Gala & Ors v Preston - [1990] HCATrans 271

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B52 of 1989
B e t w e e n -
MICHAEL GALA, JOHN CHAPMAN,
MARLENE CHAPMAN and SUNCORP
INSURANCE AND FINANCE

Appellants

and
FRANK RAYMOND PRESTON

Respondent

MASON CJ

BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON.J

McHUGH J

Gala(3)

8/11/90

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 NOVEMBER 1990, AT 10.22 AM

(Continued from 7/11/90)

MASON CJ:

Yes, Mr Keane.

MR KEANE:

Thank you, Your Honour.

Your Honours will

appreciate from the reasoning of the majority
judgment of the Full Court that the reasoning of
this Court, and in particular the majority of this
Court in Cook v Cook, was regarded by Their Honours
as being an important constraining influence in the
approach they took to the decision in Smith v
Jenkins and its application to the facts of the present case.
In our submission, Cook v Cook, (1986)

162 CLR 376 - we do not propose to take
Your Honours to it in detail - confirms that in
addressing the question whether a particular
defendant owes to a particular plaintiff a duty of
care, that is to say whether the necessary
relationship of proximity exists, the Court
examines all the circumstances that throw light on
the nature of that relationship.
Your Honours, in our submission, Smith v

Jenkins stands as an affirmation that the
circumstance that the plaintiff and the defendant
are jointly engaged in a criminal act is
inconsistent with the existence of a duty of care
inter se in respect of the performance of that very
act.

DAWSON J:

Why is it inconsistent?

I can understand as a

matter of policy one does not extend protection of
the law, but why is it consistent?

MR KEANE:

Your Honour, one might say, "Why was there a

doctrine of common employment"; It was as a rule
of the common law; it was abolished by the
intervention of the legislature because it was
perceived by the legislature to be a bad rule, but

it was a rule. In our respectful submission, it
has never been the position that a cause of action
has been available to a plaintiff who stands in
such a relationship.

DAWSON J: But I am asking you the reason. Is it because

the law says that there ought not to be because
crime should not be encouraged but should be
discouraged, that is a policy reason, or is it
because it is not possible, sensibly, to erect a
duty of care or is it a combination of both?

MR KEANE:

Your Honours, in the judgments in Smith v Jenkins

it seems to be put squarely on the basis that as a

matter of policy a duty will not be recognised. In

Gala(3)

8/11/90

the later judgment in Jackson v Harrison it seems
that the basis for the rule is identified as being
rather the inability of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gala & Ors v Preston

Details

AGLC: Gala & Ors v Preston [1990] HCATrans 271
Case: [1990] HCATrans 271
Decision Date

CaseChat Overview and Summary

The parties to this proceeding before the High Court of Australia were Michael Gala, John Chapman, Marlene Chapman, and Suncorp Insurance and Finance (appellants) and Frank Raymond Preston (respondent). The dispute concerned the application of the principle established in *Smith v Jenkins* to the facts of the present case, with the appellants arguing that the Full Court had erred in its interpretation and application of this precedent.

The central legal issue before the High Court was whether a duty of care could exist between parties who are jointly engaged in a criminal act, specifically in relation to the performance of that criminal act. The court was required to determine the basis for the rule that precludes such a duty of care, considering whether it stemmed from policy considerations or an inability to sensibly erect a duty of care, or a combination of both.

The appellants submitted that *Cook v Cook* confirmed that the existence of a duty of care depends on the proximity of the relationship between the parties, assessed by examining all relevant circumstances. They argued that *Smith v Jenkins* affirmed that the joint commission of a criminal act is inconsistent with the existence of a duty of care between the parties involved in that act. The appellants contended that the reason for this rule is a policy-based rejection of allowing a criminal to recover compensation from a joint offender, resting on the notion that there should be no contribution between wrongdoers in such circumstances.

Orders