McNally v Spedding & anor; Nobles v Spedding & anor [2004] NSWCA 400

New South Wales Court of Appeal

CITATION : McNally v Spedding & anor; Nobles v Spedding & anor [2004] NSWCA 400 HEARING DATE(S) : 28 September 2004 JUDGMENT DATE : 10 November 2004

JUDGMENT OF : Sheller JA at 1; Pearlman AJA at 2; Windeyer J at 3 DECISION : Leave to appeal in the case of McNally granted. Both cases to be referred back to the District Court for a new trial on the question of liability only as against the first respondent. No basis for finding of liability against second respondent.

CATCHWORDS : PRACTICE AND PROCEDURE- Appeal against judgment for defendants in District Court - whether trial judge erred in failing to consider a matter addressed to him - NEGLIGENCE - Duty of care - Duty to protect against criminal acts of third party - one appellant assaulted by patron of hotel prior to entering - where complaint made to manager about original attack and assailant identified on hotel premises - appellants left to knowledge of manager but appellants re-entered and were assaulted and injured - whether failure to remove assailant when originally identified gave rise to foreseeable risk of injury to other hotel patrons such that there was a duty to protect such persons against that risk - application of Modbury principle of control / special relationship LEGISLATION CITED : Liquor Control Act 1987 (Vic) Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn v Ashrafinia [2002] Aust Tort Reports 81-636 Club Italia (Geelong) Inc v Ritchie [2001] 3 VR 447 CASES CITED : Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479 Chordas v Bryant (Wellington) Pty Limited (1988) 20 FCR 91 Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254 Smith v Leurs (1945) 70 CLR 256 Belinda McNally (Appellant in 40884 of 2003) PARTIES : Nicole Nobles (Appellant in 40803 of 2004) Douglas Spedding (First Respondent in both matters) Win Bin Pty Limited (Second Respondent in both matters) FILE NUMBER(S) : CA CA 40884 of 2003; CA 40303 of 2004 COUNSEL : Mr P Beale, with him Mr E Chrysostomou (Appellants) Mr P Newton (Respondents) SOLICITORS : Pitcher Walton & Co (Appellants) Colin Biggers & Paisley (Respondents)