Category: Commonwealth

Ter Neuzen v Korn: 19 Oct 1995

CANLII (Supreme Court of Canada) The plaintiff underwent AI treatment by the defendant, during the course of which she contracted HIV-AIDS. She claimed in negligence and contract.
Held: A court must consider whether a common law warranty of fitness and merchantability should be implied into the contract which includes services as well as the provision of materials. However, such a warranty will not be implied in all circumstances. The court must examine the specific nature of the contract and the relationship between the parties in order to assess whether it was the intention of the parties that such a warranty be implied. Courts must be very cautious in their approach to implying contractual terms. A rationale for implying warranties in contracts of goods and services is that a supplier of goods generally has recourse against the manufacturer under the Sale of Goods Act as a result of the statutory conditions imposed. While it is true that the primary purpose of the implied warranty is to hold the supplier of goods liable notwithstanding the absence of negligence, different considerations apply in the context of the medical profession than in the ordinary commercial context. The doctor cannot trace the liability back to the initial manufacturer. Moreover, it must be recognized that biological products such as blood and semen, unlike manufactured products, carry certain inherent risks. It would be inappropriate to imply a warranty of fitness and merchantability in the circumstances of this case. Moreover, any warranty would simply be to take reasonable care.

Judges:

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

Citations:

[1995] 3 SCR 674

Links:

Canlii

Jurisdiction:

Canada

Commonwealth, Contract, Negligence, Damages

Updated: 02 May 2022; Ref: scu.402550

Wallace v United Grain Growers Ltd: 30 Oct 1997

SCC (Supreme Court of Canada) Bankruptcy – Property of bankrupt – Salary, wages or other remuneration – Undischarged bankrupt bringing action for wrongful dismissal – Whether damages for wrongful dismissal included in ‘salary, wages or other remuneration’ – Bankruptcy Act, R.S.C., 1985, c. B 3, s. 68(1).
Civil procedure – Wrongful dismissal – Undischarged bankrupt seeking damages for wrongful dismissal – Whether undischarged bankrupt can bring action for wrongful dismissal in his own name.
Employment law – Wrongful dismissal – Employee summarily discharged seeking damages for wrongful dismissal – Trial judge awarding employee damages based on 24 month notice period and aggravated damages – Whether Court of Appeal erred in reducing reasonable notice period to 15 months – Whether Court of Appeal erred in overturning aggravated damages award – Whether action can be brought for ‘bad faith discharge’ – Whether employee entitled to punitive damages.

Judges:

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

Citations:

[1997] 3 SCR 701, [1997] 152 DLR (4th) 1, 219 NR 161

Links:

Canlii short, Canlii

Jurisdiction:

Canada

Cited by:

Cited – GAB Robins (UK) Ltd v Triggs CA 30-Jan-2008
The claimant had been awarded damages for unfair constructive dismissal. The employer appealed an award of damages for the period prior to the acceptance by the employee of the repudiatory breach.
Held: Where a claimant’s losses arose before . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Employment, Damages

Updated: 02 May 2022; Ref: scu.375114

Raza Narayana Gajapatiraju v Revenue Divisional Officer, Vizagapatan (The Indian Case): PC 1939

Land was to be acquired for anti-malarial works relating to a harbour development. Lord Romer rejected the suggestion in a compulsory purchase valuation that it would be possible to ascertain the potential special value of land to a ‘special purchaser’ by imagining an auction, as being ‘an entire waste of the arbitrator’s imagination’. Potentiality should be valued even if the only likely purchaser is the acquiring authority itself.

Judges:

Lord Collins, Lord Romer

Citations:

[1939] AC 302

Cited by:

Cited – Transport for London (London Underground Ltd) v Spirerose Ltd HL 30-Jul-2009
Compulsory Purchase Compensation – Land As it Is
The House considered the basis of calculation of compensation on the compulsory purchase of land without planning permission, but where permission would probably be granted. The appellant challenged the decision which had treated the probability as . .
Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Land, Damages

Updated: 02 May 2022; Ref: scu.372333

Caffoor v Columbo Income Tax Commissioner: PC 1961

Taxation and rating decisions are sui generis. Lord Radcliffe said: ‘The critical thing is that the dispute which alone can be determined by any decision given in the course of these proceedings is limited to one subject only, the amount of the assessable income for the year in which the assessment is challenged. It is only the amount of that assessable income that is concluded by an agreement or by a decision on an appeal against it (see section 75). Although, of course, the process of arriving at the necessary decision is likely to involve consideration of questions of law, turning upon the construction of the Ordinance or of other statutes or upon the general law, and the tribunal will have to form its view on those questions, all these questions have to be treated as collateral or incidental to what is the only issue that is truly submitted to determination (cf Reg v Hutchings).’ and ‘It may be that the principles applied in these cases form a somewhat anomalous branch of the general law of estoppel per rem judicatam, and are not easily derived from or transferred to other branches of litigation in which such estoppels have to be considered; but in their Lordships opinion they are well established in their own field, and it is not by any means to be assumed that the result is one that should be regretted in the public interest.’

Judges:

Lord Radcliffe

Citations:

[1961] AC 584

Cited by:

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

Commonwealth, Taxes Management, Rating

Updated: 02 May 2022; Ref: scu.372324

Elvan Rose v The Queen: PC 1961

Lord Tucker said: ‘A man may know what he is doing and intend to do it and yet suffer from such abnormality of mind as substantially impairs his mental responsibility’.

Judges:

Lord Tucker

Citations:

[1961] AC 49

Cited by:

Cited – Regina v Khan CACD 27-Jul-2009
On his trial for murder the defendant produced unchallenged expert evidence that at the time of the offence, his mental responsibility for the killing was substantially impaired by his mental illness. He said that in these circumstances the charge . .
Lists of cited by and citing cases may be incomplete.

Crime, Commonwealth

Updated: 02 May 2022; Ref: scu.372332

Long v Lord Bishop of Cape Town: PC 13 Feb 1863

After constitutional government had been granted to a colony, the Crown, by letters patent appointing a bishop, could no longer grant any coercive ecclesiastical jurisdiction to him. The church could be nothing more than a voluntary association.
The Church of England when not established in the colonies, is in the same position there as any other religious body and rules of discipline adopted by members will be binding on all who expressly or by implication have assented to them. If the religious body constitute a tribunal to determine disputes as to such rules, the decision of such tribunal will be binding when it has acted within the scope of its authority, has observed such forms as the rules require, if any forms be prescribed and, if not has proceeded in a manner consonant with the principles of justice. But such tribunal is not in any sense a court and the civil courts will give effect to its decisions as they give effect to the decisions of arbitrators whose jurisdiction rests entirely upon the agreement of the parties.
Sentences of suspension and deprivation pronounced by the Bishop of Cape Town against an Incumbent within his Diocese for refusing to give notice in his Church for the election of lay Delegates to a Synod of the Diocese, in conformity with the provisions of certain printed regulations purporting to be Acts and Constitutions passed at a previous Synod, and transmitted to the Incumbent in a letter from the Bishop, reversed; such refusal on the part of the Incumbent not being an offence, for which by the laws of the Church of England his suspension and deprivation would have been warranted

Citations:

[1863] EngR 277, (1863) 1 Moo PC NS 411, (1863) 15 ER 756

Links:

Commonlii

Cited by:

Cited – Shergill and Others v Khaira and Others SC 11-Jun-2014
The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Ecclesiastical, Equity, Constitutional

Updated: 02 May 2022; Ref: scu.282932

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

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

Citations:

[1866] EngR 190, (1866) 11 Moo Ind App 28, (1866) 20 ER 11

Links:

Commonlii

Commonwealth, Insolvency

Updated: 02 May 2022; Ref: scu.280901

Brown v McLachlan: PC 11 Dec 1872

Where a Statute professes merely to repeal a former Statute of limited operation, and to re-enact its provisions in an amended form, an intention to extend the operation of its provisions to classes of persons not previously subject to them is not to be presumed as a necessary inference, unless the intention to the contrary is clearly shown.

Citations:

[1872] EngR 39, (1872) 9 Moo PC NS 384, (1872) 17 ER 559

Links:

Commonlii

Commonwealth, Constitutional

Updated: 02 May 2022; Ref: scu.280129

In The Matter of The Petition Of Edward Hutchinson Pollard v The Chief Justice Of The Supreme Court Of Hong Kong: PC 16 Jun 1868

A contempt of Court being a criminal offence, no person can be punished for such unless the specific offence charged against him be distinctly stated, and an opportunity given him of answering.

Citations:

[1868] EngR 12, (1868) 5 Moo PC NS 111, (1868) 16 ER 457, (1868) LR 2 PC 106

Links:

Commonlii

Cited by:

Cited – Maharaj v Attorney General for Trinidad and Tobago PC 11-Oct-1976
A judge of the High Court had committed the barrister appellant to prison for seven days for contempt in the face of the court. The barrister was granted special leave to appeal to the Board against the committal order.
Held: Allowing the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Contempt of Court

Updated: 02 May 2022; Ref: scu.280642

Jogee and Ruddock v The Queen: PC 18 Feb 2016

(Jamaica) The Court considered the notion of ‘parasitic accessory liability.’

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Hughes, Lord Toulson, Lord Thomas

Citations:

[2016] UKPC 7, [2016] 2 WLR 681

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Jogee and Ruddock (Jamaica) v The Queen SC 18-Feb-2016
Joint Enterprise Murder
(and in Privy Council) The two defendants appealed against their convictions (one in Jamaica) for murder, under the law of joint enterprise. Each had been an accessory when their accomplice killed a victim with a knife. The judge in Jogee had . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 02 May 2022; Ref: scu.563146

Poosathurai v Kannappa Chettiar and Others: PC 18 Nov 1919

(Madras)

Citations:

[1919] UKPC 110, [1919] LR 47

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – National Westminster Bank plc v Morgan HL 7-Mar-1985
Undue influence was alleged.
Held: Equity avoids dispositions of property procured by the improper or unconscientious use of the influence of one person over another, that cannot be explained on the grounds of friendship, charity or other . .
Lists of cited by and citing cases may be incomplete.

Undue Influence

Updated: 02 May 2022; Ref: scu.423352

Palaniappa Chettiar v Arunasalam Chettiar: PC 31 Jan 1962

Malaya

Judges:

Devlin, Hodson, Radcliffe LL

Citations:

[1962] UKPC 1a

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Chettiar v Chettiar PC 14-Feb-1962
(Malaya) A father, in registering shares in the names of his children, had transferred the beneficial interest in those shares to them. Many years later the father had treated the shares as his own. The question arose as to whether this fact . .

Cited by:

See Also – Chettiar v Chettiar PC 14-Feb-1962
(Malaya) A father, in registering shares in the names of his children, had transferred the beneficial interest in those shares to them. Many years later the father had treated the shares as his own. The question arose as to whether this fact . .
Mentioned – Les Laboratoires Servier and Another v Apotex Inc and Others SC 29-Oct-2014
Ex turpi causa explained
The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Torts – Other

Updated: 02 May 2022; Ref: scu.429967

Hall v Hebert: 29 Apr 1993

(Canadian Supreme Court) After they had been drinking heavily together, Mr Hebert, who owned a muscle car, allowed Mr Hall to drive it, including initially to give it a rolling start down a road on one side of which there was a steep slope. The car careered down the slope and Mr Hall was seriously injured.
Held: The illegality of his driving did not bar his claim against Mr Hebert but that he was contributorily negligent as to 50%.
McLachlin J discussed the need for a consistent and defensible principle for the operation of the doctrine ex turpi causa: ‘a need in the law of tort for a principle which permits judges to deny recovery to a plaintiff on the ground that to do so would undermine the integrity of the justice system. The power is a limited one. Its use is justified where allowing the plaintiff’s claim would introduce inconsistency into the fabric of the law, either by permitting the plaintiff to profit from an illegal or wrongful act, or to evade a penalty prescribed by criminal law. Its use is not justified where the plaintiff’s claim is merely for compensation for personal injuries sustained as a consequence of the negligence of the defendant.’ He explained the principle, saying that: ‘to allow recovery in these cases would be to allow recovery for what is illegal. It would put the courts in the position of saying that the same conduct is both legal, in the sense of being capable of rectification by the court, and illegal. It would, in short, introduce an inconsistency in the law. It is particularly important in this context that we bear in mind that the law must aspire to be a unified institution, the parts of which – contract, tort, the criminal law – must be in essential harmony. For the courts to punish conduct with the one hand while rewarding it with the other, would be to ‘create an intolerable fissure in the law’s conceptually seamless web’: Weinrib – ‘Illegality as a Tort Defence’ (1976) 26 U.T.L.J. 28 at p. 42. We thus see that the concern, put at its most fundamental, is with the integrity of the legal system.’

Judges:

McLachlin J

Citations:

[1993] 2 SCR 159, (1993) 101 DLR (4th) 129, 1993 CanLII 141

Links:

Canlii

Jurisdiction:

Canada

Cited by:

Cited – Vellino v Chief Constable of Greater Manchester Police CA 31-Jul-2001
The police were not under any duty to protect someone who had been arrested from injuring himself in an attempt to escape. The claimant had a history of seeking to avoid capture by jumping from his flat window. On this occasion he injured himself in . .
Cited – Moore Stephens (A Firm) v Stone Rolls Ltd (in liquidation) HL 30-Jul-2009
The appellants had audited the books of the respondent company, but had failed to identify substantial frauds by an employee of the respondent. The auditors appealed a finding of professional negligence, relying on the maxim ex turpi causa non . .
Cited – Les Laboratoires Servier and Another v Apotex Inc and Others SC 29-Oct-2014
Ex turpi causa explained
The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . .
Cited – Hounga v Allen and Another SC 30-Jul-2014
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 02 May 2022; Ref: scu.258466

Verge v Somerville: PC 1924

On an appeal from New South Wales, The Board considered the validity of a gift ‘to the trustees’ of the Repatriation Fund or other similar fund for the benefit of New South Wales returned soldiers’.
Held: Trusts for education and religion do not require any qualification of poverty to be introduced to give them validity and generally poverty is not a necessary qualification in trusts beneficial to the community. However, Lord Wrenbury said: ‘To ascertain whether a gift constitutes a valid charitable trust so as to escape being void on the ground of perpetuity, a first enquiry must be whether it is public-whether it is for the benefit of the community or of an appreciably important class of the community. The inhabitants of a parish or town, or any particular class of such inhabitants, may, for instance, be the objects of such a gift, but private individuals, or a fluctuating body of private individuals, cannot.’

Judges:

Lord Wrenbury

Citations:

[1924] AC 496

Jurisdiction:

Australia

Cited by:

Cited – Baddeley (Trustees of the Newtown Trust) v Inland Revenue Commissioners HL 17-Feb-1955
Land had been conveyed to trustees for the moral, social and physical well-being of a community. The court considered whether the trust was charitable in nature, where it was said that it confined the benefits to a class of people who do not . .
Cited – In Re Strakosch 1949
The court may construe a gift as impliedly limited to charitable purposes. Lord Greene MR said: ‘In Williams’ Trustees v Inland Revenue Commissioners the House of Lords has laid down very clearly that in order to come within Lord Macnaghten’s fourth . .
Cited – Re Resch’s Will Trusts; Vera Caroline Le Crasv Perpetual Trustee Company Limited PC 19-Oct-1967
(New South Wales) The testator left a series of testamentary provisions including gifts which worked cumulatively. Lord Wilberforce discussed the breadth of evidence admissible in the probate court: ‘The principles which ought to be applied on such . .
Cited – Oppenheim v Tobacco Securities Trust Co Ltd HL 13-Dec-1950
Trustees were directed to apply certain income in providing for ‘the education of children of employees or former employees’ of a British limited company or any of its subsidiary or allied companies. The number of eligible employees was over . .
Lists of cited by and citing cases may be incomplete.

Charity, Commonwealth

Updated: 01 May 2022; Ref: scu.264008

Union Bank of Australia Ltd v McClintock: PC 1922

Where a partner obtains money by drawing on a partnership bank account without authority, he alone and not the partnership obtains legal title to the money so obtained.

Citations:

[1922] 1 AC 240

Cited by:

Applied – Commercial Banking Co of Sydney Ltd v Mann PC 1961
The respondent Mann practiced as a solicitor in partnership with Richardson. They kept a ‘trust account’ in the partnership name with the Australian and New Zealand Bank in Sydney (‘ANZ’). Under the partnership agreement, all assets belonged to . .
Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Company

Updated: 01 May 2022; Ref: scu.259436

Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd: 1985

An interlocutory injunction should be granted to restrain behaviour where the plaintiff had a realistic prospect of success, and overall justice required one to be ganted.

Citations:

[1985] 2 NZLR 129

Cited by:

Cited – Cussons (New Zealand) Pty Limited v Unilever Plc and others PC 20-Nov-1997
(New Zealand) The defendants appealed against an interlocutory injunction restraining them from use of a trade mark which was said to be infringing. The mark had not been used and was vulnerable to being removed, and Cussons applied for the removal . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Intellectual Property, Litigation Practice

Updated: 01 May 2022; Ref: scu.258725

Derco Industries Ltd v A R Grimwood Ltd, Insurance Corporation of British Columbia and PLC Construction Ltd: 1985

(British Columbia) Lambert J.A said about the without prejudice rule: ‘to the extent that there is a rule that prevents the production of documents that were prepared in the course of negotiations leading to a concluded settlement, it is my opinion that the rule does not extend to the prevention of the production of those documents at the instance of a litigant who was not a party to the settlement and whose claim for production comes under the rule in the Peruvian Guano case.’

Judges:

Lambert JA

Citations:

[1985] 2 WWR 137

Citing:

Applied – Schetky v Cochrane and the Union Funding Co 1918
(Court of Appeal in British Columbia) The court ordered oral discovery to be given to a defendant of negotiations between the plaintiff and another defendant in the action but held that on the trial there would be no higher right to use the . .

Cited by:

Cited – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Litigation Practice

Updated: 01 May 2022; Ref: scu.253698

Truth (NZ) Ltd v Holloway: PC 1960

The publication complained of related to the plaintiff Cabinet Minister (referred to in the article as Phil), in which it was stated that a man had seen one Judd, to whom an import licence had been issued, with the object of getting information from him about import procedure, and that Judd had told him to ‘see Phil and Phil would fix it’.
Held: The Board considered the potential effect of a newspaper repeating a defamatory of another. Lord Denning said: ‘if the words had not been repeated by the newspaper, the damage done by J would be as nothing compared to the damage done by this newspaper when it repeated it. It broadcast the statement to the people at large.’
Lord Denning quoted the judge’s direction ‘If you accept that those words were spoken by Judd, it is not a defence at all that a statement that might be defamatory is put forward by way of report only. It does not help the defendant that the way that it is put is that Judd said ‘See Phil and Phil would fix it’. The case is properly to be dealt with as if the defendant itself said ‘See Phil and Phil would fix it’ And said: ‘Their Lordships see nothing wrong in this direction. It is nothing more nor less than a statement of settled law put cogently to the jury.
Gatley opens his chapter on Republication and Repetition with the quotation
‘Every republication of a libel is a new libel, and each publisher is answerable for his act to the same extent as if the calumny originated with him….’. This case is a good instance of the justice of this rule. If Judd did use the words attributed to him it might be a slander by Judd on Mr Holloway in the way of his office as a Minister of the Crown. But if the words had not been repeated by the newspaper, the damage done by Judd would be nothing compared to the damage done by this newspaper when it repeated it. It broadcast the statement to the people at large.’

Judges:

Lord Denning

Citations:

[1960] 1 WLR 997

Cited by:

Cited – Roberts and Another v Gable and others CA 12-Jul-2007
The claimants appealed a finding of qualified privilege in their claim of defamation by the defendant author and magazine which was said to have accused them of theft and threats of violence against other members of the BNP.
Held: The appeal . .
Cited – Stern v Piper and Others CA 21-May-1996
The defendant newspaper said that allegations had been made against the plaintiff that he was not paying his debts. In their defence they pleaded justification and the fact that he was being sued for debt.
Held: A defamation was not to be . .
Lists of cited by and citing cases may be incomplete.

Defamation, Commonwealth

Updated: 01 May 2022; Ref: scu.254597

Regina v Pan: 29 Jun 2001

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

Judges:

Arbour J

Citations:

[2001] 2 SCR 344, 200 DLR (4th) 577, 155 CCC (3d) 97, 2001 SCC 42

Links:

Vcanlii

Cited by:

Cited – Pintori, Regina v CACD 13-Jul-2007
The defendant appealed his conviction for possession of class A drugs, saying that the drugs found had belonged to somebody who had stayed at his flat whilst he had been away. One of the jurors later told a police officer that she had known through . .
Cited – Seckerson and Times Newspapers Ltd v The United Kingdom ECHR 24-Jan-2012
The first applicant had been chairman of a jury and had expressed his concerns about their behaviour to the second applicant who published them. They were prosecuted under the 1981 Act. They had said that no details of the deliberations had been . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Practice

Updated: 01 May 2022; Ref: scu.254582

Denison Mines Limited v Ontario Hydro: 2002

(Ontario Court of Appeal) That court was asked whether it had jurisdiction to consider a ruling that the parties had agreed to exclude the court’s jurisdiction, after the court of first instance had ruled that there was such an agreement. The lower court had refused permission to appeal.
Held: Morden J said: ‘As I have said, the non-appealability of orders refusing leave is the general rule . . the courts have engrafted onto this general rule an exception which is applicable where the judge mistakenly declines jurisdiction. Hillmond referred to and quoted the following passage from the reasons of Cartwright J for the Supreme Court of Canada in Canadian Utilities Ltd v Deputy Minister of National Revenue:
‘It appears to me to have been consistently held in our courts and in the courts of England that where a statute grants a right of appeal conditionally upon leave to appeal being granted by a specified tribunal there is no appeal from the decision of that tribunal to refuse leave, provided that the tribunal has not mistakenly declined jurisdiction but has reached a decision on the merits of the application.
Denison relies upon this exception in the present case. It submits that Macdonald J erred in concluding that the arbitration agreement dealt with the appeals on questions of law (s.45(1) of the Arbitration Act 1991), that is, that the parties had ‘contracted out’ of a right of appeal and, accordingly, erred in declining jurisdiction.
I appreciate that in many cases the meaning of ‘jurisdiction’ can be fraught with difficulty. In the present case, however, I think that the principle stated by Cartwright J can be applied with some degree of confidence. He distinguished between declining jurisdiction and reaching a decision on the merits of the application. In the present case, the parties did not argue the merits of the application before Macdonald J. By agreement they argued whether or not Macdonald J had jurisdiction to grant leave to appeal. If she had decided that she had jurisdiction, they would have continued the hearing of the application on the merits. I think that the exception applies.’

Judges:

Morden J

Citations:

[2002] 56 O.R (3d) 181

Commonwealth, Arbitration

Updated: 01 May 2022; Ref: scu.251560

Allison v KPMG Peat Marwick: 2000

(New Zealand Court of Appeal) If one tortfeasor settles the victim’s claim by paying him a sum which fully satisfies his right to damages for loss and injury, the victim cannot then sue any concurrent tortfeasor for damages for the same loss and injury. Thomas J said: ‘Satisfaction discharges the loss. It is in the nature of an executed judgment in its effect. The loss no longer exists. There is nothing left for anyone to sue on; the injury or loss has been satisfied. As between the parties there is no problem. Where the co-defendants are concurrent tortfeasors, however, concurrently liable on a different cause of action, the satisfaction of one obligation cannot in itself discharge the other obligation. The concurrent tortfeasor will be released only if the satisfaction satisfies the injury or loss which flows from his or her separate cause of action. Its extinction is then independent of the agreement between the plaintiff and the defendant. Simply put, no injury or loss exists on which to sue.’

Judges:

Thomas J

Citations:

[2000] 1 NZLR 560

Cited by:

Cited – Heaton and Others v AXA Equity and Law Life Assurance Society plc and Another HL 25-Apr-2002
The claimant had settled one claim in full and final satisfaction against one party, but then sought further damages from the defendant, for issues related to a second but linked contract. The defendant claimed the benefit of the settlement.
Lists of cited by and citing cases may be incomplete.

Commonwealth, Litigation Practice, Damages

Updated: 01 May 2022; Ref: scu.251634

Commissioners of Taxation v English, Scottish and Australian Bank Limited: PC 2 Jan 1920

The Board considered what would amount to negligence in a bank.
Held: The test in Permewan was to be applied by ‘the standard to be derived from the ordinary practice of bankers, not individuals.’ A customer of the bank is a person who has a more permanent relationship with the bank, for instance, having an existing account with the bank. Habit or continued dealings will not make a party a customer unless there is an account in his name. Thus a person who had opened an account on the day before paying in a cheque was a customer of the bank within the meaning of s 88(1) of the 1909 Act: ‘The contrast is not between an habitue and a newcomer, but between a person for whom the bank performs a casual service, such as, for instance, cashing a cheque for a person introduced by one of their customers, and a person who has an account of his own at the bank.’
A negligence in collection is not a question of negligence in opening an account, though the circumstances connected with the opening of an account may shed light on the question whether there was negligence in collecting a cheque.

Judges:

Lord Dunedin

Citations:

[1920] AC 683

Statutes:

Bills of Exchange Act 1909 88(1)

Citing:

Approved – Commissioners of State Savings Bank v Permewan, Wright and Co 18-Dec-1914
(High Court of Australia) The court considered the nature of negligence in a banker: ‘the test of negligence is whether the transaction of paying in any given cheque [coupled with the circumstances antecedent and present] was so out of the ordinary . .

Cited by:

Cited – Architects of Wine Ltd v Barclays Bank Plc CA 20-Mar-2007
The bank appealed summary judgement against it for conversion of cheques. The cheques had been obtained by a fraud.
Held: The court considered the question of neglience under section 4: ‘The section 4 qualified duty does not require an . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Banking, Professional Negligence

Updated: 01 May 2022; Ref: scu.250550

Watkins v Olafson: 1989

(Supreme Court of Canada) The plaintiff sought damages for his injury. He was cared for by the state between the accident and the trial and so had no claim for the cost of care during that period. The Appeal Court (British Columbia) had held that in calculating the plaintiff’s pre-trial loss of income, allowance should be made for the plaintiff’s basic living expenses.
Held: Consistently with the reasoning in Andrews, this was wrong.
McLachlin J: ‘In calculating loss of future earning capacity in cases where an award for future care is made, a deduction is made from the award for lost earning capacity for living expenses to avoid duplication between the two heads of damage. The Court of Appeal in this case applied similar reasoning to the plaintiff’s pre-trial lost income. However, the basis for making a deduction on this account – duplication between two heads of damage – was lacking, there being no award for pre-trial cost of care. No case was cited to us in which a deduction for living expenses has been made from damages for pre-trial loss of earning capacity and I see no need to introduce such a practice.’

Judges:

McLachlin J

Citations:

[1989] 2 SCR 750

Citing:

Applied – Andrews v Grand and Toy Alberta Ltd 1978
(Supreme Court of Canada) The injured plaintiff sought damages for future loss of earnings and for the cost of future care.
Held: Dickson J said: ‘It is clear that a plaintiff cannot recover for the expense of providing for basic necessities . .

Cited by:

Cited – O’Brien and others v Independent Assessor HL 14-Mar-2007
The claimants had been wrongly imprisoned for a murder they did not commit. The assessor had deducted from their compensation a sum to represent the living costs they would have incurred if living freely. They also appealed differences from a . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Damages

Updated: 01 May 2022; Ref: scu.250034

J C Williamson Ltd v Lukey and Mulholland: 1931

(High Court of Australia) Dixon J said: ‘Specific performance is inapplicable when the continued supervision of the Court is necessary in order to ensure the fulfilment of the contract.’

Judges:

Dixon J

Citations:

(1931) 45 CLR 282

Links:

Austlii

Cited by:

Cited – Co-Operative Insurance Society Ltd v Argyll Stores HL 21-May-1997
The tenants of a unit on a large shopping centre found the business losing money, and closed it in contravention of a ‘keep open’ clause in the lease. They now appealed from a mandatory injunction requiring them to keep the store open.
Held: . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Commonwealth

Updated: 01 May 2022; Ref: scu.247891

Rice v Miller: 10 Sep 1993

(Family Court of Australia) Whilst there is a legislative presumption regarding equal shared parental responsibility between parents there is no presumption in favour of parents (jointly or severally) as regards the placement of children nor a presumption in favour of a parent as regards their relationship with a child (such as by spending time or communicating with them) and whether judiciable controversy arises between parents or as regards a parent and a non-parent.

Judges:

Ellis, Lindemayer, Bell JJ

Citations:

[1993] FamCA 87, (1993) FLC 92-415

Links:

Austlii

Citing:

Approved – Hodak v Newman and Hodak 1993
(Family Court of Australia) Lindenburgh J said: ‘I am of the opinion that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, . .

Cited by:

Cited – In Re G (A Minor) (Interim Care Order: Residential Assessment); G (Children), In Re (Residence: Same Sex Partner) HL 26-Jul-2006
The parties had been a lesbian couple each with children. Each now was in a new relationship. One registered the two daughters of the other at a school now local to her but without first consulting the birth mother, who then applied for residence . .
Cited – Re D (A Child) CA 26-Mar-2014
F appealed against the removal of his parental responsibility for his son. M and F were not married, but F had been named on the birth certificate. He had later been convicted of sexual assaults against two daughters of M by an earlier relationship. . .
Lists of cited by and citing cases may be incomplete.

Children, Commonwealth

Updated: 01 May 2022; Ref: scu.244488

Leeder v The Mayor, etc, of the Town of Ballarat East: 1908

(Supreme Court of Victoria in Australia) The court considered the requirement of giving notice within a certain period of time to the municipality as a precondition of a person recovering damages from the municipality as a result of the state of the highway. Notice had to be given within 21 days unless the plaintiff could ‘show some sufficient reason why the person injured or the owner of such property was unable to give such notice’.
Held: The court discussed what shade of meaning should be attached to the word ‘unable’. Cussen J focused more on the words ‘sufficient reason’ within the statutory provision, and said: ‘I think, for myself, that the emphatic words in the section are the words ‘show sufficient reason’.’

Judges:

Cussen J

Citations:

1908 VLR 214

Jurisdiction:

Australia

Cited by:

Cited – Secretary of State for the Home Department, Regina (on the Application of) v Asylum Support Adjudicator and others Admn 16-May-2006
The Asylum Support adjudicators had allowed appeals by the asylum failed seekers, and had awarded them support. The Secretary of State now appealed. The failed asylum seekers had been unable to leave the country and having been refused support were . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 01 May 2022; Ref: scu.244196

Regina v Commissioner of Patents, ex parte Martin: 1953

(Australia) The applicant sought registration of a patent. In his application, he accidentally described himself as the originator of the idea, whereas in fact he was the assignee.
Held: The court construed the provision of patent law: ‘The Commissioner may on the request in writing accopmanied by the prescribed fee correct any clerical error in the Registrar of Patents or in any proceedings under the Act ‘
Williams ACJ: ‘A clerical error, I would think, occurs if a person either of his own volition or under the instructions of another intends to write something and by inadvertence either omits to write it or writes something different.’
Fullagar J: ‘But the characteristic of a clerical error is not that it is in itself trivial or unimportant, but that it arises in the mechanical process of writing or transcribing. There is no evidence that a mistake so arose in the present case, and it is very difficult to see how it could so have arisen. The mistake, however innocently made, consists of a simple mis-statement of fact, and that is the whole of the matter.’

Judges:

Williams ACJ, Fullagar J

Citations:

(1953) 89 CLR 381

Citing:

Cited – Sharp’s Patent, re, ex parte Wordsworth CA 1840
The court considered what counted as a clerical error: ‘And in every case which has occurred, it has plainly been intended to do no more than to amend mere slips or clerical errors made by the parties, or the agents of the parties, who intending to . .

Cited by:

Cited – Wordingham v Royal Exchange Trust Co Ltd and Another ChD 6-May-1992
A testatrix revoked her earlier will and, by an oversight and contrary to the testatrix’s instructions, her solicitor had failed to repeat in her later will, provisions of the earlier will exercising a testamentary power of appointment. The clerical . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Intellectual Property

Updated: 01 May 2022; Ref: scu.242601

Scott and another v Regina, Barnes and others v Regina: PC 1989

(Jamaica) The defendants appealed the dismissal of their appeals against convictions for capital murder. In Scott, a special constable was shot with his own revolver in a bar, and subsequently died of his wounds. The only evidence identifying Scott and his co-accused, Walters, was contained in the deposition of a witness who had died before trial. In Barnes and others the deceased was shot after stopping his van and his money was stolen. Three defendants were charged with his murder. The only evidence identifying them was given by a witness, who gave evidence at the preliminary inquiry, but who was murdered before the trial. In each case, the evidence of the missing witness was read as his evidence.
Held: Lord Griffiths summarised the common law. He underlined the discretion of the judge to exclude such evidence, but pointed out: ‘ If the courts are too ready to exclude the deposition of a deceased witness it may well place the lives of witnesses at risk particularly in a case where only one witness has been courageous enough to give evidence against the accused or only one witness has had the opportunity to identify the accused’. A number of precautions could be taken: ‘no rules can usefully be laid down to control the detail to which a judge should descend in the individual case . . . This much however can be said that neither the inability to cross examine, nor the fact that the deposition contains the only evidence against the accused, nor the fact that identification evidence will of itself be sufficient to justify the exercise of the discretion.’

Judges:

Lord Griffiths

Citations:

(1989) 89 CAR 153

Cited by:

Cited – Regina v Davis (Iain); Regina v Ellis, Regina v Gregory, Regina v Simms, Regina v Martin CACD 19-May-2006
The several defendants complained at the use at their trials of evidence given anonymously. The perceived need for anonymity arose because, from intimidation, the witnesses would not be willing to give their evidence without it.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Practice

Updated: 01 May 2022; Ref: scu.242457

Kirschbaum v ‘Our Voices’ Publishing Co: 1971

(Ontario High Court) The court was asked whether discovery of letters written without prejudice should be permitted so that the parties might explore the question whether they contained admissions of fact which could be taken into account at the trial.
Held: They should. Contrary to popular belief the proposition that the shibboleth ‘without prejudice’ written on a letter protects it from subsequent use as an admission was not accurate: ‘[T]he question to be considered is, what was the view and intention of the party in making the admission; whether it was to concede a fact hypothetically, in order to effect a settlement, or to declare a fact really to exist.’

Judges:

Haines J

Citations:

[1971] 1 OR 737

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, Contract, Limitation

Updated: 01 May 2022; Ref: scu.243125

Frazer v Walker: PC 1967

A forged memorandum of mortgage granted by one of two joint proprietors was registered and subsequently enforced by the mortgagees on default by the mortgagor. A purchaser in good faith at auction whose title was thereafter registered was held entitled to found on his registered title in proceedings for possession against the other joint proprietor.
Held: The Board referred to the idea of the indefeasibility of title with registered land: ‘The expression, not used in the Act itself, is a convenient description of the immunity from attack by adverse claim to the land or interest in respect of which he is registered, which a registered proprietor enjoys. This conception is central in the system of registration. It does not involve that the registered proprietor is protected against any claim whatsoever; as will be seen later, there are provisions by which the entry on which he relies may be cancelled or corrected, or he may be exposed to claims in personam. These are matters not to be overlooked when a total description of his rights is required. But as registered proprietor, and while he remains such, no adverse claim (except as specifically admitted) may be brought against him.’

Judges:

Lord Wilberforce

Citations:

[1967] AC 569

Citing:

Cited – Breskvar v Wall 13-Dec-1971
(High Court of Australia) B, the registered proprietor of land, had obtained a loan of money from P. As security, he had given to P a signed memorandum of transfer and the certificate of title for the land. The memorandum of transfer was void under . .

Cited by:

Cited – Racoon Limited v Harris Turnbull, Executor of James Turnbull (Deceased) and others PC 22-May-1996
(British Virgin Islands) The land registrar had incorrectly registered land without mention of a lease of a right of way.
Held: ‘The philosophy underlying a system of registration of title is that it confers indefeasibility of title to the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Registered Land

Updated: 01 May 2022; Ref: scu.242119

Murdoch v British Israel World Federation: 1942

The court considered the nature of a deceased’s insanity so as to prevent his suicide operating as a novus actus interveniens: ‘The plaintiff, in my opinion has succeeded in proving that her husband was so insane at the time he committed suicide as to be criminally irresponsible for his act, and therefore it has been proved, in my opinion, in fact (i) that the defendant’s negligence was the direct cause of the injury; (ii) that the injury was the direct cause of the insanity; (iii) that the insanity was the direct cause of the death; and therefore that the wrongful act of the defendant caused the death of the deceased.’

Judges:

Ostler J

Citations:

[1942] NZR 600

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: 01 May 2022; Ref: scu.240044

Myerson v Smith’s Weekly: 1923

(New South Wales) The court considered the distinction between fact and comment. Ferguson J said: ‘To say that a man’s conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his conduct was dishonourable is a statement of fact coupled with a comment. ‘

Judges:

Ferguson J

Citations:

(1923) 24 SR (NSW) 20

Cited by:

Cited – Lowe v Associated Newspapers Ltd QBD 28-Feb-2006
The defendant sought to defend the claim for defamation by claiming fair comment. The claimant said that the relevant facts were not known to the defendant at the time of the publication.
Held: To claim facts in aid of a defence of fair . .
Cited – Tse Wai Chun Paul v Albert Cheng 13-Nov-2000
(Court of Final Appeal of Hong Kong) For the purposes of the defence to defamation of fair comment: ‘The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or . .
Criticised – Spiller and Another v Joseph and Others SC 1-Dec-2010
The defendants had published remarks on its website about the reliability of the claimant. When sued in defamation, they pleaded fair comment, but that was rejected by the Court of Appeal.
Held: The defendants’ appeal succeeded, and the fair . .
Cited – Cook v Telegraph Media Group Ltd QBD 29-Mar-2011
The claimant, an MP, complained in defamation of the defendant’s description of his rejected expenses claim regarding an assistant’s charitable donation. The paper pleaded a Reynolds defence. The claimant said that when published the defendant knew . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Defamation

Updated: 01 May 2022; Ref: scu.240310

In re Wellington Publishing Company Ltd: 1973

(New Zealand) The company a target of a takeover raised money (including by raising a loan on security of the company’s assets). Those were then used to declare lawful dividends which were then declared to the takeover shareholder.
Held: The arrangement did not to infringe Section 62 Companies Act 1955. The giving of lawful dividends was just an incident of the company activities as the raising of lawful loans and the repayment of lawful debts.

Citations:

[1973] 1 NZLR 133

Cited by:

Cited – Anglo Petroleum Ltd v TFB (Mortgages) Ltd ChD 24-Feb-2006
The company sought to say that loans of 15 million pounds were void under s151 of the 1985 Act. It was said that the loans infringed the provisions of s151 being unlawful financial assistance.
Held: The loans were valid: ‘if it is lawful for a . .
Lists of cited by and citing cases may be incomplete.

Company, Commonwealth

Updated: 01 May 2022; Ref: scu.238729

Stannard v Issa: PC 1987

(Jamaica) The landowners proposed to erect six blocks providing some 40 dwellings, and sought variation of a restrictive covenant to allow this. The provsion as to the variation of restrictive covenants was whether there were: ‘practical benefits sufficient in nature or extent to justify the continued existence of (the restriction)’. The area was a ‘peaceful seaside enclave of a family nature’. The judge had dismissed the application to modify the covenants, but this was reversed by the Court of Appeal, on the grounds that the judge should have taken into account the potentially damaging developments which could have been carried out without breaching the covenants.
Held: The Court of Appeal’s approach was criticised: ‘Given any set of restrictions it is not usually difficult to conjure up colourful or hypothetical examples of things which could be done within the framework of the covenants as they stand and which, if done, would substantially repair or defeat the purpose for which the covenants were imposed, but that is not an exercise which the court is enjoined by the section to undertake. What the court exercising this jurisdiction is enjoined to do is to consider and evaluate the practical benefits served by the restrictions. The purpose of these restrictions is obvious on their face. It was to preserve the privacy of each purchaser’s plot and the quality of the totality of the sub-divisions by restricting housing density, by regulating commercial activity and providing a lower cost limit intended to ensure good quality development. Whether or not the covenants as drawn are sufficiently specific to achieve all these purposes in the face of a really determined attack by somebody intent on disturbing the peace of the neighbourhood is really immaterial. The undisputed evidence was that in fact all those plots which had been built on had in fact been developed by the erection of single storey private dwellings. It was the trial judge’s opinion, after a view, that the land formed a peaceful seaside enclave of a family nature. That was the actuality and, with respect to them, the majority of the Court of Appeal, in positing the nightmare of a complex of medical centres or six-storey castles covering the entirety of the sub-divided lots, were ignoring altogether the practical effects of the restrictions and engaging in unnecessary flights of imagination in order to test whether the original intention of the restrictions was capable of achievements in all circumstances. In doing so they were, in their Lordships judgment, asking themselves the wrong question. The question is not ‘what was the original intention of the restriction and is it still being achieved?’ but ‘does the restriction achieve some practical benefit, and if so, is it a benefit of sufficient weight to justify the continuance of the restrictions without modification?’

Citations:

[1987] AC 175

Jurisdiction:

England and Wales

Cited by:

Cited – Shephard and others v Turner and Another CA 23-Jan-2006
The appellants challenged the removal of a restrictive covenant on a neighbour’s house restricting further building on the land to allow further house in the garden. It was in a small close of houses all erected, and the covenant imposed, in 1952. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Land

Updated: 01 May 2022; Ref: scu.238674

Wright v Wright: 1948

The civil standard of proof is flexible and the court may properly require a higher degree of probability which is appropriate to what is at stake. ‘… the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue.’

Judges:

Dixon J

Citations:

(1948) 77 CLR 191

Cited by:

Cited – Khera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Evidence

Updated: 01 May 2022; Ref: scu.237707

CREEDNZ Inc v The Governor General: 1981

(New Zealand) The court looked at those considerations which a decision maker can choose for himself whether or not to take them into account. Cooke J said: ‘what has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the Court holds a decision invalid on the ground now invoked. It is not enough that the consideration is one that may properly be taken into consideration, nor even that it is one which many people, including the Court itself, would have taken into account if they had to make the decision.’ though ‘there will be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them by the Ministers . . would not be in accordance with the intention of the Act.’

Judges:

Cooke J

Citations:

[1981] 1 NZLR 172

Cited by:

Approved – In Re Findlay, in re Hogben HL 1985
A public authority, and the Prison Service in particular, is free, within the limits of rationality, to decide on any policy as to how to exercise its discretions; it is entitled to change its policy from time to time for the future, and a person . .
Cited – Lambeth London Borough Council v Ireneschild CA 16-Mar-2007
The tenant held a secure tenancy of a first floor flat of the Council. She was severely disabled and argued that the danger of injury meant that she should be allowed to occupy the empty ground floor flat. She complained at the way the authority had . .
Cited – Hurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
Cited – Cala Homes (South) Ltd v Secretary of State for Communities and Local Government and Another Admn 7-Feb-2011
The claimant sought judicial review of a statement and letter by the respondent making a material consideration for planning authorities the intended revocation by the Respondent of Regional Spatial Strategies. The effect would be to allow the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Administrative

Updated: 01 May 2022; Ref: scu.238393

The Republic of Argentina v Mellino: 1987

(Supreme Court of Canada) A principle underlying extradition proceedings is: ‘Our courts must assume that [the defendant] will be given a fair trial in the foreign country. Matters of due process generally are to be left for the courts to determine at the trial there as they would be if he were to be tried here. Attempts to pre-empt decisions on such matters, whether arising through delay or otherwise, would directly conflict with the principles of comity on which extradition is based.’

Judges:

Lamer J

Citations:

[1987] 1 SCR 536

Cited by:

Cited – Noel Heath and Glenroy Matthew v The Government of the United States of America PC 28-Nov-2005
PC (St. Christopher and Nevis) The defendants resisted extradition to the US to face charges relating to importating of unlawful drugs.
Held: There was nothing in the arguments proposed to support an . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Extradition

Updated: 01 May 2022; Ref: scu.237283

University of Wollongong v Merwally: 22 Nov 1984

(High Court of Australia) Deane J said: ‘A parliament may legislate that, for the purposes of the law which it controls, past facts or past laws are to be deemed and treated as having been different to what they were. It cannot however objectively expunge the past or alter the facts of history.’

Judges:

Deane J

Citations:

(1984) 158 CLR 447

Links:

Austlii

Cited by:

Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Cited – Hazell v Hammersmith and Fulham London Borough Council HL 1991
Swap deals outwith Council powers
The authority entered into interest rate swap deals to protect itself against adverse money market movements. They began to lose substantial amounts when interest rates rose, and the district auditor sought a declaration that the contracts were . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 01 May 2022; Ref: scu.236524

Boucher v The Queen: 1954

(Supreme Court of Canada) The prosecutor in a criminal case has a duty to act impartially with no notion of winning or losing.
Randall J said: ‘It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented; it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.’

Judges:

Randall J

Citations:

(1954) 110 CCC 263, (1954) 110 Can CC 263

Cited by:

Approved – Randall v The Queen PC 16-Apr-2002
(Cayman Islands) The defendant complained that the conduct of prosecuting counsel at his trial had been such as to undermine the fairness of his trial. Counsel had repeatedly and disparagingly interrupted cross-examinations, and the summing up.
Cited – Nunn v Suffolk Constabulary and Another Admn 4-May-2012
The claimant had been convicted of murder and his appeal had failed. He now sought disclosure of the forensic material held by the police to his own legal team.
Held: Permission to apply for review was granted, but the claim failed. ‘It is . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Practice

Updated: 01 May 2022; Ref: scu.236730

Carborundum Abrasives Ltd v Bank of New Zealand (No 2): 1992

(New Zealand High Court) The court considered the position of company directors in litigation by their companies: ‘The directors of a company may frequently be in a position different from other non-parties with a direct financial interest in promoting or defending proceedings. Even where a company is in receivership, directors may have a duty to prosecute or defend a claim through the company in the interests of creditors other than the creditor that had appointed the receiver, or in the interests of the shareholders.’

Judges:

Tompkins J

Citations:

[1992] 3 NZLR 757

Cited by:

Cited – BE Studios Ltd v Smith and Williamson Ltd ChD 2-Dec-2005
The claimant company had failed in its action. The court was asked to make a costs order personally against the principal director of the claimant who had controlled the litigation and funded it. He responded that no impropriety had been shown on . .
Cited – Media Cat Ltd v Adams and Others PCC 18-Apr-2011
The claimants had begun copyright infringement cases. Having been refused a request to be allowed to withdraw the cases as an abuse, their solicitors now faced an application for a wasted costs order.
Held: The court only has jurisdiction to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Costs

Updated: 01 May 2022; Ref: scu.237245

Sifton v Sifton: PC 1938

(Canada) The court considered the validity of a gift in a will challenged for uncertainty, in this case a condition as to residency within a country.
Held: Lord Romer said that the meaning of such words as reside or residence, ‘obviously depends upon the context in which the words are used’ and ‘Where it is doubtful whether a condition be precedent or subsequent the Court prima facie treats it as being subsequent. For there is a presumption in favour of early vesting.’

Judges:

Lord Romer

Citations:

[1938] AC 656, [1939] 1 All ER 109

Citing:

Cited – Clavering v Ellison 1859
Any provision determining or divesting an estate held on trust ‘must be such that the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine’ . .
Lists of cited by and citing cases may be incomplete.

Trusts, Commonwealth

Updated: 30 April 2022; Ref: scu.231641

Morris Manning and the Church of Scientology of Toronto v S Casey Hill and The Attorney General for Ontario and others: 20 Jul 1995

(Supreme Court of Canada) The publication of defamatory statements ‘constitutes an invasion of the individual’s personal privacy and is an affront to that person’s dignity’.

Judges:

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

Citations:

1995 CanLII 59 (S.C.C.)

Links:

Canlii

Jurisdiction:

Canada

Cited by:

Cited – Panday v Gordon PC 5-Oct-2005
(Trinidad and Tobago) A senior politician had accused an opponent of pseudo-racism. The defendant asserted that he had a defence under the constitution, allowing freedom of political speech.
Held: The appeal failed. The statements were . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 30 April 2022; Ref: scu.230975

Patrick v Beverley Gardens Development Company Ltd: PC 1979

A resident magistrate (whose summary order for possession of land, made on proceedings commenced by an information, lay at the foundation of arguments about estoppel) had no jurisdiction to decide a question of title to land.

Citations:

[1979] AC 547

Cited by:

Distinguished – Vehicles and Supplies Ltd and others v Financial Institutions Services Ltd PC 28-Jun-2005
(Jamaica) Parties had entered into a joint venture, before one fell into severe financial difficulties. A scheme of arrangement was proposed in which plots which were part of the development would be apportioned, but steps were not taken to complete . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 30 April 2022; Ref: scu.228422

Wyong Shire Council v Shirt: 1 May 1980

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

Judges:

Stephen, Mason, Murphy, Aickin and Wilson JJ

Links:

Austlii

Cited by:

See Also – 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: 30 April 2022; Ref: scu.226754

Capita Financial Group Ltd v Rothwells Ltd: 20 Apr 1989

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

Judges:

Rogers CJ

Citations:

(1989) 15 ACLR 348

Links:

NSW

Cited by:

Cited – Enron Metals and Commodity Ltd (in Administration) v HIH Casualty and General Insurance Limited ChD 10-Mar-2005
The claimant company sought leave whilst in administration to bring arbitration proceedings against the defendant insurers.
Held: In exercising the discretion given by the section, the court had only to decide whether the claim was so bad that . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice, Commonwealth

Updated: 30 April 2022; Ref: scu.225880

Van Camp Chocolates Ltd v Aulesbrooks Ltd: 1984

(New Zealand Court of Appeal) The plaintiffs sued for interference with their business by unlawful means, namely breach of confidence. A preliminary point of law was argued as to the nature of the intent to injure the plaintiffs necessary to establish the tort. The court said this: ‘In principle, as we see it, an attempt to harm a plaintiff’s economic interests should not transmute the defendant’s conduct into a tort actionable by the plaintiff unless that intent is a cause of his conduct. If the defendant would have used the unlawful means in question without that intent, and if that intent would not have led him to act as he did, the mere existence of the purely collateral and extraneous malicious motive should not make all the difference. The essence of the tort is deliberate interference with the plaintiff’s interests by unlawful means. If the reasons which actuate the defendant to use unlawful means are wholly independent of a wish to interfere with the plaintiff’s business, such interference being no more than an incidental consequence foreseen by and gratifying to the defendant, we think that to impose liability would be to stretch the tort too far’

Citations:

[1984] 1 NZLR 354

Cited by:

Approved – Barretts and Baird (Wholesale) Ltd v Institution of Professional Civil Servants (IPCS) 1986
A strike by civil servants in the Ministry of Agriculture in support of a pay claim was not intended to cause damage to an abattoir which was unable to obtain the certificates necessary for exporting meat and claiming subsidies. The damage to the . .
Cited – Douglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Torts – Other

Updated: 30 April 2022; Ref: scu.225469

Baker v The Queen: PC 1975

The Court of Appeal for Jamaica was not bound by a proposition of law contained in a previous decision of the Board which the Board had assumed without argument to be correct for the purpose of disposing of that case.

Citations:

[1975] AC 774

Cited by:

Cited – Scrivens v Ethical Standards Officer Admn 11-Apr-2005
The councillor appealed an adjudication that he had failed adequately to declare an interest at a meeting of the council. The officer thought the duty to withdraw was entirely objective, the applicant that it was a matter for his honest judgment. At . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 30 April 2022; Ref: scu.224098

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 the grant of such rights as are absolutely necessary to the enjoyment of the subject matter of the conveyance or demise, or of such rights as are reasonably necessary for the use and enjoyment, in the way contemplated by the parties in the conveyance or demise, of the subject matter of the conveyance or demise.’

Judges:

Powell J

Citations:

(1985) 6 NSWLR 424

Cited by:

Appeal from – Auerbach v Beck 1986
(New South Wales Court of Appeal) Affirmed . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Land

Updated: 30 April 2022; Ref: scu.223976

Thomas A Edison Ltd v Bock: 1912

(High Court of Australia) ‘There is a primary precept governing the administration of justice, that no man is to be condemned unheard; and therefore, as a general rule, no order should be made to the prejudice of a party unless he has the opportunity of being heard on defence.’

Citations:

(1912) 15 CLR 679

Cited by:

Cited – Moat Housing Group-South Ltd v Harris and Another CA 16-Mar-2005
The defendant family was served without notice with an anti-social behaviour order ordering them to leave their home immediately, and making other very substantial restrictions. The evidence in large part related to other people entirely.
Lists of cited by and citing cases may be incomplete.

Commonwealth, Equity

Updated: 30 April 2022; Ref: scu.223662

Abdulla v Shah: PC 1959

(From Court of Appeal for Eastern Africa) An Act provided that a contract of sale did not create any interest, but the seller was bound to take as much care of the property as an owner of ordinary prudence would take. This standard was the same as that of a trustee under the Indian Trusts Act 1882, which in turn was substantially that of a trustee under English law.
Held: A vendor of rent-restricted property which had become vacant between the dates of the contract and of completion was under a duty to consult the purchaser before reletting (at controlled rents) prior to completion of the contract The vendors had no right without consultation with the purchasers to diminish the value of the property as it was after the surrender by reletting.

Judges:

Lord Somervell of Harrow

Citations:

[1959] AC 124

Cited by:

Cited – Englewood Properties Limited v Patel and Another ChD 16-Feb-2005
The claimant was a property developer, which sought to sell a row of shops at auction. One lot was a Woolworths store, where the company owned both freehold and leasehold interests, with Woolworths occupying an underlease, which the claimant had . .
Lists of cited by and citing cases may be incomplete.

Contract, Land, Commonwealth

Updated: 30 April 2022; Ref: scu.223748

British Columbia (Minister of Forests) v Okanagan Indian Band: 2003

(Supreme Court of Canada) A challenge was to be made by Indian Bands to a prohibition on logging on their lands without prior authorisation. They asserted aboriginal title to the land in question and complained of a breach of their constitutionally protected aboriginal rights. They sought a protective costs order.
Held: ‘The jurisdiction to order costs of a proceeding is a venerable one. The English common law courts did not have inherent jurisdiction over costs, but beginning in the late 13th century they were given the power by statute to order costs in favour of a successful party. Courts of equity had an entirely discretionary jurisdiction to order costs according to the dictates of conscience.’ The court set down four principles: (i) The party seeking the order must be impecunious to the extent that without such an order that party would have been deprived of the opportunity to proceed with the case; (ii) The claimant must establish a prima facie case of sufficient merit to warrant its pursuit; (iii) Public law cases, as a class, were different from ordinary civil disputes, and the case must fall into a sub-category where the special circumstances that justified an award of interim costs were related to the public importance of the questions at issue in the case; and (iv) It was for the judge at first instance to determine whether a particular case, which might be classified as special by its very nature as a public interest case, was special enough to rise to the level where the unusual measure of ordering costs would be appropriate..

Judges:

LeBel J

Citations:

(2003) 114 CCR 2d 108

Cited by:

Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Cited – Goodson v HM Coroner for Bedfordshire and Luton and Another (No 2) CA 12-Oct-2005
The applicant intended to appeal refusal of her challenge to the verdict of the coroner. For the first time at appeal she sought a protective costs order.
Held: The Corner House case established that a request for a protective costs order . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Costs

Updated: 30 April 2022; Ref: scu.223254

New Zealand Maori Council v Attorney-General of New Zealand: PC 1994

The board declined to make an order for costs against the unsuccessful appellants where they were not pursuing the proceedings out of any motive of private gain, but ‘in the interests of taonga which is an important part of the heritage of New Zealand’, and the judgments in the Court of Appeal had left an undesirable lack of clarity in an important area of the law which it was important for the Privy Council to examine.

Judges:

Lord Lloyd of Berwick

Citations:

[1994] 1 AC 466

Cited by:

Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Lists of cited by and citing cases may be incomplete.

Costs, Commonwealth

Updated: 30 April 2022; Ref: scu.223261

Condon v Commissioner of Taxation: 2000

(Federal Court of Australia) The idea of ‘disclosure’ of something to a person who already knew or was deemed to know was conceptually impossible.

Citations:

[2000] FCA 1291

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: 30 April 2022; Ref: scu.223213

Hourigan v Trustees Executors and Agency Co Ltd: 1934

(Australia) The defence of laches may be raised in answer to a claim by a beneficiary of an express trust where there had been acquiescence or ‘gross laches’.

Citations:

(1934) 51 CLR 619

Cited by:

Cited – Patel and others v Shah and others CA 15-Feb-2005
The parties entered into a commercial agreement for the sale and purchase of properties.
Held: The claimants had failed to meet their part of the bargain, and had failed to make mortgage payments, leaving the defendants to do so. The . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Trusts

Updated: 30 April 2022; Ref: scu.223439

Mohammadally v The State: 2000

(Supreme Court of Mauritius) The appellant had dispensed with the services of her counsel four days before the date of trial and had not taken steps to engage another. The trial judge refused to grant her a postponement, on the ground that she could readily have made efforts to obtain another counsel in the time. She was convicted of a drugs charge and her appeal against conviction was dismissed.
Held: Since she could easily have engaged another counsel in the time and had made no attempt to do so, she had not been denied access to legal advice and there was no breach of section 10 of the Constitution.

Citations:

(2000 SCJ No 289)

Citing:

Applied – Gooranah v The Queen 1968
(Supreme Court of Mauritius) The appellant had appeared three times before the court before the date of trial. On the morning of trial he produced a letter from a member of the Bar stating that he had just been instructed for the defence, but as he . .

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 . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Practice, Constitutional

Updated: 30 April 2022; Ref: scu.223460

Oshlack v Richmond River Council: 1998

(High Court of Australia) The appellant had been concerned about the habitat of the endangered Koala, and complained about the absence of any fauna impact statement before a planning consent to development was granted. The judge at first instance had considered that there were ‘sufficient special circumstances to justify a departure from the ordinary rule as to costs’. These were to be found in the following considerations: (i) The appellant had nothing to gain from the litigation ‘other than the worthy motive of seeking to uphold environmental law and the preservation of endangered fauna’; (ii) A significant number of members of the public shared the appellant’s stance, so that in that sense there was a public interest in the outcome of the litigation; (iii) The challenge had raised and resolved significant issues as to the interpretation and future administration of statutory provisions relating to the protection of endangered fauna and the present and future administration of the development consent in question, which had implications for the council, the developer and the public.’
Held: The judgment at first instance was restored.

Citations:

[1998] HCA 11

Cited by:

Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Costs

Updated: 30 April 2022; Ref: scu.223264

Minister for Aboriginal Affairs and another v Peko-Wallsend Limited and others: 1986

(High Court of Australia) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision. If the discretion at issue is unconfined by the terms of the statute, the court will not find the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act. ‘Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law.’ Mason J: ‘It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.’ Brennan J: ‘A decision-maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within his knowledge relating to the matter. The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered.’

Judges:

Gibbs C.J, Mason, Brennan, Deane and Dawson JJ

Citations:

(1986) 162 CLR 24

Links:

Austlii

Cited by:

Cited – National Association of Health Stores and Another, Regina (on the Application of) v Department of Health CA 22-Feb-2005
Applications were made to strike down regulations governing the use of the herbal product kava-kava.
Held: The omission of any transtitional provisions had not affected anyone. Nor was the failure to consult as to the possibility of dealing . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Administrative

Updated: 30 April 2022; Ref: scu.222915

Syndicat Northcrest v Amselem: 30 Jun 2004

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

Judges:

McLachlin CJ and Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish JJ

Citations:

(2004) 241 DLR (4th) 1, [2004] 2 SCR 551

Links:

Canlii

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Secretary of State for Education and Employment and others ex parte Williamson and others HL 24-Feb-2005
The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
Cited – Shergill and Others v Khaira and Others SC 11-Jun-2014
The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Human Rights, Constitutional

Updated: 30 April 2022; Ref: scu.223021

Kariapper v Wijesinha: PC 1967

The legislation at issue imposed ‘civil disabilities’ on Members of Parliament against whom allegations of bribery had been sustained, including the loss of their seats in Parliament. The question arose whether they had been punished.
Held: Sir Douglas Menzies contrasted discuplinary and criminal proceedings. In the former category no offence was specified and no declaration of guilt made. ‘Speaking generally, however, their Lordships would observe that it is not readily to be assumed that disciplinary action, however much it may hurt the individual concerned, is personal and retributive rather than corporate and self-respecting.’
The words ‘amend or repeal’ do not cover or allow an alteration of a law by implication.

Citations:

[1968] AC 717, [1967] 3 All ER 485

Cited by:

Cited – Independent Jamaica Council for Human Rights (1998) Ltd and others v Marshall-Burnett and Another PC 3-Feb-2005
(Jamaica) A bill was presented to the Jamaican parliament to transfer the appellate jurisdiction from the Board of the Privy Council to the Caribbean Court of Justice.
Held: Whilst there was a duty to recognise and respect alternate courts, . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Commonwealth

Updated: 30 April 2022; Ref: scu.222759

Regina v Jameson: 1896

As to possessions after acquired by occupancy, settlers from the parent country take their law with them into such possessions so far as they may reasonably be applied.

Judges:

Lord Russell of Killowen CJ

Citations:

[1896] 2 QB 425

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

Updated: 30 April 2022; Ref: scu.222842

Laferriere v Lawson: 1991

(Supreme Court of Canada) A doctor negligently failed in 1971 to tell a patient that a biopsy had revealed a lump in her breast to be cancerous. She first learned of the cancer in 1975, when the cancer had spread to other parts of the body and she died in 1978 at the age of 56. The judge found that earlier treatment would have increased the chances of a favourable outcome but was not satisfied on a balance of probability that it would have prolonged her life. Gonthier J said that although the progress of the cancer was not fully understood, the outcome was determined. It was either something capable of successful treatment or it was not: ‘Even though our understanding of medical matters is often limited, I am not prepared to conclude that particular medical conditions should be treated for purposes of causation as the equivalent of diffuse elements of pure chance, analogous to the non-specific factors of fate or fortune which influence the outcome of a lottery.’

Citations:

(1991) 78 DLR (4th) 609

Cited by:

Cited – Gregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Professional Negligence, Damages

Updated: 30 April 2022; Ref: scu.222471

Stevens v Head: 18 Mar 1993

(High Court of Australia) The court considered a claim for damages arising out of a motor accident in New South Wales, where the claim had been brought in the courts of Queensland. The questions arose as to whether or not a provision in the Motor Accidents Act 1988 of New South Wales which limited the amount of damages which could be recovered in respect of non-economic loss was a substantive rule to be applied as part of the lex causae.
Held: In relation to questions of the quantification of damage, anything beyond the ascertainment of the heads of liability is a procedural question, and thus referring to a New South Wales statute: ‘section 79 is plainly a provision which affects the measure of damages but does not touch the heads of liability in respect of which damages might be awarded. It is simply a law relating to the quantification of damages and that, as we have seen, is a matter governed solely by the lex fori.’
Mason CJ: ‘The law relating to damages is partly procedural and partly substantive. According to the traditional application of the substance-procedure distinction, the question whether legislative provisions dealing with awards of damages are substantive or procedural has been approached by asking whether the provisions affect the character of the wrong actionable or go only to the measure of compensation. This approach is consistent with the equation traditionally drawn between matters of procedure and matters relating to remedies.’

Judges:

Mason CJ, Brennan, Deane, Dawson, Toohey, Gudron, McHugh JJ

Citations:

[1993] HCA 19, (1993) 112 ALR 7, [1993] Aust Torts Reports 81-203, (1993) 17 MVR 1, (1993) 67 ALJR 343, [1993] 176 CLR 433

Links:

Austlii

Citing:

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

Cited by:

Approved – Roerig v Valiant Trawlers Ltd CA 28-Jan-2002
The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
Cited – Harding v Wealands CA 17-Dec-2004
The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
Held: The general rule in section 11 was not to . .
Cited – Harding v Wealands HL 5-Jul-2006
Claim in UK for Accident in Australia
The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
Held: . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Jurisdiction

Updated: 30 April 2022; Ref: scu.222524

Jones v De Marchant: 1916

A husband wrongfully used 18 beaver skins belonging to his wife together with four skins of his own, to have a fur coat made up which he then gave to his mistress. The wife was held entitled to recover the coat. The mistress knew nothing of the true ownership of the skins, but her innocence was held to be immaterial. She was a gratuitous donee and could stand in no better position than the husband. The coat was a new asset manufactured from the skins and not merely the product of intermingling them. The problem could not be solved by a sale of the coat in order to reduce the disputed property to a divisible fund, since (as we shall see) the realisation of an asset does not affect its ownership. It would hardly have been appropriate to require the two ladies to share the coat between them. Accordingly it was an all or nothing case in which the ownership of the coat must be assigned to one or other of the parties. The determinative factor was that the mixing was the act of the wrongdoer through whom the mistress acquired the coat otherwise than for value.

Citations:

(1916) 28 DLR 561

Cited by:

Cited – Foskett v McKeown and Others HL 18-May-2000
A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, . .
Lists of cited by and citing cases may be incomplete.

Equity, Commonwealth

Updated: 30 April 2022; Ref: scu.220694

Minister for Immigration and Multicultural Affairs v Ibrahim: 1 Oct 2000

(High Court of Australia) The court recognised a right in sovereign states to give refuge to aliens fleeing from foreign persecution and to refuse to surrender such persons to the authorities of their home states: ‘there have been attempts which it is unnecessary to recount here to broaden the scope of the Convention itself by a Draft United Nations Convention on Territorial Asylum but these collapsed more than twenty years ago.’

Judges:

Gummow J

Citations:

(2000) 204 CLR 1, [2000] HCA 55

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, Human Rights, Immigration

Updated: 30 April 2022; Ref: scu.220672

Westfield Holdings Ltd v Australian Capital Television: 1992

The court concluded, after looking at whether there had been a clog on the equity of redemption in an arm’s length commercial mortgage transaction where a mortgagee had obtained the right to purchase the whole of the mortgaged property, that: ‘There does not appear to be any commercial reason why, in 1992, the court should invalidate any transaction merely because a mortgagee obtains a collateral advantage or seeks to purchase a mortgage property. Quite obviously, equity must intervene if there is unconscionable conduct. Again equity must intervene in a classic case where it can see that a necessitous borrower it not, truly speaking, a free borrower.
In my view, in 1992, the rule [concerning clogs on the equity of redemption] only applies where the mortgagee obtains a collateral advantage which in all the circumstances is either unfair or unconscionable. It may be that the court presumes from the mere fact of a collateral advantage that the transaction is unconscionable unless there is evidence to the contrary, but the principle does not extend to invalidate automatically cases in which the mortgagee has obtained the right to purchase the whole or part of the mortgaged property in certain circumstances or has obtained a collateral advantage where the circumstances show that there has been no unfairness or unconscionable conduct.’

Judges:

Young J

Citations:

(1992) 32 NSWLR 194, 5 BPR 11,615

Jurisdiction:

Australia

Commonwealth, Banking, Equity

Updated: 30 April 2022; Ref: scu.219909

Regina v Blight: 1903

(New Zealand) The Criminal Code in force at the time, reflecting the English, included an offence of sexual intercourse with a girl under 16, to which a one month time limit applied, and also an offence of indecent assault to which no time limit applied but to which, in the case of a young victim, consent was not a defence. After the time limit expired, the defendant was prosecuted for indecent assault, he having had sexual intercourse with a girl under 16.
Held: (Majority) This was impermissible: ‘In the present case it is clear that everything done by the accused was an offence under section 196 [unlawful sexual intercourse] and nothing more. I think, therefore, the prosecution was instituted out of time. If the above construction be not adopted the result is that no effect could be given to section 196, and that section would be practically expunged from the Act, and the protection given by the time limit would be quite illusory.’

Judges:

Williams J

Citations:

(1903) 22 NZLR 837

Citing:

Approved – Regina v Cotton 1896
The Act provided that on a trial for rape the jury, if not satisfied that the defendant was guilty of rape but satisfied that he was guilty of having intercourse with a girl aged between 13 and 16, contrary to section 5(1) of the Act, might convict . .

Cited by:

Not Followed – Regina v Saraswati 1989
(Criminal Court of Appeal – New South Wales) The defendant appealed convictions on counts of indecency with a child, the only evidence relied on, in relation to some counts, being evidence of full sexual intercourse. Statutory time limits precluded . .
Cited – Regina v J HL 14-Oct-2004
The defendant was to have been accused of having unlawful sexual intercourse with a girl under 16. Proceedings could not be brought, because the allegation was more than a year old, and he was instead accused of indecent assault, but on the same . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Crime

Updated: 30 April 2022; Ref: scu.216523

Gilchrist Watt and Sanderson Pty Ltd v York Products Pty Ltd: PC 1970

(New South Wales – Australia) The defendants were stevedores who had lost two cases of clocks that they had received as sub-bailees of the shipowners, who in turn owed a duty to deliver them to the plaintiffs under the bills of lading.
Held: The defendants were liable. They: ‘took upon themselves an obligation to the plaintiffs to exercise due care for the safety of the goods, although there was no contractual relation or attornment between the defendants and the plaintiffs.’ A sub-bailee had only voluntarily taken into his possession the goods of another if he has sufficient notice that a person other than the bailee is interested in the goods so that it can properly be said that in addition to his duties to the bailee he has, by taking the goods into his custody, assumed towards that other person the responsibility for the goods which is characteristic of a bailee.

Judges:

Lord Pearson

Citations:

[1970] 1 WLR 1262

Citing:

Approved – Morris v C W Martin and Sons Ltd CA 1965
The plaintiff took her mink stole to the defendants for cleaning. An employee received and stole the fur. The judge had held that the defendants were not liable because the theft was not committed in the course of employment.
Held: The . .

Cited by:

Cited – Lister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
Cited – Yearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
Lists of cited by and citing cases may be incomplete.

Agency, Commonwealth

Updated: 30 April 2022; Ref: scu.214712

Attorney General v Antigua Times Ltd: PC 1975

The Board should not seek to determine questions not directly raised in the appeal before it.

Citations:

[1975] 3 All ER 81, [1975] 3 WLR 232

Cited by:

Cited – Hinds and other v The Queen; Director of Public Prosecutions v Jackson, attorney General of Jamaica (Intervenor) PC 1-Dec-1975
The Gun Court Act 1974 of Jamaica established special courts at different levels to deal with varieties of crimes involving guns. There was provision for hearings to be held in camera. Certain offences carried mandatory life sentences reviewable . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 30 April 2022; Ref: scu.211406

Attorney General for Ontario v Attorney General for Canada: PC 1924

A provincial legislature was said to have exceeded its powers and contravened the British North America Act.
Held: Any provision made by the constitution as to the security of status and tenure of the judiciary applies to all individual judges later appointed in exercise of an analagous jurisdiction, whatever name is actually given to the court in which they sit.

Citations:

[1925] AC 750, 94 LJPC 132, (1924) 4 DLR 520

Cited by:

Cited – Hinds and other v The Queen; Director of Public Prosecutions v Jackson, attorney General of Jamaica (Intervenor) PC 1-Dec-1975
The Gun Court Act 1974 of Jamaica established special courts at different levels to deal with varieties of crimes involving guns. There was provision for hearings to be held in camera. Certain offences carried mandatory life sentences reviewable . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 30 April 2022; Ref: scu.211409

Liyange v Regina: PC 1966

The appellant, who had been involved in an attempted coup in Ceylon, sought to argue that a retroactive law relating to his trial was void.
Held: The argument succeeded. The separation of powers inherent in the Constitution had been infringed, and the appellant’s conviction was quashed. However judicial power is distributed between courts, it is to continue to be vested in persons appointed to hold judicial office in the manner and terms set down by the constitution in the chapter on the judicature, and even though it may not be set out explicitly. Under a Westminster style constitution, the legislature not only does not, but can not, prescribe the penalty to be imposed in an individual citizen’s case.
‘Their Lordships cannot accept the view that the legislature while removing the fetter of repugnancy to English law, left in existence a fetter of repugnancy to some vague unspecified law of natural justice. The terms of the Colonial Laws Validity Act and especially the words ‘but not otherwise’ in section 2 make it clear that Parliament was intending to deal with the whole question of repugnancy. Morover, their Lordships doubt whether Lord Mansfield was intending to say that what was not repugnant to English law might yet be repugnant to fundamental principles or to set up the latter as a different test from the former. Whatever may have been the possible arguments in this matter prior to the passing of the Colonial Laws Validity Act, they are not maintainable at the present date. No case has been cited in which during the last 100 years any judgment (or, so far as one can see, any argument) has been founded on that portion of Lord Mansfield’s judgment.’

Citations:

[1966] 1 All ER 650, [1967] AC 259, [1966] 2 WLR 682

Citing:

Cited – Campbell v Hall 1774
The appellant argued that, since the Crown had had no power to make laws for the colony of Ceylon which offended against fundamental principles, at independence it could not hand over to Ceylon a higher power than it possessed itself.
Held: . .

Cited by:

Cited – Hinds and other v The Queen; Director of Public Prosecutions v Jackson, attorney General of Jamaica (Intervenor) PC 1-Dec-1975
The Gun Court Act 1974 of Jamaica established special courts at different levels to deal with varieties of crimes involving guns. There was provision for hearings to be held in camera. Certain offences carried mandatory life sentences reviewable . .
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.

Constitutional, Commonwealth

Updated: 30 April 2022; Ref: scu.211412

McDonald v Dennys Lascelles Ltd: 1 Mar 1933

(High Court of Australia) ‘When a party to a simple contract, upon breach by the other contracting party of a condition of the contract, elects to treat the contract as no longer binding upon him, the contract is not rescinded as from the beginning. Both parties are discharged from the further performance of the contract, but rights are not divested or discharged which have already been unconditionally acquired. Rights and obligations which arise from the partial execution of the contract and causes of action which have accrued from its breach alike continue unaffected.’

Judges:

Dixon J

Citations:

(1933) 48 CLR 457

Links:

Austlii

Cited by:

Cited – Astea (UK) Ltd v Time Group Ltd TCC 9-Apr-2003
The question of whether a reasonable time has been exceeded in performance of a contract is ‘a broad consideration, with the benefit of hindsight, and viewed from the time at which one party contends that a reasonable time for performance has been . .
Approved – Hyundai Heavy Industries Co Ltd v Papadopoulos HL 1980
A shipbuilding contract provided that the second instalment of the contract price should be payable on a day certain. It gave the builders the right to rescind the contract in the event of non-payment. The buyers failed to pay the second instalment, . .
Restated – Bank of Boston Connecticut v European Grain and Shipping Ltd (‘The Dominique’) HL 1989
A shipping company and a shipper responsible for the freight disputed the effect of their contract. The ship was duly loaded with its cargo and set out for the voyage from India to Europe. The bills of lading were signed. When the ship called at . .
Cited – Hyundai Heavy Industries Co Ltd v Papadopoulos HL 1980
A shipbuilding contract provided that the second instalment of the contract price should be payable on a day certain. It gave the builders the right to rescind the contract in the event of non-payment. The buyers failed to pay the second instalment, . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Contract

Updated: 30 April 2022; Ref: scu.199959

Munro v Commissioner for Stamp Duties: PC 1933

In 1909, the deceased orally agreed with his six children that he and they would carry on the business of graziers on land owned by him as partners under a partnership at will. In 1913 the deceased transferred by way of gift the freehold interest in portions of the land to each of his four sons and to trustees for each of his two daughters and their children. The transfers were taken subject to the partnership agreement. In 1919 the deceased and his children entered into a formal partnership agreement, which provided that during his lifetime no partner should withdraw from the partnership. On the deceased’s death in 1929 a claim for death duties was made in respect of the land transferred to his children in 1913.
Held: The gift had been subject to the rights of the partnership, so that the donor’s occupation was by virtue of property which had never been included in the gift.
Lord Tomlin said: ‘It is unnecessary to determine the precise nature of the right of the partnership at the time of the transfers. It was either a tenancy during the term of the partnership or a licence coupled with an interest. In either view what was comprised in the gift was, in the case of each of the gifts to the children and the trustees, the property shorn of the right which belonged to the partnership, and upon this footing it is in their Lordships’ opinion plain that the donee in each case assumed bona fide possession and enjoyment of the gift immediately upon the gift and thenceforward retained it to the exclusion of the donor.’

Judges:

Lord Tomlin

Citations:

[1934] AC 61, [1933] All ER Rep 185

Cited by:

Cited – Ingram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) v Commissioners of Inland Revenue CA 28-Jul-1997
The deceased had first conveyed property to her solicitor. Leases back were then created in her favour, and then the freeholds were conveyed at her direction to her children and grandchildren. They were potentially exempt transfers.
Held: . .
Cited – In re Nichols, deceased CA 2-Jan-1975
The father, Lord Nichols, gave property to his sons who then leased it back to him. On the father’s death the revenue claimed duty.
Held: Goff LJ: ‘Having thus reviewed the authorities, we return to the question what was given, and we think . .
Cited – St Aubyn v Attorney General HL 12-Jul-1951
The donor exercised powers of appointment ‘to make some part of the settled property his own’, and it was ‘wholly irrelevant that by a contemporaneous or later transaction he surrenders his life interest in other parts of it’. The different parts of . .
Cited – Ingram and Another v Commissioners of Inland Revenue HL 10-Dec-1998
To protect her estate from Inheritance Tax, the deceased gave land to her solicitor, but then took back a lease. The solicitor then conveyed the land on freehold on to members of her family.
Held: The lease-back by the nominee was not void as . .
Lists of cited by and citing cases may be incomplete.

Stamp Duty, Commonwealth

Updated: 30 April 2022; Ref: scu.199962

Kartinyeri v Commonwealth of Australia: 1998

(Australia) Objection was taken to the participation of a judge in a High Court decision on the constitutionality of a Commonwealth statute, on the basis that the judge, as counsel, had given an opinion on the point. The judge concluded that he should not disqualify himself: ‘I do not think that the expression of an opinion as to a legal matter, whether as a practising lawyer or as a judge on a prior occasion, will ordinarily of itself give rise to a reasonable apprehension of bias according to the relevant test. Mason J in the passage I have already quoted [Re JRL; Ex p CJL (1986) 161 CLR 342, 352] points out that the making of a previous decision by a judge on issues of fact and law, although perhaps generating an expectation of a particular outcome, does not mean that the judge will not be impartial and unprejudiced in the relevant sense.’ and ‘Some members of this court have come to it directly from a career in politics and in government. Inevitably, in Cabinet and in the Party room, they must have had a very close association with members of the government whose legislation they have had from time to time to interpret. Sometimes the legislation may be in implementation of long-standing policy to which the former politician has subscribed and has perhaps even advocated. A particular association of itself, and even a current, proper one which observes the punctiliousness required in respect of a case and issues actually before, or which may be before, the court should not ordinarily give rise to a reasonable apprehension of bias.’ and ‘My position is, I think, quite different from that of a person who, before coming to the bench, has been directly involved in the preparation of legislation that has to be construed by the court, and who has taken active steps as principal law officer of the Commonwealth to seek to ensure the passage of a bill and to propound to the Governor-General the Senate’s failure to pass it as a basis for a double dissolution. These were some of the circumstances that led Murphy J to stand aside in Victoria v Commonwealth and Connor [(1975) 134 CLR 81]. There were other closely related steps taken by his Honour there when he was the Attorney-General concerning that Act.’

Citations:

(1998) 156 ALR 300

Cited by:

Cited – Davidson v Scottish Ministers HL 15-Jul-2004
The claimant had sought damages for the conditions in which he had been held in prison in Scotland. He later discovered that one of the judges had acted as Lord Advocate representing as to the ability of the new Scottish Parliamentary system to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Natural Justice

Updated: 30 April 2022; Ref: scu.199223

Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd: 1989

(Australia) The operation of section 46 of the 1974 Act, is predicated on the assumption that competition is a means to the end of protecting the interests of consumers: ‘Competition by its very nature is deliberate and ruthless. Competitors jockey for sales, the more effective competitors injuring the less effective by taking sales away. Competitors almost always try to ‘injure’ each other in this way. This competition has never been a tort (see Keeble v Hickeringill (1809) 11 East 574) and these injuries are the inevitable consequence of the competition section 46 is designed to foster. In fact, the purpose provisions in section 46(1) are cast in such a way as to prohibit conduct designed to threaten that competition – for example, section 46(1)(c) prohibits a firm with a substantial degree of market power from using that power to deter or prevent a rival from competing in a market. The question is simply whether a firm with a substantial degree of market power has used that power for a purpose proscribed in the section, thereby undermining competition, and the addition of a hostile intent inquiry would be superfluous and confusing.’

Judges:

Mason CJ and Wilson J

Citations:

(1989) 167 CLR 177

Statutes:

Trade Practices Act 1974 46 (Australia)

Cited by:

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

Commonwealth, Commercial

Updated: 30 April 2022; Ref: scu.199228

Maharaj v Attorney General for Trinidad and Tobago: PC 11 Oct 1976

A judge of the High Court had committed the barrister appellant to prison for seven days for contempt in the face of the court. The barrister was granted special leave to appeal to the Board against the committal order.
Held: Allowing the appeal. The judge had, however inadvertently, failed to serve a fundamental rule of natural justice, that a person accused of an offence should be told plainly enough to give him an opportunity to put forward any expkanation or excuse that he may wish to advance: ‘In charging the appellant with contempt, Maharaj J did not make plain to him the particulars of the specific nature of the contempt with which he was charged. This must usually be done before an alleged contemnor can properly be convicted and punished . . In their Lordships’ view, justice certainly demanded that the judge should have done so in this particular case. Their Lordships are satisfied that his failure to explain that the contempt with which he intended to charge the appellant was what the judge has described in hiw written reasons as a ‘vicious attack on the integrity of the Court’ vitiates the committal for contempt.’
Lord Salmon said: ‘Their Lordships recognise how important it is not to waste judicial time. But if this can be avoided only by finding against a party without giving him a fair chance of being heard, then such a price for saving judicial time is far too high.’
Lord Salmon said: ‘No point was taken on the hearing of the petition for special leave that such an appeal does not lie to Her Majesty in Council, nor was any such point taken in the respondent’s case. The point was however raised for the first time as a preliminary objection at the hearing of this appeal. Their Lordships can deal with it quite shortly.
It was conceded on behalf of the respondent that the point would have been unarguable before 1962, since it has long been well settled that it is competent for Her Majesty in Council to entertain appeals against orders of courts of record overseas imposing penalties for contempt of court. Their Lordships consider that the point is equally unarguable now for they can discover nothing in the Trinidad and Tobago Supreme Court of Judicature Act 1962 or the Trinidad and Tobago (Procedure in Appeals to Privy Council) Order in Council 1962 which touches Her Majesty’s power in Council to entertain appeals against orders of courts of record overseas imposing penalties for contempt of court.’

Judges:

Lord Salmon

Citations:

[1977] 1 All ER 411

Citing:

See also – Maharaj v Attorney General of Trinidad and Tobago (No 2) PC 27-Feb-1978
(Trinidad and Tobago) The appellant barrister has been convicted of contempt. The Board had previously found the conviction improper because the basis of the complaint had not been made clear to him. The appellant now sought damages for his . .
Cited – Ambard v Attorney-General for Trinidad and Tobago PC 1936
It is competent for Her Majesty in Council to entertain appeals against orders of courts of record overseas imposing penalties for contempt of court. . .
Cited – In The Matter of The Petition Of Edward Hutchinson Pollard v The Chief Justice Of The Supreme Court Of Hong Kong PC 16-Jun-1868
A contempt of Court being a criminal offence, no person can be punished for such unless the specific offence charged against him be distinctly stated, and an opportunity given him of answering. . .

Cited by:

See also – Maharaj v Attorney General of Trinidad and Tobago (No 2) PC 27-Feb-1978
(Trinidad and Tobago) The appellant barrister has been convicted of contempt. The Board had previously found the conviction improper because the basis of the complaint had not been made clear to him. The appellant now sought damages for his . .
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, Contempt of Court, Natural Justice

Updated: 30 April 2022; Ref: scu.199437

Central and Eastern Trust Co v Irving Oil Ltd: 1980

(Canada) Indirect financial assistance in purchase of company’s shares.

Citations:

(1980) DLR (3d) 257

Cited by:

Cited – Harlow and Another v Loveday and Another; In re Hill and Tyler Ltd (in administration) ChD 28-May-2004
The administrators challenged the validity of a charge which appeared to have been given by the company to secure the purchase of shares in the company.
Held: The loan itself did not amount to assistance, but the charge did. It was indirect . .
Lists of cited by and citing cases may be incomplete.

Company, Commonwealth

Updated: 30 April 2022; Ref: scu.198129

Regina v Braye-Jones: 1966

(Queensland Court of Criminal Appeal) The admissibility of evidence of recent complaint where the evidence of the complainant and the evidence of the contemporaneous complaint differed. Rejecting the suggestion that evidence of the contemporaneous complaint should not have been given as it was inconsistent with the evidence of the complainant: ‘Clearly enough, evidence of statements made by the prosecutrix which did not bear any resemblance at all to her sworn evidence would not be admissible, for such evidence would be irrelevant. In my opinion, however the matter is one of degree, and if the substance of the complaint can be identified as relating to the story told by the prosecutrix in evidence and if it is such that a jury can reasonably regard it as constituting a complaint of a matter of a sexual nature, then I think that inconsistency as to detail is a matter for the jury to consider in their assessment of the credibility of the prosecutrix’

Judges:

Lucas J

Citations:

[1966] Qd R 295

Jurisdiction:

Commonwealth

Citing:

Cited – Regina v Lillyman CCCR 1896
Evidence of a contemporaneous complaint by the complainant to her employer was admitted against objections that such evidence ought not to be admitted and the evidence should be confined merely to the fact of the complaint. The evidence of the . .

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: 30 April 2022; Ref: scu.198136

Commissioner of Police v Davis: PC 1994

(Bahamas) Certain statutory provisions relating to drug offences infringed the Constitution of The Bahamas. A question then arose on the severability of one of the offending statutory provisions, section 22(8) of the Dangerous Drugs Act. This subsection related both to convictions on information and to summary convictions. The subsection was unconstitutional in its application to summary convictions but not in its application to convictions on information. In holding that section 22(8) was void only in so far as it related to summary convictions the Board applied the Hutchinson ‘substantial severability’ test. The section sought improperly to deprive defendants of their right to a jury trial.

Citations:

[1994] 1 AC 283, [1994] 4 All ER 476, [1994] CLY 496

Citing:

Cited – Director of Public Prosecutions v Hutchinson; Director of Public Prosecutions v Smith HL 12-Jul-1990
Protesters objected that byelaws which had been made to prevent access to common land, namely Greenham Common were invalid.
Held: The byelaws did prejudice the rights of common. The House was concerned to clarify the test applicable when . .

Cited by:

Cited – Pilar Aida Rojas v Brian Berllaque PC 10-Nov-2003
PC (Gibraltar) The system of selecting a criminal jury obliged men to be available for selection, but women could choose not to be on the role of jurors. The result was that jury lists and juries were almost . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 29 April 2022; Ref: scu.187748

Furs Ltd v Tomkies: 1936

(High Court of Australia) ‘the inflexible rule that, except under the authority of a provision in the articles of association, no director shall obtain for himself a profit by means of a transaction in which he is concerned on behalf of the company unless all the material facts are disclosed to the shareholders and by resolution a general meeting approves of his doing so or all the shareholders acquiesce. An undisclosed profit which a director so derives from the execution of his fiduciary duties belongs in equity to the company. It is no answer to the application of the rule that the profit is of a kind which the company itself could not have obtained, or that no loss is caused to the company by the gain of the director. It is a principle resting upon the impossibility of allowing the conflict of duty and interest which is involved in the pursuit of private advantage in the course of dealing in a fiduciary capacity with the affairs of the company. If, when it is his duty to safeguard and further the interests of the company, he uses the occasion as a means of profit to himself, he raises an opposition between the duty he has undertaken and his own self interest, beyond which it is neither wise nor practicable for the law to look for a criterion of liability. The consequences of such a conflict are not discoverable. Both justice and policy are against their investigation.’

Judges:

Rich, Dixon and Evatt JJ

Citations:

(1936) 54 CLR 583

Cited by:

Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – O’Donnell v Shanahan and Another CA 22-Jul-2009
The claimant appealed against dismissal of her petition for an order for the defendants to purchase her shares at a fair value, saying that they had acted unfairly toward her. Her co-directors had acquired, for another company of which they were . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Company

Updated: 29 April 2022; Ref: scu.187425

Thornton v The Police: PC 1962

Leave to appeal was refused on the ground that the judgment of Hammet J was clearly correct. He held that nothing in the Act ‘precludes either the United Kingdom or any of the colonies from enacting such legislation as they chose to regulate and control the entry into their territory or residence therein of persons whatever their status may be’.

Citations:

[1962] AC 339 PC

Statutes:

British Nationality Act 1948

Jurisdiction:

England and Wales

Cited by:

Cited – Chagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 29 April 2022; Ref: scu.186644

La Compagnie Sucriere v Government of Mauritius: PC 1995

Section 1 of the constitution of Mauritiius dealt with deprivation of property and section 6 dealt with compulsory purchase; neither dealt with legislative extinction of title with a provision for overreaching into the purchase price.

Citations:

[1995] (3) LRC 494 PC

Cited by:

Cited – Chagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 29 April 2022; Ref: scu.186668

Commercial Bank of Australia Ltd v Amadio: 1983

(Australia) ‘it is necessary for the plaintiff who seeks relief to establish unconscionable conduct, namely that unconscientious advantage has been taken of his disabling condition or circumstances’ Deane J: ‘Unconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or obtain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so. The adverse circumstances which may constitute special disability for the purposes of the principles relating to relief against unconscionable conduct may take a wide variety of forms and are not susceptible to being comprehensively catalogued.’

Judges:

Mason J, Deane J

Citations:

(1983) 46 ALR 402

Cited by:

Cited – Portman Building Society v Dusangh and Others CA 19-Apr-2000
The defendant sought to set aside an order for possession under a mortgage.
Held: Where a case was strong enough on its face in terms of conduct and terms, unconscionable conduct could be inferred if there was no explanation offered to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Contract, Equity

Updated: 29 April 2022; Ref: scu.186685

Zainal bin Hashim v Government of Malaysia: PC 1980

A statute should not be given a construction that would impair existing rights personal or in property unless the language in which it is couched requires such a construction. The court considered the presumption that vested rights are not affected without clear wording. The rule in Joseph Suche was to be restricted so that ‘for pending actions to be affected by retrospective legislation, the language of the enactment must be such that no other conclusion is possible than that that was the intention of the legislature.’ Since the potential injustice of interfering with the rights of parties to actual proceedings is particularly obvious, this narrower presumption will be that much harder to displace, but it was displaced in this case.

Citations:

[1980] AC 734

Citing:

Modified – In re Joseph Suche and Co Ltd CA 1875
There is a a presumption, that legislation does not apply to actions which are pending at the time when it comes into force unless the language of the legislation compels the conclusion that Parliament intended that it should. It is ‘a general rule . .

Cited by:

Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 29 April 2022; Ref: scu.184437

Tse Wai Chun Paul v Albert Cheng: 13 Nov 2000

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

Judges:

Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Ribeiro PJ, Sir Denys Roberts NPJ and Lord Nicholls of Birkenhead NPJ

Citations:

[2001] EMLR 777, [2000] 3 HKLRD 418, [2000] HKCFA 35

Links:

hklii

Citing:

Cited – Myerson v Smith’s Weekly 1923
(New South Wales) The court considered the distinction between fact and comment. Ferguson J said: ‘To say that a man’s conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his . .
Cited – Gardiner v Fairfax 1942
Complaint was made that the plaintiff had been libelled in the defendant’s book review.
Held: A publication is defamatory in nature if it ‘is likely to cause ordinary decent folk in the community, taken in general, to think the less of [the . .
Cited – London Artists Ltd v Littler CA 10-Dec-1968
The defence of fair comment on matters of public interest is not to be defined too closely. Lord Denning MR said: ‘Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going . .
Cited – Kemsley v Foot HL 25-Feb-1952
Fair Comment Crticism of Newspaper Publisher
The plaintiff alleged that the headline to an article written by the defendant which criticised the behaviour of the Beaverbrook Press, and which read ‘Lower than Kemsley’ was defamatory. The defendant pleaded fair comment. The plaintiff appealed. . .

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 . .
Cited – Panday v Gordon PC 5-Oct-2005
(Trinidad and Tobago) A senior politician had accused an opponent of pseudo-racism. The defendant asserted that he had a defence under the constitution, allowing freedom of political speech.
Held: The appeal failed. The statements were . .
Cited – Lowe v Associated Newspapers Ltd QBD 28-Feb-2006
The defendant sought to defend the claim for defamation by claiming fair comment. The claimant said that the relevant facts were not known to the defendant at the time of the publication.
Held: To claim facts in aid of a defence of fair . .
Cited – Associated Newspapers Ltd v Burstein CA 22-Jun-2007
The newspaper appealed an award of damages for defamation after its theatre critic’s review of an opera written by the claimant. The author said the article made him appear to sympathise with terrorism.
Held: The appeal succeeded. Keene LJ . .
Cited – Blackwell v News Group Newspapers Ltd and others QBD 21-Dec-2007
The claimant sought damages saying that a newspaper article published by the defendant was defamatory. He was the manager of Leeds United Football club, and was said to have lost the dressing room.
Held: The claimant was entitled to summary . .
Cited – CC v AB QBD 4-Dec-2006
The claimant sought an order to prevent the defendant and others from making it known that the claimant had had an adulterous relationship with the defendant’s wife. . .
Cited – Thornton v Telegraph Media Group Ltd QBD 12-Nov-2009
The claimant sought damages for an article in the defendant’s newspaper, a review of her book which said she had falsely claimed to have interviewed artists including the review author and that the claimant allowed interviewees control over what was . .
Limited – Spiller and Another v Joseph and Others SC 1-Dec-2010
The defendants had published remarks on its website about the reliability of the claimant. When sued in defamation, they pleaded fair comment, but that was rejected by the Court of Appeal.
Held: The defendants’ appeal succeeded, and the fair . .
Lists of cited by and citing cases may be incomplete.

Defamation, Commonwealth, Human Rights, Constitutional

Updated: 29 April 2022; Ref: scu.184406

Lopes v Chettiar: PC 1968

(Malaysia) The petitioner had an appeal as of right to the Judicial Committee from the Federal Court of Malaysia under section 74(1)(a)(ii). The Court refused leave to appeal holding that the appeal had no merits and was bound to fail and the petitioner appealed to the Judicial Committee for leave to appeal, or, alternatively, for special leave to appeal from the judgment of the Federal Court.
Held: The Federal Court had no discretion to refuse leave to appeal, but refused to grant special leave to appeal. The granting of special leave to appeal by the Judicial Committee is a matter of discretion and not a right. This case was not a fit one for appeal to the Judicial Committee and leave was not to be granted solely on account of the fact that the appeal was wrongly treated by the Federal Court as one in which that court had a discretion.

Judges:

Viscount Dilhorne

Citations:

[1968] AC 887

Statutes:

Courts of Judicature Act 1964 (Malaysia) 74(1)(a)(ii)

Citing:

Cited – Davis v Shaughnessy PC 1932
The grant by the committee of special leave to appeal is discretionary. . .

Cited by:

Cited – Donovan Crawford Regardless Limited Alma Crawford v Financial Institutions Services Limited PC 19-Jun-2003
PC (Jamaica) The petitioners sought leave to appeal to the Privy Council. They had an appeal as of right. They now sought special leave, complaining that the Court in Jamaca had granted leave subject to them . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 29 April 2022; Ref: scu.184492

Hedderwick v The Federal Commissioner of Land Tax: 1913

When considering the operation of the presumption against retrospectivity in Acts affecting vested rights, ‘the Crown’s vested rights are to be respected as much as are the rights of private persons.’

Judges:

Griffith CJ

Citations:

(1913) 16 CLR 27

Cited by:

Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 29 April 2022; Ref: scu.184439

Ong Ah Chuan v The Public Prosecutor: PC 1980

(Singapore) It was asked whether the mandatory death sentence for trafficking in more than 15 grammes of heroin was unconstitutional. The appellant submitted that the mandatory nature of the sentence rendered it arbitrary, since it debarred the court in punishing offenders from discriminating between them according to their individual blameworthiness. This was said to be contrary to the requirement in article 9(1) of the Constitution that a person might only be deprived of life ‘in accordance with law’. Rejecting this argument, Lord Diplock said there was nothing unusual in a capital sentence being mandatory and that its efficacy as a deterrent might be to some extent diminished if it were not. The committee considered the nature of specific intent: ‘In a crime of specific intent where the difference between it and some lesser offence is the particular purpose with which an act, in itself unlawful, was done, it borders on the fanciful to suggest that a law offends against some fundamental rule of natural justice because it provides that upon the prosecution’s proving that certain acts consistent with that purpose and in themselves unlawful were done by the accused, the court shall infer that they were in part done for that purpose unless there is evidence adduced which on the balance of probabilities suffices to displace the inference. The purpose with which he did an act is peculiarly within the knowledge of the accused. There is nothing unfair in requiring him to satisfy the court that he did the acts for some less heinous purposed if such be the fact . . ‘

Judges:

Lord Diplock

Citations:

[1981] AC 648, [1980] 3 WLR 855, [1981] Crim LR 245

Cited by:

Cited – Regina v Daniel CACD 22-Mar-2002
The defendant appealed a conviction for hiding assets from her receiver following her bankruptcy. He said that recent case law suggested that the burden of establishing the defence under section 352 was evidential only.
Held: The conviction . .
Cited – Watson v Regina PC 7-Jul-2004
(Jamaica) The defendant was convicted of two murders from the same incident. The Act provided for the death penalty if he was convicted of a second murder. He appealed the death sentence in the circumstances, and said also that it was . .
Cited – Reyes v The Queen PC 11-Mar-2002
(Belize) The Criminal Code of Belize provided that any murder by shooting was to be treated as Class A Murder, and be subject to the mandatory death penalty. The applicant having been convicted, appealed saying this was inhuman or degrading . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Sentencing, Constitutional

Updated: 29 April 2022; Ref: scu.184322

Johnson v Johnson: 7 Sep 2000

(High Court of Australia) When looking to test whether a member of the public would perceive bias in a court, it is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. One is entitled to conclude that such an observer will adopt a balanced approach. ‘A reasonable member of the public is neither complacent nor unduly sensitive or suspicious.’

Judges:

Kirby J

Citations:

(2000) 201 CLR 488, [2000] 74 ALJR 1380, [2000] 174 ALR 655, [2000] HCA 48

Links:

Austlii

Cited by:

Cited – Lawal v Northern Spirit Limited HL 19-Jun-2003
Counsel appearing at the tribunal had previously sat as a judge with a tribunal member. The opposing party asserted bias in the tribunal.
Held: The test in Gough should be restated in part so that the court must first ascertain all the . .
Cited – PD, Regina (on the Application of) v West Midlands and North West Mental Health Review Tribunal Admn 22-Oct-2003
The claimant was detained as a mental patient. He complained that a consultant employed by the NHS Trust which detained him, also sat on the panel of the tribunal which heard the review of his detention.
Held: Such proceedings did engage the . .
Cited – Gillies v Secretary of State for Work and Pensions HL 26-Jan-2006
The claimant said that the medical member of the tribunal which had heard his disability claim was biased. The doctor was on a temporary contract and also worked for an agency which contracted directly the Benfits Agency. The court of session had . .
Cited – Helow v Secretary of State for the Home Department and Another HL 22-Oct-2008
The appellant, a Palestinian, challenged the involvement of Lady Cosgrove as a judge in her case, saying that Lady Cosgrove’s involvement as a jew in pro-Jewish lobby organisations meant that there was an appearance of bias. The applicant had sought . .
Lists of cited by and citing cases may be incomplete.

Natural Justice, Commonwealth

Updated: 29 April 2022; Ref: scu.183743

Ross v Costigan: 1982

(Australia) ‘In determining what is relevant to a Royal Commission inquiry, regard must be had to its investigatory character. Where broad terms of reference are given to it, as in this case, the commission is not determining issues between parties but conducting a thorough investigation into the subject matter. It may have to follow leads. It is not bound by rules of evidence. There is no set order in which evidence must be adduced before it. The links in a chain of evidence will usually be dealt with separately. Expecting to prove all the links in a suspected chain of events, the commission or counsel assisting, may nevertheless fail to do so. But if the commission bona fide seeks to establish a relevant connection between certain facts and the subject matter of the inquiry, it should not be regarded as outside its terms of reference by doing so. This flows from the very nature of the inquiry being undertaken.’ and ‘This does not mean, of course, that a commission can go off on a frolic of its own. However, I think a court if it has power to do so, should be very slow to restrain a commission from pursuing a particular line of questioning and should not do so unless it is satisfied, in effect, that the commission is going off on a frolic of its own. If there is a real as distinct from a fanciful possibility that a line of questioning may provide information directly or even indirectly relevant to the matters which the commission is required to investigate under its letters patent, such a line of questioning should, in my opinion, be treated as relevant to the Inquiry.’

Judges:

Ellicott J

Citations:

[1982] 41 ALR 319

Cited by:

Considered – Douglas and others v The Right Honourable Sir Lynden Oscar Pindling PC 13-May-1996
(Bahamas) A commission investigating the activities of a company, sought disclosure of its bankers records. The committee held that this was not a constitutional issue, and that leave to appeal as of right did not exist, but special leave was . .
Cited – Mount Murray Country Club Ltd and others v Commission of Inquiry Into Mount Murray and Another (1) PC 7-Jul-2003
(Isle of Man) The company appealed an order requiring disclosure of their tax documents to an enquiry. The enquiry into possible corruption had been ordered by the Tynwald.
Held: The provisions of the Act protecting tax documents from . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Administrative

Updated: 29 April 2022; Ref: scu.183477

Castrol Australia Pty Ltd v EmTech Associates Pty Ltd: 1980

(Australia) The court reviewed the development of the common law rule that no confidence can exist in iniquity. The court rejected a submission that the Trade Practices Commission should be able to use a particular confidential report for the purpose of investigating possible breaches of the Trade Practices Act: ‘There is accordingly no evidence before the court of a breach of section 53(c). So far as section 55 is concerned, it may be necessary for the prosecution to prove mens rea. I do not decide this point; it is enough in my view at the interlocutory stage that such proof may be necessary. Even if I am wrong in this view, there is still the possibility of a defence on reasonable mistake, or reasonable reliance on information supplied by another person, under section 85(1). Until such a possibility is negatived, or at least shown to be unlikely, I think the court should reject the submission that on the evidence as it now stands there is a prima facie case of an offence under the Trade Practices Act. For similar reasons I do not think that there is such a likelihood of relief being granted in respect of a breach of section 52(1) as to justify the withdrawal of this courts protection of a confidence that has been established on undisputed evidence with reasonable clarity.
I do not mean to suggest that if the evidence had shown a breach by the plaintiff of the Trade Practices Act this of itself would excuse the Commission from its obligation of confidence. All I am saying is that the evidence does not show such a breach , with the result that, whatever the position might otherwise have been, the Commission is not excused from its obligation of confidence on this ground.’

Judges:

Roch J

Citations:

[1980] 51 FLR 184

Cited by:

Cited – In Re Smith Kline and French Laboratories Ltd HL 9-Feb-1989
The plaintiffs had applied for a product licence for a patented drug. To support its application, it supplied the authority with confidential information which the authority now sought to make use of the confidential information when considering . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Commonwealth

Updated: 29 April 2022; Ref: scu.183451

Webb and Hay v The Queen: 30 Jun 1994

(Australia) Criminal Law – Jury – Impartiality – Murder trial – Juror giving flowers to victim’s mother – Whether juror or jury to be discharged Appropriate test – Reasonable apprehension of lack of impartiality or real danger of lack of impartiality.
Evidence – Criminal trial – Accomplice inculpating accused – Whether accomplice warning necessary – Nature of warning.
The test of whether a bias was found in a member of court because of personal links is whether such links give rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that there might have been such a bias.
As to the test laid down in Gough: ‘In considering the merits of the test to be applied in a case where a juror is alleged to be biased, it is important to keep in mind that the appearance as well as the fact of impartiality is necessary to retain confidence in the administration of justice. Both the parties to the case and the general public must be satisfied that justice has not only been done but that it has been seen to be done. Of the various tests used to determine an allegation of bias, the reasonable apprehension test of bias is by far the most appropriate for protecting the appearance of impartiality. The test of ‘reasonable likelihood’ or ‘real danger’ of bias tends to emphasise the court’s view of the facts. In that context, the trial judge’s acceptance of explanations becomes of primary importance. Those two tests tend to place inadequate emphasis on the public perception of the irregular incident.
We do not think that it is possible to reconcile the decision in Gough with the decisions of this Court. In Gough, the House of Lords specifically rejected the reasonable suspicion test and the cases and judgments which had applied it in favour of a modified version of the reasonable likelihood test. In Watson, faced with the same conflict in the cases between the two tests, this Court preferred the reasonable suspicion or apprehension test. That test has been applied in this Court on no less than eight subsequent occasions. In the light of the decisions of this Court which hold that the reasonable apprehension or suspicion test is the correct test for determining a case of alleged bias against a judge, it is not possible to use the ‘real danger’ test as the general test for bias without rejecting the authority of those decisions.
‘Moreover, nothing in the two speeches in the House of Lords in Gough contains any new insight that makes us think that we should re-examine a principle and a line of cases to which this Court has consistently adhered for the last eighteen years. On the contrary, there is a strong reason why we should continue to prefer the reasoning in our own cases to that of the House of Lords. In Gough, the House of Lords rejected the need to take account of the public perception of an incident which raises an issue of bias except in the case of a pecuniary interest. Behind this reasoning is the assumption that public confidence in the administration of justice will be maintained because the public will accept the conclusions of the judge. But the premise on which the decisions in this Court are based is that public confidence in the administration of justice is more likely to be maintained if the Court adopts a test that reflects the reaction of the ordinary reasonable member of the public to the irregularity in question. References to the reasonable apprehension of the ‘lay observer’, the ‘fair-minded observer’, the ‘fair-minded, informed lay observer’, ‘fair-minded people’, the ‘reasonable or fair-minded observer’, the ‘parties or the public’, and the `reasonable person’ abound in the decisions of this Court and other courts in this country. They indicate that it is the court’s view of the public’s view, not the court’s own view, which is determinative. If public confidence in the administration of justice is to be maintained, the approach that is taken by fair-minded and informed members of the public cannot be ignored. Indeed, as Toohey J. pointed out in Vakauta (1989) 167 CLR. at p.585 in considering whether an allegation of bias on the part of a judge has been made out, the public perception of the judiciary is not advanced by attributing to a fair-minded member of the public a knowledge of the law and the judicial process which ordinary experience suggests is not the case. That does not mean that the trial judge’s opinions and findings are irrelevant. The fair-minded and informed observer would place great weight on the judge’s view of the facts. Indeed, in many cases the fair-minded observer would be bound to evaluate the incident in terms of the judge’s findings.’

Judges:

Mason CJ and McHugh J

Citations:

(1994) 181 CLR 41, (1994) 122 ALR 41, (1994) 68 ALJR 582

Links:

Austlii

Jurisdiction:

Australia

Citing:

Cited – Regina v Gough (Robert) HL 1993
The defendant had been convicted of robbery. He appealed, saying that a member of the jury was a neighbour to his brother, and there was therefore a risk of bias. This was of particular significance as the defendant was charged with conspiracy with . .
Cited – Regina v Prime CACD 1973
Widgery LCJ said: ‘It is important in all criminal cases that the judge should on the first occasion when the jury separate warn them not to talk about the case to anybody who is not one of their number.’ . .

Cited by:

Cited – Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
Cited – In Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Natural Justice, Evidence

Updated: 29 April 2022; Ref: scu.183297

Tony Blain Pty Ltd v Splain: 1994

(High Court of New Zealand) Complaint was made the possible sales of products infringing the plaintiffs’ ‘Metallica’ property rights. The court was asked to make an order against unknown defendants.
Held: Anderson J discussed the correct approach: ‘Conceptually the relief sought in this proceeding and the relief in terms of Anton Piller orders are similar. Each involves an intrusion on privacy but is an intrusion which has been justified on the basis of the court’s equitable jurisdiction can properly be extended to meet the realities of modern commercial situations. It is an ancient maxim of the law that wherer there is a right there is a remedy: Ubi jus ibi remedium. In circumstances were it is plain that persons are infringing proprietary interests which the law recognises, or deceiving the public by way of trade in a manner which may indirectly affect the commercial interests of others, the law should, if it reasonably can, provide a remedy.’
The second defendant was sued as ‘all persons who sell unlicensed . . merchandise at or about the . . stadium on 26th March 1993 who are served with this statement of claim. In circumstances where it is plain that persons are infringing proprietary interests which the law recognises, or deceiving the public by way of trade in a manner which may indirectly affect the commercial interests of others, the law should, if it reasonably can, provide a remedy. It was proposed that solicitors, officers of the court, should be authorised to accost bootleggers and require them to provide their current addresses, evidence of identity, and to surrender up to the named solicitors all merchandise including T-shirts, head-bands, badges or programmes in their possession or control. Persons required to respond to these oral interrogatories, which conceptually is what they are, will be such persons as are served with the orders for injunction also sought in this proceedings. The second and third defendants are identified as persons who sell unlicensed merchandise at the relevant concert venues. It is expedient to refer to them in this judgment as ‘John Doe’ and ‘Jane Doe’. The fact that persons cannot be identified at this stage of the proceeding is no bar to relief against persons who may be identified at a relevant time. It is not the name but the identity and identification of infringing persons which is relevant. The identify may not be immediately established but persons infringing will be identified by their act of infringement. Jane Doe and John Doe will be known by their works.’

Judges:

Anderson J

Citations:

[1994] FSR 497

Cited by:

Cited – Bloomsbury Publishing Plc and Another v Newsgroup Newspapers Ltd ChD 7-May-2003
The claimant sought an order to restrict the defendant and other unknown defendants from publishing confidential details of the book it was about to publish from the Harry Potter series.
Held: Whilst: ‘I think it would be preferable for the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Intellectual Property, Commonwealth

Updated: 29 April 2022; Ref: scu.183366

Subramaniam v Director of Public Prosecutions: PC 1956

(Malaysia) The defendant sought to advance a defence of duress under a section of the Penal Code of the Federated Malay States which provided that, with certain exceptions, ‘nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence.’ He sought to have admitted evidence of threats made.
Held: What was said to the defendant was admissible to show that the defendant had good reason to fear death or personal injury. Hearsay evidence was admissible as to the state of the defendant’s mind. The appeal was allowed because evidence relied on by the appellant to show that he had had a reasonable apprehension of instant death was wrongly excluded.
The Board recognised the distinction between adducing a statement as evidence of something expressly or impliedly asserted in the statement and simply as evidence that the statement was made: ‘Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.’

Citations:

[1956] 1 WLR 965

Cited by:

Cited – Regina v Safi (Ali Ahmed); Regina v Ghayur; Regina v Shah; Regina v Showaib; Regina v Mohammidy; Regina v Shohab; Regina v Ahmadi; Regina v Safi (Mahammad Nasir); Regina v Kazin CACD 6-Jun-2003
The defendants appealed convictions after rejection of their defence of duress. They had hijacked an aeroplane in Afghanistan, and surrendered eventually at Stansted. They said they were acting under duress, believing they had no other way of . .
Cited – Regina v Hudson and Taylor CACD 17-Mar-1971
Two teenage girls committed perjury by failing to identify the defendant. When prosecuted they pleaded duress, on the basis that they had been warned by a group, including a man with a reputation for violence, that if they identified the defendant . .
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 . .
Cited – Ratten v The Queen PC 1-Jul-1971
Res Gestae to admit circumstances of complaint
(Victoria) Evidence had been admitted under the res gestae rule, that a woman making a telephone call was in a hysterical state.
Held: It was properly used. Where a statement is made either by the victim of an attack or by a bystander, which . .
Cited – Athwal and Others, Regina v CACD 7-May-2009
The appellants challenged their conviction for murder and sentences. The victim was the young second wife of the first defendant. It was said that she had been unfaithful, and having been lured to India, had been murdered there. She had disappeared, . .
Approved – Regina v Kearley HL 3-Jun-1992
Telephone calls which were made to the defendant’s phone asking for drugs, but made after the arrest of the defendant for supplying drugs were inadmissible as hearsay. They were adduced to prove, by implication, the fact that he, as an occupier of . .
Lists of cited by and citing cases may be incomplete.

Evidence, Crime, Commonwealth

Updated: 29 April 2022; Ref: scu.183354

Christensen v Scott: 1996

(New Zealand Court of Appeal) Thomas J said: ‘the diminution in the value of Mr and Mrs Christensen’s shares in the company is by definition a personal loss and not a corporate loss. The loss suffered by the company is the loss of the lease and the profit which would have been obtained from harvesting the potato crop. That loss is reflected in the diminution in the value of Mr and Mrs Christensen’s shares. They can no longer realise their shares at the value they enjoyed prior to the alleged default of their accountants and solicitors.’ and ‘We do not need to enter upon a close examination of the Newman Industries decision. It has attracted not insignificant and, at times, critical comment. See eg L C B Gower, Gower’s Principles of Modern Company Law (5th ed, 1992) at pp 647-653; L S Sealy, ‘Problems of Standing, Pleading and Proof in Corporate Litigation’ (Ed, B.G. Pettit) at p 1 esp at pp 6-10; and M J Sterling, ‘The Theory and Policy of Shareholder Actions in Tort’ (1987) 50 MLR. 468, esp at pp 470-474. It may be accepted that the Court of Appeal was correct, however, in concluding that a member has no right to sue directly in respect of a breach of duty owed to the company or in respect of a tort committed against the company. Such claims can only be bought by the company itself or by a member in a derivative action under an exception to the rule in Foss v Harbottle (1843) 2 Hare 461. But this is not necessarily to exclude a claim brought by a party, who may also be a member, to whom a separate duty is owed and who suffers a personal loss as a result of a breach of that duty Where such a party, irrespective that he or she is a member, has personal rights and these rights are invaded, the rule in Foss v Harbottle is irrelevant. Nor would the claim necessarily have the calamitous consequences predicted by counsel in respect of the concept of corporate personality and limited liability. The loss arises not from a breach of duty owed to the company but from a breach of duty owed to the individuals. The individual is simply suing to vindicate his own right or redress a wrong done to him or her giving rise to a personal loss.
Thomas J continued: ‘We consider, therefore, that it is certainly arguable that, where there is an independent duty owed to the plaintiff and a breach of that duty occurs, the resulting loss may be recovered by the plaintiff. The fact that the loss may also be suffered by the company does not mean that it is not also a personal loss to the individual. Indeed, the diminution in the value of Mr and Mrs Christensen’s shares in the company is by definition a personal loss and not a corporate loss. The loss suffered by the company is the loss of the lease and the profit which would have been obtained from harvesting the potato crop. That loss is reflected in the diminution in the value of Mr and Mrs Christensen’s shares. They can no longer realise their shares at the value they enjoyed prior to the alleged default of their accountants and solicitors. (For a discussion of the policy issues which arise in considering these questions, see Sterling (supra) at pp 474-491.) In circumstances of this kind the possibility that the company and the member may seek to hold the same party liable for the same loss may pose a difficulty. Double recovery, of course, cannot be permitted. The problem does not arise in this case, however, as the company has chosen to settle its claim. Peat Marwick and McCaw Lewis accepted a compromise in the knowledge that Mr and Mrs Christensen’s claim was outstanding. It may well be, as was acknowledged by Mr Pidgeon in the course of argument, that an allowance will need to be made for the amount already paid to the liquidator in settlement of the company’s claim. It is to be acknowledged, however, that the problem of double recovery may well arise in other cases. No doubt, such a possibility is most likely with smaller private companies where the interrelationship between the company, the directors and the shareholders may give rise to independent duties on the part of the professional advisers involved. But the situation where one defendant owes a duty to two persons who suffer a common loss is not unknown in the law, and it will need to be examined in this context. It may be found that there is no necessary reason why the company’s loss should take precedence over the loss of the individuals who are owed a separate duty of care. To meet the problem of double recovery in such circumstances it will be necessary to evolve principles to determine which party or parties will be able to seek or obtain recovery. A stay of one proceeding may be required. Judgment, with a stay of execution against one or other of the parties, may be in order. An obligation to account in whole or in part may be appropriate. The interest of creditors who may benefit if one party recovers and not the other may require consideration. As the problem of double recovery does not arise in this case, however, it is preferable to leave an examination of these issues to a case where that problem is squarely in point. ‘
and ‘Essentially, Mr and Mrs Christensen are alleging that as a result of Peat Marwick and McCaw Lewis’s breach of duty owed to them personally they suffered a personal loss, that is, a reduction in the value of their assets. Their assets in this case had been channelled into their company. Thus, it is arguable that the diminution in the value of their shareholding is the measure of that loss. It may well be that when the evidence is heard it will be apparent that Mr and Mrs Christensen’s claim is inflated, but that is a matter for the trial. We are not prepared to hold at this stage that they do not have an arguable case to recover damages for the breach of an acknowledged duty.”

Judges:

Thomas J

Citations:

[1996] 1 NZLR 273

Citing:

Cited – Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) CA 1982
A plaintiff shareholder cannot recover damages merely because the company in which he has an interest has suffered damage. He cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in . .

Cited by:

Not followed – Johnson v Gore Wood and Co (a Firm) CA 12-Nov-1998
The claimant had previously issued a claim against the defendant solicitors through his company. He now sought to pursue a claim in his own name. It was resisted as an abuse of process, and on the basis that no personal duty of care was owed to the . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Company, Damages

Updated: 29 April 2022; Ref: scu.183149