swarb.co.uk - law index

Commonwealth - From: 2001 To: 2001

This page lists 70 cases, and was prepared on 20 May 2019.

As to the argument based on the appellants not in fact having been dissuaded from exercising their procedural rights: "I find no merit in this argument. It may very well be that the threats of the severe and illegal consequences that may follow their resistance to extradition may have made the appellants more, not less, determined to resist their surrender. Frankly, this would have been quite understandable. The abuse of process here consists in the attempt to interfere with the due process of the court. The success or failure of that interference is immaterial."
1 Citers

[ Canlii ]
 
United States of America v Shulman 2001 SCC 21; [2001] 1 SCR 616; (2001) 197 DLR (4th) 69; (2001) 152 CCC (3d) 294; (2001) 81 CRR (2d) 245; (2001) 41 CR (5th) 100; (2001) 145 OAC 201
5 Apr 2001

McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie and Arbour JJ
Commonwealth, Extradition
Canlii (Supreme Court of Canada) Constitutional law -- Charter of Rights -- Mobility rights -- Right to remain in Canada – Extradition – Whether mobility rights engaged at committal stage of extradition process -- Canadian Charter of Rights and Freedoms, s. 6(1).

Constitutional law -- Charter of Rights -- Fundamental justice -- Extradition -- Whether considerations relating to fundamental justice engaged at committal stage of extradition process -- Canadian Charter of Rights and Freedoms, s. 7.

Extradition -- Extradition process -- Scope of Charter jurisdiction of extradition judge at committal stage -- Whether mobility rights and considerations of fundamental justice engaged at committal stage of extradition process -- Whether extradition judge competent to grant Charter remedies -- Canadian Charter of Rights and Freedoms, ss. 6, 7, 24 -- Extradition Act, R.S.C. 1985, c. E-23, s. 9(3).

Extradition -- Extradition process -- Remedies -- Charter jurisdiction -- Abuse of process -- Role of appellate courts.

Extradition -- Evidence -- Fresh evidence -- Fugitive seeking to adduce fresh evidence in Court of Appeal -- Evidence including threats uttered by U.S. prosecutor -- Whether Court of Appeal erred in dismissing fugitive’s motion to adduce fresh evidence -- Whether fresh evidence revealed abuse of process -- If so, whether stay of proceedings should be granted.

Extradition -- Evidence -- Admissibility -- Affidavit evidence referring to fugitive’s allegedly unlawful activities provided by alleged co-conspirators -- Alleged co-conspirators awaiting sentence when affidavit material prepared and sworn -- Fugitive claiming that co-conspirators’ evidence infringed principles of fundamental justice and constituted abuse of process -- Whether extradition judge and Court of Appeal correct in refusing to exclude affidavit evidence -- Canadian Charter of Rights and Freedoms, ss. 7, 24.
1 Citers

[ Canlii ]
 
Boodram v The State Times, 15 May 2001; No 65 of 2000; [2001] UKPC 18; [2002] 1 Cr App R 103
10 Apr 2001
PC
Criminal Practice, Legal Professions, Commonwealth
(Trinidad and Tobago) On a retrial, the defendant's counsel only became aware that there had been an earlier trial late in the proceedings, and, when he became aware of it, he did not try to obtain the transcript of the first trial in order to assess what could be done to redress any prejudice or potential prejudice to the defendant. He also failed to pursue an allegation that the defendant had signed her confession only after being raped in the cells by a police sergeant. The appellant was accused of having murdered her husband by poisoning. Held: Where a defence case had clearly been conducted in an incompetent manner, to an extent that the defendant could not be said to have had a fair trial, then it was appropriate to set aside the conviction which followed. An appellate court should approach complaints about counsel's incompetence and its effects on a trial, with a healthy scepticism, but where the failure was fundamental, a court should only with great care find that the jury would have reached the same decision even with competent counsel.
1 Cites

1 Citers

[ Bailii ] - [ PC ] - [ PC ]
 
Mohammed and Johnny Richardson v The State [2001] UKPC 21; No 60 of 2000
10 Apr 2001
PC

Crime, Commonwealth
PC Trinidad and Tobago
[ Bailii ] - [ PC ] - [ PC ] - [ PC ]
 
Brian Andrew O'Neil, Moira O'Neil, Lyndon Lee McDougall, and John James McDougall v Commissioner of Inland Revenue [2001] UKPC 17
10 Apr 2001
PC

Commonwealth, Income Tax
PC (New Zealand) An accountant arranged a scheme which purported to return the applicants' entire income without deduction of tax as a return of capital. The revenue sought to treat it as tax avoidance. Held: This was a paradigm of the kind of scheme sought to be prevented by the Act. Appeal dismissed.
1 Cites

[ PC ] - [ Bailii ]
 
Forrester Bowe (Junior) v The Queen Appeal No 48 of 2000; [2001] UKPC 19
10 Apr 2001
PC
Lord Bingham of Cornhill
Criminal Practice, Commonwealth
PC (The Bahamas) The Board considered a suggestion that the defendants second re-trial for murder was an abuse of process: "It is a common practice for prosecutors in England and Wales to offer no evidence against a defendant if two previous juries have been unable to agree . . but that is no more than a convention, as recognised by the Court of Appeal (Criminal Division) in R v Henworth . . it may well be that the prosecuting authorities, having failed to obtain a conviction even by a majority on two occasions, judge that a further trial will not have a reasonable prospect of culminating in a conviction. It is in the first instance for the prosecutor to judge whether, taking account of all relevant considerations, the public interest is better served by offering no evidence or by seeking a further re-trial. There is plainly no rule of law in this country which forbids a prosecutor from seeking a second re-trial . . there may of course be cases in which, on their particular facts, a second re-trial may be oppressive and unjust…whether a second re-trial should be permitted depends on an informed and dispassionate assessment of how the interests of justice in the widest sense are best served. Full account must be taken of the defendant's interests . . account must also be taken of the public interest in convicting the guilty, deterring violent crime and maintaining confidence in the efficacy of the criminal justice system."
(The Bahamas)
1 Citers

[ Bailii ] - [ PC ] - [ PC ]

 
 Harley v McDonald; Glasgow Harley (A Firm) v McDonald; PC 10-Apr-2001 - Times, 15 May 2001; [2001] UKPC 20; Nos 9 of 2000 and 50 of 2000; [2001] 2 WLR 1749; [2001] 2 AC 678; [2001] Lloyd's Rep PN 584
 
Wrightson Limited v Fletcher Challenge Nominees Limited (Appeal No 34 of 2000) [2001] UKPC 23
3 May 2001
PC
Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Hutton, Lord Hobhouse of Woodborough, Lord Millett
Financial Services, Commonwealth
(New Zealand) The appeal was as to the proper approach to the calculation of sums payable on the secession of a participating company and its employees from a group superannuation scheme. This must vary according to the scheme. The claimants complained that on withdrawal they had had attributed to them no part of the surplus accrued within the scheme. The withdrawal was to act as a partial dissolution of the scheme, with a share appropriated to the withdrawing portion by the trustees. The discretion given to the trustees was wide, and should not be fettered by inserting a starting point for the calculation which was not reflected in the deed. The surplus was relatively small and the decision was a proper exercise of that discretion.
[ Bailii ] - [ PC ] - [ PC ] - [ PC ]

 
 Wan v Minister for Immigration and Multi-cultural Affairs; 18-May-2001 - [2001] FCA 568
 
Goomti Ramnarace v Harrypersad Lutchman [2001] UKPC 24; No 8 of 2000
21 May 2001
PC
Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Millett, Lord Scott of Foscote
Land, Limitation, Commonwealth
(Trinidad and Tobago) The defendant had gone into possession of land by consent, and many years later declined to leave. The claimant said the period of her adverse possession was insufficient but she claimed a tenancy. The claimant asserted that she had gone into possession as a licensee, and that the limitation period could not commence until her licence was terminated. Adverse possession is possession inconsistent with and in denial of the title of the true owner. A person cannot be a tenant at will where it appears that there was no intention to create legal relations, and she must be taken to have entered into possession of the disputed land in July 1974 as an intending purchaser and as a tenant at will. That tenancy expired after one year, when the limitation period commenced. Her claim succeeded.
Real Property Limitation Ordinance 1940
1 Cites

[ Bailii ] - [ PC ] - [ PC ]
 
Samy Sunnassee v David Ardill [2001] UKPC 25; Appeal No 50 of 1999
21 May 2001
PC

Land, Contract, Commonwealth
(Mauritius) The appeal concerned an option to purchase land. The parties differed as to the identity of the land covered, and as to the service of the notice exercising the option. Certain factual elements had not been resolved in the lower courts, and while reasserting their reluctance to investigate matters of fact, the court agreed to look at some factual issues. After many years the claimant was unable to produce evidence of the service of a particular notice, only a copy of the letter sent. An apparent mistake by the parties in referring to a plan which did not accord with the expectations of either of them would not vitiate the contractual option. Each party thought the plan referred to was in a certain form.
[ Bailii ] - [ PC ] - [ PC ]
 
Cleon Smith v The Queen [2001] UKPC 27; Appeal No 59 of 2000
24 May 2001
PC

Crime, Commonwealth
PC Belize
[ Bailii ] - [ PC ] - [ PC ]
 
Norman Shaw v The Queen Appeal No 58 of 2000; [2001] UKPC 26
24 May 2001
PC

Crime, Commonwealth
(Belize)
[ Bailii ] - [ PC ] - [ PC ]

 
 Agnew and Kevin James Bearsley v The Commissioner of Inland Revenue, and Official Assignee for the Estate In Bankruptcy of Bruce William Birtwhistle and Mark Leslie Birtwhistle; PC 5-Jun-2001 - [2001] 2 AC 710; [2001] UKPC 28; [2001] BCC 259; [2001] 2 BCLC 188; [2001] Lloyd's Rep Bank 251; [2001] 3 WLR 454
 
Jennifer Gairy (as administratrix of the estate of Eric Matthew Gairy, deceased) v The Attorney General of Grenada Times, 25 June 2001; Appeal No 29 of 2000; [2001] UKPC 30; [2002] 1 AC 167
19 Jun 2001
PC

Constitutional, Commonwealth
(Grenada) The appellant sought to enforce an order of compensation against the crown in Grenada. The new constitution of Grenada expressly replaced all previous laws. It was not to be assumed that protections by way of Crown privilege under the earlier laws could not be presumed to have been preserved. The new constitution which was intended to protect the fundamental rights of the citizen, and could include revocation of earlier protections for the Crown.
The Supreme law of Grenada 16
1 Citers

[ Bailii ] - [ PC ] - [ PC ]

 
 Michael Yearwood v The Queen; PC 26-Jun-2001 - [2001] UKPC 31; [2001] 5 LRC 247
 
Regina v Pan [2001] 2 SCR 344; 200 DLR (4th) 577; 155 CCC (3d) 97; 2001 SCC 42
29 Jun 2001

Arbour J
Commonwealth, Criminal Practice
(Supreme Court of Canada) The court considered the reason behind the common law rule against a court examining the activities of a jury: "the rule seeks to preserve the secrecy of the jury's deliberations, while ensuring that those deliberations remain untainted by contact with information or individuals from outside the jury. As a result, where the evidence establishes that the jury has been exposed to outside information or influences, it will generally be admissible." However the distinction between intrinsic and extrinsic matters "is not always self-evident and it is not possible to articulate with complete precision what is contemplated by the idea of a matter "extrinsic" to the jury deliberation process." It is a distinction which is at times "difficult to discern."
Arbour J identified the principal reasons for the common law rule of jury secrecy: "The first reason supporting the need for secrecy is that confidentiality promotes candour and the kind of full and frank debate that is essential to this type of collegial decision making. While searching for unanimity, jurors should be free to explore out loud all avenues of reasoning without fear of exposure to public ridicule, contempt or hatred. This rationale is of vital importance to the potential acquittal of an unpopular accused, or one charged with a particularly repulsive crime. In my view, this rationale is sound, and does not require empirical confirmation.
The Court of Appeal also placed considerable weight on the second rationale for the secrecy rule: the need to ensure finality of the verdict. Describing the verdict as the product of a dynamic process, the court emphasized the need to protect the solemnity of the verdict, as the product of the unanimous consensus which, when formally announced, carries the finality and authority of a legal pronouncement. That rationale is more abstract, and inevitably invites the question of why the finality of the verdict should prevail over its integrity in cases where that integrity is seriously put in issue. In a legal environment such as ours, which provides for generous review of judicial decisions on appeal, and which does not perceive the voicing of dissenting opinions on appeal as a threat to the authority of the law, I do not consider that finality, standing alone, is a convincing rationale for requiring secrecy.
The respondent, as well as the interveners supporting its position and, in particular, the Attorney General of Quebec, place great emphasis on the third main rationale for the jury secrecy rule – the need to protect jurors from harassment, censure and reprisals. Our system of jury selection is sensitive to the privacy interests of prospective jurors ..., and the proper functioning of the jury system, a constitutionally protected right in serious criminal charges, depends upon the willingness of jurors to discharge their functions honestly and honourably. This in turn is dependent, at the very minimum, on a system that ensures the safety of jurors, their sense of security, as well as their privacy.”
1 Citers

[ Vcanlii ]
 
Regina v Pan; Regina v Sawyer (2001) 147 OAC 1; (2001) 85 CRR (2d) 1; (2001) 43 CR (5th) 203; (2001) 155 CCC (3d) 97; (2001) 200 DLR (4th) 577; [2001] 2 SCR 344
29 Jun 2001


Commonwealth, Constitutional, Human Rights, Criminal Practice
Canlii (Supreme Court of Canada) Constitutional law – Charter of Rights – Fundamental justice – Whether common law rule of jury secrecy and Criminal Code prohibition on disclosure of information about “proceedings of the jury” consistent with principles of fundamental justice – Canadian Charter of Rights and Freedoms, s. 7 – Criminal Code, R.S.C. 1985, c. C-46, s. 649.
Criminal law – Juries – Rule of jury secrecy – Common law rule of jury secrecy providing that evidence concerning jury deliberations is inadmissible on appeal to impeach jury’s verdict – Whether common law rule of jury secrecy constitutional – Canadian Charter of Rights and Freedoms, s. 7.
Criminal law – Juries – Disclosure of jury proceedings – Criminal Code prohibiting disclosure of information about “proceedings of the jury” except where disclosure is in context of obstruction of justice proceedings involving a juror – Whether provision constitutional – Canadian Charter of Rights and Freedoms, s. 7 – Criminal Code, R.S.C. 1985, c. C-46, s. 649.
Criminal law – Abuse of process – Fundamental justice – Double jeopardy – Whether mistrial improperly declared at end of accused’s second trial – Whether proceedings against accused should have been stayed at outset of third trial – Whether holding of third trial violated principle against double jeopardy – Canadian Charter of Rights and Freedoms, ss. 7, 11(h).
Criminal law – Charge to jury – Reasonable doubt – Accused convicted of first degree murder – Whether pre-Lifchus charge on reasonable doubt in substantial compliance with principles set out in Lifchus.
1 Citers

[ Canlii ]
 
Manukau Urban Maori Authority and others v Treaty of Waitangi Fisheries Commission and others and Reuben Brian Perenara v Treaty of Waitangi Fisheries Commission and others (New Zealand) [2001] UKPC 32
2 Jul 2001
PC

Constitutional, Agriculture, Commonwealth
(New Zealand) The treaty of settlement between the Maori people and the state operated also as a settlement as between the various Maori peoples. Inherited rights to control fisheries were to be construed so as to benefit the Maori people as a whole. Measures under the Act to help preserve fisheries were challenged by non-traditional Maori groups, claiming that they preferred traditional (Iwi) groups. The statute required consultation with traditional meeting groups which would have the effect of excluding non-traditional Maoris. The words were clear, and gave no discretion to benefit other than Iwi groups.
Maori Fisheries Act 1989 - Treaty of Waitangi Act 1975
[ Bailii ] - [ PC ] - [ PC ]
 
Danyluk v Ainsworth Technologies Inc [2001] 2 SCR 460; 2001 SCC 44
12 Jul 2001

Binney J
Commonwealth, Estoppel
Canlii (Supreme Court of Canada) Administrative law – Issue estoppel – Employee filing complaint against employer under Employment Standards Act seeking unpaid wages and commissions – Employee subsequently commencing court action against employer for wrongful dismissal and unpaid wages and commissions – Employment standards officer dismissing employee’s complaint – Employer arguing that employee’s claim for unpaid wages and commissions before court barred by issue estoppel – Whether officer’s failure to observe procedural fairness in deciding employee’s complaint preventing application of issue estoppel – Whether preconditions to application of issue estoppel satisfied – If so, whether this Court should exercise its discretion and refuse to apply issue estoppel.
Binney J said: "a decision which is made without jurisdiction from the outset cannot form the basis of an estoppel"
1 Citers

[ Canlii ]

 
 Panton and Panton v The Minister of Finance and the Attorney General; PC 12-Jul-2001 - [2001] UKPC 33
 
Bay Hotel and Resort Limited and Zurich Indemnity Company of Canada v Cavalier Construction Co Ltd and Cavalier Construction Co Ltd [2001] UKPC 34; Appeal No 32 0f 2000
16 Jul 2001
PC
Lord Nicholls of Birkenhead, Lord Cooke of Thorndon, Lord Clyde, Lord Hutton, Lord Millett
Arbitration, Construction, Contract, Jurisdiction, Commonwealth
(Turks and Caicos Islands) A dispute after a construction contract was under standard terms according to the laws of Turks and Caicos islands. Two issues were appealed. What was a 'reasoned award' within the scheme, and whether the arbitrator could himself add a party to the arbitration. The substantive rather than procedural law of the country where the arbitration was carried out need not be that of the contract. The dispute properly fell to be arbitrated under the standard AAA terms, which provided that both the procedural and jurisdictional law to be applied would be that of the Islands. Though the award was insufficiently detailed to constitute a reasoned decision in English law, the evidence was that it would satisfy the requirements of the law under which it was issued. The clause regarding joinder was one restricting a power which must be derived elsewhere. There was no such power in this case, and the arbitrator was unable to join the other company without the consent of the other parties to the dispute.
[ Bailii ] - [ PC ] - [ PC ] - [ PC ]
 
Newton Spence v The Queen No 47 of 2000; [2001] UKPC 35
16 Jul 2001
PC
Lord Hoffmann, Sir Patrick Russell, Sir Christopher Staughton, Sir Andrew Leggatt, Sir Philip Otton
Criminal Practice, Commonwealth
(St. Vincent and the Grenadines) The appellant had been convicted of murder. The victim had died but partly as a result of the surgery to save him. The judge correctly directed the jury that they must be sure the original wound was a continuing, operative and substantial cause of death. The judge discharged one juror late in the trial because she wanted to go on holiday. This was not a proper reason, and the effect was potentially to deprive either party of a proper verdict. The conviction must be quashed.
[ Bailii ] - [ PC ] - [ PC ]

 
 Bennett and Augustus John v The Queen; PC 17-Jul-2001 - [2001] UKPC 37; Appeal No 74 of 2000
 
Confessor Valdez Franco v The Queen Times, 11 October 2001; [2001] UKPC 38; Appeal No 70 of 2000
14 Aug 2001
PC
Lord Bingham of Cornhill
Crime, Commonwealth
(Antigua and Barbuda) The appellant had been convicted of murder, with his defence of self-defence rejected by the jury. His defence was self-defence. No defence of provocation was advanced at trial and the trial judge gave no direction to the jury on provocation. It was accepted that there was some evidence of provocation, but this had not been left for the jury. On appeal, the court had said that this should have been left for the jury, but would also have been rejected. Statute in Antigua required evidence of provocation, once raised to be left to the jury. In the circumstances the appeal court had been wrong to pre-empt what the jury might have decided. A conviction of manslaughter was substituted, and the matter was remitted for sentence on that basis. The clear effect of s9C was to deny to trial judges the power previously exercisable to withdraw the issue of provocation from the jury where there is evidence potentially capable of satisfying the subjective condition, even if the judge considers that there is no evidence which could lead a reasonable jury to conclude that the provocation was enough to make a reasonable man do as the particular defendant did. As to the application of the proviso allowing a conviction to stand despite a misdirection: "The Board would accept that there will be cases where the proviso may properly be applied even where the objective issue should have been but was not left to the jury."
Lord Bingham: "In the opinion of the Board, the reasoning of the Court of Appeal in R v Cox, above, does not give adequate weight to the intention of Parliament expressed in section 3 of the 1957 Act and its overseas equivalents. The starting point must always be that in a trial on indictment the jury is the body to which the all-important decisions on the guilt of the accused are entrusted. This does not mean that every deviation from procedural regularity and legal correctness vitiates a jury's verdict of guilty. That would impose an unattainable standard of perfection and frustrate to an unacceptable extent the effective administration of criminal justice. But it does mean that an appellate court, which is not the trial tribunal, should be very cautious in drawing inferences or making findings about how the jury would have resolved issues which, for whatever reason, were never before it. This is particularly so in the context of section 3, since Parliament has gone out of its way, unusually, to stipulate that resolution of the objective issue, where it properly arises, should be exclusively reserved to the jury. To the extent that an appellate court takes it upon itself to decide that issue it is doing what Parliament has said the jury should do, and section 3 cannot be read as applying only to the trial court. "
1 Cites

1 Citers

[ PC ] - [ Bailii ] - [ PC ] - [ PC ]
 
Gutnick v Dow Jones [2002] HCA 56; [2001] VSC 305
28 Aug 2001

Callinan J
Commonwealth, Defamation
(High Court of Victoria) Callinan J said: "A publisher, particularly one carrying on the business of publishing, does not act to put matter on the Internet in order for it to reach a small target. It is its ubiquity which is one of the main attractions to users of it. And any person who gains access to the Internet does so by taking an initiative to gain access to it in a manner analogous to the purchase or other acquisition of a newspaper, in order to read it. . . If a publisher publishes in a multiplicity of jurisdictions it should understand, and must accept, that it runs the risk of liability in those jurisdictions in which the publication is not lawful and inflicts damage."
1 Cites

1 Citers

[ Austlii ]
 
AMP Workers Compensation v QBE [2001] NSWCA 267; (2001) 53 NSWLR 35
19 Sep 2001

Mason P, Handley, Beazley JJA
Commonwealth, Insurance
Austlii (Supreme Court of New South Wales - Court of Appeal) FACTS
The appeal involved a question of double insurance. The employer held a compulsory third party policy with QBE Insurance Limited in respect of a motor vehicle and a current workers' compensation policy with AMP Workers' Compensation Services (NSW) Limited. An employee in the course of his employment was injured by another employee negligently driving in the course of his employment with the same employer.
The first employee commenced proceedings against the second employee but did not seek to join the employer although it would have been vicariously liable. Those proceedings were settled. QBE satisfied the judgment debt as the compulsory third party policy covered the employee as the driver of the vehicle. QBE then claimed contribution from AMP. AMP argued that there was no relevant double insurance because its workers' compensation policy did not cover the negligent employee who was liable and entitled to indemnity from QBE, and the employer it did insure was never liable and never entitled to indemnity under either policy.
The dispute turned on the relevant date for the purposes of determining the question of double insurance. AMP contended that this had to be determined after the event when the claim for contribution was made. QBE contended that the question must be determined at the date of casualty. In the latter case there would clearly be double insurance in this case.
HELD (per Handley JA, Mason P and Beazley JA agreeing)
(i) The right of contribution only exists in respect of insurances which are contracts of indemnity, where two or more insurers are on risk in respect of the same loss or liability. The right arises when and because one of the insurers has paid more than his proper share of the common demand. Where one insurer has paid in full the indemnity is satisfied and the insured has no right of indemnity against any other insurer. The right of contribution therefore cannot depend on the continued existence of coordinate liabilities for the same demand because the very payment by one which calls the right into existence will have put an end to the liability of the other insurance.
(ii) The judgments in Albion Insurance Co Limited v Government Insurance Office (NSW) [1969] HCA 55; (1969) 121 CLR 342 require the question of double insurance to be determined at the time of the casualty. Although the present question did not arise in Albion Insurance, the focus in both judgments was on the contractual position at the time of the casualty when the loss in the one case, or the liability in the other, accrued.
(iii) There is no reason in precedent or principle why the right of contribution should be defeated by the existence of a second layer of choice available to another party. It should not rest with either of the persons who had available choices to exercise those choices in a way which would leave the ultimate burden on one of the insurers without any right of contribution from the other.
ORDER
Appeal dismissed with costs.
1 Citers

[ Austlii ]
 
Berthill Fox v Regina (1) [2001] UKPC 40
2 Oct 2001
PC
Lord Bingham of Cornhill, Lord Mackay of Clashfern, Lord Hoffmann, Lord Clyde, Lord Scott of Foscote, Lord Hoffmann
Evidence, Commonwealth
(St Christopher and Nevis) On a trial for murder, the defendant had made an unsworn statement from the dock. The direction from the judge as to its value was challenged on appeal. Though there was some confusion, on balance it was acceptable. As to provocation, the common law still applied in St Kitts, and the board was asked to develop the common law so as to bring it into line with the English statutory equivalent. Held: The board has no such power. The judge had further been correct in directing the jury as to the issue of self defence. Appeal dismissed.
1 Cites

[ PC ] - [ Bailii ] - [ PC ]
 
Electricity Corporation of New Zealand Ltd v Fletcher Challenge Energy Ltd [2002] 2 NZLR 433; (2001) 7 NZBLC 103, 477; [2001] NZCA 289
10 Oct 2001

Richardson P, Thomas J, Keith J, Blanchard J, McGrath J
Commonwealth, Contract
Court of Appeal of New Zealand Held: "The court has an entirely neutral approach when determining whether the parties intended to enter into a contract. Having decided that they had that intention, however, the court's attitude will change. It will then do its best to give effect to their intention and, if at all possible, to uphold the contract despite any omissions or ambiguities."
1 Citers

[ Nzlii ]
 
Sullivan v Moody (2001) 207 CLR 562
11 Oct 2001

Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ
Health Professions, Professional Negligence, Commonwealth
(High Court of Australia) A medical practitioner who examines and reports on the condition of an individual may owe a duty to more than one person: "The duty for which the [appellant fathers] contend cannot be reconciled satisfactorily, either with the nature of the functions being exercised by the [medical practitioners and others investigating allegations of child sex abuse], or with their statutory obligation to treat the interests of the children as paramount. As to the former, the functions of examination, and reporting, require, for their effective discharge, an investigation into the facts without apprehension as to possible adverse consequences for people in the position of the appellants or legal liability to such persons. As to the latter, the interests of the children, and those suspected of causing their harm, are diverse, and irreconcilable. That they are irreconcilable is evident when regard is had to the case in which examination of a child alleged to be a victim of abuse does not allow the examiner to form a definite opinion about whether the child has been abused, only a suspicion that it may have happened. The interests of the child, in such a case, would favour reporting that the suspicion of abuse has not been dispelled; the interests of a person suspected of the abuse would be to the opposite effect."
Austlii Torts - Negligence - Duty of care - Appellants suspected of sexually abusing their children - Alleged negligence of respondents in investigating and reporting on allegations - Appellants claimed that they suffered shock, distress, psychiatric injury, and consequential personal and financial loss as a result of the accusations - Whether medical practitioners, social workers and departmental officers involved in investigating and reporting upon allegations of child sexual abuse owe a duty of care to suspects.
1 Citers

[ Austlii ]

 
 Proulx v Quebec (Attorney General); 18-Oct-2001 - 2001 SCC 66; [2001] 3 SCR 9
 
M A McGuire and F P Makea v Hastings District Council and The Maori Land Court of New Zealand [2001] UKPC 43
1 Nov 2001
PC
Lord Bingham of Cornhill, Lord Cooke of Thorndon, Lord Hobhouse of Woodborough, Lord Millett, Sir Christopher Slade
Commonwealth
PC (New Zealand) The Board considered a clam for Maori land rights.
[ PC ] - [ PC ] - [ Bailii ]
 
Carroll v Council for Professions Supplementary To Medicine (Radiographers Board) [2001] UKPC 45
6 Nov 2001
PC

Commonwealth

[ Bailii ]
 
Hall v General Medical Council) [2001] UKPC 46
7 Nov 2001
PC

Commonwealth

[ Bailii ]
 
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199; [2001] 185 ALR 1; 76 ALJR 1
15 Nov 2001

Gleeson CJ
Commonwealth, Information, Equity, Constitutional
(High Court of Australia) The activities of a company which processed possum meat for export ("what the processing of possums looks,and sounds like") were not such as to attract the quality of being confidential for the purpose of the law protecting confidentiality.
Austlii Equity - Equitable remedies - Interlocutory injunction - Principles to be applied - Need for plaintiff to show a serious question to be tried - Defence that plaintiff has no equity - Nature of discretion to grant interlocutory relief - Relevance of implied freedom of political communication under the Constitution.
Practice and procedure - Interlocutory injunctions - Power of Supreme Court to grant interlocutory injunction - Whether s 11(12) of Supreme Court Civil Procedure Act 1932 (Tas) alters basis on which the Supreme Court has power to grant an interlocutory injunction - Purpose for which power exists to grant an interlocutory injunction - Meaning of "just and convenient".
Torts - Privacy - Whether Australian law recognises a tort of invasion of privacy - Whether right to privacy attaches to corporations - Relevance of implied freedom of political communication under the Constitution to the tort of privacy.
Constitutional law (Cth) - Interpretation of Constitution - Implications from Constitution - Implied freedom of communication concerning government and political matters - Whether law providing for interlocutory injunction against broadcaster infringes implied freedom - Whether injunction if granted would infringe freedom - Relevance of implied freedom to grant of injunction - Whether properly or at all taken into account.
Trespass to land - Trespasser illegally made clandestine film of activities and gave it to a broadcaster - Whether owner has right to restrain publication of film by broadcaster.
Words and phrases - "unconscionability" - "just and convenient" - "interlocutory injunction".
1 Citers

[ Austlii ]
 
Marvin Murphy v The Queen [2002] UKPC 3; (Appeal No 34 of 2001); (Appeal No 34 of 2001)
22 Nov 2001
PC
Lord Slynn of Hadley Lord Mustill Lord Scott of Foscote Sir Andrew Leggatt, Sir Philip Otton
Commonwealth, Crime, Evidence
(The Bahamas) The appellant had been convicted of burglary and robbery. The conviction depended upon identification by one witness who had given several differing descriptions. The trial was long delayed, and the appellant who was not represented was prevented from asking the witness about previous inconsistent descriptions, and nor was he shown earlier statements showing such differences. Held: In the circumstances the failure to disclose the earlier identification was a material irregularity. The police had also failed to disclose a first unsuccessful identification parade. A second had presumably been held because of some difference in description. Again that was a material irregularity. The directions as to the weakness of the identification evidence were also defective. Appeal succeeded.
1 Cites

[ PC ] - [ PC ] - [ PC ] - [ Marvin Murphy v. The Q' target-'_ext'>PC ] - [ Bailii ] - [ PC ]
 
Dextra Bank and Trust Company Limited v Bank of Jamaica [2002] 1 All ER (Comm) 193
26 Nov 2001
PC
Lord Bingham of Cornhill, Lord Goff of Chieveley, Lord Hobhouse of Woodborough, Sir Martin Nourse, Sir Patrick Russell
Banking, Commonwealth, Equity
(Jamaica) A cheque was drawn which was used as part a complex financial arrangement intended to purchase foreign currency to work around Jamaica's foreign exchange control regulations. It was asserted that by presenting the cheque used in the deception, it had been converted. The principle question was whether the cheque had been delivered as required under the Act. It was argued that the agent delivering the cheque was acting outside any authority entrusted to him by the drawer, and that accordingly no delivery was made. However his involvement was merely adventitious and could not invalidate delivery. The claimants sought restitution. The appellants asserted that they could rely upon the defence of 'change of position' and that the court should consider the relative degrees of fault of the parties. The court held that it was wrong to include any such calculation. "Their Lordships are, however, most reluctant to recognise the propriety of introducing the concept of relative fault into this branch of the common law, and indeed decline to do so. They regard good faith on the part of the recipient as a sufficient requirement in this context." The appeal was dismissed.
1 Cites

1 Citers

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Dextra Bank and Trust Company Ltd v Bank of Jamaica (Jamaica) [2001] UKPC 50
26 Nov 2001
PC

Commonwealth

[ Bailii ]
 
Kena Kena Properties Limited v The Attorney General No 44 of 2000
27 Nov 2001
PC
Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hobhouse of Woodborough, Lord Millett, Lord Scott of Foscote
Contract, Commonwealth
(New Zealand) The claimants asserted that they had entered into contracts for the supply of nursing home facilities, and in return received payments from the government towards the costs. The contract provided for the increase of payments annually. The Act provided that under contracts certain values were to be adjusted automatically. The rates were not raised, but not as provided under the Act, and the claimants sought payment. The government agency asserted that no contract existed but rather the payments were made as grants, and were not affected by the Act. Held: There was no requirement that a grant must be paid direct to the person intended to be benefited, the claim was in effect a claim of the same money again. The Act looked at it from the viewpoint of the government as payer. In their view it was in the nature of a grant or subsidy, and was not caught by the Act.
Goods and Services Tax Act 1985 78(2) (New Zealand)
[ PC ] - [ PC ]
 
Cook and others (Isle of Man) [2001] UKPC 52
27 Nov 2001
PC

Commonwealth

[ Bailii ]
 
Kena Kena Properties Ltd v Attorney General (New Zealand) [2001] UKPC 51
27 Nov 2001
PC

Commonwealth

[ Bailii ]
 
The Commissioner of Inland Revenue v Colonial Mutual Life Assurance Society Limited (Appeal No 64 of 2000) Appeal No 64 of 2000; [2001] UKPC 54
4 Dec 2001
PC
Lord Nicholls of Birkenhead Lord Browne-Wilkinson Lord Steyn Lord Hoffmann Sir Kenneth Keith
Insurance, Income Tax, Commonwealth
(New Zealand) The insurance company was taxed on the interest it charged to policyholders on late payments of life insurance and investment premiums. The Act had now been superceded. The Commissioner now appealed a dismissal of the charge. The debt was calculated as the arrears plus compounded interest. The Commissioner argued that the arrangement was by way of a loan advanced to the policyholder to pay the premium upon which interest was charged. The legislation divided insurance company income into investment income which was taxable, and premium income which wasn't. Held: There was no proper reason for distinguishing interest on late premiums from the premiums themselves, and the interest was not taxable.
Income Tax Act 1976 204 (New Zealand)
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Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516
6 Dec 2001

Gleeson CJ, Gaudron, Gummow, Kirby, Haynes, Callinan JJ
Commonwealth, Equity
High Court of Australia - Rothmans were licensed to act as wholesalers of tobacco products under a New South Wales statute. They sold products to retailers for a price including licence fees, which were in reality a form of indirect taxation, payable by Rothmans to the New South Wales government. The Act imposing that liability on Rothmans was held by the High Court to be unconstitutional. The retailers then sued Rothmans to recover the amounts which they had paid in respect of the tax which had until then been unlawfully imposed on Rothmans.
The retailers argued unsuccessfully that there was an implied agreement under which they could claim repayment of any unpaid tax. This argument was described in the leading judgment of Gleeson CJ, Gaudron and Hayne JJ, as "artificial and unconvincing". However, the retailers succeeded in restitution.
Gleeson CJ, Gaudron and Hayne JJ, stated that "Failure of consideration is not limited to non-performance of a contractual obligation, although it may include that". They also rejected Rothmans' argument that the restitution claims failed because there had not been a total failure of consideration, by interpreting the consideration for the total payments made by the retailers as containing severable parts.
Gummow J (concurring), advocated: "caution in judicial acceptance of any all-embracing theory of restitutionary rights and remedies founded upon a notion of 'unjust enrichment'. To the lawyer whose mind has been moulded by civilian influences, the theory may come first, and the source of the theory may be the writing of jurists not the decisions of judges. However, that is not the way in which a system based on case law develops; over time, general principle is derived from judicial decisions upon particular instances, not the other way around."
After reviewing the authorities Gummow J held that failure of consideration in this area of law may include the collapse of a bargain, which need not be contractual in nature. There had been no failure in the performance by Rothmans of any promise made by them, but there had been a "failure of consideration" in the "failure to sustain itself of the state of affairs contemplated as a basis for the payments the appellants seek to recover".
1 Citers


 
John Andrew Bagnall, Andrew John Maher v Mobile Oil New Zealand Limited (Appeal No 23 of 2001) 23 of 2001; [2001] UKPC 57
11 Dec 2001
PC
Lord Bingham of Cornhill Lord Hobhouse of Woodborough Lord Scott of Foscote Sir Martin Nourse Sir Kenneth Keith
Company, Commonwealth
(New Zealand) The respondent sponsored motor racing events in New Zealand. The company had failed to deliver the races agreed, and went into liquidation. The appellants had guaranteed its obligations. Summary judgement had been sought but refused, because it could not be said that the appellants had no arguable defence. The appellants appealed the reversal of that judgement. They argued that the respondents had contributed to the default. Held: By the time the respondents announced that the races would not be run, thereby contributing further to the difficulties, earlier races had already not been run, and the right to refund had already arisen. Appeal refused.
1 Cites

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Walsh (as executrix of the estate of David G Walsh) and Others v Deloitte & Touche Inc , Trustee of the estate of Bre-X Minerals Limited , a bankrupt No 37 of 2000; [2001] UKPC 58
17 Dec 2001
PC
Lord Slynn of Hadley Lord Hoffmann Lord Rodger of Earlsferry Sir Martin Nourse Sir Kenneth Keith
Litigation Practice, Information, Commonwealth
(Bahamas) Shares were sold in a mining company whose prices had been buoyed by rumour, but where disclosure of difficulties had not been made, and eventually it became clear that samples had bee fraudulently salted. The company became insolvent, and the respondents appointed. They obtained a continuing Mareva injunction against the appellant as executor of her husband's estate in the Bahamas. Held: An officer of a company owes a fiduciary duty to the company not to use his knowledge of its affairs by making a profit from dealing in what he knows to be a false market in its shares. Interlocutory jurisdiction is ordinarily ancillary to substantive jurisdiction. There was evidence that the appellants had tried move assets beyond the jurisdiction. The judge's discretion had been exercised properly. An appeal on the ground of delay had not been pleaded.
1 Cites

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Colin Joseph Brazier, Brazier Scaffolding Limited v Bramwell Scafolding (Dunedin) Limited, Bruce Leonard Harvey and Bramwell Scaffolding Limited (New Zealand) No 7 of 2001; [2001] UKPC 59
18 Dec 2001
PC
Lord Slynn of Hadley Lord Hutton Lord Hobhouse of Woodborough Sir Martin Nourse Sir Murray Stuart-Smith
Commercial, Company, Commonwealth
(New Zealand) One party sought the restructuring of a company in which he owned a substantial interest. The settlement required him to undertake not to compete with the company. Later he was suspected to be acting in breach of the covenant, and his explanation was not accepted by the court. It was argued that the finding was a finding of fraud where none had been pleaded. Held: The decision did not imply any finding of fraud. An injunction had been granted to oblige the appellant not to act in breach of the covenant, but not against the man who, it had been claimed as acting as his front man. It was argued that damages could not be awarded as well as an injunction. That power existed and there was no double recovery.
Companies Act 1955 (New Zealand)
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