Category: Commonwealth

Chernesky v Armadale Publishers Ltd: 1978

(Supreme Court of Canada) The defendants were the editor and the owner and publisher of a newspaper which had published a letter to the editor in which the writers accused the plaintiff of holding racist views. The writers of the letter did not give evidence, but the defendants in their evidence made it clear that the letter complained of did not represent the honest expression of their own views. The trial judge refused to leave the defence of fair comment to the jury.
Held: (by a majority of six to three) The judge was correct.

Judges:

Lloyd LJ

Citations:

(1978) 90 DLR (3rd) 321

Cited by:

Cited – Telnikoff v Matusevitch HL 14-Nov-1991
The court should decide on whether an article is ‘fact or comment’ purely by reference to the article itself, and not taking into account any of the earlier background coverage. It is the obligation of the relevant commentator to make clear that the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Defamation

Updated: 14 May 2022; Ref: scu.253573

Coogi Australia Pty Ltd v Hysport International Pty Ltd: 1998

(Federal Court of Australia) What makes up the copyright work is in any given case is not governed by what the claimant alleging copyright infringement chooses to say that it is. It is rather a matter for objective determination by the court.
Asutlii ‘COPYRIGHT – copyright subsists in an entire work, not in a part or element of a work – copyright in fabric as a ‘work of artistic craftsmanship’ found to exist in the appearance created by the combination of the stitch structure and selection of yarn colours – allegation of infringement of copyright by the taking of a substantial part of the stitch structure – allegation not proved because of copyright owner’s failure to identify the subject matter of its copyright and consequent failure to show that what was taken was a substantial part of that subject matter.
COPYRIGHT – ‘work of artistic craftsmanship’ – what constitutes such a work – copyright held to exist in the first item in a line of mass-produced items – Copyright Act 1968 (Cth), s 10.
COPYRIGHT – computer program – whether program used in a computerised knitting machine to knit fabric to a particular pattern a ‘computer program’ within the Act – infringement of copyright in a computer program by unauthorised adaptation – infringement not established unless infringer has access to and makes use of the copyright program in developing its own program – no infringement of copyright in computer program where alleged infringer reverse-engineers a sample of the copyright fabric and from the information as to the construction of the fabric so obtained writes its own program for use in its computerised knitting machines to make a similar fabric – Copyright Act 1968 (Cth), s 10. INFRINGEMENT OF COPYRIGHT IN COMPUTER PROGRAM – where objective similarity relevant to question of infringement – not shown by similarities identified by a comparison of the two programs at the functional level of expression of each.’

Judges:

Drummond J

Citations:

[1998] FCA 10, (1998) 41 IPR 593

Links:

Austlii

Cited by:

Cited – Coffey v Warner Chappell Music Ltd, Warner Music UK Ltd and EMI Music Publishing Ltd ChD 16-May-2005
The singer had recorded a song, ‘Forever After’. She sought damages in copyright saying that a later recording by the defendants titled ‘Nothing Really Matters’ was infringing, having copied elements of the voice expression of her own performance, . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Commonwealth

Updated: 14 May 2022; Ref: scu.246815

Warman International Ltd and Others v Envirotech Australia Pty Ltd and Others: 1986

(Australia High Court) The court considered an application that the privilege against self incrimination be allowed to prevent a requirement to produce documents at court under a sub-poena: ‘Production is to the Court. Unless and until the contents of the documents is made known to a person who is reasonably likely to use those documents for the purpose of a criminal prosecution, no self-incrimination can occur.’

Judges:

Wilcox J

Citations:

(1986) 57 ALR 253

Cited by:

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

Litigation Practice, Commonwealth

Updated: 14 May 2022; Ref: scu.242451

Phillips v Rogers: 1945

The creditor argued that the limitation period was extended anew when the debtor wrote: ‘Re your correspondence re Mr C H Phillips claim $1300 which he is prepared to settle November 1st for $700. Please thank Mr Phillips for the kind offer. I have no idea where I am going to get $700 and meet your demands by November 1st unless I rob a bank and I really don’t think a case of this kind warrants such drastic action on my part. If Mr Phillips or yourself have any ideas how I can get that amount of money, honestly I shall be pleased to consider them.’

Citations:

[1945] 2 WWR 53

Cited by:

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

Commonwealth, Limitation, Contract

Updated: 14 May 2022; Ref: scu.243122

Odhavji Estate v Woodhouse: 2003

(Supreme Court of Canada) The court reviewed the ingredients of misfeasance in public office.
Held: Iacobucci J said: ‘To summarize, I am of the opinion that the tort of misfeasance in a public office is an intentional tort whose distinguishing elements are twofold: (i) deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff. Alongside deliberate unlawful conduct and the requisite knowledge, a plaintiff must also prove the other requirements common to all torts. More specifically, the plaintiff must prove that the tortious conduct was the legal cause of his or her injuries, and that the injuries suffered are compensable in tort law.’ While grief or emotional distress were insufficient injury to support a claim, visible and provable illness or recognisable physical or psychopathological harm were not.

Judges:

Iacobucci J

Citations:

[2003] 3 SCR 263

Citing:

Cited – Roncarelli v Duplessis 1959
(Canada) The court discussed what was ‘targeted malice’ in the context of misfeasance. . .

Cited by:

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

Commonwealth, Torts – Other

Updated: 14 May 2022; Ref: scu.240004

March v E and MH Stramore: 1991

Considerations of policy and value judgments necessarily enter into the assessment of causation.

Judges:

Mason CJ

Citations:

(1991) 171 CLR 506

Cited by:

Cited – Corr v IBC Vehicles Ltd CA 31-Mar-2006
The deceased had suffered a head injury whilst working for the defendant. In addition to severe physical consequences he suffered post-traumatic stress, became more and more depressed, and then committed suicide six years later. The claimant . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Negligence

Updated: 14 May 2022; Ref: scu.240045

Zakay v Zakay: 1998

In financial proceedings in England following divorce the wife alleged – and the husband denied – that he was the beneficial owner of shares held by a Gibraltarian trust company. The English court had ordered the issue of a letter of request to the Gibraltarian court that an officer of the trust company be required both to give oral evidence identifying the beneficial owner of the shares and to produce all documents in relation to such ownership. The officer sought to set aside an order in Gibraltar which had in both respects given effect to the request. The chief justice had to apply provisions of Gibraltar’s Evidence Ordinance
Held: He refused to set aside the order: ‘ . . the documents requested for production in this case are narrowly confined to the single issue they are aimed to support. The documents are more than likely in the possession of the applicant and are readily identifiable. Of course, it is impossible for the petitioner to know the specific identity of individual documents. But the applicant is being asked a specific question and is being asked to produce the documents to prove his answers. That is not a fishing expedition in the sense of casting a line in the hope that something will be caught: the fish has been identified and the court is endeavouring to spear it.’

Judges:

Schofield CJ

Citations:

[1998] 3 FCR 35

Cited by:

Cited – Charman v Charman CA 20-Dec-2005
The court considered orders to third parties abroad to produce docments for use in ancillary relief proceedings. The husband had built up considerable assets within an offshore discretionary trust. The court was asked whether these were family . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Family, Litigation Practice

Updated: 14 May 2022; Ref: scu.236600

Commonwealth Construction Co Ltd v Imperial Oil: 1977

(Supreme Court of Canada) de Grandpre J said: ‘On any construction site, and especially when the building being erected is a complex chemical plant, there is ever present the possibility of damage by one tradesman to the property of another and to the construction as a whole. Should this possibility become reality, the question of negligence in the absence of complete property coverage would have to be debated in Court. By recognising in all tradesmen an insurable interest based on that very real possibility, which itself has its source in the contractual arrangements opening the doors of the job site to the tradesmen, the Courts would apply to the construction field the principle expressed so long ago in the area of bailment. Thus all the parties whose joint efforts have one common goal, eg the completion of the construction, would be spared the necessity of fighting between themselves should an accident occur involving the possible responsibility of one of them.’

Judges:

de Grandpre J

Citations:

(1977) 69 DLR (3d) 558

Cited by:

Cited – Mark Rowlands v Berni Inns Ltd CA 1985
The plaintiff owned the freehold and had let the basement to the defendant. The plaintiff insured the building. The defendant covenanted to pay to the plaintiff an insurance rent equal to the proportionate cost of insuring the part of the building . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Insurance, Construction

Updated: 14 May 2022; Ref: scu.236418

Anderson v The Queen: 1972

The Board considered the application of the proviso in criminal appeals: ‘The test which an appeal court is to apply to the proviso was recently referred to by Viscount Dilhorne in Chung Kum Moey v Public Prosecutor for Singapore [1967] 2 AC 173, 185 quoting the classic passage by Lord Sankey in Woolmington v Director of Public Prosecutions [1935] AC 462, 482-483, whether ‘if the jury had been properly directed they would inevitably have come to the same conclusion’. Viscount Dilhorne also referred to Stirland v Director of Public Prosecutions [1944] AC 315, 321, where Lord Simon said that the provision assumed ‘a situation where a reasonable jury, after being properly directed would, on the evidence properly admissible, without doubt convict.”

Judges:

Lord Guest

Citations:

[1972] AC 100

Jurisdiction:

Australia

Criminal Practice

Updated: 14 May 2022; Ref: scu.231668

Miller v The Queen: 1985

(Canadian Supreme Court) In a case of a prisoner where solitary confinement is unlawfully and unjustly superimposed upon his prison sentence the added solitary confinement can amount to ‘prison within a prison’: it is capable of constituting a material deprivation of residual liberty.

Citations:

(1985) 24 DLR (4th) 9

Cited by:

Cited – Regina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-Oct-2005
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act.
Held: The House . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Prisons, Human Rights

Updated: 13 May 2022; Ref: scu.231112

Regina v Stinchcombe: 1991

(Supreme Court of Canada) The Crown had decided not to call a witness who was considered unworthy of credit by Crown counsel. The witness could have given evidence directly relevant to the issues arising at the trial. The Crown also refused to disclose the statements of the witness to the defence.
Held: Crown counsel misconceived his obligation to disclose the statements. Crown counsel had refused disclosure because in his view, the witness was not worthy of credit. This was not an adequate explanation. The trial judge ought to have examined the statements and erred in holding that the Crown counsel was not under an obligation to make disclosure of the statements. The failure of the Crown to make disclosure impaired the right of the accused to make full answer and defence. It must be assumed that non-production of statements was an important factor in the decision of the defence not to call the witness. The absence of this evidence might very well have affected the outcome. Accordingly, the appeal must be allowed and a new trial ordered at which the statements should be produced.
Stopinka J said: ‘I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done.’ and ‘Refusal to disclose is also justified on the ground that the material will be used to enable the defence to tailor its evidence to conform with information in the Crown’s possession. For example, a witness may change his or her testimony to conform with a previous statement given to the police or counsel for the Crown. I am not impressed with this submission. All forms of discovery are subject to this criticism. There is surely nothing wrong in a witness refreshing his or her memory from a previous statement or document. The witness may even change his or her evidence as a result. This may rob the cross-examiner of a substantial advantage but fairness to the witness may require that a trap not be laid by allowing the witness to testify without the benefit of seeing contradictory writings which the prosecutor holds close to the vest. The principle has been accepted that the search for truth is advanced rather than retarded by disclosure of all relevant material.’

Judges:

Sopinka J

Citations:

(1991) 68 CCC (3d) 1

Cited by:

Cited – Regina v Mills, Regina v Poole HL 24-Jul-1997
The prosecution have a duty to disclose to the defence the statement of an adverse witness and not just to provide the name and address, even though that person was not seen as credible witness by the prosecution. ‘the rule in Bryant and Dickson is . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Practice

Updated: 13 May 2022; Ref: scu.231070

Commonwealth of Australia v WMC Resources Ltd: 1998

A permit to explore for petroleum may be ‘property’ for the purposes of compulsory acquisition.

Citations:

(1998) 194 CLR 1

Cited by:

Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Lists of cited by and citing cases may be incomplete.

Damages, Commonwealth

Updated: 13 May 2022; Ref: scu.230287

Orissa Cement Ltd v State of Orissa: 1991

(Supreme Court of India) The Supreme Court founded its jurisdiction to make rulings which had prospective effect only, on article 142 of the Indian Constitution. This article empowers the Supreme Court to ‘make such order as is necessary for doing complete justice in any cause or matter pending before it’. In exercise of this power it is a ‘well settled proposition that it is open to the Court to grant, mould or restrict relief in a manner most appropriate to the situation before it, in such a way as to advance the interests of justice’

Citations:

1991 Supp (1) SCC 430

Commonwealth, Constitutional

Updated: 13 May 2022; Ref: scu.228291

Ex parte Donelly: 1915

(South Africa) A husband had been convicted of drugs offences in South Africa and after serving a period of imprisonment was deported to the United States of America. The wife then applied in South Africa for leave to sue her husband for restitution of conjugal rights or for divorce.
Held: The court had no jurisdiction: ‘A person, it is true, may select any place he likes as his domicile, provided, says the Digest (50, 1, 31), it has not been prohibited for him . . Now in the present case the husband cannot have a true domicile in fact in South Africa; he is liable to instant punishment and deportation if he returns.’

Judges:

Mason J

Citations:

1915 WLD 29

Cited by:

Followed – Ex parte Gordon 1937
(South Africa) The applicant’s husband had been deported. The wife sought relief.
Held: The effect of the deportation was to extinguish the husband’s domicile, and the court no longer had jurisdiction. . .
Cited – Mark v Mark HL 30-Jun-2005
The petitioner sought to divorce her husband. Both were Nigerian nationals, and had married under a valid polygamous marriage in Nigeria. She claimed that the courts had jurisdiction because of her habitual residence here despite the fact that her . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 13 May 2022; Ref: scu.228177

Jablonowski v Jablonowski: 1972

(Ontario High Court) The petitioner had met both the residence and animus requirements despite having entered Canada illegally.

Judges:

Lerner J

Citations:

(1972) 28 DLR (3d) 440

Jurisdiction:

Canada

Citing:

Not persuasive – Solomon v Solomon 1912
(Australia – New South Wales) The fact that a party’s residence in New South Wales was unlawful, prevented the acquisition of a domicile of choice there. ‘It is a curious proposition that a Court of Justice in New South Wales should hold that a man . .
Not persuasive – Smith v Smith 1961
(Supreme Court of the Federation of Rhodesia and Nyasaland) The husband, a fugitive from justice in England, had entered Southern Rhodesia on a false passport and his entry and residence had at all times been unlawful under the Immigration Act. The . .

Cited by:

Cited – Mark v Mark HL 30-Jun-2005
The petitioner sought to divorce her husband. Both were Nigerian nationals, and had married under a valid polygamous marriage in Nigeria. She claimed that the courts had jurisdiction because of her habitual residence here despite the fact that her . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 13 May 2022; Ref: scu.228191

Reference re Language Rights under the Manitoba Act 1870: 1985

(Supreme Court of Canada) The court declined to give retroactive effect to its decision on the constitutional invalidity of all statutes and regulations of the Province of Manitoba not printed and published in both English and French. A declaration that the unilingual laws of Manitoba were of no effect would have created a legal vacuum with consequent legal chaos. Refusing to take a narrow and literal approach to constitutional interpretation, the court held it could have regard to unwritten postulates such as the principle of the rule of law. Faced with the task of recognising the unconstitutionality of Manitoba’s unilingual laws while avoiding a legal vacuum and ensuring the continuity of the rule of law, the court made a ruling which gave deemed temporary validity to all laws rendered invalid by reason of their unilingual defect.

Citations:

(1985) 19 DLR (4th) 1

Cited by:

Cited – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 13 May 2022; Ref: scu.228294

Graham Barclay Oysters Pty Ltd v Ryan: 9 Aug 2000

Austlii (Federal Court of Australia) TORT – Negligence – non-feasance by public authorities – non-exercise by local government council and State government to minimise faecal contamination of lake where oysters grown commercially – oysters carrying hepatitis A virus – consumer of oysters contracting hepatitis A – whether duty of care owed to be discharged by exercise of statutory powers – causation – whether local government council and State government required to carry out sanitary survey of shore of lake.
TORT – Negligence – whether duty of care owed by commercial farmer of oysters to consumers of them breached where oysters carrying hepatitis A virus due to faecal contamination of lake in which oysters grown – oyster farmer’s depuration plant not shown to be working unsatisfactorily – whether discharge of oyster farmer’s duty required it to carry out sanitary survey of shore of lake or to urge public authorities to do so – causation of oysters contaminated with hepatitis A virus as a result of faecal contamination of lake where oysters grown – whether circumstances show it was unreasonable for consumer to rely on skills or judgment of grower – whether oysters were as fit for purpose as reasonable to expect.
Gaudron J: ‘Although different concepts inform the law of negligence, ordinarily there is a duty to warn only if there is a foreseeable risk that a person will be led to believe that something is safe when it is not.’
McHugh J: ‘The duty of care owed by a manufacturer or producer to a consumer is a duty to take reasonable care to avoid injury to the consumer. To formulate the duty in more specific terms invites error because it is likely to mix a question of law (whether a duty existed) with a question of fact (whether a breach occurred). If the duty is formulated in specific terms, the issue on breach is whether the duty has been performed in accordance with the terms of the duty as formulated. But, as Wyong Shire Council v Shirt [footnote reference to (1980) 146 C.L.R. 40 at 47-48, per Mason J., Stephen and Aickin J.J. agreeing] shows, the question of breach is far more complex than an affirmative or negative answer to the question whether the defendant carried out the duty as formulated. It involves evaluating and weighing a number of competing considerations.’

Judges:

Gaudron J

Citations:

(2002) 211 CLR 540, [2000] FCA 1099

Links:

Austlii

Cited by:

Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Negligence

Updated: 13 May 2022; Ref: scu.226698

Bhandari v Advocates Committee: PC 1956

Complaints of professional misconduct against a member of a legal profession are to be proved to the criminal standard. Lord Tucker said: ‘With regard to the onus of proof the Court of Appeal [for East Africa] said: ‘We agree that in every allegation of professional misconduct involving an element of deceit or moral turpitude a high standard of proof is called for, and we cannot envisage any body of professional men sitting in judgment on a colleague who would be content to condemn on a mere balance of probabilities.’ This seems to their Lordships an adequate description of the duty of a tribunal such as the Advocates Committee and there is no reason to think that either the Committee or the Supreme Court applied any lower standard of proof.’

Judges:

Lord Tucker

Citations:

[1956] 1 WLR 1442

Cited by:

Approved – In Re A Solicitor QBD 13-May-1992
In disciplinary proceedings before the Solicitors Disciplinary Tribunal, allegations must be proved to the criminal standard, and certainly so where the allegations are serious and may result in suspension or disqualification. Hearsay evidence . .
Cited – Campbell v Hamlet (as executrix of Simon Alexander) PC 25-Apr-2005
(Trinidad and Tobago) The appellant was an attorney. A complaint was made that he had been given money to buy land, but neither had the land been conveyed nor the money returned. The complaint began in 1988, but final speeches were not heard until . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Legal Professions

Updated: 13 May 2022; Ref: scu.226042

Attorney-General for Ontario v Hamilton Street Ry Co: PC 1903

The phrase ‘Criminal law’ means ‘the criminal law in its widest sense’. The Judicial Committee refused to give its opinion on a number of questions relating to the operation of certain Canadian legislation which purported to prevent ‘the Profanation of the Lord’s Day’ by proscribing the doing of work on that day.
The Lord Chancellor said of a court being requested to answer an hypotheticala question: With regard to the remaining questions, which it has been suggested should be reserved for further argument, their Lordships are of opinion that it would be inexpedient and contrary to the established practice of this Board to attempt to give any judicial opinion upon those questions. They are questions proper to be considered in concrete cases only; and opinions expressed upon the operation of the sections referred to, and the extent to which they are applicable, would be worthless for many reasons. They would be worthless as being speculative opinions on hypothetical questions. It would be contrary to principle, inconvenient, and inexpedient that opinions should be given upon such questions at all. When they arise, they must arise in concrete cases, involving private rights; and it would be extremely unwise for any judicial tribunal to attempt beforehand to exhaust all possible cases and facts which might occur to qualify, cut down, and override the operation of particular words when the concrete case is not before it.

Citations:

[1903] AC 524

Cited by:

Cited – Proprietary Articles Trade Association v Attorney-General for Canada PC 1931
The Board was asked how to identify whether an allegation amounted to a criminal one. Lord Atkin said: ‘It appears to their Lordships to be of little value to seek to confine crimes to a category of acts which by their very nature belong to the . .
Lists of cited by and citing cases may be incomplete.

Crime, Commonwealth

Updated: 13 May 2022; Ref: scu.224364

Auerbach v Beck: 1986

(New South Wales Court of Appeal) Affirmed

Citations:

(1986) 6 NSWLR 454

Citing:

Appeal from – Auerbach v Beck 1985
(New South Wales) An easement does not confer exclusive possession to land. An easement may include a right to extract smells from cooking. As to easements of necessity; Powell J said: ‘it is open to the court to imply into a conveyance or demise . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Land

Updated: 13 May 2022; Ref: scu.223979

Robinson 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 or public expense. The trial had proceeded when the defendant, having failed to put his counsel in funds, appeared unrepresented: ‘… the important word used in section 20(6)(c) is ‘permitted’. He must not be prevented by the State in any of its manifestations, whether judicial or executive, from exercising the right accorded by the subsection. He must be permitted to exercise those rights.’

Citations:

[1985] AC 956, [1985] 2 All ER 594

Statutes:

Jamaica (Constitution) Order in Council 1962 SCh 2 s20(6)(c)

Cited by:

Cited – Gianchand 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 . .
Applied – 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 . .
Cited – Grant 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 . .
Cited – Delroy 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.

Commonwealth, Criminal Practice, Constitutional

Updated: 13 May 2022; Ref: scu.223459

De Renzy v De Renzy: 1924

(New Zealand) Brothers were partners. One died and the other, wrongly believing himself entitled to do so under an agreement to purchase his brother’s share, made a payment to his brother’s estate of the purchase price for that share which he thought to be due and thereafter treated the business as his own.
Held: There was no agreement to purchase. The deceased brother’s estate was entitled to the profits attributable to the share of the deceased brother in the partnership assets, but that the size of the share was to be reduced by the reason of the payment made.

Judges:

Stringer J

Citations:

[1924] NZLR 1065

Cited by:

Cited – Hardip Singh Gill v Kulbir Singh Sandhu ChD 26-Jan-2005
The partnership had been dissolved. It had involved conversion of a property to be run as a nursing home. The claimant was to manage the home, and the profits would be used first to pay him a salary, and then to be divided equally. When wound up . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Company

Updated: 13 May 2022; Ref: scu.222923

Warren v Warren: 1972

(Australia) The plaintiff was injured in a car accident while on a visit to New South Wales, where she had no right of action in tort against her husband. She began her action in Queensland, where she was ordinarily resident and domiciled where such a right of action did exist.
Held: The defendant’s application to set aside the writ was dismissed. There was a degree of flexibility in the rule which admitted of exception where clear and satisfactory grounds were shown why it should be departed from and that, on the facts of that case, it was right to apply the law of the forum even if the acts were not actionable by the law of the locus delicti.

Judges:

Matthews J

Citations:

[1972] Qd R 386

Jurisdiction:

Australia

Cited by:

Cited – Red Sea Insurance Co Ltd v Bouygues SA and Others PC 21-Jul-1994
Lex loci delicti (the law of the jurisdiction in which the act complained of took place) can exceptionally be used when the lex fori (the jurisdiction formally assigned) gives no remedy. In the case of a claim under a foreign tort, the double . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Torts – Other

Updated: 13 May 2022; Ref: scu.222522

Post Investments Pty Ltd v Wilson: 1 Feb 1990

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

Judges:

Powell J

Citations:

(1990) 26 NSWR 598

Cited by:

Cited – University of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 9-Dec-2004
The University wanted to sell land for development free of restrictive covenants. It had previously been in the ownership of both the servient and dominant land in respect of a restrictive covenant. The Borough contended that the restrictive . .
Cited – Mount Cook Land Ltd v Joint London Holdings Ltd and Another CA 7-Oct-2005
The head lease contained a covenant against use of the premises as ‘victuallers’. The tenant sublet the premises for use as a sandwich shop. The tenant argued that the word ‘victuallers’ was to be construed only to prevent the use as ‘licensed . .
Lists of cited by and citing cases may be incomplete.

Land, Commonwealth

Updated: 13 May 2022; Ref: scu.220708

Gutnick v Dow Jones: 28 Aug 2001

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

Judges:

Callinan J

Citations:

[2002] HCA 56, [2001] VSC 305

Links:

Austlii

Citing:

Appealed to – Gutnick v Dow Jones 10-Dec-2002
(High Court of Australia) The Court rejected a challenge, in the context of Internet libel, to the applicability of such established principles as that vouchsafed in Duke of Brunswick: ‘It was suggested that the World Wide Web was different from . .

Cited by:

Appeal from – Gutnick v Dow Jones 10-Dec-2002
(High Court of Australia) The Court rejected a challenge, in the context of Internet libel, to the applicability of such established principles as that vouchsafed in Duke of Brunswick: ‘It was suggested that the World Wide Web was different from . .
Cited – Mardas v New York Times Company and Another QBD 17-Dec-2008
The claimant sought damages in defamation. The US publisher defendants denied that there had been any sufficient publication in the UK and that the court did not have jurisdiction. The claimant appealed the strike out of the claims.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Defamation

Updated: 13 May 2022; Ref: scu.220027

Somchai Liangsiriprasert v Government of the United States of America: PC 1991

(Hong Kong) Application was made for the defendant’s extradition from Hong Kong to the USA. The question was whether a conspiracy entered into outside Hong Kong with the intention of committing the criminal offence of trafficking in drugs in Hong Kong was justiciable in Hong Kong although no overt act in pursuance of that conspiracy had yet taken place in Hong Kong.
Held: English criminal law is generally local in its effect. The criminal law does not concern itself with crimes committed abroad. Any offence may be tried in this country even if the last act did not take place here, provided the court sees nothing contrary to international comity in its assumption of jurisdiction. Conspiracy being an inchoate offence, no ‘last act’ was required.
Lord Griffiths said: ‘Unfortunately in this Century crime has ceased to be largely local in origin and effect. Crime is now established on an international scale and the criminal law must face this new reality. Their lordships can find nothing in precedent, comity or good sense that should inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England.’ and
‘The English courts have decisively begun to move away from definitional obsessions and technical formulations aimed at finding a single situs of a crime by locating where the gist of the crime occurred or where it was completed. Rather, they now appear to seek by an examination of relevant policies to apply the English criminal law where a substantial measure of the activities constituting a crime take place in England, and restrict its application in such circumstances solely in cases where it can seriously be argued on a reasonable view that these activities should, on the basis of international comity, be dealt with by another country.’ and ‘Their Lordships can find nothing in precedent, comity or good sense that should inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England.’ and
‘It is notoriously difficult to apprehend those at the centre of the drug trade: it is only their couriers who are usually caught. If the courts were to regard the penetration of a drug dealing organisation by the agents of a law enforcement agency and a plan to tempt the criminals into a jurisdiction from which they could be extradited as an abuse of process it would indeed be a red letter day for the drug barons.’

Judges:

Lord Griffiths

Citations:

[1991] 1 AC 225, (1991) 92 Cr App R 77, [1990] UKPC 31

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Treacy v Director of Public Prosecutions HL 1970
Blackmail was alleged under section 21 of the 1968 Act, the letter making the unwarranted demand with menaces having been posted from England to an intended victim in Germany.
Held: The appeal was dismissed. To allow an English court to have . .

Cited by:

Applied – Regina v Smith (Wallace Duncan) (No 1) CACD 13-Nov-1995
In the offence of fraudulent trading, ‘creditors’ are those to whom money was owed, including future creditors, not just those who can presently sue. Deceptions practised in UK, but having their effect abroad are prosecutable here. The only feature . .
Cited – Regina v Manning CACD 24-Jun-1998
The defendant appealed his conviction for obtaining property by deception where part of the offence had taken place abroad.
Held: Smith should be overturned. The last act or terminatory theory remains the binding common law of England and . .
Applied – Regina v Sansom 1991
Conspiracy over international borders – comity rule applied to provide jurisdiction. . .
Cited – Her Majesty’s Advocate v Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhimah HCJ 8-Dec-1999
The court considered whether the criminal complaint that the defendants had been part of a conspiracy to set a bomb aboard an airliner which exploded over Scotland, was justiciable in Scotland. Lord Sutherland: ‘Where however, a crime of the utmost . .
Cited – Office of the King’s Prosecutor, Brussels v Cando Armas and others HL 17-Nov-2005
The defendant resisted extradition to Brussels saying that the offence had been committed in part in England. He had absconded and been convicted. Application was made for his return to serve his sentence. The offences associated with organisation . .
Applied – Regina v Sansom CACD 2-Jan-1991
The appellants had been charged with conspiracy contrary to section 1 of the Criminal Law Act 1977. The court rejected the argument that the principle laid down in Somchai referred only to the common law and that it could not be applied to . .
Cited – Regina v Bartle and Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte; Regina v Evans and Similar (No 3) HL 24-Mar-1999
An application to extradite a former head of state for an offence which was not at the time an offence under English law would fail, but could proceed in respect of allegations of acts after that time. No immunity was intended for heads of state. . .
Cited – Regina v Latif; Regina v Shahzad HL 23-Jan-1996
The defendant had been lured into the UK by the unlawful acts of customs officers. He claimed abuse of process.
Held: The category of cases in which the abuse of process principles can be applied is not closed. A customs officer committing an . .
Approved – Regina v Manning CACD 23-Jul-1998
The accused dishonestly falsified a number of insurance cover notes which were said to be documents required for an accounting purpose, namely, those of the persons who had sought cover and to whom the cover notes were forwarded. The accused ran his . .
Cited – Purdy, 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 . .
Cited – Sheppard and Another, Regina v CACD 29-Jan-2010
The defendants appealed against their convictions for publishing racially inflammatory material. They skipped bail during the trial, were convicted in their absence, and returned after being refused asylum in the US. The convictions related to . .
Lists of cited by and citing cases may be incomplete.

Crime, Jurisdiction, Extradition

Updated: 13 May 2022; Ref: scu.196558

In Re Wakim: 1999

(High Court of Australia) Changes in attitudes and perceptions may require a wider meaning to be given to a word such as ‘marriage’, at any rate in some contexts.

Judges:

McHugh J

Citations:

[1999] 173 ALJR 839

Cited by:

Cited – Fitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 13 May 2022; Ref: scu.215875

Soenen v Director of Edmonton Remand Centre: 1983

(Canada) A remand prisoner complained about rectal searches: ‘The applicant’s third complaint is that sometimes members of the Detention Centre staff, who were searching for such things as forks, knives, or other objects, require the inmates who are sitting around their common area described above, to strip naked and bend over so that there may be a visual examination of the rectal area. The applicant recognises that strip searches are essential, but he contends the manner in which they are performed is humiliating, degrading and immoral, and constitutes a serious intrusion of privacy. He contends that before such a visual rectal examination takes place, there should be a reasonable suspicion of anal concealment of some item. Moreover, he contends, each individual inmate should be inspected privately so that he is not humiliated by being inspected in the presence of 23 other men.’
Held: ‘I find that this practice cannot be said to be cruel treatment, even assuming it is unusual, nor does it constitute an unreasonable search that would infringe Section 8 of the Charter. In my view a visual search of the rectum of a person just arrested, in the absence of reasonable and probable cause to believe that an object has been concealed anally, might be unreasonable and the violation of a reasonable expectation of privacy; but such a search is not unreasonable and is not a violation of a reasonable expectation of privacy in the case of a pre-trial detainee in a detention facility, provided that the visual search is conducted bona fide in a search for weapons or contraband and not for the purpose of punishment. Such searches may be in the absence of reasonable, probable cause to believe that the prisoner being searched has concealed an object in his body cavity.’

Citations:

(1983) 35 CR (3d) 206

Cited by:

Cited – Regina v Carroll and Al-Hasan and Secretary of State for Home Department Admn 16-Feb-2001
The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Commonwealth

Updated: 13 May 2022; Ref: scu.211431

Proprietary Articles Trade Association v Attorney-General for Canada: PC 1931

The Board was asked how to identify whether an allegation amounted to a criminal one. Lord Atkin said: ‘It appears to their Lordships to be of little value to seek to confine crimes to a category of acts which by their very nature belong to the domain of ‘criminal jurisprudence’; for the domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the state to be crimes, and the only common nature they will be found to possess is that they are prohibited by the state and that those who commit them are punished.’ and ‘It certainly is not confined to what was criminal by the law of England or of any Province in 1867. The power must extend to legislation to make new crimes. Criminal law connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of the State. The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: is the act prohibited with penal consequences?’

Judges:

Lord Atkin

Citations:

[1931] AC 310, 100 LJPC 84

Citing:

Cited – Attorney-General for Ontario v Hamilton Street Ry Co PC 1903
The phrase ‘Criminal law’ means ‘the criminal law in its widest sense’. The Judicial Committee refused to give its opinion on a number of questions relating to the operation of certain Canadian legislation which purported to prevent ‘the Profanation . .

Cited by:

Cited – Jones and Milling, Olditch and Pritchard, and Richards v Gloucestershire Crown Prosecution Service CACD 21-Jul-2004
The court considered the extent to which the defendants in the proceedings can rely on their beliefs as to the unlawfulness of the United Kingdom’s actions in preparing for, declaring, and waging war in Iraq in 2003 in a defence to a charge of . .
Cited – Regina (McCann and Others) v Manchester Crown Court CA 9-Mar-2001
Proceedings applying for an anti-social behaviour order, were properly civil proceedings, with civil standards of evidence, and the Human Rights Act provisions relating to criminal proceedings, were not applicable either. The section included acts . .
Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Commonwealth

Updated: 13 May 2022; Ref: scu.200229

Attorney General for Canada v Fedorenko: PC 1911

Citations:

[1911] AC 735

Cited by:

Cited – The Attorney General for St Christopher and Nevis v Rodionov PC 20-Jul-2004
(St. Christopher and Nevis) The government of Canada requested the extradition of the respondent. The Attorney General sought special leave to appeal against the order for his discharge from custody, which had been on the grounds of the prejudice . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 13 May 2022; Ref: scu.199440

The United States of America v Gaynor: PC 1905

The Privy Council allowed an appeal from an order of a Judge, itself having given special leave to appeal.
Lord Halsbury LC said: ‘Their Lordships do not mean to suggest that the writ of habeas corpus is not applicable when there is a preliminary proceeding. Each case must depend upon its own merits. But where a prisoner is brought before a competent tribunal, and is charged with an extradition offence and remanded for the express purpose of affording the prosecution the opportunity of bringing forward the evidence by which that accusation is to be supported; if, in such a case, upon a writ of habeas corpus, a learned Judge treats the remand warrant as a nullity, and proceeds to adjudicate upon the case as though the whole evidence were before him, it would paralyze the administration of justice and render it impossible for the proceedings in extradition to be effective.’

Judges:

Lord Halsbury L.C

Citations:

[1905] AC 128

Cited by:

Cited – The Attorney General for St Christopher and Nevis v Rodionov PC 20-Jul-2004
(St. Christopher and Nevis) The government of Canada requested the extradition of the respondent. The Attorney General sought special leave to appeal against the order for his discharge from custody, which had been on the grounds of the prejudice . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional, Extradition

Updated: 13 May 2022; Ref: scu.199443

Sergi v Australian Broadcasting Commission: 20 Dec 1989

(New South Wales)

Citations:

[1989] NSWCA 184, [1983] 2 NSWLR 418, [1983] 2 NSWLR 669

Links:

NSW

Cited by:

Cited – Jameel and Another v Times Newspapers Limited CA 21-Jul-2004
The defendant had published a newspaper article linking the claimant to terrorist activity. The defendants argued that no full accusation was made, but only that the claimant was under investigation for such behaviour, and that the article had . .
Lists of cited by and citing cases may be incomplete.

Defamation, Commonwealth

Updated: 13 May 2022; Ref: scu.199361

King-Emperor v Banerji: 1945

Citations:

(1945) LR 72 Ind App 241

Cited by:

Cited – The Attorney General for St Christopher and Nevis v Rodionov PC 20-Jul-2004
(St. Christopher and Nevis) The government of Canada requested the extradition of the respondent. The Attorney General sought special leave to appeal against the order for his discharge from custody, which had been on the grounds of the prejudice . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 13 May 2022; Ref: scu.199442

Mitchell v Director of Public Prosecutions of Grenada: PC 1986

(Grenada) The petitioner sought to appeal to the Board from Grenada. The powers conferred on the Board by the Acts of 1833 and 1844, and other later instruments, have superceded the old prerogative power formerly exercised by the King in Council. The 1967 Order was made under powers conferred by the Judicial Committee Act 1844 and the language of section 3 shows clearly that it is concerned not with the constitutional question of whether a right of appeal should exist but with the procedural question of how such an appeal should be exercised. Once the Constitution was amended to abolish the right of appeal, there was nothing upon which the 1967 Order could operate.

Citations:

[1986] AC 73, [1985] 3 WLR 72

Statutes:

Judicial Committee Act 1844 3, West Indies Associated States (appeals to the Privy Council) Order 1967 (SI 1967 No 224), Grenada Constitution Order 1973 (SI 1973 No 2155), Privy Council (Abolition of Appeals) Law 1979

Cited by:

Cited – The Attorney General for St Christopher and Nevis v Rodionov PC 20-Jul-2004
(St. Christopher and Nevis) The government of Canada requested the extradition of the respondent. The Attorney General sought special leave to appeal against the order for his discharge from custody, which had been on the grounds of the prejudice . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Commonwealth

Updated: 13 May 2022; Ref: scu.199436

Regina v Nazif: 1987

(New Zealand Court of Appeal) The complainant gave evidence of an indecent assault, whereas the evidence given of the complaint was of an assault; Somers J dealt with the issue (which was one among several) very shortly: ‘The third question arises from the fact that the witness of the complaint, Miss Reidy, gave no evidence that the prosecutrix had told her that she had been indecently assaulted; merely that she had been assaulted. It was submitted that evidence by way of a complaint was not admissible unless the complaint made referred in some way to its indecent character: The submission has little logic to support it. The purpose of the admission of evidence of complaint being to show consistency of the conduct of the prosecutrix with the evidence she has given as to what occurred; a simple complaint of assault made by her made proximately to the event must surely be capable of evidencing consistency. Whether it does so in fact will be a matter for the jury.’

Citations:

[1987] 2 NZLR 122

Cited by:

Cited – Spooner, Eric Charles v Regina; (Evidence: Sex abuse) CACD 25-May-2004
The defendant appealed his convictions for child sex abuse, involving assault, rape and buggery, saying that evidence of a recent complaint by a schoolgirl friend of the complainant which was not consistent with other evidence of the complainant . .
Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Commonwealth

Updated: 13 May 2022; Ref: scu.198137

Paxhaven Holdings Ltd v Attorney-General: 1974

(New Zealand) The court considered what interest in land was required to found an action in private nuisance: ‘In my opinion, however, the matter is clear in principle. In an action for nuisance the defence of jus tertii is excluded, and it is no answer for the respondent to contend in the present case that the nuisance was committed on an area of land mistakenly included in the grant of lease to the appellant from its landlord. De facto possession is sufficient to give the appellant his remedy’

Judges:

Mahon J

Citations:

[1974] 2 NZLR 185

Citing:

Applied – Foster v Warblington Urban District Council CA 1906
A nuisance was caused by the discharge of sewage by the defendant council into oyster beds. The plaintiff was an oyster merchant who had for many years been in occupation of the oyster beds which had been artificially constructed on the foreshore, . .

Cited by:

Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Nuisance

Updated: 13 May 2022; Ref: scu.195591

Regina v Sawyer: 2001

(Canada) the court considered the reasons underlying the need for secrecy of a jury’s deliberations: ‘The first reason supporting the need for secrecy is that confidentiality promotes candour and the kind of full and frank debate that is essential to this type of collegial decision making. While searching for unanimity, jurors should be free to explore out loud all avenues of reasoning without fear of exposure to public ridicule, contempt or hatred. This rationale is of vital importance to the potential acquittal of an unpopular accused, or one charged with a particularly repulsive crime. In my view, this rationale is sound, and does not require empirical confirmation. The Court of Appeal also placed considerable weight on the second rationale for the secrecy rule: the need to ensure finality of the verdict. Describing the verdict as the product of a dynamic process, the court emphasized the need to protect the solemnity of the verdict, as the product of the unanimous consensus which, when formally announced, carries the finality and authority of a legal pronouncement. That rationale is more abstract, and inevitably invites the question of why the finality of the verdict should prevail over its integrity in cases where that integrity is seriously put in issue. In a legal environment such as ours, which provides for generous review of judicial decisions on appeal, and which does not perceive the voicing of dissenting opinions on appeal as a threat to the authority of the law, I do not consider that finality, standing alone, is a convincing rationale for requiring secrecy. The respondent, as well as the interveners supporting its position and, in particular, the Attorney General of Quebec, place great emphasis on the third main rationale for the jury secrecy rule – the need to protect jurors from harassment, censure and reprisals. Our system of jury selection is sensitive to the privacy interests of prospective jurors (see R v Williams [1998] 1 SCR 1128), and the proper functioning of the jury system, a constitutionally protected right in serious criminal charges, depends upon the willingness of jurors to discharge their functions honestly and honourably. This in turn is dependent, at the very minimum, on a system that ensures the safety of jurors, their sense of security, as well as their privacy. I am fully satisfied that a considerable measure of secrecy surrounding the deliberations of the jury is essential to the proper functioning of that important institution and that the preceding rationales serve as a useful guide to the boundaries between the competing demands of secrecy and reviewability.’

Judges:

Arbour J

Citations:

[2001] 2 SCR 344

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Connor and another; Regina v Mirza HL 22-Jan-2004
Extension of Inquiries into Jury Room Activities
The defendants sought an enquiry as to events in the jury rooms on their trials. They said that the secrecy of a jury’s deliberations did not fit the human right to a fair trial. In one case, it was said that jurors believed that the defendant’s use . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Commonwealth

Updated: 13 May 2022; Ref: scu.192267

Regina v Andrew Brown: 1906

(New South Wales – Australia) Darley CJ said: ‘I have come to the conclusion that the authorities are all one way, and that the Court cannot look at the affidavits of jurymen for any purpose, whether it be for the purpose of granting a new trial, or for the purpose of establishing the misconduct of a juryman’.

Judges:

Darley CJ

Citations:

(1907) 7 NSWSR 290

Cited by:

Cited – Regina v Connor and another; Regina v Mirza HL 22-Jan-2004
Extension of Inquiries into Jury Room Activities
The defendants sought an enquiry as to events in the jury rooms on their trials. They said that the secrecy of a jury’s deliberations did not fit the human right to a fair trial. In one case, it was said that jurors believed that the defendant’s use . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Practice

Updated: 13 May 2022; Ref: scu.192269

Fawcett v Star Car Sales Limited: 1960

(New Zealand) ‘a void contract is a paradox; in truth there is no contract at all.’ and ‘the difficulty in deciding whether a mistake of identity prevents the formation of a concluded contract is a proper assessment of the facts rather than the ascertainment of the law’.

Judges:

Gresson P

Citations:

[1960] NZLR 406

Cited by:

Cited – Norman Hudson v Shogun Finance Ltd CA 28-Jun-2001
A rogue had purchased a car, using a false name to obtain finance. He had then sold it to the defendant. The finance company claimed the car back.
Held: The dealer had not taken all the steps he might have done to check the identity of the . .
Cited – Shogun Finance Limited v Hudson HL 19-Nov-2003
Thief acquired no title and could not sell
A purchaser used a stolen driving licence to obtain credit for and purchase a car. He then purported to sell it to the respondent, and then disappeared. The finance company sought return of the car.
Held: (Lords Nicholls and Millett . .
Lists of cited by and citing cases may be incomplete.

Contract, Commonwealth

Updated: 12 May 2022; Ref: scu.188423

Clark v Norton: 1910

The court explained the notion of ‘comment’ as ‘something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc’.

Judges:

Cussen J

Citations:

[1910] VLR 494

Jurisdiction:

Australia

Cited by:

Cited – Keays v Guardian Newspapers Limited, Alton, Sarler QBD 1-Jul-2003
The claimant asserted defamation by the defendant. The parties sought a decision on whether the article at issue was a comment piece, in which case the defendant could plead fair comment, or one asserting fact, in which case that defence would not . .
Lists of cited by and citing cases may be incomplete.

Defamation, Commonwealth

Updated: 12 May 2022; Ref: scu.184407

Regina v Andrew Brown: 1907

The court refused to consider the affidavits of five jurymen to decide whether a fellow juryman had been guilty of misconduct. The allegation was that before any evidence was given the juror in question made it clear to fellow jurors that whatever the evidence he was not prepared to convict.
Held: The court concluded that the authorities are all one way, and that the Court cannot look at the affidavits of jurymen for any purpose, whether it be for the purpose of granting a new trial, or for the purpose of establishing the misconduct of a juryman.

Judges:

Darley CJ

Citations:

(1907) 7 NSW State Reports 290

Cited by:

Cited – Regina v BM and Another CACD 9-Dec-1996
A message was offered to one of the solicitors acting for a defendant from a relative of a juror after the trial.
Held: Rules against hearing of jury deliberations are wider than Contempt of Court Act. The court refused to commence any Young . .
Lists of cited by and citing cases may be incomplete.

Contempt of Court, Commonwealth, Criminal Practice

Updated: 12 May 2022; Ref: scu.183498

Macedo v Stroud: PC 1922

(Trinidad) The donor purported to give real property (in part) by memorandum which was not registered. Under the law of Trinidad the transfer did not pass any estate or interest in the land. The donor delivered the instrument to his solicitor telling him to keep the document and not to register it. The document accordingly remained in the solicitor’s custody unregistered until the death of the donor, who during his life continued to receive the rents. The judge found that the instrument was intended to operate as an immediate and unconditional gift to the donee.
Held: The memorandum not having been registered nor delivered to the donee for that purpose there was an imperfect gift of the properties with which it dealt to which equity could not give effect: ‘The memorandum of transfer was never made the subject of registration, nor did the donor present it, or hand it to the transferee, for that purpose. It therefore, having regard to the terms of the ordinance, transferred no estate or interest either at law or in equity. At the most it amounted to an incomplete instrument which was not binding for want of consideration. Had it been in terms a declaration of trust, a Court of equity might have compelled the trustee to carry out the trust, which would have been binding on him, even if voluntary. But it does not purport to be a declaration of trust, or anything else than in inchoate transfer. As such, and as it is voluntary, it is no more than an imperfect gift of which a Court of equity will not compel perfection.’

Citations:

[1922] 2 AC 330

Citing:

Cited – Milroy v Lord CA 26-Jul-1862
The donor executed a transfer of 50 shares. The shares were only transferable by entry in the books of the bank. No such transfer was ever made. The defendant had a power of attorney authorising him to transfer the donor’s shares and after the deed . .

Cited by:

Cited – Pennington and Another v Waine, Crampton and others CA 4-Mar-2002
The deceased had made a gift of shares. She had executed a transfer, and acting upon the promise, the donee had agreed to become a director which he could only do if he also became a shareholder. The transfer was delivered to the deceased’s agent, . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Land, Equity, Registered Land

Updated: 12 May 2022; Ref: scu.183418

Rahemtulla v Vanfed Credit Union: 1984

(British Columbia Supreme Court) The plaintiff had been harassed at work, falsely accused of theft in threatening circumstances and summarily dismissed without proper cause in a humiliating fashion. The defendant submitted that to be liable for wilful infliction of nervous shock its conduct must be outrageous.
Held: McLachlin J said: ‘This submission appears to be founded on the distinction drawn in American cases between mere insult, which is not actionable, and ‘extreme and outrageous conduct’ which is: Linden: Canadian Tort Law (3rd ed) (1982), p 48. While this distinction appears not to have been expressly adopted in the Canadian and Commonwealth cases, the conduct considered in the leading authorities such as Wilkinson v Downton, and Janvier v Sweeney, was in fact flagrant and extreme. Moreover, it is difficult to accept that the courts should protect persons from every practical joke or unkind comment . . assuming’ that only flagrant and extreme conduct inflicting mental suffering was actionable, the defendant’s conduct could be so described. She identified the two further ingredients of the tort as being: that the conduct was ‘plainly calculated to produce some effect of the kind which was produced’ (quoting from Wright J’s judgment in Wilkinson v Downton), and that the conduct produced provable illness. She found that the conduct was ‘plainly calculated’ to cause profound distress because it was clearly foreseeable.

Judges:

McLachlin J

Citations:

[1984] 3 WWR 296

Jurisdiction:

England and Wales

Citing:

Cited – Wilkinson v Downton 8-May-1997
Thomas Wilkinson, the landlord of a public house, went off by train, leaving his wife Lavinia behind the bar. A customer of the pub, Downton played a practical joke on her. He told her, falsely, that her husband had been involved in an accident and . .

Cited by:

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

Commonwealth, Torts – Other

Updated: 11 May 2022; Ref: scu.566208

Reference re : Amendment to the Canadian Constitution: 9 Feb 1982

Supreme Court of Canada – Application for leave to appeal from a decision of the Court of Appeal of Quebec dismissing applicant’s application to intervene relating to a reference ordered by the Government of Quebec. Application dismisse

Citations:

[1982] 2 SCR 791, 1982 CanLII 218 (SCC)

Links:

Canlii

Commonwealth, Constitutional

Updated: 11 May 2022; Ref: scu.554758

Maguire v Makaronis: 25 Jun 1997

High Court of Australia – Equity – Fiduciary duties – Solicitor and client relationship – Mortgage by clients in favour of solicitors – Ascertainment of particular fiduciary duties.
Equity – Equitable remedies – Rescission – Relevance of causal connection between breach of fiduciary duty and execution of mortgage – Scope of equity for rescission – Whether clients required to ‘do equity’ by honouring contractual obligation to pay principal and interest secured by mortgage – Rate of interest payable on principal sum outstanding under mortgage.
Legal practitioners – Solicitor and client relationship – Mortgage by clients in favour of solicitors – Fiduciary duties – Equitable remedies.
‘In Australia, the measure of compensation in respect of losses sustained by reason of breach of duty by a trustee or other fiduciary is determined by equitable principles and . . these do not necessarily reflect the rules for assessment of damages in tort or contract.’

Judges:

Brennan CJ, Gaudron, McHugh, Gummow, Kirby JJ

Citations:

(1997) 188 CLR 449, [1997] HCA 23, (1997) 144 ALR 729, (1997) 71 ALJR 781

Links:

Austlii

Cited by:

Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Equity, Legal Professions, Damages

Updated: 11 May 2022; Ref: scu.554208

Amaltal Corpn Ltd v Maruha Corpn: 20 Feb 2007

Supreme Court of New Zealand – Blanchard J said that even in a commercial relationship, there might be aspects which engaged fiduciary obligations: ‘That is because in the nature of that particular aspect of the relationship one party is entitled to rely upon the other, not just for adherence to contractual arrangements between them, but also for loyal performance of some function.’

Judges:

Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ

Citations:

[2007] 3 NZLR 192, [2007] NZSC 40, (2007) 8 NZBLC 101,996

Links:

Nzlii

Cited by:

Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 11 May 2022; Ref: scu.554211

Breen v Williams: 6 Sep 1996

High Court of Australia – Medicine – Doctor/patient relationship – Medical records – Patient’s right to access – Contractual right – Doctor’s duty to act in patient’s ‘best interests’ with utmost good faith and loyalty – Patient’s proprietary right or interest in information contained in records – Whether doctor under fiduciary duty to grant access – ‘Right to know’.
Brendan CJ said that fiduciary duties could arise either from agency or from a relationship of ascendancy or influence by one party over another, or dependence or trust on the part of that other. An obvious example of the ‘agency’ type of situation was the case where a person received money or other property for and on behalf of or as trustee of another person: ‘It is plain that fiduciary duties may well arise as aspects of a commercial relationship. Moreover, it is clear that legal and equitable rights and remedies are capable of co-existence, even in a single transaction.’

Judges:

Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ

Citations:

(1996) 186 CLR 71, [1996] HCA 57

Links:

Austlii

Cited by:

Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Health Professions

Updated: 11 May 2022; Ref: scu.554212

Agricultural Land Management Ltd v Jackson (No 2): 2 May 2014

(Supreme Court of Western Australia) Equity – Fiduciary duties – Whether mere existence of conflict is actionable – Whether a breach of conflict rule requires a fiduciary actually to act in a position of conflict and pursue or prefer a personal interest – Judgment pars [263] – [275]
Equity – Fiduciary duties – Whether a clause of a constitution of a trustee company can exclude all fiduciary duties – Consistency with s 601FC Corporations Act 2001 (Cth) – Effect on fiduciary duties owed by directors to the company
Equity – Equitable compensation – Where fiduciary duties owed by directors to a company – Whether the company can sue its directors for loss if contract entered into at an undervalue by trustee company on behalf of beneficiaries – Misleading to ask whether fiduciary duties are owed to the company ‘in its own right’ or ‘as trustee’ – Irrelevance to the award of compensation of whether the trustee will hold any recovery on trust for beneficiaries – Judgment pars
Equity – Equitable compensation – Difference between substitutive compensation and reparative compensation – When substitutive compensation is available – Judgment pars
Equity – Equitable compensation – Causation – ‘Common sense’ test of causation – Scope of liability for consequences – Need to identify precisely the scope of duty owed – Judgment pars
Corporations – Meaning of ‘compensation’ and causation requirements in s 1317H of the Corporations Act – Judgment pars
Corporations – Effect of deregistration of a registered scheme on ‘compensation’ in s 1317H of the Corporations Act – Judgment pars
Corporations – Meaning of ‘knowingly concerned in’ in s 79(c) of the Corporations Act – Requirement of ‘practical connection’ with at least one element of the contravention – Judgment pars
Limitation of actions – Application of limitation period by analogy – Limitation period for breach of equitable duty of care and skill by analogy with breach of common law duty of care and skill and by analogy with s 180 of Corporations Act – Judgment pars

Judges:

Edelman J

Citations:

[2014] WASC 102

Links:

Austlii

Cited by:

Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Equity

Updated: 11 May 2022; Ref: scu.553780

Tanwar Enterprises Pty Ltd v Cauchi: 7 Oct 2003

High Court of Australia – Vendor and purchaser – Contracts for sale of land – Default by purchaser – Notice of termination – Supplemental deed requiring completion by stipulated date – Time of essence – Default by purchaser – Notice of termination – Purchase price available following day – Specific performance – Whether unconscientious for vendors to exercise right of termination – Whether relief on the ground of ‘accident’ available in face of essential time stipulation.
Equity – Relief against forfeiture – Contracts for sale of land – Default by purchaser – Whether unconscientious for vendors to exercise right of termination – Whether default occasioned by ‘accident’ – Whether relief on the ground of ‘accident’ available in face of essential time stipulation.

Judges:

Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ

Citations:

(2003) 217 CLR 315, [2003] HCA 57

Links:

Austlii

Cited by:

Cited – Scott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Land, Contract

Updated: 11 May 2022; Ref: scu.553537

KM v HM: 29 Oct 1992

Supreme Court of Canada – Limitation of actions – Torts – Assault and battery – Incest – Woman bringing action against father for damages for incest – Whether or not action limited by Limitations Act – Application of the reasonable discoverability principle – Whether or not incest a separate and distinct tort – Limitations Act, R.S.O. 1980, c. 240, s. 45(1)(j), 47.
Limitation of actions – Equity – Fiduciary relationship – Parent/child – Woman bringing action against father for incest – Whether incest constitutes a breach of fiduciary duty by a parent – Whether limitation period applicable and whether the defence of laches applies.
Limitation of actions – Fraudulent concealment – Incest – Whether a limitation period in an incest action is postponed by defendant’s fraudulent concealment.

Judges:

La Forest, L’Heureux-Dube, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ

Citations:

(1992) 96 DLR (4th) 289, [1992] 3 SCR 6, 14 CCLT (2d) 1, AZ-92111111, EYB 1992-67549, JE 92-1644, [1992] SCJ No 85 (QL), 36 ACWS (3d) 466, 57 OAC 321

Links:

Canlii

Cited by:

Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Limitation, Equity, Trusts

Updated: 11 May 2022; Ref: scu.554205

Bank of New Zealand v New Zealand Guardian Trust Co Ltd: 1999

New Zealand Court of Appeal – Gault J said: ‘Recent cases show a trend in favour of analysis by reference to the scope of the duty, and enquire as to the risks against which there was a duty to protect the plaintiff. In South Australia Asset Management Corporation v York Montague Ltd [[1996] UKHL 10; 1997] AC 191 the House of Lords approached in this way a case of breach of a contractual duty of care while noting that the concurrent duty in tort was of the same scope. In the speech of Lord Hoffmann, with whom the other members agreed, it was said that the real question in such a case is the kind of loss in respect of which the duty is owed. To some extent this is merely to restate the question asking what losses is it reasonable that the law should require the wrongdoer to compensate, but it is a helpful analytical approach as illustrated in the instructive treatment in Todd, The Law of Torts (2ed 1997) para 20.3.’
Tipping J observed that while historically the law has tended to place emphasis on the legal characterisation of the relationship between the parties in delineating the remedies available for breach of an obligation, the nature of the duty which has been breached can often be more important, when considering issues of causation and remoteness, than the classification or historical source of the obligation. He identified three broad categories of breach by a trustee. First, there are breaches of duty leading directly to damage or to loss of trust property. Secondly, there are breaches involving an element of infidelity. Thirdly, there are breaches involving a lack of appropriate skill and care. He continued: ‘In the first kind of case the allegation is that a breach of duty by a trustee has directly caused loss of or damage to the trust property. The relief sought by the beneficiary is usually in such circumstances of a restitutionary kind. The trustee is asked to restore the trust estate, either in specie or by value. The policy of the law in these circumstances is generally to hold the trustee responsible if, but for the breach, the loss or damage would not have occurred. This approach is designed to encourage trustees to observe to the full their duties in relation to trust property by imposing on them a stringent concept of causation [ie a test by which a ‘but for’ connection is sufficient]. Questions of foreseeability and remoteness do not come into such an assessment.’

Judges:

Gault J, Tipping J

Citations:

[1999] 1 NZLR 664

Jurisdiction:

England and Wales

Cited by:

Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Trusts, Damages

Updated: 11 May 2022; Ref: scu.554201

Magnus v Queensland National Bank: 1888

A custodial bank was liable to restore trust funds merely because it dissipated the trust funds in a manner which was not authorised. Lord Halsbury LC said: ‘we are not at liberty to speculate whether the same result might not have followed whether the bank had been guilty of that default or not. The bank have in fact been guilty of default. As a matter of fact they concurred in the money being handed to a person who had no authority, in my view of the facts, to receive it.’

Judges:

Lord Halsbury LC

Citations:

(1888) 37 Ch D

Cited by:

Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Trusts

Updated: 11 May 2022; Ref: scu.553781

Hodgkinson v Simms: 30 Sep 1994

Supreme Court of Canada – Fiduciary duty — Non-disclosure — Damages — Financial adviser — Client insisting that adviser not be involved in promoting — Adviser not disclosing involvement in projects — Client investing in projects suggested by adviser — Ultimate decision as to whether or not to invest that of client — Substantial losses incurred during period of economic downturn — Whether or not fiduciary duty on part of adviser — If so, calculation of damages.
Contracts — Contract for independent services — Breach by failure to disclose — Calculation of damages.
La Forest J, giving the judgment of the majority, drew the distinction between fiduciary relationships and commercial interactions governed by the common law, the former being characterised by one party’s duty to act in the other’s best interests, and often by power on the one hand and dependency on the other, whereas the common law generally respected the pursuit of self-interest. The proper approach to damages for breach of a fiduciary duty was said to be restitutionary. On that basis, the majority of the court concluded that the claimant was entitled to be compensated for the loss sustained on investments which he had made on the advice of a fiduciary who had failed to disclose a conflict of interest, notwithstanding that the loss had resulted from an unforeseen general economic downturn.

Judges:

La Forest, L’Heureux-Dube, Sopinka, Gonthier, McLachlin, Iacobucci and Major JJ

Citations:

[1994] 3 SCR 377, 117 DLR (4th) 161, [1994] 9 WWR 609, 97 BCLR (2d) 1, 16 BLR (2d) 1, 171 NR 245, 22 CCLT (2d) 1, 49 BCAC 1, 57 CPR (3d) 1, 5 ETR (2d) 1, [1994] CarswellBC 438, AZ-94111096, JE 94-1560, [1994] SCJ No 84 (QL), [1994] ACS no 84, 50 ACWS (3d) 469, 80 WAC 1, 95 DTC 5135

Links:

Canlii

Cited by:

Cited – Cadbury Schweppes v FBI Foods 28-Jan-1999
Supreme Court of Canada – Commercial law – Confidential information – Breach of confidence – -Remedies – Manufacturer using confidential information obtained under licensing agreement to manufacture competing product – Whether permanent injunction . .
Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Approved – Pilmer v Duke Group Ltd 3-Apr-2003
High Court of Australia – Trusts – Express trust – Money received by firm of solicitors to be held for a specific purpose and in accordance with specific conditions – Misapplication of funds by firm – Breach of express trust – Liability of firm as . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Contract, Damages, Trusts

Updated: 11 May 2022; Ref: scu.554204

Pilmer v Duke Group Ltd: 3 Apr 2003

High Court of Australia – Trusts – Express trust – Money received by firm of solicitors to be held for a specific purpose and in accordance with specific conditions – Misapplication of funds by firm – Breach of express trust – Liability of firm as trustee – When breaches of trust occurred – Remedies – Restoration of trust fund – Causation – Whether appellant suffered a recoverable loss in consequence of firm’s breaches of trust – Whether appellant would not have suffered loss but for breach of trust – When loss is to be assessed.

Judges:

Gleeson CJ, McHugh, Gummow, Kirby, Hayne JJ

Citations:

(2001) 207 CLR 165, [2001] HCA 31

Links:

Austlii

Citing:

Approved – Hodgkinson v Simms 30-Sep-1994
Supreme Court of Canada – Fiduciary duty — Non-disclosure — Damages — Financial adviser — Client insisting that adviser not be involved in promoting — Adviser not disclosing involvement in projects — Client investing in projects suggested by . .

Cited by:

Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 11 May 2022; Ref: scu.554206

Youyang Pty Ltd v Minter Ellison Morris Fletcher: 3 Apr 2003

High Court of Australia – Trusts – Express trust – Money received by firm of solicitors to be held for a specific purpose and in accordance with specific conditions – Misapplication of funds by firm – Breach of express trust – Liability of firm as trustee – When breaches of trust occurred – Remedies – Restoration of trust fund – Causation – Whether appellant suffered a recoverable loss in consequence of firm’s breaches of trust – Whether appellant would not have suffered loss but for breach of trust – When loss is to be assessed.

Judges:

Gleeson CJ, McHugh, Gummow, Kirby, Hayne JJ

Citations:

(2003) 212 CLR 484, [2003] HCA 15

Links:

Austlii

Cited by:

Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 11 May 2022; Ref: scu.554207

Attorney General v Matthews: PC 20 Oct 2011

(Trinidad and Tobago) The respondent, a prisoner, had issued a claim for assault against a prison officer. The appellant failed to serve a defence. The court dismissed the application for judgment in default and extended the time to serve a defence. The claimant succeeded on appeal, and the defendant now appealed.
Held: ‘ a defence can be filed without the permission of the court after the time for filing has expired. If the claimant does nothing or waives late service, the defence stands and no question of sanction arises. If, as in the present case, judgment has not been entered when the defendant applies out of time for an extension of time, there is no question of any sanction having yet been imposed on him. No distinction is drawn in rule 10.3(5) between applications for an extension of time before and after the period for filing a defence.’

Judges:

Lord Phillips, Lord Brown, Lord Kerr, Lord Dyson, Sir Patrick Coghlin

Citations:

[2011] UKPC 38

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 11 May 2022; Ref: scu.445859

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

Austlii (High Court of Australia) International Law – Treaties – Convention ratified by Australia but not implemented by statute – Status in domestic law – Whether giving rise to legitimate expectations.
Immigration – Application for permanent entry – Applicant – Married man with children in Australia – Policy requirement that applicants be of good character – Applicant convicted and imprisoned before application dealt with – Application refused because of conviction – Convention requiring governmental actions concerning children to give primary consideration to best interests of child – Convention ratified by Australia but not incorporated by statute in Australian domestic law -Whether capable of giving rise to legitimate expectation that application would be dealt with in accordance with Convention – Convention on Rights of Child, Art 3 – Migration Act 1958 (Cth), ss 6(2), 6A(1), 16(1)(c).

Judges:

Deane, Toohey, Gaudron, McHugh JJ

Citations:

(1995) 128 ALR 353, [1995] HCA 20, (1995) 69 ALJR 423, (1995) 183 CLR 273

Links:

Austlii

Cited by:

Cited – ZH (Tanzania) v Secretary of State for The Home Department SC 1-Feb-2011
The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Human Rights, International, Immigration

Updated: 11 May 2022; Ref: scu.428473

Canada Rice Mills Ltd v Union Marine and General Insurance Co Ltd: PC 1941

Cargo was on a voyage from Rangoon to British Columbia and insured against perils of the sea. It was damaged by reason of heating occasioned when cargo hold ventilators were closed to prevent ingress of water in heavy weather. The Court of Appeal of British Columbia had held that the cause of the loss was not a peril of the sea because the weather encountered was normal, and such as to be normally expected on a voyage of the character, and there was no weather bad enough to endanger the safety of the ship if the ventilators had not been closed.
Held: The appeal succeeded. Lord Wright said: ‘these are not the true tests.’ Any accidental ingress of water into the vessel was a peril of the sea. The entry of sea water through an opening by which it was not supposed to enter was accidental even if the sea conditions were entirely normal for those waters at that time of year. Thus, storms that were seasonal and frequent, and therefore to be expected, nevertheless ‘are outside the ordinary accidents of wind and sea [and are therefore fortuitous]. They may happen on the voyage, but it cannot be said that they must happen.’

Judges:

Lord Wright

Citations:

[1941] AC 55

Cited by:

Cited – Global Process Systems Inc and Another v Berhad SC 1-Feb-2011
An oil rig (The Cendor MOPU) was being transported from Texas to Malaysia. During the voyage, three of the four legs suffered damage. The insurers refused liability saying that the damage was the result of inherent weaknesses in the rig.
Held: . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Insurance

Updated: 11 May 2022; Ref: scu.428508

Jaenicke v Schulz: 1924

Citations:

[1924] 4 DLR 488

Cited by:

Cited – Ketteringham and Another v Hardy ChD 3-Feb-2011
Two partners had together bought several properties for development, and now disputed the interests in one of them. One partneer had dies, and the refusal of development permission and the fall in property values left the land in negative equity. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Trusts

Updated: 11 May 2022; Ref: scu.428469

Nakkuda Ali v M F De S Jayaratne: PC 1951

(Ceylon) The section provided that ‘where the Controller has reasonable grounds to believe that any dealer is unfit to be allowed to continue as a dealer’ the Controller could exercise power to cancel the dealer’s licence given to him by the relevant Regulations in force in Ceylon.
Held: The words must be construed to mean that there must in fact exist reasonable grounds, known to the Controller, before he could validly exercise the power.
Liversidge v Anderson should be regarded as an authority for the meaning of that phrase in the particular regulation considered alone. Lord Radcliffe said ‘Their Lordships therefore treat the words in regulation 62 . . as imposing a condition that there must in fact exist such reasonable grounds, known to the Controller, before he can validly exercise the power of cancellation.’ and ‘It is not difficult to think of circumstances in which the Controller might in the ordinary sense of the words, have reasonable grounds of belief without having ever confronted the licence holder with the information which is the source of his belief. It is a long step in the argument to say that because a man is enjoined that he must not take action unless he has reasonable ground for believing something he can only arrive at that belief by a course of conduct analogous to the judicial process . . In truth when he cancels a licence he is not determining a question; he is taking executive action to withdraw a privilege because he believes, and has reasonable grounds to believe that the holder is unfit to retain it.’amlet

Judges:

Lord Radcliffe

Citations:

[1951] AC 66

Statutes:

Defence (Control of Textiles) Regulations 1945 62

Citing:

Dissenting Judgment applied – Liversidge v Sir John Anderson HL 3-Nov-1941
The plaintiff sought damages for false imprisonment. The Secretary of State had refused to disclose certain documents. The question was as to the need for the defendant to justify the use of his powers by disclosing the documents.
Held: The . .

Cited by:

Cited – Regina v Inland Revenue Commissioners ex parte Rossminster Ltd HL 13-Dec-1979
The House considered the power of an officer of the Board of Inland Revenue to seize and remove materials found on premises which a warrant obtained on application to the Common Serjeant authorised him to enter and search; but where the source of . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Administrative

Updated: 11 May 2022; Ref: scu.416368

William Farquharson v Dwarkanath Singh And The Government Of India: PC 1 Jul 1871

ER Suit by an Auction Purchaser of a Putnee, sold under Ben. Reg. VIII. of 1819, for possession of 3000 beegahs of land within his Putnee, and to enhance the rent against a Ghatwal, and the Government, charging encroachment against the Ghatwal beyond the quantity of 100 beegahs held ghatwally, according to a return made by a former Ghatwal. The only evidence of encroachment consisted of the Isumnovisee returns made by the Thanadars to the Magistrates in the years 1811, 1813, 1813, from which it appeared, that the quantity of land the then Ghatwal held ghatwally was 100 beegahs. Held, that the evidence of the Defendants of long-interrupted possession of the 3000 beegahs, presumably before the Decennial Settlement, outweighed the effect of the Isumnovisee returns, which were, though prima facie, not conclusire evidence of the quantity of the land held ghatwally; and further that, though such return was not objected to by the then Ghatwal, it did not affect the right of the Ghatwal in possession.

Citations:

[1871] EngR 26, (1871) 14 Moo Ind App 259, (1871) 20 ER 784

Links:

Commonlii

Jurisdiction:

Commonwealth

Land

Updated: 11 May 2022; Ref: scu.280207

Mussumat Anundee Koonwur, Widow Of Gunput Lal v Khedoo Lal,-Respondent; Mussumat Mankee Koonwur v Khedo Lal; Mussumat Poonpoon Koonwur v Khedoo Lal: 19 Jan 1872

Cesser of commenality is strong, though not conclusive, evidence of partition of joint family property, and removes or qualifies the presumption of Hindoo Law, that the acquisition of property by a member of the family is made by means of the joint estate, but the onus probandi lies on a member of the family setting up separation to prove that the property was acquired by himself after separation, and not from estate of the joint family.

Citations:

[1872] EngR 6, (1872) 14 Moo Ind App 412, (1872) 20 ER 840

Links:

Commonlii

Family, Commonwealth

Updated: 11 May 2022; Ref: scu.280096

Lennox Phillip and Others v Director of Public Prosecutions of Trinidad and Tobago and Another; Same vCommissioners of Prisons: PC 19 Feb 1992

(Trinidad and Tobago) There had been an insurrection, and many people were taken prisoner by the insurrectionists. To secure their release, the President issued an amnesty to all the insurgents, including the applicant. After surrendering, the applicant was kept in custody, and now sought his own release. Writs of habeas corpus were refused.
Held: The prisoners who had been pardoned before their trial, but had remained in custody because there were doubts about the constitutional propriety of their pardons, had an arguable case for habeas corpus application. They had established prima facie the validity of the pardons, and their continued detention without return to court to argue the habeas corpus application was unlawful. At the hearing of the habeas corpus application, the court would be able to determine the validity of the pardons.

Citations:

Gazette 19-Feb-1992, [1992] 1 AC 545, [1992] 2 WLR 211

Jurisdiction:

Commonwealth

Citing:

Cited – Rex v Rudd 1775
Mrs Rudd applied for a writ of habeas corpus, having already given evidence as an accomplice and being ready to give further evidence to assist in convicting her partners in crime.
Held: Where a co-accused gave evidence for the crown and . .

Cited by:

Cited – Regina v Uxbridge Magistrates and Another ex parte Adimi; R v CPS ex parte Sorani; R v SSHD and Another ex parte Kaziu Admn 29-Jul-1999
The three asylum seeker appellants arrived in the United Kingdom at different times in possession of false passports. They were prosecuted for possession or use of false documents contrary to section 5, and for obtaining air services by deception . .
See Also – 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 . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Commonwealth, Constitutional, Human Rights

Updated: 11 May 2022; Ref: scu.84711

Lim Teng Huan v Ang Swee Chuan: PC 8 Jan 1992

A deed evidencing an agreement could be used in evidence in court even though it might itself be void for uncertainty. A party to the deed was estopped from denying its contents. Having built a house upon one half of jointly owned land, and thus, having acknowledged the joint title, he was not free subsequently to deny that title.

Citations:

Gazette 08-Jan-1992

Jurisdiction:

England and Wales

Estoppel, Contract, Commonwealth

Updated: 10 May 2022; Ref: scu.83067

Commissioner for Inland Revenue v Mitsubishi Motors New Zealand Ltd: PC 1 Nov 1995

(New Zealand) The taxpayer company sold cars to its dealers who resold them with warranties, for which it gave the dealers indemnities calculated on statistical average. The company sought to set off the reserve it created to make payments under the indemnities against the revenue of the year in which the cars were sold. The commissioner appealed its case to the Board.
Held: The reserve was claimable in the year of the car sale, even though the losses remained contingent. On the year of the sale the company acquired an accrued legal obligation, and had properly deducted the liabilities incurred against its profits.

Judges:

Lord Hoffmann

Citations:

Gazette 01-Nov-1995, [1996] AC 315

Statutes:

Inland revenue Act 1976 (New Zealand) 104

Income Tax, Commonwealth

Updated: 10 May 2022; Ref: scu.79312

Regina v RC: 28 Oct 2005

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

Citations:

[2005] 3 SCR 99, 2005 SCC 61

Links:

Canlii

Jurisdiction:

England and Wales

Cited by:

Cited – Marper v United Kingdom; S v United Kingdom ECHR 4-Dec-2008
(Grand Chamber) The applicants complained that on being arrested on suspicion of offences, samples of their DNA had been taken, but then despite being released without conviction, the samples had retained on the Police database.
Held: . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 10 May 2022; Ref: scu.278519

Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations: 1986

(New South Wales Court of Appeal) The court upheld the validity of a law which directed a particular outcome of a judicial act. The words included the formula ‘prescribe and confine the scope of the legislative field open to the New South Wales Parliament’. Street CJ said: ‘It appears to be generally assumed that these words confer unlimited legislative power, comparable with that vested in the English Parliament itself. I can find no satisfactory basis for that assumption. The words, by their very terms, confine the powers conferred to ‘peace, welfare and good government’ of the body politic in respect of which the legislature is being established.
Assertions that these words convey plenary, or sovereign, power are to be found frequently in cases in which it has been felt necessary to reject any suggestion that the legislature in question is a mere delegate of the English Parliament and thus is not able to delegate further the law-making powers vested in it. Such suggestions have been uniformly rejected. But the rejection of such suggestions on the basis that the words convey plenary or sovereign power does not necessarily import that the power is unlimited in scope.’

Judges:

Street CJ

Citations:

(1986) 7 NSWLR 372

Citing:

Cited – The Queen v Burah PC 5-Jun-1978
The Board was asked whether Act No. XXII of 1869 of the Indian Legislature was inconsistent with the Indian High Courts Act (24 and 25 Vict. c. 104) or with the Charter of the High Court, or whether it was within the legislative power of the . .

Cited by:

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

Commonwealth, Constitutional

Updated: 10 May 2022; Ref: scu.277178

Fabrigas v Mostyn: 1775

The plaintiff a native Minorquan sought to bring an action in England for an alleged assault and false imprisonment on him in Minorca by the Governor of Minorca.
Held: Such an action could be brought. What foreign law is is a matter of fact to be determined by the provision of evidence, with the court assisting the jury to explain it. An action may not be brought against a judge on a court of record for something done by him in court. He may plead that it was done as such a judge, and that will be a complete defence.

Judges:

Lord Mansfield CJ

Citations:

(1773) 20 St Tr 82, [1775] 1 Copp 161, [1775] 98 ER 1021

Jurisdiction:

England and Wales

Citing:

Appeal from – Fabrigas v Mostyn 1773
Minorca was a ceded colony of the British Crown. The Governor, General Mostyn, apparently fearing that Fabrigas would stir up danger for the garrison, committed him to the worst prison on the island, with no bed and only bread and water, and with no . .
See Also – Fabrigas v Mostyn 1746
And as to the excess of damages, the Court were all of opinion, that it was very difficult to interpose with respect to the quantum of damages in actions for any personal wrong. Not that it can be laid down, that in no case of personal injury the . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Commonwealth, Personal Injury, Legal Professions

Updated: 10 May 2022; Ref: scu.277172

Carter Holt Forests Ltd v Sunnex Logging Ltd: 2001

(Court of Appeal of New Zealand) Lawyers had acted for a claimant in mediation proceedings with a defendant and had signed a comprehensive confidentiality agreement. The mediation resulted in a settlement. They were then instructed by another claimant in respect of a very similar dispute against the same defendant.
Held: There was a risk that the lawyers would make use of confidential information acquired in the earlier proceedings in the subsequent action, and they should not be permitted to continue to act.
Blanchard J said: ‘Certainly a party seeking the exclusion of the other side’s legal adviser must first show that there is an appearance of risk, going beyond the remote or merely fanciful, of conscious or unconscious use or disclosure by the lawyer of something relevant to the current dispute of which the lawyer gained knowledge as a result of participation in an earlier mediation. But if that threshold is reached, it is then for the lawyer to demonstrate that in fact no such risks exists or that, if it does, no damage, other than de minimis, could possibly result from use or disclosure.’

Judges:

Blanchard J

Citations:

[2001] 3 NZLR 343

Jurisdiction:

England and Wales

Cited by:

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

Commonwealth, Litigation Practice, Legal Professions

Updated: 10 May 2022; Ref: scu.268776

Du Toit and Vos v Minister for Welfare and Population Development: 10 Sep 2002

(South African Constitutional Court) Prospective adoptive parents were a same-sex couple who challenged laws preventing them from adopting. The court said: ‘In their current form the impugned provisions exclude from their ambit potential joint adoptive parents who are unmarried, but who are partners in permanent same-sex life partnerships and who would otherwise meet the criteria set out in section 18 of the Child Care Act . . Their exclusion surely defeats the very essence and social purpose of adoption which is to provide the stability, commitment, affection and support important to a child’s development, which can be offered by suitably qualified persons . . Excluding partners in same sex life partnerships from adopting children jointly where they would otherwise be suitable to do so is in conflict with the principle [of the paramountcy of the interests of the child] . . It is clear from the evidence in this case that even though persons such as the applicants are suitable to adopt children jointly and provide them with family care, they cannot do so. The impugned provisions . . thus deprive children of the possibility of a loving and stable family life . . The provisions of the Child Care Act thus fail to accord paramountcy to the best interests of the children.’

Citations:

(2002) 13 BHRC 187, [2002] ZACC 20, CCT 40/01

Links:

Saflii

Jurisdiction:

England and Wales

Cited by:

Cited – In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional, Human Rights, Discrimination

Updated: 10 May 2022; Ref: scu.270010

State Savings Bank of Victoria Comissioners v Permewan Wright and Co Ltd: 1915

To be held to be a banker in law, it was not necessary for a company to open current accounts.

Citations:

(1915) 19 CLR 457

Citing:

Applied – In re Shields’ Estate, Bank of Ireland (Governor and Co.), Petitioners 1901
The court considered whether the maintenance of current accounts was essential before a business could be considered to be a bank. . .

Cited by:

Cited – United Dominions Trust Ltd v Kirkwood CA 24-Feb-1966
The defendant was MD of a company which borrowed from the plaintiff. The company drew five bills as security, and the defendant endorsed them. When the company failed, the plaintiff gave notice of dishonour and sued the defendant as indorsee. The . .
Lists of cited by and citing cases may be incomplete.

Banking, Commonwealth

Updated: 10 May 2022; Ref: scu.260044

Hardman v Falk: 1955

Canada – ‘The contract of a lunatic is voidable not void: see York Glass Co. v. Jubb, Courts of equity will not interfere if a contract with a lunatic is made in good faith without any knowledge of the incapacity of the lunatic and no advantage is taken. If the contract is fair and the respondent had no knowledge that the appellant was a lunatic, the appellant is without a remedy: see Wilson v. The King.’

Citations:

[1955] 3 DLR 129

Jurisdiction:

Canada

Cited by:

Cited – Archer v Cutler 1980
(New Zealand) The purchaser of land sought specific performance of the contract. The vendor and purchaser had been neighbours. The neighbour needed part of the vendor’s land for access.
Held: A contract made by a person of insufficient mental . .
Cited – Hart v O’Connor PC 22-Apr-1985
Effect of insanity on making of contract
(New Zealand) The parties disputed the effect in law of an agreement for the sale of land. The transferor had proved not to be of sound mind.
Held: The validity of a contract entered into by a lunatic who is ostensibly sane is to be judged by . .
Lists of cited by and citing cases may be incomplete.

Contract, Commonwealth

Updated: 10 May 2022; Ref: scu.252476

Commissioner of Inland Revenue v Secan Ltd: 2000

(Court of Final Appeal, Hong Kong) The taxpayer company borrowed money to buy some land and build a block of flats. Construction took three years, during which no sales took place. The company’s accounts submitted to the revenue for those years treated interest on the borrowed money as carried forward to be added to the cost of the flats and, there being no sales against which any costs could be set off, showed neither a profit nor a loss. The company then changed its mind and claimed that its accounts had been drawn up on a false basis. Section 16 of the Hong Kong Inland Revenue Ordinance provides that in ascertaining the assessable profits for any year of assessment, ‘there shall be deducted all outgoings and expenses to the extent to which they are incurred during the basis period for that year of assessment . . including . . interest.’ The taxpayer argued that the carrying forward of any outgoings and expenses is prohibited and all such outgoings should have been deducted in the year in which they were incurred. The claim was to rewrite the accounts to show that the interest payments gave rise to a substantial loss in each year.
Held: Section 16 did not prohibit the capitalisation of interest, but there had been a deduction for interest in each of the first three years but that it had been set off against an increase in the value of the stock. The fact that the profit and loss account showed neither of these items was ‘merely a matter of presentation’.

Judges:

Miller LJ

Citations:

(2000) 74 TC 1

Cited by:

Cited – Revenue and Customs v William Grant and Sons Distillers Ltd HL 28-Mar-2007
The Revenue appealed findings as to the calculation of profits for corporation tax. The companies had sought to deduct sums from profits for depreciation of unsold stock in accordance with current accounting standards.
Held: ‘the profit and . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Corporation Tax

Updated: 10 May 2022; Ref: scu.251452

Vickers and Vickers v Stichtenoth Investments Pty Ltd: 1989

(Supreme Court of South Australia) The court considered whether a landlord faced with a tenant who had vacated the property was under a duty to mitigate his losses: ‘There is no reason why in modern times mitigation of damage should not apply. It is an ordinary principle of contract law. With modern leases the law should recognise the importance of the contractual aspect of a lease. Why should not a landlord faced with abandonment take steps to try to reduce his loss? Why should a vendor of tomatoes faced with refusal to take delivery by his purchaser suffer if he does not sell if he can to another purchaser and yet a quiescent and immobile landlord not suffer if he fails to seek another tenant? Modern ideas say that there is no reason for this anomaly’ and ‘mitigation as one ordinary principle of contract law applies to leases. That is to say, when a tenant abandons the leased premises the landlord is under duty to take reasonable steps to mitigate his loss by seeking another tenant. Of course circumstances may make it impossible or impractical for him for do that or find a tenant. But I think that the principle applies.’

Judges:

Bollen J

Citations:

(1989) 52 SASR 90

Cited by:

Cited – Reichman and Another v Beveridge CA 13-Dec-2006
The defendants were tenants of the claimant. They vacated the premises and stopped paying the rent. The claimant sought payment of the arrears of rent. The defendants said that the claimants should have taken steps to reduce their damages by seeking . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Commonwealth

Updated: 10 May 2022; Ref: scu.247624

Darling Island Stevedoring and Lighterage Co v Long: 1957

(High Court of Australia) An employer was not responsible vicariously for a breach of a duty at common law between one emplyee and another. There could be no vicarious liability on an employer under regulations providing precautions to be observed in the loading and unloading of ships (for which the regulations provided only a criminal sanction), or at common law, since the regulations only imposed a penalty for breach on the employee (‘the person in charge’), not upon the employer.

Citations:

(1957) 97 CLR 36

Cited by:

Not Followed – In Re Nelson and Others v Byron Price and Associates Ltd 1981
(British Columbia Court of Appeal) Craig JA, refused to follow Darling Island to hold that a master could not be held vicariously responsible for the breach of a statutory duty by an employee: ‘In arguing that there should not be vicarious liability . .
Not Followed – Majrowski v Guy’s and St Thomas’ NHS Trust CA 16-Mar-2005
The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
Held: The appeal succeeded. The . .
Cited – Majrowski v Guy’s and St Thomas’ NHS Trust HL 12-Jul-2006
Employer can be liable for Managers Harassment
The claimant employee sought damages, saying that he had been bullied by his manager and that bullying amounting to harassment under the 1997 Act. The employer now appealed a finding that it was responsible for a tort committed by a manager, saying . .
Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Commonwealth

Updated: 10 May 2022; Ref: scu.241430

Burns v Ransley: 1949

(High Court of Australia) An Australian citizen, was convicted of uttering seditious words, contrary to Section 24 of the Crimes Act 1914-1946. Under S24B seditious words were words expressive of a seditious intention, and a seditious intention, by virtue of Section 24A included, amongst other things, an intention to excite disaffection against the Government or Constitution of the Commonwealth [of Australia].
Held: The court was divided as to whether the necessary intention was present on the facts. Rich J: ‘Disaffection connotes enmity and hostility, estranged allegiance, disloyalty, hostility to constituted authority or to a particular form of political government’. reflecting the dictionary definition of disaffection. Latham CJ stated that ”disaffection’ in the context in which it is used means more . . than political opposition.’

Judges:

Latham CJ, Rich J

Citations:

[1949] 79 CLR 101

Cited by:

Cited – Secretary of State for the Home Department v Hicks CA 12-Apr-2006
The claimant was held as a suspected terrorist by the US government in Guantanamo Bay. He had Australian citizenship but qualified also for British citizenship. He had sought that citizenship and protection. The secretary of state appealed an order . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Crime

Updated: 10 May 2022; Ref: scu.240382

Holdlen Pty Ltd v Walsh: 2000

(New South Wales – Court of Appeal) Giles JA said: ‘but it is now more readily recognised that in causation, said to be a question of fact though tempered by value judgements and infused with policy considerations because with a view to allocating legal responsibility (March v E and MH Stramare Pty Ltd (1991) 171 CLR 506), an intentional act even of the person wronged may not break the chain of causation. The intentional act may be part of the chain of causation . .
Insanity is a concept of varying content, and the true enquiry (if the validity of any such enquiry be assumed) is into the worker’s mental state so that it might be found whether his suicide should be regarded as an intentional act. The test of dethronement of the power of volition has been adopted, and it does not necessarily turn on insanity. The law recognises in context not involving insanity that the will may be overborne or subjected to such influences that, although the act is deliberate, it is not regarded as the actor’s intentional act. In the context of duress, for example, Lord Simon said that duress ‘deflects, without destroying, the will of one of the contracting parties’ (Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653 at 695) . .’

Judges:

Giles JA

Citations:

[2000] NSWCA 87

Cited by:

Cited – Corr v IBC Vehicles Ltd CA 31-Mar-2006
The deceased had suffered a head injury whilst working for the defendant. In addition to severe physical consequences he suffered post-traumatic stress, became more and more depressed, and then committed suicide six years later. The claimant . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Negligence

Updated: 10 May 2022; Ref: scu.240043

Christian Education South Africa v Minister of Education: 2001

(South African Constitutional Court) The court emphasised the fundamental importance of the right to express one’s religion in a pluralistic, multi-cultural society.
Sachs J observed: ‘The underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness, is how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not . .
Such a society can cohere only if all its participants accept that certain basic norms and standards are binding. Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the state should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law.’

Judges:

Sachs J

Citations:

[2001] 1 LRC 441, (2001) 9 BHRC53

Jurisdiction:

England and Wales

Cited by:

Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – Doogan and Another v NHS Greater Glasgow and Clyde Health Board SCS 24-Apr-2013
(Extra Division, Inner House) The reclaimers, Roman Catholic midwives working on a labour ward as co-ordinators, sought to assert a right of conscientious objection under the 1967 Act. The respondents said that only those directly involved in the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Human Rights

Updated: 10 May 2022; Ref: scu.239615

Applicant A and Another v Minister for Immigration and Ethnic Affairs and Another: 1997

(High Court of Australia) A Chinese asylum seeker was not entitled to refugee status on the basis of well-founded fear of persecution by forcible sterilisation by reason of his membership of a ‘particular social group’, namely all fathers of families who had already produced one child, if returned to China under that country’s ‘One Child Policy’
Held: ‘By including in its operative provisions the requirement that a refugee fear persecution, the convention limits humanitarian scope and does not afford universal protection to asylum seekers. No matter how devastating may be epidemic, natural disaster or famine, a person fleeing them is not a refugee within the terms of the convention. And by incorporating the five convention reasons the convention plainly contemplates that there will even be persons fleeing persecution who will not be able to gain asylum as refugees.’

Judges:

Dawson, McHugh and Gunmow JJ; Brennan CJ and Kirby J (dissenting)

Citations:

(1997) 2 BHRC 143, [1997] HCA 4

Cited by:

Cited – Fornah v Secretary of State for the Home Department CA 9-Jun-2005
The applicant sought refugee status, saying that if returned home to Sierra Leone, she would as a young woman be liable to be circumcised against her will.
Held: Female sexual mutilation ‘is an evil practice internationally condemned and in . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Immigration, Human Rights

Updated: 09 May 2022; Ref: scu.228504

Bryant Powis and Bryant v La Banque du Peuple: PC 1893

Powers of Attorney are to be construed strictly.

Judges:

Lord Macnaghten

Citations:

[1893] AC 170

Cited by:

Cited – McDowall v Inland Revenue SCIT 26-Jun-2003
Gifts had been made from an estate, purportedly under a power of attorney. During his lifetime, the deceased had made various gifts to his children. As he begand to suffer Alzheimers, he gave a power of attorney. He had substantial assets, well . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Agency

Updated: 09 May 2022; Ref: scu.224089

Australian Mutual Provident Society v National Mutual Life Association of Australasia Limited: 1995

(New Zealand Court of Appeal) The Court was asked whether a rent review clause which provided for an open review was inconsistent with the rent review being operable by the lessor alone. The lease did not contain a ratchet clause, or upwards only review clause. The judge had held that to construe the clause as operable only by the landlord was inconsistent with the absence of a ratchet clause. The words in the lease that the landlord ‘may’ give notice requiring the rent to be reviewed had to be read as mandatory.
Held: The court reversed the decision. Hardie Boys J: ‘With respect, we cannot agree with Barker J that the deciding factors in the construction of the document are the wording of the demise clause and the absence of a ratchet clause. In determining the construction to adopt, the Court must look at the document as a whole, rather than give emphasis to any particular part. And it must endeavour to ascertain the intention of the parties by reference to the commercial purpose, and to the practicalities, for the parties obviously intended that what they provided for should work in a sensible and realistic way. Those principles are not easy to apply in this case, for all there is is the sublease. There is no evidence of surrounding circumstances that may have provided some assistance in judging what the parties intended by the words they used. Nor is it suggested that the words used did not correctly record their agreement; there is no application for rectification or for a remedy under the Contractual Mistakes Act 1977. The case turns entirely on the sublease itself, and any inferences that may properly be drawn from it. But these are very limited. It is understandable that the sublessor may have desired rent reviews to be optional. It is equally understandable that the sublessee may have desired them to be obligatory. There are valid reasons for both alternatives. The same may be said of the short period during which the commencing rent is expressed to be payable, and of the unusual term of the lease. There are doubtless several possible explanations for both. Even if, as Barker J held, it is a reasonable inference that the omission of an express ratchet provision from cl 3.06(a) was deliberate, it does not necessarily follow that the parties must have intended that the sublessor was required to give a notice under cl 3.06(a), whether it wished to do so or not. It is quite possible that what they intended was that, while the sublessor would not be required to invoke cl 3.06(a) at each review date, if it elected to do so it would accept the risk that despite its expectations the result would be that the rent was fixed at less than the rent previously applicable. That approach may well accord with commercial reality.’

Judges:

Hardie Boys J

Citations:

[1995] 1 NZLR

Cited by:

Applied – Board of Trustees of the National Provident Fund v Shortland Securities Limited 1996
(New Zealand Court of Appeal) The court considered whether a review in a lease without a ratchet (upwards only) rent review clause could be exercised only at the instigation of the landlord: ‘The fact that as a consequence the parties agreed upon . .
Cited – Hemingway Realty Ltd v Clothworkers’ Company ChD 8-Mar-2005
The lease provided for a rent review under which the rent might either be increased or decreased. The landlord had chosen not to exercise the clause in view of falling rents. The tenant purported to do so. The landlord said that it alone had the . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Commonwealth

Updated: 09 May 2022; Ref: scu.223573

Hibbert v The Queen: 1995

(Canada) Defence of duress.

Judges:

Lamer CJC

Citations:

(1995) 99 CCC (3d) 193

Cited by:

Cited – Hasan, Regina v HL 17-Mar-2005
The House was asked two questions: the meaning of ‘confession’ for the purposes of section 76(1) of the 1984 Act, and as to the defence of duress. The defendant had been involved in burglary, being told his family would be harmed if he refused. The . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 09 May 2022; Ref: scu.223666

Callender, Sykes and Co v Colonial Secretary of Lagos: PC 1891

Nigeria had no bankruptcy law of its own.
Held: The general vesting provisions of the Bankruptcy Act 1869 of the United Kingdom (and not merely provisions about reciprocal enforcement) applied in Nigeria.

Citations:

[1891] AC 460

Cited by:

Cited – Al Sabah and Al Sabah v Grupo Torras SA Culmer as trustee of the property of Sheikh Fahad Mohammed Al Sabah, bankrupt PC 11-Jan-2005
PC (Cayman Islands) The claimant complained of an order of the Court of Appeal of the Cayman Islands, requiring him to comply with a letter of request from the Grand Court of the Bahamas.
Held: In earlier . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Insolvency

Updated: 09 May 2022; Ref: scu.222841

Foster v Federal Commissioner of Taxation: 1951

(Australia) The idea of ‘disclosure’ to a person who already knew or was deemed to know the fact at issue iss conceptually impossible.

Citations:

(1951) 82 CLR 606

Cited by:

Cited – Hinchy v Secretary of State for Work and Pensions HL 3-Mar-2005
The applicant had been dependent upon income support, and had then come to receive Disability Living Allowance (DLA). She therefore received additional income support, but the office did not adjust that benefit down when her DLA stopped. The . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Administrative

Updated: 09 May 2022; Ref: scu.223212

Karpenko v Paroian, Courey, Cohen and Houston: 1981

(Ontario High Court) Andersen J said: ‘What is relevant and material to the public interest is that an industrious and competent practitioner should not be unduly inhibited in making a decision to settle a case by the apprehension that some Judge, viewing the matter subsequently, with all the acuity of vision given by hindsight, and from the calm security of the Bench, may tell him that he should have done otherwise. To the decision to settle a lawyer brings all his talents and experience both recollected and existing somewhere below the level of the conscious mind, all his knowledge of the law and its processes. Not least he brings to it his hard-earned knowledge that the trial of a law-suit is costly, time-consuming and taxing for everyone involved and attended by a host of contingencies, foreseen and unforeseen. Upon all of this he must decide whether he should take what is available by way of settlement, or press on. I can think of few areas where the difficult question of what constitutes negligence, which gives rise to liability, and what at worst constitutes an error of judgment, which does not, is harder to answer. In my view it would be only in the case of some egregious error . . that negligence would be found.’

Judges:

Andersen J

Citations:

(1981) 117 DLR (3d) 383

Jurisdiction:

England and Wales

Cited by:

Cited – Moy v Pettman Smith (a firm) and another HL 3-Feb-2005
Damages were claimed against a barrister for advice on a settlement given at the door of the court. After substantial litigation, made considerably more difficult by the negligence of the solicitors, the barrister had not advised the claimant at the . .
Cited – Webb v Macdonald and Another ChD 29-Jan-2010
Defendant barrister and solicitors applied to have the claims against them for professional negligence struck out. They had advised on a settlement of a dispute, which settlement the claimant now said was negligently wrong.
Held: The advice . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence, Commonwealth

Updated: 09 May 2022; Ref: scu.222552

Equal Opportunities Commission v Director of Education: 2001

(High Court of Hong Kong) ‘what may be true of a group may not be true of a significant number of individuals within that group’.

Judges:

Hartmann J

Citations:

[2001] 2 HKLRD 690

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Discrimination

Updated: 09 May 2022; Ref: scu.220682

Franklin v Giddins: 1978

The female defendant, from a certain date knew that an orchard conducted by her husband and herself contained nectarine trees propagated by a grafting process undertaken by her husband based upon budwood cuttings stolen by her husband from the plaintiff’s orchard.
Held: Because she defendant knew, from the relevant date, that the trees were propagated from a stolen trade secret, Dunn J in reliance upon the observations of Greene M.R. in Saltman Engineering Co. Ltd v Campbell Engineering Co. Ltd (supra) at p 213, held that it was unconscionable for her to derive any benefit from the propagation and sale of the trees and thus she, like her husband, infringed the plaintiff’s rights, and Dunn J made an order for the delivery up of the nectarine trees.

Judges:

Dunn J

Citations:

[1978] Qd R 72

Jurisdiction:

England and Wales

Cited by:

Cited – EPI Environmental Technologies Inc and Another v Symphony Plastic Technologies Plc and Another ChD 21-Dec-2004
The claimant had developed an additive which would assist in making plastic bags bio-degradable. They alleged that, in breach of confidentiality agreements, the defendants had copied the product. The defendants said the confidentiality agreement was . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Commonwealth

Updated: 09 May 2022; Ref: scu.220989

Judd v Sun Newspapers: 1930

(Australia) The plaintiff was put in the box as a witness but not asked any questions by his counsel, nor did he give any evidence in chief; he was, however, cross-examined by counsel for the defendants, at great length, not only in regard to matters material to the facts alleged in the article complained of, but also as to his use of violent, abusive, and insulting language in regard to other persons entirely distinct from matters at issue between the parties.
Held: Harvey C.J. ‘Damages which a jury may award a plaintiff may possibly be increased by the outrageous nature of the language in which the libel is couched, or lessened by the provocative conduct or language of the plaintiff, just as damages may be aggravated by the way in which the defendant has conducted his case in the Court. In my humble judgment, those elements of damage are hard to justify on principle, but have been sanctioned by usage, and as an indulgence to what is called the practical common sense of juries.’ and (Halse Rogers J) ‘Where the language complained of in the action has been provoked by the language of the plaintiff, and relates to the same subject matter, there is sound reason for admitting evidence of all the circumstances in which the libel was published, and for inviting the jury to consider the conduct of the plaintiff on the question of damages’

Judges:

Harvey C.J, Halse Rogers J

Citations:

[1930] 30 State Reports New South Wales

Citing:

Doubted – Kelly v Sherlock 1866
The defendant had claimed that the plaintiff preached a sermon against the appointment of a Roman Catholic chaplain to the Liverpool borough gaol, and another sermon reflecting in strong terms on the conduct of the town council of Liverpool electing . .

Cited by:

Cited – Godfrey v Demon Internet Limited (2) QBD 23-Apr-1999
Evidence of Reputation Admissible but Limited
The plaintiff had brought an action for damages for defamation. The defendant wished to amend its defence to include allegations that the plaintiff had courted litigation by his action.
Held: A judge assessing damages should be able see the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Defamation

Updated: 08 May 2022; Ref: scu.185261

Pemberton v Chappell: 12 Dec 1986

Court of Appeal of New Zealand – The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried.

Judges:

Somers, Casey, Hillyer JJ

Citations:

[1987] 1 NZLR 1 CA, (1986) 1 PRNZ 183, CA123/86, [1986] NZCA 112

Links:

Nzlii

Cited by:

Cited – John Andrew Bagnall, Andrew John Maher v Mobile Oil New Zealand Limited (Appeal No 23 of 2001) PC 11-Dec-2001
(New Zealand) The respondent sponsored motor racing events in New Zealand. The company had failed to deliver the races agreed, and went into liquidation. The appellants had guaranteed its obligations. Summary judgement had been sought but refused, . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Litigation Practice

Updated: 08 May 2022; Ref: scu.183279

Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2): 1984

The court approved ‘the adaptation of the traditional doctrine of passing off to meet new circumstances involving the deceptive or confusing use of names, descriptive terms or other indicia to persuade purchasers or customers to believe that the goods or services have an association, quality or endorsement which belongs or would belong to goods or services of, or associated with, another or others.’

Judges:

Deane J

Citations:

(1984) 156 CLR 414

Cited by:

Cited – Regina v Department of Health, Ex Parte Source Informatics Ltd CA 21-Dec-1999
Where information was given by a patient to the pharmacist, and he took the data, stripping out any possibility of the individual being identified, the duty of confidence which attached to the prescription was not breached by the passing on of the . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Commonwealth

Updated: 08 May 2022; Ref: scu.183427

Commissioner for Railways v McDermott: PC 1966

Citations:

[1966] 2 All ER 162 PC, [1966] 3 WLR 267, [1967] 1 AC 169

Cited by:

Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 08 May 2022; Ref: scu.183312

Devan Nair v Yong Kuan Teik: PC 1967

(Malaysia) The Malaysian election rules provide in certain circumstances for service by a notice published in the Gazette but such notice was in the event out of time.
Held: The respondent’s appeal should be allowed and the petition struck out.
Lord Upjohn said: ‘So the whole question is whether the provisions of rule 15 are ‘mandatory’ in the sense in which that word is used in the law ie, that a failure to comply strictly with the times laid down renders the proceedings a nullity; or ‘directory’, ie, that literal compliance with the time schedule may be waived or excused or the time may be enlarged by a judge . . Circumstances which weigh heavily with their Lordships in favour of a mandatory construction are: (1) The need in an election petition for a speedy determination of the controversy . . (2) In contrast, for example, to the Rules of the Supreme Court in this country, the rules vest no general power in the election judge to extend the time on the ground of irregularity. Their Lordships think this omission was a matter of deliberate design . . The case of Williams -v- Tenby Corporation which has stood the test of nearly 90 years and seems to their Lordships plainly rightly decided, strongly supports the view that the provisions of rule 15 were mandatory . . their Lordships cannot attribute weight to the circumstances that the rules contained no express power to strike out a petition for non-compliance with rule 15.’

Judges:

Lord Upjohn

Citations:

[1967] 2 AC 31

Citing:

Cited – Williams v Mayor of Tenby CCP 1879
The defendant had not given appropriate notices under the act and complained that his petition had been struck out: ‘It is said that there would be hardship supposing money deposited, if mere omission of notices should prevent a petition. I see no . .

Cited by:

Cited – Ullah and Others, Ahmed v Pagel, Scallan, Kennedy CA 12-Dec-2002
The claimants sought to issue election petitions to challenge the results of local elections. The petitioners had complied with all the rules save that they had failed to serve the notice of presentation within the five day period. The claimants . .
Cited – Absalom v Gillett QBD 1995
An application was made under rule 13 to strike out a local government election petition for non-compliance with s.136(3) and rule 6: the petitioners there had served the notice on the returning officer but had not served the successful candidates. . .
Lists of cited by and citing cases may be incomplete.

Elections, Commonwealth

Updated: 08 May 2022; Ref: scu.183167

Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Pty Ltd: 1978

Citations:

[1978] 52 ALJR 392

Cited by:

Cited – Cadbury-Schweppes Pty Ltd And Others v Pub Squash Co Pty Ltd PC 13-Oct-1980
(New South Wales) The plaintiff had launched and advertised a soft drink. A year later, the defendant launched a similar product using similar names, styles and advertising, but then registered trade marks. The plaintiff sought damages, and for the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 08 May 2022; Ref: scu.182302

Yerkey v Jones: 1939

The relationship of husband and wife is not enough of itself to raise a presumption of undue influence. The Court of Chancery was not blind to the opportunities of obtaining and unfairly using influence over a wife which the husband often possesses. But there is nothing unusual or strange in a wife, from motives of affection or for other reasons, conferring substantial financial benefits on her husband. Although there is no presumption the court will nevertheless note, as a matter of fact, the opportunities for abuse which flow from a wife’s confidence in her husband. The court will take this into account with all the other evidence in the case.

Judges:

Dixon J

Citations:

(1939) 63 CLR 649

Cited by:

Cited – Barclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
Lists of cited by and citing cases may be incomplete.

Undue Influence, Family, Commonwealth

Updated: 08 May 2022; Ref: scu.180581