Case Law

The laws applicable to Government Regulated Superannuation Funds and their administration and regulation include:

  • Commonwealth Statutory Law
  • State Statutory Law
  • Case Law (Common law and Equity).

Australian Guardians can assist you understand your legal rights and help in obtaining legal assistance.

The links below relate to Case Law. These links will assist your legal adviser provide you with advice that could save you $100,000s or more in relation to your hard earned superannuation entitlements.

The General Laws of Trusts

The Power of Amendment

Failure to amend Deed within power 

 

Re Cavill Hotels Pty Ltd [1998] 1 Qd R 396.

Hillcrest (Ilford) Pty Ltd v Kingsford (Ilford) Pty Ltd (No.2) [2010] NSWSC 285

NSW Masonic Youth Property Trust v Attorney-General [2009] NSWSC 1301

 

 

Sovereign Trustees Ltd & Anor v Glover & Ors [2007] EWHC 1750 (Ch)

 Walker Morris Trustees Ltd.v Masterson & Anor  [2009] Pens LR 307, [2009] EWHC 1955 (Ch)

Trustee Solutions Ltd & Ors v Dubery & Anor [2006] EWHC 1426 (Ch), [2007] 1 All ER 308, [2006] Pens LR 177, [2007] ICR 412, [2006] PLR 177

Briggs & Ors v Gleeds (Head Office) & Ors [2014] EWHC 1178 (Ch)

 

Power of Amendment – Fraud on a Power

Wilson v Metro Goldwyn Mayer (1980) 18 NSWLR 730

 

 

Trustees de son tort – Cannot Exercise Amending Power

Jasmine Trustees Ltd v Wells & Hind [2007] 3 WLR 810, [2007] 1 All ER 1142, [2007] EWHC 38 (Ch)

Meier v Dorzan Pty Limited & Anor [2010] NSWSC 664

Mara v. Browne [1896] 1 Ch 199

Removal and Appointment of Trustees

Pope v DPR Nominees Pty Ltd [1999] SASC 337

Hillcrest (Ilford) Pty Ltd v Kingsford (Ilford) Pty Ltd (No 2) [2010] NSWSC 285 (16 April 2010)

Scaffidi v Montevento Holdings Pty Ltd [2011] WASCA 146

 In the matter of the Bird Trust [2008] JRC 013

The Duties of Trustees

Australian Cases

Duty to obey the Terms of the Trust

Arakella Pty Ltd V Paton (no. 2) [2004] NSWSC 605

See case summary here.

Discretionary” Decisions of Trustees of Superannuation Funds – Beneficial Interest

Finch v Telstra Super [2010] HCA 36

See case summary here

Liability of Employees of Corporate Trustees for Breach of Trust

Wickstead v Browne [1992] 30 NSWLR 1

See case summary here.

Role of the Court – General Administration

McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623

See case summary here.

Disclosure of Trust Documents

Murray v Schreuder [2009] WASC 51

McDonald v Ellis [2007] NSWSC 1068

See case summary here

Re Raymond Gerald Simersall and David Ernest Willis Blackwell v John Anthony Bray [1992] FCA 221; (1992) ALR 375

Seeking the assistance of the Court to enforce disclosure

Spellson v George (1987) 11 NSWLR 300

See case summary here.

Failure of a Trustee to Keep Accounts and Produce Trust Documents

Phillip Allan Yates v John Norman Phillips Halliday [2006] NSWSC 1346

See case summary here.

Trustee’s right for indemnity of litigation expenses properly incurred

National Trustees Executors & Agency of Australasia Ltd v Barnes [1941] HCA 3; (1941) 64 CLR 268)

 

Power to Appoint and Remove Trustees

Morgan v 45 Fiers Avenue Pty Ltd (1986) 10 ACLR 692

 

 

Dubai Aluminium Company Ltd v. Salaam  [2003] 1 All ER 97, [2003] 1 LLR 65, [2003] 1 Lloyd’s Rep 65, [2002] 3 WLR 1913, [2003] 1 BCLC 32, [2003] 1 CLC 1020, [2003] WTLR 163, [2002] UKHL 48, [2003] 2 All ER (Comm) 451, [2003] 2 AC 366, [2003] IRLR 608 

Limitations of Actions

Paragon Finance Plc v D B Thakerar & Co (A Firm) [1999] 1 ALL ER 400, [1998] EWCA Civ 1249

Fiduciary Duties

Voidable Transactions

Maguire & Tansey v Markaronis [1997] HCA 23; (1997) 188 CLR 449; (1997) 144 ALR

See case summary here.

Duty of Care

Youyang Pty Ltd v Minter Ellison Morris Fletcher [2003] HCA 15; 212 CLR 484; 196 ALR 482; 77 ALJR 985

See case summary here.

 English Cases

Duty to inform the beneficiaries not only of the existence of the trust but also the beneficiaries’ rights under the trust

Hawkesley v May [1956] 1 QB 304

See case summary here.

Irreducible Core Obligations” of Trustees

Armitage v Nurse [1997] Pens LR 51, [1997] 2 All ER 705, [1998] Ch 241, [1997] 3 WLR 1046, [1997] EWCA Civ 1279

Is the leading decision in English trusts law concerning the validity of exemption clauses. The Court of Appeal held that in English law trustee exemption clauses can validly exempt trustees from liability for all breaches of trust except fraud (ie dishonesty). Millet LJ gave the leading judgment and confirmed that there are “irreducible core obligations” owed by Trustees and if of those obligations are missing then there are no trusts .

{Note: The Statutory Law defines the liability of Trustees of Government Regulated Superannuation FundsSection 57 of the Superannuation Industry (Supervision) Act 1993}

Mothew v Bristol and West Building Society [1996] EWCA Civ 533

Fiduciary Duties Cases

A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary. As Dr. Finn pointed out in his classic work Fiduciary Obligations (1977 ed.p. 2), he is not subject to fiduciary obligations because he is a fiduciary; it is because he is subject to them that he is a fiduciary“.(per Lord Justice Millet)

 Target Holdings Ltd v Redferns [1995] UKHL 10

A House of Lords English trusts law case concerning the test for causation and the extent of compensation for Breaches of Trust.

Discretionary Decisions of Trustees

Telstra Super v Flegeltaub [2000] VSCA 180 (2000) 2 VR 276

Pitt & Anor v Holt & Anor [2011] Pens LR 175, [2011] WTLR 623, 13 ITELR 749, [2011] STC 809, [2011] EWCA Civ 197, [2011] 3 WLR 19, [2011] 2 All ER 450, [2011] STI 743

Reliance on Legal Advice

National Trustees v General Finance [1905] AC 373

See case summary here

Duty to Sue Former Trustee

Young v Murphy (1994) 13ACSR 722;12ACLC 558

UK Pension Scheme Cases

Entrust Pension Ltd v Prospect Hospice Ltd & Anor [2012] EWHC 1666 (Ch)

Prudential Staff Pensions Ltd v The Prudential Assurance Company Ltd & Ors [2011] EWHC 960 (Ch)

Stena Line Ltd v Merchant Navy Ratings Pension Fund Trustees Ltd & Anor [2010] EWHC 1805 (Ch)

The PNPF Trust Company Ltd v Taylor & Ors [2010] EWHC 1573 (Ch)

Independent Trustee Services Ltd & Anor v Knell [2010] EWHC 650 (Ch)

Catchpole v Trustees of the Alitalia Airlines Pension Scheme & Anor [2010] EWHC 1809 (Ch)

IMG Pension Plan HR Trustees Ltd v German & Anor [2009] EWHC 2785 (Ch), [2010] Pens LR 23

Foster Wheeler Ltd v Hanley & Ors [2008] EWHC 2926 (Ch), [2009] 1 CMLR 47, [2009] Pens LR 39

Smithson & Ors v Hamilton [2008] Pens LR 41, [2008] 1 All ER 1216, [2007] EWHC 2900 (Ch), [2008] WLR 1453, [2008] 1 WLR 1453

Trustee Solutions Ltd & Ors v Dubery & Anor [2006] EWHC 1426 (Ch)

Hodgson & Ors v Toray Textiles Europe Ltd & Ors [2006] EWHC 2612 (Ch)

Gallaher Ltd. v Gallaher Pensions Ltd. & Ors [2005] EWHC 42 (Ch)

Redrow Plc v Pedley & Anor [2003] OPLR 29, [2002] Pens LR 339, [2002] EWHC 983 (Ch), [2002] PLR 339

Stevens & Ors v Bell & Ors [2002] Pens LR 247, [2002] OPLR 207, [2002] PLR 247, [2002] EWCA Civ 672

National Grid Co plc v Mayes [2001] UKHL 20; [2001] 2 All ER 417; [2001] 1 WLR 864

Gogay v Hertfordshire County Council [2000] IRLR 703

Edge & Ors v Pension Ombudsman & Anor [1999] EWCA Civ 2013

Air Jamaica Ltd v Charlton [1999] WLR 1399, [1999] 1 WLR 1399, [1999] UKPC 20 

Hillsdown Holdings plc v Pensions Ombudsman [1997] 1 All ER 862

South West Trains Ltd v Wightman & Ors [1997] EWHC 1160 (Ch), [1998] PLR 113, [1998] Pens LR 113

British Coal Corp v British Coal Staff Superannuation Scheme Trustees Ltd [1995] 1 All ER 912

Wilson v Law Debenture Trust Corp plc [1995] 2 All ER 337

Re Drexel Burnham Lambert [1995] 1 WLR 32

Thrells Ltd (in Liq) v Lomas [1993] 2 All ER 546

Standard v Fisions Pension Trust Ltd [1992] IRLR 27, CA

Davis v Richards & Wallington Industries Ltd [1991] 2 All ER 563

Re William Makin & Son Ltd [1992] PLR 177

Mettoy Pension Trustee Ltd v Evans and others [1991] 2 All ER 513

See case summary here.

Imperial Group Pension Trust Ltd and others v Imperial Tobacco Ltd and others [1991] 2 All ER

See case summary here.

Icarus (Hertford) Ltd v Driscoll [1990] PLR 1

Re Courage Group’s Pension Schemes Ryan and other v Imperial Brewing and Leisure Ltd and other [1987] 1 All ER 528.

Re Imperial Foods Ltd Pension Scheme [1986] 2 All ER 802

Cowan v Scargill [1984] 2 All ER 750; [1985] 1 Ch 270

See case summary here.

Aon Trust Corporation Ltd v KPMG [2005] EWCA Civ 1004; [2005] 1 WLR 97 [2011]

Aon Pension Trustees Ltd v MCP Pension Trustees Ltd [2010] EWCA Civ 377

Barclays Bank Plc v Holmes & Ors [2000] EWHC Ch 457

Kemble & Anor v Hicks & Ors (No 2) [1999] PLR 287, [1999] EWHC 301 (Ch), [1999] OPLR 1, [1999] Pens LR 287

Maladministration of UK Pension Schemes

Hilldown Holdings plc v Pensions Ombudsman and Others [1997] 1 All ER 862

Westminister City Council v Haywood and another [1996] 2 All ER 467

Australian Superannuation Fund Cases

Invensys Australia Superannuation Fund Pty Ltd v Austrac Investments Ltd and others [2006] VSC 112; (2006) 15 VR 87

Crowe v Stevedoring Employees Retirement Fund [2003] VSC 316

BHLSPF Pty Ltd v Brashs Pty Ltd [2001] VSC 512

ASEA Brown Boveri Superannuation Fund No. 1 Pty Ltd v ASEA Brown Boveri Pty Ltd [1999] 1 V.R. 144

Lock v Westpac Banking Corporation and others (1991) 25 NSWLR 593

Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41

Fouche v Superannuation Fund Board [1952] HCA ; (1952) CLR 609

Metropolitan Gas Co v Federal Commissioner of Taxation [1932] HCA 58; (1932) 47 CLR 621

Australian Deferred Benefit Fund Cases

Re Coram; Ex parte Official Trustee in Bankruptcy v Inglis and others (1992) 109 ALR 353

New Zealand Superannuation Fund Cases

Re UEB Industries Ltd Pension Plan [1992] 1 NZLR 294

Official Assignee v NZI Life Superannuation Nominees Ltd [1995] 1 NZLR 684

European Court

Barber v Guardian Royal Exchange Assurance Group Case C-262/88 [1990] 2 All ER 660

held that pension benefits were “pay” within the provisions of art of the Treaty of Rome.

Prospective Costs Orders

IBM United Kingdom Pensions Trust Limited v Mr George Metcalfe & Ors [2012] EWHC 125 (Ch)

Singapore Airlines Ltd & Anor v Buck Consultants Ltd [2011] EWCA Civ 1542 (13 December 2011)

IMG Pension Plan HR Trustees Limited v Peter German & Ors [2010] EWHC 321 (Ch)

Trustee Corporation Ltd v. Nadir & Anor [2000] EWHC Ch 41

McDonald v Horn [1995] 1 All ER 961

See case summary here.

Re Buckton [1907] 2 Ch 406

Surcharging and Falsifying the Accounts

Glazier and Australian Men’s Health (No.2) [2001] NSWSC 6

Recovery of Trust Assets

Independent Trustee Service v Others [2010] EWHC1653 (Ch)

 UK Accessory Liability Cases

Rolfe v Gregory [1865] EngR 136; (1865) 4 De G J & S; 46 ER 1042.

Barnes v Addy (1873-74) LR 9 Ch App 244

Is an English Trusts law case, concerning Breach of Trust and Accessory Liability.

The two limbs of Barnes v Addy are:

  • Knowing Receipt (Dishonest Receipt), and
  • Knowing Assistance (Dishonest Assistance)

Those who create a trust clothe the trustee with a legal power and control over the trust property, imposing on him a corresponding responsibility. That responsibility may no doubt be extended to others who are not properly trustees, if they are found either making themselves trustees de son tort, or actually participating in any fraudulent conduct of the trustee to the injury of the cestui que trust (ie beneficiary). But, on the other hand, strangers are not to be made constructive trustees merely because they act as agents of trustees in transactions within their legal powers, transaction, perhaps of which a Court of Equity may disapprove, unless those agents receive and become chargeable with some part of the trust property, or unless they assist with knowledge in a dishonest and fraudulent design on the part of the trustees.”

Barnes v Addy (1874) LR 9 Ch App 244 per Lord Selborne

Selangor United Rubber Estates v Cardock [1965] Ch 896

Baden v Société  Générale Pour Favoriser Le Development Du Commerce et de L’Industrie en France S.A. [1983] 1 WLR 509

Lipkin Gorman v Karpnale [1988] UKHL 12 [1988] UKHL 12, [1991] 3 WLR 10, [1991] 2 AC 548

Agip (Africa) Ltd v Jackson [1990] 1 Ch 265

Eagle Trust v SBC Securities [1993] 1 WLR 484

Brinks Ltd v Abu-Saleh (No. 3) [1995] 1 WLR 1478

Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378, [1995] UKPC 4, [1995] 3 All ER 97 is an English trusts law case decided by the Privy Council, concerning breach of trust and liability for dishonest assistance.

Previously in Barnes v Addy , it was thought that the dishonest assistant would not be liable unless the defaulting trustee was also dishonest or fraudulent, but Royal Brunei v Tan that there is no such requirement in English law. However, the requirement of dishonest or fraudulent design on the part of the defaulting fiduciary / trustee is still part of the law in Australia {see Consul Development v DPC Estates Pty Ltd and Farah Constructions Pty v Say-Dee Pty Ltd}.

Paragon Finance v Thakerar [1999] 1 All ER 410

Walker v Stones [2000] 4 All ER 412, CA

Twinsectra Ltd v Yardley [2002] is UKHL 12 is a leading House of Lords case in English trusts law. It provides authoritative rulings in the areas of Quistclose trust and dishonest assistance.

Lord Hutton delivered the leading judgment. He considered three possible tests in the area of accessory liability:

  • a purely subjective test
  • a purely objective test,
  • and a “combined test”

Lord Hutton interpreted Lord Nicholls in Royal Brunei Airlines v Tan to have articulated a combined test: for a person to be held liable as an accessory to a breach of trust, he had to have acted dishonestly by the ordinary standards of reasonable and honest people and have been himself aware that by those standards he was acting dishonestly. He rejected the purely subjective test outright, and rejected the purely objective test as his Lordship regarded a finding by a judge that a defendant has been dishonest as a grave finding, particularly against a professional man. Therefore, he considered it “less than just for the law to permit a finding that a defendant had been “dishonest” in assisting in a breach of trust where he knew of the facts which created the trust and its breach but had not been aware that what he was doing would be regarded by honest men as being dishonest”. Lord Hutton rejected Lord Millett’s dissenting judgment as his Lordship considered Lord Millett to have adopted a purely objective test.

Lord Hoffman delivered a concurring judgment. He said that the defendant must be conscious of the fact that he was “transgressing ordinary standards of honest behaviour” in order to be liable for dishonest assistance. He rejected Lord Millett’s dissenting judgment on the ground it departed from Royal Brunei.

Therefore, he majority held that Leach did not satisfy the subjective limb of the combined test and hence was not dishonest.

On the other hand,Lord Millet delivered a strong dissenting judgment, maintaining that Royal Brunei decided that the test of dishonesty is largely objective, although account must be taken of subjective considerations such as the defendant’s experience and intelligence and his actual state of knowledge at the relevant time. But it is not necessary that he should actually have appreciated that he was acting dishonestly; it is sufficient that he was. The question is whether an honest person would appreciate that what he was doing was wrong or improper, not whether the defendant himself actually appreciated this. His Lordship gave 3 reasons for this:

  1. Consciousness of wrongdoing is an aspect of mens rea  and an appropriate condition of criminal liability: it is not an appropriate condition of civil liability.
  2. The objective test is in accordance with Barnes v Addy and the traditional doctrine.
  3. The claim for “knowing assistance” is the equitable counterpart of the economic torts. These are intentional torts; negligence is not sufficient and dishonesty is not necessary. Liability depends on knowledge. A requirement of subjective dishonesty introduces an unnecessary and unjustified distinction between the elements of the equitable claim and those of the tort of wrongful interference with the performance of a contract.

By applying the Royal Brunei test, Lord Millett held that the solicitor Mr Leach, who acted for his client Mr Yardley in the purchase of a property for which financing was required, was dishonest and had knowingly assisted another Solicitor Mr Sims commit a Breach of Trust.

The Twinsectra decision is only of academic interest in Australia until the High Court decides otherwise. {see Consul Development v DPC Estates Pty Ltd}.

Dubai Aluminium Co v Salaam [2002] UKHL 48

Barlow Clowes International Ltd v Eurotrust International Ltd [2005] UKPC 37 is an English trusts law case decided by the Privy Council , concerning breach of trust and liability for dishonest assistance.

Australian Accessory Liability Cases

Consul Development v DPC Estates Pty Ltd [1975] HCA 8

The leading judgments in this case were given by Gibbs J and Stephen J (with whom Barwick CJ agreed). The language used by the High Court differs from that of the House of Lords and the Privy Council. Instead of referring to objective standards and a “combined test”, the High Court emphasised that accessory liability requires knowledge (including a conscious refraint from inquiry) of fraud or a breach of trust.

Stephen J (with whom Barwick CJ agreed) emphasises equity’s concern with the conscience of the accessory, whereas the English approach diverges in this regard into “objective” territory. While the comments of Gibbs J concerning “moral obtuseness” appear to resonate with the English approach, the judgment of Stephen J – by virtue of Barwick CJ’s concurrence – must be considered the High Court authority.

The effect is that the test for accessory liability in Australia is less rigorous than that required in England: the latter prefers a compound test involving knowledge by the defendant that what they were doing would be regarded as dishonest by honest people, so there is both subjective and objective elements for the claimant to prove.

The emphasis by Australian High Court in Consul is that accessory liability in concerned with the conscience of the accessory. Therefore it is necessary to prove that the accessory actually knew of the breach of trust or fraud, which can include wilfully shutting one’s eyes to the obvious.

Consul Development represents the law in Australia that the requisite degree of knowledge needed for liability under the second limb included the first four categories of knowledge as set out in Baden v Société Generale pour Favoriser le Development du Commerce et de L’Industrie en France SA [1993] 1 WLR 509

  • Actual knowledge
  • Deliberate ignorance (“Wilful Blindness“)
  • Wilfully and recklessly failing to make such inquiries as an honest and reasonable person would make
  • Knowledge of circumstances which would indicate the facts to an honest and reasonable person

The last Baden category, knowledge of circumstances which would put an honest and reasonable person on inquiry (Constructive Notice) would not be sufficient to ground a case of knowing or dishonest assistance.

Farah Contructions Pty Ltd vs Say-Dee Pty Ltd [2007] HCA22; 230 CLR 89

Warman International Limited v Dwyer [1995] HCA 18; (1995) 192 CLR 544

Spango v Corporate Investments Australia Funds Management Ltd [2003] FCA 1025

Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6

NSW Accessory Liability Cases

McNally V Harris [2008] NSWSC 659

NCR Australia v Credit Connections [2004] NSWSC 1

Beach Petroleum NL v Abbott Tout Russell Kennedy & Ors [1999] NSWCA 408

Victorian Accessory Liability Cases

Re-Engine Pty Ltd (in liq) & Ors v Fergusson & Ors [2007] VSC 57

Lurgi(Australia) Pty Ltd v Ritzer Gallagher Morgan Pty Ltd [2000] VSC 277

Macquarie Bank Ltd V Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133

Queensland Accessory Liability Cases

Voss v Davidson [2002] QSC 316

Western Australia Accessory Liability Cases

Westpac Banking Corporation v The Bell Group Ltd (No. 3) [2012] WASCA 157

The Bell Group Ltd (in Liq) v Westpac Banking Corporation (No.9) [2008] WASC 239

L H K Nominees Pty Ltd v Maureen Ada Kenworthy (as Administratrix of the Estate of Lionel Kenworthy) & Anor [2002] WASCA 29

Pleading Accessory Liability

Cadwaller v Bajco Pty Ltd & Ors [2002] NSWCA 328

Belmont Finance Corporation Ltd v Williams Furniture Ltd [1979] 1 Ch 250

The Tort of Negligence

UK Tort Cases

Donoghue v Stephenson [1932] All ER Rep 1; [1932] AC 562

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] UKHL 4

Caparo Industries pIc v Dickman & Ors [1990] UKHL 2

Australian Tort Cases

Sullivan V Moody and Ors; [2001] HCA; (2001) 207 CLR 562)

Perre v Apand Pty Ltd [1999] HCA 36; 138 CLR 180; 64 ALR 606; 73 ALJR 1190

Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg) [1997] HCA 8; (1997) 188 CLR 241; (1997) ALR 750; (1997) 71 ALJR 448

San Sebastion Pty Ltd v Minister [1986] HCA 68; (1986) 162 CLR 340

Caltex Oil (Australia) Pty Ltd v Dredge “Willemstad” [1975] HCA 65; (1976) 136 CLR 529

Agency Law

 Agents (an any service provider) can have concurrent liability in both contract and tort.

Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539;78 ALR 69

An agents “Duty of Care”

Chaudbry v Prabhakar [1988] 3 All ER 718 at 271

Duty of Care no less than that of the Principal

B David Ltd v Tooth & Co Ltd [1973] 4 All ER 118 at 128

Duty of Care of “Expert” Service Providers

Option Investments v Martin [1981] VR 138; 5 ACLR 124

Fund Administrator Cases

MCP Pension Trustees Ltd v AON Pension Trustees Ltd [2009] EWHC 1351 (Ch); [2012] Ch 3; [2010] WLR 268

AON Pension Trustees Ltd v MCP Pension Trustees Ltd [2010] EWCA Civ 377; [2011] WLR 455

Amendments to the Rules Cases

Capita ATL Pension Trustees Ltd & Anor v Gellately & Ors [2011] Pens LR 153, [2011] EWHC 485 (Ch)

Lansing Linde Ltd v Alber & Ors [1999] EWHC 848 (Ch), [2000] Pens LR 15, [2000] OPLR 1, [2000] PLR 15


Estoppel Claims

Catchpole v Trustees of the Alitalia Airlines Pension Scheme & Anor [2010] Pens LR 387, [2010] EWHC 1809 (Ch), [2010] ICR 1405

Grievson v Grievson & Ors [2012] ICR D13, [2011] EWHC 1367 (Ch)

IMG Pension Plan HR Trustees Ltd v German & Anor [2009] EWHC 2785 (Ch)

Steria Ltd & Ors v Ronald Hutchison & Ors [2007] ICR 445, [2006] EWCA Civ 1551

Administrative Law

English Cases Rule Against Bias

R v Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet Urgate (No. 2) [1999] UKHL 52

Leading House of Lords English case on The Rule Against Bias when there is a real or apparent non-pecuniary Conflict of Interests. In an unprecedented decision the House of Lords disqualified one of its own Lord Justices, Lord Hoffman, and overturned a previous ruling.

Australian Cases Rule Against Bias

 Ebner v Official Trustee in Bankruptcy [2000] HCA 63

Australian Cases Fair Hearing Rule

Kioa v West [1985] HCA 81

Mason J explained:

“The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject to the clear manifestation of a contrary statutory intention.”

Minister of State for Immigration & Ethic Affairs v Ah Hin Teoh [1995] HCA 20

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6

McHugh and Gummow JJ approved the following explanation of the requirement of procedural fairness that McHugh J had provided in Teoh’s case:

“The rational development of this branch of law requires acceptance of the view that the rules of procedural fairness are presumptively applicable to all administrative and similar decisions made by public tribunals and officials. In the absence of a clear contrary legislative intention, those rules require a decision maker “to bring to a person’s attention the critical issue or factor on which the decision is likely to turn so that he may have an opportunity of dealing with it: (Kioa at 587). if that approach is adopted, there is no need for any doctrine of legitimate expectations. The question becomes, what does fairness require in the circumstances of the case?’

English Cases Misconduct in Public Office

Attorney’s General Reference No. 3 of 2003

English Cases Misfeasance in Public Office

Three Rivers District Council v Bank of England [No. 3] [2001] UKHL 16

Australia Cases Misfeasance in Public Office

Northern Territory v Mengel [1995] HCA 65

Rowan v Cormwall (No. 5) [2002] SASC 160; 82 SASR 152

Canadian Cases Misfeasance in Public Office

Odhavji Estate v Woodhouse [2003] SCC 69

Odhavji’s principal concerns were to insist that misfeasance applied as much to omissions as to acts, and as much to acts or omissions beyond power as to act or omission that were illegal for having abused power.

The Commonwealth of Australian Constitution Act

Constitutional Cases – The Superannuation Complaints Tribunal

Attorney-General(Cth) v Breckler [1999] HCA 28

Other

Discovery of Documents

Commonwealth Bank of Australia v Quade [1991] HCA 61; 178 CLR 134

Re Murphy’s Settlements, Murphy v Murphy [1998] 3 All ER Ch D

Common Law Fraud

Derry v Peek [1889] UKHL 1

Limitations of Actions

Williams v Fanshaw Porter and Hazelhurst [2004] EWCA Civ 157

Construction of Instruments

Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 186 ALR 289;(2002) 76 ALJR 436 at [39]

Codelfa Constructions Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337

Seeking Judicial Advice by Trustees

Application by Perpetual Trust Services Limited [2012] NSWSC 758

Natural Justice (Procedural Fairness)

Australian Cases

Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR

Re JRL;Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

UK Cases

R v Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet Ugarte (No. 2) [1999] UKHL 52

Lawyer’s Duty to the Court

Giannarelli V Wraith [1998] HCA 52; (1988) 165 CLR 543

Kyle v Legal Practitioners Complaints Commission [1999] WASCA 115;(1999) 21 WAR 56

Rondel v Worsley [1969] 1 AC 191

Lord Reid’s comments in Rondel v Worsely are often cited to illustrate the paramount nature of the legal practitioners duty to the court:

Every counsel has the duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case. But, as an officer of the Court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession and to the public, which may and often does lead to conflict with his client’s wishes dealing with what the client thinks his personal interests. Counsel must not mislead the court.

 

Professional Misconduct by Legal Practitioners

Frugtniet v Board of Examiners [2005] VSC 332

The Law Society of South Australia v Murphy [1999] SASC 83

Incorporated Law Institute of New South Wales v Meagher [1909] HCA 87; (1909) 9 CLR 655

Ziems v. The Prothonotary of the Supreme Court of N.S.W. [1957] HCA 46; (1957) 97 CLR 297

Clyne v. N.S.W. Bar Association [1960] HCA 40; (1960) 104 CLR 186

 New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177

Wentworth v NSW Bar Association [1992] HCA 24; (1992) 176 CLR 239

New South Wales Bar Association v Cummins [2001] NSWCA 284

The Prothonotory of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341

Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320

Australian Guardians – Protecting your wealth when no one else will®

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>