Category: Commonwealth

Williams v Spautz; 27 Jul 1992

References: 61 A Crim R 431, (1992) 66 ALJR 585, 107 ALR 635, (1992) 174 CLR 509, [1992] HCA 34
Links: Austlii
Coram: Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ
(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.’
This case is cited by:

  • Cited – Hayes -v- Willoughby SC (Bailii, [2013] UKSC 17, Bailii Summary, [2013] 2 All ER 405, [2013] WLR(D) 110, [2013] 2 Cr App R 11, [2013] 1 WLR 935, [2013] EMLR 19, WLRD, UKSC 2012/0010, SC Summary, SC)
    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 . .

Pushpanathan v Canada (Minister of Citizenship and Immigration); 3 Sep 2002

References: [2002] FCJ No 1207, 2002 FCT 867
Links: UNCHR
Coram: Blais J
FCC (Federal Court of Canada – Trial Division) – Application by Pushpanathan for judicial review of a decision of the Convention Refugee Determination Division that he was not a Convention refugee. Pushpanathan was a Tamil citizen of Sri Lanka. He alleged that he was persecuted on the basis of his political opinions and was detained after participating in a political demonstration. While in Canada, Pushpanathan was convicted of conspiracy to traffic heroine along with five other Tamils and served over two years in a federal penitentiary. At his first hearing, the Refugee Division found that the conviction excluded him from refugee status because it was contrary to the purposes and principles of the United Nations. On appeal, the court ordered a new hearing. At the second hearing, the Refugee Division found that Pushpanathan was excluded from refugee protection on the basis of his involvement in crimes against humanity and terrorist activities associated with the Liberation Tigers of Tamil Eelam.
HELD: Application dismissed. The standard of review was less than a balance of probabilities. The Refugee Division correctly concluded that the Liberation Tigers was a terrorist organization. Through the trafficking of narcotics, Pushpanathan was complicit in supporting the Liberation Tigers and demonstrated a personal knowing participation and common purpose with the Tigers.
This case is cited by:

  • Cited – Al-Sirri -v- Secretary of State for The Home Department SC (Bailii, [2012] UKSC 54, [2012] 3 WLR 1263, [2012] WLR(D) 333, Bailii Summary, UKSC 2009/0036, SC Summary, SC, [2013] 1 AC 745, [2013] 1 All ER 1267)
    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 . .

Pharmacy Care Systems Limited v The Attorney General; 16 Aug 2004

References: [2004] NZCA 187
Links: NZLII
Coram: McGrath J, Hammond J, O’Regan J
(Court of Appeal of New Zealand) The claimant had settled a dispute with a Health Authority which alleged it had overclaimed for pharmacy supplies. It now claimed that the settlement should be set aside as having been entered into under duress.
This case cites:

  • Cited – Heffer and Another -v- Tiffin Green (A Firm) CA (Times 28-Dec-98)
    The plaintiff had sued the defendant accountants for negligently understating their business profits by inflating the figure for creditors. As a result, further tax had to be paid. The plaintiffs claimed the penalties and interest on tax paid . .
  • Cited – Kapur -v- J W Francis and Co CA (Bailii, [1999] EWCA Civ 1430)
    Notwithstanding a finding by a High Court Judge that Mr Kapur ‘had shaded the truth’, and ‘lacked frankness in his evidence’, the Court set aside a credibility finding on the basis that not only was there a lack of reasoning as to why the Judge . .

University of Wollongong v Merwally; 22 Nov 1984

References: (1984) 158 CLR 447
Links: Austlii
Coram: Deane J
(High Court of Australia) Deane J said: ‘A parliament may legislate that, for the purposes of the law which it controls, past facts or past laws are to be deemed and treated as having been different to what they were. It cannot however objectively expunge the past or alter the facts of history.’
This case is cited by:

  • Cited – Kleinwort Benson Ltd -v- Lincoln City Council etc HL (Gazette 18-Nov-98, Gazette 10-Feb-99, Times 30-Oct-98, House of Lords, Bailii, [1998] UKHL 38, [1999] 2 AC 349, [1998] 4 All ER 513, [1998] 3 WLR 1095, [1998] Lloyds Rep Bank 387)
    Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap agreements were . .
  • Cited – Hazell -v- Hammersmith and Fulham London Borough Council HL ([1992] 2 AC 1, [1991] 2 WLR 372, [1991] 1 All ER 545)
    The authority entered into interest rate swap deals to protect itself against adverse money market movements. They began to lose substantial amounts when interest rates rose, and the district auditor sought a declaration that the contracts were . .

Re Doran Constructions Pty Ltd (in liq); 27 Mar 2002

References: [2002] NSWSC 215, 168 FLR 116, (2002) 194 ALR 101, 20 ACLC 909
Links: Austlii
Coram: Campbell J
Austlii (Supreme Court of New South Wales) CORPORATIONS – winding up – liquidator’s examination – circumstances in which liquidator entitled to ask questions relating to legal advice given to company in liquidation – EVIDENCE – liquidator’s examinations – whether evidence given at is governed by Evidence Act 1995 (NSW) – EVIDENCE – legal professional privilege – circumstances in which joint retainer of solicitor exists – EVIDENCE – procedure to adopt when deciding whether legal professional privilege does not exist – EVIDENCE – waiver of client legal privilege – disclosure of substance of advice – disclosure made knowingly and voluntarily – disclosure by agent or employee authorised to make it – disclosure made under compulsion of law
This case is cited by:

Regina v NS; 20 Dec 2012

References: [2012] 3 SCR 726, 2012 SCC 72
Links: Canlii
Coram: McLachlin CJ and LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell JJ
Canlii Charter of Rights – Freedom of religion – Right to fair hearing – Right to make full answer and defence – Muslim witness at preliminary hearing in sexual assault trial wanting to testify with her face covered by niqab – Whether requiring witness to remove the niqab while testifying would interfere with her religious freedom -Whether permitting her to wear niqab while testifying would create a serious risk to trial fairness – Whether both rights could be accommodated to avoid conflict between them – If not, whether salutary effects of requiring the witness to remove niqab outweigh deleterious effects – Canadian Charter of Rights and Freedoms, ss. 2(a), 7, 11(d).
Criminal law – Evidence – Cross-examination – Muslim witness at preliminary hearing in sexual assault trial wanting to testify with her face covered by niqab – Whether permitting her to wear niqab while testifying would create a serious risk to trial fairness.

P V Narashimo Rao v State; 17 Apr 1998

References: [1998] INSC 229
Links: LII of India
(Supreme Court of India) Members of Parliament were protected by privilege from prosecution for bribery in respect of voting in parliamentary proceedings.
This case is cited by:

  • Cited – Chaytor and Others, Regina -v- SC (Bailii, [2010] UKSC 52, Bailli Summary, [2010] WLR (D) 311, WLRD, UKSC 2010/0195, SC Summary, SC, [2011] 1 Cr App R 22, [2010] 3 WLR 1707, [2011] 1 All ER 805)
    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 . .

Lewis v British Columbia; 11 Dec 1997

References: [1997] 3 SCR 1145, 43 BCLR (3d) 154, 1997 CanLII 304 (SCC), 153 DLR (4th) 594, [1998] 5 WWR 732
Links: Canlii, Canlii
Coram: Sopinka, Cory, McLachlin, Iacobucci and Major JJ
(Supreme Court of Canada) Torts – Negligence – Highways – Crown liability – Provincial ministry engaging independent contractor to remove rocks from cliff face – Contractor performing work negligently, leaving rocks protruding from cliff face – Driver fatally injured when one of rocks fell from cliff face and crashed through his windshield – Whether provincial ministry absolved from liability for contractor’s negligence.
Cory J said that a common law duty of care ‘does not usually demand compliance with a specific obligation. It is only when an act is undertaken by a party that a general duty arises to perform the act with reasonable care.’
This case is cited by:

  • Cited – Woodland -v- Essex County Council SC (Bailii, [2013] UKSC 66, WLRD, [2013] 3 WLR 1227, [2013] WLR(D) 403, Bailii Summary, UKSC 2012/0093, SC Summary, SC)
    The claimant had been seriously injured in an accident during a swimming lesson. She sought to claim against the local authority, and now appealed against a finding that it was not responsible, having contracted out the provision of swimming . .

Kondis v State Transport Authority; 16 Oct 1984

References: [1984] HCA 61, (1984) 154 CLR 672, (1984) 55 ALR 225, (1984) 58 ALJR 531, (1984) Aust Torts Reports 80-311
Links: Austlii
Coram: Mason J
(High Court of Australia) Mason J discussed the concept of the personal duty which Lord Wright expounded in Wilson and said that it made it impossible to draw a convincing distinction between the delegation of performance of the employer’s duty to an employee and delegation to an independent contractor. As Mason J said: ‘On the hypothesis that the duty is personal or incapable of delegation, the employer is liable for its negligent performance, whether the performance be that of an employee or that of an independent contractor’ and as to the existence of a non-delegable duty: ‘when we look to the classes of case in which the existence of a non-delegable duty has been recognised, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed . . The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care. If the invitor be subject to a special duty, it is because he assumes a particular responsibility in relation to the safety of his premises and the safety of his invitee by inviting him to enter them . . In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised.’
This case cites:

  • Explained – Wilsons and Clyde Coal Co Ltd -v- English HL ([1938] AC 57, Bailii, [1937] UKHL 2)
    The employer had entrusted the task of organising a safe system of work to an employee as a result of whose negligence another employee was injured. The employer could not have been held liable for its own negligence, since it had taken all . .

This case is cited by:

  • Cited – Farraj and Another -v- King’s Healthcare NHS Trust (KCH) and Another CA (Bailii, [2009] EWCA Civ 1203, (2010) 11 BMLR 131, [2010] PIQR P7, [2010] Med LR 1)
    The claimant parents each carried a gene making any child they bore liable to suffer a serious condition. On a pregnancy the mother’s blood was sent for testing to the defendants who sent it on to the second defendants. The condition was missed, . .
  • Cited – Woodland -v- The Swimming Teachers’ Association and Others QBD (Bailii, [2011] EWHC 2631 (QB), [2012] PIQR P3, [2012] ELR 76)
    The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .
  • Cited – Woodland -v- Essex County Council CA (Bailii, [2012] EWCA Civ 239, [2013] 3 WLR 853, [2012] ELR 327, [2012] Med LR 419, [2012] PIQR P12, [2012] BLGR 879)
    The claimant had been injured in a swimming pool during a lesson. The lesson was conducted by outside independent contractors. The claimant appealed against a finding that his argument that they had a non-delegable duty of care was bound to fail. . .

Fitzgerald v Hill; 16 Sep 2008

References: (2008) 51 MVR 55, [2008] QCA 283
Links: Austlii
Coram: McMurdo P, Holmes JA and Mackenzie AJA
(Supreme Court of Queensland – Court of Appeal) TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – OTHER CASES – plaintiff child was a member of a tae kwon do academy in Townsville – class included children and adults under control of instructor – instructor took class to nearby beach to train – class ran along the side of the road in bare feet at dusk – plaintiff child hit by car while crossing road – sixth defendant was owner-operator of tae kwon do academy – whether the sixth defendant owed the plaintiff a non-delegable duty of care
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – DEFENCE AND COUNTERCLAIM – plaintiff pleaded in statement of claim that the sixth defendant was the owner-operator of the tae kwon do academy – sixth defendant admitted that paragraph of the statement of claim in his defence – sixth defendant was refused leave to withdraw that admission – sixth defendant gave evidence at trial that other persons had elements of control over the academy – other evidence led at trial supported admission – whether trial judge could act upon admission
APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – sixth defendant made admission in pleadings that he was the owner-operator of the tae kwon do academy that the plaintiff attended – sixth defendant’s application to withdraw admission refused – sixth defendant did not lodge appeal against decision until after final judgment was delivered following the trial – whether sixth defendant should be granted an extension of time to appeal against interlocutory decision – appropriate time to appeal interlocutory decision
This case is cited by:

  • Cited – Woodland -v- The Swimming Teachers’ Association and Others QBD (Bailii, [2011] EWHC 2631 (QB), [2012] PIQR P3, [2012] ELR 76)
    The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .

Ferrier v Stewart; 24 Jun 1912

References: [1912] 15 CLR 32, [1912] HCA 47
Links: Austlii
Coram: Isaacs J
High Court of Australia – The plaintiffs were the surviving members of a firm, owed money by the defendant’s husband confirmed promissory notes. The firm extend his credit against new promissory notes, provided that they were indorsed by the defendant also so as to make her liable on the notes. This she agreed to do. In order to effect a contract between herself and the firm, the notes had formally to be indorsed by the firm to her before she put her indorsement on them. In fact, the notes were given to her, for her indorsement, before the firm’s indorsement appeared on them and she placed her indorsement on them as if they had already been indorsed to her. The notes were thereafter indorsed by the firm, so that on their face they appeared to have been indorsed in the correct chronological sequence, contrary to the facts as both parties knew them to be. The defendant subsequently refused to pay the bills on the ground that they had not been indorsed to her at the time of her signature.
Held: This defence failed. The parties had adopted a conventional basis for the transaction. They impliedly agreed that, when the promissory note should be completed by other indorsements, it should be assumed to have been issued and indorsed by the parties in due order. From this assumption the indorsee was not permitted to depart, although all parties had been aware of the actual state of affairs.
This case is cited by:

  • Cited – Prime Sight Ltd -v- Lavarello PC ([2013] WLR (D) 514, Bailii, [2013] UKPC 22, WLRD, [2014] 2 WLR 84, [2013] 4 All ER 659, [2014] 1 AC 436)
    (Gibraltar) Parties to a contract for the sale of land including the appellant company declared a purchase price which both knew to be false. Faced with insolvency proceedings, the appellant sought to challenge a claim for the full amount.

Thompson v Australian Capital Television Pty Ltd; 10 Dec 1996

References: (1996) 141 ALR 1, (1996) 186 CLR 574, (1996) 71 ALJR 131, [1997] Aust Torts Reports 81-412, (1996) 20 Leg Rep 24
Links: Austlii
Coram: Dawson, Toohey, Gaudron, Gummow JJ
High Court of Australia – Torts – Joint tortfeasors – Release – Effect of release of one joint tortfeasor on other joint tortfeasors – Effect on common law of s 11 of the Law Reform (Miscellaneous Provisions) Act 1955 (ACT) – Whether cause of action against joint tortfeasors one and indivisible.
Defamation – Defences – Innocent dissemination – Whether available to television station which retransmits unchanged to different area a program produced by another – Whether television station a subordinate publisher.

Grundt v Great Boulder Proprietary Gold Mines Limited; 8 Oct 1937

References: (1937) 59 CLR 641, [1937] HCA 58
Links: Austlii
Coram: Dixon J
(High Court of Australia) Parties to a transaction may choose to enter into it on the basis that certain facts are to be treated as correct as between themselves for the purpose of the transaction, although both know that they are contrary to the true state of affairs, in which case the necessary convention for an estoppel will be established.
Dixon J said: ‘The justice of an estoppel is not established by the fact in itself that a state of affairs has been assumed as the basis of action or inaction and that a departure from the assumption would turn the action or inaction into a detrimental change of position. It depends also on the manner in which the assumption has been occasioned or induced. Before anyone can be estopped, he must have played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it. But the law does not leave such a question of fairness or justice at large. It defines with more or less completeness the kinds of participation in the making or acceptance of the assumption that will suffice to preclude the party if the other requirements for an estoppel are satisfied.’
and ‘It is important to notice that belief in the correctness of the facts or state of affairs assumed is not always necessary. Parties may adopt as the conventional basis of a transaction between them an assumption which they know to be contrary to the actual state of affairs. . . Parties to a deed sometimes deliberately set out an hypothetical state of affairs as the basis of their covenance in order to create a mutual estoppel.’
Latham CJ said: ‘The line between estoppel, which precludes a person from proving and relying upon a particular fact, and waiver which involves an abandonment of a right by acting in a manner inconsistent with the continued existence of the right, is not always clearly drawn.’
This case is cited by:

  • Cited – Prime Sight Ltd -v- Lavarello PC ([2013] WLR (D) 514, Bailii, [2013] UKPC 22, WLRD, [2014] 2 WLR 84, [2013] 4 All ER 659, [2014] 1 AC 436)
    (Gibraltar) Parties to a contract for the sale of land including the appellant company declared a purchase price which both knew to be false. Faced with insolvency proceedings, the appellant sought to challenge a claim for the full amount.
  • Cited – Central Newbury Car Auctions Limited -v- Unity Finance Limited CA ([1957] 1 QB 371)
    The defendant finance company alleged that the plaintiff car dealer, by its conduct, was estopped from denying the authority of their (rogue) customer to sell the car at issue, because they had permitted the customer, unkown to them, to take . .

R and R Fazzolari Pty Limited v Parramatta City Council etc; 2 Apr 2009

References: [2009] HCA 12
Links: Austlii
Coram: French CJ
(High Court of Australia) French CJ said: ‘Private property rights, although subject to compulsory acquisition by statute, have long been hedged about by the common law with protections. These protections are not absolute but take the form of interpretative approaches where statutes are said to affect such rights . . The attribution by Blackstone, of caution to the legislature in exercising its power over private property, is reflected in what has been called a presumption, in the interpretation of statutes, against an intention to interfere with vested property rights . . The terminology of ‘presumption’ is linked to that of ‘legislative intention’. As a practical matter it means that, where a statute is capable of more than one construction, that construction will be chosen which interferes least with private property rights’
This case is cited by:

John Pfeiffer Pty Limited v Rogerson; HCA 16 Apr 1999

References: [2000] HCA 36, (2000) 203 CLR 503
Links: Austlii
(High Court of Australia) The double actionability rule should be discarded with regard to claims brought in an Australian court in respect of a civil wrong arising out of acts or omissions that occurred wholly within one or more of the law areas of the Commonwealth of Australia.
This case is cited by:

  • Cited – Harding -v- Wealands CA (Bailii, [2004] EWCA Civ 1735, Times 05-Jan-05, [2005] 1 WLR 1539)
    The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
    Held: The general rule in section 11 was not to . .

KLB v British Columbia; 2 Oct 2003

References: [2003] SCC 51, [2003] SCJ No 51, [2003] 2 SCR 403
Links: Canlii
Coram: McLachlin CJ and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ
Canlii (Supreme Court of Canada) Torts – Liability – Intentional torts – Abuse of children by foster parents – Whether government can be held liable for harm children suffered in foster care – Whether government negligent – Whether government vicariously liable for torts of foster parents – Whether government liable for breach of non-delegable duty – Whether government liable for breach of fiduciary duty.
Limitation of actions – Torts – Intentional torts – Abuse of children by foster parents – Whether government can be held liable for harm children suffered in foster care – Whether tort actions barred by Limitation Act – Limitation Act, R.S.B.C. 1996, c. 266, ss. 3(2), 7(1)(a)(i).
Torts – Damages – Intentional torts – Abuse of children by foster parents – Whether government can be held liable for harm children suffered in foster care – Proper basis for assessing damages for child abuse by parent or foster parent.
The court considered the difficulty of setting down a unifying principle of the idea of a non-delegable duty: ‘It may be that there is no single common law concept of non-delegable duty. Instead, the phrase seems to have been used to describe a number of situations in which special, non-delegable duties arise. If this is correct, then rather than seeking to state the doctrine in terms of a single principle, we should look to the different situations in which such duties have been found – an approach consonant with the traditional methods of the common law. In Lewis (Guardian ad litem of) v. British Columbia, 1997 CanLII 304 (SCC), [1997] 3 S.C.R. 1145, at para. 20, Cory J. suggested that these different situations comprise a ‘spectrum of liability’, and that ‘[w]ithin that spectrum there are a variety of legal obligations which may, depending on the circumstances, lead to a principal’s liability for the negligence of an independent contractor.’
This case is cited by:

  • Cited – Woodland -v- The Swimming Teachers’ Association and Others QBD (Bailii, [2011] EWHC 2631 (QB), [2012] PIQR P3, [2012] ELR 76)
    The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .

Burnie Port Authority v General Jones Property Ltd; HCA 1994

References: [1994] 120 ALR 42, (1994) 179 CLR 520
Coram: Mason CJ
(High Court of Australia) The court treated the rule in Rylands v Fletcher as absorbed by the principles of ordinary negligence. The majority were influenced by the difficulties of interpretation and application to which the rule had given rise, the progressive weakening of the rule by judicial decision, by recognition that the law of negligence had been very greatly developed and expanded since Rylands v Fletcher was decided and by a belief that most claimants entitled to succeed under the rule would succeed in a claim for negligence anyway: ‘Where a duty of care arises under the ordinary law of negligence, the standard of care exacted is that which is reasonable in the circumstances. It has been emphasised in many cases that the degree of care under that standard necessarily varies with the risk involved and that the risk involved includes both the magnitude of the risk of an accident happening and the seriousness of the potential damage if an accident should occur . . even where a dangerous substance or dangerous activity of a kind which might attract the rule in Rylands v Fletcher is involved, the standard of care remains ‘that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances’: Adelaide Chemical & Fertiliser Co Ltd v Carlyle [1940] 64CLR514 at page 523. In the case of such substances or activities, however, a reasonably prudent person would exercise a higher degree of care. Indeed, depending upon the magnitude of the danger, the standard of ‘reasonable care’ may involve ‘a degree of diligence so stringent as to amount practically to a guarantee of safety”
This case cites:

  • Explained – Rylands -v- Fletcher HL ((1868) LR 3 HL 330, Bailii, [1868] UKHL 1)
    The defendant had constructed a reservoir to supply water to his mill. Water escaped into nearby disused mineshafts, and in turn flooded the plaintiff’s mine. The defendant appealed a finding that he was liable in damages.
    Held: The defendant . .

This case is cited by:

  • Cited – Transco plc -v- Stockport Metropolitan Borough Council HL (House of Lords, [2003] UKHL 61, Bailii, Times 20-Nov-03, [2004] 1 ALL ER 589, 91 Con LR 28, [2004] 2 AC 1, [2004] Env LR 24, [2004] 1 P & CR DG12, [2003] 3 WLR 1467, [2003] 48 EGCS 127, [2003] NPC 143)
    The claimant laid a large gas main through an embankment. A large water supply pipe nearby broke, and very substantial volumes of water escaped, causing the embankment to slip, and the gas main to fracture.
    Held: The rule in Rylands v Fletcher . .
  • Cited – LMS International Ltd and others -v- Styrene Packaging and Insulation Ltd and others TCC (Bailii, [2005] EWHC 2065 (TCC))
    The claimants sought damages after their premises were destroyed when a fire started in the defendants neighbouring premises which contained substantial volumes of styrofoam. They alleged this was an unnatural use of the land.
    Held: To . .
  • Cited – Stannard (T/A Wyvern Tyres) -v- Gore CA (Bailii, [2012] EWCA Civ 1248, [2013] Env LR 10, [2012] WLR(D) 266, [2012] 42 EG 133, [2013] 1 All ER 694)
    The defendant, now appellant, ran a business involving the storage of tyres. The claimant neighbour’s own business next door was severely damaged in a fire of the tyres escaping onto his property. The court had found him liable in strict liability . .

Breavington v Godleman; 18 Aug 1988

References: [1988] HCA 40, (1988) 169 CLR 41, (1988) 80 ALR 362, (1988) 62 ALJR 447, (1988) 7 MVR 289
Links: Austlii
Coram: Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey, Gaudron JJ
Austlii (High Court of Australia) – Private International Law – Tort – Negligence – Act committed in Territory – Personal injury – Territory statute imposing limit on amount of damages – Action in State court – No limit on amount of damages under State law – Choice of law – Whether law of place of tortious act or of forum – The Constitution (63 and 64 Vict. c. 12), ss. 118, 122 – Motor Accidents (Compensation) Act 1979 (N.T.), ss. 4,5 – State and Territorial Laws and Records Recognition Act 1901 (Cth), s. 18.
Federal Jurisdiction – Conflict of laws – Full faith and credit – Whether State court required to give full faith and credit to Territory statute – Whether law of Territory a law of the Commonwealth – Inconsistency – The Constitution (63 and 64 Vict. c. 12), ss. 109, 118 – State and Territorial Laws and Recognition Act 1901 (Cth), s. 18.
Federal Jurisdiction – Action in State court against Commonwealth – Submission to jurisdiction – Whether federal jurisdiction – Whether State choice of law rules apply – The Constitution (63 and 64 Vict. c. 12), ss. 75(iii), 78 – Judiciary Act 1903 (Cth), ss. 39(2), 56, 64, 79.
This case is cited by:

  • Cited – Roerig -v- Valiant Trawlers Ltd CA ([2002] All ER (D) 234, Bailii, [2002] EWCA Civ 21, [2002] 1 WLR 2304)
    The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
  • Cited – Roerig -v- Valiant Trawlers Ltd CA ([2002] All ER (D) 234, Bailii, [2002] EWCA Civ 21, [2002] 1 WLR 2304)
    The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .

Radio 2UE Sydney Pty Ltd v Chesterton; 17 Apr 2008

References: [2008] NSWCA 66
Links: Austlii
Coram: Spigelman CJ Hodgson JA McColl JA
Austlii (Supreme Court of New South Wales – Court of Appeal) DEFAMATION – nature of- actual disparagement of the plaintiff’s reputation – reputation includes general character and standing and trade, business or professional reputation – DEFAMATION – what is defamatory – requires publication likely to cause ordinary decent folk in the community, taken in general, to think the less of plaintiff – DEFAMATION – nature of injury to business reputation – whether to be determined by reference to whether publication likely to cause ordinary decent folk in the community, taken in general, to think the less of plaintiff – JURY – directions to jury as to standards by which to determine whether an imputation injures plaintiff’s trade, business or professional reputation
This case is cited by:

  • Cited – Dee -v- Telegraph Media Group Ltd QBD (Bailii, [2010] EWHC 924 (QB))
    The newspaper sought summary judgment in its defence of the defamation claim. The article labelled the claimant as the world’s worst professional tennis player. The paper said he had no prospect of succeeding once the second article in the same . .

Stevens v Head; 18 Mar 1993

References: [1993] HCA 19, (1993) 112 ALR 7, [1993] Aust Torts Reports 81-203, (1993) 17 MVR 1, (1993) 67 ALJR 343, [1993] 176 CLR 433
Links: Austlii
Coram: Mason CJ, Brennan, Deane, Dawson, Toohey, Gudron, McHugh JJ
(High Court of Australia) The court considered a claim for damages arising out of a motor accident in New South Wales, where the claim had been brought in the courts of Queensland. The questions arose as to whether or not a provision in the Motor Accidents Act 1988 of New South Wales which limited the amount of damages which could be recovered in respect of non-economic loss was a substantive rule to be applied as part of the lex causae.
Held: In relation to questions of the quantification of damage, anything beyond the ascertainment of the heads of liability is a procedural question, and thus referring to a New South Wales statute: ‘section 79 is plainly a provision which affects the measure of damages but does not touch the heads of liability in respect of which damages might be awarded. It is simply a law relating to the quantification of damages and that, as we have seen, is a matter governed solely by the lex fori.’
Mason CJ: ‘The law relating to damages is partly procedural and partly substantive. According to the traditional application of the substance-procedure distinction, the question whether legislative provisions dealing with awards of damages are substantive or procedural has been approached by asking whether the provisions affect the character of the wrong actionable or go only to the measure of compensation. This approach is consistent with the equation traditionally drawn between matters of procedure and matters relating to remedies.’
This case cites:

  • Cited – Cope -v- Doherty CA ((1858) 2 De G and J 614)
    Turner LJ: ‘An attempt was made on the part of the appellants to bring this case within Don v Lippman and cases of that class, but I think those cases have no bearing upon the point. This is a question of liability, and not of procedure.’ . .

This case is cited by:

  • Approved – Roerig -v- Valiant Trawlers Ltd CA ([2002] All ER (D) 234, Bailii, [2002] EWCA Civ 21, [2002] 1 WLR 2304)
    The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
  • Cited – Harding -v- Wealands CA (Bailii, [2004] EWCA Civ 1735, Times 05-Jan-05, [2005] 1 WLR 1539)
    The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
    Held: The general rule in section 11 was not to . .
  • Cited – Harding -v- Wealands HL (Times 06-Jul-06, Bailii, [2006] UKHL 32, [2006] 3 WLR 83, [2006] 2 CLC 193, [2006] RTR 35, [2006] 4 All ER 1)
    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: . .

Regina v Grant; 17 Jul 2009

References: 2009 SCC 32, [2009] 2 SCR 353, 309 DLR (4th) 1, 245 CCC (3d) 1, 66 CR (6th) 1, 253 OAC 124
Links: Canlii
Coram: McLachlin CJ and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ
Canlii (Supreme Court of Canada) Constitutional law – Charter of Rights – Arbitrary detention – Right to counsel – Encounter between accused and police going from general neighbourhood policing to situation where police effectively took control over accused and attempted to elicit incriminating information – Whether police conduct would cause a reasonable person in accused’s position to conclude that he or she was not free to go and had to comply with police demand – Whether accused arbitrarily detained – Whether accused’s right to counsel infringed – Meaning of ‘detention’ in ss. 9 and 10 of Canadian Charter of Rights and Freedoms.
Constitutional law – Charter of Rights – Enforcement – Exclusion of evidence – Firearm discovered as result of accused’s statements taken in breach of his right against arbitrary detention and right to counsel – Firearm admitted into evidence at trial and accused convicted of five firearms offences – Whether admission of firearm bringing administration of justice into disrepute – Revised framework for determining whether evidence obtained in breach of constitutional rights must be excluded – Canadian Charter of Rights and Freedoms, s. 24(2).
Criminal law – Firearms – Possession of firearm for purposes of weapons trafficking – Whether simple movement of firearm from one place to another without changing hands amounts to weapons trafficking – Meaning of ‘transfer’ of weapon for purposes of ss. 84, 99 and 100 of Criminal Code, R.S.C. 1985, c. C-46.
This case is cited by:

  • Cited – Ambrose -v- Harris, Procurator Fiscal, Oban, etc SC (Bailii, [2011] UKSC 43, Bailii Summary, SC Summary, SC, UKSC 2011/0101, 2011 SLT 1005, [2011] 1 WLR 2435)
    (Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .

British Columbia v Zastowny; 8 Feb 2008

References: [2008] 1 SCR 27, (2008), 290 DLR (4th) 21, [2008] 4 WWR 381, (2008) 76 BCLR (4th) 1
Links: Canlii
Coram: McLachlin CJ and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ
Canlii (Supreme Court of Canada) Damages – Past and future wage loss – Periods of incarceration – Plaintiff seeking damages for injuries suffered as consequence of sexual assaults – Whether plaintiff entitled to compensation for wage loss while he was incarcerated – Whether plaintiff can be compensated for time spent in prison after he became eligible for parole – Whether recovery for past wage loss while incarcerated barred by application of ex turpi causa non oritur actio doctrine or novus actus interveniens doctrine – Whether Court of Appeal erred in reducing award for loss of future earnings.
Canlii In 1988, Z was twice sexually assaulted by a prison official while imprisoned for a break and enter committed to support a crack cocaine addiction. After his release from prison, Z became addicted to heroin and a repeat offender. He was in prison for 12 of the next 15 years. In 2003, Z commenced an action seeking damages for the sexual assaults. A psychologist testified that the assaults caused Z to start using heroin and exacerbated his substance abuse and criminality. Z was awarded general and aggravated damages, the cost of future counselling, and compensation for past and future wage losses. The award for past wage losses included compensation for time spent in prison. The Court of Appeal reduced the award for past wage loss in order to compensate Z only for the time spent in prison after eligibility for parole and it reduced Z’s future wage loss by 30 percent to reflect his high risk of recidivism.
Held: The appeal should be allowed and the cross-appeal should be dismissed.
This case is cited by:

  • Cited – Gray -v- Thames Trains and Others HL (Bailii, [2009] UKHL 33, Times, [2009] PIQR P22, (2009) 108 BMLR 205, [2009] 4 All ER 81, [2009] 3 WLR 167)
    The claimant had been severely injured in a rail crash caused by the defendant’s negligence. Under this condition, the claimant had gone on to kill another person, and he had been detained under section 41. He now sought damages for his loss of . .

Regina v RC; 28 Oct 2005

References: [2005] 3 SCR 99, 2005 SCC 61
Links: Canlii
(Supreme Court of Canada) The court considered the retention of a juvenile first-time offender’s DNA sample on the national data bank. The court upheld the decision by a trial judge who had found, in the light of the principles and objects of youth criminal justice legislation, that the impact of the DNA retention would be grossly disproportionate. In his opinion, Fish J said: ‘Of more concern, however, is the impact of an order on an individual’s informational privacy interests. In R. v. Plant, [1993] 3 SCR 281, at p. 293, the Court found that s. 8 of the Charter protected the ‘biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state’. An individual’s DNA contains the ‘highest level of personal and private information’: S.A.B., at para. 48. Unlike a fingerprint, it is capable of revealing the most intimate details of a person’s biological makeup. . The taking and retention of a DNA sample is not a trivial matter and, absent a compelling public interest, would inherently constitute a grave intrusion on the subject’s right to personal and informational privacy.’
This case is cited by:

  • Cited – Marper -v- United Kingdom; S -v- United Kingdom ECHR (30562/04, Bailii, [2008] ECHR 1581, Times, (2008) 158 NLJ 1755, (2009) 48 EHRR 50, 25 BHRC 557, [2009] Crim LR 355)
    (Grand Chamber hearing) The applicants complained that on being arrested on suspicion, samples of their DNA had been taken, but despite being released without charge, the samples had retained on the Police database.
    Held: (Unanimous) The . .

Domican v The Queen; HCA 1992

References: (1992) 173 CLR 555
Coram: Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ
(Australia) Mason CJ said: ‘A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence, which, if accepted, is sufficient to convict the accused. See R v Bartels (1986) 44 SASR [260] at pp 270-271; cf R v Goode [1970] SASR 69, at p 77. The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence. If a trial judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused. See R v Gaunt [1964] NSWR 864, at p 867. Of course, the other evidence in the case may be so compelling that a court of criminal appeal will conclude that the jury must have convicted on that evidence independently of the identification evidence. In such a case, the inadequacy of or lack of a warning concerning the identification evidence, although amounting to legal error, will not constitute a miscarriage of justice. But unless the Court of Criminal Appeal concludes that the jury must inevitably have convicted the accused independently of the identification evidence, the inadequacy of or lack of a warning concerning that evidence constitutes a miscarriage of justice even though the other evidence made a strong case against the accused.’
This case is cited by:

  • Cited – Queen -v- Beckford and Another PC (Times 30-Jun-93, (1993) 97 Cr App R 409)
    The court rehearsed the Australian cases on the dangers of relying upon identification evidence, the need for proper jury directions, and the dangers of a court of appeal maintaining a conviction where an inadequate direction had been given relying . .
  • Cited – Shand -v- The Queen PC (Times 29-Nov-95, [1996] 1 WLR 67, Bailii, [1995] UKPC 46)
    (Jamaica) The case for the defence was that the identification witnesses were deliberately lying and it was not suggested that they were mistaken, so that the sole line of defence was fabrication. The identification evidence was exceptionally good . .

Clunies-Ross v Commonwealth; 25 Oct 1984

References: [1984] HCA 65, (1984) 155 CLR 193
Links: Austlii
Coram: Gibbs CJ, Mason, Murphy, Wilson(1), Brennan, Deane and Dawson JJ
Austlii (High Court of Australia) Compulsory Acquisition – Land – Acquisition by Commonwealth – Power to acquire land for public purposes – Whether limited to acquisition of land needed or proposed to be used for public purposes – Earlier sale of other land to Commonwealth – Whether implied term of contract of sale that Commonwealth would not compulsorily acquire balance – The Constitution (63 & 64 Vict. c. 12), s. 51 (xxxi) – Lands Acquisition Act 1955 (Cth), ss. 5, 6, 16(1).
The statutory power to acquire land for a public purpose could not be used to ‘advance or achieve some more remote public purpose, however laudable.’
This case is cited by:

El Greco (Australia) Pty Ltd v Mediterranean Shipping Co SA; 10 Aug 2004

References: [2004] FCAFC 202, [2004] 2 Lloyd’s Rep 537
Links: Austilii
Coram: Black, Beaumont, Allsop JJ
(Federal Court of Australia) ADMIRALTY AND MARITIME LAW – carriage of goods by sea – Hague-Visby Rules – Australian COGSA Art 3 Rules 3, 4 and 8 – method for assessing value of cargo – where no ‘commodity exchange price’ or ‘current market price’ – where ‘normal value’ of goods at destination not determined. ADMIRALTY AND MARITIME LAW – limitation of liability – bill of lading – how to treat posters and prints enumerated as ‘pieces’ – whether an enumeration of packages or units – whether contractual limitation applies. STATUTORY INTERPRETATION – construction of Carriage of Goods by Sea Act 1991 (Cth), Art 4 Rule 5(c) – meaning of ‘enumeration of packages or units’ – meaning of ‘as packed’.
This case is cited by:

Regina v Wakely; 7 Jun 1990

References: (1990) 93 ALR 79, (1990) 64 ALJR 321
Links: Austlii
Coram: Mason CJ, Brennan, Deane, Toohey and McHugh JJ
(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.
This case cites:

  • Cited – Regina -v- Daya Kalia CACD ((1974) 60 Cr App R 200)
    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] AC 346)
    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) 69 Cr App R 309)
    It is the duty of the trial judge to control vexatious, unfair, misleading or irrelevant cross-examination. . .

(This list may be incomplete)
This case is cited by:

  • Cited – Regina -v- Shayler CACD ([2003] EWCA Crim 2218, Bailii)
    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 . .

(This list may be incomplete)
Last Update: 29-Feb-16 Ref: 470723

Livesey v New South Wales Bar Association; 20 May 1983

References: (1983) 151 CLR 288, (1983) 47 ALR 45, (1983) 57 ALJR 420
Coram: Mason(1), Murphy(1), Brennan(1), Deane(1) and Dawson(1) JJ.
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 later an applicant for admission to the roll as a barrister, had provided $10,000 as cash surety for S, a defendant in criminal proceedings, who was then granted bail but absconded. The cash surety was duly forfeited. When B applied to be admitted as a barrister, the Admission Board rejected her application on the basis that she knew full well that the $10,000 surety was S’ money and not her own and could not therefore be used as surety. She appealed to the New South Wales Court of Appeal which heard evidence and concluded that B had not told the truth. Her case was that she had been lent the money by a Ms A and that she had been unaware that Ms A had herself obtained the money with the help of Livesey (S’ barrister) who had then transported the cash from Victoria to Sydney and visited S in jail before Ms A supposedly visited Ms B and offered to lend her the money. In circumstances where both Livesey and Ms A ‘well knew where the money had come from’, Moffitt P found it impossible to believe Ms B did not. When a subsequent application was made to disbar Livesey, he found that both Moffitt P and Reynolds JA were members of the tribunal hearing his case. He applied for them to recuse themselves but they refused and he was struck off the roll.
Held: ‘a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and sufficient issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.’
This case cites:

  • Approved – Ex Parte Lewin; In re Ward ([1964] NSWR 446, 80 WN (NSW) 1527)
    (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 . .

This case is cited by:

  • Cited – Otkritie International Investment Management and Others -v- Urumov CA (Bailii, [2014] EWCA Civ 1315)
    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 . .

Barry v Butlin; 22 Jun 1836

References: [1836] UKPC 9, [1838] 2 Moo PCC 480
Links: Bailii
The hearing of a cause in the Prerogative Court is one continuous act, and after a cause has been set down for sentence on the second assignation, it is not competent for either of the litigant parties to interpose an appeal, till sentence has been given on the assignation.
This was a cause originally instituted for proving the last will and testament of Pendock Barry, deceased, promoted by the respondent, the sole executor, against the appellant, the son and only next, of kin of the deceased.
The cause was commenced in the Prerogative Court of Canterbury, on the 13th, May 1833, and various pleas having been put in, and witnesses examined on both sides, was set down for sentence on the 30th May 1835, on the second assignation on the fourth session of Trinity term.
This case is cited by:

  • See Also – Butlin -v- Barry (, Commonlii, [1837] EngR 984, (1837) 1 Curt 614, (1837) 163 ER 215)
    (Prerogative Court) A will being drawn by a solicitor, in which a considerable legacy was given to himself and to the medical man and butler of the deceased, excluding an only son, the presumption of law is strong against the act, and the Court . .
  • See Also – Barry -v- Butlin PC ((1838) 2 Moore’s PCC 480, Commonlii, [1838] EngR 1051, (1838) 1 Curt 637, (1838) 163 ER 223, Commonlii, [1838] EngR 1056, (1838) 2 Moo PC 480, (1838) 12 ER 1089, Commonlii, [1836] EngR 855, (1836) 1 Moo PC 98, (1836) 12 ER 749, Bailii, [1838] UKPC 22)
    The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .

Bank of New Zealand v Greenwood; 14 Dec 1983

References: [1984] 1 NZLR 525
Coram: Hardie Boys J
High Court – New Zealand. The glass roof of a verandah which deflected the sun’s rays so that a dazzling glare was thrown on to neighbouring buildings was held, prima facie, to create a nuisance. Hardie Boys J said: ‘To the extent that this is an appeal to set the public interest ahead of the private interests of the plaintiffs, then I regret that authority requires me to close my ears to it’
This case is cited by:

  • Cited – Hunter and Others -v- Canary Wharf Ltd HL (Gazette 14-May-97, Times 25-Apr-97, Bailii, [1997] UKHL 14, [1997] AC 655, [1997] Fam Law 601, [1997] 2 All ER 426, [1997] 2 FLR 342, [1997] 2 WLR 684, [1997] Env LR 488, [1997] 54 Con LR 12, [1997] 84 BLR 1, [1997] CLC 1045, (1998) 30 HLR 409)
    The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
  • Cited – Coventry and Others -v- Lawrence and Another SC (Bailii, [2014] UKSC 13, [2014] 2 P &CR 2, [2014] 2 All ER 622, [2014] BLR 271, [2014] HLR 21, [2014] Env LR 25, [2014] 1 AC 822, 152 Con LR 1, [2014] 2 WLR 433, [2014] PTSR 384, Bailii Summary, UKSC 2012/0076, SC Summary, SC)
    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 . .

Crampton v Nugawela; 23 Dec 1996

References: [1997] Aust Torts Reports 81-416, (1996) 41 NSWLR 176, [1996] NSWSC 651
Links: Austlii
Coram: Mahoney ACJ, Handley JA, Giles AJA
(Supreme Court of New South Wales) Defamation – Damages – Aggravated and general damages – Economic loss with respect to professional standing – Principles relevant to assessment of damages for defamation – Relationship to damages for serious personal injury
When considering the likelihood of repetition of a libel once published, the court spoke of ‘the grapevine effect’.
This case is cited by:

  • Cited – Cairns -v- Modi CA ([2012] WLR(D) 302, Bailii, [2012] EWCA Civ 1382, WLRD, Gazette)
    Three appeals against the levels of damages awards were heard together, and the court considered the principles to be applied.
    Held: In assessing compensation following a libel, the essential question was how much loss and damage did the . .

Peconic Industrial Development Ltd v Lau Kwok FAI; 27 Feb 2009

References: [2009] HKCFA 16, [2009] 5 HKC 135, [2009] 2 HKLRD 537, (2009) 12 HKCFAR 139
Links: HKLii
Coram: Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Litton NPJ and Lord Hoffmann NPJ
Hong Kong Court of Final Appeal. The limitation period for a claim in dishonest assistance is 6 years. For limitation purposes a distinction is to be made between two kinds of constructive trustees: those who are fiduciaries and those who are non-fiduciaries. The distinction between the two classes was made clear in the judgment of Lord Hoffmann: ‘First, there are persons who, without any express trust, have assumed fiduciary obligations in relation to the trust property; for example as purchaser on behalf of another, trustee de son tort, company director or agent holding the property for a trustee. I shall call them fiduciaries. They are treated in the same way as express trustees and no limitation period applies to their fraudulent breaches of trust. Then there are strangers to the trust who have not assumed any prior fiduciary liability but make themselves liable by dishonest acts of interference. I shall call them non-fiduciaries. They are also called constructive trustees but this, as Ungoed-Thomas J said in Selangor United Rubber Estates Ltd v Cradock (No 3) [1968] 1 WLR 1555, p1582 is a fiction: ‘nothing more than a formula for equitable relief’. They are not constructive trustees within the meaning of the law of limitation.’
This case cites:

  • Cited – Soar -v- Ashwell CA ([1893] 2 QB 390)
    Trustees under a will had entrusted the trust fund to a solicitor for investment. The solicitor exercised all of their administrative and investment powers for them and distributed part of the fund invested to the beneficiaries under the will but . .

This case is cited by:

  • Highly Persuasive – Williams -v- Central Bank of Nigeria QBD (Bailii, [2011] EWHC 876 (QB))
    The claimant had been defrauded by a customer of the defendant bank. He brought a claim against the bank, saying that they knew or ought to have known of the fraudster’s activities, and were liable. The Bank denied that the UK courts had . .
  • Cited – Williams -v- Central Bank of Nigeria SC (Bailii, [2014] UKSC 10, 16 ITELR 740, [2014] WLR(D) 88, [2014] 2 All ER 489, [2014] 2 WLR 355, [2014] WTLR 873, WLRD, Bailii Summary, UKSC 2012/0113, SC Summary, SC)
    The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .

Hoysted v Federal Commissioner of Taxation; 16 Dec 1921

References: (1921) 29 CLR 537, [1921] HCA 56
Links: Austlii
Coram: Knox CJ, Higgins and Starke JJ
High Court of Australia – Higgins J coined the term ‘issue estoppel’.
This case is cited by:

  • Appeal from – Hoystead -v- Commissioner of Taxation PC ([1926] AC 155, [1925] All ER 56, (1926) 42 TLR 207, 67 ER 313)
    Lord Shaw: ‘In the opinion of their Lordships it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another judgment upon a different . .
  • Cited – Virgin Atlantic Airways Ltd -v- Zodiac Seats UK Ltd SC (Bailii, [2013] UKSC 46, [2013] 3 WLR 299, [2014] 1 AC 160, [2013] WLR(D) 265, [2013] RPC 29, [2013] 4 All ER 715, Baili Summary, WLRD, UKSC 2010/0013, SC Summary, SC)
    Virgin Atlantic Airways Ltd sought to recover damages exceeding £49,000,000 for the infringement of a European Patent which did not exist in the form said to have been infringed. The Technical Board of Appeal of the European Patent Office had . .

Martel Building Ltd v Canada; 30 Nov 2000

References: 2000 SCC 60, [2000] 2 SCR 860
Links: Canlii
Coram: McLachlin CJ, Gonthier, Iacobucci, Major, Bastarache, Binnie and Arbour JJ
Canlii Supreme Court of Canada – Torts – Negligence – Economic loss – Whether Canadian law recognizes duty of care on parties in commercial negotiations – Whether tort of negligence extends to damages for pure economic loss arising out of conduct of pre-contractual negotiations.
Torts – Negligence – Economic loss – Whether tender-calling authority owed duty of care to bidders in drafting tender specifications – Whether sphere of recovery for pure economic loss should be extended to cover circumstances surrounding preparation of tender specifications.
Contracts – Tenders – Obligation to treat all bidders fairly – Whether tender-calling authority breached its implied contractual duty to treat all bidders fairly and equally – If so, whether bidder’s loss caused by contractual breach.
The prospect of causing deprivation by economic loss is implicit in the negotiating environment
This case is cited by:

  • Cited – Cramaso Llp -v- Ogilvie-Grant, Earl of Seafield and Others SC (Bailii, [2014] UKSC 9, 2014 SLT 521, [2014] 2 All ER 270, [2014] WLR(D) 64, [2014] 2 WLR 317, WLRD, UKSC 2012/0025, SC Summary, SC)
    The defenders owned a substantial grouse moor in Scotland. There had been difficulties with grouse stocks, and steps taken over years to allow stocks to recover. They had responded to enquiries from one Mr Erskine with misleading figures. Mr Erskine . .

Roxborough v Rothmans of Pall Mall Australia Ltd; 6 Dec 2001

References: (2001) 208 CLR 516
Coram: Gleeson CJ, Gaudron, Gummow, Kirby, Haynes, Callinan JJ
High Court of Australia – Rothmans were licensed to act as wholesalers of tobacco products under a New South Wales statute. They sold products to retailers for a price including licence fees, which were in reality a form of indirect taxation, payable by Rothmans to the New South Wales government. The Act imposing that liability on Rothmans was held by the High Court to be unconstitutional. The retailers then sued Rothmans to recover the amounts which they had paid in respect of the tax which had until then been unlawfully imposed on Rothmans.
The retailers argued unsuccessfully that there was an implied agreement under which they could claim repayment of any unpaid tax. This argument was described in the leading judgment of Gleeson CJ, Gaudron and Hayne JJ, as ‘artificial and unconvincing’. However, the retailers succeeded in restitution.
Gleeson CJ, Gaudron and Hayne JJ, stated that ‘Failure of consideration is not limited to non-performance of a contractual obligation, although it may include that’. They also rejected Rothmans’ argument that the restitution claims failed because there had not been a total failure of consideration, by interpreting the consideration for the total payments made by the retailers as containing severable parts.
Gummow J (concurring), advocated: ‘caution in judicial acceptance of any all-embracing theory of restitutionary rights and remedies founded upon a notion of ‘unjust enrichment’. To the lawyer whose mind has been moulded by civilian influences, the theory may come first, and the source of the theory may be the writing of jurists not the decisions of judges. However, that is not the way in which a system based on case law develops; over time, general principle is derived from judicial decisions upon particular instances, not the other way around.’
After reviewing the authorities Gummow J held that failure of consideration in this area of law may include the collapse of a bargain, which need not be contractual in nature. There had been no failure in the performance by Rothmans of any promise made by them, but there had been a ‘failure of consideration’ in the ‘failure to sustain itself of the state of affairs contemplated as a basis for the payments the appellants seek to recover’.
This case is cited by:

Chamberlains v Lai; 11 Sep 2006

References: [2006] NZSC 70
Links: Nzlii
Coram: Elias CJ
NZLII Supreme Court of New Zealand) [1] Access to the courts for vindication of legal right is part of the rule of law. Immunity from legal suit where there is otherwise a cause of action is exceptional. Immunity may be given by statute, as in New Zealand in respect of personal injuries where other, exclusive, redress is provided. An immunity may attach to status, such as of diplomats or heads of state. All cases of immunity require justification in some public policy sufficient to outweigh the public policy in vindication of legal right.
[2] Public policy is not static. So, for example, the immunities of the Crown have been progressively rolled back in response to changing attitudes as to where the public interest lies. And the wide immunity at common law for states and heads of state has been restricted and modified by modern legislation and judicial decisions, often under the influence of developing international law.
[3] The present appeal raises the question whether public policy justifies retention of a limited common law immunity for legal practitioners from claims by their clients for professional negligence. In principle, all who undertake to give skilled advice are under a duty to use reasonable care and skill. An immunity which shields legal practitioners from liability for breach of that duty is anomalous. No other professional group is immune from liability for breach of duties of care they owe to those they advise, treat or represent.
[4] The existing immunity, which attaches to court representation and work ‘intimately connected’ with it, was not clearly established as a matter of New Zealand law until the 1973 Court of Appeal decision in Rees v Sinclair. Rees v Sinclair applied the 1967 decision of the House of Lords in Rondel v Worsley. The immunity recognised in Rondel v Worsley was also adopted in the same form in Australia. No such sweeping immunity is known in Canada or in the United States federal jurisdiction.
[5] Rondel v Worsley has been controversial. Eleven years after it was decided, Lord Diplock in Saif Ali v Sydney Mitchell & Co expressed regret that the argument in that case had not extended to:
. . a more radical submission that the immunity of the advocate, whether barrister or solicitor, for liability for negligence even for what he says or does in court ought no longer to be upheld.
This case is cited by:

  • Cited – Jones -v- Kaney SC (135 Con LR 1, [2011] 2 WLR 823, [2011] BLR 283, [2011] 2 AC 398, [2011] 14 EG 95, [2011] 2 All ER 671, Bailii, [2011] UKSC 13, Bailii Summary, SC Summary, SC, UKSC 2010/0034)
    An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
    Held: The . .

Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh; 7 Apr 1995

References: (1995) 128 ALR 353, [1995] HCA 20, (1995) 69 ALJR 423, (1995) 183 CLR 273
Links: Austlii
Coram: Deane, Toohey, Gaudron, McHugh JJ
Austlii (High Court of Australia) International Law – Treaties – Convention ratified by Australia but not implemented by statute – Status in domestic law – Whether giving rise to legitimate expectations.
Immigration – Application for permanent entry – Applicant – Married man with children in Australia – Policy requirement that applicants be of good character – Applicant convicted and imprisoned before application dealt with – Application refused because of conviction – Convention requiring governmental actions concerning children to give primary consideration to best interests of child – Convention ratified by Australia but not incorporated by statute in Australian domestic law -Whether capable of giving rise to legitimate expectation that application would be dealt with in accordance with Convention – Convention on Rights of Child, Art 3 – Migration Act 1958 (Cth), ss 6(2), 6A(1), 16(1)(c).
This case is cited by:

  • Cited – ZH (Tanzania) -v- Secretary of State for The Home Department SC ([2011] 1 FCR 221, [2011] 2 WLR 148, Bailii, [2011] UKSC 4, Bailii Summ, UKSC 2010/0002, SC, SC Summary, [2011] Fam Law 468, [2011] 2 AC 166)
    The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .

D’Orta-Ekenaike v Victoria Legal Aid; 10 Mar 2005

References: [2005] HCA 12, (2005) 223 CLR 1, (2005) 214 ALR 92, (2005) 79 ALJR 755
Links: Austlii
(High Court of Australia) Legal practitioners – Negligence – Immunity from suit – Applicant sought legal assistance from first respondent, a statutory corporation deemed to be a firm of solicitors, in defence of criminal prosecution – First respondent retained second respondent, a barrister, to appear for applicant at committal proceedings – Applicant pleaded guilty at committal proceedings but subsequently pleaded not guilty and stood trial – Evidence of guilty plea led at first trial – Applicant convicted but verdict quashed on appeal and new trial ordered – Applicant acquitted on retrial – Respondents alleged to have been negligent in advising applicant to plead guilty at committal – Advice allegedly tendered at a conference two days prior to committal proceeding and at a further conference on day of committal proceeding – Whether advocate’s immunity available to respondents – Whether advocate’s immunity applied in respect of advice allegedly given in conference.
Legal practitioners – Immunity from suit – Legal Profession Practice Act 1958 (Vic) – Barristers liable for negligence to same extent as solicitor as at 1891 – Extent of solicitor’s liability for negligence in 1891.
Courts – Judicial process – Judicial process as an aspect of government – Nature of the judicial process – The need for finality of judicial determination – Whether advocate’s immunity necessary to ensure finality of judicial process.
Courts – Abuse of process – Whether rules about abuse of process provide sufficient satisfaction of the finality principle – Nature of client’s complaint – Whether distinction exists between civil and criminal proceedings – Whether distinction to be drawn between challenging the final outcome of litigation and challenging an intermediate outcome.
High Court – Whether Giannarelli v Wraith (1988) 165 CLR 543 should be reconsidered – Relevance of statutory changes since Giannarelli v Wraith – Relevance of developments in common law in England and Wales – Relevance of experience in other jurisdictions.
Courts – Practice and procedure – Summary determination of action without trial – Whether claim revealed an arguable cause of action.
This case is cited by:

  • Cited – Jones -v- Kaney SC (135 Con LR 1, [2011] 2 WLR 823, [2011] BLR 283, [2011] 2 AC 398, [2011] 14 EG 95, [2011] 2 All ER 671, Bailii, [2011] UKSC 13, Bailii Summary, SC Summary, SC, UKSC 2010/0034)
    An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
    Held: The . .

Macquarie Generation v Peabody Resources Ltd; 14 Dec 2000

References: [2000] NSWCA 361, [2001] Aust Contract Reports 90-121
Coram: Beazley JA, Mason P
Beazley JA concluded: ‘Thus, it is not relevant for the Court to determine whether, if the true position had been known, the representee would or would not have altered his position in relation to the contract. ‘It is enough if a full and exact revelation of the material facts might have prevented him from doing so.” and ‘[r]escission for misrepresentation in relation to a carefully negotiated written contract requires close examination of the alleged misrepresentation and its impact upon the representee at the time of contract’.
Mason P noted that: ‘[r]escission for misrepresentation in relation to a carefully negotiated written contract requires close examination of the alleged misrepresentation and its impact upon the representee at the time of contract’
This case is cited by:

  • Cited – Cramaso Llp -v- Ogilvie-Grant, Earl of Seafield and Others SC (Bailii, [2014] UKSC 9, 2014 SLT 521, [2014] 2 All ER 270, [2014] WLR(D) 64, [2014] 2 WLR 317, WLRD, UKSC 2012/0025, SC Summary, SC)
    The defenders owned a substantial grouse moor in Scotland. There had been difficulties with grouse stocks, and steps taken over years to allow stocks to recover. They had responded to enquiries from one Mr Erskine with misleading figures. Mr Erskine . .

Neilson v Overseas Projects Corporation of Victoria Ltd; 29 Sep 2005

References: (2005) 223 CLR 331, [2005] HCA 54, (2005) 221 ALR 213, (2005) 79 ALJR 1736
Links: Austlii
Coram: Gleeson CJ, McHuh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
(High Court of Australia) Private international law – Foreign tort – Choice of law – Appellant was injured in the People’s Republic of China – Scope of the lex loci delicti – Where the lex loci delicti treats another connecting factor, such as nationality or domicile, as determining the applicable law – Whether Article 146 of the General Principles of Civil Law of the People’s Republic of China was a relevant part of the lex loci delicti – Whether Article 146 of the General Principles of Civil Law of the People’s Republic of China made the law of the parties’ domicile the applicable law – Whether the doctrine of renvoi applies to international tort claims – Infinite regression of reference.
Evidence – Foreign law – Principles governing admission of evidence of foreign law – Where there is a deficiency of evidence – Whether there is a presumption that foreign law is the same as the law of the forum.
Words and phrases – ‘lex loci delicti’, ‘choice of law’, ‘renvoi’, ‘single renvoi’, ‘double renvoi’, ‘infinite regression of reference’.
This case is cited by:

  • Cited – Iran -v- Berend QBD (Bailii, [2007] EWHC 132 (QB))
    The Republic of Iran sought the return of a fragment of ancient Achaemenid relief in the possession of the defendant, saying that it was part of an ancient monument. The defendant said that she had bought it properly at an auction in Paris. The . .

Zyk v Zyk; 15 Dec 1995

References: [1995] FamCA 135
Links: Austlii
Coram: Nicholson CJ, Fogarty and Baker JJ
Austlii (Family Court of Australia) Property Settlement – Global or asset by asset approach – Treatment of lottery winnings The wife appealed against orders for the alteration of the property interests. The husband was aged 69 at trial, and the wife aged 63. The period of cohabitation was approximately 8 years.
The wife owned assets of a substantially higher value than did the husband at the date of marriage and some of the assets of each were retained at separation.
About two years after the marriage the husband had a lottery win of approximately $95,000. He had been involved in a syndicate prior to the marriage, and the wife had had no involvement in the lottery purchases but the winnings were used by the parties for joint purposes. During most of the marriage both parties worked and throughout shared income and expenses. His Honour treated the winnings as a contribution by the husband. Otherwise he treated their contributions as equal.
Taking that win into account as a contribution by the husband, his Honour assessed the parties’ contributions arising from their initial contribution at 72/28 in the wife’s favour, made a 2% adjustment to the husband for provision the wife had made for her children, a further 3% for contributions during marriage, and 2% for s.75(2) factors, arriving at a 65/35 division of the parties’ assets in the wife’s favour.
This case is cited by:

  • Cited – S -v- AG (Financial Remedy: Lottery Prize) FD (Bailii, [2011] EWHC 2637 (Fam))
    The court considered how to treat a lottery win of £500,000 in the context of an ancillary relief application on a divorce.
    Held: The answers in such cases must be fact specific. ‘In the application of the sharing principle (as opposed . .

Crookes v Wikimedia Foundation Inc; 27 Oct 2008

References: 2008 BCSC 1424
Links: Canlii
Coram: Kelleher J
(Supreme Court of British Columbia) The claimant sought damages in defamation from an article published by the defendant on the internet. The court was asked whether the contents of an article to which a hyper-link was provided should be taken into account in identifying the claimant.
Held: Whilst hyperlinking could sometimes found an action for defamation, in this case, the publcation of the link did not amount to publcation in defamation.
This case is cited by:

  • Cited – Islam Expo Ltd -v- The Spectator (1828) Ltd and Another QBD (Bailii, [2010] EWHC 2011 (QB))
    The claimant sought damages in defamation against the defendant in respect of its web-site. It said that the use of hyperlinks to third party sites was sufficient to identify the claimant and associate it with the allegations made.
    Held: The . .

Proulx v Quebec (Attorney General); 18 Oct 2001

References: 2001 SCC 66, [2001] 3 SCR 9
Links: SCC
Coram: McLachlin, Beverley; L’Heureux-Dube, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
SCC Supreme Court of Canada – Civil liability – Malicious prosecution – Regime of immunity and extra-contractual civil liability applicable in Quebec law to Attorney General of Quebec and prosecutors — Whether Nelles applies integrally in Quebec — Whether facts alleged against Attorney General and prosecutor meet test set out in Nelles.
This case is cited by:

  • Cited – Williamson -v- The Attorney General of Trinidad and Tobago PC (Bailii, [2014] UKPC 29)
    (Trinidad and Tobago) The claimant had been held after arrest on suspicion of theft. He was held for several months before the case was dismissed, the posecution having made no apparent attempt to further the prosecution. He appealed against refusal . .

RJR-MacDonald Inc v Canada (Attorney General); 21 Sep 1995

References: [1995] 3 SCR 199, 1995 CanLII 64 (SCC), 127 DLR (4th) 1, 100 CCC (3d) 449, 62 CPR (3d) 417, 31 CRR (2d) 189
Links: Canlii
Coram: Lamer CJ and La Forest, L’Heureux-Dube, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ
Supreme Court of Canada – Constitutional law — Division of powers — Charter of Rights — Freedom of expression — Commercial advertising — Cigarette advertising banned — Whether or not legislation validly enacted under criminal law power or under peace, order and good government clause — If so, whether or not Act’s provisions infringing s. 2(b) Charter right to freedom of expression — If so, whether or not infringements justifiable under s. 1 — Canadian Charter of Rights and Freedoms, ss. 1, 2(b) –Constitution Act, 1867, Preamble, s. 91(27) — Tobacco Products Control Act, S.C. 1988, c. 20, ss. 4, 5, 6, 8, 9.
This case is cited by:

  • Cited – Bank Mellat -v- Her Majesty’s Treasury (No 2) SC (Bailii Summary, WLRD, Bailii, [2013] UKSC 39, [2013] Lloyd’s Rep FC 580, [2013] 3 WLR 179, [2013] HRLR 30, [2013] 4 All ER 533, [2013] WLR(D) 244, WLRD, UKSC 2011/0040, SC Sumary, SC)
    The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .

Farrow Mortgage Services Pty Ltd (in Liq) v Webb and others; 5 Jul 1996

References: [1996] 39 NSWLR 601, 14 ACLC 1
Links: Austlii
Coram: Meagher, Sheller JJA, Waddell AJA
Austlii (Court of Appeal of New South Wales) COMPANY LAW – s556 (1) Companies (NSW) Code; s592 (1) Corporations Law; liability of directors for debt of company – legal professional privilege – distinction between joint and common interest privilege – waiver.
This case is cited by:

Jones v Dumbrell; 21 Feb 1968

References: [1981] VR 199, 5 ACLR 417, [1981] VicRp 21
Links: Austii
Coram: Smith J
(Supreme Court of Victoria) Dumbrell had induced shareholders in companies running a business to sell their shares to him. He represented that he would run the business himself. The shareholders had a strong preference to have Dumbrell, rather than an unknown third party, run the business and for that reason sold their shares at an under value. The defendant decided to sell the shares to outsiders rather than run the business himself. The representation was not proved to be false when made.
Held: Smith J said: ‘When a man makes a representation with the object of inducing another to enter into a contract with him, that other will ordinarily understand the word representor, by his conduct in continuing the negotiations in concluding the contract, to be asserting, throughout, that the facts remain as they were initially represented to be. And the representor will ordinarily be well aware that his representation is still operating in this way, or at least will continue to desire that it shall do so. Commonly, therefore, an inducing representation is a ‘continuing’ representation, in reality and not merely by construction of law.’ and ‘I accept, with respect, the statement by Cussen, J. In Dalgety and Co Ltd v Australian Mutual Provident Society [1908] VicLawRp 70; [1908] VLR 481, at p. 506, that ‘the rule is that prima facie (the representation) is to be taken as continuing up till the moment when the contract is completed’. But this, I think, merely lays down a presumption of fact, justified by ordinary human experience, leaving the matter to the court for determination as a question of fact on the whole of the evidence.’
This case is cited by:

  • Cited – Cramaso Llp -v- Ogilvie-Grant, Earl of Seafield and Others SC (Bailii, [2014] UKSC 9, 2014 SLT 521, [2014] 2 All ER 270, [2014] WLR(D) 64, [2014] 2 WLR 317, WLRD, UKSC 2012/0025, SC Summary, SC)
    The defenders owned a substantial grouse moor in Scotland. There had been difficulties with grouse stocks, and steps taken over years to allow stocks to recover. They had responded to enquiries from one Mr Erskine with misleading figures. Mr Erskine . .

Public Works Commissioner v Hills: PC 1906

References: [1906] AC 368
Coram: Lord Dunedin
(Cape of Good Hope) A railway construction contract provided that in the event of a breach by the contractor he should forfeit ‘as and for liquidated damages’ certain percentages retained by the Government of the Cape of Good Hope of money payable for work done as a guarantee fund to answer for defective work and also certain security money deposited with the Government. The amount of that retained money depended on the progress of contracts other than the one in suit.
Held: The clause was a penalty. The principle to be deduced from the Clydebank case was that the criterion of whether a sum was a penalty or damages was to be found in whether the sum in question ‘can or cannot be regarded as a ‘genuine pre-estimate of the creditor’s probable or possible interest in the due performance of the principal obligation.’ The question of whether a sum stipulated is penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged of as at the time of the making of the contract, not as at the time of breach.
The Clydebank case was decided according to ‘the rules of a system of law where contract law was based directly on the civil law and no complications in the matter of pleading had ever been introduced by the separation of common law and equity.’
This case cites:

  • Cited – Clydebank Engineering Co -v- Castaneda HL (Bailii, [1904] UKHL 3, (1904) 12 SLT 498, (1904) 7 F (HL) 77, [1905] AC 6)
    The House considered a contract for the construction by a Scottish shipbuilder of four torpedo boats for the Spanish government. The contract provided that: ‘The penalty for late delivery shall be at the rate of £500 per week for each vessel’. . .
  • Cited – Public Works Commissioner -v- Hills PC ([1906] AC 368)
    (Cape of Good Hope) A railway construction contract provided that in the event of a breach by the contractor he should forfeit ‘as and for liquidated damages’ certain percentages retained by the Government of the Cape of Good Hope of money payable . .

(This list may be incomplete)
This case is cited by:

  • Cited – Public Works Commissioner -v- Hills PC ([1906] AC 368)
    (Cape of Good Hope) A railway construction contract provided that in the event of a breach by the contractor he should forfeit ‘as and for liquidated damages’ certain percentages retained by the Government of the Cape of Good Hope of money payable . .
  • Cited – Dunlop Pneumatic Tyre Company Ltd -v- New Garage and Motor Company Ltd HL ([1915] AC 67, Bailii, [1914] UKHL 1, (1904) 12 SLT 498, (1904) 7 F (HL) 77)
    The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .

(This list may be incomplete)
Last Update: 02-Jan-16 Ref: 440838

Lavigne v Ontario Public Service Employees Union; 27 Jun 1991

References: [1991] 2 SCR 211, 1991 CanLII 68 (SCC)
Links: Canlii
Coram: Wilson, La Forest, L’Heureux-Dube, Sopinka, Gonthier, Cory and McLachlin JJ
Canlii Supreme Court of Canada – Constitutional law – Charter of Rights – Application – Union entering into collective agreement with community college containing mandatory dues check-off clause – Employee objecting to expenditure of union dues on causes unrelated to collective bargaining – Whether Charter applies – Colleges Collective Bargaining Act, R.S.O. 1980, c. 74, s. 53 – Canadian Charter of Rights and Freedoms, s. 32(1).
Constitutional law – Charter of Rights – Freedom of association – Union entering into collective agreement with community college containing mandatory dues check-off clause – Employee objecting to expenditure of union dues on causes unrelated to collective bargaining – Whether s. 2(d) of Canadian Charter of Rights and Freedoms infringed – If so, whether infringement justifiable under s. 1 of Charter – Colleges Collective Bargaining Act, R.S.O. 1980, c. 74, ss. 51, 52, 53.
Constitutional law – Charter of Rights – Freedom of expression – Union entering into collective agreement with community college containing mandatory dues check-off clause – Employee objecting to expenditure of union dues on causes unrelated to collective bargaining – Whether s. 2(b) of Canadian Charter of Rights and Freedoms infringed – If so, whether infringement justifiable under s. 1 of Charter – Colleges Collective Bargaining Act, R.S.O. 1980, c. 74, ss. 51, 52, 53.
Wilson J observed: ‘The Oakes inquiry into ‘rational connection’ between objectives and means to attain them requires nothing more than showing that the legitimate and important goals of the legislature are logically furthered by the means government has chosen to adopt.’
This case is cited by:

  • Cited – Bank Mellat -v- Her Majesty’s Treasury (No 2) SC (Bailii Summary, WLRD, Bailii, [2013] UKSC 39, [2013] Lloyd’s Rep FC 580, [2013] 3 WLR 179, [2013] HRLR 30, [2013] 4 All ER 533, [2013] WLR(D) 244, WLRD, UKSC 2011/0040, SC Sumary, SC)
    The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .

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

References: [1999] ZACC 9, [1999] 4 SA 147
Links: SAFLii
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.’
This case is cited by:

  • Cited – O’Neill -v- Her Majesty’s Advocate No 2 SC (Bailii, [2013] UKSC 36, [2013] 2 Cr App R 34, [2013] HRLR 25, [2013] 1 WLR 1992, 2013 SCL 678, 2013 SLT 888, 2013 GWD 21-410, [2013] WLR(D) 231, 2013 SCCR 401, WLRD, Bailii Summary, UKSC 2012/0149, SC Summary, SC)
    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 . .

Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component; 10 Jul 2009

References: [2009] 2 SCR 295, 309 DLR (4th) 277, 2009 SCC 31, [2009] 8 WWR 385, 272 BCAC 29, 389 NR 98, 93 BCLR (4th) 1, EYB 2009-161351, JE 2009-1320, [2009] SCJ No 31 (QL), 179 ACWS (3d) 98, 192 CRR (2d) 336
Links: Canlii
Coram: McLachlin CJ and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ
Canlii Supreme Court of Canada – Constitutional law – Charter of Rights – Application of Charter – Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles – Actions brought alleging that transit authorities’ policies violated freedom of expression – Whether entities which operate public transit systems ‘government’ within meaning of s. 32 of Canadian Charter of Rights and Freedoms.
Constitutional law – Charter of Rights – Freedom of expression – Advertisements on buses – Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles – Whether advertising policies infringing freedom of expression – If so, whether infringement can be justified – Canadian Charter of Rights and Freedoms, ss. 1, 2(b).
Constitutional law – Charter of Rights – Reasonable limits prescribed by law – Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles – Policies infringing freedom of expression -Whether policies are ‘law’ within meaning of s. 1 of Canadian Charter of Rights and Freedoms.
Constitutional law – Charter of Rights – Remedy – Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles – Policies unjustifiably infringing freedom of expression – Declaration that policies are of ‘no force or effect’ sought – Whether declaration ought to be based on s. 52 of Constitution Act, 1982 or s. 24(1) of Canadian Charter of Rights and Freedoms – Whether policies are ‘law’ within meaning of s. 52 of Constitution Act, 1982.

Regina v Regan; 14 Feb 2002

References: 2002 SCC 12, [2002] 1 SCR 297, 201 NSR (2d) 63, 209 DLR (4th) 41, 161 CCC (3d) 97, 49 CR (5th) 1
Links: Canlii
Coram: McLachlin CJ and L’Heureux-Dube, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
Canlii Supreme Court of Canada – Criminal law – Remedies – Abuse of process – Stay of proceedings – Accused charged with sex-related offences – Police identifying accused as suspect before charges laid – Crown engaging in ‘judge shopping’ and conducting pre-charge interviews of complainants – Trial judge staying some of charges – Court of Appeal overturning stay – Whether conduct of Crown and police amounted to abuse of process – Whether partial stay of proceedings warranted – Whether Court of Appeal entitled to interfere with trial judge’s decision to grant partial stay.
This case is cited by:

  • Cited – Maxwell, Regina -v- SC (Bailii, [2010] UKSC 48, [2011] 2 Cr App Rep 31, [2011] 1 WLR 1837, SC Summary, UKSC 2010/0003, SC)
    The defendant had had his conviction for murder set aside after a finding of gross prosecutorial misconduct by the police. The Court was now asked as to the propriety of the order for a retrial. The police involved in the case had misled the CPS, . .

Wan v Minister for Immigration and Multi-cultural Affairs; 18 May 2001

References: [2001] FCA 568
Links: Austlii
Coram: Branson, North and Stone JJ
(Federal Court of Australia) The law required the Tribunal, in determining whether to confirm the refusal to grant a visa to Mr Wan, to treat the best interests of any child affected by its decision as a primary consideration: ‘[The Tribunal] was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.’
This case is cited by:

  • Cited – ZH (Tanzania) -v- Secretary of State for The Home Department SC ([2011] 1 FCR 221, [2011] 2 WLR 148, Bailii, [2011] UKSC 4, Bailii Summ, UKSC 2010/0002, SC, SC Summary, [2011] Fam Law 468, [2011] 2 AC 166)
    The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .

Alberta v Hutterian Brethren of Wilson Colony; 24 Jul 2009

References: 9 Alta LR (5th) 1, 310 DLR (4th) 193, 2009 SCC 37 (CanLII)
Links: Canlii
Coram: McLachlin CJ and Binnie, LeBel, Deschamps, Fish, Abella and Rothstein J
Canlii Constitutional law – Charter of Rights – Freedom of religion – New regulation requiring photo for all Alberta driver’s licences – Members of Hutterian Brethren sincerely believing that Second Commandment prohibits them from having their photograph willingly taken – Whether regulation infringed freedom of religion – If so, whether infringement justified – Canadian Charter of Rights and Freedoms, ss. 1, 2(a) – Operator Licensing and Vehicle Control Regulation, Alta. Reg. 320/2002, s. 14(1)(b) (am. Alta. Reg. 137/2003, s. 3).
Constitutional law – Charter of Rights – Right to equality – Discrimination based on religion – New regulation requiring photo for all Alberta driver’s licences – Members of Hutterian Brethren sincerely believing that Second Commandment prohibits them from having their photograph willingly taken – Whether regulation infringed right to equality – Canadian Charter of Rights and Freedoms, s. 15 – Operator Licensing and Vehicle Control Regulation, Alta. Reg. 320/2002, s. 14(1)(b) (am. Alta. Reg. 137/2003, s. 3).
This case is cited by:

  • Cited – Bank Mellat -v- Her Majesty’s Treasury (No 2) SC (Bailii Summary, WLRD, Bailii, [2013] UKSC 39, [2013] Lloyd’s Rep FC 580, [2013] 3 WLR 179, [2013] HRLR 30, [2013] 4 All ER 533, [2013] WLR(D) 244, WLRD, UKSC 2011/0040, SC Sumary, SC)
    The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .

Regina v B (CA 459/06); 27 May 2008

References: [2008] NZCA 130, [2009] 1 NZLR 293
Links: Nzlii
Coram: William Young P, Robertson and Baragwanath JJ
(New Zealand Court of Appeal) The court considered directions to be given to jurors as to the use of the internet whilst sitting as jurors.
This case is cited by:

  • Cited – Thompson and Others -v- Regina CACD (Bailii, [2010] EWCA Crim 1623, [2011] 1 WLR 200, [2010] 2 Cr App R 27, [2011] 2 All ER 83)
    Six appeals were brought alleging various forms of irregularity by the jurors.
    Held: Lord Judge said: ‘The verdict must be reached, according to the jury oath in accordance with the evidence. For this purpose each juror brings to the . .

Wyong Shire Council v Shirt; 1 May 1980

References: ,
Links: Austlii
Coram: Stephen, Mason, Murphy, Aickin and Wilson JJ
(High Court of Australia) Mason J: ‘In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not of itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.’
Held: ‘Lying at the heart of this matter, however, is the necessity to ensure, as far as possible, that consumers are not unnecessarily or, through no fault of their own, unknowingly exposed to the risk of injury or other adverse consequences being suffered by reason of their use of products available to them in the marketplace.’ and ‘As a general proposition it appears to me to be obvious that where possible consequences of the contraction of a condition include death, even though the risk of any contraction may be very small, a potential purchaser is, at least, entitled to know of the existence of that risk and to be able to choose whether or not it will be accepted.’
This case is cited by:

  • See Also – McTear -v- Imperial Tobacco Ltd OHCS (Bailii, [2005] ScotCS CSOH_69, Times 14-Jun-05, Scottish CS)
    The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
    Held: The action failed. The plaintiff had not . .

Arquita v Minister for Immigration and Multi-cultural Affairs; 22 Dec 2000

References: [2000] FCA 1889, 106 FCR 46
Links: Austlii
Coram: Weinberg J
Federal Court of Australia – MIGRATION – refugees – application for protection visa – whether serious reasons for considering commission of serious non-political crime outside country of refuge – application of Art 1F(b) of Convention Relating to the Status of Refugees – meaning of ‘serious reasons for considering’.
This case is cited by:

  • Cited – Al-Sirri -v- Secretary of State for The Home Department SC (Bailii, [2012] UKSC 54, [2012] 3 WLR 1263, [2012] WLR(D) 333, Bailii Summary, UKSC 2009/0036, SC Summary, SC, [2013] 1 AC 745, [2013] 1 All ER 1267)
    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 . .

Rice v Miller; 10 Sep 1993

References: [1993] FamCA 87, (1993) FLC 92-415
Links: Austlii
Coram: Ellis, Lindemayer, Bell JJ
(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 presumption in favour of a parent as regards their relationship with a child (such as by spending time or communicating with them) and whether judiciable controversy arises between parents or as regards a parent and a non-parent.
This case cites:

  • Approved – Hodak -v- Newman and Hodak ((1993) 17 Fam LR 1, [1993] FamCA 83, (1993) FLC 92-421, Austlii)
    (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, . .

This case is cited by:

  • Cited – In Re G (A Minor) (Interim Care Order: Residential Assessment); G (Children), In Re (Residence: Same Sex Partner) HL (Bailii, [2006] UKHL 43, Times 27-Jul-06, [2006] 1 WLR 2305, [2006] 1 AC 576, [2006] 1 FLR 601)
    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 . .
  • Cited – Re D (A Child) CA (Bailii, [2014] EWCA Civ 315)
    F appealed against the removal of his parental responsibility for his son. M and F were not married, but F had been named on the birth certificate. He had later been convicted of sexual assaults against two daughters of M by an earlier relationship. . .

Regina v Edwards Books and Art Ltd; 18 Dec 1986

References: [1986] 2 SCR 713, (1986) 35 DLR (4th) 1, 30 CCC (3d) 385, 86 CLLC 14, 55 CR (3d) 193
Links: Canlii
Coram: Dickson CJ
Supreme Court of Canada – the limitation of the protected right must be one that ‘it was reasonable for the legislature to impose’, and that the courts were ‘not called upon to substitute judicial opinions for legislative ones as to the place at which to draw a precise line’.
‘a business corporation cannot possess religious beliefs’. And
‘In interpreting and applying the Charter I believe that the courts must be cautious to ensure that it does not simply become an instrument of better situated individuals to roll back legislation which has as its object the improvement of the condition of less advantaged persons’
legislative drafting is a difficult art and Parliament cannot be held to a standard of perfection.
Statutes: Canadian Charter of Rights and Freedoms to life, liberty and security
This case is cited by:

  • Cited – Bank Mellat -v- Her Majesty’s Treasury (No 2) SC (Bailii Summary, WLRD, Bailii, [2013] UKSC 39, [2013] Lloyd’s Rep FC 580, [2013] 3 WLR 179, [2013] HRLR 30, [2013] 4 All ER 533, [2013] WLR(D) 244, WLRD, UKSC 2011/0040, SC Sumary, SC)
    The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .

Chang v Registrar of Titles; 11 Feb 1976

References: (1976) 137 CLR 177, (1976) 50 ALJR 404, (1976) 8 ALR 285, [1976] HCA 1
Links: Austlii
Coram: Mason J, Jacob J
(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’.
This case is cited by:

  • Cited – Jerome -v- Kelly (Her Majesty’s Inspector of Taxes) HL (House of Lords, [2004] UKHL 25, Bailii, Times 20-May-04, [2004] 21 EGCS 151, [2004] STI 1201, [2004] 2 All ER 835, [2004] 1 WLR 1409, [2004] NPC 75, [2004] WTLR 681, [2004] STC 887, 76 TC 147, [2004] BTC 176)
    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 (Bailii, [2014] UKSC 52, Bailii Summary, [2014] HLR 48, [2015] 1 AC 385, [2014] 3 WLR 1163, [2014] WLR(D) 447, WLRD, Bailii Summary, UKSC 2012/0102, SC, SC Summary)
    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 . .

(This list may be incomplete)
Last Update: 19-Oct-15 Ref: 196888

Tse Wai Chun Paul v Albert Cheng; 13 Nov 2000

References: [2001] EMLR 777, [2000] 3 HKLRD 418, [2000] HKCFA 35
Links: hklii
Coram: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Ribeiro PJ, Sir Denys Roberts NPJ and Lord Nicholls of Birkenhead NPJ
(Court of Final Appeal of Hong Kong) For the purposes of the defence to defamation of fair comment: ‘The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded’ and
‘The purpose for which the defence of fair comment exists is to facilitate freedom of expression by commenting upon matters of public interest. This accords with the constitutional guarantee of freedom of expression. And it is in the public interest that everyone should be free to express his own, honestly held views on such matters, subject always to the safeguards provided by the objective limits mentioned above. These safeguards ensure that defamatory comments can be seen for what they are, namely, comments as distinct from statements of fact. They also ensure that those reading the comments have the material enabling them to make up their own minds on whether they agree or disagree’.
The defence of honest comment is available even if the comment was made with intent to injure, as where a politician seeks to damage his political opponent.
The comment must be on a matter of public interest, recognisable as comment, be based on true or privileged facts, indicate the facts on which the comment is based, and ‘must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views.’
This case cites:

  • Cited – Myerson -v- Smith’s Weekly ((1923) 24 SR (NSW) 20)
    (New South Wales) The court considered the distinction between fact and comment. Ferguson J said: ‘To say that a man’s conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his . .
  • Cited – Gardiner -v- Fairfax ((1942) 42 SR (NSW) 171)
    Complaint was made that the plaintiff had been libelled in the defendant’s book review.
    Held: A publication is defamatory in nature if it ‘is likely to cause ordinary decent folk in the community, taken in general, to think the less of [the . .
  • Cited – London Artists Ltd -v- Littler CA ([1969] 2 QB 375, [1968] 1 WLR 607, Bailii, [1968] EWCA Civ 3, [1969] 2 All ER 193)
    The defence of fair comment on matters of public interest is not to be defined too closely. Lord Denning MR said: ‘Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going . .
  • Cited – Kemsley -v- Foot HL ([1952] AC 345)
    The plaintiff alleged that the headline to an article written by the defendant which criticised the behaviour of the Beaverbrook Press, and which read ‘Lower than Hemsley’ was defamatory. The defendant pleaded fair comment.
    Held: The article . .

This case is cited by:

  • Cited – Keays -v- Guardian Newspapers Limited, Alton, Sarler QBD (Bailii, [2003] EWHC 1565 (QB))
    The claimant asserted defamation by the defendant. The parties sought a decision on whether the article at issue was a comment piece, in which case the defendant could plead fair comment, or one asserting fact, in which case that defence would not . .
  • Cited – Panday -v- Gordon PC (Bailii, [2005] UKPC 36, PC)
    (Trinidad and Tobago) A senior politician had accused an opponent of pseudo-racism. The defendant asserted that he had a defence under the constitution, allowing freedom of political speech.
    Held: The appeal failed. The statements were . .
  • Cited – Lowe -v- Associated Newspapers Ltd QBD ([2006] 3 All ER 357, Bailii, [2006] EWHC 320 (QB), Times 29-Mar-06, [2007] QB 580)
    The defendant sought to defend the claim for defamation by claiming fair comment. The claimant said that the relevant facts were not known to the defendant at the time of the publication.
    Held: To claim facts in aid of a defence of fair . .
  • Cited – Associated Newspapers Ltd -v- Burstein CA (Bailii, [2007] EWCA Civ 600, [2007] EMLR 21, [2007] EMLR 571, [2007] 4 All ER 319, [2001] 1 WLR 579)
    The newspaper appealed an award of damages for defamation after its theatre critic’s review of an opera written by the claimant. The author said the article made him appear to sympathise with terrorism.
    Held: The appeal succeeded. Keene LJ . .
  • Cited – Blackwell -v- News Group Newspapers Ltd and others QBD (Bailii, [2007] EWHC 3098 (QB))
    The claimant sought damages saying that a newspaper article published by the defendant was defamatory. He was the manager of Leeds United Football club, and was said to have lost the dressing room.
    Held: The claimant was entitled to summary . .
  • Cited – CC -v- AB QBD (Bailii, [2006] EWHC 3083 (QB), [2007] EMLR 11, [2007] Fam Law 591, [2007] 2 FLR 301)
    The claimant sought an order to prevent the defendant and others from making it known that the claimant had had an adulterous relationship with the defendant’s wife. . .
  • Cited – Thornton -v- Telegraph Media Group Ltd QBD (Bailii, [2009] EWHC 2863 (QB))
    The claimant sought damages for an article in the defendant’s newspaper, a review of her book which said she had falsely claimed to have interviewed artists including the review author and that the claimant allowed interviewees control over what was . .
  • Limited – Spiller and Another -v- Joseph and Others SC (Bailii, [2010] UKSC 53, UKSC 2009/0210, SC Summary, SC, [2010] WLR (D) 310, WLRD, [2010] 3 WLR 1791, Bailii Summary, [2011] 1 All ER 947, [2011] ICR 1, [2011] EMLR 11)
    The defendants had published remarks on its website about the reliability of the claimant. When sued in defamation, they pleaded fair comment, but that was rejected by the Court of Appeal.
    Held: The defendants’ appeal succeeded, and the fair . .

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

References: [1998] AATA 618
Links: Austlii
Coram: Mathews J
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.’
This case is cited by:

  • Cited – Al-Sirri -v- Secretary of State for The Home Department SC (Bailii, [2012] UKSC 54, [2012] 3 WLR 1263, [2012] WLR(D) 333, Bailii Summary, UKSC 2009/0036, SC Summary, SC, [2013] 1 AC 745, [2013] 1 All ER 1267)
    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 . .

Schreiber v Canada (Attorney General); 12 Sep 2002

References: [2002] SCJ No 63, [2002] 3 SCR 269, [2002] SCC 62
Links: SCC
Coram: McLachlin, Beverley; Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel JJ
SCC (Supreme Court of Canada) International law – Sovereign immunity – Attornment to Canadian court’s jurisdiction exception – Germany initiating extradition process against Canadian citizen – Citizen arrested by RCMP and spending eight days in jail – Citizen suing Germany seeking damages for personal injuries suffered as a result of his arrest and detention in Canada – Whether Germany immune from jurisdiction of Canadian courts – Whether attornment to Canadian court’s jurisdiction exception applicable so as to deprive Germany of its immunity from instant action – Whether Germany waived its immunity from lawsuits in Canadian courts when it initiated extradition process – State Immunity Act, R.S.C. 1985, c. S-18, s. 4(2)(b).
International law – Sovereign immunity — Personal injury exception — Scope of exception — Germany initiating extradition process against Canadian citizen — Citizen arrested by RCMP and spending eight days in jail — Citizen suing Germany seeking damages for personal injuries suffered as a result of his arrest and detention in Canada — Whether Germany immune from jurisdiction of Canadian courts — Whether personal injury exception applicable so as to deprive Germany of its immunity from instant action — Whether exception distinguishes between jure imperii and jure gestionis acts — Whether exception applies only to claim of physical injury — State Immunity Act, R.S.C. 1985, c. S-18, s. 6(a).
Statutes — Interpretation — Bilingual statutes — Personal injury exception to state immunity — Meaning of expression ‘personal injury’ — Whether French version best reflects common intention of legislator found in both versions — Whether amendment made by Federal Law-Civil Law Harmonization Act to English version substantively changed the law — Purpose of harmonization legislation — State Immunity Act, R.S.C. 1985, c. S-18, s. 6(a) — Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4, s. 121.
This case is cited by:

  • Cited – The Federal Republic of Nigeria -v- Ogbonna EAT (Bailii, [2011] UKEAT 0585_10_1207)
    EAT JURISDICTIONAL POINTS – State immunity
    A claim for compensation for psychiatric illness caused by unlawful discrimination is a claim for ‘personal injury’ within the meaning of section 5 of the State . .

Syndicat Northcrest v Amselem; 30 Jun 2004

References: (2004) 241 DLR (4th) 1, [2004] 2 SCR 551
Links: Canlii
Coram: McLachlin CJ and Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish JJ
Canlii (Supreme Court of Canada) Civil rights – Freedom of religion — Definition of freedom of religion — Exercise of religious freedoms — Orthodox Jews setting up succahs in pursuit of their religious beliefs on balconies of their co-owned property — Syndicate of co-owners requesting removal of succahs because declaration of co-ownership prohibits decorations, alterations and constructions on balconies — Whether freedom of religion infringed by declaration of co-ownership — If so, whether refusal to permit setting up of succahs justified by reliance on right to enjoy property and right to personal security — Whether Orthodox Jewish residents waived their right to freedom of religion by signing declaration of co-ownership — Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 1, 3, 6. Constitutional law — Charter of Rights — Freedom of religion — Definition of freedom of religion — Proper approach for freedom of religion analyses — Canadian Charter of Rights and Freedoms, s. 2(a).
The court is concerned to ensure that an assertion of religious belief before it is made in good faith: ‘neither fictitious, nor capricious, and that it is not an artifice’
This case is cited by:

  • Cited – Regina -v- Secretary of State for Education and Employment and others ex parte Williamson and others HL (House of Lords, [2005] UKHL 15, Bailii, Times 25-Feb-05, [2005] 2 WLR 590, [2005] 2 AC 246, [2005] 2 All ER 1, [2005] ELR 291, [2005] 2 FLR 374, [2005] 1 FCR 498)
    The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
  • Cited – Shergill and Others -v- Khaira and Others SC (Bailii, [2014] UKSC 33, [2014] 3 WLR 1, [2014] WLR(D) 263, Bailii Summary, WLRD, UKSC 2012/0234, SC Summary, SC, [2014] PTSR 907, [2014] WTLR 1729, [2014] 3 All ER 243)
    The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .

Sauve v Canada (Chief Electoral Officer); 31 Oct 2002

References: 218 DLR (4th) 577, 168 CCC (3d) 449, 5 CR (6th) 203, 294 NR 1, JE 2002-1974, [2002] SCJ No 66 (QL), 117 ACWS (3d) 553, [2002] ACS no 66, 55 WCB (2d) 21, 98 CRR (2d) 1, [2002] 3 SCR 519, 2002 SCC 68 (CanLII)
Links: Canlii
Coram: McLachlin CJ and L’Heureux-Dube, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
Canlii Supreme Court of Canada – Constitutional law – Charter of Rights – Right to vote – Prisoners – Canada Elections Act provision disqualifying persons imprisoned in correctional institution serving sentences of two years or more from voting in federal elections – Crown conceding that provision infringes right to vote – Whether infringement justified – Canadian Charter of Rights and Freedoms, ss. 1, 3 – Canada Elections Act, R.S.C. 1985, c. E-2, s. 51(e).
Constitutional law – Charter of Rights – Equality rights – Prisoners – Canada Elections Act provision disqualifying persons imprisoned in correctional institution serving sentences of two years or more from voting in federal elections – Whether provision infringes equality rights – Canadian Charter of Rights and Freedoms, s. 15(1) – Canada Elections Act, R.S.C. 1985, c. E-2, s. 51(e).
Elections – Disqualifications of electors – Prisoners – Canada Elections Act provision disqualifying persons imprisoned in correctional institution serving sentences of two years or more from voting in federal elections – Whether provision constitutional – Canadian Charter of Rights and Freedoms, ss. 1, 3, 15(1) – Canada Elections Act, R.S.C. 1985, c. E-2, s. 51(e).
This case is cited by:

  • Cited – Chester, Regina (on The Application of) -v- Secretary of State for Justice SC (Bailii, [2013] UKSC 63, [2014] 1 AC 271, [2014] HRLR 3, [2013] 3 WLR 1076, [2014] 1 All ER 683, [2013] WLR(D) 392, [2014] 1 CMLR 45, 2014 SC (UKSC) 25, 2014 SLT 143, 2013 GWD 34-676, WLRD, Bailii Summary, UKSC 2012/0151, SC Summary, SC)
    The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
    Held: The . .

Clayton v Heffron; 17 Oct 1960

References: (1960) 105 CLR 214
Links: Austilii
Coram: Dixon CJ, McTiernan, Fullagar, Kitto, Taylor, Menzies and Windeyer JJ
(High Court of Australia) An Act was proposed to be introduced by the legislature to amend the constitution of New South Wales by abolishing the Legislative Council. There would be required first a vote in favour of that in a referendum. The proposed Act was to be passed under a procedure in s.5B of the New South Wales Constitution Act 1902-1956, whereby legislation could be enacted ultimately without the consent of the Legislative Council. S.5B had been introduced into the New South Wales Constitution by an enactment of the New South Wales legislature under s.5 of the Constitution Act which went: ‘The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever.’
Held: The Act was effective.
This case is cited by:

  • Cited – Regina on the Application of Jackson and others -v- HM Attorney General CA (Bailii, [2005] EWCA Civ 126, Times 17-Feb-05)
    The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
  • Cited – Jackson and others -v- Attorney General HL (House of Lords, [2005] UKHL 56, Times 14-Oct-05, Bailii, [2006] 1 AC 262, [2005] 2 WLR 87)
    The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .

Rosenberg v Percival; 5 Apr 2001

References: 205 CLR 434, 75 ALJR 734, [2001] HCA 18
Links: Austlii
Coram: Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ
Austlii High Court of Australia – Negligence – Breach of duty – Surgeon’s duty to warn of material risk in proposed surgery – Identification of the material risk – Meaning of material risk.
Negligence – Causation – Whether failure to warn of a material risk causative of plaintiff’s injury – Whether patient would not have undergone treatment if warned.
Appeal – Appeal by rehearing – Powers of appellate court – Decision dependent on credibility findings – Authority of appellate court to reach conclusions different from trial judge.
Evidence – Credibility of witnesses – Limits of appellate review in respect of findings of fact based on assessment of the credibility of a witness.
Gummow J said that courts should not be too quick to discard the possibility that a medical practitioner was or ought reasonably to have been aware that the particular patient, if warned of the risk, would be likely to attach significance to it, merely because it emerges that the patient did not ask certain kinds of questions.
This case is cited by:

  • Cited – Montgomery -v- Lanarkshire Health Board SC (Bailii, [2015] UKSC 11, Bailii Summary, UKSC 2013/0136, SC Summary, SC)
    The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inabillity of the shoulders to pass through the pelvis. The consultant considered that a . .

Jacobi v Griffiths; 17 Jun 1999

References: (1999) 174 DLR(4th) 71, [1999] 9 WWR 1, 44 CCEL (2d) 169, 63 BCLR (3d) 1
Links: Canlii
(Canadian Supreme Court) The process for determining when a non-authorised act by an employee is so connected to the employer’s enterprise that liability should be imposed involved two steps: 1. Firstly a court should determine whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case falls. 2. If prior cases do not clearly suggest a solution the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability. In this case that test was not satisfied.
This case cites:

(This list may be incomplete)
This case is cited by:

  • Approved – Lister and Others -v- Hesley Hall Ltd HL (Times 10-May-01, Gazette 14-Jun-01, Bailii, House of Lords, [2001] UKHL 22, [2002] 1 AC 215, [2001] 2 All ER 769, [2001] 2 FCR 97, (2001) 3 LGLR 49, [2001] NPC 89, [2001] Fam Law 595, [2001] 2 WLR 1311, [2001] IRLR 472, [2001] ICR 665, [2001] Emp LR 819, [2001] 2 FLR 307, [2001] ELR 422)
    A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
    Held: ‘Vicarious liability is legal . .
  • Cited – Majrowski -v- Guy’s and St Thomas’ NHS Trust CA (Bailii, [2005] EWCA Civ 251, Times 21-Mar-05, [2005] QB 848, [2005] ICR 977, [2005] 2 WLR 1503, [2005] IRLR 340)
    The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
    Held: The appeal succeeded. The . .
  • Cited – Gravil -v- Carroll and Another CA (Bailii, [2008] EWCA Civ 689, Times 22-Jul-08, [2008] ICR 1222, [2008] IRLR 829)
    The claimant was injured by an unlawful punch thrown by the first defendant when they played rugby. He sought damages also against the defendant’s club, and now appealed a finding that they were not vicariously liable. The defendant player’s . .
  • Applied – Maga -v- The Trustees of The Birmingham Archdiocese of The Roman Catholic Church CA (Bailii, [2010] EWCA Civ 256, Times, [2010] PTSR 1618, [2010] 1 WLR 1441)
    The claimant appealed against rejection of his claim for damages after alleging sexual abuse by a catholic priest. The judge had found the church not vicariously liable for the injuries, and that the archdiocese had not been under a duty further to . .
  • Cited – Graham -v- Commercial Bodyworks Ltd CA (Bailii, [2015] EWCA Civ 47, [2015] WLR(D) 50, WLRD)
    The claimant had been very badly burned. He was covered in flammable liquid when a co-worker lit a cigarette.
    Held: The claimant’s appeal failed. ‘although the defendant employers did create a risk by requiring their employees to work with . .

(This list may be incomplete)
Last Update: 14-Dec-15 Ref: 214670

Regina v Stingel; HCA 1990

References: (1990) 171 CLR 312
(Australia) An infatuated man had stabbed his former girlfriend’s lover.
Held: The judge had been right to withdraw the issue of provocation from the jury. Jealousy and possessiveness should not found a defence of provocation.
This case is cited by:

  • Cited – Regina -v- Smith (Morgan James) HL (Times 04-Aug-00, House of Lords, Gazette 28-Sep-00, House of Lords, Bailii, [2000] UKHL 49, [2001] 1 AC 146, [2001] 1 Cr App R 31, [2000] 4 All ER 289, [2000] 3 WLR 654)
    The defendant had sought to rely upon the defence of provocation. He had suffered serious clinical depression.
    Held: When directing a jury on the law of provocation, it was no longer appropriate to direct the jury to disregard any particular . .
  • Cited – Weller, David Regina -v- CACD (Bailii, [2003] EWCA Crim 815, [2003] Crim LR 724)
    The defendant appealed against his conviction for murder, saying that provocation should have been found. The issue was whether or not, in the course of his summing-up, the trial judge should have left, and if so whether he had left, to the jury the . .

Rogers v Whitaker; 19 Nov 1992

References: [1992] HCA 58, (1992) 175 CLR 479
Coram: Mason CJ, Brennan, Dawson, Toohey, Gaudron, McHugh JJ
High Court of Australia – Negligence – Breach of duty – Medical practitioner – Duty to warn of possibility of adverse effect of proposed treatment – Extent of duty.
The patient complained that the doctor when proposing a form of treatment to his left eye had not explained the associated risks. Those risks had become realised. The plaintiff was already blind in the other eye, giving the risk a greater significance than it would otherwise have had. In addition, she had asked anxiously about risks.
Held: Why should the patient’s asking a question make any difference in negligence, if medical opinion determines whether the duty of care requires that the risk should be disclosed? The patient’s desire for the information, even if made known to the doctor, does not alter medical opinion. ‘Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment.’
The court restated the test of the materiality of a risk so as to encompass the situation in which, as the doctor knows or ought to know, the actual patient would be likely to attach greater significance to a risk than the hypothetical reasonable patient might do: ‘a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.’
This case is cited by:

  • Cited – Montgomery -v- Lanarkshire Health Board SC (Bailii, [2015] UKSC 11, Bailii Summary, UKSC 2013/0136, SC Summary, SC)
    The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inabillity of the shoulders to pass through the pelvis. The consultant considered that a . .

Bazley v Curry; 17 Jun 1999

References: (1999) 174 DLR(4th) 45, [1999] 8 WWR 197, 43 CCEL (2d) 1, 62 BCLR (3d) 173
Links: Canlii
Coram: McLachlin J
(Canadian Supreme Court) The court considerd the doctrine of vicarious liability: ‘The policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimization). The question is whether there is a connection or nexus between the employment enterprise and that wrong that justifies imposition of vicarious liability on the employer for the wrong, in terms of fair allocation of the consequences of the risk and/or deterrence.’ The court criticised the decision in Trotman, saying: ‘the opinion’s reasoning depends on the level of generality with which the sexual act is described. Instead of describing the act in terms of the employee’s duties of supervising and caring for vulnerable students during a study trip abroad, the Court of Appeal cast it in terms unrelated to those duties. Important legal decisions should not turn on such semantics. As Atiyah points out (Vicarious Liability in the Law of Torts, p 263): ‘conduct can be correctly described at varying levels of generality, and no one description of the ‘act’ on which the servant was engaged is necessarily more correct than any other’.’
This case cites:

This case is cited by:

  • Approved – Lister and Others -v- Hesley Hall Ltd HL (Times 10-May-01, Gazette 14-Jun-01, Bailii, House of Lords, [2001] UKHL 22, [2002] 1 AC 215, [2001] 2 All ER 769, [2001] 2 FCR 97, (2001) 3 LGLR 49, [2001] NPC 89, [2001] Fam Law 595, [2001] 2 WLR 1311, [2001] IRLR 472, [2001] ICR 665, [2001] Emp LR 819, [2001] 2 FLR 307, [2001] ELR 422)
    A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
    Held: ‘Vicarious liability is legal . .
  • Cited – Bernard -v- The Attorney General of Jamaica PC (PC, Bailii, [2004] UKPC 47, PC, No. 30 of 2003, [2005] IRLR 398)
    PC (Jamaica) The claimant had been queuing for some time to make an overseas phone call at the Post Office. Eventually his turn came, he picked up the phone and dialled. Suddenly a man intervened, announced . .
  • Cited – Majrowski -v- Guy’s and St Thomas’ NHS Trust CA (Bailii, [2005] EWCA Civ 251, Times 21-Mar-05, [2005] QB 848, [2005] ICR 977, [2005] 2 WLR 1503, [2005] IRLR 340)
    The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
    Held: The appeal succeeded. The . .
  • Cited – Gravil -v- Carroll and Another CA (Bailii, [2008] EWCA Civ 689, Times 22-Jul-08, [2008] ICR 1222, [2008] IRLR 829)
    The claimant was injured by an unlawful punch thrown by the first defendant when they played rugby. He sought damages also against the defendant’s club, and now appealed a finding that they were not vicariously liable. The defendant player’s . .
  • Cited – Maga -v- The Trustees of The Birmingham Archdiocese of The Roman Catholic Church CA (Bailii, [2010] EWCA Civ 256, Times, [2010] PTSR 1618, [2010] 1 WLR 1441)
    The claimant appealed against rejection of his claim for damages after alleging sexual abuse by a catholic priest. The judge had found the church not vicariously liable for the injuries, and that the archdiocese had not been under a duty further to . .
  • Cited – Weddall -v- Barchester Healthcare Ltd CA (Bailii, [2012] EWCA Civ 25)
    Parties appealed against judgments dismissing their claims of vicarious liability as against their employers after assaults by co-employees.
    Held: Appeals were dismissed and allowed according to their facts.
    In one case, one employee . .
  • Cited – The Catholic Child Welfare Society and Others -v- Various Claimants & The Institute of The Brothers of The Christian Schools and Others SC (Bailii, [2012] UKSC 56, Bailii Summary, SC, SC Summary, UKSC 2010/0230, [2012] WLR(D) 335, [2013] 1 All ER 670, [2013] IRLR 219, [2013] PIQR P6, [2013] ELR 1, [2012] 3 WLR 1319, [2013] 2 AC 1)
    Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .
  • Cited – Graham -v- Commercial Bodyworks Ltd CA (Bailii, [2015] EWCA Civ 47, [2015] WLR(D) 50, WLRD)
    The claimant had been very badly burned. He was covered in flammable liquid when a co-worker lit a cigarette.
    Held: The claimant’s appeal failed. ‘although the defendant employers did create a risk by requiring their employees to work with . .

Post Investments Pty Ltd v Wilson; 1 Feb 1990

References: (1990) 26 NSWR 598
Coram: Powell J
Ratio (New South Wales) The court considered the situation where both the dominant and servient lands affected by a restricive covenant came into common ownership. There must be complete unity not merely of ownership, but also of possession. The law has developed by analogy with the law relating to easements, and the benefit of a restrictive covenant is destroyed ‘upon the ownership and possession of both dominant and servient tenements coming into the same hands’. The basis for the qualification is that a restrictive covenant is not to be extinguished if there continues to exist a person (whether or not the successor in title to the estate held by the original covenantor or the original covenantee) entitled to the benefit or subject to the burden of the restrictive covenant.
This case is cited by:

(This list may be incomplete)

Last Update: 14-May-16
Ref: 220708

Peters v Sinclair; 6 May 1913

References: 1913 CanLII 8 (SCC), 48 SCR 57
Links: Canlii
Coram: Sir Charles Fitzpatrick CJ and Davies, Idington, Duff and Anglin JJ
Ratio Supreme Court of Canada – S. brought action against P. for trespass on a strip of land called ‘Ancroft Place’ which he claimed as his property and asked for damages and an injunction. ‘Ancroft Place’ was a cul-de-sac running east from Sherbourne Street, and the defence to the action was that it was a public street or, if not, that P. had a right of way over it either by grant or user. On the trial it was shewn that the original owners had conveyed the lots to the east and south of ‘Ancroft Place’ to different parties, each deed describing it as a street and giving a right of way over it to the grantee. The deeds to P.’s predecessors in title did not give him a similar right of way, but some of these conveyances described it as a street. The deed to one of the predecessors in title of S. had a plan annexed shewing ‘Ancroft Place’ as a street fifty feet wide and the grantee was given the right to register said plan. The evidence also established that for 22 years before the action ‘Ancroft Place’ had been entered in the assessment rolls as a public street and had not been assessed for taxes and that the city had placed a gas lamp on the end; also, that for over twenty years it had been used by the owners of the lots to the south and east, and from time to time by the owner on the north side, as a means of access to, and egress from, their respective properties. In 1909 the fee in the land in dispute was conveyed to S. who had become owner of the lots to the east and south.
Held, Idington J. dissenting, Duff J. expressing no opinion, that the evidence was not sufficient to establish that the land had been dedicated to the public, and accepted by the municipality as a street.
Held, further, Idington and Duff JJ. dissenting, that the land was not a ‘way, easement or appurtenance’ to the lot to the north ‘held, used, occupied and enjoyed, or taken or known, as part and parcel thereof’ within the meaning of sec. 12 of ‘The Law and Transfer of Property Act,’ R.S.O., [1897] ch. 119.
Held, also, that, P. had not acquired a right-of-way by a grant implied from the terms of the deeds of the adjoining lots, Duff J. dissenting; nor by prescription, Duff J. expressing no opinion.
This case cites:

  • Cited – Attorney-General -v- Antrobus ChD ([1905] 2 Ch 188)
    The owner of Stonehenge had enclosed the monument by fencing for its protection. The Attorney-General wished to remove the fencing in order to keep the place open so that the public could visit it.
    Held: The court rejected a suggestion that . .

(This list may be incomplete)

Last Update: 15-May-16
Ref: 540228

Regina v Dadshani; 8 Feb 2008

References: 2008 CanLII 4266 (ON SC)
Links: Canlii
Coram: C McKinnon J
Ontario – Superior Court of Justice – proceeding in the nature of a Rowbotham or Fisher application to secure state funding for the defences of the accused who are facing charges of first degree murder.
This case cites:

  • Cited – Regina -v- Rowbotham and others ((1988) 41 CCC,(3d) 1)
    Ontario Court of Appeal – ‘In our view a trial judge confronted with an exceptional case where legal aid has been refused and who is of the opinion that representation of the accused by counsel is essential to a fair trial may, upon being satisfied . .

This case is cited by:

  • Cited – P, Regina -v- Misc (Bailii, [2008] EW Misc 2 (EWCC))
    Crown Court at Harrow – The Court stayed the criminal proceedings because the defendant was unable to retain counsel because of what was said to be a failure to provide adequate legal aid fees in criminal confiscation proceedings. . .

Capita Financial Group Ltd v Rothwells Ltd; 20 Apr 1989

References: (1989) 15 ACLR 348
Links: NSW
Coram: Rogers CJ
(New South Wales) The parties had guaranteed borrowings of a third party. The plaintiff had paid on call, and now sought a contribution from the defendant. After issue, the defedant began a winding up petition. The plaintiff sought leave to continue the action.
Held: It was a given that a plaintiff in this position must demonstrate a prima facie case. It had not done so here, but an arguable case had been shown, and this could be supplemented later by affidavit evidence. The claim could proceed.
This case is cited by:

Housen v Nikolaisen; 28 Mar 2002

References: [2002] 2 SCR 235, 2002 SCC 33
Links: SCC
Coram: McLachlin CJ and L’Heureux-Dube, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ
Supreme Court of Canada – Torts – Motor vehicles – Highways – Negligence – Liability of rural municipality for failing to post warning signs on local access road — Passenger sustaining injuries in motor vehicle accident on rural road — Trial judge apportioning part of liability to rural municipality — Whether Court of Appeal properly overturning trial judge’s finding of negligence — The Rural Municipality Act, 1989, S.S. 1989-90, c. R-26.1, s. 192.
Municipal law — Negligence — Liability of rural municipality for failing to post warning signs on local access road — Passenger sustaining injuries in motor vehicle accident on rural road — Trial judge apportioning part of liability to rural municipality — Whether Court of Appeal properly overturning trial judge’s finding of negligence — The Rural Municipality Act, 1989, S.S. 1989-90, c. R-26.1, s. 192.
Appeals — Courts — Standard of appellate review — Whether Court of Appeal properly overturning trial judge’s finding of negligence — Standard of review for questions of mixed fact and law.
‘The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged.’
This case is cited by:

  • Cited – McGraddie -v- McGraddie and Another (Scotland) SC (Bailii, [2013] UKSC 58, [2013] 1 WLR 2477, [2013] WLR(D) 323, 2013 GWD 25-471, 2013 SLT 1212, WLRD, Bailii Summary, UKSC 2012/0112, SC Summary, SC)
    The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
  • Cited – Henderson -v- Foxworth Investments Limited and Another SC (Bailii Summary, [2014] 1 WLR 2600, Bailii, [2014] UKSC 41, [2014] WLR(D) 290, 2014 GWD 23-437, 2014 SLT 775, [2014] WLR(D) 290, 2014 SCLR 692, WLRD, UKSC 2013/0083, SC, SC Summary)
    It was said that land, a hotal and gold courses, had been sold at an undervalue and that the transaction was void as against the seller’s liquidator.
    Held: The critical issue was whether ‘the alienation was made for adequate consideration’. . .

Bruker v Marcovitz; 14 Dec 2007

References: 288 DLR (4th) 257, [2007] 3 SCR 607, 2007 SCC 54 (CanLII)
Links: Canlii, Canlii
Coram: McLachlin CJ and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ
Canlii (Supreme Court of Canada) Contracts – Validity – Breach – Agreement with religious aspect – Husband refusing to provide wife with Jewish religious divorce after civil divorce despite agreement to do so – Action in damages against husband for breach of contract – Whether matter justiciable – Whether agreement satisfies all requirements to make it valid and binding under Quebec law – Whether husband can rely on freedom of religion to avoid legal consequences of failing to comply with agreement – Civil Code of Quebec, S.Q. 1991, c. 64, arts. 1373, 1385, 1412, 1413 – Charter of human rights and freedoms, R.S.Q., c. C-12, ss. 3, 9.1.
Human rights – Freedom of conscience and religion – Agreement with religious aspect – Jewish religious divorce or ‘get’ – Husband refusing to provide wife with Jewish religious divorce after civil divorce despite agreement to do so – Action in damages against husband for breach of contract – Whether husband entitled to immunity from damages for his breach of contract by invoking freedom of religion – Charter of human rights and freedoms, R.S.Q., c. C-12, ss. 3, 9.1.
This case is cited by:

  • Cited – Shergill and Others -v- Khaira and Others SC (Bailii, [2014] UKSC 33, [2014] 3 WLR 1, [2014] WLR(D) 263, Bailii Summary, WLRD, UKSC 2012/0234, SC Summary, SC, [2014] PTSR 907, [2014] WTLR 1729, [2014] 3 All ER 243)
    The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .

Sreemanchunder Dey v Gopaulchunder Chuckerbutty, Doorgapersaud Dey, Russickloll Dey, And Prosonomoye Dossee; 14 Nov 1866

References: [1866] EngR 190, (1866) 11 Moo Ind App 28, (1866) 20 ER 11
Links: Commonlii
(Fort William, Bengal) A. purchased a Talook at a sale, in execution of a decree obtained by a judgment-creditor. The Assignee of another judgment-creditor, who had obtained a decree in a separate suit against the estate, brought a suit against the purchaser to set aside the sale, on the ground that the purchase was not bona fide, being made in collusion with the judgment-debtors. Held, on a review of the evidence, that there was not sufficient evidence to warrant the decree of the High Court at Calcutta that it was a benamee transaction ; or that the purchaser was acting as an Agent for the judgment-debtors; and the decree of the Court below reversed [11 Moo. Ind. App. 49]. Held further, that the onus probandi was on the Plaintiff to establish the affirmative issue that the money for the purchase of the Talook was supplied by the judgment-debtors, or a third party for them, and not by the purchaser. Evidence showing circumstances which may create suspicion is not enough to justify the Court making a decree resting on suspicion only.
On an appeal to the High Court, that Court, acting under the power conferred by section 355 of the Code of Civil Procedure, Act, No. VIII. of 1859, ex mera motu, called for and examined fresh witnesses. Held that such power should be cautiously exercised, and the reasons for exercising it recorded or minuted by the High Court on the proceedings;as, first, the witnesses may be such as the parties to the suit do not wish to call ; and, secondly, thc new evidence may not be sufiiciently extensive to satisfy the ends of justice.

A.R.P.L. Palaniappa Chettiar v P.L.A.R. Arunasalam Chettiar: PC 31 Jan 1962

References: [1962] UKPC 1a
Links: Bailii
Coram: Lord Denning, Lord Devlin, LND de Silva
(Malaya)
This case cites:

  • See Also – Chettiar -v- Chettiar PC ([1962] AC 294, Bailii, [1962] UKPC 1, Bailii, [1962] UKPC 4, [1962] 2 WLR 548, [1962] 2 All ER 238)
    (Malaya) A father, in registering shares in the names of his children, had transferred the beneficial interest in those shares to them. Many years later the father had treated the shares as his own. The question arose as to whether this fact . .

This case is cited by:

  • See Also – Chettiar -v- Chettiar PC ([1962] AC 294, Bailii, [1962] UKPC 1, Bailii, [1962] UKPC 4, [1962] 2 WLR 548, [1962] 2 All ER 238)
    (Malaya) A father, in registering shares in the names of his children, had transferred the beneficial interest in those shares to them. Many years later the father had treated the shares as his own. The question arose as to whether this fact . .