Preston v Star City Pty Limited (No 3) [2005] NSWSC 1223

Preston v Star City Pty Limited (No 3) [2005] NSWSC 1223

The defendant did not discharge the heavy onus of showing that the plaintiff's negligence claim was so obviously untenable that it could not possibly succeed. The pleaded facts went beyond Reynolds because they alleged not merely knowledge of the plaintiff's gambling weakness but active encouragement and exploitation of it, and the existence and content of any duty of care depended on evidence about the plaintiff's vulnerability, the defendant's knowledge and the defendant's conduct. However, allegations that drink orders were intentionally changed and that alcohol was supplied with an intention to intoxicate the plaintiff, as pleaded, did not state a cause of action in negligence and had...

Jurisdiction
Australia
Judgment Date
05 December 2005
Procedural Posture
Common Law Division Interlocutory Applications Concerning Leave to Rely on a Fifth Further Amended Statement of Claim and Strike Out of Pleadings / Strike Out Application Under Supreme Court Rules Pt15 R 26 and Application for Leave to Amend
Outcome
Application to strike out dismissed in part; leave granted to rely on and further amend the fifth further amended statement of claim; specified sub-paragraphs and paragraph 15 struck out with leave to replead; costs reserved.
Legal Topics
['strike Out Application' 'duty of Care Owed by Casino to Patron' 'problem Gambling and Intoxication' 'deliberate Conduct Pleaded as Negligence' 'vicarious Liability' 'amendment of Pleadings']
['civil Procedure' 'negligence' 'torts'] ['strike Out Application' 'duty of Care Owed by Casino to Patron' 'problem Gambling and Intoxication' 'deliberate Conduct Pleaded as Negligence' 'vicarious Liability' 'amendment of Pleadings']

Case Brief

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Procedural Posture

Common Law Division Interlocutory Applications Concerning Leave to Rely on a Fifth Further Amended Statement of Claim and Strike Out of Pleadings / Strike Out Application Under Supreme Court Rules Pt15 R 26 and Application for Leave to Amend

Legal Issues

  1. 1 ['Whether the fifth further amended statement of claim disclosed a reasonable cause of action in negligence against the casino.' 'Whether pleaded duties of care concerning gambling operations, inducements, alcohol supply and warnings were so untenable that they should be struck out.' 'Whether allegations of deliberate changing of drink orders and intentional intoxication could be pleaded as negligence.' 'Whether the pleading of vicarious liability for the alleged assault by Mr Elam was so obviously untenable that it should be struck out.' 'Whether parts of the statement of claim lacked internal clarity as to how factual allegations related to the negligence claim.']

Ratio Decidendi

The defendant did not discharge the heavy onus of showing that the plaintiff's negligence claim was so obviously untenable that it could not possibly succeed. The pleaded facts went beyond Reynolds because they alleged not merely knowledge of the plaintiff's gambling weakness but active encouragement and exploitation of it, and the existence and content of any duty of care depended on evidence about the plaintiff's vulnerability, the defendant's knowledge and the defendant's conduct. However, allegations that drink orders were intentionally changed and that alcohol was supplied with an intention to intoxicate the plaintiff, as pleaded, did not state a cause of action in negligence and had...

Court Disposition

Application to strike out dismissed in part; leave granted to rely on and further amend the fifth further amended statement of claim; specified sub-paragraphs and paragraph 15 struck out with leave to replead; costs reserved.

Orders

  • ['Leave is granted to the plaintiff to rely upon the document described as the fifth further amended statement of claim.' "Paragraph 1 of the defendant's motion to strike out those paragraphs of the fifth further amended statement of claim, which relate to the plaintiff's claim in negligence, is dismissed." 'I...