Preston v Star City Pty Limited [2003] NSWSC 321

New South Wales Supreme Court

CITATION : Preston v Star City Pty Limited [2003] NSWSC 321 HEARING DATE(S) : 04/02/02 JUDGMENT DATE : 22 April 2003 JURISDICTION: Common Law Division JUDGMENT OF : Hidden J at 1 DECISION : Appeal allowed.

CATCHWORDS : Appeal from Master: Amendment of statement of claim - issue of vicarious liability - whether amendment futile. Bazley v Curry (1999) 174 DLR (4th) 45 Deatons Pty Limited v Flew (1949) 79 CLR 370 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-9 CASES CITED : Gibson v Parkes District Hospital (1991) 26 NSWLR 9 Jacobi v Griffiths (1999) 174 DLR 71 Lister v Hesley Hall Ltd [2002] 1 AC 215 New South Wales v Lepore; Samin v Queensland; Rich v Queensland [2003] HCA 4 PARTIES : Alexander Preston - Appellant Star City Pty Limited - Respondent FILE NUMBER(S) : SC 20334/98 COUNSEL : T Hudson - Appellant M Condon - Respondent SOLICITORS : Gells - Appellant Coudert Brothers - Respondent

LOWER COURT Supreme Court (Master) JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Master Malpass JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIDDEN J

Tuesday, 22 April, 2003

20334/98 - Alexander PRESTON v STAR CITY PTY LIMITED

JUDGMENT 1 HIS HONOUR: This is an appeal from a decision of Master Malpass refusing the plaintiff leave to amend his third further amended statement of claim. That statement of claim pleads several causes of action, including an assault upon the plaintiff by an employee of the defendant. It is alleged that the employee, Mr Wes Elam, verbally threatened the plaintiff with imminent physical harm. 2 The statement of claim recites that the defendant operates the Sydney Harbour Casino, of which the plaintiff was a patron, and that Mr Elam was employed as its Chief Operating Officer. His duties are said to have included dealing with complaints from clients of the Casino and, generally, the protection and furtherance of the defendant's economic interests. The statement of claim goes on to recite that on a number of occasions the plaintiff, to the knowledge of Mr Elam, had provided information to the Casino Surveillance Department about illegal activity occurring at the defendant's Casino. The threats alleged to constitute the assault are said to have been made during an altercation between the plaintiff and Mr Elam about that matter. 3 Paragraph 32 of the statement of claim asserts that the assault was perpetrated by Mr Elam "in the course of his employment with the Defendant…". Paragraph 33 provides particulars of the assault, and paragraph 34 is in the following terms: The abovementioned actions which constituted Mr Elam's assault on the Plaintiff were performed within the scope of Mr Elam's authority and employment in that they were incidental to his role of (a) dealing with complaints by clients of the Casino and (b) furthering or protecting the economic interests of his employer, in that they were intended to prevent the plaintiff from engaging in further activities which either threatened the casino's licence under the Casino Control Act 1992 (NSW) and/or were contrary to the economic interests of the Casino. 4 The application before the Master was to amend the statement of claim by adding a further paragraph (34A). That paragraph is as follows: Further or alternatively the defendant is and was at all material times vicariously liable for the actions which constituted Mr Elam's assault on the Plaintiff in that they were so closely connected with his employment it would be fair and just to hold the defendant vicariously liable.