, especially the appellant, to defer the trial for so long for such an uncertain consequence.  As I have said, if this proceeding turns out to have been decided on a wrong principle, that can be corrected appropriately.

1. For all these reasons I consider that the application should be granted and the consequential appeal should be allowed and the matter remitted to the County Court so that the matter may be fixed in accordance with the procedures of that court.

CALLAWAY, J.A.: 

1. I agree.

ORMISTON, J.A.: 

1. The orders of the Court therefore are that:

1.        The application for leave to appeal be granted.

2.        The appeal be instituted and heard instanter.

3.        The appeal be allowed.

4.Order 2 of the order made by Judge Holt on 8 November 2002 be set aside and in lieu thereof this Court orders that the proceeding be remitted for further consideration by the County Court in accordance with its rules and in accordance with the reasons here laid down.

There will be an order for costs in favour of the appellant in relation to both application and appeal and a certificate to the respondent.

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