CRIMINAL PRACTICE - Admissibility of evidence - Sexual offences against child - Where evidence said to be available that complainant displayed sexualised behaviour prior to alleged offending - Where application to call evidence and cross-examine complainant about prior sexual history refused - Where s 293(3) of Criminal Procedure Act 1986 (NSW) rendered inadmissible evidence that discloses or implies complainant had or may have had sexual experience or lack of sexual experience, or had or may have taken part or not taken part in sexual activity - Whether evidence admissible under exception to s 293(3) - Whether "disclosed or implied in the case for the prosecution" that complainant had or may have had sexual experience or lack of sexual experience or had or may have taken part or not taken part in sexual activity - Whether disclosure or implication from prosecution adducing evidence that complainant was nine years old and from not adducing evidence of complainant's alleged prior sexual experience - Whether Crown Prosecutor's final address unfair.
CRIMINAL PRACTICE - Admissibility of evidence - Sexual offences against child - Where evidence said to be available that complainant displayed sexualised behaviour prior to alleged offending - Where application to call evidence and cross-examine complainant about prior sexual history refused - Where s 293(3) of Criminal Procedure Act 1986 (NSW) rendered inadmissible evidence that discloses or implies complainant had or may have had sexual experience or lack of sexual experience, or had or may have taken part or not taken part in sexual activity - Whether evidence admissible under exception to s 293(3) - Whether "disclosed or implied in the case for the prosecution" that complainant had or may have had sexual experience or lack of sexual experience or had or may have taken part or not taken part in sexual activity - Whether disclosure or implication from prosecution adducing evidence that complainant was nine years old and from not adducing evidence of complainant's alleged prior sexual experience - Whether Crown Prosecutor's final address unfair.
WORDS AND PHRASES - "assumption or inference a juror might hold or draw", "complainant's age alone", "disclosed or implied in the case for the prosecution", "evidence adduced or the submissions made in the case for the prosecution", "expressly or implicitly relied on by the prosecution", "failure of the prosecution to adduce evidence", "had or may have had sexual experience", "miscarriage of justice", "sexual activity", "sexual experience", "unfair reasoning".
Criminal Appeal Act 1912 (NSW), s 6(1).
Criminal Procedure Act 1986 (NSW), s 293.
ADMINISTRATIVE LAW- Judicial review - Jurisdictional error - Where application for student visa refused on basis that plaintiff not genuine applicant for entry and stay as student - Where plaintiff informed Tribunal he did not have current Confirmation of Enrolment in registered course of study - Where plaintiff consented to decision being made without hearing - Where Tribunal affirmed refusal decision on basis that plaintiff not enrolled in registered course of study - Where Federal Circuit Court of Australia refused application for judicial review - Whether decision by Federal Court of Australia to refuse extension of time and leave to appeal involved jurisdictional error - Whether abuse of process to contend Tribunal fell into jurisdictional error.
ADMINISTRATIVE LAW- Judicial review - Jurisdictional error - Where application for student visa refused on basis that plaintiff not genuine applicant for entry and stay as student - Where plaintiff informed Tribunal he did not have current Confirmation of Enrolment in registered course of study - Where plaintiff consented to decision being made without hearing - Where Tribunal affirmed refusal decision on basis that plaintiff not enrolled in registered course of study - Where Federal Circuit Court of Australia refused application for judicial review - Whether decision by Federal Court of Australia to refuse extension of time and leave to appeal involved jurisdictional error - Whether abuse of process to contend Tribunal fell into jurisdictional error.
WORDS AND PHRASES - "abuse of process", "certiorari", "consent", "jurisdictional error", "mandamus", "prospect of success", "reasonably impressionistic level", "registered course of study", "student visa".
Federal Court of Australia Act 1976 (Cth), ss 24, 25, 33.
Migration Act 1958 (Cth), ss 359, 359C, 360.
Federal Circuit Court Rules 2001 (Cth), r 44.12.
High Court Rules 2004 (Cth), r 25.09.3.
Migration Regulations 1994 (Cth), r 1.03, Sch 2 cls 500.111, 500.211, 500.212.
TORT - Private nuisance - Where respondent planned and procured construction of Sydney Light Rail - Where appellants claimed to have suffered loss or damage by reason of substantial interference with ordinary enjoyment of land - Whether purpose of respondent's use of land common and ordinary - Whether construction work "conveniently done" - Whether respondent's liability based on exercise of special statutory power within meaning of s 43A of Civil Liability Act 2002 (NSW) - Whether respondent could rely on defence of statutory authority.
TORT - Private nuisance - Where respondent planned and procured construction of Sydney Light Rail - Where appellants claimed to have suffered loss or damage by reason of substantial interference with ordinary enjoyment of land - Whether purpose of respondent's use of land common and ordinary - Whether construction work "conveniently done" - Whether respondent's liability based on exercise of special statutory power within meaning of s 43A of Civil Liability Act 2002 (NSW) - Whether respondent could rely on defence of statutory authority.
DAMAGES - Assessment - Tort - Whether damages should include reasonable costs incurred in obtaining litigation funding.
WORDS AND PHRASES - "balance", "based on", "common and ordinary", "construction work", "construction works", "conveniently done", "damages", "defence of statutory authority", "defences", "funding commission", "give and take", "injury to land", "litigation funding costs", "not convenient", "not ordinary", "nuisance", "onus", "ordinary enjoyment of land", "private nuisance", "proper consideration", "public authority", "reasonable", "reasonable expectations of the locality", "reasonableness", "right to land", "social utility", "special statutory power", "statutory authority", "substantial interference", "undue interference", "unlawful interference", "unreasonable", "use of land", "wrongful interference".
Civil Liability Act 2002 (NSW), ss 40, 41, 43, 43A.
Roads Act 1993 (NSW), s 7, Pts 2-4, 7-10.
Transport Administration Act 1988 (NSW), ss 3C, 3E, 104N, 104P, Sch 1, cll 3, 9.
Transport Administration Amendment (RMS Dissolution) Act 2019 (NSW), Sch 1.
Transport Administration (General) Amendment (Light Rail) Regulation 2015 (NSW), Sch 1.
Transport Administration (General) Regulation 2013 (NSW), cl 82A
TRADE PRACTICES - Misleading or deceptive conduct - Where "House Bed & Bath" trade mark used as name of new soft homewares stores - Where network of stores throughout Australia sold soft homewares under trade marks including "BED BATH 'N' TABLE" since 1976 - Whether use of "House Bed & Bath" trade mark misleading or deceptive or likely to mislead or deceive in contravention of s 18(1) of Australian Consumer Law - Whether trader's wilful blindness to possibility of confusion relevant to objective question of misleading or deceptive conduct - Whether primary judge's conclusion involved material error.
TRADE PRACTICES - Misleading or deceptive conduct - Where "House Bed & Bath" trade mark used as name of new soft homewares stores - Where network of stores throughout Australia sold soft homewares under trade marks including "BED BATH 'N' TABLE" since 1976 - Whether use of "House Bed & Bath" trade mark misleading or deceptive or likely to mislead or deceive in contravention of s 18(1) of Australian Consumer Law - Whether trader's wilful blindness to possibility of confusion relevant to objective question of misleading or deceptive conduct - Whether primary judge's conclusion involved material error.
WORDS AND PHRASES - "appellate review", "conduct", "confusion", "context", "deceptive similarity", "deceptively similar", "distinctiveness", "evidentiary approach", "immediate and broader context", "inference", "likely to mislead or deceive", "misleading or deceptive", "objective assessment of fact", "reputation", "state of mind", "trade mark", "trade or commerce", "trader", "wilful blindness".
Competition and Consumer Act 2010 (Cth), Sch 2, s 18(1).
Trade Marks Act 1995 (Cth), s 120(1).
ADMINISTRATIVE LAW - Appeal on question of law under Magistrates Court Act 1989, s 109 - Possession order made against tenant - Compensation order of $7,515.95 later made for unpaid rent - Associate judge refused extension of time to appeal compensation order - Associate judge also summarily dismissed appeal - Where judge dismissed appeal from associate judge - Where applicant already vacated premises - Application for leave to appeal dismissed - Application totally without merit.
ADMINISTRATIVE LAW - Appeal on question of law under Magistrates Court Act 1989, s 109 - Possession order made against tenant - Compensation order of $7,515.95 later made for unpaid rent - Associate judge refused extension of time to appeal compensation order - Associate judge also summarily dismissed appeal - Where judge dismissed appeal from associate judge - Where applicant already vacated premises - Application for leave to appeal dismissed - Application totally without merit.
Electronic Transactions (Victoria) Act 2000, s 8(2); Magistrates' Court Act 1989, s 109; Supreme Court Act 1986, s 14D.
ACCIDENT COMPENSATION - Transport accident - Serious injury - Causation - Applicant involved in three transport accidents - Application to commence action for damages in respect of first transport accident only - Whether alleged long-term impairment consequences attributable to first transport accident - Where judge found applicant's evidence about symptoms to be unreliable - Whether judge erred in rejecting expert opinions supporting relevant causal link - Whether judge erred in finding inconsistencies that were not relied upon by medical practitioners - No error by judge - Medical opinions relied on underlying history of symptoms rejected by judge - Application for leave to appeal refused.
ACCIDENT COMPENSATION - Transport accident - Serious injury - Causation - Applicant involved in three transport accidents - Application to commence action for damages in respect of first transport accident only - Whether alleged long-term impairment consequences attributable to first transport accident - Where judge found applicant's evidence about symptoms to be unreliable - Whether judge erred in rejecting expert opinions supporting relevant causal link - Whether judge erred in finding inconsistencies that were not relied upon by medical practitioners - No error by judge - Medical opinions relied on underlying history of symptoms rejected by judge - Application for leave to appeal refused.
Transport Accident Act 1986, s 93.
Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Juma v Kone Elevators Pty Ltd [2024] VSCA 217; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Rowe v Transport Accident Commission [2017] VSCA 377, referred to.
REAL PROPERTY - Easements - Easement by prescription arising from long use - Whether owner of servient tenement consented to use - Whether easement can arise based on 20 or more years of use despite change in ownership of servient tenement - 'Tacking' periods of use at common law - Interaction between easement recognised at common law and indefeasibility of title under Torrens system - 'Tacking' periods of use under Transfer of Land Act 1958.
REAL PROPERTY - Easements - Easement by prescription arising from long use - Whether owner of servient tenement consented to use - Whether easement can arise based on 20 or more years of use despite change in ownership of servient tenement - 'Tacking' periods of use at common law - Interaction between easement recognised at common law and indefeasibility of title under Torrens system - 'Tacking' periods of use under Transfer of Land Act 1958.
STATUTORY INTERPRETATION - Transfer of Land Act 1958 - Indefeasibility of title under s 42(1) - Exception in s 42(2)(d) for 'any easements howsoever acquired subsisting over or upon or affecting the land' - Whether an emerging or inchoate easement is an 'encumbrance' for the purposes of the Transfer of Land Act - Whether an easement by prescription arising from long use extinguished by registration of new proprietor - When easement 'subsists' - Legislative history of s 42 - Section 42 an ambulatory provision describing estate of registered proprietor from time to time, not only at point of registration - Registered proprietor holds land free of encumbrances not recorded on the register except 'paramount interests' in s 42(2).
Transfer of Land Act 1958, ss 3(1), 42.
Delohery v Permanent Trustee Co of New South Wales (1904) 1 CLR 283; Auckran v Pakuranga Hunt Club (1904) 24 NZLR 235; Nelson v Hughes [1947] VLR 227; Dobbie v Davidson (1991) 32 NSWLR 625; Golding v Tanner (1991) 56 SASR 482; Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407; Sunshine Retail Investments Pty Ltd v Wulff [1999] VSC 415; Laming v Jennings [2018] VSCA 335; Hampshire Automotive Centre Pty Ltd v Centre Com (Sunshine) Pty Ltd (2020) 60 VR 579, considered.
PLANNING - Interpretation of planning scheme - Characterisation of proposed use of land -Whether proposed use of land permitted under planning scheme - Land used to temporarily store and process timber mulch - Whether proposed use 'Materials recycling' for purpose of scheme - Whether 'Materials recycling' in conjunction with 'Transfer station' - Where primary judge found temporary storage of mulch prior to transfer constituted 'Transfer station' - Temporary storage of mulch forms part of substantial purpose of 'Materials recycling' - No separate use of land as 'Transfer station' - Not open to find that land used for 'Materials recycling' in conjunction with 'Transfer station' - Proposed use of land prohibited under planning scheme - Application for leave to appeal granted - Appeal allowed.
PLANNING - Interpretation of planning scheme - Characterisation of proposed use of land -Whether proposed use of land permitted under planning scheme - Land used to temporarily store and process timber mulch - Whether proposed use 'Materials recycling' for purpose of scheme - Whether 'Materials recycling' in conjunction with 'Transfer station' - Where primary judge found temporary storage of mulch prior to transfer constituted 'Transfer station' - Temporary storage of mulch forms part of substantial purpose of 'Materials recycling' - No separate use of land as 'Transfer station' - Not open to find that land used for 'Materials recycling' in conjunction with 'Transfer station' - Proposed use of land prohibited under planning scheme - Application for leave to appeal granted - Appeal allowed.
Planning and Environment Act 1987 ss 1, 4(1)(a), 6(2)(b).
Cascone & Vella v City of Whittlesea (1993) 11 AATR 175; Stanley Rural Community Inc v Stanley Pastoral Pty Ltd (2017) 54 VR 676; Boucher v Dandenong Ranges Steiner School Inc (2005) 145 LGERA 21, applied.
CRIMINAL LAW - Appeal - Conviction - Guilty plea to charge of conspiracy to traffick in commercial quantity of drug of dependence - Barrister registered as police informer - Barrister and police persuaded other client to give evidence against applicant - Breaches of barrister's professional duties - Evidence of other client important to prosecution case against applicant - Integrity of plea impugned by non-disclosure of misconduct of barrister and police - Non-disclosure affecting assessment of strength of prosecution case - Issuable question of guilt - Crown concede substantial miscarriage of justice - Whether new trial should be ordered - Insufficient evidence to justify conviction on conspiracy to traffick charge - Applicant could not have been found guilty of 'some other offence' - Not in the interests of justice to order retrial - Leave to appeal granted - Appeal allowed - Conviction set aside - Acquitted.
CRIMINAL LAW - Appeal - Conviction - Guilty plea to charge of conspiracy to traffick in commercial quantity of drug of dependence - Barrister registered as police informer - Barrister and police persuaded other client to give evidence against applicant - Breaches of barrister's professional duties - Evidence of other client important to prosecution case against applicant - Integrity of plea impugned by non-disclosure of misconduct of barrister and police - Non-disclosure affecting assessment of strength of prosecution case - Issuable question of guilt - Crown concede substantial miscarriage of justice - Whether new trial should be ordered - Insufficient evidence to justify conviction on conspiracy to traffick charge - Applicant could not have been found guilty of 'some other offence' - Not in the interests of justice to order retrial - Leave to appeal granted - Appeal allowed - Conviction set aside - Acquitted.
Criminal Procedure Act 2009, s 277.
Mokbel v The King [2024] VSC 725; Mokbel v The King [2025] VSCA 243; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; Orman v The Queen (2019) 59 VR 511, considered.
CRIMINAL LAW - Appeal - Conviction - Incest - Applicant convicted of two charges of incest against stepdaughter - Whether verdicts unreasonable or cannot be supported having regard to the evidence - Complainant gave account of three incidents of alleged offending - Applicant introduced evidence of directed acquittal for third incident at previous trial - Whether complainant's account as to sequence, timing and location of alleged offending so unreliable and inconsistent with objective evidence that jury must have entertained reasonable doubt - Open to jury to be satisfied of applicant's guilt - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Incest - Applicant convicted of two charges of incest against stepdaughter - Whether verdicts unreasonable or cannot be supported having regard to the evidence - Complainant gave account of three incidents of alleged offending - Applicant introduced evidence of directed acquittal for third incident at previous trial - Whether complainant's account as to sequence, timing and location of alleged offending so unreliable and inconsistent with objective evidence that jury must have entertained reasonable doubt - Open to jury to be satisfied of applicant's guilt - Leave to appeal refused.
M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123; Dansie v The Queen (2022) 274 CLR 651; Farrugia v The King [2023] VSCA 248.
CRIMINAL LAW - Appeal - Sentence - Crown Appeal - Charges of incest - Charges of Indecent act with a child under 16 years - Charges of Sexual penetration of a child under 16 - Whether individual sentences and the orders for cumulation and total effective sentence were manifestly inadequate - Whether there was error in failing to apply the terms of Part 2A of the Sentencing Act 1991 - Sentences imposed on incest charges were manifestly inadequate - Total effective sentence of 14 years 2 months not manifestly inadequate - Appellant failed to establish that residual discretion should not be exercised - Appeal dismissed.
CRIMINAL LAW - Appeal - Sentence - Crown Appeal - Charges of incest - Charges of Indecent act with a child under 16 years - Charges of Sexual penetration of a child under 16 - Whether individual sentences and the orders for cumulation and total effective sentence were manifestly inadequate - Whether there was error in failing to apply the terms of Part 2A of the Sentencing Act 1991 - Sentences imposed on incest charges were manifestly inadequate - Total effective sentence of 14 years 2 months not manifestly inadequate - Appellant failed to establish that residual discretion should not be exercised - Appeal dismissed.
Criminal Procedure Act 2009, ss 287 and 289; Sentencing Act 1991, s 6E.
Boxer (a pseudonym) v The Queen [2021] VSCA 300; Bugmy v The Queen (2013) 249 CLR 571; Carter (a pseudonym) v The Queen 272 A Crim R 170; DPP v Dalgliesh (a pseudonym) [2016] VSCA 148; DPP v Goldsmid [2023] VSCA 124; DPP v Karazisis (2010) 31 VR 634; DPP v Polat [2020] VSCA 174, considered.
CRIMINAL LAW - Appeal - Sentence - Applicant convicted of common assault and two charges of rape at trial - Offences committed against single complainant in single episode - Applicant pleaded guilty to sexual assault against different complainant on earlier occasion - Applicant to be sentenced as serious sexual offender on second rape - Relevance of single complainant, single episode offending to application of serious offender provisions - Whether judge erred in order for cumulation on second rape - Whether judge erred in application of totality principle - No error - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Applicant convicted of common assault and two charges of rape at trial - Offences committed against single complainant in single episode - Applicant pleaded guilty to sexual assault against different complainant on earlier occasion - Applicant to be sentenced as serious sexual offender on second rape - Relevance of single complainant, single episode offending to application of serious offender provisions - Whether judge erred in order for cumulation on second rape - Whether judge erred in application of totality principle - No error - Leave to appeal refused.
Sentencing Act 1991, ss 6D-6E.
Flynn (a pseudonym) v The Queen [2020] VSCA 173, discussed.
RH McL v The Queen (2000) 203 CLR 452; DPP v Dillon (a pseudonym) [2025] VSCA 266, referred to.
CRIMINAL LAW - Appeal - Conviction - Applicant charged with indecent assault and rape - Charges relate to same complainant on same occasion - Applicant convicted of indecent assault and acquitted of rape - Whether guilty verdict inconsistent with not guilty verdict - Differing verdicts logical and reasonable - No inconsistency - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Applicant charged with indecent assault and rape - Charges relate to same complainant on same occasion - Applicant convicted of indecent assault and acquitted of rape - Whether guilty verdict inconsistent with not guilty verdict - Differing verdicts logical and reasonable - No inconsistency - Leave to appeal refused.
MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606, applied.
CRIMINAL LAW - Appeal - Sentence - Murder - Recklessly causing injury - Offender killed his intimate partner in a jealous rage, stabbing her multiple times in her home, using six knives - Victim's young daughter injured when attempting to intervene during attack - Plea of guilty - Limited matters in mitigation - Whether judge erred in approach to offender's previous good character - Whether judge failed to take into account effect on offender of hardship to family caused by his imprisonment - Whether sentence of 30 years' imprisonment for murder, and total effective sentence of 31 years' imprisonment with non-parole period of 25 years, within range - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Murder - Recklessly causing injury - Offender killed his intimate partner in a jealous rage, stabbing her multiple times in her home, using six knives - Victim's young daughter injured when attempting to intervene during attack - Plea of guilty - Limited matters in mitigation - Whether judge erred in approach to offender's previous good character - Whether judge failed to take into account effect on offender of hardship to family caused by his imprisonment - Whether sentence of 30 years' imprisonment for murder, and total effective sentence of 31 years' imprisonment with non-parole period of 25 years, within range - Leave to appeal refused.
Sentencing Act 1991, ss 5, 5A, 11A.
Ryan v The Queen (2001) 206 CLR 267; SD v The Queen (2013) 39 VR 487; Wakim v The Queen [2016] VSCA 301; Torrefranca v The Queen [2021] VSCA 157; Markovic v The Queen (2010) 30 VR 589; Carabott v The King [2025] VSCA 118; R v Koumis (2008) 18 VR 434; Clarkson v The Queen (2011) 32 VR 361; Lowndes v The Queen (1999) 195 CLR 665; Young v The Queen [2016] VSCA 149; R v Pham (2015) 256 CLR 550; Hili v The Queen (2010) 242 CLR 520; Brown v The Queen (2019) 59 VR 462; Romero v The Queen (2011) 32 VR 486; Kumova v The Queen (2012) 37 VR 538.
CRIMINAL LAW - Appeal - Conviction - Murder - Accused gave evidence in own defence - Unfair conduct by prosecutor - Multiple breaches of procedural and evidentiary rules - Multiple breaches of the rule in Browne v Dunn - Prosecutor failed in cross-examination to put prosecution case to accused - Reversal of the onus of proof - Prosecutor in final address suggested recent invention by accused without proper basis - Prosecutor advanced theories not supported by evidence - Prosecutor wrongly invited jury to reject ballistics evidence supporting defence case - Prosecutor invited jury to reject ballistics evidence unfavourable to prosecution case despite failure to seek leave to cross-examine ballistics witness - Defence counsel failed to seek discharge of jury - Whether substantial miscarriage of justice despite failure to seek jury discharge - Appeal allowed - Retrial ordered.
CRIMINAL LAW - Appeal - Conviction - Murder - Accused gave evidence in own defence - Unfair conduct by prosecutor - Multiple breaches of procedural and evidentiary rules - Multiple breaches of the rule in Browne v Dunn - Prosecutor failed in cross-examination to put prosecution case to accused - Reversal of the onus of proof - Prosecutor in final address suggested recent invention by accused without proper basis - Prosecutor advanced theories not supported by evidence - Prosecutor wrongly invited jury to reject ballistics evidence supporting defence case - Prosecutor invited jury to reject ballistics evidence unfavourable to prosecution case despite failure to seek leave to cross-examine ballistics witness - Defence counsel failed to seek discharge of jury - Whether substantial miscarriage of justice despite failure to seek jury discharge - Appeal allowed - Retrial ordered.
Browne v Dunn (1893) 6 R 67.
CRIMINAL LAW - Interlocutory Appeal - Application for leave - Aggravated carjacking - Intentionally cause serious injury - Application to exclude evidence pursuant to ss 135 and 137 *Evidence Act 2008 - Whether evidence likely to lead to undue waste of time, and be misleading or confusing - *Whether probative value of evidence outweighed by danger of unfair prejudice - Call charge records not misleading, of high probative value not outweighed by danger of unfair prejudice - GPS tracking evidence of high probative value not outweighed by danger of unfair prejudice - Video mapping misleading in part - Video mapping giving rise to danger of unfair prejudice - Leave to appeal granted - Appeal allowed in respect of evidence of video mapping.
CRIMINAL LAW - Interlocutory Appeal - Application for leave - Aggravated carjacking - Intentionally cause serious injury - Application to exclude evidence pursuant to ss 135 and 137 *Evidence Act 2008 - Whether evidence likely to lead to undue waste of time, and be misleading or confusing - *Whether probative value of evidence outweighed by danger of unfair prejudice - Call charge records not misleading, of high probative value not outweighed by danger of unfair prejudice - GPS tracking evidence of high probative value not outweighed by danger of unfair prejudice - Video mapping misleading in part - Video mapping giving rise to danger of unfair prejudice - Leave to appeal granted - Appeal allowed in respect of evidence of video mapping.
Evidence Act 2008 ss 69, 79(1), 135, 137.
Telecommunications (Interception and Access) Act 1979 (Cth) ss 187(A), 187(AA).
Honeysett v The Queen (2014) 253 CLR 122, applied.
Davies v The Queen [2019] VSCA 66; Godwin (a pseudonym) v The King [2024] VSCA 225; Moreno (a pseudonym) v The King [2023] VSCA 98;* Wagner v The King* [2025] VSCA 56, referred to.
CRIMINAL LAW - Appeal - Conviction - Guilty plea - Charge of entering into agreement or transaction with intentions including preventing recovery of entitlements of employees in contravention of Corporations Act 2001 (Cth) s 596AB(1) as in force 10 July 2014 - Agreement entered into with expectation that entitlements to be paid to employees pursuant to scheme under Fair Entitlements Guarantee Act 2012 (Cth) - Applicant's co-accused made application for referral of question of law to Court of Appeal asking whether person entering into such agreement intends to prevent recovery where expecting payment of entitlements under FEG Act - Court of Appeal answered 'no' to question - Prosecutions against co-accused discontinued - Application for leave to appeal against conviction on basis that applicant could not have been found guilty of offence charged - Respondent conceding appeal - Not open to find applicant intended to prevent recovery of entitlements because applicant believed employee entitlements recoverable under FEG Act - Whether to order trial or entry of acquittal - No prospect of conviction on prosecution case - Prospect of new trial advancing case against applicant reliant on fundamentally different material strikingly unfair - Leave to appeal granted - Appeal allowed - Order for acquittal.
CRIMINAL LAW - Appeal - Conviction - Guilty plea - Charge of entering into agreement or transaction with intentions including preventing recovery of entitlements of employees in contravention of Corporations Act 2001 (Cth) s 596AB(1) as in force 10 July 2014 - Agreement entered into with expectation that entitlements to be paid to employees pursuant to scheme under Fair Entitlements Guarantee Act 2012 (Cth) - Applicant's co-accused made application for referral of question of law to Court of Appeal asking whether person entering into such agreement intends to prevent recovery where expecting payment of entitlements under FEG Act - Court of Appeal answered 'no' to question - Prosecutions against co-accused discontinued - Application for leave to appeal against conviction on basis that applicant could not have been found guilty of offence charged - Respondent conceding appeal - Not open to find applicant intended to prevent recovery of entitlements because applicant believed employee entitlements recoverable under FEG Act - Whether to order trial or entry of acquittal - No prospect of conviction on prosecution case - Prospect of new trial advancing case against applicant reliant on fundamentally different material strikingly unfair - Leave to appeal granted - Appeal allowed - Order for acquittal.
Criminal Procedure Act 2009, s 277.
Peters v The Queen [No 2] (2019) 60 VR 231; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; Mokbel v The King [2025] VSCA 243; Mokbel v Director of Public Prosecutions (Cth) (2021) 289 A Crim R 1; [2021] VSCA 94, applied.
CRIMINAL LAW - Appeal - Conviction - Applicant convicted of trafficking in drug of dependence - Drug trafficking business run by applicant's daughter - Applicant posted 255 packages containing drugs of dependence - Whether applicant was aware of or wilfully blind to the nature of the packages - Whether verdict unreasonable or could not be supported by the evidence - Whether prosecution failed to exclude reasonably open inference consistent with innocence - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Applicant convicted of trafficking in drug of dependence - Drug trafficking business run by applicant's daughter - Applicant posted 255 packages containing drugs of dependence - Whether applicant was aware of or wilfully blind to the nature of the packages - Whether verdict unreasonable or could not be supported by the evidence - Whether prosecution failed to exclude reasonably open inference consistent with innocence - Application for leave to appeal refused.
Criminal Procedure Act 2009, s 276(1).
M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123; Dansie v The Queen (2022) 274 CLR 651; Lang v The Queen (2023) 278 CLR 323; R v Baden-Clay (2016) 258 CLR 308, referred to.
CRIMINAL LAW - Appeal - Applicant convicted of two charges of rape - Prosecutor's address - Prosecutor alleged that prosecution witness had 'gone in to bat' for applicant - Witness cross-examined by prosecutor by leave under s 38 of Evidence Act 2008 - Prosecutor failed to put allegation of bias and/or partiality to witness - Whether duty of fairness breached and breach of rule in Browne v Dunn (1893) 6 R 67 - Whether prosecutor in final address invited incriminating conduct reasoning - Whether prosecutor's address inverted the onus of proof - Whether prosecutor's address breached rule in Palmer v The Queen (1998) 138 CLR 1 - Application for extension of time refused.
CRIMINAL LAW - Appeal - Applicant convicted of two charges of rape - Prosecutor's address - Prosecutor alleged that prosecution witness had 'gone in to bat' for applicant - Witness cross-examined by prosecutor by leave under s 38 of Evidence Act 2008 - Prosecutor failed to put allegation of bias and/or partiality to witness - Whether duty of fairness breached and breach of rule in Browne v Dunn (1893) 6 R 67 - Whether prosecutor in final address invited incriminating conduct reasoning - Whether prosecutor's address inverted the onus of proof - Whether prosecutor's address breached rule in Palmer v The Queen (1998) 138 CLR 1 - Application for extension of time refused.
Evidence Act 2008, s 38.
Jury Directions Act 2015, s 18.
Criminal Procedure Act 2009, s 276(1)(b)-(c).
Browne v Dunn (1893) 6 R 67; Murillo (a pseudonym) v The Queen [2020] VSCA 68; R v Le (2002) 54 NSWLR 474; Reid v Kerr (1974) 9 SASR 367; Thomas v van den Yssel (1976) 14 SASR 205; Soames v The Queen [2012] NSWCCA 188; Ritchie (a pseudonym) v The Queen [2019] VSCA 202; Palmer v The Queen (1998) 138 CLR 1; Spence v The Queen [2016] VSCA 113, discussed.
Saddik v The Queen [2018] VSCA 249; Liberato v The Queen (1985) 159 CLR 507, referred to.
CRIMINAL LAW - Appeal - Conviction - Intentionally causing serious injury in circumstances of gross violence - Theft of a motor vehicle - Prosecution adduced oral evidence of text messages allegedly sent by the appellant containing admissions - Text messages were said to be deleted - Counsel for both sides unaware until after trial that text messages were in depositions - Text messages did not contain admissions - Crown conceded conviction would not have been inevitable if text messages admitted - Substantial miscarriage of justice had occurred - Appeal allowed - Retrial ordered.
CRIMINAL LAW - Appeal - Conviction - Intentionally causing serious injury in circumstances of gross violence - Theft of a motor vehicle - Prosecution adduced oral evidence of text messages allegedly sent by the appellant containing admissions - Text messages were said to be deleted - Counsel for both sides unaware until after trial that text messages were in depositions - Text messages did not contain admissions - Crown conceded conviction would not have been inevitable if text messages admitted - Substantial miscarriage of justice had occurred - Appeal allowed - Retrial ordered.
Crimes Act 1958, ss 15A, 74(1).
Baini v The Queen (2012) 246 CLR 469, applied.
PRACTICE AND PROCEDURE - Application for extension of time - Adequate reasons for delay - Correctness of finding regarding novated contract of employment reasonably arguable on appeal - Application granted.
PRACTICE AND PROCEDURE - Application for extension of time - Adequate reasons for delay - Correctness of finding regarding novated contract of employment reasonably arguable on appeal - Application granted.
PRACTICE AND PROCEDURE - Stay - Application for stay - Bankruptcy notice - No special circumstances established - Application for stay dismissed.
PRACTICE AND PROCEDURE - Corporate respondent - Supreme Court (General Civil Procedure) Rules 2025 r 1.17(1) - Application for leave for respondent to appear through director granted.
PRACTICE AND PROCEDURE - Appeal - Application for leave to appeal order transferring personal injury proceeding from Supreme Court to County Court on Supreme Court's own motion - Errors asserted by plaintiff not reasonably arguable - Baseless allegations of bias and misconduct - Proposed appeal having no prospects of success - Application for leave to appeal totally without merit - Application for leave to appeal refused.
PRACTICE AND PROCEDURE - Appeal - Application for leave to appeal order transferring personal injury proceeding from Supreme Court to County Court on Supreme Court's own motion - Errors asserted by plaintiff not reasonably arguable - Baseless allegations of bias and misconduct - Proposed appeal having no prospects of success - Application for leave to appeal totally without merit - Application for leave to appeal refused.
PRACTICE AND PROCEDURE - Appeal - Application for leave to appeal order transferring personal injury proceeding from Supreme Court to County Court on Supreme Court's own motion - Errors asserted by plaintiff not reasonably arguable - Baseless allegations of bias and misconduct - Proposed appeal having no prospects of success - Application for leave to appeal totally without merit - Application for leave to appeal refused.
Courts (Case Transfer) Act 1991, s 30; Supreme Court Act 1986, s 14D.
PRACTICE AND PROCEDURE - Appeal against refusal to reinstate proceeding - Applicants failed to comply with self-executing order and proceeding stood dismissed - Whether judge applied correct test for reinstatement of proceeding - No error in judge's approach - Whether judge erred in assessment of prejudice to respondent if proceeding were to be reinstated - No error in judge's assessment - Threshold of materiality for error in accordance with principles in House v The King (1936) 55 CLR 499 - Leave to appeal refused.
PRACTICE AND PROCEDURE - Appeal against refusal to reinstate proceeding - Applicants failed to comply with self-executing order and proceeding stood dismissed - Whether judge applied correct test for reinstatement of proceeding - No error in judge's approach - Whether judge erred in assessment of prejudice to respondent if proceeding were to be reinstated - No error in judge's assessment - Threshold of materiality for error in accordance with principles in House v The King (1936) 55 CLR 499 - Leave to appeal refused.
Civil Procedure Act 2010, ss 7, 9.
Jorgensen v Slater & Gordon Pty Ltd [2008] VSCA 110, considered.
PRACTICE AND PROCEDURE - Service - Where applicant's solicitor purportedly served with certificates of assessment and prescribed information pursuant to s 28LT of Wrongs Act 1958 - Where timing of service affected validity of referral of questions to medical panel - Whether service effected by service on solicitor - Proper construction of s 28LT requires service in fact - Section 28LT not subject to County Court Civil Procedure Rules 2018 - Rule 6.01 does not apply to permit service under s 28LT in any event - Where solicitor did not have express or implied authority to accept service of documents for the purposes of Part VBA of Wrongs Act 1958 - Service effected when documents in fact came to notice of applicant's director.
PRACTICE AND PROCEDURE - Service - Where applicant's solicitor purportedly served with certificates of assessment and prescribed information pursuant to s 28LT of Wrongs Act 1958 - Where timing of service affected validity of referral of questions to medical panel - Whether service effected by service on solicitor - Proper construction of s 28LT requires service in fact - Section 28LT not subject to County Court Civil Procedure Rules 2018 - Rule 6.01 does not apply to permit service under s 28LT in any event - Where solicitor did not have express or implied authority to accept service of documents for the purposes of Part VBA of Wrongs Act 1958 - Service effected when documents in fact came to notice of applicant's director.
STATUTORY CONSTRUCTION - Wrongs Act 1958 ss 28LT, 28LW - To commence time running for the purpose of s 28LW, service under s 28T requires bringing the documents to notice of respondent, in fact - Application for leave to appeal granted - Appeal allowed.
Capper v Thorpe (1998) 194 CLR 342; Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542; Emhill Pty Ltd v Bonsoc Pty Ltd (2004) 185 FLR 389; Kestel v Superannuation Complaints Tribunal (2010) 276 ALR 112, applied.
PRACTICE AND PROCEDURE - Appeal - Application for summary judgment - Bank commenced proceedings seeking amount owing for three loans and possession of mortgaged property - Applicants argued mortgage was not a contract and not binding - Applicants claimed they had discharged mortgage by 'bill of exchange' and 'promissory note' - Bank obtained summary judgment against applicants - Applicants' proposed grounds of appeal were unmeritorious - Applicants' defence and counterclaim was legal nonsense - Leave to appeal refused.
PRACTICE AND PROCEDURE - Appeal - Application for summary judgment - Bank commenced proceedings seeking amount owing for three loans and possession of mortgaged property - Applicants argued mortgage was not a contract and not binding - Applicants claimed they had discharged mortgage by 'bill of exchange' and 'promissory note' - Bank obtained summary judgment against applicants - Applicants' proposed grounds of appeal were unmeritorious - Applicants' defence and counterclaim was legal nonsense - Leave to appeal refused.
Civil Procedure Act 2010, s 64; County Court Civil Procedure Rules 2018, ord 22.
Atkinson v Federal Commissioner of Taxation [2014] FCA 1217; Maksacheff v Commonwealth Bank of Australia (No 2) [2016] NSWSC 1109; Aslor Pty Ltd (in liq) v Springmount Pty Ltd [1998] VSC 108; Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27; Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523; Fielding & Platt Ltd v Selim Najjar [1969] 1 WLR 357; Spencer v Commonwealth of Australia (2010) 241 CLR 118; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, considered.
PRACTICE AND PROCEDURE - Applicants sought to file document headed 'Writ' - Prothonotary refused to accept document for filing - Applicants did not seek that the Court exercise its power pursuant to r 28.04(5) - Primary judge did not decide whether to direct First Respondent to accept document for filing - No determination capable of being appealed - Leave to appeal refused.
PRACTICE AND PROCEDURE - Applicants sought to file document headed 'Writ' - Prothonotary refused to accept document for filing - Applicants did not seek that the Court exercise its power pursuant to r 28.04(5) - Primary judge did not decide whether to direct First Respondent to accept document for filing - No determination capable of being appealed - Leave to appeal refused.
Supreme Court (General Civil Procedure) Rules 2025, rr 28A.04(2), 28A.04(5), 64.15(5)(iv); Supreme Court Act 1986, s 14D(3).
Re Thorpe [2024] VSCA 172; O'Bryan v Lindholm (2024) 74 VR 496, considered.
PRACTICE AND PROCEDURE - Filing - Applicant sought to file document seeking directions for the assembly of a special court to hear certain matters and commencement of criminal proceeding - Deputy Prothonotary refused to seal documents as documents substantially and procedurally irregular - Judge declined to direct Prothonotary to seal document - Application is totally without merit - Leave to appeal refused.
PRACTICE AND PROCEDURE - Filing - Applicant sought to file document seeking directions for the assembly of a special court to hear certain matters and commencement of criminal proceeding - Deputy Prothonotary refused to seal documents as documents substantially and procedurally irregular - Judge declined to direct Prothonotary to seal document - Application is totally without merit - Leave to appeal refused.
Supreme Court (General Civil Procedure) Rules 2025, rr 28A.04(2), 64.15(5)(iv); Supreme Court Act 1986, s 14D(3).
EVIDENCE - Admissibility - Relevance - Hearsay - Exclusion of evidence of judgments and convictions - Chinese court judgment - Business record exception - Chinese company search document obtained from a Chinese company website - Evidence Act 2008 (Vic), ss 48(1), 49, 55, 69, 91, 92, 156.
EVIDENCE - Admissibility - Relevance - Hearsay - Exclusion of evidence of judgments and convictions - Chinese court judgment - Business record exception - Chinese company search document obtained from a Chinese company website - Evidence Act 2008 (Vic), ss 48(1), 49, 55, 69, 91, 92, 156.
ARBITRATION - Leave to issue a subpoena - Principles - Court must be satisfied of compliance with relevant section and rule and reasonableness of subpoena - Court will not 'second guess' arbitrator's ruling where documents relevant to issues in proceeding and subpoena sought to be issued for legitimate forensic purpose - Leave granted on return of application - Aurecon Australasia Pty Ltd v BMD Constructions Pty Ltd (2017) 52 VR 267 - Delphi Petroleum Inc v Derin Shipping & Trading Ltd (1993) 73 FTR 241 - ASADA v 34 Players and One Support Person [2014] VSC 635 - Commercial Arbitration Act 2011 (Vic), s 27A.
ARBITRATION - Leave to issue a subpoena - Principles - Court must be satisfied of compliance with relevant section and rule and reasonableness of subpoena - Court will not 'second guess' arbitrator's ruling where documents relevant to issues in proceeding and subpoena sought to be issued for legitimate forensic purpose - Leave granted on return of application - Aurecon Australasia Pty Ltd v BMD Constructions Pty Ltd (2017) 52 VR 267 - Delphi Petroleum Inc v Derin Shipping & Trading Ltd (1993) 73 FTR 241 - ASADA v 34 Players and One Support Person [2014] VSC 635 - Commercial Arbitration Act 2011 (Vic), s 27A.
SERVICE OUT OF JURISDICTION - Service effected by plaintiff on Spanish corporation under r 80.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters - Application by Spanish corporation to set aside service of process and for permanent stay of proceeding - Finding that claims made by plaintiff were within ambit of exclusive jurisdiction clause which required such claims to be brought in Spanish court - No features of the matter which warranted departure from prima facie position that plaintiff should be required to adhere to the choice of jurisdiction provision in the agreement between the parties - Orders made setting aside service and for a permanent stay of the proceeding - VS Property & Holding Pty Ltd v Zurzolo [2024] VSCA 199; Global Partners Fund Ltd v Babcock & Brown Ltd (2010) 79 ACSR 383; Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160; Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45 applied.
SERVICE OUT OF JURISDICTION - Service effected by plaintiff on Spanish corporation under r 80.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters - Application by Spanish corporation to set aside service of process and for permanent stay of proceeding - Finding that claims made by plaintiff were within ambit of exclusive jurisdiction clause which required such claims to be brought in Spanish court - No features of the matter which warranted departure from prima facie position that plaintiff should be required to adhere to the choice of jurisdiction provision in the agreement between the parties - Orders made setting aside service and for a permanent stay of the proceeding - VS Property & Holding Pty Ltd v Zurzolo [2024] VSCA 199; Global Partners Fund Ltd v Babcock & Brown Ltd (2010) 79 ACSR 383; Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160; Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45 applied.
COURTS AND JUDGES - 13 year old girl - Complex background trauma, auditory and visual hallucinations, self-harm, suicidal ideation, planning and attempts - Psychiatric admissions - Child Protection involved since January 2025 - Serious psychiatric diagnoses - Protection application made but yet to be determined by the Children's Court - Repeated interim accommodation orders made - Repeated placements in out of home care - Repeated placements in 'secure welfare service' - Escalating incidents of self-harm, suicidal ideation and planning - Limitation in the applicable statutory scheme - Application made in the parens patriae jurisdiction of the Court - Acute risk of self-harm, suicide and death - Risk of institutionalisation - Child in need of protection in demonstrably exceptional circumstances - Best interests of the child - Human rights considerations - Ward of the Court - Delegation - Interim placement in 'secure welfare service' - 'Bespoke' model of care under consideration - Children, Youth and Families Act 2005 (Vic), ss 173, 263, 264, 267 and 268; Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2) and 38(1) - Secretary, Department of Health and Community Services v JWB and SMB [Marion's case] (1992) 175 CLR 218; Director-General, Department of Community Services; Re Jules (2008) 40 Fam LR 122; Re Beth (2013) 42 VR 124; Re WD (No 3) [2024] VSC 14; Secretary DFFH v Hage (a pseudonym) (2025) 77 VR 1 considered - Orders made - Parties to return to Court in mid-December.
COURTS AND JUDGES - 13 year old girl - Complex background trauma, auditory and visual hallucinations, self-harm, suicidal ideation, planning and attempts - Psychiatric admissions - Child Protection involved since January 2025 - Serious psychiatric diagnoses - Protection application made but yet to be determined by the Children's Court - Repeated interim accommodation orders made - Repeated placements in out of home care - Repeated placements in 'secure welfare service' - Escalating incidents of self-harm, suicidal ideation and planning - Limitation in the applicable statutory scheme - Application made in the parens patriae jurisdiction of the Court - Acute risk of self-harm, suicide and death - Risk of institutionalisation - Child in need of protection in demonstrably exceptional circumstances - Best interests of the child - Human rights considerations - Ward of the Court - Delegation - Interim placement in 'secure welfare service' - 'Bespoke' model of care under consideration - Children, Youth and Families Act 2005 (Vic), ss 173, 263, 264, 267 and 268; Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2) and 38(1) - Secretary, Department of Health and Community Services v JWB and SMB [Marion's case] (1992) 175 CLR 218; Director-General, Department of Community Services; Re Jules (2008) 40 Fam LR 122; Re Beth (2013) 42 VR 124; Re WD (No 3) [2024] VSC 14; Secretary DFFH v Hage (a pseudonym) (2025) 77 VR 1 considered - Orders made - Parties to return to Court in mid-December.
CORPORATIONS - External administration - Liquidation of company which acted as trustee of unit trust - Application by liquidator for orders in respect of the trust property - Company became bare trustee upon liquidation by operation of ipso facto clause in trust deed - Trustee's right of indemnity from trust assets - Evidence that company only carried on business as trustee of the trusts - Supreme Court Act 1986 (Vic), s 37, application for order that liquidator be appointed receiver and manager of trust assets - Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 39.05, application for order dispensing with the need for the receiver to give security - Corporations Act 2001 (Cth), s 420, application that receiver be granted powers mentioned in s420(2) other than ss 420(2)(s), (t), (u) and (w) - Orders made that liquidator have powers to apply the proceeds of sale of trust property in accordance with priorities set out in s 556 of the Corporations Act.
CORPORATIONS - External administration - Liquidation of company which acted as trustee of unit trust - Application by liquidator for orders in respect of the trust property - Company became bare trustee upon liquidation by operation of ipso facto clause in trust deed - Trustee's right of indemnity from trust assets - Evidence that company only carried on business as trustee of the trusts - Supreme Court Act 1986 (Vic), s 37, application for order that liquidator be appointed receiver and manager of trust assets - Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 39.05, application for order dispensing with the need for the receiver to give security - Corporations Act 2001 (Cth), s 420, application that receiver be granted powers mentioned in s420(2) other than ss 420(2)(s), (t), (u) and (w) - Orders made that liquidator have powers to apply the proceeds of sale of trust property in accordance with priorities set out in s 556 of the Corporations Act.
CORPORATIONS - Winding up - Presumption of insolvency - Statutory demand - Service - Where demand received by email prior to deemed receipt by post - Whether demand served when the email came to the attention of the company's sole director - Whether time for compliance commences from date of delivery of the email - Whether demand was stale at time the winding-up application was filed - Corporations Act 2001 (Cth) ss 105A, 105B, 109C, 109D, 459C, 459F - Howship Holdings Pty Ltd v Leslie (No 2) (1996) 41 NSWLR 542, Re New Wilkie Energy Group Ltd [2024] NSWSC 942, CED WISE AB Services Pty Ltd v Hilltops Pastoral Group Pty Ltd [2013] QSC 259, EC Newstead Property Group Pty Ltd v H&T Qld Pty Ltd [2020] VSC 322, Re Kornucopia Pty Ltd (No 1) [2019] VSC 756, Re Bioaction Pty Ltd [2022] FCA 436, Sandys Swim Pty Ltd v Morgan [2022] FCA 1574 considered.
CORPORATIONS - Winding up - Presumption of insolvency - Statutory demand - Service - Where demand received by email prior to deemed receipt by post - Whether demand served when the email came to the attention of the company's sole director - Whether time for compliance commences from date of delivery of the email - Whether demand was stale at time the winding-up application was filed - Corporations Act 2001 (Cth) ss 105A, 105B, 109C, 109D, 459C, 459F - Howship Holdings Pty Ltd v Leslie (No 2) (1996) 41 NSWLR 542, Re New Wilkie Energy Group Ltd [2024] NSWSC 942, CED WISE AB Services Pty Ltd v Hilltops Pastoral Group Pty Ltd [2013] QSC 259, EC Newstead Property Group Pty Ltd v H&T Qld Pty Ltd [2020] VSC 322, Re Kornucopia Pty Ltd (No 1) [2019] VSC 756, Re Bioaction Pty Ltd [2022] FCA 436, Sandys Swim Pty Ltd v Morgan [2022] FCA 1574 considered.
CORPORATIONS - Winding up - Where statutory presumption of insolvency disputed - Whether application fails to comply with s 459Q of the Corporations Act 2001 (Cth) or is defective or misleading for failing to provide particulars of email service of the statutory demand - Oral application to amend the application to raise actual insolvency refused - Corporations Act 2001 (Cth) ss 459Q, 459R, 467(3)(e).
CORPORATIONS - External administration - Corporations Act 2001 (Cth), ss 420, 90-15 and 90-20 of Insolvency Practice Schedule (Corporations) (Schedule 2) - Trustee Act 1958 (Vic), s 63 - Liquidation of company which acted as trustee of a discretionary trust - Application by liquidator for orders in respect of the trust property - Company became bare trustee upon liquidation by reason of operation of ipso facto clause in trust deed - Trustee's right of indemnity from trust assets - Evidence that company only carried on business as trustee of the trust - Orders made that liquidator was justified and acting reasonably and proceeding on the basis that the company acted solely as trustee of the trust, that all the property of the trust is properly characterised as property of the company and that all creditors of the company were creditors of the trust - Orders made under s 63 of the Trustee Act conferring powers necessary to deal with trust property on the liquidator.
CORPORATIONS - External administration - Corporations Act 2001 (Cth), ss 420, 90-15 and 90-20 of Insolvency Practice Schedule (Corporations) (Schedule 2) - Trustee Act 1958 (Vic), s 63 - Liquidation of company which acted as trustee of a discretionary trust - Application by liquidator for orders in respect of the trust property - Company became bare trustee upon liquidation by reason of operation of ipso facto clause in trust deed - Trustee's right of indemnity from trust assets - Evidence that company only carried on business as trustee of the trust - Orders made that liquidator was justified and acting reasonably and proceeding on the basis that the company acted solely as trustee of the trust, that all the property of the trust is properly characterised as property of the company and that all creditors of the company were creditors of the trust - Orders made under s 63 of the Trustee Act conferring powers necessary to deal with trust property on the liquidator.
PRACTICE AND PROCEDURE - Discovery - Definition of 'Documents' - Categories of discovery - Sufficiency and relevance of agreed discovery categories - Proportionality - Whether discovery should extend to emails - Costs and delays - Interlocutory orders made on the papers.
PRACTICE AND PROCEDURE - Discovery - Definition of 'Documents' - Categories of discovery - Sufficiency and relevance of agreed discovery categories - Proportionality - Whether discovery should extend to emails - Costs and delays - Interlocutory orders made on the papers.
PRACTICE AND PROCEDURE - Discovery - Plaintiff's application for specific discovery - Rule 29.08 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Whether documents relevant to question or fact in issue on the pleadings - Some categories of discovery ordered.
PRACTICE AND PROCEDURE - Discovery - Plaintiff's application for specific discovery - Rule 29.08 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Whether documents relevant to question or fact in issue on the pleadings - Some categories of discovery ordered.
PRACTICE AND PROCEDURE - Pleadings - Late application to file a further amended defence and counterclaim - Application for amendment under r 36.01(1) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Amendment application general principles - Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 - Multiple previous pleadings and draft pleadings - Application made at end of trial - Civil Procedure Act 2010 (Vic) ss 7, 8 and 9 - Delay - Explanation for delay - Claimed prejudice - Overarching purpose - Application for joinder under rr 9.06 and 10.03 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Joinder application at conclusion of trial - Joinder application general principles.
PRACTICE AND PROCEDURE - Pleadings - Late application to file a further amended defence and counterclaim - Application for amendment under r 36.01(1) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Amendment application general principles - Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 - Multiple previous pleadings and draft pleadings - Application made at end of trial - Civil Procedure Act 2010 (Vic) ss 7, 8 and 9 - Delay - Explanation for delay - Claimed prejudice - Overarching purpose - Application for joinder under rr 9.06 and 10.03 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Joinder application at conclusion of trial - Joinder application general principles.
PRACTICE AND PROCEDURE - Interlocutory injunction - Application by mortgagor to restrain mortgagee from selling mortgaged property unless sale occurs above a -stipulated reserve price or with the mortgagor's written consent - Balance of convenience favours mortgagee - Serious question insufficiently strong to warrant injunction in those circumstances - Application refused.
PRACTICE AND PROCEDURE - Interlocutory injunction - Application by mortgagor to restrain mortgagee from selling mortgaged property unless sale occurs above a -stipulated reserve price or with the mortgagor's written consent - Balance of convenience favours mortgagee - Serious question insufficiently strong to warrant injunction in those circumstances - Application refused.
CONTRACT - Construction and interpretation - Whether obligation to provide parent company guarantee was conditional - Waiver - Whether plaintiff by its conduct waived right to parent company guarantee.
CONTRACT - Construction and interpretation - Whether obligation to provide parent company guarantee was conditional - Waiver - Whether plaintiff by its conduct waived right to parent company guarantee.
CONTRACT - Alleged collateral contract - Whether individuals or subsidiary had actual or ostensible authority - Whether conduct relied upon was promissory in character - Whether intention to create legal relations.
CONTRACT - Guarantee - Requirement for writing - Instruments Act 1958 (Vic), s 126 - Pugwall Pty Ltd v Arthur McKenzie Investments Pty Ltd [2022] VSCA 272, considered.
EQUITY - Mandatory injunction for performance of a contractual term - Whether damages an adequate remedy - Damages an inadequate remedy for non-provision of guarantee and for loss of an agreed risk allocation mechanism - East Rockingham RRF Project Co Pty as Trustee for the East Rockingham RRF Project Trust v Acciona Construction Australia Pty Ltd [2024] FCA 759, applied - Discretionary considerations for equitable relief - Impossibility of performance - Parwan Investments Pty Ltd v Hooper [2024] VSCA 86, considered - Held performance not impossible or inutile.
PROPERTY LAW - Repudiation by anticipatory breach - Contract for sale of apartments - Where vendor and purchaser at impasse as to contractual requirements - Where purchaser sent email repudiating contract - Where vendor accepted purchaser's repudiation and terminated contract - Whether vendor was ready, willing and able to complete contract - Vendor was ready, willing and able notwithstanding unresolved dispute as to contractual requirements - Whether vendor should be estopped from accepting repudiation - No estoppel arises - Whether vendor made election to affirm the contract - Where vendor continued to build apartments after receiving repudiatory email - Vendor did not affirm contract - Vendor entitled to retain deposit - DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 - Foran v Wight (1989) 168 CLR 385 - Willis v Crosland (2021) 65 VR 1.
PROPERTY LAW - Repudiation by anticipatory breach - Contract for sale of apartments - Where vendor and purchaser at impasse as to contractual requirements - Where purchaser sent email repudiating contract - Where vendor accepted purchaser's repudiation and terminated contract - Whether vendor was ready, willing and able to complete contract - Vendor was ready, willing and able notwithstanding unresolved dispute as to contractual requirements - Whether vendor should be estopped from accepting repudiation - No estoppel arises - Whether vendor made election to affirm the contract - Where vendor continued to build apartments after receiving repudiatory email - Vendor did not affirm contract - Vendor entitled to retain deposit - DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 - Foran v Wight (1989) 168 CLR 385 - Willis v Crosland (2021) 65 VR 1.
APPEALS - PRACTICE AND PROCEDURE - Competency of appeal on question of law where order appealed from has ceased to operate - Appeal dismissed as incompetent - Children, Youth and Families Act 2005, ss 282, 329 - AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 278 CLR 512 - O'Bryan v Lindholm (2024) 74 VR 496.
APPEALS - PRACTICE AND PROCEDURE - Competency of appeal on question of law where order appealed from has ceased to operate - Appeal dismissed as incompetent - Children, Youth and Families Act 2005, ss 282, 329 - AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 278 CLR 512 - O'Bryan v Lindholm (2024) 74 VR 496.
CONTEMPT OF COURT - Sentence - Respondent adjudged guilty of 14 charges of contempt - Respondent made abusive and disrespectful comments to County Court judge in court - Respondent sent emails to court containing threatening language and allegations of impropriety and corruption - Threats to judge serious examples of contempt - Late apology offered - Provisional diagnosis of autism - Term of imprisonment appropriate.
CONTEMPT OF COURT - Sentence - Respondent adjudged guilty of 14 charges of contempt - Respondent made abusive and disrespectful comments to County Court judge in court - Respondent sent emails to court containing threatening language and allegations of impropriety and corruption - Threats to judge serious examples of contempt - Late apology offered - Provisional diagnosis of autism - Term of imprisonment appropriate.
R v Bonacci (No 2) [2015] VSC 134; Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309; Rich v Attorney-General (Vic) (1999) 103 A Crim R 261; Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90, considered.
APPEAL - Children's Court of Victoria - Interim accommodation order - Nature of appeal - Evidence on appeal - Family violence - Best interests of children - Condition that father not reside at family home - Whether different interim accommodation orders should have been made - Children, Youth and Families Act 2005 (Vic), ss 10, 215, 215A, 262, 271.
APPEAL - Children's Court of Victoria - Interim accommodation order - Nature of appeal - Evidence on appeal - Family violence - Best interests of children - Condition that father not reside at family home - Whether different interim accommodation orders should have been made - Children, Youth and Families Act 2005 (Vic), ss 10, 215, 215A, 262, 271.
COSTS - Group proceeding - Application by second defendant for proceeding to be declassed and amended statement of claim struck out - Costs of summons - Immediate taxation - Supreme Court (General Civil Procedure) Rules 2025 rr 63.20, 63.20.1 - Second defendant pay plaintiff's costs of summons - No order as to immediate taxation.
COSTS - Group proceeding - Application by second defendant for proceeding to be declassed and amended statement of claim struck out - Costs of summons - Immediate taxation - Supreme Court (General Civil Procedure) Rules 2025 rr 63.20, 63.20.1 - Second defendant pay plaintiff's costs of summons - No order as to immediate taxation.
TRUSTS AND TRUSTEES - Charitable trust - Where land held in trust is situated in parish - Judicial advice - Where plaintiff trustee seeks justification and indemnity directions to defend main proceeding and prosecute counterclaim - Application for joinder by Attorney-General of Victoria - Attorney-General added as defendant as the proper and competent party - Application for joinder by member of the parish as proposed objector - Where proposed objector the plaintiff in main proceeding - Summary character of judicial advice proceedings - Proposed objector's joinder application dismissed - Proposed objector to pay costs of joinder application - Where dispute about charitable purposes of the trust in main proceeding - Proper basis for plaintiff's defence and counterclaim in main proceeding - Best interests of the trust - Consideration of confidential advice from counsel - Justification direction granted - Proposed expenditure of costs not futile or fruitless - Costs cap proposed - Capacity to vary or revoke indemnity order - Costs broadly appropriate - Indemnity order made - Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 - Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor (2006) 66 NSWLR 112 - Plan B Trustees Ltd v Parker (No 2) (2013) 11 ASTLR 242 - Re Estate Late Chow Cho-Poon; application for judicial advice (2013) NSWSC 844 - Charlesworth Nominees Pty Ltd v Charlesworth (2017) 54 VR 155 - Hopkins v Edwards [2020] VSC 456 - Re Macedonian Orthodox Church Community 'Saint Dimitrij Solunski' Springvale Inc [2020] VSC 274 - Avery v Manno (2020) 62 VR 281 - Supreme Court (General Civil Procedure) Rules 2025, ord 54, r 63.26 - Trustee Act 1958, s 36(2) - Trustee Act 1925 (NSW), s 63 - Religious and Successory Trusts Act 1958 - Trustees Act 1962 (WA), s 92.
TRUSTS AND TRUSTEES - Charitable trust - Where land held in trust is situated in parish - Judicial advice - Where plaintiff trustee seeks justification and indemnity directions to defend main proceeding and prosecute counterclaim - Application for joinder by Attorney-General of Victoria - Attorney-General added as defendant as the proper and competent party - Application for joinder by member of the parish as proposed objector - Where proposed objector the plaintiff in main proceeding - Summary character of judicial advice proceedings - Proposed objector's joinder application dismissed - Proposed objector to pay costs of joinder application - Where dispute about charitable purposes of the trust in main proceeding - Proper basis for plaintiff's defence and counterclaim in main proceeding - Best interests of the trust - Consideration of confidential advice from counsel - Justification direction granted - Proposed expenditure of costs not futile or fruitless - Costs cap proposed - Capacity to vary or revoke indemnity order - Costs broadly appropriate - Indemnity order made - Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 - Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor (2006) 66 NSWLR 112 - Plan B Trustees Ltd v Parker (No 2) (2013) 11 ASTLR 242 - Re Estate Late Chow Cho-Poon; application for judicial advice (2013) NSWSC 844 - Charlesworth Nominees Pty Ltd v Charlesworth (2017) 54 VR 155 - Hopkins v Edwards [2020] VSC 456 - Re Macedonian Orthodox Church Community 'Saint Dimitrij Solunski' Springvale Inc [2020] VSC 274 - Avery v Manno (2020) 62 VR 281 - Supreme Court (General Civil Procedure) Rules 2025, ord 54, r 63.26 - Trustee Act 1958, s 36(2) - Trustee Act 1925 (NSW), s 63 - Religious and Successory Trusts Act 1958 - Trustees Act 1962 (WA), s 92.
TORTS - Duty of care - Novel duty - Whether attorney acting for testator owes duty of care to beneficiary under will - Question of testamentary capacity - Scope and content of duty of attorney to principal where decision-making impaired - Salient features test - Claimed duty conflicts with other duties - Attorney had no control to avoid harm - Beneficiary not vulnerable - Inconsistency with statute and common law principles - Imposition on the autonomy and freedom of the testator - Circumstances do not warrant imposition of a duty of care - No breach of claimed duty - No causation of the claimed breach.
TORTS - Duty of care - Novel duty - Whether attorney acting for testator owes duty of care to beneficiary under will - Question of testamentary capacity - Scope and content of duty of attorney to principal where decision-making impaired - Salient features test - Claimed duty conflicts with other duties - Attorney had no control to avoid harm - Beneficiary not vulnerable - Inconsistency with statute and common law principles - Imposition on the autonomy and freedom of the testator - Circumstances do not warrant imposition of a duty of care - No breach of claimed duty - No causation of the claimed breach.
Powers of Attorney Act 2014 (Vic); Wills Act 1997 (Vic); Wrongs Act 1958 (Vic); Instruments Act 1958 (Vic).
Sullivan v Moody (2001) 207 CLR 562; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25; Perre v Apand Pty Ltd (1999) 198 CLR 180; Hill v Van Erp (1997) 188 CLR 159; CAL No. 14 Pty Ltd v Motor Accidents (2009) 239 CLR 390; Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; Norris v Tuppen [1999] VSC 228; Easter v Griffith (1995) 217 ALR 284; Kantor v Vosahlo [2004] VSCA 235.
JUDICIAL REVIEW AND APPEALS - Medical Panel - Assessment of impairment - Panel's determination that the third defendant's degree of impairment resulting from claimed injury satisfied threshold level for significant injury - Whether Medical Panel fell into jurisdictional error - Whether Medical Panel failed to inquire and obtain medical records - Whether Medical Panel failed to properly consider, assess and disregard potential impairment from unrelated injuries or causes - Procedural fairness - No jurisdictional error - Wrongs Act 1958 (Vic) s 28LL(3) - Application dismissed.
JUDICIAL REVIEW AND APPEALS - Medical Panel - Assessment of impairment - Panel's determination that the third defendant's degree of impairment resulting from claimed injury satisfied threshold level for significant injury - Whether Medical Panel fell into jurisdictional error - Whether Medical Panel failed to inquire and obtain medical records - Whether Medical Panel failed to properly consider, assess and disregard potential impairment from unrelated injuries or causes - Procedural fairness - No jurisdictional error - Wrongs Act 1958 (Vic) s 28LL(3) - Application dismissed.
JUDICIAL REVIEW AND APPEALS - Notice of appeal seeking to appeal judgment and orders of Magistrates' Court decision related to application under s 16K of the Magistrates' Court Act 1989 (Vic) - Section 109 of the Magistrates' Court Act 1989 (Vic) - Rule 16 of the Magistrates' Court (Judicial Registrars) Rules 2015 (Vic) - Whether Magistrate breached procedural fairness as appellant not informed by Court of time limit - Whether Magistrate breached procedural fairness by determining review application without oral hearing - Leave to appeal granted but appeal dismissed.
JUDICIAL REVIEW AND APPEALS - Notice of appeal seeking to appeal judgment and orders of Magistrates' Court decision related to application under s 16K of the Magistrates' Court Act 1989 (Vic) - Section 109 of the Magistrates' Court Act 1989 (Vic) - Rule 16 of the Magistrates' Court (Judicial Registrars) Rules 2015 (Vic) - Whether Magistrate breached procedural fairness as appellant not informed by Court of time limit - Whether Magistrate breached procedural fairness by determining review application without oral hearing - Leave to appeal granted but appeal dismissed.
CONTEMPT OF COURT - Breach of Court orders - Six charges brought by plaintiff alleging solicitation of clients by defendant - Defendant pleaded guilty to four charges and plaintiff withdrew two charges - Whether contempts were contumacious - Satisfied defendant did not act with direct intent to breach orders - Defendant made effort to comply and remorseful for breaches - Penalty not to be imposed if payment made of financial benefit obtained on single occasion.
CONTEMPT OF COURT - Breach of Court orders - Six charges brought by plaintiff alleging solicitation of clients by defendant - Defendant pleaded guilty to four charges and plaintiff withdrew two charges - Whether contempts were contumacious - Satisfied defendant did not act with direct intent to breach orders - Defendant made effort to comply and remorseful for breaches - Penalty not to be imposed if payment made of financial benefit obtained on single occasion.
REAL PROPERTY - Restrictive covenants - Application to modify restrictive covenant under s 84(1)(c) of the Property Law Act 1958 (Vic) - Covenant not to build more than one dwelling on property - Whether modification to build two dwellings on property will not cause substantial injury to beneficiaries - Whether the construction of two dwellings will impair neighbourhood character - Whether modification will have a precedential effect - Randell v Uhl [2019] VSC 668, Sumervale Pty Ltd v Viva Energy Refining Pty Ltd [2024] VSCA 140, Hivance Pty Ltd v Moscatiello [2020] VSC 183 and Vrakas v Registrar of Titles [2008] VSC 281 referred to - Substantial precedential effect of proposed development will cause substantial injury to beneficiaries - Changed planning context - Application refused.
REAL PROPERTY - Restrictive covenants - Application to modify restrictive covenant under s 84(1)(c) of the Property Law Act 1958 (Vic) - Covenant not to build more than one dwelling on property - Whether modification to build two dwellings on property will not cause substantial injury to beneficiaries - Whether the construction of two dwellings will impair neighbourhood character - Whether modification will have a precedential effect - Randell v Uhl [2019] VSC 668, Sumervale Pty Ltd v Viva Energy Refining Pty Ltd [2024] VSCA 140, Hivance Pty Ltd v Moscatiello [2020] VSC 183 and Vrakas v Registrar of Titles [2008] VSC 281 referred to - Substantial precedential effect of proposed development will cause substantial injury to beneficiaries - Changed planning context - Application refused.
PRACTICE AND PROCEDURE - Interlocutory Injunction - Decision to revoke plaintiffs' approval to employ apprentices - Education and Training Reform Act 2006 s 5.5.7 -Application dismissed.
PRACTICE AND PROCEDURE - Interlocutory Injunction - Decision to revoke plaintiffs' approval to employ apprentices - Education and Training Reform Act 2006 s 5.5.7 -Application dismissed.
PRACTICE AND PROCEDURE - Representative proceeding - Negligence - Alternative claim for breach of duties under the Occupational Health and Safety Regulations - Application for summary judgment and strike out of pleadings - Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436 - Deal v Father Pius Kodakkathanath (2016) 258 CLR 281 - No cause of action disclosed by pleadings - Claim struck out with leave to replead.
PRACTICE AND PROCEDURE - Representative proceeding - Negligence - Alternative claim for breach of duties under the Occupational Health and Safety Regulations - Application for summary judgment and strike out of pleadings - Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436 - Deal v Father Pius Kodakkathanath (2016) 258 CLR 281 - No cause of action disclosed by pleadings - Claim struck out with leave to replead.
PRACTICE AND PROCEDURE - Discovery - Plaintiff's application for specific discovery - Rule 29.08 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Whether documents relevant to question or fact in issue on the pleadings - Application for discovery dismissed.
PRACTICE AND PROCEDURE - Discovery - Plaintiff's application for specific discovery - Rule 29.08 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Whether documents relevant to question or fact in issue on the pleadings - Application for discovery dismissed.
PRACTICE AND PROCEDURE - Costs - Executor's application for costs from the estate of the deceased in circumstances where the application for executor's commission under s 65 of the Administration and Probate Act 1958 (Vic) was refused - Rule 10.10 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) - Rules 63.01 and 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application refused - Second plaintiff to bear own cost and to pay costs of the first plaintiff's costs of the second plaintiff's application for executor's commission on a standard basis without indemnity from the deceased's estate.
PRACTICE AND PROCEDURE - Costs - Executor's application for costs from the estate of the deceased in circumstances where the application for executor's commission under s 65 of the Administration and Probate Act 1958 (Vic) was refused - Rule 10.10 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) - Rules 63.01 and 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application refused - Second plaintiff to bear own cost and to pay costs of the first plaintiff's costs of the second plaintiff's application for executor's commission on a standard basis without indemnity from the deceased's estate.
LIMITATION OF ACTIONS - Section 23A of the Limitation of Actions Act 1958 (Vic) - Workplace injury - Worker's cause of action statute barred - Application to extend time within which to commence proceeding - Delay caused by incorrect advice of former lawyers as to limitation period - Evidence of claim in negligence against former solicitors not sufficiently strong to conclude plaintiff would suffer no prejudice if application refused - General prejudice presumed because of delay of 7 years and 7 months but not substantial - Evidentiary onus on defendants to establish they may suffer specific prejudice - Evidence of some specific prejudice but not significant - Just and reasonable to extend time.
LIMITATION OF ACTIONS - Section 23A of the Limitation of Actions Act 1958 (Vic) - Workplace injury - Worker's cause of action statute barred - Application to extend time within which to commence proceeding - Delay caused by incorrect advice of former lawyers as to limitation period - Evidence of claim in negligence against former solicitors not sufficiently strong to conclude plaintiff would suffer no prejudice if application refused - General prejudice presumed because of delay of 7 years and 7 months but not substantial - Evidentiary onus on defendants to establish they may suffer specific prejudice - Evidence of some specific prejudice but not significant - Just and reasonable to extend time.
POLICE TORTS - Protest at Melbourne Convention and Exhibition Centre - Protest against mining and resource conference - Two protesters climbing poles at the Melbourne Convention and Exhibition Centre to erect a protest banner - Use of OC foam in context of attempts to arrest the climbers - Claim of battery by reason of use of OC foam on the plaintiff - Whether a lawful use of force - Whether a use of force in self-defence - Self-defence at common law and under s 322K of the Crimes Act 1958 (Vic) - Whether a use of force to effect or assist in effecting an arrest pursuant to s 462A of the Crimes Act 1958 (Vic) - Crimes Act 1958 (Vic), ss 322K, 322N, 458, 459, 462A; Summary Offences Act 1966 (Vic) s 6.
POLICE TORTS - Protest at Melbourne Convention and Exhibition Centre - Protest against mining and resource conference - Two protesters climbing poles at the Melbourne Convention and Exhibition Centre to erect a protest banner - Use of OC foam in context of attempts to arrest the climbers - Claim of battery by reason of use of OC foam on the plaintiff - Whether a lawful use of force - Whether a use of force in self-defence - Self-defence at common law and under s 322K of the Crimes Act 1958 (Vic) - Whether a use of force to effect or assist in effecting an arrest pursuant to s 462A of the Crimes Act 1958 (Vic) - Crimes Act 1958 (Vic), ss 322K, 322N, 458, 459, 462A; Summary Offences Act 1966 (Vic) s 6.
GROUP PROCEEDING - Conduct of Victoria Police officers at a protest - Common questions regarding decisions to arrest persons climbing poles and to direct advance by police on protesters - Common questions regarding laws and standards applicable to police in protests - Status of Victoria Police Manuals.
HUMAN RIGHTS - Whether police officers' acts deploying OC foam on the plaintiff were act incompatible with human rights - Whether open to consider other acts and decisions of police for compliance with s 38(1) of Charter - Whether declarations relating to Charter breaches available - Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 10(b), 12, 16(1), 38(1).
INJURY - Whether injury suffered by plaintiff subject to the Wrongs Act 1958 (Vic) - Temporary physical injury - Psychiatric injury - Intentional torts - Intent to cause death or injury - Wrongs Act 1958 (Vic), ss 28LB, 28LC, 28LC(2)(a).
DAMAGES - General damages - Special damages - Aggravated damages - Exemplary damages.
DECLARATIONS - Police torts - Availability of declarations that specific officers of Victoria Police committed battery - Victoria Police Act 2013 (Vic), ss 61, 73, 74, 75 - Charter of Human Rights and Responsibilities Act 2006 (Vic), s 39(1).
EVIDENCE - Admissibility and weight of evidence - Opinion evidence involving interpretation and application of the law - Evidence Act 2008 (Vic), ss 56, 76, 79.
ADMINISTRATIVE LAW - Judicial review - Medical Panel determination - Procedural fairness - Whether Medical Panel assessment informed by new information - Francis Plumbing & Gasfitting Pty Ltd v Davine [2024] VSC 538.
ADMINISTRATIVE LAW - Judicial review - Medical Panel determination - Procedural fairness - Whether Medical Panel assessment informed by new information - Francis Plumbing & Gasfitting Pty Ltd v Davine [2024] VSC 538.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under Residential Tenancies Act 1997 (Vic) - Application for extension of time - Extension of time granted - Where residential rental provider gave renter a notice of proposed rent increase under s 44(1) - Where renter believed notice to be invalid and asked VCAT to set it aside - Where renter's application included a request for compensation which was not maintained at the hearing - Where VCAT dismissed the application on the basis of having no jurisdiction to make the order sought - Whether VCAT had jurisdiction to hear an application for an ancillary order in the absence of an application for a substantive order - Where no jurisdiction to make such an order - Leave to appeal allowed - Appeal dismissed.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under Residential Tenancies Act 1997 (Vic) - Application for extension of time - Extension of time granted - Where residential rental provider gave renter a notice of proposed rent increase under s 44(1) - Where renter believed notice to be invalid and asked VCAT to set it aside - Where renter's application included a request for compensation which was not maintained at the hearing - Where VCAT dismissed the application on the basis of having no jurisdiction to make the order sought - Whether VCAT had jurisdiction to hear an application for an ancillary order in the absence of an application for a substantive order - Where no jurisdiction to make such an order - Leave to appeal allowed - Appeal dismissed.
Residential Tenancies Act 1997 (Vic), ss 44, 45, 46, 452, 472; Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 124, 148; Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic), r 4.08.
Victoria v Bradto [2006] VCAT 1864; Xiao v Perpetual Trustee Company Ltd [2009] V ConvR 54-756; [2008] VSC 412; Kracke v Mental Health Review Board [2009] VCAT 646; Casa Di Iorio Investments Pty Ltd v Guirguis [2017] VSC 266; Rosewarne v Lim [2022] VCAT 1015.
ADMINISTRATIVE LAW - Appeal from Victorian Civil and Administrative Tribunal ('VCAT') in a proceeding under the Residential Tenancies Act 1997 (Vic) ('RTA') - Application to set aside VCAT decision refusing application to extend the period of storage for goods left behind for indeterminate period - Where tenant unable to collect goods from property due to bail conditions - Where goods left behind prevented property from being relet - Where residential rental provider gave notice under s 386 (goods left behind) of RTA - Whether consideration by VCAT of landlord's ability to relet the property relevant - Whether VCAT correctly interpreted 'reclaim' under ss 387 and 389 of RTA - Whether goods able to be stored for indefinite period of time - Whether leave to appeal should be granted - No real prospects of success - Leave to appeal denied.
ADMINISTRATIVE LAW - Appeal from Victorian Civil and Administrative Tribunal ('VCAT') in a proceeding under the Residential Tenancies Act 1997 (Vic) ('RTA') - Application to set aside VCAT decision refusing application to extend the period of storage for goods left behind for indeterminate period - Where tenant unable to collect goods from property due to bail conditions - Where goods left behind prevented property from being relet - Where residential rental provider gave notice under s 386 (goods left behind) of RTA - Whether consideration by VCAT of landlord's ability to relet the property relevant - Whether VCAT correctly interpreted 'reclaim' under ss 387 and 389 of RTA - Whether goods able to be stored for indefinite period of time - Whether leave to appeal should be granted - No real prospects of success - Leave to appeal denied.
Residential Tenancies Act 1997 (Vic), ss 64, 378, 379, 384, 386, 387, 388, 391, 395, 401; Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 97, 98, 148.
Chopra v Department of Education and Training [2019] VSC 488;* McSteen v Architects Registration Board of Victoria (No 2)* [2018] VSCA 136;* Velardo v Andonov* [2010] VSCA 38; Republic of Turkey v Mackie Pty Ltd [2019] VSC 103; Khanna v Kulathayendran [2012] VSC 250; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
ADMINISTRATIVE LAW - Judicial review - Workplace injury - Opinion of Medical Panel - Whether Medical Panel committed a jurisdictional error - Whether Medical Panel failed to have regard to a mandatory consideration - Whether Medical Panel made a material factual error - Adequacy of Medical Panel's reasons - Decision set aside - Accident Compensation Act 1985, ss 91, 98C and 104B.
ADMINISTRATIVE LAW - Judicial review - Workplace injury - Opinion of Medical Panel - Whether Medical Panel committed a jurisdictional error - Whether Medical Panel failed to have regard to a mandatory consideration - Whether Medical Panel made a material factual error - Adequacy of Medical Panel's reasons - Decision set aside - Accident Compensation Act 1985, ss 91, 98C and 104B.
ADMINISTRATIVE LAW - Judicial Review - Opinion of medical panel - Plaintiff claimed noise induced hearing loss - Referral to a medical panel - Medical question - Panel found sensorineural hearing loss of constitutional origin - Panel found that the degree of whole person impairment resulting from the injury alleged in the claim did not satisfy the threshold level - Plaintiff contends that the medical panel impermissibly answered a 'factual or legal causation question' - Panel answered medical question posed - Wrongs Act 1958 (Vic), ss 28LB, 28LC, 28LE, 28LF, 28LG, 28LL(3), 28LWE(1), 28LZG - Amendola v Coles Supermarkets Australia Pty Ltd [2008] VSC 36; Melbourne Health v Lloyd [2009] VSC 370; Chua v Newman-Morris [2009] VSC 582; Chua v Lowthian [2011] VSC 468 considered - Proceeding dismissed.
ADMINISTRATIVE LAW - Judicial Review - Opinion of medical panel - Plaintiff claimed noise induced hearing loss - Referral to a medical panel - Medical question - Panel found sensorineural hearing loss of constitutional origin - Panel found that the degree of whole person impairment resulting from the injury alleged in the claim did not satisfy the threshold level - Plaintiff contends that the medical panel impermissibly answered a 'factual or legal causation question' - Panel answered medical question posed - Wrongs Act 1958 (Vic), ss 28LB, 28LC, 28LE, 28LF, 28LG, 28LL(3), 28LWE(1), 28LZG - Amendola v Coles Supermarkets Australia Pty Ltd [2008] VSC 36; Melbourne Health v Lloyd [2009] VSC 370; Chua v Newman-Morris [2009] VSC 582; Chua v Lowthian [2011] VSC 468 considered - Proceeding dismissed.
CRIMINAL LAW - Bail - Whether exceptional circumstances existed justifying grant of bail - Where applicant Aboriginal - Where applicant has history of illicit substance use - Where applicant previously homeless - Where employment available - Where stable residential address with family available - Where culturally appropriate supports available through Koori Pathways Program - Where applicant demonstrated motivation to re-engage with aboriginal community whilst in custody - Where time in custody on remand may exceed sentence if convicted - Whether risk unacceptable - Where at time of alleged offences applicant subject to two CCOs and an arrest warrant from New South Wales - Where at time of alleged offences applicant on bail for matters subsequently withdrawn - Where significant period of abstinence from illicit substances whilst in custody - Exceptional circumstances established - Unacceptable risk not established - Bail granted - Bail Act 1977 (Vic) ss 3AAA, 3A, 4AA, 4A, 4D, 4E, Item 3 and 12 of Schedule 1.
CRIMINAL LAW - Bail - Whether exceptional circumstances existed justifying grant of bail - Where applicant Aboriginal - Where applicant has history of illicit substance use - Where applicant previously homeless - Where employment available - Where stable residential address with family available - Where culturally appropriate supports available through Koori Pathways Program - Where applicant demonstrated motivation to re-engage with aboriginal community whilst in custody - Where time in custody on remand may exceed sentence if convicted - Whether risk unacceptable - Where at time of alleged offences applicant subject to two CCOs and an arrest warrant from New South Wales - Where at time of alleged offences applicant on bail for matters subsequently withdrawn - Where significant period of abstinence from illicit substances whilst in custody - Exceptional circumstances established - Unacceptable risk not established - Bail granted - Bail Act 1977 (Vic) ss 3AAA, 3A, 4AA, 4A, 4D, 4E, Item 3 and 12 of Schedule 1.
CRIMINAL LAW - Application for bail - Where allegations of possession of commercial quantity (74kg) of unlawfully imported cocaine - Whether exceptional circumstances exist that justify the grant of bail - Where prosecution case strong - Where delay significant - Where applicant suffers from post traumatic stress disorder and substance abuse issues - Where surety offered - Exceptional circumstances not found - Unacceptable risk of committing Schedule 1 or Schedule 2 offence - Bail refused - Bail Act 1977 (Vic) ss 4AA, 4A, 4E.
CRIMINAL LAW - Application for bail - Where allegations of possession of commercial quantity (74kg) of unlawfully imported cocaine - Whether exceptional circumstances exist that justify the grant of bail - Where prosecution case strong - Where delay significant - Where applicant suffers from post traumatic stress disorder and substance abuse issues - Where surety offered - Exceptional circumstances not found - Unacceptable risk of committing Schedule 1 or Schedule 2 offence - Bail refused - Bail Act 1977 (Vic) ss 4AA, 4A, 4E.
CRIMINAL LAW - Application for bail - 16 year old child - Charge of murder - Schedule 1 offence - Requirement to show exceptional circumstances - Nature and seriousness of alleged offending - Strength of prosecution case - Personal circumstances - Special vulnerability - Interstate accommodation proposed - Family support - Availability of employment - Court satisfied applicant an unacceptable risk - Bail refused - Bail Act 1977 (Vic), ss 1B, 3, 3AAA, 3B, 4, 4AA, 4A, 4D, 4E, 5AAA, 12, 17D, 17E, 17G, Schedule 1, Item 2 - Children, Youth and Families Act 2005 (Vic), s 346.
CRIMINAL LAW - Application for bail - 16 year old child - Charge of murder - Schedule 1 offence - Requirement to show exceptional circumstances - Nature and seriousness of alleged offending - Strength of prosecution case - Personal circumstances - Special vulnerability - Interstate accommodation proposed - Family support - Availability of employment - Court satisfied applicant an unacceptable risk - Bail refused - Bail Act 1977 (Vic), ss 1B, 3, 3AAA, 3B, 4, 4AA, 4A, 4D, 4E, 5AAA, 12, 17D, 17E, 17G, Schedule 1, Item 2 - Children, Youth and Families Act 2005 (Vic), s 346.
CRIMINAL LAW - Bail - Applicant charged with cultivating a commercial quantity of cannabis (11 charges) and cultivating cannabis (simpliciter) (9 charges) arising from 21 crop houses in Melbourne suburbs - Applicant, an electrician, alleged to have installed electrical bypasses in each of the crop houses - Admissions allegedly made to undercover police of being a 'bypass expert', involved in the setting up of 25 crop houses in 2025 alone - Limited prior convictions and no negative bail history - Availability of substantial bail guarantee - Serious offending - Substantial term of imprisonment if found guilty - Exceptional circumstances not established - Bail refused - Bail Act 1977 ss 1B, 3AAA, 4AA, 4A, 4D, 4E.
CRIMINAL LAW - Bail - Applicant charged with cultivating a commercial quantity of cannabis (11 charges) and cultivating cannabis (simpliciter) (9 charges) arising from 21 crop houses in Melbourne suburbs - Applicant, an electrician, alleged to have installed electrical bypasses in each of the crop houses - Admissions allegedly made to undercover police of being a 'bypass expert', involved in the setting up of 25 crop houses in 2025 alone - Limited prior convictions and no negative bail history - Availability of substantial bail guarantee - Serious offending - Substantial term of imprisonment if found guilty - Exceptional circumstances not established - Bail refused - Bail Act 1977 ss 1B, 3AAA, 4AA, 4A, 4D, 4E.
CRIMINAL LAW - Bail - 29 year old applicant - Armed robbery - Mobile phone allegedly snatched by applicant - Person who came to the aid of the owner of the phone allegedly stabbed in the back - Applicant charged with a number of other offences including intentionally causing injury ('ICI') - On community correction order at time for offences including possession of a loaded firearm and possessing knives - Poor compliance with CCO - Likelihood that present matter would settle, with armed robbery charge not proceeded with - Availability to applicant of place in a residential drug treatment centre if released on bail - Likely sentence would exceed time spent on remand - Real question as to genuineness of applicant's desire and willingness to receive drug treatment - Significant risk posed - Exceptional circumstances not established - Unacceptable risk in any event - Bail refused - Bail Act 1977 ss 1B, 3AAA, 4AA, 4A, 4E.
CRIMINAL LAW - Bail - 29 year old applicant - Armed robbery - Mobile phone allegedly snatched by applicant - Person who came to the aid of the owner of the phone allegedly stabbed in the back - Applicant charged with a number of other offences including intentionally causing injury ('ICI') - On community correction order at time for offences including possession of a loaded firearm and possessing knives - Poor compliance with CCO - Likelihood that present matter would settle, with armed robbery charge not proceeded with - Availability to applicant of place in a residential drug treatment centre if released on bail - Likely sentence would exceed time spent on remand - Real question as to genuineness of applicant's desire and willingness to receive drug treatment - Significant risk posed - Exceptional circumstances not established - Unacceptable risk in any event - Bail refused - Bail Act 1977 ss 1B, 3AAA, 4AA, 4A, 4E.
COURTS AND JUDGES - Bias - Reasonable apprehension of bias - Application for recusal - Reference determination from Court of Appeal pursuant to s 319A of the Criminal Procedure Act 2009.
COURTS AND JUDGES - Bias - Reasonable apprehension of bias - Application for recusal - Reference determination from Court of Appeal pursuant to s 319A of the Criminal Procedure Act 2009.
CRIMINAL LAW - Ruling - Charges of aggravated servitude - Objection to admission to evidence pursuant to sections 55, 59, and 76 of the Evidence Act 2008 (Vic) - Application to exclude evidence pursuant to section 137 of the Evidence Act 2008 (Vic) - Application granted in part.
CRIMINAL LAW - Ruling - Charges of aggravated servitude - Objection to admission to evidence pursuant to sections 55, 59, and 76 of the Evidence Act 2008 (Vic) - Application to exclude evidence pursuant to section 137 of the Evidence Act 2008 (Vic) - Application granted in part.
CRIMINAL LAW - Ruling - Charges of aggravated servitude - Application for leave to file over fresh indictment - Amendment of particulars - Whether filing over would cause injustice to the accused - Application granted - Application for stay of two charges - Whether continuation would result in abuse of process - Whether continuation would involve unacceptable injustice, unfairness or oppression - Forensic disadvantage - Application refused - Criminal Procedure Act 2009 (Vic) ss 159, 164, 165 - Falzon v The Queen [2017] VSCA 74 - R v Street [1960] VR 669 - Whedlock v Flaws [2022] VSC 359 - DPP v Jarvis (a pseudonym) (2018) 55 VR 543 - DPP (Cth) v Al Salman (No 6) [2025] VSC 813 - Hermanus v The Queen (2015) 44 VR 335 - Brewer v The Queen [2017] VSCA 117 - Haris (a pseudonym) v The King [2023] VSCA 205 - Jago v District Court of New South Wales (1989) 168 CLR 23.
CRIMINAL LAW - Ruling - Charges of aggravated servitude - Application for leave to file over fresh indictment - Amendment of particulars - Whether filing over would cause injustice to the accused - Application granted - Application for stay of two charges - Whether continuation would result in abuse of process - Whether continuation would involve unacceptable injustice, unfairness or oppression - Forensic disadvantage - Application refused - Criminal Procedure Act 2009 (Vic) ss 159, 164, 165 - Falzon v The Queen [2017] VSCA 74 - R v Street [1960] VR 669 - Whedlock v Flaws [2022] VSC 359 - DPP v Jarvis (a pseudonym) (2018) 55 VR 543 - DPP (Cth) v Al Salman (No 6) [2025] VSC 813 - Hermanus v The Queen (2015) 44 VR 335 - Brewer v The Queen [2017] VSCA 117 - Haris (a pseudonym) v The King [2023] VSCA 205 - Jago v District Court of New South Wales (1989) 168 CLR 23.
CRIMINAL LAW - Ruling - Charges of aggravated servitude - Application to exclude evidence pursuant to ss 135 and 137 of the Evidence Act 2008 (Vic) and the Haddara discretion - Whether probative value substantially outweighed by danger evidence would be unfairly prejudicial, misleading or confusing, or result in undue waste of time - Whether probative value outweighed by danger of unfair prejudice - Translation and interpretation - Loss of opportunity to cross-examine - Forensic disadvantage - Effect of jury directions - Evidence not excluded - Evidence Act 2008 (Vic) ss 55(1), 135, 137 - Sutton v The Queen (1984) 152 CLR 528 - Browne v Dunn (1893) 6 R 67 - R v Tran [1994] 2 SCR 951 - De La Espriella-Velasco v The Queen (2006) 31 WAR 291 - Haddara v The Queen (2014) 43 VR 53 - DPP v Wise (a pseudonym) [2016] VSCA 173 - R v DG (2010) 28 VR 127 - IMM v The Queen (2016) 257 CLR 300 - Dupas v The Queen (2012) 40 VR 182 - NT v The Queen [2012] VSCA 213 - DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177 - Jago v District Court of NSW (1989) 168 CLR 23 - Dietrich v The Queen (1992) 177 CLR 292 - Moreno v The King [2023] VSCA 98 - R v Johnson (1987) 25 A Crim R 433 - DPP v McDermott (No 7) [2016] VSC 819 - Luna v The Queen [2016] VSCA 10 - Bufton v The Queen [2019] VSCA 96 - Snyder (a pseudonym) v The Queen [2021] VSCA 96 - Norris* (a pseudonym) v The Queen* [2018] VSCA 137.
CRIMINAL LAW - Ruling - Charges of aggravated servitude - Application to exclude evidence pursuant to ss 135 and 137 of the Evidence Act 2008 (Vic) and the Haddara discretion - Whether probative value substantially outweighed by danger evidence would be unfairly prejudicial, misleading or confusing, or result in undue waste of time - Whether probative value outweighed by danger of unfair prejudice - Translation and interpretation - Loss of opportunity to cross-examine - Forensic disadvantage - Effect of jury directions - Evidence not excluded - Evidence Act 2008 (Vic) ss 55(1), 135, 137 - Sutton v The Queen (1984) 152 CLR 528 - Browne v Dunn (1893) 6 R 67 - R v Tran [1994] 2 SCR 951 - De La Espriella-Velasco v The Queen (2006) 31 WAR 291 - Haddara v The Queen (2014) 43 VR 53 - DPP v Wise (a pseudonym) [2016] VSCA 173 - R v DG (2010) 28 VR 127 - IMM v The Queen (2016) 257 CLR 300 - Dupas v The Queen (2012) 40 VR 182 - NT v The Queen [2012] VSCA 213 - DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177 - Jago v District Court of NSW (1989) 168 CLR 23 - Dietrich v The Queen (1992) 177 CLR 292 - Moreno v The King [2023] VSCA 98 - R v Johnson (1987) 25 A Crim R 433 - DPP v McDermott (No 7) [2016] VSC 819 - Luna v The Queen [2016] VSCA 10 - Bufton v The Queen [2019] VSCA 96 - Snyder (a pseudonym) v The Queen [2021] VSCA 96 - Norris* (a pseudonym) v The Queen* [2018] VSCA 137.
CRIMINAL LAW - Sentence - Theft - Obtain financial advantage by deception (13 charges) - Offending by lawyer over two year period against client - Requests for payments in furtherance of fictitious legal proceedings - Vulnerable victim - Breach of trust - Plea of guilty - Offending objectively very serious - No criminal history - Delay - Remorse - Prospects of rehabilitation good - Mental impairment - Major depressive disorder - Generalise anxiety disorder - Gambling disorder - R v Verdins (2007) 16 VR 269 - Sentence of 4 years and 3 months' imprisonment with non-parole period of 2 years and 6 months - Sentencing Act 1991 (Vic), ss 5, 6AAA, 86.
CRIMINAL LAW - Sentence - Theft - Obtain financial advantage by deception (13 charges) - Offending by lawyer over two year period against client - Requests for payments in furtherance of fictitious legal proceedings - Vulnerable victim - Breach of trust - Plea of guilty - Offending objectively very serious - No criminal history - Delay - Remorse - Prospects of rehabilitation good - Mental impairment - Major depressive disorder - Generalise anxiety disorder - Gambling disorder - R v Verdins (2007) 16 VR 269 - Sentence of 4 years and 3 months' imprisonment with non-parole period of 2 years and 6 months - Sentencing Act 1991 (Vic), ss 5, 6AAA, 86.
CRIMINAL LAW - Murder - Judge alone trial by agreement - Accused suffering from schizoaffective disorder - Agreed between the parties that accused was suffering from a mental impairment at the time of the offending and was unable to reason with a moderate degree of sense and composure that his conduct was wrong - Verdict of not guilty by reason of mental impairment - Accused declared liable to supervision - Accused remanded in custody pending preparation of further reports - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 20-24, 40-41, 47.
CRIMINAL LAW - Murder - Judge alone trial by agreement - Accused suffering from schizoaffective disorder - Agreed between the parties that accused was suffering from a mental impairment at the time of the offending and was unable to reason with a moderate degree of sense and composure that his conduct was wrong - Verdict of not guilty by reason of mental impairment - Accused declared liable to supervision - Accused remanded in custody pending preparation of further reports - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 20-24, 40-41, 47.
CRIMINAL LAW - Sentence - Manslaughter - Where offender forced way into house and initiated confrontation with victim who owed him money and from whom he wished to buy drugs and caused a single stab wound to victim's chest causing his death - Where offender has criminal history but not of direct crimes of violence and was subject to community correction order - History of substance abuse - Plea of guilty - Reasonable prospects of rehabilitation - Term of imprisonment imposed.
CRIMINAL LAW - Sentence - Manslaughter - Where offender forced way into house and initiated confrontation with victim who owed him money and from whom he wished to buy drugs and caused a single stab wound to victim's chest causing his death - Where offender has criminal history but not of direct crimes of violence and was subject to community correction order - History of substance abuse - Plea of guilty - Reasonable prospects of rehabilitation - Term of imprisonment imposed.
CRIMINAL LAW - Sentence - Arson causing death - Guilty plea - Accused set fire to house in circumstances where he ought to have known person was inside - Fire ignited with accelerant - High gravity of offending - Bugmy considerations - Guarded prospects of rehabilitation - Denunciation - Deterrence - Sentence of 11 years' imprisonment with non-parole period of 8 years.
CRIMINAL LAW - Sentence - Arson causing death - Guilty plea - Accused set fire to house in circumstances where he ought to have known person was inside - Fire ignited with accelerant - High gravity of offending - Bugmy considerations - Guarded prospects of rehabilitation - Denunciation - Deterrence - Sentence of 11 years' imprisonment with non-parole period of 8 years.
CRIMINAL LAW - Sentencing of one of three accused (DC) following jury verdicts - Kidnapping - At trial, Crown alleged DD, KS and DC kidnapped CG, murdered him, then burned vehicle with CG's body inside it - Jury verdicts: DD guilty of kidnapping, murder and arson; KS not guilty of murder and arson, but guilty of kidnapping and manslaughter; DC not guilty of murder, manslaughter and arson, but guilty of kidnapping - DD gave evidence exculpating himself, and implicating DC and KS - DC gave evidence exculpating himself (and KS, in part), and implicating DD (and KS, in part) - Jury's verdicts, and sentencing facts found, consistent with rejection of DD's evidence, acceptance of (or failure to reject) DC's evidence, and mixture of acceptance of parts of Crown's circumstantial case and rejection of (or failure to accept) other parts - Sentencing of DC soon after plea hearing because sentence makes him eligible to apply for parole forthwith - DC's involvement in kidnapping borne of panic; lacked same motive, premeditation or duration as DD or KS's involvement - DC pleaded guilty to unrelated arson of car on same night as kidnapping - Arson committed in wake of threats to girlfriend and to "shoot up" their home - DC aged 38 at time of offending; 41 now - Admissions in sworn evidence at trial supporting kidnapping and (separate) arson - Extra-curial punishment in having charges of murder and burning CG's body hanging over head until verdicts - Hardship of conditions in custody - Modest criminal history (one prior conviction for assault 16 years ago) - History of positive character traits - Efforts on remand to better chances of employment upon release - Good prospects of rehabilitation - Loss of chance of partial concurrency with seven-month sentence for unrelated matters served while on remand for present matters - Sentenced to imprisonment for three years on kidnapping, two years on arson - With cumulation, total effective sentence of four years' imprisonment - Non-parole period of two years and four months - But for plea of guilty, three years' imprisonment on arson - DC eligible to apply for parole immediately - Crimes Act 1958 (Vic), ss 197 & 320; Sentencing Act 1991 (Vic), ss 5, 6AAA, 11 & 18.
CRIMINAL LAW - Sentencing of one of three accused (DC) following jury verdicts - Kidnapping - At trial, Crown alleged DD, KS and DC kidnapped CG, murdered him, then burned vehicle with CG's body inside it - Jury verdicts: DD guilty of kidnapping, murder and arson; KS not guilty of murder and arson, but guilty of kidnapping and manslaughter; DC not guilty of murder, manslaughter and arson, but guilty of kidnapping - DD gave evidence exculpating himself, and implicating DC and KS - DC gave evidence exculpating himself (and KS, in part), and implicating DD (and KS, in part) - Jury's verdicts, and sentencing facts found, consistent with rejection of DD's evidence, acceptance of (or failure to reject) DC's evidence, and mixture of acceptance of parts of Crown's circumstantial case and rejection of (or failure to accept) other parts - Sentencing of DC soon after plea hearing because sentence makes him eligible to apply for parole forthwith - DC's involvement in kidnapping borne of panic; lacked same motive, premeditation or duration as DD or KS's involvement - DC pleaded guilty to unrelated arson of car on same night as kidnapping - Arson committed in wake of threats to girlfriend and to "shoot up" their home - DC aged 38 at time of offending; 41 now - Admissions in sworn evidence at trial supporting kidnapping and (separate) arson - Extra-curial punishment in having charges of murder and burning CG's body hanging over head until verdicts - Hardship of conditions in custody - Modest criminal history (one prior conviction for assault 16 years ago) - History of positive character traits - Efforts on remand to better chances of employment upon release - Good prospects of rehabilitation - Loss of chance of partial concurrency with seven-month sentence for unrelated matters served while on remand for present matters - Sentenced to imprisonment for three years on kidnapping, two years on arson - With cumulation, total effective sentence of four years' imprisonment - Non-parole period of two years and four months - But for plea of guilty, three years' imprisonment on arson - DC eligible to apply for parole immediately - Crimes Act 1958 (Vic), ss 197 & 320; Sentencing Act 1991 (Vic), ss 5, 6AAA, 11 & 18.
CRIMINAL LAW - Application to change of trial venue from Shepparton to Melbourne - Three accused charged with kidnapping, murder, and arson - Accused on remand in prisons - Because of distance between prisons and court, all accused kept in police cells in Shepparton from Monday to Thursday nights, and transported to and from prisons on Friday evenings and Monday mornings - Pursuant to Victoria Police policy said to be aimed at welfare of those in custody, lights in police cells left on all night and accused roused or woken every hour throughout night - Despite resulting sleep-deprivation rendering accused so tired as to be unfit for proper participation in trial, Victoria Police refused to relax policy - No mental health or other concerns justifying exposure of these accused to policy - Accused unable to receive fair trial in consequence of Victoria Police's intransigence in application of policy - Accused not exposed to same policy if trial heard in Melbourne - Application granted - Venue of trial changed from Shepparton to Melbourne - Criminal Procedure Act 2009 (Vic), s 192.
CRIMINAL LAW - Application to change of trial venue from Shepparton to Melbourne - Three accused charged with kidnapping, murder, and arson - Accused on remand in prisons - Because of distance between prisons and court, all accused kept in police cells in Shepparton from Monday to Thursday nights, and transported to and from prisons on Friday evenings and Monday mornings - Pursuant to Victoria Police policy said to be aimed at welfare of those in custody, lights in police cells left on all night and accused roused or woken every hour throughout night - Despite resulting sleep-deprivation rendering accused so tired as to be unfit for proper participation in trial, Victoria Police refused to relax policy - No mental health or other concerns justifying exposure of these accused to policy - Accused unable to receive fair trial in consequence of Victoria Police's intransigence in application of policy - Accused not exposed to same policy if trial heard in Melbourne - Application granted - Venue of trial changed from Shepparton to Melbourne - Criminal Procedure Act 2009 (Vic), s 192.
CRIMINAL LAW - Six pre-trial rulings (and numerous sub-rulings) on admissibility or permitted use of evidence Crown propose to lead at joint trial - Accused charged with kidnapping and murder of Charlie Gander (aged 19) and arson of car - Crown allege that, in early hours of Christmas eve 2022, accused, motivated by belief he had implicated another to police in crime, kidnapped deceased from Shepparton; murdered him by unknown means at unknown location; then, in Bunbartha, burned car deceased had been driving with his body inside it - Deceased not killed by fire, but cause of death not ascertainable - Crown case on each charge against each accused put on basis of involvement in offence by way of agreement to commit offence or, alternatively, on direct basis of perpetration of offence - Admissibility of records of interview - Lies as incriminating conduct - Other conduct as incriminating conduct - Admissibility of secretly recorded conversation in police cell between one accused and covert operative posing as criminal - Admissions - Implied admissions - Circumstantial evidence - Hearsay - Opinion - Motive - Animus - Intention - Complicity - Crimes Act 1958 (Vic), ss 197, 323(1)(c), 324(1), 324A, 324B, 464, 464A & 464C; Evidence Act 2008 (Vic), ss 59, 76, 81, 83, 87, 89, 135, 136, 137 & 138.
CRIMINAL LAW - Six pre-trial rulings (and numerous sub-rulings) on admissibility or permitted use of evidence Crown propose to lead at joint trial - Accused charged with kidnapping and murder of Charlie Gander (aged 19) and arson of car - Crown allege that, in early hours of Christmas eve 2022, accused, motivated by belief he had implicated another to police in crime, kidnapped deceased from Shepparton; murdered him by unknown means at unknown location; then, in Bunbartha, burned car deceased had been driving with his body inside it - Deceased not killed by fire, but cause of death not ascertainable - Crown case on each charge against each accused put on basis of involvement in offence by way of agreement to commit offence or, alternatively, on direct basis of perpetration of offence - Admissibility of records of interview - Lies as incriminating conduct - Other conduct as incriminating conduct - Admissibility of secretly recorded conversation in police cell between one accused and covert operative posing as criminal - Admissions - Implied admissions - Circumstantial evidence - Hearsay - Opinion - Motive - Animus - Intention - Complicity - Crimes Act 1958 (Vic), ss 197, 323(1)(c), 324(1), 324A, 324B, 464, 464A & 464C; Evidence Act 2008 (Vic), ss 59, 76, 81, 83, 87, 89, 135, 136, 137 & 138.
CRIMINAL LAW - Coercive powers order - Compulsory examination - Non-publication order made by Chief Examiner - Section 43A(1) certificate issued - Restricted evidence provided to court - Whether in the interests of justice to make restricted evidence available to prosecution and accused - Risks to safety of examinee and others - Limited probative value of restricted evidence - Restricted evidence not required to be made available to prosecution and accused - Major Crime (Investigative Powers) Act 2004 (Vic), ss 3, 43A, 67.
CRIMINAL LAW - Coercive powers order - Compulsory examination - Non-publication order made by Chief Examiner - Section 43A(1) certificate issued - Restricted evidence provided to court - Whether in the interests of justice to make restricted evidence available to prosecution and accused - Risks to safety of examinee and others - Limited probative value of restricted evidence - Restricted evidence not required to be made available to prosecution and accused - Major Crime (Investigative Powers) Act 2004 (Vic), ss 3, 43A, 67.
CRIMINAL LAW - Serious violent offender - Application for supervision order - Respondent currently subject to interim supervision order - Historical pattern of violent behaviour towards intimate partners - Previous convictions of murder and intention to cause serious injury - Propensity to use weapons - Limited insight into offending - Respondent high risk of committing serious violent offence against intimate partner - No issue that order should be made - Issue as to duration of order and condition for electronic alcohol monitoring - Imposition of supervision order for period of five years - Order for electronic alcohol monitoring - Non-publication order - Serious Offenders Act 2018, ss 5, 8, 13, 14, 19, 22, 27, 31, 34, 35, 36, 46, 99, 279.
CRIMINAL LAW - Serious violent offender - Application for supervision order - Respondent currently subject to interim supervision order - Historical pattern of violent behaviour towards intimate partners - Previous convictions of murder and intention to cause serious injury - Propensity to use weapons - Limited insight into offending - Respondent high risk of committing serious violent offence against intimate partner - No issue that order should be made - Issue as to duration of order and condition for electronic alcohol monitoring - Imposition of supervision order for period of five years - Order for electronic alcohol monitoring - Non-publication order - Serious Offenders Act 2018, ss 5, 8, 13, 14, 19, 22, 27, 31, 34, 35, 36, 46, 99, 279.
Nigro v Secretary to the Department of Justice (2013) 41 VR 359; Daniel (a pseudonym) v Secretary to the Department of Justice (2015) 45 VR 266, considered.
EVIDENCE - Criminal proceeding - Accused charged with murder - Relevance - Deceased former domestic partner - Circumstantial case - Relationship and context evidence - Evidence Act 2008 (Vic), ss 55, 56.
EVIDENCE - Criminal proceeding - Accused charged with murder - Relevance - Deceased former domestic partner - Circumstantial case - Relationship and context evidence - Evidence Act 2008 (Vic), ss 55, 56.
EVIDENCE - Criminal proceeding - Accused charged with murder - Accused's dealings with police prior to arrest - Signed statement containing jurat provided to police - Record of interview with police after arrest - Covert recording - Evidence of admissions - Whether evidence improperly or illegally obtained - Evidence Act 2008 (Vic), ss 90, 138, 139 - Crimes Act 1958 (Vic), ss 459, 464, 464A, 464C, 464H - Criminal Procedure Act 2009 (Vic), s 198B - Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 73(1).
EVIDENCE - Criminal proceeding - Accused charged with murder - Hearsay evidence - Family violence - Financial arrangements between the accused and deceased - Admissibility - Whether hearsay representations satisfy any exception to the hearsay rule - Whether hearsay representations second-hand hearsay - Temporal requirement - Whether hearsay representations made shortly after asserted facts - Whether hearsay representations unlikely to be fabricated - Whether hearsay representations highly probable or reliable - Evidence Act 2008 (Vic), ss 59, 62, 65, 66A, 67, 78, 81.
EVIDENCE - Criminal proceeding - Accused charged with murder - Tendency evidence - Alleged tendency of accused to inflict physical harm on deceased - Alleged tendency of accused to act in anger towards deceased - Whether evidence capable of giving rise to tendency - Evidence not permitted to be adduced as tendency evidence - Evidence Act 2008 (Vic), ss 97, 101.
EVIDENCE - Criminal proceeding - Accused charged with murder - Incriminating conduct evidence - Destruction of evidence - Deleted text messages and camera footage - Incineration of deceased's body - Staged suicide - Lies - Threats - Post-offence comments - Internet search history - Attempted evasion of arrest - Whether reasonably capable of being viewed by jury as evidence of incriminating conduct - Jury Directions Act 2015 (Vic), ss 18, 19, 20, 21, 22.
EVIDENCE - Criminal proceeding - Accused charged with murder - Mandatory and discretionary exclusions - Whether evidence must be excluded due to danger of unfair prejudice outweighing probative value - Whether evidence should be excluded due to danger of unfair prejudice substantially outweighing probative value - Whether use of evidence should be limited - Unfairly prejudicial evidence excluded - Use of evidence limited - Evidence Act 2008 (Vic), ss 135, 136, 137, Dictionary.
PRACTICE AND PROCEDURE - APPLICATION FOR REINSTATEMENT OF PROCEEDING AND SUMMARY JUDGMENT PURSUANT TO TERMS OF SETTLEMENT - Whether extraneous matters involved in settlement - Whether justice can be done - No dispute of enforceability of settlement terms - Where refinance arrangement to repay settlement sum proposed - Stay on enforcement of summary judgment appropriate.
PRACTICE AND PROCEDURE - APPLICATION FOR REINSTATEMENT OF PROCEEDING AND SUMMARY JUDGMENT PURSUANT TO TERMS OF SETTLEMENT - Whether extraneous matters involved in settlement - Whether justice can be done - No dispute of enforceability of settlement terms - Where refinance arrangement to repay settlement sum proposed - Stay on enforcement of summary judgment appropriate.