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.
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.
ADMINISTRATIVE LAW - Appeal from judicial review - Applicant sought review of decision of County Court on appeal from Magistrates' Court - Applicant convicted of breach of s 11(1) of Legal Profession Uniform Law by representing he was entitled to engage in legal practice when he was not a 'qualified entity' - Judicial review application dismissed - Whether judge erred in concluding s 11(1) created a strict liability offence - Whether judge erred by failing to find that County Court judge unreasonably concluded particulars of charge had been proved beyond reasonable doubt - Whether County Court judge erred by failing to grant relief in respect of County Court judge's failure to consider applicant's submission that he was a 'qualified entity' - Leave to appeal refused.
Legal Profession Uniform Law Application Act 2014, sch 1 ss 3, 6, 9, 10, 11 and 12.
He Kaw Teh v The Queen (1985) 157 CLR 523; Proudman v Dayman (1941) 67 CLR 536, applied; Law Society of New South Wales v Spring [2007] NSWSC 1273; Liberato v The Queen (1985) 159 CLR 507; R v Murray (1987) 11 NSWLR 12, considered; Batten v Legal Services Board (County Court of Victoria, Judge Parrish, 29 October 2013); R v Lane [2018] 1 WLR 3647; Pwr v DPP [2022] 1 WLR 789, distinguished.
APPEAL - Application for leave to appeal - Decision of trial judge to approve settlement of proceeding pursuant to s 104U of the Corrections Act 1986 - Applicant brought proceeding against respondent claiming damages for personal injury - Parties entered into deed of settlement following mediation - Applicant claimed deed not accurate recording of terms of settlement - Applicant unrepresented litigant - Judge approved settlement of proceeding - Judge found applicant received legal advice before executing deed - Whether finding unreasonable - Where judge presided over and gave ruling in earlier proceeding - Whether judge ought to have recused himself - Whether judge affected by actual or apprehended bias - No reasonable prospects of success - Application for leave to appeal refused.
Supreme Court Act 1986, ss 14A, 14C; Corrections Act 1986, s 104U, referred to.
R v Australian Stevedore Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; Drumgold v Board of Inquiry & Ors (No 3) [2024] ACTSC 58, considered.
Fyfe v State of South Australia [2000] SASC 84; Warren v Coombes (1979) 142 CLR 531; Lee v Lee (2019) 266 CLR 129, referred to.
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.
APPEAL - Appeal from decision of an Associate Judge - Appeal pursuant to rule 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) conducted by way of rehearing - Whether legal, factual or discretionary error on the part of the Associate Judge - Decision regarding preliminary discovery is one of an interlocutory nature to be determined in the exercise of discretion - No exceptional circumstances shown to permit fresh evidence - No error by the Associate Judge demonstrated - Appeal dismissed.
PRACTICE AND PROCEDURE - Preliminary discovery pursuant to rule 32.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Consideration of the purpose of rule 32.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Documents sought were documents evidencing confirmation of indemnity or denial of indemnity under one or more professional indemnity insurance policies and "recovery style documents" concerning whether insurance funds would be available in the event any claim made were successful - In refusing to order preliminary discovery of such documents, the Associate Judge correctly exercised his discretion.
CIVIL PROCEDURE - Discovery - Disclosure - Non-compliance with Court orders - Breach of overarching obligations - Failure to make discovery or explain failure - Civil Procedure Act 2010 (Vic) s 56(2)(j),- Supreme Court (General Civil Procedure Rules) 2015 (Vic) r 24.02(1)(a) and (b) and r 29.12.1(3)(a) and (b) - Ting Ting Jia v Lee [2018] VSC 164 (Derham AsJ) - Ren v Sinicorp Pty Ltd [2021] VSC 728 (Matthews AsJ).
BUILDING - Protection work notice - Partial completion of prescribed form - Jurisdiction of Building Appeals Board - Natural justice - Utility of relief - Building Act 1993 (Vic) ss 4, 84(1) and (2), 85(1)-(3), 86, 87, 88, 141, 148, 149, 155; Building Regulations 2018 (Vic), r 113, sch 3 Forms 6-8; Interpretation of Legislation Act 1984 (Vic), s 53; Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 316, followed; Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355, applied; Najarian v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 695, followed.
GROUP PROCEEDINGS - Application for a group costs order - Whether proper basis to make group costs order - Group costs order should be made - Whether group costs order percentage should be 33 per cent - Principles to be applied - Percentage should be 27.5 per cent - Application granted - Supreme Court Act 1986 (Vic) s 33ZDA.
COSTS - Indemnity costs - Calderbank offer - Lahanis (2021) 63 VR 197 - Ritter v Godfrey [1920] 2 KB 47 - Verna Trading v New India Assurance Co [1991] 1 VR 129 - Loizou v Derrimut Enterprises Pty Ltd (No 2) [2004] VSC 548 - Youssef v Victoria University of Technology (No 2) [2005] VSC 385.
COSTS - Court has broad discretion - Pragmatic approach where parties enjoyed mixed success at trial - Plaintiffs exaggerate success - Calderbank offer - Refusal not unreasonable - Plaintiffs to pay defendants' costs on a standard basis - BHP Billiton Olympic Dam Corporation Pty Ltd v Steuler Industriewerke GmbH (No 3) [2012] VSC 414; Chen v Chan [2009] VSCA 233.
COSTS - Successful plaintiff - Costs follow the event - Indemnity costs awarded - Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189, applied - Whether gross sum or taxed costs - Supreme Court (General Civil Procedure) Rules 2015 r 63.07(2)(c); Civil Procedure Act 2010 s 65C(2)(c) - Statutory interest awarded - Supreme Court Act 1986 s 58.
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.
TAXES AND DUTIES - Stamp duty - Landholder provisions - Recovery of duty paid by landholder as a debt - Amount to be recovered following payment - Anti-avoidance provisions - Duties Act 2000, s 71, 77, 78, 79, 80, 85(1), 85(2) - Oliver Hume Property Funds (Broad Gully Rd) Diamond Creek Pty Ltd v Commissioner of State Revenue [2024] VSCA 175.
ESTOPPEL - Anshun estoppel - Prior proceeding unsuccessful application to void issue of shares ab initio and breach of directors' duties - Subsequent proceeding for recovery of duty paid for the issue of shares - Whether unreasonable not to include claim in earlier proceeding - Not unreasonable - No risk of inconsistent judgments - Justifiable to refrain from litigating issue in one proceeding - Anshun estoppel not established - Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 - Gibbs v Kinna [1999] 2 VR 19 - Clayton v Bant (2020) (2020) 272 CLR 1 - Solak v Registrar of Titles (2011) 33 VR 40 - Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245 - Stokes v Toyne [2023] NSWCA 59.
LIMITATION OF ACTIONS - Whether claim barred under s 5(1)(d) Limitation of Actions Act 1958 - When cause of action accrued - Every material fact necessary for plaintiff to prove case known - Claim not barred under s 5(1)(d) - Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159.
CONTRIBUTION - Equitable or common law contribution - Scope and availability - Co-ordinate liability - Common burden - Remedy available - Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342 - Mahoney v McManus (1981) 180 CLR 370 - Burke v LFOT Pty Ltd [2002] 209 CLR 282.
CORPORATIONS - Application for appointment of receiver pursuant to s 37(1) of the Supreme Court Act 1986 and r 39.02 or r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015, alternatively for the appointment of a replacement trustee pursuant to s 48 of the Trustee Act 1958 (Vic) ? Ongoing deadlock within corporate trustee constraining the ability of corporate trustee to make decisions - Where ongoing deadlock and resultant failure to release trust funds is causing loss to beneficiaries of the trust - Where just and convenient that a receiver be appointed to distribute the trust funds and for the trust then to be wound up.
PRACTICE AND PROCEDURE - Group proceedings - Common questions - Nathan v Macquarie Leasing Pty Ltd [2024] VSC 625, applied.
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.
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.
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.
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).
INSTITUTIONAL LIABILITY - Personal injury - Abuse of student at boarding school in mid-1970s - Allegations of physical and sexual abuse by other students - Student abuse established - No negligence and no breach of non-delegable duty in respect of student abuse - Allegations of abuse by two brothers of the Catholic order at the school - One brother gave evidence and denied the abuse - Tendency evidence - Gravity of allegation - No actual persuasion that abuse occurred - Other brother was unavailable to give evidence and had been previously convicted of offences admitted as tendency evidence - Alleged abuse established - Identification of the risk of harm - No prior knowledge of abuse established - No evidence as to general awareness of risk of sexual abuse at relevant time - No vicarious liability as brother was not employee of defendant - No breach of non-delegable duty in respect of brother abuse - Section 61 Wrongs Act did not apply - Proceeding dismissed.
COSTS - Calderbank offer - Whether Plaintiff's rejection of First Defendant's Calderbank offer unreasonable - First Defendant offered to settle proceedings for less than half of the amount claimed and to bear own costs - Prior to receipt of Calderbank offer Plaintiff had received outlines of evidence of witnesses who corroborated key elements of First Defendant's evidence - Evidence of witnesses not meaningfully challenged in cross-examination - Plaintiff's prospects of successfully defending counterclaim not good when Calderbank offer received - Rejection of Calderbank offer unreasonable.
COSTS - Trustee's right of indemnity from trust property - Failure to execute trust with reasonable diligence and care - Expenses improperly incurred - Loss of trustee's right of indemnity - Di Benedetto v Kilton Grange Pty Ltd (2017) 16 ASTLR 463 - Hopkins v Edwards [2020] VSC 456.
COSTS - Where plaintiff successful in claim - Where defendant successful in counterclaim - Claim and counterclaim separate events - Costs to follow events - No special costs order - Chell Engineering Ltd v Unit Tool and Engineering Co Ltd [1950] 1 All ER 378 - Yunghanns v Colquhoun- Denvers [2021] VSCA 15.
COSTS - Where plaintiff seeks indemnity costs from expiry of Calderbank offers - Calderbank offers not unreasonably refused - Terms uncertain and unclear - Defendant achieved more favourable result at trial - Costs awarded on standard basis - Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 - M T Associates Pty Ltd v Aqua- Max Pty Ltd & Anor (No 3) [2000] VSC 163 - Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435 - United Petroleum Australia Pty Ltd v Herbert Smith Freehills (No 2) [2018] VSC 501.
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.
APPEAL - Orders of Magistrates' Court - Adverse possession - Erection of fence - Where adverse possessor established factual possession for 15 continuous years - Whether intention to possess - Whether abandonment of possession - Whether acknowledgement of title holder's title - Limitation of Actions Act 1958 ss 8, 9, 14, 18, 24.
PRACTICE AND PROCEDURE - Evidence - Advance ruling - Respondents convicted of slavery offences and interests in house forfeited under confiscations legislation - Where Commissioner applying for pecuniary penalty orders against respondents, and first respondent applying for compensation order in respect of interest in house - Whether sentencing reasons and appeal reasons in prior criminal proceedings admissible - Meaning of 'transcript' in Proceeds of Crime Act 2002 (Cth) s 138(2)(a) - Whether sentencing reasons and appeal reasons are included in 'transcript of proceeding' - Whether Evidence Act 2008 (Vic) s 192A proper vehicle for this issue - Whether orders should be made under s 190(3) of the Evidence Act 2008 (Vic) to permit admission of sentencing remarks and appeal reasons - Degree to which matters are 'not genuinely in dispute' - Whether expense or delay caused if reasons inadmissible would be 'unnecessary' - DPP (Cth) v Kannan & Anor [2021] VSC 439, Kannan & Anor v R [2023] VSCA 58 - Gonzales v Claridades (2003) 58 NSWLR 188, Hollington v F Hewthorn and Co Ltd [1943] KB 587 - Commissioner of the Australian Federal Police v Courtenay Investments (No 2) (2014) 283 FLR 59 - Evidence Act 2008 (Vic) ss 55, 59, 76, 91, 92, 190, 192A - Proceeds of Crime Act (Cth) ss 138, 158, 315, 317, 318.
PRACTICE AND PROCEDURE - Appeal to the Trial Division of the Supreme Court of Victoria from the Victorian Civil and Administrative Tribunal - Must demonstrate a real prospect of success - Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 - Not a fact finding exercise on appeal - Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1 - Boucher v Dandenong Ranges Steiner School Inc (2005) 145 LGERA 21 - Whitehorse City Council v Golden Ridge Investments Pty Ltd (2005) 13 VR 275 - Hoskin v Greater Bendigo City Council (2015) 48 VR 715 - Court to avoid overly pernickety examination of reasons - Roncevich v Repatriation Commission (2005) 222 CLR 115 - Role of VCAT as a specialist tribunal not to be usurped by the Court and a decision of such a tribunal is not to be interfered with absent a vitiating error of law - Rysze International Pty Ltd v Yong [2021] VSC 786 - Club Fogolar Furlan Melbourne v Paramount Investments Group Pty Ltd [2024] VSC 208 - Victorian Civil and Administrative Tribunal Act 1998, ss 148(1), 148(2A).
LEASES AND TENANCIES - Retail leases - Rent review - Whether maximum cap on rent review contravenes s 35(2) of the Retail Leases Act 2003 - Legislative approaches - Remedial or ameliorating legislation - Ratchet clauses - Balance of rights and interests for landlords and tenants - Interpretation of Legislation Act 1984, s 35 - Krajcar v Eastern Central Real Estate Pty Ltd [2022] VSC 173 - Q St Kilda Tenancy Pty Ltd v Kane [2023] VCAT 75 - Roberts Family Enterprises Pty Ltd v Bekirofski [2023] VCAT 121 - Cote Noire Pty Ltd v Roberts Family Enterprises Pty Ltd [2024] VCAT 810 - Ross- Hunt Pty Ltd v Cianjan Pty Ltd [2009] VCAT 829.
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.
WILLS - Executor's commission - Section 65 of the Administration and Probate Act 1958 (Vic) - Whether requirements of s 65D complied with - Application refused.
PROPERTY LAW - Sale of Land Act 1962 (Vic) ss 32, 32H and 32K(1), (2) and (4) - Whether section 32 statement failed to provide required information - Whether purchaser entitled to rescind contact of sale by reason of the vendor's non-disclosure of connected services - Whether vendor acted honestly and reasonably - Whether purchaser in substantially as good a position as if disclosure obligations had been complied with - Fifty- Eighth Highwire v Cohen [1996] 2 VR 64 referred to - Property Law Act 1958 (Vic) s 49(2) - Whether purchaser entitled to return of deposit - Finding that purchaser entitled to return of deposit.
ADMINISTRATIVE LAW - Judicial review and appeals - Application for leave to appeal against VCAT order striking out pleadings - Where applicant alleges apprehended bias - Where applicant alleges legal error in the Tribunal's interpretation of ss 103 and 105 Equal Opportunity Act 2010 (Vic) - Where applicant alleges legal error in the strike out order - Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 75 - AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236 - Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 - Johnson v Johnson (2000) 201 CLR 488.
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.
FIREARMS REGULATION - Family violence - Police - Application to be declared not to be a 'prohibited person' - Applicant subject to a final apprehended domestic violence order - Whether good reason for applicant to have access to firearms - Whether real risk of danger to life of protected person if application granted - Firearms Act 1996 (Vic), ss 3(1), 47(1), 189 - Family Violence Act 2004 (Tas) - Application granted.
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 home invasion, aggravated burglary person present, burglary, theft of motor vehicle, obtaining property by deception, theft, retaining stolen goods - Whether exceptional circumstances established - Whether unacceptable risk of endangering the safety and welfare of others - Applicant 14 years of age - Applicant diagnosed with Attention Deficit Hyperactivity Disorder and Generalised Anxiety Disorder - Difficult circumstances in custody - Bail Act 1977 (Vic) ss 1B, 3AAA, 3B, 4A, 4AA, 4D, 4E.
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.
PUBLIC LAW - Application by offender to review conditions of a supervision order - Leave refused - DPP v DW [2023] VSC 24; DW v Secretary to the Department of Justice and Community Safety [2024] VSC 137; Serious Offenders Act 2018 ss 15, 27, 31, 36, 110.
CRIMINAL LAW - Application to suspend registrable offender's lifelong reporting obligations - Offender convicted in 2006 - 6 charges of sexual penetration of a child under the age of 16 - Victim a foster child in offender's care - No prior convictions - Minor failure to report but otherwise no other subsequent convictions or breaches of reporting obligations - Offender a low risk of future sexual offending - Whether in the public interest to suspend ongoing reporting obligations - Application granted - Sex Offenders Registration Act 2004 (Vic), ss 1, 11, 12, 14, 16, 17, 18, 19, 20, 21, 21A, 22, 23, 23A, 24, 34, 39, 40, 41, 62 - Crimes Act 1958 (Vic), s 45(1) - Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 10, 12, 13, 17.
CRIMINAL LAW - Sentence - Co-accused - Charges of manslaughter on a complicity basis - Deceased stabbed five times - Co-accused did not stab deceased - Witness admitted in the course of trial to having stabbed deceased - Jury returned guilty verdict - Visa status complications for co-accused - Verdins enlivened - General deterrence - Denunciation - Just Punishment - Specific Deterrence - Rehabilitation - Lower to mid-range seriousness for manslaughter.
CRIMINAL LAW - Application pursuant to s 39(2) of the Sex Offenders Registration Act 2004 (Vic) to suspend registrable offender's lifelong reporting obligations - Sexual penetration of a child between 10 and 16 years - Victim supports application - Possess child pornography - No further offending - Applicant now in stable marriage, with children and stable employment - Low risk of sexual offending - Respondent did not oppose application - Application granted - Final suppression order on applicant's identifying information - Sex Offenders Registration Act 2004 (Vic), ss 39, 40 - Open Courts Act 2013 (Vic), ss 17, 18, 20 - Re GH [2024] VSC 217 (Croucher J).
CRIMINAL LAW - Sentencing - Murder - Standard sentence offence - Family violence - Offending witnessed by deceased's eight-year-old daughter - Diagnoses of Complex PTSD and Schizotypal Disorder - Intoxication at time of offending - Plea of guilty at earliest possible opportunity - Evidence of remorse - R v Verdins (2007) 16 VR 269 - Bugmy v The Queen (2013) 249 CLR 571.
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.
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).