Spedding & Anor v McNally & Anor

[2005] HCATrans 367

[2005] HCATrans 367

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S476 of 2004

B e t w e e n -

DOUGLAS SPEDDING

First Applicant

WINBIN PTY LIMITED

Second Applicant

and

BELINDA McNALLY

Respondent

Office of the Registry
  Sydney  No S477 of 2004

B e t w e e n -

DOUGLAS SPEDDING

First Applicant

WINBIN PTY LIMITED

Second Applicant

and

NICOLE NOBLES

Respondent

Applications for special leave to appeal

GLEESON CJ
GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 25 MAY 2005, AT 11.09 AM

Copyright in the High Court of Australia

__________________

MR D.F JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR P.T. NEWTON, for the applicants.  (instructed by Colin Biggers & Paisley)

MR P.A. BEALE:   If the Court pleases, I appear with MR E. CHRYSOSTOMOU for the respondents in both cases.  (instructed by Pitcher Walton & Co)

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, these are, in our submission, rather extraordinary cases and the decision of the Court of Appeal increases the ambit of the duty to take reasonable care beyond its limits, in our submission.  Your Honours will be familiar with the basic facts.  The respondents were injured in a brawl when they went into the ground control room of a hotel at about 1.00 am in the morning.  The judge, as he said at page 8, line 40, was:

left in a quandary as to what actually happened . . . since none of the witnesses are totally reliable.

One of the respondents had previously been attacked outside the hotel by a man who was shortly afterwards in the ground control room.  The judge found that the respondents had identified that man to our night manager ‑ ‑ ‑

CALLINAN J:   He was the man who was accused of being a yuppie.

MR JACKSON:   Yes.  I assume the content of that, your Honour, is matter of judicial notice even today.  Your Honours, Spears, the night manager, had given two versions, one in his oral evidence, the other to the police.  Your Honours will see page 3 at about line 40 the version which he had given to the police.  Your Honours will see that going through from there to the top of the next page.

Your Honours, what was clear was that before the injuries happened, the respondents had left the hotel and there was nothing to indicate that they would return.  The primary judge made a number of findings in that regard.  May I take your Honours to them very briefly.  At page 8, lines 42 to 45 he discusses a number of versions of the evidence.  If their versions were correct:

they left the hotel of their own accord and that they gave no indication to anyone that they intended to enter –

the part described as –

Ground Control.  They had no such intention when they left.

At page 9, lines 11 to 24 your Honours will see at the top of that page:

assuming she was attacked without reason . . . there is no evidence that anyone on the hotel staff had any reason to suppose that any of its patrons would be violent towards the two plaintiffs while they were in the hotel.  There is evidence the manager believed they had left the hotel.  He did not know that, after they went into Parramatta Road they entered Ground Control.  It is their evidence that they had never before entered Ground Control.

The same page, lines 29 to 31 he said:

I cannot accept any of the witnesses as being totally reliable. I conclude, that whatever did happen, the defendants had no way of foreseeing it or preventing it.

Page 10, lines 26 to 33 – and I will not read it out but your Honours will see what is there said – and then at page 10 also, lines 42 to 46 and page 11, lines 12 to 18.  Your Honours will then see under the heading at page 11 “CONCLUSION” that:

in my opinion the defendants did not at the relevant time foresee –

and the Court of Appeal rightly, in our submission, thought that meant could not have foreseen –

that persons in the Ground Control were likely to attack the plaintiffs, or were likely to be attacked by Miss Nobles and one of her friends.

Now, your Honours, in short, dealing with the position as left by the trial judge, the respondents left the hotel in circumstances where there was nothing to indicate they would return and of their own volition they went into the part of the hotel from the street – they had gone onto the street and went to another part of the hotel called Ground Control Room. 

The Court of Appeal, with respect, decided the case on a basis which was at least expressed curiously, your Honours.  At page 36, paragraph 24 your Honours will see it held there had been a complaint about the original assailant and then it was said at paragraph 25 that there was no “foreseeable risk” to the respondents, that is, the appellants in that court.  Your Honours will see the first sentence of paragraph 25:

This is not a case, where in the events which happened, there was any foreseeable risk to the appellants in particular so far as Spears was concerned.

They then went on to say that there was a duty, however, to people more generally.  Your Honours will see that expressed in paragraphs 25 and 26.  In paragraph 25, it is the last four lines on page 36; in paragraph 26, it commences at line 15 and it goes through to about line 30.

Now, your Honours, the fact of the matter is that no one to whom the larger duty as there expressed was applicable was attacked, and it is very difficult, with respect, to see how one could read together, in terms of arriving at liability to the respondents, the combination of propositions in paragraphs 25 and 26.  Your Honours, could I also add that there was no suggestion that the man who was said to be the original assailant who was in Ground Control was intoxicated or threatening violence to anyone.

CALLINAN J:   Mr Jackson, sorry to interrupt, but what are the necessary facts that are referred to on page 37 about line 23, “If the necessary facts were found”?  I ask that because the trial judge seems to have held that there are certain facts he could not find because no witnesses were reliable.

MR JACKSON:   Yes.  Your Honour, the necessary facts that seem to be contemplated are really those in the sentence, I think, commencing two sentences prior, and that is about line 15:

a hotel proprietor with knowledge that a person drinking in the hotel had a short time before –

and, your Honour, he is speaking hypothetically of course about a stabbing, but really he is saying:

it reasonably clear that a hotel proprietor with the knowledge that a person drinking in the hotel had a short time before attacked and stabbed with a knife a person in the street immediately outside the hotel, would be bound to consider whether it was safe to other patrons . . . to allow the attacker to remain.

GLEESON CJ:   What the Court of Appeal did was make an order for a new trial.

MR JACKSON:   Yes, your Honour, they did.  But this was a case, your Honours, where – I was going to say in relation to the point raised at page 37, paragraph 26, that there was a statement by the primary judge at page 10 about line 47 that:

There is no evidence that any of the men in Ground Control were intoxicated, nor that they were threatening violence towards the plaintiffs or anyone else.

GLEESON CJ:   The Court of Appeal allowed the appeal on the basis that the trial judge had failed to consider a particular question or issue and they sent it back to the District Court for a trial against one of the defendants.  Is it your submission that the trial judge had considered the issue, or is it your submission that it was a non-issue?

MR JACKSON:   Your Honour, I put it in the alternative.  The first I would say is that he had considered the issue in the sense of the passage I was referring to at page 10, lines 40 to 48, where he was saying that the hotel staff had neither knowledge of likely danger, nor the opportunity to do anything about it.  The trial judge was dealing with the actual situation that was there.  What was posited by the Court of Appeal was an entirely hypothetical one of saying, “If this happened, then such and such”.  But, your Honours, the point I would seek to make is that in that passage the trial judge has dealt with the facts as they were, and the only facts that there were.  The second thing about it, your Honour, is that – and the obverse of that really is that it was an unnecessary issue for the Court of Appeal to create.

Could we just say finally, your Honours, that the approach taken by the Court of Appeal really ‑ ‑ ‑

GUMMOW J:   What do you say is the issue the Court of Appeal created, gratuitously, as it were?

MR JACKSON:   The issue the Court of Appeal created, your Honour, is the one that one sees at page 37 where – I am sorry, page 37 it starts.  At page 38, it is really line 40 and following.  The court in that paragraph is dealing with whether it should decide the issue itself.  It decides not to but have a new trial instead, and then at line 40 says:

The question is whether there was a reasonably foreseeable risk of harm to any patron, by allowing a violent man, who had struck down and kicked a woman in the street outside the premises, to remain there assuming those facts to be found.

Your Honour will see the remainder of the paragraph.  Now, your Honours, our submission is in relation to that, first, that this was a matter that had been dealt with not in a theoretical sense of allowing a person to remain there who might be a danger to someone coming in but in circumstances where, in relation to the particular persons, they were leaving the hotel.  They had left the hotel.  They came ‑ ‑ ‑

GLEESON CJ:   But there is another aspect of it, is there not?  I am not sure what the facts were, but the question would have to be, would it not, whether there was a reasonably foreseeable risk of harm to any patron by allowing a violent man who was known to have struck down and kicked a woman on the street outside the premises?

MR JACKSON:   Yes, your Honour, and what the Court of Appeal appears to have done is to say perhaps that issue should have been investigated.  The fact of the matter was that there was evidence that the two respondents had told the night manager – in effect, pointed out the man.  There was some dispute about whether – and he had spoken to the man and he had a different version of events.

Now, your Honours, essentially what the passage at the bottom of 38 and the top of 39 means is that effectively we were required to eject the

person nominated as the earlier assailant, even when the persons perceived to be in danger had left the hotel with no apparent intention to come back.

CALLINAN J:   What steps could have been taken to have prevented that?  Only the police, I suppose, or the restraint of the assailant.

MR JACKSON:   Your Honour, there is a statutory power – it is referred to in our learned friend’s written submissions – to require people to leave the hotel.  People maybe do not always ‑ ‑ ‑

CALLINAN J:   But even if that had happened, with these women leaving the hotel, once the man left the hotel, they might still have perpetrated the assaults.

MR JACKSON:   Of course, your Honour.  I think we have given your Honours a copy of a decision pf the Court of Appeal of New South Wales recently, Broughton v Competitive Foods, where there was an attack outside a Hungry Jack’s place, I think, an unprovoked attack.  Your Honours, those are our submissions.

GLEESON CJ:   Thank you, Mr Jackson.  Yes, Mr Beale.

MR BEALE:   Thank you.  Your Honours, there is one point that I should like to take up firstly, which is the special leave point which is said to arise is that of occupier’s duty to inquire into criminal conduct of patrons occurring outside the hotel premises.  The first assault, if I may call it that, actually occurred in an alcove to the entrance way of the hotel premises and was as such part of the premises occupied by the occupier.  Whether or not it was part of the licensed premises, it was certainly part of the premises and under his control.  It is therefore a misnomer to suggest that the assault happened outside in the street, because it did not, although it seems clear from the evidence that the words that were uttered by Ms McNally were uttered while she was in the street, not on the alcove, and she was dragged into the alcove by the assailant.  But we would say that the point relied upon in effect does not arise because the assault did in fact take place on the premises.

Secondly, we would say that this is not a suitable vehicle for special leave to be granted, irrespective of whether the exact point of law has not been considered by this Court before, and that is to say the extension to the principles that were suggested in Modbury.  In your Honour the Chief Justice’s judgment in Modbury it was suggested that there may be exceptional classes of duty and in the judgment of his Honour Justice Hayne in that case his Honour made it clear that it was the question of control that was very important in considering whether or not that exceptional or special duty had arisen.  There is no shortage of authorities in this country, such as Wormald v Robertson, Chordas v Bryant, Club Italia (Geelong), where it has been recognised that licensees of licensed premises have a duty to control the conduct of people on the premises.  I do not put it any higher than that. 

This particular case, we would submit, turns on its own facts, in that there was notification to the appropriate authority in the licensed premises of a vicious and unprovoked and spiteful and cowardly attack and that the steps they chose to take about it were effectively nil.  We would submit, with respect, that it is incorrect to suggest that the basis on which ‑ ‑ ‑

GLEESON CJ:   What steps should they have taken?

MR BEALE:   One obvious step, having had a report of a violent, unprovoked attack and a robbery, that is, of Ms McNally’s wristwatch, is to call the police immediately, but secondly, the duty that he has to the patrons generally – and I put this as a duty that arises at common law; I do not rely upon a private law duty arising under the Liquor Act, but the duty he has at common law is to protect the patrons by ejecting the individual.

GLEESON CJ:   Now, that is what I wanted to ask you about.  I do not know whether there is an issue of causation in this case, but if you have a violent character on the premises and you eject him from the premises, how does that contribute to the safety of people when they leave the premises?

MR BEALE:   In itself the result is unpredictable and would always be hypothetical.  Some may simply leave the premises and go to some other premises, or they may go home.

GLEESON CJ:   Or wait for the person who has complained about them.

MR BEALE:   That is a possibility, yes, but we do not know that that would necessarily have occurred.  That is a possibility, but certainly she would not have been attacked on the premises had the licensee taken appropriate action.

CALLINAN J:   Was there any evidence how long the police take to respond to calls of this kind in this locality?

MR BEALE:   There was to the extent that they arrived within 15 minutes of the call being made after the assault.  I will be able to assist your Honour with an answer to that with precision in a moment, but it was a very short space of time.  That information of course came from records that were tendered in the trial.  But the essence of our submission in this regard is that had the individual being ejected from the premises it would not be possible for the applicants to say she would have been assaulted anyway.  She may have been; she may not have been.  But nonetheless there was a duty of care because of the relationship of control.  In light of that, the action taken by the licensee’s delegate, Mr Spears, was wholly inappropriate and inadequate. 

In that regard, if I could invite your Honours’ attention to page 3 and page 4 of the application book.  There commences at about line 33 with the sentence “Jason Spears” some reference to another statement that he had given which became Exhibit J in the trial.  From line 35 down to the bottom of that page and then again, just to add some icing to the cake, from about line 27 on the next page, that is to say, page 4, in particular the reference that Mr Spears indicated that he did go and confront these people, and the assailant in particular, and he found that there was aggression present. 

That of course has to be considered in light of the fact that he said when the assault was reported to him he spoke to the gentlemen of Middle Eastern appearance amid a group of 10 or 12 and the gentleman admitted that he had assaulted this woman but that she had thrown a drink over him.  That was the explanation.  On that basis the licensee chose to do nothing about what was a very serious assault and a robbery.  In the circumstances we would submit that there was clearly a special relationship with a control input on the part of the licensee, that the steps they took were entirely inadequate. 

Now, that may be seen by your Honours to be adding up to a good reason to grant special leave, because this Court has not precisely said that publicans and licensees have a duty of that sort and perhaps the extent of the duty.  But nonetheless, for reasons that have already been identified, we would submit that it is not, firstly, any real extension of what was said in Modbury – the issue has been covered by Modbury – but secondly, it is not an appropriate vehicle because of the facts that simply were not found by his Honour.  His Honour referred to all of the relevant facts but never indicated which facts he preferred on balance of probability.  It may well be that his Honour ‑ ‑ ‑

CALLINAN J:   I think he just said he could not make findings, did he not?

GLEESON CJ:   He said he found them all completely unreliable.

CALLINAN J:   Your clients’ case not proved.

MR BEALE:   In that regard, what his Honour was saying, in our submission, was that there was some unreliability on the part of the respondents so far as the times were concerned, but it may well be that his Honour – and there is certainly a reasonable inference of that – that his Honour found it unnecessary ‑ ‑ ‑

CALLINAN J:   I am looking at page 9.  He said quite explicitly at line 29:

since I cannot accept any of the witnesses as being totally reliable.  I conclude, that whatever did happen –

and so on.  So his Honour was left in a state of complete uncertainty and on one view, therefore, your client did not satisfy the onus of proving her case.

MR BEALE:   What we would say about that, your Honours, is that it was not open to his Honour to simply say with a blanket statement in his conclusion that he found none of them totally reliable, because he made it clear in other parts of his judgment that he accepted parts of what the respondents had said and rejected parts of what the others had said.

CALLINAN J:   I do not know about that.  No, he seems to be simply reciting the various versions and pointing out difficulties about accepting them.  I do not think there are any findings to the contrary of his conclusion that he could not accept any of the witnesses as being totally reliable.

MR BEALE:   Yes.  Well, your Honour, he did go at page 7 and page 8 – for example, at line 35 on page 7:

The circumstances surrounding this evidence cause me to doubt the veracity of Mr Spedding.  I am not prepared to place any reliance on any part of his evidence which is not supported by other reliable evidence.

As I have said, I regard Mr Spears’ evidence with considerable caution.

Anyway, the next aspect of that very point is that he then at line 45 on page 9 and line 40 commencing on page 10 and also at line 10 on page 11 gives the three competing versions and then does not actually say which of them he accepts or rejects.  On that basis, it would mean that this Court would have to try and pronounce the law on an undetermined set of facts and, in our respectful submission, that would be ‑ ‑ ‑

GLEESON CJ:   What happened was that at first instance the trial judge said he did not have sufficient confidence in any of the witnesses to find the facts and then the Court of Appeal said, “He has not considered one possibility and we are going to send it back for a new trial so that another judge can consider that possibility”.

MR BEALE:   Yes, but in addition to that his Honour the learned trial judge may well have – and it seems, with respect, that he did – conclude that he did not have to find facts because on his view of the law it did not matter which of those versions he accepted, because his Honour, with the utmost respect, mistakenly believed that there was no duty of care on the part of the licensee in the circumstances that were portrayed in the evidence of the applicants, whereas we would submit quite to the contrary:  there was control, there was inquiry, he was informed of the violent aspect of the individual and he found aggression, and found reason to doubt what he had told him in that he had not observed any spillage of drink on the individual’s clothing, but he yet elected to do nothing.

In those circumstances, the duty should have arisen and it was incumbent upon his Honour the learned trial judge, with great respect to him, to have formed a conclusion or at least to have expressed a conclusion on balance as to whether he rejected that aspect of the evidence of Nobles and McNally.  As that happened to have been contained in the statement of Mr Spedding, it is unlikely that his Honour could have rejected that.  Those are our submissions.

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I in relation to two aspects of our learned friend’s submissions refer your Honours to page 53 of the book which is part of our written submissions.  In relation to the question of where this happened, it really does not matter very much in the end, in our submission, your Honours will see in paragraph 11 at about line 18 on that page, they were reciting the evidence:

Ms McNally’s evidence was that she said to Mr Spears that her watch had been taken and she had been hit outside.

That is in relation to the first aspect.  The second aspect of it, your Honours, is that one sees in paragraphs 11, 12 and 13, in terms of what Spears might or might not have done, they said, “Well, we are going anyway, let’s just go home”, and they went out the main bar door to Parramatta Road.

GLEESON CJ:   The special leave question is identified by you on page 51 and it is a single question and your opponent says the facts of the case just do not give rise to that question.

MR JACKSON:   Your Honour, we say outside the hotel premises, outside the premises in which the hotel was conducted ‑ ‑ ‑

GLEESON CJ:   Do you mean in the hotel yard as distinct from the bar?

MR JACKSON:   Your Honour, what I mean was this.  The hotel was one where, if one looked at the Parramatta Road alignment of it, there was a short part of the hotel that was an alcove to the entrance.

GLEESON CJ:   It would be very surprising if these cases are decided by a surveyor.

MR JACKSON:   I understand that, your Honour, but it is outside the hotel premises in the sense of outside the place where, to put it shortly, liquor is served and the facilities of the hotel are.  There was a man standing outside.  He could have been on the street.

GLEESON CJ:   Thank you, Mr Jackson.  We will adjourn for a short time.

AT 11.37 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.38 AM:

GLEESON CJ:   We are of the view that the case is not a suitable vehicle for the agitation of the question for special leave identified on page 51 of the application book and the application for special leave is refused with costs.

We will adjourn for a short time to reconstitute.

AT 11.39 AM THE MATTERS WERE CONCLUDED