COMPETITION AND CONSUMER LAW - Competition and Consumer Act 2010 (Cth) - Restrictive trade practices - Prohibition of contracts, arrangements, or understandings affecting the supply or acquisition of goods - Where head contractor succumbed to threat from union and terminated subcontract without any verbal (or written) assent being communicated to union - Whether sufficient to give rise to "understanding" in context of ss 45E(3) and 45EA of Competition and Consumer Act that head contractor succumbed to union's threat of industrial action by doing what was demanded under sanction of that threat.
COMPETITION AND CONSUMER LAW - Competition and Consumer Act 2010 (Cth) - Restrictive trade practices - Prohibition of contracts, arrangements, or understandings affecting the supply or acquisition of goods - Where head contractor succumbed to threat from union and terminated subcontract without any verbal (or written) assent being communicated to union - Whether sufficient to give rise to "understanding" in context of ss 45E(3) and 45EA of Competition and Consumer Act that head contractor succumbed to union's threat of industrial action by doing what was demanded under sanction of that threat.
WORDS AND PHRASES - "acceptance", "acquisition situation", "arrangement", "arrangement or understanding", "arriving at an understanding", "assent", "communication", "communication of acceptance", "communication of assent", "consensus", "contract, arrangement or understanding", "express or tacit communication", "giving effect to an understanding", "implied promise", "implied request", "inducement", "making a contract", "making an arrangement", "manifestations of mutual consent", "meeting of minds", "offer", "performance", "proscribed purpose", "reciprocity", "secondary boycott", "threat", "threat of industrial action", "unilateral contracts".
Competition and Consumer Act 2010 (Cth), ss 45E, 45EA, 76.
CRIMINAL PRACTICE - Appeal - Recorded evidence - Where principal evidence implicating respondent was alleged admissions in intercepted telephone calls and police interviews - Where recordings of principal evidence played to jury and tendered as exhibits - Where respondent appealed conviction on ground that verdict unreasonable or could not be supported having regard to the evidence - Where majority of Court of Criminal Appeal of New South Wales ("CCA") held reasonable doubt as to respondent's guilt - Where majority of CCA did not view or listen to recordings of principal evidence - Whether CCA erred in concluding reasonable doubt not capable of being explained away by jury's natural advantages in having listened to principal evidence without listening to recordings - Whether in failing to listen to or view principal evidence CCA failed to discharge appellate function described in M v The Queen (1994) 181 CLR 487.
CRIMINAL PRACTICE - Appeal - Recorded evidence - Where principal evidence implicating respondent was alleged admissions in intercepted telephone calls and police interviews - Where recordings of principal evidence played to jury and tendered as exhibits - Where respondent appealed conviction on ground that verdict unreasonable or could not be supported having regard to the evidence - Where majority of Court of Criminal Appeal of New South Wales ("CCA") held reasonable doubt as to respondent's guilt - Where majority of CCA did not view or listen to recordings of principal evidence - Whether CCA erred in concluding reasonable doubt not capable of being explained away by jury's natural advantages in having listened to principal evidence without listening to recordings - Whether in failing to listen to or view principal evidence CCA failed to discharge appellate function described in M v The Queen (1994) 181 CLR 487.
WORDS AND PHRASES - "admissions", "advantage in seeing and hearing the evidence", "ascertaining the effect of the evidence visually or by sound", "beyond reasonable doubt", "circumstantial case", "consciousness of guilt reasoning", "credibility and reliability", "demeanour", "electronic exhibits", "extended joint criminal enterprise", "function of the appellate court", "generalised inference", "indispensable intermediate fact", "intercepted telephone calls", "joint criminal enterprise", "natural advantages of the jury", "procedural fairness", "real forensic purpose", "recorded evidence", "recorded witness testimony", "relevant or significant advantage", "tone of voice", "transcript", "unreasonable or could not be supported having regard to the evidence", "video recorded evidence".
Criminal Appeal Act 1912 (NSW), s 6.
CRIMINAL PRACTICE - Directions to jury - Distress evidence - Where respondent found guilty of two sexual offences against complainant - Where evidence of pre-trial distress of complainant when making complaint - Where trial judge gave circumstantial evidence direction in relation to evidence of complainant's distress - Whether trial judge's directions in relation to use jury could make of pre-trial distress evidence gave rise to substantial miscarriage of justice - Whether substantial and compelling reasons for trial judge to warn jury of necessity of finding causal link between distress and offending - Whether substantial and compelling reasons for trial judge to warn jury that distress evidence generally carries little weight.
CRIMINAL PRACTICE - Directions to jury - Distress evidence - Where respondent found guilty of two sexual offences against complainant - Where evidence of pre-trial distress of complainant when making complaint - Where trial judge gave circumstantial evidence direction in relation to evidence of complainant's distress - Whether trial judge's directions in relation to use jury could make of pre-trial distress evidence gave rise to substantial miscarriage of justice - Whether substantial and compelling reasons for trial judge to warn jury of necessity of finding causal link between distress and offending - Whether substantial and compelling reasons for trial judge to warn jury that distress evidence generally carries little weight.
WORDS AND PHRASES - "causal connection", "circumstantial evidence", "complainant", "corroboration", "credibility", "direction", "distress", "distress accompanying complaint", "hearsay", "historical common law evidentiary rules", "indirect evidence", "jury", "miscarriage of justice", "pre-trial distress", "relevance", "sexual offence", "substantial and compelling reasons", "substantial miscarriage of justice", "unreliable", "weight".
Evidence Act 2008 (Vic), ss 55, 56, 59, 66, 135, 136, 137, 164.
Jury Directions Act 2015 (Vic), ss 16, 31, 34, 54K, 61, 62.
CONSTITUTIONAL LAW (Cth) - Judicial power of Commonwealth - Immigration detention - Detention without judicial order - Where following release from custody claimants taken into immigration detention under s 189(1) of Migration Act 1958 (Cth) ("Act") - Where s 196(1) of Act required claimants to be kept in immigration detention until removed from Australia, deported, or granted visa - Where claimants had pending application for protection visa - Where ss 198(1) and 198(6) of Act imposed duty upon officers to remove unlawful non-citizen from Australia as soon as reasonably practicable where request made in writing or visa application finally determined - Where Administrative Appeals Tribunal ("Tribunal") found claimants satisfied criterion for protection visa in s 36(2)(aa) of Act and were owed protection obligations - Where claimants were granted visa and released from immigration detention following Tribunal finding - Where claimants sought declaration that detention from time of Tribunal finding to release from immigration detention unlawful on basis that detention exceeded constitutional limitation identified in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005; 415 ALR 254 - Whether continuing detention of claimants exceeded constitutional limitation identified in NZYQ - Whether question of real prospect of removal from Australia becoming practicable in reasonably foreseeable future arose where each claimant had pending application for protection visa - Whether constitutional writ of mandamus available to compel performance of duty to consider claimants' visa applications.
CONSTITUTIONAL LAW (Cth) - Judicial power of Commonwealth - Immigration detention - Detention without judicial order - Where following release from custody claimants taken into immigration detention under s 189(1) of Migration Act 1958 (Cth) ("Act") - Where s 196(1) of Act required claimants to be kept in immigration detention until removed from Australia, deported, or granted visa - Where claimants had pending application for protection visa - Where ss 198(1) and 198(6) of Act imposed duty upon officers to remove unlawful non-citizen from Australia as soon as reasonably practicable where request made in writing or visa application finally determined - Where Administrative Appeals Tribunal ("Tribunal") found claimants satisfied criterion for protection visa in s 36(2)(aa) of Act and were owed protection obligations - Where claimants were granted visa and released from immigration detention following Tribunal finding - Where claimants sought declaration that detention from time of Tribunal finding to release from immigration detention unlawful on basis that detention exceeded constitutional limitation identified in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005; 415 ALR 254 - Whether continuing detention of claimants exceeded constitutional limitation identified in NZYQ - Whether question of real prospect of removal from Australia becoming practicable in reasonably foreseeable future arose where each claimant had pending application for protection visa - Whether constitutional writ of mandamus available to compel performance of duty to consider claimants' visa applications.
IMMIGRATION - Unlawful non-citizens - Where claimants detained as unlawful non-citizens under ss 189(1) and 196(1) of Act - Whether continuing detention of claimants authorised by ss 189(1) and 196(1) of Act.
WORDS AND PHRASES - "alien", "constitutional limitation expressed in NZYQ", "constitutional writ", "continuing detention", "damages", "depriving a person of their liberty", "disproportionality", "executive detention", "habeas corpus", "judicial power of the Commonwealth", "legitimate and non-punitive purpose", "Lim principle", "mandamus", "penal", "power or duty", "practicable", "protection finding", "punishment", "punitive", "real prospect", "reasonably capable of being seen as necessary", "reasonably foreseeable future", "removal from Australia", "statutory purpose", "unlawful non-citizen", "visa processing".
Constitution, s 51(xix), Ch III.
Migration Act 1958 (Cth), ss 5, 13, 36, 36A, 45, 47, 65, 189, 196, 197C, 198.
TAXATION - Land tax - Appeal - Appeal against assessments by Commissioner of State Revenue - Primary production exemption - Whether land was used primarily for business of primary production - Whether applicant's main undertaking was primary production - Whether applicant's sole shareholder normally engaged in substantially full-time capacity in business of primary production - Whether primary judge's reasons vitiated by unattributed copying of respondent's submissions - Primary production exemption not made out - Vitiating error not established - Application for leave to appeal from primary judge's orders upholding Commissioner's assessments refused.
TAXATION - Land tax - Appeal - Appeal against assessments by Commissioner of State Revenue - Primary production exemption - Whether land was used primarily for business of primary production - Whether applicant's main undertaking was primary production - Whether applicant's sole shareholder normally engaged in substantially full-time capacity in business of primary production - Whether primary judge's reasons vitiated by unattributed copying of respondent's submissions - Primary production exemption not made out - Vitiating error not established - Application for leave to appeal from primary judge's orders upholding Commissioner's assessments refused.
WORDS AND PHRASES - Primary production - Business of primary production - Primarily for business of primary production - Principal business - Main undertaking.
Land Tax Act 2005, ss 7, 8, 36(1), 64(1) and 67.
Atanaskovic Hartnell Corporation Services Pty Ltd v Kelly [2024] FCAFC 137; Chief Commissioner of State Revenue v Metricon Qld Pty Ltd (2017) 105 ATR 11; Federal Commissioner of Taxation v Stone (2005) 222 CLR 289; Federal Commissioner of Taxation v JR Walker (1985) 16 ATR 331; Ferguson v Federal Commissioner of Taxation (1979) 37 FLR 310; Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1; Hunter v Transport Accident Commission (2005) 43 MVR 130; Inglis v Federal Commissioner of Taxation (1979) 10 ATR 493; King v Australian Securities and Investments Commission (2018) 134 ACSR 105; Li v Attorney-General for New South Wales (2019) 99 NSWLR 630; Lotus Oaks Pty Ltd v Commissioner of State Revenue (2021) 113 ATR 379; Magna Alloys and Research Pty Ltd v Federal Commissioner of Taxation (1980) 49 FLR 183; Porter v The Queen (2024) 21 ACTLR 122; Rainn Pty Ltd v Commissioner of State Revenue [2016] VSCA 338; Spriggs v Federal Commissioner of Taxation (2009) 239 CLR 1; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588; Thomas v Federal Commissioner of Taxation (1972) 46 ALJR 397; Top of the Cross Pty Ltd v Federal Commissioner of Taxation (1980) 50 FLR 19; Tweddle v Federal Commissioner of Taxation (1942) 180 CLR 1; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598.
CONTRACT - Construction - Contract for sale of land - Purchaser required to undertake remediation works to land - Vendor required to pay costs 'properly and reasonably incurred' by purchaser in undertaking works - Purchaser to notify vendor of discovery of unidentified contamination as precursor to recovery of costs - Contract required notice to be accompanied by letter of environmental consultant - Judge found that purported notices and letters were not 'valid' - Whether accompanying letters satisfy criteria under the contract - Compliance with contractual requirements to be assessed on the face of the notice and letter - Court satisfied that each notice contained at least one item of unidentified contamination that complied with contractual criteria - Remittal necessary - Application for leave to appeal granted - Appeal allowed.
CONTRACT - Construction - Contract for sale of land - Purchaser required to undertake remediation works to land - Vendor required to pay costs 'properly and reasonably incurred' by purchaser in undertaking works - Purchaser to notify vendor of discovery of unidentified contamination as precursor to recovery of costs - Contract required notice to be accompanied by letter of environmental consultant - Judge found that purported notices and letters were not 'valid' - Whether accompanying letters satisfy criteria under the contract - Compliance with contractual requirements to be assessed on the face of the notice and letter - Court satisfied that each notice contained at least one item of unidentified contamination that complied with contractual criteria - Remittal necessary - Application for leave to appeal granted - Appeal allowed.
CONTRACT - Failure of contractual machinery - Contract imposed obligation on vendor to pay costs 'properly and reasonably incurred' by purchaser in remediation of contamination - Contract provided machinery for notification of unidentified contamination as precursor to recovery of costs - Vendor could object to notice and objection to be resolved by expert - Contract required notification of unidentified contamination by purchaser and resolution of any objection by expert prior to remediation being undertaken - Contract also provided machinery for certification of works by quantity surveyor prior to payment - Where extensive unidentified contamination discovered - Where parties made informal accommodation to delay expert determination process - Where parties agreed that remediation works would proceed before objections were resolved - Where parties amended contract to refer 'all disputes' about unidentified contamination to 'the Court' - Whether contractual machinery failed as a result of informal accommodation or amendment to contract - Contractual machinery failed - Contractual machinery not essential - Even if machinery essential, contract has been part-performed - Court can supply alternative machinery - Form of alternative machinery considered - No reason not to exercise discretion to supply alternative machinery - Remittal necessary - Application for leave to appeal granted - Appeal allowed.
CONTRACT - Breach of terms - Implied duty of co-operation, good faith and fair dealing - Contractual obligation to promptly do whatever other party required of it to give effect to contract and perform obligations under contract - Relevant allegations raised at trial for first time in final submissions - Whether defendant accorded procedural fairness - No error by trial judge - Proposed ground of appeal strictly unnecessary to decide - Leave to appeal refused.
QUANTUM MERUIT - Trial judge did not proceed on erroneous view of the law - Trial judge addressed submissions made at trial - Entirely new articulation of quantum meruit claim made on appeal - Proposed ground of appeal strictly unnecessary to decide - Leave to appeal refused.
PRACTICE AND PROCEDURE - Remittal - Whether utility in remittal - Whether judge made sufficient findings of fact to determine no utility in remittal - Not sufficiently clear that applicant would be unable to establish entitlement to any amount - Remittal ordered.
Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749; Pan Foods Co Importers & Distributors Pty Ltd v Australia & New Zealand Banking Group Ltd (2000) 170 CLR 579; Tricontinental Corporation Ltd v HDFI Ltd (1990) 21 NSWLR 689; JPA Finance Pty Ltd v Gordon Nominees Pty Ltd (2019) 58 VR 393; Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600; 500 Burwood Highway Pty Ltd v Australian Unity Ltd [2012] VSC 596; Beevers v Port Phillip Sea Pilots Pty Ltd [2007] VSC 556; International Petroleum Investment Company v Independent Public Business Corporation of Papua New Guinea [2014] NSWSC 1289; Gillatt v Sky Television Ltd [2000] 2 BCLC 103; Infiniteland Ltd v Artisan Contracting Ltd [2005] 1 BCLC 632, discussed. Cameron v Cuddy [1914] AC 651; Sudbrook Trading Estate Ltd v Eggleton [1983] 1 AC 44; Macro v Thompson [No 3] [1997] 2 BCLC 36; Re Malpass [1985] Ch 42, applied; Candoora No 19 Pty Ltd v Freixenet Australasia Pty Ltd [No 2] [2008] VSC 478, distinguished.
NEGLIGENCE - Causation - Worker injured after slipping on liquid spilt on floor - Accident compensation payments - Claim for indemnity under s 369 of Workplace Injury Rehabilitation and Compensation Act 2013 in respect of payments - Whether injury caused under circumstances creating legal liability in the applicant to pay damages - Whether trial judge erred in finding applicant negligent - Whether judge erred in concluding that injury was caused by applicant's negligence - Appeal allowed.
NEGLIGENCE - Causation - Worker injured after slipping on liquid spilt on floor - Accident compensation payments - Claim for indemnity under s 369 of Workplace Injury Rehabilitation and Compensation Act 2013 in respect of payments - Whether injury caused under circumstances creating legal liability in the applicant to pay damages - Whether trial judge erred in finding applicant negligent - Whether judge erred in concluding that injury was caused by applicant's negligence - Appeal allowed.
Workplace Injury Rehabilitation and Compensation Act 2013, s 369; Wrongs Act 1958, Part X, ss 48, 49, 51 and 52.
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, referred to; Strong v Woolworths Ltd (2012) 246 CLR 182, discussed.
PRACTICE AND PROCEDURE - Summary judgment - Applicant pleaded guilty to breach of personal safety intervention order in Magistrates' Court - Magistrate ordered that matter be adjourned without conviction on applicant's undertaking - Where applicant brought civil proceeding against the State alleging that police failed to conduct proper investigation - Judge dismissed proceeding as abuse of process by reason of impermissible collateral attack on Magistrates' Court decision - Where applicant's appeal of Magistrate's decision subsequently successful - No error in judge's ruling or determination - Other proposed grounds of appeal lacking merit - Application for leave to appeal refused.
PRACTICE AND PROCEDURE - Summary judgment - Applicant pleaded guilty to breach of personal safety intervention order in Magistrates' Court - Magistrate ordered that matter be adjourned without conviction on applicant's undertaking - Where applicant brought civil proceeding against the State alleging that police failed to conduct proper investigation - Judge dismissed proceeding as abuse of process by reason of impermissible collateral attack on Magistrates' Court decision - Where applicant's appeal of Magistrate's decision subsequently successful - No error in judge's ruling or determination - Other proposed grounds of appeal lacking merit - Application for leave to appeal refused.
Beckett v New South Wales (2013) 248 CLR 432; Soo v Victoria Legal Aid [2023] VSC 289; Soo v Victoria Legal Aid [2023] VSCA 330, discussed.
Cabassi v Vila (1940) 64 CLR 130; D'Orta- Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, referred to.
PRACTICE AND PROCEDURE - Application for extension of time in which to apply for leave to appeal from one set of orders - Application for leave to appeal from different set of orders - Applications relating to orders made in same proceeding - Consolidation - Whether applications should be consolidated - Applications ordered to heard and determined at same time.
PRACTICE AND PROCEDURE - Application for extension of time in which to apply for leave to appeal from one set of orders - Application for leave to appeal from different set of orders - Applications relating to orders made in same proceeding - Consolidation - Whether applications should be consolidated - Applications ordered to heard and determined at same time.
PRACTICE AND PROCEDURE - Appeal - Application for security for costs - Whether unacceptable risk that respondent, if successful, will be unable to recover his costs of applicants' applications - Unacceptable risk established - No discretionary factors militating against grant of security for costs - Security for costs granted.
LEGAL PRACTITIONERS - Negligence - Solicitor - Immunity from suit - Advice leading to plea of guilty - Advice given shortly prior to entry of plea of guilty in Magistrates' Court - Whether summary judgment correctly granted - Leave to appeal refused.
LEGAL PRACTITIONERS - Negligence - Solicitor - Immunity from suit - Advice leading to plea of guilty - Advice given shortly prior to entry of plea of guilty in Magistrates' Court - Whether summary judgment correctly granted - Leave to appeal refused.
D'Orta- Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1.
BUILDING CONTRACTS - Disputes between builder and building owner - Dispute about completion of building works under major domestic building contract - Domestic Building Contracts Act 1995 ss 11, 40, 42.
BUILDING CONTRACTS - Disputes between builder and building owner - Dispute about completion of building works under major domestic building contract - Domestic Building Contracts Act 1995 ss 11, 40, 42.
ADMINISTRATIVE LAW - Victorian Civil and Administrative Tribunal - Appeal from tribunal - Objections to jurisdiction on asserted constitutional grounds - No real prospects of success - Application for leave to appeal refused - Victorian Civil and Administrative Tribunal Act 1998 s 148.
PRACTICE AND PROCEDURE - Adjournment - Applicant a self-represented litigant who appointed legal representatives the day before the hearing - Application for adjournment to enable review and potential amendment of grounds of the application for leave to appeal - Whether prejudice to self-represented litigant - Whether applicant had impaired ability to present case - Reliance on mental state of applicant - No claim of impaired financial capacity - Reasons for delay not adequately explained - Applicant opposed any undertaking or condition requiring payment of judgment debt owing to respondent as condition of adjournment - Prejudice to respondent - Prejudice to administration of justice and other litigants - Adjournment refused.
PRACTICE AND PROCEDURE - Amendment - Application to rely on proposed amended application for leave to appeal raising matters under the Commonwealth Constitution ss 75(iv), 76(ii) - Asserted constitutional matters did not arise - Application refused.
CONSTITUTIONAL LAW - Asserted matter as to VCAT's lack of jurisdiction to hear and determine disputes involving residents of different States - Asserted matter as to VCAT's lack of jurisdiction to hear and determine proceedings involving claims under the Australian Consumer Law in its application as a law of the Commonwealth - Asserted constitutional matters did not arise - The Commonwealth Constitution ss 75(iv), 76(ii) - Judiciary Act 1903 (Cth) s 78B.
Australian Consumer Law and Fair Trading Act 2012, s 8(1).
Charter of Human Rights and Responsibilities Act 2006, ss 8(3), 24.
Civil Procedure Act 2010, s 7.
Commonwealth Constitution, ss 75(iv), 76(ii).
Competition and Consumer Act 2010 (Cth).
Domestic Building Contracts Act 1995.
Domestic Building Contract Regulations 2017, reg 13(1).
Judiciary Act 1903 (Cth), ss 78AA, 78B.
Supreme Court Act 1986, s 14C.
Supreme Court (General Civil Procedure) Rules 2015, r 19.03(4).
Victorian Civil and Administrative Tribunal Act 1998, ss 97, 98(1), 148(1)(a).
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; Sali v SPC Ltd (1993) 67 ALJR 841; (1993) 116 ALR 625, applied.
Business Service Brokers Pty Ltd v Optus Mobile Pty Ltd (No 3) [2022] VSC 283; Creative Building Services v Jolene Investments [2013] NSWSC 391; Renbar Constructions Pty Ltd v Sader [2022] NSWSC 172, considered.
Eaton v ISS Catering Services Pty Ltd (2013) 42 VR 635; Mackenzie v Head, Transport for Victoria [2021] VSCA 24; Tucker v Commissioner of State Revenue [2023] VSCA 125, followed.
Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205; Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290; British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30; Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22; Mitsubishi Motors Australia Ltd v Begovic [2023] HCA 43; Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525; Thurin v Krongold Constructions (Aust) Pty Ltd (2022) 73 VR 403, referred to.
ACCIDENT COMPENSATION - Workplace accident - Serious injury - Application for leave to commence common law proceeding - Lower back injury - Whether judge erred in concluding that the consequences of the injury were not very considerable - Whether judge's reasons did not disclose an adequate process of reasoning to demonstrate on the whole of the evidence why the applicant's application was refused - No error made by primary judge - Application for leave to appeal refused.
ACCIDENT COMPENSATION - Workplace accident - Serious injury - Application for leave to commence common law proceeding - Lower back injury - Whether judge erred in concluding that the consequences of the injury were not very considerable - Whether judge's reasons did not disclose an adequate process of reasoning to demonstrate on the whole of the evidence why the applicant's application was refused - No error made by primary judge - Application for leave to appeal refused.
Workplace Injury Rehabilitation and Compensation Act 2013, ss 335, 325(2)(c).
Juma v Kone Elevators Pty Ltd [2024] VSCA 217, applied; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, referred to.
CRIMINAL LAW - Application for bail pending second conviction appeal - Whether circumstances truly exceptional - Where applicant has several years of non-parole period left to serve - Comprehensive findings of fresh facts in reference determination - Findings of illegal and improper conduct by Nicola Gobbo acting as legal advisor - Issue whether global plea impugned by Crown non-disclosure - Prospects of success in combination with other matters amount to truly exceptional circumstances - Whether applicant an unacceptable risk - Availability of substantial bail guarantee and strict conditions including electronic monitoring - Unacceptable risk not established - Application for bail granted.
CRIMINAL LAW - Application for bail pending second conviction appeal - Whether circumstances truly exceptional - Where applicant has several years of non-parole period left to serve - Comprehensive findings of fresh facts in reference determination - Findings of illegal and improper conduct by Nicola Gobbo acting as legal advisor - Issue whether global plea impugned by Crown non-disclosure - Prospects of success in combination with other matters amount to truly exceptional circumstances - Whether applicant an unacceptable risk - Availability of substantial bail guarantee and strict conditions including electronic monitoring - Unacceptable risk not established - Application for bail granted.
Criminal Procedure Act 2009, ss 319A, 326A, 326C(1), 326E(3), 326F.
Mokbel v The King [2024] VSC 725; Re Zoudi (2006) 14 VR 580; Higgs v The Queen [2021] VSCA 90; Wilson v The Queen (2016) 1 NZLR 705.
CRIMINAL LAW - Appeal - Sentence - Appellant convicted of attempting to possess marketable quantity of border-controlled drug and possession of marketable quantity of border-controlled drug - Sentence for attempting to possess was 7 years' imprisonment - Appellant's co-accused on charge of attempting to possess received 2 years and 3 months' imprisonment - Whether appellant's sentence infringed parity principle - Differences in circumstances of appellant and co-offender not such to justify disparity - Sentence disparity manifestly excessive - Appeal allowed - Appellant resentenced to total effective sentence of 5 years and 6 months' imprisonment - 3 years and 4 months' non-parole period.
CRIMINAL LAW - Appeal - Sentence - Appellant convicted of attempting to possess marketable quantity of border-controlled drug and possession of marketable quantity of border-controlled drug - Sentence for attempting to possess was 7 years' imprisonment - Appellant's co-accused on charge of attempting to possess received 2 years and 3 months' imprisonment - Whether appellant's sentence infringed parity principle - Differences in circumstances of appellant and co-offender not such to justify disparity - Sentence disparity manifestly excessive - Appeal allowed - Appellant resentenced to total effective sentence of 5 years and 6 months' imprisonment - 3 years and 4 months' non-parole period.
Criminal Code Act 1995 (Cth), ss 11.1, 307.6, 307, referred to.
R v Nguyen (2010) 205 A Crim R 106; Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; Rose v The King [2024] VSCA 296; R v Mercieca [2004] VSCA 170; Nguyen v The Queen; Phommalysac v The Queen (2011) 207 A Crim R 380, considered.
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to 16 charges of rape, sexual assault, intentionally causing injury and recklessly causing serious injury against seven women - Applicant drugged complainants and offending occurred while complainants were unconscious - Applicant diagnosed with a somnophilic disorder - Applicant conceded disorder did not reduce his moral culpability - Whether judge failed to moderate need for general deterrence due to applicant's somnophilic disorder - Judge did not err in requiring 'realistic connection' or 'causal link' between disorder and offending - Judge correct to conclude that no moderation of general deterrence was appropriate - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to 16 charges of rape, sexual assault, intentionally causing injury and recklessly causing serious injury against seven women - Applicant drugged complainants and offending occurred while complainants were unconscious - Applicant diagnosed with a somnophilic disorder - Applicant conceded disorder did not reduce his moral culpability - Whether judge failed to moderate need for general deterrence due to applicant's somnophilic disorder - Judge did not err in requiring 'realistic connection' or 'causal link' between disorder and offending - Judge correct to conclude that no moderation of general deterrence was appropriate - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Whether total effective sentence or non-parole period manifestly excessive - No error in sentence given nature and extent of offending - Importance of general deterrence, denunciation and community protection - Judge gave sufficient weight to mitigating factors - Application for leave to appeal refused.
R v Verdins (2007) 16 VR 269; Langton (a pseudonym) v The Queen [2022] VSCA 79; R v O'Neill (2015) 47 VR 395; Tran v The Queen (2012) 35 VR 484; R v Engert (1995) 84 A Crim R 67; R v Mooney (Full Court of Supreme Court of Victoria, Unreported, 21 June 1978); R v Anderson [1981] VR 155; R v Dalgleish (a pseudonym) (2017) 262 CLR 428, discussed.
CRIMINAL LAW - Interlocutory appeal - Decision not to exclude circumstantial telecommunications evidence said to demonstrate that alleged offender was in vicinity of burglaries and arson at relevant times - Whether probative value of evidence outweighed by danger of unfair prejudice - Limitations of evidence capable of being exposed in cross-examination and addressed by jury direction - Leave to appeal refused.
CRIMINAL LAW - Interlocutory appeal - Decision not to exclude circumstantial telecommunications evidence said to demonstrate that alleged offender was in vicinity of burglaries and arson at relevant times - Whether probative value of evidence outweighed by danger of unfair prejudice - Limitations of evidence capable of being exposed in cross-examination and addressed by jury direction - Leave to appeal refused.
Evidence Act 2008 ss 135, 137.
Moore (a pseudonym) v The King (2024) 98 ALJR 1119, applied; Moreno (a pseudonym) v The King (2023) 307 A Crim R 519, referred to.
CRIMINAL LAW - Sentencing - Application for extension of time within which to seek leave to appeal against sentence - Theft (rolled up charge of theft encompassing 271 separate thefts totalling $479,695) - Sentence of 3 years with non-parole period of 2 years - Comparable cases - Manifest excess - Not reasonably arguable that sentence manifestly excessive - Futile to grant extension of time - Application for extension of time refused.
CRIMINAL LAW - Sentencing - Application for extension of time within which to seek leave to appeal against sentence - Theft (rolled up charge of theft encompassing 271 separate thefts totalling $479,695) - Sentence of 3 years with non-parole period of 2 years - Comparable cases - Manifest excess - Not reasonably arguable that sentence manifestly excessive - Futile to grant extension of time - Application for extension of time refused.
CRIMINAL LAW - Sentence - Application for leave to appeal - Sexual assault of a child under 16 (3 charges), Sexual penetration of a child under 12 (1 charge) - TES of 7 years 9 months, with NPP of 4 years 6 months - Applicant aged 84 years at sentencing - Sentence imposed following a trial - Manifest excess - Whether sentence manifestly excessive - Not reasonably arguable that sentence manifestly excessive - Application for leave to appeal refused.
CRIMINAL LAW - Sentence - Application for leave to appeal - Sexual assault of a child under 16 (3 charges), Sexual penetration of a child under 12 (1 charge) - TES of 7 years 9 months, with NPP of 4 years 6 months - Applicant aged 84 years at sentencing - Sentence imposed following a trial - Manifest excess - Whether sentence manifestly excessive - Not reasonably arguable that sentence manifestly excessive - Application for leave to appeal refused.
CRIMINAL LAW - Sentence - Application for leave to appeal against sentence by one of five co-offenders - Trafficking in a drug of dependence in a large commercial quantity - TES 16 years 4 months with NPP 12 years - Co-offender given same TES and NPP - Manifest excess - Not reasonably arguable that sentence manifestly excessive - Parity - Not reasonably arguable that individual sentences, orders for cumulation or TES infringe parity principles - Differences between co-offenders as to prior criminal history and prospects of rehabilitation - Not open to judge to impose identical NPPs given differences between co-offenders' circumstances - Leave to appeal granted - Appeal allowed - NPP set aside - Resentenced to NPP of 11 years - All other sentences and orders confirmed.
CRIMINAL LAW - Sentence - Application for leave to appeal against sentence by one of five co-offenders - Trafficking in a drug of dependence in a large commercial quantity - TES 16 years 4 months with NPP 12 years - Co-offender given same TES and NPP - Manifest excess - Not reasonably arguable that sentence manifestly excessive - Parity - Not reasonably arguable that individual sentences, orders for cumulation or TES infringe parity principles - Differences between co-offenders as to prior criminal history and prospects of rehabilitation - Not open to judge to impose identical NPPs given differences between co-offenders' circumstances - Leave to appeal granted - Appeal allowed - NPP set aside - Resentenced to NPP of 11 years - All other sentences and orders confirmed.
CRIMINAL LAW - Sentence - Applications for extensions of time within which to seek leave to appeal against sentence by three of five co-offenders - Trafficking in drugs of dependence in commercial quantities and large commercial quantities - Total effective sentences of 11 years 4 months, 7 years 7 months and 12 years 6 months - Manifest excess - Not reasonably arguable that any sentence manifestly excessive - Parity - Not reasonably arguable that any sentence infringes parity principles - Applications for leave to appeal and extensions of time refused.
CRIMINAL LAW - Appeal - Conviction - Murder - Whether direction that an 'unrealistic possibility' is not a reasonable doubt diminished the criminal standard of criminal proof - Beyond reasonable doubt explained in terms prescribed by legislature - Whether verdict of the jury unreasonable or cannot be supported having regard to the evidence - Defence case that an intruder killed the deceased - Open to the jury to reject hypothesis of intruder - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Murder - Whether direction that an 'unrealistic possibility' is not a reasonable doubt diminished the criminal standard of criminal proof - Beyond reasonable doubt explained in terms prescribed by legislature - Whether verdict of the jury unreasonable or cannot be supported having regard to the evidence - Defence case that an intruder killed the deceased - Open to the jury to reject hypothesis of intruder - Leave to appeal refused.
Jury Directions Act 2015, ss 63, 64.
Farshchi v The King [2024] VSCA 235; R v Dookheea (2017) 262 CLR 402.
CRIMINAL LAW - Interlocutory appeal - Trafficking in not less than a large commercial quantity of a drug of methylamphetamine and other drug offences - Clandestine methylamphetamine factory operating at applicant's premises - Applicant's fingerprints found on items in the laboratory - Applicant's DNA found in masks and on a glove in the laboratory - Whether fingerprint and DNA evidence irrelevant - Whether probative value of evidence outweighed by the risk of unfair prejudice due to CSI effect - Leave to appeal refused.
CRIMINAL LAW - Interlocutory appeal - Trafficking in not less than a large commercial quantity of a drug of methylamphetamine and other drug offences - Clandestine methylamphetamine factory operating at applicant's premises - Applicant's fingerprints found on items in the laboratory - Applicant's DNA found in masks and on a glove in the laboratory - Whether fingerprint and DNA evidence irrelevant - Whether probative value of evidence outweighed by the risk of unfair prejudice due to CSI effect - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Alleged sexual offending against two children - Where informant gave evidence that there was no DNA evidence linking the applicant to the offending - Where prosecutor made remarks in closing address about potential for removal of DNA evidence - Where no expert evidence led about removal of DNA - Remarks went beyond evidence in trial and invited jury to speculate - Remarks not cured by prosecutor's subsequent comments and judge's directions - Substantial miscarriage of justice - Application for leave to appeal granted - Appeal allowed - Convictions set aside and retrial ordered.
CRIMINAL LAW - Appeal - Conviction - Alleged sexual offending against two children - Where informant gave evidence that there was no DNA evidence linking the applicant to the offending - Where prosecutor made remarks in closing address about potential for removal of DNA evidence - Where no expert evidence led about removal of DNA - Remarks went beyond evidence in trial and invited jury to speculate - Remarks not cured by prosecutor's subsequent comments and judge's directions - Substantial miscarriage of justice - Application for leave to appeal granted - Appeal allowed - Convictions set aside and retrial ordered.
CRIMINAL LAW - Appeal - Conviction - Whether jury verdict unreasonable - Where complainant unsure whether alleged touching intentional - Where applicant's evidence was that no touching occurred at all - Jury rejected applicant's case - Complainant could not give probative direct evidence about applicant's state of mind - Open to jury to conclude beyond reasonable doubt that touching intentional.
R v Clune [No 2] [1996] 1 VR 1; R v Wright [1999] 3 VR 355; R v Baden-Clay (2016) 258 CLR 308, applied; R v Cahill [1998] 4 VR 1, discussed.
ENERGY AND RESOURCES - Energy retailers supplying electricity and gas to retail customers - Number of admitted contraventions - Acknowledgement of liability - Contraventions in relation to life support and Payment Difficulty Framework obligations - Billing and disconnection related contraventions - Civil penalty provisions - Determination of appropriate penalty - Primary objective of deterrence - Mandatory statutory considerations - Course of conduct - The 'French' factors - Consistency - Totality - Whether adverse publicity orders should be made - Declarations of contraventions - Compliance program - Essential Services Commission Act 2001 (Vic) ss 53, 54, 54A, 54F, 54G, 54O, 77 - Electricity Industry Act 2000 (Vic) ss 1, 10, 40SE(1), 40SG(1),(3)&(4)(a), 40SL - Gas Industry Act 2001 (Vic) ss 1, 18, 48DI - Energy Retail Code v 21 cls 82(2), 83(1), 81(6), 89, 111A - Energy Retail Code of Practice v 1 and 2 cls 65(1), 70, 70(2)(a), 71(1), 106(1)&(2), 107(1)&(2), 108(1), 108(2)(a)(ii), 108(2)(b), 110(1), 130(6), 131(2), 163(1)(a), 165(1)(a), 167(1)(b), 191(1).
ENERGY AND RESOURCES - Energy retailers supplying electricity and gas to retail customers - Number of admitted contraventions - Acknowledgement of liability - Contraventions in relation to life support and Payment Difficulty Framework obligations - Billing and disconnection related contraventions - Civil penalty provisions - Determination of appropriate penalty - Primary objective of deterrence - Mandatory statutory considerations - Course of conduct - The 'French' factors - Consistency - Totality - Whether adverse publicity orders should be made - Declarations of contraventions - Compliance program - Essential Services Commission Act 2001 (Vic) ss 53, 54, 54A, 54F, 54G, 54O, 77 - Electricity Industry Act 2000 (Vic) ss 1, 10, 40SE(1), 40SG(1),(3)&(4)(a), 40SL - Gas Industry Act 2001 (Vic) ss 1, 18, 48DI - Energy Retail Code v 21 cls 82(2), 83(1), 81(6), 89, 111A - Energy Retail Code of Practice v 1 and 2 cls 65(1), 70, 70(2)(a), 71(1), 106(1)&(2), 107(1)&(2), 108(1), 108(2)(a)(ii), 108(2)(b), 110(1), 130(6), 131(2), 163(1)(a), 165(1)(a), 167(1)(b), 191(1).
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.
CORPORATIONS LAW - Directors' duties - Unauthorised payments to director - Whether recoverable from director - Wages claim - Expenses claim - Issue estoppel - Corporations Act 2001 (Cth) ss 180, 181(1)(a), 181(1)(b), 182(1)(a) and 182(1)(b).
CORPORATIONS LAW - Directors' duties - Unauthorised payments to director - Whether recoverable from director - Wages claim - Expenses claim - Issue estoppel - Corporations Act 2001 (Cth) ss 180, 181(1)(a), 181(1)(b), 182(1)(a) and 182(1)(b).
EVIDENCE - Client legal privilege - Waiver or loss - Legal due diligence report - Disclosure to third parties - Confidential communications - Effect of contractual provisions on privilege - Whether inconsistent with maintaining privilege - Underwriting agreement - Reliance letters - Witness outline suggesting absence of legal advice - Evidence Act 2008 (Vic) ss 117, 122(2), 122(3), 122(5)(a)(i), 133.
EVIDENCE - Client legal privilege - Waiver or loss - Legal due diligence report - Disclosure to third parties - Confidential communications - Effect of contractual provisions on privilege - Whether inconsistent with maintaining privilege - Underwriting agreement - Reliance letters - Witness outline suggesting absence of legal advice - Evidence Act 2008 (Vic) ss 117, 122(2), 122(3), 122(5)(a)(i), 133.
BUILDING CONTRACT - Construction contract entered into between developer and builder - Interpretation of terms - Deeds of variation - Variation of contract sum - Builder's claimed debt - Secured monies - Whether second deed of variation constitutes illegal contract - Whether builder is estopped from asserting claim for outstanding debt due to signing building superintendent's final certificate - Developer's defences rejected by Court - Judgment for the amount owed to builder.
BUILDING CONTRACT - Construction contract entered into between developer and builder - Interpretation of terms - Deeds of variation - Variation of contract sum - Builder's claimed debt - Secured monies - Whether second deed of variation constitutes illegal contract - Whether builder is estopped from asserting claim for outstanding debt due to signing building superintendent's final certificate - Developer's defences rejected by Court - Judgment for the amount owed to builder.
PRACTICE AND PROCEDURE - Application for approval of settlement of group proceeding - Whether terms of settlement fair and reasonable - Whether settlement distribution scheme fair and reasonable - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, ss 33V, 33ZF.
PRACTICE AND PROCEDURE - Application for approval of settlement of group proceeding - Whether terms of settlement fair and reasonable - Whether settlement distribution scheme fair and reasonable - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, ss 33V, 33ZF.
PRACTICE AND PROCEDURE - Approval for payment of costs of administering settlement distribution scheme - Costs approved in form of a pre-approved cap - Pre-approval of a further contingency for costs of administering not granted.
PRACTICE AND PROCEDURE - Approval for payment of legal costs from settlement sum - Whether group costs order should be amended -Supreme Court Act 1986 (Vic) Part 4A, s 33ZDA - Allen v G8 Education Ltd (No 4) [2024] VSC 487, applied.
CONTRACT - Whether the execution and backdating of contract had the effect that a payment constituted an advance under the contract - Reasonable business persons understanding of what the terms of the contract to mean - Consideration of language used, circumstances addressed by the contract and commercial purpose or object to be secured by contract - Inferences to be drawn by conduct of the parties to the contract - Assumption of liability - No consideration - Whether contract wholly executory and enforceable - Repudiation - McKay & Anor v National Australia Bank Limited [1998] 1 VR 173 - McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 - David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353.
CONTRACT - Whether the execution and backdating of contract had the effect that a payment constituted an advance under the contract - Reasonable business persons understanding of what the terms of the contract to mean - Consideration of language used, circumstances addressed by the contract and commercial purpose or object to be secured by contract - Inferences to be drawn by conduct of the parties to the contract - Assumption of liability - No consideration - Whether contract wholly executory and enforceable - Repudiation - McKay & Anor v National Australia Bank Limited [1998] 1 VR 173 - McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 - David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353.
CONTRACT - Reliance losses as a species of damages recoverable for breach of contract - Facilitation principle - Cessnock City Council v 123 259 932 Pty Ltd (2024) 98 ALJR 719 - 123 259 932 Pty Ltd v Cessnock City Council (2023) 110 NSWLR 464.
CONTRACT - Post contractual admissions - Relevance of post contractual conduct where such conduct constitutes an admission against interest - Whether admission relates to a matter of fact or question of law or mixed fact and law - Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 - FAI Traders Insurance Co Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343.
CONTRACT - Whether contract entered into - Implied and express terms - Material terms of the contract - Whether funds advanced pursuant to the contract - Narrower terms established.
EQUITY - Money had and received - Money had and received by the defendant to the use of the plaintiff - Money paid by the plaintiff to the use of the defendant - Distinction between money paid by mistake or on a consideration that happens to fail and a promise by the defendant to repay the money to the plaintiff that had been provided at the defendant's request.
CORPORATIONS - Liquidation - Liquidator of company seeks appointment as receiver over assets held on trust by the company - Where company carried on business and otherwise operated solely in capacity as trustee of a trust - Ipso facto clause in trust deed such that appointment of liquidator renders company to be a bare trustee - Liquidator appointed as receiver over trust assets - Supreme Court Act 1986 (Vic), s 37.
CORPORATIONS - Liquidation - Liquidator of company seeks appointment as receiver over assets held on trust by the company - Where company carried on business and otherwise operated solely in capacity as trustee of a trust - Ipso facto clause in trust deed such that appointment of liquidator renders company to be a bare trustee - Liquidator appointed as receiver over trust assets - Supreme Court Act 1986 (Vic), s 37.
CORPORATIONS - Liquidation - Liquidator of company seeks judicial advice as to company's status as trustee and liquidator's power over trust assets - Where company carried on business and otherwise operated solely in capacity as trustee of a trust - No ipso facto clause in trust deed such that appointment of liquidator does not remove company as trustee of the trust - Declarations made - Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 54.02 - Ss 90-15 and 90-20 of Schedule 2 Insolvency Practice Schedule (Corporations) to the Corporations Act 2001 (Cth).
CORPORATIONS - Part 5.4 of Corporations Act 2001 (Cth) - Insolvency - s 459P of Corporations Act 2001 (Cth) - Application for winding up in insolvency relying on presumption of insolvency arising from non-compliance with a statutory demand - Defendant contended that it was solvent and relied upon unaudited and unverified accounts and report of an accountant to rebut that presumption - Accountant relied on instructions from defendant as to its financial position which were not independently verified - Whether audited accounts are required in circumstances to demonstrate solvency of the defendant - Ace Contractors & Staff Pty Ltd v Westgarth Development Pty Ltd [1999] FCA 728 - Expile Pty Ltd v Jabb's Excavations Pty Ltd (2003) 45 ACSR 711 - Defendant contended that it had valuable claims the subject of litigation in the Supreme Court of New South Wales which had substantial prospects of success and would result in the defendant being in a position to satisfy the claims of creditors - Defendant made application to reopen case to present evidence that the claims in the New South Wales proceeding would imminently be the subject of either summary judgment or default judgment in its favour - Application to reopen refused - Finding that defendant had not established on balance of probabilities that it was solvent - Order made for the winding up of the defendant.
CORPORATIONS - Part 5.4 of Corporations Act 2001 (Cth) - Insolvency - s 459P of Corporations Act 2001 (Cth) - Application for winding up in insolvency relying on presumption of insolvency arising from non-compliance with a statutory demand - Defendant contended that it was solvent and relied upon unaudited and unverified accounts and report of an accountant to rebut that presumption - Accountant relied on instructions from defendant as to its financial position which were not independently verified - Whether audited accounts are required in circumstances to demonstrate solvency of the defendant - Ace Contractors & Staff Pty Ltd v Westgarth Development Pty Ltd [1999] FCA 728 - Expile Pty Ltd v Jabb's Excavations Pty Ltd (2003) 45 ACSR 711 - Defendant contended that it had valuable claims the subject of litigation in the Supreme Court of New South Wales which had substantial prospects of success and would result in the defendant being in a position to satisfy the claims of creditors - Defendant made application to reopen case to present evidence that the claims in the New South Wales proceeding would imminently be the subject of either summary judgment or default judgment in its favour - Application to reopen refused - Finding that defendant had not established on balance of probabilities that it was solvent - Order made for the winding up of the defendant.
CIVIL PROCEDURE - Application by first defendant for summary judgment pursuant to ss 62 and 63 of the Civil Procedure Act 2010 - Reliance on plaintiff's failure to dispute notices to admit facts and the authenticity of documents under rr 35.03 and 35.05 of the Supreme Court (General Civil Procedure) Rules 2015 - Application for judgment on the basis of admissions under r 35.04 of the Supreme Court (General Civil Procedure) Rules 2015.
CIVIL PROCEDURE - Application by first defendant for summary judgment pursuant to ss 62 and 63 of the Civil Procedure Act 2010 - Reliance on plaintiff's failure to dispute notices to admit facts and the authenticity of documents under rr 35.03 and 35.05 of the Supreme Court (General Civil Procedure) Rules 2015 - Application for judgment on the basis of admissions under r 35.04 of the Supreme Court (General Civil Procedure) Rules 2015.
WILLS AND ESTATES - Application for judicial advice - Construction of will - Plaintiff seeks declaration that devise of real estate includes water shares - Specific gift indicating contrary intention to s 34(1) of Wills Act 1997 - Will to be construed in relation to property as at time made - Armchair principle - Will prepared by solicitor - Legal background in which will made including nature of common law riparian rights - Consideration of text of will and extrinsic circumstances - Declaration that water shares are part of a gift of interest in identified land - Water Act 1989 s 33F, 33S & 33AV - Wills Act 1997 ss 34 & 36 - Supreme Court (General Civil Procedure) Rules 2015 O 54 - Boyes v Cook (1880) 14 Ch D 53 - Evans v Powell (1909) 1 Ch 784 - Perrin v Morgan [1943] AC 399 - McBride v Hudson (1962) 107 CLR 604 - Gartner v Kidman (1962) 108 CLR 12 - Elders Rural Finance Ltd v Westpac Banking Corporation (1989) 6 BPR 13439 - Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181 - Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 - Marley v Rawlings [2015] AC 129 - Farrelly v Phillips (2017) 128 SASR 502 - Greenham v Greenham [2020] VSC 749 - Kinloch v Manzione [2022] ACTSC 76.
WILLS AND ESTATES - Application for judicial advice - Construction of will - Plaintiff seeks declaration that devise of real estate includes water shares - Specific gift indicating contrary intention to s 34(1) of Wills Act 1997 - Will to be construed in relation to property as at time made - Armchair principle - Will prepared by solicitor - Legal background in which will made including nature of common law riparian rights - Consideration of text of will and extrinsic circumstances - Declaration that water shares are part of a gift of interest in identified land - Water Act 1989 s 33F, 33S & 33AV - Wills Act 1997 ss 34 & 36 - Supreme Court (General Civil Procedure) Rules 2015 O 54 - Boyes v Cook (1880) 14 Ch D 53 - Evans v Powell (1909) 1 Ch 784 - Perrin v Morgan [1943] AC 399 - McBride v Hudson (1962) 107 CLR 604 - Gartner v Kidman (1962) 108 CLR 12 - Elders Rural Finance Ltd v Westpac Banking Corporation (1989) 6 BPR 13439 - Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181 - Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 - Marley v Rawlings [2015] AC 129 - Farrelly v Phillips (2017) 128 SASR 502 - Greenham v Greenham [2020] VSC 749 - Kinloch v Manzione [2022] ACTSC 76.
WILLS AND ESTATES - Application for judicial advice - Construction of will - Testamentary intention - Whether defendant's entitlement to the property is a life interest - Whether property is held on trust for defendant's benefit - Where property devised to defendant subject to conditions - Conditions not fulfilled - Whether defendant has forfeited the gift - Supreme Court (General Civil Procedure) Rules 2015 O 54 - Greenham v Greenham [2020] VSC 749 - Re Tootell [2024] VSC 692.
WILLS AND ESTATES - Application for judicial advice - Construction of will - Testamentary intention - Whether defendant's entitlement to the property is a life interest - Whether property is held on trust for defendant's benefit - Where property devised to defendant subject to conditions - Conditions not fulfilled - Whether defendant has forfeited the gift - Supreme Court (General Civil Procedure) Rules 2015 O 54 - Greenham v Greenham [2020] VSC 749 - Re Tootell [2024] VSC 692.
PLANNING LAW - Application for leave to appeal from the Victorian Civil and Administrative Tribunal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) by objector to permit application - Permit granted for 'dental laboratory' in Commercial 1 Zone of the Boroondara Planning Scheme - No question of law with reasonable prospects of success identified - Leave to appeal refused.
PLANNING LAW - Application for leave to appeal from the Victorian Civil and Administrative Tribunal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) by objector to permit application - Permit granted for 'dental laboratory' in Commercial 1 Zone of the Boroondara Planning Scheme - No question of law with reasonable prospects of success identified - Leave to appeal refused.
EMPLOYER AND EMPLOYEE - Long service leave - Whether plaintiff required to make contribution to portable long service leave fund - Plaintiff seeking declaration that employees are not covered by portable long service leave scheme - No declaration should be made - Whether plaintiff is 'in the construction industry' - Whether work performed is 'construction work' - Plaintiff is in the construction industry - Work performed is 'construction work' - Whether certain rule amendments invalid because not approved by Governor in Council - Rule amendments did not require Governor in Council approval - Whether plaintiff prejudicially affected by a statutory rule which was approved by Governor in Council - Whether s 16 of Subordinate Legislation Act 1994 applies - Construction Industry Long Service Leave Act 1997 ss 4, 6 and 7 - Subordinate Legislation Act ss 3, 16 and 17 - Baytech Trades Pty Ltd v CoInvest Ltd [2015] VSCA 342; EnergyAustralia Pty Ltd v CoInvest Ltd [2025] VSC 100 considered.
EMPLOYER AND EMPLOYEE - Long service leave - Whether plaintiff required to make contribution to portable long service leave fund - Plaintiff seeking declaration that employees are not covered by portable long service leave scheme - No declaration should be made - Whether plaintiff is 'in the construction industry' - Whether work performed is 'construction work' - Plaintiff is in the construction industry - Work performed is 'construction work' - Whether certain rule amendments invalid because not approved by Governor in Council - Rule amendments did not require Governor in Council approval - Whether plaintiff prejudicially affected by a statutory rule which was approved by Governor in Council - Whether s 16 of Subordinate Legislation Act 1994 applies - Construction Industry Long Service Leave Act 1997 ss 4, 6 and 7 - Subordinate Legislation Act ss 3, 16 and 17 - Baytech Trades Pty Ltd v CoInvest Ltd [2015] VSCA 342; EnergyAustralia Pty Ltd v CoInvest Ltd [2025] VSC 100 considered.
EMPLOYER AND EMPLOYEE - Long service leave - Whether plaintiff required to make contribution to portable long service leave fund - Plaintiff seeking declaration that employees are not covered by portable long service leave scheme - No declaration should be made - Whether plaintiff is 'in the construction industry' - Whether work is 'of a routine or minor nature' - Whether work performed is 'of a kind' for which a rate of pay is fixed by a prescribed award - Plaintiff is in the construction industry - Work performed is 'construction work' - Construction Industry Long Service Leave Act 1997 ss 4, 6 and 7.
EMPLOYER AND EMPLOYEE - Long service leave - Whether plaintiff required to make contribution to portable long service leave fund - Plaintiff seeking declaration that employees are not covered by portable long service leave scheme - No declaration should be made - Whether plaintiff is 'in the construction industry' - Whether work is 'of a routine or minor nature' - Whether work performed is 'of a kind' for which a rate of pay is fixed by a prescribed award - Plaintiff is in the construction industry - Work performed is 'construction work' - Construction Industry Long Service Leave Act 1997 ss 4, 6 and 7.
Aust- Amec Pty Ltd v Construction Industry Long Service Leave Payments Board (1995) 15 WAR 150; Baytech Trades Pty Ltd v CoInvest Ltd [2015] VSCA 342; CFMEU v Dyno Nobel Asia Pacific Ltd [2005] AIRC 622; Coal Mining Industry (Long Service Leave Funding) Corporation v Hitachi Construction Machinery (Australia) Pty Ltd (2023) 322 IR 129; CoInvest Ltd v Celsius Corporate Service Pty Ltd [2017] VCC 796; Healy Airconditioning Pty Ltd v Construction Industry Long Service Leave Payments Board (1999) 79 WAIG 560; Orica Australia Pty Ltd v Coal Mining Industry (Long Service Leave Funding) Corporation [2023] FCA 1515; R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123; R v Hibble; Ex parte Broken Hill Proprietary Co Ltd (1921) 29 CLR 290; R v Isaac; Ex parte Transport Workers Union (1985) 159 CLR 323; R v Moore; Ex parte Australian Workers' Union (1976) 11 ALR 449; R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470; The Australian Workers' Union v Construction, Forestry, Mining and Energy Union [2001] AIRC 177 considered.
JUDICIAL REVIEW - Building Appeals Board's determination ('the Board') - Building completed in 2000 pursuant to building permits issued by private building surveyor - Certificate of occupancy issued - Building notice served and building orders made in 2017 by Municipal Building Surveyor requiring fire safety works - Appeal to Board - Board varying building order but fire safety work still required - Jurisdiction of Municipal Building Surveyor and Board to make building order when building constructed under building permit and occupancy permit issued - Contraventions of Building Code of Australia 1996 - Board's finding as to danger to members of the public or persons using building - Classification of building - Most closely resembles regulation - Effective height of building - Topmost storey - Whether floor a mezzanine - Lowest storey giving of direct egress to road - Materiality of Board's error - Proceeding dismissed - Building Act 1993 ss 16, 24, 37, 46, 102, 106, 111, 142 - Building Regulations 1994 reg 13.
JUDICIAL REVIEW - Building Appeals Board's determination ('the Board') - Building completed in 2000 pursuant to building permits issued by private building surveyor - Certificate of occupancy issued - Building notice served and building orders made in 2017 by Municipal Building Surveyor requiring fire safety works - Appeal to Board - Board varying building order but fire safety work still required - Jurisdiction of Municipal Building Surveyor and Board to make building order when building constructed under building permit and occupancy permit issued - Contraventions of Building Code of Australia 1996 - Board's finding as to danger to members of the public or persons using building - Classification of building - Most closely resembles regulation - Effective height of building - Topmost storey - Whether floor a mezzanine - Lowest storey giving of direct egress to road - Materiality of Board's error - Proceeding dismissed - Building Act 1993 ss 16, 24, 37, 46, 102, 106, 111, 142 - Building Regulations 1994 reg 13.
CIVIL PROCEDURE ACT - Plaintiff claims neurological disorder arising out of a motor accident in 2021 - Proceedings in the Victorian Civil and Administrative Tribunal ('VCAT') in which the plaintiff claims to have been discriminated against by his employer - VCAT made orders in respect of the production of documents - Plaintiff applied for leave to appeal to the Supreme Court on a question of law - Subsequent interlocutory hearings in the course of which statements and submissions were made in affidavits, written submissions and by counsel - Plaintiff applies in respect of multiple claimed breaches of 'overarching obligations' in the Civil Procedure Act 2010 (Vic) - Plaintiff claims that the defendants and their solicitor breached the implied undertaking applying to documents produced under compulsion - Plaintiff self-represented litigant with claimed disability - Pursuant to s 29 of the Civil Procedure Act 2010 (Vic), the plaintiff seeks an order that the defendants and any legal representative not be permitted to participate any further in the proceeding - Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148, Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 8(3) and 24(1), Civil Procedure Act 2010 (Vic), ss 7, 8, 9, 10, 11, 16, 17, 18, 21 and 29 - Hearne v Street (2008) 235 CLR 125; Yara Australia Pty Ltd v Oswal (2013) 41 VR 302; Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) (2014) 48 VR 1; Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624; Doughty- Cowell v Kyriazis [2018] VSCA 216; Roberts v Harkness (2018) 57 VR 334; and Hazell- Wright v 32 Domain Pty Ltd (ACN 163 035 603) [2020] VSCA 129 considered and discussed - Application dismissed.
CIVIL PROCEDURE ACT - Plaintiff claims neurological disorder arising out of a motor accident in 2021 - Proceedings in the Victorian Civil and Administrative Tribunal ('VCAT') in which the plaintiff claims to have been discriminated against by his employer - VCAT made orders in respect of the production of documents - Plaintiff applied for leave to appeal to the Supreme Court on a question of law - Subsequent interlocutory hearings in the course of which statements and submissions were made in affidavits, written submissions and by counsel - Plaintiff applies in respect of multiple claimed breaches of 'overarching obligations' in the Civil Procedure Act 2010 (Vic) - Plaintiff claims that the defendants and their solicitor breached the implied undertaking applying to documents produced under compulsion - Plaintiff self-represented litigant with claimed disability - Pursuant to s 29 of the Civil Procedure Act 2010 (Vic), the plaintiff seeks an order that the defendants and any legal representative not be permitted to participate any further in the proceeding - Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148, Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 8(3) and 24(1), Civil Procedure Act 2010 (Vic), ss 7, 8, 9, 10, 11, 16, 17, 18, 21 and 29 - Hearne v Street (2008) 235 CLR 125; Yara Australia Pty Ltd v Oswal (2013) 41 VR 302; Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) (2014) 48 VR 1; Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624; Doughty- Cowell v Kyriazis [2018] VSCA 216; Roberts v Harkness (2018) 57 VR 334; and Hazell- Wright v 32 Domain Pty Ltd (ACN 163 035 603) [2020] VSCA 129 considered and discussed - Application dismissed.
COSTS - Application for leave to appeal on a question of law from order of VCAT refusing an application for adjournment - Plaintiff also applies for a stay at VCAT and the expedition of his application for leave to appeal - Applications and summonses returned before Judicial Registrar - Orders made for management of applications for leave to appeal against a background of underlying proceedings at VCAT - Application for leave to appeal affected by 'supervening' event - Whether plaintiff enjoyed a practical success - Plaintiff applies to discontinue application for leave to appeal - Whether Court should 'otherwise order' in respect of the costs of the proceeding - Applicable principles - 'Good reasons' shown - Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 63.15 - Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; and Soteriadis v Nillumbik Shire Council [2015] VSC 363 considered - Leave granted to discontinue proceeding with no order made as to costs.
ADMINISTRATIVE LAW - Appeal from Victorian Civil and Administrative Tribunal (VCAT) - Renewal of possession proceeding brought by residential rental provider - Whether tenant failed to follow payment plan imposed by earlier order - Jurisdiction of VCAT to renew proceeding - Whether compliance with s 120A of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) required - Whether tenant accorded procedural fairness - Leave to appeal refused.
ADMINISTRATIVE LAW - Appeal from Victorian Civil and Administrative Tribunal (VCAT) - Renewal of possession proceeding brought by residential rental provider - Whether tenant failed to follow payment plan imposed by earlier order - Jurisdiction of VCAT to renew proceeding - Whether compliance with s 120A of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) required - Whether tenant accorded procedural fairness - Leave to appeal refused.
ADMINISTRATIVE LAW - Appeal from the Victorian Civil and Administrative Tribunal ('Tribunal') pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Dispute between residential rental provider and renter - Where possession order made by Tribunal - Where renter sought review by the Tribunal to reopen the proceedings for possession order - Where application for review dismissed - Decision to dismiss review application appealed by renter to the Supreme Court of Victoria - Questions of procedural fairness - Consideration of Tribunal's jurisdiction under the Residential Tenancies Act 1997 (Vic) - No real prospect of success established - Leave refused - Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 97, 98(1), 120, 148 - Residential Tenancies Act 1997 (Vic) ss 91ZZB, 322(1).
ADMINISTRATIVE LAW - Appeal from the Victorian Civil and Administrative Tribunal ('Tribunal') pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Dispute between residential rental provider and renter - Where possession order made by Tribunal - Where renter sought review by the Tribunal to reopen the proceedings for possession order - Where application for review dismissed - Decision to dismiss review application appealed by renter to the Supreme Court of Victoria - Questions of procedural fairness - Consideration of Tribunal's jurisdiction under the Residential Tenancies Act 1997 (Vic) - No real prospect of success established - Leave refused - Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 97, 98(1), 120, 148 - Residential Tenancies Act 1997 (Vic) ss 91ZZB, 322(1).
ADMINISTRATION AND PROBATE - Application by bankruptcy trustee to remove administrator - Whether defendant has failed to fulfil duties as administrator - Dispute between plaintiff, as bankruptcy trustee of the defendant, and the defendant, in her personal capacity, as to payment of bankruptcy costs - Deceased's estate not subject to bankruptcy - Trustee in bankruptcy standing in shoes of the bankrupt beneficiary - Whether the Trusts, Equity and Probate List is the proper forum for the real issues in dispute - Administration and Probate Act 1958 s 34(1)(c) - Trustee Act 1958 s 48.
ADMINISTRATION AND PROBATE - Application by bankruptcy trustee to remove administrator - Whether defendant has failed to fulfil duties as administrator - Dispute between plaintiff, as bankruptcy trustee of the defendant, and the defendant, in her personal capacity, as to payment of bankruptcy costs - Deceased's estate not subject to bankruptcy - Trustee in bankruptcy standing in shoes of the bankrupt beneficiary - Whether the Trusts, Equity and Probate List is the proper forum for the real issues in dispute - Administration and Probate Act 1958 s 34(1)(c) - Trustee Act 1958 s 48.
FOREIGN JUDGMENTS - Application to enforce foreign judgments under the Foreign Judgments Act 1991 (Cth) - Plaintiff obtained judgments in default of appearance from High Court of Solomon Islands - Defendant not personally served with, or aware of, proceedings in Solomon Islands court - Plaintiff sought to rely on substituted service - Yin v Wu [2023] VSCA 130 considered - Failure to serve by known and available electronic means constituted prima facie denial of natural justice - Prima facie denial of natural justice is not displaced by substituted service - Plaintiff did not discharge burden of establishing the law of Solomon Islands as to substituted service, or compliance with any such orders - The prima facie denial of natural justice is not cured by available appellate processes - Zarah Garde-Wilson v Legal Services Board [2008] VSCA 43 considered.
FOREIGN JUDGMENTS - Application to enforce foreign judgments under the Foreign Judgments Act 1991 (Cth) - Plaintiff obtained judgments in default of appearance from High Court of Solomon Islands - Defendant not personally served with, or aware of, proceedings in Solomon Islands court - Plaintiff sought to rely on substituted service - Yin v Wu [2023] VSCA 130 considered - Failure to serve by known and available electronic means constituted prima facie denial of natural justice - Prima facie denial of natural justice is not displaced by substituted service - Plaintiff did not discharge burden of establishing the law of Solomon Islands as to substituted service, or compliance with any such orders - The prima facie denial of natural justice is not cured by available appellate processes - Zarah Garde-Wilson v Legal Services Board [2008] VSCA 43 considered.
COSTS - Land seized and sold by Sheriff in execution of warrants - Warrants based on costs orders in proceedings brought by a person in his capacity as the executor of a deceased estate - Land the subject of the warrants registered in the name of the deceased - Executor failed to make clear whether he held duplicate certificates of title to land - Purchaser of land entitled to orders facilitating transfer of registered proprietorship - Gross sum costs order in favour of purchaser - Capacity in which costs orders are made against executor includes personal capacity - Supreme Court (General Civil Procedure) Rules 2015 r 63.07(2)(c).
COSTS - Land seized and sold by Sheriff in execution of warrants - Warrants based on costs orders in proceedings brought by a person in his capacity as the executor of a deceased estate - Land the subject of the warrants registered in the name of the deceased - Executor failed to make clear whether he held duplicate certificates of title to land - Purchaser of land entitled to orders facilitating transfer of registered proprietorship - Gross sum costs order in favour of purchaser - Capacity in which costs orders are made against executor includes personal capacity - Supreme Court (General Civil Procedure) Rules 2015 r 63.07(2)(c).
COSTS - Executor claimed relief against Sheriff alleging warrants were ineffective to authorise sale of land - Executor failed to establish that warrants were ineffective to authorise sale of land - Quantification of Sheriff's reasonable costs in one of the proceedings currently before the Court - Refusal to quantify Sheriff's reasonable costs in related proceedings.
JUDGMENTS, ORDERS AND DECLARATIONS - Sheriff sought declarations that Sheriff's reasonable costs in this proceeding and in related proceedings relating to the warrants and the land were recoverable from the proceeds of sale of the land - Declarations made in relation to quantified costs in one of the proceedings currently before the Court - Declarations also made in relation to unquantified costs in related proceedings - Sheriff Act 2009 s 32 - Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.
APPEAL - Appeal against decision of Judicial Registrar to dismiss application to set aside subpoena for police records of first plaintiff's prior convictions - Application to strike out amended defence to the extent it pleads first plaintiff's prior convictions - Where first plaintiff's prior convictions are spent by operation of the Spent Convictions Act 2021 (Vic) - Whether defendants contravened the Spent Convictions Act by requesting information about spent convictions - Whether any contravention of the Spent Convictions Act means that defendants' pleadings are affected by an abuse of process - No contravention by defendants - Pleadings in defence not affected by any abuse of process -Spent Convictions Act ss 20, 21 - Appeal refused - Defendants' pleadings not otherwise deficient - Application dismissed.
APPEAL - Appeal against decision of Judicial Registrar to dismiss application to set aside subpoena for police records of first plaintiff's prior convictions - Application to strike out amended defence to the extent it pleads first plaintiff's prior convictions - Where first plaintiff's prior convictions are spent by operation of the Spent Convictions Act 2021 (Vic) - Whether defendants contravened the Spent Convictions Act by requesting information about spent convictions - Whether any contravention of the Spent Convictions Act means that defendants' pleadings are affected by an abuse of process - No contravention by defendants - Pleadings in defence not affected by any abuse of process -Spent Convictions Act ss 20, 21 - Appeal refused - Defendants' pleadings not otherwise deficient - Application dismissed.
PRACTICE AND PROCEDURE - Application pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to strike out the Statement of Claim - Whether the plaintiff's claim fails to disclose a cause of action, is scandalous, frivolous or vexatious, may embarrass or delay a fair trial or is otherwise an abuse of process - Application for summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (Vic) - Whether the plaintiff's claims have no real prospect of success.
PRACTICE AND PROCEDURE - Application pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to strike out the Statement of Claim - Whether the plaintiff's claim fails to disclose a cause of action, is scandalous, frivolous or vexatious, may embarrass or delay a fair trial or is otherwise an abuse of process - Application for summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (Vic) - Whether the plaintiff's claims have no real prospect of success.
PRACTICE AND PROCEDURE - Admissibility of evidence including reports of the Royal Commission into Institutional Responses to Child Sexual Abuse, evidence submitted to the Royal Commission, sentencing remarks, media articles about alleged offending and other materials - Evidence Act 2008 (Vic) ss 55, 76, 91, 135 and 136.
PRACTICE AND PROCEDURE - Admissibility of evidence including reports of the Royal Commission into Institutional Responses to Child Sexual Abuse, evidence submitted to the Royal Commission, sentencing remarks, media articles about alleged offending and other materials - Evidence Act 2008 (Vic) ss 55, 76, 91, 135 and 136.
PRACTICE AND PROCEDURE - Group proceeding - Approval of discontinuance - Where discontinuance against one of multiple defendants - Discontinuance or settlement - Notice to the group members - Discontinuance but remain as a party.
PRACTICE AND PROCEDURE - Group proceeding - Approval of discontinuance - Where discontinuance against one of multiple defendants - Discontinuance or settlement - Notice to the group members - Discontinuance but remain as a party.
PRACTICE AND PROCEDURE - Costs - Interlocutory matters - Taxation of costs - Whether costs should be taxed immediately - Exercise of discretion - Retrospective order - Supreme Court (General Civil Procedure) Rules 2015, rr 47.04, 63.20.1 - Dale v Clayton Utz (No 3) [2013] VSC 593 - Setka v Abbott (No 2) [2013] VSCA 376 - Hall v Nominal Defendant (1966) 117 CLR 423 - Fanissa Pty Ltd & Anor v Versace [2016] VSC 416.
PRACTICE AND PROCEDURE - Costs - Interlocutory matters - Taxation of costs - Whether costs should be taxed immediately - Exercise of discretion - Retrospective order - Supreme Court (General Civil Procedure) Rules 2015, rr 47.04, 63.20.1 - Dale v Clayton Utz (No 3) [2013] VSC 593 - Setka v Abbott (No 2) [2013] VSCA 376 - Hall v Nominal Defendant (1966) 117 CLR 423 - Fanissa Pty Ltd & Anor v Versace [2016] VSC 416.
PRACTICE AND PROCEDURE - Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - On grounds that claim does not disclose a cause of action - Rule 36.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application for leave to amend statement of claim - Effect of nomination clause in contract of sale - Application to amend statement of claim allowed.
PRACTICE AND PROCEDURE - Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - On grounds that claim does not disclose a cause of action - Rule 36.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application for leave to amend statement of claim - Effect of nomination clause in contract of sale - Application to amend statement of claim allowed.
PRACTICE AND PROCEDURE - Application for dismissal of notice of appeal - Appeal of an order made in the Magistrates' Court - Appeal per s 272 of the Criminal Procedure Act 2009 (Vic) - Whether the appellant is a 'party to a criminal proceeding' - Whether the Magistrate had made a final order - Supreme Court (Criminal Procedure) Rules 2017 (Vic) rr 3A.03, 3A.04, 3A.05 - Notice of appeal cannot be cured by amendment - No utility in substituting the respondent - No utility in remitting the proceeding to the Magistrates' Court - Proceeding dismissed.
PRACTICE AND PROCEDURE - Application for dismissal of notice of appeal - Appeal of an order made in the Magistrates' Court - Appeal per s 272 of the Criminal Procedure Act 2009 (Vic) - Whether the appellant is a 'party to a criminal proceeding' - Whether the Magistrate had made a final order - Supreme Court (Criminal Procedure) Rules 2017 (Vic) rr 3A.03, 3A.04, 3A.05 - Notice of appeal cannot be cured by amendment - No utility in substituting the respondent - No utility in remitting the proceeding to the Magistrates' Court - Proceeding dismissed.
PRACTICE AND PROCEDURE - Reinstatement of proceeding and summary judgment against the first defendant under Settlement Deed - Uncertainty about content of Settlement Deed due to amendments - Held, parties were ad idem as to final terms of Settlement Deed - Application for summary enforcement of Settlement Deed as amended and judgment in favour of plaintiffs granted.
PRACTICE AND PROCEDURE - Reinstatement of proceeding and summary judgment against the first defendant under Settlement Deed - Uncertainty about content of Settlement Deed due to amendments - Held, parties were ad idem as to final terms of Settlement Deed - Application for summary enforcement of Settlement Deed as amended and judgment in favour of plaintiffs granted.
PRACTICE AND PROCEDURE - Duration of validity of originating process - Application for extension of writ for 12 months - Writ unserved within period allowed by the Rules - Whether 'good reason' has been shown to warrant extension - Rule 5.12 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Adequacy of affidavit material in support - Howard v Power [2013] VSC 198 - Duty of a plaintiff to serve a writ promptly - Obligations of parties to ex parte applications - Lack of evidence before the Court - Apprehended prejudice and late timing of the application - Extension of writ granted for 14 days.
PRACTICE AND PROCEDURE - Duration of validity of originating process - Application for extension of writ for 12 months - Writ unserved within period allowed by the Rules - Whether 'good reason' has been shown to warrant extension - Rule 5.12 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Adequacy of affidavit material in support - Howard v Power [2013] VSC 198 - Duty of a plaintiff to serve a writ promptly - Obligations of parties to ex parte applications - Lack of evidence before the Court - Apprehended prejudice and late timing of the application - Extension of writ granted for 14 days.
TRUSTS, EQUITY AND PROBATE - Application for costs - Kempson v Haydon (Costs) [2022] VSC 366 - Three categories of applications for judicial advice - Rigby v Tiernan [2016] VSC 352 - Should defendants bear their own costs of the proceeding based on unreasonable behaviour - Application that defendants bear their own costs by a trustee of a will - Trustee seeking judicial advice - S 30 of Administration and Probate Act 1958 - Sons of Gwalia Ltd (subject to DOCA) v Margaretic & Anor (2006) 232 ALR 119 - Dispute between beneficiaries of a trust and an impartial trustee - Civil Procedure Act 2010 (Vic).
TRUSTS, EQUITY AND PROBATE - Application for costs - Kempson v Haydon (Costs) [2022] VSC 366 - Three categories of applications for judicial advice - Rigby v Tiernan [2016] VSC 352 - Should defendants bear their own costs of the proceeding based on unreasonable behaviour - Application that defendants bear their own costs by a trustee of a will - Trustee seeking judicial advice - S 30 of Administration and Probate Act 1958 - Sons of Gwalia Ltd (subject to DOCA) v Margaretic & Anor (2006) 232 ALR 119 - Dispute between beneficiaries of a trust and an impartial trustee - Civil Procedure Act 2010 (Vic).
CRIMINAL LAW - Sentence - Manslaughter - Sentencing facts after jury verdicts - MC ejected from hotel for inappropriate and aggressive behaviour - Accused left hotel soon afterwards - On street, MC threatened accused - Accused approached MC, produced knife - MC kicked out at accused, who swung knife at him, nicking thigh - MC's friend CA came running at accused, tried to assault him - As accused retreated, swung knife, stabbed CA in chest - CA stumbled, gathered himself, then kept running at accused, tried to assault again - Accused kept retreating, but side-stepped CA slightly, swung knife, stabbed in chest again - CA collapsed, died within minutes - Of two wounds, one fatal, other not - Despite CCTV of incident, unable to tell which strike caused fatal wound - Later in day, accused attended police station with father - Charged with murder - In custody ever since - Jury acquitted of murder, convicted of manslaughter - Spontaneous acts in face of violence - Verdict consistent with finding that accused believed necessary to act as did in self-defence but not reasonable response in circumstances as he perceived them - Belief in need for self-defence reduces moral culpability - Pretrial offer to plead guilty to manslaughter rejected by Crown - Accused aged 20 then, 22 now - Insight into profound loss caused - Burden of prison increased because faced murder charge until verdict - History of illicit drug use - Modest criminal history - Otherwise of good character - Very supportive family - Strong prospects of rehabilitation - Sentence of six years' imprisonment with non-parole period of three years - Crimes Act 1958 (Vic), ss 322K & 322L.
CRIMINAL LAW - Sentence - Manslaughter - Sentencing facts after jury verdicts - MC ejected from hotel for inappropriate and aggressive behaviour - Accused left hotel soon afterwards - On street, MC threatened accused - Accused approached MC, produced knife - MC kicked out at accused, who swung knife at him, nicking thigh - MC's friend CA came running at accused, tried to assault him - As accused retreated, swung knife, stabbed CA in chest - CA stumbled, gathered himself, then kept running at accused, tried to assault again - Accused kept retreating, but side-stepped CA slightly, swung knife, stabbed in chest again - CA collapsed, died within minutes - Of two wounds, one fatal, other not - Despite CCTV of incident, unable to tell which strike caused fatal wound - Later in day, accused attended police station with father - Charged with murder - In custody ever since - Jury acquitted of murder, convicted of manslaughter - Spontaneous acts in face of violence - Verdict consistent with finding that accused believed necessary to act as did in self-defence but not reasonable response in circumstances as he perceived them - Belief in need for self-defence reduces moral culpability - Pretrial offer to plead guilty to manslaughter rejected by Crown - Accused aged 20 then, 22 now - Insight into profound loss caused - Burden of prison increased because faced murder charge until verdict - History of illicit drug use - Modest criminal history - Otherwise of good character - Very supportive family - Strong prospects of rehabilitation - Sentence of six years' imprisonment with non-parole period of three years - Crimes Act 1958 (Vic), ss 322K & 322L.
CRIMINAL LAW - Sentence - Reckless conduct endangering life - Earlier sentence indication - Plea of guilty - Accused reckless as to the risk of death - Choke hold while wrestling - Under influence of alcohol and drug of dependence - Early guilty plea - Delay in prosecution - Gravity - Impact on victims - Youthful first offender - Good character - Strong prospects of rehabilitation - Specific and general deterrence - Community correction order imposed - Community Based Sentences (Interstate Transfer) Act 2015 (SA), Pt 3 - Crimes Act 1958 (Vic), s 22 - Criminal Procedure Act 2009 (Vic), ss 143, 144 - Sentencing Act 1991 (Vic), ss 5, 6AAA, 38, 45, 47, 48C, 48D - Sentencing Regulations 2021 (Vic), reg 15.
CRIMINAL LAW - Sentence - Reckless conduct endangering life - Earlier sentence indication - Plea of guilty - Accused reckless as to the risk of death - Choke hold while wrestling - Under influence of alcohol and drug of dependence - Early guilty plea - Delay in prosecution - Gravity - Impact on victims - Youthful first offender - Good character - Strong prospects of rehabilitation - Specific and general deterrence - Community correction order imposed - Community Based Sentences (Interstate Transfer) Act 2015 (SA), Pt 3 - Crimes Act 1958 (Vic), s 22 - Criminal Procedure Act 2009 (Vic), ss 143, 144 - Sentencing Act 1991 (Vic), ss 5, 6AAA, 38, 45, 47, 48C, 48D - Sentencing Regulations 2021 (Vic), reg 15.
CRIMINAL LAW - Sentence - Intentionally causing serious injury and common law assault - Verbal and physical altercation with wife at house party - Male house party guest called to assist stabbed soon after - Verbal and physical altercation with male victim prior to stabbing - Multiple stable wounds to torso, male victim would have died without urgent medical care - Early plea of guilt accepted for assault charge against wife - Offer to plead guilty to lesser charge not accepted with relation to stabbing - Male victim posed no threat to accused at time of offending - Lack of remorse for stabbing - Total effective sentence of 9 years and one month - R v Verdins (2007) 16 VR 269 - Sentencing Act 1991 (Vic) - Crimes Act 1958 (Vic) - Pihlgren v R [2024] VSCA 47.
CRIMINAL LAW - Sentence - Intentionally causing serious injury and common law assault - Verbal and physical altercation with wife at house party - Male house party guest called to assist stabbed soon after - Verbal and physical altercation with male victim prior to stabbing - Multiple stable wounds to torso, male victim would have died without urgent medical care - Early plea of guilt accepted for assault charge against wife - Offer to plead guilty to lesser charge not accepted with relation to stabbing - Male victim posed no threat to accused at time of offending - Lack of remorse for stabbing - Total effective sentence of 9 years and one month - R v Verdins (2007) 16 VR 269 - Sentencing Act 1991 (Vic) - Crimes Act 1958 (Vic) - Pihlgren v R [2024] VSCA 47.
CRIMINAL LAW - Murder trial - Pre-trial rulings - Incident captured on CCTV - Accused, holding knife in right hand, confronted MC and swung at him with right arm, perhaps nicking his thigh with knife - Each then backed away from other, adopting fighting stance - Deceased, from several metres behind MC, ran with arms raised towards accused - While retreating from deceased, accused swung right arm and stabbed him to chest with knife - Deceased faltered momentarily but got up and kept running towards retreating accused, lunging and throwing punch at him - As deceased advanced, accused stepped sideways slightly and stabbed deceased again to chest with knife - Deceased died at scene - Mens rea for murder and self-defence main issues at trial - Manslaughter to be left in alternative.
CRIMINAL LAW - Murder trial - Pre-trial rulings - Incident captured on CCTV - Accused, holding knife in right hand, confronted MC and swung at him with right arm, perhaps nicking his thigh with knife - Each then backed away from other, adopting fighting stance - Deceased, from several metres behind MC, ran with arms raised towards accused - While retreating from deceased, accused swung right arm and stabbed him to chest with knife - Deceased faltered momentarily but got up and kept running towards retreating accused, lunging and throwing punch at him - As deceased advanced, accused stepped sideways slightly and stabbed deceased again to chest with knife - Deceased died at scene - Mens rea for murder and self-defence main issues at trial - Manslaughter to be left in alternative.
RULING 1 - Contemporaneity of elements of homicide - Whether Crown must prove voluntariness, mens rea and absence of self-defence accompanied both stabbing actions, notwithstanding only one action resulted in internal injuries that caused death - Two stab wounds, one below left nipple ("wound C"), other to middle of chest ("wound D") - Internal damage associated with wound C caused death, not survivable - Internal damage associated with wound D very minor, survivable - Direction of two wound tracts very similar - While perhaps more likely wound C caused by first stabbing action than second, not open to exclude reasonable possibility that either wound (and related internal damage) caused by other stabbing action - In those circumstances, principle of contemporaneity requires jury to be directed that Crown must prove voluntariness, mens rea and absence of self-defence accompanied both stabbing actions, notwithstanding only one action caused death - DPP v Zheng [2013] VSCA 304; Meyers v The Queen (1997) 147 ALR 440; R v Hughes (unreported, Court of Criminal Appeal, Crockett, McGarvie and Beach JJ, 20 March 1990).
RULING 2 - Whether recklessness to be left as alternative head of mens rea for murder - Recklessness not to be left - Herodotou v The Queen [2018] VSCA 253; Wilson v The Queen (1992) 174 CLR 313; Pemble v The Queen (1971) 124 CLR 107.
RULING 3 - Whether open to leave self-defence to jury in view of Crown argument that accused was responding to lawful conduct by deceased (in defending MC) - Whether reasonably possible accused not responding to lawful conduct or that did not know deceased's conduct was lawful - On current state of evidence, open to leave self-defence - Crimes Act 1958 (Vic), ss 322I, 322K, 322L & 322N; R v McDowall (Ruling No 1) [2019] VSC 341; Zecevic v DPP (1987) 162 CLR 645.
BAIL APPLICATION - Whether new bail laws apply - Whether exceptional circumstances justifying grant of bail - Whether unacceptable risk of committing further offences, endangering members of the public and interfering with witnesses - Where residential placement at Odyssey House in Benalla available - Where trial dates listed in August and November 2025 - Bail Act 1977 (Vic) ss, 4AA, 4A, 4D, 34(24B) - Bail Amendment Act 2025 (Vic) s 10 - Re Pham [2024] VSC 143 - Re Tiburcy [2024] VSC 163.
BAIL APPLICATION - Whether new bail laws apply - Whether exceptional circumstances justifying grant of bail - Whether unacceptable risk of committing further offences, endangering members of the public and interfering with witnesses - Where residential placement at Odyssey House in Benalla available - Where trial dates listed in August and November 2025 - Bail Act 1977 (Vic) ss, 4AA, 4A, 4D, 34(24B) - Bail Amendment Act 2025 (Vic) s 10 - Re Pham [2024] VSC 143 - Re Tiburcy [2024] VSC 163.
CRIMINAL LAW - Application for bail - Where bail was granted two weeks prior and applicant has largely complied with conditions - Where period on remand may exceed any sentence of imprisonment if convicted - Whether imposition of conditions may mitigate risk - Bail granted for five weeks on conditions - Bail Act 1977 (Vic), ss 3AAA, 3B(1)(b), 4A, 4E(3)(b).
CRIMINAL LAW - Application for bail - Where bail was granted two weeks prior and applicant has largely complied with conditions - Where period on remand may exceed any sentence of imprisonment if convicted - Whether imposition of conditions may mitigate risk - Bail granted for five weeks on conditions - Bail Act 1977 (Vic), ss 3AAA, 3B(1)(b), 4A, 4E(3)(b).
CRIMINAL LAW - Application for bail - Applicant charged with Schedule 2 offence - Requirement to demonstrate compelling reason - Applicant is Aboriginal - Nature and seriousness of alleged offending - Strength of prosecution case - Extent of compliance with earlier grants of bail - Whether time on remand likely to exceed any term of imprisonment - Limited criminal history - Personal circumstances - Availability of stable accommodation - Availability of culturally appropriate supports and treatment - Compelling reason demonstrated - Whether unacceptable risk - Risk not shown to be unacceptable if bail granted for 1 week on strict conditions - Bail granted for 1 week - Compliance with all conditions during 1 week period of bail - Further application for bail - Further application not opposed by the respondent - Further application granted - Bail Act 1977 (Vic), ss 1B, 3A, 3AAA, 4AA, 4C, 4D, 4E, 5AAA, 5AAAA, 30.
CRIMINAL LAW - Application for bail - Applicant charged with Schedule 2 offence - Requirement to demonstrate compelling reason - Applicant is Aboriginal - Nature and seriousness of alleged offending - Strength of prosecution case - Extent of compliance with earlier grants of bail - Whether time on remand likely to exceed any term of imprisonment - Limited criminal history - Personal circumstances - Availability of stable accommodation - Availability of culturally appropriate supports and treatment - Compelling reason demonstrated - Whether unacceptable risk - Risk not shown to be unacceptable if bail granted for 1 week on strict conditions - Bail granted for 1 week - Compliance with all conditions during 1 week period of bail - Further application for bail - Further application not opposed by the respondent - Further application granted - Bail Act 1977 (Vic), ss 1B, 3A, 3AAA, 4AA, 4C, 4D, 4E, 5AAA, 5AAAA, 30.
CRIMINAL LAW - Application for bail - Where concerning criminal history and serious allegations of drug trafficking and possession of weapons - Where triable issues - Where parents offer significant surety - Where significant delay - Where bail sought on stringent conditions including three-months of inpatient treatment at Harmony House and continued mental health treatment - Exceptional circumstances established - Not an unacceptable risk - Bail granted on conditions proposed.
CRIMINAL LAW - Application for bail - Where concerning criminal history and serious allegations of drug trafficking and possession of weapons - Where triable issues - Where parents offer significant surety - Where significant delay - Where bail sought on stringent conditions including three-months of inpatient treatment at Harmony House and continued mental health treatment - Exceptional circumstances established - Not an unacceptable risk - Bail granted on conditions proposed.
EVIDENCE - Where prosecution served notice of incriminating conduct - Where notice relied on several items of alleged incriminating conduct - Where Item 3 (an alleged lie) was inaccurately drafted - Where prosecution opened its case based on that inaccuracy - Whether prosecution could amend notice shortly before it closed its case - Whether in the interests of justice to permit prosecution to serve revised notice of incriminating conduct - Jury Directions Act 2015 ss 8, 19, 20.
EVIDENCE - Where prosecution served notice of incriminating conduct - Where notice relied on several items of alleged incriminating conduct - Where Item 3 (an alleged lie) was inaccurately drafted - Where prosecution opened its case based on that inaccuracy - Whether prosecution could amend notice shortly before it closed its case - Whether in the interests of justice to permit prosecution to serve revised notice of incriminating conduct - Jury Directions Act 2015 ss 8, 19, 20.
MURDER - Evidence - Admissibility of footprint evidence - Whether impugned evidence obtained as a consequence of a contravention of Australian law, namely, breach of s 464K of the Crimes Act 1958 - Whether impugned evidence obtained improperly - Whether an independent third person should have participated in police interview with accused - Whether evidence should be excluded under s 138 of the Evidence Act 2008 - Impugned evidence admitted - Johnstone (a Pseudonym) v The King [2023] VSCA 49 - DPP v Marijancevic (2011) 33 VR 440; [2011] VSCA 355.
MURDER - Evidence - Admissibility of footprint evidence - Whether impugned evidence obtained as a consequence of a contravention of Australian law, namely, breach of s 464K of the Crimes Act 1958 - Whether impugned evidence obtained improperly - Whether an independent third person should have participated in police interview with accused - Whether evidence should be excluded under s 138 of the Evidence Act 2008 - Impugned evidence admitted - Johnstone (a Pseudonym) v The King [2023] VSCA 49 - DPP v Marijancevic (2011) 33 VR 440; [2011] VSCA 355.
MURDER - Sentence - Accused convicted after a trial - Accused murdered elderly de facto father-in-law in the deceased's home - Deceased savagely beaten with an instrument - Upper range example of murder - Offender suffered a profoundly deprived childhood - Mental impairment making experience of imprisonment harder - Remanded in custody during COVID-19 restrictions - Delay - Bugmy v R (2013) 249 CLR 571 - R v Verdins (2007) 16 VR 26 - Surtees v R [2023] VSCA 42 - Rodriguez v DPP (Cth) (2013) 40 VR 436.
MURDER - Sentence - Accused convicted after a trial - Accused murdered elderly de facto father-in-law in the deceased's home - Deceased savagely beaten with an instrument - Upper range example of murder - Offender suffered a profoundly deprived childhood - Mental impairment making experience of imprisonment harder - Remanded in custody during COVID-19 restrictions - Delay - Bugmy v R (2013) 249 CLR 571 - R v Verdins (2007) 16 VR 26 - Surtees v R [2023] VSCA 42 - Rodriguez v DPP (Cth) (2013) 40 VR 436.
CONTRACT - CONSUMER LAW - GUARANTEE - Loans advanced in gambling chips to the first defendant by the plaintiff under the terms of a written loan agreement - Whether the plaintiff engaged in unlicensed credit activity in breach of the National Credit Code - Whether transaction unjust and/or unconscionable - Whether the second defendant signed the loan agreement as guarantor.
CONTRACT - CONSUMER LAW - GUARANTEE - Loans advanced in gambling chips to the first defendant by the plaintiff under the terms of a written loan agreement - Whether the plaintiff engaged in unlicensed credit activity in breach of the National Credit Code - Whether transaction unjust and/or unconscionable - Whether the second defendant signed the loan agreement as guarantor.
CONTRACT - Sale of real estate - "Subject to finance" clause - Validity of termination by purchaser where loan not approved - Entitlement to return of deposit - Whether purchaser applied for loan - Whether purchaser did everything reasonably required to obtain loan approval - Whether purchaser gave notice of termination together with evidence of non-approval - Whether notice and evidence given within prescribed time or prematurely.
CONTRACT - Sale of real estate - "Subject to finance" clause - Validity of termination by purchaser where loan not approved - Entitlement to return of deposit - Whether purchaser applied for loan - Whether purchaser did everything reasonably required to obtain loan approval - Whether purchaser gave notice of termination together with evidence of non-approval - Whether notice and evidence given within prescribed time or prematurely.