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High Court judgments

Every Issue

Cite as: Jan/Feb 2010 84(1/2) LIJ, p.50

Constitutional law

Judicial power – state courts – Kable – whether state court compromised by wielding executive power – provisions in state criminal asset seizure legislation directing how court to proceed

In International Finance Trust Company v NSW Crime Commission [2009] HCA 49 (12 November 2009) the High Court by majority concluded that provisions of the Criminal Asset Recovery Act 1990 (NSW), which required the Supreme Court to make restraining orders without notice to those affected, were invalid as the Act impermissibly directed the Court how to exercise its jurisdiction contrary to the need for state courts to be independent to comply with the Constitution Part III as explained in Kable v DPP [1996] HCA 24: French CJ; Gummow with Bell JJ; Heydon J; contra Heydon, Crennan, Kiefel JJ. Appeal allowed.


Duty of care – duty of licensee of licensed premises to have security to prevent shooting of patron

In Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 (10 November 2009) the High Court in a joint judgment concluded that the operator of licensed premises was not liable in negligence after the commencement of the Civil Liability Act 2002 (NSW) for failing to have security that might have prevented a patron being shot by another patron: French CJ, Gummow, Hayne, Heydon, Crennan JJ jointly. Consideration of the causation provisions in s5D(1) of the Civil Liability Act. Appeal allowed.


Duty of care – duty of publican to driving patron – whether duty – patron killed in motorcycle accident after leaving hotel – whether any duty breached or any breach caused loss

In CAL No 14 Pty Ltd v Motor Accidents Insurance Board (Tas) [2009] HCA 47 (10 November 2009) a drinker at a Tasmanian hotel died while driving his motorcycle home from the hotel where he had been drinking for some time. The deceased had come to an arrangement with the licensee that his motorcycle would be locked away so he could not drive it home without his wife being telephoned to collect him. However he was given the keys without his wife being telephoned. The High Court concluded that the licensee of premises did not owe a duty of care to prevent patrons driving away from the premises in an intoxicated state: French CJ agreeing with Gummow, Heydon, Crennan JJ jointly; sim Hayne J. They also concluded if there was a duty it had not been breached and if there was a breach it had not caused the death. The matter preceded the Civil Liability Act 2002 (Tas). Appeals allowed.

THOMAS HURLEY is a Victorian barrister, ph 9225 7034, email The full version of these judgments can be found at


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