DAMAGES - Assessment - Tort - Personal injury - Where appellant suffered personal injuries arising from his treatment as patient at hospital operated by respondent - Where prior to injury appellant lived in his own home with his brother where his son and dogs could stay - Where after injury appellant transferred to nursing home - Where appellant's physical condition deteriorated because of lack of therapy and exercise - Whether reasonable for damages awarded to appellant to include component for medical and nursing care and treatment in own home - Whether assessment of reasonableness confined to balancing only health benefits against cost.
DAMAGES - Assessment - Tort - Personal injury - Where appellant suffered personal injuries arising from his treatment as patient at hospital operated by respondent - Where prior to injury appellant lived in his own home with his brother where his son and dogs could stay - Where after injury appellant transferred to nursing home - Where appellant's physical condition deteriorated because of lack of therapy and exercise - Whether reasonable for damages awarded to appellant to include component for medical and nursing care and treatment in own home - Whether assessment of reasonableness confined to balancing only health benefits against cost.
WORDS AND PHRASES - "assessment of damages", "assessment of reasonableness", "care at home", "compensation", "compensatory principle", "cost of home care", "cost of nursing and medical care", "costs of future care", "extreme brain injury", "general damages", "health benefits", "home care", "home or in a home setting", "injury scale", "institution or in an institutional setting", "institutional care", "matters of amenities", "mitigation of loss", "nursing and medical expenses", "onus", "other matters", "pain, suffering and loss of amenities of life", "proof of loss", "quantum", "reasonable", "reasonableness", "reasonably incurred", "repair the consequences of the tort", "unreasonably refused".
Civil Liability Act 2003 (Qld), ss 61, 62.
Civil Liability Regulation 2014 (Qld), Sch 3, Pt 2, Sch 4.
STATUTES - Construction - Temporal operation of statute - Where in June 2020 archaeological artefact imported into Australia - Where artefact seized by inspector under Protection of Movable Cultural Heritage Act 1986 (Cth) ("Act") upon request for return of artefact from Government of Bolivia - Where artefact unlawfully exported from Bolivia before commencement of Act - Where appellant purchaser commenced action for recovery of artefact under s 37 of Act - Where Act enacted to bring Australia into conformity with obligations of State Party to UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970) prior to Australia acceding to Convention - Where s 14(1) of Act provides that "protected object of a foreign country" may be liable to forfeiture - Whether s 14(1) renders liable to forfeiture protected object of a foreign country unlawfully exported from that country before commencement of Act.
STATUTES - Construction - Temporal operation of statute - Where in June 2020 archaeological artefact imported into Australia - Where artefact seized by inspector under Protection of Movable Cultural Heritage Act 1986 (Cth) ("Act") upon request for return of artefact from Government of Bolivia - Where artefact unlawfully exported from Bolivia before commencement of Act - Where appellant purchaser commenced action for recovery of artefact under s 37 of Act - Where Act enacted to bring Australia into conformity with obligations of State Party to UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970) prior to Australia acceding to Convention - Where s 14(1) of Act provides that "protected object of a foreign country" may be liable to forfeiture - Whether s 14(1) renders liable to forfeiture protected object of a foreign country unlawfully exported from that country before commencement of Act.
WORDS AND PHRASES - "archaeological artefact", "context", "cultural property", "exportation of cultural property", "extrinsic material", "forfeiture", "has been exported", "import of cultural property", "modern approach to statutory interpretation", "movable cultural heritage", "obligations of a State Party", "ordinary language", "presumption against redundant words", "presumption against surplusage", "protected object of a foreign country", "redundant words", "statutory construction", "statutory purpose", "syntax", "temporal operation", "unlawful exportation".
Protection of Movable Cultural Heritage Act 1986 (Cth), Pts II, V, ss 3, 7, 8, 9, 10, 12, 14, 27, 28, 34, 37, 38, 41.
Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB.
Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970), Arts 1, 2, 5, 6, 7, 15.
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES - Land rights - Claimable Crown lands - Where land claimed under s 36(2) of Aboriginal Land Rights Act 1983 (NSW) ("Act") subject to lease granted by Crown - Where lessee had not undertaken purposeful activity on land - Where "claimable Crown lands" in s 36(1) of Act means lands vested in Crown that are "not lawfully used" - Whether land "lawfully used" for purpose of s 36(1)(b) of Act merely because land subject to existing lease from Crown.
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES - Land rights - Claimable Crown lands - Where land claimed under s 36(2) of Aboriginal Land Rights Act 1983 (NSW) ("Act") subject to lease granted by Crown - Where lessee had not undertaken purposeful activity on land - Where "claimable Crown lands" in s 36(1) of Act means lands vested in Crown that are "not lawfully used" - Whether land "lawfully used" for purpose of s 36(1)(b) of Act merely because land subject to existing lease from Crown.
WORDS AND PHRASES - "actual use", "claimable Crown lands", "constructive use", "Crown lands", "doctrine of concurrent leases", "estate or interest in land", "exploitation of rights to land", "land", "land claim", "land vested", "lands", "lands vested", "lawfully used or occupied", "lease", "occupation", "occupied", "physical area", "possession", "purposeful interaction", "remedial or beneficial legislation", "reversionary interest", "rights to land", "rights to the physical area", "used", "vested".
Aboriginal Land Rights Act 1983 (NSW), Pt 2, ss 4(1), 36, Sch 4, cl 8.
Conveyancing Act 1919 (NSW), ss 7(1), 117, 118, 119.
Crown Land Management Act 2016 (NSW), ss 1.5(1), 1.7(a), 1.10, 1.12, 3.3, 3.13(1).
Crown Lands Act 1989 (NSW), ss 3(1), 80(1), 87(1), Sch 7.
Crown Lands Consolidation Act 1913 (NSW), s 5(1).
Interpretation Act 1987 (NSW), ss 3(3), 5, 6, 8(c), 13, 68(3), Sch 4.
Native Title Act 1993 (Cth), ss 10, 184, 186(1)(e), 223(1), 225, 253.
Real Property Act 1900 (NSW), ss 3(1)(a), 13(2), 13D, 13J, 40(3), 42(1), 46C.
IMMIGRATION - Visas - Ministerial directions under s 499(1) of Migration Act 1958 (Cth) - Where delegate of Minister refused to grant appellant partner visa on character grounds - Where ministerial direction in force at time of refusal was Direction 65 - Where Direction 65 subsequently revoked - Where appellant applied to then Administrative Appeals Tribunal ("Tribunal") for review of delegate's decision - Where Direction 90 in force at time of Tribunal's decision - Where Tribunal applied Direction 90 and not Direction 65 - Whether Tribunal was required to comply with direction in force at time of its decision - Whether appellant had accrued right to have Tribunal determine his review in accordance with direction in force at time of delegate's decision.
IMMIGRATION - Visas - Ministerial directions under s 499(1) of Migration Act 1958 (Cth) - Where delegate of Minister refused to grant appellant partner visa on character grounds - Where ministerial direction in force at time of refusal was Direction 65 - Where Direction 65 subsequently revoked - Where appellant applied to then Administrative Appeals Tribunal ("Tribunal") for review of delegate's decision - Where Direction 90 in force at time of Tribunal's decision - Where Tribunal applied Direction 90 and not Direction 65 - Whether Tribunal was required to comply with direction in force at time of its decision - Whether appellant had accrued right to have Tribunal determine his review in accordance with direction in force at time of delegate's decision.
WORDS AND PHRASES - "accrued right", "affected Act", "character grounds", "family violence", "laws governing the exercise of powers and discretions", "legislative instrument", "merits review", "ministerial direction", "repeal or amendment", "time of the decision under review", "time of the exercise of the relevant function or power".
Acts Interpretation Act 1901 (Cth), ss 7(2), 46(1)(a).
Administrative Appeals Tribunal Act 1975 (Cth), ss 25, 43(1).
Legislation Act 2003 (Cth), s 13(1)(a).
Migration Act 1958 (Cth), ss 496, 499, 500(1), 501(1).
IMMIGRATION - Visas - Cancellation of visa - Where plaintiff held Temporary Protection (Class XD) (subclass 785) visa ("TPV") - Where plaintiff's TPV mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) ("Act") following conviction and imprisonment for offence - Where plaintiff made representations about reasons why mandatory cancellation of TPV should be revoked under s 501CA(4) of Act but Minister's delegate decided not to revoke cancellation - Where plaintiff released from immigration detention - Where plaintiff incorrectly believed cancellation of TPV revoked when plaintiff released under Bridging R (Class WR) (subclass 070) (Bridging (Removal Pending)) visa ("BVR") - Where BVR ceased pursuant to s 76AAA of Act when Republic of Nauru granted plaintiff permission to enter and remain - Where documents plaintiff gave Department of Home Affairs in support of representations included legal advice subject to legal professional privilege - Where delegate read and quoted from legal advice in delegate's reasons - Whether necessary in interests of administration of justice to grant extension of time under s 486A(2) of Act - Whether non-revocation decision void for jurisdictional error - Whether delegate did not properly confront legal consequences of non-revocation decision as required by Ministerial Direction 110 - Whether delegate misapplied para 8.5 of Ministerial Direction 110 - Whether use of legal advice by delegate without notice to plaintiff denied plaintiff procedural fairness or legally unreasonable.
IMMIGRATION - Visas - Cancellation of visa - Where plaintiff held Temporary Protection (Class XD) (subclass 785) visa ("TPV") - Where plaintiff's TPV mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) ("Act") following conviction and imprisonment for offence - Where plaintiff made representations about reasons why mandatory cancellation of TPV should be revoked under s 501CA(4) of Act but Minister's delegate decided not to revoke cancellation - Where plaintiff released from immigration detention - Where plaintiff incorrectly believed cancellation of TPV revoked when plaintiff released under Bridging R (Class WR) (subclass 070) (Bridging (Removal Pending)) visa ("BVR") - Where BVR ceased pursuant to s 76AAA of Act when Republic of Nauru granted plaintiff permission to enter and remain - Where documents plaintiff gave Department of Home Affairs in support of representations included legal advice subject to legal professional privilege - Where delegate read and quoted from legal advice in delegate's reasons - Whether necessary in interests of administration of justice to grant extension of time under s 486A(2) of Act - Whether non-revocation decision void for jurisdictional error - Whether delegate did not properly confront legal consequences of non-revocation decision as required by Ministerial Direction 110 - Whether delegate misapplied para 8.5 of Ministerial Direction 110 - Whether use of legal advice by delegate without notice to plaintiff denied plaintiff procedural fairness or legally unreasonable.
WORDS AND PHRASES - "certiorari", "constitutional writs", "expectations of the Australian community", "extension of time", "immigration detention", "irrational or unreasonable", "jurisdictional error", "legal advice", "legal consequences of decision", "legal professional privilege", "mandamus", "mandatory cancellation", "necessary in the interests of the administration of justice", "no real prospect of removal", "non-refoulement", "non-revocation", "practical injustice", "procedural fairness", "protection finding", "protection visa", "refugee", "relevant adverse material".
Judiciary Act 1903 (Cth), s 44.
Migration Act 1958 (Cth), ss 36(2)(a), 76AAA, 189, 195A, 197C(5)(a), 476(2), 476A, 486A, 499(2A), 501(3A), 501CA(4).
Migration Regulations 1994 (Cth), regs 2.08F, 2.20(18), 2.25AA(2), 2.25AB, Sch 2, cll 070.612(1), 070.612A(1).
CORPORATIONS - Appeal - Statutory demand - Where respondent issued two demands for payment for shop fit-out works for applicant's restaurant - First demand subject of deed of settlement - Applicant raised new offsetting claim when applying to set aside second demand - Applicant claimed it relied on respondent's misleading representations when entering into contract for fit-out works - Applicant claimed respondent agreed to only require payment for works after applicant was paid lease incentive by lessor - Whether applicant established a plausible contention requiring investigation as to new offsetting claim - Whether offsetting claim merely constructed in response to statutory demand - No plausible contention established by applicant's evidence - Leave to appeal refused.
CORPORATIONS - Appeal - Statutory demand - Where respondent issued two demands for payment for shop fit-out works for applicant's restaurant - First demand subject of deed of settlement - Applicant raised new offsetting claim when applying to set aside second demand - Applicant claimed it relied on respondent's misleading representations when entering into contract for fit-out works - Applicant claimed respondent agreed to only require payment for works after applicant was paid lease incentive by lessor - Whether applicant established a plausible contention requiring investigation as to new offsetting claim - Whether offsetting claim merely constructed in response to statutory demand - No plausible contention established by applicant's evidence - Leave to appeal refused.
Corporations Act 2001 (Cth) s 459G; Competition and Consumer Act 2010 (Cth) sch 2 ('Australian Consumer Law') s 18.
Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (in liq) [2015] VSCA 330, applied; Energy Equity Corp Ltd v Sinedie Pty Ltd (2001) 166 FLR 179; Sceam Construction Pty Ltd v Clyne (2021) 64 VR 404, discussed.
PRACTICE AND PROCEDURE - Application by solicitor for leave to file notice that they cease to act for applicant - Leave granted - Application by company director for leave to represent applicant - Leave granted.
Supreme Court (General Civil Procedure) Rules 2015 rr 1.17(1), 2.04(1), 20.03(1); Civil Procedure Act 2010 ss 7, 8.
Worldwide Enterprises Pty Ltd v Silberman (2010) 26 VR 595, applied.
PRACTICE AND PROCEDURE - Summary judgment - Applicant living in property provided by first respondent intended as temporary crisis accommodation - First respondent counterclaimed for possession - Associate judge gave summary judgment on counterclaim - Appeal dismissed by judge - Construction of 'temporary crisis accommodation' in s 22 of Residential Tenancies Act 1997 - Discretion under s 64 of Civil Procedure Act 2010 - Whether applicant denied procedural fairness - Whether applicant's claims in equity and under Charter of Human Rights and Responsibilities Act 2006 relevant to counterclaim for possession - Proposed grounds of appeal totally without merit - Application for leave to appeal dismissed.
PRACTICE AND PROCEDURE - Summary judgment - Applicant living in property provided by first respondent intended as temporary crisis accommodation - First respondent counterclaimed for possession - Associate judge gave summary judgment on counterclaim - Appeal dismissed by judge - Construction of 'temporary crisis accommodation' in s 22 of Residential Tenancies Act 1997 - Discretion under s 64 of Civil Procedure Act 2010 - Whether applicant denied procedural fairness - Whether applicant's claims in equity and under Charter of Human Rights and Responsibilities Act 2006 relevant to counterclaim for possession - Proposed grounds of appeal totally without merit - Application for leave to appeal dismissed.
Residential Tenancies Act 1997 ss 3, 6(2), 22; Civil Procedure Act 2010 ss 61, 63-4; Charter of Human Rights and Responsibilities Act 2006 ss 13, 17, 24, 32.
PRACTICE AND PROCEDURE - Application for extension of time within which to file application for leave to appeal - Application for leave to appeal filed more than three years out of time - Application for extension of time refused - Proposed appeal totally without merit - Application for leave to appeal dismissed.
PRACTICE AND PROCEDURE - Application for extension of time within which to file application for leave to appeal - Application for leave to appeal filed more than three years out of time - Application for extension of time refused - Proposed appeal totally without merit - Application for leave to appeal dismissed.
Personal Safety Intervention Orders Act 2010 ss 91-4, 97; Supreme Court (General Civil Procedure) Rules 2015 rr 56.02, 64.08.
Austin v Dobbs [2019] VSC 355; Austin v Dobbs [2019] VSCA 296, referred.
CRIMINAL LAW - Application for release from implied undertaking in Harman v Secretary of State for Home Department [1983] 1 AC 280 to enable use of documents for the purpose of immigration proceedings - Application for variation of orders made pursuant to s 43A of the Major Crime (Investigative Powers Act) 2004 to permit release of restricted evidence - Where producing party consents to release from implied and express confidentiality undertakings - Applicant released from Harman undertaking, and provided limited release from express undertaking - Where information restricted pursuant to the Major Crime (Investigative Powers Act) 2004 can only be considered for release in criminal proceedings and is therefore not available for consideration in the immigration proceedings of the applicant - Application for variation refused.
CRIMINAL LAW - Application for release from implied undertaking in Harman v Secretary of State for Home Department [1983] 1 AC 280 to enable use of documents for the purpose of immigration proceedings - Application for variation of orders made pursuant to s 43A of the Major Crime (Investigative Powers Act) 2004 to permit release of restricted evidence - Where producing party consents to release from implied and express confidentiality undertakings - Applicant released from Harman undertaking, and provided limited release from express undertaking - Where information restricted pursuant to the Major Crime (Investigative Powers Act) 2004 can only be considered for release in criminal proceedings and is therefore not available for consideration in the immigration proceedings of the applicant - Application for variation refused.
Criminal Procedure Act 2009, s 317; Major Crime (Investigative Powers) Act 2004, s 43A.
Madafferi v The Queen (2021) 287 A Crim R 380; Madafferi v The King [2023] VSCA 178; Madafferi v The King [2024] VSCA 12; Madafferi v The King [No 2] [2024] VSCA 14; Madafferi v The King [2025] VSCA 114; Jean Ross (a Pseudonym) v The Chief Commissioner of Police and the Chief Examiner (2014) 45 VR 220; Harman v Secretary of State for Home Department [1983] 1 AC 280; Hearne v Street [2008] HCA 36; Deputy Commissioner of Taxation v Karas [2012] VSC 143; Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURUSANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURUSANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
CRIMINAL LAW - Sentence - Application for leave to appeal - Rape - Act of penetration with sex worker absent condom - Assessment of objective gravity - Whether offence 'comfortably above' mid-level of objective seriousness - Whether sentence of 10 years and 6 months' imprisonment manifestly excessive - Leave to appeal granted.
Crimes Act 1958, ss 36, 36AA, 38.
DPP v Yeong (a pseudonym) (2022) 301 A Crim R 312; Jurj v The Queen [2016] VSCA 57, referred to.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Breach of intervention orders - Making threats to kill - Aggravated burglary - Attempting to pervert course of justice - Offending committed in context of family violence - Whether individual sentences, orders for cumulation, total effective sentence and non-parole period manifestly inadequate - Sentences imposed did not reflect objective gravity of offending and need for community protection - Appeal allowed - Respondent resentenced.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Breach of intervention orders - Making threats to kill - Aggravated burglary - Attempting to pervert course of justice - Offending committed in context of family violence - Whether individual sentences, orders for cumulation, total effective sentence and non-parole period manifestly inadequate - Sentences imposed did not reflect objective gravity of offending and need for community protection - Appeal allowed - Respondent resentenced.
Sentencing Act 1991, ss 5, 6D, 6E.
DPP v Meyers (2014) 44 VR 486; Hogarth v The Queen (2012) 37 VR 658; Skeates (a pseudonym) v The King [2023] VSCA 226, discussed.
CRIMINAL LAW - Sentence - Crown appeal - Multiple sexual offences against children - Persistent sexual abuse of a child under 16; sexual penetration with a child aged 16 or 17 under care, supervision or authority; grooming for sexual conduct with a child under 16 (2 charges); sexual assault of a child under 16; sexual assault of a child aged 16 or 17 under care, supervision or authority - Course of conduct charges - TES of 9 years and 9 months, with NPP of 6 years - Manifest inadequacy - Whether individual sentences, orders for cumulation and TES manifestly inadequate - Substantial delay - Respondent remanded and subject to lockdowns and restrictions during pandemic - Lenient sentences and orders for cumulation leading to lenient TES - Sentences and orders not wholly outside permissible range of sentences open to sentencing judge - Appeal dismissed.
CRIMINAL LAW - Sentence - Crown appeal - Multiple sexual offences against children - Persistent sexual abuse of a child under 16; sexual penetration with a child aged 16 or 17 under care, supervision or authority; grooming for sexual conduct with a child under 16 (2 charges); sexual assault of a child under 16; sexual assault of a child aged 16 or 17 under care, supervision or authority - Course of conduct charges - TES of 9 years and 9 months, with NPP of 6 years - Manifest inadequacy - Whether individual sentences, orders for cumulation and TES manifestly inadequate - Substantial delay - Respondent remanded and subject to lockdowns and restrictions during pandemic - Lenient sentences and orders for cumulation leading to lenient TES - Sentences and orders not wholly outside permissible range of sentences open to sentencing judge - Appeal dismissed.
Sentencing Act 1991, ss 5(2F), 5(2G), 5A, 5B, 6D, 6E and 11A.
CRIMINAL LAW - Appeal - Sentence - Murder - Applicant shot deceased in back whilst deceased seated in car - Sentence indication of not more than 25 years' imprisonment - Applicant sentenced to 24 years' imprisonment with 17 years' non-parole period - Whether judge erred in application of Bugmy principles - Whether head sentence and non-parole period manifestly excessive - Application for extension of time in which to seek leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Murder - Applicant shot deceased in back whilst deceased seated in car - Sentence indication of not more than 25 years' imprisonment - Applicant sentenced to 24 years' imprisonment with 17 years' non-parole period - Whether judge erred in application of Bugmy principles - Whether head sentence and non-parole period manifestly excessive - Application for extension of time in which to seek leave to appeal refused.
Bugmy v The Queen (2013) 249 CLR 571; DPP v Herrmann (2021) 290 A Crim R 110; Hurst v The King [2023] VSCA 286; R v Verdins (2007) 16 VR 269; Sabbatucci v The Queen [2021] VSCA 340, referred to.
CRIMINAL LAW - Appeal - Conviction - Dangerous driving causing serious injury - Whether unfair plea and pressure to plead guilty - Whether full opportunity to plead case - No intention to drive dangerously - Grounds not reasonably arguable - Application for appeal bail refused - Application for extension of time to seek leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Dangerous driving causing serious injury - Whether unfair plea and pressure to plead guilty - Whether full opportunity to plead case - No intention to drive dangerously - Grounds not reasonably arguable - Application for appeal bail refused - Application for extension of time to seek leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Dangerous driving causing serious injury - Sentence 3 years' imprisonment with non-parole period 2 years - Guilty plea - Maximum penalty 5 years' imprisonment - Family hardship - Extended period of extremely risky driving - Severe and life changing injuries - Prior convictions for speeding and dangerous driving - Whether sentence manifestly excessive - Application for extension of time to seek leave to appeal refused.
Carabott v The King [2025] VSCA 118; Grimm v The King [2025] VSCA 11; Madafferi v The Queen [2021] VSCA 332; Mongan v The King [2024] VSCA 126; R v Nguyen [2006] VSCA 184, applied.
CRIMINAL LAW - Interlocutory appeal - Prosecutor comments raising issue of incriminating conduct without notice - Whether prosecutor's comments were capable of being cured by judicial directions - Defence application to discharge jury refused - Application for certification granted - Whether judge erred in failing to discharge jury - Whether judge erred in granting certification - Leave to appeal against interlocutory decision refused.
CRIMINAL LAW - Interlocutory appeal - Prosecutor comments raising issue of incriminating conduct without notice - Whether prosecutor's comments were capable of being cured by judicial directions - Defence application to discharge jury refused - Application for certification granted - Whether judge erred in failing to discharge jury - Whether judge erred in granting certification - Leave to appeal against interlocutory decision refused.
Criminal Procedure Act 2009, ss 297, 295(3)(b) and (c).
Baker v The King [2025] VSCA 139; Carson v The Queen [2019] VSCA 317; Crofts v The Queen (1996) 186 CLR 427; Director of Public Prosecutions v Pace (a pseudonym) (2015) 45 VR 276; Director of Public Prosecutions v Paulino [2017] VSCA 38; Healy v The King [2024] VSCA 81; Hutton v The King [2024] VSCA 282; Males v The Queen (2021) 292 A Crim R 61; Moore v The King (2024) 419 ALR 169; Pompei v The King [2023] VSCA 71; Pope (a pseudonym) v The Queen [2017] VSCA 324; R v Boland [1974] VR 849; R v Vaitos (1981) 4 A Crim 238; R v Walker [2025] NSWCCA 62; Webb v The Queen (1994) 181 CLR 41, applied.
CRIMINAL LAW - Appeal - Sentence - Aiding and abetting the importation of commercial quantity of border-controlled drug, MDMA - Sentence 14 years' imprisonment with 8 years and 9 months non-parole - Crown concession of error - Appeal allowed - Resentenced to 11 years' imprisonment with 7 years non-parole.
CRIMINAL LAW - Appeal - Sentence - Aiding and abetting the importation of commercial quantity of border-controlled drug, MDMA - Sentence 14 years' imprisonment with 8 years and 9 months non-parole - Crown concession of error - Appeal allowed - Resentenced to 11 years' imprisonment with 7 years non-parole.
CRIMINAL LAW - Appeal - Sentence - Two charges of dangerous driving causing serious injury - Total effective sentence 3 years 2 months - Non-parole period 2 years 1 month - Applicant serving sentences for additional offending - Deprived background - Whether sentence manifestly excessive - Whether principle of totality infringed - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Two charges of dangerous driving causing serious injury - Total effective sentence 3 years 2 months - Non-parole period 2 years 1 month - Applicant serving sentences for additional offending - Deprived background - Whether sentence manifestly excessive - Whether principle of totality infringed - Leave to appeal refused.
Bugmy v R (2013) 249 CLR 571; Mill v The Queen (1988) 166 CLR 59; Morgan v The Queen [2013] VSCA 33.
CRIMINAL LAW - Application for leave to appeal - Application for extension of time - Fresh evidence - Attempting to traffick in a drug of dependence not less than a large commercial quantity - Importing border controlled substances in quantities not less than a commercial quantity - Total effective sentence 13 years' imprisonment - Non-parole period 6 years 10 months - Where applicant residing in solitary confinement for duration of sentence - Whether fresh evidence demonstrates true significance of facts in existence at the time of the sentence - Evidence that the risks taken into account by a judge have materialised is not fresh evidence which can lead to the re-opening of the sentencing discretion - Application for extension of time refused - Leave to appeal refused.
CRIMINAL LAW - Application for leave to appeal - Application for extension of time - Fresh evidence - Attempting to traffick in a drug of dependence not less than a large commercial quantity - Importing border controlled substances in quantities not less than a commercial quantity - Total effective sentence 13 years' imprisonment - Non-parole period 6 years 10 months - Where applicant residing in solitary confinement for duration of sentence - Whether fresh evidence demonstrates true significance of facts in existence at the time of the sentence - Evidence that the risks taken into account by a judge have materialised is not fresh evidence which can lead to the re-opening of the sentencing discretion - Application for extension of time refused - Leave to appeal refused.
Drugs, Poisons and Controlled Substances Act 1981, s 71(1); Criminal Code (Cth) s 307.1(1); Criminal Procedure Act 2009.
R v Nguyen [2006] VSCA 184; Packard (a pseudonym) v The Queen (2022) 300 A Crim R 55; Ale v The King [2025] VSCA 92, applied.
CRIMINAL LAW - Appeal - Conviction - Application for leave to appeal against conviction - Facts underlying proposed ground of appeal in dispute - Need to resolve factual disputes underlying proposed ground of appeal - Application for reference determination pursuant to s 319A of the Criminal Procedure Act 2009 - Referral of factual issues and matters to Trial Division for reference determination - Appropriate terms of referral.
CRIMINAL LAW - Appeal - Conviction - Application for leave to appeal against conviction - Facts underlying proposed ground of appeal in dispute - Need to resolve factual disputes underlying proposed ground of appeal - Application for reference determination pursuant to s 319A of the Criminal Procedure Act 2009 - Referral of factual issues and matters to Trial Division for reference determination - Appropriate terms of referral.
Criminal Procedure Act 2009, s 319A.
CRIMINAL LAW - Appeal - Sentence - Conduct endangering persons - Causing injury intentionally - Racist motivation - First victim of African appearance - Applicant shouted racist abuse at first victim - Endangered first victim by driving vehicle towards him - Second victim of Indian appearance - Applicant used vehicle to run over second victim - Judge found racist motivation underlying offending against both victims - Applicant submitting in respect of second victim finding not open - Whether finding open - Close temporal proximity between offences - Open to view offences as part of single larger transaction - No error in judge's finding - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Conduct endangering persons - Causing injury intentionally - Racist motivation - First victim of African appearance - Applicant shouted racist abuse at first victim - Endangered first victim by driving vehicle towards him - Second victim of Indian appearance - Applicant used vehicle to run over second victim - Judge found racist motivation underlying offending against both victims - Applicant submitting in respect of second victim finding not open - Whether finding open - Close temporal proximity between offences - Open to view offences as part of single larger transaction - No error in judge's finding - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Remorse - Letter of applicant expressing sorrow and claiming racism produced by drug-induced psychosis - Letter of friends of applicant attesting to applicant's good character - Judge not dealing in terms with remorse - Whether judge erred by not having regard to remorse - Psychiatrist's report showing applicant downplayed responsibility for offending - Judge referred to friends' letter - Judge addressed remorse - Mere failure to refer to sentencing consideration not establishing failure to take into account - No error in judge's approach - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Manifest excess - Guilty plea - Evidence of rehabilitation in custody - Applicant having spent about two years in custody before plea - No discount available for pre-sentence detention - Applicant serving terms of imprisonment for two unrelated sentences - Whether total effective sentence 6 years 3 months' imprisonment and non-parole period 4 years 9 months for conduct endangering persons and causing injury intentionally manifestly excessive - Very serious examples of offending - Limited mitigating factors - Moderate orders for cumulation - Judge had regard to totality - No error in judge's approach - Leave to appeal refused.
Sentencing Act 1991, s 5(2)(daaa); Criminal Procedure Act 2009, s 209.
CRIMINAL LAW - Appeal - Sentence - Traffick drug of dependence in commercial quantity - Possess drug of dependence - Deal with property suspected of being proceeds of crime - Fail to comply with direction to assist - Applicant incorrectly sentenced as serious drug offender on charge 1 - Judge erred in regarding protection of community as principal sentencing purpose in respect of charge 1 - Judge erred in imposing sentence on charge 2 on factual basis that quantity was in excess of large commercial quantity - Sentencing exercise vitiated - Appeal allowed - Objective gravity of offending mid-range - Verdins not enlivened - Moral culpability for offending high despite cognitive impairments and difficult childhood - Applicant resentenced to total effective sentence of 7 years and 3 months' imprisonment.
CRIMINAL LAW - Appeal - Sentence - Traffick drug of dependence in commercial quantity - Possess drug of dependence - Deal with property suspected of being proceeds of crime - Fail to comply with direction to assist - Applicant incorrectly sentenced as serious drug offender on charge 1 - Judge erred in regarding protection of community as principal sentencing purpose in respect of charge 1 - Judge erred in imposing sentence on charge 2 on factual basis that quantity was in excess of large commercial quantity - Sentencing exercise vitiated - Appeal allowed - Objective gravity of offending mid-range - Verdins not enlivened - Moral culpability for offending high despite cognitive impairments and difficult childhood - Applicant resentenced to total effective sentence of 7 years and 3 months' imprisonment.
Sentencing Act 1991, ss 6B, 6D(a), 6E.
R v Verdins (2007) 16 VR 269; DPP v Richardson [2023] VSCA 241; DPP v Fatho [2019] VSCA 311; Danaf v The Queen [2020] VSCA 226; Gayed v The Queen [2021] VSCA 141, considered.
GROUP PROCEEDINGS - Application for a Group Costs Order - Costs to be calculated as a percentage of the amount of any award or settlement recovered - Whether proposed percentage appropriate or necessary - Supreme Court Act 1986 (Vic), s 33ZDA.
GROUP PROCEEDINGS - Application for a Group Costs Order - Costs to be calculated as a percentage of the amount of any award or settlement recovered - Whether proposed percentage appropriate or necessary - Supreme Court Act 1986 (Vic), s 33ZDA.
PRACTICE AND PROCEDURE - Proceeding commenced by originating motion - Judgment in default of appearance obtained without notice to defendants - Application to set aside default judgment - Default judgment set aside as it is irregular - Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 5.03(1), 45.03, 45.05, 46.08.
PRACTICE AND PROCEDURE - Proceeding commenced by originating motion - Judgment in default of appearance obtained without notice to defendants - Application to set aside default judgment - Default judgment set aside as it is irregular - Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 5.03(1), 45.03, 45.05, 46.08.
PRACTICE AND PROCEDURE - Group proceeding - Application for substitution of first lead plaintiff - Whether substitution of plaintiff is appropriate in the circumstances - Whether substitution will cause any real prejudice to the defendants - Supreme Court Act 1986, ss 33T, 33ZF, 33Z(1)(g).
PRACTICE AND PROCEDURE - Group proceeding - Application for substitution of first lead plaintiff - Whether substitution of plaintiff is appropriate in the circumstances - Whether substitution will cause any real prejudice to the defendants - Supreme Court Act 1986, ss 33T, 33ZF, 33Z(1)(g).
PRACTICE AND PROCEDURE - Confidentiality orders sought - Matters confidential and privileged - Supreme Court Act 1986, s 33ZF, Supreme Court (General Civil Procedure) Rules 2015, r 28.05(4).
PRACTICE AND PROCEDURE - Application for final relief and damages assessment - Judgment sought by plaintiff to recover commission pursuant to property consultancy agreement - Entry of final orders - Damages awarded with statutory interest - Interlocutory judgment for damages to be assessed precludes alternative judgment for debt - Liability established of first defendant as undisclosed principal bound to perform contract - Second defendant executed agreement as agent for first defendant - Application of undisclosed principal doctrine - Alternative misleading and deceptive conduct claim against second defendant not made out - Form of judgment when pleading alleges inconsistent counterfactuals - Damages against second defendant assessed at nil - Declaratory relief when default judgment obtained - Appropriateness of declaratory relief - Supreme Court Rules (General Civil Procedure) Rules 2015, rr 24.02; 21.03; 21.04; 59.01.
PRACTICE AND PROCEDURE - Application for final relief and damages assessment - Judgment sought by plaintiff to recover commission pursuant to property consultancy agreement - Entry of final orders - Damages awarded with statutory interest - Interlocutory judgment for damages to be assessed precludes alternative judgment for debt - Liability established of first defendant as undisclosed principal bound to perform contract - Second defendant executed agreement as agent for first defendant - Application of undisclosed principal doctrine - Alternative misleading and deceptive conduct claim against second defendant not made out - Form of judgment when pleading alleges inconsistent counterfactuals - Damages against second defendant assessed at nil - Declaratory relief when default judgment obtained - Appropriateness of declaratory relief - Supreme Court Rules (General Civil Procedure) Rules 2015, rr 24.02; 21.03; 21.04; 59.01.
COSTS - Standard basis - Indemnity costs refused - Defendants' failure to accept Calderbank offer not unreasonable in the circumstances - Prior orders made for final costs payment - Additional order for costs incurred post-interlocutory judgment - No further departure from the usual order as to costs warranted.
PRACTICE AND PROCEDURE - Application for leave to amend statement of claim and file further evidence - Where application filed three months prior to trial - Where proposed amendments introduce new claims - Where leave opposed due to delay and likelihood of adjournment of trial - Where delay in making the application is explained, but not excused, by new solicitors and counsel casting 'fresh eyes' over the proceeding - Where plaintiff failed to comply with earlier orders - Where, if leave is granted, the trial will be adjourned - Court available to hear the proceeding in February 2026 - Leave granted to amend pleading and file new evidence - Carroll v Goff [2021] VSCA 267; Cargill Australia Limited v Viterra Malt Pty Ltd (No 18) [2018] VSC 772; Billington v Sussan Corporation Australia [2020] VSCA 12, applied.
PRACTICE AND PROCEDURE - Application for leave to amend statement of claim and file further evidence - Where application filed three months prior to trial - Where proposed amendments introduce new claims - Where leave opposed due to delay and likelihood of adjournment of trial - Where delay in making the application is explained, but not excused, by new solicitors and counsel casting 'fresh eyes' over the proceeding - Where plaintiff failed to comply with earlier orders - Where, if leave is granted, the trial will be adjourned - Court available to hear the proceeding in February 2026 - Leave granted to amend pleading and file new evidence - Carroll v Goff [2021] VSCA 267; Cargill Australia Limited v Viterra Malt Pty Ltd (No 18) [2018] VSC 772; Billington v Sussan Corporation Australia [2020] VSCA 12, applied.
PRACTICE AND PROCEDURE - Appeal against order made by Associate Justice - Whether order should have been made for a further extension of time for the determination of the plaintiff's winding up application - Whether further extension order was unreasonable, unjust and failed to take into account or to accord proper weight to material considerations - Whether there has been an unreasonable prolongation of the proceeding - Whether there is prejudice to the company as being a defendant in unresolved winding up proceedings - Irregularity of the proceeding due to deregistered plaintiff - Whether substitution application an abuse of process - Unfilled proposal to reinstate or substitute - Delay in bringing application and lack of prospects - Supreme Court (General Civil Procedure) Rules 2015 r 77.06 - Corporations Act 2001 (Cth) ss 459R, 465B - House v The King (1936) 55 CLR 499 - Appeal dismissed.
PRACTICE AND PROCEDURE - Appeal against order made by Associate Justice - Whether order should have been made for a further extension of time for the determination of the plaintiff's winding up application - Whether further extension order was unreasonable, unjust and failed to take into account or to accord proper weight to material considerations - Whether there has been an unreasonable prolongation of the proceeding - Whether there is prejudice to the company as being a defendant in unresolved winding up proceedings - Irregularity of the proceeding due to deregistered plaintiff - Whether substitution application an abuse of process - Unfilled proposal to reinstate or substitute - Delay in bringing application and lack of prospects - Supreme Court (General Civil Procedure) Rules 2015 r 77.06 - Corporations Act 2001 (Cth) ss 459R, 465B - House v The King (1936) 55 CLR 499 - Appeal dismissed.
INTERLOCUTORY INJUNCTION - Freezing order application - Supreme Court (General Civil Procedure) Rules 2015 (Vic) ord 35A - Good arguable case - Sufficient prospect of favourable judgment - Sufficient prospect that the foreign judgment will be registered in Australia - Foreign Judgments Act 1991 (Cth) ss 5, 6 - Danger of unsatisfied prospective judgment - Balance of convenience - Freezing order granted.
INTERLOCUTORY INJUNCTION - Freezing order application - Supreme Court (General Civil Procedure) Rules 2015 (Vic) ord 35A - Good arguable case - Sufficient prospect of favourable judgment - Sufficient prospect that the foreign judgment will be registered in Australia - Foreign Judgments Act 1991 (Cth) ss 5, 6 - Danger of unsatisfied prospective judgment - Balance of convenience - Freezing order granted.
APPEAL - Appeal from decision of an Associate Justice - Appeal pursuant to r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) conducted by way of rehearing whether legal, factual or discretionary error on the part of the Associate Justice - Appeal from decision giving summary judgment in favour of the plaintiff - Appeal from summary judgment for debt and order giving possession of property - No errors of the kind alleged established - Appeal dismissed.
APPEAL - Appeal from decision of an Associate Justice - Appeal pursuant to r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) conducted by way of rehearing whether legal, factual or discretionary error on the part of the Associate Justice - Appeal from decision giving summary judgment in favour of the plaintiff - Appeal from summary judgment for debt and order giving possession of property - No errors of the kind alleged established - Appeal dismissed.
PROCEDURAL FAIRNESS - Inherent jurisdiction of the Court to set aside orders where an affected party fails to appear at a hearing - Defendant's failure to appear at hearing regarding the form of consequential orders on a date subsequent to the handing down of a ruling granting summary judgment in favour of the plaintiff - Rule 46.08 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) regarding the Court's power to set aside or vary an order which affects a person where the application for the order was made on notice to that person but the person did not attend the hearing of the application - Inadequate explanation for non-attendance - No different result would follow in any event - Orders not set aside.
PRACTICE AND PROCEDURE - General principles for summary judgment - General principles regarding appeals from a decision of an Associate Justice - Form of judgment and orders - Total amount of debt not stated on the face of the terms of the orders made - Order regarding debt amount and interest set aside and revised so that total amount of debt is stated or capable of calculation on the face of the order - Rule 46.08 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) regarding the Court's power to set aside or vary an order which affects a person where the application for the order was made on notice to that person but the person did not attend the hearing of the application - Self-represented litigants - General principles when dealing with self-represented litigants.
JUDGMENTS - Date when judgment takes effect - Rules 59.02 and 77.06.9 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Judgment provided method for calculation of judgment sum but did not specify the amount - Court's power to vary judgment or orders on appeal even though point not raised on appeal - Parties agreed to judgment being varied to specify for clarity the judgment amount.
CORPORATIONS - Personal Property Securities Act 2009 (Cth) - Security interests - Purchase money security interests - Lease of livestock and machinery - Failure to register within prescribed time - Where failure to register due to inadvertence - Application to fix later time for registration - Whether discretion should be exercised - Company in liquidation - Crystallised rights of unsecured creditors - Substantial delay in registration - Prejudice to creditors - Corporations Act 2001 (Cth) s 588FM.
CORPORATIONS - Personal Property Securities Act 2009 (Cth) - Security interests - Purchase money security interests - Lease of livestock and machinery - Failure to register within prescribed time - Where failure to register due to inadvertence - Application to fix later time for registration - Whether discretion should be exercised - Company in liquidation - Crystallised rights of unsecured creditors - Substantial delay in registration - Prejudice to creditors - Corporations Act 2001 (Cth) s 588FM.
CORPORATIONS - Application to set aside creditor's statutory demand - Whether affidavits can be relied upon - Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452 - Sceam Construction Pty Ltd v Clyne (2021) 64 VR 404 - GoConnect Ltd v Sono Strategic International Ltd (in liq) [2016] VSCA 315 - Whether there is a genuine dispute - Corporations Act 2001 (Cth), s 459H - Demand varied - Whether the company has an offsetting claim - Corporations Act 2001 (Cth), s 459H(1)(b) - Britten Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601 - TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd (2008) 66 ACSR 67 - No offsetting claim.
CORPORATIONS - Application to set aside creditor's statutory demand - Whether affidavits can be relied upon - Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452 - Sceam Construction Pty Ltd v Clyne (2021) 64 VR 404 - GoConnect Ltd v Sono Strategic International Ltd (in liq) [2016] VSCA 315 - Whether there is a genuine dispute - Corporations Act 2001 (Cth), s 459H - Demand varied - Whether the company has an offsetting claim - Corporations Act 2001 (Cth), s 459H(1)(b) - Britten Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601 - TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd (2008) 66 ACSR 67 - No offsetting claim.
CORPORATIONS - Application to set aside creditor's statutory demand - Whether the company has an offsetting claim - Corporations Act 2001 (Cth), s 459H(1)(b) - Britten Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601, applied - TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd (2008) 66 ACSR 67, applied - No offsetting claim.
CORPORATIONS - Application to set aside creditor's statutory demand - Whether the company has an offsetting claim - Corporations Act 2001 (Cth), s 459H(1)(b) - Britten Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601, applied - TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd (2008) 66 ACSR 67, applied - No offsetting claim.
CORPORATIONS - Winding up - Creditor's statutory demand - Application to set aside creditor's statutory demand - Whether there is some other reason - Corporations Act 2001 (Cth), s 459J(1)(b) - Arcade Bridge Embroidery Co Pty Ltd v The Deputy Commissioner of Taxation (2005) 157 ACTR 22; Kisimul Holdings Pty Ltd v Clear Position Pty Ltd [2014] NSWCA 262, applied - Some other reason not found.
PRACTICE AND PROCEDURE - Application to rely on evidence out of time - Re Tarrawarra Yarra Valley Holding Pty Ltd [2025] VSC 293, applied - Application refused.
CONTRACT - Construction and interpretation of lease - Force majeure provisions - Whether legislative instruments enacted in response to COVID-19 constituted a Force Majeure Event - Whether lessees ability to operate the business materially and adversely affected - Whether lessee determined to suspend operation of the business - Whether compliance with notice provisions in the lease - Lessee not entitled to abate the rent - Calculation of abatement not in accordance with the lease - Whether lessee entitled to terminate lease - Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37; World Touring Melbourne Ltd v Australian Grand Prix Corporation [2024] VSC 521, referred to - International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151; [2008] HCA 3, applied.
CONTRACT - Construction and interpretation of lease - Force majeure provisions - Whether legislative instruments enacted in response to COVID-19 constituted a Force Majeure Event - Whether lessees ability to operate the business materially and adversely affected - Whether lessee determined to suspend operation of the business - Whether compliance with notice provisions in the lease - Lessee not entitled to abate the rent - Calculation of abatement not in accordance with the lease - Whether lessee entitled to terminate lease - Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37; World Touring Melbourne Ltd v Australian Grand Prix Corporation [2024] VSC 521, referred to - International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151; [2008] HCA 3, applied.
DAMAGES - Whether lessor suffered loss due to lessees wrongful termination of the Lease - Causation - Property sold with vacant possession - Decision to sell independent intervening act - Counterfactual - Future sale at specific dates with lease in place not proved - Expert evidence of loss - Adopted yields not satisfactorily proved - Chand v Commonwealth Bank of Australia [2015] NSWCA 181; Johnson v Perez (1988) 166 CLR 351; [1988] HCA 64, 597, applied.
INJUNCTION - Interlocutory Injunction - Application to restrain appointment of receivers - No serious question to be tried - Balance of convenience against injunctive relief being granted given undertaking to make a limited appointment.
INJUNCTION - Interlocutory Injunction - Application to restrain appointment of receivers - No serious question to be tried - Balance of convenience against injunctive relief being granted given undertaking to make a limited appointment.
PRACTICE AND PROCEDURE - Accidental slip or omission - Costs order - Decision under appeal - Amendment does not cause prejudice - Amendment to orders - Scope of costs order narrowed to the appeal - Costs of and incidental to appeal - Slip rule under r 36.07 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
PRACTICE AND PROCEDURE - Accidental slip or omission - Costs order - Decision under appeal - Amendment does not cause prejudice - Amendment to orders - Scope of costs order narrowed to the appeal - Costs of and incidental to appeal - Slip rule under r 36.07 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
ADMINISTRATION AND PROBATE - Removal of executor and trustee - Unanswered evidence of dishonesty by solicitor appointed as executor of estates of clients - Named beneficiaries were relatives residing overseas - Administration and Probate Act 1958 s 34 - Trustee Act 1958 s 48.
ADMINISTRATION AND PROBATE - Removal of executor and trustee - Unanswered evidence of dishonesty by solicitor appointed as executor of estates of clients - Named beneficiaries were relatives residing overseas - Administration and Probate Act 1958 s 34 - Trustee Act 1958 s 48.
TORTS - Conspiracy - Combination - Combination within a corporate group - Combination not established - O'Brien v Dawson (1942) 66 CLR 18 - LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2001] NSWSC 886 - Copperweld Corp v Independence Tube Corp 104 S.Ct. 2731 (1984) - Digicel (St Lucia) Ltd v Cable & Wireless Plc [2010] EWHC 774 (Ch).
TORTS - Conspiracy - Combination - Combination within a corporate group - Combination not established - O'Brien v Dawson (1942) 66 CLR 18 - LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2001] NSWSC 886 - Copperweld Corp v Independence Tube Corp 104 S.Ct. 2731 (1984) - Digicel (St Lucia) Ltd v Cable & Wireless Plc [2010] EWHC 774 (Ch).
TORTS - Conspiracy - Intention - Subjective intention - Direction of intention toward all members of class - Rules of attribution of knowledge to a company - Subjective knowledge established in respect of one of three state-based conspiracies - Australian Competition and Consumer Commission v Colgate- Palmolive Pty Ltd (No 4) (2017) 353 ALR 460 - Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537 - Dresna Pty Ltd v Misu Nominees Pty Ltd (2003) ATPR - Lonrho Ltd v Shell Petroleum Co Ltd No 2 [1981] Com LR 6 - Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580 - McWilliam v Penthouse Publications Ltd [2001] NSWCA 237 - OBG v Allan [2008] 1 AC 1 - ED & F Man Capital Markets Limited v Come Harvest Holdings Ltd [2022] EWHC 229 - British American Tobacco Australia Services Limited v Slater & Gordon Ltd (No 3) [2009] VSC 619 - Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 - Stanley v & Ors v Layne Christensen Co [2006] WASCA 56 - Hamilton & Whitehead (1988) 166 CLR 121 - Tesco Supermarkets Ltd v Nattrass [1972] AC 153 - Commonwealth Bank of Australia v Kojic [2016] FCAFC 186 - McKernan v Fraser [1931] 46 CLR 343 - Williams v Hursey (1959) 103 CLR 30 - Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 - Anderson v Canaccord Genuity Financial Ltd [2023] NSWCA 294.
TORTS - Conspiracy - Unlawful means - Nature of unlawful means - Whether remedy prescribed by statute is exclusive - Whether unlawful means must be independently actionable - Whether unlawful means must infringe a private legal right of the plaintiff - Whether acts caused loss or were merely the occasion of such loss - Williams v Hursey (1959) 103 CLR 30 - Revenue and Customs Commissioners v Total Network [2008] 1 AC 1174 - Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 - Fatimi v Bryant (2004) 59 NSWLR 678 - Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 - Council of the City of Gold Coast v Pioneer concrete (QLD) Pty Ltd (1994) 121 ALR 405 - McKernan v Fraser (1931) 46 CLR 343 - Dresna Pty Ltd v Misu Nominees Pty Ltd (2004) ATPR 42-013 - Coal Miners' Industrial Union of Workers (WA) (Collie v True) (1959) 33 ALJR 224.
EQUITY - Breach of confidence - Whether defendants' use of proxy to obtain plaintiff's list of drivers constituted a breach of confidence - Whether information in driver list identifiable with specificity - Whether driver list had necessary quality of confidence - Whether data received by defendants through proxy was in circumstances importing an obligation of confidence - Whether there was a misuse of information without plaintiff's consent - Breach of confidence established - Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 - Del Casale v Artedomus (Aust) Pty Ltd (2007) 73 IPR 326, referred to - Robb v Green [1895] 2 QB 1 - IF Asia Pacific Pty Ltd v Galbally and Others [2003] VSC 192 - Saltman Engineering Co Ltd and Others v Campbell Engineering Co Ltd [1963] 3 All ER 413 - Mars UK Ltd v Teknowledge Ltd (1999) 46 IPR 248 - Cray Valley Ltd v Deltech Europe Ltd [2003] EWHC 728 (Ch) - Spycatcher (Attorney- General v Guardian Newspapers (No 2) [1990] 1 AC 109 - Smith Kline & French Laboratories (Australia) Ltd and Others v Secretary, Department of Community Services and Health (1990) 22 FCR 73, (1990) 95 ALR 87 - Optus Networks Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281 - Coco v AN Clark (Engineers) Ltd [1968] RPC 41.
EQUITY - Breach of confidence - Whether declaratory relief should be granted pursuant to s 36 of the Supreme Court Act 1986 (Vic) - Whether the granting of declaratory relief would produce any foreseeable consequences for the parties - CE Heath Casualty & General Insurance Ltd & AMP General Insurance Ltd v Pyramid Building Society (in liq) [1997] 2 VR 256, referred to - Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591, referred to - Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, followed - Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070, followed - No declaratory relief granted as it would not produce any foreseeable consequences for the parties.
PROCEDURE - Costs - Plaintiff unsuccessful in family provision claim - Plaintiff seeks defendants' costs from estate - Defendants seek plaintiff pay costs on standard basis and on indemnity basis following offer of compromise - Where plaintiff not in need and relationship with deceased of limited duration - Usual order as to costs - Plaintiff's case not borderline - Plaintiff unreasonably failed to accept offer of compromise - Plaintiff not impecunious as a result of costs order - Plaintiff to pay defendants' costs on standard basis up to offer of compromise and indemnity costs thereafter - Administration of Probate Act 1958 Part IV - Supreme Court (General Civil Procedure) Rules 2015 rr 26.02, 26.08(4), ord 63 - Supreme Court Act 1986 ss 24, 97(60), 97(7) - Justice Legislation Amendment (Succession and Surrogacy) Act 2014 s 6(7) - Lennan v Chao [2025] VSC 220 - Re Schlink; Keane v Corns (No 2) [2020] VSC 417 - Innes-Irons & Anor v Forrest (Costs) [2017] VSC 10 - Webb v Ryan (No 2) [2012] VSC 431 - McCusker v Rutter (2010) 7 ASTLR 137 - Haertsch v Whiteway (No 2) [2020] NSWCA 287.
PROCEDURE - Costs - Plaintiff unsuccessful in family provision claim - Plaintiff seeks defendants' costs from estate - Defendants seek plaintiff pay costs on standard basis and on indemnity basis following offer of compromise - Where plaintiff not in need and relationship with deceased of limited duration - Usual order as to costs - Plaintiff's case not borderline - Plaintiff unreasonably failed to accept offer of compromise - Plaintiff not impecunious as a result of costs order - Plaintiff to pay defendants' costs on standard basis up to offer of compromise and indemnity costs thereafter - Administration of Probate Act 1958 Part IV - Supreme Court (General Civil Procedure) Rules 2015 rr 26.02, 26.08(4), ord 63 - Supreme Court Act 1986 ss 24, 97(60), 97(7) - Justice Legislation Amendment (Succession and Surrogacy) Act 2014 s 6(7) - Lennan v Chao [2025] VSC 220 - Re Schlink; Keane v Corns (No 2) [2020] VSC 417 - Innes-Irons & Anor v Forrest (Costs) [2017] VSC 10 - Webb v Ryan (No 2) [2012] VSC 431 - McCusker v Rutter (2010) 7 ASTLR 137 - Haertsch v Whiteway (No 2) [2020] NSWCA 287.
FOREIGN JUDGMENTS - Plaintiffs obtained judgments from Chinese Courts against defendant after service by public announcement - Plaintiffs not aware of, or personally served with process in, Chinese proceeding - Plaintiffs knew defendant's email and WeChat addresses - Notice of proceedings not communicated to defendant by email or WeChat - Yin v Wu (2023) 73 VR 21 considered and applied - Defendant prima facie denied natural justice - Whether defendant served in accordance with Chinese Law - Whether defendant served in accordance with contractual provision for service - Whether principles of comity require recognition of Chinese Judgments - Held: Principles of comity give way to fundamental principles of justice, which includes natural justice - Applied Yin v Wu, Court should look unfavourably on failure to notify or serve defendant by available electronic means - Defendant was denied natural justice - Registration of foreign judgments refused.
FOREIGN JUDGMENTS - Plaintiffs obtained judgments from Chinese Courts against defendant after service by public announcement - Plaintiffs not aware of, or personally served with process in, Chinese proceeding - Plaintiffs knew defendant's email and WeChat addresses - Notice of proceedings not communicated to defendant by email or WeChat - Yin v Wu (2023) 73 VR 21 considered and applied - Defendant prima facie denied natural justice - Whether defendant served in accordance with Chinese Law - Whether defendant served in accordance with contractual provision for service - Whether principles of comity require recognition of Chinese Judgments - Held: Principles of comity give way to fundamental principles of justice, which includes natural justice - Applied Yin v Wu, Court should look unfavourably on failure to notify or serve defendant by available electronic means - Defendant was denied natural justice - Registration of foreign judgments refused.
LIMITATION OF ACTIONS - Historical sexual abuse - Settlement agreement - Application to set aside settlement agreement under s 27QD of Limitation of Actions Act 1958 (Vic) - Whether 'just and reasonable' to set aside agreement - Where Ellis defence materially influenced plaintiff's decision to enter into settlement agreement, the deed to be set aside - Limitation of Actions Act 1958 (Vic), ss 27QA(2), 27QD, 27QE - Trustees of the Roman Catholic Church of the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565; DZY v Trustees of the Christian Brothers (2025) 99 ALJR 806; Roman Catholic Trusts Corporation for the Diocese of Sale v WCB (2020) 62 VR 234.
LIMITATION OF ACTIONS - Historical sexual abuse - Settlement agreement - Application to set aside settlement agreement under s 27QD of Limitation of Actions Act 1958 (Vic) - Whether 'just and reasonable' to set aside agreement - Where Ellis defence materially influenced plaintiff's decision to enter into settlement agreement, the deed to be set aside - Limitation of Actions Act 1958 (Vic), ss 27QA(2), 27QD, 27QE - Trustees of the Roman Catholic Church of the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565; DZY v Trustees of the Christian Brothers (2025) 99 ALJR 806; Roman Catholic Trusts Corporation for the Diocese of Sale v WCB (2020) 62 VR 234.
LIMITATION OF ACTIONS - Limitation of Actions Act 1958 (Vic), ss 27QD, 27QE - Institutional abuse - Prior settlement deed - Application to set aside prior deed - Whether just and reasonable to set aside prior deed - Whether the Ellis defence impacted plaintiff's decision to enter into the prior deed - Whether the expiry of the limitation period impacted plaintiff's decision to enter into prior deed - Whether the plaintiff had an erroneous belief concerning the application of the Ellis defence and limitation period - Whether the Court can consider the plaintiff's erroneous beliefs in deciding whether it is just and reasonable - Unequal bargaining power - Legal advice - Prospects of success and settlement amount - Interests of the parties - Just and reasonable to set aside the prior deed - DZY (a pseudonym) v Trustees of the Christian Brothers (2025) 99 ALJR 806.
LIMITATION OF ACTIONS - Limitation of Actions Act 1958 (Vic), ss 27QD, 27QE - Institutional abuse - Prior settlement deed - Application to set aside prior deed - Whether just and reasonable to set aside prior deed - Whether the Ellis defence impacted plaintiff's decision to enter into the prior deed - Whether the expiry of the limitation period impacted plaintiff's decision to enter into prior deed - Whether the plaintiff had an erroneous belief concerning the application of the Ellis defence and limitation period - Whether the Court can consider the plaintiff's erroneous beliefs in deciding whether it is just and reasonable - Unequal bargaining power - Legal advice - Prospects of success and settlement amount - Interests of the parties - Just and reasonable to set aside the prior deed - DZY (a pseudonym) v Trustees of the Christian Brothers (2025) 99 ALJR 806.
FAMILY PROVISION AND MAINTENANCE - Application by adult daughter for provision from father's large estate - Deceased's will makes no provision for daughter - Whether moral duty owed by deceased - Mother received most of large matrimonial asset pool upon separation from deceased - Daughter is beneficiary of substantial estate under mother's will - Deceased declared that no provision made for daughter because of assets provided to mother and daughter benefits under mother's will - Deceased had dysfunctional relationship with daughter - Daughter not dependent on deceased at time of death - Daughter is member of limited class of beneficiaries of discretionary family trust with substantial income - Mother is trustee and unaware of obligations towards beneficiaries - Daughter has not received any distributions from trusts - Whether a wise and just testator would have made provision in the circumstances - Deceased had moral duty to provide for daughter's proper maintenance and support - Will failed to make adequate provision - Further provision made to plaintiff to secure independent housing - Administration and Probate Act 1958, Part IV - Family Law Act 1979, s 90C - Owies & Owies v JJE Nominees Pty Ltd [2022] VSCA 143 - Lennan v Chao [2025] VSC 220 - McFarlane v McFarlane [2025] VSCA 163 - Vigolo v Bostin (2005) 221 CLR 191 - Collicoat v McMillan [1999] 3 VR 803 - Walsh v Walsh [2013] NSWSC 1065 - Re Christu [2021] VSC 162 - Seng Hpa v Walker [2017] VSC 320 - Hedman v Frazer [2013] NSWSC 1915 - Joss v Joss [2020] VSC 424.
FAMILY PROVISION AND MAINTENANCE - Application by adult daughter for provision from father's large estate - Deceased's will makes no provision for daughter - Whether moral duty owed by deceased - Mother received most of large matrimonial asset pool upon separation from deceased - Daughter is beneficiary of substantial estate under mother's will - Deceased declared that no provision made for daughter because of assets provided to mother and daughter benefits under mother's will - Deceased had dysfunctional relationship with daughter - Daughter not dependent on deceased at time of death - Daughter is member of limited class of beneficiaries of discretionary family trust with substantial income - Mother is trustee and unaware of obligations towards beneficiaries - Daughter has not received any distributions from trusts - Whether a wise and just testator would have made provision in the circumstances - Deceased had moral duty to provide for daughter's proper maintenance and support - Will failed to make adequate provision - Further provision made to plaintiff to secure independent housing - Administration and Probate Act 1958, Part IV - Family Law Act 1979, s 90C - Owies & Owies v JJE Nominees Pty Ltd [2022] VSCA 143 - Lennan v Chao [2025] VSC 220 - McFarlane v McFarlane [2025] VSCA 163 - Vigolo v Bostin (2005) 221 CLR 191 - Collicoat v McMillan [1999] 3 VR 803 - Walsh v Walsh [2013] NSWSC 1065 - Re Christu [2021] VSC 162 - Seng Hpa v Walker [2017] VSC 320 - Hedman v Frazer [2013] NSWSC 1915 - Joss v Joss [2020] VSC 424.
INJUNCTIONS - Application for interlocutory injunctions - Springboard injunction - Confidential information injunctions - Injunctions to enforce employment restraints, including post-employment restraints - Alleged breaches of equitable obligation of confidence, fiduciary duty, duty of fidelity and employment restraints - Where plaintiff's former employees have established a competing business, including during employment with the plaintiff, and are also alleged to have misused confidential information and threaten to misuse information - Whether serious questions to be tried - Whether damages are an adequate remedy - Whether balance of convenience supports the injunctive relief sought - Delay - Prejudice - Injunction granted to restrain use of confidential information - Relief otherwise refused - Liberty Financial Pty Ltd v Scott (No 4) (2005) 11 VR 629 - Liberty Financial Pty Ltd v Jugovic [2021] FCA 607 - Just Group Ltd v Peck (2016) 344 ALR 162.
INJUNCTIONS - Application for interlocutory injunctions - Springboard injunction - Confidential information injunctions - Injunctions to enforce employment restraints, including post-employment restraints - Alleged breaches of equitable obligation of confidence, fiduciary duty, duty of fidelity and employment restraints - Where plaintiff's former employees have established a competing business, including during employment with the plaintiff, and are also alleged to have misused confidential information and threaten to misuse information - Whether serious questions to be tried - Whether damages are an adequate remedy - Whether balance of convenience supports the injunctive relief sought - Delay - Prejudice - Injunction granted to restrain use of confidential information - Relief otherwise refused - Liberty Financial Pty Ltd v Scott (No 4) (2005) 11 VR 629 - Liberty Financial Pty Ltd v Jugovic [2021] FCA 607 - Just Group Ltd v Peck (2016) 344 ALR 162.
ADMINISTRATIVE LAW - Application for provision of statement of reasons for decision under s 8 of the Administrative Law Act 1978 (Vic) - Whether decision made as defined under s 2 of Administrative Law Act 1978 (Vic) - Whether decision made by tribunal as defined under s 2 of Administrative Law Act 1978 (Vic) - Whether request for statement of reasons made within requisite period - Held, decision was not an antecedent administrative decision under the statutory scheme of the Financial Management Act 1994 (Vic) - Plaintiff's rights not relevantly affected by decision - Application dismissed.
ADMINISTRATIVE LAW - Application for provision of statement of reasons for decision under s 8 of the Administrative Law Act 1978 (Vic) - Whether decision made as defined under s 2 of Administrative Law Act 1978 (Vic) - Whether decision made by tribunal as defined under s 2 of Administrative Law Act 1978 (Vic) - Whether request for statement of reasons made within requisite period - Held, decision was not an antecedent administrative decision under the statutory scheme of the Financial Management Act 1994 (Vic) - Plaintiff's rights not relevantly affected by decision - Application dismissed.
ADMINISTRATIVE LAW - Judicial Review - Strategic Planning - Planning and Environment Act 1987 (Vic) ('P&E Act') Part 3AAB - Distinctive areas and landscapes declaration for Bellarine Peninsula - Minister's decision to finalise statement of planning policy - Whether decision affected by irrationality or unreasonableness - 'Evident and intelligible justification' and 'genuine consideration' - Whether Minister genuinely engaged with recommendation of advisory committee - Whether Minister genuine considered the community consultation as obligated - Whether error in the Minister's decision to approve statement of planning policy by reason of a pre-election commitment - Apprehended bias - Consideration of apprehension of bias where decision made by elected official - Decision made not legally unreasonable or irrational - No bias - Minister entitled to take into account policy commitment.
ADMINISTRATIVE LAW - Judicial Review - Strategic Planning - Planning and Environment Act 1987 (Vic) ('P&E Act') Part 3AAB - Distinctive areas and landscapes declaration for Bellarine Peninsula - Minister's decision to finalise statement of planning policy - Whether decision affected by irrationality or unreasonableness - 'Evident and intelligible justification' and 'genuine consideration' - Whether Minister genuinely engaged with recommendation of advisory committee - Whether Minister genuine considered the community consultation as obligated - Whether error in the Minister's decision to approve statement of planning policy by reason of a pre-election commitment - Apprehended bias - Consideration of apprehension of bias where decision made by elected official - Decision made not legally unreasonable or irrational - No bias - Minister entitled to take into account policy commitment.
PLANNING LAW - Role of an advisory committee to which advice had been sought - Statutory interpretation - Exercise of discretion under s 46AV of the P&E Act.
Zeally Investments Pty Ltd v Minister for Planning [2023] VSC 755, Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, Haneef v Minister for Immigration and Citizenship (2007) 161 FCR 40, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, Immigration and Border Protection v SZVFW (2018) 264 CLR 541, Plaintiff S183/2021 v Minister for Home Affairs (2022) 96 ALJR 464, Zaburoni v Minister for Immigration and Border Protection (2017) 256 FCR 197, Minister for Families and Children v Arthur (2016) 51 VR 597, Jones v Dunkel (1959) 101 CLR 298, referred to; Stambe v Minister for Health (2019) 270 FCR 173, distinguished.
ADMINISTRATIVE LAW - Judicial review - Magistrates' Court decision not to set aside and instead to vary a proceeding suppression order - Plaintiffs claiming certiorari to quash suppression order - Suppression order made in circumstances where a retrial had not yet been ordered - On its face scope of order was broader than scope of empowering provision - Whether proceeding could be determined on basis that order be read down - Parties to be heard on whether suppression order should be quashed as being broader than scope of empowering provision - Open Courts Act 2013 ss 13, 15, 17, 18, 26.
ADMINISTRATIVE LAW - Judicial review - Magistrates' Court decision not to set aside and instead to vary a proceeding suppression order - Plaintiffs claiming certiorari to quash suppression order - Suppression order made in circumstances where a retrial had not yet been ordered - On its face scope of order was broader than scope of empowering provision - Whether proceeding could be determined on basis that order be read down - Parties to be heard on whether suppression order should be quashed as being broader than scope of empowering provision - Open Courts Act 2013 ss 13, 15, 17, 18, 26.
PRACTICE AND PROCEDURE - Suppression order - Open Courts Act 2013 ss 13, 15, 17, 18, 26.
PROFESSIONAL LIABILITY - Institutional liability - Allegations of sexual abuse - Plaintiff settled claim against third defendant - Plaintiff later applied for redress under National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) - Plaintiff alleges consequently precluded from seeking leave under Wrongs Act 1958 (Vic) to bring, and bringing, further claim against third defendant - Plaintiff alleges applied as a result of negligence of second defendant lawyer - Second defendant alleges plaintiff not so precluded - Preliminary questions - Whether plaintiff precluded by National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) from seeking leave under Wrongs Act 1958 (Vic) to bring, and bringing, further claim against third defendant - Whether necessary to prove so precluded on balance of probabilities in claim for damages for loss of a chance - Validity of offer and acceptance of redress - Whether failure to specify 'nil' monetary component rendered offer not in accordance with legislative requirements - Whether accepting one component of redress but not another meant offer of redress was not accepted - Whether second defendant mounting impermissible collateral attack on validity of offer of redress - Need to prove loss of chance on balance of probabilities - Offer of redress validly made and accepted - Third defendant released and discharged from civil liability for alleged abuse - No impermissible collateral attack - Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568 - Talacko v Talacko (2021) 272 CLR 478 - Administrative Decisions (Judicial Review) Act 1977 (Cth) sch 1(zg) - National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) ss 16, 29, 30, 31, 39 42, 43 - Limitation of Actions Act 1958 (Vic) ss 27QA, 27QB, 27QD - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 47.04.
PROFESSIONAL LIABILITY - Institutional liability - Allegations of sexual abuse - Plaintiff settled claim against third defendant - Plaintiff later applied for redress under National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) - Plaintiff alleges consequently precluded from seeking leave under Wrongs Act 1958 (Vic) to bring, and bringing, further claim against third defendant - Plaintiff alleges applied as a result of negligence of second defendant lawyer - Second defendant alleges plaintiff not so precluded - Preliminary questions - Whether plaintiff precluded by National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) from seeking leave under Wrongs Act 1958 (Vic) to bring, and bringing, further claim against third defendant - Whether necessary to prove so precluded on balance of probabilities in claim for damages for loss of a chance - Validity of offer and acceptance of redress - Whether failure to specify 'nil' monetary component rendered offer not in accordance with legislative requirements - Whether accepting one component of redress but not another meant offer of redress was not accepted - Whether second defendant mounting impermissible collateral attack on validity of offer of redress - Need to prove loss of chance on balance of probabilities - Offer of redress validly made and accepted - Third defendant released and discharged from civil liability for alleged abuse - No impermissible collateral attack - Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568 - Talacko v Talacko (2021) 272 CLR 478 - Administrative Decisions (Judicial Review) Act 1977 (Cth) sch 1(zg) - National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) ss 16, 29, 30, 31, 39 42, 43 - Limitation of Actions Act 1958 (Vic) ss 27QA, 27QB, 27QD - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 47.04.
COSTS - Application for declarations and injunctions for breach of restrictive covenant on lot in business park - Counterclaim for modification of restrictive covenant - Principles on costs in applications for restrictive covenants - Exercise of costs discretion in proceeding involving multiple issues - What constitutes success for the purposes of usual rule that costs follow the event - Supreme Court Act 1986, s 24 - Re Withers [1970] VR 319.
COSTS - Application for declarations and injunctions for breach of restrictive covenant on lot in business park - Counterclaim for modification of restrictive covenant - Principles on costs in applications for restrictive covenants - Exercise of costs discretion in proceeding involving multiple issues - What constitutes success for the purposes of usual rule that costs follow the event - Supreme Court Act 1986, s 24 - Re Withers [1970] VR 319.
WILLS AND ESTATES - Application by plaintiff for a grant of probate - Caveat filed by defendant to oppose grant - Plaintiff's application to strike out caveat on the basis that there is no prima facie case - No prima facie case for objection demonstrated - Caveat struck out.
WILLS AND ESTATES - Application by plaintiff for a grant of probate - Caveat filed by defendant to oppose grant - Plaintiff's application to strike out caveat on the basis that there is no prima facie case - No prima facie case for objection demonstrated - Caveat struck out.
WILLS AND ESTATES - Rectification - Wills Act 1997 (Vic), s 31(1) - Whether the will carries out intentions of the testator - Whether a 'clerical error' - Whether the will does not give effect to the testator's instructions - Meaning of 'clerical error' - Re Estate of Prevost [2004] VSC 537 - Marley v Rawlings [2014] UKSC 2 - Bell v Georgiou [2002] EWHC 1080 (Ch) - Ochea v Percival and McMahon [2022] QSC 236 - Lewis v Lewis (2021) 105 NSWLR 451.
WILLS AND ESTATES - Rectification - Wills Act 1997 (Vic), s 31(1) - Whether the will carries out intentions of the testator - Whether a 'clerical error' - Whether the will does not give effect to the testator's instructions - Meaning of 'clerical error' - Re Estate of Prevost [2004] VSC 537 - Marley v Rawlings [2014] UKSC 2 - Bell v Georgiou [2002] EWHC 1080 (Ch) - Ochea v Percival and McMahon [2022] QSC 236 - Lewis v Lewis (2021) 105 NSWLR 451.
CIVIL PROCEDURE - Transport Accident Compensation scheme - Claim brought under s 104 of the Transport Accident Act 1986 (Vic) for indemnification for amounts paid - Application for further discovery of documents in related common law damages proceeding - Indemnity proceeding pursued years after the finalisation of the common law proceeding - Operation of s 126B of the Transport Accident Act 1986 (Vic) - Documents produced or served or information acquired under or in accordance with the Act - Implied undertaking to the Court from Hearne v Street and Harman v Secretary of State for the Home Department - Rule 29.08(2) Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Whether the claimant is on notice of the application - Privacy and confidentiality of medical records - Application partially successful.
CIVIL PROCEDURE - Transport Accident Compensation scheme - Claim brought under s 104 of the Transport Accident Act 1986 (Vic) for indemnification for amounts paid - Application for further discovery of documents in related common law damages proceeding - Indemnity proceeding pursued years after the finalisation of the common law proceeding - Operation of s 126B of the Transport Accident Act 1986 (Vic) - Documents produced or served or information acquired under or in accordance with the Act - Implied undertaking to the Court from Hearne v Street and Harman v Secretary of State for the Home Department - Rule 29.08(2) Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Whether the claimant is on notice of the application - Privacy and confidentiality of medical records - Application partially successful.
CRIMINAL LAW - Bail application - Applicant charged with two charges of intentionally damaging property by fire - Applicant prima facie entitled to bail - Whether unacceptable risk of endangering the safety and welfare of others if granted bail - Whether unacceptable risk applicant will fail to answer bail - Applicant Aboriginal person - Intellectual disability - Significant mental health issues - Bail Act 1977 (Vic) ss 1B, 3AAA, 3A, 4, and 4E, considered.
CRIMINAL LAW - Bail application - Applicant charged with two charges of intentionally damaging property by fire - Applicant prima facie entitled to bail - Whether unacceptable risk of endangering the safety and welfare of others if granted bail - Whether unacceptable risk applicant will fail to answer bail - Applicant Aboriginal person - Intellectual disability - Significant mental health issues - Bail Act 1977 (Vic) ss 1B, 3AAA, 3A, 4, and 4E, considered.
CRIMINAL LAW - Bail - Applicant charged with voluminous number of offences - Multiple charges of bail contraventions - Determination in relation to an Aboriginal person - Whether exceptional circumstances - Whether unacceptable risk - Bail Act 1977 (Vic), s 3A - Re Terei [2024] VSC 294.
CRIMINAL LAW - Bail - Applicant charged with voluminous number of offences - Multiple charges of bail contraventions - Determination in relation to an Aboriginal person - Whether exceptional circumstances - Whether unacceptable risk - Bail Act 1977 (Vic), s 3A - Re Terei [2024] VSC 294.
CRIMINAL LAW - Bail - Applicant charged with trafficking in drug of dependence and other charges - Applicant accused of a Schedule 2 offence while subject to a summons to answer to a charge of another Schedule 2 offence - Requirement to show exceptional circumstances - Whether exceptional circumstances made out - Whether applicant an unacceptable risk - Bail granted - Bail Act 1977, ss 1B, 3AAA, 4AA, 4A, 4D and 4E.
CRIMINAL LAW - Bail - Applicant charged with trafficking in drug of dependence and other charges - Applicant accused of a Schedule 2 offence while subject to a summons to answer to a charge of another Schedule 2 offence - Requirement to show exceptional circumstances - Whether exceptional circumstances made out - Whether applicant an unacceptable risk - Bail granted - Bail Act 1977, ss 1B, 3AAA, 4AA, 4A, 4D and 4E.
CRIMINAL LAW - Place of trial - Pre-trial ruling - Accused charged with murder and attempted murder - Criminal Procedure Act 2009 ss 11, 160, 169, 192, 199 - Crimes Act 1958 ss 9, 359 - Magistrates' Court Act 1989 s 3 - Commonwealth of Australia Constitution Act 1900 s 80 - DPP v Towle (Ruling No 1) [2007] VSC 551 - R v Giddings [1916] VLR 359 - R v Patterson, Hartley and Carrighan (1867) 4 WW & A'B (L) 43 - R v Iaria and Panozzo (2004) 9 VR 425 - R v Wilkie (2005) 64 NSWLR 125 - Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 - Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 - SZTAL v Minister for Immigration and Border Protection (2017) 26 CLR 362 - DPP v Leys (2012) 44 VR 1 - Hynes v Bux (Supreme Court of Victoria, Nathan J, 13 November 1996).
CRIMINAL LAW - Place of trial - Pre-trial ruling - Accused charged with murder and attempted murder - Criminal Procedure Act 2009 ss 11, 160, 169, 192, 199 - Crimes Act 1958 ss 9, 359 - Magistrates' Court Act 1989 s 3 - Commonwealth of Australia Constitution Act 1900 s 80 - DPP v Towle (Ruling No 1) [2007] VSC 551 - R v Giddings [1916] VLR 359 - R v Patterson, Hartley and Carrighan (1867) 4 WW & A'B (L) 43 - R v Iaria and Panozzo (2004) 9 VR 425 - R v Wilkie (2005) 64 NSWLR 125 - Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 - Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 - SZTAL v Minister for Immigration and Border Protection (2017) 26 CLR 362 - DPP v Leys (2012) 44 VR 1 - Hynes v Bux (Supreme Court of Victoria, Nathan J, 13 November 1996).
CRIMINAL LAW - Application for bail - Where applicant alleged to have murdered son with schizoaffective disorder and threatened family members - Whether exceptional circumstances test satisfied - Where applicant has no criminal history or past failure to comply with bail conditions - Where alleged offending occurred in unusual circumstances and unlikely to be repeated - Where surety is offered - Where there are triable issues - Where period likely spent on remand substantial but not uncommon - Where applicant has accommodation available - Whether unacceptable risk the applicant would interfere with a witness or obstruct cause of justice - Where primary witnesses' concerns of interference lack substantive detail - Where imposition of bail conditions will mitigate risk - Bail granted - Re CT [2018] VSC 559 - Re Politis [2019] VSC 780 - Re Pham [2024] VSC 143 - R v Cox [2003] VSC 245 - Re Foxwell [2013] VSC 716 - Bail Act 1977 (Vic), ss 4A(1A), 4E.
CRIMINAL LAW - Application for bail - Where applicant alleged to have murdered son with schizoaffective disorder and threatened family members - Whether exceptional circumstances test satisfied - Where applicant has no criminal history or past failure to comply with bail conditions - Where alleged offending occurred in unusual circumstances and unlikely to be repeated - Where surety is offered - Where there are triable issues - Where period likely spent on remand substantial but not uncommon - Where applicant has accommodation available - Whether unacceptable risk the applicant would interfere with a witness or obstruct cause of justice - Where primary witnesses' concerns of interference lack substantive detail - Where imposition of bail conditions will mitigate risk - Bail granted - Re CT [2018] VSC 559 - Re Politis [2019] VSC 780 - Re Pham [2024] VSC 143 - R v Cox [2003] VSC 245 - Re Foxwell [2013] VSC 716 - Bail Act 1977 (Vic), ss 4A(1A), 4E.
CRIMINAL LAW - Sentence - Manslaughter - In days before death, deceased suffered significant facial and head injuries by falling off pushbike, falling into car and assault by unknown person/s - On day of offence, accused went to deceased's home to check on his welfare - Both men drank heavily all afternoon and into evening, and were sozzled - After deceased left room, without warning, person accused believed to be intruder (not deceased) attacked accused on couch, and scuffle ensued - After trading blows with "intruder", accused told him to stop fighting - As "intruder" then came towards him, accused threw two punches at head, causing him to fall to floor - "Intruder" unresponsive thereafter - Accused went next door and told neighbour, "You better come ? someone's dead" - In truth, "intruder" was deceased - On Arunta calls, accused told ex-wife and daughter that deceased "just lost it"; "I fought back, and ? went overboard, obviously"; "I was telling him to stop"; "I had no choice but to fight back"; "If I hadn't ? fought back, I would have been the victim on the floor" - Offence constituted by spontaneous drunken acts of excessive self-defence with fists in response to unexpected violence by deceased - Moral culpability reduced accordingly - Objective gravity of offence at lower level for manslaughter - Plea of guilty following sentence indication (of seven years' imprisonment with non-parole period of four years) - Plea of guilty despite viable defences concerning self-defence and causation - Genuine remorse - Limited and irrelevant criminal history at 47 - Strong family support - Solid work history since leaving school at fifteen - Low risk of recidivism - Very good prospects of rehabilitation - Major depressive disorder makes imprisonment more burdensome - Risk of deterioration of mental health in prison - Importance of general deterrence, denunciation, just punishment and rehabilitation - Specific deterrence and community protection of only minor moment - Parsimony - Notwithstanding sentence indication, necessary and appropriate to impose lesser sentence of six years' imprisonment with non-parole period of three years - But for plea of guilty, sentence of nine years' imprisonment with non-parole period of six years - Criminal Procedure Act 2009 (Vic), ss 198B & 207-209; Crimes Act 1958 (Vic), ss 5 & 322K; Sentencing Act 1991 (Vic), ss 5, 6AAA, & 18.
CRIMINAL LAW - Sentence - Manslaughter - In days before death, deceased suffered significant facial and head injuries by falling off pushbike, falling into car and assault by unknown person/s - On day of offence, accused went to deceased's home to check on his welfare - Both men drank heavily all afternoon and into evening, and were sozzled - After deceased left room, without warning, person accused believed to be intruder (not deceased) attacked accused on couch, and scuffle ensued - After trading blows with "intruder", accused told him to stop fighting - As "intruder" then came towards him, accused threw two punches at head, causing him to fall to floor - "Intruder" unresponsive thereafter - Accused went next door and told neighbour, "You better come ? someone's dead" - In truth, "intruder" was deceased - On Arunta calls, accused told ex-wife and daughter that deceased "just lost it"; "I fought back, and ? went overboard, obviously"; "I was telling him to stop"; "I had no choice but to fight back"; "If I hadn't ? fought back, I would have been the victim on the floor" - Offence constituted by spontaneous drunken acts of excessive self-defence with fists in response to unexpected violence by deceased - Moral culpability reduced accordingly - Objective gravity of offence at lower level for manslaughter - Plea of guilty following sentence indication (of seven years' imprisonment with non-parole period of four years) - Plea of guilty despite viable defences concerning self-defence and causation - Genuine remorse - Limited and irrelevant criminal history at 47 - Strong family support - Solid work history since leaving school at fifteen - Low risk of recidivism - Very good prospects of rehabilitation - Major depressive disorder makes imprisonment more burdensome - Risk of deterioration of mental health in prison - Importance of general deterrence, denunciation, just punishment and rehabilitation - Specific deterrence and community protection of only minor moment - Parsimony - Notwithstanding sentence indication, necessary and appropriate to impose lesser sentence of six years' imprisonment with non-parole period of three years - But for plea of guilty, sentence of nine years' imprisonment with non-parole period of six years - Criminal Procedure Act 2009 (Vic), ss 198B & 207-209; Crimes Act 1958 (Vic), ss 5 & 322K; Sentencing Act 1991 (Vic), ss 5, 6AAA, & 18.
CRIMINAL LAW - Murder - Affray - D1, D2 & D3 convicted by jury - Deceased operating as a standover man and pursuing a debt from D1 - Deceased assaulted D1 in days prior to murder and was looking for D1 on night in question - Complicity - Agreement between D1, D2 and D3 to shoot and kill deceased - Deceased lured to D1's premises and shot with single barrel shotgun - Identity of shooter not known - Standard sentence offence - Substantial delay not attributable to any accused - Parity - D4 pleaded guilty to manslaughter and affray on basis he was unaware shotgun would be used - D1 sentenced to a total effective sentence of 27 years' imprisonment with a non-parole period of 21 years' imprisonment - D2 & D3 each sentenced to a total effective sentence of 26 years' imprisonment with a non-parole period of 20 years' imprisonment - D4 sentenced to a total effective sentence of nine years and six months' imprisonment with a non-parole period of six years and six months' imprisonment.
CRIMINAL LAW - Murder - Affray - D1, D2 & D3 convicted by jury - Deceased operating as a standover man and pursuing a debt from D1 - Deceased assaulted D1 in days prior to murder and was looking for D1 on night in question - Complicity - Agreement between D1, D2 and D3 to shoot and kill deceased - Deceased lured to D1's premises and shot with single barrel shotgun - Identity of shooter not known - Standard sentence offence - Substantial delay not attributable to any accused - Parity - D4 pleaded guilty to manslaughter and affray on basis he was unaware shotgun would be used - D1 sentenced to a total effective sentence of 27 years' imprisonment with a non-parole period of 21 years' imprisonment - D2 & D3 each sentenced to a total effective sentence of 26 years' imprisonment with a non-parole period of 20 years' imprisonment - D4 sentenced to a total effective sentence of nine years and six months' imprisonment with a non-parole period of six years and six months' imprisonment.
CRIMINAL LAW - Sentence - Manslaughter - Serious example of manslaughter - Criminal history, including matters of violence and driving offences - Guarded prospects of rehabilitation - Limited evidence of remorse - Body not located for a period of two years - Guilty plea - General deterrence, denunciation, and just punishment highly relevant - Sentenced to nine and a half years' imprisonment with a non-parole period of six and a half years - Mandatory drivers licence cancellation and disqualification from driving for two years - Sentencing Act 1991 (Vic).
CRIMINAL LAW - Sentence - Manslaughter - Serious example of manslaughter - Criminal history, including matters of violence and driving offences - Guarded prospects of rehabilitation - Limited evidence of remorse - Body not located for a period of two years - Guilty plea - General deterrence, denunciation, and just punishment highly relevant - Sentenced to nine and a half years' imprisonment with a non-parole period of six and a half years - Mandatory drivers licence cancellation and disqualification from driving for two years - Sentencing Act 1991 (Vic).
CRIMINAL LAW - Sentence - Appeal against sentencing decision of the President of the Children's Court - Sentence set aside - Rehearing - Charge of intentionally cause serious injury in circumstances of gross violence - Guilty plea - Accused 17 years old at time of offending - Mental health - Autism Spectrum Disorder - Attention Deficit Hyperactivity Disorder - Severe disadvantage - Reduced moral culpability - Positive prospects of rehabilitation - Verdins - Bugmy - Sentenced to a youth justice supervision order for a period of 16 months - Children, Youth and Families Act 2005 ss 360-362, 387(1), 414, 424, 426(1), 430I.
CRIMINAL LAW - Sentence - Appeal against sentencing decision of the President of the Children's Court - Sentence set aside - Rehearing - Charge of intentionally cause serious injury in circumstances of gross violence - Guilty plea - Accused 17 years old at time of offending - Mental health - Autism Spectrum Disorder - Attention Deficit Hyperactivity Disorder - Severe disadvantage - Reduced moral culpability - Positive prospects of rehabilitation - Verdins - Bugmy - Sentenced to a youth justice supervision order for a period of 16 months - Children, Youth and Families Act 2005 ss 360-362, 387(1), 414, 424, 426(1), 430I.
DOMESTIC BUILDING CONTRACT - Warranties implied into contract by s 8 Domestic Building Contracts Act 1995 - Subsequent owner entitled to benefit of warranties by s 9 - Defective building work - Scope of builder's obligation under contract and Act.
DOMESTIC BUILDING CONTRACT - Warranties implied into contract by s 8 Domestic Building Contracts Act 1995 - Subsequent owner entitled to benefit of warranties by s 9 - Defective building work - Scope of builder's obligation under contract and Act.
CIVIL PROCEDURE - Application to vacate trial - Proximity to trial - Principles of Aon - Consideration given to nature and timing of application - Prejudice and delay - Interests of justice.
CIVIL PROCEDURE - Application to vacate trial - Proximity to trial - Principles of Aon - Consideration given to nature and timing of application - Prejudice and delay - Interests of justice.
CONTEMPT OF COURT - Penalty - Orders that judgment debtor produce financial documents - 6 sets of orders for production made over course of almost 2 years - Selective production of documents - Non-production of statements for 2 bank accounts - Judgment debtor continued to transact on those accounts - Approximately $1.2 million transacted through accounts over period of non-production - Account statements only produced after contempt proceedings commenced - Judgment debtor found guilty of 11 contempts of court - Conduct contumacious - Appropriate penalty.
CONTEMPT OF COURT - Penalty - Orders that judgment debtor produce financial documents - 6 sets of orders for production made over course of almost 2 years - Selective production of documents - Non-production of statements for 2 bank accounts - Judgment debtor continued to transact on those accounts - Approximately $1.2 million transacted through accounts over period of non-production - Account statements only produced after contempt proceedings commenced - Judgment debtor found guilty of 11 contempts of court - Conduct contumacious - Appropriate penalty.
CONTRACTS AND CONSUMER LAW - STATUTORY CONSTRUCTION - Exclusive Sale Authority - Compliance with ss 49A(1)(c)(i), 49A(2) and 49B of the Estate Agents Act 1980 (Vic) - Requirement of s 49A(1)(i)(c) for commission and outgoings to be contained in the engagement or appointment.
CONTRACTS AND CONSUMER LAW - STATUTORY CONSTRUCTION - Exclusive Sale Authority - Compliance with ss 49A(1)(c)(i), 49A(2) and 49B of the Estate Agents Act 1980 (Vic) - Requirement of s 49A(1)(i)(c) for commission and outgoings to be contained in the engagement or appointment.
MISREPRESENTATION - Whether certain representations were made - Whether representations were false and untrue.
NEGLIGENCE - Whether Cellmore owed Mr Funston a duty of care - Duty of care co-existent with a contractual duty - Whether Cellmore breached any duty of care - No loss or damage suffered.
FIDUCIARY DUTY - Whether Cellmore owed Mr Funston a fiduciary duty - Whether Cellmore breached any fiduciary duty - No loss or damage suffered.
CONSUMER LAW - Misleading or deceptive conduct - Unconscionability - Whether the charging clause was an unfair term - Undue harassment of coercion - Contraventions under the Australian Consumer Law not made out - No loss or damage suffered.
WORKERS' COMPENSATION - Mental injury claim by WorkSafe inspector following claimed exposure to trauma - Significant contributing factor - 'Management action' - Reduction of weekly earnings where employment terminated on grounds of misconduct - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss 39(1), 40(1), 40(3), 185(1), sch 1, cl 25.
WORKERS' COMPENSATION - Mental injury claim by WorkSafe inspector following claimed exposure to trauma - Significant contributing factor - 'Management action' - Reduction of weekly earnings where employment terminated on grounds of misconduct - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss 39(1), 40(1), 40(3), 185(1), sch 1, cl 25.
INDUSTRIAL LAW - Fair Work Act 2009 (Cth) s 548 small claim - Application of time in lieu provisions in the Professional Employees Award 2020 - Alleged agreement to provide time in lieu for additional hours on a temporary assignment - Employment contract clause permitting reasonable additional hours - Whether additional hours were required to be worked - Relevant considerations for contractual term requiring reasonable additional hours.
INDUSTRIAL LAW - Fair Work Act 2009 (Cth) s 548 small claim - Application of time in lieu provisions in the Professional Employees Award 2020 - Alleged agreement to provide time in lieu for additional hours on a temporary assignment - Employment contract clause permitting reasonable additional hours - Whether additional hours were required to be worked - Relevant considerations for contractual term requiring reasonable additional hours.