Adeels Palace Pty Ltd v Moubarak

Link copied
Case Copied 32 min read

HIGH COURT OF AUSTRALIA

FRENCH CJ,
GUMMOW, HAYNE, HEYDON AND CRENNAN JJ

Matter 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 & S192/2009

ORDER

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.

  1. 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.

  2. On 31…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Adeels Palace Pty Ltd v Moubarak and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2009] HCA 48
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered appeals from the New South Wales Court of Appeal concerning a negligence claim brought by two patrons, Mr. Moubarak and Mr. Adeel, who were shot during a New Year's Eve function at a restaurant operated by Adeels Palace Pty Ltd. The plaintiffs alleged that the defendant owed them a duty of care to prevent injury from the conduct of other patrons, particularly due to the absence of licensed security personnel at the function.

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

FRENCH CJ, GUMMOW, HAYNE, HEYDON AND CRENNAN JJ
As noted earlier in these reasons, each plaintiff sought to support the orders made in his favour in the Court of Appeal by contending that s 74 of the Trade Practices Act was engaged. Even if that were so, each plaintiff could recover damages for breach of such an implied warranty only if he established at least that breach of the warranty was a cause of (in the sense of materially contributed to) his loss[40]. Whether more than material contribution to loss must be established to make good a claim for breach of an implied warranty need not be considered. For the reasons given earlier, a "but for" causal connection between absence of security and injury to either plaintiff was not established in these cases. It was not shown that absence of security materially contributed to either plaintiff being injured. The contention that the judgment below is to be supported by reference to s 74 of the Trade Practices Act should be rejected.[40]See, concerning contraventions of the Trade Practices Act 1974 (Cth), I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109 at 127‑129 [54]‑[58]; [2002] HCA 41.Conclusion and orders Each appeal should be allowed with costs. In each case the orders of the Court of Appeal of the Supreme Court of New South Wales entered on 24 March 2009 should be set aside and in their place there should be orders that the appeal to that Court is allowed with costs, the judgment of the District Court of New South Wales set aside and in its place there be judgment for the defendant with costs.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, GUMMOW, HAYNE, HEYDON AND CRENNAN JJ

Full text does not contain this section.