The “exclusionary rule” was recognized by the High Court as being the rule which rejects any liability for negligence causing merely pure economic loss . However, the exclusionary rule established a number of exceptions in the case of Hedley Byrne & Co Ltd v Heller & Partners Ltd . The exceptions developed, were found to have been arbitrary, imperfect and consequently described by McHugh J as having, “no single principle underlying them”. In cases of pure economic loss it was acknowledged that the test of reasonable foreseeability of loss was not adequate . The test of foreseeability and proximity was submitted by Lord Bridge in the decision made in Caparo Industries Plc v Dickman . The cases of Hawkins v Clayton and Hill v Van Erp will …show more content…
In this case the solicitor in agreement with the client’s directions, prepared a will which would allow the client’s property to be given to Mrs. Van Erp, her friend. The will was signed by Mrs. Van Erp’s husband which was instructed by the solicitor, resulting in the disposition of the property to be void . Mrs Van Erp claimed that the solicitor breached a duty of care concerning herself as an anticipated beneficiary , which was done successfully. This was also established in Badenach . In Hill v Van Erp , the testatrix and the proposed beneficiary both had an equal interest in the statement made by the testatrix and therefore it is recognising an onus to the intended beneficiary which would not include any conflict with the responsibilities owed by the solicitor to the client . It was held that the solicitor was in breach of his duty of care to the client, by not warning the client of the risk of the daughter making a family provision claim, but by also failing to give the right advice to the client in regards to the right steps to take to avoid exposing the estate to such claim
The decision in Equuscorp is significant, as it has made clear several principles that were once ambiguous under Australian law. It ratifies that restitutionary remedies are unavailable for a claim for money had and received where recovery would reduce coherence in the law. Furthermore, Equuscorp has confirmed that a bare cause of action can be assigned where the assignee has a genuine commercial interest in its enforcement.
The appeal was heard in The NSW Supreme Court, Court of Appeal. The appellant appealed the issue of “blameless accidents” therefore providing new evidence, with the view that the preceding judge made an error recognising the content and scope of duty of care. He also noted the breach of duty of care and causation .
R v International Stock Exchange of the UK and the Republic of Ireland Ltd, ex p Else (1982) Ltd and others [1993] 2 CMLR 677
The application of Browne v Dunn is established in Australia in both civil and criminal cases, however its appliance in the criminal ones differs. There is some vagueness as to when precisely the rule is breached and the penalties that apply to a party in breach. The question that arose recently is whether Browne v Dunn applies to criminal proceedings at all. The case of MWJ v R confirmed that Browne v Dunn applied to criminal proceedings in Australia, despite some differences in judicial reasoning. The case was further followed by R v MAP which moreover elaborates certain aspects of the following rule. Gleeson j and Heydon J stated that “the requirement is accepted and applied day by day in criminal trials”. One of the principles the High court articulated was that the rule must be applied with caution, when considering the conduct of the defense, this was emphasized with reference to the cases of R v Birks and R v Manunta.
The Exclusionary Rule made its first appearance in the judicial system when it was put there by the Supreme Court thanks to Weeks v. United States. At first the Exclusionary Rule was only used in federal cases, only after fifty years of being adopted by the Supreme Court was it used in state cases as well. Before Weeks v. United States, any and all evidence that was acquired illegally or that violated the peoples constitutional rights was still used, if it was practical to the circumstance. The definition of the Exclusionary Rule is, “a rule that forbids the introduction of illegally obtained evidence in a criminal trial (The Free Dictionary, 2014).” The Fourth Amendment reads “…the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized (Law, 2008).”
Legal Studies Essay Joey Agerholm Exclusion clauses determine the liability of something that might go wrong within a contract. They are used by sellers as an attempt to avoid or limit their liability. The seller has the advantage over the buyer who must agree to the clauses to purchase the product/service. Because of the buyers disadvantage the court takes such cases, involving exclusion clauses, very seriously, and the content of the clauses are carefully interpreted. With the current Trade Practises Act and the Fair Trading Act the standard form of business contract is adequate and effective in protecting the buyer. The Trade Practise Act is the most effective legislation for the protection of the consumer. It implies to the following situations:- - “A promise by the seller that the buyer will become the owner” If a car dealer breaks a promise or part of a contract, for example that he has the right to sell a car, and the car is stolen then although the buyer will have to give the car back he/she will get her money back. - “ A promise by the seller that goods will fit the description supplied by the seller” In this case the buyer is protected if the seller makes a promise, which is a condition of the contract, describing the product, and when the buyer receives the product, it does not match the description. - “ A promise where the seller is made aware of the purpose for which the goods are required, that the goods will be reasonably fit for that purpose” This condition is implied when the buyer makes the purpose of the goods needed known to the seller, and the buyer then relies on the seller’s judgement in providing the correct product. For example it would not be reasonable if you made the seller aware that you wished to purchase something suitable for mowing the average suburban backyard and you were sold a tractor. - “A Promise that goods are of merchantable quality” According to this act a good is considered to be merchantable if they are suitable for the prospect for which other similar goods are sold, involving the description applied to them, the price and any other relevant information. This act does however does not protect the consumer if he/she has examined the product and missed any defects that should have been seen or if the seller made him/her aware of the defect prior to the purchase of the product.
The presumption can be rebutted when the party received independent advice as was the case in Zamet v Hyman [1961] 3 All E.R. 933, or when it is clear that the party have intended to act in an odd way (see for example Re Brocklehurst 's Estate [1978] Ch 14 331 where there was an intention by the dceased to devalue his own estate). However the presumption will not be rebutted when the person who benefits has acted in an underhand way, such as in Hammond v Osborn [2002] EWCA Civ 885 where a carer had acted in slightly underhand way, leading to the courts finding that the gift of the whole estate was void because of undue influence.
The exclusionary rule is one of the utmost controversial rulings in our judicial system. The exclusionary rule can be best defined as “the principle based on federal Constitutional Law that evidence illegally seized by law enforcement officers in violation of a suspect 's right to be free from unreasonable searches and seizures cannot be used against the suspect in a criminal prosecution.” (The Free Dictionary , 1981-2015) The exclusionary rule is not to be mistaken as being intertwined within the constitution for it is not a part of it, instead it is a remedy specially designed by the courts to reconcile violations against a defendant’s 4th amendment rights. Although it’s chief purpose maybe deeply rooted into the 4th amendment, but its protective
The Exclusionary rule requires that any evidence taken into custody be obtained by police using methods that violates an individual constitutional rights must be excluded from use in a criminal prosecution against that individual. This rule is judicially imposed and arose relatively recently in the development of the U.S. legal system. Under the common law, the seizure of evidence by illegal means did not affect its admission in court. Any evidence, however obtained, was admitted as long as it satisfied other evidentiary criteria for admissibility, such as relevance and trustworthiness. The exclusionary rule was developed in 1914 and applied to the case of Weeks v. United States, 232 U.S. 383, and was limited to a prohibition on the use of evidence illegally obtain by federal law enforcement officers. Not until 1949, in the caw of Wolf v. Colorado, 38 U.S. 25, 27-28, did the U.S. Supreme Court take the first step toward applying the exclusionary rule to the states by ruling that the Fourth Amendment was applicable to the states through the Due Process Clause of the Fourteenth Amendment which states: the security of one’s privacy against arbitrary intrusion by the police-which is at the core of the Fourth Amendment- is basic to a free society. It is therefore implicit in the “concept of ordered liberty” and as such enforceable against the States through the Due Process Clause.
The unfair prejudice petition has always been regarded as the easier and more flexible option for minority shareholders’ protection compared to the statutory derivative action. The restrictive leave requirements under the statutory derivative claim where the concept of prima facie, good faith and ratification have been interpreted within the confines of the origins in the case of Foss v Harbottle do not add any appeal the statutory derivative claim. Further, the approach in relation to granting indemnity costs orders which is rather limited does not in any way encourage any potential claimant to pursue a derivative action. Recent cases which allows corporate relief to be obtained via unfair prejudice petition and even the possibility if recovering costs under and unfair prejudice petition has further relegated the significance of the derivative action.
The form of intention required for the creation of an express trust was scrutinized in Byrnes v Kendle (2011) 243 CLR 253. The judgements by French CJ, Gummow and Hayne JJ and Heydon and Crennan JJ, provide insight into the current legal standpoint on the relevant form of intention.
Hird and Blair, ‘Minding your own business – Williams v Roffey revisited: Consideration reconsidered’ [1996] JBL 254
The Act allows negligence as the sole ground unlike common law which required the claimant to establish ‘fraud’ even if negligence existed. It is believed that the ‘d...
Section 7 of the CECO stipulates that the liability for death or personal injury resulting from negligence could not be excluded or restricted. For ‘other loss or damage’, the liability can be excluded only if the exclusion clause satisfies the requirement of reasonableness. And this section should remain unchanged.
in criminal law and Beckett Ltd v. Lyons [1967] 1 All ER 833 the law