Date: Neil Foster

From: Thu, 10 Jul 2008 01:53

Subject: Australian/Canadian Query

Dear Rob

No, nothing comes to mind that is "dismissive". The closest I could get on a quick hunt were:

(1) In Bryan v Maloney [1995] HCA 17; (1995) 182 CLR 609 at para 21 when the majority reject the House of Lords' approach in Murphy v. Brentwood District Council they say:

Their Lordships' view in that regard seems to us, however, to have rested upon a narrower view of the scope of the modern law of negligence and a more rigid compartmentalization of contract and tort than is acceptable under the law of this country. (take that!!)

(2) In Travel Compensation Fund v Robert Tambree t/as R Tambree and Associates [2005] HCA 69; (2005) 224 CLR 627 when dismissing a "policy" approach to causation Gummow & Hayne JJ say:

There are indications in the United Kingdom that, in determining for the law of tort questions of sufficient or determinative causal linkage, a similar approach to that in Caparo should be adopted by asking whether as "a value judgment" the defendant ought to be held liable (footnote to Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) per Lord Nicholls). However that may be ...

That "however" really stings! :)

So, no, can't come up with anything really. On final reflection I guess Gummow J might say something less than entirely respectful in either Say-Dee or Lumbers but again he mostly attacks the lower Australian state courts rather than the HL, I think.

Regards
Neil F

Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Robert Stevens 10/07/08 12:57 >>>

I don't hold Australian and Canadian cases in my head in quite the way that I try to do with English cases. I wonder if colleagues have any good examples of the High Court of Australia or (more improbably) the Supreme Court of Canada being particularly dismissive of a decision of the House of Lords? I have a couple of examples but nothing really strong. (It has been pointed out to me that Dixon CJ had some choice things to say about their Lordships in private. I think one person we definitely can forgive is Dixon.)

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