Pathological Gambling and Civil Actions for Unconscionability: Lessons from the Kakavas Litigation

Abstract

The Productivity Commission's 2010 report confirmed that gambling is a fundamental aspect of contemporary Australian culture. This is likely to become even more entrenched with the increasingly prominent association between gambling and professional sport. In addition, since the liberalisation of gambling in Australia during the 1990s, governments have become heavily dependent upon gambling revenue. The role of the law as a regulator of the excesses of gambling is complex, both in respect of criminal matters and recourse sought by gamblers against gambling houses where they have lost significant sums of money. The decision of the High Court in Kakavas v Crown Melbourne Limited [2013] HCA 25 confines the potential for gamblers to sue casinos and bookmakers in equity for unconscionably exploiting their vulnerabilities. However, it leaves open a door for such actions to be brought by some categories of persons whose inability to exercise rational judgment in respect of their DSM-5 gambling disorder, or some other form of vulnerability, can be proved to have been known by casinos and bookmakers. This will be relatively rare but such actions remain feasible.