Gala & Ors v Preston

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.