Commonwealth - 1995

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This page lists 100 cases, and was prepared on 28 October 2012.

New Zealand Forest Products Finance NV -v- Commissioner of Inland Revenue (1995) 17 NZTC 12,073
1995 Doogue J	Company, Commonwealth	Casemap 1 Citers
	(New Zealand) The taxpayer company was established in the Netherlands Antilles as the subsidiary of a New Zealand parent company. It was a vehicle company whose purpose was to raise borrowings on the Eurobond market and to lend the money on to the New Zealand parent for use in its business or in the businesses of the group. The Netherlands Antilles subsidiary of the ABN group was engaged to act as manager and bookkeeper of the company and subsequently was appointed a director of it. The ABN subsidiary provided a registered office, and ensured compliance with Netherlands Antilles laws and with the articles of association of the company. It also attended to the day to day management of the company. Proposals for bond issues originated with the parent company in New Zealand, but were actually carried into effect by the Netherlands Antilles subsidiary, which had a local board of directors. For some of the time one of the directors was a New Zealander who was also a director of the parent company. Held: ['the objector' means the Netherlands Antilles subsidiary] "All the objector's decisions in respect of issues were taken at meetings outside New Zealand. The issues could not proceed without those decisions. Plainly those decisions of policy in respect of the borrowing were first undertaken by those responsible for NZFP [the parent company], with the reasonable expectation that they would find favour with the directors of the objector, particularly when in the time of Mr Wylie he was a director of both boards and other Australasian directors were closely associated with NZFP. It is also clear upon the evidence, however, that the decisions of the directors of the objector were those of the objectors [sic] independently. … Applying the De Beers test, it is clear the central management and control of the objector was at all times outside New Zealand. All decisions taken by its directors were taken outside New Zealand, as were its shareholders' meetings and its essential management functions, which took place in Curaçao. The Commissioner has argued that the true centre of management and control was Auckland and that the board of the objector merely rubber stamped NZFP decisions. As already indicated, that ignores both the legal and the factual position. … The Commissioner's position confuses NZFC's policy and influence with its powers. … [I]t was not in the interests of NZFP that the directors of the objector should act as pawns or rubber stamps in the way submitted by the Commissioner and they did not do so. … The control and management of the objector was in the hands of its directors and, as already indicated, that was at no time exercised in New Zealand."

Pioneer Concrete (NSW) Pty Ltd -v- Webb (1995) ACSR 418
1995 Simos J	Commonwealth, Legal Professions	Casemap 1 Citers

Re Barker: Nemes -v- Baker [1995] 2 VR 439
1995 Tadgell J	Wills and Probate, Commonwealth	Casemap 1 Cites 1 Citers
	(Supreme Court of Victoria) Tadgell J said: "The very existence of a revocation clause in a will is, however, prima facie solemnly eloquent of the testator's intention. Evidence sufficient to rebut it must be clear and unequivocal. Nevertheless, if there is receivable evidence which is sufficient to rebut it, there can be no doubt that it is the duty of a court of probate to give effect to it."

Inverugie Investments Ltd -v- Hackett [1995] 1 WLR 713
1995 PC Lord Lloyd of Berwick	Commonwealth, Damages	Casemap 1 Cites 1 Citers
	The plaintiff was the lessee of 30 apartments within a hotel complex. The defendants ejected the plaintiff and for some years used the apartments as part of the hotel with an average occupancy rate of not more than 40%. Held. The defendants were liable for damages in trespass for the use of each apartment at the going rate for 365 days for each year of trespass notwithstanding that they had been unable to derive an income from the property for the entire time due to low occupancy rates. Lord Lloyd of Berwick said: "It is sometimes said that these cases are an exception to the rule that damages in tort are compensatory. But this is not necessarily so. It depends how widely one defines the "loss" which the plaintiff has suffered."

Mobil Oil New Zealand Ltd -v- Mandeno [1995] 3 NZLR 114
1995	Commonwealth, Landlord and Tenant	Casemap 1 Citers
	A time provision governing the time within which the lessee may serve a counternotice is of the essence.

Mraz -v- The Queen (1995) 93 CLR 493
1995 Fullagar J	Commonwealth	1 Citers
	(High Court of Australia) Fullagar J: "A jury which would hesitate to convict of murder may be only too glad to take a middle course which is offered to them."

Northern Territory -v- Mengel (1995) 69 ALJR 527
1995	Commonwealth, Torts - Other	Casemap 1 Citers
	(High Court of Australia) The court considered the ingredients of the tort of misfeasance in public office. Held: A necessary ingredient was proof of loss.

Fuller -v- State (1995) 52 WIR 424
1995 Ibrahim JA	Commonwealth, Criminal Practice	Casemap 1 Cites 1 Citers
	(Court of Appeal of Trinidad and Tobago) The court gave guidance on the need to give proper directions on identification evidence to accord with Turnbull: "We are concerned about the repeated failures of trial judges to instruct juries properly on the Turnbull principles when they deal with the issue of identification. Great care should be taken in identifying to the jury all the relevant criteria. Each factor or question should be separately identified and when a factor is identified all the evidence in relation thereto should be drawn to the jury's attention to enable them not only to understand the evidence properly but also to make a true and proper determination of the issues in question. This must be done before the trial judge goes on to deal with another factor. It is not sufficient merely to read to them the factors set out in Turnbull's case and at a later time to read to them the evidence of the witnesses. That is not a proper summing-up. The jury have heard all the evidence in the case when the witnesses testified. It will not assist them if the evidence is merely repeated to them. What they require from the judge in the final round is his assistance in identifying, applying and assessing the evidence in relation to each direction of law which the trial judge is required to give to them and also in relation to the issues that arise for their determination."

Hibbert -v- The Queen (1995) 99 CCC (3d) 193
1995 Lamer CJC	Commonwealth	Casemap 1 Citers
	(Canada) Defence of duress.

Australian Mutual Provident Society -v- National Mutual Life Association of Australasia Limited [1995] 1 NZLR
1995 Hardie Boys J	Landlord and Tenant, Commonwealth	Casemap 1 Citers
	(New Zealand Court of Appeal) The Court was asked whether a rent review clause which provided for an open review was inconsistent with the rent review being operable by the lessor alone. The lease did not contain a ratchet clause, or upwards only review clause. The judge had held that to construe the clause as operable only by the landlord was inconsistent with the absence of a ratchet clause. The words in the lease that the landlord "may" give notice requiring the rent to be reviewed had to be read as mandatory. Held: The court reversed the decision. Hardie Boys J: "With respect, we cannot agree with Barker J that the deciding factors in the construction of the document are the wording of the demise clause and the absence of a ratchet clause. In determining the construction to adopt, the Court must look at the document as a whole, rather than give emphasis to any particular part. And it must endeavour to ascertain the intention of the parties by reference to the commercial purpose, and to the practicalities, for the parties obviously intended that what they provided for should work in a sensible and realistic way. Those principles are not easy to apply in this case, for all there is is the sublease. There is no evidence of surrounding circumstances that may have provided some assistance in judging what the parties intended by the words they used. Nor is it suggested that the words used did not correctly record their agreement; there is no application for rectification or for a remedy under the Contractual Mistakes Act 1977. The case turns entirely on the sublease itself, and any inferences that may properly be drawn from it. But these are very limited. It is understandable that the sublessor may have desired rent reviews to be optional. It is equally understandable that the sublessee may have desired them to be obligatory. There are valid reasons for both alternatives. The same may be said of the short period during which the commencing rent is expressed to be payable, and of the unusual term of the lease. There are doubtless several possible explanations for both. Even if, as Barker J held, it is a reasonable inference that the omission of an express ratchet provision from cl 3.06(a) was deliberate, it does not necessarily follow that the parties must have intended that the sublessor was required to give a notice under cl 3.06(a), whether it wished to do so or not. It is quite possible that what they intended was that, while the sublessor would not be required to invoke cl 3.06(a) at each review date, if it elected to do so it would accept the risk that despite its expectations the result would be that the rent was fixed at less than the rent previously applicable. That approach may well accord with commercial reality."

Arbitrators' Institute of New Zealand Inc -v- Legal Services Board [1995] 2 NZLR 202
1995	Commonwealth, Legal Aid	Casemap 1 Citers
	(New Zealand) A dispute had been referred to arbitration, and the question was whether a private arbitrator was a "judicial authority". Held: In their natural and ordinary meaning those words referred to a person or body: "… having power to judge a matter before it, which power is derived from the state." After a lengthy examination of the statutory context and its legislative history, the judge concluded that a private arbitrator, whose authority derived from the consent of the parties and not from the state, was not a "judicial authority" within the meaning of the subparagraph.

Telecom Corporation of New Zealand Ltd -v- Clear Communications Ltd [1995] 1 NZLR 385
1995	Commonwealth, Commercial	Casemap 1 Citers
	(New Zealand) A trader is entitled, before he enters upon a line of conduct which is designed to affect his competitors, to know with some certainty whether or not what he proposes to do is lawful. The meaning and effect of section 36 of the 1986 Act is that use of a dominant position otherwise than for one of the proscribed purposes does not constitute a breach. Nor does the fact that a person has acted in order to achieve one of the proscribed purposes constitute a breach unless he has used his dominant position to achieve those purposes. The minority say that the purpose of section 36 is to prevent use of a dominant position for the purpose of stifling competition.
	Commerce Act 1986 36(1)

Warman International Ltd -v- Dwyer [1995] 128 ALR 201
1995	Trusts, Commonwealth	Casemap 1 Citers
	(High Court of Australia) A fiduciary diverted a business in breach of his fiduciary duty. Held: "The outcome in cases of this kind will depend upon a number of factors. They include the nature of the property, the relevant powers and obligations of the fiduciary and the relationship between the profit made and the powers and obligations of the fiduciary. Thus, according to the rule in Keech v. Sanford, a trustee of a tenancy who obtains for himself the renewal of a lease holds the new lease as a constructive trustee, even though the landlord is unwilling to grant it to the trust. . . . A similar approach will be adopted in a case in which a fiduciary acquires for himself a specific asset which falls within the scope and ambit of his fiduciary responsibilities, even if the asset is acquired by means of the skill and expertise of the fiduciary and would not otherwise have been available to the person to whom the fiduciary duty is owed. But a distinction should be drawn between cases in which a specific asset is acquired and cases in which a business is acquired and operated. Such a distinction was drawn by Upjohn J in In re Jarvis (decd) in the context of considering a defence of laches, acquiescence and delay. However, in our view, the distinction is also relevant in the context of the fiduciary's liability to account for profits." Their Honours continued: "In the case of a business it may well be inappropriate and inequitable to compel the errant fiduciary to account for the whole of the profit of his conduct of the business or his exploitation of the principal's goodwill over an indefinite period of time. In such a case, it may be appropriate to allow the fiduciary a proportion of the profits, depending upon the particular circumstances. That may well be the case when it appears that a significant proportion of an increase in profits has been generated by the skill, efforts, property and resources of the fiduciary, the capital which he has introduced and the risks he has taken, so long as they are not risks to which the principal's property has been exposed. Then it may be said that the relevant proportion of the increased profits is not the product or consequence of the plaintiff's property but the product of the fiduciary's skill, efforts, property and resources. This is not to say that the liability of a fiduciary to account should be governed by the doctrine of unjust enrichment, though that doctrine may well have a useful part to play; it is simply to say that the stringent rule requiring a fiduciary to account for profits can be carried to extremes and ... in cases outside the realm of specific assets the liability of the fiduciary should not be transformed into a vehicle for the unjust enrichment to the Plaintiff".

La Compagnie Sucriere -v- Government of Mauritius [1995] (3) LRC 494 PC
1995 PC	Commonwealth, Constitutional	Casemap 1 Citers
	Section 1 of the constitution of Mauritiius dealt with deprivation of property and section 6 dealt with compulsory purchase; neither dealt with legislative extinction of title with a provision for overreaching into the purchase price.

Trobridge -v- Hardy (1955) 94 CLR 147
1995	Commonwealth, Police, Personal Injury	Casemap 1 Citers

Green -v- Johnston (1995) 2 VR 176
1995 Beach J	Commonwealth, Coroners
	(Victoria High Court) Beach J: "In a multicultural society, such as we have in this country, it is my opinion that great weight should be given to the cultural and spiritual laws and practices of various cultural groups forming our society, and that great care should be taken to ensure that their laws and practices, assuming they are otherwise lawful, are not disregarded or abused."

New Zealand Guardian Trust Co Ltd -v- Brooks
5 Jan 1995 PC	Company, Commonwealth
	(New Zealand) Trustees release of company also released directors as joint tortfeasors.

Co Williams Construction Ltd -v- Blackman and Another (Barbados)
5 Jan 1995 PC	Judicial Review, Commonwealth
	Government decision to accept higher tender on ministers advice was reviewable.

Dr. Radhayshyam Ramdenee V. The General Medical Council Co (The General Medical Council) [1995] UKPC 1
11 Jan 1995 PC	Commonwealth
	Link[s] omitted

Lesline Ho Young And, Norles Holdings Ltd V. Ardon Bess (Administrator of The Estate of Norton Wilfred Bess, Deceased) And, Ardon Bess Co (St. Vincent and Grenadines) [1995] UKPC 2
19 Jan 1995 PC	Commonwealth
	Link[s] omitted

Hoecheong Products Co Ltd V. Cargill Hong Kong Ltd Co (Hong Kong) [1995] UKPC 4
2 Feb 1995 PC	Commonwealth
	[ Bailii ]

Rita Marley and Others V. Mutual Security Merchant Bank and Trust Co Ltd Co (Jamaica) [1995] UKPC 3
2 Feb 1995 PC	Commonwealth
	Link[s] omitted

Dr. Gurdev Singh Jettle V. The General Medical Council Co (The General Medical Council) [1995] UKPC 5
14 Feb 1995 PC	Commonwealth
	Link[s] omitted

Director of Buildings and Lands -v- Shun Fung Ironworks Ltd [1995] 2 AC 111
20 Feb 1995 PC Lord Nicholls, Lord Keith of Kinkel, Lord Mustill, Lord Slynn of Hadley, Lord Lloyd of Berwick	Land, Commonwealth, Damages	Casemap 1 Citers
	Compensation is payable for losses properly anticipating resumption of possession of the land. The principle of equivalence gives rise to the statutory right to interest under section 11(1). The council explained the conceptual foundation of the discounted cash flow basis of calculation: "In this calculation the discount rate, or capitalisation rate, comprises the rate at which an amount of money payable at a future date should be reduced to arrive at its present value. Its present value is the price which a person would pay now for the right or prospect of receiving the amount of money in question at the future date. Three ingredients can be identified in the discount rate. One is the rate of return the potential purchaser would expect on his money, assuming that the payment to him at the future date is free of risk. A second ingredient is the allowance the potential purchaser would make because of the likely impact of inflation. He is buying today, in today's currency, the right to be paid at a future date an amount which, when paid, will be paid in tomorrow's depreciated currency. The third ingredient is the risk factor. The greater the risk that the purchaser will not receive in due course the future payments he is buying, the higher the rate of return he will require."
	Compulsory Purchase Act 1965 11(1)
	Link[s] omitted

Arthur Mills, Garfield Mills, Julius Mills And, Balvin Mills V. The Queen Co (Jamaica) [1995] UKPC 6
20 Feb 1995 PC	Commonwealth
	Link[s] omitted

Director of Buildings and Lands V. Shung Fung Ironworks Ltd and Cross-Appeal Co (Hong Kong) [1995] UKPC 7
20 Feb 1995 PC	Commonwealth
	Link[s] omitted

Ho Young -v- Bess (Saint Vincent)
22 Feb 1995 PC	Land, Commonwealth
	Land forfeiture rule was discretionary not automatic-passed on death.

Inverugie Investments Ltd V. Richard Hackett Co (Bahamas) [1995] UKPC 8
27 Feb 1995 PC	Commonwealth
	Link[s] omitted

Mills and Others -v- The Queen [1995] 1 WLR 511
1 Mar 1995 PC	Criminal Practice, Evidence, Commonwealth	Casemap 1 Citers
	A judge's identification direction need not always warn on the need for witnesses to be convincing. An unsworn statement from a defendant is significantly inferior to oral evidence.

Hoecheong Products Ltd -v- Cargill Hong Kong Ltd
15 Mar 1995 PC	Litigation Practice, Commonwealth
	A new ground was not to be raised on appeal without full opportunity to test it.

Christopher Brown And, Everald Mclaughlin V. The Queen Co (Jamaica) [1995] UKPC 9
23 Mar 1995 PC	Commonwealth
	Link[s] omitted

Nellia Vitalis V. Wallace Domingo Sanchez Co (St. Lucia) [1995] UKPC 12
3 Apr 1995 PC	Commonwealth
	Link[s] omitted

Larry Raymond Jones, Peter Meadows, Anthony Neely, Jeremiah Poiter, Arnold Heastie And, Nekita John Hamilton V. The Attorney General of The Commonwealth of The Bahamas Co (Bahamas) [1995] UKPC 10
3 Apr 1995 PC	Commonwealth
	Link[s] omitted

Philip Herman Bethel V. Rt. Hon. Sir William Randolph Douglaw, Kcmg, Edwin P. Minnis, Gerald Montes De Oca And, The Attorney General of The Commonwealth of The Bahamas Co (Bahamas) [1995] UKPC 13
3 Apr 1995 PC	Commonwealth
	Link[s] omitted

Ramdass Bidaisee V. Dorinda Yusidai Sampath and Others Co (Trinidad and Tobago) [1995] UKPC 11
3 Apr 1995 PC	Commonwealth
	Link[s] omitted

Dennis Lobban V. The Queen Co (Jamaica) [1995] UKPC 15
6 Apr 1995 PC	Commonwealth
	Link[s] omitted

Rupert Crosdale V. The Queen Co (Jamaica) [1995] UKPC 14
6 Apr 1995 PC	Commonwealth
	Link[s] omitted

Rupert Crosdale -v- The Queen [1995] 1 WLR 864; [1995] UKPC 1; Appeal No 13 of 1994
6 Apr 1995 PC	Criminal Practice, Commonwealth	Casemap 1 Citers
	(Jamaica) A court's insistence that a submission of no case to answer must be made in the presence of jury was unfair. When considering submissions of no case to answer, the judge should invite the jury to retire and, if he decided to reject the plea, he should say nothing to the jury about it. Where in any case the jury had remained in court during the submissions, the question for the appeal court would be whether in the circumstances of the case there was any significant risk of prejudice having resulted from the irregularity.
	Link[s] omitted

Nigel Neil V. The Queen Co (Jamaica) [1995] UKPC 16
6 Apr 1995 PC	Commonwealth
	Link[s] omitted

Minister of State for Immigration & Ethnic Affairs -v- Ah Hin Teoh (1995) 128 ALR 353; [1995] HCA 20; (1995) 69 ALJR 423; (1995) 183 CLR 273
7 Apr 1995 Deane, Toohey, Gaudron, McHugh JJ	Commonwealth, Human Rights, International, Immigration	Casemap 1 Citers
	Austlii (High Court of Australia) International Law - Treaties - Convention ratified by Australia but not implemented by statute - Status in domestic law - Whether giving rise to legitimate expectations. Immigration - Application for permanent entry - Applicant - Married man with children in Australia - Policy requirement that applicants be of good character - Applicant convicted and imprisoned before application dealt with - Application refused because of conviction - Convention requiring governmental actions concerning children to give primary consideration to best interests of child - Convention ratified by Australia but not incorporated by statute in Australian domestic law -Whether capable of giving rise to legitimate expectation that application would be dealt with in accordance with Convention - Convention on Rights of Child, Art 3 - Migration Act 1958 (Cth), ss 6(2), 6A(1), 16(1)(c).
	Link[s] omitted

Mohd Ali Bin Burut, Ak Metassan Bin Pg Metussin And, Madtassan Bin Lamat V. The Public Prosecutor Co (Brunei Darusssalam) [1995] UKPC 17
25 Apr 1995 PC	Commonwealth
	Link[s] omitted

Lobban -v- The Queen [1995] 1 WLR 877
28 Apr 1995 PC	Criminal Evidence, Commonwealth	Casemap 1 Citers
	(Jamaica) The judge had no discretion to exclude evidence on request of co-defendant in joint trial. The exculpatory part of co-accused statement not to be excluded since it was his right to have it put in. Those who are charged with an offence allegedly committed in a joint criminal enterprise should generally be tried in a joint trial.

Mod Ali Bin Burut and Others -v- Public Prosecutor (Brunei)
28 Apr 1995 PC	Criminal Evidence, Commonwealth
	An interview whilst the suspect was manacled and hooded was plainly oppressive.

Amax Gold Mines New Zealand Ltd And, Welcome Gold Mines New Zealand Ltd -v- Alfred John Durham Moore, Winton Gill Cox, Auag Resources Ltd And, Martha Mining Ltd Co [1995] UKPC 18
9 May 1995 PC	Commonwealth
	(New Zealand)
	Link[s] omitted

Norwich Union Life Insurance Society V. The Attorney General Co (New Zealand) [1995] UKPC 19
9 May 1995 PC	Commonwealth
	Link[s] omitted

Dr. Hossain Asslamani V. The General Medical Council Co (The Health Committee of The General Medical Council) [1995] UKPC 20
16 May 1995 PC	Commonwealth
	Link[s] omitted

Royal Brunei Airlines Sdn. Bhd. V. Philip Tan Kok Ming Co (Brunei Darusssalam) [1995] UKPC 22
24 May 1995 PC	Commonwealth
	Link[s] omitted

Peter Bradshaw And, Denzil Orlando Roberts V. The Attorney General, Superintendent of Glendairy Prison And, The Chief Marshall (Barbados) [1995] UKPC 21
24 May 1995 PC	Commonwealth
	Link[s] omitted

Jones and Others -v- Attorney General of the Commonwealth of the Bahamas [1995] 1 WLR 891
24 May 1995 PC	Human Rights, Commonwealth	Casemap 1 Citers
	The death penalty was properly imposed for murder since it was a requirement of the constitution.

Bethel -v- Douglas (Bahamas)
1 Jun 1995 PC	Constitutional, Commonwealth
	A power to order a commission of enquiry was validly exercised, and witnesses were compellable.

Bradshaw -v- Attorney-General of Barbados and Others; Roberts -v- Attorney General of Barbados and Others
1 Jun 1995 PC	Criminal Sentencing, Human Rights, Commonwealth
	(Barbados) The maximum of 5 years to be spent awaiting the death penalty is appropriate and is not to be varied, even though it might be calculated broadly. It serves as a good general guideline.

New Zealand Forest Products Ltd V. The Accident Compensation Corp Co (New Zealand) [1995] UKPC 23
12 Jun 1995 PC	Commonwealth
	Link[s] omitted

Thomas Reckley -v- The Minister of Public Safety and Immigration and others (Petition for a stay of execution) [1995] UKPC 2; [1995] AC 491
13 Jun 1995 PC	Criminal Sentencing, Human Rights, Commonwealth	1 Citers
	(The Bahamas) If a serious constitutional issue is fairly raised by an appeal as to the constitutionality of the death penalty, then the death penalty must be stayed.
	Link[s] omitted

Thomas Reckley V. The Minister of Public Safety and Immigration, The Advisory Committee On The Prerogative of Mercy And, The Attorney General of The Bahamas (Bahamas) [1995] UKPC 24
13 Jun 1995 PC	Commonwealth
	[ Bailii ]

Tan Siew Gim V. The Queen Co (Hong Kong) [1995] UKPC 25
19 Jun 1995 PC	Commonwealth
	Link[s] omitted

Mohd Ali Bin Burut -v- Public Prosecutor (Brunei)
21 Jun 1995 PC	Criminal Evidence, Commonwealth
	Hooding and manacling of prisoners made subsequent admissions inadmissible.

Royal Brunei Airlines SDN BHD -v- Tan [1995] 2 AC 378; [1995] UKPC 4; [1995] 3 All ER 97
22 Jun 1995 PC Lord Nicholls of Birkenhead, Lord Nicholls	Trusts, Commonwealth	Casemap 1 Cites 1 Citers
	(Brunei) A dishonest third party to a breach of trust was liable to make good a resulting loss even though he had received no trust property. The test of knowledge was an objective one: "“knowingly” was better avoided as a defining ingredient of the liability, and that in that context the Baden categorisation was best forgotten. Although my own view is that the categorisation is often helpful in identifying different states of knowledge which may or may not result in a finding of dishonesty for the purposes of knowing assistance, I have grave doubts about its utility in cases of knowing receipt. " and "Recipient liability is restitution-based; accessory liability is not". Lord Nicholls summarised the ingredients of liability for dishonest assistance: "Drawing the threads together, their Lordships' overall conclusion is that dishonesty is a necessary ingredient of accessory liability. It is also a sufficient ingredient. A liability in equity to make good resulting loss attaches to a person who dishonestly procures or assists in a breach of trust or fiduciary obligation. It is not necessary that, in addition, the trustee or fiduciary was acting dishonestly, although this will usually be so where the third party who is assisting him is acting dishonestly. "Knowingly" is better avoided as a defining ingredient of the principle, and in the context of this principle the Baden scale of knowledge is best forgotten."
	Link[s] omitted

Meridian Global Funds Management Asia Ltd -v- Securities Commission [1995] 2 AC 500; [1995] BCC 942; [1995] 3 All ER 918; [1995] UKPC 5; [1995] 3 WLR 413; [1995] 2 BCLC 116
26 Jun 1995 PC Lord Hoffmann, Lord Keith of Kinkel, Lord Jauncev of Tullichettle, Lord Mustill, Lord Lloyd of Berwick	Financial Services, Vicarious Liability, Commonwealth, Company	1 Citers
	(New Zealand) The former managing director of Meridian used the company's funds to make it a substantial security holder but neither he nor anyone else gave the requisite statutory notice requiring every person who became a "substantial security holder" to give notice of his interest both to the company and to the Stock Exchange as soon as he knew he was a substantial security holder. The question was whether his acts or omissions were the acts or omission of the company so as to render the company liable to the statutory penalties. Held: The company was liable. It was a matter of construction in each situation to decide whether an employee's knowledge is to be imputed to his employer. It might be so imputed where this was necessary to make legislation effective. Lord Hoffmann said that the rules for attributing the acts of a director to the company are primarily in its constitution, but "These primary rules of attribution are obviously not enough to enable a company to go out into the world and do business. Not every act on behalf of the company could be expected to be the subject of a resolution of the board or a unanimous decision of the shareholders. The company therefore builds upon the primary rules of attribution by using general rules of attribution which are equally available to natural persons, namely, the principles of agency. It will appoint servants and agents whose acts, by a combination of the general principles of agency and the company's primary rules of attribution, count as the acts of the company. And having done so, it will also make itself subject to the general rules by which liability for the acts of others can be attributed to natural persons, such as estoppel or ostensible authority in contract and vicarious liability or tort. It is worth pausing at this stage to make what may seem an obvious point. Any statement about what a company has or has not done, or can or cannot do, is necessarily a reference to the rules of attribution (primary and general) as they apply to that company. Judges sometimes say that a company "as such" cannot do anything; it must act by servants or agents. This may seem an unexceptionable, even banal remark. And of course the meaning is usually perfectly clear. But a reference to a company "as such" might suggest that there is something out there called the company of which one can meaningfully say that it can or cannot do something. There is in fact no such thing as the company as such, no ding an sich, only the applicable rules. To say that a company cannot do something means only that there is no one whose doing of that act would, under the applicable rules of attribution, count as an act of the company. The company's primary rules of attribution together with the general principles of agency, vicarious liability and so forth are usually sufficient to enable one to determine its rights and obligations. In exceptional cases, however, they will not provide an answer. This will be the case when a rule of law, either expressly or by implication, excludes attribution on the basis of the general principles of agency or vicarious liability. For example, a rule may be stated in language primarily applicable to a natural person and require some act or state of mind on the part of that person "himself" as opposed to his servants or agents. This is generally true of rules of the criminal law, which ordinarily impose liability only for the actus reus and mens rea of the defendant himself. How is such a rule to be applied to a company? One possibility is that the court may come to the conclusion that the rule was not intended to apply to companies at all; for example, a law which created an offence for which the only penalty was community service. Another possibility is that the court might interpret the law as meaning that it could apply to a company only on the basis of its primary rules of attribution, i.e. if the act giving rise to liability was specifically authorised by a resolution of the board or an unanimous agreement of the shareholders. But there will be many cases in which neither of these solutions is satisfactory; in which the court considers that the law was intended to apply to companies and that, although it excludes ordinary vicarious liability, insistence on the primary rules of attribution would in practice defeat that intention. In such a case, the court must fashion a special rule of attribution for the particular substantive rule. This is always a matter of interpretation: given that it was intended to apply to a company, how was it intended to apply? Whose act (or knowledge, or state of mind) was for this purpose intended to count as the act etc. of the company? One finds the answer to this question by applying the usual canons of interpretation, taking into account the language of the rule (if it is a statute) and its content and policy." Lord Hoffmann: ". . . their Lordships would wish to guard themselves against being understood to mean that whenever a servant of a company has authority to do an act on its behalf, knowledge of that act will for all purposes be attributed to the company. It is a question of construction in each case as to whether the particular rule requires that the knowledge that an act has been done, or the state of mind with which it was done, should be attributed to the company. Sometimes, as in In re Supply of Ready Mixed Concrete (No. 2) [1995] 1 A.C. 456 and this case, it will be appropriate….. On the other hand, the fact that a company's employee is authorised to drive a lorry does not in itself lead to the conclusion that if he kills someone by reckless driving, the company will be guilty of manslaughter. There is no inconsistency. Each is an example of an attribution rule for a particular purpose, tailored as it always must be to the terms and policies of the substantive rule."
	Link[s] omitted

Meridian Global Funds Management Asia Ltd V. The Securities Commission Co (New Zealand) [1995] UKPC 26
26 Jun 1995 PC	Commonwealth
	Link[s] omitted

Dr. Nazir Ahmad Dhar -v- The General Medical Council Co (The General Medical Council) [1995] UKPC 27
26 Jun 1995 PC	Commonwealth
	Link[s] omitted

Colonial Mutual General Insurance Co Ltd V. Anz Banking Group (New Zealand) Ltd Co (New Zealand) [1995] UKPC 28
27 Jun 1995 PC	Commonwealth
	Link[s] omitted

McAuliffe -v- The Queen (1995) 69 ALJR 621; [1995] HCA 37; (1995) 130 ALR 26; (1995) 183 CLR 108
28 Jun 1995	Commonwealth, Crime	Casemap 1 Citers
	Austlii (High Court of Australia) Criminal Law - Murder - Complicity - Common purpose to assault victim - Death - Direction that jury might convict if satisfied accused contemplated that intentional infliction of grievous bodily harm possible incident of joint enterprise.
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Mark Gregory Hardy V. Focus Insurance Co Ltd (In Liquidation) Co (Bermuda) [1995] UKPC 29
13 Jul 1995 PC	Commonwealth
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Dr. Marta Stefan V. The General Medical Council Co (The Health Committee of The General Medical Council) [1995] UKPC 30
17 Jul 1995 PC	Commonwealth
	Link[s] omitted

Colonial Mutual General Insurance Co Ltd -v- Anz Banking Corporation (NZ) Ltd
19 Jul 1995 PC	Insurance, Commonwealth
	Notice of mortgagees interest in fire policy sufficient equitable assignment.

Morris Manning and the Church of Scientology of Toronto -v- S Casey Hill and The Attorney General for Ontario and others 1995 CanLII 59 (S.C.C.)
20 Jul 1995 La Forest, L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci and Major JJ	Commonwealth	Casemap 1 Citers
	(Supreme Court of Canada) The publication of defamatory statements 'constitutes an invasion of the individual's personal privacy and is an affront to that person's dignity'.
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Mercedes-Benz Ag V. Herbert Heinz Horst Leiduck Co (Hong Kong) [1995] UKPC 31
24 Jul 1995 PC	Commonwealth
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Dr. Chanabasappa Kuruvatteppa Shettar V. The General Medical Council Co (The General Medical Council) [1995] UKPC 36
25 Jul 1995 PC	Commonwealth
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Dr. Kenneth Conrad Wickramasinghe V. The General Medical Council Co (The General Medical Council) [1995] UKPC 32
25 Jul 1995 PC	Commonwealth
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Norris Taylor V. The Queen Co (Jamaica) [1995] UKPC 35
26 Jul 1995 PC	Commonwealth
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Chan Chi Hung V. The Queen Co (Hong Kong) [1995] UKPC 33
26 Jul 1995 PC	Commonwealth
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Dr. Christian Mervyn Abiodun Vincent V. The General Medical Council Co (The General Medical Council) [1995] UKPC 37
26 Jul 1995 PC	Commonwealth
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Nigel Coley V. The Queen Co (Jamaica) [1995] UKPC 34
26 Jul 1995 PC	Commonwealth
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Chan (Chi Hung) -v- The Queen
7 Aug 1995 PC	Criminal Sentencing, Commonwealth
	A sentence may be passed in the light of a statutory reformulation of the offence after the charge. The sentence in this case remained appropriate.

Mercedes Benz Ag -v- Leiduck [1996] 1 AC 284
11 Aug 1995 PC Lord Mustill	Litigation Practice, Commonwealth	Casemap 1 Citers
	Mareva relief is not available against a foreigner outside the UK in order to support a court action abroad. A Mareva injunction is not itself a substantive relief and so was not available to support foreign proceedings. A freezing order has to be in support of an extant cause of action, and cannot be made "in the air."

Botiuk -v- Toronto Free Press Publications Ltd [1995] 3 SCR 3
21 Sep 1995 Present: La Forest, L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci and Major JJ	Commonwealth, Defamation	Casemap 1 Citers
	(Supreme Court of Canada) Defamation was alleged against lawyers writing on behalf of their clients. Held: The defendant lawyers were 'duty-bound' to undertake a reasonable investigation into the correctness of the document they were signing and their failure to do so was reckless: 'actions which might be characterized as careless behaviour in a lay person could well become reckless behaviour in a lawyer'.
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The Commissioner of Inland Revenue V. Mitsubishi Motors New Zealand Ltd Co (New Zealand) [1995] UKPC 38
3 Oct 1995 PC	Commonwealth
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Ter Neuzen v Korn [1995] 3 SCR 674
19 Oct 1995 La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ	Commonwealth, Contract, Negligence, Damages
	CANLII (Supreme Court of Canada) The plaintiff underwent AI treatment by the defendant, during the course of which she contracted HIV-AIDS. She claimed in negligence and contract. Held. A court must consider whether a common law warranty of fitness and merchantability should be implied into the contract which includes services as well as the provision of materials. However, such a warranty will not be implied in all circumstances. The court must examine the specific nature of the contract and the relationship between the parties in order to assess whether it was the intention of the parties that such a warranty be implied. Courts must be very cautious in their approach to implying contractual terms. A rationale for implying warranties in contracts of goods and services is that a supplier of goods generally has recourse against the manufacturer under the Sale of Goods Act as a result of the statutory conditions imposed. While it is true that the primary purpose of the implied warranty is to hold the supplier of goods liable notwithstanding the absence of negligence, different considerations apply in the context of the medical profession than in the ordinary commercial context. The doctor cannot trace the liability back to the initial manufacturer. Moreover, it must be recognized that biological products such as blood and semen, unlike manufactured products, carry certain inherent risks. It would be inappropriate to imply a warranty of fitness and merchantability in the circumstances of this case. Moreover, any warranty would simply be to take reasonable care.
	[ Canlii ]

George Pollard -v- The Queen [1995] UKPC 40
30 Oct 1995 PC Jauncey, Browne-Wilkinson, Mustill, Slynn of Hadley, LL, Hardie Boys J	Commonwealth, Criminal Practice	Casemap 1 Citers
	(St. Vincent and The Grenadines) A notice of appeal which was required by statute to be given "in such manner as may be directed by rules of court", but which did not comply with such rules because it was not signed by the appellant personally, was nonetheless a notice within the meaning of the relevant statutory provision, at least once the irregularity was waived by the court, and that such waiver validated the notice from the date of its lodging and did not merely bring into existence for the first time a valid notice.
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Panel On Takeovers & Mergers and Another -v- William Cheng Kai-Man Co [1995] UKPC 39
30 Oct 1995 PC	Commonwealth, Company
	(Hong Kong)
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Calvin Douglas V. The Queen Co (Jamaica) [1995] UKPC 41
31 Oct 1995 PC	Commonwealth
	[ Bailii ]

Commissioner for Inland Revenue -v- Mitsubishi Motors New Zealand Ltd [1996] AC 315
1 Nov 1995 PC Lord Hoffmann	Income Tax, Commonwealth
	(New Zealand) The taxpayer company sold cars to its dealers who resold them with warranties, for which it gave the dealers indemnities calculated on statistical average. The company sought to set off the reserve it created to make payments under the indemnities against the revenue of the year in which the cars were sold. The commissioner appealed its case to the Board. Held: The reserve was claimable in the year of the car sale, even though the losses remained contingent. On the year of the sale the company acquired an accrued legal obligation, and had properly deducted the liabilities incurred against its profits.
	Inland revenue Act 1976 (New Zealand) 104

Wong Mee (Also Known As Wong Shi (Otherwise Spelt Sai) Nui), The Administratrix of The Estate of Ho Shui Yee, Deceased V. Kwan Kin Travel Services Ltd, China Travel Services Co (Zhong Shan) And, Pak Tang Lake Travel Services Co (Doumen County) Co (Hong K [1995] UKPC 42
6 Nov 1995 PC	Commonwealth
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Lincoln Anthony Guerra V. Cipriani Baptiste and Others Co (Trinidad and Tobago) [1995] UKPC 43
6 Nov 1995 PC	Commonwealth
	[ Bailii ]

Lincoln Anthony Guerra -v- Cipriani Baptiste and others (No 2) [1995] UKPC 3; Appeal No 11 of 1995; [1996] 1 A C 397
6 Nov 1995 PC	Human Rights, Criminal Sentencing, Constitutional, Commonwealth	Casemap 1 Cites 1 Citers
	(Trinidad and Tobago) The execution of a prisoner after a substantial delay of 5 years was a breach of his constitutional rights, constituting cruel and unusual punishment.
	[ Bailii ] - [ PC ]

Stephen Alexander Allen V. The General Dental Council Co (The General Dental Council) [1995] UKPC 45
16 Nov 1995 PC	Commonwealth
	Link[s] omitted

Pupuke Service Station Ltd V. Caltex Oil (N.Z.) Ltd Co (New Zealand) [1995] UKPC 44
16 Nov 1995 PC	Commonwealth
	[ Bailii ]

Shand -v- The Queen [1996] 1 WLR 67; [1995] UKPC 46
27 Nov 1995 PC Lord Slynn	Criminal Evidence, Commonwealth	Casemap 1 Citers
	(Jamaica) The case for the defence was that the identification witnesses were deliberately lying and it was not suggested that they were mistaken, so that the sole line of defence was fabrication. The identification evidence was exceptionally good and the court applied the test in Domican v R, that the jury acting reasonably and properly would have returned the same verdict had the judge given them the appropriate Turnbull warning and explanation and that no miscarriage of justice had occurred. Held: A Turnbull identification direction can be briefer if it was an attack on credibility. Lord Slynn said: "no precise form of words need be used so long as the essential elements of the warning are given to the jury", and "the cases in which the warning can be entirely dispensed with must be wholly exceptional, even where credibility is the sole line of defence. In the latter type of case the judge should normally, and even in the exceptional case would be wise to tell the jury in an appropriate form to consider whether they are satisfied that the witness was not mistaken in view of the danger of the mistake referred to in R v Turnbull [1977] Q.B. 224."
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Larry Raymond Jones V. The Queen Co (Bahamas) [1995] UKPC 47
27 Nov 1995 PC	Commonwealth
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Peter Amarat Rama V. Christopher Alexander Millar Co (New Zealand) [1995] UKPC 49
30 Nov 1995 PC	Commonwealth
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Dr. David Noel Mccandless V. The General Dental Council Co (The General Dental Council) [1995] UKPC 52
11 Dec 1995 PC	Commonwealth
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J. Subramanien and Others V. The Government of Mauritius and Others Co (Mauritius) [1995] UKPC 51
11 Dec 1995 PC	Commonwealth
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Robert William James Plenderleith V. The Royal College of Veterinary Surgeons Co (The Disciplinary Committee of The Royal College of Veterinary Surgeons) [1995] UKPC 50
11 Dec 1995 PC	Commonwealth
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Haneet Chandru Vaswani V. Italian Motors (Sales and Services) Ltd Co (Hong Kong) [1995] UKPC 48
12 Dec 1995 PC	Commonwealth
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La Compagnie Sucriere De Bel Ombre Ltee and 9 Others V. The Government of Mauritius Co (Mauritius) [1995] UKPC 53
13 Dec 1995 PC	Commonwealth
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Zyk -v- Zyk [1995] FamCA 135
15 Dec 1995 Nicholson CJ, Fogarty and Baker JJ	Family, Commonwealth	Casemap 1 Citers
	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.
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Vaswani -v- Italian Motors (Sales and Services) Ltd
15 Dec 1995 PC	Contract, Commonwealth
	A seller's request for a higher price did not destroy his ability to forfeit the deposit paid when the buyer chose not to proceed.

David Eves V. Hambros Bank (Jersey) Ltd Co (Jersey) [1995] UKPC 55
18 Dec 1995 PC	Commonwealth
	Link[s] omitted

Dr. Subhash Chandra Malliwal V. The General Medical Council Co (The Health Committee of The General Medical Council) [1995] UKPC 56
18 Dec 1995 PC	Commonwealth
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Personal Representatives of Tang Man Sit -v- Capacious Investments Ltd Times, 26 December 1995; [1996] AC 514; [1995] UKPC 54; [1996] 1 All ER 193; [1996] 2 WLR 192
18 Dec 1995 PC Lord Nicholls of Birkenhead	Damages, Commonwealth	Casemap 1 Cites 1 Citers
	The claimant, Capacious Investments Ltd, brought proceedings against Tang's estate for damages for the loss of use and occupation, and also an account of profits and damages for loss and damage incurred, for example by encumbering the property with leases. It obtained an account of profits and an award of compensatory damages as a result of the same breach of trust. The PRs appealed. Held: The claimant could elect to receive the higher award to which it was entitled but it had to give credit against the damages for loss of use and occupation for the sums received pursuant to the account of profits. Moreover, there was nothing inconsistent between the claim for damage to the property and the claim for damages for loss of use. These were in effect cumulative remedies claimed on a basis which was consistent between themselves. An action for account is an alternative claim, and is not cumulative to a claim for damages. Courts should distinguish election between remedies from election between rights. Lord Nicholls of Birkenhead ex plained the nature of alternative and cumulative damages awards: "The law frequently affords an injured person more than one remedy for the wrong he has suffered. Sometimes the two remedies are alternative and inconsistent. The classic example, indeed, is (1) an account of the profits made by a defendant in breach of his fiduciary obligations and (2) damages for the loss suffered by the plaintiff by reason of the same breach. The former is measured by the wrongdoer's gain, the latter by the injured party's loss. Sometimes the two remedies are cumulative. Cumulative remedies may lie against one person. A person fraudulently induced to enter into a contract may have the contract set aside and also sue for damages. Or there may be cumulative remedies against more than one person. A plaintiff may have a cause of action in negligence against two persons in respect of the same loss. Alternative remedies Faced with alternative and inconsistent remedies a plaintiff must choose, or elect, between them. He cannot have both. The basic principle governing when a plaintiff must make his choice is simple and clear. He is required to choose when, but not before, judgment is given in his favour and the judge is asked to make orders against the defendant. A plaintiff is not required to make his choice when he launches his proceedings. He may claim one remedy initially, and then by amendment of his writ and his pleadings abandon that claim in favour of the other. He may claim both remedies, as alternatives. But he must make up his mind when judgment is being entered against the defendant. Court orders are intended to be obeyed. In the nature of things, therefore, the court should not make orders which would afford a plaintiff both of two alternative remedies. In the ordinary course, by the time the trial is concluded a plaintiff will know which remedy is more advantageous to him. By then, if not before, he will know enough of the facts to assess where his best interests lie. There will be nothing unfair in requiring him to elect at that stage. Occasionally this may not be so. This is more likely to happen when the judgment is a default judgment or a summary judgment than at the conclusion of a trial. A plaintiff may not know how much money the defendant has made from the wrongful use of his property. It may be unreasonable to require the plaintiff to make his choice without further information. To meet this difficulty, the court may make discovery and other orders designed to give the plaintiff the information he needs, and which in fairness he ought to have, before deciding upon his remedy. A recent instance where this was done is the decision of Lightman J. in Island Records Ltd. v. Tring International Plc. [1995] 3 All E.R. 444. The court will take care to ensure that such an order is not oppressive to a defendant. In the ordinary course the decision made when judgment is entered is made once and for all. That is the normal rule. The order is a final order, and the interests of the parties and the public interest alike dictate that there should be finality. The principle, however, is not rigid and unbending. Like all procedural principles, the established principles regarding election between alternative remedies are not fixed and unyielding rules. These principles are the means to an end, not the end in themselves. They are no more than practical applications of a general and overriding principle governing the conduct of legal proceedings, namely, that proceedings should be conducted in a manner which strikes a fair and reasonable balance between the interests of the parties, having proper regard also to the wider public interest in the conduct of court proceedings. Thus in Johnson v. Agnew [1980] A.C. 367 the House of Lords held that when specific performance fails to be realised, an order for specific performance may subsequently be discharged and an inquiry as to damages ordered. Lord Wilberforce observed, at p. 398: "Election, though the subject of much learning and refinement, is in the end a doctrine based on simple considerations of common sense and equity. Cumulative remedies The procedural principles applicable to cumulative remedies are necessarily different. Faced with alternative and inconsistent remedies a plaintiff must choose between them. Faced with cumulative remedies a plaintiff is not required to choose. He may have both remedies. He may pursue one remedy or the other remedy or both remedies, just as he wishes. It is a matter for him. He may obtain judgment for both remedies and enforce both judgments. When the remedies are against two different people, he may sue both persons. He may do so concurrently, and obtain judgment against both. Damages to the full value of goods which have been converted may be awarded against two persons for successive conversions of the same goods. Or the plaintiff may sue the two persons successively. He may obtain judgment against one, and take steps to enforce the judgment. This does not preclude him from then suing the other. There are limitations to this freedom. One limitation is the so called rule in Henderson v. Henderson (1843) 3 Hare 100. In the interests of fairness and finality a plaintiff is required to bring forward his whole case against a defendant in one action. Another limitation is that the court has power to ensure that, when fairness so requires, claims against more than one person shall all be tried and decided together. A third limitation is that a plaintiff cannot recover in the aggregate from one or more defendants an amount in excess of his loss. Part satisfaction of a judgment against one person does not operate as a bar to the plaintiff thereafter bringing an action against another who is also liable, but it does operate to reduce the amount recoverable in the second action. However, once a plaintiff has fully recouped his loss, of necessity he cannot thereafter pursue any other remedy he might have and which he might have pursued earlier. Having recouped the whole of his loss, any further proceedings would lack a subject matter. This principle of full satisfaction prevents double recovery."
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