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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: 2002 To: 2002

This page lists 54 cases, and was prepared on 20 May 2019.

 
Ontario Human Rights Commission v Brockie (2002) 22 DLR (4th) 174
2002


Commonwealth, Human Rights
(Ontario) A Christian printer complained that he was required to offer services to an homosexual group. The court considered that argument that it was a human rights breach to ask a person to promote what they believe to be a sin, namely sexual relations between unmarried persons. Held: He was required to offer his services, but not to print leaflets which actively promoted an homosexual lifestyle and which was dismissive of Christian beliefs. It was not an answer to say that those who hold the relevant religious belief should not be free to offer services to sections of the public unless prepared to act inconsistently with the belief. Such an approach would lead to withdrawal from society of those holding it, which should be neither the aim nor function of human rights jurisprudence. It would risk the replacement of one set of predominant orthodox views with another. A careful balancing exercise is required.
1 Citers


 
Denison Mines Limited v Ontario Hydro [2002] 56 O.R (3d) 181
2002

Morden J
Commonwealth, Arbitration
(Ontario Court of Appeal) That court was asked whether it had jurisdiction to consider a ruling that the parties had agreed to exclude the court's jurisdiction, after the court of first instance had ruled that there was such an agreement. The lower court had refused permission to appeal. Held: Morden J said: "As I have said, the non-appealability of orders refusing leave is the general rule . . the courts have engrafted onto this general rule an exception which is applicable where the judge mistakenly declines jurisdiction. Hillmond referred to and quoted the following passage from the reasons of Cartwright J for the Supreme Court of Canada in Canadian Utilities Ltd v Deputy Minister of National Revenue:
"It appears to me to have been consistently held in our courts and in the courts of England that where a statute grants a right of appeal conditionally upon leave to appeal being granted by a specified tribunal there is no appeal from the decision of that tribunal to refuse leave, provided that the tribunal has not mistakenly declined jurisdiction but has reached a decision on the merits of the application.
Denison relies upon this exception in the present case. It submits that Macdonald J erred in concluding that the arbitration agreement dealt with the appeals on questions of law (s.45(1) of the Arbitration Act 1991), that is, that the parties had "contracted out" of a right of appeal and, accordingly, erred in declining jurisdiction.
I appreciate that in many cases the meaning of "jurisdiction" can be fraught with difficulty. In the present case, however, I think that the principle stated by Cartwright J can be applied with some degree of confidence. He distinguished between declining jurisdiction and reaching a decision on the merits of the application. In the present case, the parties did not argue the merits of the application before Macdonald J. By agreement they argued whether or not Macdonald J had jurisdiction to grant leave to appeal. If she had decided that she had jurisdiction, they would have continued the hearing of the application on the merits. I think that the exception applies."

 
Classic International Pty Ltd v Lagos [2002] NSWSC 115
2002

Palmer J
Commonwealth, Equity, Contract
(New South Wales Supreme Court) "I am satisfied that both parties believed that the agreement for lease would validly take effect according to its terms and that had they known of the substantial variation which the Retail Leases Act 1994 would impose upon the agreement, they would not have entered into it" and "42. I do not need to consider the vexed question of whether the mistake in the present case is one of fact or one of law. As to whether, in the law of Australia, the doctrine of common "mistake applies to" a mistake of law, I need do no more that set out the following passage from Cheshire and Fifoot’s Law of Contract 8th Aust Ed., para 12.8: "Operative mistake traditionally has been confined to mistakes of fact and not of law. This distinction has always been blurred and has been notoriously difficult to apply. It appears that equity did not draw a clear line between mistakes of fact and law. If there was such a rule, it was often honoured in the breach. In Western Australia the law/fact distinction has been abolished by legislation (with certain safeguards). The whole question has now almost certainly been laid to rest by the decision of the High Court in David Securities Pty Ltd v Commonwealth Bank (1992) 175 CLR 353. In that case the distinction between mistake of law and mistake of fact was rejected in the light of a very considerable body of judicial and academic criticism of the distinction. . . . the rule precluding recovery of moneys paid under a mistake of law should be held not to form part of the law in Australia."
1 Citers


 
Hers v The Attorney General of Trinidad and Tobago and Chaguaramas Development Authority Yvonne Cross and Wilhemina Hoyte v The Attorney General of Trinidad and Tobago and Chaguaramas Development Authority
22 Jan 2002
PC

Commonwealth
PC Trinidad and Tobago
[ Rosie Blanchfield and ' target-'_ext'>PC ]
 
Rosie Blanchfield and others v The Attorney General of Trinidad and Tobago and Chaguaramas Development Authority [2002] PC 1
22 Jan 2002
PC
Lord Nicholls of Birkenhead Lord Mackay of Clashfern Lord Hobhouse of Woodborough Lord Millett Sir Christopher Slade
Land, Constitutional, Commonwealth
(Trinidad and Tobago) In the second world war, land was compulsorily purchased and let to the USA. In 1977 it was returned by the USA, but then vested in a public authority. The applicants said it should revert to them as descendants of the original owners. They said the purchase was for so long as the land was required for the purpose for which it was used, but the original owners had been compensated. There was no express reverter clause, and no law of reverter known to the law of Trinidad and Tobago. English highway law however was settled that if land was acquired for a highway, but ceased to be needed, it reverted to owners despite the absence of any express provision. Here, however the land had been vested in the Crown, and no reverter could therefore be implied.
Chaguaramas Development Authority Act 1972
[ PC ] - [ Bailii ] - [ PC ]
 
Universal Leasing and Finance Limited v Montego Vacations Limited (Appeal No 33 of 2000) [2002] UKPC 2
24 Jan 2002
PC
Lord Hope of Craighead Lord Browne-Wilkinson Lord Nolan Lord Scott of Foscote Sir Christopher Slade
Commonwealth, Land, Contract
PC (Jamaica) The case concerned a contract for the sale of land. No completion date had been specified, nor that vacant possession should be given. Held: Evidence supported the suggestion that vacant possession had been agreed between the parties. The case was remitted for consideration of the form in which specific performance was to be ordered.
[ PC ] - [ PC ] - [ PC ] - [ PC ] - [ Bailii ]

 
 Christchurch Pavilion Partnership No 1 and Others v Deloitte and Touche Tohmatsu Trustee Company Limited; PC 4-Feb-2002 - [2002] UKPC 4
 
Thakur Persad Jaroo v Attorney-General of Trinidad and Tobago Times, 06 February 2002; Appeal No 54 of 2000; [2002] UKPC 5; [2002] 1 AC 871
4 Feb 2002
PC
Lord Hope of Craighead, Lord Browne-Wilkinson, Lord Scott of Foscote, Sir Christopher Slade and Sir Andrew Leggatt
Constitutional, Police, Commonwealth
(Trinidad and Tobago) The appellant sought a declaration that his constitutional rights had been infringed. He had bought a car. When told it may be stolen, he took it to the police station, but after he heard nothing and it was not returned. He alleged that he had been deprived of his property in breach of the constitution. Only later did the police say it was still required as potential evidence. He claimed that the car had been held other than under due process. Held: To justify the continued detention of the car, the police had to show that there were reasonable grounds for its original and continuing retention. There were common law rights, by way of an originating motion, which the claimant could have exercised to make his complaint. He should take the method of constitutional challenge only in an exceptional case. This was not one, and the continued action was an abuse of process. Lord Hope of Craighead: "Their Lordships wish to emphasise that the originating motion procedure under section 14(1) is appropriate for use in cases where facts are not in dispute and questions of law only are in issue. It is wholly unsuitable in cases which depend for their decision on the resolution of disputes as to fact. Disputes of that kind must be resolved by using the procedures which are available in the ordinary courts under the common law."
Constitution of Trinidad and Tobago 4(a)
1 Cites

1 Citers

[ PC ] - [ Bailii ]

 
 Ancare New Zealand Limited v Fort Dodge New Zealand and Nufarm Limited; PC 6-Feb-2002 - Appeal No 32 of 2001; [2002] UKPC 8

 
 Regina v Regan; 14-Feb-2002 - 2002 SCC 12; [2002] 1 SCR 297; 201 NSR (2d) 63; 209 DLR (4th) 41; 161 CCC (3d) 97; 49 CR (5th) 1
 
Hamilton v Papakura District Council and Watercare Services Ltd Times, 05 March 2002; [2002] 3 NZLR 308; [2002] BCL 310; Appeal No 57 of 2000; [2002] UKPC 9
28 Feb 2002
PC
Lord Nicholls of Birkenhead, Lord Hutton, Lord Rodger of Earlsferry, Sir Andrew Leggatt and Sir Kenneth Keith
Utilities, Agriculture, Contract, Negligence, Nuisance, Commonwealth
(New Zealand) The claimants sought damages. The water authority had put in the water supply herbicides which damaged the crops they sought to grow, and which were watered from the supply. The plants were particularly sensitive to such chemicals. Held: Dismissing the company's appeal, the water supplier had a general duty to supply water to accepted standards. The water company had done this. The claimant had failed to show that it had brought its particular needs to the attention of the water company, and a claim in contract failed. The Ashington Piggeries case did not apply because in this case there was one supply of one product. Negligence could not be established without accepting a higher duty to some consumers. No such duty was established. The claims in nuisance, of having allowed the escape of materials brought onto their land, failed because there was no forseeability of this damage.
Sale of Goods Act 1893 14
1 Cites

[ PC ] - [ (1) G.J. Hamilton and ' target-'_ext'>PC ] - [ Bailii ] - [ PC ]
 
Regina v Hughes [2002] UKPC 12; [2002] 2 AC 259
11 Mar 2002
PC
Lord Bingham of Cornhill Lord Hutton Lord Hobhouse of Woodborough Lord Millett Lord Rodger of Earlsferry
Constitutional, Criminal Sentencing, Human Rights, Commonwealth
(Saint Lucia) Having been convicted of murder, the defendant was made subject to the mandatory death penalty applied under St Lucia law. He appealed successfully on the basis that the constitution of St Lucia protected him from inhuman or degrading punishment or treatment under article 5, and the Crown appealed to the Privy Council. Held: The mandatory death penalty is indeed to be regarded as inhuman or degrading punishment or treatment. The committee which exercised the prerogative of mercy was not an independent tribunal sufficient to save the procedure. The Crown's appeal was dismissed, and the case remitted for re-sentence.
Criminal Code of Saint Lucia 1992 172 - Saint Lucia Constitution Order 1978 (SI 1978 No 1901) 5
1 Cites

1 Citers

[ PC ] - [ Bailii ]
 
Michael Adams and Frederick Lawrence v Regina (Appeal No 14 of 2001)
18 Mar 2002
PC

Commonwealth, Criminal Practice
PC (Jamaica) The defendants appealed against convictions for non-capital murder. Because of delays, the defendants had served almost the full minimum sentence. Held: The trial judge had heard a plea of no case to answer before the jury. This was incorrect. The court of appeal had applied the proviso to maintain the convictions, and an appellate court should be careful before overturning such a decision, but the Board could not say that the defendants would inevitably have been convicted. The convictions were overturned.
1 Cites

[ PC ]
 
Fa'afete Taito v The Queen and James McLeod Bennett and 10 others v The Queen (Consolidated Appeals) [2002] EWPC 14; [2002] UKPC 15
19 Mar 2002
PC
Lord Bingham of Cornhill Lord Steyn Lord Hope of Craighead Lord Hutton Lord Rodger of Earlsferry
Commonwealth, Crime, Legal Aid, Human Rights
PC (New Zealand) In each case the defendants had sought and been refused legal aid to appeal against some aspect of their conviction. The system for deciding upon whether they should be granted legal aid did not allow for their participation. They also alleged that the full appeal was then heard again without their involvement and on the basis that since the application for legal aid had been refused, the case was without merit, and the appeal itself was also refused. Held: The system did not properly implement that statute which had been brought in to correct defects in the court practice. Varying orders were made for the several individual cases.
[ PC ] - [ PC ] - [ Bailii ] - [ PC ]
 
Re Doran Constructions Pty Ltd (in liq) [2002] NSWSC 215; 168 FLR 116; (2002) 194 ALR 101; 20 ACLC 909
27 Mar 2002

Campbell J
Commonwealth, Insolvency, Legal Professions
Austlii (Supreme Court of New South Wales) CORPORATIONS - winding up - liquidator's examination - circumstances in which liquidator entitled to ask questions relating to legal advice given to company in liquidation - EVIDENCE - liquidator's examinations - whether evidence given at is governed by Evidence Act 1995 (NSW) - EVIDENCE - legal professional privilege - circumstances in which joint retainer of solicitor exists - EVIDENCE - procedure to adopt when deciding whether legal professional privilege does not exist - EVIDENCE - waiver of client legal privilege - disclosure of substance of advice - disclosure made knowingly and voluntarily - disclosure by agent or employee authorised to make it - disclosure made under compulsion of law
1 Citers

[ Austlii ]
 
Jerome v Kelly (Inspector of Taxes) Times, 19 April 2002
15 Apr 2002
ChD
Mr Justice Park
Commonwealth, Capital Gains Tax
The land was owned by members of family in undivided shares. Contracts were exchanged for its sale, but the land was divided before the sale was completed. Part of the land had come to be in the ownership of trusts in Bermuda. The Inspector sought to assess the British resident taxpayer with the chargeable gain acquired by the Bermudan Trustees. Held: The provisions of s28 which deemed gains to have been acquired by others could not be used to hold a person being liable to gains tax on a gain which he did not make, and to leave other unconnected persons who had made a gain free of the tax.
Taxation of Chargeable Gains Act 1992 28 60 - Capital Gains Tax Act 1979 27(1)
1 Cites

1 Citers



 
 Randall v The Queen; PC 16-Apr-2002 - Times, 24 April 2002; [2002] UKPC 19; (Appeal No 22 of 2001); [2002] 1 WLR 2237; [2002] 2 Crim App R 267
 
Burke v LFOT Pty Ltd 187 ALR 612; [2002] HCA 17
18 Apr 2002

Gaudron ACJ, McHugh, Kirby, Hayne, Callinan JJ
Commonwealth, Damages, Equity, Natural Justice
(High Court of Australia) Trade and commerce - Damages - Equitable contribution - Liability to pay damages under ss 75B, 82, 87 of Trade Practices Act 1974 (Cth) for breach of s 52 of the Act - Whether solicitor who gave negligent advice should contribute to the loss suffered by his client as a consequence of another's misrepresentation which loss could have been avoided by careful advice by the solicitor - Whether equitable maxims prevent requirement of contribution.
Equity - Equitable contribution - Scope of - Requirement of co-ordinate liability - Whether solicitor who gave negligent advice should contribute to loss suffered by client as a consequence of another's representation where the loss could have been avoided by careful advice by the solicitor.
Contribution - Equitable contribution - Scope of and availability - Co-ordinate liability - Requirements of - Whether compatible with the obligations imposed by Trade Practices Act 1974 (Cth) for breach of s 52 of the Act.
Words and phrases - "co-ordinate liability", "natural justice".
1 Citers

[ Austlii ]
 
Progressive Enterprises Limited v Foodstuffs (Auckland) Limited and The Commerce Commission (Appeal No 6 of 2002)
29 Apr 2002
PC

Commonwealth
PC New Zealand
[ PC ] - [ PC ] - [ Progressive Enterprise' target-'_ext'>PC ] - [ PC ]
 
Felix Augustus Durity v The Attorney General of Trinidad and Tobago [2002] UKPC 20; Appeal No 52 0f 2000
13 May 2002
PC
Lord Nicholls of Birkenhead Lord Hutton Lord Hobhouse of Woodborough Lord Millett Lord Scott of Foscote
Crime, Commonwealth, Constitutional, Limitation, Human Rights
PC (Trinidad and Tobago) The applicant had been a magistrate, and challenged the application of a limitation period to his claim. He had been wrongfully suspended from his work, and the proceedings had been delayed and protracted. No effective progress having been made, he sought to challenge the original suspension. The court refused to hear the application as debarred by limitation. He said that the limitation period should have no application in a case involving a constitutional challenge and infringement of his human rights. Held: Where the state became liable in tort, it was appropriate that limitation defences available to tortfeasors should also be available to the state, but the considerations on constitutional proceedings are different, and the limitation period did not apply. As a magistrate, making a decision in good faith, even if incorrectly, to allow that mistake to be charged as misconduct was to impugn the independence of the judiciary. The failure to pursue the case over a long period of time, with the magistrate suspended amounted to an abuse of power.
[ Bailii ] - [ PC ]
 
Clinton Forbes v The Attorney General of Trinidad and Tobago [2002] UKPC 21
15 May 2002
PC

Commonwealth, Crime
PC Trinidad and Tobago
[ PC ] - [ Bailii ] - [ PC ]
 
Half Moon Bay Limited v Crown Eagle Hotels Limited (Appeal No 31 of 2000); [2002] UKPC 24; (Appeal No 31 of 2000)
20 May 2002
PC
Lord Nicholls of Birkenhead, Lord Browne-Wilkinson, Lord Millett, Sir Murray Stuart-Smith, Sir Christopher Staughton
Registered Land, Land, Commonwealth
Strips of land lay between the two hotels operated by the parties. Restrictive covenants had been entered into by the respondent's predecessors in title. The claimant brought proceedings to enforce the restrictions on the use of the land. An earlier case had been compromised on condition that the covenants be entered on the registers. This had not happened, and the land had been sold on twice to the present owners. Held: Questions of annexation only arose on a transfer of the property benefited. The burden of a covenant does not run with freehold land at common law. A negative covenant may be enforced against a successor in title in equity, but only for the benefit of land of the covenantee or his successor in title. An original covenantee, therefore, cannot enforce such a covenant against a successor in title of the covenantor unless he retains the ownership of land which is capable of enjoying the benefit of the covenant. Jamaica adopted a Torrens style for land registration. The registration of the covenants after the land had been transferred was ineffective, since they ceased to bind the land on transfer unless registered.
Restrictive Covenants (Discharge and Modification) Act 1960 (Jamaica)
1 Cites

[ PC ] - [ PC ] - [ PC ] - [ Bailii ]
 
Philip Joshua Rahming v The Queen [2002] UKPC 23; (Appeal No 33 0f 2001)
20 May 2002
PC
Lord Slynn of Hadley Lord Steyn Lord Hutton Lord Hobhouse of Woodborough Lord Rodger of Earlsferry
Commonwealth, Crime, Evidence
(Bahamas) The case was an appeal against a conviction for murder on the basis of the incorrect direction from the judge as to manslaughter and murder, and the failure to give a lies direction. Held: The failure to bring the defendant before a court within 48 hours did not affect the weight of the evidence. The prosecution had not asked the jury to rely upon the fact of the defendant's lies. The judge had failed to distinguish between acts intending causing unlawful bodily harm and those intending causing death. He left the jury with the impression that a reckless killing could suffice for murder. The conviction for murder was quashed and one for manslaughter substituted.
Evidence Act 1996 (Bahamas) 20
1 Cites

[ PC ] - [ PC ] - [ Philip Joshua Rahming ' target-'_ext'>PC ] - [ Bailii ] - [ PC ]
 
Union Bank of Jamaica Limited v Dalton Yap (Appeal No 17 of 2001); [2002] UKPC 26; (Appeal No 17 of 2001)
28 May 2002
PC

Commonwealth
PC Jamaica
[ PC ] - [ PC ] - [ PC ] - [ Bailii ]
 
Man O'War Station Limited and Huruhe Station Limited v Auckland City Council (formerly Waiheke County Council) and H M Attorney General for New Zealand (Judgment No 1) [2002] UKPC 28
29 May 2002
PC

Commonwealth, Land, Natural Justice
PC (New Zealand) It was unreal to suggest that a prior past professional association between a witness and the judge gave rise to a danger of partiality.
1 Citers

[ PC ] - [ Bailii ]

 
 Lloyds TSB Bank plc v Clarke (Liquidator of Socimer International Bank Limited) and Chase Manhattan Bank Luxembourg S A; PC 29-May-2002 - Appeal No 41 of 2001; [2002] UKPC 27; [2002] 2 All ER (Comm) 992
 
Leslie Tiwari v The State (Appeal No 76 of 2001) [2002] UKPC 29; (Appeal No 76 of 2001)
29 May 2002
PC
Lord Nicholls of Birkenhead Lord Hutton Lord Millett Lord Scott of Foscote Sir Andrew Leggatt
Crime, Commonwealth, Evidence
(Trinidad and Tobago) The defendant appealed convictions for rape and other offences based upon identification evidence. He had not been represented at the trial. He had not been warned of his freedom to call witnesses. Held: Where a defendant was unrepresented, the court should warn him of the advisability of having professional representation. Witnesses whose evidence might have been called by him would have given admissible and relevant evidence. The case was remitted for that evidence to be admitted, and the conviction re-examined by the Court of Appeal of Trinidad and Tobago. Time spent in prison after a notice of appeal has been lodged with the Board, should count toward time served.
1 Cites

1 Citers

[ PC ] - [ PC ] - [ Leslie Tiwari v. The S' target-'_ext'>PC ] - [ Bailii ] - [ PC ]
 
Kinoo Sons Limited v Bibi Sarah Hossen Abdool and The Conservator of Mortgage Appeal No 55 of 2001; [2002] UKPC 30
11 Jun 2002
PC

Commonwealth, Land, Contract
(Mauritius) - Plots of land had been inherited, and were now in the joint ownership of 20 people. Some sought a sale. A sale was ordered, and the resulting award challenged. The contract provided for a right of substitution for the purchasers of the objectors to the sale, but is was suggested that this was merely a referral to a statutory right which would not apply in this case. Held: A right of substitution is no different from a right of pre-emption, and could be contractual in nature. The right of substitution formed part and parcel of the conditions of sale, notwithstanding that the basis of that right might be wrongly stated.
[ PC ] - [ Bailii ] - [ PC ]
 
Bonnick v Morris, The Gleaner Company Ltd and Allen [2002] UKPC 31; [2003] 1 AC 300; [2002] 3 WLR 820; 12 BHRC 558; [2002] EMLR 37; [2002] 2 Lloyds Rep 403; (2002) 12 BHRC 558; [2002] All ER (D) 92; (2003) 4 CHRLD 35
17 Jun 2002
PC
Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote and Mr Justice Tipping
Defamation, Commonwealth, Media
(Jamaica) The appellant sought damages from the respondent journalists in defamation. They had claimed qualified privilege. The words alleged to be defamatory were ambiguous. Held: The publishers were protected by Reynolds privilege. The court should give the article the natural and ordinary meaning which would be attributed by an intelligent reader seeing it once. He could read between the lines but may not be unduly suspicious.
An appellate court should not disturb the judge's finding without real justification. That did not apply here.
As to privilege, qualified privilege need not be lost because of unanticipated ambiguity. The defamatory imputation was a matter of implication, about which different views could apply. Responsible journalism was the point at which a fair balance was held between freedom of expression on matters of public concern and the reputations of individuals. Nevertheless ambiguity can be a screen behind which a journalist could be "willing to wound, and yet afraid to strike". It is a matter for the words in each case. In this case the ambiguity was not so patent. There was, or perhaps should be, a deterrent element in the amount of damages in defamation cases.
Lord Nicholls discussed the single meaning rule in defamation: "The 'single meaning' rule adopted in the law of defamation is in one sense highly artificial, given the range of meanings the impugned words sometimes bear: see the familiar exposition by Diplock LJ in Slim v Daily Telegraph Ltd [1968] 2 QB 157, 171-172. The law attributes to the words only one meaning, although different readers are likely to read the words in different senses. In that respect the rule is artificial. Nevertheless, given the ambiguity of language, the rule does represent a fair and workable method for deciding whether the words under consideration should be treated as defamatory. To determine liability by reference to the meaning an ordinary reasonable reader would give the words is unexceptionable."
For the purposes of determining whether, in the context of a defamation action, a journalist had acted responsibly, it was permissible to take account of the meaning which a journalist thought an article had even though that is different from the meaning which the article had to the ordinary reasonable reader. "A journalist should not be penalised for making a wrong decision on a question of meaning on which different people might reasonably take different views." In that case "the defamatory meaning of the words used was not so glaringly obvious that any responsible journalist would be bound to realise this was how the words would be understood by ordinary, reasonable readers."
1 Cites

1 Citers

[ Bailii ] - [ PC ]
 
Man O'War Station Limited and Huruhe Station Limited v Auckland County Council (formerly Waiheke County Council) and H M Attorney General for New Zealand (Judgment No 2) [2002] UKPC 32
17 Jun 2002
PC

Land, Registered Land, Commonwealth
(New Zealand) A road was to be constructed over land but the land was sold with no entry in the registers to indicate any public right of way. The land owner said no right of way existed. The authority said that the dedication followed from the circumstances. Held: Persons with an interest contrary to the claimed easement must consent to any implied dedication. Crown consent had not been obtained, but was not in this case necessary, and upon dedication, the land vested automatically and withoutmore in the Crown.
1 Citers

[ PC ] - [ Bailii ] - [ PC ]
 
Noel Heath Charles Miller and Glenroy Matthew v The Government of the United States of America (2002) 61 WIR 189; [2002] UKPC 33
19 Jun 2002
PC
Hutton L
Commonwealth, Extradition
PC (Saint Christopher and Nevis) The US requested extradition of the defendant and others from St Kitts. A magistrate declined to do so, and ordered their discharge. The High Court quashed (or intended to quash) that order and remitted the case. The magistrate decided that his original order had not been quashed and would not proceed. On a second application, the High Court ruled that the magistrate's order had been quashed and again directed him to proceed. Against that decision Heath and his associates sought special leave to appeal to the Board. On the hearing of the petition for special leave, the Board was informed, counsel for the petitioners asserted that the Board had jurisdiction, relying on Maharaj. The US Government accepted that the Board had jurisdiction.
1 Citers

[ Bailii ] - [ PC ]
 
Charles v The Judicial and Legal Service Commission and The Disciplinary Tribunal (Appeal No 34 of 2001); [2002] UKPC 34; [2003] 1 LRC 422
19 Jun 2002
PC
Lord Bingham of Cornhill Lord Steyn Lord Hope of Craighead Lord Scott of Foscote The Rt. Hon. Justice Tipping
Legal Professions, Commonwealth
PC (Trinidad and Tobago) Disciplinary proceedings had commenced against the appellant, the chief magistrate, but the time limits had not been followed. The appellant argued that the time limits were mandatory. Held. When considering time limits, it is better to avoid words such as 'mandatory' and 'directory'. Bearing in mind the minimal impact of the failures on the appellant, his appeal was dismissed.
Tipping J: "At the outset their Lordships observe that it seems highly unlikely that the Commission can have intended that breaches of time limits at the investigation stage would inevitably prevent it from discharging its public function and duty of inquiring into and, if appropriate, prosecuting relevant indiscipline or misconduct. A self-imposed fetter of such a kind on the discharge of an important public function would seem inimical to the whole purpose of the investigation and disciplinary regime." and ". . . If a complaint is made about the non-fulfilment of a time limit the giving of relief will usually be discretionary. This discretionary element to which Lord Hailsham referred [in the London & Clydeside Estates case] underlines the fact that problems arising from breach of time limits and other like procedural flaws are not generally susceptible of rigid classification or black and white a priori rules. With this in mind their Lordships note that in the present case the delays were in good faith, they were not lengthy and they were entirely understandable. The appellant suffered no material prejudice; no fair trial considerations were or could have been raised, and no fundamental human rights are in issue."
1 Cites

1 Citers

[ PC ] - [ Bailii ] - [ PC ]
 
A v Bottrill [2002] UKPC 44
9 Jul 2002
PC

Commonwealth, Damages, Professional Negligence
PC (New Zealand) The defendant was a pathologist who carried out cervical smears. His actions were found to be negligent. Held: The Board considered whether it would be correct to require an additional prerequisite of intention or conscious recklessness before an award of exemplary damages. Such a requirement would always bring evidential difficulties and "courts in common law countries have remained true to the underlying rationale of the exemplary damages jurisdiction. Courts in all countries have openly recognised the exceptional and unusual nature of this jurisdiction. They have recognised the need to confine this remedy to truly exceptional and unusual cases. Punishment is primarily a matter for criminal law. They have, further, been well aware of the importance, and the difficulty, of confining the use of this remedy in cases of negligence. " However "as a matter of principle and authority, intentional wrongdoing or conscious recklessness is not an essential prerequisite to an order for payment of exemplary damages. Legal principle does not require that the court’s jurisdiction should be limited in this way." At the same time: "their Lordships cannot over-emphasise what has already been indicated more than once. The cases where it is appropriate to make an award of exemplary damages are exceptional. The cases where it is appropriate to make an award of exemplary damages in the absence of intentional wrongdoing or conscious recklessness will be exceptional and rare indeed."
1 Cites

[ PC ] - [ Bailii ] - [ PC ]
 
Canterbury Golf International Limited v Hideo Yoshimoto [2002] UKPC 40
15 Jul 2002
PC

Commonwealth
PC New Zealand
[ PC ] - [ PC ] - [ Bailii ] - [ PC ]

 
 Gaetan Seneque and Jacques David v The Director of Public Prosecutions; PC 24-Jul-2002 - Times, 23 August 2002; [2002] UKPC 42
 
Kirvek Management and Consulting Services Limited v The Attorney General of Trinidad and Tobago [2002] UKPC 43
25 Jul 2002
PC

Commonwealth
PC Trinidad and Tobago
[ PC ] - [ PC ] - [ PC ] - [ Bailii ]
 
Pushpanathan v Canada (Minister of Citizenship and Immigration) [2002] FCJ No 1207; 2002 FCT 867
3 Sep 2002

Blais J
Immigration, Human Rights, Crime, Commonwealth
FCC (Federal Court of Canada - Trial Division) - Application by Pushpanathan for judicial review of a decision of the Convention Refugee Determination Division that he was not a Convention refugee. Pushpanathan was a Tamil citizen of Sri Lanka. He alleged that he was persecuted on the basis of his political opinions and was detained after participating in a political demonstration. While in Canada, Pushpanathan was convicted of conspiracy to traffic heroine along with five other Tamils and served over two years in a federal penitentiary. At his first hearing, the Refugee Division found that the conviction excluded him from refugee status because it was contrary to the purposes and principles of the United Nations. On appeal, the court ordered a new hearing. At the second hearing, the Refugee Division found that Pushpanathan was excluded from refugee protection on the basis of his involvement in crimes against humanity and terrorist activities associated with the Liberation Tigers of Tamil Eelam.
HELD: Application dismissed. The standard of review was less than a balance of probabilities. The Refugee Division correctly concluded that the Liberation Tigers was a terrorist organization. Through the trafficking of narcotics, Pushpanathan was complicit in supporting the Liberation Tigers and demonstrated a personal knowing participation and common purpose with the Tigers.
1 Citers

[ UNCHR ]
 
Tame v New South Wales; Annetts v Australian Stations Pty Limited [2002] HCA 35; [2002] 211 CLR 317; [2002] 191 ALR 449; [2002] 76 ALJR 1348
5 Sep 2002

Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Commonwealth, Negligence
Austlii (High Court of Australia) Tame v New South Wales
Negligence - Duty of care - Psychiatric injury - Motor accident - Clerical error by police constable in recording driver's blood alcohol content - Psychotic depressive illness caused by driver learning of mistake - Whether duty of care owed by police constable to driver - Whether psychiatric injury reasonably foreseeable - Whether sole determinant of duty - Other control mechanisms for imposition of duty - Normal fortitude - Sudden shock - Direct perception - Immediate aftermath.
Annetts v Australian Stations Pty Limited
Negligence - Duty of care - Psychiatric injury - Death of child - Assurances of constant supervision of child made by employer to parents - Whether duty of care owed by employer of child to parents - Whether psychiatric injury reasonably foreseeable - Whether sole determinant of duty - Other control mechanisms for imposition of duty - Normal fortitude - Sudden shock - Direct perception - Immediate aftermath.
1 Citers

[ Austlii ]
 
Du Toit and Vos v Minister for Welfare and Population Development (2002) 13 BHRC 187; [2002] ZACC 20; CCT 40/01
10 Sep 2002


Commonwealth, Constitutional, Human Rights, Discrimination
(South African Constitutional Court) Prospective adoptive parents were a same-sex couple who challenged laws preventing them from adopting. The court said: "In their current form the impugned provisions exclude from their ambit potential joint adoptive parents who are unmarried, but who are partners in permanent same-sex life partnerships and who would otherwise meet the criteria set out in section 18 of the Child Care Act… Their exclusion surely defeats the very essence and social purpose of adoption which is to provide the stability, commitment, affection and support important to a child's development, which can be offered by suitably qualified persons… Excluding partners in same sex life partnerships from adopting children jointly where they would otherwise be suitable to do so is in conflict with the principle [of the paramountcy of the interests of the child]… It is clear from the evidence in this case that even though persons such as the applicants are suitable to adopt children jointly and provide them with family care, they cannot do so. The impugned provisions … thus deprive children of the possibility of a loving and stable family life… The provisions of the Child Care Act thus fail to accord paramountcy to the best interests of the children."
1 Citers

[ Saflii ]
 
Schreiber v Canada (Attorney General) [2002] SCJ No 63; [2002] 3 SCR 269; [2002] SCC 62
12 Sep 2002

McLachlin, Beverley; Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel JJ
Commonwealth, International, Extradition
SCC (Supreme Court of Canada) International law - Sovereign immunity - Attornment to Canadian court's jurisdiction exception - Germany initiating extradition process against Canadian citizen - Citizen arrested by RCMP and spending eight days in jail - Citizen suing Germany seeking damages for personal injuries suffered as a result of his arrest and detention in Canada - Whether Germany immune from jurisdiction of Canadian courts - Whether attornment to Canadian court's jurisdiction exception applicable so as to deprive Germany of its immunity from instant action - Whether Germany waived its immunity from lawsuits in Canadian courts when it initiated extradition process - State Immunity Act, R.S.C. 1985, c. S-18, s. 4(2)(b).
International law - Sovereign immunity -- Personal injury exception -- Scope of exception -- Germany initiating extradition process against Canadian citizen -- Citizen arrested by RCMP and spending eight days in jail -- Citizen suing Germany seeking damages for personal injuries suffered as a result of his arrest and detention in Canada -- Whether Germany immune from jurisdiction of Canadian courts -- Whether personal injury exception applicable so as to deprive Germany of its immunity from instant action -- Whether exception distinguishes between jure imperii and jure gestionis acts -- Whether exception applies only to claim of physical injury -- State Immunity Act, R.S.C. 1985, c. S-18, s. 6(a).
Statutes -- Interpretation -- Bilingual statutes -- Personal injury exception to state immunity -- Meaning of expression "personal injury" -- Whether French version best reflects common intention of legislator found in both versions -- Whether amendment made by Federal Law-Civil Law Harmonization Act to English version substantively changed the law -- Purpose of harmonization legislation -- State Immunity Act, R.S.C. 1985, c. S-18, s. 6(a) -- Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4, s. 121.
1 Citers

[ SCC ]
 
Prince Pinder v The Queen Times, 04 October 2002; Gazette, 31 October 2002; [2002] UKPC 46
23 Sep 2002
PC
Lord Nicholls of Birkenhead, Lord Hoffman, Lord Hope of Craighead, Lord Hobhouse of Woodborough, Lord Millett
Human Rights, Criminal Sentencing, Constitutional, Commonwealth, Crime
(Bahamas) The applicant challenged his sentence to a flogging as an inhuman or degrading punishment. Held: The constitution of Bahamas did not prohibit flogging as an inhuman punishment. The constitution explicitly preserved modes of punishment which had been accepted on the island before its implementation. This was so despite its later revocation and revival. The article of the constitution had to be construed narrowly but properly. However the particular sentence failed to state whether the flogging was to be by a rod or a cat of nine tails, and so was incomplete and void. The choice of implement was a judicial one. (Nicholls and Hope dissenting)
Constitution of the Bahamas 17
[ PC ] - [ Bailii ]
 
Rodney David Haines v Lynne Valerie Carter [2002] UKPC 49
7 Oct 2002
PC
Lord Bingham of Cornhill, Lord Slynn of Hadley, Lord Nicholls of Birkenhead, Lord Rodger of Earlsferry, The Rt. Hon. Justice Tipping
Commonwealth, Family
PC (New Zealand) The parties had separated after living together. An agreement had been secured through mediation, which agreement was now at issue. Payment was sought ouside the period set for enforcement. Held: Though the period set for enforcement was only six months, several obligations were intended to continue, and the period for enforcement must be read accordingly. Under the agreement between the parties the mediators were bound to reconvene the mediation for the purpose stated in correspondence.
[ PC ] - [ Bailii ]
 
Dymocks Franchise Systems (NSW) Pty Limited v John Todd and Alicia B Todd Bilgola Enterprises Ltd and Lambton Quay Books Ltd [2002] UKPC 50; [2004] 1 WLR 2807
7 Oct 2002
PC
Lord Hutton, Lord Browne-Wilkinson, Lord Hobhouse of Woodborough, Lord Rodger of Earlsferry, Sir Malcolm Pill
Commonwealth, Contract
PC (New Zealand) The claimants asserted that the respondents had wrongly terminated their franchise licence. The agreement was subject to the New South Wales law requiring good faith, but the court had not had expert assistance for interpretation. Held: Whatever the underlying law, the agreement depended upon the parties acting in good faith and working together. In such circumstances a statement that the claimants would not take further part in franchising activities amounted to a repudiation. The common law on the existence of a duty of good faith under contract internationally is not clear, and it was wrong to try to resolve such questions by books alone and without expert evidence. "These were not ordinary commercial contracts but contracts giving rise to long term mutual obligations in pursuance of what amounted in substance to a joint venture and therefore dependent upon co-ordinated action and co-operation." The lower courts had failed to make proper allowance for all the evidence they had heard, and the appeal was to be allowed.
1 Cites

1 Citers

[ PC ] - [ Bailii ]
 
Jemmott v The Commissioner of Police [2002] UKPC 51
14 Oct 2002
PC

Commonwealth
PC Grenada
[ PC ] - [ Bailii ] - [ PC ]

 
 Kizza Sealey and Marvin Headley v The State; PC 14-Oct-2002 - Times, 05 November 2002; [2002] UKPC 52
 
Shaw, Henry, Boreland, Mullings and Wright v The Queen [2002] UKPC 53
15 Oct 2002
PC
Lord Steyn, Lord Hoffmann, Lord Hutton, Lord Millett, Lord Scott of Foscote
Commonwealth, Crime
PC (Jamaica) The defendants appealed convictions for three capital murders, saying that an eye witness' statement had not been disclosed at trial or admitted on appeal. This evidence descrinbed the assailants as wearing balaclavas, which cast doubt on the other eye witness identification. Held: The evidence was that the statement was known to the defence, and that it did not contradict the prosecution case. Howebver the statement was of such a character that it should not have been rejected by the court of appeal without hearing the witness in person. The case was remitted to the Court of Appeal to hear that evidence.
1 Cites

[ PC ] - [ Bailii ] - [ PC ]

 
 Sauve v Canada (Chief Electoral Officer); 31-Oct-2002 - 218 DLR (4th) 577; 168 CCC (3d) 449; 5 CR (6th) 203; 294 NR 1; JE 2002-1974; [2002] SCJ No 66 (QL); 117 ACWS (3d) 553; [2002] ACS no 66; 55 WCB (2d) 21; 98 CRR (2d) 1; [2002] 3 SCR 519; 2002 SCC 68 (CanLII)
 
Rokas Karpavicius v The Queen [2002] UKPC 59
11 Nov 2002
PC

Commonwealth
PC New Zealand
[ Bailii ] - [ PC ]
 
Myron Goldfinger and Cove Castles Development Corporation v Norman Luxemburg [2002] UKPC 60
11 Nov 2002
PC

Commonwealth
PC Anguilla
[ Bailii ] - [ PC ]
 
Jhagroo v Teaching Service Commission [2002] UKPC 63
4 Dec 2002
PC

Commonwealth
PC (Trinidad and Tobago)
1 Cites

[ Bailii ] - [ PC ]
 
Clos Farming Estates v Easton and Another [2002] NSWCA 389
9 Dec 2002

Ms McAllister
Land, Commonwealth
(New South Wales Court of Appeal) A question arose whether a right to enter servient land, to carry out works of viticulture and to harvest the grapes and sell them was a right capable of existing as an easement. The judge at first instance held that there was no easement creating an interest in land. The Court of Appeal agreed holding that not only were the rights claimed novel but that they breached what is fundamental to constituting an easement in two respects. First, the connection between the benefited land and the supposed servient tenement went no further than to render the latter but "a convenient incident to the exercise of the right". As it is put in the headnote "The imperatives of the commercialising of the viticulture operation cannot be seen as necessarily supporting a finding that the rights conferred do sufficiently accommodate the dominant tenement". Secondly, the owners of the servient tenement were left with mere rights of residual recreational activities that are totally subordinated to the overarching rights of Clos Farming Estates. The rights of the servient owner were so attenuated that they no longer met the description of exclusive possession.
Ms McAllister said that in this context "accommodation" firstly required that: "there be a natural connection between the dominant and servient tenement. The right must be reasonably necessary for the enjoyment of the dominant tenement and not merely confer an advantage on the owner of that tenement, as would a mere contractual right."
1 Citers

[ Austlii ]
 
Gutnick v Dow Jones [2002] HCA 56
10 Dec 2002


Commonwealth, Jurisdiction
(High Court of Australia) The Court rejected a challenge, in the context of Internet libel, to the applicability of such established principles as that vouchsafed in Duke of Brunswick: "It was suggested that the World Wide Web was different from radio and television because the radio or television broadcaster could decide how far the signal was to be broadcast. It must be recognised, however, that satellite broadcasting now permits very wide dissemination of radio and television and it may, therefore, be doubted that it is right to say that the World Wide Web has a uniquely broad reach. It is no more or less ubiquitous than some television services. In the end, pointing to the breadth or depth of reach of particular forms of communication may tend to obscure one basic fact. However broad may be the reach of any particular means of communication, those who post information on the World Wide Web do so knowing that the information they make available is available to all and sundry without any geographic restriction. . . . A publisher, particularly one carrying on the business of publishing, does not act to put matter on the Internet in order for it to reach a small target. It is its ubiquity which is one of the main attractions to users of it. And any person who gains access to the Internet does so by taking an initiative to gain access to it in a manner analogous to the purchase or other acquisition of a newspaper, in order to read it. . . Comparisons can, as I have already exemplified, readily be made. If a publisher publishes in a multiplicity of jurisdictions it should understand, and must accept, that it runs the risk of liability in those jurisdictions in which the publication is not lawful and inflicts damage."
1 Cites

1 Citers

[ Austlii ]
 
Commercial Innovation Bank Alfa Bank v Victor Kozeny a k a Viktor Kozeny [2002] UKPC 66
11 Dec 2002
PC

Commonwealth
PC The Bahamas
[ Bailii ] - [ PC ]
 
Lutchman Ramcoomarsingh v The Administrator General [2002] UKPC 67
16 Dec 2002
PC

Commonwealth
PC Trinidad and Tobago
[ Bailii ] - [ PC ]
 
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