Library Bulletin

CRIMINAL LAW - Appeals - Mental impairment - Where appellant is liable to supervision under supervision order - Where court conducted periodic review of custodial supervision order and released appellant on non-custodial supervision order - Whether court's review of custodial supervision order miscarried by reason of appellant's refusal to cooperate with medical experts - Standard of review on appeal from finding that court not satisfied that safety of appellant and of public will be seriously at risk if appellant released on non-custodial supervision order - Whether Court of Criminal Appeal erred by confirming custodial supervision order without addressing requirements of Criminal Code Act 1983 (NT), Sch I, Pt IIA, Divs 5 and 7.

WORDS AND PHRASES - "appeals against supervision orders", "custodial supervision order", "non-custodial supervision order", "not reasonably open", "periodic review", "standard of review", "supervision order".

WINDING UP - Leave to withdraw - Defendant seeks that the plaintiff be given leave to withdraw the application to wind up in insolvency for failure to comply with creditor's statutory demand - Factors to be considered when granting leave to discontinue - Public interest in winding up proceedings - Where application has been advertised - Where evidence of prejudice insufficient - Relevance of prejudice to other creditors - Where no good reason shown for the winding up hearing not to proceed.

PRACTICE AND PROCEDURE - Ex parte freezing order - Whether there is an arguable case - Whether there is a risk of dissipation of assets - Where applicant is a member director and beneficiary of trustee company - Deadlock between directors of trustee company - Good arguable case of oppression established - Risk of dissipation of assets established - Supreme Court (General Civil Procedure) Rules 2015 order 37A - Rozenblit v Vainer [2019] VSCA 164 - Vigliaroni v CPS Investment Holdings Pty Ltd (2009) 74 ACSR 282; Melrob Investments Pty Ltd v Blong Ume Nominees Pty Ltd (2022) 141 SASR 1 - Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 - Application granted.

INCORPORATED ASSOCIATIONS - Winding up application under ss 459P and 459A of the Corporations Act 2001 (Cth) - Leave sought to also make the application to wind up pursuant to s 126 of the Associations Incorporation Reform Act 2012 (Vic) - Whether the Corporations Act 2001 (Cth) applies to winding up of incorporated association - Declared applied Corporations legislation matter - Held Parts 5.4 and 5.4B of the Corporations Act 2001 (Cth) apply to applications to wind up an incorporated association - No prejudice to defendant if leave to amend granted - Associations Incorporation Reform Act 2012 (Vic) ss 126, 144, 150 - Corporations (Ancillary Provisions) Act 2001 (Vic) Part 3, ss 14, 15, 16 - Corporations Act 2001 (Cth) ss 5F, 9, Parts 5.4 and 5.4B.

INCORPORATED ASSOCCIATIONS - WINDING UP - Statutory demand for judgment debt - Presumption of insolvency enlivened - Judgment subsequently set aside - Insufficient evidence to rebut presumption of insolvency - Alternative application under s 459S for leave to oppose winding up on grounds the judgment has been set aside and debt is genuinely disputed and plaintiff does not have standing - Whether serious question to be tried as to genuine dispute - Whether the defendant's conduct in not setting aside the demand was reasonable - Whether debt is material to proving solvency- s 459S application dismissed - Whether to exercise discretion to order winding up - Supporting creditor - Where discretionary factors do not outweigh failure to rebut presumption of insolvency and existence of supporting creditor - Corporations Act 2001 (Cth) ss 95A, s 459A, 459C, 459P, 459S, 467(1)(a) - Chief Commissioner of Stamp Duties v Paliflex Pty Ltd [1999] NSWSC 15, applied - Re Kornucopia Pty Ltd (No 4) [2020] VSC 7 and Ewen Stewart & Associates Pty Ltd v Blue Mountains Virtual Air Helitours Pty Ltd (No. 2) [2011] NSWSC 113, considered, Re Brooklyn Park & Co Pty Ltd [2024] VSC 611, Re Gladstone Mortgagee No 1 Pty Ltd [2015] NSWSC 1551 and Mutton v Living Australia Pty Ltd [2020] FCA 739; (2020) 145 ACSR 82, considered.

CORPORATIONS - Application by purported member of not-for-profit public company limited by guarantee for order staying or terminating winding up - Corporations Act 2001 (Cth) - s 482 - s 90-15 (Sch 2, Insolvency Practice Schedule (Corporations)) - Ancillary orders sought in relation to company's governance arrangements - Whether applicant for termination has standing as a contributory or member of company - Where company now solvent - Reasonable prospect company will remain solvent - Relative significance of delay in filing of application - Liquidation close to completion - Liquidator, members and creditors will not be prejudiced by a stay or termination of the winding up - Relief not inconsistent with commercial morality or public interest - Stay of winding up pending payment of liquidator's reasonable remuneration and expenses - Ancillary orders appointing new directors and for convening of general meeting of members to vote on proposed resolutions for reconstitution of board.

WILLS AND ESTATES - Administration of estate - Meaning of 'personal chattels' - Five luxury motor cars owned by intestate at date of death - Whether 'used for business purposes'- Administration and Probate Act 1958 (Vic), s 5.

EQUITY AND TRUSTS - Judicial advice - Income of discretionary trust distributed to the estate of a deceased beneficiary - Whether distribution is authorised by distribution clause of trust deed - Whether the estate is within the definition of 'beneficiary' in the trust deed - Consequences of distribution of trust income other than in accordance with the trustee's powers of distribution - Whether decision to distribute to living beneficiary severable from decision to distribute to estate - Whether decision to distribute void or voidable.

COSTS - Application for indemnity costs and to fix a gross sum following defendants' application to strike out plaintiffs' claim - Where strike out application largely but not entirely successful - Appropriate to depart from standard basis and grant costs on indemnity basis - Where applicant did not provide itemised bill of legal costs - Whether gross sum order can be ordered - Where gross sum order appropriate, but only identifiable costs included in gross sum calculation - Defendants not precluded from seeking further or additional costs in any taxation.

CRIMINAL LAW - Crimes mental impairment - Application for extended leave pursuant to s 57 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - Whether granting the applicant extended leave on the conditions proposed would seriously endanger the safety of the applicant or members of the public - Recent relapse - Treating team unanimously supportive of application - Application supported by Secretary to the Department of Health but opposed by Attorney-General - Application granted - Conditions imposed on extended leave in accordance with leave plan - Suppression order - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 38C, 39, 40, 42, 57, and 75.

DEFAMATION - Concerns notice - Requirement for concerns notice to adequately inform of imputations and serious harm - Where document purporting to be a concerns notice did not adequately inform of imputations and serious harm - Where document purporting to be a concerns notice not given to defendants - Where proceeding is an abuse of process - Defamation Act 2005 (Vic) ss 12A, 12B - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 23.01.

COMMON LAW - Cross-vesting legislation - Damages claim for allegations of sexual abuse occurring in New South Wales - Application for proceeding to be transferred to the Supreme Court of New South Wales - Interests of justice - BHP Billiton Ltd v Schultz (2004) 221 CLR 400 - Ewins v BHP Billiton Ltd [2005] VSC 4 - Irwin v State of Queensland [2011] VSC 291 - Valceski v Valceski (2007) 70 NSWLR 36.

APPEAL - Associate Judge granted summary judgment in respect of claims in Statement of Claim - Associate Judge satisfied that the claims had no real prospect of success - Associate Judge failed to consider whether, notwithstanding the claims in the Statement of Claim had no real prospect of success, the proceeding should not be disposed of summarily on the grounds prescribed by s 64 of the Civil Procedure Act 2010 - Failure to consider s 64 of the Civil Procedure Act 2010 constituted an error in exercise of discretion to grant summary judgment - Court required on appeal to re-exercise discretion taking s 64 into account - No basis for not disposing of proceeding summarily on the grounds prescribed by s 64 - Appeal from order granting summary judgment dismissed - Civil Procedure Act 2010 - ss 7, 63, 64 - Supreme Court (General Civil Procedure) Rules 2015 - r 22.19, 77.06

LIMITATION OF ACTIONS - Limitation of Actions Act 1958 (Vic) ss 27QD, 27QE - Institutional abuse - Historical child sexual abuse - Settlement deed - Application to set aside settlement deed - Whether just and reasonable to set aside settlement deed - Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) - Interpretation of the Ellis defence - Ellis defence and the attribution of knowledge - Whether Ellis defence or Ellis-type defence materially impacted plaintiff's decision to enter into settlement deed - Whether other risk factors impacted plaintiff's decision to enter into settlement deed - Not just and reasonable to set aside settlement deed - Trustees of the Christian Brothers v DZY [2024] VSCA 73 - O'Connor v Comensoli [2022] VSC 313.

PRACTICE AND PROCEDURE - Historical child abuse claims - Limitation of Actions Act 1958 (Vic) ss 27O, 27P, 27R - Plaintiff alleges sexual, physical, and psychological abuse while residing at a children's home in the 1960s - Defendant seeks permanent stay of allegations of sexual abuse on grounds of forensic prejudice by reason of the passage of time - Plaintiff unable to identify alleged perpetrators - Defendant argues impossibility of fair trial due to loss of evidence and death of key witnesses - Plaintiff contends forensic disadvantage arises from defendant's own failure to investigate historical complaints - Whether identified forensic prejudice constitutes 'exceptional circumstances' justifying a stay - Effect of legislative abolition of limitation periods - Whether passage of time and loss of evidence justify permanent stay - Death and incapacity of key witnesses - Loss of contemporaneous records - Impact of plaintiff's inability to identify alleged perpetrators - Institutional response to prior complaints - Relevance of prior claims - Consideration of judicial techniques in mitigating evidentiary disadvantage - High threshold for stay applications following abolition of limitation periods - Whether loss of evidence amounts to 'exceptional circumstances' precluding a fair trial - GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635, applied - Willmot v State of Queensland [2024] HCA 42 and RC v Salvation Army (NSW) Property Trust [2024] HCA 43, considered and applied - Weiden v YZ (a pseudonym) (No 2) [2023] VSCA 294, CM v Trustees of the Roman Catholic Church for the Diocese of Armidale [2023] NSWCA 313 and Colbert v Trustees of the Christian Brothers [2024] VSC 309, referred to - Stay application dismissed - Application to strike out statement of claim dismissed.

PRACTICE AND PROCEDURE - Legal practitioners - Contested application for grant of probate - Testamentary capacity in issue - Application to restrain legal firm from acting where principal solicitor prepared will and witnessed its execution - Where likely that legal practitioner will be material witness about controversial matters - Where legal practitioner referred conduct of proceeding to another legal practitioner in same firm - Steps taken to isolate legal practitioner from conduct of proceeding do not mitigate conflict of interests - Makripoulias v Arhontovasilis [2022] VSC 53 - Veall v Veall [2015] 46 VR 123 - Application granted.

PRACTICE AND PROCEDURE - Application pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 - Proposed separate trial to be conducted on the basis of assumed facts - Whether all facts arguable would be before the Court - Whether appropriate to order a preliminary trial on issues of statutory construction that bear on the factual dispute at trial - Murphy v State of Victoria [2014] VSC 363 - Murphy v State of Victoria [2014] VSCA 238 - Hoh v Ying Mui Pty Ltd [2019] VSCA 203 -Vale v Daumeke [2015] VSC 342 - Jacobson v Ross [1995] 1 VR 337.

PRACTICE AND PROCEDURE - Group proceedings - Application by defendants that proceeding no longer continue as a group proceeding - Whether group proceeding not an efficient and effective means of dealing with group members' claims - Where the content and scope of the duties owed are not controversial - Where each group member's case is factually discrete - Where the plaintiff seeks to prove the defendant had an invariable practice of providing certain advice with respect to how economic loss claims are determined under a mistaken understanding of the law - Where difficulties with respect to client privilege can be overcome through case management - Where findings of common questions would not lead to appreciable savings in determination of group member's claims - Where in interests of justice that proceeding no longer continue as a group proceeding - Supreme Court Act 1986 (Vic) s 33N(1) - Bright v Femcare Ltd (2002) 195 ALR 574 - Beecham Motors Pty Ltd v General Motors Holden Australia NSC Pty Ltd [2021] VSC 855 - Pearce v Waller Legal Pty Ltd (Ruling) [2024] VSC 779 - AS v Minister for Immigration and Border Protection [2017] VSC 137.

PERSONAL INJURIES - Plaintiff and two friends attended a ticketed concert held in the 'Oasis room' of a function centre in Somerton - Second defendant occupier - Third defendant landlord - Retention of security guards for the concert - Dispute over 'corkage' charges - One or both of the friends assaulted at least the first defendant and both were ejected from the foyer of the 'Oasis room' - Plaintiff began to drive his friends from the premises - Plaintiff's friends alighted from the vehicle and re-entered the foyer precipitating a major brawl - Plaintiff followed his friends into the foyer - Circumstances of brawl - During the brawl the plaintiff was stabbed twice by the first defendant using a large kitchen knife - Trial on liability against second and third defendants - Assessment of the reliability of witnesses - New and 'scattergun' contentions of fact and liability - Times and aspects of the circumstances of the 'corkage' dispute and brawl - Video footage taken at different points and from different perspectives - Whether plaintiff participated in the fighting - Various findings of fact made - Duty of care - Ultimate arguments as to breach of duty - Whether written security policies and procedures - Whether absence of written security policies and procedures was a 'necessary condition of the occurrence of the harm' - Responsibility for the foyer door - Whether foyer door 'broken' or 'not functioning correctly' - Whether foyer door locked, unsupervised and/or insufficiently 'stationed' - Formula for the calculation of numbers of security guards - Whether plaintiff engaged in 'illegal activity' - Remnant liability arguments - No causal breach of duty by either defendant - Whether the risk of harm was an 'obvious risk' - Whether harm suffered by plaintiff as a result of the 'materialisation of an inherent risk' - Contributory negligence - Pleaded defences unnecessary finally to determine - Wrongs Act 1958 (Vic) ss 14B, 14G, 51, 53, 54 and 55 - Raciti v Wadren Pty Ltd [2006] VSCA 132, Lafranchi v Transport Accident Commission (2006) 14 VR 359 and Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 - Proceeding against the second and third defendants dismissed.

ADMINISTRATIVE LAW - Appeal from the Victorian Civil and Administrative Tribunal - Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 - Where residential rental provider addressed transgender renter by deadname in email correspondence - Where Tribunal found there to be no direct or indirect discrimination - Appeal against finding of no indirect discrimination - Consideration of whether 'reasonable adjustment' could be made - Whether Tribunal misapplied burden of proof - Whether finding open to Tribunal on the evidence - Leave to appeal granted - No error of law - Appeal refused - Equal Opportunity Act 2010 (Vic) s 9 - The Trust Company Limited v Blue Train Cafe Pty Ltd [2024] VSC 232; Owners Corporation OC1- POS539033E v Black (2018) 56 VR 1, considered.

SENTENCE - Murder - Fatal assault of intimate partner in context of drug abuse and history of domestic violence - Offender disposed of deceased in shallow grave in bushland - After approximately two years, offender revealed location of shallow grave - Remains recovered - Priors for domestic violence - Offender maintaining innocence of murder - Head sentence of 28 years' imprisonment - Non-parole period of 20 years' imprisonment - The Queen v Kilic [2016] 259 CLR 256 - DPP v Ristevski [2019] VSCA 287 - Skeates (a pseudonym) v The King [2023] VSCA 226 - Walters v The Queen [2013] VSCA 164.

PUBLIC LAW - Application for supervision order - Respondent the subject of interim supervision order - Whether the respondent poses an unacceptable risk of committing a serious violence offence - Duration of 2 years sought - Supervision order not opposed - Contested residential facility condition - Contested electronic monitoring condition - Contested prohibition on contact with victims condition - Contested prohibition on contact with children condition - 2 year supervision order made - Serious Offenders Act 2018 (Vic), ss 1, 3, 8, 13, 14, 15, 19, 27, 31, 34, 35, 36, 37, 38, 42, 54, 99, 110, 134, 135, 139, 142, 183, 209, 273, 279, 280, sch 1, sch 3 - Judicial Proceedings Reports Act 1958 (Vic), s 4.

CRIMINAL LAW - Sentence - One charge of dangerous driving causing death - Sentenced to four years' imprisonment with a non-parole period of three years - Crimes Act 1958 (Vic) - Sentencing Act 1991 (Vic).

CRIMINAL LAW - Supervision order - Application for Supervision Order - Unacceptable risk - Risk assessment tools - Discretion to make no order - Suitability of Corella Place - Non-publication order - Serious Offenders Act 2018 (Vic) ss 14, 15, 22, 24, 279, 280.

CRIMINAL LAW - Sentence - Breach of Supervision Order (SO) - Methylamphetamine use - Eighth breach of SO - Residential rehabilitation accommodation proposed - Long-standing drug addiction - Serious Offenders Act 2018 (Vic) ss 169, 174.

CRIMINAL LAW - Application for bail - Applicant charged with multiple offences including trafficking methylamphetamine in a quantity that is not less than a large commercial quantity - Prior criminal history - Availability of residential drug rehabilitation program - Surety of $200,000 - Exceptional circumstances not established - Application refused.

CRIMINAL LAW - Application for bail - Attempted aggravated home invasion - Support from CISP - Whether exceptional circumstances are made out - Proposed conditions insufficient to mitigate risk of offending to an acceptable level - Application refused.

CONTRACT LAW - Indemnity insurance - Interpretation of insurance policy - Construction of professional liability insurance policy insuring Owners Corporation manager - Obligation to indemnify - Third party liability - Meaning of "claim" - Meaning of "professional business" - Nature of compensatory relief - Nature of restitutionary relief - "Claims made" policy - Claims made by third parties against an insured.

BUILDING CASE - Insurance of licensed plumbers - Liability of insurers - Ministerial Order Licensed Plumbers General Insurance Order 2002 - Domestic plumbing work - The nature of the insurance by which a licensed plumber is required to be covered - Plaintiff homeowner contracted with builder - Defects in building work including plumbing - Builder in liquidation - Plaintiff brought claims in this proceeding against plumbers who were subcontracted to the builder - Plaintiff's application to join plumbers' insurers to the proceeding - The nature of the insurance prescribed by Ministerial Order Licensed Plumbers General Insurance Order 2002 - Part 12A of the Building Act 1993 - Insurance policies - The entitlements of the homeowner - Matters necessary to establish for joinder of a party - The role of the Court.

WORKERS COMPENSATION - Hearing Loss - Whether 'exposed to conditions by reason of which the injury was due to the nature of the worker's employment or arose out of or in the course of the worker's employment?' - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 60.