Chetcuti v ACN 087 528 774 Pty Ltd (Formerly Connex Trains Melbourne Pty Ltd) [2009] HCATrans 114 (29 May 2009)

Last Updated: 1 June 2009

[2009] HCATrans 114

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M10 of 2009

B e t w e e n -

JOSEPH CHETCUTI

Applicant

and

ACN 087 528 774 PTY LTD (FORMERLY CONNEX TRAINS MELBOURNE PTY LTD)

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 29 MAY 2009, AT 10.46 AM

Copyright in the High Court of Australia

MR S.P. ESTCOURT, QC: May it please the Court, I appear with MR S.R. McCREDIE for the applicant. (instructed by Lennon Mazzeo)

MR T.J. CASEY, QC: If the Court pleases, I appear with MR W.C. GRAINGER for the respondent. (instructed by Piper Aldermann)

GUMMOW J: Yes. Mr Estcourt.

MR ESTCOURT: Thank you, your Honour. Your Honours, the central question, in our submission, is whether the Court of Appeal was justified in finding error on the part of the trial judge for failing to expressly decide the question of whether the applicant would have decided to run from the travel safe officers for the sole reason that he apprehended being caught and physically detained against his will, absent some additional apprehension of the retaliatory violence or bashing.

GUMMOW J: There is going to be a new trial, is there not, unless it is interrupted by - - -

MR ESTCOURT: Yes, that is so, your Honour. The matter has been remitted to the County Court on all issues, which is one reason, your Honour, why we urge this as a visitation case, given that the original trial occupied some 11 days. In any event, your Honours, Justice of Appeal Ashley put it that independent sufficiency of this first cause for the applicant fleeing, that is, avoiding being restrained, was a necessary step in the applicant’s proofs and Justice of Appeal Hargrave put it that the trial judge did not find that either circumstance of its own was sufficient to cause Mr Chetcuti to run.

Our submission, your Honours, is that there was no requirement and there is no requirement for a finding of independent sufficiency of that first cause of flight as it was not necessary that the applicant’s injury be solely attributable to one of two concurrent reasons for running away. The trial judge found that the pursuit of the applicant caused his fall and his injury and found that he was intentionally chased by the officers with the intention of catching him and physically detaining him. There was no argument about that finding.

We would argue, your Honours, that the law as to assault is that a plaintiff need only prove an unambiguous overt act that indicates an intention to make immediate contact with a plaintiff’s body in order to make out the tort of assault, but assuming that we are wrong about that and that it was necessary for the applicant to prove a subjective intention on the part of the travel safe officers to create in his mind an apprehension of imminent offensive conduct, it was in fact the evidence and the only one of the travel safe officers, who was called Mr Alongi, the man who led the chase, that it was indeed his intention to grab hold of the applicant and restrain him, so there was no question about that.

HAYNE J: Justice Ashley in his reasons in paragraph 3 places the disposition of the case on the basis of regard for the way in which it had been conducted at trial.

MR ESTCOURT: That is so.

HAYNE J: If that is right, that is, if the disposition in the Court of Appeal turned on the way in which the case was conducted at trial and it is to go back for retrial, why would we get into it?

MR ESTCOURT: That observation of Justice Ashley was very much ameliorated by what Justice Hargrave observed in the leading judgment, if I can call it that, in the Court of Appeal. He said – and this appears at page 45 of the application book, your Honour:

Notwithstanding the lack of precision in Mr Chetcuti’s case, it was clearly put to the trial judge that Mr Chetcuti was entitled to succeed if he established that he decided to run from the Connex officers because he apprehended that he would be physically detained by them, merely by being held and without any retaliatory violence or bashing, until police officers arrived. Notwithstanding that this submission was made, the trial judge did not deal with it . . . Whether or not Mr Chetcuti would have decided to run for the sole reason that he apprehended physical detention pending the arrival of police, was a matter to be decided upon the whole of the evidence –

His Honour is there saying this matter was squarely raised by the plaintiff at the trial and the error in the trial judge’s decision was that she did not deal discretely with that point. Our point, your Honours, is that it is not necessary that that point be the subject of some discursion in the trial judge’s judgment. This case was a hard and fast pursuit of a man by two officers who had no justification for arresting him and it is not necessary, in our submission, that the sole reason for flight was one that might be regarded as objectively reasonable.

In no other area of the law does causation require that there be a single sufficient reasonable cause. In fact, your Honours, the contrary is so. There need only be identified a cause. As your Honours well know, concurrent contributing causes, neither of which may be sufficient, are sufficient in law to make out causation and, with respect, it was this particularly trite state of affairs that alluded the Court of Appeal in deciding

that it was necessary for the trial judge to consider whether one reason alone for flight was objectively reasonable.

Your Honours, I have touched upon the close and fast pursuit of the applicant was an overt act. That clearly gave rise, in our submission, on any assessment, subjective or objective, to an apprehension by the applicant which was evidenced by his flight of being immediately restrained against his will and the contrary was never suggested at trial, nor on appeal. That is enough, your Honours, in our submission, to constitute the tort of assault. The trial judge did not have to elaborate on that. Her brief analysis in paragraph 50 of her Honour’s judgment is sufficient.

In fact, your Honours, it would have been an error for the trial judge to have held that, notwithstanding the unlawful pursuit of the travel safe officers or by the travel safe officers and the legitimate flight of Mr Chetcuti, that there was no assault upon him because the trial judge was not satisfied that he had a reasonable apprehension as to something more than just being held and detained. It was not necessary. In fact, it was extraneous, in our submission, your Honours, for her Honour to consider anything more than the overt act involved in the close and fast pursuit of the applicant.

Your Honours, but even were we wrong about all of that, this was a matter which was apt for the Court of Appeal to decide itself. There was no conflict on the relevant evidence. It was simply a matter for the Court of Appeal to draw or decline to draw the necessary inference that the applicant would have run for the sole reason that he feared being grabbed and held until the police arrived. There was nothing more for the trial judge to consider. There was no reason, with respect, for the matter to have been remitted to the County Court.

The same submission, your Honours, we make in relation to what was before the Court of Appeal, the applicant’s cross-contention, that the trial judge should have found that his injury was caused by a battery, a separate battery, in one of the travel safe officers deliberately treading upon his wrist and further injuring it. Again, there was no conflict, no issue on the lay evidence as to what occurred and any difference between the two orthopaedic surgeons was merely one of one surgeon saying, “Well, I couldn’t exclude what the other one says is a possibility”. Again, it was entirely apt for the Court of Appeal to have disposed of this on the transcript without remitting the matter for trial. If your Honour please.

GUMMOW J: We do not need to call on you, Mr Casey.

There are insufficient prospects of success in displacing the order of the Victorian Court of Appeal that in all the circumstances there should be a retrial, to warrant a grant of special leave by this Court. Special leave is refused with costs.

MR ESTCOURT: May it please.

AT 10.56 AM THE MATTER WAS CONCLUDED