Pallante v Stadiums Pty Ltd and Ors (1975) H&FLR 2014-12 †

Supreme Court of Victoria

9 April 1975

Coram: McInerney J

Appearing for the Plaintiff: Mr Waldron QC and Dr C Pannam (instructed by KD Opat)
Appearing for the First Defendant: Mr O’Bryan QC and Mr J Larkins (instructed by John Cain and Peter Lamers)
Appearing for the Second Defendant: Mr Hedigan QC and Mr J Sher (instructed by Mercer, Lewenberg and Pryles)
Appearing for the Third Defendant: Mr F Dyett (instructed by Seton, Williams and Smith)
Appearing for the Fourth Defendant: No appearance

Catchwords: Victoria – boxing – unlawful – injury – referee – trainer – promoter – negligence – mismatch – abuse of process – amendment of pleadings

Facts:  The plaintiff, Martin Pallante* was a semi-professional boxer** who suffered eye injuries on 23 April 1970 in a boxing match which was conducted by Stadiums Pty Ltd, which had engaged the second defendant (Norman Foster) as referee and matchmaker.  He sought compensation from Stadiums and Foster, and also from his trainer (Sydney Thompson) and the fight promoter, Franco Marsili. It was alleged that, among other things, the defendants’ negligence resulted in the bout being a significant mismatch against a stronger boxer, Rocky Mattioli***.

The initial hearing of the case was terminated by the trial judge (Kaye J) on the grounds that a contemporary media report had introduced a risk of unfairness to the parties: Pallante v Stadiums Pty Ltd and Ors (1974), The Age, 10 December 1974, at 5.

Prior to the new trial commencing, the defendants applied to dismiss the proceeding on the basis that it was an abuse of process. On behalf of the first defendant it was argued that the plaintiff was engaged in an unlawful prize fight and could claim no damages for injuries so sustained. At the same time the plaintiff applied to amend his statement of claim.

Held: Dismissing the defendants’ application and allowing the plaintiff’s application –

1. Fighting between two persons who are not hostile to each other, and who do so in circumstances not likely to produce meaningful injuries or to incite them to hostility, is not an assault nor a breach of the peace. However, it may become an assault if a spirit of hostility develops and some or all parties develop the intention of inflicting substantial physical harm. The question is not determined by whether or not the fight is in public or private, for money or while using boxing gloves.

R v Coney (1882) 8 QBD 534, considered.

2. Physical violence is not an assault inflicted during a sporting contest which the participants have entered upon with the understanding that each accepts the risk of violence normally expected as part of the sport.

R v Moore (1898) 14 TLR 229 and R v Bradshaw (1878) 14 Cox CC 83, followed.

3. Boxing is not unlawful at common law provided it is conducted predominantly as an exercise in boxing skill and physical condition, consistent with rules which aim to keep injuries within reasonable limits and to reduce as far as possible the risk of serious injuries and to ensure that victory goes to the person with greater boxing skill. Whether a fight is unlawful or not must be decided on the evidence and is a jury question.

4. As a general rule, any amendments to a party’s pleadings should be allowed which will permit the real questions in issue to be litigated.

Judgment

The Court’s judgment is available here.

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† The classic report of this case is that at [1976] VR 331. Because the Court has recently made a copy of McInerney J’s original judgment available, and because more can now be reported about the parties and the case, the present headnote has been prepared.

* Also known as Bernie Martin.

** A contemporary report gives Martin Pallante’s occupation as ‘carpet layer’, although he is also said to have fought five professional bouts before the fight the subject of the claim: ‘Bout was a massacre, says boxer’, The Age (Melbourne), 6 December 1974, at 5.

*** A comparison of Pallante’s boxing record with Mattioli’s suggests the latter was by far the stronger fighter.