International Decisions of Interest - Recent
| DISCLAIMER: Subject to operation of the law, the Supreme Court (NSW) disclaims all warranties or representations regarding the relevance, accuracy, completeness or currency of the summaries below. These summaries should not be taken to be legal advice. The Supreme Court (NSW) is not liable for any loss or damage incurred through the use of these summaries. Users should not rely on these summaries and should conduct their own research and/or seek professional advice. The Supreme Court (NSW) is not responsible for any material on linked websites. Users should consider any disclaimers on linked websites. Full text judgments are available from Caselaw NSW. |
The International Decisions webpage provides a summary of some important decisions from other common law jurisdictions that may be of interest to legal practitioners and law students in Australia. The coverage is not exhaustive. This page features summaries of recent decisions handed down in the United Kingdom, Canada, Hong Kong, India, New Zealand, Singapore and the United States. Focus is principally on the courts of final appeal in these jurisdictions however decisions from the Privy Council, New Zealand Court of Appeal and the New York Court of Appeals are also included.
Recent and historical International Decisions of Interest handed down since the commencement of the project in August 2009 are also available for perusal by area of law.
United Kingdom
Insurance: Asbestos and Mesothelioma; whether employers’ liability insurance policies covered employers in respect of mesothelioma compensation claims; Court held necessary to take broader approach interpreting policies with pure “sustained” wordings; "sustained" therefore looked to the causation of the accident or disease which injured the employee; the disease could properly be said to have been sustained in the period it was caused, even though it only manifested itself subsequently; Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 explained; for the purposes of the insurances, liability for mesothelioma following upon exposure to asbestos created during an insurance period involved a sufficient weak, or broad, causal link for the disease to be regarded as "caused" within the insurance period and therefore for the policies to respond.
Employers' Liability Insurance "Trigger" Litigation: BAI (Run Off) Ltd v Durham & Ors [2012] UKSC 14
Immigration: Asylum seekers; leave to remain; leave to enter under temporary admission; whether a refugee was entitled to the protection of the Convention relating to the Status of Refugees 1951 (UN) article 32; the court held that temporary admission or leave to enter for the purpose of the determination of a claim for asylum did not render a stay lawful for the purposes of article 32.
ST (Eritrea) v Secretary of State for the Home Department [2012] UKSC 10
Civil Procedure: nuclear tests; veterans and service personnel; knowledge; limitation periods; appeal on personal injury claims brought by servicemen alleging that they had suffered personal injuries as a result of exposure to radiation during nuclear tests carried out by the Ministry of Defence in the 1950’s were time-barred under the Limitation Act 1980; what constitutes ‘knowledge’ for the purposes of s 14(1)(b) Limitation Act 1980; endorsed Lord Donaldson’s formulation in Halford v Brookes (No 1) [1991] W.L.R. 428; not possible for a claimant to begin proceedings before having acquired the knowledge required by s 14(1)(b) that his injuries were attributable to the defendant’s negligence; the court should not exercise its s 33 discretion.
Ministry of Defence v B / BA v Ministry of Defence [2012] UKSC 9
Family Law: Appeal against order made pursuant to article 12 of the Convention on the Civil Aspects of International Child Abduction and section 1(2) of the Child Abduction and Custody Act 1985 for mother to immediately return child W, to Australia. Mother removed W from Australia without consent of father or permission of an Australian court. Where disputed allegations of domestic abuse are made; the Court of Appeal erred in specifying the crucial question as being whether the mother’s anxieties were realistically and reasonably held; Court affirmed Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27: a defence under article 13(b) can be founded upon the anxieties of a parent about a return with child to the state of habitual residence, which were not based upon objective risk to her, but were nevertheless of such intensity as to be likely to destabilise the parenting of that child to the point at which the child’s situation would become intolerable.
In the Matter of S (a Child) [2012] UKSC 10
Administrative Law: Freedom of Information Act 2000 Sch. 1; appeal against decision that for the purposes of Sch.1 information that was established to have been held for genuine journalistic purpose was effectively exempt from production under the Act even if it had also been held for other purposes; dominant purpose test; request for information; public authorities; access to information; right to receive and impart information.
Sugar (Deceased) (Represented by Fiona Paveley) v BBC & Anor [2012] UKSC 4
Employment law: unfair dismissal; conflict of laws: jurisdiction; British citizen working in Libya for German company when employment was terminated; whether s 94(1) of the Employment Rights Act 1996 applies; what connection between Great Britain and the employment relationship if required to confer rights on employees working abroad; Lawson v Serco Ltd [2006] UKHL 3; Duncombe v Secretary of State for Children, Schools and Families (no 2) [2011] UKSC 36.
Ravat v Halliburton Manufacturing and Services Ltd [2012] UKSC 1
Human Rights: European Convention on Human Rights 1950 art.2; suicide; informal psychiatric patient; duty of care; whether NHS Trust owed a duty under the Convention to take reasonable steps to protect informal psychiatric patient from risk of suicide; whether appellants were ‘victims’ within the meaning of art. 34 of the Convention; whether settlement of earlier negligence claim affected current claim.
Rabone and Anor v Pennine Care NHS Foundation [2012] UKSC 2
Employment law: employment contract; unfair dismissal; manner of dismissal; express terms in contract regulating procedure for dismissal on grounds of misconduct; whether the breach of an express term of an employment contract in respect of the manner of dismissal entitles an employee to recover damages at common law.
Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2011] UKSC 58
Canada
Criminal law: Evidence; Testimonial competence; Adults with mental disabilities; Whether adult witnesses with mental disabilities must demonstrate understanding of nature of obligation to tell truth in order to be deemed competent to testify; Whether finding of testimonial competence without demonstration of understanding of obligation to tell truth breaches accused’s right to fair trial; Canada Evidence Act, R.S.C. 1985, c. C-5, s. 16.
R. v. D.A.I., 2012 SCC 5
Administrative law: judicial review; procedural fairness; duty to give reasons; adequacy of reasons; whether decision of arbitrator was reasonable in satisfying the test of ‘justification, transparency and intelligibility’; application of Dunsmuir v. New Brunswick, 2008 SCC 9
Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62
Administrative law: judicial review; duty to give reasons; privacy compliant; Privacy Commissioner failed to complete inquiry within the statutorily imposed 90 day time limit; issue of timeline not raised before tribunal; issue of timeline not addressed in reasons of tribunal, however it was implied in the decision of tribunal that the extension of time did not vitiate inquiry; whether an issue that was not raised at first instance may be judicially reviewed; standard of review; reasonableness; whether reasons of tribunal in other decisions on the same issue may be considered when deciding whether the implied decision was reasonable; standard of review of an interpretation of a tribunal, operating within a statutory scheme, in respect of its governing legislation
Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61
Administrative law: judicial review; standard of review; reasonableness; arbitral award; whether the proper standard of review of an arbitral award that adopts equitable or common law remedies is reasonableness or correctness
Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59
Hong Kong
Misconduct in public office: abuse of public office; common law offence; scope and elements of offence; respondent truck driver employed by government department continued to perform driving duties when licence suspended for drink driving; determination of whether respondent a “public official” in isolation not correct approach to determining whether offence has been committed; correct approach, applying decision of A Mason NPJ in Shum Kwok Sher v HKSAR (2002) 5 HKSFAR 381, is to examine what, if any, powers or discretions or duties have been entrusted to defendant in an official position for the public benefit and asking how alleged misconduct involves abuse of those powers; respondent, as truck driver only, not entrusted with powers exercisable for public benefit and misconduct not an abuse of those powers; respondent not guilty of offence
HKSAR v Wong Linkay FACC3/2011
Insurance law: whether policies covered insured for loss sustained for interruption to business caused by Severe Acute Respiratory Syndrome (SARS); clause in policies to cover for loss sustained for business closure by competent authority due to “notifiable” infectious or contagious disease; period of loss; meaning of “notifiable”; notifiable signifies a legal obligation to notify relevant authority; commercial approach to construction of insurance contracts required
New World Harbourview Hotel Co Ltd & Ors v Act Insurance Ltd & Ors FACV12/ 2011
State immunity: nature and scope of state immunity from suit and execution; enforcement in HKSAR of arbitration awards obtained against foreign State in arbitrations held in Paris and Zurich; whether sovereign immunity extends to commercial activities; whether absolute or restrictive immunity; whether waiver of state immunity by submission to arbitration; whether, after China’s resumption of the exercise of sovereignty over Hong Kong, HKSAR courts can validly adhere to a doctrine of state immunity which adopts a commercial exception and which would be inconsistent with the policy on state immunity applied by the PRC in its relations with foreign States
Democratic Republic of the Congo & Ors v FG Hemisphere Associates LLC FACV5/2010; FACV6/2010 and FACV7/2010
India
Administrative law: judicial review; compulsory acquisition of land; public purpose; land acquired for the expansion of a depot; appellants objected to the Government under s 5A of the Land Acquisition (Amendment) Act, 1984 on two grounds; firstly, land adjacent to the depot was available for sale and secondly, the livelihood of 40 members of a family would be adversely affected if land were acquired; whether the review of the appellants' objections to the acquisition of their land by the Government was affected by illegality or irrationality; reasons not affected by illegality or irrationality
Constitutional law: compulsory acquisition of land; Article 300A of the Constitution; no provisions in the Land Acquisition (Amendment) Act, 1984 for the rehabilitation of persons displaced following acquisition of land; legislation contains inadequate protection of landowners; pronouncement of Court for an extensive enactment in relation to the compulsory acquisition of land without unnecessary delay
Ramji Veerji Patel & Others v Revenue Divisional Officer & Others [2011] INSC 1084
Administrative law: judicial review; compulsory acquisition of land; procedure; public purpose; development of housing colony; appeal against the validity of land acquisition notification issued to landowners; notification indicated that objections to acquisition needed to be filed within 15 days of publication; notification published in two newspapers however one was not a newspaper published in regional language; following publication of notification, corrigendum issued which stated that there had been a miscalculation in the measurement of land and additional land was to be acquired; corrigendum not published; whether the appellant had complied with the procedure for the notification of acquisition stipulated in the Jammu & Kashmir Land Acquisition Act, 1990; provisions strictly construed; notification procedure invalid; land acquisition proceedings quashed from the stage of the hearing of objections; landowners had 15 days to file objections to Government following their receipt of judgment
J & K Housing Board & Another v Kunwar Sanjay Krishan Kaul & Others [2011] INSC 1107
New Zealand
Taxation: tax avoidance; may be of use for comparison with avoidance provisions in Income tax Assessment Act 1936 (Cth); use of corporate and family structures; net profits of partner companies and other corporate entities paid to shareholders; meaning of “arrangement”; redistribution of income to family trust; fact that appellant did not receive income personally did not mean he was not “affected” by arrangement
Russell v Commissioner of Inland Revenue [2012] NZCA 128
Torts: intentional torts; inducing breach of contract; useful discussion of and consideration of international authority on requirement of knowledge that actions may result in breach of contract; wilful blindness; subjective test; more required than possibility of existence of contract and failure to inquire
Diver v Loktronic Industries Ltd [2012] NZCA 131
Torts: negligence; contract for sale of land contained misrepresentations as to extent of water rights; purchasers sought Land Information Memorandum from Council which contained same misrepresentations; whether duty of care owed by Council; whether loss caused by Council or vendors;
Contribution: whether contribution could be sought from Council by vendors; contribution not available where liability stems from different duties and parties not joint tortfeasors
Marlborough District Council v Altimarloch Joint Venture Ltd [2012] NZSC 11
Sexual Assault: whether failure to disclose HIV status vitiates consent to sexual intercourse; whether failure to disclose affects the nature and quality of the act; consideration of international authority
KSB v Accident Compensation Corporation [2012] NZCA 82
Employment law: collective agreement; leave entitlements; contract providing that Union employees with six years of continual service entitled to three weeks’ annual leave and additional one week of long service leave; whether changes to legislation making annual leave entitlement four weeks removed entitlement to additional week of long service leave: Employment Court erred in finding additional entitlement ceased to operate; starting point of analysis is contractual clause and not statutory purpose Service and Food Workers Union Nga Ringa Tota v Cerebos Gregg's Limited [2012] NZCA 25
Real property: lease; perpetual lease; interpretation of rent-setting provisions on renewal at 21 year intervals; determination of residual value of land pursuant to rental formula; substantial improvements of permanent character; added-value approach; whether restriction on use of land contained in lease is relevant in assessing gross value of the fee simple of the land
Procedure: jurisdiction; scope of jurisdiction under Declaratory Judgments Act, s 3
Mandic v The Cornwall Park Trust Board (Inc) [2011] NZSC 135
Real property: joint venture; property development; where respondent was real estate agent and property was listed for sale through respondent’s real estate agency; application of Real Estate Agents Act, ss 63 and 64; whether listing agreement remained in force at the time joint venture agreement was signed; whether cancellation of joint venture agreement was valid under s 63(3)
Ming Gu v Xing Hua Du [2011] NZCA 577
Singapore
Conflict of Laws: Forum non conveniens; admiralty; collision of foreign vessels of different nationalities in the Straits of Malacca; concurrent proceedings.
The “Reecon Wolf” [2012] SGHC 22
Financial and Securities Markets: insider trading; civil penalty; what did the information consist of; was the information ‘generally available’; discussion of applicable principles.
Lew Chee Fai Kevin v Monetary Authority of Singapore [2012] SGCA 12
Defamation: minutes of meeting; construction of the natural and ordinary meaning of words of the alleged defamatory material; discussion of applicable principles; defences; justification; whether "sting" of imputation was justified; qualified privilege; whether the communication was made on an occasion of qualified privilege; malice; whether defence of qualified privileged is excluded due to existence of absence
Chan Cheng Wah Bernard and others v Koh Sin Chong Freddie and another appeal
[2011] SGCA 63
United States
Judicial power and practice: habeas corpus petition; court has discretion to consider statute of limitations bar to claim of petitioner of its own initiative; discretion to do so not affected by fact that bar to claim not pursued by State; discussion of freedom of, and limitations on, courts to depart from party presentation of a case
Wood v. Milyard (No. 10-9995) 566 U. S. ____ (2012)
Sovereign immunity: action against Court of Appeals of Maryland by employee for alleged violation of workplace laws entitling employee to extended sick leave; immunity from suit of Court of Appeals as instrumentality of State; need for language in legislation abrogating immunity to be unmistakably clear; immunity not abrogated
Coleman v Court of Appeals of Md. 566 U. S. ____ (2012)
Sovereign immunity: action against government agencies for mental and emotional distress for breach of Privacy Act; disclosure of HIV status of petitioner by one government agency to another as part of investigation; Privacy Act allows recovery of “actual damages”; whether claim for mental or emotional distress “actual damages”; need for language in legislation abrogating immunity to be unmistakably clear; Privacy Act does not unequivocally allow relief for emotional or mental distress; immunity not abrogated
Federal Aviation Authority v Cooper 566 U. S. ____ (2012)
Justiciability: refusal by U.S. officials to list birthplace of petitioner as Israel when born in Jerusalem pursuant to Federal Statute; whether concerned a non-justiciable political question of Jerusalem’s political status; resolution of question concerned vindication of right under Statute and not a definition of U.S. policy regarding the political status of Jerusalem
Zivotofsky v Clinton 566 U. S. ____ (2012)
Arbitration: arbitrability of claims alleging personal injury or wrongful death against nursing homes; whether arbitration clause in nursing home admission agreement contrary to public policy; legislation of State of West Virginia prohibiting agreements to arbitrate personal injury and wrongful death claims; interaction with Federal Arbitration Act (FAA); Supreme Court of Appeals of West Virginia erred in construction of FAA requiring courts to enforce arbitration agreements; arbitration required
Marmet Health Care Center, Inc. v. Brown 565 U. S. ___ (2012)
Arbitration: arbitrability of dispute between credit card holders and corporation for alleged violations of Credit Repair Organisations Act (CROA); in absence of provision of CROA prohibiting arbitration, arbitrability to be assessed according to Federal Arbitration Act (FAA); liberal policy in FAA favouring arbitration; language in CROA stating “You have a right to sue a credit repair organization” that violates CROA insufficient to prevent disputes being settled by arbitration
CompuCredit Corp. v. Greenwood 565 U. S. ____ (2012)
Criminal: accused convicted of five counts of murder in the first degree based on testimony of single witness; State in possession of prior statements by witness contradicting testimony; duty of State to disclose to accused evidence favourable to accused; materiality of evidence; whether reasonable probability that jury would have been persuaded by undisclosed evidence; violation of due process
Smith v. Cain 565 U. S. ____ (2012)
Arbitration: enforcement of arbitration clause; refusal of Delaware State court to compel arbitration on any of four claims based solely on finding that two of the claims were nonarbitrable; where dispute involves multiple claims, some arbitrable and some not, arbitrable claims must be sent to arbitration
KPMG LLP v Robert Cocchi et al 565 US __ (2011)
Human rights: freedom of religion; whether former parishioners of a church, incorporated as a religious corporation, have the capacity to challenge a decision of the board of trustees to demolish the church; Religious Corporations Law, s 5; operation of the ‘neutral principles of law’ doctrine when resolving matters concerning religion
Mindaugas Blaudziunas v. Edward Cardinal Egan 2011 NYSlipOp 08962
|
|
