Popovic v Wollongong Spanish Club Limited

[1993] HCATrans 362

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S54 of 1993

B e t w e e n -

LEPENA POPOVIC

Applicant

and

WOLLONGONG SPANISH CLUB LIMITED

Respondent

Application for special leave

to appeal

BRENNAN J

DAWSON J McHUGH J

Popovic 1 19/11/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 NOVEMBER 1993, AT 3.23 PM

Copyright ih the High Court of Australia

MR J.J. GRAVES:  May it please the Court, I appear for the

applicant. (instructed by L.E. Abboud)

MR N.C. CANOSA:  I appear for the respondent, may it please

the Court. (instructed by Hansons)

MR GRAVES:  Your Honours, in this matter, in the applicant's

submission, special leave to appeal should be

granted so that the applicant, for the first time

the applicant submits, will have an appellate

tribunal on a proper factual foundation assess her

challenge to the finding of the trial judge in the

District Court that her action should fail and

judgment should be entered in favour of the

defendant.

The applicant so submits, Your Honours, for

this reason, that in the Court of Appeal the

majority, which comprised Mr Justice Clarke and

Mr Justice Sheller, dismissed the applicant's

material fact found by His Honour the trial judge

appeal, the applicant submits, because

and that misdirection led Their Honours into error

and, indeed, into further error in holding that

there was an evidentiary lacuna in the

applicant/plaintiff's case in the court at first

instance holding that there was no evidence of a

breach by the defendant of its duty of care to the

plaintiff.

The misdirection of fact perpetrated by

Their Honours who constituted the majority was to assess the situation in which the respondent's

bouncer, Mr Prodanovic, found himself as one in

which he was required, in his own interest, to
exercise self-defence. It was plain, the applicant
submits, on the findings of the trial judge and on
the evidence to which the majority referred in the

judgment of Mr Justice Clarke, who was the judge

with whose reasons Mr Justice Sheller conferred

without giving reasons of his own, fell into error.

Could I at once take Your Honours to the error

as the applicant apprehends it in the majority's

decision? The relevant portion of

Mr Justice Clarke's judgment in the application

book is to be found from page 38, almost at the

commencement of that page, and Your Honours will

see that there His Honour Mr Justice Clarke,

referring to the decision of the trial judge, said:

His Honour rejected the appellant's claim

on two grounds. He said that as the risk of

injury to the appellant from further violence

resulting from Mr Prodanovic's retaliatory

Popovic 2 19/11/93

punch was slight, when considered in all the

circumstances, it did not involve a breach of
his duty to the appellant to take reasonable

care for his safety.

And coming down about four lines, His Honour

recited the second ground of the trial judge:

The other ground upon which his Honour based his decision was that the retaliatory punch

was an immediate reaction by Mr Prodanovic and

it was 'a counsel of perfection rather than of

reasonableness to require a man who has just

been unlawfully punched, when performing a

task he is employed to do, to consider the

safety of persons a considerable distance away

in the same room before punching his assailant

back'.

His Honour Mr Justice Clarke then went on to

say this:

Counsel for the appellant challenged that

finding. He submitted that in retaliating

Prodanovic acted in a manner that was not designed or likely to settle the disturbance created by the man who punched him but was, on

the contrary, calculated to cause a melee. In

support of that submission he pointed to

evidence which showed that the man who struck

Prodanovic was five feet tall (although his

build was unknown) and Prodanovic's own

evidence concerning his belief as to the need

for him to do all that he could to see that a

fight did not erupt. That evidence was given

in cross-examination and I will refer to it in

a minute but in order to set the context I

will refer first to evidence which he gave

in chief.

And His Honour recites:

He -

speaking of Prodanovic -

said that he moved from the bar where he had

been standing talking to people across to a

table to ask two male persons to get off it.

He leaned across the table to touch one of the

men by the hand to attract his attention. He

thought this was necessary because there was fairly loud music. As he touched the man he

'copped a smack in the mouth'. In response to

a question enquiring "What happened from

there?" he said "Well in self defence I

Popovic 19/11/93

returned the punch and a second move came from

the second male person with a broken glass".

His Honour then sets out the cross-examination

which, the appellant submits, contains the matter

relied upon by the trial judge that throws up the

error of fact of the majority of the Court of

Appeal.

The cross-examination was this:

"Q. And one of the reasons for removing

people who are not behaving themselves was

because such people might endanger the safety

of other patrons minding their own business in

the club isn't that right? A. That is

correct.

Q. Mr Prodanovic, probably the most important

reasons for removing people who were
misbehaving was to ensure the safety of those

other club patrons who were minding their own

business and seeking to enjoy themselves,

isn't that right? A. That is correct.

Q. As at January 1987 -

it was January 1987, Your Honours, when the

incident occurred giving rise to the applicant's

injuries -

when you were confronted with a situation that

potentially might give rise to a fight in the

club and risk the safety of innocent people, I

take it that you did all in your power to see

that a fight did not erupt between you and the

people you had to deal with? That is correct.

Q. With those considerations uppermost in

your mind is that the reason why you returned

the punch that was occasioned to you by the

five foot fellow sitting on the table?"

A. Well that is not the reason no.

Q. You were in absolutely no fear of your

physical well being from this five foot tall

fellow sitting on the table were you? A. No.

Q. He hit you so you just thumped him back,

isn't that correct? A. That is right."

The error is to be found, so the applicant

submits, in what His Honour Mr Justice Clarke said

at page 40 in the paragraph that commences at

line 15 and going through to the end of that page.

His Honour said:

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Further his Honour made no finding as to

why Prodanovic did punch the man. In these

circumstances I find it difficult to hold, as counsel for the appellant would have us hold,

that there was no element of self-defence. If

in fact Prodanovic was acting in self defence

then, as counsel seemed to accept, it would be

hard to describe his conduct as unreasonable.

But even if one assumes that there was no

element of self defence in Mr Prodanovic's conduct there remains the question whether

it has been shown that he acted in a way that

a reasonably prudent security officer would

not act faced with the emergency which

confronted him.

There is the first error, the applicant submits;

that is, that at the point in time when the

bouncer, Mr Prodanovic, charged with the duties

that he conceded and understood to which I have

taken Your Honours at page 39, there was in fact no

emergency. His Honour then went on:

There can be little question but that he

was faced with a very ugly scene -

Your Honours, the very ugly scene, as be apparent from the findings of the trial judge to which I

will take you in a moment, was created by the very act of which the applicant complained, namely, the

retaliatory punch thrown by the bouncer charged

with the safety of persons such as the applicant.

It was then and only then, that is, it was after

and only after the bouncer threw that punch that

the melee erupted.

That that is so, may I refer Your Honours to

His Honour Judge Knight's findings of fact which were not challenged before the Court of Appeal and

they appear in Mr Justice Clarke's judgment at

page 36 of the application book. If I could

commence at line 6:  His Honour reviewed the evidence which

had been called and made a number of findings

of fact. They have not been challenged by

either the appellant or the respondent and it

is convenient to set them out.	They were as
follows:

ttl, That approximately 10.30 Sunday

18 January 1987 a brawl occurred in the

upstairs area of the defendant/club involving

Mr Prodanovic and two or three other men.

Popovic 19/11/93

I interpolate there, Your Honours: that is an

incident different to the incident with which the

plaintiff became involved.

2. That approximately half an hour after such
brawl ceased viz: - at approximately 11.00 pm

two of the men involved in such brawl were

sitting on the top of a table near the bar.

3. That Mr Prodanovic approached such men in

order to ask them to get off such table and

lent forward to touch one of those men to

catch his attention. As he did so the man

punched him in the mouth.

4. That Mr Prodanovic then immediately

retaliated by punching the man who had struck

him whereupon the other man on the table

attacked Mr Prodanovic with a broken glass.

5. That Mr Prodanovic defended himself by

blocking with his left arm the attack with the

broken glass. This resulted in his left arm
being badly cut by that glass below the elbow.

As Mr Prodanovic blocked the attack on him
with the glass he was hit over the head with a

chair from behind.

6. That Mr Prodanovic took the chair

from - - -

BRENNAN J:  Mr Graves, we do not need to hear the appeal,

you understand.

MR GRAVES:	I understand that, Your Honour.
BRENNAN J:	You have got to make a special leave case out of

this in some way.

MR GRAVES:  Yes, Your Honour, I understand that.

McHUGH J:  What is the special leave point, Mr Graves?

MR GRAVES: It is, Your Honour, that the administration of

justice in this particular case requires this Court

to bring up this appeal and hear it because, as I

said in my opening to Your Honours, whilst there

has been, apparently, a hearing on the merits by an

intermediate appellate court, if Your Honours were

to accept the burden of the applicant's submission,

that burden is that in fact she has not been

accorded that intermediate appeal in the sense that

two of the judges, the judges who constituted the
majority, found against her because they

misdirected themselves as to the findings of fact,

unchallenged findings of fact - - -

Popovic 6 19/11/93

McHUGH J: That just means they made a mistake on the facts.

That is not a special leave point. I mean, the profession has got to understand that the cases

where a factual issue will raise a special leave

case are few and far between, if any exist at all.

MR GRAVES:  Your Honour, the applicant understands that and

if it was a matter of coming here and saying to

this Court, "On the facts found at first instance

and agreed to by a majority of the Court of

Appeal, with the greatest respect, the applicant

would agree with what has fallen from Your Honour

Justice McHugh", but what the applicant says is

that is not this case. The applicant does not come

here and say that the High Court should, as a

second appellate tribunal, again sift the facts.

The applicant says that the Court of Appeal has

misdirected itself where there was no factual

controversy and that misdirection, in law, has

caused an injustice, that the appeal has gone off

because of Their Honours misdirecting themselves as

to the facts found.

With respect, the applicant submits that that is a different case to an applicant coming here and

seeking to simply agitate a factual controversy

that has been found against her at first instance

and at the intermediate appellate level.

McHUGH J: That only means they made a wrong conclusion of

fact concerning negligence because, in your

submission, they made a mistake about an

intermediate fact. It is still just a factual

question.

MR GRAVES:  Yes, Your Honour. The applicant submits that in

respect of section 35AB of the Judiciary Act this
case falls fairly and squarely within that
provision; that notwithstanding the absence of a
point of public importance of general application

it, with respect to the administration of justice

in a particular case - the case ought to be brought

up. That provides the trigger for a good special

leave point. I have articulated the point. I can

do no more. It is for those reasons, in the

applicant's submission, special leave should be

granted.

BRENNAN J:  Thank you, Mr Graves. We need not trouble you,

Mr Canosa.

The submission made on behalf of the applicant

challenges the findings of fact upon which the
Court of Appeal have reached their decision to

dismiss the applicant's appeal from the District

Court. This Court does not ordinarily grant

special leave to re-examine the evidence and to

Popovic 19/11/93

review the facts found by or acted upon by the

intermediate court.

This case raises no question of general public

importance, nor does the case warrant a grant of

special leave to ensure the administration of

justice after the Court of Appeal has reviewed the

facts. In order to make the applicant's case it

would be necessary for this Court to examine for

itself the evidence. That is not the function of
this Court. Accordingly, the application for

special leave is refused.

MR CANOSA: Costs, Your Honour.

MR GRAVES:  I have nothing to say.

BRENNAN J: It will be refused with costs.

AT 3.41 PM THE MATTER WAS ADJOURNED SINE DIE

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