Halwood Corporation (in liq) v Roads Corporation [2008] VSC 28 (14 February 2008)
Answers to preliminary questions - Compulsory acquisition of land reserved pursuant to a planning scheme for public purposes – Claimant aware of reservation at date of purchase – ascertainment of Claimant’s interest in the land at the date of acquisition having regard to such reservation – valuation of Claimant’s land having regard to such reservation – application of the Pointe Gourde principle – common law principles - Interpretation of the Land Acquisition and Compensation Act 1986 ss. 3, 30, 40, 41(1) and (3), 43(1)(a), (b) and (d), 44, 46 – s 5A of the Valuation of Land Act 1960 – ss. 98, 99 and 106 of the Planning and Environment Act 1986 - s. 38 of the Interpretation of Legislation Act 1984 - s. 20 Charter of Human Rights and Responsibilities Act 2006.
Ferguson v Walkley & Anor [2008] VSC 7 (31 January 2008)
SUMMARY OFFENCES – Using insulting words in a public place – Test to be applied in determining whether words are insulting within the meaning of the Summary Offences Act 1966, s.7(1) - Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 applied.
Guneser v Magistrates’ Court of Victoria & Anor [2008] VSC 57 (5 March 2008)
CRIMINAL LAW – Indictable offences – No consent to summary jurisdiction – Defendant unrepresented – Delay in charging defendant with further indictable offence which could not be heard summarily – Committal proceeding – Magistrates’ Court Act 1989 s. 53 and Schedule 4
ADMINISTRATIVE LAW – Judicial review – Procedural fairness – Delay in applying for review – Supreme Court Rules, r.56.02
HUMAN RIGHTS – Transitional provisions – Act or decision of public authority – Charter inapplicable – Charter of Human Rights and Responsibilities Act 2006 ss 2, 4, 39 and 49
R v Benbrika & Ors (Ruling no 20) [2008] VSC 80 (20 March 2008)
CRIMINAL LAW – Fair trial – Conditions of incarceration and transportation of accused – Effect on psychological and physical health – Effect on fairness of trial – Trial running – Application for stay of proceedings – Fragmentation of criminal process – Exception – Conditional stay of trial – Appearances by audio visual link – ss 42K (2), 42M (2) of
Part IIA Evidence Act 1958.
Arlington Crane Service v. Ontario (Min. of Labour), (1988), 56 D.L.R. (4th) 209 (Ont. S.C.). NO LINK AVAILABLE See discussion HERE.
Comment:
“An “association” implies a common purpose. One party to labour-management negotiations seeks as high a wage as possible, the other as low as possible. They are adversaries. It is difficult to say that adversaries have a common purpose: Omni Health Care Ltd. et al. v. C.U.P.E., (Ont. Div. Ct., January 29, 1987); Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, , [1988] 5 W.W.R. 544 (Man. Q.B.); Arlington Crane Service v. Ontario (Min. of Labour), (1988), 56 D.L.R. (4th) 209 (Ont. S.C.).”
Anni Äärelä and Jouni Näkkäläjärvi v. Finland, Communication No. 779/1997 (4 February 1997), CCPR/C/73/D/779/1997 (HRC)
7.2 As to the authors’ argument that the imposition of a substantial award of costs against them at the appellate level violated their rights under article 14, paragraph 1, to equal access to the courts, the Committee considers that a rigid duty under law to award costs to a winning party may have a deterrent effect on the ability of persons who allege their rights under the Covenant have been violated to pursue a remedy before the courts. In the particular case, the Committee notes that the authors were private individuals bringing a case alleging breaches of their rights under article 27 of the Covenant. In the circumstances, the Committee considers that the imposition by the Court of Appeal of substantial costs award, without the discretion to consider its implications for the particular authors, or its effect on access to court of other similarly situated claimants, constitutes a violation of the authors’ rights under article 14, paragraph 1, in conjunction with article 2 of the Covenant. The Committee notes that, in the light of the relevant amendments to the law governing judicial procedure in 1999, the State party’s courts now possess the discretion to consider these elements on a case by case basis.
7.4 As to the author’s contention that the Court of Appeal violated the authors’ right to a fair trial contained in article 14, paragraph 1, by failing to afford the authors an opportunity to comment on the brief containing legal argument submitted by the Forestry Authority after expiry of filing limits, the Committee notes that it is a fundamental duty of the courts to ensure equality between the parties, including the ability to contest all the argument and evidence adduced by the other party. (17) The Court of Appeal states that it had “special reason” to take account of these particular submissions made by the one party, while finding it “manifestly unnecessary” to invite a response from the other party. In so doing, the authors were precluded from responding to a brief submitted by the other party that the Court took account of in reaching a decision favourable to the party submitting those observations. The Committee considers that these circumstances disclose a failure of the Court of Appeal to provide full opportunity to each party to challenge the submissions of the other, thereby violating the principles of equality before the courts and of fair trial contained in article 14, paragraph 1, of the Covenant.
Amalgamated Society of Engineers v Adelaide Steamship Company Limited (1920) 28 CLR 129 (HCA) (Engineers’ case) (HCA)
Statutory Interpretation
At 161-2 per Higgins J, it was held that: The initial question in statutory interpretation is ‘what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable’
Airedale Hospital Trustees v Bland [1992] UKHL 5 (04 February 1993)
Cite as: [1993] 2 WLR 316, [1993] 1 All ER 821, [1993] AC 789, [1992] UKHL 5
“It is on this basis that I turn to the applicable principles of law. Here,
the fundamental principle is the principle of the sanctity of human life - a
principle long recognised not only in our own society but also in most, if not
all, civilised societies throughout the modern world, as is indeed evidenced by
its recognition both in article 2 of the European Convention of Human Rights,
and in article 6 of the International Covenant of Civil and Political Rights.
But this principle, fundamental though it is, is not absolute. Indeed
there are circumstances in which it is lawful to take another man’s life, for
example by a lawful act of self-defence, or (in the days when capital
punishment was acceptable in our society) by lawful execution. We are not
however concerned with cases such as these. We are concerned with
circumstances in which it may be lawful to withhold from a patient medical
treatment or care by means of which his life may be prolonged. But here too
there is no absolute rule that the patient’s life must be prolonged by such
treatment or care, if available, regardless of the circumstances.”
AGOSI v. THE UNITED KINGDOM - 9118/80 [1986] ECHR 13 (24 October 1986)
C. Conclusion
62. The Court finds therefore that the procedure available to the
applicant company against the Commissioner’s refusal to restore the
Kruegerrands cannot be dismissed as an inadequate one for the purposes
of the requirements of the second paragraph of Article 1 (P1-1). In
particular, it has not been established that the British system failed
either to ensure that reasonable account be taken of the behaviour of
the applicant company or to afford the applicant company a reasonable
opportunity to put its case.
Continue reading ‘AGOSI v. The United Kingdom 1986 (Eu)’
Gray v DPP [2008] VSC 4 (16 January 2008)
Criminal law – Bail – Aggravated burglary – Reverse onus – Delay – Delay where applicant may serve as much or more time on remand than probable sentence – Relevance of Charter rights as to delay – Ss21 (2),(3),(5)(a),(5)(b); 25(2)(c), Charter of Human Rights and Responsibilities.