CANADIAN CRIMINAL LAW TEMPLATE.doc

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Canadian Criminal Law

History and Scheme of Criminal Law in Canada:

- Federal matter in Canada- Historically has to do with Quebec,

when it was conquered, the Brits imposed British law, after a fewyears they gave back Quebec French civil law, but not criminal

because they wanted to maintain the nglish line of crime, in order

to keep the French Quebec in line!

ELEMENTS OF AN OFFENCE1. General principles

- Principles of fault- Principles of proportionality

2. Actus Reus and Mens Rea- The concepts

- Forms of Mens Rea: Su!ecti"e and#!ecti"e

Sault Ste Marie$ S%& '()-'*'

Hundal$ S%& +'1-+'( ,!udment of&ory only/- 0oluntariness as the Mental lement in the

Actus ReusTheroux $ S%& '+-'

'. &lassi3cation of #4ences

- True &rimes: Presumption of Mens ReaBeaver $ S%& '*-'()Pappajohn$ S%& +5-6*

- Reulatory #4ences: Strict and Asoluteliaility

Sault Ste Marie$ S%& '()-'*'

). Mens Rea and the &harter- The Proportionality Principle- The Su!ecti"ity Principle

Vaillancourt $ S%& )')-))'Martineau$ S%& )++Hundal$ S%& +'1-+'( ,!udment of&ory only/

). Partial Mens Rea- The Symmetry Principle- Predicate o4ences- Partial Mens Rea and the &harter

DeSousa$ S%& ++*-+

Creighton$ S%& +(-+()

). Strict and Asolute liaility

- Strict 7iaility - Asolute liaility - Strict and Asolute liaility and the &harter

Reference re Motor Vehicle Act $ S%&'5-)6)holesale Travel !roup "nc$ S%& '*'-'56$ )65-)1

Onus: "n # to prove elements $-% on a balance of probability &

Quigley v Commonwealth

Required Elements:

$' Cause of Action & an act which causes harm, whether

intentional or not, not being a breach of duty arising out of a personal relation or contract, and which is either contrary tolaw, or an omission of a specific legal duty, or a violation of anabsolute right! For most torts, mere proof of the cause of actionentitles a plaintiff to at least nominal damages!

(' Causation – )raditional test is for # to prove that harm wouldnot have occurred *but for+ the tort & Barnett v Chelsea

Hospital. However, is generally used as a rule of thumb &

Alexander v Cambridge Credit Corporation Ltd. t may also

take into consideration new intervening acts novus actusinterveniens) && Haber v Waler ! )here five problems with *butfor * test.a' dentifying correct defendant &

!airchild v "lenhaven

!unerals

b' #roving probabilities & "/ when applied to past events, but issues arise when applied to future probable events &

Hotson v #ast Berhsire AHA

c' Contributory 0egligence of # & 1eads to *last opportunity+rule2 as an e3ception, # can recover from 4, if s5he had lastopportunity to prevent damage! 6lso may lead to *agony of the moment+ rule2 if # panics at the last second, # can stillrecover! &

$arch v %tramare

d' Concurrent Causes & 7oint tortfeasor is someone who

works with another to commit fraud on someone else2Concurrent tortfeasor are individuals who act differently,

but at the same time!

e' 8uccessive Causes & 6 second event does not prematurelycurtail e3tent of liability & Baer v Willoughby2 but withconcurrent causes, they both pay they+re proportion of theloss, especially if you can prove that it affects yourfortunes in the future! )his comprises one of the

*vicissitudes+ of life & !aulner v &e''alinos!

f question is post (99(, mention that *but for+ is reinforced by.f question is post (99(, mention that *but for+ is reinforced by.

Civil Liability Act ((* s!$$

$' 6 decision that a breach of duty caused particular harmcomprises the following elements &

a' the breach of duty was a necessary condition of theoccurrence of the harm *factual causation+'

%' Remoteness – the need to balance the :ust e3pectation ofcompensation on the part of #, and the unfairness of the burdenof disproportionate liability placed on 4 when something

une3pected happens! )wo tests were used to measure this.

a' #olemis tests & referred to as *direct causation test!+ Here,4 was liable for all damages flowing directly from thewrongful act! )raditionally, applied under cases of

nuisance!

b' ;agon <ound test & for actions in negligence, #C applieda new test of *reasonable foreseeability+

• %cope o' !oreseeability & developed in negligence, but

may also apply to trespass and nuisance! #olemis however,

still applies to deceit, malicious falsehood!

6ccording to the *gg-8hell 8kull+ rule, the tortfeasor

takes his5her victim as they find them! f # had moreserious in:ury due to previous in:ury, then 4 can

claim it was not foreseeable! )herefore serves ane3ception to the reasonable foreseeability test!Foreseeability applies to kind of damage, not e3tent &

Hughes v Lord Advocate!

• =nusual types of Harm

#ure psychiatric harm & originally no damages for

*nervous shock+ &

Coultes v +ictorian ,lwys. gg-shell skull rule shouldn+t apply under circumstances

of *nervous shock+2 since you can only claim loss forwhat person of normal fortitude would claim! & -ame

v ew %outh Wales.

#ure economic loss & )raditionally no recovery of

pure economic losses caused by negligence e!g! lossof income, profits, interest'! n subsequent =/ cases,to be liable you must be in business of giving adviceor represent special skill > competence!

Civil Liability Act ((* s!$$$' 6 decision that a breach of duty caused particular harm

comprises the following elements &b' it is appropriate for the scope of the liability of the

person in breach to e3tend to the harm so caused*scope of liability+'

?' Mitigation – # has a duty to take reasonable steps to mitigate

the loss! "nus of proof on 4! Cost of mitigation is recoverableas damages! @ou must have also taken reasonable steps &

:udged by person in #+s circumstances &

"lavon/ic v !oster !

n personal in:ury cases for instance, 4 might have damagesn personal in:ury cases for instance, 4 might have damages

reduced if s5he proves that # refused medical t reatment whichreduced if s5he proves that # refused medical treatment whichwould have alleviated the harm! n defamation, 4 may mitigatewould have alleviated the harm! n defamation, 4 may mitigate

damages by an offer of amends via! publishing an apology!damages by an offer of amends via! publishing an apology!



f can claim damages 6ssessment'

A' Damages (Quantum – ssues focus on.

4amages for personal in:ury and defamation are assessed at the dateof :udgement!

Once!and!for!all rule – periodic payments cannot be given,and a second claim cannot be made for continuing damage &

!itter v +eal. However, there are four e3ceptions.

$' n rare cases, an appellate court my substitute its ownaward after hearing evidence of something which has

altered the basis of the award of the court below!(' f there are diff causes of action, once-and-for-all rule

does not apply, even if the causes of action arise out of thesame event & Brunsden v Humphrey

%' ;here the tort is a continuing one ie! recurring nuisance

or trespass'?' ;here there are many statutory e3ceptions & ss ((0(1 o'

CLA ((

"pecial Damages & refers to an amount awarded for monetaryloss actually suffered and e3penditure actually incurred up to thedate of :udgement!

$' #ersonal n:ury cases & e3amples include out-of-pocket

e3penses such as medical and surgical fees paid or payable, ambulance and hospital e3penses &

%herman v

#vans* and loss of income up to the date of the verdict!Compensation for lost earnings or lost capacity, which are

calculated on basis of pre-accident after ta3-earnings! f part-time5not working, assessed on those, unless you canshow that you would have returned to work! Calculation isrelative easy for pre-trial loss, but difficult for post-trial!Civil 1iability 6ct caps how much you can claim by %3

average weekly earnings!

(' 4efamation & 1ibel publication in permanent form' isactionable at common law w5o proof of special damage! n

most 6ustralian :urisdictions, slander is now actionablewithout proof of damage

#eneral Damages – may be presumed to be the direct, natural probable consequence of the tortious wrong! )hey are)hey are not not capable of precise math calculationscapable of precise math calculations2 and are awarded not :ustfor the period before the verdict, but future as well!

$' #ersonal in:ury cases

a' Future <edical 3penses and Dratuitous 8ervices & #

entitled to recover as general damages the future costs ofhospital, medical, nursing services -

%herman v #vans,and home care even if they are offered gratuitously &

"ri''iths v &eremeyer , s!AE of C16 only get market price of what they+re doing'

b' Future economic loss and lost earning capacity & 6 # in an

action in negligence is not entitled to recover damages forloss of earning capacity unless they show that the earningcapacity was diminished as a result of the negligence, andthat they have suffered an actual economic loss or loss ofearnings &

$edlin v %tate "overnment 2nsurance

Commission professor in:ured by motor vehicle accident,and forced into early retirement because pain and

suffering hindered his ability to perform at his best'!

)o calculate, the amount # is losing after income ta3 net)o calculate, the amount # is losing after income ta3 net

value per week at the date of trial', and apply that figurevalue per week at the date of trial', and apply that figure

to the period for which the wage or salary loss is likely toto the period for which the wage or salary loss is likely to

continue!continue!

n negligently inflicted personal in:ury cases, the court isn negligently inflicted personal in:ury cases, the court is

required to *disregard+ earnings above a limit fi3ed atrequired to *disregard+ earnings above a limit fi3ed at

three times average weekly earnings in all :urisdictionsthree times average weekly earnings in all :urisdictions

e3cept )asmania, where it is ?!(A3 6;! Courts will thene3cept )asmania, where it is ?!(A3 6;! Courts will then

discount it by A at the date of verdict, and reduce thediscount it by A at the date of verdict, and reduce the

sum by A-(9 to take account of the vicissitudes of lifesum by A-(9 to take account of the vicissitudes of life

ie! possible periods of unemployment, leave, illness,ie! possible periods of unemployment, leave, illness,

accident' &accident' & -adorovic v Waller

1ike most general damages, estimate based on past historyof employment, skills and abilities, chances anddisabilities likely to be e3perienced *vicissitudes+ of life'

& Wynn v %W 2nsurance Corp. ;here life will be shorter

because of in:ury, you can only claim e3cess overe3penditures since living costs would be lowered &%herman v #vans!

c' 4omestic 8ervices > 8upport & 4amages for lost capacity

to perform domestic household services &

Hodges v !rost !@ou can also claim for loss of support where in:ury causes

breakdown in relationship5marriage must proverelationship would have continued' & Hines v

Commonwealth

30#C33$2C L3%% see Quantum )ables'

d' 1oss of amenities and en:oyment of life & 6warded both

ob:ectively for the actual loss suffered, and sub:ectivelyfor the plaintiff+s sense of the loss! )hus, where # is likelyto be unconscious until death, the amount awarded will besmall in view of the lack of understanding of the loss &

%elton v Collins

e' #ain and suffering. past and future & # entitled to becompensated2 courts mean actual physical or mental pain &

%elton v Collins

f' 1oss of e3pectation of life & 8uch damages are awardedfor the loss of prospective happiness in the period bywhich the in:ured person+s life has been shortened &

Benham v "ambling !

g' ;rongful birth, conception, life

i';rongful Birth & By parents of child born with

congenital defects &

+elvers v Connolly!under causationtheory, if you can prove you would have gottenabortion, then doctor was negligent and so you canclaim!

ii';rongful Conception & By parents of healthy butunplanned child &

Cattanach v $elchior ! Civil liabilitystatues, eg! 8?E6 > ?EB!

iii' ;rongful 1ife & By disabled child &

Hamilton v

%tephens!

h' ;rongful death & f potential # died, cause of action diedwith them2 nor any claim for wrongful death by relatives!t was later amended in $G? by

Lord Campbell4s Act

56&), followed in all 6ustralian states! #rovisions include

survival of actions for the estate of the deceased, andactions by certain relatives for wrongful death!i' 8urvival of actions & cause of action survives, but

e3cludes. loss of future earning capacity, pain >suffering including disfigurement', loss of amenityand loss of e3pectation of life! )his leaves,medical5hospital e3penses incurred before death, lossof earning capacity until death > funeral e3penses!

ii' ;rongful death claims & 6ccording to s$I and s$G

%upreme Court Act Qld', 4 shall be liable to anaction brought by estate for benefit of spouse, parentand child proportioned to the in:ury resultingJto the

parties respectively! 4ivided amongst parties in such

shares as :ury shall direct!

(' 1oss of an opportunity or chance & general damages may beavailable, provided chance was not *negligible+ or *speculative+

&

$alec v 7 C Hutton 8ty Ltd ! Courts reluctant for recovery of

lost chance in medical negligence cases, but will makee3ceptions & ,u'o v Hosing.

%' 4efamation & usually assessed at *large+ ie! loss of reputation,

in:ured feelings, bad or good conduct by either part, or punishment' & Broome v Cassell 9 Co Ltd.

?' Collateral benefits and set-offs

a' ;orker+s Comp - 6s a general principle, shouldn+t becompensated twice for same loss e!g! can+t get damaged forlost earning capacity if getting sick pay or gratuitous wages

from employer'! )here are two e3ceptions however &

,edding v Lee2 $' insurance contract taken out before lossoccurred, if payable irrespective of any legal claim, (' gifts



b' "ther benefits - ;orkers compensation payments deducted if action for damages is against employer, but is not deducted if work related in:ury not caused by fault of employer! )he8ocial 8ecurity 6ct provides for discontinuation of benefits

after compensation is paid!

A'nterest on damages & Historically, interest too remote, but C1> legislation changed this! 8upreme Court provided a rate of in personal in:ury claims, but doesn+t apply to future losses but doesn+t apply to future losses

and non-economic losses!and non-economic losses!

i' 4eduction for #0K & n awards for future, # gets lumpsum2 however it is received based on current value, since

ad:ustments need to be made on inflation and income ta3!)he

%upreme Court Act 5Qld) allows for A!

ii')a3ation & Courts use after ta3 amount when calculating

lost earning capacity & Cullen v -rappell ! 4amages for non-economic loss paid and suffering, loss of amenities, etc'are not ta3able & 2ncome -ax Assessment Act Cth'

Aggra$ated Damages & given to compensate the # when the harmdone to him by a wrongful act was aggravated by the manner inwhich the act was done & 6ren v 7ohn !air'ax 9 %ons 8ty Ltd

E%emplary Damages – intended to punish the 4, and presumably toserve one or more of the ob:ects of punishment & moral retributionor deterrence! & 6ren v 7ohn !air'ax 9 %ons 8ty Ltd

DAMAGES IN CONTRACT

Elements:

$' Cause of Action & =sually a breach! )ermination is not required

for # to claim damages unless there is an anticipated breach, ore3pectation for *loss of bargain+ damages & %unbird 8la:a Ltd

$ahoney

(' Causation – *But for+ test also used & ,eg "lass v ,ivers

Locing %ystems! However, courts now recognise that, whenconsidering multiple causes or intervening events, the test isinadequate!a' Contributory 0egligence & f # is negligent, this may satisfy

the court that the *chain of causation+ between the defendant+s breach of contract and the plaintiff+s loss has been broken &

Lexmead 5Basingstoe) Ltd v Lewis! b' ntervening vents & ;hether an intervening event breaking

the chain of causation between the 4+s breach of as a cause

has been held to be determined by a consideration of whether the event was *reasonably foreseeable+ by the 4 &

$onarch

%teamship Co Ltd v &arlshamns 3l/e'abrier A;b

%' Remoteness & Hadley v Baxendale testa' First 1imb & test is reasonable foreseeability! ;ould a

reasonable person have foreseen it as a natural consequencewhether or not the parties themselves foreseen it'! @ou can

recover for any normal business profits that would havearisen naturally from the breach & H 8arsons 5Livestoc) Ltd

v 6ttley 2ngham 9 Co.

b' 8econd 1imb & test is contemplation! Can it reasonably be

assumed to be within parties+ actualknowledge5contemplation of special circumstances &

8analpina 2nternational -ransport Ltd v <ensil 6nderwear

Ltd.

?' Mitigation & # not entitled to compensation for loss which couldhave been avoided! 85he must have taken reasonable steps2 but

need not embark on risk ventures & Lucy v Commonwealthemployer did not have to pay full salary because during that

period, employee could have gotten another :ob'! Burden of proof on 4 to prove failure to mitigate!

f the defendant+s breach enables the plaintiff to obtain benefitsnot otherwise available, the plaintiff+s gain reduces the

defendant+s liability & British Westinghouse #lectric 9

$anu'acture Co Ltd v 6nderground #lectric ,ailways Co o'

London

;here, prior to due date for performance, it is clear 4 will not;here, prior to due date for performance, it is clear 4 will not

perform *anticipatory breach+', innocent party must e3ercise perform *anticipatory breach+', innocent party must e3ercise

choice to affirm or terminate contract! f they terminate, theychoice to affirm or terminate contract! f they terminate, they

have an immediate duty to mitigate their loss &have an immediate duty to mitigate their loss & %hindler v

orthern ,aincoat Co Ltd , but if they affirm, no duty to mitigate, but if they affirm, no duty to mitigate

arises because the contract is not at an end! & arises because the contract is not at an end! & White 9 Carter

5Councils) v $c"regor put advertisements on side of litt erbin, paid other party for space'!

Quantum of damages may differ between affirmation andQuantum of damages may differ between affirmation and

accepting repudiation! f buyer accepts anticipatory breach, theaccepting repudiation! f buyer accepts anticipatory breach, the

buyer may in attempt to mitigate loss, buy substitute goods! f buyer may in attempt to mitigate loss, buy substitute goods! f

goods drop in value by date of performance, buyer will stillgoods drop in value by date of performance, buyer will still

recover as damages the higher cost, as long as their mitigationrecover as damages the higher cost, as long as their mitigation

attempt was reasonable! n affirmation however, because there isattempt was reasonable! n affirmation however, because there is

no duty to mitigate, # does not need to consider offers ofno duty to mitigate, # does not need to consider offers of

alternative performance &alternative performance & White 9 Carter Ltd v $c"regor !!

6n innocent party may affirm the contract by seeking specific6n innocent party may affirm the contract by seeking specific

performance instead of accepting the repudiation by terminating performance instead of accepting the repudiation by terminating

the contract!the contract!

f can claim damages

A' Damages (Amount & 6ssessed at date of breach, but fle3ible & 7ohnson v 8ere: ! nterest on damages from time they occur until :udgement e3ecuted C1 > 8tatue'! f damage awarded would

be ta3able eg! #rofit', courts would award gross amount withoutdeductions!

a' 0on-economic loss & 0o punitive or *e3emplary+ damages incontract! #hysical in:ury caused by breach of contract is

generally translated into an economic loss eg! Hospital

e3penses for food poisoning'! Historically, mental distress,Historically, mental distress,

hurt feelings, loss of reputation, etc, not claimablehurt feelings, loss of reputation, etc, not claimable & Addis v

"ramophone Co Ltd # only awarded for loss of salary'!i' <ental 4istress 3ception & 4enning 17 suggests an

e3ception in

7arvis v %wans -ours Ltd

b' 4amage to Leputation & Luled out in

Addis v "ramophone

Co Ltd held to be recoverable only in tort for defamation', but e3amined in !lamingo 8ar 8ty Ltd v <olly <olly

Creations 8ty Ltd !

c' ;ays of calculating amounti' 3pectation nterest & Common method, usually measured

by profit element of what # would have received if performed property! =sually calculated by reference tomarket value -

Cth v Amann Aviation

ii' Leliance nterest & f reasonable incurred after contract, but before breach & $c,ae v Cth <isposals Comm f 4

thinks you+ve entered into a poor contract, then onus is onthem to prove they would not have e3perienced recoveryof e3penses & Cth v Amann Aviation

iii' Lestitution nterest & Claim to get back what you have

performed! 4 has a benefit in circumstances where itwould be un:ust to allow 4 to retain it at #+s e3pense &

Heywood v Wellers solicitor+s fee returned for badhandling of case'

iv' ndemnity nterest & 8imilar to tort & claim for e3penses

arising directly or naturally from the breach which are not part of the contract or necessary for performance*consequential damages+' &

Woolsworths Ltd v Crotty damages awarded where defective light bulb resulted in

death, no tort established since no negligence was allegedor proven'!

4ouble Lecovery4ouble Lecover

y & @ou cannot claim two at the same & @ou cannot claim two at the same

time, but it is possible to claim both e3pectation andtime, but it is possible to claim both e3pectation and

reliance damagesreliance damages &

$c,ae v Commonwealth <isposals

Commission

v' 1oss of an "pportunity or Chance & difficult to prove

chance would have occurred2 difficult to quantifyamount! n contract, courts generally treat it as a losscaused by the breach and take a guesstimate of theamount that the lost chance is worth &

Howe v -ee'y prior to contract ending, race horse trainer pulled out2

:ury awarded M(A9 since the loss of winning was toovariable'!

' ntroducing a special case & misrepresentation & remedies for

untrue statements may induce the contract without being a term!<ay also depend on state of mind2 could have been innocent,

negligent, or fraudulent! 0egligence becomes fraud when thereis a reckless indifference as to the truth of the statement! f areasonable person wouldn+t believe it, it would be negligence!



RESTITUTION

Lestitution usually involves unfair situations2 seeking return ofsomething you perform, thus reversing a gain! =n:ust enrichment iswhen there is a receipt by 4 of some benefit or gain, at e3pense of #,

where un:ust of 4 retains it!

8ome restitution claims arise without contract! f contract e3ists, itgoverns relationship! ;here a contract is discharged, unenforceable;here a contract is discharged, unenforceable

or void, there may be a claim in restitution! However, there can beor void, there may be a claim in restitution! However, there can be

no double recovery ie! full e3pectation plus full restitution'no double recovery ie! full e3pectation plus full restitution' &

Baltic

%hipping <illon

Elements

& Receipt by t'e defendant of a benefit

) at t'e plaintiff*s e%pense and

+ in suc' circumstances t'at it ,ould be un-ust to allo, t'e

defendant to retain t'e benefit

Money .ad / Recei$ed & )o recover money paid by a' 4uress

b' <istake

- basis of action is un:ust enrichment & A= v Westpac

- ssue is now causation & <avid %ecurities v Cth Ban initiallyheld to be mistake of law, but HC moved away from thisdistinction2 Bilbie v Lumley merely states that a voluntary

payment made in satisfaction of an honest claim is

irrecoverable! )herefore, no distinction between mistake oflaw and mistake of fact'!

i' )he effect of carelessness & provided the criterion ofcausation is satisfied, carelessness on the part of the

payer is not a bar to restitution & &elly v %olari!

c' Lecovery of money for a total failure of consideration & Lefersto per'ormance o' promise! t is money paid under contract

before termination! =sually you can claim damages, but

restitution available if total failure of consideration takes place!

i' Concept of consideration & HC has recognised that failureof consideration is not confined to failure of contractual

performance! 6 retailer is entitled to restitution of

payments if consideration for them has totally failed &

,oxborough v ,othmans o' 8all $all Australia Ltd.

ii' #artial Failure of consideration & Consideration must betotal2 there is no right to restitution where the failure ofconsideration is partial > Baltic %hipping Co v <illon!

iii' 8everability of consideration & where the consideration isseverable, compete failure of part may form a ground forrecovering a proportionate part of the money paid for it &

,oxborough v ,othmans o' 8all $all Australia Ltd ! f youf you

can sever the contract and the contract remains, you cancan sever the contract and the contract remains, you can

collect for restitution2 however if you can+t sever it withoutcollect for restitution2 however if you can+t sever it withoutthe contract still remaining, then the whole contractthe contract still remaining, then the whole contract

becomes void! becomes void!

d' Lecovery of money acquired by tort & available where amountacquired by tortfeasor is greater than loss suffered by victim &

Lamine v <orrell ! ;aiver of tort has been allowed in cases oftrespass to goods, goods obtained by deceit, and in trespass to

land involving the removal and sale of coal!

Quantum meruit / $alebat – Quantum meruit *as much as hedeserved+' lies to recover reasonable remuneration for servicessupplied by the plaintiff to the defendant2 Quantum valebat *as

much as it was worth+' lies to recover a reasonable price for goodssupplied by the plaintiff to the defendant!

a' Lequest and free acceptance & an obligation to pay for a non-

gratuitous benefit only arises if the defendant either requestedthe benefit, or *freely accepted+ it &

%umpter v Hedges! Freeacceptance occurs when the defendant *as a reasonable man,should have known that the plaintiff who rendered theservices e3pected to be paid for them, and yet 4 did not take

a reasonable opportunity open to him to re:ect the profferedservices!+

b' =nenforceable contracts & n contracts that are unenforceable,

restitution might be available & 8avey $atthews 8ty Ltd v

8aul courts agreed that contract wasn+t enforceable since itwasn+t in writing s?A of Builder+s 1icensing 6ct', but youcould still claim on quantum meruit for services done, andgoods supplied'

i' llegal contracts & any contract found to be illegal willdeny an opportunity to seek restitution &

%utton v =ullo

#nterprises unlicensed building work carried out'

c' Contracts discharged for breach & )he terminating party mayelect between an action for breach of contract and an action inrestitution &

,enard Constructions 5$#) 8ty Ltd v $inister

'or 8ublic Wors # accepted the repudiation, terminated thecontract, and made restitutionary claim for ?uantum meruit for

work that was carried out unpaid'! i' #osition of defaulting party & where a contract has been

discharged for breach or repudiation, a restitutionaryclaim for ?uantum meruit is not generally available to

the defaulting party in respect of non-monetary benefitsconferred under the contract, unless there has been freeacceptance of those benefits by the terminating party &

%umpter v Hedges courts held no claim for work done,since 4 has no option but to accept the benefit, but valid

claim for materials used by 4 that he left behind'ii' #rinciple of ncontrovertible benefit - 0o right to

restitution if the benefit was conferred gratuitously! Byway of e3ception to this general rule, # may succeed in

?uantum meruit if 4 has *incontrovertibly benefited+from #+s non-gratuitous services2 two circumstances in

which this may occur are if $' *a reasonable personwould conclude that he has been saved an e3pensewhich he otherwise would necessarily have incurred+

or (' *where he has made, in consequence of the

plaintiff+s acts, a realisable financial gain+ &

$c&eown

v Cavalier @achts 8ty Ltd !

N"nly when there has been no request or free-acceptanceN"nly when there has been no request or free-acceptance

Measure of Restitution

a' 6ctions for money had and received & n actions for money hadand received, the measure of restitution is simply the amount ofmoney had and received by the defendant!

b' 6ctions for quantum meruit

i' Cases of request and free acceptance & "rdinary measure ofrestitution in ?uantum meruit claims will be *the fair value of

the benefit provided eg! Lemuneration calculated at areasonable rate for work actually done or the fair market valueof materials supplied'! )he time for valuation is when the

benefit was conferred &

8avey 9 $atthews 8ty Ltd v 8aul !ii' Case of incontrovertible benefit & f the recipient simply does

not want the service, it is irrelevant to him or her that a marketvalue can be ascribed to the service! However in cases ofincontrovertible benefit, where 4 *has made, in consequence ofthe plaintiff+s acts, a realisable financial gain,+ recovery should

be limited to *the defendant+s actual benefit,+ as distinct fromthe *reasonable value of the plaintiff+s performance+ & B8

#xploration Co 5Libya) Ltd v Hunt 5o ()!

Defence

a' Change of position & ;here 4 has in good faith acted changedtheir position' in reliance on benefit received > would be unfair to insist on them giving it up! <ost commonly applied in casesof mistake payments &

Australia and ew =ealand Baning

"roup Ltd v Westpac Baning Corp.

Elements:

i' 4 acted in good faith & defence not available to a*wrongdoer+ or where the 4 acted with knowledge of the payer+s mistake &

%tate Ban o' %W v %wiss

Ban Corp. 6 bank which receives a mistaken payment and disburses it can only bring itself within

the change of position defence if it shows that thetime of the disbursement it knew or thought it knew

more than the fact of receipt standing alone'!ii' 4 acted in reliance on the payment & not available

where 4 has simply spent the money received onordinary living e3pense &

8almer v Blue Circle

Cement BC paid # workers comp under mistake of

law, and claimed it back, but # had spent the moneyon ordinary living e3penses2 courts applied rule in

<avid %ecurities v Cth Ban ' b' "ther restitutionary remedies & instances where court orders

return of wrongdoer+s benefit to plaintiff for legal wrongs.- breaches of duty of honesty, equitable obligations

- intellectual property rights- interference with contractual relations- in:ury to reputation



RESCISSION

Elements:

$' 0'e prescence of a vitiating factor in t'e formation of t'e

contract – n equity, contracts can be rescinded for innocent

and fraudulent misrepresentation, mistake, duress, undueinfluence, unconscionable dealing and breach of fiduciary duty!

(' An election to rescind t'e contract – 6n election to affirm avoidable contract e3tinguishes the right to rescind! Conversely,

an election to rescind a voidable contract e3tinguishes the right

to enforce the contract according to it s terms, including anyaccrued right to damages or specific performance of thecontract! 6n election, once made, is irrevocable & %argent v

A%L <evelopments Ltd

%' Restitutio in integrum1 t'e restoration of bot' parties to

t'eir respecti$e precontractual positions – )he principlerestriction upon the availability of rescission is the requirement

of *putting the parties in the position they were in before thecontract!+ )he main reasons for impossibility of restitutio in

integrum are the destruction or deterioration of property thathas passed under the voidable contract, or the subsequent

acquisition by a bona fide third-party purchaser of property thathas passed under the voidable contract!

a' Concurrent :urisdiction of C1 > quity i' equitable principles effectively prevail

ii' 4iscretionary remedy & consider A bars to *rescission+$'6ffirming contract & words or conduct & or estoppel('1apse of time%';here restitution no longer possible

?';here innocent third party acquired an interest forvalue

A'1imited bar & where contract fully e3ecuted on bothsides &

%eddon4s case involved sale of land andcompany shares, only shares have been e3ecuted

registered', can no longer claim rescission'

b' f fraudulent, substantial restitution only &

Alati v &ruger sale of business included a transfer of goodwill, stock-in-

trade and assignment of a lease! #urchaser later soughtrescission on the basis of fraudulent misrepresentationsmade by the vendor as to the income of the business!Kendor argued that restitutio in integrum was impossible,

but HC re:ected it'

c' Lestitution on terms & +adas: v 8ioneer Concrete appellant sought rescission of the guarantee because itwas induced by the misrepresentation that his liability was

confined to the company+s future indebtedness! HC

allowed rescission, but in respect of the company+s pastindebtedness only'!

ACCOUNT OF PROFITS

6ccounts of #rofits are an order that requires defendant, under thesupervision of the court, to account to the plaintiff for the profits of awrong!

#rounds for A,arding An Account of 2rofits

a' Breach of trust and fiduciary duty & ;here the defaultingtrustee or fiduciary has caused a loss, the appropriate remedyis an award of equitable compensation! ;here the trustee or

fiduciary has made a gain, he or she must account for all profits made *by reason of+ the breach of trust or fiduciary

duty &

Warman 2nternational Ltd v <wyer ! F4 imposed inquity' in close and trusting legal relationships, eg!

8olicitor5client, agent5principal! 4amages often insufficient todiscourage breach, so quity award profits!

b' Breach of intellectual property rights & )his includescopyrights, trade marks, patents, etc! 6ccount of profits may

be awarded in the au3illary :urisdiction of equity against theinfringer of an intellectual property right, sub:ect to threeconsiderations2

$' an account will normally be awarded as ancillary relief

to an in:unction, but not otherwise2(' the account is limited to the profits derived from the

defendant+s nowing infringement of the plaintiff+srights2 and

%' an account is a discretionary remedy that is sub:ect to

equitable defences!

Lemedies may be available when2

3clusive 7urisdiction

• 6ny time & a normal equitable remedy

6u3iliary 7urisdiction

• 4ifficult to say but so far only passing off other # rights'

• Breach of Contract & traditionally not available but an account

of profits can be awarded for breach of contract, but only ine3ceptional circumstances -

A" v Blae although informationBlake was to publish no longer confidential, he had breached asurviving contractual duty not to publish such a work without

the authorisation of the Crown2 therefore l iable to account tothe Crown for all profits from the publication'! However, thisruling was re:ected in Hospitality "roup 8ty Ltd v Australian

,ugby 6nion Ltd

Assessment

a' Breach of trust and fiduciary duty & in e3clusive :urisdictionof equity, the general rule is that a trustee or fiduciary mustaccount for the entire profit made *by reason of+ the breach of

trust or fiduciary duty! )here are considerations to this rule.

$' an account of profits is not penal in nature, therefore atrustee or fiduciary will not be required to account formore than he or she has received from the breach ofduty!

(' ;here a trustee or fiduciary has acted without honestyin making a profit, he or she may be granted anequitable allowance from the profit as remuneration for his or her *work and skill!+

%' ;here a trustee makes a profit entirely by themisapplication of trust money, the beneficiary will beentitled to the entire profit!

?' ;here a trustee makes a profit by the misapplication of trust money mi3ed with other money, the beneficiary

will generally be entitled to a proportionate share of the profit!

A' ;here property has been purchased entirely or partly by the misapplication of trust money, the trustee+s

obligation to account is not postponed until the trusteechooses to sell the property and realise the profit!

' ;here a business, as distinct from a specific asset, isacquired and operated in breach of fiduciary duty, itmay be appropriate to allow the fiduciary a proportion

of the profits &

Warman 2nternational Ltd v <wyer.

b' nfringement of intellectual property rights & two issues ofimportance arise2

$' dentifying the defendant+s costs attributable to themanufacture and sale of the infringing goods

(' <aking an apportionment of the resulting profit between that part of the profit that is attributable to thedefendant+s infringement, and that part of the profit the

defendant is entitled to keep!

a' 4eductions & onus of proof is upon 4 to establishwhich costs are attributable to the manufacture and

sale of the infringing goods! 4 may deduct *costs ofmaterial,+ *costs of wages+ and any other costs are*soley referable+ to the manufacture and sale of theinfringing goods &

<art 2ndustries 2nc v <cor Corp

8ty Ltd. n cases of unused capacity, no deduction is

allowed because the e3penses would have beenincurred in any event & Colbeam 8almer Ltd v %toc

A''iliates 8ty Ltd.

b'6pportionment & *a person who wrongly uses another man+s industrial property & patent, copyright, trademark & is accountable for any profits which he makeswhich are attributable to his use of the propertywhich was not his &

Colbeam 8almer Ltd v %toc

A''iliates 8ty Ltd.

SPECIFIC PERFORMANCE

8pecific performance directs a party to an agreement to perform the

agreement & =hu v -reasurer o' the %tate o' ew %outh Wales!

Elements

$' an agreement & if contract is uncertain, or if no contract has been formed or the contract has been rescinded or terminated,



the remedy will not be available & -anwar #nterprises 8ty Ltd

v Cauchi contract for sale of three ad:oining parcels of landwas terminated by vendors'

a' doctrine of part performance & ob:ect is to always

enlarge part performance into complete performance,usually applied to oral contracts which fail to complywith a statutory requirement that they must be in writingor e3ecuted in a formal manner &

$addison v Alderson

b' alternatives to part performance & difficulties of

applying a strict part performance test in order to obtainspecific performance has to some e3tent been

ameliorated by other remedies and actions such asequitable restitution and constructive trusts!

(' a breac' or t'reatened breac' of t'e agreement by t'e

defendant - #laintiff must prove that the defendant has not performed the contract according to its terms ie! non-deliveryof a chattel or the refusal to e3ecute a transfer of land'! )he

order for specific performance may be postponed until the timefor performance arrives!'

%' common la, damages ,ould be an inadequate remedy for

breac' & no remedy provided where there is an adequate lawremedy &

Adderly v <ixon. Contracts for the sale of land, worksof art and intellectual property are regarded as specificallyenforceable, whereas contracts for the sale of goods, animals,stocks, shares, securities, payment of money, and provision of

personal services are not unless e3ception basis e3ist'a' 1and & damages are inadequate because substitutes

cannot be readily found2 applies to airspace above land & Adderly v <ixon

b' <oney & 8# of a contract to pay money will not beordered because damages will be adequate, howeverthere are two e3ceptions2 $' if a purchaser can obtain 8#then the vendor can also obtain 8#, and (' 8# isavailable if damages will be an inadequate remedy for

the breach ie! indemnity contracts, security contracts,and contracts involving both the payment of money and

land' &

Loan 2nvestment Corp v Bonner !i' 4octrine of #rivity & if 4 refuses performance,

the third-party beneficiary cannot obtain aremedy because it is not a contracting party!However, the plaintiff may seek specific

performance even though the beneficiary is athird party &

Coulls v Bagot4s #xecutor and

-rustee Co Ltd courts ruled that wife was athird-party beneficiary who would not be able tospecifically enforce a contract of which she was

not a party to'!c' Doods & contracts for the sale of goods are not

specifically enforceable! f the article is of unusual

beauty, rarity and distinction, damages will beinadequate where.

i' 8upply of the chattel is severely interrupted & mere

fact that supply is temporarily low will not besufficient to attract equity+s :urisdiction &

Coo v

,odgers evidence showed that if car not suppliedunder the contract, plaintiff would considerabledifficulty in obtaining a substitute2 however 8#refused'

ii' 0ecessary for the plaintiff+s business &

<ougan v Ley

4ougan agreed to sell his ta3i cab and the licence tooperate it to 1ey2 4ougan later refused! 1ey sought8# since the number of ta3i cabs in 08; was

limited2 8# granted'!d' ntellectual #roperty & agreements to assign copyright

are specifically enforceable, but if the agreementcontains *unnecessary+ or *oppressive+ terms, *they must

be :ustified before they can be enforced!+ f they are not

:ustified, the contract may be rescinded! 6 contractassigning or licensing the right to use a trade name, trademark or other indicia is 8# &

7abuna 8ty Ltd v Hartley!e' Doodwill and business assets & a contract for the sale of

the goodwill of a business may be specifically enforced,

if consistent with the general principle, damages will beinadequate & 8asdonnay 8ty Ltd v %<% Corp Ltd.

f' #ersonal services and employment & courts will not

order specific performance, since it would involve thecourts constant supervision, might compel unwilling parties to maintain personal cooperative relations2 andwould be difficult to enforce because performance of

personal service contracts involve matters of personalopinion and taste! >

C H "iles 9 Co Ltd v $orris

g' 8tocks, shares and securities & 8# if damages will be aninadequate remedy ie! shares in a private company orvendor owns all the shares in the company and is*an3ious to retain them+'

?' t'ere is no discretionary defence or denial disentitling relief & even if above elements are satisfied, the court may refuse 8#in its discretion!a' Leady and willing & at all time, the party seeking 8# should

be ready and willing to perform the substance of thecontract! f 4 ignores the matter, # need not show evidencethat he or she is ready and willing &

$ulearns v Chandos

<evelopments 8ty Ltd. =sual way of proving that # is not

ready and willing is to show that he or she is in breach,however only a breach of an *essential term+ will suffice &

$ehmet v Benson.

b' <utuality & f you are seeking a remedy, courts won+t giveit to you unless courts are able to enforce specific

performance against you as well! 6 court is reluctant toorder specific performance unless it is available to both

parties! However, not available to 4 where.

i' # has already performed his or her obligationsii' # has not performed his or her obligations but the

court is satisfied this breach can be adequatelycompensated for in damages2 or

iii' the defendant is guilty of fraud or unconscionableconduct!

c' Hardship & courts will be reluctant to order 8# if it willcause undue hardship or unfairness to the 4 ie! unfair or

low purchase price for the 4 vendor, land purchased by the4 would be sub:ect to forfeiture, order would e3pose 4 to

prosecution, or 4 would be required to run a business at aloss'

d' =nclean Hands & remedy may be refused if plaintiff has

unclean hands, but not all such conduct will disentitle themto relief &

3''icial -rustee in Banruptcy v -ooheys Ltd !

e' ;hole contract should be enforced & the whole contractshould be specifically enforceable & Bridge Wholesale

Acceptance Corp 5Australia) Ltd v Burnard !f' Continuing 8upervision & 8# may be refused if the court is

required to continually supervise its order, however it is notan absolute defence &

8atric %tevedores 3perations o (

8ty Ltd v $aritime 6nion o' Australia!

g' Futility & courts will not order 8# if the 4 can terminate thecontract at will &

2ambic 8ty Ltd v orthwind Holdings 8ty

Ltd order of 8# of a contract to sell shares in a privatecompany where the purchaser could no longer afford the

agreed price not held to be futile'h' 4elay, acquiescence and laches & delay will not bar relief

unless it would result in the defendant or a third party being pre:udiced &

!it:gerald v $asters 8# granted becauselaches was absent'2 n Lamshed v Lamshed 8# refused

because the defendant had agreed to sell the property to aninnocent third-party purchaser'!

NF 1<0)8 "F 8#CFC #LF"L<60C C600") BNF 1<0)8 "F 8#CFC #LF"L<60C C600") B

86)8F4, )L@ F"L 07=0C)"086)8F4, )L@ F"L 07=0C)"0

INJUNCTIONS

)ypical in:unction is the negative in:unction2 it restrains or forbids)ypical in:unction is the negative in:unction2 it restrains or forbids

the defendant from engaging in a wrongful act such as breaching athe defendant from engaging in a wrongful act such as breaching a

trust, trespassing on land, passing off goods or services as those oftrust, trespassing on land, passing off goods or services as those of

another, infringing a patent or breaching a contractanother, infringing a patent or breaching a contract!

E%clusi$e 3urisdiction

Elements

$' 'a$e an equitable cause of action – an in:unction will lie torestrain a breach of a fiduciary obligation or a breach of a trust2it will also issue against third parties who deal with the trust

property!i' Confidential information & an in:unction will almost certainly

lie against a person who receives confidential information,such as a trade secret, and is threatening to make an

unauthorised use of such information! f in:unction is to be

obtained here, it will be in equity+s au3iliary :urisdiction! ii' #erson+s right to work - equity developed a doctrine protecting a person+s right to work, irrespective of whether



that person was a party to the contract which threatened orcurtailed that right & Bucley v -utty

(' satisfy t'e court t'at in its discretion it s'ould grant t'e

in-unction – LFL )" 8#CFC #LF"L<60C

Au%iliary 3urisdiction

Elements

$' Cause of Action – in:unctions are granted to enforce e3isting

rights2 they are not a mechanism for creating new rights &Curro v Beyond 8roductions 8ty Ltd.

i' Quia timet in:unctions & lie to restrain threatened orapprehended legal wrongs2 not necessary to prove that the

common law action has crystallised & %upreme Court Act

D 5%W) s115)

ii' #roprietary Lights & plaintiff+s right must be in the natureof property! 6 right which constitutes or will constitute acause of action is sufficient irrespective of whether property

is protected & +ictoria 8ar ,acing v -aylor ! 0ot all in:uriesto property are forbidden by law & $oorgate -obacco Co

Ltd v 8hilip $orris Ltd 5o. ()! 4amage to intellectual property is allowed published comment'2 in:unctions will

be refused if such e3posure is protected by defences such as :ustification and free speech & Australian Broadcasting

Corporation v Lenah "ame $eats 8ty Ltd.

iii' 4efamation & in:unctions, particularly interlocutoryin:unctions, restraining the publication of defamatory

material are only granted in *very clear cases+ & Chappel

v -C Channel ine 8ty Ltd.

iv' <alicious Falsehood & where evidence of actual damage isabsent, in:unction will be granted if malice in the

publication is established & %wimsure 5Laboratories) 8ty

Ltd v $c<onald.

v' 0egligence & no reported case where an in:unction has beengranted to restrain negligent conduct, but can be grantedunder s of the 8upreme Court 6ct $EI9!

vi' 0uisance & will lie to restrain a threatened or a continuednuisance such as a nuisance caused by noise & &ennaway v

-hompson! vii' nducing a breach of contract and interference with contract

& will lie to restrain an intentional interference with contract & =hu v -reasurer o' the %tate o' %W

vii' Contract & will lie to restrain a breach of contract, butgenerally this is sub:ect to the rule that the term to beenforced must be negative in substance, rather than positive >

<oherty v Allma

(' t'at damages ,ould be an inadequate remedy – "ne way of proving the inadequacy of damages at law is to show that thedefendant+s wrong or threatened wrong will cause irreparable

harm or in:ury to the plaintiff, or third person - 2rving v #mu 9

8rospect "ravel 9 ,oad $etal Co Ltd.! 4amages may be

inadequate and the in:ury irreparable, if the goods have a peculiar value to the plaintiff!%' t'at t'e court in its discretion s'ould grant t'e in-unction

i' =nclean hands & &ettles and "as 8pliances Ltd v Anthony

Hordern 9 %ons Ltd. in:unction refused where 4innocently passed off its kettles as those of the plaintiff

because the latter had misrepresented to the public that its

kettles were protected by a patent'ii' 1aches and delay & onus on the defendant to show that he

or she was pre:udiced by laches & Lindsay 8etroleum Co v

Hurd !iii' 6cquiescence & classic acquiescence is where the plaintiff

knowingly accepts an infringement of his or her rights &3rr v !ord.

4nterlocutory 4n-unctions & )he ob:ect of the in:unction is to

protect the plaintiff against in:ury by violation of his right for whichhe could not be adequately compensated in damages recoverable inthe action if the uncertainty were resolved in his favour at the trial &

American Cyanamid Co v #thicon Ltd.

#eneral 2rinciples considered by t'e court

$' t'ere must be a 5serious question to be tried* & American

Cyanamid Co v #thicon Ltd

i' 3ceptions & in defamation, only granted in a *very clear

case,+ and in an application for a mandatory interlocutoryin:unction the plaintiff must establish a *high degree ofassurance+ of success at the final trial!

ii' 4ecisions on evidence and law & courts will have regard tothe evidence and arguments on both sides, but will refuse to

e3press *detailed views, especially on questions of validity+ & $artin #ngineering Co v -rison Holdings 8ty Ltd

iii' 4efences & #laintiff does not have to show that thedefences available to the defendant are, in effect, so weak

that they would be struck out as unarguably bad!(' t'e balance of con$enience must be in fa$our of t'e grant of

an in-unction &8trength of the plaintiff+s case & if # has a strong case, on themerit+s then the balance of convenience is likely to favour #

rreparable harm or damage & # will ordinarily have todemonstrate that irreparable harm or damage will result if the

interlocutory in:unction is refused & American Cyanamid Co v #thicon Ltd

4elay & if delay has allowed the defendant to establish a business or an enterprise, the balance of convenience will beagainst the plaintiff & American Cyanamid Co v #thicon Ltd.

%' t'e plaintiff must be prepared to gi$e an underta6ing as to

damages – plaintiff must give an undertaking to the court that

if the interlocutory in:unction is later dissolved the plaintiff willcompensate the defendant for any in:ury or loss caused by thein:unction & !irst etcom 8ty Ltd v -elstra Corp Ltd.

Mare$a Orders & restrains the defendant or potential defendantfrom disposing of his or her assets which may be required to satisfy

the plaintiff+s claim! t is available against any defendant whothreatens to place his or her assets beyond the reach of the plaintiff &

Cadura 2nvestments Ltd v ,otote 8ty Ltd.

Elements:

$' 'a$e a prima facie cause of action & must be in the :urisdiction2 not sufficient if the assets are in the :urisdiction, but the cause of action is in another country!

(' pro$e t'at t'e defendant 'as assets ,it'in t'e -urisdiction

of t'e court & plaintiff must establish that the defendant hasassets in the :urisdiction & Winter v $arac Australia

%' pro$e t'at t'ere is a real ris6 t'at t'e defendant is li6ely to

frustrate t'e -udgement by disposition or dissipation of 'is

or 'er assets & there must be a *real risk+ that the defendantwill frustrate the :udgement, either before or after :udgement,

by dissipating his or her assets! f the defendant is fraudulent,this will allow an inference to be drawn that if he assets are left

in the defendant+s hands they are not likely to be preserved!?' persuade t'e court t'at t'e balance of con$enience is in t'e

plaintiff*s fa$our – courts will weigh the strength of the plaintiff+s case and the risk that the defendant will dissipate hisor her assets in the balance against other discretionary matters,

such as delay and full and frank disclosure & Cardile v L#<

Builders 8ty Ltd.

A' gi$e an underta6ing to pay any damages suffered by t'e

defendant or a t'ird party in t'e e$ent t'at t'e order ,as

5,rongly* gi$en

Mandatory 4n-unctions & directly orders a person to do somethingpositive in:unction', as opposed to the more commonly usednegative in:unction! Can be granted in final and interlocutory forms2

)here are two types2$' Lestorative & requires the defendant to repair the consequence

of his or her wrongful act & ,edland Brics Ltd v $orris

(' nforcing & identical to specific performance2 compels the

defendant to do something which he or she has promised to dofor consideration! Courts are reluctant to grant a mandatoryCourts are reluctant to grant a mandatory

in:unction in a case where specific performance would not bein:unction in a case where specific performance would not be

availableavailable & Businessworld Computers 8ty Ltd v Australasian

-elecommunications Commission!

Anton 2iller Orders & directs the defendant to allow the plaintiff+s

representative to enter the defendant+s premises and search for andseiOe evidence, such as documents or goods, supporting the

plaintiff+s action or potential action! )he element of surprise iscritical in ensuring that the evidence is not destroyed & Long v

%peci'ier 8ublications 8ty Ltd

Elements:

$' 'a$e an e%tremely strong prima facie case & Anton 8iller &"

v $anu'acturing 8rocess Ltd.

(' establis' t'at serious irreparable damage ,ill be suffered &the damage, potential or actual, must be very serious for the

applicant & Anton 8iller &" v $anu'acturing 8rocess Ltd.

%' 'a$e con$incing proof t'at t'e defendant possesses

incriminating documents or goods and t'ere is a li6eli'oodor real possibility t'at t'e defendant ,ill destroy t'em & indeciding whether there is a likelihood of destruction of the

incriminating documents or goods, the court is entitled to take



into account the usual practices of pirates of copyright and thelike & Loc 2nernational plc v Beswic

?' pro$ide $arious underta6ings including an underta6ing as

to damages & plaintiff should also give undertakings that the

order will be e3plained clearly to the defendant and that thedefendant will be advised of his or her right to obtain promptlegal advice before the order is e3ecuted & 8$%2 "roup v

Wilson

A' con$ince t'e court t'at in its discretion it s'ould grant t'e

order & equitable discretionary matters such as delay,acquiescence and unclean hands will need to be taken into

account!a' 4isobeying the order. contempt & anton piller is not a

search warrant, so forced entry by the plaintiff+s solicitorsis not permitted! f the defendant fails to comply with theorder, this will e3pose him or her to proceedings forcontempt & Anton 8iller &" v $anu'acturing 8rocess Ltd.

b' #rivilege against self-incrimination & defendant can raise

the defence of self-incrimination where the production ofdocuments to the plaintiff+s solicitors is likely toincriminate the defendant in a crime & Warman

2nternational Ltd v #nvirotech.

c' 4issolving the order & the plaintiff is under an obligationto bring under the notice of the Court all facts material tothe determination of his right to that in:unction2 failure todo so is the most common ground for dissolving an 6nton#iller order & -homas A #dison ltd v Bulloc.

EQUITABLE COMPENSATION AND DAMAGES

E%clusi$e 3urisdiction

<onetary compensation awarded in the e3clusive :urisdiction ofequity is called *equitable compensation+

n cases where one has breached their fiduciary duty by failing todisclose a conflict of duty and interest to their client, the liability of

the defaulting fiduciary is *to compensate the plaintiff by putting

him in as good a position pecuniarily as that in which he was beforethe in:ury+ & octon v Lord Ashburton!

)he defendant *is not responsible for damage not caused by thewrong or to pay by way of compensation more than the loss sufferedfrom such wrong!+ & -arget Holdings v ,ed'erns! By contrast, wherethe defaulting fiduciary has made a gain, the appropriaterestitutionary remedy in equity is an account of profits & -arget

Holdings Ltd v ,ed'ern!

;hen a party, holding a fiduciary relationship commits a breach ofhis duty by non-disclosure of material facts, which his constituent is

entitled to know in connection with the transaction, he cannot be

heard to maintain that disclosure would not have altered thedecision to proceed with the transaction, because the constituent+saction would be solely determined by some other factor, such as the

valuation by another party of the property proposed to be mortgaged & Bricenden v London Loan and %avings Co.

Causation in equity is not susceptible to the formulation of a single

test! t is necessary to identify the purpose of the particular rule todetermine the appropriate approach to issues of causation & $aguire

v $aaronis!

n <ay v $ead , the client was held responsible for his own loss after

the defendant solicitor had failed to disclose information of materialinterest to the plaintiff which resulted in a failed investment!

Concurrent and Au%iliary 3urisdictions

n modern :urisdiction of equity to award damages in respect ofcommon law and other wrongs is based largely upon statutory

provisions that follow Lord Cairns Act ! ;here the court has power.

a' to grant an in:unction against the breach of any covenant,contract or agreement, or against the commission ofcontinuance of any wrongful act2 or

b' to order the specific performance of any covenant, contract or

agreement the Court may award damages to the party in:uredeither in addition to or in substitution for the in:unction or

specific performance!

4amages are available if the court has :urisdiction to grant specificrelief, but declines to do so because of discretionary considerations &

7aggard v %awyer

a' 7urisdiction to award damages)endency of modern authorities has been to treat everything as amatter of discretion, hence increasing the scope to award equitabledamages & Wentworth v Woollahra $unicipal Council !

f a grant of specific relief was impossible when proceedingsseeking relief were commenced, and remained so, there is no

:urisdiction to award equitable damages & $c$ahon v Ambrose.

However, if a contract was capable of specific performance when proceedings seeking relief were commenced, the court does notlose is :urisdiction to award damages in substitution for specific

performance if performance of the contract becomes impossibleduring the pendency of the litigation & 7ohnson v Agnew

b' 4iscretion to award damages"nce there is a requisite :urisdiction to award equitable damages,there are three possible outcomes

$' neither damages nor specific relief may be awarded

(' damages may be awarded in addition to specific reliance & "rant v <awins

%' damages may be awarded in substitution 'or specific relief

& 7ohnson v Agnew! However, even where specific relief isavailable, damages in substitution may still be available &%hel'er v City o' London #lectric Lighting Co

c' <eaning of *wrongful+ acti' Wentworth v Woolabra & HC held that s G is *e3clusively

preoccupied with private rights+ and that the section *was notintended to authorise the award of damages for breach of a

statutory prohibition which manifests no intention to create a private cause of action for damages!+ refused claim fordamages'

$atthews v AC8 8ublishing 8ty Ltd distinguished Wentworth v

Woolahra $unicipal Council for the reason that *section %AA'is not concerned with public rights+

ii' quitable damages are always a discretionary remedy, and that

discretion includes the issue of which wrongs may give rise toan award of damages!

iii' 6pplying the ma3im ae?uitas se?uitur legem meaning *equityfollows the law+', common law restrictions upon remoteness of

damage are applied in the concurrent and au3iliary :urisdictions of equity! 8econdly, there is no necessarydifference between the common law and equity as to the datefor assessment of damages, because both remedies are

governed by compensation principle!

6ssessment of damages requires two qualifications. $' damagesin the concurrent and au3iliary :urisdictions may be reduced ordeclined because of equitable discretionary considerations that

may not be relevant at common law, and (' damages may beawarded under Lord Cains Act and its equivalents where nodamages can be awarded at common law!

RECTIFICATION

Lectification proceedings in equity are usually commenced after oneof the parties insists on relying on the document according to itswritten terms! )he plaintiff who seeks rectification has to displacethat presumption or *hypothesis!+ & $aralinga 8ty Ltd v $a/or

#nterprises 8ty Ltd.

Elements

$' there is a ,ritten instrument – applies to all written contract,

e3cept the articles of association of a company and wills!(' there was a mista6e by the parties as to its contents or its effect

a' Common mistake & granted only in e3ceptional cases such asan incorrect omission or inclusion of a word or words! Both

parties had to mistaken about the content or form of the

document! 6 mistake about its effect is insufficient & $aralinga 8ty Ltd v $a/or #nterprises 8ty Ltd

b' 3change of contracts & where, as a matter of formality, two

written counterpart contracts are e3changed, but one contains

a mistake, rectification is available2 however will be refused ifthe parties+ intention is to be bound only by an e3change ofidentical contracts & %indel v "eorgiou



c' Construction and rectification & not all mistakes requirerectification! 4ifficulties and ambiguities on the face of thedocument obvious typos and grammatical errors, spellingmistakes, deletions, and insertions, can often be corrected

simply as a matter of interpretation'! nterpretation should bereserved for resolving ambiguities on the face of thedocument, whereas rectification is appropriate where themeaning of the document is clear, but it fails to e3press thetrue intention of the parties & <cor Blinds "old Coast 8ty Ltd

v <cor Blinds Australia 8ty Ltd.

d' =nilateral mistake & )raditionally, it is available where the 4is guilty of equitable fraud or unconscientiously takes

advantage of a mistake in the agreement & $aralinga 8ty Ltd

v $a/or #nterprises 8ty Ltd ! )here are two qualifications tothis.

i' 4 must have actual rather than constructive knowledge of#+s mistake & Leibler v Air ew =ealand Ltd

ii' t is an unconscionable conduct & -utt v <oyle

%' the part ies intention as to what the instrument should havecontained was common or concurrent at the time of e3ecution2

anda' Continuing concurrent intention & must be shown that the

written instrument does not reflect the true and concurrentintention of both parties at the time of e3ecution of thedocument or at the time the document came into force & %lee v

Ware

b' 6ntecedent contract unnecessary & an antecedent contract wasoften oral in nature! =nder modern law of rectification, aneffective antecedent contract is no longer required to enforce

by rectification & $ontgomery v Beeby

c' ntention must be actual & rectification ensures that thecontract gives effect to the parties+ actual intention & Codel'a

Construction 8ty Ltd v %tate ,ail Authority o' %W

d' vidence & # must *displace the hypothesis arising from

e3ecution of the written instrument, namely, that it is the trueagreement of the parties+2 there must be a *convincing proof+

that the written document fails to give effect to the partiesintention & %tormriders 8ty Ltd v Copperart 8ty Ltd

?' the court*s discretion should be e3ercised in favour of grantingrelief & relief may be refused by court+s discretion if there has

been acquiescence, delay, laches, unclean hands or estoppel!

DECLARATIONS

0ot really a remedy & declares validity of a right or legal point!8tatutory reform now gives power to grant declarations withoutother relief! <ost cases concern public law disputes

Elements

$' court 'as -urisdiction to grant t'e declaration – traditionallythe only true :urisdictional limitation upon the remedy ise3clusion by statute & !orster v 7ododex Australia 8ty Ltd

(' plaintiff 'as locus standii to see6 t'e declaration – you can+tget a declaration re validity of a contract if you+re not a party!<ost e3amples are from public law & Aust Conservation

!oundation v Cth 6CF failed to comply with nvironment

#rotection impact of proposals' 6ct2 it had commented ondraft environmental impact assessment, without noticeableeffect2 it alleged its members rights of access would beaffected'

%' t'ere is no discretionary ground for refusing t'e declaration

– traditionally, the courts have warned against treatingdiscretionary factors that have resulted in refusal to grant the

remedy as being :urisdictional limitations & !orster v 7ododexa' Hypothetical Questions & not generally granted if there is

no specific dispute involving legal rights and obligationseg! 6n order that offences created by statute are invalid orunconstitutional' & Aus Boot -rade #mployee4s !ed v Cth legislation that homose3uality was unlawful'2 but in

Croome v -asmnia Court ruled legislation was invalid as

Croome was a homose3ual, therefore not hypothetical' b' 1ack of =tility & a declaration is likely to be refused where

the remedy *will produce no foreseeable consequences forthe parties!+ & Church o' %cientology 2nc v Woodward.

However, it is only available as final :udgement, not astepping stone & eeta 5#pping) v 8hillips!

c' Lelevance of equitable defences & equitable defences,especially unclean hands and refusal to do equity

DELIVERY UP

4elivery =p is a remedy by which documents or other goods aredelivered to the custody of the court for the purpose of cancellationor destruction! t has two main areas of practical application2 $'

relation to ineffective legal documents, and (' relation to goods thatinfringe, or may be used to infringe, intellectual property rights!

$' 4neffecti$e 7egal Documents – remedy is not confined tocontracts, but e3tends to other legal documents such as bonds,

deeds, and negotiable instruments & Langman v Handover !

a' 4iscretionary grounds for refusal & )here are four grounds.• the ineffective nature of the document is apparent on its

face & "ray v $athias

• the document is neither void nor voidable

• the document is only partially void & 2deal Bedding Co

Ltd v Holland

• a general equitable defence, such as laches and

acquiescence by the plaintiff e3ists! However the presenceof *unclean hands+ on the part of the plaintiff will not

necessarily preclude an order for delivery up & +auxhall

Bridge Co v #arl o' %pencer

(' 4nfringing #oods – delivery up and destruction of goods may be ordered where the manufacture or e3ploitation of the goods

constitutes an infringement of a patent, a registered design, aregistered trade mark, or a copyright & +avasseur v &rupp

TRADE PRACTICES ACT

Commonwealth 6ct passed in $EI?2 applies only to corporations orindividuals doing certain activities eg! Cross border trade'! t issupplemented by similar legislation in 8>)+s! <ain parts of the 6ct

part iv, iva and v' deal with restrictive trade practices,unconscionable conduct, and consumer protection! #art vi deals withenforcement and remedies!

E%amples of "ubstanti$e 2ro$isions

8A( & Jshall not in trade or commerce engage in conduct that is

misleading or deceptive or likely to mislead or deceive8A$66 & Jshall not, in trade or commerce, engage in conduct thatis unconscionable within the meaning of the unwritten law, from

time to time, of the 8tate and )erritories

02A Remedies

• #enalties & s!I > II allow civil penalties

• 4amages & s!G( > I allow damages

• Lescission & s!IA6 uses *rescission+ but refers to right to

terminate from that time onwards - s!GI('ba' court may refuse to enforce provisions of a

contract

• 8pecific #erformance & not mentioned

- s!GI('f' & can order supply of services if purpose is compensation

• n:unctions & s!G9 gives court power

- 6lthough discretionary, no need to prove damagesinadequate

Damages

lements under s!G($' include.%' Cause of action & wide variety of causes of action supporting

claims for damages under the 6ct2 damages are available forcontraventions of restrictive trade practices pt K',unconscionable conduct pt K6', industry codes pt KB', andconsumer protection pt K' to name a few!

?' Causation i' indicates causal connection & practical or common senseapproach & $arch v %tramare

ii' other causes & must be reliance on the conduct, but conductdoes not have to be sole cause

iii' contributory negligence & 29L %ecurities v H-W +aluersE

sG($B' and GIC4A' 0'e damage must not be too remote and & usually but not

necessarily the same as for deceit & Wardley Australia v WA

' 0'e plaintiff s'ould ta6e reasonable steps to mitigate t'e

damage & same principles as C1 & $urphy v 3verton

2nvestments

Quantum > types of loss

• 8sual measure as for tort of deceit – generally no e3pectation

loss, but can get loss of opportunity



• Mental "tress – recognised psychiatric disorder2 awarded in

%teiner v $agic Carpet -ours

• Reputation – !lamingo 8ar v <olly <olly

• Allo,s structures settlements & sFD=C

Lemedies under s!GI

• 4amages & compared with s!G(

- 4iscretionary vs! a right- 1oss likely to be suffered- #art of loss

- Leduce or prevent likely loss

• 4eclarations & s.FD5()5a) power to declare contract void

• Lectification > s.FD5() wider powers than C1

- court can vary provisions of a contract or arrangements- refuse to enforce provisions of a contract- direct the e3ecution of an instrument varying or terminating an

interest in land

SELF-ELP

<a:ority of disputes are settled out of court! )here is a small proportion taken to a lawyer, however a small proportion of theseactually get to court! =sually parties respective legal rights provide

backdrop for any settlement! )here is a quick look at four things.

$' Discouragement of self!'elp & legal systems try to discourageself-help due to obvious policy reasons & $c8hail v 8ersons

6nnown. "ther causes of action discourage self help, eg!)respass, conspiracy, tort of inducing a breach of contract, and)#6 & can be an offence to organise a boycott!

(' Remedies / Alternati$es – Lemedies by legal action! )hereare a few alternatives indirectly related to dispute eg! 0egative

publicity, loss of reputation, loss of credit rating, and moral pressure'

%' "elf!.elp tolerated by la, – self defence of person or property2 abatement of nuisance trimming neighbours tree'2

eviction of trespasser reasonable force only'2 contract

rescission of voidable contract termination of contract of breach of important term'

?' "elf!.elp by Agreement – 6lternative dispute resolutionclauses negotiation, mediation and conciliation, arbitration'2

law of security and repossession pledges and li ens, mortgagesale'2 forfeiture of deposit2 and liquidated damages clausesagreed pre-estimate of damages' & <unlop -yre Co v ew

"arage

CRIMINAL COMPENSATION

#eople in:ured either physically or psychologically as a result of aCriminal "ffence are entitled to make a compensation claim forthose in:uries! nternational Convention focused on victims of crime!)here was international pressure on Dovernments worldwide to

implement legislation assisting victims of crime!

Rele$enat Q7D 7egislation

#re-$EEA & prior to $EEA, there were numerous standard legalavenues for victims to seek compensation however they were oftenmore comple3 and legally e3pensive and thus were not often

utilised!#re-$EEA & Qld Dov+t introduced the Criminal "ffence Kictims 6ctC"K6'

9'at is Compensable

8ection $E is where E9 of claims come under

9'at is compensable• )he scheme allows compensation for in:ury5death only and does

not provide for.

• #roperty loss or damage

• 1oss of wages or economic loss

• Cost of mediation, doctors or hospital costs

• 1egals Costs & s!%$

"nly personal in:uries2 does not cover legal costs! Fees will comeout from what you get from client! f you can+t get compensationsform anyone else, gov+t pays for it!

O$er$ie, of 2rocess

• 6pplicant is in:ured during a criminal act by the defendant• 4efendant passes through the criminal court system and is

convicted of the criminal offence

• 6pplicant+s legal practitioner gathers evidence required to prove

the in:uries and commences legal proceedings ie! Criminal

Compensation 6pplication'

• 6pplication is heard! 4efendant may have legal representation!

7udge formulates quantum using in:ury schedules and awards the

sum against the 4efendant

• f the defendant has sufficient assets to satisfy the award, then

enforcements proceedings are commenced against him5her

• f the defendant does not have sufficient assets then upon proof of

same being obtained the applicant may then apply for an e3-gratia payment from the 6ttorney Deneral!

"tatutory Requirements

• #er the Criminal "ffence Kictims 6ct $EEA

• Clients must suffer an in:ury as a result of an offence & s$E$'a'

• n:ury & Bodily in:ury, mental or nervous shock, pregnancy & s!(9

• "ffence must be a personal offence & s$E$'a'

• #ersonal offence & an indictable offence committed directly

against someone+s physical body & s($

• "ffender must have been convicted on indictment in either the

4istrict Court of 8upreme Court & s(?$'a'

• )ime 1imit & to lodge claim applies & )hree years from date of

conviction 8tandard #ersonal n:ury time limits apply'

Commercial Considerations

• s the compensation likely to be awarded, sufficient to cover legal

costs and still provided the client with a satisfactory return! )heytake into account.

a' evidentiary costs b' court procedure costsc' professional feesd' possible deductions

Court 2reparation

• 8(? of the 6ct provides for applications to the Court for an order

compensating for those in:uries! 1egal proceedings are

commenced in accordance with the standard procedures of the=C#L!

• 1egal #ractitioner obtains sufficient evidence to prove the

Criminal "ffence and the in:uries sustained! )hese may include4irector of #ublic #rosecutions file, statements, specialistmedical report, psychiatric reports!

Determining Quantum

• 7udge determines quantum at their own discretion

• )op ends of scales provided are reserved for the most serious of

in:uries

• Can+t claim under the same category twice

• <a3imum total amount claimable is PIA,999!99• f in:ury is not listed in table then select the nearest similar in:ury

Court Order

• )he court will make an order against the defendant in the sum

determined2 therefore you now have to seek payment of theaward from the defendant! "nly if the defendant has insufficientassets to pay can you then seek the award sum from the

Dovernment!

Application to t'e #o$ernment – =nder s!%(,

• )he respondent has insufficient assets to pay the compensation

order

• 8tandard application form

• 6dditional evidence required

• 8tate may pay, from consolidated revenue, all or part of the

amount requested however current Dovernment policy is to payCourt "rders in full

• <ay take $( months to process

Application to t'e #o$ernment for an E%!#ratia 2ayment

• =nder s%%, you can claim for criminal activity provided a report

is made

GENERAL ASSISTANCE CUES

"ample 4ntro 2aragrap' for Contracts Question:



)his scenario involves a contract between Ben:amin and <ary! Benrequires advice as to how he should proceed in the face of a possible

breach and wants to know what remedies are available to him if the breach occurs! t appears that his primary avenue would be to seek

damages in contract! )he issues here are $' whether all of theelements for contract damages are satisfied, (' what action canBen:amin take % ' what heads of damage can Ben:amin claim under and ?' alternatively, whether he has a claim for the equitableremedies of specific performance and5or in:unction

4n cases of anticipatory breac';

Causation – Gbut 'or4 the de'endant4s wrong* would the plainti''

have su''ered the loss or damage complained o' ;e have anadmitted breach! f he leaves, they will have some sort of damagesavailable

• Ben must prove the loss was due to the breach Case'

• Balance of probabilities Case'

• *But for+ test Case' but as a rule of thumb Case'

• "bvious that *but for+ <ary selling to another dealer Ben would

have possession

Course of Action

• 6nticipatory breach so ( options. - Chose to ignore R affirm the contract & %hindler v orthern

,aincoat Co Ltd.

- )erminate R mitigate immediately & White 9 Carter Ltd v

$c"regor

• )he nature of the breach means he cannot ignore it so he should

terminate

• t appears he has a claim for damages! n order to take action he

must first terminate the contract Case'

0utorial <

• f you are not the breaching party, you can claim in restitution in

contract

• f you are breaching party, you can only claim restitution under

?uantum meruit as much as he deserved' and ?uantum valebat !

as much as it was worth'

• @ou can only claim this if there has been a free acceptance of

benefit & %umpter v Hedges!

• Can+t claim quantum meruit for work done, or for those things

that became fi3ed to the land, but can claim for stuff that wasmovable

• n cases where a contract has been discharged for breach or

repudiation after partial performance, a restitution claim in?uantum meruit by the terminating party may e3ceed thecontract price!

CANADIAN CRIMINAL LAW TEMPLATE.doc

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