Category: Commonwealth

Shaw Savill and Albion Company Ltd v The Commonwealth: 1940

(High Court of Australia) The plaintiff owned a ship ‘The Coptic’ which was in a collision with His Majesties Australian Ship ‘Adelaide’. The plaintiff alleged that the collision resulted from the negligence of the defendant’s officers, saying the Adelaide was sailing too fast, that it failed to keep a proper lookout for the Coptic and that it was not navigated in a proper and seaman like manner. The defence was that, at the relevant time; the Adelaide was part of the naval forces of Australia and was engaged in active naval operations against the enemy. The Court accepted that in principle such a defence was open to the state:’It could hardly be maintained that during an actual engagement with the enemy or a pursuit of any of his ships the navigating officer of a King’s ship of war was under a common-law duty of care to avoid harm to such non-combatant ships as might appear in the theatre of operations. It cannot be enough to say that the conflict or pursuit is a circumstance affecting the reasonableness of the officer’s conduct as a discharge of the duty of care, though the duty itself persists. To adopt such a view would mean that whether the combat be by sea, land or air our men go into action accompanied by the law of civil negligence, warning them to be mindful of the person and property of civilians. It would mean that the Courts could be called upon to day whether the soldier on the field of battle or the sailor fighting on his ship might reasonably have been more careful to avoid causing civil loss or damage. No one can imagine a court undertaking the trial of such an issue, either during or after a war. To concede that any civil liability can rest upon a member of the armed forces for supposedly negligent acts or omissions in the course of an actual engagement with the enemy is opposed alike to reason and to policy. But the principle cannot be limited to the presence of the enemy or to occasions when contact with the enemy has been established. Warfare perhaps never did admit of such a distinction, but now it would be quite absurd. The development of the speed of ships and the range of guns were enough to show it to be an impracticable refinement, but it has been put out of question by the bomber, the submarine and the floating mine. The principle must extend to all active operations against the enemy. It must cover attack and resistance, advance and retreat, pursuit and avoidance, reconnaissance and engagement. But the real distinction does exist between active operations against the enemy and other activities of the combatant services in time of war.’

Judges:

Dixon J

Citations:

(1940) 66 CLR 344, [1940] HCA 40

Cited by:

Cited – Mulcahy v Ministry of Defence CA 21-Feb-1996
A soldier in the Artillery Regiment was serving in Saudi Arabia in the course of the Gulf war. He was injured when he was part of a team managing a Howitzer, which was firing live rounds into Iraq, and he was standing in front of the gun when it was . .
Cited – Bici and Bici v Ministry of Defence QBD 7-Apr-2004
Claimants sought damages for personal injuries incurred when, in Pristina, Kosovo and during a riot, British soldiers on a UN peacekeeping expedition fired on a car.
Held: The incidents occurred in the course of peace-keeping duties. It was . .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Torts – Other, Commonwealth, Armed Forces

Updated: 27 October 2022; Ref: scu.198144

Adelaide Company of Jehovah’s Witnesses Inc v The Commonwealth: 1943

Latham CJ said: ‘It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed, in the world.’

Judges:

Latham CJ

Citations:

(1943) 67 CLR 116

Jurisdiction:

England and Wales

Cited by:

Cited – Hodkin and Another, Regina (on The Application of) v Registrar-General of Births, Deaths and Marriages SC 11-Dec-2013
The appellants sought to be married in their regular church in London. The minister would be pleased to perform the ceremony, but church to which they belonged was part of the Church of Scientology, and had been refused registration under the 1855 . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 24 October 2022; Ref: scu.541078

Macquarie Generation v Peabody Resources Ltd: 14 Dec 2000

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

Judges:

Beazley JA, Mason P

Citations:

[2000] NSWCA 361, [2001] Aust Contract Reports 90-121

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Cramaso Llp v Ogilvie-Grant, Earl of Seafield and Others SC 12-Feb-2014
The defenders owned a substantial grouse moor in Scotland. There had been difficulties with grouse stocks, and steps taken over years to allow stocks to recover. They had responded to enquiries from one Mr Erskine with misleading figures. Mr Erskine . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other

Updated: 19 October 2022; Ref: scu.536801

Pell Frischmann Engineering Ltd v Bow Valley Iran Ltd and Others: PC 26 Nov 2009

(From the Court of Appeal of Jersey) Lord Walker reviewed the principles in awarding damages under Lord Cairns Act, setting out five general principles established by the authorities. They included: ‘1. Damages (often termed ‘user damage’) are readily awarded at common law for the invasion of rights to tangible moveable or immoveable property (by detinue, conversion or trespass).
2 . .
3. Damages under Lord Cairns’s Act are intended to provide compensation for the court’s decision not to grant equitable relief in the form of an order for specific performance or an injunction in cases where the court has jurisdiction to entertain an application for such relief. Most of the recent cases are concerned with the invasion of property rights such as excessive user of a right of way. The breach of a restrictive covenant is also generally regarded as the invasion of a property right . . since a restrictive covenant is akin to a negative easement . . the decision of the House of Lords in Blake decisively covers what their Lordships have referred to as a non-proprietary breach of contract.
4. Damages under this head (termed ‘negotiating damages’ by Neuberger LJ in Lunn Poly) represent ‘such a sum of money as might reasonably have been demanded by [the claimant] from [the defendant] as a quid pro quo for [permitting the continuation of the breach of covenant or other invasion of right].
5. Although damages under Lord Cairns’s Act are awarded in lieu of an injunction it is not necessary that an injunction should actually have been claimed in the proceedings, or that there should have been any prospect, on the facts, of it being granted.’
Lord Walker added: ‘ Several of the recent cases have explored the nature of the hypothetical negotiation called for in the assessment of Wrotham Park damages. It is a negotiation between a willing buyer (the contract-breaker) and a willing seller (the party claiming damages) in which the subject-matter of the negotiation is the release of the relevant contractual obligation. Both parties are to be assumed to act reasonably. The fact that one or both parties would in practice have refused to make a deal is therefore to be ignored.’

Judges:

Lord Phillips, Lord Rodger, Lord Walker, Lord Mance, Lord Clarke

Citations:

[2009] UKPC 45, [2010] Bus LR 73, [2011] 1 WLR 2370, [2011] Bus LR D1

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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 . .
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 . .
Cited – 32Red Plc v WHG (International) Ltd and Others ChD 12-Apr-2013
The court had found trade mark infringement by the defendant and now considered the quantification of damages. . .
Cited – 32Red Plc v WHG (International) Ltd and Others ChD 12-Apr-2013
The court had found trade mark infringement by the defendant and now considered the quantification of damages. . .
Cited – Morris-Garner and Another v One Step (Support) Ltd SC 18-Apr-2018
The Court was asked in what circumstances can damages for breach of contract be assessed by reference to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to . .
Lists of cited by and citing cases may be incomplete.

Damages, Torts – Other

Updated: 19 October 2022; Ref: scu.381559

Browne v The Queen: PC 6 May 1999

(St Christopher and Nevis) The appellant had been convicted of murder whilst still a youth. He had accordingly been sentenced to be detained ‘during [the Governor-General’s] pleasure; and if so sentenced he shall be liable to be detained in such place and under such conditions as the Administrator in Council may direct and, while so detained, be deemed to be in legal custody.’
Held: It was inconsistent with the doctrine of the separation of powers, that a person sentenced to be detained during the Governor General’s pleasure, should have the length of sentence decided by the Governor, who is part of the executive not the judiciary. The term ‘during pleasure’ is to be ‘not a once and for all assessment that is made at the time that the defendant is first before the court after his conviction.’ The unconstitutionality could be repaired by ensuring that the decision was made by a court.

Judges:

Lord Slynn of Hadley, Lord Mackay of Clashfern, Lord Clyde, Lord Hobhouse of Woodborough, Sir Patrick Russell

Citations:

Times 11-May-1999, [1999] UKPC 21, [2000] 1 AC 45

Links:

Bailii, PC

Jurisdiction:

Commonwealth

Citing:

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 – Regina v Secretary of State For The Home Department, Ex Parte Venables, Regina v Secretary of State For The Home Department, Ex Parte Thompson HL 12-Jun-1997
A sentence of detention during her majesty’s pleasure when imposed on a youth was not the same as a sentence of life imprisonment, and the Home Secretary was wrong to treat it on the same basis and to make allowance for expressions of public . .
Cited – Vasquez v The Queen; O’Neil v The Queen PC 26-Oct-1994
(Belize) The burden of proof on provocation in a murder case remained with the prosecution despite the constitution. The Belize Criminal Code imposed no more than an evidential burden on the accused: ‘In their Lordships’ view section 116(a) of the . .
Cited – Hussain v The United Kingdom ECHR 21-Feb-1996
The determination of a life sentence by the Home Secretary without recourse to a court was unlawful. There had been a violation of article 5(4) because the applicant who had been detained at Her Majesty’s pleasure was unable, after the expiry of his . .

Cited by:

Cited – Regina on the Application of Smith v The Secretary of State for the Home Department Admn 3-Apr-2003
The case asked what duty the respondent had, in respect of youths sentenced to be detained during Her Majesty’s Pleasure before 30th November 2000, to review their continued detention at regular intervals. A statement said that once a tarriff had . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Commonwealth, Criminal Sentencing

Updated: 14 October 2022; Ref: scu.159353

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

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

Judges:

French CJ

Citations:

[2009] HCA 12

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Sainsbury’s Supermarkets Ltd, Regina (on The Application of) v Wolverhampton City Council and Another SC 12-May-2010
The appellant’s land was to be taken under compulsory purchase by the Council who wished to use it to assist Tesco in the construction of a new supermarket. Tesco promised to help fund restoration of a local listed building. Sainsbury objected an . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 11 October 2022; Ref: scu.414937

British Columbia v Zastowny: 8 Feb 2008

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

Judges:

McLachlin CJ and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ

Citations:

[2008] 1 SCR 27, (2008), 290 DLR (4th) 21, [2008] 4 WWR 381, (2008) 76 BCLR (4th) 1

Links:

Canlii

Jurisdiction:

Canada

Cited by:

Cited – Gray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered psychiatric injury in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had later gone on to kill another person, and he had been detained under section 41. . .
Cited – Whittington Hospital NHS Trust v XX SC 1-Apr-2020
A negligent delay in the diagnosis of her cancer left the clamant dependent on paid for surrogacy arrangements. Three issues were raised; could damages to fund surrogacy arrangements using the claimant’s own eggs be recovered? Second, if so, could . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 11 October 2022; Ref: scu.347282

Berry v The Queen: PC 15 Jul 1992

(Jamaica) A failure to comply with Jamaica’s own rules on disclosure was a material irregularity. Where credibility is in issue, a good character direction is always relevant.

Citations:

Gazette 15-Jul-1992, [1992] 2 AC 364

Jurisdiction:

Commonwealth

Cited by:

Cited – Marvin Murphy v The Queen PC 22-Nov-2001
(The Bahamas) The appellant had been convicted of burglary and robbery. The conviction depended upon identification by one witness who had given several differing descriptions. The trial was long delayed, and the appellant who was not represented . .
Cited – Teeluck and John v The State PC 23-Mar-2005
(Trinidad and Tobago) The defendant appealed against his conviction saying that his defence had been incompetent in having failed to require the judge to give a good character direction to the jury.
Held: The appeal was allowed. Recent cases . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Commonwealth

Updated: 05 October 2022; Ref: scu.78367

Abigail v Lapin: PC 19 Jun 1934

(Australia) Mr and Mrs Lapin, the registered proprietors of land, had given transfers by way of security to creditors who fraudulently mortgaged it. The majority in the High Court had held that the unregistered security of the subsequent lender did not take priority over the Lapins’ equitable right to redeem. Knox CJ and Dixon J, in the majority, and Gavan Duffy and Starke JJ, in the minority, agreed that prima facie the equitable interest of the prior equity holder took priority of the later. That position could be disturbed by disentitling conduct on the part of the holder of the prior equity which warranted its postponement to the subsequently acquired equity.
Held: The appeal succeeded. The Lapins’ conduct in arming their creditors with the capacity to become the registered proprietors was disentitling conduct. The Board rejected Kindersley V-C’s position that priority in time was the test only where the equities were otherwise equal. It was clearly established that prima facie priority in time would decide the matter unless there was something ‘tangible and distinct having grave and strong effect’ to warrant taking away the pre-existing equitable title.
‘For the general protection of equitable interest or estates, the act provides that a caveat may be lodged with the registrar by any person claiming as cestui que trust, or under any unregistered instrument or any other estate or interest; the effect of the caveat is that no instrument will be registered while the caveat is in force affecting the land, estate or interest until after a certain notice to the person lodging the caveat. Thus, though the legal interest is in general determined by the registered transfer, mortgages or other changes, the register may bear on its face and notice of the equitable claims, so as to warn persons dealing in respect of the land and to enable the equitable claimant to protect his claim by enabling him to bring an action if his claim is disputed.’

Citations:

[1934] UKPC 33, [1934] AC 491, 151 LT 429, [1934] All ER 720

Links:

Bailii

Cited by:

Cited – Cook v The Mortgage Business Plc CA 24-Jan-2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Land

Updated: 04 October 2022; Ref: scu.450476

Hungerfords v Walker: 1989

To allow a claimant to recover special, but not general, damages for loss of the use of money is widely seen as illogical. In Hungerfords v Walker (1989) 171 CLR 125, 142 Mason CJ said that it subverted the second limb in Hadley v Baxendale from its intended purpose, which was to allow loss arising from special circumstances of which the defendant had actual knowledge in cases where the loss did not fall within the first limb because it did not arise from the ordinary course of things.

Judges:

Mason CJ

Citations:

(1989) 171 CLR 125

Jurisdiction:

England and Wales

Cited by:

Cited – Sempra Metals Ltd v Inland Revenue Commissioners and Another HL 18-Jul-2007
The parties agreed that damages were payable in an action for restitution, but the sum depended upon to a calculation of interest. They disputed whether such interest should be calculated on a simple or compound basis. The company sought compound . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Damages

Updated: 01 October 2022; Ref: scu.260126