swarb.co.uk - law index
These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.
Commonwealth - From: 1991 To: 1991
This page lists 51 cases, and was prepared on 20 May 2019.
National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386
1991
Murphy J, Kaye J, Brooking J
Commonwealth, Litigation Practice, Equity
(Supreme Court of Victoria) The court had appointed a receiver without requiring a cross-undertaking in damages. The order was then set aside, and compensation was sought. There had been no cross-undertaking. Held: If it had power to award compensation it would do so. However, after an exhaustive review of authorities from three continents, the court unanimously concluded that the court had no such power; and that a person against whom an injunction is granted but later discharged is "without remedy" in the absence of a cross-undertaking.
Kaye J: "It is therefore clear from the authorities to which I have referred that the practice followed for nearly 150 years of requiring a plaintiff seeking an interim or interlocutory injunction to give an undertaking as to damages has been based on the view that otherwise the defendant would be without remedy in the event of the order having been improperly made."
Murphy J: "Next, restitutio in integrum has been espoused as a principle by the appellants. The cases relied upon to support the assertion that it is just and equitable to award monetary compensation for any loss caused the appellants do not in my view go this far in terms. It must be conceded that it is an established principle that it is just and equitable to allow interest upon money ordered to be repaid to a defendant who has been wrongly ordered to pay a capital sum to a plaintiff" and
"The fallacy in the appellants' case appears to me to rest in the fact that they cannot point to a right entitling them in equity to monetary compensation. What the respondents have done is come to the court seeking payment of an alleged debt, and in the course of such action have sought interlocutory equitable relief in support of that claim. The court has ruled that the interlocutory equitable relief sought was wrongly granted, and have set it aside, but this did not constitute the breach or infringement of any recognisable right in equity which might have entitled the appellants/defendants to monetary compensation or might have obliged the respondents to put the appellants "in as good a position pecuniarily as that in which he was" (they were) "before the injury": Nocton v Lord Ashburton [1914] A.C. 932, at p.952." and
"Nowhere have the researches of counsel found a relevant precedent in which, in the absence of an undertaking, an award of monetary compensation has been made to compensate a defendant for loss occasioned [to] his property by the making of an erroneous order that has been subsequently set aside"
Brooking J: "With all due respect to W.S. Gilbert's Lord Chancellor, in practice the law is not always the true embodiment of everything that's excellent. Mistakes are made from time to time." and
"The first question is that of the limits of the principle expressed by Lord Cairns in Rodger's Case. For the passage cannot be read as asserting that the court will always ensure, so far as possible, that no suitor suffers as a result of the act of the court a loss for which there is no redress. The law being what it is, and judges being what they are, many wrong judgments and orders are given and made. These can be corrected on appeal. But there are and must be limits to how far the courts will go in putting matters right on appeal." and
"But while the cases show that the courts will often, by way of setting things right on appeal, go beyond the mere substitution of the right judgment or order for the wrong one, it is not the law that the court will always ensure, so far as possible, that no suitor suffers as a result of the act of the court a loss for which there is no redress. Any such unlimited principle is inconsistent with the law's recognition of the torts of malicious abuse of process and malicious institution of proceedings, with their uncertain, but certainly limited, scope: Metall und Rohstoff v Donaldson Lufkin & Jenrette [1989] 3 W.L.R. 563, at pp. 611-15. And any such unlimited principle would mean that an appellate court would be entitled or obliged to award compensation or damages whenever it set aside an erroneous judgment or order which had caused damage to the appellant which was not regarded for this purpose as too remote. Yet many final judgments or orders that may be set aside on appeal are apt to cause great damage to the unsuccessful party in circumstances where it is unthinkable that the appellate court should have power to award damages or compensation. An order winding up a corporation is about as drastic an order as one could imagine. Such an order will rarely be stayed pending an appeal, and great and irremediable damage may be done to the corporation by the order in the meantime. But I have never heard it suggested that if a winding up order is set aside on appeal the appellate court may award damages or compensation against the party who obtained it. At the trial of an action a final injunction to prevent the commission of a nuisance may put the defendant out of business. May the court of appeal not only set aside the injunction but also award damages for the destruction of the defendant's business? A judgment for possession of business premises may mean financial disaster for the defendant who claims that his lease has not been duly determined. If there is no stay and the defendant succeeds on appeal, is he to be awarded damages on the principle that the court must take care that "no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court."
1 Cites
1 Citers
Hawker v Vickers; 1991 - [1991] 1 NZLR 399
CIVC v Wineworths [1991] 2 NZLR 327
1991
Commonwealth, Intellectual Property
(New Zealand High Court)
1 Citers
Regina v Stinchcombe (1991) 68 CCC (3d) 1
1991
Sopinka J
Commonwealth, Criminal Practice
(Supreme Court of Canada) The Crown had decided not to call a witness who was considered unworthy of credit by Crown counsel. The witness could have given evidence directly relevant to the issues arising at the trial. The Crown also refused to disclose the statements of the witness to the defence. Held: Crown counsel misconceived his obligation to disclose the statements. Crown counsel had refused disclosure because in his view, the witness was not worthy of credit. This was not an adequate explanation. The trial judge ought to have examined the statements and erred in holding that the Crown counsel was not under an obligation to make disclosure of the statements. The failure of the Crown to make disclosure impaired the right of the accused to make full answer and defence. It must be assumed that non-production of statements was an important factor in the decision of the defence not to call the witness. The absence of this evidence might very well have affected the outcome. Accordingly, the appeal must be allowed and a new trial ordered at which the statements should be produced.
Stopinka J said: "I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done." and "Refusal to disclose is also justified on the ground that the material will be used to enable the defence to tailor its evidence to conform with information in the Crown's possession. For example, a witness may change his or her testimony to conform with a previous statement given to the police or counsel for the Crown. I am not impressed with this submission. All forms of discovery are subject to this criticism. There is surely nothing wrong in a witness refreshing his or her memory from a previous statement or document. The witness may even change his or her evidence as a result. This may rob the cross-examiner of a substantial advantage but fairness to the witness may require that a trap not be laid by allowing the witness to testify without the benefit of seeing contradictory writings which the prosecutor holds close to the vest. The principle has been accepted that the search for truth is advanced rather than retarded by disclosure of all relevant material."
1 Citers
Orissa Cement Ltd v State of Orissa 1991 Supp (1) SCC 430
1991
Commonwealth, Constitutional
(Supreme Court of India) The Supreme Court founded its jurisdiction to make rulings which had prospective effect only, on article 142 of the Indian Constitution. This article empowers the Supreme Court to 'make such order as is necessary for doing complete justice in any cause or matter pending before it'. In exercise of this power it is a 'well settled proposition that it is open to the Court to grant, mould or restrict relief in a manner most appropriate to the situation before it, in such a way as to advance the interests of justice'
Pooraka Holdings Pty Ltd v Participation Nominees Pty Ltd (1991) 58 SASR 184
1991
King CJ
Contract, Commonwealth
The court considered the creditor's duty of disclosure to a surety. Held: The duty of disclosure extends to any unusual feature surrounding the transaction between the creditor and the surety (a) of which the creditor is or ought to be aware, (b) of which the surety is unaware, and (c) which the creditor appreciates, or in the circumstances ought to appreciate, might be unknown to the surety and might affect the surety's decision to become a surety.
1 Citers
Laferriere v Lawson (1991) 78 DLR (4th) 609
1991
Commonwealth, Professional Negligence, Damages
(Supreme Court of Canada) A doctor negligently failed in 1971 to tell a patient that a biopsy had revealed a lump in her breast to be cancerous. She first learned of the cancer in 1975, when the cancer had spread to other parts of the body and she died in 1978 at the age of 56. The judge found that earlier treatment would have increased the chances of a favourable outcome but was not satisfied on a balance of probability that it would have prolonged her life. Gonthier J said that although the progress of the cancer was not fully understood, the outcome was determined. It was either something capable of successful treatment or it was not: "Even though our understanding of medical matters is often limited, I am not prepared to conclude that particular medical conditions should be treated for purposes of causation as the equivalent of diffuse elements of pure chance, analogous to the non-specific factors of fate or fortune which influence the outcome of a lottery."
1 Citers
Somchai Liangsiriprasert v Government of the United States of America [1991] 1 AC 225; (1991) 92 Cr App R 77; [1990] UKPC 31
1991
PC
Lord Griffiths
Commonwealth, Crime, Jurisdiction, Extradition
(Hong Kong) Application was made for the defendant's extradition from Hong Kong to the USA. The question was whether a conspiracy entered into outside Hong Kong with the intention of committing the criminal offence of trafficking in drugs in Hong Kong was justiciable in Hong Kong although no overt act in pursuance of that conspiracy had yet taken place in Hong Kong. Held: English criminal law is generally local in its effect. The criminal law does not concern itself with crimes committed abroad. Any offence may be tried in this country even if the last act did not take place here, provided the court sees nothing contrary to international comity in its assumption of jurisdiction. Conspiracy being an inchoate offence, no 'last act' was required.
Lord Griffiths said: "Unfortunately in this Century crime has ceased to be largely local in origin and effect. Crime is now established on an international scale and the criminal law must face this new reality. Their lordships can find nothing in precedent, comity or good sense that should inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England." and
"The English courts have decisively begun to move away from definitional obsessions and technical formulations aimed at finding a single situs of a crime by locating where the gist of the crime occurred or where it was completed. Rather, they now appear to seek by an examination of relevant policies to apply the English criminal law where a substantial measure of the activities constituting a crime take place in England, and restrict its application in such circumstances solely in cases where it can seriously be argued on a reasonable view that these activities should, on the basis of international comity, be dealt with by another country." and "Their Lordships can find nothing in precedent, comity or good sense that should inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England." and
"It is notoriously difficult to apprehend those at the centre of the drug trade: it is only their couriers who are usually caught. If the courts were to regard the penetration of a drug dealing organisation by the agents of a law enforcement agency and a plan to tempt the criminals into a jurisdiction from which they could be extradited as an abuse of process it would indeed be a red letter day for the drug barons."
1 Cites
1 Citers
[ Bailii ]
Regina v Stinchombe (1991) 68 CCC (3d)
1991
Sopinka J
Criminal Practice, Commonwealth
(Supreme Court of Canada) Sopinka J described the fruits of a police investigation as: "not the property of the Crown for use in securing a conviction, but the property of the public to be used to ensure that justice is done."
1 Citers
March v E and MH Stramore (1991) 171 CLR 506
1991
Mason CJ
Commonwealth, Negligence
Considerations of policy and value judgments necessarily enter into the assessment of causation.
1 Citers
Wharf Properties Ltd And, The Wharf (Holdings) Ltd V. Eric Cumine Associates, Architects, Engineers and Surveyors (A Firm) Co (Hong Kong) [1991] UKPC 1
14 Jan 1991
PC
Commonwealth
[ Bailii ]
Abdul Rahim Rajudin v The Law Society of Singapore Co [1991] UKPC 3
21 Jan 1991
PC
Commonwealth, Legal Professions
Singapore
[ Bailii ]
Mobil Oil Hong Kong Ltd And, Dow Chemical (Hong Kong) Ltd V. Hong Kong United Dockyards Ltd Co (Hong Kong) [1991] UKPC 2
21 Jan 1991
PC
Commonwealth
[ Bailii ]
Mohammed Mukhtar Ali And, Shaik Murtuza Ali Haji Rasool v The Queen [1991] UKPC 4
20 Feb 1991
PC
Commonwealth
(Mauritius)
[ Bailii ]
Y. Mamodeally V. The Queen Co (Mauritius) [1991] UKPC 6
25 Feb 1991
PC
Commonwealth
[ Bailii ]
Wharf Properties Ltd And, The Wharf (Holdings) Ltd V. Eric Cumine Associates, Architects, Engineers and Surveyors (A Firm) Co (Hong Kong) [1991] UKPC 5
25 Feb 1991
PC
Commonwealth
[ Bailii ]
Garth Henriques and Owen Carr V. The Queen Co (Jamaica) [1991] UKPC 7
27 Feb 1991
PC
Commonwealth
[ Bailii ]
GR Banymandhub v The Queen; PC 6-Mar-1991 - [1991] UKPC 9
DFC Financial Services Ltd v Coffey, Morris and Peter Martyn Roberts Co [1991] UKPC 11
18 Mar 1991
PC
Commonwealth
New Zealand
[ Bailii ]
Butcher v Petrocorp Exploration Ltd., Petrocorp Exploration (Taranaki) Ltd., Payzone Exploration Ltd., Southern Petroleum No Liability, Nomeco New Zealand Exploration Co., Bligh Oil and Minerals (Nz) Ltd. And, Carpentaria Exploration Co. (Nz) Ltd. Co [1991] UKPC 10
18 Mar 1991
PC
Commonwealth
[ Bailii ]
Marcos Dabdoub T/A Marc'S V. Eli Saba And, Carole Saba Co (Jamaica) [1991] UKPC 12
21 Mar 1991
PC
Commonwealth
[ Bailii ]
Chew Ming Teck V. Collector of Land Revenue And, Trustees of The Estate of Syed Mohammed Bin Ahmed Alsagoff Co (Singapore) [1991] UKPC 14
21 Mar 1991
PC
Commonwealth
[ Bailii ]
Mohammed Faisal Rahman V. Industrial Gases Ltd Co (Trinidad and Tobago) [1991] UKPC 13
21 Mar 1991
PC
Commonwealth
[ Bailii ]
Lam Chi - Ming, Lam Chi - Chung And, Yam Wai - Tong V. The Queen Co (Hong Kong) [1991] UKPC 15
27 Mar 1991
PC
Commonwealth
[ Bailii ]
Attorney-General of Trinidad and Tobago v Whiteman [1991] 2 AC 240; [1991] UKPC 16; (1991) 39 WIR 397
17 Apr 1991
PC
Keith of Kinkel, Templeman, Griffiths, Ackner, Jauncey of Tullichettle LL
Commonwealth, Criminal Practice, Constitutional
(Trinidad and Tobago) The time at which an arrested or detained person is to be informed of his/her right to consult with a legal adviser of choice is at a stage before the commencement of "in-custody interrogations".
Lord Keith, in delivering the opinion of the Judicial Committee said:
"Their Lordships accordingly consider that persons who have been arrested or detained have a constitutional right to be informed of their right to communicate with a legal adviser both upon a proper construction of section 5(2)( h ) of the Constitution of 1976 and on the basis of a settled practice existing when that Constitution was introduced. Davis JA said towards the end of his judgment of the Court of Appeal:
'I am not prepared to lay down any general rule as to the precise point in time when a person in custody ought to be informed of this right, [but it should be] as early as possible, and in any event before any "in-custody interrogation" takes place.'
Their Lordships would endorse that. It is possible to envisage circumstances where it would not be practicable to inform the person of his right immediately upon his arrest. They would add that it is incumbent upon police officers to see that the arrested person is informed of his right in such a way that he understands it. He may be illiterate, deaf, or unfamiliar with the language. It is plain that the mere exhibition of notices in the police station is insufficient in itself to convey the necessary information."
1 Citers
[ Bailii ]
Bertoli, Eisenberg and, Cannistraro v Sir Denis Malone - The Mutual Legal Assistance (United States of America) Law 1986 [1991] UKPC 17
22 Apr 1991
PC
Commonwealth
[ Bailii ]
Lee Cheung Wing And, Lam Man Yau v The Queen Co (Hong Kong) [1991] UKPC 18
29 Apr 1991
PC
Commonwealth
[ Bailii ]
Dr. C.W. Thompson V. The Administrator General for Jamaica (Administrator for The Estate Carol Morrison, Deceased) Co (Jamaica) [1991] UKPC 20
13 May 1991
PC
Commonwealth
[ Bailii ]
The Minister of Foreign Affairs, Trade and Industry V. Vehicles and Supplies Ltd and Northern Industrial and Garage Ltd Co (Jamaica) [1991] UKPC 19
13 May 1991
PC
Commonwealth
[ Bailii ]
Bahamas Electricity Corp V. Carnival Leisure Industries Ltd Co (Bahamas) [1991] UKPC 21
20 May 1991
PC
Commonwealth
[ Bailii ]
Beautiland Co Ltd v The Commissioner of Inland Revenue Co [1991] UKPC 22
19 Jun 1991
PC
Commonwealth
Hong Kong
[ Bailii ]
Lloyds Bank Export Finance Ltd v The Commissioner of Inland Revenue Co; PC 19-Jun-1991 - [1991] UKPC 23
Lavigne v Ontario Public Service Employees Union; 27-Jun-1991 - [1991] 2 SCR 211; 1991 CanLII 68 (SCC)
Colonial Life Insurance Co (Trinidad) Ltd v The Board of Inland Revenue Trinidad and Tobago Co; PC 1-Jul-1991 - [1991] UKPC 25
Juman v The Board of Inland Revenue Co; PC 22-Jul-1991 - [1991] UKPC 27
Golden Bay Realty Private Ltd v Orchard Twelve Investments Pte Ltd Co; PC 22-Jul-1991 - [1991] UKPC 28
Hui Chi-ming v The Queen; PC 5-Aug-1991 - [1992] 1 AC 34; [1991] 3 All ER 897; [1991] 3 WLR 495; Gazette, 02 October 1992; [1991] UKPC 29; [1991] UKPC 29; (1991) 94 Cr App R 236
Kenneth Evans v The Queen Co [1991] UKPC 30
8 Aug 1991
PC
Commonwealth
Jamaica
[ Bailii ]
Ramharry Garibdass, Gowkaran Garibdass, Parbattee Garibdass, Sonny Garibdass, Harridath Garibdass, Thackoodarth Garibdass, Ramharry Garibdass Brothers Contracting Ltd V. Gobin Singh And, Herman Persad Co (Trinidad and Tobago) [1991] UKPC 31
2 Oct 1991
PC
Commonwealth
[ Bailii ]
Browne v St Clair Perry Co [1991] UKPC 33
14 Oct 1991
PC
Commonwealth
Antigua and Barbuda
[ Bailii ]
Leiba v Brizan (Unreported 1991); Mag App no 264 of 1991
25 Oct 1991
Ibrahim JA
Litigation Practice, Commonwealth
(Trinidad and Tobago) Pending an appeal the Court of Appeal has jurisdiction to stay execution of a possession order made by the magistrate.
1 Citers
Cheah Theam Swee v Equitcorp Finance Group Ltd and Another; PC 5-Nov-1991 - Gazette, 08 January 1992; [1991] 4 All ER 989; [1991] UKPC 39
Bissoon Mungroo V. The Queen Co (Mauritius) [1991] UKPC 37
11 Nov 1991
PC
Commonwealth
[ Bailii ]
S.M.A. Goolfee V. The Queen Co (Mauritius) [1991] UKPC 35
11 Nov 1991
PC
Commonwealth
[ Bailii ]
Marday Curpen V. The Queen Co (Mauritius) [1991] UKPC 38
11 Nov 1991
PC
Commonwealth
[ Bailii ]
Manon, Manon, Desire Clency Georgini And, Marie Desire Bernard Nicolas Pierrus v The Queen [1991] UKPC 34
11 Nov 1991
PC
Commonwealth
(Mauritius)
[ Bailii ]
Horizon Technologies International Ltd V. Lucky Wealth Consultants Ltd Co (Hong Kong) [1991] UKPC 36
13 Nov 1991
PC
Commonwealth
[ Bailii ]
The Earthquake and War Damage Commission V. Waitaki International Ltd Co (New Zealand) [1991] UKPC 41
25 Nov 1991
PC
Commonwealth
[ Bailii ]
Lim Teng Huan (Suing As Administrator of The Estate of Lim Lian Ching) V. Ang Swee Chuan Co (Brunei Darussalam) [1991] UKPC 40
25 Nov 1991
PC
Commonwealth
[ Bailii ]
Herbert Wellesley Eldemire V. Peter Honiball Co (Jamaica) [1991] UKPC 42
26 Nov 1991
PC
Commonwealth
[ Bailii ]
Lennox Phillip Otherwise Called Yasin Abu Bakr and 113 Others V. The Director of Public Prosecutions And, The Attorney General of Trinidad and Tobago and Lennox Phillip and 7 Others V. The Commissioner of Prisons And, The Attorney General of Trinidad an [1991] UKPC 43
10 Dec 1991
PC
Commonwealth
[ Bailii ]
