Tag: Commonwealth

Bank of New Zealand v Greenwood; 14 Dec 1983

References: [1984] 1 NZLR 525
Coram: Hardie Boys J
High Court – New Zealand. The glass roof of a verandah which deflected the sun’s rays so that a dazzling glare was thrown on to neighbouring buildings was held, prima facie, to create a nuisance. Hardie Boys J said: ‘To the extent that this is an appeal to set the public interest ahead of the private interests of the plaintiffs, then I regret that authority requires me to close my ears to it’
This case is cited by:

  • Cited – Hunter and Others -v- Canary Wharf Ltd HL (Gazette 14-May-97, Times 25-Apr-97, Bailii, [1997] UKHL 14, [1997] AC 655, [1997] Fam Law 601, [1997] 2 All ER 426, [1997] 2 FLR 342, [1997] 2 WLR 684, [1997] Env LR 488, [1997] 54 Con LR 12, [1997] 84 BLR 1, [1997] CLC 1045, (1998) 30 HLR 409)
    The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
  • Cited – Coventry and Others -v- Lawrence and Another SC (Bailii, [2014] UKSC 13, [2014] 2 P &CR 2, [2014] 2 All ER 622, [2014] BLR 271, [2014] HLR 21, [2014] Env LR 25, [2014] 1 AC 822, 152 Con LR 1, [2014] 2 WLR 433, [2014] PTSR 384, Bailii Summary, UKSC 2012/0076, SC Summary, SC)
    C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
    Held: The neighbour’s . .

Zyk v Zyk; 15 Dec 1995

References: [1995] FamCA 135
Links: Austlii
Coram: Nicholson CJ, Fogarty and Baker JJ
Austlii (Family Court of Australia) Property Settlement – Global or asset by asset approach – Treatment of lottery winnings The wife appealed against orders for the alteration of the property interests. The husband was aged 69 at trial, and the wife aged 63. The period of cohabitation was approximately 8 years.
The wife owned assets of a substantially higher value than did the husband at the date of marriage and some of the assets of each were retained at separation.
About two years after the marriage the husband had a lottery win of approximately $95,000. He had been involved in a syndicate prior to the marriage, and the wife had had no involvement in the lottery purchases but the winnings were used by the parties for joint purposes. During most of the marriage both parties worked and throughout shared income and expenses. His Honour treated the winnings as a contribution by the husband. Otherwise he treated their contributions as equal.
Taking that win into account as a contribution by the husband, his Honour assessed the parties’ contributions arising from their initial contribution at 72/28 in the wife’s favour, made a 2% adjustment to the husband for provision the wife had made for her children, a further 3% for contributions during marriage, and 2% for s.75(2) factors, arriving at a 65/35 division of the parties’ assets in the wife’s favour.
This case is cited by:

  • Cited – S -v- AG (Financial Remedy: Lottery Prize) FD (Bailii, [2011] EWHC 2637 (Fam))
    The court considered how to treat a lottery win of £500,000 in the context of an ancillary relief application on a divorce.
    Held: The answers in such cases must be fact specific. ‘In the application of the sharing principle (as opposed . .

Regina v Edwards Books and Art Ltd; 18 Dec 1986

References: [1986] 2 SCR 713, (1986) 35 DLR (4th) 1, 30 CCC (3d) 385, 86 CLLC 14, 55 CR (3d) 193
Links: Canlii
Coram: Dickson CJ
Supreme Court of Canada – the limitation of the protected right must be one that ‘it was reasonable for the legislature to impose’, and that the courts were ‘not called upon to substitute judicial opinions for legislative ones as to the place at which to draw a precise line’.
‘a business corporation cannot possess religious beliefs’. And
‘In interpreting and applying the Charter I believe that the courts must be cautious to ensure that it does not simply become an instrument of better situated individuals to roll back legislation which has as its object the improvement of the condition of less advantaged persons’
legislative drafting is a difficult art and Parliament cannot be held to a standard of perfection.
Statutes: Canadian Charter of Rights and Freedoms to life, liberty and security
This case is cited by:

  • Cited – Bank Mellat -v- Her Majesty’s Treasury (No 2) SC (Bailii Summary, WLRD, Bailii, [2013] UKSC 39, [2013] Lloyd’s Rep FC 580, [2013] 3 WLR 179, [2013] HRLR 30, [2013] 4 All ER 533, [2013] WLR(D) 244, WLRD, UKSC 2011/0040, SC Sumary, SC)
    The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .

Regina v B (CA 459/06); 27 May 2008

References: [2008] NZCA 130, [2009] 1 NZLR 293
Links: Nzlii
Coram: William Young P, Robertson and Baragwanath JJ
(New Zealand Court of Appeal) The court considered directions to be given to jurors as to the use of the internet whilst sitting as jurors.
This case is cited by:

  • Cited – Thompson and Others -v- Regina CACD (Bailii, [2010] EWCA Crim 1623, [2011] 1 WLR 200, [2010] 2 Cr App R 27, [2011] 2 All ER 83)
    Six appeals were brought alleging various forms of irregularity by the jurors.
    Held: Lord Judge said: ‘The verdict must be reached, according to the jury oath in accordance with the evidence. For this purpose each juror brings to the . .

Proulx v Quebec (Attorney General); 18 Oct 2001

References: 2001 SCC 66, [2001] 3 SCR 9
Links: SCC
Coram: McLachlin, Beverley; L’Heureux-Dube, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
SCC Supreme Court of Canada – Civil liability – Malicious prosecution – Regime of immunity and extra-contractual civil liability applicable in Quebec law to Attorney General of Quebec and prosecutors — Whether Nelles applies integrally in Quebec — Whether facts alleged against Attorney General and prosecutor meet test set out in Nelles.
This case is cited by:

  • Cited – Williamson -v- The Attorney General of Trinidad and Tobago PC (Bailii, [2014] UKPC 29)
    (Trinidad and Tobago) The claimant had been held after arrest on suspicion of theft. He was held for several months before the case was dismissed, the posecution having made no apparent attempt to further the prosecution. He appealed against refusal . .

Wyong Shire Council v Shirt; 1 May 1980

References: ,
Links: Austlii
Coram: Stephen, Mason, Murphy, Aickin and Wilson JJ
(High Court of Australia) Mason J: ‘In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not of itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.’
Held: ‘Lying at the heart of this matter, however, is the necessity to ensure, as far as possible, that consumers are not unnecessarily or, through no fault of their own, unknowingly exposed to the risk of injury or other adverse consequences being suffered by reason of their use of products available to them in the marketplace.’ and ‘As a general proposition it appears to me to be obvious that where possible consequences of the contraction of a condition include death, even though the risk of any contraction may be very small, a potential purchaser is, at least, entitled to know of the existence of that risk and to be able to choose whether or not it will be accepted.’
This case is cited by:

  • See Also – McTear -v- Imperial Tobacco Ltd OHCS (Bailii, [2005] ScotCS CSOH_69, Times 14-Jun-05, Scottish CS)
    The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
    Held: The action failed. The plaintiff had not . .

Chang v Registrar of Titles; 11 Feb 1976

References: (1976) 137 CLR 177, (1976) 50 ALJR 404, (1976) 8 ALR 285, [1976] HCA 1
Links: Austlii
Coram: Mason J, Jacob J
(High Court of Australia) The court discussed the trusteeship arising on a contract for the sale of land.
Mason J said: ‘It has long been established that a vendor of real estate under a valid contract of sale is a trustee of the property sold for the purchaser. However, there has been controversy as to the time when the trust relationship arises and as to the character of that relationship. Lord Eldon considered that a trust arose on execution of the contract (Paine v Meller; Broome v Monck). Plumer M.R. thought that until it is known whether the agreement will be performed the vendor ‘is not even in the situation of a constructive trustee; he is only a trustee sub modo, and providing nothing happens to prevent it. It may turn out that the title is not good, or the purchaser may be unable to pay’ (Wall v Bright). Lord Hatherley said that the vendor becomes a trustee for the purchaser when the contract is completed, as by payment of the purchase money (Shaw v Foster). Jessel M.R. held that a trust sub modo arises on execution of the contract but that the constructive trust comes into existence when title is made out by the vendor or is accepted by the purchaser (Lysaght v Edwards). Sir George Jessel’s view was accepted by the Court of Appeal in Rayner v Preston.
It is accepted that the availability of the remedy of specific performance is essential to the existence of the constructive trust which arises from a contract of sale’. Jacob J: ‘Where there are rights outstanding on both sides, the description of the vendor as a trustee tends to conceal the essentially contractual relationship which, rather than the relationship of trustee and beneficiary, governs the rights and duties of the respective parties’.
This case is cited by:

  • Cited – Jerome -v- Kelly (Her Majesty’s Inspector of Taxes) HL (House of Lords, [2004] UKHL 25, Bailii, Times 20-May-04, [2004] 21 EGCS 151, [2004] STI 1201, [2004] 2 All ER 835, [2004] 1 WLR 1409, [2004] NPC 75, [2004] WTLR 681, [2004] STC 887, 76 TC 147, [2004] BTC 176)
    In 1987, trustees holding land for various beneficiaries in undivided shares entered into a contract to sell it to a purchaser. In 1989 Mr and Mrs Jerome, who were absolutely entitled to interests in the land, assigned part of their beneficial . .
  • Cited – Scott -v- Southern Pacific Mortgages Ltd and Others SC (Bailii, [2014] UKSC 52, Bailii Summary, [2014] HLR 48, [2015] 1 AC 385, [2014] 3 WLR 1163, [2014] WLR(D) 447, WLRD, Bailii Summary, UKSC 2012/0102, SC, SC Summary)
    The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .

(This list may be incomplete)
Last Update: 19-Oct-15 Ref: 196888

Crookes v Wikimedia Foundation Inc; 27 Oct 2008

References: 2008 BCSC 1424
Links: Canlii
Coram: Kelleher J
(Supreme Court of British Columbia) The claimant sought damages in defamation from an article published by the defendant on the internet. The court was asked whether the contents of an article to which a hyper-link was provided should be taken into account in identifying the claimant.
Held: Whilst hyperlinking could sometimes found an action for defamation, in this case, the publcation of the link did not amount to publcation in defamation.
This case is cited by:

  • Cited – Islam Expo Ltd -v- The Spectator (1828) Ltd and Another QBD (Bailii, [2010] EWHC 2011 (QB))
    The claimant sought damages in defamation against the defendant in respect of its web-site. It said that the use of hyperlinks to third party sites was sufficient to identify the claimant and associate it with the allegations made.
    Held: The . .

A.R.P.L. Palaniappa Chettiar v P.L.A.R. Arunasalam Chettiar: PC 31 Jan 1962

References: [1962] UKPC 1a
Links: Bailii
Coram: Lord Denning, Lord Devlin, LND de Silva
(Malaya)
This case cites:

  • See Also – Chettiar -v- Chettiar PC ([1962] AC 294, Bailii, [1962] UKPC 1, Bailii, [1962] UKPC 4, [1962] 2 WLR 548, [1962] 2 All ER 238)
    (Malaya) A father, in registering shares in the names of his children, had transferred the beneficial interest in those shares to them. Many years later the father had treated the shares as his own. The question arose as to whether this fact . .

This case is cited by:

  • See Also – Chettiar -v- Chettiar PC ([1962] AC 294, Bailii, [1962] UKPC 1, Bailii, [1962] UKPC 4, [1962] 2 WLR 548, [1962] 2 All ER 238)
    (Malaya) A father, in registering shares in the names of his children, had transferred the beneficial interest in those shares to them. Many years later the father had treated the shares as his own. The question arose as to whether this fact . .

Bazley v Curry; 17 Jun 1999

References: (1999) 174 DLR(4th) 45, [1999] 8 WWR 197, 43 CCEL (2d) 1, 62 BCLR (3d) 173
Links: Canlii
Coram: McLachlin J
(Canadian Supreme Court) The court considerd the doctrine of vicarious liability: ‘The policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimization). The question is whether there is a connection or nexus between the employment enterprise and that wrong that justifies imposition of vicarious liability on the employer for the wrong, in terms of fair allocation of the consequences of the risk and/or deterrence.’ The court criticised the decision in Trotman, saying: ‘the opinion’s reasoning depends on the level of generality with which the sexual act is described. Instead of describing the act in terms of the employee’s duties of supervising and caring for vulnerable students during a study trip abroad, the Court of Appeal cast it in terms unrelated to those duties. Important legal decisions should not turn on such semantics. As Atiyah points out (Vicarious Liability in the Law of Torts, p 263): ‘conduct can be correctly described at varying levels of generality, and no one description of the ‘act’ on which the servant was engaged is necessarily more correct than any other’.’
This case cites:

This case is cited by:

  • Approved – Lister and Others -v- Hesley Hall Ltd HL (Times 10-May-01, Gazette 14-Jun-01, Bailii, House of Lords, [2001] UKHL 22, [2002] 1 AC 215, [2001] 2 All ER 769, [2001] 2 FCR 97, (2001) 3 LGLR 49, [2001] NPC 89, [2001] Fam Law 595, [2001] 2 WLR 1311, [2001] IRLR 472, [2001] ICR 665, [2001] Emp LR 819, [2001] 2 FLR 307, [2001] ELR 422)
    A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
    Held: ‘Vicarious liability is legal . .
  • Cited – Bernard -v- The Attorney General of Jamaica PC (PC, Bailii, [2004] UKPC 47, PC, No. 30 of 2003, [2005] IRLR 398)
    PC (Jamaica) The claimant had been queuing for some time to make an overseas phone call at the Post Office. Eventually his turn came, he picked up the phone and dialled. Suddenly a man intervened, announced . .
  • Cited – Majrowski -v- Guy’s and St Thomas’ NHS Trust CA (Bailii, [2005] EWCA Civ 251, Times 21-Mar-05, [2005] QB 848, [2005] ICR 977, [2005] 2 WLR 1503, [2005] IRLR 340)
    The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
    Held: The appeal succeeded. The . .
  • Cited – Gravil -v- Carroll and Another CA (Bailii, [2008] EWCA Civ 689, Times 22-Jul-08, [2008] ICR 1222, [2008] IRLR 829)
    The claimant was injured by an unlawful punch thrown by the first defendant when they played rugby. He sought damages also against the defendant’s club, and now appealed a finding that they were not vicariously liable. The defendant player’s . .
  • Cited – Maga -v- The Trustees of The Birmingham Archdiocese of The Roman Catholic Church CA (Bailii, [2010] EWCA Civ 256, Times, [2010] PTSR 1618, [2010] 1 WLR 1441)
    The claimant appealed against rejection of his claim for damages after alleging sexual abuse by a catholic priest. The judge had found the church not vicariously liable for the injuries, and that the archdiocese had not been under a duty further to . .
  • Cited – Weddall -v- Barchester Healthcare Ltd CA (Bailii, [2012] EWCA Civ 25)
    Parties appealed against judgments dismissing their claims of vicarious liability as against their employers after assaults by co-employees.
    Held: Appeals were dismissed and allowed according to their facts.
    In one case, one employee . .
  • Cited – The Catholic Child Welfare Society and Others -v- Various Claimants & The Institute of The Brothers of The Christian Schools and Others SC (Bailii, [2012] UKSC 56, Bailii Summary, SC, SC Summary, UKSC 2010/0230, [2012] WLR(D) 335, [2013] 1 All ER 670, [2013] IRLR 219, [2013] PIQR P6, [2013] ELR 1, [2012] 3 WLR 1319, [2013] 2 AC 1)
    Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .
  • Cited – Graham -v- Commercial Bodyworks Ltd CA (Bailii, [2015] EWCA Civ 47, [2015] WLR(D) 50, WLRD)
    The claimant had been very badly burned. He was covered in flammable liquid when a co-worker lit a cigarette.
    Held: The claimant’s appeal failed. ‘although the defendant employers did create a risk by requiring their employees to work with . .

Peters v Sinclair; 6 May 1913

References: 1913 CanLII 8 (SCC), 48 SCR 57
Links: Canlii
Coram: Sir Charles Fitzpatrick CJ and Davies, Idington, Duff and Anglin JJ
Ratio Supreme Court of Canada – S. brought action against P. for trespass on a strip of land called ‘Ancroft Place’ which he claimed as his property and asked for damages and an injunction. ‘Ancroft Place’ was a cul-de-sac running east from Sherbourne Street, and the defence to the action was that it was a public street or, if not, that P. had a right of way over it either by grant or user. On the trial it was shewn that the original owners had conveyed the lots to the east and south of ‘Ancroft Place’ to different parties, each deed describing it as a street and giving a right of way over it to the grantee. The deeds to P.’s predecessors in title did not give him a similar right of way, but some of these conveyances described it as a street. The deed to one of the predecessors in title of S. had a plan annexed shewing ‘Ancroft Place’ as a street fifty feet wide and the grantee was given the right to register said plan. The evidence also established that for 22 years before the action ‘Ancroft Place’ had been entered in the assessment rolls as a public street and had not been assessed for taxes and that the city had placed a gas lamp on the end; also, that for over twenty years it had been used by the owners of the lots to the south and east, and from time to time by the owner on the north side, as a means of access to, and egress from, their respective properties. In 1909 the fee in the land in dispute was conveyed to S. who had become owner of the lots to the east and south.
Held, Idington J. dissenting, Duff J. expressing no opinion, that the evidence was not sufficient to establish that the land had been dedicated to the public, and accepted by the municipality as a street.
Held, further, Idington and Duff JJ. dissenting, that the land was not a ‘way, easement or appurtenance’ to the lot to the north ‘held, used, occupied and enjoyed, or taken or known, as part and parcel thereof’ within the meaning of sec. 12 of ‘The Law and Transfer of Property Act,’ R.S.O., [1897] ch. 119.
Held, also, that, P. had not acquired a right-of-way by a grant implied from the terms of the deeds of the adjoining lots, Duff J. dissenting; nor by prescription, Duff J. expressing no opinion.
This case cites:

  • Cited – Attorney-General -v- Antrobus ChD ([1905] 2 Ch 188)
    The owner of Stonehenge had enclosed the monument by fencing for its protection. The Attorney-General wished to remove the fencing in order to keep the place open so that the public could visit it.
    Held: The court rejected a suggestion that . .

(This list may be incomplete)

Last Update: 15-May-16
Ref: 540228

Bruker v Marcovitz; 14 Dec 2007

References: 288 DLR (4th) 257, [2007] 3 SCR 607, 2007 SCC 54 (CanLII)
Links: Canlii, Canlii
Coram: McLachlin CJ and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ
Canlii (Supreme Court of Canada) Contracts – Validity – Breach – Agreement with religious aspect – Husband refusing to provide wife with Jewish religious divorce after civil divorce despite agreement to do so – Action in damages against husband for breach of contract – Whether matter justiciable – Whether agreement satisfies all requirements to make it valid and binding under Quebec law – Whether husband can rely on freedom of religion to avoid legal consequences of failing to comply with agreement – Civil Code of Quebec, S.Q. 1991, c. 64, arts. 1373, 1385, 1412, 1413 – Charter of human rights and freedoms, R.S.Q., c. C-12, ss. 3, 9.1.
Human rights – Freedom of conscience and religion – Agreement with religious aspect – Jewish religious divorce or ‘get’ – Husband refusing to provide wife with Jewish religious divorce after civil divorce despite agreement to do so – Action in damages against husband for breach of contract – Whether husband entitled to immunity from damages for his breach of contract by invoking freedom of religion – Charter of human rights and freedoms, R.S.Q., c. C-12, ss. 3, 9.1.
This case is cited by:

  • Cited – Shergill and Others -v- Khaira and Others SC (Bailii, [2014] UKSC 33, [2014] 3 WLR 1, [2014] WLR(D) 263, Bailii Summary, WLRD, UKSC 2012/0234, SC Summary, SC, [2014] PTSR 907, [2014] WTLR 1729, [2014] 3 All ER 243)
    The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .

Clayton v Heffron; 17 Oct 1960

References: (1960) 105 CLR 214
Links: Austilii
Coram: Dixon CJ, McTiernan, Fullagar, Kitto, Taylor, Menzies and Windeyer JJ
(High Court of Australia) An Act was proposed to be introduced by the legislature to amend the constitution of New South Wales by abolishing the Legislative Council. There would be required first a vote in favour of that in a referendum. The proposed Act was to be passed under a procedure in s.5B of the New South Wales Constitution Act 1902-1956, whereby legislation could be enacted ultimately without the consent of the Legislative Council. S.5B had been introduced into the New South Wales Constitution by an enactment of the New South Wales legislature under s.5 of the Constitution Act which went: ‘The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever.’
Held: The Act was effective.
This case is cited by:

  • Cited – Regina on the Application of Jackson and others -v- HM Attorney General CA (Bailii, [2005] EWCA Civ 126, Times 17-Feb-05)
    The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
  • Cited – Jackson and others -v- Attorney General HL (House of Lords, [2005] UKHL 56, Times 14-Oct-05, Bailii, [2006] 1 AC 262, [2005] 2 WLR 87)
    The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .

Syndicat Northcrest v Amselem; 30 Jun 2004

References: (2004) 241 DLR (4th) 1, [2004] 2 SCR 551
Links: Canlii
Coram: McLachlin CJ and Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish JJ
Canlii (Supreme Court of Canada) Civil rights – Freedom of religion — Definition of freedom of religion — Exercise of religious freedoms — Orthodox Jews setting up succahs in pursuit of their religious beliefs on balconies of their co-owned property — Syndicate of co-owners requesting removal of succahs because declaration of co-ownership prohibits decorations, alterations and constructions on balconies — Whether freedom of religion infringed by declaration of co-ownership — If so, whether refusal to permit setting up of succahs justified by reliance on right to enjoy property and right to personal security — Whether Orthodox Jewish residents waived their right to freedom of religion by signing declaration of co-ownership — Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 1, 3, 6. Constitutional law — Charter of Rights — Freedom of religion — Definition of freedom of religion — Proper approach for freedom of religion analyses — Canadian Charter of Rights and Freedoms, s. 2(a).
The court is concerned to ensure that an assertion of religious belief before it is made in good faith: ‘neither fictitious, nor capricious, and that it is not an artifice’
This case is cited by:

  • Cited – Regina -v- Secretary of State for Education and Employment and others ex parte Williamson and others HL (House of Lords, [2005] UKHL 15, Bailii, Times 25-Feb-05, [2005] 2 WLR 590, [2005] 2 AC 246, [2005] 2 All ER 1, [2005] ELR 291, [2005] 2 FLR 374, [2005] 1 FCR 498)
    The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
  • Cited – Shergill and Others -v- Khaira and Others SC (Bailii, [2014] UKSC 33, [2014] 3 WLR 1, [2014] WLR(D) 263, Bailii Summary, WLRD, UKSC 2012/0234, SC Summary, SC, [2014] PTSR 907, [2014] WTLR 1729, [2014] 3 All ER 243)
    The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .

Sreemanchunder Dey v Gopaulchunder Chuckerbutty, Doorgapersaud Dey, Russickloll Dey, And Prosonomoye Dossee; 14 Nov 1866

References: [1866] EngR 190, (1866) 11 Moo Ind App 28, (1866) 20 ER 11
Links: Commonlii
(Fort William, Bengal) A. purchased a Talook at a sale, in execution of a decree obtained by a judgment-creditor. The Assignee of another judgment-creditor, who had obtained a decree in a separate suit against the estate, brought a suit against the purchaser to set aside the sale, on the ground that the purchase was not bona fide, being made in collusion with the judgment-debtors. Held, on a review of the evidence, that there was not sufficient evidence to warrant the decree of the High Court at Calcutta that it was a benamee transaction ; or that the purchaser was acting as an Agent for the judgment-debtors; and the decree of the Court below reversed [11 Moo. Ind. App. 49]. Held further, that the onus probandi was on the Plaintiff to establish the affirmative issue that the money for the purchase of the Talook was supplied by the judgment-debtors, or a third party for them, and not by the purchaser. Evidence showing circumstances which may create suspicion is not enough to justify the Court making a decree resting on suspicion only.
On an appeal to the High Court, that Court, acting under the power conferred by section 355 of the Code of Civil Procedure, Act, No. VIII. of 1859, ex mera motu, called for and examined fresh witnesses. Held that such power should be cautiously exercised, and the reasons for exercising it recorded or minuted by the High Court on the proceedings;as, first, the witnesses may be such as the parties to the suit do not wish to call ; and, secondly, thc new evidence may not be sufiiciently extensive to satisfy the ends of justice.

Capita Financial Group Ltd v Rothwells Ltd; 20 Apr 1989

References: (1989) 15 ACLR 348
Links: NSW
Coram: Rogers CJ
(New South Wales) The parties had guaranteed borrowings of a third party. The plaintiff had paid on call, and now sought a contribution from the defendant. After issue, the defedant began a winding up petition. The plaintiff sought leave to continue the action.
Held: It was a given that a plaintiff in this position must demonstrate a prima facie case. It had not done so here, but an arguable case had been shown, and this could be supplemented later by affidavit evidence. The claim could proceed.
This case is cited by:

Regina v Dadshani; 8 Feb 2008

References: 2008 CanLII 4266 (ON SC)
Links: Canlii
Coram: C McKinnon J
Ontario – Superior Court of Justice – proceeding in the nature of a Rowbotham or Fisher application to secure state funding for the defences of the accused who are facing charges of first degree murder.
This case cites:

  • Cited – Regina -v- Rowbotham and others ((1988) 41 CCC,(3d) 1)
    Ontario Court of Appeal – ‘In our view a trial judge confronted with an exceptional case where legal aid has been refused and who is of the opinion that representation of the accused by counsel is essential to a fair trial may, upon being satisfied . .

This case is cited by:

  • Cited – P, Regina -v- Misc (Bailii, [2008] EW Misc 2 (EWCC))
    Crown Court at Harrow – The Court stayed the criminal proceedings because the defendant was unable to retain counsel because of what was said to be a failure to provide adequate legal aid fees in criminal confiscation proceedings. . .

Rosenberg v Percival; 5 Apr 2001

References: 205 CLR 434, 75 ALJR 734, [2001] HCA 18
Links: Austlii
Coram: Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ
Austlii High Court of Australia – Negligence – Breach of duty – Surgeon’s duty to warn of material risk in proposed surgery – Identification of the material risk – Meaning of material risk.
Negligence – Causation – Whether failure to warn of a material risk causative of plaintiff’s injury – Whether patient would not have undergone treatment if warned.
Appeal – Appeal by rehearing – Powers of appellate court – Decision dependent on credibility findings – Authority of appellate court to reach conclusions different from trial judge.
Evidence – Credibility of witnesses – Limits of appellate review in respect of findings of fact based on assessment of the credibility of a witness.
Gummow J said that courts should not be too quick to discard the possibility that a medical practitioner was or ought reasonably to have been aware that the particular patient, if warned of the risk, would be likely to attach significance to it, merely because it emerges that the patient did not ask certain kinds of questions.
This case is cited by:

  • Cited – Montgomery -v- Lanarkshire Health Board SC (Bailii, [2015] UKSC 11, Bailii Summary, UKSC 2013/0136, SC Summary, SC)
    The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inabillity of the shoulders to pass through the pelvis. The consultant considered that a . .

Sauve v Canada (Chief Electoral Officer); 31 Oct 2002

References: 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)
Links: Canlii
Coram: McLachlin CJ and L’Heureux-Dube, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
Canlii Supreme Court of Canada – Constitutional law – Charter of Rights – Right to vote – Prisoners – Canada Elections Act provision disqualifying persons imprisoned in correctional institution serving sentences of two years or more from voting in federal elections – Crown conceding that provision infringes right to vote – Whether infringement justified – Canadian Charter of Rights and Freedoms, ss. 1, 3 – Canada Elections Act, R.S.C. 1985, c. E-2, s. 51(e).
Constitutional law – Charter of Rights – Equality rights – Prisoners – Canada Elections Act provision disqualifying persons imprisoned in correctional institution serving sentences of two years or more from voting in federal elections – Whether provision infringes equality rights – Canadian Charter of Rights and Freedoms, s. 15(1) – Canada Elections Act, R.S.C. 1985, c. E-2, s. 51(e).
Elections – Disqualifications of electors – Prisoners – Canada Elections Act provision disqualifying persons imprisoned in correctional institution serving sentences of two years or more from voting in federal elections – Whether provision constitutional – Canadian Charter of Rights and Freedoms, ss. 1, 3, 15(1) – Canada Elections Act, R.S.C. 1985, c. E-2, s. 51(e).
This case is cited by:

  • Cited – Chester, Regina (on The Application of) -v- Secretary of State for Justice SC (Bailii, [2013] UKSC 63, [2014] 1 AC 271, [2014] HRLR 3, [2013] 3 WLR 1076, [2014] 1 All ER 683, [2013] WLR(D) 392, [2014] 1 CMLR 45, 2014 SC (UKSC) 25, 2014 SLT 143, 2013 GWD 34-676, WLRD, Bailii Summary, UKSC 2012/0151, SC Summary, SC)
    The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
    Held: The . .

Rogers v Whitaker; 19 Nov 1992

References: [1992] HCA 58, (1992) 175 CLR 479
Coram: Mason CJ, Brennan, Dawson, Toohey, Gaudron, McHugh JJ
High Court of Australia – Negligence – Breach of duty – Medical practitioner – Duty to warn of possibility of adverse effect of proposed treatment – Extent of duty.
The patient complained that the doctor when proposing a form of treatment to his left eye had not explained the associated risks. Those risks had become realised. The plaintiff was already blind in the other eye, giving the risk a greater significance than it would otherwise have had. In addition, she had asked anxiously about risks.
Held: Why should the patient’s asking a question make any difference in negligence, if medical opinion determines whether the duty of care requires that the risk should be disclosed? The patient’s desire for the information, even if made known to the doctor, does not alter medical opinion. ‘Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment.’
The court restated the test of the materiality of a risk so as to encompass the situation in which, as the doctor knows or ought to know, the actual patient would be likely to attach greater significance to a risk than the hypothetical reasonable patient might do: ‘a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.’
This case is cited by:

  • Cited – Montgomery -v- Lanarkshire Health Board SC (Bailii, [2015] UKSC 11, Bailii Summary, UKSC 2013/0136, SC Summary, SC)
    The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inabillity of the shoulders to pass through the pelvis. The consultant considered that a . .

Post Investments Pty Ltd v Wilson; 1 Feb 1990

References: (1990) 26 NSWR 598
Coram: Powell J
Ratio (New South Wales) The court considered the situation where both the dominant and servient lands affected by a restricive covenant came into common ownership. There must be complete unity not merely of ownership, but also of possession. The law has developed by analogy with the law relating to easements, and the benefit of a restrictive covenant is destroyed ‘upon the ownership and possession of both dominant and servient tenements coming into the same hands’. The basis for the qualification is that a restrictive covenant is not to be extinguished if there continues to exist a person (whether or not the successor in title to the estate held by the original covenantor or the original covenantee) entitled to the benefit or subject to the burden of the restrictive covenant.
This case is cited by:

(This list may be incomplete)

Last Update: 14-May-16
Ref: 220708

Housen v Nikolaisen; 28 Mar 2002

References: [2002] 2 SCR 235, 2002 SCC 33
Links: SCC
Coram: McLachlin CJ and L’Heureux-Dube, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ
Supreme Court of Canada – Torts – Motor vehicles – Highways – Negligence – Liability of rural municipality for failing to post warning signs on local access road — Passenger sustaining injuries in motor vehicle accident on rural road — Trial judge apportioning part of liability to rural municipality — Whether Court of Appeal properly overturning trial judge’s finding of negligence — The Rural Municipality Act, 1989, S.S. 1989-90, c. R-26.1, s. 192.
Municipal law — Negligence — Liability of rural municipality for failing to post warning signs on local access road — Passenger sustaining injuries in motor vehicle accident on rural road — Trial judge apportioning part of liability to rural municipality — Whether Court of Appeal properly overturning trial judge’s finding of negligence — The Rural Municipality Act, 1989, S.S. 1989-90, c. R-26.1, s. 192.
Appeals — Courts — Standard of appellate review — Whether Court of Appeal properly overturning trial judge’s finding of negligence — Standard of review for questions of mixed fact and law.
‘The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged.’
This case is cited by:

  • Cited – McGraddie -v- McGraddie and Another (Scotland) SC (Bailii, [2013] UKSC 58, [2013] 1 WLR 2477, [2013] WLR(D) 323, 2013 GWD 25-471, 2013 SLT 1212, WLRD, Bailii Summary, UKSC 2012/0112, SC Summary, SC)
    The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
  • Cited – Henderson -v- Foxworth Investments Limited and Another SC (Bailii Summary, [2014] 1 WLR 2600, Bailii, [2014] UKSC 41, [2014] WLR(D) 290, 2014 GWD 23-437, 2014 SLT 775, [2014] WLR(D) 290, 2014 SCLR 692, WLRD, UKSC 2013/0083, SC, SC Summary)
    It was said that land, a hotal and gold courses, had been sold at an undervalue and that the transaction was void as against the seller’s liquidator.
    Held: The critical issue was whether ‘the alienation was made for adequate consideration’. . .

Regina v Stingel; HCA 1990

References: (1990) 171 CLR 312
(Australia) An infatuated man had stabbed his former girlfriend’s lover.
Held: The judge had been right to withdraw the issue of provocation from the jury. Jealousy and possessiveness should not found a defence of provocation.
This case is cited by:

  • Cited – Regina -v- Smith (Morgan James) HL (Times 04-Aug-00, House of Lords, Gazette 28-Sep-00, House of Lords, Bailii, [2000] UKHL 49, [2001] 1 AC 146, [2001] 1 Cr App R 31, [2000] 4 All ER 289, [2000] 3 WLR 654)
    The defendant had sought to rely upon the defence of provocation. He had suffered serious clinical depression.
    Held: When directing a jury on the law of provocation, it was no longer appropriate to direct the jury to disregard any particular . .
  • Cited – Weller, David Regina -v- CACD (Bailii, [2003] EWCA Crim 815, [2003] Crim LR 724)
    The defendant appealed against his conviction for murder, saying that provocation should have been found. The issue was whether or not, in the course of his summing-up, the trial judge should have left, and if so whether he had left, to the jury the . .

Jacobi v Griffiths; 17 Jun 1999

References: (1999) 174 DLR(4th) 71, [1999] 9 WWR 1, 44 CCEL (2d) 169, 63 BCLR (3d) 1
Links: Canlii
(Canadian Supreme Court) The process for determining when a non-authorised act by an employee is so connected to the employer’s enterprise that liability should be imposed involved two steps: 1. Firstly a court should determine whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case falls. 2. If prior cases do not clearly suggest a solution the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability. In this case that test was not satisfied.
This case cites:

(This list may be incomplete)
This case is cited by:

  • Approved – Lister and Others -v- Hesley Hall Ltd HL (Times 10-May-01, Gazette 14-Jun-01, Bailii, House of Lords, [2001] UKHL 22, [2002] 1 AC 215, [2001] 2 All ER 769, [2001] 2 FCR 97, (2001) 3 LGLR 49, [2001] NPC 89, [2001] Fam Law 595, [2001] 2 WLR 1311, [2001] IRLR 472, [2001] ICR 665, [2001] Emp LR 819, [2001] 2 FLR 307, [2001] ELR 422)
    A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
    Held: ‘Vicarious liability is legal . .
  • Cited – Majrowski -v- Guy’s and St Thomas’ NHS Trust CA (Bailii, [2005] EWCA Civ 251, Times 21-Mar-05, [2005] QB 848, [2005] ICR 977, [2005] 2 WLR 1503, [2005] IRLR 340)
    The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
    Held: The appeal succeeded. The . .
  • Cited – Gravil -v- Carroll and Another CA (Bailii, [2008] EWCA Civ 689, Times 22-Jul-08, [2008] ICR 1222, [2008] IRLR 829)
    The claimant was injured by an unlawful punch thrown by the first defendant when they played rugby. He sought damages also against the defendant’s club, and now appealed a finding that they were not vicariously liable. The defendant player’s . .
  • Applied – Maga -v- The Trustees of The Birmingham Archdiocese of The Roman Catholic Church CA (Bailii, [2010] EWCA Civ 256, Times, [2010] PTSR 1618, [2010] 1 WLR 1441)
    The claimant appealed against rejection of his claim for damages after alleging sexual abuse by a catholic priest. The judge had found the church not vicariously liable for the injuries, and that the archdiocese had not been under a duty further to . .
  • Cited – Graham -v- Commercial Bodyworks Ltd CA (Bailii, [2015] EWCA Civ 47, [2015] WLR(D) 50, WLRD)
    The claimant had been very badly burned. He was covered in flammable liquid when a co-worker lit a cigarette.
    Held: The claimant’s appeal failed. ‘although the defendant employers did create a risk by requiring their employees to work with . .

(This list may be incomplete)
Last Update: 14-Dec-15 Ref: 214670