COMPETITION AND CONSUMER LAW - Competition and Consumer Act 2010 (Cth) - Restrictive trade practices - Prohibition of contracts, arrangements, or understandings affecting the supply or acquisition of goods - Where head contractor succumbed to threat from union and terminated subcontract without any verbal (or written) assent being communicated to union - Whether sufficient to give rise to "understanding" in context of ss 45E(3) and 45EA of Competition and Consumer Act that head contractor succumbed to union's threat of industrial action by doing what was demanded under sanction of that threat.
COMPETITION AND CONSUMER LAW - Competition and Consumer Act 2010 (Cth) - Restrictive trade practices - Prohibition of contracts, arrangements, or understandings affecting the supply or acquisition of goods - Where head contractor succumbed to threat from union and terminated subcontract without any verbal (or written) assent being communicated to union - Whether sufficient to give rise to "understanding" in context of ss 45E(3) and 45EA of Competition and Consumer Act that head contractor succumbed to union's threat of industrial action by doing what was demanded under sanction of that threat.
WORDS AND PHRASES - "acceptance", "acquisition situation", "arrangement", "arrangement or understanding", "arriving at an understanding", "assent", "communication", "communication of acceptance", "communication of assent", "consensus", "contract, arrangement or understanding", "express or tacit communication", "giving effect to an understanding", "implied promise", "implied request", "inducement", "making a contract", "making an arrangement", "manifestations of mutual consent", "meeting of minds", "offer", "performance", "proscribed purpose", "reciprocity", "secondary boycott", "threat", "threat of industrial action", "unilateral contracts".
Competition and Consumer Act 2010 (Cth), ss 45E, 45EA, 76.
CRIMINAL PRACTICE - Appeal - Recorded evidence - Where principal evidence implicating respondent was alleged admissions in intercepted telephone calls and police interviews - Where recordings of principal evidence played to jury and tendered as exhibits - Where respondent appealed conviction on ground that verdict unreasonable or could not be supported having regard to the evidence - Where majority of Court of Criminal Appeal of New South Wales ("CCA") held reasonable doubt as to respondent's guilt - Where majority of CCA did not view or listen to recordings of principal evidence - Whether CCA erred in concluding reasonable doubt not capable of being explained away by jury's natural advantages in having listened to principal evidence without listening to recordings - Whether in failing to listen to or view principal evidence CCA failed to discharge appellate function described in M v The Queen (1994) 181 CLR 487.
CRIMINAL PRACTICE - Appeal - Recorded evidence - Where principal evidence implicating respondent was alleged admissions in intercepted telephone calls and police interviews - Where recordings of principal evidence played to jury and tendered as exhibits - Where respondent appealed conviction on ground that verdict unreasonable or could not be supported having regard to the evidence - Where majority of Court of Criminal Appeal of New South Wales ("CCA") held reasonable doubt as to respondent's guilt - Where majority of CCA did not view or listen to recordings of principal evidence - Whether CCA erred in concluding reasonable doubt not capable of being explained away by jury's natural advantages in having listened to principal evidence without listening to recordings - Whether in failing to listen to or view principal evidence CCA failed to discharge appellate function described in M v The Queen (1994) 181 CLR 487.
WORDS AND PHRASES - "admissions", "advantage in seeing and hearing the evidence", "ascertaining the effect of the evidence visually or by sound", "beyond reasonable doubt", "circumstantial case", "consciousness of guilt reasoning", "credibility and reliability", "demeanour", "electronic exhibits", "extended joint criminal enterprise", "function of the appellate court", "generalised inference", "indispensable intermediate fact", "intercepted telephone calls", "joint criminal enterprise", "natural advantages of the jury", "procedural fairness", "real forensic purpose", "recorded evidence", "recorded witness testimony", "relevant or significant advantage", "tone of voice", "transcript", "unreasonable or could not be supported having regard to the evidence", "video recorded evidence".
Criminal Appeal Act 1912 (NSW), s 6.
CRIMINAL PRACTICE - Directions to jury - Distress evidence - Where respondent found guilty of two sexual offences against complainant - Where evidence of pre-trial distress of complainant when making complaint - Where trial judge gave circumstantial evidence direction in relation to evidence of complainant's distress - Whether trial judge's directions in relation to use jury could make of pre-trial distress evidence gave rise to substantial miscarriage of justice - Whether substantial and compelling reasons for trial judge to warn jury of necessity of finding causal link between distress and offending - Whether substantial and compelling reasons for trial judge to warn jury that distress evidence generally carries little weight.
CRIMINAL PRACTICE - Directions to jury - Distress evidence - Where respondent found guilty of two sexual offences against complainant - Where evidence of pre-trial distress of complainant when making complaint - Where trial judge gave circumstantial evidence direction in relation to evidence of complainant's distress - Whether trial judge's directions in relation to use jury could make of pre-trial distress evidence gave rise to substantial miscarriage of justice - Whether substantial and compelling reasons for trial judge to warn jury of necessity of finding causal link between distress and offending - Whether substantial and compelling reasons for trial judge to warn jury that distress evidence generally carries little weight.
WORDS AND PHRASES - "causal connection", "circumstantial evidence", "complainant", "corroboration", "credibility", "direction", "distress", "distress accompanying complaint", "hearsay", "historical common law evidentiary rules", "indirect evidence", "jury", "miscarriage of justice", "pre-trial distress", "relevance", "sexual offence", "substantial and compelling reasons", "substantial miscarriage of justice", "unreliable", "weight".
Evidence Act 2008 (Vic), ss 55, 56, 59, 66, 135, 136, 137, 164.
Jury Directions Act 2015 (Vic), ss 16, 31, 34, 54K, 61, 62.
NATIVE TITLE RIGHTS - Where Arabana people applied for determination of native title under Native Title Act 1993 (Cth) - Where Arabana people held native title over area of land abutting claim area - Whether primary judge correctly construed and applied definition of "native title" in s 223(1) - Whether "connection" with land or waters for purposes of s 223(1)(b) must be established by physical acts of acknowledgment or observance - Relevance of native title determination in respect of land abutting claim area.
NATIVE TITLE RIGHTS - Where Arabana people applied for determination of native title under Native Title Act 1993 (Cth) - Where Arabana people held native title over area of land abutting claim area - Whether primary judge correctly construed and applied definition of "native title" in s 223(1) - Whether "connection" with land or waters for purposes of s 223(1)(b) must be established by physical acts of acknowledgment or observance - Relevance of native title determination in respect of land abutting claim area.
WORDS AND PHRASES - "acknowledgment or observance", "by those laws and customs", "connection", "continuity", "cultural connection", "effective sovereignty", "land or waters", "native title", "native title rights and interests", "physical acts", "physical connection", "religious connection", "sovereignty", "spiritual connection", "traditional laws and customs".
Native Title Act 1993 (Cth), ss 13, 82, 86, 94A, 223, 225.
IMMIGRATION - Protection visas - Invalid application - Where appellant applied for protection visa and was refused by delegate of Minister - Where Administrative Appeals Tribunal affirmed delegate's decision - Where Assistant Minister exercised power under s 417(1) of Migration Act 1958 (Cth) to substitute more "favourable" decision and granted appellant three-month visitor visa with no further stay condition - Where appellant made second application for protection visa - Where delegate found second application invalid under s 48A - Whether majority of Full Court of Federal Court of Australia erred in finding second application invalid and barred by s 48A - Whether act of refusal in s 48A is reference to historical fact of refusal, or reference to act of refusal which remains legally valid - Whether exercise of substitution power under s 417(1) had effect of setting aside original refusal decision.
IMMIGRATION - Protection visas - Invalid application - Where appellant applied for protection visa and was refused by delegate of Minister - Where Administrative Appeals Tribunal affirmed delegate's decision - Where Assistant Minister exercised power under s 417(1) of Migration Act 1958 (Cth) to substitute more "favourable" decision and granted appellant three-month visitor visa with no further stay condition - Where appellant made second application for protection visa - Where delegate found second application invalid under s 48A - Whether majority of Full Court of Federal Court of Australia erred in finding second application invalid and barred by s 48A - Whether act of refusal in s 48A is reference to historical fact of refusal, or reference to act of refusal which remains legally valid - Whether exercise of substitution power under s 417(1) had effect of setting aside original refusal decision.
WORDS AND PHRASES - "barred", "continuing legal effect", "continuing legal operation", "decision", "extinguished", "fast track reviewable decision", "finally determined", "grant", "historical fact", "legal effect", "migration zone", "more favourable", "non-citizen", "power to set aside", "power to substitute", "protection visa", "public interest", "refuse", "reviewable decision", "set aside", "substitute", "vary", "Visitor (Subclass 600) visa".
Migration Act 1958 (Cth), ss 5, 48, 48A, 48B, 64U, 65, 119, 121, 137, 166BC, 166BE, 351, 411, 415, 417, 501A, 501J.
Migration Legislation Amendment Act 1989 (Cth), s 26.
Migration Reform Act 1992 (Cth), ss 23, 32.
Migration Legislation Amendment Act 1994 (Cth), s 83.
Migration Legislation Amendment Act (No 6) 1995 (Cth).
PRACTICE AND PROCEDURE - Standing - Where appellant conducts forestry operations pursuant to integrated forestry operations approval ("IFOA") - Where respondent brought civil enforcement proceedings seeking injunctive and declaratory relief - Where primary judge found respondent lacked standing because no "special interest" in subject matter of proceedings - Where Court of Appeal of Supreme Court of New South Wales set aside primary judge's finding that respondent had no special interest - Where s 69ZA of Forestry Act 2012 (NSW) limited certain actions in respect of provisions of Act that give any person a right to institute proceedings to remedy or restrain a breach, whether or not any right of the person has been or may be infringed by or as a consequence of that breach - Whether Court of Appeal erred in concluding on proper construction of Pt 5B of Forestry Act and cognate provisions of Biodiversity Conservation Act 2016 (NSW) private persons or entities with special interest in subject matter of proceedings have standing to bring proceedings to enforce duties and obligations imposed by IFOA.
PRACTICE AND PROCEDURE - Standing - Where appellant conducts forestry operations pursuant to integrated forestry operations approval ("IFOA") - Where respondent brought civil enforcement proceedings seeking injunctive and declaratory relief - Where primary judge found respondent lacked standing because no "special interest" in subject matter of proceedings - Where Court of Appeal of Supreme Court of New South Wales set aside primary judge's finding that respondent had no special interest - Where s 69ZA of Forestry Act 2012 (NSW) limited certain actions in respect of provisions of Act that give any person a right to institute proceedings to remedy or restrain a breach, whether or not any right of the person has been or may be infringed by or as a consequence of that breach - Whether Court of Appeal erred in concluding on proper construction of Pt 5B of Forestry Act and cognate provisions of Biodiversity Conservation Act 2016 (NSW) private persons or entities with special interest in subject matter of proceedings have standing to bring proceedings to enforce duties and obligations imposed by IFOA.
WORDS AND PHRASES - "any person", "auxiliary jurisdiction", "Class 4 jurisdiction", "clear and unmistakeable intention", "commence and maintain proceedings", "common law standing", "declaratory or injunctive relief", "duties and obligations", "equitable jurisdiction", "injunction", "integrated forestry operations approval", "liberty of access", "matter", "private rights affected or interfered with", "public rights, duties or obligations", "special interest", "standing", "subject matter", "third-parties".
Biodiversity Conservation Act 2016 (NSW), ss 13.3, 13.14, 13.14A, 13.15.
Forestry Act 2012 (NSW), Pt 5B.
Land and Environment Court Act 1979 (NSW), s 20.
CONSTITUTIONAL LAW - Separation of powers - Judicial power - Principle established in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 ("Kable") - Where plaintiff convicted of two counts of murder and sentenced to life imprisonment with a non-parole period of 20 years - Where body of one of murder victims never located - Where parole board of Queensland may make "no cooperation declaration" under s 175L of Corrective Services Act 2006 (Qld) ("CS Act") about "no body-no parole prisoner" where remains of victim not found and where not satisfied prisoner has given "satisfactory cooperation" - Where effect of "no cooperation declaration" is that prisoner may not apply for parole notwithstanding expiration of non-parole period - Where president of parole board may make "restricted prisoner declaration" about "restricted prisoner" under s 175E of CS Act - Where effect of "restricted prisoner declaration" is that prisoner may not apply for parole other than "exceptional circumstances parole" - Where "no cooperation declaration" was made about plaintiff and "restricted prisoner declaration" may be made if "no cooperation declaration" invalid - Whether ss 175L and 175E of CS Act invalid as enabling Queensland executive to impermissibly interfere with exercise of judicial power by State courts contrary to principle in Kable.
CONSTITUTIONAL LAW - Separation of powers - Judicial power - Principle established in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 ("Kable") - Where plaintiff convicted of two counts of murder and sentenced to life imprisonment with a non-parole period of 20 years - Where body of one of murder victims never located - Where parole board of Queensland may make "no cooperation declaration" under s 175L of Corrective Services Act 2006 (Qld) ("CS Act") about "no body-no parole prisoner" where remains of victim not found and where not satisfied prisoner has given "satisfactory cooperation" - Where effect of "no cooperation declaration" is that prisoner may not apply for parole notwithstanding expiration of non-parole period - Where president of parole board may make "restricted prisoner declaration" about "restricted prisoner" under s 175E of CS Act - Where effect of "restricted prisoner declaration" is that prisoner may not apply for parole other than "exceptional circumstances parole" - Where "no cooperation declaration" was made about plaintiff and "restricted prisoner declaration" may be made if "no cooperation declaration" invalid - Whether ss 175L and 175E of CS Act invalid as enabling Queensland executive to impermissibly interfere with exercise of judicial power by State courts contrary to principle in Kable.
WORDS AND PHRASES - "adjudgment of criminal guilt", "body or remains", "conditions for the grant of parole", "defining characteristics of a State Supreme Court", "eligibility for parole", "eligible person", "exceptional circumstances parole", "executive power", "judicial power", "minimum period of imprisonment", "no body-no parole prisoner", "no cooperation declaration", "non-parole period", "parole", "parole board", "power to grant parole", "prisoner", "public interest", "punishment", "punitive purpose", "restricted prisoner", "restricted prisoner declaration", "retribution", "satisfactory cooperation", "sentence imposed by the sentencing judge".
Corrective Services Act 2006 (Qld), ss 175B, 175C, 175D, 175E, 175F, 175G, 175H, 175I, 175K, 175L, 175N, 175O, 175P, 175Q, 175R, 175S, 175T, 175U, 176, 176A, 176B, 176C, 180, 193A, 193AA, 221, 222.
Corrective Services (No Body, No Parole) Amendment Act 2017 (Qld).
Police Powers and Responsibilities and Other Legislation Amendment Act 2021 (Qld).
Crimes (Administration of Sentences) Act 1999 (NSW), s 154A.
Corrections Act 1986 (Vic), ss 74AA, 74AAA, 74AB.
CONSTITUTIONAL LAW (Cth) - Judicial power of Commonwealth - Immigration detention - Detention without judicial order - Where following release from custody claimants taken into immigration detention under s 189(1) of Migration Act 1958 (Cth) ("Act") - Where s 196(1) of Act required claimants to be kept in immigration detention until removed from Australia, deported, or granted visa - Where claimants had pending application for protection visa - Where ss 198(1) and 198(6) of Act imposed duty upon officers to remove unlawful non-citizen from Australia as soon as reasonably practicable where request made in writing or visa application finally determined - Where Administrative Appeals Tribunal ("Tribunal") found claimants satisfied criterion for protection visa in s 36(2)(aa) of Act and were owed protection obligations - Where claimants were granted visa and released from immigration detention following Tribunal finding - Where claimants sought declaration that detention from time of Tribunal finding to release from immigration detention unlawful on basis that detention exceeded constitutional limitation identified in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005; 415 ALR 254 - Whether continuing detention of claimants exceeded constitutional limitation identified in NZYQ - Whether question of real prospect of removal from Australia becoming practicable in reasonably foreseeable future arose where each claimant had pending application for protection visa - Whether constitutional writ of mandamus available to compel performance of duty to consider claimants' visa applications.
CONSTITUTIONAL LAW (Cth) - Judicial power of Commonwealth - Immigration detention - Detention without judicial order - Where following release from custody claimants taken into immigration detention under s 189(1) of Migration Act 1958 (Cth) ("Act") - Where s 196(1) of Act required claimants to be kept in immigration detention until removed from Australia, deported, or granted visa - Where claimants had pending application for protection visa - Where ss 198(1) and 198(6) of Act imposed duty upon officers to remove unlawful non-citizen from Australia as soon as reasonably practicable where request made in writing or visa application finally determined - Where Administrative Appeals Tribunal ("Tribunal") found claimants satisfied criterion for protection visa in s 36(2)(aa) of Act and were owed protection obligations - Where claimants were granted visa and released from immigration detention following Tribunal finding - Where claimants sought declaration that detention from time of Tribunal finding to release from immigration detention unlawful on basis that detention exceeded constitutional limitation identified in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005; 415 ALR 254 - Whether continuing detention of claimants exceeded constitutional limitation identified in NZYQ - Whether question of real prospect of removal from Australia becoming practicable in reasonably foreseeable future arose where each claimant had pending application for protection visa - Whether constitutional writ of mandamus available to compel performance of duty to consider claimants' visa applications.
IMMIGRATION - Unlawful non-citizens - Where claimants detained as unlawful non-citizens under ss 189(1) and 196(1) of Act - Whether continuing detention of claimants authorised by ss 189(1) and 196(1) of Act.
WORDS AND PHRASES - "alien", "constitutional limitation expressed in NZYQ", "constitutional writ", "continuing detention", "damages", "depriving a person of their liberty", "disproportionality", "executive detention", "habeas corpus", "judicial power of the Commonwealth", "legitimate and non-punitive purpose", "Lim principle", "mandamus", "penal", "power or duty", "practicable", "protection finding", "punishment", "punitive", "real prospect", "reasonably capable of being seen as necessary", "reasonably foreseeable future", "removal from Australia", "statutory purpose", "unlawful non-citizen", "visa processing".
Constitution, s 51(xix), Ch III.
Migration Act 1958 (Cth), ss 5, 13, 36, 36A, 45, 47, 65, 189, 196, 197C, 198.
STATUTES - Construction - Where s 27QE of Limitation of Actions Act 1958 (Vic) provides court can set aside settlement agreement for personal injury resulting from child abuse if satisfied "just and reasonable" to do so - Where appellant entered into settlement agreements for personal injury allegedly resulting from child abuse - Where settlement agreements renounced claim for economic loss - Where reasons for settlement included Ellis defence and limitation period - Whether s 27QE requires Ellis defence or limitation period to have materially influenced decision to settle in order to be "just and reasonable" to set aside settlement agreement - Whether evidence allowed court to be satisfied "just and reasonable" to set aside renouncement of economic loss claim.
STATUTES - Construction - Where s 27QE of Limitation of Actions Act 1958 (Vic) provides court can set aside settlement agreement for personal injury resulting from child abuse if satisfied "just and reasonable" to do so - Where appellant entered into settlement agreements for personal injury allegedly resulting from child abuse - Where settlement agreements renounced claim for economic loss - Where reasons for settlement included Ellis defence and limitation period - Whether s 27QE requires Ellis defence or limitation period to have materially influenced decision to settle in order to be "just and reasonable" to set aside settlement agreement - Whether evidence allowed court to be satisfied "just and reasonable" to set aside renouncement of economic loss claim.
WORDS AND PHRASES - "Centrelink benefits", "Centrelink repayment", "child abuse", "correctness standard", "decision to settle", "economic loss", "Ellis defence", "general damages", "just and reasonable", "legal barriers", "limitation defence", "limitation period", "material factors", "materially influenced", "non-economic loss", "personal injury", "personal injury resulting from child abuse", "positive finding", "prerequisites to the exercise of the power", "quasi-prerequisites to the exercise of the power", "set aside", "set aside a settlement agreement", "settlement agreement", "settlement deed".
Limitation of Actions Act 1958 (Vic), ss 27QD, 27QE.
HIGH COURT - Appellate jurisdiction - Practice - Reasons for judgment - Where first appellant sent Notice of Intention to Consider Cancellation ("NOICC") of visa - Where first appellant did not respond to NOICC - Where first appellant did not have legal obligation to respond to NOICC - Where delegate of respondent gave weight to first appellant not responding to NOICC - Where appellants sought to raise in amended notice of appeal for first time contention that delegate of respondent committed jurisdictional error by giving weight to first appellant's non-response to NOICC - Where respondent conceded that jurisdictional error before hearing of appeal - Where parties provided to Court agreed document explaining circumstances - Whether reasons for decision required when orders sought by consent - Whether appropriate to make orders by consent - Whether decision of delegate affected by jurisdictional error.
HIGH COURT - Appellate jurisdiction - Practice - Reasons for judgment - Where first appellant sent Notice of Intention to Consider Cancellation ("NOICC") of visa - Where first appellant did not respond to NOICC - Where first appellant did not have legal obligation to respond to NOICC - Where delegate of respondent gave weight to first appellant not responding to NOICC - Where appellants sought to raise in amended notice of appeal for first time contention that delegate of respondent committed jurisdictional error by giving weight to first appellant's non-response to NOICC - Where respondent conceded that jurisdictional error before hearing of appeal - Where parties provided to Court agreed document explaining circumstances - Whether reasons for decision required when orders sought by consent - Whether appropriate to make orders by consent - Whether decision of delegate affected by jurisdictional error.
WORDS AND PHRASES - "appellate jurisdiction", "concession", "consent orders", "institutional responsibility", "jurisdictional error", "legal obligation", "original jurisdiction", "reasons".
Constitution, ss 73, 75.
Judiciary Act 1903 (Cth), s 37.
Migration Act 1958 (Cth), ss 116, 119, 140.
LEGAL PRACTITIONERS - Negligence - Solicitor - Immunity from suit - Advice leading to plea of guilty - Advice given shortly prior to entry of plea of guilty in Magistrates' Court - Whether summary judgment correctly granted - Leave to appeal refused.
LEGAL PRACTITIONERS - Negligence - Solicitor - Immunity from suit - Advice leading to plea of guilty - Advice given shortly prior to entry of plea of guilty in Magistrates' Court - Whether summary judgment correctly granted - Leave to appeal refused.
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1.
BUILDING CONTRACTS - Disputes between builder and building owner - Dispute about completion of building works under major domestic building contract - Domestic Building Contracts Act 1995 ss 11, 40, 42.
BUILDING CONTRACTS - Disputes between builder and building owner - Dispute about completion of building works under major domestic building contract - Domestic Building Contracts Act 1995 ss 11, 40, 42.
ADMINISTRATIVE LAW - Victorian Civil and Administrative Tribunal - Appeal from tribunal - Objections to jurisdiction on asserted constitutional grounds - No real prospects of success - Application for leave to appeal refused - Victorian Civil and Administrative Tribunal Act 1998 s 148.
PRACTICE AND PROCEDURE - Adjournment - Applicant a self-represented litigant who appointed legal representatives the day before the hearing - Application for adjournment to enable review and potential amendment of grounds of the application for leave to appeal - Whether prejudice to self-represented litigant - Whether applicant had impaired ability to present case - Reliance on mental state of applicant - No claim of impaired financial capacity - Reasons for delay not adequately explained - Applicant opposed any undertaking or condition requiring payment of judgment debt owing to respondent as condition of adjournment - Prejudice to respondent - Prejudice to administration of justice and other litigants - Adjournment refused.
PRACTICE AND PROCEDURE - Amendment - Application to rely on proposed amended application for leave to appeal raising matters under the Commonwealth Constitution ss 75(iv), 76(ii) - Asserted constitutional matters did not arise - Application refused.
CONSTITUTIONAL LAW - Asserted matter as to VCAT's lack of jurisdiction to hear and determine disputes involving residents of different States - Asserted matter as to VCAT's lack of jurisdiction to hear and determine proceedings involving claims under the Australian Consumer Law in its application as a law of the Commonwealth - Asserted constitutional matters did not arise - The Commonwealth Constitution ss 75(iv), 76(ii) - Judiciary Act 1903 (Cth) s 78B.
Australian Consumer Law and Fair Trading Act 2012, s 8(1).
Charter of Human Rights and Responsibilities Act 2006, ss 8(3), 24.
Civil Procedure Act 2010, s 7.
Commonwealth Constitution, ss 75(iv), 76(ii).
Competition and Consumer Act 2010 (Cth).
Domestic Building Contracts Act 1995.
Domestic Building Contract Regulations 2017, reg 13(1).
Judiciary Act 1903 (Cth), ss 78AA, 78B.
Supreme Court Act 1986, s 14C.
Supreme Court (General Civil Procedure) Rules 2015, r 19.03(4).
Victorian Civil and Administrative Tribunal Act 1998, ss 97, 98(1), 148(1)(a).
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; Sali v SPC Ltd (1993) 67 ALJR 841; (1993) 116 ALR 625, applied.
Business Service Brokers Pty Ltd v Optus Mobile Pty Ltd (No 3) [2022] VSC 283; Creative Building Services v Jolene Investments [2013] NSWSC 391; Renbar Constructions Pty Ltd v Sader [2022] NSWSC 172, considered.
Eaton v ISS Catering Services Pty Ltd (2013) 42 VR 635; Mackenzie v Head, Transport for Victoria [2021] VSCA 24; Tucker v Commissioner of State Revenue [2023] VSCA 125, followed.
Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205; Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290; British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30; Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22; Mitsubishi Motors Australia Ltd v Begovic [2023] HCA 43; Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525; Thurin v Krongold Constructions (Aust) Pty Ltd (2022) 73 VR 403, referred to.
ACCIDENT COMPENSATION - Workplace accident - Serious injury - Application for leave to commence common law proceeding - Lower back injury - Whether judge erred in concluding that the consequences of the injury were not very considerable - Whether judge's reasons did not disclose an adequate process of reasoning to demonstrate on the whole of the evidence why the applicant's application was refused - No error made by primary judge - Application for leave to appeal refused.
ACCIDENT COMPENSATION - Workplace accident - Serious injury - Application for leave to commence common law proceeding - Lower back injury - Whether judge erred in concluding that the consequences of the injury were not very considerable - Whether judge's reasons did not disclose an adequate process of reasoning to demonstrate on the whole of the evidence why the applicant's application was refused - No error made by primary judge - Application for leave to appeal refused.
Workplace Injury Rehabilitation and Compensation Act 2013, ss 335, 325(2)(c).
Juma v Kone Elevators Pty Ltd [2024] VSCA 217, applied; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, referred to.
CRIMINAL LAW - Application for bail pending second conviction appeal - Whether circumstances truly exceptional - Where applicant has several years of non-parole period left to serve - Comprehensive findings of fresh facts in reference determination - Findings of illegal and improper conduct by Nicola Gobbo acting as legal advisor - Issue whether global plea impugned by Crown non-disclosure - Prospects of success in combination with other matters amount to truly exceptional circumstances - Whether applicant an unacceptable risk - Availability of substantial bail guarantee and strict conditions including electronic monitoring - Unacceptable risk not established - Application for bail granted.
CRIMINAL LAW - Application for bail pending second conviction appeal - Whether circumstances truly exceptional - Where applicant has several years of non-parole period left to serve - Comprehensive findings of fresh facts in reference determination - Findings of illegal and improper conduct by Nicola Gobbo acting as legal advisor - Issue whether global plea impugned by Crown non-disclosure - Prospects of success in combination with other matters amount to truly exceptional circumstances - Whether applicant an unacceptable risk - Availability of substantial bail guarantee and strict conditions including electronic monitoring - Unacceptable risk not established - Application for bail granted.
Criminal Procedure Act 2009, ss 319A, 326A, 326C(1), 326E(3), 326F.
Mokbel v The King [2024] VSC 725; Re Zoudi (2006) 14 VR 580; Higgs v The Queen [2021] VSCA 90; Wilson v The Queen (2016) 1 NZLR 705.
PROCEEDS OF CRIME - Appeal from County Court ruling granting stay of proceedings brought under Proceeds of Crime Act 2002 (the 'POC Act') - First respondent charged with conspiracy to import commercial quantity of border-controlled drugs, trafficking border-controlled drug, and dealing with proceeds of crime ('criminal proceeding') - Second respondent wife of, and shares assets with, first respondent - Applicant filed forfeiture applications against respondents under s 47 of POC Act - Respondents filed applications under s 74 of the POC Act for exclusion from forfeiture of restrained property - Respondents filed application that forfeiture applications and exclusion applications ('POC Proceedings') be stayed until determination of criminal proceeding - Judge granted stay application - Whether judge erred by considering matters excluded by s 319(2) of POC Act - Whether judge correct to find that stay of POC proceedings in the interests of justice - Criminal proceeding based on evidence of communications to and by the first respondent using 'AN0M' application - Communications sent using 'AN0M' application copied and directed to servers accessible by applicant without users' knowledge - 'AN0M' messages sent by first respondent potentially relevant to POC proceedings - Admissibility issues of 'AN0M' messages complex and multi-faceted - Criminal jurisdiction most appropriate forum to consider admissibility issues - Open to judge to consider delay and cost first respondent would incur if admissibility issues litigated in POC proceedings - Application for leave to appeal allowed - Appeal dismissed.
PROCEEDS OF CRIME - Appeal from County Court ruling granting stay of proceedings brought under Proceeds of Crime Act 2002 (the 'POC Act') - First respondent charged with conspiracy to import commercial quantity of border-controlled drugs, trafficking border-controlled drug, and dealing with proceeds of crime ('criminal proceeding') - Second respondent wife of, and shares assets with, first respondent - Applicant filed forfeiture applications against respondents under s 47 of POC Act - Respondents filed applications under s 74 of the POC Act for exclusion from forfeiture of restrained property - Respondents filed application that forfeiture applications and exclusion applications ('POC Proceedings') be stayed until determination of criminal proceeding - Judge granted stay application - Whether judge erred by considering matters excluded by s 319(2) of POC Act - Whether judge correct to find that stay of POC proceedings in the interests of justice - Criminal proceeding based on evidence of communications to and by the first respondent using 'AN0M' application - Communications sent using 'AN0M' application copied and directed to servers accessible by applicant without users' knowledge - 'AN0M' messages sent by first respondent potentially relevant to POC proceedings - Admissibility issues of 'AN0M' messages complex and multi-faceted - Criminal jurisdiction most appropriate forum to consider admissibility issues - Open to judge to consider delay and cost first respondent would incur if admissibility issues litigated in POC proceedings - Application for leave to appeal allowed - Appeal dismissed.
Proceeds of Crime Act 2002 (Cth), ss 17, 18, 47, 73, 74, 92, 180, 196, 197, 266A, 319, 319A, 338; Criminal Code Act 1995 (Cth), ss 11.5, 307.1, 400.9; Telecommunications (Interception and Access) Act 1979 (Cth), s 7; Open Courts Act 2013, s 28, considered - Firearms Act 1996 (Cth), s 7; Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Act 2016 (Cth); Surveillance Legislation (Confirmation of Application) Act 2024 (Cth); Evidence Act 2008, s 138, referred to.
Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; Zhao v Commissioner of the Australian Federal Police (2014) 43 VR 187; Onley v Commissioner of the Australian Federal Police (2019) 367 ALR 291; Commissioner of the Australian Federal Police v Elzein (2017) 94 NSWLR 700; Questions of Law Reserved (Nos 1 and 2 of 2023) [2024] SASCA 82; R v Robertson [2024] NSWDC 528; Commissioner of the Australian Federal Police v Yang [2023] VSCA 271, considered.
COSTS - Appeal - Application for leave to appeal against order refusing leave to appeal against costs orders - Whether associate judge erred in concluding that applicants not induced by any representation of second respondent to commence or maintain proceeding - Whether associate judge erred in not ordering party that disclosed document late to pay costs of proceeding - Associate judge's orders plainly correct - Judge's order refusing leave to appeal from associate judge's orders plainly correct - Application for leave to appeal having no prospects of success - Application for leave to appeal totally without merit - Application for leave to appeal refused.
COSTS - Appeal - Application for leave to appeal against order refusing leave to appeal against costs orders - Whether associate judge erred in concluding that applicants not induced by any representation of second respondent to commence or maintain proceeding - Whether associate judge erred in not ordering party that disclosed document late to pay costs of proceeding - Associate judge's orders plainly correct - Judge's order refusing leave to appeal from associate judge's orders plainly correct - Application for leave to appeal having no prospects of success - Application for leave to appeal totally without merit - Application for leave to appeal refused.
Supreme Court Act 1986, s 14D.
COSTS - Discontinued applications for leave to appeal - Applicants seeking orders that each party bear their own costs - Supreme Court (General Civil Procedure) Rules 2015, r 64.29(4) - Applicants submit proposed appeals rendered nugatory by intervening events - Applicants made forensic decision to discontinue applications for leave to appeal and file new applications in trial proceeding - Applications for orders displacing costs rule in r 64.29(4) refused.
COSTS - Discontinued applications for leave to appeal - Applicants seeking orders that each party bear their own costs - Supreme Court (General Civil Procedure) Rules 2015, r 64.29(4) - Applicants submit proposed appeals rendered nugatory by intervening events - Applicants made forensic decision to discontinue applications for leave to appeal and file new applications in trial proceeding - Applications for orders displacing costs rule in r 64.29(4) refused.
Soteriadis v Nillumbik Shire Council [2015] VSC 363, applied.
BUILDING AND CONSTRUCTION - Referral by County Court of questions in form of a special case as to construction and operation of s 137F of the Building Act 1993 - Cladding rectification scheme - Payment by State entities of financial assistance for cladding rectification works - Circumstances in which State subrogated to rights of owners of building against any person in relation to installation or use of non-compliant or non-conforming cladding.
BUILDING AND CONSTRUCTION - Referral by County Court of questions in form of a special case as to construction and operation of s 137F of the Building Act 1993 - Cladding rectification scheme - Payment by State entities of financial assistance for cladding rectification works - Circumstances in which State subrogated to rights of owners of building against any person in relation to installation or use of non-compliant or non-conforming cladding.
BUILDING AND CONSTRUCTION - Where non-compliant cladding installed on building the subject of a subdivision - Cladding installed on external walls of parts of building owned by individual lot owners, and on common property owned by owners corporation - Victorian Building Authority made a payment of financial assistance to owners corporation pursuant to a funding agreement for the purpose of cladding rectification works on the building - Whether the payment made to owners corporation in its own capacity only or in its own capacity and on behalf of owners of individual lots in the building - Whether State subrogated to rights and remedies of owners corporation only or owners corporation and individual land - Payment made to owners corporation and individual lot owners - State subrogated to rights of owners corporation and individual lot owners.
Building Act 1993, s 137F; Cladding Safety Victoria Act 2020, ss 2, 27, 28, 29, 30, 54; Owners Corporations Act 2006, s 3; Subdivision Act 1988, s 3(1); Interpretation of Legislation Act 1984, ss 37, 38.
Naqebullah v Victoria [2024] VSCA 307; ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; Victims Compensation Fund Corporation v Brown [2003] HCA 54; Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; Elisha v Vision Australia Ltd [2024] HCA 50.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
CRIMINAL LAW - Application for leave to appeal - Sentence - Obtaining financial advantage by deception - Attempting to obtain financial advantage by deception - Applicant Chief Financial Officer at construction company - Applicant obtained over $900,000 from company through unauthorised use of credit cards and creation of false invoices - Applicant attempted to obtain over $43,000 by similar means - Whether sentencing judge erred by rejecting evidence of remorse - Whether sentences manifestly excessive - No reasonable prospect that Court of Appeal would reduce total effective sentence - Sentences not manifestly excessive - Leave to appeal refused.
Criminal Procedure Act 2009, s 280(1)(b).
Barbaro v The Queen (2012) 226 A Crim R 354; DPP v Bulfin [1998] 4 VR 114; Dyason v The Queen (2015) 251 A Crim R 366, considered.
CRIMINAL LAW - Appeal - Conviction - Rape and related sexual offending - Whether judge should have taken into account in manner adverse to complainants' credibility and reliability their failure to give evidence in accordance with prosecution opening - Open to judge to find complainant generally truthful and reliable - Application granted - Appeal dismissed.
CRIMINAL LAW - Appeal - Conviction - Rape and related sexual offending - Whether judge should have taken into account in manner adverse to complainants' credibility and reliability their failure to give evidence in accordance with prosecution opening - Open to judge to find complainant generally truthful and reliable - Application granted - Appeal dismissed.
CRIMINAL LAW - Appeal - Sentence - Rape and related sexual offending - Total effective sentence of 24 years and 4 months' imprisonment - Whether manifestly excessive - Application granted - Appeal allowed - Applicant resentenced accordingly.
CRIMINAL LAW - Judicial Review - Judge erred in fixing duration of order under Sex Offenders Registration Act 2004 at 28 years - Having been found guilty of a registrable offence became subject to reporting conditions for life - Orders set aside, unnecessary to make orders in proceeding for judicial review and struck out with no determination on the merits and no order for costs.
CRIMINAL LAW - Crown appeal - Sentence - Workplace manslaughter - Negligent operation of a forklift causing death of employee of company - Company fined $1,300,000 - Whether sentence manifestly inadequate - Whether sentence failed to reflect objective seriousness of offence and need for general deterrence - Appeal allowed - Company resentenced to a fine of $3,000,000.
CRIMINAL LAW - Crown appeal - Sentence - Workplace manslaughter - Negligent operation of a forklift causing death of employee of company - Company fined $1,300,000 - Whether sentence manifestly inadequate - Whether sentence failed to reflect objective seriousness of offence and need for general deterrence - Appeal allowed - Company resentenced to a fine of $3,000,000.
CRIMINAL LAW - Crown appeal - Sentence - Officer of a body corporate that committed workplace manslaughter - Respondent sole director and shareholder of company - Whether community correction order of two years' duration with 200 hours' unpaid community work manifestly inadequate - Appeal dismissed.
CRIMINAL LAW - Appeal - Sentence - Company pleaded guilty to recklessly endangering persons at a workplace - Director pleaded guilty to being an officer of a body corporate that failed to provide and maintain safe systems of work - Company fined $2,100,000 - Director fined $140,000 with a community correction order ('CCO') of five years' duration containing condition that he perform 600 hours of unpaid community work - Company's application for leave to appeal refused - Director's application for leave to appeal granted - Appeal allowed - Director resentenced to CCO of three years' duration containing condition that he perform 200 hours of unpaid community work.
CRIMINAL LAW - Appeal - Sentence - Company pleaded guilty to recklessly endangering persons at a workplace - Director pleaded guilty to being an officer of a body corporate that failed to provide and maintain safe systems of work - Company fined $2,100,000 - Director fined $140,000 with a community correction order ('CCO') of five years' duration containing condition that he perform 600 hours of unpaid community work - Company's application for leave to appeal refused - Director's application for leave to appeal granted - Appeal allowed - Director resentenced to CCO of three years' duration containing condition that he perform 200 hours of unpaid community work.
CRIMINAL LAW - Appeal - Sentence - Attempted murder - Prohibited person possess firearm - Total effective sentence 20 years' imprisonment with non-parole period of 15 years - Sentence of 18 years' imprisonment for attempted murder - Highest recorded sentence - Victim having grown close to applicant's former wife and children - Applicant pursued and repeatedly shot victim at roadside location - Offending witnessed by victim's former wife, son, niece and members of public - Victim sustaining grave injuries resulting in severe and permanent disability - Whether sentence manifestly excessive - Offence in upper end of range of seriousness - Callous and cowardly offending - Moderate risk of further violent offending - Family violence context warranting very substantial sentence of imprisonment - Sentence not inconsistent with current sentencing practices - Sentence not manifestly excessive.
CRIMINAL LAW - Appeal - Sentence - Attempted murder - Prohibited person possess firearm - Total effective sentence 20 years' imprisonment with non-parole period of 15 years - Sentence of 18 years' imprisonment for attempted murder - Highest recorded sentence - Victim having grown close to applicant's former wife and children - Applicant pursued and repeatedly shot victim at roadside location - Offending witnessed by victim's former wife, son, niece and members of public - Victim sustaining grave injuries resulting in severe and permanent disability - Whether sentence manifestly excessive - Offence in upper end of range of seriousness - Callous and cowardly offending - Moderate risk of further violent offending - Family violence context warranting very substantial sentence of imprisonment - Sentence not inconsistent with current sentencing practices - Sentence not manifestly excessive.
CRIMINAL LAW - Appeal - Sentence - Sentence of 5 years' imprisonment for prohibited person possess firearm - Highest sentence recorded - Guilty plea - Applicant possessing loaded firearm while in public for part of one day - Guilty plea, absence of associated criminal activity or purpose, bare possession on single day and current sentencing practices combine to show sentence manifestly excessive - Sentence of 2 years and 6 months' imprisonment substituted - Serious offender - Cumulation of 12 months ordered having regard to s 6E of Sentencing Act 1991 - Total effective sentence 19 years' imprisonment - Non-parole period 14 years and 3 months.
Sentencing Act 1991, s 6E; Firearms Act 1996, s 5(1).
Constantinou v The King [2024] VSCA 79; McIntosh v The Queen [2005] VSCA 106; R v Boaza [1999] VSCA 126; Fares v The King [2024] VSCA 108; DPP v Jensen [2019] VSC 327; Hudson v The Queen (2010) 30 VR 610; Salapura v The Queen [2018] VSCA 255; Ah- Kau v The Queen [2018] VSCA 296; Kelly v The Queen [2020] VSCA 171; Young v The King [2024] VSCA 179; Binse v The Queen [2016] VSCA 145, discussed.
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to family violence offences - Applicant pleaded guilty on second indictment to home invasion, causing injury intentionally and theft - Sentenced on causing injury intentionally to one year and ten months' imprisonment - Sentenced on second indictment to total effective sentence of five years and 1 months' imprisonment - Whether judge erred as to factual basis of offence of causing injury intentionally - Whether judge erred as to assessment of applicant's moral culpability for same - Whether sentences imposed on second indictment are manifestly excessive - Judge made no error - Sentences not manifestly excessive - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to family violence offences - Applicant pleaded guilty on second indictment to home invasion, causing injury intentionally and theft - Sentenced on causing injury intentionally to one year and ten months' imprisonment - Sentenced on second indictment to total effective sentence of five years and 1 months' imprisonment - Whether judge erred as to factual basis of offence of causing injury intentionally - Whether judge erred as to assessment of applicant's moral culpability for same - Whether sentences imposed on second indictment are manifestly excessive - Judge made no error - Sentences not manifestly excessive - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Appellant pleaded guilty to two charges of rape - Sentenced to total effective sentence of 11 years' imprisonment with non-parole period of 7 years and 3 months - Mitigating circumstances - Early pleas of guilty - Frank admissions - Appellant Vanuatuan citizen with limited understanding of English language - Prospects of deportation following sentence - No previous offending - Principle of totality - Whether total effective sentence manifestly excessive - Appeal allowed.
CRIMINAL LAW - Appeal - Sentence - Appellant pleaded guilty to two charges of rape - Sentenced to total effective sentence of 11 years' imprisonment with non-parole period of 7 years and 3 months - Mitigating circumstances - Early pleas of guilty - Frank admissions - Appellant Vanuatuan citizen with limited understanding of English language - Prospects of deportation following sentence - No previous offending - Principle of totality - Whether total effective sentence manifestly excessive - Appeal allowed.
Crimes Act 1958, s 38, referred to.
Brown v The Queen (2019) 59 VR 462; Abdullahi v The King [2023] VSCA 110; Director of Public Prosecutions v Frank [2021] VSCA 163; Watkins (a pseudonym) v The King [2023] VSCA 203; Director of Public Prosecutions v Dalgliesh (2017) 262 CLR 428, referred to.
CRIMINAL LAW - Sentence - Application for leave to appeal against sentence - Using a carriage service to access child abuse material - Using a carriage service to transmit child abuse material and causing child abuse material to be transmitted - Possessing or controlling child abuse material obtained or accessed using a carriage service - Individual sentence of 4 years and 2 months on two of the charges - TES of 6 years, with NPP of 3 years and 9 months - Manifest excess - Whether individual sentences or TES or NPP manifestly excessive - Not reasonably arguable that any sentence or order is manifestly excessive - Application for leave to appeal refused.
CRIMINAL LAW - Sentence - Application for leave to appeal against sentence - Using a carriage service to access child abuse material - Using a carriage service to transmit child abuse material and causing child abuse material to be transmitted - Possessing or controlling child abuse material obtained or accessed using a carriage service - Individual sentence of 4 years and 2 months on two of the charges - TES of 6 years, with NPP of 3 years and 9 months - Manifest excess - Whether individual sentences or TES or NPP manifestly excessive - Not reasonably arguable that any sentence or order is manifestly excessive - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Applicant convicted of sexual assault (two charges) and rape (two charges) - Applicant acquitted of attempted rape (two charges) and false imprisonment (one charge) - Charges arising from incidents involving same complainant - Prosecution case based substantially on evidence of complainant - Complainant's evidence not less credible with respect to acquittal charges than charges on which applicant was convicted - Applicant's account in record of interview not less credible with respect to charges on which he was convicted than on acquittal charges - Whether jury verdicts inconsistent - Convictions on charges 1, 2, 4 and 5 irreconcilable from acquittals on charges 6 and 7 - Application for leave to appeal granted - Appeal allowed - Guilty verdicts set aside.
CRIMINAL LAW - Appeal - Conviction - Applicant convicted of sexual assault (two charges) and rape (two charges) - Applicant acquitted of attempted rape (two charges) and false imprisonment (one charge) - Charges arising from incidents involving same complainant - Prosecution case based substantially on evidence of complainant - Complainant's evidence not less credible with respect to acquittal charges than charges on which applicant was convicted - Applicant's account in record of interview not less credible with respect to charges on which he was convicted than on acquittal charges - Whether jury verdicts inconsistent - Convictions on charges 1, 2, 4 and 5 irreconcilable from acquittals on charges 6 and 7 - Application for leave to appeal granted - Appeal allowed - Guilty verdicts set aside.
Crimes Act 1958, ss 38, 40, 321M, referred to.
Liberato v The Queen (1985) 159 CLR 507; MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; R v Kirkman (1987) 44 SASR 591, considered.
CRIMINAL LAW - Appeal - Sentence - Appellant convicted of attempting to possess marketable quantity of border-controlled drug and possession of marketable quantity of border-controlled drug - Sentence for attempting to possess was 7 years' imprisonment - Appellant's co-accused on charge of attempting to possess received 2 years and 3 months' imprisonment - Whether appellant's sentence infringed parity principle - Differences in circumstances of appellant and co-offender not such to justify disparity - Sentence disparity manifestly excessive - Appeal allowed - Appellant resentenced to total effective sentence of 5 years and 6 months' imprisonment - 3 years and 4 months' non-parole period.
CRIMINAL LAW - Appeal - Sentence - Appellant convicted of attempting to possess marketable quantity of border-controlled drug and possession of marketable quantity of border-controlled drug - Sentence for attempting to possess was 7 years' imprisonment - Appellant's co-accused on charge of attempting to possess received 2 years and 3 months' imprisonment - Whether appellant's sentence infringed parity principle - Differences in circumstances of appellant and co-offender not such to justify disparity - Sentence disparity manifestly excessive - Appeal allowed - Appellant resentenced to total effective sentence of 5 years and 6 months' imprisonment - 3 years and 4 months' non-parole period.
Criminal Code Act 1995 (Cth), ss 11.1, 307.6, 307, referred to.
R v Nguyen (2010) 205 A Crim R 106; Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; Rose v The King [2024] VSCA 296; R v Mercieca [2004] VSCA 170; Nguyen v The Queen; Phommalysac v The Queen (2011) 207 A Crim R 380, considered.
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to 16 charges of rape, sexual assault, intentionally causing injury and recklessly causing serious injury against seven women - Applicant drugged complainants and offending occurred while complainants were unconscious - Applicant diagnosed with a somnophilic disorder - Applicant conceded disorder did not reduce his moral culpability - Whether judge failed to moderate need for general deterrence due to applicant's somnophilic disorder - Judge did not err in requiring 'realistic connection' or 'causal link' between disorder and offending - Judge correct to conclude that no moderation of general deterrence was appropriate - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to 16 charges of rape, sexual assault, intentionally causing injury and recklessly causing serious injury against seven women - Applicant drugged complainants and offending occurred while complainants were unconscious - Applicant diagnosed with a somnophilic disorder - Applicant conceded disorder did not reduce his moral culpability - Whether judge failed to moderate need for general deterrence due to applicant's somnophilic disorder - Judge did not err in requiring 'realistic connection' or 'causal link' between disorder and offending - Judge correct to conclude that no moderation of general deterrence was appropriate - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Whether total effective sentence or non-parole period manifestly excessive - No error in sentence given nature and extent of offending - Importance of general deterrence, denunciation and community protection - Judge gave sufficient weight to mitigating factors - Application for leave to appeal refused.
R v Verdins (2007) 16 VR 269; Langton (a pseudonym) v The Queen [2022] VSCA 79; R v O'Neill (2015) 47 VR 395; Tran v The Queen (2012) 35 VR 484; R v Engert (1995) 84 A Crim R 67; R v Mooney (Full Court of Supreme Court of Victoria, Unreported, 21 June 1978); R v Anderson [1981] VR 155; R v Dalgleish (a pseudonym) (2017) 262 CLR 428, discussed.
CRIMINAL LAW - Interlocutory appeal - Decision not to exclude circumstantial telecommunications evidence said to demonstrate that alleged offender was in vicinity of burglaries and arson at relevant times - Whether probative value of evidence outweighed by danger of unfair prejudice - Limitations of evidence capable of being exposed in cross-examination and addressed by jury direction - Leave to appeal refused.
CRIMINAL LAW - Interlocutory appeal - Decision not to exclude circumstantial telecommunications evidence said to demonstrate that alleged offender was in vicinity of burglaries and arson at relevant times - Whether probative value of evidence outweighed by danger of unfair prejudice - Limitations of evidence capable of being exposed in cross-examination and addressed by jury direction - Leave to appeal refused.
Evidence Act 2008 ss 135, 137.
Moore (a pseudonym) v The King (2024) 98 ALJR 1119, applied; Moreno (a pseudonym) v The King (2023) 307 A Crim R 519, referred to.
CRIMINAL LAW - Sentencing - Application for extension of time within which to seek leave to appeal against sentence - Theft (rolled up charge of theft encompassing 271 separate thefts totalling $479,695) - Sentence of 3 years with non-parole period of 2 years - Comparable cases - Manifest excess - Not reasonably arguable that sentence manifestly excessive - Futile to grant extension of time - Application for extension of time refused.
CRIMINAL LAW - Sentencing - Application for extension of time within which to seek leave to appeal against sentence - Theft (rolled up charge of theft encompassing 271 separate thefts totalling $479,695) - Sentence of 3 years with non-parole period of 2 years - Comparable cases - Manifest excess - Not reasonably arguable that sentence manifestly excessive - Futile to grant extension of time - Application for extension of time refused.
PRACTICE AND PROCEDURE - Appeal - Costs - Whether unsuccessful applicants for proceeding suppression order should pay media interests' costs - Whether media interests parties to proceeding - Whether Court has power to order costs - Unnecessary to determine whether media interests parties to proceeding - Where media interests made minimal contributions - Where applicants' submissions were not without merit - Application for costs refused.
PRACTICE AND PROCEDURE - Appeal - Costs - Whether unsuccessful applicants for proceeding suppression order should pay media interests' costs - Whether media interests parties to proceeding - Whether Court has power to order costs - Unnecessary to determine whether media interests parties to proceeding - Where media interests made minimal contributions - Where applicants' submissions were not without merit - Application for costs refused.
Criminal Procedure Act 2009, s 409; Open Courts Act 2013, s 19(2).
PRACTICE AND PROCEDURE - Extension of time - Applicant sought judicial review of decision of University in relation to plagiarism in law essay - Application filed approximately 10 months out of time - Judge found no special circumstances to justify extension of time - No error of law in judge's decision - Proposed grounds of appeal totally without merit - Application for leave to appeal refused.
PRACTICE AND PROCEDURE - Extension of time - Applicant sought judicial review of decision of University in relation to plagiarism in law essay - Application filed approximately 10 months out of time - Judge found no special circumstances to justify extension of time - No error of law in judge's decision - Proposed grounds of appeal totally without merit - Application for leave to appeal refused.
Supreme Court (General Civil Procedure) Rules 2015, r 56.02(3).
PRACTICE AND PROCEDURE - Summary judgment - Applicant pleaded guilty to breach of personal safety intervention order in Magistrates' Court - Magistrate ordered that matter be adjourned without conviction on applicant's undertaking - Where applicant brought civil proceeding against the State alleging that police failed to conduct proper investigation - Judge dismissed proceeding as abuse of process by reason of impermissible collateral attack on Magistrates' Court decision - Where applicant's appeal of Magistrate's decision subsequently successful - No error in judge's ruling or determination - Other proposed grounds of appeal lacking merit - Application for leave to appeal refused.
PRACTICE AND PROCEDURE - Summary judgment - Applicant pleaded guilty to breach of personal safety intervention order in Magistrates' Court - Magistrate ordered that matter be adjourned without conviction on applicant's undertaking - Where applicant brought civil proceeding against the State alleging that police failed to conduct proper investigation - Judge dismissed proceeding as abuse of process by reason of impermissible collateral attack on Magistrates' Court decision - Where applicant's appeal of Magistrate's decision subsequently successful - No error in judge's ruling or determination - Other proposed grounds of appeal lacking merit - Application for leave to appeal refused.
Beckett v New South Wales (2013) 248 CLR 432; Soo v Victoria Legal Aid [2023] VSC 289; Soo v Victoria Legal Aid [2023] VSCA 330, discussed.
Cabassi v Vila (1940) 64 CLR 130; D'Orta- Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, referred to.
CONTRACT - Whether the execution and backdating of contract had the effect that a payment constituted an advance under the contract - Reasonable business persons understanding of what the terms of the contract to mean - Consideration of language used, circumstances addressed by the contract and commercial purpose or object to be secured by contract - Inferences to be drawn by conduct of the parties to the contract - Assumption of liability - No consideration - Whether contract wholly executory and enforceable - Repudiation - McKay & Anor v National Australia Bank Limited [1998] 1 VR 173 - McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 - David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353.
CONTRACT - Whether the execution and backdating of contract had the effect that a payment constituted an advance under the contract - Reasonable business persons understanding of what the terms of the contract to mean - Consideration of language used, circumstances addressed by the contract and commercial purpose or object to be secured by contract - Inferences to be drawn by conduct of the parties to the contract - Assumption of liability - No consideration - Whether contract wholly executory and enforceable - Repudiation - McKay & Anor v National Australia Bank Limited [1998] 1 VR 173 - McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 - David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353.
CONTRACT - Reliance losses as a species of damages recoverable for breach of contract - Facilitation principle - Cessnock City Council v 123 259 932 Pty Ltd (2024) 98 ALJR 719 - 123 259 932 Pty Ltd v Cessnock City Council (2023) 110 NSWLR 464.
CONTRACT - Post contractual admissions - Relevance of post contractual conduct where such conduct constitutes an admission against interest - Whether admission relates to a matter of fact or question of law or mixed fact and law - Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 - FAI Traders Insurance Co Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343.
CONTRACT - Whether contract entered into - Implied and express terms - Material terms of the contract - Whether funds advanced pursuant to the contract - Narrower terms established.
EQUITY - Money had and received - Money had and received by the defendant to the use of the plaintiff - Money paid by the plaintiff to the use of the defendant - Distinction between money paid by mistake or on a consideration that happens to fail and a promise by the defendant to repay the money to the plaintiff that had been provided at the defendant's request.
CONTEMPT - Where defendant failed to comply with court judgment to pay debt or deliver up goods - Plaintiff filed summons for committal - Defendant's contempt proven - Summons adjourned for hearing on penalty - Legal Services Board v Forster [2012] VSC 633 - National Australia Bank v Juric [2001] VSC 375 - Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201.
CONTEMPT - Where defendant failed to comply with court judgment to pay debt or deliver up goods - Plaintiff filed summons for committal - Defendant's contempt proven - Summons adjourned for hearing on penalty - Legal Services Board v Forster [2012] VSC 633 - National Australia Bank v Juric [2001] VSC 375 - Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201.
CORPORATIONS - Part 5.4 of the Corporations Act 2001 (Cth) - s 461(1)(k) of the Corporations Act 2001 (Cth) - Application to wind up company on just and equitable ground - Alleged deadlock in management of company and irretrievable breakdown of relationship between shareholders - Where director defendant resigns prior to final hearing breaking deadlock.
CORPORATIONS - Part 5.4 of the Corporations Act 2001 (Cth) - s 461(1)(k) of the Corporations Act 2001 (Cth) - Application to wind up company on just and equitable ground - Alleged deadlock in management of company and irretrievable breakdown of relationship between shareholders - Where director defendant resigns prior to final hearing breaking deadlock.
COSTS - Proceeding resolved prior to final hearing - Court's jurisdiction to award costs - s 24 of Supreme Court Act 1986 (Vic) - Circumstances in which Court will make costs order where no determination on the merits - Whether conduct of defendants unreasonable so as to warrant costs order in favour of plaintiff - Whether capitulation by defendants - Whether conduct of plaintiff in commencing proceeding unreasonable - Whether plaintiff entitled to indemnity costs - Special circumstances required - Relevant parties each acted unreasonably in commencing and defending proceeding - Where conduct inconsistent with overarching obligations under ss 20, 22, 25 and 26 of Civil Procedure Act 2010 (Vic) - Parties to bear own costs.
CORPORATIONS - Liquidation - Liquidator of company seeks appointment as receiver over assets held on trust by the company - Where company carried on business and otherwise operated solely in capacity as trustee of a trust - Ipso facto clause in trust deed such that appointment of liquidator renders company to be a bare trustee - Liquidator appointed as receiver over trust assets - Supreme Court Act 1986 (Vic), s 37.
CORPORATIONS - Liquidation - Liquidator of company seeks appointment as receiver over assets held on trust by the company - Where company carried on business and otherwise operated solely in capacity as trustee of a trust - Ipso facto clause in trust deed such that appointment of liquidator renders company to be a bare trustee - Liquidator appointed as receiver over trust assets - Supreme Court Act 1986 (Vic), s 37.
CORPORATIONS - Liquidation - Liquidator of company seeks judicial advice as to company's status as trustee and liquidator's power over trust assets - Where company carried on business and otherwise operated solely in capacity as trustee of a trust - No ipso facto clause in trust deed such that appointment of liquidator does not remove company as trustee of the trust - Declarations made - Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 54.02 - ss 90-15 and 90-20 of Schedule 2 Insolvency Practice Schedule (Corporations) to the Corporations Act 2001 (Cth).
WINDING UP - Liquidator - Disclaimer of onerous property - Lease - Personal property - Application to set aside disclaimer before it takes effect - Effect of disclaimer on rights accrued between the notional effective date of the disclaimer and the hearing of the application to set aside - Effect of disclaimer on Landlord's rights in personal property left on the premises - Disclaimer not set aside - Corporations Act 2001 (Cth) ss 568, 568B, 568C, 568D - Willmott Growers Group Inc v Willmott Forests Ltd (recs and mgrs apptd) (in liq) (2013) 251 CLR 592 - Hindcastle Ltd v Barbara Attenborough Associates Ltd [1997] AC 70.
WINDING UP - Liquidator - Disclaimer of onerous property - Lease - Personal property - Application to set aside disclaimer before it takes effect - Effect of disclaimer on rights accrued between the notional effective date of the disclaimer and the hearing of the application to set aside - Effect of disclaimer on Landlord's rights in personal property left on the premises - Disclaimer not set aside - Corporations Act 2001 (Cth) ss 568, 568B, 568C, 568D - Willmott Growers Group Inc v Willmott Forests Ltd (recs and mgrs apptd) (in liq) (2013) 251 CLR 592 - Hindcastle Ltd v Barbara Attenborough Associates Ltd [1997] AC 70.
CONSUMER LAW - Misleading or deceptive conduct - Where Plaintiffs allege documents produced during due diligence process prior to the sale of business were misleading or deceptive and breached warranties contained in the Business Purchase Agreement - Allegation that profitability of business was artificially high - Whether alleged representations relied upon - Whether actual decision makers relied upon the alleged representations - Significant warnings regarding accuracy of material relied upon - Reliance or any reasonable reliance not established - Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd (2023) 277 CLR 186 - Inruse Pty Limited as trustee for the 224 Hinxman Trust v Equity Lenders Pty Ltd [2024] FCA 1434 - Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 - Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 - Elanor Funds Management Ltd v Alceon Group Pty Ltd [2024] FCAFC 121 - Argy v Blunts & Land Cove Real Estate Pty Ltd (1990) 94 ALR 719 - Kizbeau Pty Ltd v WG & B Pty Ltd (1995) 184 CLR 281 - Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 - Henville v Walker (2001) 206 CLR 459 - Competition and Consumer Act 2010 sch 2, ss 18, 236.
CONSUMER LAW - Misleading or deceptive conduct - Where Plaintiffs allege documents produced during due diligence process prior to the sale of business were misleading or deceptive and breached warranties contained in the Business Purchase Agreement - Allegation that profitability of business was artificially high - Whether alleged representations relied upon - Whether actual decision makers relied upon the alleged representations - Significant warnings regarding accuracy of material relied upon - Reliance or any reasonable reliance not established - Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd (2023) 277 CLR 186 - Inruse Pty Limited as trustee for the 224 Hinxman Trust v Equity Lenders Pty Ltd [2024] FCA 1434 - Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 - Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 - Elanor Funds Management Ltd v Alceon Group Pty Ltd [2024] FCAFC 121 - Argy v Blunts & Land Cove Real Estate Pty Ltd (1990) 94 ALR 719 - Kizbeau Pty Ltd v WG & B Pty Ltd (1995) 184 CLR 281 - Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 - Henville v Walker (2001) 206 CLR 459 - Competition and Consumer Act 2010 sch 2, ss 18, 236.
PRACTICE AND PROCEDURE - Security for costs - Group proceeding - Discretionary factors to be taken into account - Impecunious plaintiffs - Whether orders for security likely to stultify proceeding - Plaintiffs failed to establish stultification - Security ordered - Quantum of security - Supreme Court (General Civil Procedure) Rules 2015 (Vic) ord 62 - Corporations Act 2001 (Cth) s 1335 - Supreme Court Act 1986 (Vic) s 33ZF - Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377, Stuart v Said (2021) 65 VR 50, Madgwick v Kelly (2013) 212 FCR 1, Goodwin v HBCA Pty Ltd [2022] FCAFC 166, General Trade Industries Pty Ltd (in liquidation) v AGL Energy Limited (No 2) [2023] FCA 556, One Lake Macquarie Pty Ltd (In Liquidation) v Athena Rose Capital Pty Ltd [2025] NSWSC 177, FNH United Pty Ltd v United Petroleum Franchise Pty Ltd [2024] VSC 522, considered and applied.
PRACTICE AND PROCEDURE - Security for costs - Group proceeding - Discretionary factors to be taken into account - Impecunious plaintiffs - Whether orders for security likely to stultify proceeding - Plaintiffs failed to establish stultification - Security ordered - Quantum of security - Supreme Court (General Civil Procedure) Rules 2015 (Vic) ord 62 - Corporations Act 2001 (Cth) s 1335 - Supreme Court Act 1986 (Vic) s 33ZF - Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377, Stuart v Said (2021) 65 VR 50, Madgwick v Kelly (2013) 212 FCR 1, Goodwin v HBCA Pty Ltd [2022] FCAFC 166, General Trade Industries Pty Ltd (in liquidation) v AGL Energy Limited (No 2) [2023] FCA 556, One Lake Macquarie Pty Ltd (In Liquidation) v Athena Rose Capital Pty Ltd [2025] NSWSC 177, FNH United Pty Ltd v United Petroleum Franchise Pty Ltd [2024] VSC 522, considered and applied.
PRACTICE AND PROCEDURE - Application to transfer proceeding to the New South Wales Registry of the Federal Court of Australia - Plaintiff appointed receivers and managers to defendant companies - Plaintiff seeks declarations as to validity of appointment of receivers - Proceeding fixed for hearing - Defendants fail to file any material in opposition by the date ordered by the Court, as extended - Defendants subsequently commence proceedings in the Federal Court of Australia - Application refused - Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 5(1)(b) - Corporations Act 2001 (Cth), s 1337H(2) - Irwin v State of Queensland [2011] VSC 291 - Kadac Pty Ltd v Complete Health Products Pty Ltd [2015] VSC 613 - Bogan v The Estate of Peter John Smedley [2025] HCA 7.
PRACTICE AND PROCEDURE - Application to transfer proceeding to the New South Wales Registry of the Federal Court of Australia - Plaintiff appointed receivers and managers to defendant companies - Plaintiff seeks declarations as to validity of appointment of receivers - Proceeding fixed for hearing - Defendants fail to file any material in opposition by the date ordered by the Court, as extended - Defendants subsequently commence proceedings in the Federal Court of Australia - Application refused - Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 5(1)(b) - Corporations Act 2001 (Cth), s 1337H(2) - Irwin v State of Queensland [2011] VSC 291 - Kadac Pty Ltd v Complete Health Products Pty Ltd [2015] VSC 613 - Bogan v The Estate of Peter John Smedley [2025] HCA 7.
PRACTICE AND PROCEDURE - Discovery of documents - Scope of discovery categories - Supreme Court (General Civil Procedure Rules) 2015 (Vic).
PRACTICE AND PROCEDURE - Discovery of documents - Scope of discovery categories - Supreme Court (General Civil Procedure Rules) 2015 (Vic).
PRACTICE AND PROCEDURE - Application for approval of settlement of group proceeding - Whether terms of settlement fair and reasonable - Whether settlement distribution scheme fair and reasonable - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, ss 33V, 33ZF.
PRACTICE AND PROCEDURE - Application for approval of settlement of group proceeding - Whether terms of settlement fair and reasonable - Whether settlement distribution scheme fair and reasonable - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, ss 33V, 33ZF.
PRACTICE AND PROCEDURE - Approval for payment of costs of administering settlement distribution scheme - Costs approved in form of a pre-approved cap - Pre-approval of a further contingency for costs of administering not granted.
PRACTICE AND PROCEDURE - Approval for payment of legal costs from settlement sum - Whether group costs order should be amended - Supreme Court Act 1986 (Vic) Part 4A, s 33ZDA - Allen v G8 Education Ltd (No 4) [2024] VSC 487, applied.
APPEAL - Appeal against decision of Judicial Registrar to dismiss application to set aside subpoena for police records of first plaintiff's prior convictions - Application to strike out amended defence to the extent it pleads first plaintiff's prior convictions - Where first plaintiff's prior convictions are spent by operation of the Spent Convictions Act 2021 (Vic) - Whether defendants contravened the Spent Convictions Act by requesting information about spent convictions - Whether any contravention of the Spent Convictions Act means that defendants' pleadings are affected by an abuse of process - No contravention by defendants - Pleadings in defence not affected by any abuse of process - Spent Convictions Act ss 20, 21 - Appeal refused - Defendants' pleadings not otherwise deficient - Application dismissed.
APPEAL - Appeal against decision of Judicial Registrar to dismiss application to set aside subpoena for police records of first plaintiff's prior convictions - Application to strike out amended defence to the extent it pleads first plaintiff's prior convictions - Where first plaintiff's prior convictions are spent by operation of the Spent Convictions Act 2021 (Vic) - Whether defendants contravened the Spent Convictions Act by requesting information about spent convictions - Whether any contravention of the Spent Convictions Act means that defendants' pleadings are affected by an abuse of process - No contravention by defendants - Pleadings in defence not affected by any abuse of process - Spent Convictions Act ss 20, 21 - Appeal refused - Defendants' pleadings not otherwise deficient - Application dismissed.
TRUSTS, EQUITY AND PROBATE - Application for costs - Kempson v Haydon (Costs) [2022] VSC 366 - Three categories of applications for judicial advice - Rigby v Tiernan [2016] VSC 352 - Should defendants bear their own costs of the proceeding based on unreasonable behaviour - Application that defendants bear their own costs by a trustee of a will - Trustee seeking judicial advice - S 30 of Administration and Probate Act 1958 - Sons of Gwalia Ltd (subject to DOCA) v Margaretic & Anor (2006) 232 ALR 119 - Dispute between beneficiaries of a trust and an impartial trustee - Civil Procedure Act 2010 (Vic).
TRUSTS, EQUITY AND PROBATE - Application for costs - Kempson v Haydon (Costs) [2022] VSC 366 - Three categories of applications for judicial advice - Rigby v Tiernan [2016] VSC 352 - Should defendants bear their own costs of the proceeding based on unreasonable behaviour - Application that defendants bear their own costs by a trustee of a will - Trustee seeking judicial advice - S 30 of Administration and Probate Act 1958 - Sons of Gwalia Ltd (subject to DOCA) v Margaretic & Anor (2006) 232 ALR 119 - Dispute between beneficiaries of a trust and an impartial trustee - Civil Procedure Act 2010 (Vic).
EMPLOYMENT - Contract - Restraint of trade - Employment restraint - Confidentiality obligations - Non-solicitation restraint - Client connections - Legitimate protection of interests.
EMPLOYMENT - Contract - Restraint of trade - Employment restraint - Confidentiality obligations - Non-solicitation restraint - Client connections - Legitimate protection of interests.
INJUNCTION - Interlocutory injunction - Serious question to be tried - Balance of convenience disputed - Enforceability, construction and severance of restraint clause - Just Group Ltd v Peck (2016) 344 ALR 162 - Width of restraint clause - International Cleaning Services v Dmytrenko [2020] SASC 222 - Irreparable harm if injunction is not grant - Prejudice occasioned where injunction is granted - Impact of delay in bringing an application - One Stop Warehouse Pty Ltd v Reed [2023] WASC 177.
MISLEADING OR DECEPTIVE CONDUCT - Appeal from Magistrates' Court - Franchise and licence agreements - Effect of silence or inaction - Lost opportunity - Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31.
MISLEADING OR DECEPTIVE CONDUCT - Appeal from Magistrates' Court - Franchise and licence agreements - Effect of silence or inaction - Lost opportunity - Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31.
EMPLOYMENT AND INDUSTRIAL LAW - Pecuniary penalties - Determination of appropriate penalties - Admitted contraventions of s 13 of the Labour Hire Licensing Act 2018 - Provision of labour hire services by first defendant without licence - Second and third defendants aided and abetted the contravention - Plaintiff and defendants agreed upon quantum of penalties of $1.37 million for first defendant and $65,000 for each of second and third defendants - Whether quantum of agreed penalties appropriate - Quantum of agreed penalties not appropriate - First defendant ordered to pay penalty of $200,000 - Second defendant ordered to pay penalty of $15,000 - Third defendant ordered to pay penalty of $40,000 - Labour Hire Licensing Act 2018 ss 7, 13, 93, 94, 95, 96.
EMPLOYMENT AND INDUSTRIAL LAW - Pecuniary penalties - Determination of appropriate penalties - Admitted contraventions of s 13 of the Labour Hire Licensing Act 2018 - Provision of labour hire services by first defendant without licence - Second and third defendants aided and abetted the contravention - Plaintiff and defendants agreed upon quantum of penalties of $1.37 million for first defendant and $65,000 for each of second and third defendants - Whether quantum of agreed penalties appropriate - Quantum of agreed penalties not appropriate - First defendant ordered to pay penalty of $200,000 - Second defendant ordered to pay penalty of $15,000 - Third defendant ordered to pay penalty of $40,000 - Labour Hire Licensing Act 2018 ss 7, 13, 93, 94, 95, 96.
INJUNCTION - Interlocutory injunction - Non-solicitation clause - Whether defendants have solicited, approached or dealt with former clients - Breadth of restraint - Whether plaintiffs have shown a prima facie case on validity and enforceability of the restraint - Whether the balance of convenience favours granting the injunction - Whether to depart from the decision in Perpetual Limited v Maglis [2025] QSC 71 - Farah Constructions Pty Ltd and Others v Say-Dee Pty Ltd (2007) 230 CLR 89.
INJUNCTION - Interlocutory injunction - Non-solicitation clause - Whether defendants have solicited, approached or dealt with former clients - Breadth of restraint - Whether plaintiffs have shown a prima facie case on validity and enforceability of the restraint - Whether the balance of convenience favours granting the injunction - Whether to depart from the decision in Perpetual Limited v Maglis [2025] QSC 71 - Farah Constructions Pty Ltd and Others v Say-Dee Pty Ltd (2007) 230 CLR 89.
PRACTICE AND PROCEDURE - Stay - Application for stay of suspension of legal practising certificate - Legal practising certificate suspended on the basis of a charge of an indictable offence - Application granted on basis of undertakings - Legal Profession Uniform Law (Vic) ss 77, 82(2) - Supreme Court (General Civil Procedure) Rules 2015 r 56.06.
PRACTICE AND PROCEDURE - Stay - Application for stay of suspension of legal practising certificate - Legal practising certificate suspended on the basis of a charge of an indictable offence - Application granted on basis of undertakings - Legal Profession Uniform Law (Vic) ss 77, 82(2) - Supreme Court (General Civil Procedure) Rules 2015 r 56.06.
PRACTICE AND PROCEDURE - Pleadings - Application under r 9.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to substitute name of plaintiff with related corporate entity - Application for leave to file further amended statement of claim pleading injurious falsehood and breaches of Competition and Consumer Act 2010 (Cth) sch 2 (Australian Consumer Law) - Whether pleadings adequately plead causation between defendants' publications and plaintiff's alleged loss - Whether pleadings adequately plead how defendants' representations were made in trade and commerce - Application allowed in part.
PRACTICE AND PROCEDURE - Pleadings - Application under r 9.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to substitute name of plaintiff with related corporate entity - Application for leave to file further amended statement of claim pleading injurious falsehood and breaches of Competition and Consumer Act 2010 (Cth) sch 2 (Australian Consumer Law) - Whether pleadings adequately plead causation between defendants' publications and plaintiff's alleged loss - Whether pleadings adequately plead how defendants' representations were made in trade and commerce - Application allowed in part.
PRACTICE AND PROCEDURE - Application pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to strike out the Statement of Claim - Whether the plaintiff's claim fails to disclose a cause of action, is scandalous, frivolous or vexatious, may embarrass or delay a fair trial or is otherwise an abuse of process - Application for summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (Vic) - Whether the plaintiff's claims have no real prospect of success.
PRACTICE AND PROCEDURE - Application pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to strike out the Statement of Claim - Whether the plaintiff's claim fails to disclose a cause of action, is scandalous, frivolous or vexatious, may embarrass or delay a fair trial or is otherwise an abuse of process - Application for summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (Vic) - Whether the plaintiff's claims have no real prospect of success.
JUDICIAL REVIEW - Magistrates' Court decision - Findings reasonably open on the evidence - CD v Central Gippsland Health Service [2022] VSC 462 - Section 55 of the Evidence Act 2008 (Vic).
JUDICIAL REVIEW - Magistrates' Court decision - Findings reasonably open on the evidence - CD v Central Gippsland Health Service [2022] VSC 462 - Section 55 of the Evidence Act 2008 (Vic).
ADMINISTRATIVE LAW - Judicial review - Medical panel opinion - Plaintiff claimed for noise induced hearing loss - Victorian WorkCover Authority accepted liability but assessed impairment at 0% - Medical questions referred to a medical panel - Medical panel assessed impairment of 0% - Whether medical panel misapplied Guidelines for the Assessment of Noise Induced Hearing Loss - Whether medical panel provided adequate reasons - No error demonstrated in Medical panel's opinion - Proceeding dismissed.
ADMINISTRATIVE LAW - Judicial review - Medical panel opinion - Plaintiff claimed for noise induced hearing loss - Victorian WorkCover Authority accepted liability but assessed impairment at 0% - Medical questions referred to a medical panel - Medical panel assessed impairment of 0% - Whether medical panel misapplied Guidelines for the Assessment of Noise Induced Hearing Loss - Whether medical panel provided adequate reasons - No error demonstrated in Medical panel's opinion - Proceeding dismissed.
ADMINISTRATIVE LAW - Judicial review - Decision of Homes Victoria to implement a program to retire and redevelop 44 public housing towers in Melbourne - Group proceeding brought by resident of one public housing tower, seeking judicial review of Homes Victoria's decision - Whether Homes Victoria's decision justiciable - Housing Act 1983 (Vic) ss 9, 15 - Public Administration Act 2004 (Vic) ss 3, 5 - Berih v State of Victoria (No 2) [2024] VSC 230 - Comcare v Banerji (2019) 267 CLR 373.
ADMINISTRATIVE LAW - Judicial review - Decision of Homes Victoria to implement a program to retire and redevelop 44 public housing towers in Melbourne - Group proceeding brought by resident of one public housing tower, seeking judicial review of Homes Victoria's decision - Whether Homes Victoria's decision justiciable - Housing Act 1983 (Vic) ss 9, 15 - Public Administration Act 2004 (Vic) ss 3, 5 - Berih v State of Victoria (No 2) [2024] VSC 230 - Comcare v Banerji (2019) 267 CLR 373.
ADMINISTRATIVE LAW - Judicial review - Procedural fairness - Whether Homes Victoria was obliged to give Group Members opportunity to be heard before making decision - Whether relevant power conditioned on observance of procedural fairness - Whether decision affected any legally recognised right or interest of Group Members - Whether realistic possibility of Homes Victoria making different decision if Group Members had been heard - Housing Act 1983 (Vic) ss 6, 9, 10, 13, 14, 15, 18, 19, 32 - Residential Tenancies Act 1997 (Vic) s 91ZY, pt 7 div 1 - Keasey v Director of Housing (2022) 66 VR 45 - Badari v Minister for Territory Families and Urban Housing [2025] NTCA 1.
HUMAN RIGHTS - Charter of Human Rights and Responsibilities - Right to home - Whether s 38(1) of Charter applied to decision - Whether Homes Victoria gave proper consideration to relevant human rights in making decision - Whether decision limits Group Members' human rights - Whether any limitation to human rights justified under s 7(2) of Charter - Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 4, 7(2), 13(a), 17(1), 20, 38 - Keasey v Director of Housing (2022) 66 VR 45 - Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441 - Thompson v Minogue (2021) 67 VR 301.
EVIDENCE - Objection to evidence - Plaintiff objected to evidence on grounds of inadmissible opinion and hearsay without identified basis, and sought exclusion of unfairly prejudicial evidence - Reasons for ruling that evidence admissible, other than some evidence excluded as unfairly prejudicial - Evidence Act 1995 (Cth) ss 135, 136.
EVIDENCE - Where prosecution served notice of incriminating conduct - Where notice relied on several items of alleged incriminating conduct - Where Item 3 (an alleged lie) was inaccurately drafted - Where prosecution opened its case based on that inaccuracy - Whether prosecution could amend notice shortly before it closed its case - Whether in the interests of justice to permit prosecution to serve revised notice of incriminating conduct - Jury Directions Act 2015 ss 8, 19, 20.
EVIDENCE - Where prosecution served notice of incriminating conduct - Where notice relied on several items of alleged incriminating conduct - Where Item 3 (an alleged lie) was inaccurately drafted - Where prosecution opened its case based on that inaccuracy - Whether prosecution could amend notice shortly before it closed its case - Whether in the interests of justice to permit prosecution to serve revised notice of incriminating conduct - Jury Directions Act 2015 ss 8, 19, 20.
MURDER - Evidence - Admissibility of footprint evidence - Whether impugned evidence obtained as a consequence of a contravention of Australian law, namely, breach of s 464K of the Crimes Act 1958 - Whether impugned evidence obtained improperly - Whether an independent third person should have participated in police interview with accused - Whether evidence should be excluded under s 138 of the Evidence Act 2008 - Impugned evidence admitted - Johnstone (a Pseudonym) v The King [2023] VSCA 49 - DPP v Marijancevic (2011) 33 VR 440; [2011] VSCA 355.
MURDER - Evidence - Admissibility of footprint evidence - Whether impugned evidence obtained as a consequence of a contravention of Australian law, namely, breach of s 464K of the Crimes Act 1958 - Whether impugned evidence obtained improperly - Whether an independent third person should have participated in police interview with accused - Whether evidence should be excluded under s 138 of the Evidence Act 2008 - Impugned evidence admitted - Johnstone (a Pseudonym) v The King [2023] VSCA 49 - DPP v Marijancevic (2011) 33 VR 440; [2011] VSCA 355.
MURDER - Sentence - Accused convicted after a trial - Accused murdered elderly de facto father-in-law in the deceased's home - Deceased savagely beaten with an instrument - Upper range example of murder - Offender suffered a profoundly deprived childhood - Mental impairment making experience of imprisonment harder - Remanded in custody during COVID-19 restrictions - Delay - Bugmy v R (2013) 249 CLR 571 - R v Verdins (2007) 16 VR 26 - Surtees v R [2023] VSCA 42 - Rodriguez v DPP (Cth) (2013) 40 VR 436.
MURDER - Sentence - Accused convicted after a trial - Accused murdered elderly de facto father-in-law in the deceased's home - Deceased savagely beaten with an instrument - Upper range example of murder - Offender suffered a profoundly deprived childhood - Mental impairment making experience of imprisonment harder - Remanded in custody during COVID-19 restrictions - Delay - Bugmy v R (2013) 249 CLR 571 - R v Verdins (2007) 16 VR 26 - Surtees v R [2023] VSCA 42 - Rodriguez v DPP (Cth) (2013) 40 VR 436.
CRIMINAL LAW - Application for bail - Violent incident in hospital - Where no criminal history or history of violence - Where evidence that violent incident took place during post-ictal delirium - Where triable issue on whether conduct was conscious, voluntary and deliberate - Where applicant more vulnerable to incarceration - Where low risk of further violent conduct - Where long-term accommodation had been secured if bail granted - Compelling reasons established - Not an unacceptable risk - Bail granted on conditions - Bail Act 1977 (Vic) ss 3AAA, 4C, 4E.
CRIMINAL LAW - Application for bail - Violent incident in hospital - Where no criminal history or history of violence - Where evidence that violent incident took place during post-ictal delirium - Where triable issue on whether conduct was conscious, voluntary and deliberate - Where applicant more vulnerable to incarceration - Where low risk of further violent conduct - Where long-term accommodation had been secured if bail granted - Compelling reasons established - Not an unacceptable risk - Bail granted on conditions - Bail Act 1977 (Vic) ss 3AAA, 4C, 4E.
CRIMINAL LAW - Application for bail - Where allegations of cultivating and trafficking not less than commercial quantity of cannabis and other related offence - Where time in custody will likely exceed likely non-parole period but not sentence if allegations proved - Where applicant has previously complied with bail and has no criminal record - Where applicant has wife with depression and toddler and newborn - Where surety offered to Court and applicant has opportunity of employment - Exceptional circumstances test satisfied - Where false statements made in visa and other applications - Where applicant has no legal right to work or connections to Victoria and access to false identify documentation and wife has history of drug offences - Unacceptable risk that will fail to surrender into custody or will commit offences if granted bail - Bail refused - Bail Act 1977 (Vic), ss 3AAA, 4A, 4E.
CRIMINAL LAW - Application for bail - Where allegations of cultivating and trafficking not less than commercial quantity of cannabis and other related offence - Where time in custody will likely exceed likely non-parole period but not sentence if allegations proved - Where applicant has previously complied with bail and has no criminal record - Where applicant has wife with depression and toddler and newborn - Where surety offered to Court and applicant has opportunity of employment - Exceptional circumstances test satisfied - Where false statements made in visa and other applications - Where applicant has no legal right to work or connections to Victoria and access to false identify documentation and wife has history of drug offences - Unacceptable risk that will fail to surrender into custody or will commit offences if granted bail - Bail refused - Bail Act 1977 (Vic), ss 3AAA, 4A, 4E.
CRIMINAL LAW - Bail - Applicant charged with murder and arson causing death - Jury empanelled to hear trial discharged without verdict following failure of major prosecution witness to answer subpoena - Witness fled jurisdiction - Witness extradited to Victoria - Witness admitted to bail on strict conditions to attend Court for pre-recording of evidence - Date fixed for pre-recording of evidence - Whether exceptional circumstances exist that justify the grant of bail - Strength of prosecution case - Delay - Prosecution concession that applicant does not pose an unacceptable risk of endangering the safety or welfare of any person, interfering with a witness or failing to surrender into custody - Considerations concerning applicant's Aboriginality - Bail refused - Bail Act 1977, ss 1B, 3SSS, 3A, 4, 4A, 4E.
CRIMINAL LAW - Bail - Applicant charged with murder and arson causing death - Jury empanelled to hear trial discharged without verdict following failure of major prosecution witness to answer subpoena - Witness fled jurisdiction - Witness extradited to Victoria - Witness admitted to bail on strict conditions to attend Court for pre-recording of evidence - Date fixed for pre-recording of evidence - Whether exceptional circumstances exist that justify the grant of bail - Strength of prosecution case - Delay - Prosecution concession that applicant does not pose an unacceptable risk of endangering the safety or welfare of any person, interfering with a witness or failing to surrender into custody - Considerations concerning applicant's Aboriginality - Bail refused - Bail Act 1977, ss 1B, 3SSS, 3A, 4, 4A, 4E.
BAIL APPLICATION - Whether new bail laws apply - Whether exceptional circumstances justifying grant of bail - Whether unacceptable risk of committing further offences, endangering members of the public and interfering with witnesses - Where residential placement at Odyssey House in Benalla available - Where trial dates listed in August and November 2025 - Bail Act 1977 (Vic) ss, 4AA, 4A, 4D, 34(24B) - Bail Amendment Act 2025 (Vic) s 10 - Re Pham [2024] VSC 143 - Re Tiburcy [2024] VSC 163.
BAIL APPLICATION - Whether new bail laws apply - Whether exceptional circumstances justifying grant of bail - Whether unacceptable risk of committing further offences, endangering members of the public and interfering with witnesses - Where residential placement at Odyssey House in Benalla available - Where trial dates listed in August and November 2025 - Bail Act 1977 (Vic) ss, 4AA, 4A, 4D, 34(24B) - Bail Amendment Act 2025 (Vic) s 10 - Re Pham [2024] VSC 143 - Re Tiburcy [2024] VSC 163.
CRIMINAL LAW - Sentence - Murder - Plea of guilty - Young offender - Autism spectrum disorder - Induced delusional disorder - Nature and gravity of offending - Impact on victims - Moral culpability - Delay - Impact of imprisonment - Prospects of rehabilitation - Current sentencing practices - Sentenced to 15 years' imprisonment - Non-parole period of 10 years - Children, Youth and Families Act 2005 (Vic), s 471 - Crimes Act 1958 (Vic), s 3 - Sentencing Act 1991 (Vic), ss 3, 5, 5B, 6AAA, 18.
CRIMINAL LAW - Sentence - Murder - Plea of guilty - Young offender - Autism spectrum disorder - Induced delusional disorder - Nature and gravity of offending - Impact on victims - Moral culpability - Delay - Impact of imprisonment - Prospects of rehabilitation - Current sentencing practices - Sentenced to 15 years' imprisonment - Non-parole period of 10 years - Children, Youth and Families Act 2005 (Vic), s 471 - Crimes Act 1958 (Vic), s 3 - Sentencing Act 1991 (Vic), ss 3, 5, 5B, 6AAA, 18.
CRIMINAL LAW - Sentence - Intentionally causing serious injury and common law assault - Verbal and physical altercation with wife at house party - Male house party guest called to assist stabbed soon after - Verbal and physical altercation with male victim prior to stabbing - Multiple stable wounds to torso, male victim would have died without urgent medical care - Early plea of guilt accepted for assault charge against wife - Offer to plead guilty to lesser charge not accepted with relation to stabbing - Male victim posed no threat to accused at time of offending - Lack of remorse for stabbing - Total effective sentence of 9 years and one month - R v Verdins (2007) 16 VR 269 - Sentencing Act 1991 (Vic) - Crimes Act 1958 (Vic) - Pihlgren v R [2024] VSCA 47.
CRIMINAL LAW - Sentence - Intentionally causing serious injury and common law assault - Verbal and physical altercation with wife at house party - Male house party guest called to assist stabbed soon after - Verbal and physical altercation with male victim prior to stabbing - Multiple stable wounds to torso, male victim would have died without urgent medical care - Early plea of guilt accepted for assault charge against wife - Offer to plead guilty to lesser charge not accepted with relation to stabbing - Male victim posed no threat to accused at time of offending - Lack of remorse for stabbing - Total effective sentence of 9 years and one month - R v Verdins (2007) 16 VR 269 - Sentencing Act 1991 (Vic) - Crimes Act 1958 (Vic) - Pihlgren v R [2024] VSCA 47.
PRACTICE AND PROCEDURE - Summary enforcement of terms of settlement - Review by judge of judicial registrar's decison - Proceedings issued in relation to default under loan agreements - Proceedings settled following mediation - Deed of Settlement executed by parties - Default by first defendant in respect of final payment due under Deed of Settlement - Plaintiff obtained judgment - First defendant objected and sought review of the decision of the Court constituted by a judicial registrar - Basis for review - Whether Deed of Settlement was not supported by consideration - Whether Deed of Settlement was not a bona fide compromise - Whether loan agreements underlying Deed of Settlement were unenforceable because there had been non-compliance with the National Consumer Credit Protection Act and the National Consumer Credit Code - Interests of justice.
PRACTICE AND PROCEDURE - Summary enforcement of terms of settlement - Review by judge of judicial registrar's decison - Proceedings issued in relation to default under loan agreements - Proceedings settled following mediation - Deed of Settlement executed by parties - Default by first defendant in respect of final payment due under Deed of Settlement - Plaintiff obtained judgment - First defendant objected and sought review of the decision of the Court constituted by a judicial registrar - Basis for review - Whether Deed of Settlement was not supported by consideration - Whether Deed of Settlement was not a bona fide compromise - Whether loan agreements underlying Deed of Settlement were unenforceable because there had been non-compliance with the National Consumer Credit Protection Act and the National Consumer Credit Code - Interests of justice.
PRACTICE AND PROCEDURE - Redaction of discovered documents - Scope of further discovery.
PRACTICE AND PROCEDURE - Redaction of discovered documents - Scope of further discovery.
County Court Procedure Rules 2018; Legal Identity of Defendants (Organisational Child Abuse) Act 2018
RECOVERY OF MONEYS OUTLAID FOR STAMP DUTY - Outlay of funds for stamp duty by plaintiff to enable defendant to complete purchase of rural property - Whether creating resulting trust in favour of plaintiff - Whether creating constructive trust in favour of plaintiff no trust created - Amount outstanding as common law debt - Defence of repayment by third party rejected.
RECOVERY OF MONEYS OUTLAID FOR STAMP DUTY - Outlay of funds for stamp duty by plaintiff to enable defendant to complete purchase of rural property - Whether creating resulting trust in favour of plaintiff - Whether creating constructive trust in favour of plaintiff no trust created - Amount outstanding as common law debt - Defence of repayment by third party rejected.
CONTRACTS - Building and Construction Industry Security of Payment regime - Building contract - Building and Construction Industry Security of Payments Act 2002 - Valid payment claims made - No allowable defences established - Interest - Application for a stay.
CONTRACTS - Building and Construction Industry Security of Payment regime - Building contract - Building and Construction Industry Security of Payments Act 2002 - Valid payment claims made - No allowable defences established - Interest - Application for a stay.
APPLICATIONS FOR SPECIFIC PERFORMANCE OF SALE OF LAND - Contracts of sale for "off the plan" industrial zoned allotments - Contracts conditional upon registration of plan of subdivision within 24 months of making of contracts - Plan of subdivision not registered within 24-month period - Vendor giving notice of cancellation of contracts prior to lapse of 24-month period - Whether authorised by special conditions of contract - Whether entitlement to specific performance barred by laches - Cancellation not authorised - Defence of laches fails because of lack of proof of prejudice to defendant - Specific performance of contracts decreed.
APPLICATIONS FOR SPECIFIC PERFORMANCE OF SALE OF LAND - Contracts of sale for "off the plan" industrial zoned allotments - Contracts conditional upon registration of plan of subdivision within 24 months of making of contracts - Plan of subdivision not registered within 24-month period - Vendor giving notice of cancellation of contracts prior to lapse of 24-month period - Whether authorised by special conditions of contract - Whether entitlement to specific performance barred by laches - Cancellation not authorised - Defence of laches fails because of lack of proof of prejudice to defendant - Specific performance of contracts decreed.
WORKERS' COMPENSATION - Rejected claim - Plaintiff driven to work by a co-worker - Co-worker parked in Yarra Park carpark in surrounds of MCG - Plaintiff was injured when he fell on way to sign on as a security guard at MCG - Whether injury arose out of or in the course of employment - Whether injury deemed to arise out of or in the course of employment - Preliminary ruling - Workplace Injury Rehabilitation and Compensation Act 2013 - Section 39(1) - Section 46(1)(b).
WORKERS' COMPENSATION - Rejected claim - Plaintiff driven to work by a co-worker - Co-worker parked in Yarra Park carpark in surrounds of MCG - Plaintiff was injured when he fell on way to sign on as a security guard at MCG - Whether injury arose out of or in the course of employment - Whether injury deemed to arise out of or in the course of employment - Preliminary ruling - Workplace Injury Rehabilitation and Compensation Act 2013 - Section 39(1) - Section 46(1)(b).