TORTS - Intentional torts - Vicarious liability - Where priest committed sexual abuse whilst carrying out pastoral duties as representative of Diocese - Where priest not agent or employee of Diocese - Whether Diocese vicariously liable for priest's sexual abuse - Whether vicarious liability extends beyond relationships of employment to relationships "akin to employment".
APPEALS - Issue not raised at trial - Where respondent sought to rely on non-delegable duty - Where factual basis for duty not pleaded or tested at trial - Prejudice.
WORDS AND PHRASES - "agency", "akin to employment", "course of employment", "negligence", "nominated defendant", "non-delegable duty", "prejudice", "representative", "scope of employment", "sexual abuse", "strict liability", "unincorporated association", "vicarious liability".
Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic), ss 1, 5, 7.
COURTS - Abuse of process - Permanent stay of proceedings - Where claim for damages for personal injury for alleged sexual abuse occurring in 1959 and 1960 - Where no limitation period in respect of child sexual abuse actions under s 6A of Limitation Act 2005 (WA) - Where deaths of alleged perpetrator and other potential witnesses - Where absence of documentary evidence - Whether trial necessarily unfair - Whether continuation of proceedings an abuse of process justifying permanent stay.
WORDS AND PHRASES - "abuse of process", "child sexual abuse", "exceptional circumstances", "fair trial", "limitation period", "non-delegable duty", "permanent stay", "prejudice", "unfairness".
Limitation Act 2005 (WA), s 6A.
COURTS - Abuse of process - Permanent stay of proceedings - Where claim for damages for personal injury for alleged child sexual abuse and serious physical abuse more than 50 years ago - Where no limitation period for claims resulting from child sexual abuse or serious physical abuse under s 11A of Limitation of Actions Act 1974 (Qld) - Where deaths of certain alleged perpetrators and other potential witnesses - Where absence of documentary evidence - Whether trial necessarily unfair - Whether abolition of limitation period changed right to fair trial - Whether continuation of proceedings an abuse of process justifying permanent stay.
WORDS AND PHRASES - "abuse of process", "child sexual abuse", "delay in bringing proceedings", "exceptional circumstances", "fair trial", "forensic disadvantage", "irreducible minimum standards of fairness", "limitation period", "manifest unfairness", "non-delegable duty", "oppressive", "permanent stay", "prejudice", "serious physical abuse", "unfairness".
Limitation of Actions Act 1974 (Qld), s 11A.
PRACTICE AND PROCEDURE - Costs - Whether circumstances justify departure from usual rule that successful party is entitled to costs - No circumstances justifying departure - Applicant's financial position insufficient - Application for leave to appeal did not concern 'public interest' - Whether order sought by one party for costs on gross sum basis appropriate - Order appropriate to avoid further expense and delay.
Northern Territory v Sangare (2019) 265 CLR 164; Board of Examiners v XY [2006] VSCA 190; Chopra v Department of Education and Training [No 2] [2021] VSCA 112; Anderson v Stonnington City Council [No 2] [2020] VSCA 238; Giurina v Greater Geelong City Council [2021] VSCA 341; Bechara v Bates [No 2] [2018] FCA 583, applied; Oshlack v Richmond River Council (1998) 193 CLR 72; Cumming v Minister for Planning [No 2] [2020] VSCA 231, referred to.
PRACTICE AND PROCEDURE - Where application for leave to appeal from Victorian Civil and Administrative Tribunal to Supreme Court had been dismissed - Whether appeal raised question of law - No question of law - Application for leave to appeal to Court of Appeal totally without merit - Application for leave to appeal refused.
JUDICIAL REVIEW - Appeal - Application for extension of time to file application for leave to appeal against orders as to costs - Application in respect of two separate proceedings - Delay of six months in respect of first proceeding and six weeks in respect of second proceeding - Applicant self-represented litigant - No adequate explanation for delay - Proposed grounds of appeal not sufficiently arguable - Application for extension of time refused.
Supreme Court (General Civil Procedure) Rules 2015, rr 64.05, 64.08, 64.15, referred to.
Gippsreal Ltd v Kenny [2016] VSCA 65, considered, Northern Territory v Sangare (2019) 265 CLR 164, applied.
LIMITATION OF ACTIONS - Motor vehicle accident in 1998 - Application for leave to appeal refusal to grant extension of time to commence proceeding to recover damages - Applicant obliged to establish House v The King error - Parties assert different versions of how accident happened - Contemporaneous documents support applicant's version but their accuracy contested - Independent witness now deceased, other documents now not available - Whether judge erred in deciding 'acceptably fair trial no longer possible' - Whether open to judge to conclude that applicant should have acted sooner - Whether judge erred in saying 'clock didn't stop ticking' on filing of originating motion - No realistic prospect of establishing that judge's discretion miscarried - Application for leave to appeal refused.
Limitation of Actions Act 1958, ss 5, 23A; Transport Accident Act 1986.
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Prince Alfred College Inc v ADC (2016) 258 CLR 134; Waldron v O'Callaghan [2024] VSCA 196, applied; House v The King (1936) 55 CLR 499; GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; Warren v Coombes (1979) 142 CLR 531; Fox v Percy (2003) 214 CLR 118; Lee v Lee (2019) 266 CLR 129; Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; Lithgow City Council v Jackson (2011) 244 CLR 352; Willmot v State of Queensland [2024] HCA 42; Moore v Goldhagen [2024] VSCA 25; Hunt v Holcombe [2018] VSCA 248; Griffiths v Nillumbik Shire Council [2022] VSCA 212, referred to.
CRIMINAL LAW - Sentence - Application for leave to appeal - Applicant convicted of offences including trafficking large commercial quantity of methylamphetamine, trafficking commercial quantity of cocaine - Total effective sentence 16 years, non-parole period 10 years - Base sentence 13 years for large commercial quantity offence - Sentence 9 years 6 months, 2 years cumulation for commercial quantity offence - Whether sentences for trafficking offences, total effective sentence, non-parole period manifestly excessive - Standard sentence 16 years for large commercial quantity offence - Applicant played vital and trusted role within serious high-level criminal enterprise - Personal circumstances taken into account in mitigation - Regard to current sentencing practice - General deterrence prominent - Sentence within permissible range - Leave to appeal refused.
Drugs, Poisons and Controlled Substances Act 1981, ss 71(1), 71AA(1); Sentencing Act 1991, ss 5A, 5(2)(b).
Hili v The Queen (2010) 242 CLR 520; AB v The Queen (1999) 198 CLR 111; Lieu v The Queen (2016) 263 A Crim R 173; Dao v The Queen [2014] VSCA 93; DPP v Larrain [2022] VCC 1405, considered.
CRIMINAL LAW - Appeal - Sentence - Stalking and perjury - Total effective sentence of 5 years and 6 months' imprisonment with 3 years and 6 months non-parole - Whether sentence manifestly excessive - Stalking persistent and sadistic involving two victims - Perjury used to obtain an intervention order against an innocent victim - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Importing commercial quantity of border controlled drug (gamma-butryolactone or GBL) - Sentence to 18 months' imprisonment with release on recognisance after serving 6 months - Whether judge erred in consideration of relevance of maximum penalty - Whether judge erred in holding that general deterrence was relevant whatever the motivation for the importation - Whether sentence manifestly excessive - Applicant's complaints of specific error without substance - Applicant's complaint of manifest excess not reasonably arguable - No reasonable prospect of less severe sentence being imposed - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Aggravated burglary - Recklessly causing injury - Total effective sentence 4 years and 6 months' imprisonment - Three years non-parole - Whether serious risk of imprisonment having adverse effect on applicant's schizophrenia - Whether sentence is manifestly excessive - No evidence of serious risk - Serious violent offending - Prior violent convictions - Sentence not manifestly excessive - Leave to appeal refused.
Bail Act 1977 s 5AAA(6); Control of Weapons Act 1990 s 5AA; Crimes Act 1958 ss 17, 18, 20, 31, 37, 77, 197, 321M; Family Violence Protection Act 2008 s 37.
Azzopardi v The Queen (2011) 35 VR 43; Boulton v The Queen (2014) 46 VR 308; Clarkson v The Queen (2011) 32 VR 361; Director of Public Prosecutions (DPP) v Patterson [2009] VSCA 222; R v Mills [1998] 4 VR 235; R v Verdins (2007) 16 VR 269; Rohen v The King [2024] VSCA 1; Veen v The Queen [No 2] 1988 164 CLR 465.
CRIMINAL LAW - Appeal - Conviction - Witness gave evidence in VARE, s 198B hearing and special hearing - Differences in accounts - Witness alleged to have recanted VARE evidence during special hearing - Witness accepted evidence product of guesswork - Whether evidence relevant - Whether evidence so inherently incredible, fanciful or preposterous it could not be accepted by rational jury - Evidentiary issues within province of jury to resolve - Evidence relevant - Whether probative value of evidence outweighed by danger of unfair prejudice - Evidence prejudicial but not unfair - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Prosecutor's closing address - Criticism of prosecution witness - Speculation - Characterisation of expert evidence - Onus of proof - Personal opinion - Hypothetical scenario - Whether failure to act with scrupulous fairness - Whether issues giving rise to substantial miscarriage of justice - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Murder - Standard sentence offence - Applicant gave deceased biscuit containing crushed temazepam tablets - Body of deceased placed in freezer - Deceased subjected applicant to ongoing extreme and prolonged physical sexual and emotional abuse - Applicant's situation 'inescapable' - Sentence 16 years' imprisonment - Non-parole period 10 years - Whether sentence and non-parole period manifestly excessive - Provocation relevant to moral culpability - Tyne v Tasmania (2005) 15 Tas R 221, referred to - No cases available to consider current sentencing practice - Applicant's moral culpability so attenuated that maximum and standard sentences not helpful yardsticks - Mercy - Unusual and remarkable case - Leave to appeal granted - Appeal allowed - Sentence 12 years' imprisonment - Non-parole period 7 years.
Evidence Act 2008, ss 55, 56, 137.
IMM v The Queen (2016) 257 CLR 300, applied.
CRIMINAL LAW - Appeal - Sentence - Rape - Whether sentencing judge's factual findings open on the evidence - Appeal dismissed.
CRIMINAL LAW - Interlocutory appeal - Dangerous driving causing death - Dangerous driving causing serious injury - Driver not wearing glasses - Whether evidence that a condition of driver licence required him to wear corrective lenses was admissible - Whether circumstantial evidence that driver had knowledge of licence condition admissible - Whether evidence from optometrist who tested driver's eyesight 18 days after accident admissible - Whether probative value of evidence outweighed by danger of unfair prejudice - Leave to appeal granted - Appeal allowed.
Evidence Act 2008, ss 55 and 137; Criminal Procedure Act 2009, s 297(1)(b)(iii).
Moore (a pseudonym) v The King [2024] HCA 30; IMM v The Queen (2016) 257 CLR 300, applied.
CRIMINAL LAW - Appeal against conviction - Application by the Chief Commissioner of Victoria Police for non-disclosure order pursuant to s 416A(1)(b) of the Criminal Procedure Act 2009 and s 130 of the Evidence Act 2008 - Where the subject document is relevant to issues raised in the appeal - The Chief Commissioner of Victoria Police's ongoing obligation of disclosure - Where the subject documents contain information that is a matter of state - Public interest immunity claim - Where documents contain information that may assist the applicant in their appeal - Where that assistance [redacted] - [Redacted] - Where the applicant's conviction resulted in a wholly suspended gaol sentence - Where it is not possible to provide the information to the applicant with the risk ameliorated - Where balance of factors in s 130 of Evidence Act 2008 does not favour disclosure - Non-disclosure order made in respect of all the subject documents.
Criminal Procedure Act 2009; Evidence Act 2008.
R v MZ [2009] VCC 1817; Roberts v The Queen [2020] 60 VR 431; Chief Commissioner of Police v Crupi (2024) 98 ALJR 1131; R v Debono (2012) 225 A Crim R 585; R v Cox [2005] VSC 249; Sankey v Whitlam (1978) 142 CLR 1; Alister v R (1984) 154 CLR 404; Commonwealth v Northern Land Council (1993) 176 CLR 604; Jarvie v Magistrates' Court of Victoria [1995] 1 VR 84; AB v CD & EF [2017] VSCA 338; [Redacted].
CRIMINAL LAW - Appeal - Conviction - Application for leave to appeal against conviction - Extension of time - Drug importation - Circumstantial evidence - Incriminating conduct - Application dismissed.
Criminal Code Act 1995 (Cth) vol 1 sch s 11.2A, vol 2 sch s 307.1(1); Criminal Procedure Act 2009 s 276(1)(a); Jury Directions Act 2015 ss 19, 20, 20 (1)(b).
Ansari v The Queen (2010) 241 CLR 299; Attorney- General's Reference (No 1 of 1983) [1983] 2 VR 410; Director of Public Prosecutions v Lynn [2024] VSCA 62; M v The Queen (1994) 181 CLR 487; Paulson v The King [2024] VSCA 18; R v Baden- Clay (2016) 258 CLR 308; R v Kotzmann [1999] 2 VR 123; Tartaglia v The Queen (2022) 141 SASR 142; R v LK (2010) 241 CLR 177.
CRIMINAL LAW - Appeal - Procedure - Purported appeal to Court of Appeal from sentence imposed in County Court exercising appellate jurisdiction - Registrar refused to accept documents for filing - Application under r 1A.04(4) of Supreme Court (Criminal Procedure) Rules 2017 to direct Registrar to accept documents for filing - Appeal incompetent - Criminal Procedure Act 2009 not contrary to the 'Kable principle' - Application refused.
Supreme Court Act 1986, s 10(1)(c); Criminal Procedure Act 2009, s 283(2); Commonwealth Constitution, Ch III.
James v English [2023] VSCA 46 considered; Moorabbin Transit Pty Ltd v Bekhit (2016) 50 VR 563 applied; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Vunilagi v The Queen (2023) ALJR 627; Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124, referred to.
CRIMINAL LAW - Sentence - Application for leave to appeal - Home invasion, causing injury intentionally, kidnapping and trafficking in a commercial quantity of a drug of dependence (1,4-Butanediol) - TES of 7 seven years, with NPP of 5 years and 6 months - Whether sentence manifestly excessive - Whether sentence infringed totality principle - Whether sentence infringed parity principles - Whether sentence failed to achieve appropriate relativity with sentence imposed on co-offender - Proposed grounds of appeal not reasonably arguable - Application for leave to appeal refused.
Farrugia v The Queen (2011) 32 VR 140; DPP (Cth) v Maxwell (2013) 228 A Crim R 218; Ellis v The Queen [2018] VSCA 221, referred to.
CRIMINAL LAW - Sentence - Application for leave to appeal - Applicant convicted of multiple offences including one count of discharge firearm at premises - Shots fired at occupied residence with shotgun in early hours of morning, from stolen car - Total effective sentence of 6 years, non-parole period of 4 years 3 months - Base sentence of 5 years 6 months for discharge firearm at premises - Whether base sentence manifestly excessive - Current sentencing practice difficult to discern because offence relatively new - Serious criminal conduct - Prominence given to deterrence, denunciation and just punishment - Sentence within permissible range - Leave to appeal refused.
Firearms Act 1996, s 131A(1).
AB v The Queen (1999) 198 CLR 111; Atkinson v The Queen [2021] VSCA 127, considered.
CRIMINAL LAW - Sentence - Application for leave to appeal against sentence - Armed robbery (2 charges) - Armed robbery committed in company - Category 2 offences - Sentence of 16 months' detention in youth justice centre - Manifest excess - Whether sentence manifestly excessive - Not reasonably arguable that sentence manifestly excessive - Application for leave to appeal refused.
Sentencing Act 1991, s 5(2H).
CRIMINAL LAW - Sentence - Application for leave to appeal against sentence - Importing commercial quantity of border controlled drug - 11.9 kgs of pure methylamphetamine - 15 times commercial quantity threshold for methylamphetamine - Sentence of 12 years, with non-parole period of 8 years - Manifest excess - Whether sentence manifestly excessive - Not reasonably arguable that sentence manifestly excessive - Application for leave to appeal refused.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
CRIMINAL LAW - Appeal - Sentence - Obtaining property by deception - Obtaining financial advantage by deception - Victims were family members - Breach of trust - Found guilty at trial - Relevant prior criminal history - Lack of insight and remorse - Symptoms of post-traumatic stress disorder - Delay - Total effective sentence of 5 years and 3 months - Non-parole period 3 years and 8 months - Whether sentence manifestly excessive - Whether sentencing judge gave insufficient weight to the principle of totality - Whether sentencing judge gave insufficient weight to current sentencing practice - Whether sentencing judge gave insufficient weight to delay - Leave to appeal refused.
Criminal Procedure Act 2009 ss 278, 280, 315.
DPP v Merryfull and Bloomfield [2023] VSCA 244, applied; Tones v The Queen [2017] VSCA 118, applied; Wilson v The Queen [2022] VSCA 2, applied; Postiglione v The Queen (1997) 189 CLR 295, considered; Mill v The Queen (1988) 166 CLR 59, considered; DPP v Mastrangelo [2018] VCC 87, distinguished; Kotsifas v The Queen [2021] VSCA 368, distinguished; Taylor v The Queen (2019) 59 VR 163, distinguished; Friel v The Queen [2018] VSCA 48, distinguished; DPP v Cappelli [2019] VCC 2118, distinguished.
COURTS AND JUDGES - Application to disqualify for apparent bias - Usual practice not followed - Subpoena to produce documents in aid of application - Substantive application relies on disqualification by association, conduct and extraneous information - Judge to put forward matters on which the recusal application is to be determined and to determine the application based on that disclosure - Disclosure by the judge not evidence - Evidence not permitted on such an application - Discussion of difficulties if evidence and subpoenas were to be permitted - Attributes of the fair-minded lay observer - Observer has knowledge of the material objective facts - Observer not a lawyer - Observer will inform himself or herself to the extent necessary to make a fair judgement - Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Webb v The Queen [1994] HCA 30, QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15, British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, Attorney- General of New South Wales v Bar- Mordecai [2009] NSWSC 117, Australian National Industries v Spedley Securities (1992) 26 NSWLR 411, Barton v Walker [1979] 2 NSWLR 740, Zanatta v Cleary [1976] 1 NSWLR 230, applied - Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 9) [1990] NSWSCA 154 - Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, referred to, Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438, Austin BMI Pty Ltd v Deputy Premier [2023] QSC 095, Lawrie v Lawler [2015] NTSC 40, Environment Protection Authority v Maules Creek Coal Pty Ltd [2023] NSWLEC 94, R v Badenoch [2004] VSCA 95, discussed - Isbester v Knox City Council (2015) 255 CLR 135, Livesey v New South Wales Bar Association (1983) 151 CLR 288, Limbo v Little [1989] NTCA 5, DOQ17 v Australian Financial Security Authority (No 2) [2018] FCA 1270, Rajski v Scitec Corp Pty Ltd [1986] NSWCA 1, Dovade Pty Ltd v Westpac Banking Corporation [1998] NSWCA 70, cited - Australian Law Reform Commission, 'Without Fear or Favour: Judicial Impartiality and the Law on Bias' (2021), Polsen v Harrison [2021] NSWCA 23, Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, CUR24 v Director of Public Prosecutions 83 NSWLR 385, Charisteas & Charisteas & Ors [2020] FCAFC 162, referred to.
PRACTICE AND PROCEDURE - Subpoenas for production - Procedure only available to secure production of a document 'for evidence' - Evidence not admissible on recusal application - Extensive affidavit evidence - Not demonstrated the documents sought will materially assist - Documents sought not potentially relevant - Subpoena set aside - Civil Procedure Act 2010 (Vic) ss 9, 19, 24 - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 42A.01 - Warwryk v Mercedes-Benz Australia/Pacific Pty Ltd (subpoena ruling) [2024] VSC 120 - Volunteer Fire Brigade Victoria Inc v Country Fire Authority [2016] VSC 573 - Cargill Australia Ltd v Viterra Malt Pty Ltd (No 19) [2018] VSC 798, applied - Webb v Wheatley [2015] VSC 153, cited.
CORPORATIONS - Corporations Act 2001 (Cth) - Section 90-15, Insolvency Practice Schedule (Corporations) - Liquidators' application for directions in conduct of external administration - Liquidators have identified that significant funds (in the form of bank cheques and moneys in a Westpac account) are being held by the company's agent (Long River) as part of the company's business operations - Liquidators understand that Long River did not conduct any other business apart from acting as an agent for the company in relation to receiving customer funds - Long River has no beneficial interest in those funds and its sole director does not know to whom those funds belong - Liquidators are concerned that bank cheques will shortly go 'stale' unless banked - Liquidators sought orders and directions authorising them to effectively take control of the recovered funds (the proceeds of the bank cheques and the moneys in the Westpac account) and deposit them in the Court's Common Fund No. 1 where they would be held and preserved pending ascertainment of beneficial owner(s) - Long River and interested persons were given notice of orders and directions sought by Liquidators - Liquidators authorised to take appropriate steps to facilitate payment of the recovered funds into the Court's Common Fund No. 1 - Liquidators entitled to apply for payment of their reasonable remuneration, costs and expenses incurred in the care, preservation and realisation of the recovered funds out of the recovered funds held in the Court's Common Fund No. 1 - Any person affected by the orders and directions made pursuant to this judgment has liberty to apply.
CORPORATIONS - Oppression proceeding - Whether affairs of company have been conducted in an oppressive manner - Removal of director - Whether legitimate expectation of participation in management - Whether unreasonable denial of access to company records - Understanding of the parties when they commenced a quasi-partnership in the form of a company - Whether conduct was unfairly prejudicial to a member - Commercial unfairness - Oppression made out - Corporations Act 2001 (Cth) ss 180, 198F(2)(b), 232(b) and (e), 233(1)(a) and (d), 293, 461(1)(k), 1317H, 1317R, 1317S, 1318.
CORPORATIONS - Relief on oppression proceeding - Appropriate remedies - Whether minority or majority should be able to buy the other out - Whether winding up on just and equitable ground justified - Winding up as a remedy of last resort - Whether 'some other remedy' available that is less intrusive - Valuation of shares - Direction of buy-out order - Date of assessment - Appointment of expert pursuant to s 65M of the Civil Procedure Act 2010 (Vic).
PRACTICE AND PROCEDURE - Two related multi-party proceedings - Building and construction - Applications for trial of separate questions - Technology, Engineering and Construction List - Active case management - Proposed preliminary trial to determine whether errors and defects in design of concrete structures and whether remedial works reasonable and necessary to rectify - Structural engineering expert evidence critical - Existing orders for early expert conclaves and reports - Applications adjourned until after completion of structural engineering expert evidence and any pleading amendments- Orders requiring the timely joinder of any additional parties - Observations concerning the approach to expert evidence in the TEC List - Murphy v State of Victoria [2024] VSCA 238, Tepko Pty Ltd v Water Board (2001) 206 CLR 1, Hyder Consulting (Vic) Pty Ltd v CGU Insurance Ltd [2001] VSC 449, Inpex Operations Australia Pty Ltd v AIG Australia Ltd (No 2) [2023] WASC 61, referred to.
PRACTICE AND PROCEDURE - Civil Procedure Act 2010 (Vic) - Imperative for parties and practitioners engaged in complex litigation to comply with overarching obligations - Civil Procedure Act 2010 (Vic) ss 20, 22, 23 and 29, Part 4.9, s 49 and Practice Note SC CC1 paragraph 8 referred to.
PRACTICE AND PROCEDURE - Two defendants appeared at trial until the 17th day of trial - No other defendants appeared at the trial - Consequences of non-appearance - Hacer Group Pty Ltd v Euro Façade Tech Export Sdn Bhd [2022] VSC 373; Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; Ying v Perpetual Trustee Victoria Ltd [2012] VSCA 316 applied.
CORPORATIONS - Oppression - Company established initially with two equal shareholders and two directors - Whether a director removed without his consent - Whether a director/shareholder misappropriated monies of the company - Whether a director issued further shares in the company to third parties, including a company associated with the director, without consent and in diminution of the other original shareholder's shareholding - Oppression established - Whether accounts should be adjusted - Whether the company should be wound up on the just and equitable ground - Whether person has standing to apply for an order pursuant to s 233 of the Corporations Act 2001 (Cth) - Order for accounts to be adjusted and the company wound up - ss 232, 233, 461(1)(k), 462(2)(c) of the Corporations Act 2001 (Cth); Read-Zorn v Origin Distillers Group Pty Ltd [2023] FCA 280; Exton v Extons Pty Ltd & Ors (2017) 53 VR 520.
CONTRACT - Whether persons agreed to lend cryptocurrency, Bitcoin, to a company, to be used for working capital or contributed the Bitcoin to obtain equity - Held persons agreed to lend Bitcoin to the company to be used for working capital - Held that the terms of loans concerning repayment likely the subject of agreement but no evidence of what was agreed.
BAILMENT - Whether an interest in Bitcoin may be subject of a bailment - Whether an interest in Bitcoin is property - Whether an interest in Bitcoin is held in possession - Held that an interest in Bitcoin is property but is intangible and is not held in possession - Held an interest in Bitcoin cannot be the subject of bailment - Yanner v Eaton (1944) 68 CLR 261; National Trustees Executors and Agency Company Limited v Federal Commissioner of Taxation (1954) 91 CLR 540; AA v Persons Unknown [2019] EWHC 3556 (Comm); Ruscoe v Cryptopia Ltd (in liq) [2020] 2 NZLR 809; Tulip Trading Ltd v Bitcoin Association for BSV [2023] EWCA Civ 83; D'Aloia v Persons Unknown [2024] EWHC 2342 (Ch) considered and applied.
PRACTICE AND PROCEDURE - A defendant did not appear in the proceeding or at trial - Allegations of fact taken to be admitted - Whether claims made in closing submissions against that defendant are made in the pleadings - Where claims not made in the pleadings and plaintiff did not seek leave to amend and to serve an amended pleading - Held that the plaintiff not entitled to make the claims - Held, in any event, claims not established.
EQUITY - Whether a person is a volunteer who received misappropriated monies - Whether a person is liable to account for benefit received - Held person is not a volunteer - Black v S. Freedman & Company (1910) 12 CLR 105 and Heperu Pty Ltd v Belle (2009) 76 NSWLR 230 applied.
TRUSTS - Whether there is an express trust in relation Bitcoin - Whether the trustee acted in breach of trust - Held there was an express trust and that the trustee acted in breach of her duties as trustee - Held plaintiff entitled to equitable compensation - Held trustee breached her duties not in selling the assets of the trust but in not remitting the proceeds from the sale - Held in the circumstances of this case the appropriate equitable compensation was equivalent to the proceeds misappropriated by the trustee and not the value of the assets at the date of judgment - LL UP Pty Ltd v Kegland Distribution Pty Ltd [2024] VSC 651; Youyang Pty Ltd v Minter Ellison Morris Fletcher (2003) 212 CLR 484; Break Fast Investments Pty Ltd v Rigby Cooke Lawyers (A Firm) [2022] VSCA 118 applied.
CORPORATIONS - Oppression - Multiple instances of oppression - Held that oppression established - Order for transfer of shares by minority shareholder to majority shareholder refused - No evidence of valuation - Order for accounts to be adjusted refused and the companies wound up - ss 232, 233 and 461(1)(k) of the Corporations Act 2001 (Cth).
WILLS AND ESTATES - Application for judicial advice - Construction of will - Plaintiff seeks declaration of entitlement to property devised by will - Testamentary intention - Where property devised to plaintiff subject to condition to pay all rates, taxes and outgoings - Where plaintiff substantially in arrears in respect of payment of outgoings - Condition not fulfilled - Gift over of property to defendants - Plaintiff entitled to indemnity for expenses incurred on improvements to property as executor - Supreme Court (General Civil Procedure) Rules 2015 O 54, r 54.02 - Guardianship and Administration Act 2019 - Re Williams (1885) 54 LT 105 - Wright v Wilkin (1860) 121 E.R. 1060 Gill v Gill (1921) 21 SR (NSW) 400 - Fell v Fell (1922) 31 CLR 268 - Re Goodwin [1924] 2 Ch 26 - Perrin v Morgan [1943] AC 399 - Re Porter; Logan v Northern Bank Ltd and Others [1975] NI 157 - Morris v Smoel [2013] VSCA 11 - Marley v Rawlings [2015] AC 129 - Greenham v Greenham [2020] VSC 749.
INSTITUTIONAL LIABILITY - PRACTICE AND PROCEDURE - Admissibility of tendency evidence - Where plaintiff previously granted leave to adduce tendency evidence that alleged perpetrator had sexual interest in children - Where defendant sought to adduce tendency evidence of a competing tendency - Where defendant's proposed tendency evidence to the effect that alleged perpetrator had no sexual interest in children - Where defendant asserted alleged perpetrator had tendencies to not act in a particular way - Whether tendency evidence of significant probative value - Evidence Act 2008 (Vic) s 97 - DP (a pseudonym) v Bishop Bird [2021] VSC 453 - Hughes v The Queen (2017) 263 CLR 338.
APPEAL - Victorian Civil and Administrative Tribunal - Claim by builder against manufacturer and supplier of windows allegedly not complying with agreed specifications - Applications for striking out or summary dismissal of proceeding - Interlocutory orders - VCAT refusing applications and granting builder leave to file and serve amended points of claim - Application for leave to appeal interlocutory orders dismissed -Victorian Civil and Administrative Tribunal Act 1998 ss 77, 78, 127, 148 - Australian Consumer Law and Fair Trading Act 2012 ss 184, 217.
REAL PROPERTY - Caveats - Application for removal of caveat under s 90(3) of the Transfer of Land Act 1958 (Vic) - Whether there is a prima facie case to be tried - Trust alleged - Where first defendant's claims are based on pseudo-legal arguments and fatuous made up legal principles - Claims of the "Living Man" - Allegations of the existence of "the People's Court of Terra Australis" - Fatuous legal principles - Whether the balance of convenience favours the removal of the caveat - Order for removal of caveat to be made - Indemnity costs order against caveator.
COSTS - Group proceeding - Pleadings - Leave to amend statement of claim - Refusal of summary dismissal and strike out - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.17 - Discretion to otherwise order - Overlapping applications by various parties.
APPEALS - PRACTICE AND PROCEDURE - Summary judgment - Appeal against order of Associate Judge - Associate Judge ordered that summary judgment be entered and that the plaintiff pay the defendants' costs - Whether grant of summary judgment 'unjustified' - Whether Associate Judge had authority to give summary judgment - Whether claims barred by Limitation of Actions Act 1958 (Vic) - Whether police tort claims are a 'specialty' within s 5(3) of the Limitation of Actions Act 1958 (Vic) - Whether Associate Judge should have granted an extension of time - Whether claims barred by res judicata and Anshun estoppel - Appeal dismissed.
EVIDENCE - Where plaintiffs seek to rely on expert evidence of domestic law - Where plaintiffs seek to rely on multiple expert reports addressing public international law - Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79 - Novartis AG v Pharmacor Pty Ltd [2022] FCAFC 58 - Evidence Act 2008 (Vic) s 192A - Expert evidence on content and application of domestic law inadmissible - Plaintiffs limited to evidence of two experts on public international law.
ADMINISTRATIVE LAW - Judicial review - Director of Public Prosecutions took over private prosecution commenced by plaintiff and withdrew charges - Plaintiff seeking judicial review of decision to withdraw charges - Director contends prosecutorial decision to withdraw charges not amenable to judicial review - Where proceeding involves a constitutional matter of which notice has been given under Judiciary Act 1903 (Cth) s 78B - Friends of the Court appointed as contradictor - Held decision insusceptible of judicial review.
CONSTITUTIONAL LAW - The judiciary - Supervisory jurisdiction of State Supreme Courts - Supervision of the exercise of executive power for jurisdictional error - 'Principle of unreviewability' - Whether Supreme Court of Victoria's supervisory jurisdiction extended to judicial review of prosecutorial decision to withdraw criminal charges - Held that it did not - Public Prosecutions Act 1994 (Vic) s 22(1)(b)(ii) - Judiciary Act 1903 (Cth) s 78B(1) - Constitution Act 1975 (Vic) Part IIIA - Maxwell v The Queen (1996) 184 CLR 501 - Kirk v Industrial Court (NSW) (2010) 239 CLR 531.
JUDICIAL REVIEW - Appeal from Victorian Civil and Administrative Tribunal - Sale of car not of acceptable quality in breach of statutory guarantee in s 54 of Schedule 2 to the Competition and Consumer Act 2010 (Cth) ('Australian Consumer Law') - Whether Tribunal erred in law when determining whether statutory guarantee did not apply per s 54(7) of Australian Consumer Law - Where at time of sale car had rust on underbody - Where third party examined car on behalf of consumer prior to purchase - Whether inspection ought reasonably to have revealed car not of acceptable quality - Whether necessary that inspection reveal defect on which consumer relies - Tribunal did not ask itself the wrong question - Application for leave to appeal dismissed - Medtel Pty Ltd v Courtney (2003) 130 FCR 182 - Australian Competition and Consumer Commission v Mazda Australia Pty Ltd [2021] FCA 1493 - Capic v Ford Motor Company of Australia Pty Ltd [2021] FCA 715 - Australian Consumer Law, s 54 - Australian Consumer Law and Fair Trading Act 2012 (Vic) - Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Motor Car Traders Act 1986 (Vic).
OWNERS CORPORATION - Consequences of owners corporation failure to comply with s 18(1) of the Owners Corporation Act 2006 (Vic) to commence legal proceedings - Non-compliance gives rise to procedural irregularity - Proceeding not a nullity - Application of Burbank Australia Pty Ltd v Owners Corporation PS 447493 [2015] VSC 160 - Where owners corporation put on substantial notice of non-compliance - Court's discretion exercised to summarily dismiss proceeding brought by the owners corporation - Whether dismissal of proceeding by the owners corporation affects standing of the joint judgment creditors - Consideration of joinder of necessary parties under r 9.03(1) - Order made for proceeding to continue in the absence of the owners corporation to ensure just and efficient resolution of issues in dispute.
EXECUTION - Judgment debt for sum of money - Warrant of seizure and sale - Property available to meet judgment debt - ss 208 and 219 of the Property Law Act 1958 (Vic), s 42 of the Supreme Court Act 1986 (Vic) and s 23 of Sheriff Act 2009 (Vic) considered - Where judgment debtor is the sole beneficiary of real property under a will - Whether beneficiary's rights under a will are available to meet judgment debt - Beneficiary only has an interest in real property upon the estate being administered - Judgment debtor's right of due administration of deceased estate is not recoverable property.
ADMINISTRATION AND PROBATE - Factors to consider to determine when the administration of an estate is complete - Whether distribution required to complete administration - Consideration of Easterbrook v Young (1977) 136 CLR 208 - Where all debts of testator, testamentary and funeral expenses paid over 22 years ago - Where only estate asset remaining is real property - Where executor's evidence that administration of the real property was completed in 2003 - Where executor is sole beneficiary of real property under will - Where executor claims administration is continuing to enable investigation of fraud on the deceased - Where Court has decided the administration of the estate is continuing - Consideration of Greater Geelong City Council v Giurina & Anor [2023] VSC 59, Giurina v Greater Geelong City Council [2023] VSCA 299, Ermanno Giurina v The Sheriff of the State of Victoria (Supreme Court of Victoria, S ECI 2024 00204, Forbes J, 26 February 2024) and Giurina v Sheriff (Vic) [2024] VSCA 112 - Where real property sold by Sheriff in execution of warrants for debts incurred by the executor - Whether proceeds of sale of real property are estate assets - Administration completed by Sheriff sale of property and execution of warrants for executor debts - Where executor made inconsistent claims in other legal proceedings as to the completion of the administration of the estate - Scope of Sheriff's duties in Part IV of Sheriff Act 2009 (Vic).
EXECUTION - Jurisdiction to make declarations and orders for aid in enforcement of a warrant - Declaratory relief in aid of enforcement - Where relief will clarify competing arguments as to ownership of the asset - Where relief will clarify the Sheriff's obligations on execution of a warrant - Where judgment debtor denies liability under the judgment - Where judgment outstanding for over five years - Scope of rr 66.11 and 66.15 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Discretionary factors in favour of the grant of relief.
PRACTICE AND PROCEDURE - Summary judgment application - Strike-out application - Removal of party - Alleged abuse of process - Civil Procedure Act 2010 (Vic), s 63 - Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 9.06(a), 23.01, 23.02 - Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, referred to - Whether plaintiff's claims have reasonable prospects of success or are frivolous or vexatious - Statement of claim does not disclose a cause of action - Claims have no reasonable prospects of success - Proceeding dismissed.
CONSTITUTIONAL LAW - Challenge to validity of Melbourne City Link Act 1995 (Vic) - Whether legislation permits corporation to levy tolls, issue invoices, and notify enforcement agencies of non-payment - Whether legislation impermissibly confers judicial power on private body - Whether Act is inconsistent with Australian Constitution ss 51(xx), 109 - Tolling provisions create civil liability - No conferral of judicial power upon corporation.
TORT, PRIVACY AND MENTAL HARM - Issuance of toll invoices under statutory tolling scheme - Allegations of coercion, duress, and undue influence in debt recovery - Consideration of debt collection practices - Alleged breach of Privacy Act 1988 (Cth) for disclosure of personal information to third parties - Whether toll invoices constitute legally enforceable demands absent a contract - Claims of mental harm arising from debt recovery conduct - No evidence of intent to inflict mental harm.
PRACTICE AND PROCEDURE - Application to set aside a deed pursuant to the Limitation of Actions Act 1958 ss 27QD and 27QE - Hearing by an Associate Judge under Supreme Court (General Civil Procedure) Rules 2015 r 77.05 - Extent of authority of an Associate Judge - Supreme Court Act 1986 ss 17(1A), 25(1)(b) - Supreme Court (General Civil Procedure) Rules 2015 rr 77.01, 77.02 - Whether referral order required.
PRACTICE AND PROCEDURE - Power of Court to order production of documents in an appeal on a question of law from 'final order' of the Magistrates' Court - Grant of leave to appeal out of time - Forensic purpose of production - Identification of related question of law raised by the appeal - Criminal Procedure Act 2009 s 272.
PUBLIC LAW - Application for review of detention order - Unchallenged evidence that respondent remains unacceptable risk of committing a serious sex offence - Whether detention order only option to mitigate risk - Detention order not only option - Detention order revoked - Supervision order to be in made in place of detention order - Serious Offenders Act 2018 (Vic) ss 63, 64, 100, 104, 105, 108, 279, 280.
CRIMINAL LAW - Bail application - Applicant charged with violent offending - Addiction - Access to Koori Court - Show compelling reason test - Whether unacceptable risk - Applicant identifies as Aboriginal - Bail Act 1977 (Vic) s 3A - Bail reform.
CRIMINAL LAW - Bail - Allegations of family violence - Persistent contravention of family violence intervention order - Alleged threats to kill - Alleged strangulation - Schedule 2 offences alleged to have been committed while on bail for other Schedule 2 offences - Requirement to show exceptional circumstances - Strength of prosecution case - Availability of psychological treatment - Availability of stable accommodation - Availability of secure employment - Availability of bail guarantee - Whether time spent on remand likely to exceed any term of imprisonment - Exceptional circumstances not established - Unacceptable risk would have been established - Bail refused - Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5AAAA, 5AAA.
CRIMINAL LAW - Sentence - Accused charged on summons with attempted murder - Matter resolved to guilty plea to causing serious injury intentionally in circumstances of gross violence and common assault - Accused 14 years old at time of offending - Victims were the accused's grandmother and sister - Accused now 16 years old - Matters in mitigation - Significant delay - Suffering from high functioning undiagnosed autism spectrum disorder at time of offending - No prior criminal history - No subsequent matters - Sentenced pursuant to the Children, Youth and Families Act 2005 (Vic) - On both charges released on a 15 month youth supervision order - Children, Youth and Families Act 2005 (Vic) ss 361, 362, 362A, 387, 389 - Crimes Act 1958 (Vic) s 15A.
CRIMINAL LAW - Sentencing - Manslaughter - Unlawful and dangerous act - Stabbing - No recent psychological assessments - Early guilty plea - No evidence of remorse - Bugmy v The Queen (2013) 249 CLR 571 - R v Verdins (2007) 16 VR 269.
CRIMINAL LAW - Sentence - Murder - Guilty plea following sentence indication hearing - Deceased was offender's wife - No premeditation or planning - Unexplained and brutal offending - Deceased killed in her own home - Aggravating circumstances - Offender allowed the couple's 11-year-old daughter to find her mother's body - No prior convictions - No history of family violence - Good prospects of rehabilitation - Standard sentence offence - Sentenced to 24 years' imprisonment with a non-parole period of 18 years and 6 months' imprisonment.