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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: 1998 To: 1998

This page lists 48 cases, and was prepared on 20 May 2019.

 
Chakravarti v Advertiser Newspapers (1998) 193 CLR 519
1998

Kirby J
Commonwealth, Defamation
(High Court of Australia ) Kirby J discussed the availability of fair comment as a defece to defamation and said that: "Excessive commentary or misleading headlines which amount to commentary run the risk of depriving the text of the quality of fairness essential to attract the privilege."
1 Citers


 
Attorney-General v Prince and Gardner [1998] 1 NZLR 262
1998

Richardson P
Professional Negligence, Health Professions, Commonwealth
(New Zealand Court of Appeal) Claims in negligence were made by the natural mother of a child who had been adopted, and also by the child, now an adult, complaining of the process followed in the adoption and also of failure to investigate a complaint made about his treatment when the child was still a child. Held: The social worker's function is one of independent professional judgment, the purpose of which is to facilitate the Family Court's determination of the application. The legislative environment is of considerable relevance to the dual issues of proximity and policy which drive the conventional enquiry into whether it is fair, just and reasonable to impose a duty of care in a novel situation. The court struck out the first claim as incompatible with the adoption regime laid down by statute in New Zealand, but by a majority, allowed both the claims under the second head to proceed to trial.
1 Citers


 
Oshlack v Richmond River Council [1998] HCA 11
1998


Commonwealth, Costs
(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.
1 Citers


 
Paramananthan v Minister for Immigration and Multicultural Affairs [1998] 1693 FCA
1998


Commonwealth

1 Citers


 
Zakay v Zakay [1998] 3 FCR 35
1998

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


 
Coogi Australia Pty Ltd v Hysport International Pty Ltd [1998] FCA 10; (1998) 41 IPR 593
1998

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

[ Austlii ]
 
Kartinyeri v Commonwealth of Australia (1998) 156 ALR 300
1998


Commonwealth, Natural Justice
(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."
1 Citers


 
Daniels v Thompson [1998] 3 NZLR 22
1998

Thomas J
Commonwealth, Damages
(Court of Appeal of New Zealand) Thomas J said: "Compensation recognises the value attaching to the plaintiff's interest or right which is infringed, but it does not place a value on the fact the interest or right ought not to have been infringed at all".
1 Citers


 
Commonwealth of Australia v WMC Resources Ltd (1998) 194 CLR 1
1998


Damages, Commonwealth
A permit to explore for petroleum may be "property" for the purposes of compulsory acquisition.
1 Citers



 
 Globe Holdings Ltd v Floratos; 1998 - [1998] 3 NZLR 331

 
 Regina v Lee; 1998 - (1998) 195 CLR 594; (1998) 157 ALR 394; (1998) 16 Leg Rep C1

 
 Mitchell v The Queen; PC 24-Jan-1998 - Times, 24 January 1998; [1998] UKPC 1; [1998] AC 695
 
D. Durnham V. S.S.V. Paratain (Reasons) Co (Mauritius) [1998] UKPC 55
29 Jan 1998
PC

Commonwealth

[ Bailii ]
 
Hurnam v S S V Paratian [1998] UKPC 2; [1998] AC 707
29 Jan 1998
PC

Commonwealth, Defamation
(Mauritius)
[ Bailii ]

 
 Gibbs and others v Rea; PC 29-Jan-1998 - Times, 04 February 1998; [1998] UKPC 3; [1998] AC 786
 
Electrotec Services Limited v Issa Nicholas (Grenada) Limited (2) [1998] UKPC 7
16 Feb 1998
PC

Commonwealth
(Grenada)
1 Cites

[ Bailii ]
 
Matadeen and others v M G C Pointu and others (Mauritius) [1998] UKPC 9; [1999] 1 AC 98; [1998] 3 WLR 18
18 Feb 1998
PC
Lord Hoffmann
Commonwealth, Constitutional, Discrimination
It is a well recognised canon of construction that domestic legislation, including the Constitution, should if possible be construed so as to conform to international instruments to which the state is party. Lord Hoffmann said: "of course persons should be uniformly treated unless there is some valid reason to treat them differently . . The reasons for not treating people uniformly often involve . . questions of social policy" and "treating like cases alike, and unlike cases differently is a general axiom of rational behaviour." and "Is it of the essence of democracy that there should be a general justiciable principle of equality? . . Their Lordships do not doubt that such a principle is one of the building blocks of democracy and necessarily permeates any democratic constitution. Indeed, their Lordships would go further and say that treating like cases alike and unlike cases differently is a general axiom of rational behaviour. It is, for example, frequently invoked by the courts in proceedings for judicial review as a ground for holding some administrative act to have been irrational."
1 Cites

1 Citers

[ Bailii ]
 
Village Cay Marina Limited v John Acland and others [1998] UKPC 11
4 Mar 1998
PC
Lord Lloyd of Berwick, Lord Nolan, Lord Hoffmann, Lord Hope of Craighead, Sir Andrew Leggatt
Commonwealth, Landlord and Tenant, Company
(British Virgin Islands)
[ Bailii ]
 
Forbes v Chandrabhan Maharaj [1998] UKPC 13
16 Mar 1998
PC

Commonwealth
(Trinidad and Tobago)
[ Bailii ]
 
Bull v the Queen [1998] 1 WLR 1523; [1998] UKPC 20
23 Mar 1998
PC
Lord Steyn
Commonwealth, Crime
(Belize) Judges in Belize should sum up the defence of provocation in a murder case in the terms of section 118, ignoring the ballast of the old law.
Criminal Code of Belize 118
1 Citers

[ Bailii ]
 
National Commercial Bank Jamaica Limited v Guyana Refrigerators Limited [1998] UKPC 14
23 Mar 1998
PC

Commonwealth
(Jamaica)
[ Bailii ]
 
Barrow v The State Times, 31 March 1998; [1998] UKPC 16; [1998] AC 846
23 Mar 1998
PC

Criminal Practice, Commonwealth
(Trinidad and Tobago) If the credibility of a defendant is an issue, a good character direction is always relevant and should be given. However, there is no general duty on a judge to inquire into the issue of the accused's character if this has not been raised by the defence.
1 Citers

[ Bailii ]
 
Ibanez v the Queen (Belize) [1998] UKPC 18
3 Apr 1998
PC

Commonwealth, Crime

[ Bailii ]
 
Aubry v Editions Vice-Versa Inc [1998] 1 SCR 591; (1998), 157 DLR (4th) 577; 78 CPR (3d) 289; (1998) 50 CRR (2d) 225
9 Apr 1998


Commonwealth, Media
(Supreme Court of Canada) Publication in a magazine of an unauthorised photograph of a 17 year old girl sitting on the steps of a public building had violated her right to respect for private life conferred under Article 5 of the 'Quebec Charter' of Human Rights and Freedoms.
1 Citers

[ Canlii ]
 
P V Narashimo Rao v State [1998] INSC 229
17 Apr 1998


Commonwealth, Constitutional, Crime
(Supreme Court of India) Members of Parliament were protected by privilege from prosecution for bribery in respect of voting in parliamentary proceedings.
1 Citers

[ LII of India ]
 
Pasqual Bull V. The Queen (Reasons) Co (Belize) [1998] UKPC 56
27 Apr 1998
PC

Commonwealth

[ Bailii ]

 
 Kemper Reinsurance Company v The Minister of Finance and others; PC 5-May-1998 - Times, 18 May 1998; [2000] 1 AC 1; [1998] UKPC 22
 
Caterham Car Sales and Coachworks Ltd v Birkin Cars (Pty) Ltd and Another [1998] ZASCA 44; 1998 (3) SA 938 (SCA); [1998] 3 All SA 175 (A)
27 May 1998

Smalberger, Harms, Marais, Schutz, Plewman JJA
Commonwealth, Intellectual Property
(South Africa: Supreme Court of Appeal) the plaintiff sought to prevent the defendant, as it claimed, passing off their cars as its own. Held: On the facts, the case failed. However, the only component of goodwill of a business that can be damaged by means of a passing-off is its reputation and it is for this reason that the first requirement for a successful passing-off action is proof of the relevant reputation.
1 Citers

[ Saflii ]
 
W97/164 v Minister for Immigration and Multicultural Affairs [1998] AATA 618
10 Jun 1998

Mathews J
Commonwealth
Austlii (Administrative Appeals Tribunal - Australia) IMMIGRATION AND CITIZENSHIP - application for a protection visa - whether applicant excluded from protection under the Refugees Convention by reason of Article 1F(a) - applicant, while a member of the Burmese Navy, participated in events in 1988 which lead to death of protesters - applicant did not kill anyone - whether "serious reasons for considering" that applicant has committed a crime against humanity - meaning of "serious reasons for considering" - discussion of what constitutes a "crime against humanity" - what is meant by requirement that acts be committed "against any civilian population" - must the act have been committed during hostilities - finding that a crime against humanity was committed by others - was the applicant an accomplice - mental element required of an accomplice - defence of obedience to higher orders
Mathews J said: "The article provides a direction to decision-makers in words that are clear of meaning and relatively easy of application. To re-state this test in terms of a standard of proof is unnecessary and may in some cases lead to confusion and error." and "I find it difficult to accept that the requirement that there be 'serious reasons for considering' that a crime against humanity has been committed should be pitched so low as to fall, in all cases, below the civil standard of proof. The seriousness of the allegation itself and the extreme consequences which can flow from an alternative finding upon it would, in my view, require a decision-maker to give substantial content to the requirement that there be 'serious reasons for considering' (emphasis added) that such a crime has been committed."
1 Citers

[ Austlii ]
 
Liman v Ang Swee Chuan [1998] UKPC 27
22 Jun 1998
PC

Commonwealth
(Brunei Darussalam)
[ Bailii ]
 
Gardener and others v Edward Lewis [1998] UKPC 26
22 Jun 1998
PC

Land, Commonwealth
(Jamaica)
[ Bailii ]
 
Saunders v Henry Adderley Times, 20 July 1998; [1998] UKPC 29; [1999] 1 WLR 884
24 Jun 1998
PC

Litigation Practice, Commonwealth
(Bahamas) In the absence of other recorded reasons for a decision of an appellate court a contemporaneous note taken by junior counsel and exhibited on affidavit would be taken as evidence of the reasons given. When the question is what inferences are to be drawn from specific facts, an appellate court is in as good a position to evaluate the evidence as the trial judge.
1 Citers

[ Bailii ]

 
 De Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others; PC 30-Jun-1998 - [1998] UKPC 30; [1999] 1 AC 69; Appeal No 42 of 1997; [1998] 3 WLR 675; 4 BHRC 563
 
Manderson-Jones v Societe Internationale De Telecommunications Aeronautiques (Sita) [1998] UKPC 33
27 Jul 1998
PC

Commonwealth, Legal Professions
(Jamaica)
[ Bailii ]
 
Roussel UCLAF Australia Pty Limited and others v Pharmaceutical Management Agency Limited [1998] UKPC 36
30 Jul 1998
PC
Lord Lloyd of Berwick, Lord Hoffmann, Lord Hope of Craighead, Lord Hutton, Sir John Balcombe
Commonwealth, Administrative
(New Zealand) Allegation that a committee had acted unreasonably in setting a price for pharmaceuticals.
[ Bailii ]
 
Stafford and others v The State (Note) [1998] UKPC 35; [1999] 1 WLR 2026
30 Jul 1998
PC
Lord Hope of Craighead
Commonwealth, Criminal Practice
PC (Trinidad and Tobago) Where the matter at issue is the exercise of a discretion by a trial judge. "It has been said many times that it is not the function of the Judicial Committee to act as a second Court of Criminal Appeal. Save in exceptional circumstances, the Judicial Committee will not embark upon a rehearing of issues such as the weight which may properly be given to the evidence or the inferences which may properly be drawn from it. These are matters which will be left to the Court of Appeal. Its decision as to whether the evidence was sufficient to support the conviction will not normally be reviewed by this Board." and it should not normally interefere with that exercise.
1 Citers

[ Bailii ]

 
 White v The Queen; PC 10-Aug-1998 - Times, 25 September 1998; [1998] UKPC 38; [1999] AC 210
 
Stefan Hanny and Another v Roy Lewis and Others [1998] NSWSC 385; 1893/98; (1998) BPR 97
27 Aug 1998


Commonwealth, Land
(Supreme Court of New South Wales)
[ Austilii ]
 
West Coast Air Limited v Gambia Civil Aviation Authority and others [1998] UKPC 39
15 Sep 1998
PC

Contract, Commonwealth
(the Gambia)
[ Bailii ]
 
Trevor Nathaniel Fisher v The Minister of Public Safety and Immigration and Others (No 2) [1998] UKPC 40; [1999] 2 WLR 349
5 Oct 1998
PC
Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Hoffmann, Lord Hope of Craighead, Lord Hutton
Commonwealth, Constitutional
PC (The Bahamas) The applicant had been convicted of murder and sentenced to death. His case was pending before the Inter-American Commission on Human Rights. He appealed a second time to the board, saying the circumstances and conditions of his detention made the execution unlawful, that the penalty was unconstitutional, and that he had a legitimate expectation that he would be allowed to hear the result of his application. Held: The Commission had itself delayed, and the case could not be allowed to wait indefinitely. It was not part of the constitution that the sentence of the court must await determination by the Commission. Public law points should not normally be raised in association with constructional challenges. The board's determination of what was a proper maximum delay before execution in Pratt remained applicable. The appeal failed (Lord Slynn of Hadley and Lord Hope of Craighead dissenting)
1 Cites

1 Citers

[ Bailii ] - [ PC ]
 
Attorney General of Antigua and Barbuda and others v Cuthwin Lennard Lake [1998] UKPC 41
8 Oct 1998
PC

Commonwealth
(Antigua and Barbuda)
[ Bailii ]
 
Williams v The Queen [1998] UKPC 45
23 Nov 1998
PC
Lord Browne-Wilkinson, Lord Steyn, Lord Hoffmann, Lord Hobhouse of Woodborough, Lord Millett
Commonwealth, Crime
(Saint Vincent and the Grenadines) The defendant was convicted of having killed his wife. He had killed his children but faced no charge on that issue. He complained of the admission of evidence showing that he had killed the children. In his evidence he said his wife had killed them. His defence was of diminished responsibility, but the judge withdrew that defence from the jury, leaving only provocation. Held: The expert medical evidence obtained since the trial was of sufficient standard to be apparently credible, and the matter was remitted for it to be considered. It had not been wrong to charge only one capital murder.
1 Cites

[ Bailii ]

 
 Ramstead v The Queen; PC 2-Dec-1998 - Times, 03 December 1998; [1998] UKPC 47; [1999] 2 WLR 698; [1999] 2 AC 92
 
Mohammed (Allie) v The State Times, 10 December 1998; [1998] UKPC 49; [1999] 2 AC 111
9 Dec 1998
PC
Lord Steyn
Criminal Evidence, Commonwealth
(Trinidad and Tobago) A failure to inform a suspect before interview of his right to see a lawyer did not make the interview inadmissible despite the constitutional infringement. It was not as serious as a failure to give fair trial. The judge's discretion was complete. Not only had the judge been wrong to allow prosecuting counsel to make any speech at all (the defence having called no evidence), but in prosecuting counsel's speech: "The prosecutor informed the jury of his view that the defendant was plainly guilty. He made emotional appeals for sympathy for the deceased and his family. He demanded that the jury should not let the defendant 'get away with it". He repeatedly 'urged' the jury to convict. His speech contained many inflammatory passages. The prosecutor had commenced his speech by saying 'I act as a minister of justice.' The contrary is the case: the prosecutor made a wholly improper speech. The judge's interventions during the speech were perfunctory. And in his summing up the judge did not direct the jury to disregard the speech. The judge told the jury in general terms not to be swayed by emotion but he said nothing to counteract the prejudice which the speech of the prosecutor was calculated to generate in the minds of the jurors."
1 Citers

[ Bailii ]
 
Warren v the State (Trinidad and Tobago) [1998] UKPC 48
9 Dec 1998
PC

Commonwealth

[ Bailii ]
 
Purmasing v the National Transport Corporation [1998] UKPC 50
9 Dec 1998
PC

Commonwealth
(Mauritius)
[ Bailii ]
 
Christopher Bethell V. The State Reasons (Trinidad and Tobago) [1998] UKPC 57
10 Dec 1998
PC

Commonwealth

[ Bailii ]
 
Bethel v the State [1998] UKPC 51
10 Dec 1998
PC

Commonwealth, Crime
(Trinidad and Tobago)
[ Bailii ]
 
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