HIGH COURT OF AUSTRALIA
FRENCH CJ,
GUMMOW, HAYNE, HEYDON AND CRENNAN JJMatter No S191/2009
ADEELS PALACE PTY LTD APPELLANT
AND
ANTHONY MOUBARAK RESPONDENT
Matter No S192/2009
ADEELS PALACE PTY LTD APPELLANT
AND
ANTOIN FAYEZ BOU NAJEM RESPONDENT
Adeels Palace Pty Ltd v Moubarak
Adeels Palace Pty Ltd v Bou Najem
[2009] HCA 48
10 November 2009
S191/2009 & S192/2009ORDER
Matter No S191/2009
1. Appeal allowed with costs.
2.Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales entered on 24 March 2009, and in lieu thereof order that:
(a) the appeal to that Court be allowed with costs;
(b)the orders of the District Court of New South Wales made on 25 January 2008, as amended by order 1 of the orders of that Court made on 14 February 2008, be set aside, and in lieu thereof there be judgment for the defendant with costs.
Matter No S192/2009
1. Appeal allowed with costs.
2.Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales entered on 24 March 2009, and in lieu thereof order that:
(a) the appeal to that Court be allowed with costs;
(b)the orders of the District Court of New South Wales made on 25 January 2008 be set aside, and in lieu thereof there be judgment for the defendant with costs.
On appeal from the Supreme Court of New South Wales
Representation
J E Sexton SC with M J Gollan for the appellant (instructed by Lee & Lyons Lawyers)
B M Toomey QC with D R Campbell SC and D C Morgan for the respondent in S191/2009 (instructed by Leitch Hasson Dent Solicitors)
S G Campbell SC with J W Catsanos for the respondent in S192/2009 (instructed by Sanford Legal)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
FRENCH CJ, GUMMOW, HAYNE, HEYDON AND CRENNAN JJ. The appellant in each appeal (Adeels Palace Pty Ltd – "Adeels Palace") carried on a reception and restaurant business at premises in Punchbowl, New South Wales. The premises were licensed under the Liquor Act 1982 (NSW) ("the Liquor Act"[1]). An "On‑Licence (Restaurant)" licence permitted the service of alcohol on the premises on any day, between midday and 4.00 am on the day following. A condition of the licence limited the seating capacity of the premises to restaurant seating for 295 persons. The local council authorised the use of the premises as a place of public entertainment between midday and 4.00 am on the next day but limited the capacity of the premises to 283 persons. At the times relevant to these matters, a director of Adeels Palace was the licensee.
[1]The Liquor Act 1982 (NSW) has since been repealed and replaced by the Liquor Act 2007 (NSW). In relevant respects the 2007 Act contains generally similar provisions to those of the 1982 Act that are mentioned later in these reasons.
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- Case
- [2009] HCA 48
- Decision Date
CaseChat Overview and Summary
The central legal issues before the High Court were whether the defendant owed a duty of care to the plaintiffs to prevent them from being injured by the criminal conduct of other patrons, whether this duty was breached by the failure to provide licensed security, and crucially, whether the absence of security was a necessary condition for the shootings to occur, thus satisfying the test for factual causation. The relevance of statutory requirements under the *Liquor Act 1982* (NSW) and the size and nature of the function, as well as past incidents at the premises, were also considered in relation to the alleged breach of duty.
The High Court determined that while a duty of care might exist in certain circumstances to protect patrons from the foreseeable criminal acts of others, the plaintiffs had failed to establish the necessary causal link between the absence of licensed security and their injuries. The Court applied the "but for" test of factual causation, finding that it was not demonstrated that the shootings would not have occurred "but for" the lack of security. Consequently, the plaintiffs could not establish that the defendant's alleged breach of duty materially contributed to their loss, and therefore, the claim in negligence failed on the grounds of causation.
The appeals were allowed with costs. The orders of the Court of Appeal of the Supreme Court of New South Wales were set aside, and in their place, orders were made allowing the appeals to that Court with costs, setting aside the judgments of the District Court of New South Wales, and entering judgment for the defendant with costs.
Orders
Orders of the court
Matter No S191/2009
1. Appeal allowed with costs.
2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales entered on 24 March 2009, and in lieu thereof order that:
(a) the appeal to that Court be allowed with costs;
(b) the orders of the District Court of New South Wales made on 25 January 2008, as amended by order 1 of the orders of that Court made on 14 February 2008, be set aside, and in lieu thereof there be judgment for the defendant with costs.
Matter No S192/2009
1. Appeal allowed with costs.
2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales entered on 24 March 2009, and in lieu thereof order that:
(a) the appeal to that Court be allowed with costs;
(b) the orders of the District Court of New South Wales made on 25 January 2008 be set aside, and in lieu thereof there be judgment for the defendant with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: FRENCH CJ, GUMMOW, HAYNE, HEYDON AND CRENNAN JJ
Full text does not contain this section.