Nguyen v Canley Heights RSL & Sporting Club Ltd

[2005] NSWCA 384

CITATION:	Nguyen v. Canley Heights RSL & Sporting Club Ltd. [2005] NSWCA 384
HEARING DATE(S):	4 November 2005
JUDGMENT DATE:	4 November 2005
JUDGMENT OF:	Hodgson JA at 1; Bryson JA at 1; Hunt AJA at 1
DECISION:	Appeal dismissed with costs.

CATCHWORDS:	TORTS - Negligence - Appeal - Reasons in short form.
PARTIES:	Tranh Thong Nguyen - appellant Canley Heights RSL & Sporting Club Ltd. - respondent
FILE NUMBER(S):	CA 40827/04
COUNSEL:	Mr. G.B. Hall QC with Mr. R. McCloghrey for appellant Mr. B.J. Gross QC with Mr. H. Bauer for respondent
SOLICITORS:	McMahons National Lawyers, Sydney for appellant Eugene Lepore & Associates, Fairfield for respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC993/02
LOWER COURT JUDICIAL OFFICER:	Delaney DCJ

CA 40827/04
DC 993/02

HODGSON JA
BRYSON JA
HUNT AJA

Friday 4 November 2005

NGUYEN V. CANLEY HEIGHTS RSL & SPORTING CLUB LTD.

Judgment

1 THE COURT: The appeal is dismissed with costs and the Court is of the unanimous opinion that the appeal does not raise any question of general principle. Pursuant to Section 45(4) of the Supreme Court Act 1970 the Court’s reasons in short form are as follows.

2 On the findings of the primary judge, the information available to the manager of the respondent prior to the assault was to the effect that the manager had been told that the assailant was drunk and misbehaving towards the appellant, that the manager had spoken to the assailant for noisy behaviour, and that the manager had been told that the assailant had said words to the appellant that were grossly offensive. There was no basis for the primary judge to find that information available to the respondent was more expansive than this concerning the prior incidents.

3 In those circumstances, the finding of the primary judge that it was not a breach of duty for the respondent not to have ejected the assailant was a finding open to him, and that finding was supported by adequate reasons.

4 It was submitted before this Court that the manager, having that information, should have investigated the prior incidents and ascertained the full circumstances; but that was not within the particulars of negligence or grounds of appeal and, apparently, not put below, and it is the view of the Court that, even if it had been, it is not a finding that this court should make.

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