Wagstaff v Haslam

[2007] HCATrans 407

[2007] HCATrans 407

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S137 of 2007

B e t w e e n -

TERESA ANNE WAGSTAFF

Applicant

and

ANTHONY JAMES HASLAM

First Respondent

D & D HASLAM PTY LIMITED

Second Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 AUGUST 2007, AT 2.53 PM

Copyright in the High Court of Australia

MR R.W. SETON, SC:   May it please the Court, in that matter I appear for the applicant with my learned friend, MR J.H. REIMER.  (instructed by Walsh & Associates)

MR D.L. WILLIAMS, SC:   May it please the Court, I appear with my learned friend, MR G.J. PARKER, for the respondents.  (instructed by Ebsworth & Ebsworth)

GLEESON CJ:   Yes, Mr Seton.

MR SETON:   Thank you, your Honour.  As a matter of housekeeping at the outset, if I just indicate that in the application book we have realised that a police statement of the applicant, Mrs Wagstaff, and also a police statement of Mr Wagstaff were erroneously included.  I would invite your Honours not to have any regard to those police statements.  They were not tendered before the trial judge, and should not have been included in the application book.

GLEESON J:   Thank you.

MR SETON:   Your Honours, the applicant seeks special leave on the basis that it is in the interests of justice that this particular case should be considered by the Court.  It is our submission that a miscarriage of justice has occurred in the manner in which the Court of Appeal took Mrs Wagstaff’s verdict from her in that the Court of Appeal, we say, made unjustifiable crucial factual findings which overturned the learned trial judge’s findings of fact and which put an entirely different complexion on the event.

KIRBY J:   Just a footnote, the husband’s damages of $49,000 I think were not challenged in the Court of Appeal, is that correct?

MR SETON:   That is right, your Honour, yes.  He recovered a verdict.  It was reduced 20 per cent for his contributory negligence in doing a gesture which precipitated the event, and there was no challenge.  The only appeal was in relation to Mrs Wagstaff.

Your Honours, the learned trial judge found, in essence, this, that the two men who were referred to as the “red headed fellow” and also the blonde man, had been at the pub for many hours.  The barman had seen them in the pool room earlier on when he had gone in to clean up, and as a result of their actions he had formed the view that they had had enough to drink.  His Honour, the learned trial judge, found that by the time the altercation occurred therefore the barman should have been aware of the level of their intoxication, that he was ‑ ‑ ‑

GLEESON CJ:   And of their propensity for violence?

MR SETON:   Your Honour, we say impliedly, yes, because the learned trial judge referred in his – what has been referred to as his second finding of negligence, that the men had earlier misbehaved.  Now, your Honour, Justice Basten, who gave the leading judgment, held that there was no evidence that that conduct, if I could put it neutrally, was sufficient to put the barman on notice of any propensity to aggression.

GLEESON CJ:   What did that conduct consist of?

MR SETON:   Well, your Honour, we knew very little about that, but what we did know was to be found from the barman’s own police statement.  Could I invite your Honours to go to the application book at page 127 at about point 20, the first paragraph, paragraph 5 starting on the earlier page?

They were in the pool room when I went in to clean up.  From my observations, I –

and it is a bit hard to read but it reads –

I saw that they had enough –

GLEESON CJ:   I am sorry, this is page 127?

MR SETON:   Page 127 of the application book.

KIRBY J:   First line.

MR SETON:   The top paragraph, your Honour, of that which starts, “in to clean up.  From my observations”.  It is then highlighted but it reads:

I saw that they had enough to drink.  Short time later, the bloke with the short hair came to the bar to buy another round.  I informed that this was [their] last drinks because [their] actions in the pool room.

So they had been doing something in the pool room:

I formed the opinion that they were moderately affected by alcohol.

Now, your Honour, also Mr Wagstaff gave evidence.  If we go to the supplementary application book, page 126, after the whole event Mr Wagstaff and Mrs Wagstaff were given a free drink by the barman and had a chat with him about what had happened, and first of all at line 20 – this is the barman talking, he says:

Yes, he said, “I’m sorry, I couldn’t prevent it.  Every time I’ve had an incident like this my martial arts training goes out the window and I freeze, I’ve never been able to use it, I’m sorry but I put my foot – I tried to block the punches and that would have been worse because he’s been punching me in the shin -

Then reading the next answer, question and answer ‑ ‑ ‑

GLEESON CJ:   There must have been some difference in their heights.

MR SETON:   Well, they were on the ground.

GLEESON CJ:   I see.

MR SETON:   The melee was on the ground at that stage, your Honour.  Then at about line 40, after Mr Wagstaff had given evidence in inadmissible form, I said:

You are summarising, you can’t do that just tell us?
A.       I stand by the comment that I said.  That he, Jay –

and, your Honours, that is the barman –

said to me “I’m sorry about I couldn’t use my martial arts skill”, but there was some break in the conversation and then he said “they’d been causing some sort of ruckus in the pool room when they were in there, I probably should have thrown them out then”, something along those lines.

Now, your Honours, …..“ruckus” I see is defined in the Macquarie Dictionary as a commotion or a rumpus or a violent disagreement, but in any event, that was Mr Wagstaff’s evidence and Mr Wagstaff’s evidence was accepted by the trial judge.

Mrs Wagstaff also gave evidence on this matter.  She gave evidence that she spoke to the barman after the event, at page 53 of the supplementary application book where at line 55 Mrs Wagstaff said, referring to the barman:

A.       He said words to the effect that those three men had already caused trouble in the bar earlier that night.  And he’d already told them that that was their last drinks when he had walked in.  And he apologised and he said words to the effect that he just didn’t know what to do.

So that is the first critical factual matter that the Court of Appeal overturned because the learned trial judge held that they had misbehaved earlier in a fashion that was sufficient to put the barman on notice that there was a risk of injury to other patrons.  The Court of Appeal, however, found that there was no such evidence, and we point to those matters that I have just taken your Honours to to say that the evidence simply did not support the Court of Appeal’s judgment.

Secondly, the Court of Appeal held that the earliest that the barman should have been on notice of the level of intoxication of the men was at the time of the broken glass, and the broken glass is a very significant feature of the incident.  But, in any event, that finding, in our submission, entirely ignores the barman’s own statement, which was his only evidence which was tendered by the defendant, in which he admitted that he had already formed the view that these men were moderately affected by alcohol earlier on in the pool room, and importantly, before he chose to serve them another scotch.

When we look also at the evidence of Mr and Mrs Wagstaff about their observations of the level of intoxication of these men, which his Honour the learned trial judge accepted, and we can see that at application book page 22, which is a good summary of what Mrs Wagstaff’s evidence was, paragraph of the judgment 59, his Honour points out that Mrs Wagstaff saw that they had “bloodshot eyes”, were slurring their words, were “staggering”.  Mr Wagstaff had a similar view and he even refers at the very bottom of page 22 to the fact that “the blond headed man”, and that is the man who attacked him, “was unsteady and he held on to a chair for support before staggering back to his companions”.

So when those matters are all taken into account, and there was no evidence to the contrary, the Court of Appeal’s finding that the barman could only have been aware of the level of intoxication at the time the glass was broken is entirely, in our respectful submission, unsupported by the evidence.

KIRBY J:   What was the time interval between the breaking of the glass and the assault on your client?

MR SETON:   Your Honour, it was five minutes, approximately.

KIRBY J:   Was it in that five minutes that the additional alcohol was served?

MR SETON:   No, the additional alcohol was served before then.  What happened was there is a conversation between Mr Wagstaff and the men where Mr Wagstaff is obviously perceived as being overly familiar with them.  The red‑headed man took exception and, according to Mr Wagstaff, his immediate reaction was to start hurling abuse at him and smashed the glass.  Mr Wagstaff’s evidence was five to 10 minutes before the assault occurred.  Mrs Wagstaff said five to seven minutes.  His Honour the learned trial judge held five minutes, saying that obviously their evidence could not be that precise.  He was not critical of their evidence, let me say, but that was the finding.

So that brings me – I will come back if I may to the question of timing, but the next critical factual finding that the Court of Appeal made was the breaking of the glass.

GUMMOW J:   Well, sooner or later I think we have to get to what may be the crux of Justice Basten’s reasoning, which is paragraph 63 on page 97.

MR SETON:   Yes, your Honour.  Well, your Honour, can I approach it this way?  We say the error here is that the Court of Appeal in essence approached the case as though it was a first instance trial court.  It did not give any due weight or consideration to whether the trial judge’s factual findings and the inferences that he drew in conclusions were in fact wrong, as Warren v Coombes tells us needs to be done, even bearing in mind the limitations that need to be imposed, that it needed to at least ask the question whether Justice Studdert’s decision was in fact wrong.

Now, having made what we submit are erroneous factual conclusions the question posed here by Justice Basten was not the question that should have been posed because the facts were wrong, and it was not the question accordingly posed by Justice Studdert.

KIRBY J:   What did Justice Basten think a reasonably prudent and careful hotelier should do?  Nothing?

MR SETON:   Nothing.  It would seem that Justice Basten thought that first of all the breaking of a glass and holding it at Mr and Mrs Wagstaff, quite clearly described as being held in their face, and Mrs Wagstaff said that she only kept her eyes on the man who had the glass in her face ‑ ‑ ‑

GUMMOW J:   You are doing an injustice to Mr Justice Basten, if I may say so.  Look at the second sentence in paragraph 63, “If Mr Hislop had been successful in taking that action”.  It is not a question – a judge would not say Mr Hislop…..do nothing – et cetera.

MR SETON:   Yes.  Well, your Honour, there is no doubt that this was a situation that had to be defused, and the finding of the trial judge was that one way was to take the action that was required under the Liquor Act, and even if it was not the obvious step was to remove the troublemaker, or troublemakers.

Now, your Honours, we know from what happened immediately after the whole incident was over that the barman asked some patrons to remove the men and they succeeded in a very, very short compass of time.  We know also from the evidence that the police arrived within about five minutes of the barman halfway through the whole melee calling out to have the police called.

So, your Honour, the question is - there is a volatile situation with, by the time the glass is broken, ample notice that there is risk of injury to patrons - what is the reasonable response.  The reasonable response we say, as found by Justice Studdert, was open to them on the facts and that was to have the men removed.  The evidence established after the event that he would have succeeded in that had he attempted that step and that it ‑ ‑ ‑

GUMMOW J:   Who actually removed them eventually?

MR SETON:   Yes, your Honour.  Who?

GUMMOW J:   Who did?

MR SETON:   Your Honour, two patrons came and said to the barman who was the only male ‑ ‑ ‑

GUMMOW J:   Exactly, they were not staff of Mr Hislop.

MR SETON:   Well, your Honour, there was no staff, in essence.

GUMMOW J:   Exactly.

MR SETON:   There were two barmaids and the one barman.  So to that extent, I mean, he had one arm behind his back.  But, your Honour, the criticism we make of the Court of Appeal’s finding on this is that it is not demonstrated that the trial judge’s conclusion on this was wrong.  The Court of Appeal might have, for example, formed a different view but that, in our respectful submission, is not sufficient to justify overturning the decision below.

There needs to be some error demonstrated, and it has been compounded here by the fact that the Court of Appeal has in fact looked at the case through entirely different glasses, and that whereas Justice Studdert was looking at a position of a barman who had knowingly served alcohol to men who he already formed the view were intoxicated, had already misbehaved in some anti-social fashion, who saw that there was a broken glass being held in a threatening fashion and stood by and did nothing, in those circumstances his Honour made a conclusion favourable to the plaintiff.

The Court of Appeal did not even look at those facts and say, “Well, we disagree and there was an error”.  The Court of Appeal threw those facts out, put in a new set of benign facts, and on those benign facts held that there was no breach.

Your Honours, the other complaint we make is that his Honour Justice Basten held that the barman on balance probably thought that he would only inflame the situation if he took some action.  Now, that in fact was not the evidence, the evidence as I have already taken your Honours to from the conversation between the barman and Mrs Wagstaff, and the only evidence on it, because we did not hear from the barman himself, was that he did not know what to do.  So it simply was not open for his Honour Justice Basten to find that the barman on balance thought that to take affirmative action he would inflame the situation.

Could I just inform your Honours the timing of the event was obviously significant?  I mean, the longer the time the more unreasonable would be the barman’s inaction, but Justice Basten concluded that between the barman coming on the scene and the gesture, which was a hand like this to his assailant, was almost simultaneously, and this underpinned Justice Basten’s decision, with respect.

It is our submission that his Honour simply misread the transcript, and could I take your Honours to that because it is a critical part of our case.  In the supplementary application book at page 120 what Mr Wagstaff was saying was not that the assault occurred almost instantaneously after the barman arrived on the scene and left to take away the drink.  On the contrary, what he was saying was that the abuse virtually started at the same time as the barman came on the scene.  We know the barman quickly took the broken glass away and returned.

KIRBY J:   He picked it up gently and did nothing else, did not call the police ‑ ‑ ‑

MR SETON:   Did nothing.

KIRBY J:   ‑ ‑ ‑ did not say, that is it?

MR SETON:   He did not even ask the man to desist.  Page 120 of the supplementary application book, line 5 – and this is the passage that Justice Basten misread, in our respectful submission –

Q.       How long do you say had passed from the first time he had sworn at you to your doing that?
A.       Well, it certainly seemed like 15 minutes but in reality somewhere between five and ten minutes.  Because I had repeated my apology at least 15 times so.

Q.       How long do you say had passed between the barman, who we know is Jay, that’s correct?
A.       Yes.

Q.       Between him taking the broken glass from the red-headed fellow to you making the gesture with your hand?
A.       Almost the same amount of time –

i.e., five to 10 minutes –

because the glass moved pretty quickly, he got that out of the area.

Now, Justice Studdert understood that and found that there was this five‑minute period.  Five minutes is almost the length of time I have had the yellow light.  It is a long time, in our respectful submission, for a barman to stand there and take no action whatsoever.  When one applies the rule of causation, et cetera, the finding made by Justice Studdert was, we say, reasonably open to him.

Your Honours, we also say Justice Basten misguided himself in that he looked at in terms of the reasonable response he looked at in terms of the likelihood of unprovoked violence.  When you have intoxicated patrons, unprovoked violence is unrealistic.  Being intoxicated makes you more likely to be provoked, thus as it happened in this case, Mr Wagstaff unfortunately gave the man a gesture which provoked him.  That was something that should have been taken into consideration, the question of what constituted a reasonable response.

GLEESON CJ:   Yes, thank you, Mr Seton.

MR SETON:   Thank you, your Honours.

GLEESON CJ:   Yes, Mr Williams.

MR WILLIAMS:   Your Honours, there are somewhat different considerations that apply to each of the two findings of negligence which were dealt with in the Court of Appeal.  In relation to the first of them we have two snippets of evidence that were not the subject of any challenge or anything, they were pieces of evidence equally able to be examined by the trial judge and the judges of the Court of Appeal and appropriate inferences drawn from them.

By the two pieces of evidence I have in mind the comparison between the trial judge’s findings at application book 23.  This is the two pieces of evidence that my friend has summarised in his - by reference to the transcript itself.  They are in paragraphs 61 and 62.  Now, those two pieces of evidence were not the subject of any challenge.  There is no credibility issue about whether or not those pieces of evidence existed.  It is merely a question of what one makes of them.

What his Honour Justice Basten said in the Court of Appeal is that the content of this behaviour went unexplored in the evidence, and because it went unexplored in the evidence there was not a basis for a finding that whatever this conduct was it was conduct such as to give rise to a reasonable concern that there was going to be violent behaviour or there was a threat to the safety of the other patrons in the hotel.

KIRBY J:   Well, it is a risk, is it not?  It is a real risk.  They had created a ruckus and he formed the view that they had had enough to drink, and what did he do, gave them another drink of scotch.

MR WILLIAMS:   My point is a little different.  It is the lack of a finding as to what this conduct, the ruckus or whatever it was, was.  It could be something that was quite unconnected with any threat to the safety of ‑ ‑ ‑

KIRBY J:   Mr Williams, until the law holds hoteliers responsible for serving alcohol to already intoxicated people the law will not cause them to change their conduct.  They will continue to give more alcohol to drunken people who will then either smash glasses at patrons in their hotel or will go out and have a rage on the roads.  I mean, the law – the civil law of torts has a public function to play.

MR WILLIAMS:   That may be the case, your Honour, but that is not the special leave application that is the subject of the present ‑ ‑ ‑

KIRBY J:   I understand that a lot of emphasis is put on the smashing of the glass and the five to 10 minutes between that time, and that is to be seen against a background of people who the bartender had formed the view had had enough to drink.

MR WILLIAMS:   I will come to the second finding of negligence separately, if I may.  My point was this, that there is no challenge to the principle enunciated by Justice Basten in application book 92 to the effect that:

the mere fact of a degree of intoxication will not give rise to a duty to take immediate steps to remove the affected person, in order to protect other patrons.

His Honour goes on, something more is needed, and then he goes on to examine what the something more could be.  He says at application book 90, there was nothing known about the character or disposition of these particular gentlemen other than that which was revealed on the night in question.  There is no challenge to that.

Then it comes down to a question of what was the evidence on the night in question, and it comes down to those two matters that I referred to in application book 23, and what one makes of those, that very general evidence that is non-specific as to what the ruckus was or what the trouble was and whether, even if one describes it, as my learned friend does in his submissions, as anti-social behaviour, what the nature of that anti-social behaviour was.  Was it making inappropriate remarks to a woman?  Was it being more noisy than one would like?  We do not know.  It was unexplored, there was no basis in the evidence ‑ ‑ ‑

KIRBY J:   Yes, but it was enough to have your employer know if they “had had enough to drink”.

MR WILLIAMS:   Yes, and there is a world of difference, in our respectful submission, between coming to a judgment that they had had enough to drink, on the one hand, and coming to a view that there is a foreseeable risk of physical injury – physical harm to other patrons in the premises.

KIRBY J:   Well, it is in the nature of mankind.  We know it.  People who have had too much to drink, may I say especially if they have red hair and get into hotels, are very likely to get a little bit rough.

GLEESON CJ:   Just as well Justice Hayne is not sitting on this application.

MR WILLIAMS:   It is, your Honour.  But, your Honours, of course ‑ ‑ ‑

KIRBY J:   I have two siblings with red hair.

MR WILLIAMS:   Of course, your Honour, it is not the red‑haired man that was involved in the assault on Mr ‑ ‑ ‑

KIRBY J:   No, it was the shortie, the short hair.

GLEESON CJ:   The blonde, the blonde.

MR WILLIAMS:   Yes, in other words, not even the people involved in the verbal altercation, not the person who was involved in the breaking of the glass, it was a third person who was the instigator of the assault on – the perpetrator of the assault on Mr Wagstaff.  Your Honours, in my respectful submission, the review by the Court of Appeal of those two pieces of evidence does not infringe any of the principles about appellate review because it does not turn on any question of credibility, it is a question of what one makes ‑ ‑ ‑

KIRBY J:   Credibility I would agree, but assessment of the whole of the circumstances of the case.  Justice Studdert was a very experienced judge of the Supreme Court, he did a lot of these cases.  I must say, I search for what the error was as distinct from simply a different assessment without the benefit of having sat through the whole of the evidence.

MR WILLIAMS:   Well, your Honour’s observation may be more pertinent to the second allegation of negligence, and I will come to that, but in relation to the first there were two – basically, two or three line pieces of evidence that had to be assessed, and his Honour Justice Basten identified the difficulty in the plaintiff having satisfied its onus of proof in proving that whatever conduct this was it should have given rise to the appreciation that there was a risk of injury to other patrons.

GLEESON CJ:   I presume that by the two aspects of negligence you are referring to sub-paragraphs (i) and (iii) on page 22 of the application book?

MR WILLIAMS:   I am, and the way in which his Honour Justice Basten then dealt with those serially in his judgment.  So before I leave that, no infringement of any of the High Court principles that have been laid down are perfectly within section 75A of the statute.  So far as the second allegation is concerned, it is necessary to differentiate between what Justice Studdert actually found in this regard and other pieces of evidence that my learned friend seeks to point to in the evidence.

It is not the case that his Honour found that each and every detail of the accounts of the plaintiffs were true and correct in all respects.  They varied in detail.  They varied at times when they were cross-examined.  What his Honour the trial judge did, Justice Studdert did, in paragraph – I am sorry, from application book 5 to 7 is set out his appreciation of the evidence of Mrs Wagstaff.  This is from application book 5, paragraphs 5 through to 14.  Then having done so his Honour says at paragraph 15, application book 7:

I accept that the account given by Mrs Wagstaff as above reviewed was a truthful account and I accept that it is a reasonably accurate account of what happened.

Mr Wagstaff gave an account broadly consistent -

We go back then to see what was being accepted about that account, and in particular where it was within the events with which we are concerned that the breaking of the glass took place and what happened in the critical five minutes.  If we go back to application book 6 your Honours will see in paragraph 7 the smashing of the glass.  Your Honours will see in paragraph 8 – this is on application book page 6, paragraph – I am sorry, I am using the paragraphs in the judgment – that:

The barman approached and tried to get the broken glass from the red headed man, who said, “I can pick up my own fucking broken glass”.

excusing expletives -

The barman took the glass from this man and took it to the bar counter and then returned to where the plaintiff and her husband and the red headed man were.

Then between there and paragraph 9 is the missing five minutes, or some section of the missing five minutes, during which the critical finding about the negligence of the barman has occurred:

Eventually, after the red haired man continued his abuse –

Then there is the gesture and there we have the altercation.

KIRBY J:   Well, do not forget that the primary judge admitted the statement of the barman, he being absent, so all of that is in there and ‑ ‑ ‑

MR WILLIAMS:   Yes, we rely heavily on that because we say this.  The barman was not actually present at the time the glass was broken.  There is no doubt about that, no controversy about that.  He attended ‑ ‑ ‑

KIRBY J:   He heard it.

MR WILLIAMS:   He heard it and promptly attended.  He acted responsibly ‑ ‑ ‑

KIRBY J:   It is a very serious thing to smash a glass and hold it up to another citizen’s face.

MR WILLIAMS:   What is a reasonable response, and what is the best response available ‑ ‑ ‑

KIRBY J:   If you are in charge of a public house ‑ ‑ ‑

MR WILLIAMS:   ‑ ‑ ‑ you remove the glass, and that is what he did.  What he did is he approached the person with the glass, he calmly reasoned with him, it took some time, it took a bit of convincing, but what he did is he came away with the glass, he took it back to the bar, placed it in a safe position, and then returned to the scene.  All appropriate actions to be taken, all reasonable responses.  When he got back what did he do?  We have his statement that is to the police, which is recorded in the trial judge’s judgment at pages 8 to 9 of the application book.

GLEESON CJ:   How did he get the glass from him?

MR WILLIAMS:   Well ‑ ‑ ‑

KIRBY J:   He asked him politely.

MR WILLIAMS:   Well, it was more than that.  There was a bit of to-do about it, and partly it is explained by the evidence I am just about to take your Honours to, page 9 of the application book, paragraph 7:

I was behind the bar when I heard a glass smash.  I left the bar and went to the poker machine area.  When I got there, I saw two people I know, Gerry and Therese [sic] and the two blokes.  I started to pick up the glass from the ground.  The bloke with the pony-tail had picked up the main piece of the broken glass.  I said, ‘I’ll take that for you.’  He said, ‘Don’t you think I’m fucking capable to do it myself.’  The male wouldn’t give the glass to me.

Gerry and the pony-tail bloke were having words.  I convinced the bloke to give me the glass.  I didn’t see [it] to be a full on argument at this point of time, so I left the area and went and put the glass on the bar, which was about 5 metres away.  I returned straight away.

All perfectly responsible responses to the act, to the actions that he had identified.  Then he comes back and the two of them are arguing still apparently and he tries to calm them down, tries to calm down the situation:

They wouldn’t listen, they were still arguing –

and then the incident occurred.  Now, if we go – the critical matter for Justice Basten was – his Honour says this.  He says we have this finding from the trial judge about there being five minutes during which something was supposed to happen, some reasonable response to the situation.  He said what we do know is that the barman came along and the first thing he tried to do and did successfully was remove the broken glass.

His Honour then says, but we do not really have any findings about what has happened in the meantime, why when the barman comes back and is trying to calm the situation down, what is wrong with what he is doing?  Where is the finding that tells me what is wrong with what he is doing?

KIRBY J:   One would infer there is a telephone nearby where he could have called the police.  Smashing a glass is a very serious thing.

MR WILLIAMS:   And no doubt if he had been over on the far wall or in the office ringing somebody on the telephone the first complaint that would be made is that he should have been staying on the scene and trying to deal with the immediate problem that was presenting itself.  That was what he was trying to do, a reasonable response to the situation.  Calm the protagonist down, try and make the situation go away.

KIRBY J:   After he has already served them extra alcohol.

MR WILLIAMS:   Well, what he is doing ‑ ‑ ‑

KIRBY J:   That was not calming them down.

MR WILLIAMS:   Well, that is a long time before ‑ ‑ ‑

KIRBY J:   It is not a long time before.

MR WILLIAMS:   Well, it is not an event that has occurred since the breaking of the glass.

KIRBY J:   No, it happened before.

MR WILLIAMS:   He is faced with a situation of what to do in circumstances where he has removed the glass and he has returned to the scene.  Now, is it a reasonable response to try and calm the situation down?  We would submit, obviously, yes.

KIRBY J:   Not inconsistent with taking more firm action to protect patrons.

MR WILLIAMS:   Well, more firm action to protect patrons.  One is dealing with a volatile situation and one has to make judgments about how to go about calming the situation down and doing what one can to prevent it from deteriorating.

KIRBY J:   Well, your theory is that there is just nothing that can or should be done in these cases.  It is just something I will not accept.

MR WILLIAMS:   Well, no, that is not my submission, your Honour.  My submission is this.  In ordinary human experience things happen and people have to react to them.  The question of how people react to them is the subject of the sorts of judgments that come before the court.  The question is ‑ ‑ ‑

GUMMOW J:   We have said often enough there are great dangers in ex post facto rationalisation.

MR WILLIAMS:   That is exactly what Justice Basten went on to say in the passages to which your Honour referred, and indeed in the passage that is immediately before the one that your Honour Justice Gummow had in mind at page 96 of the application book at the foot of the page.  Now, Justice Basten started off with the finding about the five minutes.  The five minutes is not five minutes after the glass has been removed, this is five minutes from the time when the argument which preceded the glass being broken to the time of the altercation commencing.

KIRBY J:   There may be dangers in ex post reasoning but you just have to do it on questions of causation.  There is no getting away from it.

MR WILLIAMS:   Yes, but what one has to do is engage in the look forward approach rather than the look backwards approach.  One has to look at what is a reasonable response, not knowing what the result is ultimately going to be, and it was a reasonable response for the barman to do what he did in the situation.

KIRBY J:   What, serve another glass of alcohol ‑ ‑ ‑

MR WILLIAMS:   He did not do ‑ ‑ ‑

KIRBY J:   ‑ ‑ ‑ to people who he had reached the view were already well past it?

MR WILLIAMS:   He did not do that after the glass had been broken.

KIRBY J:   I realise that, but this is the background of the people that he is serving.

MR WILLIAMS:   It might be the ‑ ‑ ‑

KIRBY J:   The courts have just got to lay down stronger standards, I am afraid.  Anyway, that is my view.

MR WILLIAMS:   And it may be that that view needs to be considered in an appropriate case, your Honour, but this is not the appropriate case for that question to be considered.  This is not even the particular special leave question that is the subject of consideration.  What we are here talking about ‑ ‑ ‑

KIRBY J:   Well, it was considered in Cole and I was reassured that in that case Justice McHugh, who knew a whole lot more about these things, took the same view as I did.

MR WILLIAMS:   Well, that may or may not be the case, but the point is there is special leave that has been sought on particular grounds here and it does not involve the particular questions that interest your Honour, for good reason interest your Honour.  What we are concerned with here is something very different, and what we are concerned with here is Justice Basten analysing what could and did happen in that five‑minute period in a situation where there was absent findings, no findings that the trial judge had made to enable that matter to be considered rationally.  So, it is not a matter where there was some infringement of the scope of the appellate review, rather there was an absence of findings on these critical matters from the trial judge.

The last thing, of course, is that even if there was some basis for some argument about breach of duty the causation question in this particular case is - as found by the Court of Appeal - we submit dispositive of the matter anyway, and really we have a situation where there is – if one comes to the view that at some stage during this five minutes, Mr Hislop, the barman, should have done something different, who is to say that events would have turned out differently?  It is a third party, not the people who were arguing, who ends up attacking Mr Wagstaff.  Those are our submissions.

GLEESON CJ:   Thank you, Mr Williams.  Yes, Mr Seton.

MR SETON:   Just in relation to the earlier misbehaviour, if there was any party that could assist the Court on that it would be more on the respondent’s part.  There was not much we could do about it, and Mr Hislop, the barman’s own statement should be taken in its context when it is made after the event when he says, “I should have probably thrown them out then”, so that is clearly an admission referable to some kind of contact that would have justified not just not serving them alcohol but actually removing them in the context of there having just been a fight.

It is also instructive to note that Justice Santow said in his very short judgment that he thought that this was a line call, but that is based on Justice Basten’s facts, and that is really our complaint, is that (a) there is no demonstration how Justice Studdert’s findings were wrong, and secondly, in any event, Justice Basten’s factual findings which underpin all his findings about negligence just cannot be supported on the evidence.  So it is not correct for my learned friend to say that Justice Basten worked on the five minutes.  His Honour did not, with respect, ever do an analysis of this case assuming there was the five‑minute period.

Your Honours, in our written submissions we, of course, have advanced an argument there was in fact a second assault which really was when the time stops running and I did not deal with that in my oral submissions, but I just remind your Honours of that, that the mental harm suffered by Mrs Wagstaff was only when she saw her husband and feared for his life, and the evidence was that was after the second assault occurred.

GUMMOW J:   She was pretty active.

MR SETON:   Well, your Honour, what happened was the first assault occurred and she ran off to try and get some help, and she was not watching what was happening.

KIRBY J:   She was active because she was not getting much help from the barman.

MR SETON:   She got no help.  So it was only when she took ‑ ‑ ‑

KIRBY J:   One would hope a wife would be active in support of her husband, or partner in support of their partner.

MR SETON:   So, your Honour, when she returned five minutes of abuse has occurred.  Mr Wagstaff’s unchallenged evidence was the first assault took about five minutes.  She thought there was about a one minute lull in proceedings before the next assault, so that is 11 minutes.  Mr Wagstaff thought there was a three to four minute lull, but it all ties in comfortably with his Honour Justice Studdert’s finding that the whole event from beginning to end was about 15 minutes.  So when she returns and the second assault occurs, i.e., after about 11 minutes from the smashing of the glass, which I remind your Honours again Justice Basten thought was entirely accidental and of no significance whatsoever, not threatening even, we ask rhetorically how can one uphold the Court of Appeal’s conclusion on negligence when it is so tainted by erroneous factual – factual basis?

We then go back to the trial judge’s findings which we say factually were correct and open to him and have not been shown to be incorrect.  Could I just point out to your Honours at supplementary application book page 119 Mr Wagstaff explained how the glass was removed at line 10.  This is at supplementary 119:

Jay came over and grabbed his hand, something like that, (witness indicating) to hold it, from being moved I presume, and said to the guy “I’ll pick that up –

et cetera.  So the barman actually had to grab his hand, and this is another good example of where the Court of Appeal paid no regard to the trial judge’s benefit or advantage ‑ ‑ ‑

GUMMOW J:   It is a pretty dangerous thing for the barman to do.

MR SETON:   But, your Honour, the fact is it required some affirmative action, and it worked to that extent.  Obviously, we do not criticise the barman for removing the glass, and he returned straight away, so the time he is away is miniscule.  My learned friend put to your Honours that Justice Basten held there was nothing explored as to what happened in the interim after the barman returned but before the first attack occurred.  Well, it was, with respect.  We heard from Mrs Wagstaff what happened, and that is the abuse continued for five minutes and the barman stood by and did nothing while Mr Wagstaff was there trying to calm the situation.

For all those reasons it is our submission that a miscarriage of justice has occurred and Mrs Wagstaff was entitled to and should have kept the verdict that Justice Studdert thought was appropriate for her case.  May it please the Court.

GLEESON CJ:   A majority of the Court is of the view that this application for special leave to appeal should be dismissed. 

As the case has been presented in argument it is not suggested that any principle of law was involved in the decision of the Court of Appeal to overrule the decision of the primary judge, but the argument for the applicant is that there has been a miscarriage of justice.  We are not persuaded that there has been a miscarriage of justice or that the interests of justice require a grant of special leave and the application should be dismissed with costs.

KIRBY J:   I would grant special leave.

AT 3.39 PM THE MATTER WAS CONCLUDED