Portelli v Tabriska Pty Ltd & Ors [2009] HCATrans 292 (3 November 2009)

Last Updated: 9 November 2009

[2009] HCATrans 292

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S54 of 2009

B e t w e e n -

CLINTON JOSEPH PORTELLI

Applicant

and

TABRISKA PTY LTD

First Respondent

GUSTAV HERSTIK

Second Respondent

JOHN LEE GORTON T/AS ELITE ONE NATIONAL SECURITY SERVICE

Third Respondent

Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 3 NOVEMBER 2009, AT 1.02 PM

Copyright in the High Court of Australia

MR A.S. MORRISON, SC: May it please the Court, I appear with my learned friend, MR E.G.H. COX, for the applicant. (instructed by Stacks-Goudkamp)

MR G.M. WATSON, SC: May it please the Court, I appear with MR J.C. SHELLER for the first and second respondents. (instructed by Holman Webb Lawyers)

MR A.D.M. HEWITT, SC: If the Court pleases, I appear with MR S.J. MAYBURY for the third respondent. (instructed by Curwoods Lawyers)

HEYDON J: Yes, Dr Morrison.

MR MORRISON: Your Honours, the Court of Appeal, like the trial judge, focused on the state of knowledge of the publican, Mr Herstik. The President said in the application book at page 80, line 30 that he did not agree that there was a conflict between the Ranger evidence as to patrolling so as to avoid a potential danger and the Herstik evidence that he did not perceive a danger.

HEYDON J: Just one moment, did you say page 89?

MR MORRISON: No, I said page 80, I thought, your Honour.

HEYDON J: Page 80, right, thank you.

MR MORRISON: Page 80 at about line 30. True it was that Ranger gave some exculpatory evidence of a lack of apparent animosity at a particular point, but if that were true, why would he patrol for the safety of the victims and give assurances of safety? Moreover, the President endorsed the trial judge’s rejection of the Ranger evidence, that all the group had dispersed, in favour of the evidence of Hansen and Herstik and that also meant that he rejected the Ranger evidence that Ranger had patrolled a second time immediately before locking out the two victims out the back door.

Your Honours, there was overwhelming evidence from Ranger’s sworn evidence in the criminal proceedings that Ranger had an apprehension of danger. In particular, Ranger said things such as:

putting their safety first. That’s why I done the patrol around the grounds –

or told them, “It was right to go and I’ll see youse later” or told them, “It looks pretty safe outside” or said that he had checked to make sure the area was all clear or said –

I done a patrol around the hotel premises and around the shops to make sure there was nobody hanging around or loitering around for their own safety.

or –

out of safety I let them out the rear door.

and said in a statement which was rejected both at first instance and by the Court of Appeal –

There was nobody, like nobody around at all. I thought it was all right for their safety. I thought everything was all right.

Your Honours, the President’s conclusion at paragraph 57 of the Court of Appeal judgment that:

Mr Ranger’s evidence does not reveal a sense of apprehension –

is simply wrong. Having accepted, as clearly Ranger did, a duty to take steps for the safety of Portelli and Hansen, he manifestly failed in the execution of that duty. This was a case of misfeasance not non-feasance. He had accepted a duty to patrol and supervise and his assurance of safety was manifestly false in the light of the facts found both at first instance and by the Court of Appeal and he aggravated the position by locking the door behind them having put them out the back.

BELL J: Dr Morrison, the special leave question that you identify goes to the statement of the duty?

MR MORRISON: Yes.

BELL J: You now seem to be raising an issue that the primary judge and the members of the Court of Appeal arrived at a wrong factual finding?

MR MORRISON: No, we come to it by a slightly different route, your Honour, if I might explain. The complaint that we make relates to what should be taken into account as to what the respondents knew or should have known and what they should have known included the information and the apprehension possessed by, in the case of one defendant, the security company its servant, and in respect of the publican and the hotel its agent, Mr Ranger.

BELL J: So that the Court of Appeal in concluding that the first, second and fifth defendants, that the evidence did not support a conclusion that those defendants should have appreciated the danger, made, you say, a wrong fact finding being the same wrong fact finding that the trial judge made?

MR MORRISON: Well, it is a little more than that. What they did was they effectively excluded the evidence of Ranger at first instance, wholly excluded it. On appeal the Court of Appeal did not decline to draw a Jones v Dunkel inference from the failure to call Ranger and it is as a consequence of that process that we say what they, in fact, applied was a subjective test to the state of knowledge of the respondents rather than a true objective test because on a true objective test what Ranger knew or feared, the steps he had taken were all matters to be weighed into account. Now, why do they say a Jones v Dunkel inference should not be drawn?

For that matter, there was another witness also not called without explanation, Mr Kay, the doorman, in relation to the presence of these people outside. It is that process which causes us to say that what was applied, in fact, was a subjective test of knowledge on the part of Mr Herstik rather than the objective test which is required by law. Your Honours, we drew attention and draw attention to what was said in Hampton Court Limited v Crooks and we have supplied a copy of page 371 where Chief Justice Dixon said:

a plaintiff is not relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge of the defendant; all that it means is that slight evidence may be enough unless explained away by the defendant and that the evidence should be weighed according to the power of the party to product it –

The failure to call Ranger when there was evidence of serious apprehension of steps taken by him, ineffectively on the findings at first instance and by the Court of Appeal – and I say ineffectively because they found that in two respects his evidence was incorrect. He did not conduct the patrol on the second occasion outside the back door before he put them out and the group who were hanging around outside the pub in Jindabyne at 3 o’clock in the morning – not something one would think one would do lightly in the middle of winter – had not, in fact, gone away as he asserted strenuously in his sworn evidence they had.

Now, we say, therefore, that the failure to draw a Jones v Dunkel inference means that there was legal error in the approach to what should have been an objective test of knowledge on the part of the respondents and the risk, if it was real, means that an assessment of the hotel and security company’s knowledge which ignores the concessions of servants or agents who are not called applies an incorrect test. It is effectively a subjective and

not an objective test of knowledge of danger. For example, when one turns to seek some rationale as to why the security company should not be liable for the failures in effecting steps for the safety of Hansen and Ranger, there is really almost a total absence of any rationale.

The only thing we could see there was in paragraph 70 where the President said, “The laneway was checked and was clear”. That stands in marked contrast to the finding that, in fact, no second patrol took place and that the first patrol did not do what it was supposed to do. It is in that context we say there was error of law and error of law with very substantial consequences for the justice of the case, but it has the potential to mislead other courts in relation to the proper application of an objective test. It should not simply be what the publican asserts to be his personal state of knowledge. It should be the information which was available through its servants and agents to all the respondents. May it please the Court.

HEYDON J: Yes, thank you, Dr Morrison. We need not trouble you, Mr Watson and Mr Hewitt.

The applicant complains of the Court of Appeal’s handling of the evidence, but the primary error in the Court of Appeal’s reasoning, which the applicant alleges and which, according to the applicant, underlies its handling of the evidence, is that it took into account only the defendant’s knowledge of the risk of a threat of violence rather than what a reasonable person in the position of the defendants would have perceived. The premise of this criticism is not made out. When the judgment of the learned President is examined in full it can be seen that the Court of Appeal did not commit the error claimed.

The application is dismissed, with costs.

AT 1.14 PM THE MATTER WAS CONCLUDED