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Commonwealth - From: 1994 To: 1994

This page lists 63 cases, and was prepared on 20 May 2019.

 
Commissioner of Police v Davis [1994] 1 AC 283; [1994] 4 All ER 476; [1994] CLY 496
1994
PC

Commonwealth, Constitutional
(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.
1 Cites

1 Citers


 
Burnie Port Authority v General Jones Property Ltd [1994] 120 ALR 42; (1994) 179 CLR 520
1994
HCA
Mason CJ
Commonwealth, Nuisance, Negligence
(High Court of Australia) The court treated the rule in Rylands v Fletcher as absorbed by the principles of ordinary negligence. The majority were influenced by the difficulties of interpretation and application to which the rule had given rise, the progressive weakening of the rule by judicial decision, by recognition that the law of negligence had been very greatly developed and expanded since Rylands v Fletcher was decided and by a belief that most claimants entitled to succeed under the rule would succeed in a claim for negligence anyway: "Where a duty of care arises under the ordinary law of negligence, the standard of care exacted is that which is reasonable in the circumstances. It has been emphasised in many cases that the degree of care under that standard necessarily varies with the risk involved and that the risk involved includes both the magnitude of the risk of an accident happening and the seriousness of the potential damage if an accident should occur … even where a dangerous substance or dangerous activity of a kind which might attract the rule in Rylands v Fletcher is involved, the standard of care remains "that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances": Adelaide Chemical & Fertiliser Co Ltd v Carlyle [1940] 64CLR514 at page 523. In the case of such substances or activities, however, a reasonably prudent person would exercise a higher degree of care. Indeed, depending upon the magnitude of the danger, the standard of 'reasonable care' may involve 'a degree of diligence so stringent as to amount practically to a guarantee of safety'"
1 Cites

1 Citers


 
Tony Blain Pty Ltd v Splain [1994] FSR 497
1994

Anderson J
Intellectual Property, Litigation Practice, Commonwealth
(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."
1 Citers


 
Supercool Refrigeration and Air Conditioning v Hoverd Industries Ltd [1994] 3 NZLR 300
1994
ChD
Tompkins J
Commonwealth, Banking
(New Zealand) The court noted a greater reluctance in Australia and Ireland than in England to accept the creation of a fixed charge over present and future book debts.
Tompkins J said:" a requirement to pay the proceeds of the book debts into the company's account without any restriction on how the company may use those proceeds does not give effective possession of those proceeds to the Bank. It does not, without more, fasten the charge onto those proceeds. Supercool was free to deal with those proceeds except in the two respects stated, unless and until the BNZ intervened in a manner that would effectively inhibit that freedom. This conclusion is entirely consistent with the circumstances as they existed at the time the debenture was entered into. Supercool was about to take over part of the business of the old Supercool company. It was the clear intention of Supercool and the BNZ that Supercool was then going to trade in the normal way in the course of which it would acquire book and other debts and would be using the proceeds of those debts in the normal course of its business. If it were not able to do so freely, it would not be able to trade. And the BNZ was well aware that that was what Supercool was about to do - the whole object of the finance facility was to enable Supercool to commence business. There was no intervention by the Bank that in any way restricted this freedom to carry on its business until the Bank appointed the receiver on 10 March 1992. It follows that the charge over the book and other debts was a floating charge until it crystallised on that date. It also follows that, for the reasons I have expressed, I do not follow the decision of Slade J in Siebe Gorman."
1 Cites

1 Citers


 
New Zealand Maori Council v Attorney-General of New Zealand [1994] 1 AC 466
1994
PC
Lord Lloyd of Berwick
Costs, Commonwealth
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.
1 Citers


 
Oversea-Chinese Banking Corporation Limited v Wright [1994] 3 SLR 760
1994

Chao Hick Tin J
Commonwealth, Defamation
The Business Times in Singapore had published an apology in favour of a third party in respect of defamatory statements made by Mr Wright whose letter was previously published by the newspaper. The letter was found to be privileged when the letter writer alleged that the apology was defamatory of him. Held: The Business Times had a moral, if not legal duty, to correct the original defamatory statements of the letter writer and its readers would be interested in knowing about the correction.
Chao Hick Tin J said (obiter): "In the circumstances of the present case, having regard to the letter of Mr Wright which was published in the BT (Business Times) . . there was clearly a duty, at least moral if not legal, for BT to make the statement in the apology to correct what it felt was an unwarranted attack by Wright on OCBC. Applying the criteria I have set out above, I am of the opinion that the publication of the apology was on an occasion of qualified privilege. The readers have read the attack on OCBC and they certainly have an interest to read the correction. Of course the defence of qualified privilege could be negatived by malice, but by no stretch of the imagination can one seriously allege there was any malice in OCBC causing the publication of or in BT having published the apology.
I agree that the position might be different if BT, having entirely on its own volition published a libel on OCBC, then sought to make a correction wherein it defamed a third party. I can see that in such a situation the court should perhaps be slow to recognise that there is such a duty as to create an occasion of qualified privilege."
1 Citers


 
Olson v Gullo (1994) 17 OR (3d) 790
1994

Morden ACJO
Commonwealth, Company, Agency
(Court of Appeal for Ontario) A Mr Olson and a Mr Gullo had formed a partnership to develop a tract of land. Mr Gullo nevertheless bought and sold part of the land for his own account at a substantial profit which he planned to pocket. The trial judge held that Mr Olson was entitled to recover the whole of the profit. Held: The appeal was allowed.
Morden ACJO said that he had "concluded . . that it was contrary to principle and authority . . to deprive the defendants of their one-half share in the transaction in question". He explained: "We must, however, begin our consideration with the basic premise that the profit in question is the property of the partnership, not of all the partners except the defaulting partner. To exclude the wrongdoer would be to effect a forfeiture of his or her interest in this partnership property. The point may be understood by considering a starker form of wrongdoing - a case where a partner misappropriates partnership funds for his own benefit. In such a case I am not aware of any principle or decision to the effect that not only must the partner account to the partnership for the money but must also suffer a forfeiture of his or her interest in it. In fact, the case law of which I am aware is to the contrary."
1 Citers



 
 Chan Wai-Keung v The Queen; PC 10-Jan-1994 - Times, 21 December 1994; Independent, 10 January 1994; [1995] 2 Cr App R 194; [1994] UKPC 47

 
 Chan Wai-Keung v The Queen; PC 10-Jan-1994 - Times, 21 December 1994; Independent, 10 January 1994; [1995] 2 Cr App R 194; [1994] UKPC 47

 
 Kabir v The General Medical Council Co; PC 27-Jan-1994 - [1994] UKPC 3

 
 Friend v Florence Mae Tulloch Co; PC 27-Jan-1994 - [1994] UKPC 2
 
Rees, Scott, Justice Deyalsingh, Chief Justice Bernard, and Others v Crane Co [1994] UKPC 4
14 Feb 1994
PC

Commonwealth
Trinidad and Tobago
[ Bailii ]
 
Gregson, Davis, Inez, Davis v Charles, Joseph, Charles, Joseph, Michael and Steadman Scotland Co [1994] UKPC 5
21 Feb 1994
PC

Commonwealth
(Antigua and Barbuda)
[ Bailii ]
 
Mercury Energy Ltd (Successor Co of The Former Auckland Electric Power Board) v Electricity Corp of New Zealand Ltd Co [1994] UKPC 6
28 Feb 1994
PC

Commonwealth
(New Zealand)
[ Bailii ]

 
 Brooks v Director of Public Prosecutions and Another; PC 2-Mar-1994 - Gazette, 02 March 1994; [1994] 1 AC 568; [1994] UKPC 1

 
 Amore v The Queen Co; PC 15-Mar-1994 - [1994] UKPC 8
 
Abdul Rahman Showlag v Abdel Moniem Mansour, First Union Corp Sa And, Eaglesfield Ltd Co [1994] UKPC 7
15 Mar 1994
PC

Commonwealth
(Jersey)
[ Bailii ]

 
 Fakeemeeah Cehl Mohammad Also Called Cehl Meeah And, Mohumudally Khalil v Essouf Amanoullah Ahmad, Sir Bhinod Bacha, Electoral Supervisory Commission, The Electoral Commissioner, The Returning Officer And, The Public Service Commission Co; PC 22-Mar-1994 - [1994] UKPC 11
 
Tynes v Barr (1994) 45 WIR 7; [1994] ICHRL 5
28 Mar 1994


Commonwealth, Damages, Constitutional, Torts - Other
(Supreme Court of the Bahamas) The plaintiff had been wrongfully arrested and humiliated publicly at an airport. He claimed exemplary damages. In assessing the exemplary damages in a court should take account of the injury the plaintiff has endured to his dignity and pride, mental suffering and loss of reputation: "Exemplary damages should be awarded in view of the arrogant, abusive and outrageous disregard shown by the police for the law, in particular, their delay in producing documents; the manner in which the defence was conducted; and the fact that liability was not conceded until the sixth and ninth days of the trial and even then with no appropriate apology being offered to the plaintiff. The police should be made aware of the need to observe the requirements as to when they may arrest and detain a person without a warrant and the way in which a person so detained must be humanely treated."
1 Citers

[ Worldlii ]
 
Showlag v Mansour and Others Times, 29 March 1994
29 Mar 1994
PC

International, Commonwealth
Earliest of two foreign competing valid judgments is to be given priority.

 
Owners of Cargo On K H Enterprise v Owners of Pioneer Container Times, 29 March 1994; Gazette, 11 May 1994; [1994] 2 AC 324
29 Mar 1994
PC
Lord Goff
Transport, Commonwealth, Contract, Agency
Owners who were claiming under a bailment must accept the terms of a sub-bailment to which it had agreed. This result is both principled and just. A sub-bailee can only be said for these purposes to have voluntarily taken into his possession the goods of another if he has sufficient notice that a person other than a 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. This they believe to be the underlying principle.
Where an exclusive jurisdiction clause exists, a party who seeks a stay brought in breach of that agreement to refer disputes to a named forum, will have to show strong cause
Lord Goff asked whether an exclusive jurisdiction clause in a bill of lading issued by a sub-bailee was binding on the cargo owner, and said: "Here is a ship, upon which the goods are loaded in a large number of containers; indeed, one container may contain goods belonging to a number of cargo owners. One incident may affect goods owned by several cargo owners, or even (as here) all the cargo owners with goods on board. Common sense and practical convenience combine to demand that all of these claims should be dealt with in one jurisdiction, in accordance with one system of law. If this cannot be achieved, there may be chaos. Much expense may be wasted on litigation in a number of different jurisdictions, as indeed happened in the present case, where there was litigation in eight other countries as well as Hong Kong and Taiwan. There is however no international regime designed to produce a uniformity of jurisdiction and governing law in the case of a multiplicity of claims of this kind. It is scarcely surprising therefore that shipowners seek to achieve uniformity of treatment in respect of all such claims, by clauses designed to impose an exclusive jurisdiction and an agreed governing law . . Within reason, such an attempt must be regarded with a considerable degree of sympathy and understanding . . Their Lordships do not consider that it can possibly be said that the incorporation of such a clause in a bill of lading is per se unreasonable."
1 Citers


 
Rees and Others v Crane Gazette, 30 March 1994; [1994] 2 AC 173
30 Mar 1994
PC

Constitutional, Commonwealth
(Trinidad and Tobago) A High Court judge complained that he had been unlawfully excluded from the roster of sittings for the following term. Held: The procedure to suspend judge had to be followed closely. In this case there had been a breach of natural justice. His fundamental right to the protection of the law under paragraph 4(b) of the Constitution, that is the right to the protection of the law, had been violated. The decision to suspend him was contrary to section 137(1) of the Constitution which provided that: "A judge may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of mind or body or any other cause), or for misbehaviour, and shall not be so removed except in accordance with the provisions of this section." That contravention could not be corrected retrospectively by a later suspension order.
1 Citers



 
 Roger France Pardayan De Boucherville v The State Co; PC 18-Apr-1994 - [1994] UKPC 12

 
 Bernard v The Queen Co; PC 26-Apr-1994 - [1994] UKPC 13
 
Gladwyn Ophelia King V. The Attorney General of Barbados Co (Barbados) [1994] UKPC 14
3 May 1994
PC

Commonwealth

[ Bailii ]
 
Silver Mountain Investments Limited And, Bennage Limited v The Attorney General And, Land Development Corporation (Hong Kong) [1994] UKPC 15
11 May 1994
PC

Commonwealth

[ Bailii ]
 
Mossman v Chilcott, Chatfield and, Bank of New Zealand Co [1994] UKPC 16
16 May 1994
PC

Commonwealth
(New Zealand)
[ Bailii ]
 
Lawrence Oduro Koranteng V. The General Dental Council Co (The General Dental Council) [1994] UKPC 17
19 May 1994
PC

Commonwealth

[ Bailii ]
 
Goldcorp Exchange Ltd and others v Liggett and others [1994] UKPC 3
25 May 1994
PC

Commonwealth

[ Bailii ]
 
Kensington and Cregten (As The Receivers of Goldcorp Exchange Ltd (In Receivership) And, Bank of New Zealand v The Unrepresented Non-Allocated Claimants, Liggett and Heppleston Co [1994] UKPC 18
25 May 1994
PC

Commonwealth
(New Zealand)
[ Bailii ]
 
Mohammad and Another v Ahmad and Another Gazette, 01 June 1994
1 Jun 1994
PC

Constitutional, Commonwealth
Validity and nature of appointment of returning officers - Mauritius.

 
Kensington and Others v Unrepresented Non-Allocated Claimants and Others Times, 02 June 1994; Gazette, 22 June 1994
2 Jun 1994
PC

Equity, Commonwealth
Purchasers of unallocated shares in a quantity of bullion had no priority over those having a floating charge over the same assets.

 
Alceo Zuliani, Transamericainvest (St. Kitts) Ltd And, The Royal St. Kitts Casino Ltd V. Vernon S. Veira Co (St. Christopher and Nevis) [1994] UKPC 22
15 Jun 1994
PC

Commonwealth

[ Bailii ]
 
Yip ChiuCheung v The Queen Gazette, 03 August 1994; Times, 20 June 1994
20 Jun 1994
PC

Crime, Commonwealth
Conspiracy possible though co-conspirator undercover drugs agent. An agent with the requisite intent can be the other party in a conspiracy.

 
Silver Mountain Investments Ltd v Attorney General for Hong Kong Gazette, 29 June 1994
29 Jun 1994
PC

Land, Commonwealth
Resumption of Compulsory Purchase of land ordered despite two year old offer.

 
Webb and Hay v The Queen (1994) 181 CLR 41; (1994) 122 ALR 41; (1994) 68 ALJR 582
30 Jun 1994

Mason CJ and McHugh J
Commonwealth, Natural Justice, Evidence
(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."
1 Cites

1 Citers

[ Austlii ]

 
 Zuliani and Others v Veira; PC 1-Jul-1994 - Times, 01 July 1994; Gazette, 03 August 1994
 
Owens Bank Ltd V. Etoile Commerciale S.A. Co (Grenadines) [1994] UKPC 27
6 Jul 1994
PC

Commonwealth

[ Bailii ]
 
Freemantle v The Queen Ind Summary, 29 August 1994; Gazette, 12 October 1994; Times, 07 July 1994; [1994] 1 WLR 1437
7 Jul 1994
PC

Evidence, Criminal Practice, Commonwealth
The judge's warning to the jury about its dangers is needed, when the jury were being asked to consider uncorroborated visual identification evidence, unless, and exceptionally, the evidence is of such good quality as to stand without a warning. In this case though, although the direction was defective, the two eye witnesses had known the defendant for several years.
1 Citers


 
Red Sea Insurance Co Ltd v Bouygues S.A. and 22 Others Co [1994] UKPC 28
18 Jul 1994
PC

Commonwealth
Hong Kong
[ Bailii ]
 
Nina T.H. Wang V. The Commissioner of Inland Revenue Co (Hong Kong) [1994] UKPC 29
19 Jul 1994
PC

Commonwealth

[ Bailii ]
 
Red Sea Insurance Co Ltd v Bouygues SA and Others Gazette, 09 November 1994; Ind Summary, 26 September 1994; Times, 21 July 1994; [1995] 1 AC 190
21 Jul 1994
PC
Lord Slynn
International, Commonwealth
Lex loci delicti (the law of the jurisdiction in which the act complained of took place) can exceptionally be used when the lex fori (the jurisdiction formally assigned) gives no remedy. In the case of a claim under a foreign tort, the double actionability exception may be applied to allow use of the lex loci delicti. Lord Slynn: "Their Lordships, having considered all of these opinions, recognise the conflict which exists between, on the one hand, the desirability of a rule which is certain and clear on the basis of which people can act and lawyers advise and, on the other, the desirability of the courts having the power to avoid injustice by introducing an element of flexibility into the rule. They do not consider that the rejection of the doctrine of the proper law of the tort as part of English law is inconsistent with a measure of flexibility being introduced into the rules. They consider that the majority in Boys v Chaplin [1971] AC 356 recognised the need for such flexibility. They accept that the law of England recognises that a particular issue between the parties to litigation may be governed by the law of the country which, with respect to that issue, has the most significant relationship with the occurrence and with the parties. They agree with the statement of Lord Wilberforce, at pp 391-392, … as to the extent and application of the exception. They accept, as he did, that the exception will not be successfully invoked in every case or even, probably, in many cases and, at p 391H, that 'The general rule must apply unless clear and satisfying grounds are shown why it should be departed from and what solution, derived from what other rule, should be preferred."
1 Cites

1 Citers


 
Commercial Finance Co Ltd (In Liquidation) V. Indira Ramsingh-Mahabir Co (Trinidad and Tobago) [1994] UKPC 30
26 Jul 1994
PC

Commonwealth

[ Bailii ]
 
Lincoln Anthony Guerra And, Brian Wallen V. The State (Reasons) (Trinidad and Tobago) [1994] UKPC 31
26 Jul 1994
PC

Commonwealth

[ Bailii ]
 
Lincoln Anthony Guerra and Another v Cipriani Baptiste and others Independent, 29 September 1994; Times, 29 July 1994
29 Jul 1994
PC

Human Rights, Criminal Sentencing, Commonwealth
(Trinidad and Tobago) A conservatory order could be made by the committee in order to prevent a prisoner being executed before his appeal could be heard by them.
[ PC ]
 
Hodgkinson v Simms [1994] 3 SCR 377; 117 DLR (4th) 161; [1994] 9 WWR 609; 97 BCLR (2d) 1; 16 BLR (2d) 1; 171 NR 245; 22 CCLT (2d) 1; 49 BCAC 1; 57 CPR (3d) 1; 5 ETR (2d) 1; [1994] CarswellBC 438; AZ-94111096; JE 94-1560; [1994] SCJ No 84 (QL); [1994] ACS no 84; 50 ACWS (3d) 469; 80 WAC 1; 95 DTC 5135
30 Sep 1994

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

[ Canlii ]
 
The Attorney General of Trinidad and Tobago And, The Director of Public Prosecutions vLennox Phillip Also Called Yasin Abu Bakr and 113 Others Co [1994] UKPC 33
4 Oct 1994
PC

Commonwealth
Trinidad and Tobago
[ Bailii ]
 
Dr. Maurice Robertson V. Canadian Imperial Bank of Commerce Co (St. Vincent and The Grenadines) [1994] UKPC 34
6 Oct 1994
PC

Commonwealth

[ Bailii ]
 
Commercial Finance Co Ltd (In Liquidation) v Ramsingh-Mahabir Gazette, 12 October 1994
12 Oct 1994
PC

Employment, Commonwealth
'Retrenchment' compensation rules do not apply in company liquidation.

 
Wang v Commissioner of Inland Revenue Gazette, 19 October 1994; [1994] 1 WLR 1286
19 Oct 1994
PC
Lord Slynn of Hadley
Income Tax, Commonwealth
(Hong Kong) At first instance the judge found that the deputy commissioner lacked jurisdiction to make two determinations since he had not done so within a reasonable time required by the imperative language of the statute. The Court of Appeal reversed the decision. Held. The delay on a Commissioners decision took it outside the allowable 'reasonable time' but the decision remained valid. The Board considered the distinction between two types of regulatory requirements, (1) requirements of a purely regulatory character where a failure to comply would never invalidate the act, and (2) requirements where a failure to comply would not invalidate an act provided that there was substantial compliance.
Lord Slynn of Hadley said: "their Lordships consider that when a question like the present one arises - an alleged failure to comply with a time provision - it is simpler and better to avoid these two words 'mandatory' and 'directory' and to ask two questions. The first is whether the legislature intended the person making the determination to comply with the time provision, whether a fixed time or a reasonable time. Secondly, if so, did the legislature intend that a failure to comply with such a time provision would deprive the decision maker of jurisdiction and render any decision which he purported to make null and void?
In the present case the legislature did intend that the Commissioner should make his determination within a reasonable time . . If the Commissioner failed to act within a reasonable time he could be compelled to act by an order of mandamus. It does not follow that his jurisdiction to make a determination disappears the moment a reasonable time has elapsed. If the court establishes the time by which a reasonable time is to be taken as having expired, which will depend on all the circumstances, including factors affecting not only the taxpayer but also the Inland Revenue, it would be surprising if the result was that the commissioner had jurisdiction to make the determination just before but not just after that time. Their Lordships do not consider that that is the effect of a failure to comply with the obligation to act within a reasonable time in the present legislation. Such a result would not only deprive the government of revenue, it would also be unfair to other taxpayers who need to shoulder the burden of government expenditure; the alternative result (that the commissioner continues to have jurisdiction) does not necessarily involve any real prejudice for the taxpayer in question by reason of the delay."
1 Cites

1 Citers


 
Dr. Subhash Chandra Malliwal V. The General Medical Council Co (The Heath Committee of The General Medical Council) [1994] UKPC 37
19 Oct 1994
PC

Commonwealth

[ Bailii ]
 
Telecom Corp of New Zealand Ltd and Others v Clear Communications Ltd Co [1994] UKPC 36
19 Oct 1994
PC

Commonwealth
(New Zealand)
[ Bailii ]

 
 Vasquez v The Queen; O'Neil v The Queen; PC 26-Oct-1994 - Gazette, 26 October 1994; [1994] 1 WLR 1304; [1994] 3 All ER 674
 
Grant Adams V. The Queen Co (New Zealand) [1994] UKPC 38
31 Oct 1994
PC

Commonwealth

[ Bailii ]
 
Dunkley and Robinson v The Queen Independent, 01 November 1994; Gazette, 09 November 1994; [1995] 1 AC 419
1 Nov 1994
PC

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

1 Citers


 
Attorney General of Trinidad and Tobago v Phillip Independent, 19 October 1994; Times, 11 October 1994; Gazette, 09 November 1994; [1995] 1 AC 396
9 Nov 1994
PC
Lord Woolf
Constitutional, Human Rights, Commonwealth
A pardon which had been give to insurrectionists was invalid, since it purported to excuse future conduct also, but there had been no duress shown. There is no general power to excuse a crime before it is committed. Lord Woolf: "A pardon must in the ordinary way only relate to offences which have already been committed ....However while a pardon can expunge past offences, a power to pardon cannot be used to dispense with criminal responsibility for an offence which has not yet been committed . This is a principle of general application which is of the greatest importance. The state cannot be allowed to use a power to pardon to enable the law to be set aside by permitting it to be contravened with impunity." The prosecution of a person who in exchange for his co-operation has received an undertaking, promise or representation that he would not be charged is capable of amounting to an abuse of process.
Lord Bridge: "However while a pardon can expunge past offences, a power to pardon cannot be used to dispense with criminal responsibility for an offence which has not yet been committed. This is a principle of general application which is of the greatest importance. The state cannot be allowed to use a power to pardon to enable the law to be set aside by permitting it to be contravened with impunity."
1 Cites

1 Citers


 
Robertson v Canadian Imperial Bank of Commerce Times, 16 November 1994; Gazette, 09 November 1994
9 Nov 1994
PC

Banking, Commonwealth
A bank must answer a writ of sub poena ad duces tecum irrespective of whether its client had given consent. Its confidentiality obligation was overridden by the duty to the court.

 
Cinat Co Ltd V. The Attorney General of Hong Kong Co (Hong Kong) [1994] UKPC 40
15 Nov 1994
PC

Commonwealth

[ Bailii ]
 
New Zealand Guardian Trust Co Ltd v Brooks Gazette, 05 January 1995; [1994] UKPC 44
17 Nov 1994
PC

Company, Commonwealth
(New Zealand) Trustees release of company also released directors as joint tortfeasors.
[ Bailii ]
 
C.O. Williams Construction Ltd v Blackman (Minister of Transport and Works) And, The Attorney General Co [1994] UKPC 42
17 Nov 1994
PC

Commonwealth
(Barbados)
[ Bailii ]
 
Carl Brissett V. The Queen Co (Jamaica) [1994] UKPC 45
29 Nov 1994
PC

Commonwealth

[ Bailii ]
 
Commissioner of State Revenue v The Royal Insurance Australia Ltd (1994) 182 CLR 51
7 Dec 1994

Brennan, Toohey and McHugh JJ
Commonwealth, Equity
(High Court of Australia) A payment had been made under statute which was later repealed with retrospective effect. Held: The monies paid under the retrospectively repealed statute had not been paid under a mistake of law at common law.
1 Citers

[ Austlii ]
 
Lawrence Pat Sankar v State of Trinidad and Tobago Independent, 12 January 1995; Times, 28 December 1994; [1994] UK PC 1; [1995] 1 WLR 194; No 22 of 1993; [1994] UKPC 49
16 Dec 1994
PC

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

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