swarb.co.uk - law index

Commonwealth - From: 2000 To: 2000

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

Originally, the tort required the breach to be the result of wilful, deliberate and direct conduct which the defendant knew or hoped would result in a violation of the plaintiff's contractual rights. See for example, Lumley v Gye (1853), 118 E.R. 749, 2 El. & B1.216 (Q.B); and Quinn v Leathem, [1901] A.C.495 (H.L.(I.)).

However, courts soon recognized that intent can also be inferred when the consequences of the conduct were a necessary or reasonable foreseeable result, because "people are presumed to intend the reasonable consequences of their acts": South Wales Miners' Federation v Glamorgan Coal Company, [1905]A.C.239 (H.L.(E.)) at 244. In Posluns v Toronto Stock Exchange and Gardiner (1965), 46 D.L.R. (2d) 210 (Ont. H.C) at 267; affirmed (1966), 53 D.L.R (2d) 193 (C.A.); affirmed [1968] S.C.R. 330, 67 D.L.R. (2d) 165, the court held that liability would attach if the defendant's conduct resulted in the breach of a contract "of which it was or ought to have been aware". The intention to bring about a breach of contract need not be the primary object; it is sufficient if the interference is necessarily incidental to attaining the defendant's primary objective: Fraser v Board of Trustees of Central United Church (1983), 38 O.R. (2d) 97 (H.C.J.) at 103' and Bank of Nova Scotia v Gaudreau (1985), 48 O.R. (2d) 478 (H.C.J.). [41] Intention can also be established when the defendant was reckless or wilfully blind to a breach. The defendant need not have actually known the precise terms of the contract or that his object only could be accomplished through breach of the contract. "If – turning a blind eye – he went about it regardless of whether it would involve a breach, he will be treated just as if he had knowingly procured it": J.G. Fleming, The Law of Torts, 8th Ed. (Sydney: law Book Co., 1992) at 694.

Turning a blind eye may include situations in which the defendant failed to seek advice or employ the means available to obtain the necessary knowledge. For example, in Royal Bank of Canada v Wilton (1995), 165 A.R. 261, D.L.R. (4th) 266 (C.A.), the defendant was uncertain about the enforceability of a contract, had the "means of knowledge" to determine if a legitimate contract existed, but made no efforts to seek advice. This court found the defendant liable because he deliberately chose not to acquire the information, but proceeded on the basis that the contract was unenforceable. Similarly, when there are competing legal interpretations and the defendant adopts an interpretation which will interfere with the plaintiff's rights, the defendant "must at least show that he was advised and honestly believed that he was legally entitled to take that course": Swiss Bank v Lloyds Bank, [1979] Ch.548 at 580 (CH.D.); reversed on other grounds [1982] A.C. 584 (C.A.); affirmed [1982] A.C. 604 (H.L.(E)).
If the defendant acted under a bona fide belief that contractual rights would not be infringed, liability will not be found even though the belief turned out to be mistaken. But for a mistaken belief to be bona fide, rather than the result of recklessness or wilful blindness, some basis for the belief must exist, and some reasonable effort must have been made by the defendant to learn the truth. In British Industrial Plastics Ltd. v Ferguson, [1940] 1 All E.R. 479 (H.L.(E.)), the defendants who had made the effort to seek advice were not found liable even though their belief was described as "illogical". In Z-Mark International Inc. v Leng Novak Inc. (1996), 12 O.T.C. 33 (Gen. Div.), appeal dismissed (1999), 122 O.A.C. 341, a defendant made inquiries and obtained assurances and a warranty. The court found that the defendant had no reason to doubt the assurance or the warranty and therefore the defendant was not knowingly or recklessly indifferent to a breach of contract.

In some cases a distinction is drawn between direct interference, for which the breach must be foreseeable or reasonable consequence of the conduct, and indirect interference, for which the breach must be necessary or substantially certain consequence. See, for example, L.N. Klar, Tort Law, 2nd ed. (Scarborough: Carswell, 1996) at 498 and 507; Fleming, supra, at 694; D.C. Thomson & Co. Ltd. V Deakin ,[1952] Ch. 646 (C.A.); Bank of Nova Scotia, supra; Garry v Sherritt Gordon Mines Ltd., [1988] 1 W.W.R. 289, 45 D.L.R. (4d) 22 (Sask. C.A.); and Atcheson, supra.

[45] As this case involves direct interference, this distinction does not arise. Pocklington, as the director of Gainers, executed the documents to complete the transfer of the 350151 shares to his own company. The transfer caused Gainers to breach s. 12.03(1) of the Master Agreement, which prohibited dispositions of assets without Alberta's consent. Therefore, if the breach was a reasonable or foreseeable consequence of that transfer, or alternatively, if Pocklington completed the transfer recklessly, was wilfully blind to its consequences, or was indifferent as to whether or not it caused a breach, the necessary intent element for the tort will be met."
1 Citers

[ Canlii ]

 
 Martel Building Ltd v Canada; 30-Nov-2000 - 2000 SCC 60; [2000] 2 SCR 860
 
Colonial Fire and General Insurance Company Limited v John Chung (Appeal No 57 of 1999); [2000] UKPC 50
13 Dec 2000
PC
Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hutton, Sir Ivor Richardson
Commonwealth, Insurance
PC (Trinidad and Tobago) The policy holder claimed under fire policies. The insurers said he had started the fires deliberately, and had failed to give sufficient particulars of his claim. The insurers now appealed the reveresal at appeal of the finding that the insured had started the fires himself. Held: The evidence suggested the seat of the fire had only been accessible to someone with keys. The clauses requiring disclosure under the three policies should be read together so that a failure to responde adequately to questions under one policy vitiated the responses under the others. There was in reality one claim. The appeal was upheld.
[ Bailii ] - [ PC ] - [ PC ]
 
Everad Nicholls v Regina Times, 30 January 2001; Appeal No 14 of 2000; [2000] UKPC 52
13 Dec 2000
PC

Criminal Practice, Commonwealth
(St. Vincent & The Grenadines) It was wrong for an appellate court to order a retrial in order allow the prosecution to bring evidence to make good its case which evidence should have been brought at the first trial. The correct approach was to quash the conviction. It was wrong in principle to allow the prosecution to have a second bite at the cherry when it could have got its evidence together the first time around. The first instance judge could have put the issue squarely before the jury, but did not do so. That caused a mistrial.
1 Citers

[ Bailii ] - [ PC ] - [ PC ]

 
 Macquarie Generation v Peabody Resources Ltd; 14-Dec-2000 - [2000] NSWCA 361; [2001] Aust Contract Reports 90-121
 
DA Botany Bay City Council v Remath Investments (2000) 111 LGERA 446; (2000) 50 NSWLR 312; [2000] NSWCA 364
15 Dec 2000

Stein JA, Fitzgerald JA
Commonwealth, administrative
(Supreme Court of New South Wales - Court of Appeal) A statute provided that "A development application shall . . (b) be made in the prescribed form and manner;…and (d) . . be accompanied by an environmental impact statement in the prescribed form". The application and the environmental impact statement were both submitted, but not at the same time. Held. "substantial compliance" with the statutory provisions would be satisfied even where the statement is lodged later than the application itself.
1 Citers

[ Bailii ]
 
Geoffrey Cobham v Joseph Frett Times, 24 January 2001; [2000] UKPC 49; [2001] 1 WLR 1775
18 Dec 2000
PC
Lord Slynn of Hadley Lord Hope of Craighead Lord Scott of Foscote Sir Ivor Richardson The Rt. Hon. Edward Zacca
Commonwealth, Land, Litigation Practice
(British Virgin Islands) Two issues arose. First, what was the consequence of inordinate delay between a judge hearing a case and giving his decision, and secondly, how was the law of adverse possession to be applied in cases of interrupted or intermittent occupation. The parties had had resolved a dispute as to the ownership of land, but the winner moved to England, and the neighbour began acts to retake the land. The action to retake the land was heard, but judgement was not given until over a year after the hearing. Held: There was a suggestion that the judge had misremembered some of the evidence, but his notes were detailed, and there was no evidence that the delay had actually effected the judgement. Such would have to be shown to justify setting aside a judgement on this ground. Similarly the judge's analysis of the law was correct.
"As to demeanour, two things can be said. First, in their Lordships' collective experience, a judge re-reading his notes of evidence after the elapse of a considerable period of time can expect, if the notes are of the requisite quality, his impressions of the witnesses to be revived by the re-reading. Second, every experienced judge, and Georges J was certainly that, is likely to make notes as a trial progresses recording the impressions being made on him by the witnesses. Notes of this character would not, without the judge's permission or special request being made to him, form part of the record on an appeal. They might be couched in language quite unsuitable for public record."
1 Cites

1 Citers

[ Bailii ] - [ PC ] - [ PC ]
 
Dean Cedeno v Kenwin Logan [2000] UKPC 48; Appeal No 34 of 1999)
18 Dec 2000
PC
Lord Hope of Craighead, Lord Cooke of Thorndon, Lord Hutton, Lord Hobhouse of Woodborough, Lord Millett
Commonwealth, Evidence
(Trinidad and Tobago) The defendant appealed conviction and sentence for larceny, based on identification evidence. He said that the magistrate had failed to give proper weight to the need, pace Turnbull, to be careful in accepting identification evidence. The Appeal court had also proceeded without having proper documentation from the hearing. Held: The appeal court had adequate information on which to test the matters in issue. Counsel had also warned the magistrates of the need for care in accepting the identification evidence. Appeal dismissed. In view of the exceptional failures of the prosecution, costs would be awarded to the defendant.
1 Cites

[ Bailii ] - [ PC ] - [ PC ]
 
Culpepper v The State [2000] UKPC 51
20 Dec 2000
PC
Lord Bingham of Cornhill, Lord Steyn, Lord Cooke of Thorndon, Lord Hutton, Sir Anthony Evans
Commonwealth, Crime
PC (Trinidad and Tobago) The defendant appealed against his conviction for murder. An elderly lady had been raped and murdered. Other evidence had been destroyed in a fire at the police station, and the prosecution relied upon fingerprints found on spectacles found near the body. The defendant argued that the very substantial delay of six years after arrest and before trial prejudiced his ability to defend himself, and was an abuse. Held: Stay for abuse for delay must be exceptional, and in this case the defendant had not shown sufficient prejudice to establish abuse. The loss of evidence had prejudiced his ability to defend himself by showing that the samples were not his. However the defendant had had time and opportunity before their loss to establish this and had not done so. Other points raised by the defendant did not affect the decision. Appeal denied.
1 Cites

[ Bailii ] - [ PC ]
 
Arquita v Minister for Immigration and Multi-cultural Affairs [2000] FCA 1889; 106 FCR 46
22 Dec 2000

Weinberg J
Commonwealth, Crime, Immigration
Federal Court of Australia - MIGRATION - refugees - application for protection visa - whether serious reasons for considering commission of serious non-political crime outside country of refuge - application of Art 1F(b) of Convention Relating to the Status of Refugees - meaning of "serious reasons for considering".
1 Citers

[ Austlii ]