Library Bulletin

ESTOPPEL - Equitable estoppel - Proprietary estoppel - Proprietary estoppel by encouragement - Where promisor made promise to bequeath property to promisee - Where promisor did not further encourage promisee to rely on promise after making promise - Where promisee acted to his detriment in reliance on promise - Where promisor did not bequeath property to promisee - Whether promisee required to prove promisor undertook subsequent acts of encouragement after initial promise - Whether promisee required to prove promisor had actual knowledge that promisee would act or had acted in reliance on promise to promisee's detriment.

WORDS AND PHRASES - "actual knowledge", "clear and unequivocal promise", "constructive knowledge", "detriment", "detrimental reliance", "encouragement", "encouragement from a promise", "equitable estoppel", "estoppel", "estoppel by acquiescence", "estoppel by encouragement", "estoppel by encouragement from a promise", "imperfect gift", "proprietary estoppel", "proprietary estoppel by encouragement", "reliance", "subsequent encouragement", "unconscionable".

TORT - Negligence - Concurrent wrongdoers - Proportionate liability - Where owners corporation claimed damages from developer and head building contractor for construction of building - Where claim for economic loss arising from breach of duty imposed on person carrying out construction work by s 37 of Design and Building Practitioners Act 2020 (NSW) ("DBPA") - Where duty to exercise reasonable care to avoid economic loss caused by defects in or related to building arising from construction work - Whether Pt 4 of Civil Liability Act 2002 (NSW) can limit liability for damages for breach of s 37 of DBPA.

WORDS AND PHRASES - "apportionable claim", "building work", "concurrent wrongdoers", "construction work", "direct liability", "duty of care", "non-delegable duty", "personal liability", "proportionate liability", "statutory duty", "vicarious liability".

Civil Liability Act 2002 (NSW), ss 5Q, 34, 34A, 35, 39(a).

Design and Building Practitioners Act 2020 (NSW), ss 7(3), 32, 33, 34, 35, 36(1), 37, 38, 39, 40, 41.

DAMAGES - Assessment - Breach of contract - Scope of contractual duty - Remoteness - Where appellant employed by respondent - Where incident involving appellant occurred during travel for appellant's work duties - Where appellant provided with "stand down letter" outlining allegations arising from incident - Where previous reports of appellant's aggressive behaviour - Where disciplinary meeting held for appellant to respond to allegations in stand down letter - Where employment terminated - Where decision to terminate employment based upon allegations of previous aggressive behaviour not put to appellant contrary to respondent's disciplinary procedure - Where appellant diagnosed with major depressive disorder - Whether liability for psychiatric injury caused by employer's breach beyond scope of employer's duty concerned with manner of dismissal - Whether rule in Addis v Gramophone Company Ltd [1909] AC 488 precludes recovery of damages for breach of contract in respect of psychiatric injury caused by manner of dismissal - Whether damage too remote.

CONTRACT - Incorporation of terms - Employment contracts - Policies and procedures - Where employer's disciplinary procedure in enterprise agreement and policy document - Where contract of employment required employee to agree to comply with employer's policies and procedures - Whether disciplinary procedure incorporated as term of employment contract.

NEGLIGENCE - Duty of care - Whether employers owe duty to employees to provide safe system of investigation and decision-making with respect to discipline and termination of employment.

DAMAGES - Undertaking as to damages - Where interlocutory injunction obtained to prevent manufacture or sale of generic pharmaceutical products - Where compensation sought for loss suffered as result of generic products not being listed on Pharmaceutical Benefits Scheme ("PBS") - Whether generic products would have been listed on PBS but for interlocutory injunction - Counter-factual approach - Whether onus of proof discharged.

APPEALS - Standard of review - Ultimate appellate court - Where concurrent factual findings of lower courts - Whether special or exceptional circumstances - Whether plain injustice or clear error - Whether concurrent findings not clearly wrong - Whether concurrent findings open and compelling.

ONUS OF PROOF - Shifting evidential onus - Whether rigid legal rule applied for proof of loss arising from undertaking as to damages.

WORDS AND PHRASES - "clear error", "concurrent findings", "counter-factual", "evidential onus", "interlocutory injunction", "onus of proof", "plain injustice", "special or exceptional circumstances", "standard of review", "ultimate appellate court", "undertaking as to damages".

COSTS - Where alternative claims made - Where alternative claim withdrawn prior to trial - Whether costs should be awarded against the applicants under r 63.15 of the Supreme Court (General Civil Procedure) Rules 2015 - Where election made in a timely manner prior to trial - Where multiple amendments to pleadings - Where trial contained to one day - Appropriate to 'otherwise order' such that costs follow event.

Supreme Court (General Civil Procedure) Rules 2015 rr 26.08, 63.15, 63.17.

ADMINISTRATIVE LAW - Judicial review - Internal arbitration of allegation of misconduct by Councillor - Finding of misconduct arising from content of social media post on Councillor's private account relating to a matter for decision by Council - Whether trial judge erred in finding the expression 'in performing the role of a Councillor' applied to the Councillor's conduct - Whether 'decision making' involved acquisition of information about 'the diversity of interests and needs of the municipal community' - Democratic nature of local government - Arbitrator the sole contradictor - No breach of Hardiman principle - Application for appeal to appeal granted - Appeal dismissed.

Constitution Act 1975 s 74A; Local Government Act 2020 ss 4, 8, 9, 28, 139, 142, 143, 144; Local Government (Governance and Integrity) Regulations 2020 r 12, Schedule 1.

R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, applied; R v A2 (2019) 269 CLR 507, applied.

PRACTICE AND PROCEDURE - Appeal - Application for security for costs in sum of $73,570 - Whether unacceptable risk that respondent, if successful, will be unable to recover its costs of application for leave to appeal due to impecuniosity of applicant - Whether appropriate to make order for security for costs in all the circumstances - Quantum of security for costs where issues on appeal relatively confined - Security for costs ordered in sum of $30,000.

PRACTICE AND PROCEDURE - Application for summary dismissal - Where application for leave to appeal concerns Family Violence Intervention Order ('FVIO') - Whether application to appeal lacks utility because FVIO has expired - Arguable that application does not lack utility - Application for summary dismissal refused.

PRACTICE AND PROCEDURE - Application for security for costs - Applicant for leave to appeal resident outside jurisdiction and has no substantial assets in jurisdiction - No evidence that order for security would stifle reasonably arguable claim - Applicant's case on application for leave to appeal plausible - Application for leave to appeal raises issue of public interest - Respondent's delay in seeking order for security relatively short - Application for security for costs granted.

PRACTICE AND PROCEDURE - Costs - Court refused application for leave to appeal and determined it was 'totally without merit' pursuant to s 14D(3) of Supreme Court Act 1986 - Whether respondent entitled to award of costs on indemnity basis - Whether applicant knew or should have known that case was hopeless - Where applicant self-represented litigant - Applicant did not appear to understand that case was hopeless - Order for costs on standard basis.

Macedon Ranges Shire Council v Thompson (2009) 170 LGERA 41; Riaz v City of Greater Dandenong [2023] VSCA 190; Cai v County Court of Victoria [2017] VSCA 278, referred to.

TORTS - Personal injury - Negligence - Sexual abuse of child spectator by volunteer with sporting club - Duty of care - Scope of duty of care owed by occupier football club to child spectators - Extent of admitted duty of care - Whether trial judge erred in ruling (and directing the jury accordingly) that applicant owed respondent a duty of care which was broader than occupier's liability - Whether trial judge erred in failing to charge jury that applicant specifically denied the scope of any duty it owed respondent as a spectator could extend to the risk of sexual abuse - No error.

Wrongs Act 1958, pt IIA.

TORTS - Duty of care - Scope of duty of care - Whether trial judge erred by charging the jury that scope of any duty of care which could be found to be owed by applicant to child spectators attending the applicant's premises could extend to a risk of sexual abuse by a person for whose actions applicant was not vicariously liable - No error - Judge's direction to the jury consistent with evidence adduced at trial - Content of duty wider than that owed under pt IIA of the Wrongs Act.

Sullivan v Moody (2001) 207 CLR 562, applied.

Griffin v Brisbane City Council [2024] QCA 157; Mallonland Pty Ltd v Advanta Seeds Pty Ltd (2024) 98 ALJR 956; Woods v Multi- Sport Holdings Pty Ltd (2002) 208 CLR 460; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Caltex Refineries v Stavar (2009) 75 NSWLR 649, discussed.

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; Smith v Leurs (1945) 70 CLR 256, considered/distinguished.

EVIDENCE - Jury verdict - Whether jury's verdict as to liability was one which no jury acting reasonably could have reached on the evidence most favourable to respondent or was against the weight of the evidence - Whether jury properly instructed could have concluded on the evidence that applicant knew or ought to have known of risk of sexual abuse by a volunteer in relevant period - Verdict reasonably open on the evidence.

Swain v Waverley Municipal Council (2005) 220 CLR 517, applied.

Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657, discussed.

PRACTICE AND PROCEDURE - Conduct of trial - Whether trial was unfair and miscarried by reason of the effect of the alleged deferral of applicant's summary dismissal application made pursuant to s 62 of the Civil Procedure Act 2010 until the close of evidence - Trial judge did not refuse to hear or require deferral of summary dismissal application - Timing of application result of applicant's decision - Applicant not compelled to adduce evidence on vicarious liability, aggravated and exemplary damages - Forensic choices made by applicant's trial counsel to adduce evidence, not to seek a redirection/correction of a misdirection and not to request directions had nothing to do with judge - Applicant bound by conduct of trial counsel - Judge's directions clear - No substantial wrong or miscarriage.

Supreme Court (General Civil Procedure) Rules 2015, r 64.37(2).

General Motors- Holden's Pty Ltd v Moularas (1964) 111 CLR 234; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; Water Board v Moustakas (1988) 180 CLR 491, applied.

EVIDENCE - Deceased witness - Whether trial was unfair and miscarried as a result of trial judge's decision to admit into evidence parts of police record of interview of deceased witness - Admission of statements in redacted record of interview did not create danger of unfair prejudice that substantially outweighed probative value.

Evidence Act 2008, ss 63, 135.

DPP (Cth) v Dougas [2022] NSWCCA 19, applied.

PRACTICE AND PROCEDURE - Comments by counsel - Directions - Whether trial was unfair and miscarried by reason of cumulative effect of the jury being exposed to comments made by respondent's counsel during closing address including references to damages awards in mesothelioma cases, prejudicial material concerning applicant's capacity to compensate respondent, personal commentary, and pejorative remarks about a witness - Whether judge's failure to discharge jury resulted in a substantial miscarriage of justice - Any prejudice in counsel's comments cured by judge's directions - No substantial miscarriage of justice.

Civil Procedure Act 2010, s 62.

Murray Valley Aboriginal Cooperative Ltd v Havea [2020] VSCA 243; Croll v McRae (1930) 30 SR (NSW) 137; Smout v Smout [1989] VR 845; Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478, discussed.

DAMAGES - Psychiatric injury caused by historical sexual abuse - Pain and suffering damages - General damages for pain and suffering and loss of enjoyment of life assessed by jury at $3,250,000 - Whether award manifestly excessive - Whether award affected by irrelevant and punitive considerations - General damages award not one that reasonable jury properly instructed, confining itself to relevant matters, could have arrived at - Award excessive - Whether appellate court should reassess general damages or order retrial - Reassessment of general damages in sum of $850,000.

DAMAGES - Economic loss - Damages for past loss of earnings and loss of earning capacity assessed by jury at $2,605,578 - Whether hypothetical employment scenario underlying calculations of respondent's accountant adopted by jury had evidentiary basis - No basis for jury verdict - Jury verdict founded on speculation and made no allowance for adverse contingencies - Reassessment of economic loss in sum of $1,700,000.

Supreme Court Act 1986, s 14(1).

Supreme Court (General Civil Procedure) Rules 2015, r 47.02.

Civil Procedure Act 2010, ss 7, 8, 9.

The Bishop of The Roman Catholic Diocese of Wagga Wagga, Mark Edwards v TJ (a pseudonym) [2024] VSCA 262; Backwell v AAA (1997) 1 VR 182; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; Van Gervan v Fenton (1992) 175 CLR 327; Paul v Rendell (1981) 34 ALR 569; Lonergan v The Trustees of the Sisters of St Joseph [2022] VSCA 208; ZYX v Cable (No 5) (2023) 111 SR (WA) 104; Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; Lapetina v Elgee Park Pty Ltd [2024] VSCA 39; Palmer v Clark (1989) 19 NSWLR 158; Saltalamacchia v Zamagias [2024] NSWCA 184; Electrolux Pty Ltd v Siniakis [1998] 1 VR 29, discussed.

CSR Readymix (Australia) Pty Ltd v Payne [1998] 2 VR 505, distinguished.

DAMAGES - Economic loss - Whether trial judge erred in ruling that indexation of past loss of earnings to allow for inflation was allowable - No error - Indexation of past losses consistent with settled principle of compensation to put plaintiff in same position as would have been if the tort had not been committed - Interest from the date of the writ included in respondent's accountant's damages assessment adopted by the jury - Whether interest calculated from the date of writ in circumstances where indexation had already been applied resulted in interest on interest in contravention of s 60(2)(a) of the Supreme Court Act 1986 - No interest on interest as indexation removed from rate of penalty interest applied.

Supreme Court Act 1986, ss 60, 60(2)(a).

O'Brien v McKean (1968) 118 CLR 540, applied.

MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; Struthers v Harris [1983] WAR 123, discussed.

DAMAGES - Economic loss - Discount rate for future economic loss - Whether trial judge erred in directing jury that calculations for future economic loss were required to be discounted by 3% rather than 5% following the reasoning in PCB v Geelong [2021] VSC 633 - Whether s 28C(2)(a) of the Wrongs Act 1958, which excludes operation of Part VB if the act or omission 'concerned' in the award of damages is sexual assault or sexual misconduct, is confined to the act or omission of the defendant - Section 28C(2)(a) not confined to the act or omission of the defendant - No error in direction to apply 3% discount rate.

Wrongs Act 1958, pt VB, pt VBA, ss 21, 28C(2)(a), 28LC.

PCB v Geelong College [2021] VSC 633; Victoria v Thompson (2019) 58 VR 583, discussed.

NEGLIGENCE - Duty of care - Foreseeability of risk of psychiatric injury - Vicarious trauma - Mental health support worker - Alleged unreasonable exposure to vicarious trauma during home visits and after return to work in administrative capacity - Whether judge erred in finding risk of injury was foreseeable at date employee first disclosed psychological trauma to employer - Undisputed evidence that employer was aware of vicarious trauma and inherent risk to employees performing applicant's role prior to date of disclosure - Breach - Whether judge erred in finding employer responded reasonably to disclosure and made appropriate return to work arrangements - No error - Employer response reasonable - Employee's further exposure to vicarious trauma outside return to work arrangements - Leave to appeal granted - Appeal dismissed.

Wyong Shire Council v Shirt (1980) 146 CLR 40, applied.

New South Wales v Fahy (2007) 232 CLR 486; Vairy v Wyong Shire Council (2025) 23 CLR 422; Kozarov v Victoria (2022) 273 CLR 115; Koehler v Cerebos (Australia) Limited (2005) 222 CLR 44; Karzi v Toll Pty Ltd [2024] NSWCA 120; Bersee v State of Victoria (Department of Education and Training) (2022) 70 VR 260; Rosenberg v Percival (2001) 205 CLR 434, discussed.

NEGLIGENCE - Application for leave to appeal judgment entered on jury verdict - Applicant severely injured in dog attack while working as water meter reader - Applicant sought damages from respondent employer, alleging negligent failure to provide dog safety training and/or animal repellent spray - Applicant claimed training and/or spray would have avoided attack, or alternatively, caused injuries to be less severe - Judge directed jury not to consider alternative 'less severe injury' case - Majority verdict for respondent on primary 'no injury' case - Judge erred in directing jury not to consider 'less severe injury' case - Victoria v Bryar (1970) 44 ALJR 174; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, applied.

CIVIL PROCEDURE - Misdirection by trial judge - Whether judgment should be set aside - Whether misdirection occasioned substantial wrong or miscarriage in trial - Respondent failed to establish that proper direction could not have made difference to outcome of trial - Substantial miscarriage - Power to set aside judgment and order retrial enlivened - When error occasions no substantial wrong or miscarriage, difference between residual discretion to refuse leave to appeal notwithstanding real prospect of success and prohibition against ordering new trial - Supreme Court Act 1986, s 14C, Supreme Court (General Civil Procedure) Rules 2015, rr 64.37(1)-(2); Civil Procedure Act 2010, ss 7-8 - Balenzuela v De Gail (1959) 101 CLR 226; Weiss v The Queen (2005) 224 CLR 300; Nobarani v Mariconte (2018) 265 CLR 236; Tory v Megna [2007] NSWCA 13; Kennedy v Shire of Campaspe [2015] VSCA 47, considered.

CIVIL PROCEDURE - New trial - Material misdirection by trial judge - Applicant sought new trial in County Court on all issues - Respondent sought determination by Court of Appeal of 'less severe injury' case only with retention of jury verdict on 'no injury' case - Whether Court of Appeal empowered to set aside judgment but retain jury verdict - Clear power under Supreme Court Act 1986, s 14(1) - Whether Court of Appeal should determine 'less severe injury' case alone, or remit proceeding for new trial on all issues - Discretionary considerations relevant to choosing between ordering a new trial and Court of Appeal giving judgment - Leave to appeal granted - Appeal allowed - Judgment set aside, proceeding remitted for new trial on all issues - Supreme Court (General Civil Procedure) Rules 2015, r 64.37; Supreme Court Act 1986, s 14; Civil Procedure Act 2010, ss 7-8 - Pateman v Higgin (1957) 97 CLR 521; Murphy v Mark [1977] VR 316; David Syme & Co Ltd v Mather [1977] VR 516; Vandeloo v Waltons Ltd [1976] VR 77; Coroneo v Kurri Kurri and South Maitland Amusement Co Ltd [1934] 51 CLR 328, considered.

BUILDING AND CONSTRUCTION - Notice of contention - Where final payment claims for amounts allegedly owing under building contracts - Where amounts claimed equivalent to the remaining monies retained by the principal as security - Whether the payment claims were payment claims for the purpose of the Building and Construction Industry Security of Payment Act 2002 ('Act') - Payment claims were made under a construction contract - Alternatively, payment claims were for 'construction work' for the purposes of the Act - Payment claims were valid payment claims for the purposes of the Act - No error by the judge.

BUILDING AND CONSTRUCTION - Whether contracts made 'express provision' for calculation of a claim for final payment under the Act - Whether, upon proper construction of contracts, unpaid amounts were due and payable under the Act absent a final certificate - Payment claims, as adjusted by adjudicator, were due and payable under the Act - Alternatively, s 48 of the Act would void contractual clauses if inconsistent with entitlement under the Act - Leave to appeal granted - Appeal allowed.

Building and Construction Industry Security of Payment Act 2002, ss 9, 10, 12, 23, 48.

Brodyn Pty Ltd (t/as Time Cost & Quality) v Davenport (2004) 61 NSWLR 421; Fifty Property Investments Pty Ltd v O'Mara [2006] NSWSC 428; Olbourne v Excell Building Corp Pty Ltd [2009] NSWSC 349; Abacus Funds Management Ltd v Davenport [2003] NSWSC 1027; Transgrid v Siemens Ltd (2004) 61 NSWLR 521; John Holland Pty Ltd v Roads & Traffic Authority of New South Wales [2007] NSWCA 19; Trysams Pty Ltd v Club Constructions (NSW) Pty Ltd [2008] NSWSC 399; SSC Plenty Road Pty Ltd v Construction Engineering (Aust) Pty Ltd [2016] VSCA 119; Saville v Hallmarc Construction Pty Ltd [2015] VSCA 318; S.H.A. Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd [2020] QSC 307; EHome Construction Pty Ltd v GCB Constructions Pty Ltd [2020] QSC 291; Gantley Pty Ltd v Phoenix International Group Pty Ltd [2010] VSC 106; Cool Logic Pty Ltd v Citi- Con (Vic) Pty Ltd [2020] VCC 1261; Whitehorse Box Hill Pty Ltd v Alliance CG Pty Ltd [2022] VSC 22; Watpac Constructions Pty Ltd v Collins & Graham Mechanical Pty Ltd as Trustee for the CGM Unit Trust [2020] VSC 637, considered; EnerMech Pty Ltd v Acciona Infrastructure Projects Australia Pty Ltd [2024] NSWCA 162; Farah Constructions Pty Ltd v Say- Dee Pty Ltd (2007) 230 CLR 89, applied. Punton's Shoes Pty Ltd v Citi- Con (Vic) Pty Ltd [2020] VSC 514, not followed; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; Protectavale Pty Ltd v K2K Pty Ltd [2008] FCA 1248, discussed.

BUILDING AND CONSTRUCTION - Breach of statutory warranties by builder in relation to non-compliant cladding - State subrogated to rights of owners - Section 137F(3) of the Building Act 1993 provides that right or remedy to which State subrogated enforceable against officers of entity - Whether s 137F(3) has retrospective operation - Section 137F(3) applies retrospectively - Leave to appeal refused.

BUILDING AND CONSTRUCTION - Section 137F(4) of the Building Act 1993 provides that right or remedy under s 137F(3) not enforceable against officer of entity where act or omission by entity occurred without knowledge or consent of officer - Whether officer's liability depends on knowledge of non-compliant nature of cladding - Knowledge of non-compliant nature of cladding not required - Leave to appeal refused.

BUILDING AND CONSTRUCTION - Whether judge erred in finding building permit invalid - Nothing turns on judge's finding - Leave to appeal refused.

BUILDING AND CONSTRUCTION - Whether judge erred in finding State established quantum of liability - State proved reasonable costs of rectification - Leave to appeal refused.

PRACTICE AND PROCEDURE - Costs - Whether judge erred in awarding costs in relation to State's intervention prior to parties being joined - Judge erred in applying s 137F in relation to costs where State brought proceeding in own name - Leave to appeal granted - Appeal allowed - Applicant to pay State's costs from time of joinder only.

JURISDICTION - County Court proceeding heard on referral from Victorian Civil and Administrative Tribunal ('VCAT') - VCAT joined parties to proceeding - Whether VCAT's joinder orders invalid because matter in federal jurisdiction - Sections 57F and 57G would validate joinder orders even if matter in federal jurisdiction - Leave to amend application for leave to appeal refused.

Building Act 1993, s 137F; Charter of Human Rights and Responsibilities Act 2006, s 27; Domestic Building Contracts Act 1995, s 8; Victorian Civil and Administrative Tribunal 1998, ss 57F, 57G, 57I.

Bellgrove v Eldridge (1954) 90 CLR 613; Maxwell v Murphy (1957) 96 CLR 261; Owners SP 92450 [2023] NSWCA 114; Productivity Partners v Australian Competition and Consumer Commission (2024) 98 ALJR 1021; Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272, considered.

DEFAMATION - Whether jury decision that alleged defamatory imputations were not conveyed was unreasonable - Answers open to jury acting reasonably and properly instructed - Leave to appeal refused.

Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485; John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657; Lewis v Daily Telegraph Ltd [1964] AC 234; Mirror Newspapers v Harrison (1982) 149 CLR 293; Ross v Gruma Oceania Pty Ltd [2022] VSCA 87; Trkulja v Google LLC (2018) 263 CLR 149, considered.

CRIMINAL LAW - Appeal - Conviction - Sexual penetration of a child under 12 and associated offences - Hearsay - Evidence of penetration was previous representation of child complainant - Whether unreliable evidence warning required - Whether verdict unsafe and unsatisfactory - Extension of time granted - Appeal allowed - Verdict of guilty of sexual assault of child under 16 substituted.

CRIMINAL LAW - Appeal - Conviction - Kidnapping - Rape with aggravating circumstances - Gross indecency with a person under 16 - Whether evidence of complainant's distress admissible as independent evidence - Complainant's distress not capable of being used as independent evidence - Judge's invitation to jury to use complainant's distress as independent evidence caused substantial miscarriage of justice - Leave to appeal granted - Appeal allowed.

CRIMINAL LAW - Appeal - Conviction - Whether judge should have warned jury that distress evidence carries little weight - Question to be determined in light of Jury Directions Act 2015 - Does not arise as evidence should not have been admitted.

CRIMINAL LAW - Appeal - Conviction - Whether prosecutor impermissibly sought to rehabilitate complainant's credit - Error in prosecutor's examination but no miscarriage of justice.

CRIMINAL LAW - Appeal - Conviction - Whether defence failed to cross-examine on circumstances of complainant's lie - No miscarriage of justice given forensic decision not to cross-examine.

CRIMINAL LAW - Appeal - Conviction - Whether prosecutor's submissions inaccurate as to circumstances of complainant's lie - No miscarriage of justice due to prosecutor's withdrawal and judge's direction to jury.

Evidence Act 2008, ss 55, 56, 66, 136, 137, 164; Jury Directions Act 2015, ss 11, 12, 14, 15, 16, 54D, 54K.

Charles (a pseudonym) v The Queen [2022] VSCA 166; Churchill (a pseudonym) v The King [2024] VSCA 151; Flora v The Queen (2013) 233 A Crim R 320; Papakosmas (1999) 196 CLR 297; Paull v The Queen [2021] VSCA 339; R v Bauer (2018) 266 CLR 56; R v Brdarovski (2006) 166 A Crim R 366; R v Byczko (No 2) (1977) 17 SASR 460; R v Collings [1976] 2 NZLR 104; R v Dhir (2019) 133 SASR 452; R v Flannery [1969] VR 586; R v Gulliford (2004) 148 A Crim R 558; R v Moana [1979] 1 NZLR 181; R v Redpath (1962) 46 Cr App Rep 319; R v Rogers [2008] VSCA 125; R v Sailor [1994] 2 Qd R 342; R v Schlaefer (1984) 37 SASR 207; R v Williams [2010] 1 Qd R 276; Seccull v The King (2022) 69 VR 454, considered.

CRIMINAL LAW - Conviction - Application for leave to appeal - Applicant charged on indictment with two charges of sexual assault and five charges of rape - Jury returned verdicts of guilty on one charge of sexual assault and one charge of rape (charge 6) - Applicant and complainant were work colleagues and friends - Applicant took complainant back to his home after work function - Complainant intoxicated - Complainant fell asleep in applicant's bed - Complainant alleged she was repeatedly woken by applicant penetrating her vagina with his penis - Charge 6 charged one sexual penetration only - Whether charge 6 bad for latent duplicity - Charge 6 not latently duplicitous - Leave to appeal refused.

CRIMINAL LAW - Conviction - Application for leave to appeal - Whether verdicts inconsistent - Verdicts can be reconciled and are logically explicable - Different verdicts product of the jury carefully considering evidence - Verdicts not unreasonable - Leave to appeal refused.

CRIMINAL LAW - Sentence - Application for leave to appeal - Applicant photographed complainant while complainant sleeping - Use of an optical surveillance device - Summary offence - Whether sentence manifestly excessive - Serious example of the offence - Leave to appeal refused.

CRIMINAL LAW - Sentence - Application for leave to appeal - Use of an optical surveillance device - Summary offence - Whether judge imposed sentence on the wrong factual basis - Judge mistakenly proceeded upon wrong factual basis - Prosecution cannot depart from way it conducted the plea - Material error established - No reasonable prospect that the Court would reduce the total effective sentence despite error in the sentence first imposed - Leave to appeal refused.

Crimes Act 1958 (as amended by the Crimes Amendment (Sexual Offences) Act 2016), ss 38, 40; Criminal Procedure Act 2009, sch 1 cl 4A; Surveillance Devices Act 1999, s 7.

Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77; S v The Queen (1989) 168 CLR 266; [1989] HCA 66; Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26; MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35; R v Khouzame (1999) 108 A Crim R 179; [1999] NSWCCA 173; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; R v Beary (2004) 11 VR 151; [2004] VSCA 229; Rixon v Thompson (2009) 22 VR 323; [2009] VSCA 84; PPP v The Queen (2010) 27 VR 68; [2010] VSCA 110; Tognolini v The Queen (2011) 32 VR 104; [2011] VSCA 113; Mourkakos v The Queen [2018] VSCA 26; Conolly (a pseudonym) v The Queen [2019] VSCA 125; Pate (a pseudonym) v The Queen [2019] VSCA 170; Johns v The Queen (2020) 22 MVR 160; [2020] VSCA 135, considered.

CRIMINAL LAW - Appeal - Sentence - Crown appeal - Sexual penetration of a child under 16 - Sexual assault of a child under 16 - Grooming for sexual conduct with a child under the age of 16 - Guilty pleas - Whether individual sentences, orders for cumulation and total effective sentence manifestly inadequate - Respondent leader of religious sect to which complainants' parents belonged - Respondent also a medical practitioner - Respondent accorded god-like status by cult members - Respondent used position and influence to create circumstances for offending - Repeated offending over months against two complainants aged 12 years - Offending objectively serious - High moral culpability - Limited mitigating factors - Remorse shown on day of sentencing - Prospects of rehabilitation not viewed as positively as by trial judge - Sentences imposed less than standard sentences - Importance of community protection and general deterrence - Serious sexual offender - Sentence manifestly inadequate - Appeal allowed - Respondent resentenced.

Sentencing Act 1991.

Director of Public Prosecutions v Nwigwe [2022] VSCA 14, distinguished.

CRIMINAL LAW - Appeal - Sentence - Crown appeal - Respondent convicted of incest, administering intoxicating substance for sexual purpose and child abuse material offences - Whether individual sentences for incest manifestly inadequate - Whether orders for cumulation manifestly inadequate - High gravity of incest offending against three children - Absence of remorse - Moderate to high risk of reoffending - Serious sexual offender - Importance of community protection - Importance of general deterrence - Bugmy principles of some relevance to moral culpability - Sentences on incest charges manifestly inadequate - Orders for cumulation manifestly inadequate - Appeal allowed - Respondent resentenced.

Crimes Act 1958; Sentencing Act 1991; Sentencing Amendment (Sentencing Standards) Act 2017.

DPP v Karazisis (2010) 31 VR 634, followed.

DPP v Dalgliesh (a pseudonym) (2017) 349 ALR 37; R v Sposito (Supreme Court of Victoria, 8 June 1993); DPP v G [2002] VSCA 6; DPP v Dalgliesh [2016] VSCA 148; DPP v Dalgliesh (a pseudonym) (2017) 349 ALR 37; DPP v Walsh (a Pseudonym) [2018] VSCA 172; DPP v Herrmann (2021) 290 A Crim R 110; Crawford (a pseudonym) v The Queen [2018] VSCA 113; Grantley (a pseudonym) v The Queen (2018) 272 A Crim R 340; Bugmy v The Queen (2013) 249 CLR 571, referred to.

CRIMINAL LAW - Conviction - Application for extension of time - Practice and procedure - Jury empanelment - Whether applicant given reasonable or adequate opportunity to exercise rights of challenge - Video of empanelment - No irregularity in procedure adopted - Extension of time refused.

CRIMINAL LAW - Conviction - Application for extension of time - Practice and procedure - Jury separation oath or affirmation - Whether separation oath or affirmation required after first jury separation - No irregularity - Extension of time refused.

CRIMINAL LAW - Conviction - Application for extension of time - Sexual penetration of child under 16 - Indecent act with child under 16 - Whether miscarriage of justice due to failure of Crown to call applicant's wife as witness - Whether prosecution coerced witness to change evidence - Whether police investigation sufficient - Whether verdicts of guilty unsafe and unsatisfactory - Whether complainant attested to truth of video-recorded statement - No error - Extension of time refused.

CRIMINAL LAW - Sentence - Application for extension of time - Whether sentences manifestly excessive - Extension of time granted - Appeal allowed - Appellant re-sentenced.

Juries Act 2000, ss 38, 39, 39(2A), 39(2B), 50; Criminal Procedure Act 2009, ss 367, 368(1)(c).

R v Apostilides (1984) 154 CLR 563, Whitehorn v The Queen (1983) 152 CLR 657, Pell v The Queen (2020) 268 CLR 123, applied; Gardner (a pseudonym) v The King [2024] VSCA 83, Parker (a pseudonym) v The King [2024] VSCA 209, R v Patton [1998] 1 VR 7, Youssef (a pseudonym) v The Queen [2019] VSCA 240, discussed.

CRIMINAL LAW - Appeal - Thirty-four charges of sexual offending over 10 incidents involving two complainants - Jury convicted applicant of ten charges - Whether verdicts of guilt inconsistent with acquittals where charged offences closely linked in time as part of same incident - Whether verdicts of guilt inconsistent with acquittals across different incidents - Whether acquittals meant that jury rejected complainant's credibility - Verdicts of guilt explicable on basis that evidence supporting each charge differed in quality or was corroborated, particularly on issues of complainant's age, consent and belief in consent.

CRIMINAL LAW - Appeal - Whether purported lies, inconsistencies and implausibilities in complainant's evidence rendered verdicts unreasonable - Discrepancies attributable to passage of more than 30 years since offending - Complainant's evidence not so improbable that it could not be accepted by a reasonable jury - Leave to appeal refused.

Abdel (a pseudonym) v The King [2024] VSCA 36; Brooks (a pseudonym) v The King [2024] VSCA 305; Frank (a pseudonym) v The King [2024] VSCA 37; Jones v The Queen (1997) 191 CLR 439; MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; Schliefert v The King [2024] VSCA 197; Sladek v The King [2024] VSCA 119; Sriranganathan v The King [2024] VSCA 257.

APPLICATION FOR LEAVE TO APPEAL DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.

CRIMINAL LAW - Sentence - Application for leave to appeal - Applicant guilty of armed robbery, two summary charges - Applicant 18 years old at time of offending, 19 years old at time of sentence - Total effective sentence 3 years 2 months, non-parole period 2 years 2 months - Manifest excess - Young offender - Whether wrong type of sentence - Whether judge erred by sentencing applicant to adult prison, not making Youth Justice Centre order - No error - Serious offence, relevant history of offending, guarded prospects of rehabilitation, assessed as unsuitable for Youth Justice Centre order - Sentence well open to judge - Leave to appeal refused.

Sentencing Act 1991, s 32.

Dinsdale v The Queen (2000) 202 CLR 321; Clarkson v The Queen (2011) 32 VR 361; DPP v Anderson (2013) 228 A Crim R 128; Scannell v The Queen [2014] VSCA 330; Moresco v The Queen [2018] VSCA 336; Franco v Director of Public Prosecutions (WA) (2022) 303 A Crim R 142; Simms v Geeson [2020] WASC 381, considered.

CRIMINAL LAW - Appeal - Sentence - Manslaughter - Guilty plea - Sentence of 10 years' imprisonment with non-parole period of 8 years - Unprovoked attack on stranger - Alcohol-fuelled violence - Applicant had history of violent offending while intoxicated - Community correction orders for prior offending not complied with - Whether non-parole period reasonably open to sentencing judge - Judge entitled to place limited weight on prospects of rehabilitation - Leave to appeal refused.

CRIMINAL LAW - Appeal - Sentence - Judge took into account that offending 'worryingly prevalent' - Whether judge impermissibly 'double counted' prevalence by treating as independent factor and as factor aggravating other sentencing considerations - Leave to appeal refused.

Stefani v The Queen [2024] VSCA 29, considered; Cummins (a pseudonym) v The Queen (2013) 40 VR 319, referred to.

CRIMINAL LAW - Supervision order - Review - Index offence of murder - Order confirmed - Curfew condition removed - Non-publication order made - Serious Offenders Act 2018 (Vic), ss 14, 27, 99, 106, 110, 139, 279, 280.

CRIMINAL LAW - Interlocutory appeal - Sexual offences against children - Fourteen charges involving three complainants - Whether probative value of tendency substantially outweighed by prejudicial effect - Sexual interest and willingness to act on that interest - Significant probative value - Charges linked by familial connection and trust - Risk to prejudice can be overcome with jury directions - Evidence is cross-admissible - Correctness standard of appellate review applied - Leave to appeal refused.

Crimes Act 1958, ss 49A(1), 49D(1); Criminal Procedure Act 2009, s 295(3)(b); Evidence Act 2008, ss 97(1), 101(2).

Dempsey (a pseudonym) v The Queen [2019] VSCA 224; Harris (A Pseudonym) v The Queen [2024] VSCA 43; Hughes v The Queen (2017) 263 CLR 338; Moore (a pseudonym) v The King (2024) 419 ALR 169; R v Bauer (2018) 266 CLR 56; TL v The King (2022) CLR 83, applied; Clark (a pseudonym) v The Queen [2015] VSCA 297; DPP v Pearson (a pseudonym) [2021] VSCA 336; Elomar v The Queen (2014) 316 ALR 206; Gardiner v The Queen (2006) 162 A Crim R 233; RWC v R [2010] NSWCCA 332, considered.

CRIMINAL LAW - Application for extension of time to seek leave to appeal against conviction - Rape - Where judge gave a direction about applicant's admission to 'inappropriate' conduct - Where no further direction sought by counsel - Whether judge should have given a further direction on basis that evidence constituted 'other misconduct evidence' - No substantial and compelling reasons to give any further direction - Whether judge properly directed jury that they could take the applicant's intoxicated state into account - Judge's direction adequately referred to intoxication and related it to whether applicant had belief in consent - Application for extension of time refused.

Jury Directions Act 2015 ss 12, 15, 16, 26, 27 and 29; Crimes Act 1958 ss 37 and 37AA, as at 17 December 2008.

Madafferi v The Queen [2017] VSCA 302; Dunn (a pseudonym) v The Queen [2017] VSCA 371; O'Leary v The King (1946) 73 CLR 566; R v Adam (1999) 106 A Crim R 510, applied; Quinn (a pseudonym) v The Queen (2018) 272 A Crim R 146; Khan v The Queen [2011] VSCA 286, distinguished.

CRIMINAL LAW - Sentence - Application for leave to appeal against sentence - Persistent sexual abuse of child outside Australia, grooming to make easier to engage in sexual activity with child outside Australia, using carriage service to solicit, and cause to be transmitted to self, child abuse material, possessing or controlling child abuse material obtained or accessed using carriage service and visually capturing genital or anal region (upskirting) - TES of 13 years and 8 months, with NPP of 9 years and 6 months - Whether sentence manifestly excessive - Not reasonably arguable that sentence manifestly excessive - Application for leave to appeal refused.

CRIMINAL LAW - Conviction - Appeal - Practice and procedure - Jury empanelment - Judge excused panel member after commencement of procedure for selecting jury in s 36 of Juries Act 2000 - Whether judge had power to excuse panel member - No statutory power to excuse panel member after commencement of s 36 process - Whether power at common law - Common law power to excuse panel member before sworn as juror - Juries Act 2000 not excluding common law power - No irregularity in course taken by judge - Leave to appeal granted - Appeal dismissed.

CRIMINAL LAW - Jury verdicts - Sexual penetration of child under 16 - Indecent act with child under 16 - Four guilty verdicts and two not guilty verdicts - Offending covering distinct events - Whether verdicts inconsistent - Not guilty verdict explicable by reference to conflicting evidence - Leave to appeal refused.

Juries Act 1904, s 2; Juries Act 1967; Juries Act 2000 ss 32, 36.

Pell v The Queen [2019] VSCA 186; Mansell v The Queen (1857) 8 E & B 54; 120 ER 20; R v Cullen [1951] VLR 335; R v Abrahams [1948] VLR 51; R v Searle [1993] 2 VR 367; R v Lewis (2000) 1 VR 290; R v Panozzo (2003) 8 VR 548, discussed; MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606, applied.

CRIMINAL LAW - Interlocutory appeal - Pending trial for aggravated home invasion - Admissions to police undercover operatives in cells and in a record of interview - Admissions alleged to have been made after an earlier, unrecorded interview - Failed police recording - Whether the trial judge erred in refusing to exclude the admissions - No error - Application for leave to appeal refused.

Evidence Act 2008 ss 85, 90.

Em v The Queen (2007) 232 CLR 67 - R v Em [2003] NSWCCA 374 - House v The King (1936) 55 CLR 499 - DPP (NSW) v Sullivan [2022] NSWCCA 183, considered.

CRIMINAL LAW - Appeal - Sentence - Multiple offences including common law assault, false imprisonment and robbery - Total effective sentence 12 months' imprisonment and 2-year CCO - Applicant's co-accused received 3-year CCO and no imprisonment - Whether applicant's sentence infringed parity principle - Objectively similar gravity for all co-offenders - Applicant had extensive prior criminal history with similar offending - Co-accused had unblemished criminal record - Applicant's sentence not unjustifiably disparate to co-offenders' sentence - Leave to appeal refused.

Crimes Act 1958, s 63A; Criminal Procedure Act 2009, pt 5.6; Sentencing Act 1991, s 5(2H).

Clarkson v The Queen (2011) 32 VR 361; Grey v The King [2024] VSCA 75; Hafner v The Queen [2012] VSCA 190; Karam v The King [2024] VSCA 164; Postiglione v The Queen (1997) 189 CLR 295; Rohen v The King [2024] VSCA 1, considered.

CRIMINAL LAW - Appeal - Sentence - Multiple offences including aggravated burglary, theft, home invasion, false imprisonment and handling stolen goods - Total effective sentence of 10 years and 1 month imprisonment - Non-parole period of 5 years and 6 months - Cumulation of individual sentences - Whether cumulation was manifestly excessive - Whether sentencing judge failed to give sufficient weight to the totality principle - Total effective sentence was within range reasonably open to sentencing judge - Outrageous criminality - Offending was objectively grave and repeated - Significant cumulation was appropriate - Appeal dismissed.

CRIMINAL LAW - Appeal - Sentence - Whether total effective sentence was manifestly excessive - Offending was objectively grave and repeated - Total effective sentence was within range reasonably open to sentencing judge - Sentencing principles were given appropriate weight - Appeal dismissed.

Azzopardi v The Queen (2011) 35 VR 43; Clarkson v The Queen (2011) 32 VR 361; Rohen v The King [2024] VSCA 1, applied; Cay v The Queen (2010) 29 VR 560; Nguyen v The Queen (2016) 256 CLR 626, considered.

REPRESENTATIVE PROCEEDINGS - Part 4A Group Proceeding - Application for approval of settlement - Whether proposed settlement is fair and reasonable - Relevant considerations - Settlement approved - Settlement Distribution Scheme approved - Appointment of Scheme Administrator - Approval for payment of legal costs from settlement sum - Approval of costs of settlement administration - Approval of plaintiff reimbursement payment - Whether funding costs should be approved - Whether funding costs appropriately disclosed - Whether Court has power to reduce amount sought under funding equalisation order - Court has power to reduce funding costs - Funding costs approved - Supreme Court Act 1986 (Vic) Part 4A, ss 33V, 33ZF.

ENERGY AND RESOURCES - Energy retailers supplying electricity and gas to retail customers - Contravention of door-to-door sales prohibitions and explicit informed consent obligations - Contravention of obligation to provide customers with 'deemed best offer messages' - Civil penalty provisions - Mandatory statutory considerations - The 'French factors' - Adverse publicity orders - Injunctions - Declarations of contraventions - Cooperation and acknowledgement of liability - Essential Services Commission Act 2001 (Vic) ss 53, 54, 54A, 54F, 54G, 54O, 54ZH, 54ZD, 77 - Electricity Industry Act 2000 (Vic) s 40EB(1) - Gas Industry Act 2001 (Vic) s 48DB(1) - Energy Retail Code cls 16(4), 57(1) - Energy Retail Code of Practice cl 5(2) - Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 - Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) (2016) 340 ALR 25 - Australian Energy Regulator v Origin Energy Electricity Ltd & Ors [2022] FCA 802 - Australian Energy Regulator v Energy Australia Pty Ltd [2022] FCA 644 - Australian Energy Regulator v AGL Sales Pty Ltd & Ors [2020] FCA 1623.

CONTRACTS - Dealership agreement repudiated and subsequently terminated prior to conclusion of its term - Damages for breach of contract for loss of profits for remaining contractual period - Liability conceded by defendant - Dispute as to quantum of damages - Findings on key disputed integers in the assessment of damages determined in earlier judgment - Amount of damages to be calculated by experts retained by the parties in accordance with the findings.

CONTRACTS - Finalisation of quantum of damages awarded for breach of contract - Onus of proof when alleging failure to mitigate loss - TC Industrial Plant Pty Ltd v Robert's Queensland Pty Ltd (1963) 180 CLR 138.

PRACTICE AND PROCEDURE - Costs - Whether to apportion costs on issues basis - Calderbank offer - Whether unreasonable to have rejected offer - Whether to order indemnity costs for whole proceeding after date of offer - Sedgwick v Varzonek (No 2) [2015] NSWSC 1613 considered - Calderbank v Calderbank [1975] 3 All ER 333; Hazeldene's Chicken Farm Pty Ltd v Workcover Authority (Vic) (No 2) (2005) 13 VR 435 applied - Chen v Chan [2009] VSCA 233 - Smith v Starke [2016] FCA 40 - McKay v Commissioner of Main Roads (No 7) [2011] WASC 223 (S).

INTERLOCUTORY INJUNCTION - Two persons claim to be owners of a racehorse - Whether serious question to be tried - Whether balance of convenience supports the injunctive relief sought - Held that there is a serious question to be tried, but both persons' claims of ownership are not strong claims - Held that the balance of convenience is against the injunctive relief - Australian Rules of Racing.

PRACTICE AND PROCEDURE - Whether Court should vacate order that passport for the racehorse be held on trust pending the determination of the proceeding - Passport now held on trust by former solicitors - Held no basis established for the vacation of the order but order should be varied so that it is held on trust by a party's current solicitors.

CORPORATIONS - Corporations Act 2001 (Cth) - Part 5.4 - Insolvency - Statutory demand - s 459G - Application to set aside - Demand claims unpaid amounts owing under payment plan agreement - Plaintiff company agreed not to apply to set aside statutory demand issued by defendant creditor - Whether purported waiver or contracting out of right to bring s 459G application enforceable in context of public policy objectives of Part 5.4 - Whether s 459G affidavit supports certain grounds argued at hearing - s 459H(1)(a) - Whether genuine dispute about existence and/or amount of debt - s 459H(1)(b) - Whether genuine offsetting claims - Whether offsetting claims can include declaration that amount claimed in demand not owing - Offsetting claims must offensively assert a right of recovery.

PRACTICE AND PROCEDURE - Leave to appeal against decision of Associate Justice - Supreme Court Act 1986 (Vic) s 17(3) - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 77.06 - Group Proceeding - Group Costs Order - Security for costs required from a law practice - Supreme Court Act 1986 (Vic) ss 33ZDA(1), 2(b) - Two part test for leave to appeal - Fei v Hexin Pty Ltd [2024] VSCA 158, applied - Substantial injustice not demonstrated if decision left undisturbed - No House v R (1936) 55 CLR 499 error demonstrated - No jurisdictional error - Determinative factor what the interests of justice require - Supreme Court Act 1986 (Vic) s 33ZF - Inherent jurisdiction of the Court to order security of costs - Stuart v Said (2021) 65 VR 50, applied - Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377, discussed - Appeal dismissed.

PRACTICE AND PROCEDURE - Leave to file and serve a notice of solicitor ceasing to act - Party's failure to provide instructions or funding to their solicitors - Solicitor remaining on record despite lack of instruction - Proceeding otherwise settled between all other parties - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 20.03.

PRACTICE AND PROCEDURE - Want of prosecution - Plaintiff's failure to provide instructions - Plaintiff's failure to comply with orders - Prejudice to defendants - Solicitor's obligation to a party for which they are still on record - Proper party to make dismissal application - Self-executing order for summary dismissal - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 23.02.

CONTRACT - Construction - Interpretation - Agreement for sale of shares - Determination of earnout payment payable to vendor based on returns received by buyer of the shares in non-binding terms sheet - Share sale agreement contained definition which expanded the nature of the returns on which earnout payment based - Whether court should read words into definition in share sale agreement so that basis upon which returns calculated accorded with terms sheet - Relevance of 'commercially unlikely consequences' or 'business common sense' when interpreting commercial contract - Whether regard can be had to drafts of share sale agreement introducing relevant definition - No claim for 'rectification by construction' or rectification in equity - No words read into definition.

CONTRACT - Construction - Interpretation - Share mortgage to secure performance of obligations under share sale agreement - Undertaking not to transfer security without consent unless purchaser/mortgagor paid in an specified escrow account 'an amount equal to the Secured Money (including any Secured Money that would reasonable foreseeably being owing in future)' - Earnout payment was 'Secured Money' or 'Secured Money that would reasonably foreseeably be owing in the future' - Meaning of 'reasonably foreseeably be owing in the future' in relevant clause - Earnout payment 'reasonably foreseeably be owing in the future' - Transfer of security without paying earnout amount into specified escrow account under the share mortgage was an Event of Default - Appointment of receiver by purchaser/mortgagor valid.

Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; J & P Marlow (No 2) Pty Ltd v Hayes (2023) 112 NSWLR 29; Apple and Pear Australia Ltd v Pink Lady America LLC (2016) 343 ALR 112.

TORTS - Inducing breach of contract - Breach of share mortgage by entering into various agreements - Whether knowledge of existence of agreements sufficient to ground knowledge or intention to induce where complex contractual arrangements - Where relevant breach not in contemplation of the parties at time of breach - Nature of inducement required - No liability established.

State Street Global Advisors Trust Company v Maurice Blackburn Pt Ltd (t/as Maurice Blackburn Lawyers) (No 2) (2021) 164 IPR 420; Daebo Shipping Company Ltd v The Ship Go Star (2012) 207 FCR 220; Short v City Bank of Sydney (1912) 12 SR (NSW) 186; Allstate Life Insurance v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26.

EVIDENCE - Evidence Act 2008, s 135 - Evidence excluded as defendant not aware of its relevance to claim - Prejudice as defendant was denied opportunity to call evidence or cross-examine.

EQUITY - Remedies - Equitable compensation - Breach of fiduciary duty - Procuring breach of fiduciary duty - Restoring claimant as nearly as possible to the position it would have been in but for breach - Causal connection sufficient if loss would not have been sustained but for breach - Causation judged using commence sense with full benefit of hindsight - Remedy fashioned to fit particular facts and circumstances - Where fiduciary and procurers caused funds to be borrowed and disbursed in breach of duty - Where funds would not have been borrowed but for breach - Loss established - Where loss incurred were the amount of borrowings and associated interest - Loss not dependent on particular financial outcome - Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd [2018] HCA 43.

EQUITY - Liability for compensation - Whether liability of fiduciary and procurers of breach is joint and several - Distinction between account of profits and equitable compensation - Persons may inflict loss without also accruing benefit - Where procurer not alter ego of fiduciary - Where fiduciary and procurer not acting in concert - Where breach of fiduciary duty and procuring breach arise out of same conduct causing same loss - Where defaulting fiduciary and procurer resemble joint wrongdoers - Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 - Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296 - Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609 - Re Earth Civil Australia Pty Ltd (in liq) [2021] NSWSC 966.

SECURITY FOR COSTS - Release of security funds paid into court - Purpose for which the funds were paid into court - Application of security to satisfy other purpose - Payee of security for costs does not retain a legal or beneficial interest - Administration of justice - Interest in the due administration of the funds in court - Discretion - Pilmer v HIH Casualty & General Insurance Ltd (No 2) [2004] SASC 389; 90 SASR 465 - Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd (No 2) [2018] NSWCA 266.

COSTS - Discretion - Costs apportionment - Complex proceeding - Costs of attending joint trial - Carve outs to costs orders.

COSTS - Discretion - Apportionment - Issue by issue apportionment - Plaintiffs jointly represented - Costs apportioned according to measure of success of plaintiff who failed on many of the claims raised - Lengthy trial - Conduct of a proceeding - Unnecessarily protracted trail - Mode of proof inappropriate - Percentage allocation - Stay and set-off - Whether costs ultimately recoverable may exceed judgement sum - Delay in the process of taxation - Chan & Ors v Chen & Ors [2009] VSCA 233.

JUDICIAL REVIEW - Medical Panel - Alleged jurisdictional errors - Panel's duty to disregard impairment from unrelated injuries or causes - Whether Panel erred in identification of impairment from unrelated injury or cause - Whether finding that impairment from unrelated injuries or causes was playing a part in plaintiff's current impairment - Alleged factual errors - Wrongs Act 1958 s 28LL(3).

CORONERS COURT - Coronial inquest - Appeal under s 83 of the Coroners Act 2008 (Vic) - No right of appeal against coroner's recommendations or comments - Whether appeal brought against coroner's findings - Whether appeal raised question of law - Held appeal not brought against coroner's findings - Held no question of law raised on appeal - Appeal dismissed - Coroners Act 2008 (Vic) ss 67, 83, 87.

TRUSTS - Application to vary terms of family trust - Approval on behalf of beneficiaries who are unable to consent - Extension of vesting date and introduction of statutory perpetuity period - Enlargement of class of beneficiaries to include corporations and trusts in which existing beneficiaries have an interest - Whether a resettlement of the trust - Amendments to avoid adverse taxation outcomes - Whether open to vary trust to introduce general power of amendment for trustee - Trustee Act 1958 (Vic), s 63, s 63A - Perpetuities and Accumulations Act 1958 (Vic), s 5.

ESTOPPEL - Proprietary estoppel - Constructive trust - Plaintiff promised to bequeath property to first defendant if he undertook significant renovation of property - First defendant relied upon promise to his detriment by working full time on renovation for fifteen months, forgoing income he would otherwise have earned and contributing to the cost of the renovation - Whether unconscionable for plaintiff to depart from promise - Prima facie entitlement of first defendant to receive proceeds of sale of property - Whether receipt of proceeds of sale goes beyond what is required for conscientious conduct - Whether remedy is disproportionate to first defendant's detriment.

LACHES - Whether first defendant acquiesced to plaintiff having legal and beneficial interest in property to the exclusion of first defendant's proprietary interest in property - Whether first defendant's delay in lodging a caveat on title of property unreasonable - Whether plaintiff suffered serious prejudice by reason of first defendant's delay in claiming a proprietary interest - Plaintiff failed to establish prejudice by reason of first defendant's delay.

LEGISLATION - Evidence Act 2008 ss 64(2)(b), 64(3)(b), 140(2)(c) - Limitation of Actions Act 1958 s 21(1)(b) - Supreme Court (General Civil Procedure) Rules 2015 order 15.03(3).

CIVIL LAW - Negligence - Claim for damages for unregistered vehicle - Defendant admitted liability for motor vehicle collision - Whether plaintiff had standing to bring claim.

EVIDENCE - Proof of ownership of unregistered vehicle - Sole possession of keys, application for an unregistered vehicle permit, and absence of competing claims as circumstantial evidence of ownership - Alleged conflict in oral testimony between plaintiff and his brother regarding mode of acquisition of the vehicle - Lack of contemporaneous documentation - Magistrate entitled to accept oral evidence over absence of formal documentation - Role of possession and lack of competing claims in establishing ownership - Hocking v National Archives (2020) 271 CLR 1 and Simonson Properties Pty Ltd v Hardy [2014] NSWSC 229, referred to - Whether there was no evidence to support claim for ownership - Whether the magistrate misapprehended the evidence - Open to the magistrate to reach a conclusion that the plaintiff owned the vehicle - No error of law established.

JUDICIAL REVIEW AND APPEALS - Appeal under s 109 of the Magistrates' Court Act 1989 (Vic) - Adequacy of reasons - Whether the magistrate provided sufficient explanation for findings on ownership of unregistered vehicle - Alleged failure to reconcile conflicting oral testimony and absence of corroborative witnesses - Hunter v Transport Accident Commission (2005) 43 MVR 130 and Dimatos v Coombe [2011] VSC 619 referred to - Reasons adequate.

REPRESENTATIVE ACTION - Implantable medical device - Contraceptive device made from metal alloys and PET fibre - Device designed to incite inflammatory response in fallopian tube to cause development of fibrosis resulting in tubal occlusion and sterilisation - Whether the device had an inherent defect in that it caused ongoing chronic inflammation in a not insignificant number of women, resulting in adverse events of chronic pelvic pain and abnormal uterine bleeding - General causation not established - Plaintiff's symptoms likely caused by adenomyosis - Whether there were risks that the device could migrate, be expulsed, break or fragment, corrode, fatigue, perforate organs and/or leach nickel or other metals resulting in new or increased pain, new or increased menstrual bleeding and/or damage to internal organs - Whether resolution of any adverse event associated with the device was likely to require surgical removal of uterus or fallopian tubes - Some risks established - Degree and magnitude of proven risks.

CONSUMER LAW - Whether devices had a 'defect' within the meaning of s 75AC of the Trade Practices Act 1974 (Cth) or a 'safety defect' within the meaning of s 9 of the Australian Consumer Law - Significance of supply of devices via gynaecologists - Whether defendants failed to warn doctors or patients of certain risks or potential complications and the gravity of complications - Whether state of scientific or technical knowledge at time of supply not such as to enable defects to be discovered - Ethicon Sàrl v Gill (2021) 288 FCR 338 - Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145- Adequate warnings and information given about established risks - Goods not defective.

CONSUMER LAW - Whether devices not of 'merchantable quality' within the meaning of s 74D of the Trade Practices Act 1974 (Cth) or 'acceptable quality' within the meaning of s 54 of the Australian Consumer Law - Expectations of reasonable consumer of medical device - Medtel Pty Ltd v Courtney (2003) 130 FCR 182 - Lack of merchantable quality not established.

CONSUMER LAW - Where goods manufactured by foreign defendants in same corporate group and supplied by local corporations - Where foreign defendants had no place of business in Australia but impugned conduct took place in Australia - Whether foreign defendants can be found liable for contraventions of the Trade Practices Act 1974 (Cth) and the Australian Consumer Law - Whether certain conduct of foreign defendants was 'in trade or commerce' - Whether foreign defendants were carrying on business in Australia.

NEGLIGENCE - Duty of care - Content of duty owed by manufacturers and suppliers to end users of medical devices - Whether defendants were negligent in development, design and marketing of device - Extent of obligation to warn where products supplied through 'learned intermediaries' - Whether product information and warnings insufficient to inform consumers of potential risks - Wrongs Act 1958 (Vic), s 48 - Gill v Ethicon Sàrl (No 5) [2019] FCA 1905 - Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145 - Plaintiff failed to establish breach of duty owed by defendants.

LIMITATION OF ACTIONS - Whether certain actions statute-barred - Effect of long-stop provisions - Trade Practices Act 1974 (Cth), ss 74J, 75AO - Trade Practices Amendment (Personal Injuries and Death) Act (No 2) 2004 (Cth) ss 87F, 87G, 87H - Statutory claims of group members in respect of supply of devices before 13 July 2004 statute-barred - Statutory claims of group members in respect of devices supplied between 13 July 2004 and 28 June 2007 expired.

PRACTICE AND PROCEDURE - Summary judgment - Respondent's summary dismissal application under ss 62 and 63 of the Civil Procedure Act 2010 (Vic) that appellant's notice of appeal has no real prospect of success - Rule 23.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) that appellant's claims are scandalous, frivolous or vexatious, and/or an abuse of process - Appellant's leave to amend notice of appeal - Order 36 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Respondent's summary dismissal application and appellant's leave to amend notice of appeal partially allowed - Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27.

RESIDENTIAL TENANCIES - First respondent owner of premises - Second respondent was tenant - Sub-letting between second respondent and applicant - Second respondent vacated premises and applicant thereafter claimed to be 'renter', not 'occupant' - Whether first respondent 'consented' - Proceedings variously commenced in the Victorian Civil and Administrative Tribunal ('VCAT') - Proceedings returned before VCAT - Orders made by VCAT member, particularly that the first respondent was 'entitled to a possession order' - Application for leave to appeal on questions of law - Restricted jurisdiction of the Court - Applicant applied for a stay of possession order - Stay refused - Applicant no longer in the premises - Applicant discontinued proceeding against first respondent - Stance adopted by applicant - Importance of context - Whether applicant's statements and material are reliable - Extent to which any of the purported questions of law arise - Almost entirely questions of fact - Whether applicant materially denied natural justice - Whether real prospects of success demonstrated - Whether leave to appeal ought be granted - Futility - Whether proper exercise of judicial power - Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148 - Residential Tenancies Act 1997 (Vic), ss 81, 82, 91R, 91S and 346 - Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, Herald and Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal [2006] VSCA 7, Roberts v Harkness (2018) 57 VR 334, Patsuris v Gippsland and Southern Rural Water Corporation [2016] VSCA 109, Chopra v Department of Education and Training [2019] VSC 488, Bashour v ANZ [2020] VSC 478, Anderson v Sharpe [2024] VSCA 166, considered - Proceeding dismissed.

COURTS AND JUDGES - Parens patriae jurisdiction - Pregnant teenage child - Application for order authorising use of chemical, mechanical, physical or other restraint of child where all other strategies have been tried and found inadequate in opinion of treating medical team - Application for order authorising Secretary to determine whether to use restraint in the event of disagreement between treating medical team - Best interests of the child - Children, Youth and Families Act 2005 - Medical Treatment Planning and Decisions Act 2016 - Charter of Human Rights and Responsibilities Act 2006 ss 7(2), 10(c), 13(a), 17(2), 21.

PRACTICE AND PROCEDURE - Open justice principle - Pseudonym order - Interim suppression order Open Courts Act 2013, s 20.

PRACTICE AND PROCEDURE - Supreme Court (General Civil Procedure) Rules 2015, O 15 - Dispensing with requirement for litigation guardian.

NEGLIGENCE - Professional liability - Negligence claim regarding adequacy of advice given by lawyer to client in settlement of historical institutional sexual abuse claim.

EVIDENCE - Admissibility - Tendency evidence - Probative value - Application to adduce tendency evidence of advice given by lawyer to other clients in similar claims and table of de-identified settlement outcomes - Advice given to other clients in respect of other settlement outcomes not relevant to the question of reasonableness of advice given to plaintiff - Advice given to other clients in respect of other settlement outcomes does not have strong probative value in respect of the reasonableness of advice given to plaintiff - Tendency evidence inadmissible.

Evidence Act 2008, ss 55, 97.

DP (a pseudonym) v Bishop Bird [2021] VSC 453, applied; Hughes v The Queen (2017) 263 CLR 338; DPP v Roder (a pseudonym) (2024) 98 ALJR 644, considered.

PROCEDURE - Application to split trial pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 - Nuisance claim arising out of the operation of a wind farm - Interference with the use of farm properties in the vicinity of the wind farm - Split proposed between the determination of the questions of liability and relief - Overlap in issues and evidence - Whether 'utility, economy, and fairness to the parties beyond question' - No clear demarcation of issues - Inefficiency arising from the possibility of some of the witnesses being called twice - Unfairness to the plaintiffs as a result of the split - Application dismissed.

PROCEDURE - Courts and judges generally - Jurisdiction to discharge party from undertaking not to exercise power to appoint or remove trustee - Where proceeding dismissed - Where undertakings given on final basis - Application by appointor to be discharged from undertaking - Grant of liberty to apply - Where independent trustee not party to proceeding - Where independent trustee seeks to stay or strike out application as abuse of process - Court retains jurisdiction - Application to stay or strike out application dismissed - Russell v Russell [1956] P 283 - Bailey v Marinoff (1971) 125 CLR 529 - Kensington Housing Trust v Oliver (1998) 30 HLR 608 - Birch v Birch [2017] 1 WLR 2959 - Commonwealth Bank v The Law Debenture Trust Corporation PLC [No 4] [2018] WASC 165 - Application of Rinehart 2020/142504 (No 2) [2021] NSWSC 364 - Lin & Ors v Lin & Ors (No 2) [2022] VSC 542 - Lin v Lin (No 3) [2024] VSC 17.

COSTS - Whether costs be awarded on indemnity basis instead of standard basis - Whether appropriate to specify gross sum - Where redactions applied to descriptions of fees payable to solicitors - Where sums specified for some counsel fees and disbursements where satisfied that would be recoverable on taxation - Giurina v Greater Geelong City Council [2021] VSCA 341 - Supreme Court Act 1986 (Vic) s 24 - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.07 - Civil Procedure Act 2010 (Vic) pt 2.3.

COSTS - Self-represented litigant - Discussion of relevant principles - No entitlement to recover cost of time spent by non-legal practitioner in preparation of case - Cachia v Hanes (1994) 179 CLR 403 followed - Disbursements and out-of-pocket expenses recoverable - Entitlement of self-represented litigant to employ agents and recover reasonable out-of-pocket expenses of doing so - Cachia v Hanes (1991) 23 NSWLR 304 followed.

DECLARATORY RELIEF - Application for declaration by self-represented litigant that as sole-proprietor of business he may act as own agent in performing paralegal work and recover reasonable out of pocket expenses of doing so - Basis for declaration misconceived - No foreseeable consequences for the parties - Declaratory relief refused.

AGENCY - Discussion of relevant principles - Whether self-represented litigant can act as own agent in performing paralegal work - A person cannot act as own agent.

TRUSTS AND TRUSTEES - Judicial advice - Settlement of proceedings under Part IV of Administration and Probate Act 1958 - Under the terms of settlement the grandchildren of the plaintiff in the Part IV proceedings excluded as beneficiaries of trusts - Plaintiff in Part IV proceedings agreed to establish trust for the benefit of her grandchildren and lineal descendants - Plaintiff undertook to transfer $5 million to trust - Proposed trust deed prohibits any distribution of capital during the first twenty years after the establishment of trust - Trustee's decision to agree to the settlement of Part IV proceedings within power - Trustee acted in good faith when approving settlement - Establishment of trust by plaintiff in Part IV proceedings constitutes a benefit to minors - Settlement approved - Trustee Act 1958 s 63A - Supreme Court (General Civil Procedure) Rules 2015 r 54.02(2)(c)(i).

LEGAL PRACTITIONERS - Application for removal of name and particulars from the roll of practitioners - Whether defendant shown not to be a fit and proper person to be a legal practitioner - Whether defendant shown to be likely to remain so for the indefinite future - Application not contested - Agreed facts stated - Exceptionally serious conduct incompatible with remaining on the roll - No explanation for conduct - Legal Profession Uniform Law (Victoria) s 23(1) - Legal Services Board v McGrath (2010) 29 VR 325, Victorian Legal Services Board v Gobbo [2020] VSC 692 and Victorian Legal Services Commissioner v Tan [2021] VSC 692, considered - Order made.

INTERLOCUTORY INJUNCTION - Whether serious question to be tried - Balance of convenience - Relevance of damages as an adequate compensation - Consideration of the deed of settlement with second defendant - Interlocutory injunction a form of equitable relief - No undertaking as to damages offered - Weak but possible arguable claim on the merits - Weighing of relevant principles - No injunction granted.

NUISANCE - Private nuisance - Alleged nuisance is noise and vibration - Whether interference with use and enjoyment of land substantial and unreasonable - Whether interference is continual - Effect of settlement with the second defendant - Defence of statutory authority not relevant in this instance - Whether behaviour of the plaintiffs relevant - Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] 42 WAR 287, applied.

REPRESENTATIVE PROCEEDINGS - Part 4A Group proceeding - Application for approval of settlement - Whether proposed settlement is fair and reasonable - Relevant considerations - Settlement approved - Settlement Distribution Scheme approved - Appointment of Scheme Administrator - Approval for payment of legal costs from settlement sum - Whether settlement may be approved prior to late registrant determinations - Supreme Court Act 1986 (Vic) Part 4A, ss 33V.

ADMINISTRATIVE LAW - Judicial review - First defendant charged with offences under Road Safety Act 1986 (Vic) - First defendant claimed not to have been driver of vehicle - Magistrate dismissed charges - Magistrate's reasons included reference to an understanding about the operation of airbags that had not been the subject of evidence - Whether magistrate's airbags understanding was a finding material to his ultimate conclusion - Whether magistrate erred in rejecting evidence from an eyewitness that plaintiff asserted was plausible and uncontradicted - Held no error established - Proceeding dismissed.

ADMINISTRATIVE LAW - Judicial Review - Medical Panel - Reasons - Adequacy - Statutory interpretation - 'Current work capacity' - 'Suitable employment' - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 3, 313, 325, 335.

ADMINISTRATIVE LAW - Application for leave to appeal from Victorian Civil and Administrative Tribunal - Orders made pursuant to s 120 of the Victorian Civil and Administrative Tribunal Act 1998 refusing to reopen orders made at an earlier hearing at which the applicant had not appeared - No appearance by the applicant at the hearing of the reopening application - Application refused.

PROBATE - Practice and procedure - Proceeding on behalf of minor beneficiary of deceased estate against executors to furnish accounts and deliver up documents relating to estate and a related trust - Proposed compromise submitted by parties - Unpublished reasons for decision of a judicial registrar refusing approval of a compromise and raising issues for response by executors - Executors subsequently agreed to be discharged - Orders made by consent discharging executors - Former executors sought an order that the judicial registrar's reasons for decision remain unpublished - Former executors also sought orders that an exhibit and affidavits not be available for inspection - Whether publication would not be in the interests of justice - Whether reasons are unfairly prejudicial and publication serves any remaining purpose - Administration and Probate Act 1958 s 34; Supreme Court (General Civil Procedure) Rules 2015 r 28.05(4) - Civil Procedure Act 2010 ss 7-9, 47(1)(a) - Open Courts Act 2013 ss 8A, 16.

PROBATE - Application to strike out caveat seeking to pass over executor - Whether caveator has standing - Supreme Court (Administration and Probate) Rules 2014 (Vic), r 8.02 - Caveator has potential Part IV claim under Administration and Probate Act 1958 (Vic) and is the beneficiary of a discretionary family trust - Whether contingent interest in the estate is sufficient to confer standing - No real prospect of establishing that passing over named executor would result in a material enlargement of the estate - Insufficient evidence adduced despite ample time and opportunity - Mataska v Brown [2013] VSC 62, distinguished - Caveator lacks standing - Caveat struck out.

EXECUTORS AND ADMINISTRATORS - Passing over named executor - Allegations of ill-health, unsound mind, and conflict of interest - Historical diagnosis of dementia - Recent medical evidence of cognitive capacity and fitness to act - Mini-Mental State Examination score 30/30 - Presumption of competence following VCAT revocation order - Alleged financial mismanagement and trust dealings - Analysis of transactions shows no misappropriation of estate assets - Executor's conduct and hostility towards caveator - Family conflict insufficient to impede administration of estate - No prima facie case established - Application dismissed.

PRACTICE AND PROCEDURE - Summary dismissal - Civil Procedure Act 2010 (Vic), ss 63 and 64 - Prima facie case requirement - Allegations of executor's unsuitability based on ill-health, cognitive impairment, conflict of interest, financial mismanagement and hostility - Whether caveator's objections disclose a real prospect of success - Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 47 VR 27, referred to - Evidence establishes that there are no grounds for passing over the executor - Whether matter should proceed to trial under s 64 of the Civil Procedure Act 2010 (Vic).

COURTS AND JUDGES - Open justice - Application for suppression order - Whether order necessary to prevent real and substantial risk of prejudice to proper administration of justice - Applicants for suppression order failing to establish that order necessary to prevent real and substantial risk of prejudice to proper administration of justice - Application refused - Open Courts Act 2013, s 18(1)(a).

PRACTICE AND PROCEDURE - Costs - Whether unsuccessful applicants for proceeding suppression order should pay costs - Whether Court has power to order costs - Whether costs should follow the event - No order as to costs - Madafferi v The Queen (No 2) (2021) 63 VR 143, referred to; Channel Nine SA v Police (No 2) (2014) SASR 87, applied - Criminal Procedure Act 2009, s 409 - Open Courts Act 2013, s 18(1)(a).

CRIMINAL LAW - Bail application - Applicant charged with drug trafficking offences - Addiction - Exceptional circumstances test - Whether unacceptable risk - Applicant identifies as Aboriginal - Bail Act 1977 (Vic) s 3A - Bail reform.

CRIMINAL LAW - Application for bail - Bail for Aboriginal man - Whether exceptional circumstances exist justifying the grant of bail - Exceptional circumstances shown - Whether unacceptable risk if applicant released on bail - Finding that risk not unacceptable - Bail granted - Bail Act 1977, ss 1B, 3AAA, 3A, 4AA, 4A, 4E, 5AAAA, 5AAA.

CRIMINAL LAW - Sentencing - Manslaughter - Unlawful and dangerous act - Victim was friend of accused's former partner - Stabbing - Criminal history - Early guilty plea - Family violence.

CRIMINAL LAW - Sentence - Manslaughter - Category A serious youth offence - Plea of guilty - Youth offender - Single stab wound - No premeditation - Limited criminal history - Difficult childhood - Bugmy considerations - Verdins enlivened - Positive prospects of rehabilitation.

CRIMINAL LAW - Applications for leave to appeal - Referral pursuant to s 319A of the Criminal Procedure Act 2009 with respect to the conduct of a registered police informer and the conduct of Victoria Police and consequential matters - Victoria Police's duty of disclosure and whether it was breached - Scope of the Director of Public Prosecutions' duty of disclosure - Whether the Director breached his duty of disclosure - Impact of the duty of disclosure on criminal proceedings including plea negotiations - What constitutes a lawyer/client relationship in the absence of a written retainer - Scope of lawyer's duties - Whether Victoria Police engaged in conduct which was unlawful or improper in the investigation, extradition and prosecution of the applicant.

CRIMINAL LAW - Murder - Common assault - Convicted by jury - Offender attended family home late at night in breach of an intervention order and in possession of a hatchet, a tin of petrol and a lighter - Offender ambushed deceased on rear patio - Teenage children tried to intervene - Son ran for help and was struck twice by offender with the hatchet in the course of fleeing the house - Offender then killed deceased in the kitchen using hatchet and a knife - Daughter present during fatal attack on her mother and pleaded with offender to stop - Brutal and vicious attack - Murder not premeditated but confrontation planned - High moral culpability - No remorse - No prior convictions but some history of domestic violence - Poor prospects of rehabilitation - Standard sentence offence - Total effective sentence of 37 years' imprisonment with a non-parole period of 30 years' imprisonment.

CRIMINAL LAW - Sentence - Manslaughter - Early plea of guilty - Accused complicit in stabbing of victim in company of another - Victim succumbed to wounds shortly after being driven to hospital by accused - Mental impairment - Accused diagnosed paranoid schizophrenic - Accused reported suffering sporadic episodes of psychosis in years preceding offence - Illness untreated at time of offence - Accused likely suffering from symptoms of psychosis at time of offence - Reduced culpability - Difficult circumstances in custody - Criminal history - Accused previously served term of imprisonment for assault - Lack of insight into offending - Significant utilitarian value of plea.

DPP v Ngoc Nguyen [2024] VSC 99; DPP v Tovey [2023] VSC 530; DPP v Hocking [2022] VSC 324; DPP v Walia [2022] VSC 606; R v Dellamarta [2021] VSC 220; DPP v Devey (No 2) [2021] VSCA 121, considered.

CRIMINAL LAW - Application under Sex Offenders Registration Act 2004 to suspend lifelong reporting obligations - Applicant convicted of two charges of making or producing child pornography, one charge of knowingly possessing child pornography, and one charge of using online service to transmit child pornography - Applicant downloaded and stored over fifty thousand images of child abuse material on computer and CD-ROMS - Applicant sentenced to 3 months' imprisonment served by way of intensive correction order - Applicant required to comply with reporting obligations for life - Offending occurred over 19 years ago (1999 - 2005) - No subsequent convictions - Applicant now married with child and permanently residing in UK - Applicant subjected to psychological assessment - Assessed as low-risk of re-offending - Whether applicant poses no risk or low risk to sexual safety of community - Whether in public interest to suspend reporting obligations - Application granted.

ADMINISTRATIVE LAW - Jurisdictional error - Inferior court - Magistrates' Court - Applicant ordered to comply with reporting obligations for period of eight years - Act required applicant to comply with reporting obligations for life - Order made in jurisdictional error - Order void.

ADMINISTRATIVE LAW - Jurisdiction - Standing - Act requires applicant to comply with reporting obligations for life - Reporting obligations suspended when outside Victoria - Applicant permanently resides in UK - Whether applicant precluded from making application to suspend reporting obligations while outside Victoria - Applicant still bound by Act notwithstanding suspension of reporting obligations - Standing to bring application.

Sex Offenders Registration Act 2004, ss 6, 7, 12, 16, 17, 18, 20, 23, 32, 34, 39, 40; Charter of Human Rights and Responsibilities Act 2006, s 40, considered.

Re GH [2024] VSC 216; Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342; RJE v Secretary to the Department of Justice (2008) 21 VR 526, considered; Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; State of New South Wales v Kable (2013) 252 CLR 118; DPP v Edwards (2012) 44 VR 114, referred to.

TORTS - NEGLIGENCE - Advocate's immunity - Where plaintiff alleged lawyer provided incorrect advice which led to guilty plea - Whether summary judgment should be granted.

PRACTICE AND PROCEDURE - Third Party procedure by defendant seeking indemnity for plaintiffs' claim - Failure by first third party to file appearance - Settlement at mediation by all other parties - Defendant seeking judgment against first third party - First third party seeking to file appearance out of time - Arguable defence by first third party - Explanation by first third party for failure to file appearance - Fault with first third party's insurer - Insurer prepared to indemnify the first third party and take over the defence of the proceeding - Prejudice to the defendant if first third party permitted to file an appearance - Defendant settled the proceeding with other parties on the basis that the first third party was not participating in the proceeding - Prejudice to the defendant if the basis for the reordering of her affairs disturbed - Leave to file an appearance refused - Judgment entered for the defendant against the first third party for damages to be assessed.

RETAIL TENANCIES - JURISDICTION - Whether premises are "retail premises" under the Retail Leases Act 2003 (Vic) - Nature of business conducted from premises - Whether Court deprived of jurisdiction to hear dispute by reason of s89(4) of the Retail Leases Act 2003 (Vic).