Category: Commonwealth

Attorney General of Trinidad and Tobago v Phillip: PC 9 Nov 1994

A pardon which had been give to insurrectionists was invalid, since it purported to excuse future conduct also, but there had been no duress shown. There is no general power to excuse a crime before it is committed. Lord Woolf: ‘A pardon must in the ordinary way only relate to offences which have already been committed ….However while a pardon can expunge past offences, a power to pardon cannot be used to dispense with criminal responsibility for an offence which has not yet been committed . This is a principle of general application which is of the greatest importance. The state cannot be allowed to use a power to pardon to enable the law to be set aside by permitting it to be contravened with impunity.’ The prosecution of a person who in exchange for his co-operation has received an undertaking, promise or representation that he would not be charged is capable of amounting to an abuse of process.
Lord Bridge: ‘However while a pardon can expunge past offences, a power to pardon cannot be used to dispense with criminal responsibility for an offence which has not yet been committed. This is a principle of general application which is of the greatest importance. The state cannot be allowed to use a power to pardon to enable the law to be set aside by permitting it to be contravened with impunity.’

Judges:

Lord Woolf

Citations:

Independent 19-Oct-1994, Times 11-Oct-1994, Gazette 09-Nov-1994, [1995] 1 AC 396

Citing:

See Also – Lennox Phillip and Others v Director of Public Prosecutions of Trinidad and Tobago and Another; Same vCommissioners of Prisons PC 19-Feb-1992
(Trinidad and Tobago) There had been an insurrection, and many people were taken prisoner by the insurrectionists. To secure their release, the President issued an amnesty to all the insurgents, including the applicant. After surrendering, the . .

Cited by:

Cited – Regina (Pretty) v Director of Public Prosecutions, and Another, Medical Ethics Alliance and Others, interveners Admn 18-Oct-2001
The function of the Director’s office is statutory, and his powers are those laid down. He is not able to excuse possible criminal conduct in advance, and nor could he establish a policy of not applying certain statutory provisions. The Suicide Act . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Human Rights, Commonwealth

Updated: 18 May 2022; Ref: scu.77948

Queensland Stations Proprietary Ltd v Federal Commissioner of Taxation: 3 Aug 1945

High Court of Australia – The Court was aksed whether a payment made by the company to a drover was ‘wages’ within the meaning of a Pay-roll Tax Assessment Act, which depended on whether the relation between the company and the drover was that of master and servant. The drover was employed under a written contract to drove 317 cattle to a destination. The contract provided that he should obey and carry out all lawful instructions and use the whole of his time, energy and ability in the careful droving of the stock, that he should provide at his own expense all men, plant, horses and rations required for the operation, and that he should be paid at a rate per head for each of the cattle safely delivered at the destination.
Held: He was an independent contractor.
Dixon J said: ‘There is, of course, nothing to prevent a drover and his client forming the relation of employee and employer . . But whether they do so must depend on the facts. In considering the facts it is a mistake to treat as decisive a reservation of control over the manner in which the droving is performed and the cattle are handled. For instance, in the present case the circumstance that the drover agrees to obey and carry out all lawful instructions cannot outweigh the countervailing considerations which are found in the employment by him of servants of his own, the provision of horses, equipment, plant, rations, and a remuneration at a rate per head delivered. That a reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract appears from . . ‘ (authorities cited)

Judges:

Latham CJ, Rich and Dixon JJ

Citations:

[1945] HCA 13, (1945) 70 CLR 539

Links:

Austlii

Commonwealth

Updated: 18 May 2022; Ref: scu.567822

Fox et al v Royal Bank of Canada et al: 7 Oct 1975

Canlii Supreme Court of Canada – Guarantee -Surety and sub-surety – Co-sureties – Sub-surety guaranteeing liability of surety – Surety paying creditor-Right of sub-surety to indemnity from the co-sureties.

Judges:

Martland, Judson, Ritchie, Spence and Dickson JJ

Citations:

[1976] 2 SCR 2, 1975 CanLII 150 (SCC)

Links:

Canlii

Cited by:

Cited – Day v Shaw and Another ChD 17-Jan-2014
Mr and Mrs Shaw had granted a second charge over their jointly-owned matrimonial home to secure the personal guarantee given by their daughter and by Mr Shaw in respect of a bank loan to a company (Avon). Their daughter and Mr Shaw were the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Equity

Updated: 18 May 2022; Ref: scu.567254

Official Trustee in Bankruptcy v Citibank Savings Ltd: 1995

(New South Wales) Mr and Mrs P owned and controlled W Ltd. W Ltd borrowed monies from Citibank which took security for repayment in the form of a charge over the home of Mr and Mrs P and also a charge over the home of the parents of Mr P. On the face of the documents, Mr and Mrs P and the parents of Mr P were co-sureties for the debt of W Ltd. W Ltd defaulted and Mr and Mrs P were made bankrupt. Their trustee in bankruptcy sold their home and repaid the debt to Citibank. The trustee then claimed an equal contribution from Mr P’s parents on the basis that they were co-sureties with Mr and Mrs P and that the default position was that the co-sureties were equally liable to contribute to the payment of the debt.
Held: The claim by the trustee in bankruptcy was dismissed. Mr P’s parents had entered into the charge at the request of Mr and Mrs P and therefore Mr and Mrs P were liable to indemnify Mr P’s parents and, accordingly, were not entitled to claim a contribution from them. A right of contribution may not arise where two persons borrow money but that money is applied for the purposes of only one of them, or if one guarantor enjoys the whole benefit of the guarantee in another capacity to the exclusion of his co-surety.
In considering whether common intention is essential to rebut contribution, Bryson J said: ‘The position taken by the plaintiff’s counsel before me was to the effect that the prima facie right of contribution can only be rebutted if a common intention to the contrary is clearly proved by evidence of some agreement or arrangement. No doubt it is very usual that rebuttal takes that form, but in my opinion it is not necessary that there should be a common intention or a bilateral arrangement, and it is not necessary that there should be any expression of an intention or arrangement, as circumstances can occur in which an intended outcome is so clear and obvious that it must be imputed to the parties that they intended it. Quite apart from any intention held by the parties or imputed to them, circumstances can occur in which, without there being any expression of intention or actual advertence to the subject of contribution, it is clear that equity does not require that an obligation to make contribution should be imposed on a party. The court should not lose sight of the origin of the right to contribution in the equitable principle that equity is equality, or forget that facts may exist in which it is not appropriate to treat parties under a common liability as in an equal position, or in which some other equitable principle ought to be given effect.’

Judges:

Bryson J

Citations:

[1999] BPIR 754, (1995) 38 NSWLR 116

Cited by:

Cited – Day v Shaw and Another ChD 17-Jan-2014
Mr and Mrs Shaw had granted a second charge over their jointly-owned matrimonial home to secure the personal guarantee given by their daughter and by Mr Shaw in respect of a bank loan to a company (Avon). Their daughter and Mr Shaw were the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Equity

Updated: 18 May 2022; Ref: scu.567255

Burke v LFOT Pty Ltd: 18 Apr 2002

(High Court of Australia) Trade and commerce – Damages – Equitable contribution – Liability to pay damages under ss 75B, 82, 87 of Trade Practices Act 1974 (Cth) for breach of s 52 of the Act – Whether solicitor who gave negligent advice should contribute to the loss suffered by his client as a consequence of another’s misrepresentation which loss could have been avoided by careful advice by the solicitor – Whether equitable maxims prevent requirement of contribution.
Equity – Equitable contribution – Scope of – Requirement of co-ordinate liability – Whether solicitor who gave negligent advice should contribute to loss suffered by client as a consequence of another’s representation where the loss could have been avoided by careful advice by the solicitor.
Contribution – Equitable contribution – Scope of and availability – Co-ordinate liability – Requirements of – Whether compatible with the obligations imposed by Trade Practices Act 1974 (Cth) for breach of s 52 of the Act.
Words and phrases – ‘co-ordinate liability’, ‘natural justice’.

Judges:

Gaudron ACJ, McHugh, Kirby, Hayne, Callinan JJ

Citations:

187 ALR 612, [2002] HCA 17

Links:

Austlii

Cited by:

Cited – Zurich Insurance Plc UK Branch v International Energy Group Ltd SC 20-May-2015
A claim had been made for mesothelioma following exposure to asbestos, but the claim arose in Guernsey. Acknowledging the acute difficultis particular to the evidence in such cases, the House of Lords, in Fairchild. had introduced the Special Rule . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Damages, Equity, Natural Justice

Updated: 18 May 2022; Ref: scu.566220

Dominion Rent A Car Ltd v Budget Rent A Car Systems (1970) Ltd: 27 Mar 1987

(Court of Appeal of New Zealand) The court considered looked at the degree of activity required to justify a finding that an international company had sufficient business connection in New Zealand to which goodwill could attach.
Held: Somers J said: ‘One important limitation on the right of a trader to restrain another is that he must show an invasion of that tangible right of property compendiously described as goodwill . . The existence of a trading reputation is not by itself sufficient – there can be no damage other than to a right of property . . ‘

Judges:

Somers J

Citations:

[1987] NZCA 13, [1987] 2 TCLR 91, [1987] 2 NZLR 395, (1987) 9 NZIPR 367, (1988) 2 NZBLC 102

Links:

NZLII

Cited by:

Cited – Starbucks (HK) Ltd and Another v British Sky Broadcasting Group Plc and Others SC 13-May-2015
The court was asked whether, as the appellants contended, a claimant who is seeking to maintain an action in passing off need only establish a reputation among a significant section of the public within the jurisdiction, or whether, as the courts . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Intellectual Property

Updated: 18 May 2022; Ref: scu.566012

Conagra Inc v McCain Foods (Aust) Pty Ltd: 14 Apr 1992

Austlii Intellectual Property – passing off – bases and elements of passing off action – whether carrying on business within jurisdiction or place of business within jurisdiction – sufficiency of nexus with the jurisdiction – necessity and method of establishing reputation within jurisdiction – requirement of goodwill – whether fraud is a necessary element of passing off – relevance of establishing fraud.
Trade Practices – misleading and deceptive conduct – relationship between reputation in passing off action and establishing misleading and deceptive conduct.
Although the claim in passing off failed, and after a very full review of the common law authorities Lockhart J said that it was ‘no longer valid, if it ever was, to speak of a business having goodwill or reputation only where the business is carried on’, relying on ‘[m]odern mass advertising . . [which] reaches people in many countries of the world’, ‘[t]he international mobility of the world population’ and the fact that ‘[t]his is an age of enormous commercial enterprises’. ‘it is not necessary . . that a plaintiff, in order to maintain a passing off action, must have a place of business or a business presence in Australia; nor is it necessary that his goods are sold here’, saying that it would be ‘sufficient if his goods have a reputation in this country among persons here, whether residents or otherwise’.

Judges:

Lockhart(1), Gummow(2) and French(3) JJ.

Citations:

[1992] FCA 159, (1992) 23 IPR 193, (1992) Aipc 90-892 (Extract), (1992) 106 ALR 465, (1992) 33 FCR 302

Links:

Austlii

Cited by:

Cited – Starbucks (HK) Ltd and Another v British Sky Broadcasting Group Plc and Others SC 13-May-2015
The court was asked whether, as the appellants contended, a claimant who is seeking to maintain an action in passing off need only establish a reputation among a significant section of the public within the jurisdiction, or whether, as the courts . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Intellectual Property

Updated: 18 May 2022; Ref: scu.566013

Orkin Exterminating Co Inc v Pestco Co of Canada Ltd: 10 Jun 1985

Canlii (Court of Appeal, Ontario) Torts — Passing off — Goodwill — Pest control company carrying on business in United States but not in Canada — Company having reputation among Canadian customers for services performed for them in United States — Company intending to expand its business into Ontario — Company having goodwill which Canadian court will protect in passing-off action.
The plaintiff was an American company which did not carry on business in Canada. The defendant was a Canadian company, carrying on business in Metropolitan Toronto. The defendant started using the plaintiff ‘s name in its business and later it began using the plaintiff ‘s logo on invoices it sent to customers under its own name. The plaintiff brought an action against the defendant for damages for passing off and an injunction. The trial judge gave judgment for the plaintiff. The defendant appealed to the Ontario Court of Appeal.
Held, the appeal should be dismissed. The trial judge was right in concluding that the plaintiff was entitled to relief on the basis that it had a reputation (built up in several different ways including having customers) in Ontario and intended to expand its business into Ontario. A plaintiff does not have to be in direct competition with the defendant to suffer injury from the use of its trade name by the defendant. If the plaintiff ‘s trade name had a reputation in the defendant’s jurisdiction, so that the public associated it with services provided by the plaintiff, then the defendant’s use of it would mean that the plaintiff had lost control over the impact of its trade name in the defendant’s jurisdiction. The practical consequence of this would be that the plaintiff would then be vulnerable to losing the Ontario customers it had as well as prospective Ontario customers, with respect to services provided in the United States. Also, it could result in the plaintiff being prevented from using its trade name in Ontario when it expanded its business into Ontario. Bearing in mind that the defendant had a virtually infinite range of names and symbols from which to choose, it is difficult to see the enjoining of it from using the name and logo of a well- established company in the same business as an unreasonable restraint on its freedom to carry on business as it sees fit. The public are entitled to be protected from such deliberate deception and the plaintiff, which had laboured long and hard and made substantial expenditures to create its reputation which had spread to Ontario, was entitled to the protection of its name from misappropriation. The spectre of the plaintiff having a monopoly in Ontario in its name and distinctive logo, even though it did not carry on business here, was considerably less troubling than the deceptive use of its name and symbol by another. As far as freedom of trade and the reasonable expectations of business people are concerned, the interests of a dishonest defendant are entitled to less weight than those of a defendant who has acted in good faith. That is not to say that the defendant’s bad faith alone will confer a cause of action on a foreign plaintiff, but it is a relevant factor to take into account in adjusting competing interests. The plaintiff ‘s goodwill existed outside the area where it carried on business. In this kind of case the main consideration should be the likelihood of confusion with consequential injury to the plaintiff. Generally, where there is such confusion there is goodwill deserving of protection. In any event, the applicable principles could be framed without using the word ‘goodwill’.
The competing rights of the parties had to be determined as of the date when the defendant started using the plaintiff ‘s name in Ontario. At the time the plaintiff ‘s reputation in Ontario, based on its customers in Ontario and advertising of various kinds, was of sufficient strength to make its rights superior to those of the defendant. Its reputation had grown steadily since. The defendant’s decision to use the plaintiff ‘s name in Ontario was evidence that the plaintiff ‘s name had commercial value at that time in Ontario and was an important indication of goodwill in a ‘foreign’ territory. The defendant argued that no damage to the plaintiff ‘s goodwill had occurred in Canada because the defendant and the plaintiff were not competitors. Without damage there can be no passing off. However, the plaintiff had suffered damage, sufficient to support a cause of action against the defendant, by virtue of its loss of control over the impact of its trade name in Ontario and the creation of a potential impediment to its using its trade mark upon entering the Ontario market — both arising from the defendant’s use of the plaintiff ‘s name in Ontario.
Although the plaintiff’s business was conducted in the USA, it enjoyed thousands of Canadian clients who used its pest control services for their properties in Canada. It sought an injunction in passing off.
Held: Morden JA granted the order, specifically relying on the fact that the plaintiff had goodwill ‘including having customers’ in Canada, although he did express disquiet about Lord Diplock’s notion in Star Industrial that goodwill had to be divided up nationally.

Judges:

Morden, Zuber, Robins JJA

Citations:

(1985) 19 DLR (4th) 90, 50 OR (2d) 726, 30 BLR 152, 34 CCLT 1, 5 CPR (3d) 433, 1985] OJ No 2526 (QL), 10 OAC 14

Links:

Canlii

Citing:

Doubted – Star Industrial Company Limited v Yap Kwee Kor trading as New Star Industrial Company PC 26-Jan-1976
(Singapore) The plaintiff Hong Kong company had manufactured toothbrushes and exported them to Singapore, for re-export to Malaysia and Indonesia, but with some local sales as well. Their characteristic get-up included the words ‘ACE BRAND’ and a . .

Cited by:

Cited – Starbucks (HK) Ltd and Another v British Sky Broadcasting Group Plc and Others SC 13-May-2015
The court was asked whether, as the appellants contended, a claimant who is seeking to maintain an action in passing off need only establish a reputation among a significant section of the public within the jurisdiction, or whether, as the courts . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Intellectual Property

Updated: 18 May 2022; Ref: scu.566011

Caterham Car Sales and Coachworks Ltd v Birkin Cars (Pty) Ltd and Another: 27 May 1998

(South Africa: Supreme Court of Appeal) the plaintiff sought to prevent the defendant, as it claimed, passing off their cars as its own.
Held: On the facts, the case failed. However, the only component of goodwill of a business that can be damaged by means of a passing-off is its reputation and it is for this reason that the first requirement for a successful passing-off action is proof of the relevant reputation.

Judges:

Smalberger, Harms, Marais, Schutz, Plewman JJA

Citations:

[1998] ZASCA 44, 1998 (3) SA 938 (SCA), [1998] 3 All SA 175 (A)

Links:

Saflii

Cited by:

Cited – Starbucks (HK) Ltd and Another v British Sky Broadcasting Group Plc and Others SC 13-May-2015
The court was asked whether, as the appellants contended, a claimant who is seeking to maintain an action in passing off need only establish a reputation among a significant section of the public within the jurisdiction, or whether, as the courts . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Intellectual Property

Updated: 18 May 2022; Ref: scu.566014

High Parklane Consulting Inc v Lewis: 16 Jan 2007

(Ontario – Superior Court of Justice)

Judges:

Perell J

Citations:

2007 CanLII 410

Links:

Canlii

Cited by:

Cited – Rhodes v OPO and Another SC 20-May-2015
The mother sought to prevent a father from publishing a book about her child’s life. It was to contain passages she said may cause psychological harm to the 12 year old son. Mother and son lived in the USA and the family court here had no . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 18 May 2022; Ref: scu.566207

Albion Insurance Co Ltd v Government Insurance Office (NSW): 31 Oct 1969

(High Court of Australia) Insurance – Contribution between insurers – Identity of risk insured – Loss covered by two policies – General nature and purpose of policies different – Extent of rights and liabilities created under policies different – Workers’ compensation policy with indemnity extended to include employer’s common law liability – Motor vehicle third party policy covering employer’s liability to employee arising out of use of motor vehicle.
Kitto J said: ‘ ‘a principle applicable at law no less than in equity, is that persons who are under co-ordinate liabilities to make good one loss (eg sureties liable to make good a failure to pay the one debt) must share the burden pro rata’: the object being, as Hamilton J stated in American Surety Co of New York v Wrightson (1910) 103 LT 663: ‘to put people who have commonly guaranteed or commonly insured in the same position as if the principal creditor or the assured had pursued his remedies rateably among them instead of doing as he is entitled to do, exhausting them to suit himself against one or other of them.”

Judges:

Barwick CJ, McTiernan, Kitto, Menzies and Windeyer J.

Citations:

[1969] HCA 55, (1969) 121 CLR 342

Links:

Austlii

Cited by:

Cited – The National Farmers Union Mutual Insurance Society Ltd v HSBC Insurance (UK) Ltd ComC 19-Apr-2010
Gavin Kealey QC DHCJ set out the concept of double insurance: ‘Double insurance arises where the same party is insured with two (or more) insurers in respect of the same interest on the same subject-matter against the same risks. If a loss by a . .
Cited – Zurich Insurance Plc UK Branch v International Energy Group Ltd SC 20-May-2015
A claim had been made for mesothelioma following exposure to asbestos, but the claim arose in Guernsey. Acknowledging the acute difficultis particular to the evidence in such cases, the House of Lords, in Fairchild. had introduced the Special Rule . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Insurance

Updated: 18 May 2022; Ref: scu.566217

AMP Workers Compensation v QBE: 19 Sep 2001

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.

Judges:

Mason P, Handley, Beazley JJA

Citations:

[2001] NSWCA 267, (2001) 53 NSWLR 35

Links:

Austlii

Cited by:

Cited – Zurich Insurance Plc UK Branch v International Energy Group Ltd SC 20-May-2015
A claim had been made for mesothelioma following exposure to asbestos, but the claim arose in Guernsey. Acknowledging the acute difficultis particular to the evidence in such cases, the House of Lords, in Fairchild. had introduced the Special Rule . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Insurance

Updated: 18 May 2022; Ref: scu.566218

Zurich Australian Insurance Ltd v GIO General Ltd: 10 Mar 2011

Austlii (Supreme Court of New South Wales – Court of Appeal) INSURANCE – Double insurance principle – two different insureds entitled to indemnity from two different insurers with respect to separate liabilities for the same injury – contribution between insurers – extended contribution principle in AMP Workers Compensation Services (NSW) Ltd v QBE Insurance Ltd [2001] NSWCA 267; (2001) 53 NSWLR 35 – uncrystallised liability sufficient for purposes of double insurance – second insurer concurred in first insurer indemnifying its insured in the injury – proof of liability of second insurer’s insured – first insurer’s indemnity discharged that liability – second insurer required to share burden of indemnity – sufficient to declare entitlement to contribution

Judges:

Allsop P, Giles JA, Young JA

Citations:

[2011] NSWCA 47

Links:

Austlii

Cited by:

Cited – Zurich Insurance Plc UK Branch v International Energy Group Ltd SC 20-May-2015
A claim had been made for mesothelioma following exposure to asbestos, but the claim arose in Guernsey. Acknowledging the acute difficultis particular to the evidence in such cases, the House of Lords, in Fairchild. had introduced the Special Rule . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Insurance

Updated: 18 May 2022; Ref: scu.566219

John De Freitas v The Queen: 1960

(West Indian Federal Supreme Court) If the prosecution have shown that the defendant’s actions were not done in self defence, then that issue is eliminated from the case.

Citations:

[1960] 2 WIR 523

Cited by:

Appeal from – John De Freitas v The Queen PC 10-Jul-1961
(West Indies) . .
Preferred – Palmer v The Queen PC 23-Nov-1970
It is a defence in criminal law to a charge of assault if the defendant had an honest belief that he was going to be attacked and reacted with proportionate force: ‘If there has been an attack so that defence is reasonably necessary, it should be . .
Lists of cited by and citing cases may be incomplete.

Crime, Commonwealth

Updated: 18 May 2022; Ref: scu.539753

Munro v Southern Dairies: 18 Apr 1955

(Victoria) Nuisance – Horses kept on dairy premises without proper stabling – Interference with use and enjoyment of neighbouring premises – Loss of sleep by neighbouring occupier as a result thereof – Whether reasonable’ use of the premises or public benefit are defences – Whether a trade essential to the locality can be complained of – Extent to which evidence of economic necessity for delivery of milk by horse – drawn vehicles is relevant – Jurisdiction to refuse injunction – on undertaking by defendant to erect proper stables.
Sholl J said: ‘If a man chooses to make his home in the heart of a coalfield or in a manufacturing district, he can expect no more freedom from the discomfort usually associated with such a place than any other resident can.’ but granted an injunction: ‘To restrain the defendant, by its directors, servants and agents, from causing or permitting on the premises at Grenville Street and Whylis Street, Hampton, on which it now conducts its business, any nuisance (whether by way of smell, noise or flies . . )’

Judges:

Sholl J

Citations:

[1955] VLR 332, [1955] ALR 793, [1955] VicLawRp 60

Links:

Austlii

Cited by:

Cited – Coventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Nuisance

Updated: 18 May 2022; Ref: scu.536799

Gamer’s Motor Centre (Newcastle) Proprietary Limited v Natwest Wholesale Australia Proprietary Limited: 24 Jul 1987

Austlii (High Court of Australia) Sale of Goods – Sale by buyer obtaining possession with sellers consent – Delivery under sale, pledge or other disposition to third party receiving goods or documents of title in good faith – Delivery – Whether physical delivery required – Sale of Goods Act 1923 (NSW), ss. 5(1) ‘delivery’,28 – Factors (Mercantile Agents) Act 1923 (N.S.W.), s. 5(1).

Judges:

Mason CJ

Citations:

(1987) 163 CLR 236, [1987] HCA 30

Links:

Austlii

Cited by:

Applied – Forsythe International (UK) Limited v Silver Shipping Co Limited and Others 1993
Delivery under section 24 requires a voluntary act by the person in possession because by section 61(1) of the 1979 Act, unless the context or subject matter otherwise requires, `delivery’ means `voluntary transfer from one person to another’. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Contract

Updated: 18 May 2022; Ref: scu.470091

W97/164 v Minister for Immigration and Multicultural Affairs: 10 Jun 1998

Austlii (Administrative Appeals Tribunal – Australia) IMMIGRATION AND CITIZENSHIP – application for a protection visa – whether applicant excluded from protection under the Refugees Convention by reason of Article 1F(a) – applicant, while a member of the Burmese Navy, participated in events in 1988 which lead to death of protesters – applicant did not kill anyone – whether ‘serious reasons for considering’ that applicant has committed a crime against humanity – meaning of ‘serious reasons for considering’ – discussion of what constitutes a ‘crime against humanity’ – what is meant by requirement that acts be committed ‘against any civilian population’ – must the act have been committed during hostilities – finding that a crime against humanity was committed by others – was the applicant an accomplice – mental element required of an accomplice – defence of obedience to higher orders
Mathews J said: ‘The article provides a direction to decision-makers in words that are clear of meaning and relatively easy of application. To re-state this test in terms of a standard of proof is unnecessary and may in some cases lead to confusion and error.’ and ‘I find it difficult to accept that the requirement that there be ‘serious reasons for considering’ that a crime against humanity has been committed should be pitched so low as to fall, in all cases, below the civil standard of proof. The seriousness of the allegation itself and the extreme consequences which can flow from an alternative finding upon it would, in my view, require a decision-maker to give substantial content to the requirement that there be ‘serious reasons for considering’ (emphasis added) that such a crime has been committed.’

Judges:

Mathews J

Citations:

[1998] AATA 618

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Al-Sirri v Secretary of State for The Home Department SC 21-Nov-2012
The appellants had been refused refugee status on the ground that they were suspected of having been guilty of terrorist acts. They said that the definition of terrorism applied within the UK was wider than that in the Convention which contained the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 18 May 2022; Ref: scu.470874

Hosokawa Micron International Inc v Fortune: 1990

(Federal Court of Australia) A design which is dictated solely by function is not a ‘design’ within the meaning of section 4 of the Designs Act 1906. Lockhart J said that: ‘The essence of the registrability of a design is that it has an element of novelty having regard to the nature of the article and the state of the prior art. The cases mentioned earlier speak eloquently of this and Le May v Welch is a notable example.’ and ‘In my opinion Utilux and Interlego provide strong support for the view that features of a design are dictated solely by the function which the article has to perform, not when the article’s function for successful performance requires that it be made in that shape and in no other, but when the relevant features of the shape are brought about solely by or are attributable only to the function which the article in that shape is to perform even if the same function could be performed by an article of different shape.’

Judges:

Lockhart, Northrop JJ

Citations:

(1990) 26 FCR 393, (1990) 97 ALR 615, (1990) 19 IPR 531, [1991] AIPC 37 226

Jurisdiction:

Australia

Cited by:

Cited – Lucasfilm Ltd and Others v Ainsworth and Another SC 27-Jul-2011
The claimant had produced the Star War films which made use of props, in particular a ‘Stormtrooper’ helmet designed by the defendant. The defendant had then himself distributed models of the designs he had created. The appellant obtained judgment . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property

Updated: 18 May 2022; Ref: scu.442605

International Air Transport Association v Ansett Australia Holdings Ltd: 6 Feb 2008

(High Court of Australia) The rules of the clearing house scheme had been modified following the British Eagle decision so as to exclude any liability or right of action for payment between member airlines.
Held: (by a majority, Kirby J dissenting) The rule changes were effective to make the IATA the sole creditor of Ansett, and that the revised system did not have the effect of administering debts due to an insolvent company otherwise than in accordance with the mandatory pari passu rule. The court referred to Ex p Mackay and suggested that Lord Cross’ speech in British Eagle was based in part on the anti-deprivation principle; and that there was no need for recourse to the rule that a contract which is contrary to public policy is void, because the statute was an overriding one which applied according to its terms.

Judges:

Gleeson CJ

Citations:

[2008] HCA 3, (2008) 234 CLR 151, (2008) 242 ALR 47, (2008) 82 ALJR 419, (2008) 65 ACSR 1, (2008) 26 ACLC 38

Links:

Austlii

Citing:

Cited – British Eagle International Airlines Ltd v Compagnie National Air France HL 1975
British Eagle, which had gone into liquidation. The parties disputed a contract attempting to reset the ranking of debts. The House was asked whether there was a debt due to the insolvent company at the commencement of its winding-up, to which the . .

Cited by:

Cited – Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Another SC 27-Jul-2011
Complex financial instruments insured the indebtedness of Lehman Brothers. On that company’s insolvency a claim was made. It was said that provisions in the documents offended the rule against the anti-deprivation rule. The courts below had upheld . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Insolvency

Updated: 18 May 2022; Ref: scu.442611

Stopforth v Goyer: 1978

(High Court of Ontario) A claim was made for defamation in remarks made by the defendant about the plaintiff to media representative who were present in parliament, just after he left the Ottawa chamber at the conclusion of the question period. The plaintiff had been a senior member of a team having conduct of the delivery of weapons systems to the government. The defendant had been the relevant minister. It was accepted that the defendant was taken to assume that his acceptedly defamatory words would be repulished by the media. The defendant claimed qualified privilege.
Held: The defence was not made out. There was no duty falling on him at the time to utter the words he did, and nor was there a reciprocal duty in the press to receive the statement.

Judges:

Lief J

Citations:

(1978) 87 DLR (3d) 373, (1978) 4 CCLT 265

Cited by:

Cited – Chaytor and Others, Regina v SC 1-Dec-2010
The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .
Cited – Makudi v Baron Triesman of Tottenham CA 26-Feb-2014
Appeal against strike out of claims for defamation and malicious falsehood. The defendant had given evidence to the Culture Media and Sport Select Committee of the House of Commons with material highly critical of the claimant, a member of FIFA’s . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional, Defamation, Media

Updated: 18 May 2022; Ref: scu.427747

Red Sea Insurance Co Ltd v Bouygues SA and Others: 1993

Hong Kong

Judges:

Sir Derek Cons VP

Citations:

[1993] 2 HKLR 161

Jurisdiction:

England and Wales

Citing:

Applied – Robinson v Unicos Property Corpn Ltd CA 1962
The plaintiff sought an additional averment (unsuccessfully objected to as constituting the addition of a new cause of action) to plead that the first plaintiff sued as equitable assignee of the benefit of a contract made with the defendant (the . .

Cited by:

Appeal from – Red Sea Insurance Co Ltd v Bouygues SA and Others PC 21-Jul-1994
Lex loci delicti (the law of the jurisdiction in which the act complained of took place) can exceptionally be used when the lex fori (the jurisdiction formally assigned) gives no remedy. In the case of a claim under a foreign tort, the double . .
Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 18 May 2022; Ref: scu.416016

Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union: 1979

(Federal Court of Australia) Deane J interpreted a statute using the word ‘substantial’ saying that it ‘is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision.’

Judges:

Deane J

Citations:

(1979) 42 FLR 331

Cited by:

Cited – Agbaje v Akinnoye-Agbaje SC 10-Mar-2010
The parties had divorced in Nigeria, but the former wife now sought relief in the UK under section 10 of the 194 Act. The wife said that she lived here, but the order made in Nigeria was severely detrimental requiring her either to live here in . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Litigation Practice

Updated: 18 May 2022; Ref: scu.406669

Evans v John Fairfax Group Pty Ltd: 12 Feb 1993

(Supreme Court of the Australian Capital Territory) It was not defamatory to say of a career civil servant that his career had been aided by patronage of senior politicians, since it did not impute any active or improper seeking of favours on the plaintiff’s part: The question is, however, whether to say of a person that he has been the beneficiary of such a system, with the capacity to be used to favour the less well qualified candidates, defames the candidate . . In Renouf [(1977) 17 ACTR 35] (supra), Blackburn CJ accepted that it was defamatory of a senior public servant . . ‘to say that he publicly demonstrated his sympathy with a political party with a view to receiving a higher appointment from the Government formed by that party’. . That imputation was accepted as defamatory by reason of the implication that the plaintiff had attempted to openly demonstrate his political acceptability to the Government. That allegation assumed, of course, that the Government in question made such appointments on the ground of political acceptability . . In the present case, the article depicts the plaintiff as a favoured recipient of preferment. It is not suggested he improperly sought it, as was the defamatory allegation in Fairbairn v John Fairfax and Sons Ltd (1977) 21 ACTR 1 . . The article did not over-state the role of the Prime Minister in the plaintiff’s career advancement, but it did not impute any unfair or improper conuct to him nor suggest he did not merit such advancement. It did not convey the imputation pleaded. That would require the article to assert that the plaintiff’s qualifications and experience were less important than the favour of the Pdrime Minister. It clearly does not do that.’

Judges:

Higgins J

Citations:

[1993] ACTSC 7

Links:

Austlii

Cited by:

Cited – Miller v Associated Newspapers Ltd QBD 31-Mar-2010
The claimant sought damages in defamation, saying that the defendant newspaper (Daily Mail) had implied abuse of his friendship with a Police Commissioner to obtain contracts. The defendant denied any meaning defamatory of the claimant.
Held: . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Defamation

Updated: 18 May 2022; Ref: scu.406675

Wright and Advertiser Newspapers Limited v Lewis: 1990

(Supreme Court of South Australia) L, a member of the South Australia House of Assembly, alleged in the House that W had obtained an advantage from his close association with a former Government. W wrote to the newspaper, which published it, accusing L of abusing parliamentary privilege and of cheap political opportunism. L said the letter was libelous. W pleaded justification, qualified privilege and fair comment. L’s integrity in making statements in the House was determinative of the action: the letter was plainly defamatory and unless the defendants could challenge the truthfulness of what the plaintiff had said in Parliament, they had no defence.
Held: King CJ set out the result of allowing the action without such evidence: ‘It must be observed at the outset that if the view argued for by counsel for the Attorney-General and the plaintiff is correct, the result is remarkable. A Member of Parliament could sue for defamation in respect of criticism of his statements or conduct in the Parliament. The defendant would be precluded, however, from alleging and proving that what was said by way of criticism was true. This would amount to a gross distortion of the law of defamation in its application to such a situation. Defamation in law is by definition an untrue imputation against the reputation of another. . . If the defendant were precluded from proving the truth of what is alleged, the Member of Parliament would be enabled to recover damages, if no other defence applied, for an imputation which was perfectly true. Moreover the defence of fair comment would often be unavailable, as in the present case, because it would not be permissible to prove the factual foundation for the expression of opinion. The defence of qualified privilege might be seriously inhibited because the defendant would be prevented from answering an allegation of express malice by proving the facts as known to him. If this is the true legal position, it is difficult to envisage how a court could apply the law of defamation in a rational way to an action by a Member of Parliament in respect of an imputation relating to his statements or conduct in the House, or could try such an action fairly or adjudicate upon it justly.
If on the other hand such an action is not justiciable, other difficulties and injustices arise.
. . A Member of Parliament would be deprived of the ordinary right of a citizen to obtain damages for defamation in such circumstances notwithstanding , the privilege being that of the Parliament not of the member, that he might be quite willing to have all the ordinary defences put forward and adjudicated upon by the court.’
The Court held limited parliamentary privilege does to exclude challenges to the truth or bona fides of statements made in Parliament where the maker of the statements himself initiates the proceedings. Such a limitation on normal parliamentary privilege would not inhibit the member from exercising his freedom of speech ‘because he would be aware that his actions and motives could not be examined in court unless he instituted the proceedings which rendered such examination necessary’.

Judges:

King CJ

Citations:

(1990) 53 SASR 416, [1990] Aust Torts Reports 81-026

Jurisdiction:

Australia

Cited by:

Not followed – Prebble v Television New Zealand Ltd PC 27-Jun-1994
(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional, Defamation

Updated: 18 May 2022; Ref: scu.409975

State Rail Authority of New South Wales v Wiegold: 1991

(New South Wales) The plaintiff was seriously injured in an industrial accident caused by the defendant’s negligence. At first he received payments of worker’s compensation but when these ceased he took to supplementing his income by growing and selling marijuana. This was a criminal offence for which he was convicted and served some eight months imprisonment. He also lost his employment. He claimed compensation for loss of earnings while in prison and afterwards on the ground that it was a consequence of the impecuniosity caused by the accident.
Held: (majority) This damage was irrecoverable. Samuels JA said: ‘If the plaintiff has been convicted and sentenced for a crime, it means that the criminal law has taken him to be responsible for his actions and has imposed an appropriate penalty. He or she should therefore bear the consequences of the punishment, both direct and indirect. If the law of negligence were to say, in effect, that the offender was not responsible for his actions and should be compensated by the tortfeasor, it would set the determination of the criminal court at nought. It would generate the sort of clash between civil and criminal law that is apt to bring the law into disrepute.’

Judges:

Samuels JA

Citations:

(1991) 25 NSWLR 500

Jurisdiction:

Australia

Cited by:

Cited – Gray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered psychiatric injury in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had later gone on to kill another person, and he had been detained under section 41. . .
Cited – Les Laboratoires Servier and Another v Apotex Inc and Others SC 29-Oct-2014
Ex turpi causa explained
The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 18 May 2022; Ref: scu.347283

Caltex Oil (Australia) Pty Ltd v Dredge “Willemstad”: 9 Dec 1976

Austlii (High Court of Australia) Negligence – Duty of care – Foreseeability of harm – Economic loss not consequential upon damage to person or property – Damage to property of one person – Economic loss suffered by person as a result – Pipeline carrying oil to plaintiff’s depot – Damaged by defendant’s negligence – Supply interrupted – Pipeline and depot owned by different persons – Expense incurred by plaintiff in arranging alternative means of delivery – Whether recoverable – Remoteness of loss or damage.
Shipping and Navigation – Action in rem – Action against ship – Negligence – Master not sued as defendant – Appearance entered by master – No proprietary interest in ship – Whether master liable to judgment.
A pipeline was damaged and the owner of the terminal (who was not the owner of the pipeline) incurred expense in transporting refined oil to the terminal while the pipeline was out of use.
Held: The plaintiff was entitled to recover that expense from the dredger which had damaged the pipeline. Jacobs J said that the duty of care owed to the owner of the pipeline was also owed to ‘a person whose property was in such physical propinquity to the place where the acts of omissions of the dredge . . had their physical effect that a physical effect on the property of that person was foreseeable as the result of such acts or omissions’.

Judges:

Gibbs, Stephen, Mason, Jacobs and Murphy JJ.

Citations:

[1976] HCA 65, (1976) 136 CLR 529

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Approved – Candlewood Navigation Corporation Limited v Mitsui OSK Lines Limited and Matsuoka Steamship Co Limited PC 1-Jul-1985
(New South Wales) Two ships had collided, after, without negligence, an anchor on one ship failed. The Supreme Court had found the crew negligent after failing to react appropriately to the loss of the anchor. The company now appealed against the . .
Cited – D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Damages, Negligence, Transport

Updated: 18 May 2022; Ref: scu.331084

Schaefer v Schuman: PC 1972

(New South Wales – Australia) A promise to leave the property had been performed, and the issue was as to the relevance, if any, and the effect of an earier promise when the value of the devise was sought to be reduced by an order by way of financial provision under the New South Wales Family Provision on Inheritance legislation. The rights of the devisee were properly founded in contract. Held (majority, Lord Simon of Glaisdale dissenting on this as on the major point in the case). The case was indeed properly founded in contract, and, that being so, it was immune from the effect of an order under the family provision legislation.

Judges:

Lord Simon of Glaisdale

Citations:

[1972] AC 572

Jurisdiction:

Australia

Cited by:

Cited – Thorner v Major and others CA 2-Jul-2008
The deceased had written a will, revoked it but then not made another. The claimant had worked for the deceased understanding that property would be left to him, and now claimed that the estate property was held under a trust for him.
Held: . .
Lists of cited by and citing cases may be incomplete.

Estoppel, Wills and Probate, Contract, Commonwealth

Updated: 18 May 2022; Ref: scu.324695

Mussumat Thukrain Sookraj Koowar v Government, Baboo Ajeet Sing, And Others: PC 3 Jul 1871

In Oude, before its annexation to the British rule, a Rajah was a TaIookdar of a large Talook. A younger branch of his family had a separate Mehal in the possession of A., wholly distinct from and independent of the Talook the Rajah possessed as representing the elder branch of the family. The Oude Government, for fiscal purposes, included A’s Mehal with the Rajah’s Talook so that the Rajah as the elder branch of the family represented A.’s Mehal at the Court at Lucknow, notwithstanding that A. remained in undisturbed possession as absolute Owner, paying through the Rajah for his Mehal a proportion of the jumma fixed on the Talook. This relation between the Rajah and A. subsisted up to the time of the annexation of Oude by the British Government. While the Government was making a settlement with the Landowners, and A. was about to apply for a distinct settlement of his Mehal, he, and after him his Widow was, induced by the Rajah not to do so, the Rajah in Letters fully recognizing As absolute right to the Mehal. After the suppression of the rebellion in Oude, and the Government had recognized the Talookdary tenure with its rights, a provisional settlement of the Talook including A.’s Mehal, was made with the Rajah ; but before a Sunnud was granted to him, Government confiscated half his estate for concealment of Arms. The Rajah suppressed the fact of the trust relation of the Mehal of A., and contrived that it should be included in the half part of the estate the Government had confiscated ; which Mehal the Government as a reward granted to Oude loyalists. A.’s Widow brought a suit against the Government and the Grantees for the restoration of the Mehal and a settlement, The Financial Commissioner held that as the Rajah was the registered Owner of the Mehal of A., included in his Talook, it had been properly forfeited. Such finding reversed on appeal, on the ground that A. was the acknowledged cestui que trust of the Rajah, and that A.’s Widow, as equitable Owner was not affected as between her and the Government by the act of confiscation of half the Rajah’s Talook.

Citations:

[1871] EngR 27, (1871) 14 Moo Ind App 112, (1871) 20 ER 728

Links:

Commonlii

Trusts, Commonwealth

Updated: 18 May 2022; Ref: scu.280208

Dirk Gysbert Van Breda v Johan Conrad Silberbauer: 11 Dec 1869

Action by the Owner of a Mill against the Owner of lands situate above the Mill in which, or over which, part of the water that supplied the Mill arose and flowed, for diversion and subtraction of such water. The Plaintiff claimed under grants and certain Regulations and Ordinances made by the Governor and Council of the Colony of the Cape of Good Hope, as well as upon a right of servitude by prescription. Judgment was given, with damages, for the Plaintiff. On appeal such judgment affirmed, the Judicial Committee being of opinion that, whether the power to legislate reapecting the water-rights of the lands in which the water arose, or over which it flowcd, had or had not been sufficiently reserved in the original grants by the Governer and Council to the then Owners, yet that it was abundantly shown, that the Legislature of the Colony had exercised authority, by Regulations and Ordinances, over the water in question, by which the derivative rights of the Plaintiff in the Court below had been regulated znd decIared

Citations:

[1869] EngR 58, (1869) 6 Moo PC NS 319, (1869) 16 ER 746

Links:

Commonlii

Jurisdiction:

England and Wales

Commonwealth

Updated: 18 May 2022; Ref: scu.280627

Aladesuru v The Queen: PC 1956

Directors of the Standard Bank in Nigeria appealed from a conviction for false accounting. They had appealed to the West African Court of Appeal who said referring to the difference between civil and criminal appeals: ‘This difference has been pointed out by this court times without number and so we have no sympathy for any appellant who still puts up a wrong ground of appeal. Even if we had granted an amendment of the ground of appeal we would not have been disposed to hear arguments on facts . . The first ground of appeal that judgment is against the weight of evidence is no ground of appeal in criminal matters but is an appropriate ground in civil matters where verdicts are to be arrived at by preponderance of evidence. In criminal matters the proper ground of appeal is that the verdict is unreasonable or cannot be supported having regard to the evidence . . Even if we had granted an amendment of the ground of appeal, we would not have been disposed to hear arguments on facts.’
Held: The appeal failed.
Lord Tucker discussed the possibility of the Court of Appeal of Nigeria setting aside a decision on the facts. He said: ‘It will be observed that the language of the West African Court of Appeal Ordinance follows that of the English Criminal Appeal Act, 1907, under which it has long been established that the appeal is not by way of rehearing as in civil cases on appeals from a judge sitting alone, but is a limited appeal which precludes the court from reviewing the evidence and making its own evaluation thereof. The position is correctly stated at page 346 of the 33rd edition of Archbold’s Criminal Pleading, Evidence and Practice as follows:
‘In order to succeed an appellant must show, in the words of the statute, that the verdict is unreasonable or cannot be supported having regard to the evidence. It is not a sufficient ground of appeal to allege that the verdict is against the weight of evidence. It is also to be observed that an appeal on this ground does not lie as of right but only by leave of the court.”

Judges:

Lord Tucker

Citations:

[1956] AC 49, 39 Cr App R 184

Jurisdiction:

Commonwealth

Cited by:

Cited – Attorney General for Jersey v O’Brien (Jersey) PC 14-Feb-2006
(Court of Appeal of Jersey) The appellant had been convicted of laundering the proceeds of her husband’s drug trafficking. The Attorney-General now appealed against her successful appeal on sentence and confiscation order. Both she and her husband . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 18 May 2022; Ref: scu.279057

Trustees Executors and Agency Co Ltd v Federal Commissioner of Taxation: 1933

The court was asked whether Australian estate duty could be levied on movables situated abroad.
Held: When testing the validity of a law passed by the government of a dominion, the question was ‘whether the law in question can be truly described as being for the peace, order and good government of the Dominion concerned.’ This law was extra territorial.

Judges:

Evatt J

Citations:

(1933) 49 CLR 220

Cited by:

Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 18 May 2022; Ref: scu.277171

Chin Keow v Government of Malaysia: PC 1967

Citations:

[1967] 1 WLR 813

Citing:

Dicta Approved – Bolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .

Cited by:

Mentioned – Whitehouse v Jordan HL 17-Dec-1980
The plaintiff sued for brain damage suffered at birth by use of forceps at the alleged professional negligence of his doctor. The Court of Appeal had reversed the judge’s finding in his favour.
Held: In this case most of the evidence at issue . .
Lists of cited by and citing cases may be incomplete.

Negligence, Commonwealth

Updated: 18 May 2022; Ref: scu.269667

Sze Hai Tong Bank Ltd v Rambler Cycle Co Ltd: PC 1959

Lord Denning noted that the exclusion clause at issue ‘on the face of it, could not be more comprehensive’ but declined to interpret it as absolving the shipping company from liability. He said: ‘If such an extreme width were given to the exemption clause, it would run counter to the main object and intent of the contract. For the contract, as it seems to their Lordships has, as one of its main objects, the proper delivery of the goods by the shipping company, ‘unto order or his or their assigns’, against the production of the bill of lading. It would defeat this object entirely if the shipping company was at liberty, at its own will and pleasure, to deliver the goods to somebody else, to somebody not entitled at all, without being liable for the consequences. The clause must therefore be limited and modified to the extent necessary to enable effect to be given to the main object and intent of the contract . . ‘

Judges:

Lord Denning

Citations:

[1959] AC 576, [1959] 3 All ER 182, [1959] 2 Lloyds Rep 114

Cited by:

Mentioned – George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd CA 29-Sep-1982
The buyer bought 30lbs of cabbage seed, but the seed was not correct, and the crop was worthless. The seed cost pounds 192, but the farmer lost pounds 61,000. The seed supplier appealed the award of the larger amount and interest, saying that their . .
Lists of cited by and citing cases may be incomplete.

Contract, Commonwealth

Updated: 17 May 2022; Ref: scu.266866

Regina v Flaherty and Others: 1968

Asprey J considered the mistakae as to the woman’s consent as a defence to a charge of rape: ‘a long line of authority establishes, at any rate so far as I am concerned, that the defence of mistake requires that the accused holds both an honest and reasonable belief in the existence of a state of facts which, if true, would make the act charged innocent.’

Judges:

Asprey J

Citations:

(1968) 89 WN (Pt 1) (NSW) 141

Cited by:

Cited – Regina v Morgan HL 30-Apr-1975
The defendants appealed against their convictions for rape, denying mens rea and asserting a belief (even if mistaken) that the victim had consented.
Held: For a defence of mistake to succeed, the mistake must have been honestly made and need . .
Lists of cited by and citing cases may be incomplete.

Crime, Commonwealth

Updated: 17 May 2022; Ref: scu.258682

Hodak v Newman and Hodak: 1993

(Family Court of Australia) Lindenburgh J said: ‘I am of the opinion that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the Court commences its decision-making process . . Each case should be determined upon an examination of its own merits and of the individuals there involved.’

Judges:

Lindenmayer J

Citations:

(1993) 17 Fam LR 1, [1993] FamCA 83, (1993) FLC 92-421

Links:

Austlii

Cited by:

Approved – Rice v Miller 10-Sep-1993
(Family Court of Australia) Whilst there is a legislative presumption regarding equal shared parental responsibility between parents there is no presumption in favour of parents (jointly or severally) as regards the placement of children nor a . .
Approved – Re Evelyn CA 1998
. .
Cited – In Re G (A Minor) (Interim Care Order: Residential Assessment); G (Children), In Re (Residence: Same Sex Partner) HL 26-Jul-2006
The parties had been a lesbian couple each with children. Each now was in a new relationship. One registered the two daughters of the other at a school now local to her but without first consulting the birth mother, who then applied for residence . .
Lists of cited by and citing cases may be incomplete.

Children, Commonwealth

Updated: 17 May 2022; Ref: scu.244487

In re Brisbane City Council and White: 1981

The use of the the phrase ‘without prejudice’ was ‘futile’ in the context of an originating process.

Citations:

(1981) 50 LGRA 225

Jurisdiction:

Australia

Cited by:

Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 17 May 2022; Ref: scu.243288

Pemble v The Queen: 1971

(High Court of Australia) Barwick CJ: ‘Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part . .
Here, counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused.’

Judges:

Barwick CJ

Citations:

(1971) 124 CLR 107

Jurisdiction:

Australia

Cited by:

Cited – Regina v Coutts HL 19-Jul-2006
The defendant was convicted of murder. Evidence during the trial suggested a possibility of manslaughter, but neither the defence nor prosecution proposed the alternate verdict. The defendant now appealed saying that the judge had an independent . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 17 May 2022; Ref: scu.243349

Director of Public Prosecutions v Daley: PC 1980

(Jamaica) The defendants had an argument with the deceased, who ran from them, tripped on a concrete ramp and fell. He died a few days later. The accused had thrown stones at him while he was running from them. The prosecution alleged that he died as result of being hit by the stones and charged the accuseds with murder. It was suggested that the deceased died as a result of his fall onto the ramp.
Held: There was no sufficient evidence that his death was the result of injuries received by being hit by stones. However, there were only two ways in which the deceased could have received the injuries which caused his death, that is, either by being hit by stones thrown at him by the accuseds or by his fall over the concrete ramp. Since the court was not satisfied that the deceased’s death was caused by being hit by stones, the only probable and reasonable conclusion was that he died as a result of the injuries he received when he fell onto the concrete ramp as he was running away from the accuseds. There was sufficient evidence that this was a case of ‘manslaughter by flight’ and accordingly the accuseds’ conviction of manslaughter were upheld.

Judges:

Lord Keith of Kinkel

Citations:

[1980] AC 237

Jurisdiction:

England and Wales

Citing:

Approved – Kwaku Mensah v The King PC 1946
(West Africa) The judge had failed to give a direction on provocation in a murder case where the issue properly arose.
Lord Goddard said: ‘But if on the whole of the evidence there arises a question whether or not the offence might be . .

Cited by:

Cited – Regina v Coutts HL 19-Jul-2006
The defendant was convicted of murder. Evidence during the trial suggested a possibility of manslaughter, but neither the defence nor prosecution proposed the alternate verdict. The defendant now appealed saying that the judge had an independent . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 17 May 2022; Ref: scu.243355

Regina v Jackson: 1993

(Supreme Court of Canada) McLachlin J: ‘It is true that the trial judge charged the jury clearly and correctly on the mental state required to find Davy guilty of murder. It is also true that the jury found Davy guilty of murder. Nevertheless, I agree with the Court of Appeal that one cannot be satisfied the verdict is just, given the failure of the trial judge to set out the basis for convicting Davy of manslaughter under ss. 21(1) and 21(2) [of the Criminal Code] and the absence of any instruction that a party may be guilty of manslaughter even though the perpetrator is guilty of murder.’

Judges:

McLachlin J

Citations:

[1993] 4 SCR 573

Jurisdiction:

Canada

Cited by:

Cited – Regina v Coutts HL 19-Jul-2006
The defendant was convicted of murder. Evidence during the trial suggested a possibility of manslaughter, but neither the defence nor prosecution proposed the alternate verdict. The defendant now appealed saying that the judge had an independent . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 17 May 2022; Ref: scu.243353

Gillard v The Queen: 2003

(High Court of Australia) Hayne J explained the effect of the majority decision in Gilbert: ‘In Gilbert, a majority of the Court concluded that if manslaughter should have been, but was not, left to a jury as an available verdict on the appellant’s trial for murder, the verdict of guilty of murder did not preclude the possibility that the jury may have failed to apply the instructions they were given. No party in this appeal sought to reopen the decision in Gilbert. It follows from what was decided in Gilbert that, in deciding here whether no substantial miscarriage of justice has actually occurred and thus, whether the proviso to s353(1) of the Criminal Law Consolidation Act applies, account may not be taken of the findings implicit in the jury’s verdicts at the appellant’s trial. It must be assumed that the jury may have chosen to disregard the instructions they were given, and convict the appellant of murder and attempted murder, rather than return verdicts of not guilty. Once it is accepted that the jury may have disregarded the instructions they were given, it is not permissible to reason, as the respondent submitted, from the fact that the jury returned verdicts of guilty on all three counts to the conclusion that the jury must therefore be taken to have applied the trial judge’s instructions. Once it is said, as it was in Gilbert, that the jury may have disregarded the instructions they were given, it cannot be said that some levels of disobedience may be less probable than others.’
Kirby J: ‘Having secured, but lost, the advantages of the dichotomy which he urged at his trial, the appellant now wants another trial with a further chance to contest the indictment under new rules. It is easy to feel a sense of distaste about allowing such a course to succeed.’

Judges:

Kirby J

Citations:

(2003) 219 CLR 1

Jurisdiction:

Australia

Citing:

Explained – Gilbert v The Queen 2000
(High Court of Australia) Gilbert was tried for murder. The judge directed the jury that manslaughter was not an alternative verdict. The jury, correctly directed on the ingredients of murder, convicted.
Held: The court was aksed whether this . .

Cited by:

Cited – Regina v Coutts HL 19-Jul-2006
The defendant was convicted of murder. Evidence during the trial suggested a possibility of manslaughter, but neither the defence nor prosecution proposed the alternate verdict. The defendant now appealed saying that the judge had an independent . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 17 May 2022; Ref: scu.243352

Gilbert v The Queen: 2000

(High Court of Australia) Gilbert was tried for murder. The judge directed the jury that manslaughter was not an alternative verdict. The jury, correctly directed on the ingredients of murder, convicted.
Held: The court was aksed whether this was a substantial miscarriage of justice. Gleeson CJ and Gummow J recognised the difficulty of knowing whether a misdirection is advantageous to one party or the other and held that while it could, as a general rule, be assumed that juries understand and follow judicial directions, it need not be assumed that juries were unaffected by matters of possible prejudice when making their decisions. An appellate court should not assume that juries adopted a mechanistic approach to the task of fact-finding, oblivious of the consequences of their conclusion: ‘The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.’
Callinan J recognised that a jury room might not be a place of undeviating intellectual and logical rigour, and concluded: ‘The appellant was entitled to a trial at which directions according to law were given. It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of the choices offered, particularly when, as here, a particular choice was not the only or inevitable choice.’
McHugh J (dissenting) said that the verdict of a properly directed jury should be respected: ‘The argument for the appellant is a claim that this Court should proceed on one of two bases, each of which necessarily involves an assumption that, if manslaughter had been left as an issue, the jury might have disregarded their sworn duty to give a verdict in accordance with the evidence. The first assumption is that, if manslaughter had been left, the jury might have convicted of manslaughter even though they knew, because of the trial judge’s directions, that the appellant was guilty of murder. The second assumption is that the jurors were not convinced beyond reasonable doubt that the appellant knew that his brother intended to kill or to inflict grievous bodily harm on Linsley, that they knew therefore that he was not guilty of murder, but that they nevertheless convicted him of murder rather than acquit him and see him go free. In my respectful opinion, as a matter of legal policy, no court of justice can entertain either assumption.
The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge’s directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one – accused, trial judge or member of the public – could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.’
Hayne J (dissenting): ‘Nor does the conclusion which I have reached depend upon some judicial assessment of what was acknowledged to be a strong case against the appellant. It is a conclusion which depends entirely upon giving due weight to the verdict of the jury in light of what they were told by the judge and assuming (there being no basis for suggesting otherwise) that they did their duty conscientiously.
The trial to which the appellant was entitled was a trial according to law. There were two questions for the Court of Appeal. First, was there a trial according to law (and all agreed that there was not). Second, and no less important, was the question whether a substantial miscarriage of justice had actually occurred. That second question is not concluded by pointing to the fact that there was a misdirection and that there was, therefore, not a trial according to law. The existence of the proviso denies that the fact of misdirection will, in every case, require an order for retrial. Nor can this second question be answered by making an assumption that the jury might have chosen to disregard what they were told by the judge. Such an assumption is unwarranted. It is an assumption which suggests that emotion (whether induced by the eloquence of counsel or otherwise) might have supplanted the collective common sense and careful reasoning that jurors bring to bear upon a difficult task. It is an assumption which, if effect is given to it, turns the judge’s charge to a jury into a ritual incantation which appellate courts must examine for formal correctness but which appellate courts are free (if not bound) to assume a jury may have disregarded.’

Judges:

Callinan J, Gleeson CJ and Gummow J, McHugh and Hayne JJ

Citations:

(2000) 201 CLR 414

Jurisdiction:

Australia

Citing:

Cited – Mraz v The Queen 1995
(High Court of Australia) Fullagar J: ‘A jury which would hesitate to convict of murder may be only too glad to take a middle course which is offered to them.’ . .

Cited by:

Explained – Gillard v The Queen 2003
(High Court of Australia) Hayne J explained the effect of the majority decision in Gilbert: ‘In Gilbert, a majority of the Court concluded that if manslaughter should have been, but was not, left to a jury as an available verdict on the appellant’s . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 17 May 2022; Ref: scu.243348

Tolofson v Jensen: 1994

Canlii (Supreme Court of Canada) Conflict of laws – Torts – Traffic accident – Injured parties not resident in province where accident occurred – Actions instituted in home provinces of injured parties – Whether lex fori or lex loci delicti should apply – If substantive law that of jurisdiction where accident occurred, whether limitation period substantive law and therefore applicable in forum or procedural law and therefore not binding on court hearing case – Automobile Insurance Act, L.Q. 1977, c. 68, ss. 3, 4 – Code civil du Bas Canada, art. 6 – Limitation of Actions Act, R.S.S. 1978, c. L-15 – Vehicles Act, R.S.S. 1978, c. V-3, s. 180(1).
These appeals deal with the ‘choice of law rule’: which law should govern in cases involving the interests of more than one jurisdiction specifically as it concerns automobile accidents involving residents of different provinces. The first case also raises the subsidiary issue of whether, assuming the applicable substantive law is that of the place where the tort arises, the limitation period established under that law is inapplicable as being procedural law and so not binding on the court hearing the case,
La Forest J said: ‘the purpose of substantive / procedural classification is to determine which rules will make the machinery of the forum court run smoothly as distinguished from those determinative of the rights of both parties.’

Judges:

La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ

Citations:

(1994) 120 DLR (4th) 289, [1994] 3 SCR 1022, [1995] 1 WWR 609, 100 BCLR (2d) 1, 26 CCLI (2d) 1, 175 NR 161, 22 CCLT (2d) 173, 51 BCAC 241, [1994] CarswellBC 1, JE 95-61, [1994] SCJ No 110 (QL), 175 NSR (2d) 161, [1994] ACS no 110, 32 CPC (3d) 141, 52 ACWS (3d) 40, 77 OAC 81, 7 MVR (3d) 202

Links:

Canlii

Jurisdiction:

Canada

Cited by:

Cited – Harding v Wealands HL 5-Jul-2006
Claim in UK for Accident in Australia
The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
Held: . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 17 May 2022; Ref: scu.242988

Thompson Newspapers Ltd v Director of Investigation and Research: 1990

(Supreme Court of Canada) The court considered a claim to exercise the privilege against self-incrimination.
Held: Whereas a compelled statement is evidence that would not have existed independently of the exercise of the powers of compulsion, evidence which exists independently of the compelled statements could have been found by other means and its quality does not depend on its past connection with the compelled statement. Accordingly evidence of the latter type is in no sense ‘testimonial’ and PSI ought not to attach to it.
Justice La Forest: ‘there is an important difference between the type of prejudice that will be suffered in the two cases. It is only when the testimony itself has to be relied on that the accused can be said to have been forced to actually create self-incriminatory evidence in his or her own trial. The compelled testimony is evidence that simply would not have existed independently of the exercise of the power to compel it; it is in this sense evidence which could have been obtained only from the accused.
By contrast, evidence derived from compelled testimony is, by definition, evidence that existed independently of the compelled testimony. This follows logically from the fact that it was evidence which was found, identified or understood as a result of the ‘clues’ provided by the compelled testimony. Although such evidence may have gone undetected or unappreciated in the absence of the compelled clues, going undetected or unappreciated is not the same thing as non-existence. The mere fact that the derivative evidence existed independently of the compelled testimony means that it could have been found by some other means, however low the probability of such discovery may have been . . . the difference between evidence which the accused has been forced to create (the compelled testimony), and the independently existing evidence he or she has been forced to assist in locating, identifying or explaining (evidence derived from compelled testimony), will be readily discernible. I believe its significance will be equally apparent.
The fact that derivative evidence exists independently of the compelled testimony means, as I have explained, that it could also have been discovered independently of any reliance on the compelled testimony. It also means that its quality as evidence does not depend on its past connection with the compelled testimony. Its relevance to the issues with which the subsequent trial is concerned, as well as the weight it is accorded by the trier of fact, are matters that can be determined independently of any consideration of its connection with the testimony of the accused.. . . What prejudice can an accused be said to suffer from being forced to confront evidence ‘derived’ from his or her compelled testimony, if that accused would have had to confront it even if the power to compel testimony had not been used against him or her? I do not think it can be said that the use of such evidence would be equivalent to forcing the accused to speak against himself or herself; once the derivative evidence is found or identified, its relevance and probative weight speak for themselves. The fact that such evidence was found through the evidence of the accused in no way strengthens the bearing that it, taken by itself, can have upon the questions before the trier of fact.’ and
‘In my view, derivative evidence that could not have been found or appreciated except as a result of the compelled testimony under the Act should in the exercise of the trial judge’s discretion be excluded since its admission would violate the principles of fundamental justice. As will be evident from what I have stated earlier, I do not think such exclusion should take place if the evidence would otherwise have been found and its relevance understood. There is nothing unfair in admitting relevant evidence of this kind …”
. . . In our judgment, the answer to the question posed by the Attorney General is ‘No’. We say that for a number of reasons. First, there is no doubt, and indeed it is not disputed before this court, that the privilege against self-incrimination is not absolute and in English law Parliament has, for a variety of reasons, in a whole range of different statutory contexts, made inroads upon that privilege.
So far as the English courts are concerned, there is, as it seems to us, no doubt that the documents to which we have referred would be regarded as admissible as a matter of law, subject of course to the trial judge’s discretion to exclude under section 78 of the Police and Criminal Evidence Act 1984.
The question which next arises is whether, in deference to the Strasbourg jurisprudence, this court should give a different answer to that which the English courts and the will of Parliament otherwise suggest. It seems to us that the distinction made in paragraphs 68 and 69 of the European Court of Human Rights’s judgment in Saunders’s case 23 EHRR 313, between statements made and other material independent of the making of a statement, is not only one to which we should have regard, but is one which, as it seems to us, is jurisprudentially sound. We say this for the reasons advanced in the judgment of La Forest J in the Thomson Newspapers case 67 DLR (4th) 161 which, via reference to the South African constitutional court’s decision in Ferreira v Levin 1996 (1) SA 984, was before the European Court in Saunders’s case. In our judgment, there is nothing in any of the speeches in Brown v Stott [2001] 2 WLR 817 which contradicts this conclusion. The Privy Council were seeking to limit the scope of the privilege against self-incriminating statements and pre-existing documents revealed by compelled statements were outwith their consideration.’

Judges:

Justice La Forest

Citations:

(1990) 54 CCC 417

Cited by:

Cited – C Plc and W v P and Secretary of State for the Home Office and the Attorney General ChD 26-May-2006
The claimant sought damages from the first defendant for breach of copyright. An ex parte search order had been executed, with the defendant asserting his privilege against self-incrimination. As computer disks were examined, potentially unlawful . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Litigation Practice

Updated: 17 May 2022; Ref: scu.242453

Farrington v Thomson and Bridgland: 1959

(Supreme Court of Victoria) Smith J said: ‘Proof of damage is, of course, necessary in addition. In my view, therefore, the rule should be taken to go this far at least, that if a public officer does an act which, to his knowledge, amounts to an abuse of his office, and he thereby causes damage to another person, then an action in tort for misfeasance in a public office will lie against him at the suit of that person’.

Judges:

Smith J

Citations:

[1959] VR 286

Cited by:

Approved – Tampion v Anderson 1973
(Full Court of Victoria) . .
Cited – Watkins v Home Office and others HL 29-Mar-2006
The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Torts – Other

Updated: 17 May 2022; Ref: scu.239999

Roncarelli v Duplessis: 1959

(Canada) The court discussed what was ‘targeted malice’ in the context of misfeasance.

Citations:

[1959] SCR 121

Cited by:

Cited – Odhavji Estate v Woodhouse 2003
(Supreme Court of Canada) The court reviewed the ingredients of misfeasance in public office.
Held: Iacobucci J said: ‘To summarize, I am of the opinion that the tort of misfeasance in a public office is an intentional tort whose . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Torts – Other

Updated: 17 May 2022; Ref: scu.240008

Anderson v Blashki: 1993

(Supreme Court of Victoria) The civil standard of proof applies to all findings of coroners although the graver the allegation, the more cogent must be the evidence.

Citations:

[1993] 2 VR 89

Jurisdiction:

Australia

Cited by:

Cited – Regina v Southwark Coroner ex parte Fields Admn 30-Jan-1998
The deceased died after being hit by a policemen with his baton when being arrested. The verdict of misadventure was now challenged. The police officer said he had hit out in fear of imminent attack. It was said that the Coroner had permitted those . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Coroners, Evidence

Updated: 17 May 2022; Ref: scu.237534

Gradwell (PTY) v Rostra Printers Ltd: 1959

(South Africa) An offer was made of andpound;42,000 for the shares and the loan account that was then outstanding to the parent company less amounts owed to lenders on first mortgages. An analysis showed that andpound;40,258 was owed on the loan account and taking into account the higher securities the amount actually paid was less than that amount.
Held: The repayment of the loan account would help the purchaser to effect the apparent purchase but the repayment of the debt was held not to infringe the provisions of the section.

Judges:

Schriener J

Citations:

[1959] (4) SA 419

Statutes:

Companies Act 1926 86(2)

Cited by:

Cited – Anglo Petroleum Ltd v TFB (Mortgages) Ltd ChD 24-Feb-2006
The company sought to say that loans of 15 million pounds were void under s151 of the 1985 Act. It was said that the loans infringed the provisions of s151 being unlawful financial assistance.
Held: The loans were valid: ‘if it is lawful for a . .
Cited – Armour Hick Northern Ltd v Whitehouse; Armour Trust Ltd ChD 1980
A vendor company was assisted by financial assistance given by a subsidiary.
Held: The use of money by a company to repay its existing indebtedness would not normally fall within the concept of the company giving financial assistance to . .
Lists of cited by and citing cases may be incomplete.

Company, Commonwealth

Updated: 17 May 2022; Ref: scu.238728

The Queen in Right of Alberta v Canadian Transport Commission: 1977

The Crown in right of Alberta may be equated with the Government of Alberta.

Citations:

(1977) 75 DLR (3d) 257

Cited by:

Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Limited HL 13-Oct-2005
The applicant had previously received licences to fish for Patagonian Toothfish off South Georgia. The defendant had instructed the issuer of the licence in such a way that it was not renewed. It now had to establish that its article 1 rights had . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 17 May 2022; Ref: scu.231158

Attorney-General of Hong Kong v Nai-Keung: PC 1987

Textile export quotas (a permission to export textiles) which were surplus to the exporter’s requirements, which could be bought and sold under the apprpriate Hong Kong legislation, may be ‘property’ for the purposes of the law of theft.

Citations:

[1987] 1 WLR 1339

Cited by:

Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Wheatley and Another v The Commissioner of Police of the British Virgin Islands PC 4-May-2006
(The British Virgin Islands) The defendants appealed against convictions for theft and misconduct. Being civil servants they had entered in to contract with companies in which they had interests. . .
Cited – Regina v Preddy; Regina v Slade; Regina v Dhillon (Conjoined Appeals) HL 10-Jul-1996
The appellants were said to have made false mortgage applications. They appealed convictions for dishonestly obtaining property by deception.
Held: A chose in action created by an electronic bank transfer was not property which was capable of . .
Cited – Assets Recovery Agency v Olupitan and Another QBD 8-Feb-2007
The claimant was responsible for recovering money under the 2002 Act, and alleged that the first defendant had been engaged in a mortgage fraud.
Held: To succeed in such a claim for recovery the Claimant must prove, ‘on a balance of . .
Applied – Regina v Williams (Jacqueline) and Crick CACD 30-Jul-1993
The defendant was accused of having obtained by deception a mortgage advance, the amount having been paid by electronic transfer.
Held: The sum of money represented by a figure in a bank account was not fully property for the purposes of the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Crime

Updated: 17 May 2022; Ref: scu.230286

Lynn v Nathanson: 1931

(Nova Scotia Court of Appeal) A government theatre tax had to be paid by patrons who bought two tickets, one for the theatre and one for the tax. The tax was held to be outside the phrase in the lease which recovered rent on ‘gross receipts obtained in the theatre ‘ which phrase was to be construed in context.

Citations:

[1931] 2 DLR 457

Jurisdiction:

England and Wales

Cited by:

Cited – Debenhams Retail Plc and Another v Sun Alliance and London Assurance Company Ltd CA 20-Jul-2005
The landlord appealed against a decision that VAT was not to be included when calculating a rent based upon the turnover in the premises, when it had been expressed to include purchase taxes.
Held: The appeal succeeded: ‘it would be wrong to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Taxes Management, Landlord and Tenant

Updated: 17 May 2022; Ref: scu.228928

Fuller v State: 1995

(Court of Appeal of Trinidad and Tobago) The court gave guidance on the need to give proper directions on identification evidence to accord with Turnbull: ‘We are concerned about the repeated failures of trial judges to instruct juries properly on the Turnbull principles when they deal with the issue of identification. Great care should be taken in identifying to the jury all the relevant criteria. Each factor or question should be separately identified and when a factor is identified all the evidence in relation thereto should be drawn to the jury’s attention to enable them not only to understand the evidence properly but also to make a true and proper determination of the issues in question. This must be done before the trial judge goes on to deal with another factor. It is not sufficient merely to read to them the factors set out in Turnbull’s case and at a later time to read to them the evidence of the witnesses. That is not a proper summing-up. The jury have heard all the evidence in the case when the witnesses testified. It will not assist them if the evidence is merely repeated to them. What they require from the judge in the final round is his assistance in identifying, applying and assessing the evidence in relation to each direction of law which the trial judge is required to give to them and also in relation to the issues that arise for their determination.’

Judges:

Ibrahim JA

Citations:

(1995) 52 WIR 424

Jurisdiction:

Commonwealth

Citing:

Cited – Regina v Turnbull and Another etc CCA 9-Jun-1976
The defendants appealed against their convictions which had been based upon evidence of visual identification.
Held: Identification evidence can be unreliable, and courts must take steps to reduce injustice. The judge should warn the jury of . .

Cited by:

Cited – Langford and Another v The State PC 11-May-2005
(Dominica) The appellants appealed convictions for together having kicked a man to death. They said the convictions were founded on unreliable identification evidence.
Held: The judge had made several misdirections, as to the reliability of . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 17 May 2022; Ref: scu.228787

Chitambala v The Queen: 1961

Clayden ACJ said: ‘In any criminal trial the accused has the right to elect not to give evidence at the conclusion of the Crown case. To regard evidence given by him on the question of the admissibility as evidence in the trial itself would mean either that he must be deprived of that right if he wishes properly to contest the admissibility of a statement, or that, to preserve that right, he must abandon another right in a fair trial, the right to prevent inadmissible statements being led in evidence against him . . To me it seems clear that deprivation of rights in this manner, and the changing of a trial of admissibility into a full investigation of the merits, cannot be part of a fair criminal trial.’

Judges:

Clayden AFCJ

Citations:

[1961] R and N 166

Jurisdiction:

Commonwealth

Cited by:

Approved – Wong Kam-Ming v The Queen PC 20-Dec-1978
The voir dire system allows a defendant to give his evidence on the limited issues surrounding the circumstances under which his statement was made as to the admissibility of the confession, without infringing his right to elect not to give evidence . .
Cited – Regina v Mushtaq HL 21-Apr-2005
The defendant was convicted of fraud charges. He sought to have excluded statements made in interview on the basis that they had been obtained by oppressive behaviour by the police. His wife was very seriously ill in hospital and he had made the . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 17 May 2022; Ref: scu.224424

Moevao v Department of Labour: 1980

(New Zealand) Richardson J said: ‘The justification for staying a prosecution is that the court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor in relation to the prosecution that the court processes are being employed for ulterior purposes or in such a way (for example, through multiple or successive proceedings) as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the uncertain circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the court process by those responsible for the law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the court.’

Judges:

Richardson J

Citations:

[1980] 1 NZLR 464

Cited by:

Cited – Regina v Leeds Magistrates Court ex parte Serif Systems Limited and Hamilton Admn 9-Oct-1997
The applicant sought that summonses be set aside as an abuse of process, being begun to embarrass him as he set out to become an MP. Thirty one private summonses had been issued.
Held: Of the summonses to be continued it could not be said that . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Practice

Updated: 17 May 2022; Ref: scu.225278

Kern Corporation Ltd v Walter Reid Trading Pty Ltd: 1987

(High Court of Australia) The court discussed the status of the owner of land between exchange and completion on a sale: ‘it is both inaccurate and misleading to speak of the unpaid vendor under an uncompleted contract as a trustee for the purchaser . . [T]he ordinary unpaid vendor of land is not a trustee of the land for the purchaser. Nor is it accurate to refer to such a vendor as a ‘trustee sub modo’ unless the disarming mystique of the added Latin is treated as a warrant for essential misdescription’

Judges:

Deane J

Citations:

(1987) 163 CLR 164

Jurisdiction:

England and Wales

Cited by:

Cited – Englewood Properties Limited v Patel and Another ChD 16-Feb-2005
The claimant was a property developer, which sought to sell a row of shops at auction. One lot was a Woolworths store, where the company owned both freehold and leasehold interests, with Woolworths occupying an underlease, which the claimant had . .
Cited – Scott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .
Lists of cited by and citing cases may be incomplete.

Land, Commonwealth

Updated: 16 May 2022; Ref: scu.223742

Haldane v Haldane: PC 1977

(New Zealand) The court considered how under the New Zealand legislation for ancillary rlief, the court was to deal with property inherited by one party to the marriage: ‘Initially a gift or bequest to one spouse only is likely to fall outside the Act, because the other spouse will have made no contribution to it. But as time goes on, and depending on the nature of the property in question, the other spouse may well have made a direct or indirect contribution to its retention.’

Judges:

Lord Simon of Glaisdale

Citations:

[1977] AC 673

Cited by:

Cited – White v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .
Lists of cited by and citing cases may be incomplete.

Family, Commonwealth

Updated: 16 May 2022; Ref: scu.197920

Chang v Registrar of Titles: 11 Feb 1976

(High Court of Australia) The court discussed the trusteeship arising on a contract for the sale of land.
Mason J said: ‘It has long been established that a vendor of real estate under a valid contract of sale is a trustee of the property sold for the purchaser. However, there has been controversy as to the time when the trust relationship arises and as to the character of that relationship. Lord Eldon considered that a trust arose on execution of the contract (Paine v Meller; Broome v Monck). Plumer M.R. thought that until it is known whether the agreement will be performed the vendor ‘is not even in the situation of a constructive trustee; he is only a trustee sub modo, and providing nothing happens to prevent it. It may turn out that the title is not good, or the purchaser may be unable to pay’ (Wall v Bright). Lord Hatherley said that the vendor becomes a trustee for the purchaser when the contract is completed, as by payment of the purchase money (Shaw v Foster). Jessel M.R. held that a trust sub modo arises on execution of the contract but that the constructive trust comes into existence when title is made out by the vendor or is accepted by the purchaser (Lysaght v Edwards). Sir George Jessel’s view was accepted by the Court of Appeal in Rayner v Preston.
It is accepted that the availability of the remedy of specific performance is essential to the existence of the constructive trust which arises from a contract of sale’. Jacob J: ‘Where there are rights outstanding on both sides, the description of the vendor as a trustee tends to conceal the essentially contractual relationship which, rather than the relationship of trustee and beneficiary, governs the rights and duties of the respective parties’.

Judges:

Mason J, Jacob J

Citations:

(1976) 137 CLR 177, (1976) 50 ALJR 404, (1976) 8 ALR 285, [1976] HCA 1

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Jerome v Kelly (Her Majesty’s Inspector of Taxes) HL 13-May-2004
In 1987, trustees holding land for various beneficiaries in undivided shares entered into a contract to sell it to a purchaser. In 1989 Mr and Mrs Jerome, who were absolutely entitled to interests in the land, assigned part of their beneficial . .
Cited – Scott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .
Lists of cited by and citing cases may be incomplete.

Land, Contract, Commonwealth

Updated: 16 May 2022; Ref: scu.196888

Rootes v Shelton: 1965

(High Court of Australia) Barwick CJ said: ‘By engaging in a sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime: the tribunal of fact can make its own assessment of what the accepted risks are: but this does not eliminate all duty of care of the one participant to the other. Whether or not such a duty arises, and, if it does, its extent, must necessarily depend in each case upon its own circumstances. In this connection, the rules of the sport or game may constitute one of those circumstances: but, in my opinion, they are neither definitive of the existence nor of the extent of the duty; nor does their breach or non-observance necessarily constitute a breach of any duty found to exist.’
Kitto J said: ‘in a case such as the present, it must always be a question of fact, what exoneration from a duty of care otherwise incumbent upon the defendant was implied by the act of the plaintiff in joining in the activity. Unless the activity partakes of the nature of a war or of something else in which all is notoriously fair, the conclusion to be reached must necessarily depend, according to the concepts of common law, upon the reasonableness, in relation to the special circumstances, of the conduct which caused the plaintiff’s injury. That does not necessarily mean the compliance of that conduct with the rules, conventions or customs (if there are any) by which the correctness of conduct for the purpose of the carrying on of the activity as an organised affair is judged; for the tribunal of fact may think that in the situation in which the plaintiff’s injury was caused a participant might do what the defendant did and still not be acting unreasonably, even though he infringed the ‘rules of the game’. Non-compliance with such rules, conventions or customs (where they exist) is necessarily one consideration to be attended to upon the question of reasonableness; but it is only one, and it may be of much or little or even no weight in the circumstances.’

Judges:

Barwick CJ, Kitto J

Citations:

(1968) ALR 33, (1967) 116 CLR 383

Cited by:

Approved – Condon v Basi CA 30-Apr-1985
The parties were playing football. The defendant executed a late dangerous and foul tackle on the plaintiff breaking his leg. The defendant was sent off, and the plaintiff sued.
Held: Those taking part in competitive sport still owed a duty of . .
Cited – Blake v Galloway CA 25-Jun-2004
The claimant was injured whilst playing about with other members of his band throwing sticks at each other. The defendant appealed against a denial of his defence on non fit injuria.
Held: The horseplay in which the five youths were engaged . .
Lists of cited by and citing cases may be incomplete.

Negligence, Commonwealth

Updated: 16 May 2022; Ref: scu.194827

Mears v Regina: PC 1993

The prosecution case relied upon the evidence of a woman with whom the accused cohabited. The prosecution case was that the accused had told the woman that he had killed the victim in a particular way. The defendant denied killing the victim and pathological evidence was called that suggested that the victim died in circumstances different from that described by the woman in whom the defendant confided in. After retiring, the jury returned to court and informed the judge that they had a problem relating to the evidence. The trial judge did not ascertain the problem the jury were experiencing but rather restated the evidence. The defendant was convicted. The conviction was appealed. The Board considered whether the summing up was fair to the defendant.
Held: The summing up must be looked at as a whole.
Lord Lane said: ‘In rejecting the defendants submission that the comments of the judge were unfairly weighted against him, the court asked themselves whether the comments amounted to a usurpation of the jury’s function. In the view of their Lordships it is difficult to see how a judge can usurp the jury’s function short of withdrawing in terms an issue from the jury’s consideration. In other words this was to use a test which by present day standards is too favourable to the prosecution. Comments which fall short of such a usurpation may nevertheless be so weighted against the defendant at trial as to leave the jury little real choice other than to comply with what are obviously the judge’s views or wishes.’
and ‘The Court of Appeal took the view that the trial judge was not putting forward an unfair or unbalanced picture of the facts as he saw them. In rejecting the defendant’s submission that the comments of the judge were unfairly weighted against him, the court asked themselves whether the comments amounted to a usurpation of the jury’s function. In the view of their Lordships it is difficult to see how a judge can usurp the jury’s function short of withdrawing in terms an issue from the jury’s consideration. In other words this was to use a test which by present day standards is too favourable to the prosecution. Comments which fall short of usurpation may nonetheless be so weighted against the defendant at trial as to leave the jury little real choice other than to comply with what are obviously the judge’s views or wishes. ‘
and ‘Their Lordships realise that the judge’s task in this type of trial is never an easy one. He must of course remain impartial, but at the same time the evidence may point strongly to the guilt of the defendant; the judge may often feel that he has to supplement deficiencies in the performance of the prosecution or the defence, in order to maintain a proper balance between the two sides in the adversarial proceedings. It is all too easy for a court thereafter to criticise a judge who may have fallen into error for this reason. However, if the system is trial by jury then the decision must be that of the jury and not of the judge using the jury as something akin to a vehicle for his own views. Whether that is what has happened in any particular case is not likely to be an easy decision.’

Judges:

Lords Lane, Templeman, Oliver, Goff and Woolf

Citations:

[1993] 1 WLR 818

Jurisdiction:

Commonwealth

Citing:

Cited – Regina v Gilbey CACD 26-Jan-1990
The court warned judges about the need for a balanced summing up to the jury: ‘A judge . . is not entitled to comment in such a way as to make the summing up as a whole unbalanced . . It cannot be said too often or too strongly that a summing up . .
Cited – Berry v The Queen PC 15-Jun-1992
(Jamaica) Appeal from conviction for murder. Accidental discharge of gun in struggle. . .

Cited by:

Approved – Regina v Wood CACD 11-Jul-1995
A newspaper’s pressure on jury to convict by suggesting other evidence, made the trial unfair. Suggestions of unfairness by judge in his summing up should only be made if supported by counsel at the trial. The degree of adverse comment allowed today . .
Cited – Regina v Derek William Bentley (Deceased) CACD 30-Jul-1998
The defendant had been convicted of murder in 1952, and hung. A court hearing an appeal after many years must apply laws from different eras to different aspects. The law of the offence (of murder) to be applied was that at the time of the offence. . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 16 May 2022; Ref: scu.192080

Snell v Farrell: 1990

(Supreme Court of Canada) Sopinka J said: ‘The traditional approach to causation has come under attack in a number of cases in which there is concern that due to the complexities of proof, the probable victim of tortious conduct will be deprived of relief. This concern is strongest in circumstances in which, on the basis of some percentage of statistical probability, the plaintiff is the likely victim of the combined tortious conduct of a number of defendants, but cannot prove causation against a specific defendant or defendants on the basis of particularized evidence in accordance with traditional principles. The challenge to the traditional approach has manifested itself in cases dealing with non-traumatic injuries such as man-made diseases resulting from the widespread diffusion of chemical products, including product liability cases in which a product which can cause injury is widely manufactured and marketed by a large number of corporations.’

Judges:

Sopinka J

Citations:

[1990] 2 SCR 311

Jurisdiction:

Canada

Torts – Other

Updated: 16 May 2022; Ref: scu.190112

David Securities Pty Ltd v Commonwealth Bank of Australia: 1992

(High Court of Australia) Moneys paid away as a result of a causative mistake of law are recoverable: ‘the payer will be entitled prima facie to recover moneys paid under a mistake if it appears that the moneys were paid by the payer in the mistaken belief that he or she was under a legal obligation to pay the moneys or that the payee was legally entitled to payment of the moneys. Such a mistake would be causative of the payment.’ but ‘It is a defence to a claim for restitution of money paid or property transferred under a mistake of law that the defendant honestly believed, when he learnt of the payment or transfer, that he was entitled to receive and retain the money or property.’

Judges:

Brennan J

Citations:

(1992) 175 CLR 353

Jurisdiction:

England and Wales

Cited by:

Limited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Equity

Updated: 16 May 2022; Ref: scu.187274

Classic International Pty Ltd v Lagos: 2002

(New South Wales Supreme Court) ‘I am satisfied that both parties believed that the agreement for lease would validly take effect according to its terms and that had they known of the substantial variation which the Retail Leases Act 1994 would impose upon the agreement, they would not have entered into it’ and ’42. I do not need to consider the vexed question of whether the mistake in the present case is one of fact or one of law. As to whether, in the law of Australia, the doctrine of common ‘mistake applies to’ a mistake of law, I need do no more that set out the following passage from Cheshire and Fifoot’s Law of Contract 8th Aust Ed., para 12.8: ‘Operative mistake traditionally has been confined to mistakes of fact and not of law. This distinction has always been blurred and has been notoriously difficult to apply. It appears that equity did not draw a clear line between mistakes of fact and law. If there was such a rule, it was often honoured in the breach. In Western Australia the law/fact distinction has been abolished by legislation (with certain safeguards). The whole question has now almost certainly been laid to rest by the decision of the High Court in David Securities Pty Ltd v Commonwealth Bank (1992) 175 CLR 353. In that case the distinction between mistake of law and mistake of fact was rejected in the light of a very considerable body of judicial and academic criticism of the distinction. . . . the rule precluding recovery of moneys paid under a mistake of law should be held not to form part of the law in Australia.’

Judges:

Palmer J

Citations:

[2002] NSWSC 115

Jurisdiction:

England and Wales

Cited by:

Cited – Margaret Brennan v Bolt Burdon, London Borough of Islington, Leigh Day and Co QBD 30-Oct-2003
The claimant had sought relief for the injury to her health suffered by condition of her flat. The legal advisers had settled the matter, thinking that the claim had not been timeously served. The defendant appealed an order that the compromise was . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Equity, Contract

Updated: 16 May 2022; Ref: scu.187292

Ibralebbe v The Queen: PC 1964

(Grenada) In an appeal from the Court of Appeal of Grenada, the Judicial Committee of the Privy Council forms part of the Grenadian judicial system. Section 53 of the constitution which empowered Parliament to ‘make laws for the peace, order and good government’, connoted ‘the widest law-making powers appropriate to a Sovereign’

Citations:

[1964] AC 900

Cited by:

Cited – Donovan Crawford Regardless Limited Alma Crawford v Financial Institutions Services Limited PC 19-Jun-2003
PC (Jamaica) The petitioners sought leave to appeal to the Privy Council. They had an appeal as of right. They now sought special leave, complaining that the Court in Jamaca had granted leave subject to them . .
Cited – Haroon Khan v The State PC 20-Nov-2003
PC (Trinidad and Tobago) The appellant had been convicted of felony murder. He was one of four engaged in a robbery, where the victim received fatal injuries.
Held: The felony murder rule had been . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 16 May 2022; Ref: scu.184494

Maxwell v Murphy: 1957

Sir Owen Dixon CJ said: ‘The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.’ and ‘A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time. Statutes which enable a person to enforce a cause of action which was then barred or provide a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. They would affect substantive rights.’

Judges:

Sir Owen Dixon CJ

Citations:

(1957) 96 CLR 261

Cited by:

Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Cited – A v Hoare; H v Suffolk County Council, Secretary of State for Constitutional Affairs intervening; X and Y v London Borough of Wandsworth CA 12-Apr-2006
Each claimant sought damages for a criminal assault for which the defendant was said to be responsible. Each claim was to be out of the six year limitation period. In the first claim, the proposed defendant had since won a substantial sum from the . .
Cited – A v Hoare; H v Suffolk County Council, Secretary of State for Constitutional Affairs intervening; X and Y v London Borough of Wandsworth CA 12-Apr-2006
Each claimant sought damages for a criminal assault for which the defendant was said to be responsible. Each claim was to be out of the six year limitation period. In the first claim, the proposed defendant had since won a substantial sum from the . .
Cited – Yew Bon Tew v Kenderaan Bas Mara PC 7-Oct-1982
(Malaysia) In 1972 the appellants were injured by the respondent’s bus. At that time the local limitation period was 12 months. In 1974 the limitation period became three years. The appellants issued a writ in 1975. To succeed they would have to sue . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Commonwealth

Updated: 16 May 2022; Ref: scu.184431

Lang v Webb: 1912

(High Court of Australia) In 1908 the deceased had transferred and conveyed a piece of land to each of her three sons; on the same date as, but subsequently to, the execution of the transfers and conveyances there had been executed by the deceased and each of her sons a lease back for a term of five years of the land which had been transferred and conveyed to him; and the transfers and conveyances and leases had been executed after discussion and arrangement between the deceased and her three sons and after she had explained to them that she desired to make fixed and permanent provision for them and at the same time to take from them leases at whatever might be a reasonable rental for grazing purposes having regard to the conditions of the leases, those conditions and the amounts of the rents having been discussed and agreed before the execution of any of the documents. The rents reserved were in each case fair and reasonable and after the execution of the documents the whole of the land continued to be occupied by the deceased and was used by her for grazing purposes. On the deceased’s death in 1910, before the expiration of the leases, a claim for death duties was made in respect of the freehold.
Held: The claim was upheld. Section 102 requires people to define what they give away what they retain. If an interest is given away, they may not receive back any benefits from that interest. The policy was to avoid the ‘delay, expense and uncertainty’ of requiring the revenue to investigate whether a gift was genuine or pretended. If the donor continued to derive any benefit from the property in which an interest had been given, it would be treated as a pretended gift unless the benefit could be shown to be referable to a specific proprietary interest which he had retained. This is probably the most plausible explanation. Isaacs J: ‘But there must be no misunderstanding as to what is meant by the transaction … in the relevant sense it means that you regard the substantial effect of the ‘conveyance, assignment, gift, delivery or transfer’, by which the gift was made. If by an instrument, as in this case, you look at the instrument by which the property passes from the donor to the donee, and, disregarding mere form, ascertain its real effect. What does it give, not how does it give it? In this case the gift is made by the indenture executed by Henrietta Lang, and by that the whole of her estate in the lands was given without any exception or reservation whatever. That was the transaction of gift – complete in itself and unqualified. No other construction is possible. It had to be complete before the donee could execute to her the lease of the property. A lease is a conveyance; and it is more than form, it is substance, when the donor’s interest has to be vested in the donee before the donee can convey a smaller interest. That smaller interest was comprised in the gift itself, it was part of it, and is quite different from the case of Re Cochrane , where the trust of surplus income and the ultimate contingent trust of corpus were expressly retained by the donor for himself on the face of the instrument, and never in any shape or form included in what he gave.’

Judges:

Griffith CJ, Barton and Isaacs JJ

Citations:

(1912) 13 CLR 503

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Commissioners of Inland Revenue v Eversden Eversden (As Executors of the Will of Greenstock Deceased) CA 15-May-2003
The executors challenged the assessment to Inheritance tax on the estate. The commissioners claimed that a gift of property into a trust included a sufficient reservation of benefit to disallow it as an exempt transfer.
Held: The scheme was . .
Cited – Ingram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) v Commissioners of Inland Revenue CA 28-Jul-1997
The deceased had first conveyed property to her solicitor. Leases back were then created in her favour, and then the freeholds were conveyed at her direction to her children and grandchildren. They were potentially exempt transfers.
Held: . .
Cited – Ingram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) v Commissioners of Inland Revenue CA 28-Jul-1997
The deceased had first conveyed property to her solicitor. Leases back were then created in her favour, and then the freeholds were conveyed at her direction to her children and grandchildren. They were potentially exempt transfers.
Held: . .
Cited – Ingram and Another v Commissioners of Inland Revenue HL 10-Dec-1998
To protect her estate from Inheritance Tax, the deceased gave land to her solicitor, but then took back a lease. The solicitor then conveyed the land on freehold on to members of her family.
Held: The lease-back by the nominee was not void as . .
Lists of cited by and citing cases may be incomplete.

Taxes – Other

Updated: 16 May 2022; Ref: scu.182744

John Holland Construction and Engineering Pty Ltd v Kvaerner R J Brown Pty Ltd: 1996

(Supreme Court of Victoria) The defendant applied to strike out substantial parts of a statement of claim on grounds including that the defendant faced allegations that by reason of breaches of contract the plaintiff had suffered loss of damage, particulars of which were given in a schedule A in which the loss and damage was calculated in terms of the difference between the tender estimate for the part in question and its actual cost. The defendant attacked the pleading on the grounds that such an allegation was embarrassing since it did not establish a causal link between the breach and the damage alleged.
Held: The court considered the treatment of global claims, that is claims where the claimant does not seek to attribute any specific loss to a specific breach of contract, but is content to allege a composite loss as a result of all the breaches alleged: ‘Where the loss is caused by a breach of contract, causation for the purposes of a claim for damages must be determined by the application of common sense to the logical principles of causation’ and ‘it is possible to say that a given loss was in law caused by a particular act or omission notwithstanding that other acts or omissions played a part in its occurrence. It is sufficient that the breach be a material cause… This last matter may be of particular importance in a case like the present where a number of potential causal factors may be present.’ The court noted that a global claim had been held to be permissible in the case where it was impracticable to disentangle that part of the loss which is attributable to each head of claim. The particular claim under consideration was a total cost claim: ‘The logic of such a claim is this: the contractor might reasonably have expected to perform the work for a particular sum, usually the contract price; the proprietor committed breaches of contract; the actual reasonable cost of the work was a sum greater than the expected cost.
The logical consequence implicit in this is that the proprietor’s breaches caused that extra cost or cost overrun. This implication is valid only so long as, and to the extent that, the three propositions are proved and a further unstated one is accepted: the proprietor’s breaches represent the only causally significant factor responsible for the difference between the expected cost and the actual cost. … The unstated assumption underlying the inference may be further analysed. What is involved here is two things: first, the breaches of contract caused some extra cost; secondly, the contractor’s cost overrun is this extra cost. … It is the second aspect of the unstated assumption … which is likely to cause the more obvious problem because it involves an allegation that the breaches of contract were the material cause of all of the contractor’s cost overrun. This involves an assertion that, given that the breaches of contract caused some extra cost, they must have caused the whole of the extra cost because no other relevant cause was responsible for any part of it.’

Judges:

Byrne J

Citations:

[1996] 82 BLR 83

Jurisdiction:

Australia

Cited by:

Cited – John Doyle Construction Limited v Laing Management (Scotland) Limited SCS 18-Apr-2002
The pursuer made a loss and expense claim in global form in a construction dispute. He was unable to prove that all of his losses stemmed from the default.
Held: A global claim requires proof that each and every element of the loss claimed . .
Lists of cited by and citing cases may be incomplete.

Construction

Updated: 16 May 2022; Ref: scu.182082

The Queen v Johns (TS): 7 Feb 1980

High Court of Australia – Criminal Law (N.S.W.) – Accessory before the fact – Liability – Possible consequences of venture planned with principal in first degree – Sentence of accessory – Whether judge may impose sentence of less duration than life – Crimes Act, 1900 (N.S.W.), ss. 19, 346, 442 (1).
The appellant had been convicted of murder and assault with intent to rob. His role was to drive the principal offender, W, to a rendezvous with a third man, D. The appellant was to wait while the other two men robbed a known receiver of stolen jewellery. Afterwards the appellant was to take possession of the proceeds and hide them in return for a share. The appellant knew that W was carrying a pistol, and W told him that he would not stand for any nonsense if he met any obstacle during the robbery. In the event the victim resisted and W shot him dead.
The judge had directed the jury that the appellant and D would be guilty if the act constituting the offence committed was within the contemplation of the parties as an act done in the course of the venture on which they had embarked. It was argued on the appellant’s behalf that while this was an appropriate direction in the case of D, who was present and therefore a principal in the second degree, it was a misdirection in the case of the appellant, who was an accessory before the fact. It was submitted that in his case it was necessary for the jury to conclude that it was a likely or probable consequence of the way in which the crime was to be committed that the gun would be discharged so as to kill the deceased.
Held: The High Court unanimously rejected the argument that any distinction was to be drawn between the liability of a principal in the second degree and an accessory before the fact. There was no reason as a matter of legal principle why such a distinction should be drawn. They also said: ‘The narrow test of criminality proposed by the applicant is plainly unacceptable for the reason that it stakes everything on the probability or improbability of the act, admittedly contemplated, occurring. Suppose a plan made by A, the principal offender, and B, the accessory before the fact, to rob premises, according to which A is to carry out the robbery. It is agreed that A is to carry a revolver and use it to overcome resistance in the unlikely event that the premises are attended, previous surveillance having established that the premises are invariably unattended at the time when the robbery is to be carried out. As it happens, a security officer is in attendance when A enters the premises and is shot by A. It would make nonsense to say that B is not guilty merely because it was an unlikely or improbable contingency that the premises would be attended at the time of the robbery, when we know that B assented to the shooting in the event that occurred.
In the present case there was ample evidence from which the jury could infer that the applicant gave his assent to a criminal enterprise which involved the use, that is the discharge, of a loaded gun, in the event that [the victim] resisted or sought to summon assistance. We need not recapitulate the evidence to which we have already referred. The jury could therefore conclude that the common purpose involved resorting to violence of this kind, should the occasion arise, and that the violence contemplated amounted to grievous bodily harm or homicide.’

Judges:

Mason, Murphy and Wilson JJ

Citations:

(1980) 143 CLR 108, [1980] HCA 3

Links:

Austlii

Commonwealth, Crime, Criminal Sentencing

Updated: 16 May 2022; Ref: scu.560305

Lac Minerals v International Corina Resources Ltd: 11 Aug 1989

Supreme Court of Canada on appeal from the court of appeal for ontario – Commercial law — Confidentiality — Mining companies discussing possible joint venture — Confidential exploration results disclosed during discussions — High potential property adjacent to lands of exploration company — Mining company in receipt of information purchasing property for own use — Whether or not company in breach of duty respecting confidences — Whether or not breach of fiduciary duty — If so, the appropriate remedy.
Industrial and intellectual property — Trade secrets — Confidentiality — Mining companies discussing possible joint venture — Confidential exploration results disclosed during discussions — High potential property adjacent to lands of exploration company — Mining company in receipt of information purchasing property for own use — Whether or not company in breach of duty respecting confidences — If so, the appropriate remedy.
Trusts and trustees — Fiduciary duty — Trade secrets — Confidentiality — Mining companies discussing possible joint venture — Confidential exploration results disclosed during discussions — High potential property adjacent to lands of exploration company — Mining company in receipt of information purchasing property for own use — Whether or not breach of fiduciary duty — If so, the appropriate remedy.
Remedies — Unjust enrichment — Restitution — Constructive trust — Nature of constructive trust — When constructive trust available.

Judges:

McIntyre, Lamer, Wilson, La Forest and Sopinka JJ

Citations:

(1989) 61 DLR (4th) 14 Can SC (Canada), [1989] 2 SCR 574, [1990] FSR 441, 69 OR (2d) 287, 1989 CanLII 34 (SCC)

Links:

Canlii

Commonwealth, Intellectual Property, Damages, Equity

Updated: 16 May 2022; Ref: scu.556253

Ex Parte Lewin; In re Ward: 1946

(Australia – New South Wales) The court heard an an application for a rule nisi for a writ of statutory prohibition directed to a magistrate in proceedings by a landlord for the recovery of premises. The magistrate had already heard and determined a similar application between the landlord and a different tenant, which involved consideration of evidence of a witness also proposed to be called in the proceedings in issue. The magistrate had not done or said anything which in fact indicated that he would not determine the proceedings on the merits.
Held: McClemens J discharged the rule nisi. After dealing with the question of apprehended or ostensible bias in the particular circumstances, he went on to reject a finding urged upon him of real bias, adding: ‘No judicial officer has a vested interest in any one of his decisions, and if the circumstances arise where it is proper that he has to reconsider it, he should do so, and if he thinks it wrong, say so.’

Judges:

McClemens J

Citations:

[1964] NSWR 446, 80 WN (NSW) 1527

Cited by:

Approved – Livesey v New South Wales Bar Association 20-May-1983
High Court of Australia – Courts and Judges – Bias – Prejudgment of issues and of credibility of witness – Refusal to withdraw.
The defendant barrister resisted an application to strike his name off the roll. B, at the time a law student and . .
Cited – Otkritie International Investment Management and Others v Urumov CA 14-Oct-2014
The claimants brought proceedings against several defendants. There had been a series of hearings conducted by a single judge leading to findings that several defendants had been involved in a fraud. The defendants sought recusal of that judge . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Litigation Practice

Updated: 15 May 2022; Ref: scu.537710

Gokal Chand v Hukam Chand-Nath Mal: PC 1921

While training for the ICS, the family member had been supported out of joint family resources it was held that the income earned by him from an appointment in the ICS was property of the joint family. This was a strict interpretation of the Hindu Fruits of learning doctrine.

Citations:

(1921) LR 48 IA 162

Cited by:

Cited – Singh v Singh and Another ChD 8-Apr-2014
The parties disputed ownership of various valuable properties. The father asserted that they were held under trusts following the Mitakshara Hindu code, under a common intention constructive trust. The son said that properties held in his own name . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 15 May 2022; Ref: scu.523689

President of the Republic of South Africa v South African Rugby Football Union: 4 Jun 1999

Constitutional Court of South Africa – The court considered an allegation of bias in the judge, it being said that they should have recused themselves: ‘The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training ad experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.’

Citations:

[1999] ZACC 9, [1999] 4 SA 147

Links:

SAFLii

Jurisdiction:

England and Wales

Cited by:

Cited – O’Neill v Her Majesty’s Advocate No 2 SC 13-Jun-2013
The appellants had been convicted of murder, it being said that they had disposed of her body at sea. They now said that the delay between being first questioned and being charged infringed their rights to a trial within a reasonable time, and . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Human Rights, Constitutional

Updated: 15 May 2022; Ref: scu.526344

Williams v Spautz: 27 Jul 1992

(High Court of Australia) Criminal Law – Abuse of process – Stay of proceedings – Action for wrongful dismissal against university – Information for criminal defamation by plaintiff against officer of university – Predominant purpose of informant to secure reinstatement or favourable settlement of action – Whether abuse of process.
Brennan J attempted a partial definition of purpose in the context of the tort of abuse of process, committed when a person conducts litigation for a purpose other than that for which the court’s process is designed: ‘Purpose, when used in reference to a transaction, has two elements: the first, a result which the transaction is capable of producing; the second, the result which the person or persons who engage in or control the transaction intend it to produce. Or, to express the concept in different terms, the purpose of a transaction is the result which it is capable of producing and is intended to produce.’

Judges:

Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ

Citations:

61 A Crim R 431, (1992) 66 ALJR 585, 107 ALR 635, (1992) 174 CLR 509, [1992] HCA 34

Links:

Austlii

Jurisdiction:

England and Wales

Cited by:

Cited – Hayes v Willoughby SC 20-Mar-2013
The claimant and appellant had been employer and employee who had fallen out, with a settlement in 2005. The appellant then began an unpleasant and obsessive personal vendetta against Mr Hayes, complaining to public bodies with allegations of tax . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Torts – Other

Updated: 15 May 2022; Ref: scu.471929

Regina v Wakely: 7 Jun 1990

(High Court of Australia) The defendants appealed against their convictions, saying that their cross examinations had been improperly restricted by the judge at trial.
Held: The court considered the limit of permissible cross-examination.

Judges:

Mason CJ, Brennan, Deane, Toohey and McHugh JJ

Citations:

(1990) 93 ALR 79, (1990) 64 ALJR 321

Links:

Austlii

Citing:

Cited – Regina v Daya Kalia CACD 1974
One of the difficulties associated with granting of bail in the absence of any exceptional circumstances, is the trauma caused to the appellant being returned to prison if his appeal fails. Roskill LJ said: ‘This Court desires to say as plainly as . .
Cited – Mechanical and General Inventions Co. and Lehwess v Austin and the Austin Motor Co HL 1935
Lord Hanworth MR discussed the general nature of cross-examination, saying: ‘Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to . .
Cited – Regina v Maynard and Other CACD 1979
It is the duty of the trial judge to control vexatious, unfair, misleading or irrelevant cross-examination. . .

Cited by:

Cited – Regina v Shayler CACD 29-Jul-2003
The defendant appealed against his conviction, saying the restrictions placed upon him in conducting his defence because the fact that he had been a member of the secret services, meant that he had been unable to conduct his defence properly, with . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Crime

Updated: 15 May 2022; Ref: scu.470723

Ontario Human Rights Commission v Brockie: 2002

(Ontario) A Christian printer complained that he was required to offer services to an homosexual group. The court considered that argument that it was a human rights breach to ask a person to promote what they believe to be a sin, namely sexual relations between unmarried persons.
Held: He was required to offer his services, but not to print leaflets which actively promoted an homosexual lifestyle and which was dismissive of Christian beliefs. It was not an answer to say that those who hold the relevant religious belief should not be free to offer services to sections of the public unless prepared to act inconsistently with the belief. Such an approach would lead to withdrawal from society of those holding it, which should be neither the aim nor function of human rights jurisprudence. It would risk the replacement of one set of predominant orthodox views with another. A careful balancing exercise is required.

Citations:

(2002) 22 DLR (4th) 174

Cited by:

Cited – Bull and Bull v Hall and Preddy CA 10-Feb-2012
The appellants owned a guesthouse. They appealed from being found in breach of the Regulations. They had declined to honour a booking by the respondents of a room upon learning that they were a homosexual couple. The appellants had said that they . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Human Rights

Updated: 15 May 2022; Ref: scu.451203

Rex v White: 1926

(British Colombia) Evidence regarding a tracker dog was held inadmissible.

Citations:

(1926) 5 DLR 2

Citing:

Cited – Rex v Trupedo 1920
(South Africa) Evidence concerning the activity of a tracker dog was not admissible. Innes CJ said: ‘We have no scientific or accurate knowledge as to the faculty by which dogs of certain breeds are said to be able to follow the scent of one human . .

Cited by:

Cited – Regina v Pieterson; Regina v H CACD 8-Nov-1994
The defendants appealed against their convictions for robbery. A dog had been used to follow scents from the scene, picking up items taken in the raid. The defendants objected to admission of evidence of the dog’s activities and reliability.
Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Evidence

Updated: 15 May 2022; Ref: scu.452349

Albert v Hoffnung and Co Ltd: 1921

(Court of Appeal of New South Wales) ‘Knowledge’ means . . notice of facts such as would suggest to a reasonable man that a breach of copyright law was being committed.’

Judges:

Harvey J

Citations:

(1921) 22 SR (NSW) 75

Cited by:

Cited – Sillitoe v McGraw-Hill Book Co 1983
The defendants had imported and distributed a series of ‘study notes’ for students which the plaintiffs alleged infringed the copyrights in the works under discussion.
Held: The defendants had been ‘fixed with knowledge’ 14 days after letters . .
Cited – Twentieth Century Fox Film Corp and Others v British Telecommunications Plc ChD 28-Jul-2011
The claimant rights holders sought an order to require the defendant broadband internet provider to deny access to its users to websites which were said to facilitate the distribution of infringing copies of their films. An earlier judgment had . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Commonwealth

Updated: 15 May 2022; Ref: scu.442537

Wildash v Klein: 2004

(Supreme Court of the Northern Territory – Australia) The parties, two women, each of whom made craftwork depicting local wildlife for sale at markets. Initially they co-operated but later each accused the other of copyright infringement. The craftworks were made of wire, glass rods, glass nuggets, copper foil and other materials.
Held: They were sculptures or, alternatively, works of artistic craftsmanship. The court set out Australian authority indicating that the word ‘sculpture’ must be given its ordinary meaning. Angel J cited Laddie J in Metix in referring to the need not to extend the meaning of the word beyond the ordinary public’s perception and the reference to the artist’s hand. He also cited from other Australian authority which held that: ‘a sculpture should in some way express in three-dimensional form an idea of the sculptor’, repeating Laddie Js’ theme. He held that the works in his case expressed such an idea. They were ‘designed to have aesthetic appeal to potential purchasers.’

Judges:

Angel J

Citations:

(2004) 61 IPR 324, [2004] NTSC 17, (2004) 16 NTLR 66, [2004] AIPC 91-982

Jurisdiction:

Australia

Citing:

Cited – Metix (UK) Ltd v G H Maughan (Plastics) Ltd ChD 1997
The plaintiff sought protect its products by claiming copyright protection in the moulds made for making industrial products (twin cartridges like a double-barrelled syringe, which held products prior to their being mixed) The plaintiff claimed that . .

Cited by:

Cited – Lucasfilm Ltd and Others v Ainsworth and Another SC 27-Jul-2011
The claimant had produced the Star War films which made use of props, in particular a ‘Stormtrooper’ helmet designed by the defendant. The defendant had then himself distributed models of the designs he had created. The appellant obtained judgment . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Intellectual Property

Updated: 15 May 2022; Ref: scu.442602

Hoysted v Federal Taxation Commissioner: PC 1926

An implied decision of the High Court on the true construction of a will estopped the parties from contending for a different construction relating to a later year’s assessment.

Citations:

[1926] AC 155

Cited by:

Cited – Matalan Retail Ltd v Revenue and Customs ChD 5-Aug-2009
The taxpayer imported swimwear for sale. The respondent had incorrectly indicated that such swimwear had one classification. The claimant sought to prevent the respondent reclassifying the goods, saying that they had made given binding tariff . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Taxes Management

Updated: 15 May 2022; Ref: scu.372322

Fabrigas v Mostyn: 1773

Minorca was a ceded colony of the British Crown. The Governor, General Mostyn, apparently fearing that Fabrigas would stir up danger for the garrison, committed him to the worst prison on the island, with no bed and only bread and water, and with no contact with his family. He then confined him ‘on board a ship, under the idea of a banishment to Carthagena.’ Fabrigas sued General Mostyn for damages in the King’s Bench.
Held: The damages award of andpound;3,000 was upheld.
Lord De Grey said: ‘I do believe Mr Mostyn was led into this, under the old practice of the island of Minorca, by which it was usual to banish: I suppose the old Minorquins thought fit to advise him to this measure. But the governor knew that he could no more imprison him for a twelvemonth, than he could inflict the torture; yet the torture, as well as the banishment, was the old law of Minorca, which fell of course when it came into our possession. Every English governor knew he could not inflict the torture; the constitution of this country put an end to that idea. This man is then dragged on board a ship, with such circumstances of inhumanity and hardship, as I cannot believe of general Mostyn; and he is carried into a foreign country, and of all countries the worst; for I believe there are directions given, that no persons should go to Spain, or be permitted to quit the port of Carthagena.’

Judges:

Lord de Grey

Citations:

[1773] 2 Wm Bl 929, (1773) 20 St Tr 82

Citing:

See Also – Fabrigas v Mostyn 1746
And as to the excess of damages, the Court were all of opinion, that it was very difficult to interpose with respect to the quantum of damages in actions for any personal wrong. Not that it can be laid down, that in no case of personal injury the . .

Cited by:

Appeal from – Fabrigas v Mostyn 1775
The plaintiff a native Minorquan sought to bring an action in England for an alleged assault and false imprisonment on him in Minorca by the Governor of Minorca.
Held: Such an action could be brought. What foreign law is is a matter of fact to . .
Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Torts – Other

Updated: 15 May 2022; Ref: scu.277173

Walton Stores (Interstate) Limited v Maher: 1988

(High Court of Australia) It would be unconscionable for a party to stand by in silence when it must have known that the other party was proceeding on an assumption that they had a binding agreement.

Citations:

[1988] 164 CLR 387

Cited by:

Cited – City Connect Management Ltd v Telia International Carrier UK and Another TCC 30-Jul-2004
The parties sought the expenses incurred in negotiating a development contract which failed before the documents were signed. . .
Cited – Yeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
Lists of cited by and citing cases may be incomplete.

Estoppel, Commonwealth

Updated: 15 May 2022; Ref: scu.276216

Re Collins (No 3): 1905

(Canada) The United States sought to extradite Collins on a charge of perjury which was alleged to have taken place when he made an affidavit containing a wilfully false statement of fact in the course of an action of alimony in California. Many technical points against the proposed extradition were raised and rejected. The key argument was that under section 2(b) of the Canadian Extradition Act, the extradition crime might mean any crime, ‘which, if committed in Canada, or within Canadian jurisdiction, would be one of the crimes described in the first schedule’ to the Act. The judge was satisfied that perjury was indeed a crime described in that schedule. According to the Californian Penal Code, the offence of perjury was committed by someone who lied after having taken an oath ‘that he will testify, declare, depose, or certify truly before any competent tribunal, officer, or person.’ There was nothing, however, in the law of Canada, which made it perjury to make a false deposition before any competent Californian tribunal or officer. Therefore, it was said, the crime for which Collins’ extradition was sought was not a crime which, if committed in Canada, would be one of the crimes described in the first schedule to the Extradition Act. It followed that it was not an ‘extradition crime’ within the meaning of section 2(b) of that Act.
Held: Duff J rejected the argument: ‘It is contended by the applicant that on these authorities to which I have referred, you have to go through the conduct upon which the criminal charge is based, and you have to come to the conclusion that his identical acts, if done in this country, would have constituted a crime in accordance with the law of Canada. Taken with due qualifications, we need not quarrel with that; but it is obvious from the outset that there must be some qualification. In the first place, the treaty itself, which, after all, is the controlling document in the case, speaks not of the acts of the accused, but of the evidence of ‘criminality,’ and it seems to me that the fair and natural way to apply that is this – you are to fasten your attention not upon the adventitious circumstances connected with the conduct of the accused, but upon the essence of his acts, in their bearing upon the charge in question. And if you find that his acts so regarded furnish the component elements of the imputed offence according to the law of this country, then that requirement of the treaty is complied with. To illustrate, I apprehend that in the case of perjury, the accused cannot be heard to say, ‘the oath on which the charge is based was administered by A.B., an officer who had no authority to administer oaths in Canada (although duly authorized in the place where the oath was taken); and, consequently, if I had done here the identical thing I did there (viz.: the taking of an oath before A.B.), perjury could not have been successfully charged against me.’ The substance of the criminality charged against the accused is not that he took a false oath before A.B, but that he took a false oath before an officer who was authorized to administer the oath. Any other view would, I conceive, simply make nonsense of the treaty.’ and
‘if you are to conceive the accused as pursuing the conduct in question in this country, then along with him you are to transplant his environment; and that environment must, I apprehend, include, so far as relevant, the local institutions of the demanding country, the laws effecting the legal powers and rights, and fixing the legal character of the acts of the persons concerned, always excepting, of course, the law supplying the definition of the crime which is charged.’

Citations:

(1905) 10 CCC 80

Cited by:

Cited – Norris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 15 May 2022; Ref: scu.270746

Chakravarti v Advertiser Newspapers: 1998

(High Court of Australia ) Kirby J discussed the availability of fair comment as a defece to defamation and said that: ‘Excessive commentary or misleading headlines which amount to commentary run the risk of depriving the text of the quality of fairness essential to attract the privilege.’

Judges:

Kirby J

Citations:

(1998) 193 CLR 519

Cited by:

Cited – Curistan v Times Newspapers Ltd CA 30-Apr-2008
The court considered the availability of qualified privilege for reporting of statements made in parliament and the actionable meaning of the article, which comprised in part those statements and in part other factual material representing the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Defamation

Updated: 15 May 2022; Ref: scu.270511

Horton v Jones: 1935

(High Court of Australia) A claim by plaintiff against the personal representatives of her ex-employer for breach of an oral agreement by him to make a will leaving her property which would include interests in land failed on the ground that it fell within the New South Wales law requiring agreements for the disposition of land to comply with certain requirements.

Judges:

Rich and Dixon JJ

Citations:

(1935) 53 CLR 475

Cited by:

Cited – Healey v Brown ChD 25-Apr-2002
The two deceased had made mutual wills bequeathing the family home. The survivor transferred the property during his life to defeat the agreement. It was now said that the arrangement fell foul of the 1989 Act and was unenforceable.
Held: . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 15 May 2022; Ref: scu.270806

Merck and Co v Interpharm: 1992

(Federal Court of Canada) Giles ASP said: ‘Solicitor and client privilege is one of the basic principles which permit the operation of our justice system and public confidence in it. In order to support the public interest in the inviolability of the solicitor and client relationship the courts have imposed great inconvenience and have overridden without question personal rights such as the right of a person to choose his own counsel. In this case there is no suggestion that a lawyer who once acted for the defendant is now with the plaintiffs’ firm. There is no suggestion of a solicitor and client relationship having been established between the defendants and anyone at Gowling’s. The public interest in solicitor and client relationship is not engaged.
In my view the implied undertaking would be most impractical if it resulted in an ability to remove from a case any solicitor who was bound by an implied undertaking. The implied undertaking is not of sufficient public interest when balanced against the right of a party to choose his own solicitors and the public interest in the efficient administration of justice to require the court to disqualify any solicitor who might wrongly deploy information subject to the undertaking. If a solicitor fails to observe the undertaking the remedy is to cite him for contempt, not to remove him.
A lawyer who takes cases regularly must have acquired a great deal of information subject to implied undertakings. In these days of specialized education and long work hours for junior lawyers, it is possible that a significant percentage of a lawyer’s general knowledge will have been acquired in his practice of law, there having been little other opportunity for him to acquire the same. It is equally possible that a large portion of that general knowledge will be subject to implied undertakings. If the defendant’s submissions are correct, few lawyers who have been called for any length of time will be able to take part in litigation. It is to be remembered that the undertaking is to the Court and is not limited to deploying information in cases involving one or more of the same parties.’

Judges:

Giles ASP

Citations:

[1992] 3 FC 774

Cited by:

Cited – British Sky Broadcasting Group Plc and Another v Virgin Media Communications Ltd and others CA 6-Jun-2008
The parties were involved in litigation concerning allegations of anti-consumer practices. It was agreed that commercially sensitive documents should be exchanged, but the terms protecting the confidences could not be agreed. The parties were also . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Legal Professions

Updated: 15 May 2022; Ref: scu.268777

Calma v Sesar: 1992

(Australia) The court hearing a dispute between family members as to how the deceased should be buried, declined to hear evidence from them about the deceased’s childhood relationships. There was no good reason why the body should be flown thousands of miles away for a funeral and the funeral should be in Darwin where the body lay.

Judges:

Martin J

Citations:

(1992) 2 NTLR 37

Cited by:

Cited – Hartshorne v Gardner ChD 14-Mar-2008
The deceased died in a motor accident, aged 44. The parties, his mother and father, disputed control over his remains, and requested an order from the court.
Held: The court has such an inherent jurisdiction. Since the claimants had an equal . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 15 May 2022; Ref: scu.267631

Tay Bok Choon v Tahanson Sdn Bhd: PC 1987

A participant in the company was given the right to be involved in the management until a change should become necessary for some other reason.
In cases of fraud, direct evidence may be rare and circumstantial evidence may have to suffice,
Lord Templeman said: ‘In civil proceedings the trial judge has no power to dictate to a litigant what evidence he should tender. In winding up proceedings the trial judge cannot refuse to read affidavits which have been properly sworn, filed and produced to him unless some opposing party has applied for the attendance for cross-examination of the deponent and that application has been granted and the deponent does not attend. The court cannot give a direction about evidence unless one of the litigants desires such direction to be made. Of course a judge may indicate to a petitioner that unless he calls oral evidence or applies to cross-examine the deponents of the opposition so as to prove a disputed fact, his petition is likely to fail. The judge may equally indicate to a respondent that unless he calls oral evidence or applies to cross-examine the petitioner’s deponents for the purposes of disproving an allegation made by the petitioner, then the petitioner is likely to succeed. At the end of the day the judge must decide the petition on the evidence before him. If allegations are made in affidavits by the petitioner and those allegations are credibly denied by the respondent’s affidavits, then in the absence of oral evidence or cross-examination, the judge must ignore the disputed allegations. The judge must then decide the fate of the petition by consideration of the undisputed facts.

Judges:

Lord Templeman

Citations:

[1987] 1 WLR 413, [1987] BCLC 472

Cited by:

Cited – Re Haden Bill Electrical Ltd 1995
The petitioner had had in practice control of the company as chairman and though he owned only 25% of the shares. His own company loaned andpound;200,000 to the company as working capital. He complained that he had been removed as a director.
Mentioned – In the Matter of Pectel Limited; O’Neill; O’Neill v Phillips; Phillips and Pectel Limited CA 1-May-1997
The petitioners sought either the purchase of their shares, or the winding up of the company alleging unfair prejudice in the management of the company. The defendants argued that what was complained of did not fall within section 459 since it was . .
Lists of cited by and citing cases may be incomplete.

Company, Commonwealth, Evidence, Litigation Practice

Updated: 15 May 2022; Ref: scu.264074