Consumer Protection / Unconscionable Conduct

High Court to hear Kakavas v Crown

The High Court hearing in Kakavas v Crown Melbourne Limited commences tomorrow (4 April 2013).

The Court will consider the proper application of the equitable doctrine of unconscionable conduct (the claim was brought under s 51AA TPA – which now exists in virtually identical terms as s 20 of the Australian Consumer Law; this provision prohibits a corporation (acting in trade or commerce) from engaging in conduct that is unconscionable within the meaning of the unwritten law).

This case arose after Kakavas suffered gambling losses of almost $1.5 billion at Crown over a period of approximately 14 months.  Kakavas alleged he suffered from a special disability, in the form of a gambling addiction, and that Crown unconscientiously took advantage of that disability.  The trial judge rejected Kakavas’ claim, finding there was no relevant special disability.  The Court of Appeal unanimously rejected an appeal by Kakavas.  Kakavas sought, and was granted, special leave to appeal to the High Court in  December 2012.

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2 thoughts on “High Court to hear Kakavas v Crown

  1. Reblogged this on exlocuslaw and commented:
    Crown Casino behaving unconscientiously by taking advantage of a problem gambler to the tune of $1.5 billion? Interesting, I doubt it will fly? I see gambling as a legal product with inherent risks and dangers, and I believe in NSW at least you can voluntarily self exclude (although how is this is policed?) It will be interesting to see the outcome.

  2. You can voluntarily exclude in Victoria as well – Kakavas had done this in Victoria but subsequently (about four years later) applied to have the exclusion lifted. The application included some evidence that he had overcome the gambling addiciton and could operate as a social gambler and the exclusion order was lifted. I can’t see this succeeding in the High Court based on my reading of the lower court judgments, but will be interested to hear what they have to say about unconscionable conduct nonetheless.

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