Rouvinetis v Knoll

[2013] NSWCA 24

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Rouvinetis v Knoll [2013] NSWCA 24

Hearing dates:

29 January 2013

Decision date:

19 February 2013

Before:

Basten JA at [1];
Barrett JA at [63];
Ward JA at [64]

Decision:

(1) Without resolving the objection to competency, dismiss the appeal.

(2) Order the appellant to pay the respondent's costs in this Court, including, in the case of the Board, those relating to the objection to competency.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - civil - objection to competency - requirement to obtain leave if compensation in issue less than $100,000 - compensation not assessed in court below - failure by appellant to file an affidavit in accordance with Uniform Civil Procedure Rules 2005 (NSW) - consequence of failure - procedure for determining competency

BIAS - apprehension of bias - assertion that the trial judge was Jewish and a Zionist - a defendant in proceedings a judge of the same Division of the Court as the trial judge - no application for the trial judge to disqualify herself - unrepresented litigant aware of the source of possible apprehension of bias - waiver of right to object

TORTS - negligence - assault - battery - wrongful imprisonment - appellant detained by security guards - whether only reasonable force used

Legislation Cited:

Law Enforcement (Power and Responsibilities) Act 2002 (NSW), s 100
Security Industry Act 1997 (NSW), ss 7, 23A, 36,
Supreme Court Act 1970 (NSW), ss 85, 101
Uniform Civil Procedure Rules 2005 (NSW), r 51.22

Cases Cited:

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577
CUR 24 v Director of Public Prosecutions [2012] NSWCA 65
Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No 2) [2001] NSWCA 450
Goodwin v Commissioner of Police [2012] NSWCA 379
Maynes v Casey [2011] NSWCA 156
Makucha v Sydney Water Corporation [2011] NSWCA 234
Maroubra Rugby League Football Club v Malo [2007] NSWCA 39; 69 NSWLR 496
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427
Rouvinetis v Knoll [2009] NSWSC 1212
Smits v Roach [2006] HCA 36; 227 CLR 423
Vakauta v Kelly [1989] HCA 44; 167 CLR 568

Category:

Principal judgment

Parties:

Evangelos Rouvinetis (Appellant)
David Knoll (First Respondent)
Paliguard Pty Ltd (Second Respondent)
Stephen Rothman (Third Respondent)
Yair Miller (Fourth Respondent)
Robin Margo (Fifth Respondent)
Sam Zweie (Sixth Respondent)
Uri Windt (Seventh Respondent)
Graham de Vahl Davis (Eighth Respondent)
Robert Goot (Ninth Respondent)
Gerry Levy (Tenth Respondent)
Michael Marx (Eleventh Respondent)
Peter Wertheim (Twelfth Respondent)
George Foster (Thirteenth Respondent)
Alan Gold (Fourteenth Respondent)
Jeremy Jones (Fifteenth Respondent)
Roma Sheil (Sixteenth Respondent)
Irving Wallach (Seventeenth Respondent)
Susi Brieger (Eighteenth Respondent)
Josie Lacey (Nineteenth Respondent)
Llona Lee (Twentieth Respondent)
Ian Lacey (Twenty-first Respondent)
Robin Schuck (Twenty-second Respondent)
Jillian Segal (Twenty-third Respondent)

Representation:

Counsel:

Applicant in person
Ms PA Horvath (First and Third to Twenty-Third Respondents)
Mr D A Lloyd (Second Respondent)
Solicitors:

Applicant self-represented
Holman Webb Lawyers (First and Third to Twenty-Third Respondents)
Lee & Lyons Lawyers (Second Respondent)

File Number(s):

CA 2008/288048

 Decision under appeal 

Jurisdiction:

9111

Citation:

Rouvinetis v Knoll & Ors [2011] NSWSC 1352

Date of Decision:

2011-11-10 00:00:00

Before:

Fullerton J

File Number(s):

SC 2008/288048

Judgment

1. BASTEN JA: On 9 April 2008 Mr Rouvinetis suffered injury as a result of being forcibly detained by security staff at Sydney Girls High School in Moore Park, Sydney. At the time there was a Passover dinner taking place at the school, organised by the Jewish Board of Deputies. Mr Rouvinetis was not an invitee, but, on seeing people in the school grounds whilst on an evening walk, entered the grounds to make inquiries as to what was happening. The security staff asked him to leave but instead he apparently tried to enter the building in which the dinner was being conducted. He was forcibly detained, with handcuffs, until police arrived. He was then released and given a direction to move on, which he did. No charges were brought against him. Despite the physical injuries suffered being relatively minor, he commenced proceedings in the Supreme Court against the company which engaged the security staff and against the Jewish Board of Deputies, claiming damages for assault, battery and false imprisonment and in negligence. The matter was heard by Fullerton J who dismissed the proceedings: Rouvinetis v Knoll [2011] NSWSC 1352.

1. Mr Rouvinetis lodged a timely notice of appeal against that judgment. An objection was taken by the respondents to the competency of the appeal on the basis that, even if successful on liability, the appellant had no realistic prospect of obtaining a judgment in an amount of $100,000 and accordingly, leave was required pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW). The matters now before the Court are the objection to competency and the appeal, if it be competent. For the reasons explained below, the proceedings must be dismissed and Mr Rouvinetis must pay the costs of the respondents.

Procedural issues

1. Although for a period Mr Rouvinetis had legal assistance from senior counsel, he appeared unrepresented before the trial judge and in this Court. That may have resulted in the issues for determination not being identified with the precision expected of lawyers, together with departures from established practices and procedures.

1. At trial, these difficulties were apparent in a number of ways. For example, there was limited attention given to the elements of the causes of action and, arguably more importantly since the fact of forcible restraint was not in issue, the elements of any defence of lawful justification. Further, they were reflected in the failure of Mr Rouvinetis to cross-examine the security staff in relation to important aspects of their evidence which were inconsistent with his.

1. In this Court, there was some procedural confusion. Apparently in response to the objection to the competency of the appeal, Mr Rouvinetis filed an application for leave to appeal. The usual practice of the Court in such circumstances is to list the objection to competency and the leave application together and, if thought appropriate, prior to the hearing of the appeal. In the present case this happened. However, the application for leave to appeal was dealt with first, being dismissed in an ex tempore judgment on 23 April 2012. In refusing leave, the Court noted that the listing of the objection to competency had been brought to the attention of the Court but that no relevant papers had been included in the white folder provided to the Court as then constituted and Mr Rouvinetis had said that he was not aware that the matter was to be dealt with and was not in a position to deal with it: Judgment at [19].

1. This Court does not have available to it the contents of the white folder that was considered on the leave application. However, it may be gleaned from the judgment on the application that the arguments then presented did not fully reflect the submissions sought to be made on the appeal, as revealed in the material before this Court. Dismissal of an application for leave to appeal would not necessarily preclude a further application.

1. There is a further unfortunate procedural anomaly. The defendants at trial (and the respondents on appeal) covered two entities. First, there were the members of the Jewish Board of Deputies (or the Executive Committee thereof) at the time of the events the subject of the claim and, secondly, the company which engaged the security staff, namely Paliguard Pty Ltd. The individuals, to whom it is convenient to refer as "the Board", filed the objection to competency: there was no similar motion filed by Paliguard. Accordingly, on one view the appeal in relation to the judgment dismissing the claim against Paliguard must in any event be addressed, it not having taken the objection to competency brought on behalf of the Board. Although counsel for Paliguard indicated at the hearing that he supported the arguments put by counsel for the Board in respect of the objection to competency, he made no application on behalf of his client.

1. The notice of appeal was technically defective. The grounds, elliptically stated, were "bias, errors in fact/s". Although the trial judge had carefully distinguished the situation of the Board and Paliguard, that necessary legal step was not reflected in the single notice of appeal, nor in the appellant's written submissions in support of the appeal, which were treated by the respondents as providing particulars of the grounds.

1. No proceedings were brought against the individual security staff for forcibly detaining the plaintiff. It was, however, accepted that Paliguard was vicariously liable for their conduct, to the extent that it was tortious. Even if the conduct had been tortious, the liability of the Board was obscure. There was no significant challenge to the determination of the trial judge rejecting the claim against the Board.

1. While the plaintiff sought to challenge certain factual findings made by the trial judge, the primary focus of the appeal was the allegation of "bias". Although the distinction was not addressed, the respondents, reasonably in the circumstances, assumed that the allegation was directed to a reasonable apprehension of bias, rather than actual bias. That approach provided a lower hurdle for the appellant and should be accepted.

1. A claim of apprehended bias, if made good will "strike at the validity and acceptability of the trial and its outcome": Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 at [117] (Kirby and Crennan JJ). Where there is an arguable case of apprehended bias, but leave is required, it will often be appropriate to grant leave for this reason. Where leave is not required, it may be appropriate to address questions of bias before reaching other issues: Concrete Pty Ltd at [117]; cf Goodwin v Commissioner of Police [2012] NSWCA 379 at [15]-[25]. Although the plaintiff should not succeed on that ground, it is desirable to explain why that is so.

Competency of appeal

1. The trial having been conducted in the Common Law Division of the Supreme Court, an appeal lay to this Court from the judgment or order below, pursuant to s 101(1) of the Supreme Court Act. The right to appeal thus conferred is subject to the requirement to obtain leave of this Court in the circumstances set out in s 101(2). The judgment was a final judgment, for which leave was required if the matter at issue on the appeal amounted to compensation of less than $100,000. Where, as in the present case, the appeal is concerned with questions of liability in respect of compensation which has not been assessed, there is a practical question as to how the leave requirement operates. That question involves both a procedural element and a question as to the appropriate standard of satisfaction as to the amount involved.

1. The procedural element is dealt with in the Uniform Civil Procedure Rules 2005 (NSW) in Part 51, which is concerned with proceedings in this Court:

"51.22 Absence of restrictions on appeals as of right to be shown by affidavit

(1) This rule applies if an appeal ... as of right is restricted by any Act by reference to:

(a) a specified amount or value ....

(2) The appellant ... must, on filing the notice of appeal ..., file and serve on each necessary party an affidavit that:

(a) identifies the nature of the restriction (including a reference to the provision of the Act that imposes the restriction), and

(b) sets out the material facts on which the appellant ... relies to show that the restriction does not apply."

1. The appellant did not file an affidavit in compliance with r 51.22(2), either with the notice of appeal or at any subsequent time after the issue had been drawn to his attention. However, the Court would not necessarily set aside a notice of appeal as incompetent purely on the basis of that non-compliance with the rules if it were otherwise satisfied that the amount in issue was likely to be over the statutory threshold.

1. The common form of affidavit used in these circumstances is one from the solicitor for the appellant, which annexes the relevant medical evidence and expresses an opinion as to the likelihood of the amount in issue exceeding the threshold. As explained in Maynes v Casey [2011] NSWCA 156 at [8], the expression of such an opinion is neither necessary, nor sufficient. The content of the affidavit is to be guided by the purpose of the rule which, it has been held, is to satisfy the Court that the appellant has "reasonable prospects of obtaining a variation in the judgment below in an amount equal to or exceeding the statutory figure": Maynes at [9] and authority to referred to there, together with Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No 2) [2001] NSWCA 450 at [12] (Priestley JA and Sperling J), relied upon by the Board in the present case.

1. In support of its objection to competency, the Board filed an affidavit of its solicitor which helpfully set out the appropriate references to the particulars of damage contained in the further amended statement of claim, noted that there was a claim for exemplary and aggravated damages, gave transcript references to the appellant's evidence as to the injuries he had suffered, noted the medical evidence tendered at the hearing and referred to the comments of the trial judge in respect of aspects of this evidence. The affidavit concluded with an opinion that had damages been awarded, the amount would not have exceeded $100,000.

1. At the time of the incident, the appellant was 68 years of age. According to the appellant's own evidence, he came onto the school grounds in a spirit of inquiry as to what people were doing on the grounds late in the evening and behaved in a dignified and non-aggressive manner. He was confronted by men dressed in black, armed with batons who, without responding to his statements that he was well known to those in charge of the school and without answering his questions as to their authority to remove him from the premises, proceeded to throw him face down on the concrete and handcuff his hands behind his back. He also claimed to have been kicked in the shins. A medical certificate stated that he had multiple abrasions to his forehead, bruises to both legs and knees and to his shoulders, arms and pectoral areas. A report prepared by his general practitioner noted that he had undergone x-rays and soft tissue ultrasounds of both shoulders and elbows. The practitioner, Dr Theo Rothonis, further stated:

"These tests showed that no fractures were sustained but there was significant injury to the tendons of the left elbow as well as a large full thickness tear of the right supraspinatus tendon (shoulder) with bruising, swelling and inflammation of the left shoulder. These injuries were not present previously and were a direct result of his treatment on that night."

1. The report, dated 3 October 2009, further stated that he had continuing pain in the shoulders, elbows and wrists and was unable to raise his arms above his shoulders on most days due to the pain. Dr Rothonis opined that the physical disabilities were permanent.

1. On 6 May 2011, the appellant underwent a hernia operation for a right-sided inguinal hernia. Dr Rothonis provided a certificate stating his opinion that the hernia was "definitely contributed to by the physical strain he was subjected on the 9/4/2008 when he was physically restrained with undue force".

1. The respondent accepted in oral submissions that if causation were to be established and the injuries identified were accepted at face value, and assessed under the Civil Liability Act 2002 (NSW), disregarding the claim in respect of the hernia, he might receive general damages in the order of $35,000: CA Tcpt, 29/01/13, p 10(45). Due to his age, no claim was made for economic loss and, although it was asserted in the further amended statement of claim (prepared when the appellant had legal representation) that he had suffered other forms of special damage which would be particularised, it does not appear that any were.

1. There was, however, also a claim for aggravated and exemplary damages, the quantum of which again depended on acceptance of the appellant's evidence. According to his evidence, he was violently forced to the ground and handcuffed and then held face down on the concrete for some 25 to 30 minutes before the police arrived. If his evidence as to his behaviour and as to the circumstances of his restraint were accepted, he had reasonable prospects of obtaining compensation by way of aggravated damages and an award of exemplary damages. It is conceivable that such conduct, carried out towards a non-aggressive elderly man could reach a figure of $50,000. If that were so, and general damages as high as $40,000, it might be difficult to conclude that there was no real prospect of him obtaining compensation in an amount of $100,000, unless the chance of acceptance of his evidence were significantly discounted.

1. In making that assessment, it would also be necessary to take account of the factual findings of the trial judge, based upon the oral testimony of the witnesses. Although many of the findings were challenged on appeal, the prospects of success on the appeal would logically affect the prospects of achieving a particular level of compensation, where the assessment of the compensation would depend to a large extent on acceptance of the appellant's own evidence.

1. Given that the objection to competency and the appeal were listed together and argument on both was presented to the Court, there is a degree of artificiality in seeking to address the objection to competency separately from the grounds of appeal which, subject to the question of bias, were directed entirely to the assessment by the trial judge of the evidence. Further, as already noted, there is a question as to what relief would be appropriate, were the preconditions to the objection established. Accordingly, it will be convenient to return to the objection to competency after considering the principal grounds of appeal.

Apprehension of bias

1. A judge should not sit to determine a case if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question to be determined: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [31]. The test is objective: this Court is not required or permitted to form a view as to whether the trial judge could be relied upon to determine the case impartially and on the evidence before her. The ground of disqualification is designed to maintain public confidence in the administration of justice. The Court must thus accept that a fair-minded lay observer will not necessarily have the same confidence as do judicial officers in the ability of their colleagues to maintain objective impartiality. The fair-minded observer may have a level of scepticism as to professional pretensions, but will also be vigilant against his or her own prejudices. The standard applied cannot operate unless it assumes a degree of acceptance of that which it seeks to preserve, namely a public perception as to the ability of judges to adhere to the obligations of the judicial oath and decide proceedings without fear, favour or affection, prejudice or ill-will. Characteristics of ethnicity, religious belief (or absence thereof), political preference, gender and many other factors are to be found in all judicial officers and do not form a basis in themselves for disqualification. Even the assumption that those who share a common characteristic with one party in a case will favour that party should not necessarily be ascribed to the fair-minded lay observer.

1. A further question arose, both on the leave application and in the present appeal, as to how the Court should address factual allegations which were not established on the evidence. In CUR24 v Director of Public Prosecutions [2012] NSWCA 65 the Court held that it was neither necessary nor appropriate to make findings of fact on the balance of probabilities, where the basis of an alleged pre-judgment was a statement by the judge at a social function: at [43]-[44] (Meagher JA, Whealy JA agreeing); see also [22] in my judgment.

1. Different considerations may arise where the basis of the recusal application lies not in something said or done by the trial judge but in his or her membership of a class of people defined by a characteristic of the kind noted above. Where such an issue arises it is not only inappropriate to invite the judge to answer questions about his or her beliefs or characteristics (which if asked, should not be answered) but inappropriate to tender material to demonstrate a factual basis for such allegations. In Makucha v Sydney Water Corporation [2011] NSWCA 234, a case involving a claim to intellectual property, the Court dealt with an objection based on a reasonable apprehension of bias based on a claim that the judge was Jewish (reliance being placed upon statements in the Torah said to be inconsistent with acceptance of intellectual property rights) and a Mason (who would not disbelieve the word of another Mason who was a witness in proceedings): at [6]. The present case is not dissimilar: the appellant asserted that the trial judge was Jewish and a Zionist. No evidence was tendered in support of these characterizations, nor would it have been admitted had it been proffered: Makucha at [7]-[9]. No reasonable apprehension of bias would arise on these grounds.

1. A second basis on which bias was apprehended arose from the fact that the third defendant in the proceedings, named as a member of the Board, was Justice Rothman, a member of the Common Law Division of the Court. At the relevant time, Rothman J was also the sole shareholder and director of the second defendant, Paliguard.

1. The potential embarrassment which might be caused by a trial judge hearing proceedings against a colleague in the same Division of the Court was recognised at an early stage of the proceedings. Whilst the appellant had solicitors and senior counsel acting for him, an application was made for the proceedings to be heard by a jury, on the basis that the third defendant was a judge of the Court. The application was heard and determined, on 19 November 2009, by RA Hulme J: Rouvinetis v Knoll [2009] NSWSC 1212 at [41]-[55]. Civil proceedings are to be tried without a jury "unless the court orders otherwise": Supreme Court Act, s 85(1). The court is empowered to order otherwise if satisfied that "the interests of justice require" a trial by jury: s 85(2)(b). RA Hulme J noted that the circumstances in which that reasonably stringent test might be satisfied were discussed in Maroubra Rugby League Football Club v Malo [2007] NSWCA 39; 69 NSWLR 496 at [33], where Mason P accepted that "the combination of serious credibility issues and something more (for example, a serving judge as a potential witness) might require trial by jury in the interests of justice". RA Hulme J then noted the submission that it would be "inappropriate and potentially damaging to the justice system to have one Judge assessing the interests or evidence of another, particularly where there is an alternative": at [46]. He noted that there was then doubt as to whether the judge would be required to give evidence, but accepted that there was a separate issue as to his interest in the outcome of the proceedings, whether or not that interest would be protected by insurance. He continued:

"[51] There is force in the submission on behalf of the defendants that trial by jury would not be the cure for which the plaintiff contends. A judge would still be required to making rulings and give directions on a variety of questions of law ....

[52] The position of each of the defendants was that nothing was required to be done in the interests of justice in this case but that if it did emerge that the Judges of this Court were embarrassed in any way by the prospect of presiding at the hearing of the matter then a judge from another State or Territory could be appointed to preside. ...

...

[55] I am not persuaded that the interests of justice in this case require that there be trial by jury. It would not provide the panacea for the problems that senior counsel for the plaintiff foresees, if those matters be problems at all. If it is necessary there is available an alternative course but that is a matter best left for determination after the parties are more completely aware of the nature of the evidence to be led and the issues to be joined at the final hearing."

1. At some point after that application had been disposed of, both senior counsel and his instructing solicitor declined to act further for the appellant. Although the subsequent procedural history is not before this Court, further steps must have been taken over the ensuing period of almost two years between the judgment of RA Hulme J and the commencement, on 19 September 2011, of the trial before Fullerton J. It is clear that the appellant was not oblivious to the problem. On 9 September 2011 he wrote to the Chief Justice noting that Rothman J was a defendant in the proceedings, although that point was immersed in some four and a half pages of unrelated history and commentary. At the foot of page 3, the appellant stated (without correction of errors):

"The plaintiff/s rights, if any, seem to have gone up the smoke in these proceedings, most likelly by the people who may have infiltrated this court and his fundamental liberty to know the mode of trial this court is to apply in this hearing as major defendant is Stephen rothman, been on a bench of this court and the same division of the hearing."

1. The letter concluded (at p 5):

"And now on the gist of this address, this case can not be heard in this court where the camara of rothman is, nor by a judge who is a colleague of and seen and talk to rothman

...

This case, must be moved out of this court and be heard under a judge who is not a jew and has no affiliations with them, bring in a judge from interstate or one retired of repute like the honor/s of [three names were given, of whom one was a serving member of the Court]."

1. The hearing before Fullerton J commenced 10 days later and before a response had been received to the letter of 9 September. On 12 October, the Principal Registrar and Chief Executive Officer of the Court responded indicating that the Chief Justice was not in a position to intervene in proceedings before a judge in the Division. Importantly, however, when the trial commenced and after appearances were noted, Mr Rouvinetis was invited to address and opened the case by going directly to the materials to be relied upon, without any application for the trial judge to disqualify herself or seeking to have a judge from a different court or a retired judge conduct the hearing. Of course, if such an application had been made for the first time at the opening of the hearing, it might have met resistance. However, the materials before this Court indicate that no such application was made, either on that occasion or, so far as the evidence goes, on any other occasion after the failure of the application for trial by jury. Even the letter to the Chief Justice must have been written after the matter was listed for hearing.

1. A question arises as to whether, in these circumstances, the appellant can maintain his objection to a trial in the Common Law Division. In Smits v Roach [2006] HCA 36; 227 CLR 423, Gleeson CJ, Heydon and Crennan JJ stated at [43]:

"It has been held in this Court, on a number of occasions, that an objection to the constitution of a court or tribunal on the ground of apprehended bias may be waived, and that, if a litigant who is aware of the circumstances constituting a ground for such objection fails to object, then waiver will result."

1. The reasons in Smits made reference to the judgment of Brennan, Deane and Gaudron JJ in Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 572 where it was said that "a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment".

1. The reference to legal representation implied that a litigant in person might not be expected to recognise that comments capable of conveying bias to the fair-minded lay observer might disqualify the judge from continuing to sit. That qualification does not apply where the source of the concern is well known to the litigant at an early stage of the proceedings and the possible means of avoiding the difficulty have been adverted to, both in an interlocutory judgment and in his own correspondence with the Chief Justice.

1. The High Court returned to the question of waiver in Michael Wilson & Partners at [74]-[86]. Gummow ACJ, Hayne, Crennan and Bell JJ stated at [76]:

"It is well established that a party to civil proceedings may waive an objection to a judge who would otherwise be disqualified on the ground of actual bias or reasonable apprehension of bias. ... If a party to civil proceedings, or the legal representative of that party, knows of the circumstances that give rise to the disqualification but acquiesces in the proceedings by not taking objection, it will likely be held that the party has waived the objection."

1. In Michael Wilson & Partners the parties did object but, when the trial judge failed to recuse himself they allowed the matter to proceed without seeking to appeal against an interlocutory order. The reasons continued at [84]:

"Whether failure to seek leave to appeal against refusal of an application that a judge not try the case on account of a reasonable apprehension of bias precluded maintenance of the complaint in an appeal against the final judgment would require consideration of whether the failure to seek that leave was reasonable."

1. In the present case, that stage was not reached because the trial judge was not at any point asked to disqualify herself. Although the appellant was not represented when the trial commenced, the circumstances upon which he was entitled to rely (being limited to the status of Rothman J as both a judge in the Common Law Division and a party to the proceedings) were well known to him, had been the cause of concern to him and to those then representing him since late 2009 and had been the subject of discussions (as revealed in the judgment of RA Hulme J and the letter to the Chief Justice) as to possible alternative arrangements which could be made. If the objection were sound, it would inevitably follow that the whole of the trial proceedings miscarried and there would need to be a new trial. No lesser relief being available, it was unreasonable for the appellant, if he wished to pursue the issue, not to have invited her Honour to recuse herself and, in the event of a refusal, to have sought leave to appeal from that interlocutory decision.

1. Accordingly, to the extent that there may have been a reasonable apprehension of bias, the right to object was waived by the applicant not raising or pursuing the issue in court prior to the commencement of the trial. The letter to the Chief Justice should not be seen as inconsistent with this conclusion. It was written, it must be inferred, after the matter had been listed for trial in the Common Law Division (on this ground the identity of the trial judge was not critical) and after there would have been ample opportunity for objection to be taken. Further, on not receiving a response from the Chief Justice before the trial commenced, the fact of sending the letter (whether or not the inappropriateness of the procedure was understood by the appellant) did not demonstrate that the appellant was not "standing by" and waiving his right to further objection when he permitted the trial to go ahead without making application to the trial judge herself.

1. For these reasons, the appeal ground based on an apprehension of bias must be rejected.

Factual errors

1. In the course of oral submissions, the appellant was invited by the Court on several occasions to focus on the factual errors in the judgment at trial. The appellant indicated his difficulty in articulating them in an appropriate manner in court. The appellant's written submissions, though discursive in form, gave some greater assistance. In short, they can be distilled as identifying the following complaints:

(a) failing to find that the security staff responsible for restraining the appellant were not licensed under the Security Industry Act 1997 (NSW);

(b) accepting the evidence of the security staff as to the circumstances in which he was restrained, when that evidence contained internal inconsistencies which made it inherently unreliable;

(c) rejecting the appellant's account of his own conduct between the time he entered the grounds of the school and the time he was forcibly restrained;

(d) rejecting the appellant's evidence that he was restrained for at least 25 minutes before the police arrived, being a proposition supported by the "COPS report" and being inherently more plausible than the evidence of the security staff that he was detained for no more than five minutes, and

(e) not accepting the medical evidence as to his injuries and their connection with the events involving his restraint.

1. There can be no doubt that the conduct of the security staff, on either version of the events, must have involved a tortious trespass to the person of the appellant if not subject to legal justification. Further, even if some form of restraint were justified, there might still have been tortious conduct if the restraint imposed were excessive in the sense of being disproportionate to a reasonably perceived threat posed by the appellant. No issue was raised below, or on appeal, as to the lawful entitlement of persons in control of premises to detain a person who has come onto premises without permission, as opposed to using reasonable force to remove him from the premises.

1. Although the appellant disputed that the security staff were licensed under the Security Industry Act, there was no attempt, at least in this Court, to identify the consequences in respect of his claims in tort in the event that his allegation was correct. Nor was there any discussion, at least in this Court, as to whether in detaining and handcuffing him the security staff were exercising a power of arrest without warrant and, if so, under what authority: cf Law Enforcement (Power and Responsibilities) Act 2002 (NSW), s 100.

1. Apart from holding a licence, there were other aspects of the Security Industry Act which might have been indirectly relevant (but were not relied upon), including the precise classification of the licences held (see Part 2, Division 2), the requirement that the licence be worn on the person "so as to be clearly visible" (s 36(1)) and the requirement that a licensee carrying a firearm must wear a "recognisable security guard's uniform" (s 23A). The Security Industry Act makes it an offence to carry on a "security activity" or to provide persons to carry on security activities, not being the holder of a relevant licence: s 7. For the purposes of the Act, a person carries on a "security activity" if he or she carries on activities, which include patrolling, protecting and guarding persons or property, "in the course of conducting a business or in the course of the person's employment": s 4.

(a) whether staff unlicensed

1. According to the statement of Mr David Rothman, who was the Chief Executive Officer of Paliguard, both the team leader, Mr Avi Pollak and two other security staff in attendance, Messrs Bryan Wilmot and David Narunsky, were the holders of security licences: affidavit, 15 September 2011, par 10. Mr Pollak confirmed in his statement, tendered in evidence, that he held such a licence. Mr Wilmot stated that he held a licence, although the date on which he obtained it was not identified. Mr Narunsky made no reference in his statement to holding a security licence. Of the witnesses called by the respondents at trial, only Mr David Rothman, the CEO of Paliguard, was questioned as to his assertion that he held a security licence. He was asked to produce it in the witness box, but did not have it with him: Tcpt, 20/09/11, p 88(15). He was not at the function at which the appellant was detained: p 91.

1. The trial judge found that Mr Pollak held the security licence of which he had given details and held that Messrs Wilmot and Narunsky held the licences identified by Mr Rothman in his statement: at [62] and [63]. No ground was identified as a basis for considering the trial judge in error in accepting Mr Rothman's evidence. It is true that Mr Rothman could not produce his own security licence when invited to in the witness box, but no steps appear to have been taken, for example by issuing a notice to produce, to ensure that he brought the document to court. His failure to produce the document did not in those circumstances provide any basis for doubting his evidence. The challenge to the factual findings in this respect must be rejected.

(b) evidence as to events prior to restraint

1. The most complete account of the events of the evening of 9 April 2008, from the perspective of the respondents, was found in the evidence of Mr Pollak. He was at the back door of the premises when the appellant appeared and spoke to a caterer. Mr Pollak thought he was homeless and requesting food, but did not think he was a threat. On approaching, he was able to overhear the conversation and believed that the appellant was questioning the caterer about the function. Mr Pollak stated his belief that the appellant "realised it was a Jewish function and immediately became aggressive". Mr Pollak said he "repeatedly asked him to leave" and then summoned Mr Wilmot who had been stationed with Mr Narunsky at the front door. Mr Wilmot arrived first, stood behind the appellant and called Mr Narunsky. When the appellant sought to walk past Mr Pollak towards the hall where the dinner was underway, Mr Pollak "kept asking him to leave". He then instructed Mr Narunsky to call the police, upon which the appellant seemed to walk away from the function. The call was cancelled.

1. Mr Narunsky was sent back to the front door. The appellant moved around the building and sought to gain access up the flight of stairs leading to the function room. Mr Narunsky stopped him. Mr Pollak described the appellant as beginning to get "physically aggressive", causing Mr Pollak to step in front of him, tell him to leave and, when he did not, draw and extend his baton. Mr Pollak said that the appellant then attacked him, kicking and punching him. Mr Narunsky intervened and "pushed-kicked him into the railing". As the appellant turned towards Mr Narunsky, Mr Pollak said he dropped the baton and grabbed both his arms to restrain him and "proceeded to take him to the ground in my guard". (What precisely was meant by those words was not explored.) Whilst the appellant was being subdued, Mr Wilmot arrived with Mr Chait. Mr Chait was not one of the three security officers, but worked for a Mr Lander, who provided audiovisual services at the function as part of his business.

1. The evidence of the appellant was set out in some detail by the trial judge at [75]-[89]. He said that he was concerned about unlawful use of the school premises, that he was known to the Principal and to the usual security staff employed at the school and that his sole purpose in coming onto the premises was to seek assurance from someone he knew to be in authority that the activities of the evening were authorised. He did not dispute that he was asked to leave. The principal point of departure between his evidence and that of Mr Pollak was that each accused the other of being aggressive and unreasonable.

(c) evidence as to detention

1. There was no dispute that the security staff in some way brought the appellant face down on the concrete surface of the landing on the stairs. Nor was it in dispute that he was held face down until handcuffs were applied to restrain him. His description that one of the security men took hold of his head and another sat on his lower back whilst his wrists were grabbed and his arms pulled backward was consistent with the description given by the security staff. According to Mr Pollak, the appellant "became co-operative" once he had been restrained and he brought him into a sitting position whilst waiting for police, who had been called and arrived about five minutes later. The appellant's evidence, as the trial judge noted, was that "the pain was intense and he screamed for help '... until his vocal cords collapsed'": at [86]. He also said that he was held face down on the floor for 25-30 minutes and that it was a police officer who lifted him into a sitting position: at [87].

(d) resolution of conflicts in evidence

1. The critical issue in relation to the initial restraint of the appellant required a finding as to the circumstances of aggression as described in the evidence of the respective witnesses.

1. The trial judge dealt first with the confrontation between the appellant and Mr Pollak at the back of the premises. She accepted significant aspects of the appellant's account of what happened on that occasion: at [112]-[114]. However, she did not accept that Mr Pollak's conduct, even on the appellant's own evidence, constituted an assault: at [115]. There was no discernible challenge to that finding.

1. With respect to the events on the landing, after the appellant had started up the steps at the front of the building, the trial judge considered she should ignore "the fact that [the appellant] did not test the defendant's evidence in cross-examination or direct submissions as to why I should reject it as false": at [119]. She further held at [122]:

"If I accept the plaintiff's evidence that when he arrived at the top of the landing on approach to the entry door to the hall, and without any intention to make his way into the function, he was immediately set upon by the security personnel and taken to the ground Paliguard's liability for false imprisonment, assault and battery is made out. If, on the other hand, I do not accept that evidence (in the sense that I am not persuaded that it is a truthful account) then, assuming I find that the three security guards and Mr Chait and Mr Lander have each given an honest account of the plaintiff's escalating levels of aggression after arriving on the landing and that the force used in taking the plaintiff to the ground was reasonable in those circumstances, the plaintiff's claim must fail."

1. The trial judge then referred to the evidence of the security staff and of the appellant, accepted that the accounts given by the security staff (and Mr Chait and Mr Lander) as to what happened at that stage were to be preferred and concluded that she was "unable to accept the plaintiff's evidence that he did not raise his voice or use physical force in any way": at [123]. The trial judge's critical conclusion in this respect appeared at [124]:

"However impulsive and misdirected his pushing, kicking and punching might have been, and irrespective of whether it was as a result of frustration or rage when his request for information was summarily dismissed or ignored, I am satisfied that Mr Pollak (and Mr Narunsky) were entitled to restrain him, and that they used reasonable force to effect that restraint and maintain it until police arrived .... His injuries are not inconsistent with the application of reasonable force."

1. Contrary to the inference drawn from the appellant's submissions, the last finding is not a rejection of his medical evidence, but a rejection of the inference of undue violence he sought to draw from it: see also at [88]. Whether the force used was excessive in the circumstances depended more on an assessment of the extent to which the appellant was resisting restraint (which was an inference available on his own case) than on the evidence of injury.

1. There remained a question as to the manner in which the appellant was dealt with after being restrained. The period of detention was resolved by reliance upon evidence of the police, and in particular Constable Kuljanin as to when the 000 call placed by Mr Lander was received and when the police attended at the school. The "COPS report" (Ex D) was, in this regard, ambiguous. On the first page it identified the informant as Mr Lander and suggested that the incident had been reported at 8.40pm. Constable Kuljanin and a colleague attended at 8.44pm and left at 9.18pm. That information indicated that they had arrived within four minutes of the call being logged. However, on page 3 of the report the following narrative account commenced:

"About 21:15 on Wednesday 9 April 2008, police received a broadcast radio message that a male tried to gain entry into a private function being held at Sydney Girls High School and the security had to restrain the male.

Police arrived shortly after. ..."

1. The appellant inferred, understandably, from the latter account that police had not in fact attended until 9.15pm. That would have been consistent with his evidence that he was held for approximately half an hour. However, the ambiguity was resolved in Constable Kuljanin's oral testimony, which the trial judge accepted, that he had in fact arrived at the scene at about 8.45pm and that the later time was the time he had recorded the incident in his notebook. The trial judge implicitly accepted his evidence: at [106]-[108].

1. The "COPS report" also recorded that, on arrival, the police saw the appellant "handcuffed to the rear and sitting on a balcony area of a building". This description was consistent with Mr Pollak's evidence that once he had restrained the appellant he sat him up. It was not consistent with the appellant's evidence that it was the police who had found him face down and brought him into a sitting position.

1. The resolution of these factual disputes depended on the trial judge assessing the various witnesses in difficult circumstances, given that the appellant appeared at trial unrepresented. The trial judge assessed the evidence having regard to objective circumstances and its inherent plausibility, without giving weight to the absence of effective cross-examination. The manner in which the trial judge dealt with the evidence is clearly articulated in her reasons. In these circumstances, the attempted challenges to the factual findings must be rejected.

Liability of the Board

1. It is by no means clear that the grounds of appeal (other than bias, which has been addressed above) challenged the rejection by the trial judge of liability on the part of the Board. The trial judge dealt with the issue at [20]-[30]. She noted that Paliguard provided security services for the event at the request of the Board. Although the Board contended that Paliguard was an independent contractor for whose conduct it was not vicariously liable, the trial judge also considered the case on the basis of actual control and awareness of the activities of Paliguard in relation to the appellant: at [20] and [35]. As her Honour correctly noted, the deficiencies in the evidence prevented the Board or any of its members being liable in assault or false imprisonment: at [35]-[36]. Separate consideration was given to the cause of action in negligence: at [39]-[55]. The thorough analysis (which far exceeded the scope of the appellant's submissions) led to the conclusion that the Board did not owe the appellant a duty of care with respect to the conduct of staff employed by Paliguard. Nothing said orally or in writing in the course of the appeal indicated any basis for error in this reasoning.

1. The appeal in respect of the dismissal of the various causes of action as against the members of the Board, on the assumption that it went beyond the allegation of apprehended bias, must be rejected.

Conclusion

1. As noted above, notwithstanding doubts as to the competency of the appeal, both parties presented arguments addressing the merits of the issues sought to be raised on the appeal. If the objection to competency brought by members of the Board were to be upheld, it would be necessary to consider, on an appropriate application, whether the Court should grant leave to appeal. The fact that leave had been refused on an earlier occasion would not have precluded a further application which might be entertained, for example, if presented on a different basis from that originally argued and where the failure to argue the point at an earlier application was excusable. No such application was made in the present case, but the circumstances (including the absence of objection by Paliguard) make it desirable to deal with the matter on the assumption, favourable to the appellant, that the appeal was competent.

1. Both the grounds raised in the notice of appeal (bias and error in factual findings) must be rejected, for the reasons set out above. Accordingly the Court should make the following orders:

(1) Without resolving the objection to competency, dismiss the appeal.

(2) Order the appellant to pay the respondent's costs in this Court, including, in the case of the Board, those relating to the objection to competency.

1. BARRETT JA: I agree with Basten JA.

1. WARD JA: I agree with Basten JA.

**********

Decision last updated: 19 February 2013