========================================================================= Date: Thu, 23 Aug 2007 10:37:43 +1000 Reply-To: Neil Foster Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Neil Foster Subject: HCA grants special leave in Restitution case MIME-version: 1.0 Content-type: text/plain; charset=ISO-8859-15 Content-transfer-encoding: 7BIT Content-disposition: inline Dear Colleagues; I note that the High Court has granted special leave to appeal (the transcript is at http://www.austlii.edu.au/au/other/HCATrans/2007/420.html ) from the decision of the Full Court of the Supreme Court of SA in W COOK BUILDERS PTY LTD (IN LIQ) v MATTHEW LUMBERS & ORS [2007] SASC 20 (decision at http://www.austlii.edu.au/cgi- bin/sinodisp/au/cases/sa/SASC/2007/20.html). This is a building case decided by the Full Court on restitutionary grounds; the appeal has been accepted by the High Court explicitly on the basis that it seems to offer a (further?) chance to clarify the operation of the law in the area. Kirby J's comments on this are interesting: KIRBY J: Yes, but we have here a claim on this so-called basis of restitution * a claim in restitution as described. We have assertions by you that this is an obvious case for it and by Mr Jackson*s obvious case not for it. We have a dissenting opinion in the Full Court. Whole conferences are devoted to this area of the law and in some countries it is a growth industry and in this country it might be interred stillborn, but can it be denied that it is an important question? The issue then becomes, is this an appropriate vehicle, but it does seem to be an appropriate vehicle to present interesting and important questions of legal principle. Regards Neil Foster Neil Foster Newcastle Law School Faculty of Business & Law University of Newcastle Callaghan NSW 2308 AUSTRALIA ph 02 4921 7430 fax 02 4921 6931 ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ========================================================================= Date: Thu, 30 Aug 2007 11:24:53 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re: ODG: SCC has granted leave in Holland v. Saskatchewan Comments: To: Russell Brown , ODG In-Reply-To: <003d01c7eb13$629ef8c0$fb6c8081@KCBY9D0> Mime-version: 1.0 Content-type: multipart/alternative; boundary="B_3271317893_486028" > This message is in MIME format. Since your mail reader does not understand this format, some or all of this message may not be legible. --B_3271317893_486028 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit But surely, following Kingstreet v NB, they will hold that none of this is tort law, but rather constitutional law...? Lionel Smith On 30/8/07 10:38, "Russell Brown" wrote: > Colleagues, > > The SCC has just this morning granted leave to appeal in Holland v. > Saskatchewan (on appeal from the Saskatchewan Court of Appeal's decision to > strike the plaintiff's action). > > It is a representative action brought I gather by commercial cervid farmers in > the province (Holland, the representative plaintiff, farms elk). Holland had > received a game farm licence issued under a statute and complied with the > provincial surveillance program aimed at avoiding the spread of chronic > wasting disease in cervids. At some point, the provincial program was > combined with a federal program (anathema to western farmers) which required > farmers to release and indemnify the federal Crown in connection with the > disease and the program. When Holland and the other plaintiffs refused to > sign, Saskatchewan reduced the compliance status of his herd to > "surveillance", which reduced his herd value. > > Holland sought judicial review and succeeded in having the surveillance status > removed from his herd. The Minister complied but refused to restore the > original clean status of the herd. That prompted a suit (alleging negligence, > misfeasance in a public office and intimidation) and - unsurprisingly - the > Minister's application to strike. > > This may be just the kind of case the SCC might want to consider Lewis Klar's > argument that, even in Crown liability cases, proximity requires examination > of the relationship, not the statute. In most Crown liability cases, there > will be no relationship, proximate or otherwise, with the plaintiff. (James > v. BC is an exception, but even there there should have been no liability > because of the absence of reasonable reliance). In Holland, however, there > will be a relationship for the Court to examine for proximity. > > With best wishes, > > Russ > ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . --B_3271317893_486028 Content-type: text/html; charset="US-ASCII" Content-transfer-encoding: quoted-printable Re: ODG: SCC has granted leave in Holland v. Saskatchewan But s= urely, following Kingstreet v NB, they will hold that none of this is= tort law, but rather constitutional law...?
Lionel Smith



On 30/8/07 10:38, "Russell Brown" <rsbrown@ualberta.ca> wro= te:

Colleagues,

The SCC has just this morning granted leave to appeal in Holland v. Saskatc= hewan (on appeal from the Saskatchewan Court of Appeal's decision to strike = the plaintiff's action).

It is a representative action brought I gather by commercial cervid farmers= in the province (Holland, the representative plaintiff, farms elk).  H= olland had received a game farm licence issued under a statute and complied = with the provincial surveillance program aimed at avoiding the spread of chr= onic wasting disease in cervids.  At some point, the provincial program= was combined with a federal program (anathema to western farmers) wh= ich required farmers to release and indemnify the federal Crown in connectio= n with the disease and the program.  When Holland and the other plainti= ffs refused to sign, Saskatchewan reduced the compliance status of his herd = to "surveillance", which reduced his herd value.  

Holland sought judicial review and succeeded in having the surveillance sta= tus removed from his herd.  The Minister complied but refused to restor= e the original clean status of the herd.  That prompted a suit (allegin= g negligence, misfeasance in a public office and intimidation) and - unsurpr= isingly - the Minister's application to strike.  

This may be just the kind of case the SCC might want to consider Lewis Klar= 's argument that, even in Crown liability cases, proximity requires examinat= ion of the relationship, not the statute.  In most Crown liability case= s, there will be no relationship, proximate or otherwise, with the plaintiff= .  (James v. BC is an exception, but even there there should have been = no liability because of the absence of reasonable reliance).  In Hol= land, however, there will be a relationship for the Court to examine for= proximity.

With best wishes,

Russ


 ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>. --B_3271317893_486028-- ========================================================================= Date: Fri, 31 Aug 2007 10:33:19 +1000 Reply-To: Neil Foster Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Neil Foster Subject: Re: ODG: SCC has granted leave in Holland v. Saskatchewan Comments: To: Lionel Smith , Russell Brown , ODG In-Reply-To: <010101c7eb1f$d0322810$fb6c8081@KCBY9D0> MIME-version: 1.0 Content-type: multipart/alternative; boundary="Boundary_(ID_9cbZXREsbg78ccYGTMFDHQ)" This is a MIME message. If you are reading this text, you may want to consider changing to a mail reader or gateway that understands how to properly handle MIME multipart messages. --Boundary_(ID_9cbZXREsbg78ccYGTMFDHQ) Content-type: text/plain; charset=US-ASCII Content-transfer-encoding: 7BIT Dear Colleagues; An interesting case. We may have something similar coming up in Australia. Some of you may have heard that we currently have a disastrous (for the racing industry) equine influenza "epidemic" here. Apparently hundreds of millions of dollars have been lost already because weekend racing carnivals have been cancelled, and there is some suggestion (I haven't heard the news today) that the Melbourne Cup may have to be called off!! (This is one of Australia's "iconic" institutions on the first Tuesday in November.) Now there are suggestions in the press that the virus may have been introduced here through the carelessness of the Australian Quarantine Service. The prospect of massive economic loss claims against the Commonwealth Government probably has some plaintiff lawyers "champing at the bit" already... PS I assume a "cervid" is an elk or similar critter. Regards Neil F Neil Foster Newcastle Law School Faculty of Business & Law MC159c, McMullin Building University of Newcastle Callaghan NSW 2308 AUSTRALIA ph 02 4921 7430 fax 02 4921 6931 >>> Russell Brown 31/08/07 2:07 >>> Re: ODG: SCC has granted leave in Holland v. SaskatchewanOn a similar note - perhaps the court will finally clarify the "relationship" between administrative and tort law. Then again perhaps they will make it even more fuzzy. ----- Original Message ----- From: Lionel Smith To: Russell Brown ; ODG ; RDG Sent: Thursday, August 30, 2007 9:24 AM Subject: Re: ODG: SCC has granted leave in Holland v. Saskatchewan But surely, following Kingstreet v NB, they will hold that none of this is tort law, but rather constitutional law...? Lionel Smith On 30/8/07 10:38, "Russell Brown" wrote: Colleagues, The SCC has just this morning granted leave to appeal in Holland v. Saskatchewan (on appeal from the Saskatchewan Court of Appeal's decision to strike the plaintiff's action). It is a representative action brought I gather by commercial cervid farmers in the province (Holland, the representative plaintiff, farms elk). Holland had received a game farm licence issued under a statute and complied with the provincial surveillance program aimed at avoiding the spread of chronic wasting disease in cervids. At some point, the provincial program was combined with a federal program (anathema to western farmers) which required farmers to release and indemnify the federal Crown in connection with the disease and the program. When Holland and the other plaintiffs refused to sign, Saskatchewan reduced the compliance status of his herd to "surveillance", which reduced his herd value. Holland sought judicial review and succeeded in having the surveillance status removed from his herd. The Minister complied but refused to restore the original clean status of the herd. That prompted a suit (alleging negligence, misfeasance in a public office and intimidation) and - unsurprisingly - the Minister's application to strike. This may be just the kind of case the SCC might want to consider Lewis Klar's argument that, even in Crown liability cases, proximity requires examination of the relationship, not the statute. In most Crown liability cases, there will be no relationship, proximate or otherwise, with the plaintiff. (James v. BC is an exception, but even there there should have been no liability because of the absence of reasonable reliance). In Holland, however, there will be a relationship for the Court to examine for proximity. With best wishes, Russ ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . --Boundary_(ID_9cbZXREsbg78ccYGTMFDHQ) Content-type: text/html; charset=US-ASCII Content-transfer-encoding: quoted-printable Content-description: HTML
Dear = Colleagues;
An = interesting case. We may have something similar coming up in Australia. = Some of you may have heard that we currently have a disastrous (for the = racing industry) equine influenza "epidemic" here. Apparently hundreds of = millions of dollars have been lost already because weekend racing = carnivals have been cancelled, and there is some suggestion (I haven't = heard the news today) that the Melbourne Cup may have to be called off!! = (This is one of Australia's "iconic" institutions on the first Tuesday in = November.)
Now there = are suggestions in the press that the virus may have been introduced here = through the carelessness of the Australian Quarantine Service. The = prospect of massive economic loss claims against the Commonwealth = Government probably has some plaintiff lawyers "champing at the bit" = already...
PS I = assume a "cervid" is an elk or similar critter.
Regards
Neil = F
 
Neil Foster
Newcastle Law School
Faculty of Business & = Law
MC159c, McMullin Building
University of Newcastle
Callaghan NSW = 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931


>&= gt;> Russell Brown <rsbrown@ualberta.ca> 31/08/07 2:07 >>>
Re: = ODG: SCC has granted leave in Holland v. SaskatchewanOn a similar note - = perhaps the court will finally clarify the "relationship" between = administrative and tort law. 

Then again perhaps they will = make it even more fuzzy.
  ----- Original Message -----
  = From: Lionel Smith
  To: Russell Brown ; ODG ; RDG
  = Sent: Thursday, August 30, 2007 9:24 AM
  Subject: Re: ODG: SCC = has granted leave in Holland v. Saskatchewan


  But surely, = following Kingstreet v NB, they will hold that none of this is tort law, = but rather constitutional law...?
  Lionel Smith



&n= bsp; On 30/8/07 10:38, "Russell Brown" <rsbrown@ualberta.ca> wrote:

    Colleagues,

    The SCC has just = this morning granted leave to appeal in Holland v. Saskatchewan (on appeal = from the Saskatchewan Court of Appeal's decision to strike the plaintiff's = action).

    It is a representative action brought I = gather by commercial cervid farmers in the province (Holland, the = representative plaintiff, farms elk).  Holland had received a game = farm licence issued under a statute and complied with the provincial = surveillance program aimed at avoiding the spread of chronic wasting = disease in cervids.  At some point, the provincial program was = combined with a federal program (anathema to western farmers) which = required farmers to release and indemnify the federal Crown in connection = with the disease and the program.  When Holland and the other = plaintiffs refused to sign, Saskatchewan reduced the compliance status of = his herd to "surveillance", which reduced his herd value. 

&nb= sp;   Holland sought judicial review and succeeded in having the = surveillance status removed from his herd.  The Minister complied but = refused to restore the original clean status of the herd.  That = prompted a suit (alleging negligence, misfeasance in a public office and = intimidation) and - unsurprisingly - the Minister's application to = strike. 

    This may be just the kind of case = the SCC might want to consider Lewis Klar's argument that, even in Crown = liability cases, proximity requires examination of the relationship, not = the statute.  In most Crown liability cases, there will be no = relationship, proximate or otherwise, with the plaintiff.  (James v. = BC is an exception, but even there there should have been no liability = because of the absence of reasonable reliance).  In Holland, however, = there will be a relationship for the Court to examine for proximity.
    With best wishes,

    Russ


____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>. --Boundary_(ID_9cbZXREsbg78ccYGTMFDHQ)--