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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














Commonwealth - From: 1992 To: 1992

This page lists 58 cases, and was prepared on 20 May 2019.

 
Merck and Co v Interpharm [1992] 3 FC 774
1992

Giles ASP
Commonwealth, Legal Professions
(Federal Court of Canada) Giles ASP said: "Solicitor and client privilege is one of the basic principles which permit the operation of our justice system and public confidence in it. In order to support the public interest in the inviolability of the solicitor and client relationship the courts have imposed great inconvenience and have overridden without question personal rights such as the right of a person to choose his own counsel. In this case there is no suggestion that a lawyer who once acted for the defendant is now with the plaintiffs' firm. There is no suggestion of a solicitor and client relationship having been established between the defendants and anyone at Gowling's. The public interest in solicitor and client relationship is not engaged.
In my view the implied undertaking would be most impractical if it resulted in an ability to remove from a case any solicitor who was bound by an implied undertaking. The implied undertaking is not of sufficient public interest when balanced against the right of a party to choose his own solicitors and the public interest in the efficient administration of justice to require the court to disqualify any solicitor who might wrongly deploy information subject to the undertaking. If a solicitor fails to observe the undertaking the remedy is to cite him for contempt, not to remove him.
A lawyer who takes cases regularly must have acquired a great deal of information subject to implied undertakings. In these days of specialized education and long work hours for junior lawyers, it is possible that a significant percentage of a lawyer's general knowledge will have been acquired in his practice of law, there having been little other opportunity for him to acquire the same. It is equally possible that a large portion of that general knowledge will be subject to implied undertakings. If the defendant's submissions are correct, few lawyers who have been called for any length of time will be able to take part in litigation. It is to be remembered that the undertaking is to the Court and is not limited to deploying information in cases involving one or more of the same parties."
1 Citers


 
Regina v Genereux (1992) 88 DLR (4th) 110
1992

L’Heureux-Dubeè J, Lamer CJC
Human Rights, Commonwealth, Armed Forces
(Canada) The court discussed the human rights compliance of the courts martial system, and whether the trial of a soldier on a criminal charge by a General Court Martial met the requirements of s 11(d) of the Charter. L’Heureux-Dubeè J said: "When measuring the General Court Martial against the requirements of the Charter, certain considerations must be kept in mind. Among those considerations are that the armed forces depend upon the strictest discipline in order to function effectively and that alleged instances of non-adherence to rules of the military need to be tried within the chain of command".
Lamer CJC said: "The essential conditions of independence, or basic mechanisms by which independence can be achieved, were discussed by Le Dain J. in Valente. He emphasized that a flexible standard must be applied under s. 11(d). Since s. 11(d) must be applied to a variety of tribunals, it is inappropriate to define strict formal conditions as the constitutional requirement for an independent tribunal. Mechanisms that are suitable and necessary to achieve the independence of the superior courts, for example, may be highly inappropriate in the context of a different tribunal. For this reason, the court chose to define three essential conditions of independence that can be applied flexibly, being capable of attainment by a variety of legislative schemes or formulas . . Similarly, s. 11(d) of the Charter requires that a decision-maker have a basic degree of financial security. The substance of this condition is as follows . . `The essence of such security is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the executive in a manner that could affect judicial independence.'
Within the limits of this requirement, however, the federal and provincial governments must retain the authority to design specific plans of remuneration that are appropriate to different types of tribunals. Consequently, a variety of schemes may equally satisfy the requirement of financial security, provided that the essence of the condition is protected."
Lamer CJC also said: "I emphasize that an individual who wishes to challenge the independence of a tribunal for the purposes of s. 11(d) need not prove an actual lack of independence. Instead, the test for this purpose is the same as the test for determining whether a decision-maker is biased. The question is whether an informed and reasonable person would perceive the tribunal as independent."

 
Calma v Sesar (1992) 2 NTLR 37
1992

Martin J
Commonwealth
(Australia) The court hearing a dispute between family members as to how the deceased should be buried, declined to hear evidence from them about the deceased's childhood relationships. There was no good reason why the body should be flown thousands of miles away for a funeral and the funeral should be in Darwin where the body lay.
1 Citers


 
Carborundum Abrasives Ltd v Bank of New Zealand (No 2) [1992] 3 NZLR 757
1992

Tompkins J
Commonwealth, Costs
(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."
1 Citers


 
Westfield Holdings Ltd v Australian Capital Television (1992) 32 NSWLR 194; 5 BPR 11,615
1992

Young J
Commonwealth, Banking, Equity
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."


 
 David Securities Pty Ltd v Commonwealth Bank of Australia; 1992 - (1992) 175 CLR 353
 
Lim Teng Huan v Ang Swee Chuan Gazette, 08 January 1992
8 Jan 1992
PC

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

 
Smithfield Foods Ltd v The Attorney General of Barbados Co [1992] UKPC 1
20 Jan 1992
PC

Commonwealth
(Barbados)
[ Bailii ]
 
Guyana and Trinidad Mutual Fire Insurance Co Ltd V. R.K. Plummer and Associates Ltd Co (Trinidad and Tobago) [1992] UKPC 2
20 Jan 1992
PC

Commonwealth

[ Bailii ]
 
Thomas Palmer v The Queen Co [1992] UKPC 3
3 Feb 1992
PC

Commonwealth
Jamaica
[ Bailii ]
 
Wright v Davidson (1992) 88 DLR (4th) 698; 1992 CanLII 1020 (BC BA); [1992] 3 WWR 611; (1992), 64 BCLR (2d) 113
7 Feb 1992


Commonwealth, Negligence, Damages
(British Columbia Court of Appeal) The court rejected a claim for damages for a suicide after the deceased claimant had suffered injury in a road collision because the conscious decision of the deceased to take her own life had occurred without any "disabling mental illness" indicative of "an incapacity in her faculty of volition"; "she made a conscious decision, there being no evidence of disabling mental illness to lead to the conclusion that she had an incapacity in her faculty of volition."
1 Citers

[ Canlii ]
 
Chan Kai, Kong Kwai-Wing, Chan Man-Kwan, Pang Chi-Sum And, Ng Kum-Lau V. The Queen Co (Hong Kong) [1992] UKPC 5
13 Feb 1992
PC

Commonwealth

[ Bailii ]
 
Lai Chi-Hong V. The Queen Co (Hong Kong) [1992] UKPC 4
13 Feb 1992
PC

Commonwealth

[ Bailii ]
 
Mohammed Mukhtar Ali And, Shaik Murtzuza Ali Haji Gulam Rasool v The Queen [1992] UKPC 6
18 Feb 1992
PC

Commonwealth
(Mauritius)
[ Bailii ]
 
Stephen Joseph Francis V. The Queen Co (Mauritius) [1992] UKPC 7
18 Feb 1992
PC

Commonwealth

[ Bailii ]

 
 Lennox Phillip and Others v Director of Public Prosecutions of Trinidad and Tobago and Another; Same vCommissioners of Prisons; PC 19-Feb-1992 - Gazette, 19 February 1992; [1992] 1 AC 545; [1992] 2 WLR 211
 
Imperial Life Assurance Co of Canada V. Efficient Distributors Ltd Co (The Bahamas) [1992] UKPC 10
9 Mar 1992
PC

Commonwealth

[ Bailii ]
 
David Selden Courtenay Hannays V. Mahadeo Baldeosingh Co (Trinidad and Tobago) [1992] UKPC 9
9 Mar 1992
PC

Commonwealth

[ Bailii ]

 
 Regina v Ali, Regina v Rasool (Mauritius); PC 25-Mar-1992 - Gazette, 25 March 1992
 
Hannays v Baldeosingh Gazette, 01 April 1992
1 Apr 1992
PC

Litigation Practice, Commonwealth
There was no jurisdiction for appellate court to strike out a reply once a defence had been admitted.

 
Ponsamy Poongavanam V. The Queen Co (Mauritius) [1992] UKPC 13
6 Apr 1992
PC

Commonwealth

[ Bailii ]
 
Christopher Dorrien Johnson V. Carolyn Eva Johnson Co (The Cayman Islands) [1992] UKPC 12
6 Apr 1992
PC

Commonwealth

[ Bailii ]
 
Ponsamy Poongavanam v Regina
6 Apr 1992
PC
Lord Goff of Chieveley
Human Rights, Criminal Practice, Commonwealth, Constitutional
(Mauritius) The defendant appealed conviction on the ground that the jury had been all male. Women being effectively excluded from jury service in Mauritius. The question was whether, having regard to the composition of the jury, the appellant's trial violated a provision in the Constitution of Mauritius. Held: There was no basis for concluding that the justification for the means of selecting juries no longer had an objective justification. The board referred to the "fair cross-section" requirement adopted in the American case law. Whether such a broad principle can be derived from the Constitution of Mauritius depends upon the construction of the word "impartial". The Constitution was concerned with the actual tribunal by which the case is tried and with the impartiality of that tribunal. The American principle was directed to the representative character of the jury list. "Whether the jurisprudence on Article 6(1) of the European Convention of Human Rights is likely to develop in that direction, is very difficult to foresee; but any such development would require a substantial piece of creative interpretation which has the effect of expanding the meaning of the words of Article 6(1) beyond their ordinary meaning."
1 Citers


 
Basiru Jawara V. Gambia Airways Co (Gambia) [1992] UKPC 11
6 Apr 1992
PC

Commonwealth

[ Bailii ]
 
Imperial Life Assurance Company of Canada v Efficient Distributors Ltd Gazette, 08 April 1992; [1992] 2 WLR 503
8 Apr 1992
PC

Consumer, Commonwealth
Compounding of interest did not raise rate above level where became void.

 
Conagra Inc v McCain Foods (Aust) Pty Ltd [1992] FCA 159; (1992) 23 IPR 193; (1992) Aipc 90-892 (Extract); (1992) 106 ALR 465; (1992) 33 FCR 302
14 Apr 1992

Lockhart(1), Gummow(2) and French(3) JJ.
Commonwealth, Intellectual Property
Austlii Intellectual Property - passing off - bases and elements of passing off action - whether carrying on business within jurisdiction or place of business within jurisdiction - sufficiency of nexus with the jurisdiction - necessity and method of establishing reputation within jurisdiction - requirement of goodwill - whether fraud is a necessary element of passing off - relevance of establishing fraud. Trade Practices - misleading and deceptive conduct - relationship between reputation in passing off action and establishing misleading and deceptive conduct.
Although the claim in passing off failed, and after a very full review of the common law authorities Lockhart J said that it was "no longer valid, if it ever was, to speak of a business having goodwill or reputation only where the business is carried on", relying on "[m]odern mass advertising . . [which] reaches people in many countries of the world", "[t]he international mobility of the world population" and the fact that "[t]his is an age of enormous commercial enterprises". "it is not necessary . . that a plaintiff, in order to maintain a passing off action, must have a place of business or a business presence in Australia; nor is it necessary that his goods are sold here", saying that it would be "sufficient if his goods have a reputation in this country among persons here, whether residents or otherwise".
1 Citers

[ Austlii ]
 
Strathmore Group Ltd V. A.M. Fraser, C.Y. Todd And, Durafort Investments Ltd (Reasons) [1992] UKPC 14
18 May 1992
PC

Commonwealth
(New Zealand)
[ Bailii ]
 
The Prudential Mall Ltd V. P.H. Shek Ltd And, Pirest Ltd Co (Hong Kong) [1992] UKPC 15
8 Jun 1992
PC

Commonwealth

[ Bailii ]
 
Reverend Edward Gatherer v The Right Reverend Drexel Wellington Gomez Co [1992] UKPC 17
18 Jun 1992
PC

Commonwealth
Barbados
[ Bailii ]
 
Strathmore Group Ltd v Fraser and Others (New Zealand) Gazette, 24 June 1992
24 Jun 1992
PC

Litigation Practice, Commonwealth
The division of a trial into two parts or stages did not, of itself, remove the right of appeal to the Privy Council.

 
George Tan Soon-Gin V. His Honour Judge Cameron And, The Attorney General of Hong Kong Co (Hong Kong) [1992] UKPC 18
29 Jun 1992
PC

Commonwealth

[ Bailii ]
 
Berry v The Queen Gazette, 15 July 1992; [1992] 2 AC 364
15 Jul 1992
PC

Criminal Practice, Commonwealth
(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.
1 Citers



 
 Mastan E-Allam Bhewa And, Abdool Rahim Dowlutsing v The Government of Mauritius And, The Director of Public Prosecutions Co; PC 20-Jul-1992 - [1992] UKPC 20
 
The Commissioner of Inland Revenue V. Hk-Tvb International Ltd Co (Hong Kong) [1992] UKPC 21
20 Jul 1992
PC

Commonwealth

[ Bailii ]

 
 Gatherer v Gomez; PC 22-Jul-1992 - Gazette, 22 July 1992; [1992] CLY 1812; [1992] 1 WLR 727
 
Rodolpho De Los Santos v The Queen Co [1992] UKPC 23
22 Jul 1992
PC

Commonwealth
(Hong Kong)
[ Bailii ]
 
The Administrator General for Jamaica V. Rudyard Stephens, Federal Investors Ltd, Krias Ltd And, Exley Ho Co (Jamaica) [1992] UKPC 22
22 Jul 1992
PC

Commonwealth

[ Bailii ]
 
The Government of Mauritius v The Unoin Flacq Sugar Estates Co. Ltd and The Government of Mauritius v The Medicine Shares Holding Co. Ltd, The Black River Investments Co. Ltd And, The Flacq United Estates Co. Ltd. [1992] UKPC 25
23 Jul 1992
PC

Commonwealth
(Mauritius)
[ Bailii ]
 
Clement Francis V. The Queen (Oral) (Jamaica) [1992] UKPC 26
23 Jul 1992
PC

Commonwealth

[ Bailii ]
 
Victor P. Herde And, Christopher J. Kelshall V. Courtney Mahabirsingh Co (Trinidad and Tobago) [1992] UKPC 24
23 Jul 1992
PC

Commonwealth

[ Bailii ]
 
Williams v Spautz 61 A Crim R 431; (1992) 66 ALJR 585; 107 ALR 635; (1992) 174 CLR 509; [1992] HCA 34
27 Jul 1992

Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ
Commonwealth, Torts - Other
(High Court of Australia) Criminal Law - Abuse of process - Stay of proceedings - Action for wrongful dismissal against university - Information for criminal defamation by plaintiff against officer of university - Predominant purpose of informant to secure reinstatement or favourable settlement of action - Whether abuse of process.
Brennan J attempted a partial definition of purpose in the context of the tort of abuse of process, committed when a person conducts litigation for a purpose other than that for which the court's process is designed: "Purpose, when used in reference to a transaction, has two elements: the first, a result which the transaction is capable of producing; the second, the result which the person or persons who engage in or control the transaction intend it to produce. Or, to express the concept in different terms, the purpose of a transaction is the result which it is capable of producing and is intended to produce."
1 Citers

[ Austlii ]
 
Herde and Another v Mahabirsingh Gazette, 16 September 1992
16 Sep 1992
PC

Employment, Commonwealth
Payment of worker's severance pay did not take precedence over crystallised secured charge.

 
Dr. Govindasamy Thanapal V. The General Medical Council Co (The Health Committee of The General Medical Council) [1992] UKPC 27
5 Oct 1992
PC

Commonwealth

[ Bailii ]
 
David Securities Pty. Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
7 Oct 1992


Equity, Commonwealth
(High Court of Australia ) Restitution - Money paid under mistake - Mistake of law - Right to recover - Unjust enrichment - Defences - Change of position.
1 Citers

[ Austlii ]
 
Jonathan Noel v Royal Insurance Co Ltd Co [1992] UKPC 29
19 Oct 1992
PC

Commonwealth
Trinidad and Tobago
[ Bailii ]
 
Kelly v Cooper and Cooper Trading As Cooper Associates (A Firm) Co [1993] AC 205; [1992] UKPC 30; [1992] 3 WLR 936; [1993] ANZ Conv R 138
19 Oct 1992
PC

Commonwealth, Agency, Trusts
Bermuda - The fiduciary obligations imposed on an agent will depend on the express and implied terms of the contract. Although an agent is, in the absence of contractual provision, in breach of his fiduciary duties if he acts for another who is in competition with his principal, if the contract under which he is acting authorises him so to do, the normal fiduciary duties are modified accordingly
1 Citers

[ Bailii ]
 
James Smith V. The Queen Co (Jamaica) [1992] UKPC 31
26 Oct 1992
PC

Commonwealth

[ Bailii ]
 
Dr. Aylmer James Compton V. The General Medical Council Co (The Health Committee of The General Medical Council) [1992] UKPC 33
27 Oct 1992
PC

Commonwealth

[ Bailii ]
 
Catalino O'Neil And, Dean Edward Vasquez V. The Queen (Oral) (Belize) [1992] UKPC 32
27 Oct 1992
PC

Commonwealth

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

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

[ Canlii ]

 
 Rogers v Whitaker; 19-Nov-1992 - [1992] HCA 58; (1992) 175 CLR 479

 
 Downsview Nominees Ltd and Another v First City Corporation Ltd and Another; PC 19-Nov-1992 - Gazette, 09 December 1992; [1993] AC 295; Times, 15 December 1992; [1992] UKPC 34
 
United States of America v McVey [1992] 3 SCR 475; (1992), 97 DLR (4th) 193; [1993] 1 WWR 289; (1992) 77 CCC (3d) 1; (1992), 73 BCLR (2d) 145
19 Nov 1992

La Forest J
Commonwealth, Extradition
(Supreme Court of Canada) La Forest J said: "Consistent with the general principle that extradition laws should be liberally construed so as to achieve the purposes of the Treaty, a much less technical approach to extradition warrants and to common law warrants has been adopted. ."
1 Citers

[ Canlii ]

 
 Richards v The Queen; PC 25-Nov-1992 - Gazette, 25 November 1992
 
Ramnikgiri Bachugiri Gonasi V. The General Medical Council Co (The General Medical Council) [1992] UKPC 38
1 Dec 1992
PC

Commonwealth

[ Bailii ]
 
Leroy Burke V. The Queen Co (Jamaica) [1992] UKPC 36
1 Dec 1992
PC

Commonwealth

[ Bailii ]
 
Chan Woon-Hung Trading As Ocean Plastic Factory v Associated Bankers Insurance Co Ltd Co (Hong Kong) [1992] UKPC 37
1 Dec 1992
PC

Commonwealth

[ Bailii ]
 
Rajendra Mistry V. The General Dental Council Co (The General Medical Council) [1992] UKPC 39
10 Dec 1992
PC

Commonwealth

[ Bailii ]
 
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