[36] The appellant is entitled to succeed upon the ground that its duty as an occupier of land did not extend to taking reasonable care to prevent physical injury to the first respondent resulting from the criminal behaviour of third parties on that land.
30 Mr Rouvinetis claims no relationship with either the defendants or the organiser of the function, to establish his claim that the defendants owed him a duty of care once he entered the School. He claims that such a duty arose from the simple fact of his presence at the School, a public institution on Crown land. The High Court's approach in Modbury presents a powerful impediment to the case which Mr Rouvinetis seeks to advance. It has been repeatedly applied. (See for instance the Court of Appeal's decisions in Spedding v Nobles; Spedding v McNally [2007] NSWCA 29, Wagstaff v Haslem (2007) 69 NSWLR 1 and in the case of the duty of care in hotel and club cases, in Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] NSWCA 29.) Could it sensibly be considered that this difficulty could be overcome?
31 In Nguyen v Hiotis and City of Charles Sturt [2000] SASC 88, the South Australian Court of Appeal also had to consider a strike out application, which had been refused at first instance. In that case the plaintiff had attended a fashion parade and concert at a Town Hall. The Hall had been hired out by the defendant to those conducting the event. The plaintiff also claimed that the defendant owed him a duty to ensure his safety and security, while he attended the event. When he was assaulted at the event, he brought proceedings against the defendant, the owner of the Hall.
32 Unlike the complaint made in this case, the assault was not the result of the security guards' conduct, but resulted from the conduct of other attendees of the event. The plaintiff's complaint was that the security arranged by the hirer of the Town Hall was inadequate for the security necessary to ensure safety at the event, which he had paid to attend and that as occupier of the Hall, the defendant had a duty to ensure that the hirer made adequate arrangements to ensure his safety. The claim was regarded to be a novel one and after careful consideration, the appeal was upheld and the claim struck out.
33 While the Court of Appeal saw a basis upon which a duty of care to the plaintiff might arise in relation to the physical state of the premises, it concluded that the defendant owed no other duty of care to the plaintiff, not even a duty to take reasonable care that the person who had hired the Hall made adequate arrangements for crowd control or security for persons attending the event.
34 In this case, the possibility of the existence of a duty between the defendants and Mr Rouvinetis was even more remote, especially in the case of the Principal. The School was hired out to a community organisation for a private function, not one which members of the public might attend for a price. Mr Rouvinetis did not pay to attend the function, he was not even invited to attend. He had no connection with the School or organisers of the function, he did not even know that a function was underway, but entered the School nevertheless. Once there, he observed that the function was in progress. He was told it was private and was asked, but refused, to leave. When he persisted with his demands, he was dealt with by the security personnel arranged for the function by the Jewish Board of Deputies. Those who assaulted Mr Rouvinetis had no connection at all with the defendants, who themselves had other security arrangements in place for the School premises.
35 Unlike Nguyen, here the complaint advanced is not an absence of adequate security, but that the defendants ought not to have permitted the security arrangements made by the Jewish Board of Deputies, to have been made at all. Indeed, they ought not to have been permitted to conduct the function. I am satisfied that there is no basis upon which it could be concluded that the defendants owed Mr Rouvinetis any such duty.
36 Mr Rouvinetis does not suggest that there ought to have been no security at the School. It is the identity of the third party given access to the School and the fact that its security arrangements for the function it was holding, were different to those ordinarily in place at the School, about which he complains.
37 The Conditions of Use under which the Jewish Board of Deputies were permitted to use the School, required that they ensure that all persons allowed on the premises 'conduct themselves properly'. That obligation extended to both the security personnel they engaged and to Mr Rouvinetis, once he entered the School, while the function was underway.
38 There is no suggestion in the pleadings that the function was being conducted by the defendants. Other than having permitted the use of the School, it is not suggested that they had any other interest in the function which the Jewish Board of Deputies arranged, although Mr Rouvinetis does complain that the Minister attended the function as a guest. There was no suggestion, however, that the function was being conducted by the defendants, or that the security personnel who assaulted Mr Rouvinetis, were under the defendants' control.
39 Nor is it suggested that the defendants knew, or ought to have known that it was likely that the particular security personnel engaged to provide security at the function, would assault Mr Rouvinetis. That there was any foreseeable risk of harm to Mr Rouvinetis from the engagement of the particular security personnel in question, which the defendants ought to have been aware of and ought to have taken steps to control, is not claimed.
40 The only basis of the defendants' alleged duty to Mr Rouvinetis is that the defendants permitted the Jewish Board of Deputies to conduct a function at the School and that he was assaulted there, by the personnel whom they engaged to provide security. It is not claimed that the defendants had any connection with, or control over those who Mr Rouvinetis claims assaulted him. In all of these circumstances I am satisfied that there is no prospect that the defendants could be found to have any duty of care to Mr Rouvinetis, as he claims.
41 While Mr Rouvinetis brings his proceedings under the Civil Liability Act 2002, that takes his case no further. There is no basis on which it may be concluded that the defendants owed Mr Rouvinetis any duty of care, in the circumstances raised on the pleadings, or that this difficulty is curable by any amendment.
42 I finally note that the provisions of the Civil Procedure Act 2005, are also relevant to consider, in determining what here lies between the parties, at this stage of the proceedings. There it is required by s 58 that the Court must 'act in accordance with the dictates of justice', which requires that, amongst other things, the Court must act in accordance with the requirements of s 57, namely 'to facilitate the just, quick and cheap resolution of the real issues in the proceedings.' That obligation is to be approached in the way discussed by the Court of Appeal in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37.
43 Those considerations but reinforce the conclusion that when a defendant satisfies the test established by the High Court in General Steel earlier referred to, the dictates of justice require that orders of the kind here sought by the defendants, must be made, notwithstanding the plaintiff's passionate desire to have his complaint dealt with at trial. Such a course would neither be just, quick nor cheap, in circumstances such as these.