Orcher v Bowcliff Pty Ltd trading as The Bridge Hotel Rozelle & Ors; Orcher v QBE Insurance (Australia) Limited & Ors

[2014] HCATrans 139

[2014] HCATrans 139

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S17 of 2014

B e t w e e n -

JOHN JAMES ORCHER

Applicant

and

BOWCLIFF PTY LTD TRADING AS THE BRIDGE HOTEL ROZELLE

First Respondent

RICHARD FRANCIS KEOUGH

Second Respondent

QBE INSURANCE (AUSTRALIA) LTD

Third Respondent

Office of the Registry
  Sydney  No S18 of 2014

B e t w e e n -

JOHN JAMES ORCHER

Applicant

and

QBE INSURANCE (AUSTRALIA) LIMITED

First Respondent

BOWCLIFF PTY LTD T/AS THE BRIDGE HOTEL

Second Respondent

RICHARD FRANCIS KEOUGH

Third Respondent

Applications for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 JUNE 2014, AT 11.49 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 J.C. LEE, for the applicant in both matters.  (instructed by Carneys Lawyers)

MR R.S. SHELDON, SC:   May it please the Court, I appear for Mr Keough and Bowcliff in both applications.  (instructed by Wotton & Kearney)

MR M.T. McCULLOCH, SC:   May it please the Court, I appear with my learned friend, MS T.A. BERBERIAN, for the QBE interests.  (instructed by HWL Ebsworth Lawyers)

HAYNE J:   Yes, Mr Sexton.

MR SEXTON:   Thank you, your Honour.  Your Honours, the issue which we raise is what is the test for an appellate court deciding that the primary judge was in error before substituting its own view of the evidence, in circumstances in which in this case the appellate court, contrary to the primary judge’s finding, based its decision not on a different interpretation of what the appellate court saw, but on the basis that the appellate court could not see from the CCTV footage which was a central exhibit in the case any of the matters that the applicant relied on as essential to its case.

Can I take your Honours to application book at page 188, the judgment of Justice Tobias, because paragraph 126 encapsulates the applicant’s case below, in particular, that the relevant risk which eventuated was that Mr Paseka, who was one of the parties, was the person who punched the applicant:

might overreact to some comment made by the respondent by throwing an otherwise unprovoked but devastating punch.  It was thus not a question of divining Mr Paseka’s thought processes.  It was a question of Mr Paea –

who was the security guard employed by DSS Security –

watching a mere glass collector, who moments before had collected a glass bottle from a patron and was therefore apparently working, then crossing the street towards two patrons who had been doing something which had clearly and continuously attracted Mr Paea’s attention for some time.  For reasons already indicated, I would not accept that the CCTV footage supports this last submission.

The primary judge dealt with the factual finding about what Mr Paea could see relatively briefly and ‑ ‑ ‑

HAYNE J:   Just before you come to that, can I understand what you would say, if leave were granted, you would have this Court do?  Would you have it look at the CCTV footage and form a third view?

MR SEXTON:   Yes, your Honour.

HAYNE J:   Or would you say that the Court of Appeal should not have looked at the CCTV?

MR SEXTON:   No, I would not say that, your Honour.  So, yes, I am ‑ ‑ ‑

HAYNE J:   Then it becomes, does it not, Mr Sexton, simply – I was going to say a retrial.  You would rightly say that is being very tendentious – but just another go at what is apparent from the CCTV?

MR SEXTON:   Yes, your Honour, it really does boil down to that.

HAYNE J:   Is that a matter that is suitable to come to this Court?

MR SEXTON:   Only in cases which, as we submit, this is one where there has been a clear injustice because one member of the Court of Appeal, I think it appears from something that is said at 164, namely, that it was – and your Honours have to understand a little bit by way of background here.  The primary judge looked only at the CCTV footage.  When the respondents in this Court appealed, directions were made about preparing a chronology.  I think it is fair to say that that may have caused more trouble than it saved.  But Justice Tobias says at line 39 that he referred to the “frames in the chronology” which he “checked against the original footage”.

In our submission, can we infer from that that it was only Justice Tobias who looked at the original footage at least after the matter had been reserved.  The footage was shown to the Court of Appeal.  But the argument in the Court of Appeal very much turned on stills from that footage which, in our submission, do not give effect to what can be discerned from it when it is just simply viewed.  But it is only about three minutes of footage and, going back to the original point, in our submission, there is an issue which requires clarification by this Court in terms of what the approach should be applying the principles that have been stated and restated a number of times about appellate rehearings.

BELL J:   At paragraph 61, as I understand it, all Justice Tobias is noting is that he had checked as against the chronology the accuracy of the references to the frames.  All the members of the court saw the CCTV and in this respect all the members of the Court of Appeal were in agreement that the quality of the images did not admit of the finding that the primary judge made in relation to Mr Paea’s view of events.  Is that not so?

MR SEXTON:   They certainly agreed in what was said by Justice Tobias about the footage being, as he put it, too obliterated, blurry and unclear at critical moments, but ‑ ‑ ‑

BELL J:   The court was unanimous in looking at the material that was the essence of the case.

MR SEXTON:   Yes, your Honour.

BELL J:   They did not suffer any disadvantage by comparison with the trial judge.  There is a careful recital of all the principles that are to be applied by an appellate court in the conduct of a 75A rehearing in Justice Tobias’s judgment.

MR SEXTON:   One of the things that I was about to say earlier was that when Justice Harrison at first instance at paragraph 205 ‑ ‑ ‑

HAYNE J:   Page?

MR SEXTON:   Page 79, your Honours.  At line 42 he says that what was happening across the street – paraphrasing – “it undoubtedly attracted Mr Paea’s attention”.  One reason why the primary judge may well have dealt with it shortly is that he recorded at page 57 of the application book in paragraph 133 that the hotel parties, that is, Bowcliff Pty Limited and Mr Keough, adopted what the applicant said in contending that “DSS Cousins knew, through Mr Paea, what was happening on the street”.  So that it was not particularly contentious at first instance, and that no doubt explains why the primary judge did not deal with it in the detail that the Court of Appeal did, that what was on the CCTV footage could be seen.

The way in which, as is apparent from the reasons, the hotel respondents dealt with their defence was not so much on a factual basis, but on a legal basis involving whether the duty which was asserted could extend beyond the Real Property Act boundaries of the hotel.  True it is that QBE defendant appearing in the shoes of DSS Security contested what could be seen on the CCTV, but that in part explains why the primary judge perhaps did not go into the same detail about it.  But in that regard it does come down to an appeal to this Court to revisit that factual finding because of the potential injustice if what the Court of Appeal says cannot be seen, can be seen.  Your Honours, I cannot put it any higher than that.  They are the submissions.

HAYNE J:   Thank you, Mr Sexton.  We will not trouble counsel for the respondents.

In our opinion an appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave to appeal.  Special leave is refused.  It must be refused with costs.

The Court will adjourn to reconstitute.

AT 12.00 PM THE MATTER WAS CONCLUDED