Portelli v Tabriska Pty Ltd & 4 Ors

[2006] NSWSC 1204

CITATION:	Portelli v Tabriska Pty Ltd & 4 Ors [2006] NSWSC 1204
HEARING DATE(S):	9 November 2006
JUDGMENT DATE :	22 November 2006
JURISDICTION:	Common Law Division
JUDGMENT OF:	Associate Justice Harrison
DECISION:	(1) The fourth defendant's notice of motion filed 26 June 2006 is dismissed; (2) The plaintiff is to file and serve a further amended statement of claim within 14 days; (3) Costs are reserved.
CATCHWORDS:	Strike out statement of claim and cross claims as against the 4th defendant - security for costs
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 (NSW) - Rules 13.4(1), 14.28(1) & 42.21
CASES CITED:	Agar v Hyde (2000) 201 CLR 552, [2000] HCA 41 Air Services Australia v Zarb (NSWCA, unreported 26 August 1998) Dey v Victorian Railways Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Webster & Anor v Lampard (1993) 177 CLR 598
PARTIES:	Clinton Jpseph Portelli - Plaintiff Tabriska Pty Limited - First Defendant Gustav Herstik - Second Defendant Troy Terrence Gibson - Third Defendant Daniel David Stephens - Fourth Defendant John Lee Gorton t/as Elite One National Security Service - Fifth Defendant
FILE NUMBER(S):	SC 20672/2001
COUNSEL:	Dr A Morrison SC - Plaintiff Mr G M Watson SC - First & Second Defendants N/A - Third Defendant Mr Wodrow - Fourth Defendant Ms Csillag - Fifth Defendant
SOLICITORS:	Stacks/Goudkamp - Plaintiff Henry Davis York - First & Second Defendants Lee Peisley & Foley Lawyers - Fourth Defendant Curwoods Lawyers - Fifth Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

WEDNESDAY, 22 NOVEMBER 2006

20672/2001 - CLINTON JOSEPH PORTELLI v
TABRISKA PTY LIMITED & 4 ORS

JUDGMENT (Strike out statement of claim and cross
claims as against the 4th defendant – security for costs)

1 HER HONOUR: By notice of motion filed 26 June 2006 the fourth defendant seeks firstly, an order that the plaintiff’s action as against the fourth defendant be struck out as revealing no sustainable or reasonable cause of action, or alternatively, as an action that has no reasonable prospects of success on the basis of provable facts and on the material evidence against him; secondly, an order that the first and second defendants’ amended first cross claim against the fourth defendant be struck out as revealing no sustainable or reasonable cause of action, or alternatively, as an action that has no reasonable prospects of success on the basis of provable facts and on the material evidence against him; thirdly, an order that the action brought by the fifth defendant in the second cross claim against the fourth defendant be struck out as revealing no sustainable or reasonable cause of action, or alternatively, as an action that has no reasonable prospects of success on the basis of provable facts and on the material evidence against him; fourthly an order that the fourth defendant be removed as a party in these proceedings; fifthly, an order that the plaintiff, the first, second and fifth defendants pay on a pro rata basis the costs of this notice of motion together with the costs incurred by the fourth defendant in defending these actions to date on an indemnity basis; sixthly, in the alternative, an order that the plaintiff’s solicitor, the first, second and fifth defendants provide four the fourth defendant (a) security for costs in the sum of $80,000 on a pro rata basis; and (b) that a stay be granted against the fourth defendant until the money is paid into court; seventhly, in the alternative, an order that T J Goudkamp, solicitor of Stack Lawyers for the plaintiff, Bruce Adrian Cussen, solicitor of Henry Davis York for the first and second defendants and Peter Ford, solicitor of Curwoods Lawyers for the fifth defendant indemnify the fourth defendant.

2 The plaintiff is Clinton Joseph Portelli. The first defendant is Tabriska Pty Limited (Tabriska). Tabriska is the owner of the Aspen Hotel (the hotel) at Jindabyne. The second defendant is Gustav Herstik. Mr Herstik is the licensee of the hotel. The first, second and fifth defendants have cross claimed against the fourth defendant seeking contribution and indemnity. The third defendant is Troy Terrence Gibson. The fourth defendant is Daniel David Stephens. The fifth defendant is John Lee Gorton t/as Elite One National Security Service. The fifth defendant worked in the hotel.

3 The plaintiff relied on two affidavits of Nathan James Kelly dated 21 July 2006. The first and second defendants relied on the affidavit of Bruce Adrian Cussen dated 24 July 2006. The third defendant did not appear and has not taken an active role in these proceedings. The fourth defendant relied on two affidavits of John Phillip Peisley dated 26 June 2006 and 8 August 2006.

The law

4 Rule 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) UCPR) provides that the court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are if the proceedings are frivolous or vexatious, or no reasonable cause of action is disclosed, or the proceedings are an abuse of the process of the court.

5 Rule 14.28(1) of the UCPR provides that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings, or thirdly, is otherwise an abuse of the process of the court.

6 Rule 14.28(1) provides that the court may receive evidence on the hearing of an application for an order under sub-rule (1).

7 In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 the High Court held at 57 that:

“…Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.” [footnotes omitted]

8 According to their Honours at [58], this is because:

“…it would be wrong to deny a plaintiff resort to the ordinary processes of a court on the basis of a prediction made at the outset of a proceeding if that prediction is to be made simply on a preponderance of probabilities...”

9 Similarly, in Air Services Australia v Zarb (NSWCA unreported, 26 August 1998) Rolfe AJA at 13 found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railways Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced some of the passages quoted in Zarb.

10 In General Steel Barwick CJ, who heard the application alone, stated at 130:

“Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”

11 Barwick CJ also said at 129:

“It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense.’”

12 In Webster Mason CJ, Deane and Dawson JJ reinforced the rigorous testing stating, at 602:

“The power to order summary judgment must be exercised with ‘exceptional caution’ and ‘should never be exercised unless it is clear that there is no real question to be tried.”’ [Footnotes omitted]

13 According to Rolfe AJA in Zarb at 15-16:

“The demanding nature of the test is in no way lessened in circumstances where there are the potential for difficult factual and legal issues to arise. Rather, as the decision in Webster made clear, it is heightened: see also Wickstead & Ors v Browne (1992) 30 NSWLR 1 and Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241.”

The pleadings

14 It is pleaded (amended statement of claim filed 29/05/2005) that on 1 August 1998, the plaintiff, in the company of friends, attended the hotel premises. While playing pool a fight broke out between the plaintiff and 3 other patrons of the hotel namely Guy Stephens, Daniel Stephens and Troy Gibson. Some of those involved in the fight were ejected from the hotel including the third and fourth defendants via its entrance. The first, second or fifth defendants, by its servant or agent, showed the plaintiff out of the hotel via its rear entrance.

15 Shortly after the plaintiff left the hotel it is alleged that he was set upon by four males. It is alleged that Troy Gibson and Daniel Stephens were two of the attackers. As a result of the assault the plaintiff suffered severe brain damage. The plaintiff pleads causes of action of assault or trespass to the person and negligence against Troy Gibson and Daniel Stephens.

16 Thus, there were two assaults upon the plaintiff. The first one occurring inside the hotel premises and the second one outside the hotel premises.

17 The plaintiff can give no useful evidence as to his assailants. There is evidence from witnesses David Iverach, Graham Kay and Marcus Herstik, which establishes that Daniel Stephens was amongst those who assaulted the plaintiff in the hotel. David Iverach says that Daniel Stephens admitted to hitting the plaintiff first and knocking him down.

18 Daniel Stephens was charged with the assault of the plaintiff and ultimately acquitted following a trial before a jury in March 2002. Troy Gibson was also charged with the assault of the plaintiff. Troy Gibson was found guilty and convicted.

19 The fourth defendant submitted that no cause of action is obvious or manifest by the facts disclosed in the pleadings, nor in the pleadings of the notice of the amended first cross claim and the amended second cross claim and they should be struck out insofar as they relate to the fourth defendant. The fourth defendant further submitted that he will incur substantial legal costs at trial if he remains a party in these proceedings.

20 The plaintiff submitted that, because the question of the fourth defendant’s liability for allegedly assaulting the plaintiff is factual and depends on the credibility of various witnesses who gave evidence in the criminal proceedings, it could never be said to be manifestly groundless or obviously untenable. According to the plaintiff, the mere fact that a jury had reasonable doubts about the fourth defendant’s involvement in the assault does not effect any subsequent civil proceedings and that the trial judge in civil proceedings might reasonably reach a different conclusion. Similar submissions were made by the first, second and fifth defendants.

21 While there is evidence to the effect that Daniel Stephens assaulted the plaintiff inside the hotel, there was no eyewitness evidence who saw Daniel Stephens assault the plaintiff outside the hotel.

22 However, Constable Waldau gave evidence in the criminal proceedings that he saw Daniel Stephens at the scene of the fight outside the hotel near the plaintiff. Constable Waldau saw Daniel Stephens assault Mr Hansen (t 456-459). Constable Waldau gave evidence of seeing Daniel Stephens walking away from the scene of the fight outside the hotel and saying to the Daniel Stephens “mate come here”, however the fourth defendant then fled the scene. This evidence puts Daniel Stephens at the scene when the outside assault took place.

23 Daniel Stephens admitted limited involvement in the fight inside the hotel in that he restrained Mr Hansen (t 1085). He denied any involvement in the fight inside the hotel and denied that he assaulted the plaintiff outside (t 1015-1016). This evidence is not consistent with the evidence of David Iverach and Constable Waldau.

24 Jason Robinson saw the outside fight going on. He stated (Statement 07/08/1998):

“When I first looked up, I was walking near the intersection of Thredbo Terrace, when I saw the fight but did not see anyone on the ground. A matter of second later I again looked over and saw a guy on the ground at the entrance to the bus terminus. The person on the ground was pretty well lying near the give way signs on the road.
When I saw him, there were a group of guys standing around him and more than one person kicking him to the head area. I was so concerned about what I saw, I immediately ran towards the group.
As I got to the group kicking the guy, they all had their backs to me…
I’ve started to push people away, I was yelling things like “Fuck off, get off him, what are you doing”…”

25 He further stated (Statement 01/08/1998):

“When we got to Thredbo Terrace I heard a commotion, I looked up to my right and saw a fight going on. They were about 50 metres up Thredbo Terrace, at the entrance to a bus terminus there. I could see that there was a guy on the ground and the rest were kicking and stomping on his head. I ran up to where the fight was and I tried to tackle the people off the guy on the ground. At this stage, everyone was moving around. The guy on the ground was unconscious.
…
I’m pretty sure that there were only four guys involved in kicking the one on the ground…”

26 The plaintiff’s friend, Craig Hansen, was with the plaintiff during the evening and was present both inside and outside the hotel. He made the following statement (Statement 02/08/1998):

“I then noticed the guys coming around from the front of the Aspen. They were on Thredbo Terrace already. I saw that it was the same blokes from the Aspen. They stood in front of us and one of them said something like, “Look who we’ve found here.”
The guy with the blonde hair that was talking to Clint in the Aspen just punched Clint straight away. The rest started into him. The next thing I knew I was being punched and fighting with someone who I didn’t know. I remember Clinton and myself were on the ground being punched and kicked. I looked across to Clint and he had two guys forcefully kicking his head and body.
The next thing I remember, I was standing near Clinton who was lying on the ground. I was just yelling at these guys who were standing in front of us in a semi circle. There seemed to be four of them. I was yelling something like, “Fuck off, get away, get away.”

27 Whether or not the plaintiff succeeds in the trial depends on the evidence given by the witnesses and their credibility. Other witnesses who did not give evidence in the criminal trial may be located. In any event, there is also evidence establishing Daniel Stephens was present when both the inside and outside assaults occurred. This is not the clearest of cases and is not the sort of case that is amenable to a summary judgment application. Of course, the civil trial has a different burden of proof to that of the criminal trial. It is my view that the plaintiff, first, second and fifth defendants have reasonable causes of action against the fourth defendant. The pleadings should not be struck out as against the fourth defendant.

28 The plaintiff’s Counsel admitted that the amended statement of claim needs some amendment. The particulars of negligence as against the fourth defendant are not pleaded. The plaintiff is to file and serve a further amended statement of claim within 14 days.

Security for costs

29 Rule 42.21 of the UCPR provides:

“Security for costs

(1) If, in any proceedings, it appears to the court on the application of a defendant:


(a) that a plaintiff is ordinarily resident outside New South Wales, or

(b) that the address of a plaintiff is not stated or is mis-stated in his or her originating process, and there is reason to believe that the failure to state an address or the mis-statement of the address was made with intention to deceive, or

(c) that, after the commencement of the proceedings, a plaintiff has changed his or her address, and there is reason to believe that the change was made by the plaintiff with a view to avoiding the consequences of the proceedings, or

(d) that there is reason to believe that a plaintiff, being a corporation, will be unable to pay the costs of the defendant if ordered to do so, or

(e) that a plaintiff is suing, not for his or her own benefit, but for the benefit of some other person and there is reason to believe that the plaintiff will be unable to pay the costs of the defendant if ordered to do so,

the court may order the plaintiff to give such security as the court thinks fit, in such manner as the court directs, for the defendant’s costs of the proceedings and that the proceedings be stayed until the security is given.


(2) Security for costs is to be given in such manner, at such time and on such terms (if any) as the court may by order direct.

(3) If the plaintiff fails to comply with an order under this rule, the court may order that the proceeding on the plaintiff’s claim for relief in the proceedings be dismissed.

....”

30 There is no evidence that establishes that jurisdiction in Rule 42.21(1) of the UCPR is enlivened. This application for security for costs fails.

31 The fourth defendant’s notice of motion filed 26 June 2006 is dismissed. Costs are reserved.

The Court orders:

(1) The fourth defendant’s notice of motion filed 26 June 2006 is dismissed.

(2) The plaintiff is to file and serve a further amended statement of claim within 14 days.

(3) Costs are reserved.
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