RSM Security Pty Ltd & Ors v Starks [2005] HCATrans 421 (17 June 2005)

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RSM Security Pty Ltd & Ors v Starks [2005] HCATrans 421 (17 June 2005)

Last Updated: 30 June 2005

[2005] HCATrans 421

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S418 of 2004

B e t w e e n -

RSM SECURITY PTY LTD

First Applicant

HOTEL BONDI PTY LTD

Second Applicant

CYRIL GARDNER MALONEY

Third Applicant

and

BYRON STARKS

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 JUNE 2005, AT 11.01 AM

Copyright in the High Court of Australia

__________________

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR D.A. McLURE, for the applicant. (instructed by Shearman Lawyers)

MR R.S. McILWAINE, SC: May it please the Court, I appear with my learned friend, MR J.A. LOXTON, for the respondent. (instructed by Maurice May & Co)

GLEESON CJ: Yes, Mr Walker.

MR WALKER: Your Honours, a security officer head-butts a person in a context in which there was only one lawful way in which any force could be applied pursuant to the statute to which attention has been drawn and that is for turning out somebody. There is really no suggestion that this was a case in which the hypothetical possibility raised by your Honour the Chief Justice in Lepore was in play, namely, a security guard removing a person with unnecessary force may be acting in the course of employment.

This was a case where the facts showed, in a way which makes this an ideal vehicle to explore the matters to which I am about to turn, that there was not any ostensible, supposed, pretended or claimed exercise of either the duty for which he was employed or the statutory power which was given, for the purposes of discharging, as it happens, one of those duties. Indeed, having head-butted the man, the miscreant, so shows the evidence, was not in the course of thereafter turning out at all. The very nature of the act, head-butting, is obviously designed to induce the opposite of removing somebody - - -

GLEESON CJ: What was it that brought the security guard and this man together, as it were?

MR WALKER: There is no explanation as to what provoked the assault. There is explanation as to, what I will call, a neurological condition which may have given the appearance of intoxication. That is as far as it goes.

GLEESON CJ: But the man was misbehaving or believed to be misbehaving.

MR WALKER: No.

HEYDON J: He was thought to be intoxicated.

MR WALKER: Yes, by reason of - - -

HEYDON J: And, arguably, reasonably thought to be intoxicated, not in fact though?

MR WALKER: As it happens, not explored but that must be a possibility. However, hence my starting with the nature of both his employment duty and the statutory power which comes, as it happens, by reason of the job for which he was employed, on licensed premises. Here was no effort to remove at all. This was an action which was the antithesis of keeping somebody moving. This was an action designed, calculated, to stop them moving for quite some time, which was successful.

GLEESON CJ: I realise that this distinction does not solve all problems, but was it an act of personal spite on the part of the security guard or was it an overzealous attempt to perform his duties.

MR WALKER: They are not the only two possibilities.

GLEESON CJ: I know that.

MR WALKER: There is the third, which is this case which is, without being able to ascribe any personal spite, there was an unprovoked and inexplicable assault. There is no evidence, whatever, to show that the security guard thought that this was a method, extravagant, but nonetheless a method, of achieving a turn out. When one goes, at page 30 of the application book, to paragraph 24, which is the critical paragraph in Justice Beazley’s reasons, where her Honour comes to apply the law to the facts, the following passage appears:

the fact that there was no evidence of aggression or other behaviour that might have provoked Mr Wilson’s conduct, whilst relevant, is not determinative of whether Mr Wilson was acting in the course of his employment when he assaulted Mr Starks.

One could insert a question mark at that point. “Determinative” is a strong word and perhaps the sentence is self-evidently correct because it is a strong word, but it is clearly highly relevant when one talks about the statutory power of turn out, which in turn, of course, provides a very solid parameter to the duties of employment.

GLEESON CJ: But this is what her Honour says at line 31:

the fact is, Mr Wilson acted in that way in the course of seeking to have Mr Starks leave the premises.

You say that is not the fact.

MR WALKER: Except there is, and her Honour does not refer to any, evidence showing that this was for the purpose of, that is declared motive of, removing. What her Honour is there referring to is that what brought these two men into physical conjunction was the possible exercise of the statutory power.

GLEESON CJ: There might be a fine distinction involved here, but do you take issue with that conclusion of fact that the action was in the course of seeking to turn this person off the premises.

MR WALKER: Regrettably, your Honour, I have to say, yes, if that were to be understood as making a finding of fact, not supported by anything below, as to the subjective intention, that is the motive, of the miscreant. I am aware that normally that would make the case a difficult one for special leave, but why this is a simple case is that there is nothing in the record to accord with subjective intention along the lines of, “I thought, I intended this to be a method of discharging my duty of employment pursuant to the statutory limit of which I was aware, namely of using reasonable force to turn someone out”, and that is the only possible power that could have been in the course of exercise.

This was in the course of seeking to have him leave the premises in the same sense as the barmaid’s throwing of the beer and, unfortunately, the glass into the customer’s face, in Deatons v Flew was in the course of the employment task of serving beer, that is, the employment task of serving beer was what brought the people into the social and physical conjunction across the bar, which ended in - - -

GLEESON CJ: Hang on. Throwing a glass of beer in somebody’s face is not an overenthusiastic way of serving beer, but exercising undue violence is a well-known, overenthusiastic way of ejecting people from premises.

MR WALKER: Your Honour, there is that distinction but for this fact that dealing with customers, being spoken to by them, speaking to them, interacting with them in a venue of hospitality, albeit commercial, that is part of the barmaid’s job and, in our submission, the moment of passion, as Sir Owen Dixon puts it in Deatons v Flew, shows that there are split seconds that separate acting pursuant to your task for which you are employed and going outside them.

The same thing, with respect, ought to be the approach here. There is no doubt about the illegality. A crime was committed, prosecuted and a conviction. There is no doubt, no one says that this was merely an extravagant way of trying to turn out. The passage to which your Honour, the Chief Justice draws attention at line 31 on page 30 cannot, in light of the complete absence of evidence about subjective intention, be understood in that fashion.

GLEESON CJ: A security guard who acts overzealously and uses undue force to remove a person from premises will always commit a crime, will he not?

MR WALKER: Yes, and a tort.

GLEESON CJ: So the security guard is almost a classic example of somebody who is likely to commit a criminal offence in the course of overzealous performance of his duties.

MR WALKER: Yes. The same could be said of a policeman but the word “reasonable”, of course, has a lot of work to do. Nobody suggests this was anywhere near the borderland. What her Honour describes it as, in lines 29 and 30, is “unreasonable, uncalled for” – now, that is an idiom which has an extra resonance in this case – absolutely uncalled for, that is nothing in the terms of employment, nothing in any of the circumstances led and demonstrated at trial could suggest the slightest belief that this was ostensibly in pursuit of what he was paid to do and, in what can only be described as understatement, her Honour says it is:

not a usual mode for a security officer to use to persuade a customer to leave hotel premises.

GLEESON CJ: Her Honour earlier describes his occupation as “bouncer”.

MR WALKER: Yes, that is a colourful word which does not, of course, authorise anybody, or purport to authorise anybody, employed as a bouncer to go past the statutory limits of power, that is the statutory limits of reasonable exercise of force, in order to turn out.

Your Honours, against that background factually, which we say divides a neat test of whether there is, in fact, a series, as it were, or set of occupations which are more likely to render employers liable, precariously,
than others when somebody acts openly, blatantly outside the requirements of the employment, one then goes to the guidance that is to be found from the reasons provided for the decision in Lepore.

We have sought to capture them by way of paraphrase and summary of the relevant portions on pages 46 and 47 in paragraph 11 of our written submissions, and our short point is that there is not to be found, at present, as guidance by this Court, a set of words which would provide the answer as to why Deatons v Flew was decided as it was and as to why this case ought to be held correctly decided as it was.

In particular, the notion of apparent execution, or ostensible pursuit of the business, which is at the heart of Justices Gummow and Hayne’s approach, is one which is, as a matter of ordinary language and understanding, quite impossible to apply to facts of the present kind unless one took an approach which would falsify Deatons v Flew, namely, of saying that it was the employment that brought the person, the miscreant, into the position where there could be the crime or tort committed.

In our submission, the closely connected test that your Honour the Chief Justice and Justice Kirby referred to in Lepore, is a test which, equally, does not explain why a difference of results in Deatons v Flew on the one hand and this case, on the other, and it is for those reasons, in our submission, that this is case which provides, in an area which is likely to be more rather than less important, as the density of recreating populations increases, an appropriate opportunity for the Court to address, so as to produce a ratio, the way in which employers, occupiers and their insurers can assess the relevant risks, take the relevant precautionary steps and take the relevant financial and commercial arrangements in relation to the liability they will have for actions which are both criminal and clearly outside that which is called for or permitted by the contract of employment. May it please your Honours.

GLEESON CJ: We do not need to hear you, Mr McIlwaine.

We are of the view that there are insufficient prospects of success of an appeal in this matter to warrant a grant of special leave. The application is dismissed with costs.

AT 11.14 AM THE MATTER WAS CONCLUDED