Owendale Pty Ltd v Anthony: 24 Aug 1967

Austlii High Court of Australia – Landlord and Tenant – Lease – Determination – Forfeiture – Covenant to commence erection of building within specified time – Clearing operations commenced – Whether breach – Acceptance of rent after notice of breach – Conduct of lessor and lessee – Waiver – Crown lease – Statutory procedure for determination upon breach of covenant – Effect of conduct upon statutory right to determine – Notice – Requirement that conditions for failure to comply with andwhich lease may be determined be fully set out – Reference to terms of lease – Whether sufficient – Signature on notice – Delegation of function by Minister – Delegate designated by office held – City Area Leases Ordinance 1936-1964 (A.C.T.), ss. 6,22.*
Windeyer J set out the principles behind the waiver of a right to forfeit a lease: ‘A waiver in this sense is more properly understood as an election. The essence of the doctrine, in cases between landlord and tenant, is that where a Lease contains a provision for forfeiture and a right of re-entry upon breach of a covenant by the lessee, then, upon a breach occurring, the lessor can either take advantage of his right of forfeiture and re-entry or waive this and treat the Lease as still subsisting. If, with knowledge of a breach, giving him a right of re-entry, he does an act inconsistent with his avoiding the Lease, he is deemed to have elected not to avoid it. Anything which a landlord does or says which is an unequivocal recognition of the continued existence of the Lease when he is aware of facts which would have given him a right of re-entry will amount to a waiver of that right. One act which, by the common law, is always regarded as unequivocal, and therefore necessarily a waiver of a right of re-entry on account of a breach of covenant by the lessee, is the lessor’s acceptance, with knowledge of the fact of the breach, of rent accrued due after the breach. Apart from any special term in the Lease . . or any statutory modification of the common law, acceptance of rent due in respect of a current period is an obvious recognition of a tenancy then subsisting.’

Judges:

Windeyer J, Barwick CJ, McTiernan, Kitto, Taylor, Owen JJ

Citations:

[1967] HCA 52, (1967) 117 CLR 539

Links:

Austlii

Commonwealth, Landlord and Tenant

Updated: 20 May 2022; Ref: scu.568017

Lawrence Pat Sankar v State of Trinidad and Tobago: PC 16 Dec 1994

(Trinidad and Tobago) An advocate’s failure to advise his client on the need for him to give evidence, and the consequences of his not doing so may be enough to justify an appeal against conviction.

Citations:

Independent 12-Jan-1995, Times 28-Dec-1994, [1994] UK PC 1, [1995] 1 WLR 194, No 22 of 1993, [1994] UKPC 49

Links:

PC, Bailii, Bailii

Cited by:

distinguishedCodrington v the Queen (Belize) PC 27-Mar-1996
The appellant had been convicted of murder. He had two grounds of appeal, that the judge had failed to get right the burden of proof, and that his counsel had not allowed him to give evidence when he had wanted to. The case was remitted. Although . .
CitedBoodram v The State PC 10-Apr-2001
(Trinidad and Tobago) On a retrial, the defendant’s counsel only became aware that there had been an earlier trial late in the proceedings, and, when he became aware of it, he did not try to obtain the transcript of the first trial in order to . .
CitedAnderson v HM Advocate HCJ 1996
The court considered the effect on a conviction of a failure by defence counsel. After considering the authorities: ‘It can only be said to have resulted in a miscarriage of justice if it has deprived the accused of his right to a fair trial. That . .
CitedBally Sheng Balson v The State PC 2-Feb-2005
PC (Dominica) The appellant had been convicted of the murder of his partner and appealed the conviction.
Held: The case did not fall within the case of Anderson, and counsel’s failure was not such as to . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Commonwealth

Updated: 20 May 2022; Ref: scu.89005

Holmes v Holmes: 1990

(Australia) Cohen J considered the distribution of assets (in particular a lottery win) on divorce, saying: ‘Yet, ignoring any contribution to the price of the winning ticket, this part of the winnings was brought into the pool of family assets by the wife, and no contribution to it was made by the husband’ Rather than regarding the win automatically as though there was no contribution by either party, concluded that a windfall must be looked at in all of the circumstances; in particular to have regard to the effort made by a party to achieve the windfall, as well as the timing of the windfall.

Judges:

Cohen J

Citations:

(1990) FLC 92-181

Jurisdiction:

England and Wales

Cited by:

CitedS v AG (Financial Remedy: Lottery Prize) FD 14-Oct-2011
The court considered how to treat a lottery win of andpound;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 . .
Lists of cited by and citing cases may be incomplete.

Family, Commonwealth

Updated: 20 May 2022; Ref: scu.445481

Cox v Army Council: PC 1963

The provisions of the English Army Act, are to be applied ‘in diverse circumstances wherever the armed forces of the Crown happen to be, in developed or undeveloped countries, as conquerors or guests, and their purpose is . . Disciplinary.’ Criminal law applies only in respect of acts committed or omissions made within England. Viscount Simons said: ‘apart from those exceptional cases in which specific provision is made in regard to acts committed abroad, the whole body of the criminal law of England deals only with acts committed in England.’ and ‘with rare exceptions the whole body of our criminal law is ‘domestic’ in the sense that it is made for the order and good government of this country and is applicable only to acts done on English soil.’

Judges:

Viscount Simonds, Lord Reid

Citations:

[1963] AC 48, (1962) 46 Cr App R 258

Cited by:

CitedPurdy, Regina (on the Application of) v Director of Public Prosecutions HL 30-Jul-2009
Need for Certainty in Scope of Offence
The appellant suffered a severe chronic illness and anticipated that she might want to go to Switzerland to commit suicide. She would need her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the . .
Lists of cited by and citing cases may be incomplete.

Crime, Armed Forces, Commonwealth

Updated: 20 May 2022; Ref: scu.373404

Minto v Police: 1987

When considering a police officer’s assessment that a breach of the peace is imminent, the question of immediacy is in part a question of degree and is highly relevant to the reasonableness of the action taken.
A refusal or failure to co-operate with a police officer’s direction whilst that officer is carrying out his reasonable duty or reasonably exercising a power can amount to obstruction.
The appellants had been convicted of obstructing a police officer in the execution of his duty. The Bill of Rights Act 1990 in New Zealand came into force four months after the convictions of the appellants. On the appeal by the defendants Robertson J described the argument advanced by counsel on their behalf as follows:

‘He argued that s 16 (which guarantees freedom of peaceful assembly) altered the test for determining the lawfulness of police instructions by now requiring the police to do anything else which is reasonably possible to prevent a breach of the peace before interfering with a protester’s s 16 right. Further, he submitted that the Court should give the Bill of Rights Act retrospective effect, and decide that even if the police instruction was reasonable, and therefore lawful at the time it was given, s 16 retroactively made it unlawful. Counsel’s thesis was that the police must prove beyond reasonable doubt that there was no other reasonable way of averting a breach of the peace before the request could be upheld as lawful. He argued that the ‘beneficial’ effect of such a retrospective interpretation should overwhelm the presumption against the retrospective effect of statutes.’
Robertson J rejected this argument: ‘Certainly, it would be beneficial from his clients’ point of view to have their misdemeanour undone in this fashion. But I do not accept that it would be ‘beneficial’ for the law or society at large if a Court were to declare invalid that which was valid at the time it was done.’

Judges:

Cooke J

Citations:

[1987] 1 NZLR 374, (1991) 7 CRNZ 38

Jurisdiction:

England and Wales

Citing:

CitedAlbert v Lavin HL 3-Dec-1981
An off duty and out of uniform police officer attempted to restrain the defendant jumping ahead of a bus queue. The defendant struggled, and continued to do so even after being told that of the officer’s status. He said he had not believed that he . .

Cited by:

CitedLaporte, Regina (on the application of ) v Chief Constable of Gloucestershire HL 13-Dec-2006
The claimants had been in coaches being driven to take part in a demonstration at an air base. The defendant police officers stopped the coaches en route, and, without allowing any number of the claimants to get off, returned the coaches to London. . .
CitedRegina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Lists of cited by and citing cases may be incomplete.

Police, Commonwealth

Updated: 20 May 2022; Ref: scu.247475

Myers v The Queen: PC 6 Oct 2015

Bermuda – three appeals against conviction raising similar, although not identical, questions concerning the admissibility and proper ambit of evidence as to the existence and practices of gangs and the defendant’s connections with them.
Held: The appeals failed. A police officer from a unit targeting criminal gangs was able give evidence at a criminal trial as to the culture in which such gangs operated – including practices such as shooting a random member of a rival gang in response to an insult or attack on one of its own members, and as to the defendant’s and victim’s membership of rival gangs, to show motive for the crime with which the defendant was charged, providing the officer had sufficiently demonstrated both his own expertise and the basis for his observations.
In giving factual evidence a skilled witness can draw on the general body of knowledge and understanding in which he is skilled, including the work and literature of others, but warned that ‘care must be taken that simple, and not necessarily balanced, anecdotal evidence is not permitted to assume the robe of expertise.’

Judges:

Lord Kerr, Lord Wilson, Lord Hughes, Lord Toulson, Lord Hodge

Citations:

[2015] UKPC 40, [2015] 3 WLR 1145, [2015] WLR(D) 401

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

ApprovedKennedy v Cordia (Services) Llp SC 10-Feb-2016
The appellant care worker fell in snow when visiting the respondent’s client at home. At issue was the admission and status of expert or skilled evidence.
Held: Mrs Kennedy’s appeal succeeded. ‘There are in our view four considerations which . .
Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Updated: 20 May 2022; Ref: scu.553064

The Central Tenders Board and Another v White (T/A White Construction Services): PC 6 Oct 2015

From the Court of Appeal of the Eastern Caribbean Supreme Court (Montserrat) The CTB appealed from a decision that it was in breach of a building contract made with the respondent, Mr White (trading as White Construction Services). The trial judge had ordered that Mr White should recover compensation to be assessed in default of agreement. The CTB’s defence to Mr White’s claim was that it acted ultra vires in failing to comply with proper procedures for the procurement of goods or services by tender, and therefore that the contract was void.

Judges:

Lord Kerr, Lord Hughes, Lord Toulson

Citations:

[2015] UKPC 39

Links:

Bailii

Jurisdiction:

England and Wales

Construction, Administrative, Contract

Updated: 20 May 2022; Ref: scu.553063

Chandler v Church: 1987

(New Zealand) Disclosure was sought of papers said to be protected by litigation privilege on the basis of an exception because of alleged fraud.
Hoffmann J said: ‘The principle on which the plaintiffs seek disclosure is that laid down in the classic judgment of Stephen J in R v. Cox and Railton (1884) 14 QBD 153, namely that privilege does not attach to a communication between a client and his legal adviser ‘intended to facilitate or to guide the client in the commission of a crime or fraud’. This principle applies not only when the legal adviser is party to the crime or fraud but also when he is ignorant of the purpose for which his advice or assistance is being asked. As Stephen J said, in neither case can the client have been consulting his adviser in a confidential professional capacity: ‘The client must either conspire with his solicitor or deceive him.”

Judges:

Hoffmann J

Citations:

(1987) 177 NLJ 451

Jurisdiction:

England and Wales

Citing:

CitedRegina v Cox and Railton 1884
(Court for Crown Cases Reserved) The defendants were charged with conspiracy to defraud a judgment creditor of the fruits of a judgment by dishonestly backdating a dissolution of their partnership to a date prior to a bill of sale given by Railton . .

Cited by:

CitedKuwait Airways Corporation v Iraqi Airways Company (No 6) CA 16-Mar-2005
The defendant company appealed against an order allowing inspection of documents for which litigation privilege had been claimed. It was said that the defendants had been involved in perjury in previous proceedings between the parties.
Held: . .
CitedOmar’s Trustees v Omar ChD 2000
A wife and mistress (D) had conspired, after the death of the husband, to remove money in bank accounts from his estate by taking the bearer shares in the company in whose name the accounts were held. The first action, in which D was legally . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions

Updated: 19 May 2022; Ref: scu.224369

Arbitrators’ Institute of New Zealand Inc v Legal Services Board: 1995

(New Zealand) A dispute had been referred to arbitration, and the question was whether a private arbitrator was a ‘judicial authority’.
Held: In their natural and ordinary meaning those words referred to a person or body: ‘ . . having power to judge a matter before it, which power is derived from the state.’ After a lengthy examination of the statutory context and its legislative history, the judge concluded that a private arbitrator, whose authority derived from the consent of the parties and not from the state, was not a ‘judicial authority’ within the meaning of the subparagraph.

Citations:

[1995] 2 NZLR 202

Jurisdiction:

England and Wales

Cited by:

CitedPauline Eunice Tangiora v Wellington District Legal Services Committee PC 4-Oct-1999
PC (New Zealand) The appellants claimed that their treatment by the respondent infringed their human rights as guaranteed by the respondents signing the Convenant. They wanted to apply to the International . .
Lists of cited by and citing cases may be incomplete.

Legal Aid

Updated: 19 May 2022; Ref: scu.199553

Lowery v The Queen: PC 1974

(Victoria) A young girl was sadistically murdered. The two accused, were present and the crime was committed by one or the other, or both. Each brought evidence of the unlikelihood that he could have committed the murder. L emphasised his good character and said that because of fear of K he had been unable to prevent the murder. K said that he had been under the influence of drugs and had been powerless to prevent L from killing the girl. Despite L’s objection, K was allowed to call a psychologist as to their respective personalities and, on that evidence, to invite the jury to conclude that it was less probable that K was the killer. They were both convicted. L unsuccessfully appealed to the Supreme Court of Victoria on the ground, inter alia, that the psychologist’s evidence ought not to have been admitted.
Held: Only in exceptionl circumstances can expert evidence be admissible as to the likelihood of the defendant’s veracity. The evidence of the psychologist was relevant in support of K’s case to show that his version of the facts was more probable than that put forward by the appellant. Accordingly the Privy Council dismissed the appeal. Evidence is relevant ‘if it tended to show that the version of the facts put forward by one co-accused was more probable than that put forward by the other’. The Board approved a statement as to the law: ‘It is . . established by the highest authorities that in criminal cases the Crown is precluded from leading evidence that does no more than show that the accused has a disposition or propensity or is the sort of person likely to commit the crime charged; .. it is, we think, one thing to say that such evidence is excluded when tendered by the Crown in proof of guilt, but quite another to say that it is excluded when tendered by the accused in disproof of his own guilt. We see no reason of policy or fairness which justifies or requires the exclusion of evidence relevant to prove the innocence of an accused person.’

Judges:

Morris L

Citations:

[1974] AC 85

Jurisdiction:

Australia

Cited by:

ApprovedRegina v Randall (EP) CACD 21-Feb-2003
The defendant had been a co-accused on a charge of murder. He appealed saying the judge had incorrectly directed the jury on the relevance of his co-accused’s previous convictions for violence.
Held: The appeal was allowed. He should have been . .
CitedRegina v Thompson and others CACD 1995
The court considered the circumstances under which an accused could call in aid the convictions of a co-defendant:
Held: It was fundamental that it is not normally relevant to enquire into a defendant’s previous character or to ask questions . .
CitedRegina v Randall HL 18-Dec-2003
Two defendants accused of murder each sought to place blame for the victim’s death on the other. One sought to rely upon the other’s record of violence as evidence of his co-accused’s propensity to violence.
Held: The record was admissible. By . .
CitedHenry, Regina v CACD 29-Jun-2005
The defendant appealed his conviction for soliciting to murder and conspiracy to murder. An expert’s opinion now described him as of low intelligence and vulnerable to the sort of pressure of which he complained.
Held: The expert evidence had . .
Lists of cited by and citing cases may be incomplete.

Crime, Evidence, Commonwealth

Updated: 19 May 2022; Ref: scu.189882

Telecom Corporation of New Zealand Ltd v Clear Communications Ltd: 1995

(New Zealand) A trader is entitled, before he enters upon a line of conduct which is designed to affect his competitors, to know with some certainty whether or not what he proposes to do is lawful. The meaning and effect of section 36 of the 1986 Act is that use of a dominant position otherwise than for one of the proscribed purposes does not constitute a breach. Nor does the fact that a person has acted in order to achieve one of the proscribed purposes constitute a breach unless he has used his dominant position to achieve those purposes. The minority say that the purpose of section 36 is to prevent use of a dominant position for the purpose of stifling competition.

Citations:

[1995] 1 NZLR 385

Statutes:

Commerce Act 1986 36(1)

Jurisdiction:

England and Wales

Cited by:

CitedCarter Holt Harvey Building Products Group Ltd v The Commerce Commission PC 14-Jul-2004
(New Zealand) The company had been found guilty under the Act of abusing its dominant position. The appeal was restricted to whether the dominant position was being used in the way suggested. Would the company have introduced its price cuts if it . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 19 May 2022; Ref: scu.199227

Royal Brunei Airlines SDN BHD v Tan: PC 24 May 1995

(Brunei) The defendants were a one-man company, BLT, and the one man, Mr Tan. A dishonest third party to a breach of trust was liable to make good a resulting loss even though he had received no trust property. The test of knowledge was an objective one: ”knowingly’ was better avoided as a defining ingredient of the liability, and that in that context the Baden categorisation was best forgotten. Although my own view is that the categorisation is often helpful in identifying different states of knowledge which may or may not result in a finding of dishonesty for the purposes of knowing assistance, I have grave doubts about its utility in cases of knowing receipt.’ and ‘Recipient liability is restitution-based; accessory liability is not’.
Lord Nicholls summarised the ingredients of liability for dishonest assistance: ‘Drawing the threads together, their Lordships’ overall conclusion is that dishonesty is a necessary ingredient of accessory liability. It is also a sufficient ingredient. A liability in equity to make good resulting loss attaches to a person who dishonestly procures or assists in a breach of trust or fiduciary obligation. It is not necessary that, in addition, the trustee or fiduciary was acting dishonestly, although this will usually be so where the third party who is assisting him is acting dishonestly. ‘Knowingly’ is better avoided as a defining ingredient of the principle, and in the context of this principle the Baden scale of knowledge is best forgotten.’

Judges:

Lord Nicholls of Birkenhead, Lord Nicholls

Citations:

Independent 22-Jun-1995, [1995] 2 AC 378, [1995] UKPC 4, [1995] 3 All ER 97, [1995] UKPC 22

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Citing:

CitedBelmont Finance Corporation Ltd v Williams Furniture Ltd (No 2) 1980
It had been alleged that there had been a conspiracy involving the company giving unlawful financial assistance for the purchase of its own shares.
Held: Dishonesty is not a necessary ingredient of liability in an allegation of a ‘knowing . .
CitedIn re Montagu’s Settlement Trusts 1987
In the context of knowing receipt, a categorisation of knowledge is used to determine whether a person is bound by notice.
Sir Robert Megarry V-C said: ‘The cold calculus of constructive and imputed notice does not seem to me to be an . .
CitedBarnes v Addy 1874
A stranger to a trust can be liable in equity for assisting in a breach of trust, even though he received no trust property.
Lord Selborne said: ‘Now in this case we have to deal with certain persons who are trustees, and with certain other . .

Cited by:

CitedTwinsectra Ltd v Yardley and Others HL 21-Mar-2002
Solicitors acted in a loan, giving an undertaking as to its application. In breach of that undertaking they released it to the borrower. The appellants appealed a finding of liability as contributors to the breach.
Held: ‘Money in a . .
CitedDubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
AppliedBank of Credit and Commerce International (Overseas) Ltd and Another v Akindele ChD 1999
Chief Akindele agreed in 1985 with ICIC Overseas to invest US$10m in the purchase of 250,000 shares of BCCI Holdings, and to hold the shares for two years. If he wanted to sell the shares after the expiry of two years and up to five years from the . .
Disapproved in partBank of Credit and Commerce International (Overseas) Ltd and Another v Akindele CA 22-Jun-2000
The test of whether a person who received funds held them on constructive trust, was not whether he himself was dishonest, but rather whether he had knowledge of circumstances which made it unconscionable to hold on to the money received. In respect . .
CitedHarrison v Teton Valley Trading Co; Harrison’s Trade Mark Application (CHINAWHITE) CA 27-Jul-2004
The applicant had been an employee of the objector at their nightclub ‘Chinawhite’ and whose principal attraction was a cocktail of the same name. Employees signed a confidentiality agreement as to the recipe. Having left the employment, the . .
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
CitedBarlow Clowes International Ltd and Another v Eurotrust International Ltd and others PC 10-Oct-2005
(Court of Appeal of the Isle of Man) Defendants appealed a finding of dishonest assistance in the activities of Barlow Clowes.
Held: The judge had been able to reach the conclusions on the basis of the evidence. The appeal of the deemster . .
CitedAbouRahmah and Another v Abacha and others QBD 28-Nov-2005
Claims were made as to an alleged fraud by some of the respondents. . .
CitedBritish Telecommunications Plc; Virgin Enterprises Ltd; J Sainsbury Plc; Marks and Spencer Plc and Ladbroke Group Plc v One In a Million Ltd and others CA 23-Jul-1998
Registration of a distinctive Internet domain name using registered trade marks and company names could be an infringement of a registered Trade Mark, and also passing off. It was proper to grant quia timet injunctions where necessary to stop . .
CitedCharter Plc and Another v City Index Ltd and others ChD 12-Oct-2006
An employee of the claimant had fraudulently spent several million pounds of the claimant’s money on personal bets through the defendant company. The claimant said that the defendants knew the origin of the funds and were liable to repay them. . .
CitedCriterion Properties plc v Stratford UK Properties LLC and others HL 17-Jun-2004
The parties presented their claim before the House, but the House found that it was to be argued differently. The new arguments had not been pursued or prepared before the case came to the House, and it was remitted to the lower courts for the issue . .
CitedRoberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
CitedLaw Society of England and Wales v Isaac and Isaac International Holdings Ltd and Others ChD 7-Jul-2010
. .
CitedVestergaard Frandsen A/S and Others v Bestnet Europe Ltd and Others SC 22-May-2013
The claimant companies appealed against a reversal of their judgment against a former employee that she had misused their confidential trade secrets after leaving their employment. The companies manufactured and supplied bednets designed to prevent . .
CitedWilliams v Central Bank of Nigeria QBD 8-Apr-2011
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 . .
CitedWilliams v Central Bank of Nigeria SC 19-Feb-2014
Bank not liable for fraud of customer
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 . .
CitedJetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
ApprovedIvey v Genting Casinos (UK) Ltd (T/A Crockfords) SC 25-Oct-2017
The claimant gambler sought payment of his winnings. The casino said that he had operated a system called edge-sorting to achieve the winnings, and that this was a form of cheating so as to excuse their payment. The system exploited tiny variances . .
Lists of cited by and citing cases may be incomplete.

Trusts, Commonwealth

Updated: 19 May 2022; Ref: scu.88893

Ramstead v The Queen: PC 2 Dec 1998

New Zealand. Where a judge had received a note from the jury as to intended riders to their verdict, he was obliged to notify counsel and, having seen the foreman of the jury in chambers in counsel’s absence, the verdicts had constituted a material irregularity

Judges:

Lord Steyn

Citations:

Times 03-Dec-1998, [1998] UKPC 47, [1999] 2 WLR 698, [1999] 2 AC 92

Links:

Bailii

Citing:

EndorsedRegina v Gorman CACD 1987
Lord Lane CJ said: ‘ . . certain propositions can now be set out as to what should be done by a judge who receives a communication from a jury which has retired to considered its verdict.
First of all, if the communication raises something . .

Cited by:

CitedRegina v Tantram; Regina v Bibby etc CACD 24-May-2001
The defendants appealed against their convictions for conspiracy in have combined to put into the human food chain poultry meat which had been condemned as unfit. The jury after retiremen had indicated that they had reached agreement on some . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Commonwealth

Updated: 19 May 2022; Ref: scu.85663

Thomas Reckley v Minister of Public Safety and Immigration and Others (Bahamas) (No 2): PC 6 Feb 1996

(The Bahamas) The actual exercise of the prerogative of mercy by a state falls outside the scope of the law. No further stay of execution granted.

Citations:

Times 06-Feb-1996, [1996] UKPC 1, [1996] 1 All ER 562

Links:

Bailii, PC, PC

Constitutional, Criminal Sentencing, Commonwealth

Updated: 19 May 2022; Ref: scu.85921

Personal Representatives of Tang Man Sit v Capacious Investments Ltd: PC 18 Dec 1995

The claimant, Capacious Investments Ltd, brought proceedings against Tang’s estate for damages for the loss of use and occupation, and also an account of profits and damages for loss and damage incurred, for example by encumbering the property with leases. It obtained an account of profits and an award of compensatory damages as a result of the same breach of trust. The PRs appealed.
Held: The claimant could elect to receive the higher award to which it was entitled but it had to give credit against the damages for loss of use and occupation for the sums received pursuant to the account of profits. Moreover, there was nothing inconsistent between the claim for damage to the property and the claim for damages for loss of use. These were in effect cumulative remedies claimed on a basis which was consistent between themselves.
An action for account is an alternative claim, and is not cumulative to a claim for damages. Courts should distinguish election between remedies from election between rights.
Lord Nicholls of Birkenhead ex plained the nature of alternative and cumulative damages awards: ‘The law frequently affords an injured person more than one remedy for the wrong he has suffered. Sometimes the two remedies are alternative and inconsistent. The classic example, indeed, is (1) an account of the profits made by a defendant in breach of his fiduciary obligations and (2) damages for the loss suffered by the plaintiff by reason of the same breach. The former is measured by the wrongdoer’s gain, the latter by the injured party’s loss.
Sometimes the two remedies are cumulative. Cumulative remedies may lie against one person. A person fraudulently induced to enter into a contract may have the contract set aside and also sue for damages. Or there may be cumulative remedies against more than one person. A plaintiff may have a cause of action in negligence against two persons in respect of the same loss.
Alternative remedies
Faced with alternative and inconsistent remedies a plaintiff must choose, or elect, between them. He cannot have both. The basic principle governing when a plaintiff must make his choice is simple and clear. He is required to choose when, but not before, judgment is given in his favour and the judge is asked to make orders against the defendant. A plaintiff is not required to make his choice when he launches his proceedings. He may claim one remedy initially, and then by amendment of his writ and his pleadings abandon that claim in favour of the other. He may claim both remedies, as alternatives. But he must make up his mind when judgment is being entered against the defendant. Court orders are intended to be obeyed. In the nature of things, therefore, the court should not make orders which would afford a plaintiff both of two alternative remedies.
In the ordinary course, by the time the trial is concluded a plaintiff will know which remedy is more advantageous to him. By then, if not before, he will know enough of the facts to assess where his best interests lie. There will be nothing unfair in requiring him to elect at that stage. Occasionally this may not be so. This is more likely to happen when the judgment is a default judgment or a summary judgment than at the conclusion of a trial. A plaintiff may not know how much money the defendant has made from the wrongful use of his property. It may be unreasonable to require the plaintiff to make his choice without further information. To meet this difficulty, the court may make discovery and other orders designed to give the plaintiff the information he needs, and which in fairness he ought to have, before deciding upon his remedy. A recent instance where this was done is the decision of Lightman J. in Island Records Ltd. v. Tring International Plc. [1995] 3 All E.R. 444. The court will take care to ensure that such an order is not oppressive to a defendant.
In the ordinary course the decision made when judgment is entered is made once and for all. That is the normal rule. The order is a final order, and the interests of the parties and the public interest alike dictate that there should be finality. The principle, however, is not rigid and unbending. Like all procedural principles, the established principles regarding election between alternative remedies are not fixed and unyielding rules. These principles are the means to an end, not the end in themselves. They are no more than practical applications of a general and overriding principle governing the conduct of legal proceedings, namely, that proceedings should be conducted in a manner which strikes a fair and reasonable balance between the interests of the parties, having proper regard also to the wider public interest in the conduct of court proceedings. Thus in Johnson v. Agnew [1980] A.C. 367 the House of Lords held that when specific performance fails to be realised, an order for specific performance may subsequently be discharged and an inquiry as to damages ordered. Lord Wilberforce observed, at p. 398: ‘Election, though the subject of much learning and refinement, is in the end a doctrine based on simple considerations of common sense and equity.
Cumulative remedies
The procedural principles applicable to cumulative remedies are necessarily different. Faced with alternative and inconsistent remedies a plaintiff must choose between them. Faced with cumulative remedies a plaintiff is not required to choose. He may have both remedies. He may pursue one remedy or the other remedy or both remedies, just as he wishes. It is a matter for him. He may obtain judgment for both remedies and enforce both judgments. When the remedies are against two different people, he may sue both persons. He may do so concurrently, and obtain judgment against both. Damages to the full value of goods which have been converted may be awarded against two persons for successive conversions of the same goods. Or the plaintiff may sue the two persons successively. He may obtain judgment against one, and take steps to enforce the judgment. This does not preclude him from then suing the other. There are limitations to this freedom. One limitation is the so called rule in Henderson v. Henderson (1843) 3 Hare 100. In the interests of fairness and finality a plaintiff is required to bring forward his whole case against a defendant in one action. Another limitation is that the court has power to ensure that, when fairness so requires, claims against more than one person shall all be tried and decided together. A third limitation is that a plaintiff cannot recover in the aggregate from one or more defendants an amount in excess of his loss. Part satisfaction of a judgment against one person does not operate as a bar to the plaintiff thereafter bringing an action against another who is also liable, but it does operate to reduce the amount recoverable in the second action. However, once a plaintiff has fully recouped his loss, of necessity he cannot thereafter pursue any other remedy he might have and which he might have pursued earlier. Having recouped the whole of his loss, any further proceedings would lack a subject matter. This principle of full satisfaction prevents double recovery.’

Judges:

Lord Nicholls of Birkenhead

Citations:

Gazette 07-Feb-1996, Times 26-Dec-1995, [1996] AC 514, [1995] UKPC 54, [1996] 1 All ER 193, [1996] 2 WLR 192

Links:

Bailii

Citing:

CitedHenderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
CitedJohnson v Agnew HL 1979
The seller had obtained a summary order for specific performance of a contract for the sale of land against the buyer.
Held: The breach was continuing and was still capable of being remedied by compliance with the order for specific . .
CitedIsland Records Ltd v Tring International Plc and Another ChD 12-Apr-1995
A copyright plaintiff may delay the choice of his remedy between damages and account of profits until information was available from the defendant which would allow him to gauge which remedy suited him best. The court may make the orders necessary . .

Cited by:

CitedWestminster City Council v Porter and Another ChD 30-Jul-2002
The claimant authority sought compensation from the respondents for acts committed whilst she had been a councillor. The auditor had certified that the respondents had caused losses amounting to 31 million pounds.
Held: Summary judgement was . .
CitedOliver Ashworth (Holdings) Limited v Ballard (Kent) Limited CA 18-Mar-1999
In order for the landlord to claim double rent where a tenant held over unlawfully after the tenancy was determined, the landlord must not do anything to indicate that the lease might be continuing, for example by denying the validity of break . .
CitedHeaton and Others v AXA Equity and Law Life Assurance Society plc and Another HL 25-Apr-2002
The claimant had settled one claim in full and final satisfaction against one party, but then sought further damages from the defendant, for issues related to a second but linked contract. The defendant claimed the benefit of the settlement.
CitedRamzan v Brookwide Ltd CA 19-Aug-2011
The defendant had broken through into a neighbour’s flying freehold room, closed it off, and then included it in its own premises for let. It now appealed against the quantum of damages awarded. The judge had found the actions deliberate and with a . .
Lists of cited by and citing cases may be incomplete.

Damages, Commonwealth

Updated: 19 May 2022; Ref: scu.84679

Mitchell v The Queen: PC 24 Jan 1998

(Bahamas) The judge’s decision on a voire dire to determine the admissibility of a confession should not be revealed to the jury since it might cause unfair prejudice to the defendant by conveying the impression that the judge had reached a concluded view on the credibility of the relevant witnesses and of the defendant. Lord Steyn said: ‘The vice is that the knowledge by the jury that the judge has believed the police and disbelieved the defendant creates the potentiality of prejudice. A jury of laymen, or some of them, might be forgiven for saying: ‘Well the judge did not believe the defendant, why should we believe him?’ At the very least it creates the risk that the jury, or some of them, may be diverted from grappling properly and independently with a defendant’s allegations of oppression so far as it is relevant to their decision. And such an avoidable risk of prejudice cannot be tolerated in regard to a procedure designed to protect a defendant.’ and as to whether this defect could be cured by the judge’s directions: ‘This was a serious irregularity, notably because it was calculated to convey to the jury that the judge had arrived at a concluded view that he ought to accept the evidence of the police witnesses and Franklyn Williams and reject the evidence of the defendant. That was the basis on which the jury then heard the evidence about the confessions over a number of days. The judge did not subsequently tell the jury to ignore his decision as to voluntariness of the confessions. For these reasons their Lordships cannot accept the Crown’s preliminary submission that the irregularity was ex post facto cured.’

Judges:

Lord Steyn

Citations:

Times 24-Jan-1998, [1998] UKPC 1, [1998] AC 695

Links:

Bailii

Cited by:

CitedMichael Adams and Frederick Lawrence v Regina PC 18-Mar-2002
PC (Jamaica) The defendants appealed against convictions for non-capital murder. Because of delays, the defendants had served almost the full minimum sentence.
Held: The trial judge had heard a plea of no . .
CitedTaylor v The Queen PC 13-Mar-2006
(Jamaica) The defendant appealed against his conviction for murder. He complained that admissions against each other by the co-defendants had been entered in evidence despite his allegations of police mistreatment. The statement was the only . .
CitedMitcham v The Queen PC 16-Mar-2009
(Saint Christopher and Nevis) The applicant appealed against his sentence of death following his conviction for murder. He had been granted a stay of execution pending the appeal to the board and had since been given leave to appeal against . .
AppliedThompson v The Queen PC 16-Feb-1998
(Saint Vincent and the Grenadines) When a defendant is of good character, ie has no convictions of any relevance or significance, he is entitled to the benefit of a good character direction from the judge when summing up to the jury, tailored to fit . .
CitedKrishna v The State PC 6-Jul-2011
krishna_statePC11
(Trinidad and Tobago) The applicant appealed against his conviction for murder, complaining as to the way a former co-accused had been allowed to give evidence and the admission of a confession, saying that he had been beaten by police officers.
CitedWilliams v The Queen PC 25-Apr-2006
PC Jamaica – the appellant had been twelve when convicted on his own confession of murder. He said that the statement after oppression. The statement had been challenged but admitted without following the . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Commonwealth

Updated: 19 May 2022; Ref: scu.83776

Invercargill City Council v Hamlin: PC 12 Feb 1996

(New Zealand) Seventeen years earlier the plaintiff had asked a builder to construct a house for him, but it now appeared that the foundations had been inadequate. The building company no longer being in existence, he sought damages from the local authority which had supervised the construction.
Held: A Local Authority was liable for economic losses for a negligent inspection of a house during construction. Murphy had not been followed in New Zealand and the Privy Council accepted that this was justified. The Pirelli date of physical damage had also been discarded in favour of the date of discoverability. The decision in Pirelli was unfortunate: Once it is appreciated that the loss in respect of which the plaintiff in the present case is suing is loss to his pocket, and not for physical damage to the house or foundations, then most, if not all the difficulties surrounding the limitation question fall away. The plaintiff’s loss occurs when the market value of the house is depreciated by reason of the defective foundations, and not before. If he resells the house at full value before the defect is discovered he suffers no loss. Thus in the common case the occurrence of the loss and the discovery of the loss will coincide . . But the plaintiff cannot postpone the start of the limitation period by shutting his eyes to the obvious . . . In other words the cause of action accrues when the cracks become so bad and all the defects so obvious, that any reasonable home-owner would call in an expert. Since the defects would then be obvious to a potential buyer or his expert, that marks the moment when the market value of the building is depreciated and therefore the moment when economic loss occurs. Their Lordships do not think it is possible to define the moment more accurately. The measure of the loss will then be the cost of repairs if it is reasonable to repair, or the depreciation in the market value if it is not . . . This approach avoids almost all the practical and theoretical difficulties to which the academic commentators have drawn attention and which led to the rejection of Pirelli by the Supreme Court of Canada . . . The approach is consistent with the underlying principle that a cause of action accrues when, but not before, all the elements necessary to support the plaintiff’s claim are in existence. For in the case of a latent defect in a building the element of loss or damage which is necessary to support a claim for economic loss in tort does not exist so long as the market value of the house is unaffected. Whether or not it is right to describe an undiscoverable crack as damage, it clearly cannot affect the value of the building on the market. The existence of such a crack is thus irrelevant to the cause of action . . . Whether Pirelli should still be regarded as good law in England is not for their Lordships to say. What is clear is that it is not good law in New Zealand.

Judges:

Lord Browne-Wilkinson, Lord Keith of Kinkel, Lord Browne-Wilkinson, Lord Mustill, Lord Lloyd of Berwick, Sir Michael Hardie Boys

Citations:

Times 15-Feb-1996, 50 Con LR 105, [1996] AC 624, [1996] UKPC 56, 78 BLR 78, [1996] 1 NZLR 513, [1996] 1 All ER 756

Links:

Bailii

Citing:

CitedMurphy v Brentwood District Council HL 26-Jul-1990
Anns v Merton Overruled
The claimant appellant was a house owner. He had bought the house from its builders. Those builders had employed civil engineers to design the foundations. That design was negligent. They had submitted the plans to the defendant Council for approval . .
CitedPirelli General Cable Works v Oscar Faber and Partners HL 2-Jan-1983
The plaintiff asked the defendant consulting engineer to design an extension to their factory in 1969. Not later than in April 1970, cracks developed in the chimney. In 1977 the cause of the damage was discovered. It arose from design faults in the . .

Cited by:

CitedAbbott and Another v Will Gannon and Smith Ltd CA 2-Mar-2005
The claimant had employed the defendants to design refurbishment works for their hotel. The work was said to be negligent, and the claimant sought damages. The defendant argued as a preliminary point that the claim was time barred. The question was . .
CitedW v W; J v Raewyn Bell PC 19-Jan-1999
PC (New Zealand) The claimants sught to recover exemplary damages from defendants convicted of criminal offences against them.
Held: There were differences in the system between New Zealand and the English . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Construction, Local Government, Negligence

Updated: 19 May 2022; Ref: scu.82411

Haydon and Others v Lo and Lo (A Firm) and Another: PC 23 Jan 1997

(Hong Kong) A claim was made under a professional indemnity policy. The solicitors’ clerk had through a series of frauds embezzled some HK$50m. The insurers said that this was one claim, and that their liability was limited to the maximum under the policy. The question was whether this was ‘one claim’ or a series of claims.
Held: The phrase referred to the claim as directed against the firm by the client who had lost out, and not to the several acts of appropriation by the clerk. ‘it is the underlying facts which are determinative, and . . the formulation of the claim by the third party cannot be decisive of an insurer’s liability, whether for the purpose of calculating the deductible, or for any other purpose. ‘
(Hong Kong)

Judges:

Lord Goff of Chieveley, Lord Griffiths, Lord Lloyd of Berwick, Lord Hope of Craighead, Sir Christopher Slade

Citations:

Times 23-Jan-1997, [1997] UKPC 2, [1997] 1 WLR 198

Links:

Bailii

Jurisdiction:

Commonwealth

Citing:

CitedAustralia and New Zealand Bank Limited v Colonial and Eagle Wharves Limited 1960
A claim was made under an all risks insurance policy on goods taken out by a firm of wharfingers. There was an excess of andpound;100 each and every claim. During the currency of the policy the wharfingers misdelivered a total of 246 bales on 30 . .
CitedWest Wake Price and Co v Ching 1957
A clerk employed by a firm of accountants defrauded two of the firm’s clients of andpound;20,000 over a period of about three years.
Held: One can not ‘pay’ a cause of action.
Devlin J said: ‘I think that the primary meaning of the word . .
Lists of cited by and citing cases may be incomplete.

Insurance, Commonwealth

Updated: 19 May 2022; Ref: scu.81285

Harley v McDonald; Glasgow Harley (A Firm) v McDonald: PC 10 Apr 2001

(New Zealand) A solicitor’s duty to the court was not breached merely because he had, on his client’s instructions, pursued a case which was hopeless. It was also inapposite to penalize him for work undertaken before the court had warned him of the view that the case was hopeless. The solicitor, as an officer of the court, has duties to achieve a minimum level of competence and not to abuse the court’s process. In its nature, the procedure of penalising a solicitor in costs, will be summary. The court should allow the solicitor proper opportunity to defend himself, and should restrain itself from investigating matters which were within judicial knowledge.

Citations:

Times 15-May-2001, [2001] UKPC 20, Nos 9 of 2000 and 50 of 2000, [2001] 2 WLR 1749, [2001] 2 AC 678, [2001] Lloyd’s Rep PN 584

Links:

Bailii, PC, PC

Citing:

CitedMyers v Elman HL 1939
The solicitor had successfully appealed against an order for a contribution to the other party’s legal costs, after his clerk had filed statements in court which he knew to be misleading. The solicitor’s appeal had been successful.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Commonwealth

Updated: 19 May 2022; Ref: scu.81242

Michael Gayle v the Queen (Jamaica): PC 2 Jul 1996

The judicial Committee of the Privy-Council is not to be used as second court of appeal on matters of fact.

Citations:

Times 02-Jul-1996, Appeal No 40 of 1995, Appeal No 40 of 1995, [1996] UKPC 3, [1996] UKPC 18, [2012] ECHR 1636, [2012] ECHR 1635, [2012] ECHR 1637, [1990] ECHR 34, [2009] ECHR 619, [1980] ECHR 9, [1997] ECHR 205, [2014] ECHR 293, [1978] ECHR 8, [2010] ECHR 2263, [1994] ECHR 59, [2011] ECHR 2422, [1985] ECHR 14, [2016] ECHR 699, [2016] ECHR 704, [2016] ECHR 986, [2017] ECHR 32

Links:

PC, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii

Jurisdiction, Criminal Practice, Commonwealth

Updated: 19 May 2022; Ref: scu.80774

Goss and others v Laurence George Chilcott As Liquidator of Central Acceptance Limited (In Liquidation): PC 23 May 1996

(New Zealand) Mr and Mrs Goss, had been granted a loan by the claimant finance company under a mortgage instrument that had been avoided by the claimant because it had been fraudulently altered by Mr Haddon, an employee of the claimant, without the claimant’s authority. Mr Haddon was the brother of Mrs Goss. The advance from the claimant having been made available to Mr and Mrs Goss, it was as agreed between them and Mr Haddon in fact received by Mr Haddon. Mr and Mrs Goss took no security from Mr Haddon. Mr Haddon was unable to repay the advance. Mr and Mrs Goss argued that their inability to recover the money from Mr Haddon constituted a defence of change of position to the claimant’s action for restitution of the money paid for a consideration that had totally failed.
Held: The loan remained repayable despite the unenforceability of the mortgage instrument under which it was secured. The defence failed because Mr and Mrs Goss knew that the money lent would have to be repaid to the claimant and, in paying it to Mr Haddon, they had taken the risk that the loss would fall on them.
Lord Goff said: ‘From the beginning, the Defendants were under an obligation to repay the advance once it had been paid to them or to their order; and this obligation was of course unaffected by the fact that they had allowed the money to be paid over to Mr Haddon. The effect of the alteration of the mortgage instrument was that their contractual obligation to repay the money was discharged; but they had nevertheless been enriched by the receipt of the money, and prima facie were liable in restitution to restore it. They had however allowed the money to be paid over to Mr Haddon in circumstances in which, as they well knew, the money would nevertheless have to be repaid to the company. They had, therefore, in allowing the money to be paid to Mr Haddon, deliberately taken the risk that he would be unable to repay the money, in which event they themselves would have to repay it without recourse to him. Since any action by them against Mr Haddon would now be fruitless they are seeking, by invoking the defence of change of position, to shift that loss onto the company. This, in their Lordships’ opinion, they cannot do. The fact that they cannot now obtain reimbursement from Mr Haddon does not, in the circumstances of the present case, render it inequitable for them to be required to make restitution to the company in respect of the enrichment which they have received at the company’s expense.’

Judges:

Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Steyn, Lord Hoffmann, Lord Cooke of Thorndon

Citations:

Gazette 12-Jun-1996, Times 06-Jun-1996, [1996] UKPC 17, [1996] AC 788

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedDavidson, Public Officer, &Amp;C v Cooper And Another 6-Jul-1844
. .
CitedFibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd HL 15-Jun-1942
A contract for the supply by the respondents of special machinery to be manufactured by them was treated as an ordinary contract for the sale of goods. It began valid, but suffered frustration by the outbreak of war.
Held: Lord Wright restated . .
CitedDavid Securities Pty Ltd v Commonwealth Bank of Australia 7-Oct-1992
(High Court of Australia ) Restitution – Money paid under mistake – Mistake of law – Right to recover – Unjust enrichment – Defences – Change of position. . .

Cited by:

CitedKommune and Another v DEPFA Acs Bank ComC 4-Sep-2009
Local authorities in Denmark sought to recover sums paid to the defendant banks for swap trading, saying that the payments had been outwith their powers. . .
Lists of cited by and citing cases may be incomplete.

Banking, Commonwealth, Equity

Updated: 19 May 2022; Ref: scu.80939

Dunkley and Robinson v The Queen: PC 1 Nov 1994

(Jamaica) The appellant’s counsel had walked out of a murder trial after a dispute with the judge, leaving the appellant unrepresented for the remainder of the proceedings.
Held: A defendant in a capital murder case is to be allowed to find new counsel after his counsel quit. A case which had continued without this being allowed was unfair: ‘. . . where a defendant faces a capital charge and is left unrepresented through no fault of his own the interest of justice require that in all but the most exceptional cases there be a reasonable adjournment to enable him to try and secure alternative representation.’

Citations:

Independent 01-Nov-1994, Gazette 09-Nov-1994, [1995] 1 AC 419

Citing:

AppliedRobinson v The Queen PC 1985
Where a defendant found himself unrepresented on the day of trial, an adjournment should be granted. The constitutional right to representation was not a guarantee of representation but a right for the defendant to arrange representation at his own . .

Cited by:

CitedGianchand Jahree v The State PC 28-Feb-2005
(Mauritius) The defendant appealed his conviction for possession of counterfeit bank notes, saying he had been unrepresented throughout, and that the magistrate had intervened in the character of a prosecutor.
Held: The right to representation . .
CitedGianchand Jahree v The State PC 28-Feb-2005
(Mauritius) The defendant appealed his conviction for possession of counterfeit bank notes, saying he had been unrepresented throughout, and that the magistrate had intervened in the character of a prosecutor.
Held: The right to representation . .
CitedGrant v The Queen PC 16-Jan-2006
(Jamaica) The defendant appealed his conviction for murder saying that the admission of an unsworn statement by one witness and the non-admission of another similar statement who did not either attend court was unconstitutional. He shot the victim . .
CitedDelroy Ricketts v The Queen PC 15-Dec-1997
(Jamaica) Special leave was granted to the defendant to appeal his conviction for murder. Counsel had been late for his trial, and the jury empanelled. When counsel arrived he said the defendant had not understood the judge. A trial took place as to . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Commonwealth

Updated: 19 May 2022; Ref: scu.80170

Director of Buildings and Lands v Shun Fung Ironworks Ltd: PC 20 Feb 1995

Compensation is payable for losses properly anticipating resumption of possession of the land. The principle of equivalence gives rise to the statutory right to interest under section 11(1). The council explained the conceptual foundation of the discounted cash flow basis of calculation: ‘In this calculation the discount rate, or capitalisation rate, comprises the rate at which an amount of money payable at a future date should be reduced to arrive at its present value. Its present value is the price which a person would pay now for the right or prospect of receiving the amount of money in question at the future date. Three ingredients can be identified in the discount rate. One is the rate of return the potential purchaser would expect on his money, assuming that the payment to him at the future date is free of risk. A second ingredient is the allowance the potential purchaser would make because of the likely impact of inflation. He is buying today, in today’s currency, the right to be paid at a future date an amount which, when paid, will be paid in tomorrow’s depreciated currency. The third ingredient is the risk factor. The greater the risk that the purchaser will not receive in due course the future payments he is buying, the higher the rate of return he will require.’

Judges:

Lord Nicholls, Lord Keith of Kinkel, Lord Mustill, Lord Slynn of Hadley, Lord Lloyd of Berwick

Citations:

Times 27-Feb-1995, [1995] 2 AC 111

Links:

PC

Statutes:

Compulsory Purchase Act 1965 11(1)

Cited by:

CitedHalstead v Council of City of Manchester CA 23-Oct-1997
Land had been compulsorily purchased, and the compensation agreed, but after long delays in payment, not as to the calculation of interest.
Held: Interest would be payable from the date of entry. The limitation period arose only once the . .
CitedMohammed Aslam v South Bedfordshire District Council CA 21-Dec-2000
The claimant appealed an award of the Lands Tribunal of compensation for an order discontinuing his use as a slaughterhouse of premises of which he held a long lease. The tribunal had applied a discount for wastage on sheep carcasses of 25%, but had . .
CitedFaraday v Carmarthenshire County Council CA 10-May-2004
The claimant appealed against an award of compensation on the compulsory acquisition of his land by the defendant.
Held: The award was incorrect. The authority had wrongly deducted a sum in respect of ‘freed up time’ – which would have allowed . .
CitedRyde International Plc v London Regional Transport CA 5-Mar-2004
The landowner had developed land which was then made the subject of compulsory purchase. The court was asked how the compensation was to be calculated. The landowner expected to sell the development as a whole. The respondent argued that the profit . .
CitedMoto Hospitality Ltd v Secretary of State for Transport CA 26-Jul-2007
The company sought damages to its business on a motorway service station when works closed an access road.
Held: The Secretary of State’s appeal succeeded. A claim for compensation under section 10 had not been established, at least in respect . .
CitedStar Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Lists of cited by and citing cases may be incomplete.

Land, Commonwealth, Damages

Updated: 19 May 2022; Ref: scu.79977

Rupert Crosdale v The Queen: PC 6 Apr 1995

(Jamaica) A court’s insistence that a submission of no case to answer must be made in the presence of jury was unfair. When considering submissions of no case to answer, the judge should invite the jury to retire and, if he decided to reject the plea, he should say nothing to the jury about it. Where in any case the jury had remained in court during the submissions, the question for the appeal court would be whether in the circumstances of the case there was any significant risk of prejudice having resulted from the irregularity.

Citations:

Gazette 21-Jun-1995, [1995] 1 WLR 864, [1995] UKPC 1, Appeal No 13 of 1994

Links:

Bailii, PC, PC

Jurisdiction:

England and Wales

Cited by:

CitedMichael Adams and Frederick Lawrence v Regina PC 18-Mar-2002
PC (Jamaica) The defendants appealed against convictions for non-capital murder. Because of delays, the defendants had served almost the full minimum sentence.
Held: The trial judge had heard a plea of no . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 19 May 2022; Ref: scu.79678

Clark Boyce v Mouat: PC 4 Oct 1993

(New Zealand) No duty of wisdom is owed to client in full command of his faculties by a lawyer. If the client requires only action from his lawyer, that is what is required. Informed consent can be sufficient to allow a solicitor to act for two parties even if there may be a conflict: ‘When a client in full command of his faculties and apparently aware of what he is doing seeks the assistance of a solicitor in the carrying out of a particular transaction, that solicitor is under no duty whether before or after accepting instructions to go beyond those instructions by proffering unsought advice on the wisdom of the transaction.’ and ‘There is no general rule of law to the effect that a solicitor should never act for both parties in a transaction where their interests may conflict. Rather is the position that he may act provided that he has obtained the informed consent of both to his acting. Informed consent means consent given in the knowledge that there is a conflict between the parties and that as a result the solicitor may be disabled from disclosing to each party the full knowledge which he possesses as to the transaction or may be disabled from giving advice to one party which conflicts with the interests of the other.’
Lord Jauncey of Tullichettle: ‘Their Lordships are accordingly satisfied that Mrs Mouat required of Mr Boyce no more than that he should carry out the necessary conveyancing on her behalf and explain to her the legal consequences of the transaction. Since Mrs Mouat was already aware of the consequences if her son defaulted Mr Boyce did all that was reasonably required of him before accepting her instructions when he advised her to obtain and offered to arrange independent advice. As Mrs Mouat was fully aware of what she was doing and had rejected independent advice, there was no duty on Mr Boyce to refuse to act for her. Having accepted instructions he carried these out properly and was neither negligent nor in breach of contract in acting and continuing to act after Mrs Mouat had rejected his suggestion that she obtain independent advice. Indeed not only did Mr Boyce in carrying out these instructions repeat on two further occasions his advice that Mrs Mouat should obtain independent advice but he told her in no uncertain terms that she would lose her house if Mr R.G. Mouat defaulted. One might well ask what more he could reasonably have done.
When a client in full command of his faculties and apparently aware of what he is doing seeks the assistance of a solicitor in the carrying out of a particular transaction, that solicitor is under no duty whether before or after accepting instructions to go beyond those instructions by proffering unsought advice on the wisdom of the transaction. To hold otherwise could impose intolerable burdens on solicitors.’

Judges:

Lord Jauncey of Tullichettle

Citations:

Independent 12-Oct-1993, Times 07-Oct-1993, Gazette 03-Nov-1993, [1994] 1 AC 428, [1993] UKPC 34

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedFarrington v Rowe McBride and Partners 1985
(New Zealand) When a solicitor acts for two clients and there is a conflict in his responsibilities, the solicitor must ensure that he fully discloses the material facts to both clients and obtains their informed consent to his so acting. There may . .

Cited by:

CitedPickersgill and Another v Riley PC 25-Feb-2004
PC (Jersey) The solicitor appealed a finding of negligence. He had failed to advise his client when he acted as a guarantor for a proposed assignee of a lease that the company may be a shell company. It had been . .
CitedHilton v Barker Booth and Eastwood HL 3-Feb-2005
The claimant had instructed the defendant solicitors to act for him, where he was to contract with another client of the same solicitor in a land development. The solicitor failed to disclose that the other client had convictions for dishonesty, and . .
CitedBurkle Holdings Ltd v Laing TCC 23-Mar-2005
The parties had each instructed the same solicitor, but now disputed the entitlement of the other to see documents held by the solicitor. . .
CitedThe Football League Ltd v Edge Ellison (A Firm) ChD 23-Jun-2006
The claimants operated football leagues, and asked the defendant solicitors to act in negotiating the sale of television rights to ONdigital. The broadcasts went ahead, but no guarantees were taken for the contract. The claimants alleged . .
CitedCredit Lyonnais Sa (A Body Corporate) v Russell Jones and Walker (A Firm) ChD 2-Jul-2002
The claimant sought damages for professional negligence against the defendant solicitors. A corporate lawyer had been assigned to deal with a property matter, and he had failed to appreciate the need to comply strictly with time conditions in a . .
CitedPhelps v Stewarts (A Firm) and Another ChD 2-Jul-2007
The claimant sought damages for the negligent drafting of a deed of trust, saying that he had not been advised of a charge to tax which would arise. The defendant said that her duties were limited, and did not include advice on this point, having . .
Lists of cited by and citing cases may be incomplete.

Negligence, Legal Professions, Commonwealth

Updated: 19 May 2022; Ref: scu.79183

Chan Wai-Keung v The Queen: PC 10 Jan 1994

(Hong Kong) Evidence from a witness who was awaiting sentence in an unrelated matter was admissible since the jury had been warned of the dangers of such evidence. Lord Mustill said: ‘Once the courts have taken the large step, as they undoubtedly have, of recognising that circumstances may justify the calling of a witness who stands to gain by giving false evidence, it becomes impossible to say that what happened in the present case was necessarily contrary to the proper conduct of the murder trial. What was required was that the potential fallibility of [the witness] should be put squarely before the jury, and this is what was done.’
Evidence from a convict looking for a reduced sentence was admissible with an appropriate warning.

Judges:

Lord Mustill

Citations:

Times 21-Dec-1994, Independent 10-Jan-1994, [1995] 2 Cr App R 194, [1994] UKPC 47

Links:

Bailii

Cited by:

CitedGibson, Regina v CACD 11-Jan-2006
The defendant renewed has application for leave to appeal against his conviction for the murder of his daughter-in-law. The principle evidence against him was that of an accomplice. She had received letters to say that no further action would be . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Criminal Evidence, Commonwealth, Commonwealth

Updated: 19 May 2022; Ref: scu.78971

Cheah Theam Swee v Equitcorp Finance Group Ltd and Another: PC 5 Nov 1991

(New Zealand) A had given two charges over his shares to different lenders. The charges came to be both owned by the same person, who obtained judgment under the first charge, but then exercised its power of sale under the second, waiving its priority under the first. The chargor complained that the chargee should have exercised his power under the first charge which would have discharged the judgment.
Held: Owners of different mortgagees of a property can agree to alter the priority of their respective charges irrespective of the wishes of the chargor, and without needing his consent. The mortgagor had no control over which remedy was taken by the chargees.

Citations:

Gazette 08-Jan-1992, [1991] 4 All ER 989, [1991] UKPC 39

Links:

Bailii

Citing:

DistinguishedPalmer v Hendrie 1859
. .
See AlsoCheah Theam Swee v Equiticorp Finance Group Ltd. And, Equiticorp Nominees Ltd PC 12-Jul-1989
New Zealand . .
Lists of cited by and citing cases may be incomplete.

Company, Banking, Commonwealth

Updated: 19 May 2022; Ref: scu.78999

Brooks v Director of Public Prosecutions and Another: PC 2 Mar 1994

(Jamaica) The DPP successfully applied for a voluntary bill after the resident magistrate had discharged the defendant on the ground that having heard the evidence, there was no case to answer. The challenge to the DPP’s decision to seek a voluntary bill was advanced not on the ground of double jeopardy, but rather of abuse of process.
Held: The DPP or the judge should treat the decision of the resident magistrate with the greatest respect and regard their jurisdiction as one to be exercised with great circumspection. There have to be exceptional circumstances to warrant prosecuting a defendant after it has been found in committal proceedings that there is no case to answer. Nevertheless, a judge has the power to issue a voluntary bill of indictment ex parte.

Judges:

Lord Woolf

Citations:

Gazette 02-Mar-1994, [1994] 1 AC 568, [1994] UKPC 1

Links:

Bailii

Cited by:

CitedRegina (on the Application of Redgrave) v The Commissioner of Police for the Metropolis CA 22-Jan-2003
The police officer had been accused of an offence. The case was discharged under the section at committal. The Commissioner sought to commence disciplinary proceedings on the same evidence.
Held: The tests of the two sets of hearings were . .
CitedGadd, Regina v QBD 10-Oct-2014
The prosecutor sought leave to bring a voluntary bill of indictment, to pursue historic sex abuse allegations against the defendant. The defendant objected to counts founded on facts which were the substance of a charge of indecent assault . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Commonwealth

Updated: 18 May 2022; Ref: scu.78679

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

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

Judges:

Lord Woolf

Citations:

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

Citing:

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

Cited by:

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

Constitutional, Human Rights, Commonwealth

Updated: 18 May 2022; Ref: scu.77948

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

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

Judges:

Martland, Judson, Ritchie, Spence and Dickson JJ

Citations:

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

Links:

Canlii

Cited by:

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

Commonwealth, Equity

Updated: 18 May 2022; Ref: scu.567254

Official Trustee in Bankruptcy v Citibank Savings Ltd: 1995

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

Judges:

Bryson J

Citations:

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

Cited by:

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

Commonwealth, Equity

Updated: 18 May 2022; Ref: scu.567255

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

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

Judges:

Latham CJ, Rich and Dixon JJ

Citations:

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

Links:

Austlii

Commonwealth

Updated: 18 May 2022; Ref: scu.567822

High Parklane Consulting Inc v Lewis: 16 Jan 2007

(Ontario – Superior Court of Justice)

Judges:

Perell J

Citations:

2007 CanLII 410

Links:

Canlii

Cited by:

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

Commonwealth

Updated: 18 May 2022; Ref: scu.566207

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

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

Judges:

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

Citations:

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

Links:

Austlii

Cited by:

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

Commonwealth, Insurance

Updated: 18 May 2022; Ref: scu.566217

AMP Workers Compensation v QBE: 19 Sep 2001

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

Judges:

Mason P, Handley, Beazley JJA

Citations:

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

Links:

Austlii

Cited by:

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

Commonwealth, Insurance

Updated: 18 May 2022; Ref: scu.566218

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

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

Judges:

Allsop P, Giles JA, Young JA

Citations:

[2011] NSWCA 47

Links:

Austlii

Cited by:

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

Commonwealth, Insurance

Updated: 18 May 2022; Ref: scu.566219

Burke v LFOT Pty Ltd: 18 Apr 2002

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

Judges:

Gaudron ACJ, McHugh, Kirby, Hayne, Callinan JJ

Citations:

187 ALR 612, [2002] HCA 17

Links:

Austlii

Cited by:

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

Commonwealth, Damages, Equity, Natural Justice

Updated: 18 May 2022; Ref: scu.566220

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

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

Judges:

Somers J

Citations:

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

Links:

NZLII

Cited by:

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

Commonwealth, Intellectual Property

Updated: 18 May 2022; Ref: scu.566012

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

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

Judges:

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

Citations:

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

Links:

Austlii

Cited by:

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

Commonwealth, Intellectual Property

Updated: 18 May 2022; Ref: scu.566013

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

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

Judges:

Morden, Zuber, Robins JJA

Citations:

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

Links:

Canlii

Citing:

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

Cited by:

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

Commonwealth, Intellectual Property

Updated: 18 May 2022; Ref: scu.566011

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

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

Judges:

Smalberger, Harms, Marais, Schutz, Plewman JJA

Citations:

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

Links:

Saflii

Cited by:

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

Commonwealth, Intellectual Property

Updated: 18 May 2022; Ref: scu.566014

Regina v Salisbury: 9 Oct 1972

Australia – Victoria The court considered the nature of the act required to found an allegation of assault: ‘It may be that the somewhat different wording of section 20 of the English Act has played a part in bringing about the existence of the two lines of authority in England, but, be that as it may, we have come to the conclusion that, although the word ‘inflicts’ . . does not have as wide a meaning as the word ’causes’ . . the word ‘inflicts’ does have a wider meaning than it would have if it were construed so that inflicting grievous bodily harm always involved assaulting the victim. In our opinion, grievous bodily harm may be inflicted . . either where the accused has directly and violently ‘inflicted’ it by assaulting the victim, or where the accused has ‘inflicted’ it by doing something, intentionally, which, though it is not itself a direct application of force to the body of the victim, does directly result in force being applied violently to the body of the victim, so that he suffers grievous bodily harm. Hence, the lesser misdemeanours of assault occasioning actual bodily harm and common assault . . are not necessarily included in the misdemeanour of inflicting grievous bodily harm . .’

Judges:

Young CJ, Nelson, Harris JJ

Citations:

[1976] VR 452, [1976] VicRp 45

Cited by:

CitedHaystead v Director of Public Prosecutions QBD 2-Jun-2000
The defendant had hit a mother in the face as she held the child. The force was sufficient to cause her to drop the child causing injury to the child. He appealed against a conviction for beating the child.
Held: The appeal failed. A battery . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Crime

Updated: 18 May 2022; Ref: scu.547668

John De Freitas v The Queen: 1960

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

Citations:

[1960] 2 WIR 523

Cited by:

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

Crime, Commonwealth

Updated: 18 May 2022; Ref: scu.539753

Munro v Southern Dairies: 18 Apr 1955

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

Judges:

Sholl J

Citations:

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

Links:

Austlii

Cited by:

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

Commonwealth, Nuisance

Updated: 18 May 2022; Ref: scu.536799

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

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

Judges:

Mason CJ

Citations:

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

Links:

Austlii

Cited by:

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

Commonwealth, Contract

Updated: 18 May 2022; Ref: scu.470091

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

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

Judges:

Mathews J

Citations:

[1998] AATA 618

Links:

Austlii

Jurisdiction:

Australia

Cited by:

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

Commonwealth

Updated: 18 May 2022; Ref: scu.470874

Hosokawa Micron International Inc v Fortune: 1990

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

Judges:

Lockhart, Northrop JJ

Citations:

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

Jurisdiction:

Australia

Cited by:

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

Intellectual Property

Updated: 18 May 2022; Ref: scu.442605

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

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

Judges:

Gleeson CJ

Citations:

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

Links:

Austlii

Citing:

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

Cited by:

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

Commonwealth, Insolvency

Updated: 18 May 2022; Ref: scu.442611

Stopforth v Goyer: 1978

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

Judges:

Lief J

Citations:

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

Cited by:

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

Commonwealth, Constitutional, Defamation, Media

Updated: 18 May 2022; Ref: scu.427747

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

Hong Kong

Judges:

Sir Derek Cons VP

Citations:

[1993] 2 HKLR 161

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Commonwealth

Updated: 18 May 2022; Ref: scu.416016

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

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

Judges:

Deane J

Citations:

(1979) 42 FLR 331

Cited by:

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

Commonwealth, Litigation Practice

Updated: 18 May 2022; Ref: scu.406669

Evans v John Fairfax Group Pty Ltd: 12 Feb 1993

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

Judges:

Higgins J

Citations:

[1993] ACTSC 7

Links:

Austlii

Cited by:

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

Commonwealth, Defamation

Updated: 18 May 2022; Ref: scu.406675

Wright and Advertiser Newspapers Limited v Lewis: 1990

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

Judges:

King CJ

Citations:

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

Jurisdiction:

Australia

Cited by:

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

Commonwealth, Constitutional, Defamation

Updated: 18 May 2022; Ref: scu.409975

State Rail Authority of New South Wales v Wiegold: 1991

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

Judges:

Samuels JA

Citations:

(1991) 25 NSWLR 500

Jurisdiction:

Australia

Cited by:

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

Damages

Updated: 18 May 2022; Ref: scu.347283

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

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

Judges:

Gibbs, Stephen, Mason, Jacobs and Murphy JJ.

Citations:

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

Links:

Austlii

Jurisdiction:

Australia

Cited by:

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

Commonwealth, Damages, Negligence, Transport

Updated: 18 May 2022; Ref: scu.331084

Schaefer v Schuman: PC 1972

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

Judges:

Lord Simon of Glaisdale

Citations:

[1972] AC 572

Jurisdiction:

Australia

Cited by:

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

Estoppel, Wills and Probate, Contract, Commonwealth

Updated: 18 May 2022; Ref: scu.324695

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

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

Citations:

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

Links:

Commonlii

Trusts, Commonwealth

Updated: 18 May 2022; Ref: scu.280208

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

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

Citations:

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

Links:

Commonlii

Jurisdiction:

England and Wales

Commonwealth

Updated: 18 May 2022; Ref: scu.280627

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

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

Judges:

Evatt J

Citations:

(1933) 49 CLR 220

Cited by:

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

Commonwealth, Constitutional

Updated: 18 May 2022; Ref: scu.277171

Aladesuru v The Queen: PC 1956

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

Judges:

Lord Tucker

Citations:

[1956] AC 49, 39 Cr App R 184

Jurisdiction:

Commonwealth

Cited by:

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

Criminal Practice

Updated: 18 May 2022; Ref: scu.279057

Chin Keow v Government of Malaysia: PC 1967

Citations:

[1967] 1 WLR 813

Citing:

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

Cited by:

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

Negligence, Commonwealth

Updated: 18 May 2022; Ref: scu.269667

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

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

Judges:

Lord Denning

Citations:

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

Cited by:

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

Contract, Commonwealth

Updated: 17 May 2022; Ref: scu.266866

Regina v Flaherty and Others: 1968

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

Judges:

Asprey J

Citations:

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

Cited by:

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

Crime, Commonwealth

Updated: 17 May 2022; Ref: scu.258682

Hodak v Newman and Hodak: 1993

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

Judges:

Lindenmayer J

Citations:

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

Links:

Austlii

Cited by:

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

Children, Commonwealth

Updated: 17 May 2022; Ref: scu.244487

Gillard v The Queen: 2003

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

Judges:

Kirby J

Citations:

(2003) 219 CLR 1

Jurisdiction:

Australia

Citing:

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

Cited by:

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

Criminal Practice

Updated: 17 May 2022; Ref: scu.243352

Gilbert v The Queen: 2000

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

Judges:

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

Citations:

(2000) 201 CLR 414

Jurisdiction:

Australia

Citing:

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

Cited by:

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

Criminal Practice

Updated: 17 May 2022; Ref: scu.243348

In re Brisbane City Council and White: 1981

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

Citations:

(1981) 50 LGRA 225

Jurisdiction:

Australia

Cited by:

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

Litigation Practice

Updated: 17 May 2022; Ref: scu.243288

Director of Public Prosecutions v Daley: PC 1980

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

Judges:

Lord Keith of Kinkel

Citations:

[1980] AC 237

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Crime

Updated: 17 May 2022; Ref: scu.243355

Pemble v The Queen: 1971

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

Judges:

Barwick CJ

Citations:

(1971) 124 CLR 107

Jurisdiction:

Australia

Cited by:

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

Criminal Practice

Updated: 17 May 2022; Ref: scu.243349

Regina v Jackson: 1993

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

Judges:

McLachlin J

Citations:

[1993] 4 SCR 573

Jurisdiction:

Canada

Cited by:

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

Criminal Practice

Updated: 17 May 2022; Ref: scu.243353

Thompson Newspapers Ltd v Director of Investigation and Research: 1990

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

Judges:

Justice La Forest

Citations:

(1990) 54 CCC 417

Cited by:

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

Commonwealth, Litigation Practice

Updated: 17 May 2022; Ref: scu.242453

Tolofson v Jensen: 1994

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

Judges:

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

Citations:

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

Links:

Canlii

Jurisdiction:

Canada

Cited by:

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

Jurisdiction

Updated: 17 May 2022; Ref: scu.242988

Roncarelli v Duplessis: 1959

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

Citations:

[1959] SCR 121

Cited by:

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

Commonwealth, Torts – Other

Updated: 17 May 2022; Ref: scu.240008

Farrington v Thomson and Bridgland: 1959

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

Judges:

Smith J

Citations:

[1959] VR 286

Cited by:

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

Commonwealth, Torts – Other

Updated: 17 May 2022; Ref: scu.239999

Gradwell (PTY) v Rostra Printers Ltd: 1959

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

Judges:

Schriener J

Citations:

[1959] (4) SA 419

Statutes:

Companies Act 1926 86(2)

Cited by:

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

Company, Commonwealth

Updated: 17 May 2022; Ref: scu.238728

Anderson v Blashki: 1993

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

Citations:

[1993] 2 VR 89

Jurisdiction:

Australia

Cited by:

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

Commonwealth, Coroners, Evidence

Updated: 17 May 2022; Ref: scu.237534

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

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

Citations:

(1977) 75 DLR (3d) 257

Cited by:

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

Commonwealth, Constitutional

Updated: 17 May 2022; Ref: scu.231158

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

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

Citations:

[1987] 1 WLR 1339

Cited by:

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

Commonwealth, Crime

Updated: 17 May 2022; Ref: scu.230286

Fuller v State: 1995

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

Judges:

Ibrahim JA

Citations:

(1995) 52 WIR 424

Jurisdiction:

Commonwealth

Citing:

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

Cited by:

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

Criminal Practice

Updated: 17 May 2022; Ref: scu.228787

Lynn v Nathanson: 1931

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

Citations:

[1931] 2 DLR 457

Jurisdiction:

England and Wales

Cited by:

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

Commonwealth, Taxes Management, Landlord and Tenant

Updated: 17 May 2022; Ref: scu.228928

Chitambala v The Queen: 1961

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

Judges:

Clayden AFCJ

Citations:

[1961] R and N 166

Jurisdiction:

Commonwealth

Cited by:

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

Criminal Practice

Updated: 17 May 2022; Ref: scu.224424

Moevao v Department of Labour: 1980

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

Judges:

Richardson J

Citations:

[1980] 1 NZLR 464

Cited by:

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

Commonwealth, Criminal Practice

Updated: 17 May 2022; Ref: scu.225278

Kern Corporation Ltd v Walter Reid Trading Pty Ltd: 1987

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

Judges:

Deane J

Citations:

(1987) 163 CLR 164

Jurisdiction:

England and Wales

Cited by:

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

Land, Commonwealth

Updated: 16 May 2022; Ref: scu.223742