ACCIDENT COMPENSATION - Appeal - Application for extension of time within which to seek leave to appeal - Workplace injury - Serious injury application - Function of cervical spine - Applicant given leave to commence proceeding for pain and suffering damages only - Whether judge erred in refusing applicant leave to commence proceeding for pecuniary loss damages - Loss of earning capacity - Whether applicant suffered permanent loss of earning capacity of 40 per cent or more - Suitable employment - Proposed appeal having no real prospect of success - Futile to grant extension of time application - Application for extension of time refused.
ACCIDENT COMPENSATION - Appeal - Application for extension of time within which to seek leave to appeal - Workplace injury - Serious injury application - Function of cervical spine - Applicant given leave to commence proceeding for pain and suffering damages only - Whether judge erred in refusing applicant leave to commence proceeding for pecuniary loss damages - Loss of earning capacity - Whether applicant suffered permanent loss of earning capacity of 40 per cent or more - Suitable employment - Proposed appeal having no real prospect of success - Futile to grant extension of time application - Application for extension of time refused.
PRACTICE AND PROCEDURE - Applications to adduce fresh evidence - Whether by reasonable diligence proposed evidence could have been adduced at trial - Whether tendering of proposed evidence at trial would have produced opposite result - Applications to adduce fresh evidence refused.
Workplace Injury Rehabilitation and Compensation Act 2013, ss 325(2)(b), (c), (e) and (f) and 335(2) and (3).
Commonwealth Bank of Australia v Quade (1991) 178 CLR 134; Giles v Jeffrey [2016] VSCA 314; Roleff v Chubb Insurance Co of Australia Pty Ltd (2011) 31 VR 235; The Herald & Weekly Times Ltd v Jessop [2014] VSCA 292; Yirga- Denbu v Victorian WorkCover Authority (2018) 57 VR 545; Weldemichael v ID Sales & Repairs Pty Ltd [2019] VSCA 68; Victorian WorkCover Authority v Papaconstantinou [2021] VSCA 145, applied.
ACCIDENT COMPENSATION - Transport accident - Serious injury - Appeal against finding by trial judge that applicant's injury not a 'serious injury' for the purposes of s 93 of Transport Accident Act 1986 - Applicant's motorbike collided with truck - Psychiatric injury - Applicant suffers from Conversion Disorder with hand-twitching and pseudo-neurological symptomology - Where transport accident a cause of psychiatric injury - Whether trial judge erred in concluding that applicant's injury not 'serious' - Whether trial judge failed to consider consequences and symptoms associated with applicant's disorder when finding transport accident a cause of psychiatric injury - Applicant's symptoms have abated - Applicant's professional and personal life not severely affected by injury - Applicant's pre-existing anxiety and depression not part of claim - Application for leave to appeal refused.
ACCIDENT COMPENSATION - Transport accident - Serious injury - Appeal against finding by trial judge that applicant's injury not a 'serious injury' for the purposes of s 93 of Transport Accident Act 1986 - Applicant's motorbike collided with truck - Psychiatric injury - Applicant suffers from Conversion Disorder with hand-twitching and pseudo-neurological symptomology - Where transport accident a cause of psychiatric injury - Whether trial judge erred in concluding that applicant's injury not 'serious' - Whether trial judge failed to consider consequences and symptoms associated with applicant's disorder when finding transport accident a cause of psychiatric injury - Applicant's symptoms have abated - Applicant's professional and personal life not severely affected by injury - Applicant's pre-existing anxiety and depression not part of claim - Application for leave to appeal refused.
Transport Accident Act 1986, s 93.
Taylor v Transport Accident Commission [2022] VSCA 269; Forssell v CIP Constructions (Australia) Pty Ltd [2020] VSCA 304; Noori v Topaz Fine Foods Pty Ltd [2018] VSCA 323; Hunter v Transport Accident Commission & Anor [2005] VSCA 1; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, considered.
Mobilio v Balliotis [1998] 3 VR 833; Humphries v Poljak [1992] 2 VR 129; Transport Accident Commission v Katanas (2017) 262 CLR 550; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Woolworths Ltd v Warfe [2013] VSCA 22; Nichols & Anor v Robinson [2001] VSCA 11, referred to.
PRACTICE AND PROCEDURE - Appeal - Application for security for costs - No dispute as to entitlement to security for costs - Quantum of security - Orders made for security for costs.
PRACTICE AND PROCEDURE - Appeal - Application for security for costs - No dispute as to entitlement to security for costs - Quantum of security - Orders made for security for costs.
Cwalina v Rose [2025] VSCA 53; Mikkelsen v Li [2022] VSCA 126; Szwarcbord v Charbord Investments Pty Ltd [2024] VSCA 92, applied.
PRACTICE AND PROCEDURE - Appeal - Overarching obligations - Whether respondents breached overarching obligations - Application under s 29 of Civil Procedure Act 2010 for orders against respondents for alleged breaches of overarching obligations - Applicant failing to prove any breach of overarching obligations - Application dismissed by primary judge - Proposed appeal having no prospects of success - Application for leave to appeal totally without merit - Application for leave to appeal refused.
PRACTICE AND PROCEDURE - Appeal - Overarching obligations - Whether respondents breached overarching obligations - Application under s 29 of Civil Procedure Act 2010 for orders against respondents for alleged breaches of overarching obligations - Applicant failing to prove any breach of overarching obligations - Application dismissed by primary judge - Proposed appeal having no prospects of success - Application for leave to appeal totally without merit - Application for leave to appeal refused.
Civil Procedure Act 2010, ss 16, 17, 18, 21 and 29; Supreme Court Act 1986, s 14D.
PROPERTY LAW - Application for possession of property by mother against son under o 53 of the Supreme Court (General Civil Procedure) Rules 2015 granted by Associate Justice - Applicant self-represented in proceeding below - Applicant filed appearance but did not file any material in opposition and did not attend Trial Division hearing - Whether Associate Justice erred in declaring that at that stage of the proceeding there was no question to be tried - Whether Associate Justice erred in declaring that a judgment for possession under o 53 was justified and the respondent was entitled to possession of the land at that stage of the proceeding - Leave to appeal refused.
PROPERTY LAW - Application for possession of property by mother against son under o 53 of the Supreme Court (General Civil Procedure) Rules 2015 granted by Associate Justice - Applicant self-represented in proceeding below - Applicant filed appearance but did not file any material in opposition and did not attend Trial Division hearing - Whether Associate Justice erred in declaring that at that stage of the proceeding there was no question to be tried - Whether Associate Justice erred in declaring that a judgment for possession under o 53 was justified and the respondent was entitled to possession of the land at that stage of the proceeding - Leave to appeal refused.
Supreme Court (General Civil Procedure) Rules 2025, o 53.
CRIMINAL LAW - Appeal - Conviction - Murder - Causation - Deceased suffered stab wounds and brain injuries - Medical evidence that cause of death was multiple stab wounds in the setting of blunt head trauma - Whether judge erred in directions to jury on causation - Proposed ground of appeal without merit - Application for extension of time in which to seek leave to appeal against conviction refused.
CRIMINAL LAW - Appeal - Conviction - Murder - Causation - Deceased suffered stab wounds and brain injuries - Medical evidence that cause of death was multiple stab wounds in the setting of blunt head trauma - Whether judge erred in directions to jury on causation - Proposed ground of appeal without merit - Application for extension of time in which to seek leave to appeal against conviction refused.
CRIMINAL LAW - Application for extension of time for leave to appeal against sentence - Manifest excess - Aggravated burglary with intent to steal - Sexual assault - Where applicant on bail and community correction order at time of offending - Where applicant sexually assaulted the complainant after entering home with intention to steal - Aggravated burglary an inherently serious offence - Sexual assault is serious offending where vulnerable victim lying asleep in her home assaulted by a trespasser - Sentence and orders for cumulation wholly adequate in the circumstances - Application for extension of time dismissed.
CRIMINAL LAW - Application for extension of time for leave to appeal against sentence - Manifest excess - Aggravated burglary with intent to steal - Sexual assault - Where applicant on bail and community correction order at time of offending - Where applicant sexually assaulted the complainant after entering home with intention to steal - Aggravated burglary an inherently serious offence - Sexual assault is serious offending where vulnerable victim lying asleep in her home assaulted by a trespasser - Sentence and orders for cumulation wholly adequate in the circumstances - Application for extension of time dismissed.
Crimes Act 1958, ss 40, 74(1), 77, 82(1), 88, 321M; Bail Act 1977, s 30B; Crimes Amendment (Sexual Offences) Act 2016.
Brown v The Queen [2021] VSCA 204; Comensoli v The Queen [2020] VSCA 2 considered; Traeger (a pseudonym) v The Queen [2019] VSCA 231; Perry v The King [2023] VSCA 218, distinguished.
CRIMINAL LAW - Appeal - Conviction - Rape by failing to withdraw - Two incidents of sexual penetration of a sex worker in a commercial setting - Whether verdicts unreasonable or cannot be supported having regard to the evidence - Appeal allowed - Judgments and verdicts of acquittal entered.
CRIMINAL LAW - Appeal - Conviction - Rape by failing to withdraw - Two incidents of sexual penetration of a sex worker in a commercial setting - Whether verdicts unreasonable or cannot be supported having regard to the evidence - Appeal allowed - Judgments and verdicts of acquittal entered.
CRIMINAL LAW - Appeal - Conviction - Rape by failing to withdraw - Two incidents of sexual penetration of a sex worker in a commercial setting - Police recorded taking of complainant's statement - Defence counsel played recording to complainant - Complainant distressed - Whether substantial miscarriage of justice resulted - Appeal allowed.
CRIMINAL LAW - Appeal - Conviction - Rape by failing to withdraw - Two incidents of sexual penetration of a sex worker in a commercial setting - Newspaper article published in course of trial concerning assaults on sex workers - Cross-examination disjointed as a result of complainant's conduct - Applications to discharge jury refused - Whether substantial miscarriage of justice - Appeal allowed.
CRIMINAL LAW - Appeal - Conviction - Seven prosecutions relating to drug trafficking - Guilty pleas entered to charges in three prosecutions in exchange for discontinuation of remaining prosecutions - Barrister registered as police informer and informing on applicant - Other clients persuaded to give evidence against applicant - Breaches of barrister's professional duties - Barrister and police shared common purpose of ensuring applicant charged with and convicted of serious offences - Applicant convicted and exhausted rights of appeal without knowing of misconduct - Whether substantial miscarriage of justice - Leave to appeal granted - Appeal allowed in part.
CRIMINAL LAW - Appeal - Conviction - Seven prosecutions relating to drug trafficking - Guilty pleas entered to charges in three prosecutions in exchange for discontinuation of remaining prosecutions - Barrister registered as police informer and informing on applicant - Other clients persuaded to give evidence against applicant - Breaches of barrister's professional duties - Barrister and police shared common purpose of ensuring applicant charged with and convicted of serious offences - Applicant convicted and exhausted rights of appeal without knowing of misconduct - Whether substantial miscarriage of justice - Leave to appeal granted - Appeal allowed in part.
CRIMINAL LAW - Appeal - Conviction - Whether common purpose of barrister and State police undermined administration of justice - Barrister secured cooperation of clients to act as witnesses against applicant - Breaches of professional duties to clients - Method used to obtain evidence grossly improper - Fundamental departure from proper processes for trial - State conviction involving substantial miscarriage of justice - Order for acquittal - Common purpose not infecting Commonwealth prosecution - No fundamental departure from proper processes for trial - Misconduct having capacity to affect result in Commonwealth prosecution - Conviction not inevitable - Commonwealth conviction involving substantial miscarriage of justice - Order for retrial - Further State conviction unaffected - Baini v The Queen (2012) 246 CLR 469; Awad v The Queen (2022) 275 CLR 421; Karam v The King [2023] VSCA 318, applied.
CRIMINAL LAW - Appeal - Conviction - Whether common purpose of barrister and State police undermined appearance of administration of justice - Whether fair-minded observer might reasonably apprehend that accused might have been deprived of fair trial - Test not applicable where Court has found guilty pleas did not involve substantial miscarriage of justice - R v Szabo [2001] 2 Qd R 214, distinguished.
CRIMINAL LAW - Appeal - Conviction - Guilty pleas - Integrity of pleas impugned by non-disclosure of misconduct of barrister and police - Non-disclosure affecting assessment of strength of prosecution case on subject charges and charges discontinued by agreement - Whether prosecutions could not in law have proceeded - Affront to justice - Whether non-disclosure had capacity to affect outcome of prosecutions - Whether issuable question of guilt - Peters [No 2] v The Queen (2019) 60 VR 231; Karam v The King [2023] VSCA 318; Honeysett v DPP (NSW) [2023] NSWCCA 215, applied - Leave to appeal granted - Appeal allowed in part.
CRIMINAL LAW - Appeal - Conviction - Guilty pleas - Integrity of pleas impugned by non-disclosure of misconduct of barrister and police in connection with applicant's extradition - Whether reasonable prospect of permanent stay of prosecutions on grounds of misconduct - No reasonable prospect of stay - Strickland v DPP (Cth) (2018) 266 CLR 325; Ballard v The King [2024] VSCA 26, applied.
CRIMINAL LAW - Appeal - Conviction - Guilty pleas - Integrity of pleas impugned by non-disclosure of misconduct of barrister and police - Whether non-disclosure had capacity to affect outcome of prosecutions - Whether evidence improperly obtained - Evidence would have been excluded from trials of subject charges and discontinued charges - Evidence Act 2008, s 138.
CRIMINAL LAW - Appeal - Second or subsequent appeal - Principles governing leave - Whether fresh evidence 'compelling' - Criminal Procedure Act 2009, s 326C(3)(b)(iii)(A) - Whether fresh evidence can be 'highly probative in the context of the issues in dispute at the trial of the offence' where no trial following plea of guilty - Statutory context points to wider meaning - Context of issues in dispute at prospective trial includes plea - Issues in dispute extend to question whether integrity of plea impugned - Van Beelen v The Queen (2017) 262 CLR 565; Roberts v The Queen (2020) 60 VR 431; Karam v The King [2023] VSCA 318, applied - Leave to appeal granted.
CRIMINAL LAW - Appeal - Jurisdiction - Crown appeal from reference determination under Criminal Procedure Act 2009, s 319A(5) - Where Crown respondent to substantive appeal - No express conferral of right of appeal on Crown - Parties not joining issue on question whether Crown has right of appeal - Director of Public Prosecutions v State of Victoria [2025] VSCA 41, referred to - Crown may be applicant or respondent to appeal against reference determination - Court sufficiently satisfied of jurisdiction to hear and determine respondent's application for leave to appeal.
CRIMINAL LAW - Appeal - Reference determination - Judge found former Director of Public Prosecutions breached prosecutorial duty of disclosure on 4 September 2012 - Director informed of possibility of barrister's informing against applicant on 1 June 2012 - Before reference judge applicant argued breach from 1 June 2012 encompassing duty to make further inquiries - Edwards v The Queen (2021) 273 CLR 585; Eastman v Director of Public Prosecutions (ACT) [No 13] [2016] ACTCA 65; Marwan v Director of Public Prosecutions (NSW) (2019) 278 A Crim R 592, referred to - Whether judge erred by not finding breach of duty on 1 June 2012 - Alleged breach not put to Director in cross-examination - Substantial departure from rule in Browne v Dunn - Failure to put allegation to Director meant judge could not reach informed conclusion - Leave to appeal refused.
CRIMINAL LAW - Appeal - Reference determination - Judge found respondent had conceded reasonable grounds existed for applicant to have made stay application in respect of prosecutions - Submissions before judge showing no express or implied concession - Leave to appeal granted - Appeal allowed.
CRIMINAL LAW - Appeal - Reference determination - Question before judge required consideration of strength of prosecutions - Two prosecutions advanced on joint presentment/indictment - Whether judge erred by failing to consider strength of prosecutions separately - Parties agreeing Court of Appeal should assess strength of each prosecution for itself - Proposed ground of appeal having no utility - Leave to appeal refused.
CRIMINAL LAW - Appeal - Reference determination - Judge found joint criminal enterprise between barrister and four police officers to attempt to pervert course of justice - Judge 'supplemented' evidence relied on in support of applicant's case - Whether judge made finding in breach of rules of procedural fairness - Respondent on notice that applicant sought findings of unlawful or improper conduct of parties to enterprise - Cross-examination traversed matters relied on by judge - No breach of rule in Browne v Dunn - R v Morrow (2009) 26 VR 526, referred to - Requirements of procedural fairness met where underlying facts put to witnesses and parties had opportunity to address relevant evidence in course of submitting how reference questions to be answered - No error in judge's approach - Leave to appeal granted - Appeal dismissed.
CRIMINAL LAW - Appeal - Conviction - Rape and associated offences - Distress - Relevance - Whether complainant's distress capable of providing indirect support for charges.
CRIMINAL LAW - Appeal - Conviction - Rape and associated offences - Distress - Relevance - Whether complainant's distress capable of providing indirect support for charges.
CRIMINAL LAW - Appeal - Conviction - Rape and associated offences - Unreliable evidence - Whether items found at alleged offences capable of being supporting evidence - Items not so capable.
CRIMINAL LAW - Appeal - Conviction - Rape and associated offences - Whether verdicts unreasonable or cannot be supported having regard to the evidence - Lies by complainant - Complainant's credibility and reliability affected by hallucinations and delusions caused by drug use - Complainant criminally complicit with applicant in other offending - Discrepancies and inconsistencies in complainant's evidence - Not open to jury to be satisfied beyond reasonable doubt of guilt - Appeal allowed - Convictions set aside - Judgments and verdicts of acquittal entered.
PRACTICE AND PROCEDURE - Return of ex parte freezing order against a prospective judgment debtor in a proceeding in a foreign court - Where plaintiffs acknowledged that there was material non-disclosure at ex parte hearing - Where plaintiffs amended their case in the proceeding in the foreign court and sought to have the ex parte freezing order continued or a fresh freezing order made on similar terms - Where plaintiffs established a good arguable case with sufficient prospect of a favourable judgment in the foreign court - Where plaintiffs failed to demonstrate a danger or risk that the defendant will dissipate his assets - Ex parte freezing order discharged - Application for fresh freezing order not granted - Foreign Judgments Act 1991 (Cth) - Foreign Judgments Regulations 1992 (Cth) - Supreme Court General Civil Procedure Rules (2025) (Vic) Order 37A - Inherent jurisdiction of the Court.
PRACTICE AND PROCEDURE - Return of ex parte freezing order against a prospective judgment debtor in a proceeding in a foreign court - Where plaintiffs acknowledged that there was material non-disclosure at ex parte hearing - Where plaintiffs amended their case in the proceeding in the foreign court and sought to have the ex parte freezing order continued or a fresh freezing order made on similar terms - Where plaintiffs established a good arguable case with sufficient prospect of a favourable judgment in the foreign court - Where plaintiffs failed to demonstrate a danger or risk that the defendant will dissipate his assets - Ex parte freezing order discharged - Application for fresh freezing order not granted - Foreign Judgments Act 1991 (Cth) - Foreign Judgments Regulations 1992 (Cth) - Supreme Court General Civil Procedure Rules (2025) (Vic) Order 37A - Inherent jurisdiction of the Court.
APPEAL - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 84.05 - Application to set aside winding up order - Where the company did not receive statutory demand or originating process at the time it was served - Where the company has now paid its outstanding debt to the Commissioner - Appeal allowed - Winding up order set aside.
APPEAL - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 84.05 - Application to set aside winding up order - Where the company did not receive statutory demand or originating process at the time it was served - Where the company has now paid its outstanding debt to the Commissioner - Appeal allowed - Winding up order set aside.
EQUITY - Developers purchased property via special purpose vehicle ('SPV') - Building and development business - Pre-existing lease between former owner and telecommunications group relating to roof equipment ('1996 Lease') - 1996 Lease commercially lucrative - Plan of Subdivision prepared to sell lots - Roof identified as common property vested in body corporate under strata law - Developer entered into long-term lease with body corporate over common property ('2000 Lease') to retain benefit of subsisting lease - 2000 Lease executed following AGM of body corporate - Resolutions passed - Deregistration of SPV on project completion - Rights assigned to plaintiff - Dispute between succeeding body corporate and plaintiff over enforceability of 2000 Lease - Whether 2000 Lease invalid - Whether defective authorisation - Whether fraud on the power occurred where SPV sole owner of lots and single voter at AGM - Whether developer breached fiduciary duties - Entitlement of Owners Corporation ('OC') to recover (rent) moneys accrued by plaintiff - OC bound by 2000 Lease - Declaration in favour of plaintiff - Counterclaim dismissed - Subdivision Act 1988 (Vic) ss 3(1), 5 & 5(3)(e), 24(1) & (3), 27(2), 28(1)(b) & (c), 31A(1)(c) - Subdivision (Body Corporate) Regulations 1989 (Vic) Regs 401(m), 402, 609(1) & (2) - Owners Corporation Act 2006 (Vic) ss 10(1) & (2), 20(1) - Sale of land Act 1962 (Vic) ss 32K(2), (3), (4)(a) & (b).
EQUITY - Developers purchased property via special purpose vehicle ('SPV') - Building and development business - Pre-existing lease between former owner and telecommunications group relating to roof equipment ('1996 Lease') - 1996 Lease commercially lucrative - Plan of Subdivision prepared to sell lots - Roof identified as common property vested in body corporate under strata law - Developer entered into long-term lease with body corporate over common property ('2000 Lease') to retain benefit of subsisting lease - 2000 Lease executed following AGM of body corporate - Resolutions passed - Deregistration of SPV on project completion - Rights assigned to plaintiff - Dispute between succeeding body corporate and plaintiff over enforceability of 2000 Lease - Whether 2000 Lease invalid - Whether defective authorisation - Whether fraud on the power occurred where SPV sole owner of lots and single voter at AGM - Whether developer breached fiduciary duties - Entitlement of Owners Corporation ('OC') to recover (rent) moneys accrued by plaintiff - OC bound by 2000 Lease - Declaration in favour of plaintiff - Counterclaim dismissed - Subdivision Act 1988 (Vic) ss 3(1), 5 & 5(3)(e), 24(1) & (3), 27(2), 28(1)(b) & (c), 31A(1)(c) - Subdivision (Body Corporate) Regulations 1989 (Vic) Regs 401(m), 402, 609(1) & (2) - Owners Corporation Act 2006 (Vic) ss 10(1) & (2), 20(1) - Sale of land Act 1962 (Vic) ss 32K(2), (3), (4)(a) & (b).
LEASES AND TENANCIES - Validity - Whether 2000 Lease void where possessory interest already vested in lessee under 1996 Lease - Overlapping demise under both leases - Whether 2000 Lease operated concurrently during period of overlapping demise - Application of orthodox principles - Leasehold grant preserved rights of telecommunications group - Assignment of reversionary rights - Concurrent lease doctrine upheld - Special resolution valid to authorise grant of 2000 Lease - Defective execution due to lack of clear delegation to body corporate manager - Non-compliance with regulations - Eureka Operations Pty Ltd v Viva Energy Australia Ltd [2015] VSC 648.
EQUITY - Equitable relief - Whether recourse to part performance or estoppel available where 2000 Lease improperly executed - Clear acts of reliance by plaintiff on assumption of valid execution - Waltons Stores estoppel elements satisfied - Plaintiff relied on holding leasehold interest and associated subleasing rights - Undue detriment arises if OC not bound - Breach of fiduciary duty not made out where 2000 Lease disclosed to future lot owners in contracts of sale - Purchasers' consent obtained - Voting entitlements validly exercised by developer - No fraud on the power - No dishonest scheme - OC's own failure to locate files despite awareness of 2000 Lease - Equitable doctrines invoked to support plaintiff's claim - Further statutory limitation periods and laches considered barring OC's counterclaim - Community Association DP No 270180 v Arrow Asset Management Pty Ltd [2007] NSWSC 527 - Houghton & Anor v Immer (No 155) Pty Ltd & Anor (1997) 44 NSWLR 46 - CSR Limited v Amaca Pty Ltd [2016] VSCA 320.
COSTS - Application for the award of costs on discontinuance - Whether the Court should award costs or otherwise order - Relevant principles - Supreme Court Act 1986 (Vic) s 24(1) - Northern Territory v Sangare [2019] 265 CLR 164; Soteriadis v Nillumbik Shire Council [2015] VSC 363; Merkon Constructions Pty Ltd v Residence Company Pty Ltd [2024] VSC 402, applied.
COSTS - Application for the award of costs on discontinuance - Whether the Court should award costs or otherwise order - Relevant principles - Supreme Court Act 1986 (Vic) s 24(1) - Northern Territory v Sangare [2019] 265 CLR 164; Soteriadis v Nillumbik Shire Council [2015] VSC 363; Merkon Constructions Pty Ltd v Residence Company Pty Ltd [2024] VSC 402, applied.
CORPORATIONS - Application for winding up in insolvency - Whether plaintiff had established presumptions of insolvency under s 459C(2)(b) of the Corporations Act 2001 (Cth) arising from alleged wholly unsatisfied warrant of seizure and sale and partly unsatisfied garnishee order - Finding that warrant not returned unsatisfied - Finding that garnishee order was returned partly unsatisfied - Exercise of discretion under s 467(1)(a) of the Corporations Act 2001 (Cth) to dismiss the application despite ground having been proved.
CORPORATIONS - Application for winding up in insolvency - Whether plaintiff had established presumptions of insolvency under s 459C(2)(b) of the Corporations Act 2001 (Cth) arising from alleged wholly unsatisfied warrant of seizure and sale and partly unsatisfied garnishee order - Finding that warrant not returned unsatisfied - Finding that garnishee order was returned partly unsatisfied - Exercise of discretion under s 467(1)(a) of the Corporations Act 2001 (Cth) to dismiss the application despite ground having been proved.
CORPORATIONS - External administration - Application by liquidators of responsible entity of managed investment scheme for remuneration - Further application - Remuneration approved.
CORPORATIONS - External administration - Application by liquidators of responsible entity of managed investment scheme for remuneration - Further application - Remuneration approved.
CORPORATIONS - Winding up - Statutory demand based on default judgment - Default judgment was set aside - Application to wind up the defendant in insolvency - The defendant seeks leave under s 459S of the Corporations Act 2001 (Cth) to oppose the application to wind up the company - In exercising the Court's discretion under s 467(1) the application is adjourned for 14 days for the debt to the paid to the Court - Winding up will be ordered if the defendant does not pay the debt to the Court in 14 days - Ace Contractors and Staff Pty Ltd v Westgarth Development Pty Ltd [1999] FCA 728, Chief Commissioner of Stamp Duties v Paliflex Pty Ltd (1999) 47 NSWLR 382, [1999] NSWSC 15; Re Brooklyn Park & Co Pty Ltd [2024] VSC 611 applied.
CORPORATIONS - Winding up - Statutory demand based on default judgment - Default judgment was set aside - Application to wind up the defendant in insolvency - The defendant seeks leave under s 459S of the Corporations Act 2001 (Cth) to oppose the application to wind up the company - In exercising the Court's discretion under s 467(1) the application is adjourned for 14 days for the debt to the paid to the Court - Winding up will be ordered if the defendant does not pay the debt to the Court in 14 days - Ace Contractors and Staff Pty Ltd v Westgarth Development Pty Ltd [1999] FCA 728, Chief Commissioner of Stamp Duties v Paliflex Pty Ltd (1999) 47 NSWLR 382, [1999] NSWSC 15; Re Brooklyn Park & Co Pty Ltd [2024] VSC 611 applied.
INTERLOCUTORY INJUNCTION - Urgent ex parte application - Where in advance of his departure, former employee of a security services business has downloaded information including client data - Where former employee has recently established a rival security services business and has been contacting plaintiff's clients seeking their business - Where injunction sought to prevent continuing misuse of confidential information including client data - Prima facie case and serious question to be tried - Consideration as to whether a plaintiff claiming misuse of confidential information must demonstrate damages would not be an adequate remedy - Whether balance of convenience favours granting of an injunction - Where lower risk of injustice if interim relief sought is granted - Usual undertakings as to damages given by the plaintiff - Supreme Court Act 1986 (Vic) s 37 - Court satisfied that it is just and convenient to grant the injunctive relief sought on an interim basis.
INTERLOCUTORY INJUNCTION - Urgent ex parte application - Where in advance of his departure, former employee of a security services business has downloaded information including client data - Where former employee has recently established a rival security services business and has been contacting plaintiff's clients seeking their business - Where injunction sought to prevent continuing misuse of confidential information including client data - Prima facie case and serious question to be tried - Consideration as to whether a plaintiff claiming misuse of confidential information must demonstrate damages would not be an adequate remedy - Whether balance of convenience favours granting of an injunction - Where lower risk of injustice if interim relief sought is granted - Usual undertakings as to damages given by the plaintiff - Supreme Court Act 1986 (Vic) s 37 - Court satisfied that it is just and convenient to grant the injunctive relief sought on an interim basis.
PRACTICE AND PROCEDURE - Costs - Executor's application for costs from the estate of the deceased in circumstances where the application for executor's commission under s 65 of the Administration and Probate Act 1958 (Vic) was refused - Rule 10.10 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) - Rules 63.01 and 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application refused - Second plaintiff to bear own cost and to pay costs of the first plaintiff's costs of the second plaintiff's application for executor's commission on a standard basis without indemnity from the deceased's estate.
PRACTICE AND PROCEDURE - Costs - Executor's application for costs from the estate of the deceased in circumstances where the application for executor's commission under s 65 of the Administration and Probate Act 1958 (Vic) was refused - Rule 10.10 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) - Rules 63.01 and 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application refused - Second plaintiff to bear own cost and to pay costs of the first plaintiff's costs of the second plaintiff's application for executor's commission on a standard basis without indemnity from the deceased's estate.
COSTS - Appeal proceeding dismissed by consent - Section 148 appeal from VCAT - Whether indemnity costs appropriate in the circumstances - Exercise of the Court's discretion - Costs awarded on a standard basis - Supreme Court Act 1986 (Vic) s 24 - Rokon Holding Pty Ltd v River St Property Nominees Pty Ltd (No 2) [2025] VSC 252, considered.
COSTS - Appeal proceeding dismissed by consent - Section 148 appeal from VCAT - Whether indemnity costs appropriate in the circumstances - Exercise of the Court's discretion - Costs awarded on a standard basis - Supreme Court Act 1986 (Vic) s 24 - Rokon Holding Pty Ltd v River St Property Nominees Pty Ltd (No 2) [2025] VSC 252, considered.
JUDICIAL REVIEW AND APPEALS LIST - Adjournment of hearing because of medical condition - Whether applicant provided with an opportunity to address the Tribunal on its consideration of using powers under s 78 to find that the applicant 'caused the adjournment' and that her conduct in doing so unnecessarily disadvantaged the defendants - Whether the applicant afforded natural justice to respond to costs orders and to order striking out claim if order for payment of costs not complied with - Sections 78 and 109 of Victorian Civil and Tribunal Act 1998 (Vic) - Bell Corp Victoria v Stephenson [2003] VSC 255.
JUDICIAL REVIEW AND APPEALS LIST - Adjournment of hearing because of medical condition - Whether applicant provided with an opportunity to address the Tribunal on its consideration of using powers under s 78 to find that the applicant 'caused the adjournment' and that her conduct in doing so unnecessarily disadvantaged the defendants - Whether the applicant afforded natural justice to respond to costs orders and to order striking out claim if order for payment of costs not complied with - Sections 78 and 109 of Victorian Civil and Tribunal Act 1998 (Vic) - Bell Corp Victoria v Stephenson [2003] VSC 255.
CONFISCATION AND PROCEEDS OF CRIME
CONFISCATION AND PROCEEDS OF CRIME
ADMINISTRATIVE LAW - Judicial review - Magistrates' Court decision not to set aside and instead to vary a proceeding suppression order - Plaintiffs claiming certiorari to quash suppression order - Suppression order made in circumstances where a retrial had not yet been ordered - On its face scope of order was broader than scope of empowering provision- Parties given opportunities to make submissions whether suppression order should be quashed as being broader than scope of empowering provision - Open Courts Act 2013 ss 13, 15, 17, 18, 26.
ADMINISTRATIVE LAW - Judicial review - Magistrates' Court decision not to set aside and instead to vary a proceeding suppression order - Plaintiffs claiming certiorari to quash suppression order - Suppression order made in circumstances where a retrial had not yet been ordered - On its face scope of order was broader than scope of empowering provision- Parties given opportunities to make submissions whether suppression order should be quashed as being broader than scope of empowering provision - Open Courts Act 2013 ss 13, 15, 17, 18, 26.
PRACTICE AND PROCEDURE - Suppression order - Application by plaintiff to 're-enliven' previously abandoned ground - Defendant submitted that it was unfair to allow plaintiffs to recast case - Defendant submitted that Court should not quash order on its own motion - Alternatively, defendant sought opportunity to apply for fresh proceeding suppression order in current proceeding - Abandoned ground only indirectly raised relevant jurisdictional error and application for leave was not clearly explained - Court declined application by plaintiff to 're-enliven' abandoned ground - Court decided to exercise inherent supervisory jurisdiction on its own motion and to quash suppression order - Stay granted to allow defendant to apply for fresh suppression order.
ADMINISTRATIVE LAW - Judicial Review - Medical Panel convened under the Wrongs Act 1958 (Vic) ('Wrongs Act') - Asserted failure to take into account mandatory relevant considerations - Mandatory relevant consideration to be expressed at high level of generality - Materiality - Asserted error of fact said to amount to jurisdictional error - Obligation to consider and properly apply s28LL(3) of the Wrongs Act.
ADMINISTRATIVE LAW - Judicial Review - Medical Panel convened under the Wrongs Act 1958 (Vic) ('Wrongs Act') - Asserted failure to take into account mandatory relevant considerations - Mandatory relevant consideration to be expressed at high level of generality - Materiality - Asserted error of fact said to amount to jurisdictional error - Obligation to consider and properly apply s28LL(3) of the Wrongs Act.
SPECIFIC PERFORMANCE - Building contract - Delay in completing the rectification work under the contract - Whether specific performance is an adequate remedy - Mayor, Aldermen and Burgesses of Wolverhampton v Emmons [1901] 1 QB 515 applied - Whether the scope of work is clearly defined - Whether damages are a more adequate remedy.
SPECIFIC PERFORMANCE - Building contract - Delay in completing the rectification work under the contract - Whether specific performance is an adequate remedy - Mayor, Aldermen and Burgesses of Wolverhampton v Emmons [1901] 1 QB 515 applied - Whether the scope of work is clearly defined - Whether damages are a more adequate remedy.
COSTS - Whether s 24(1) of the Supreme Court Act 1986 ('SCA') confers a statutory power to award costs against the Chief Commissioner of Police ('CCP') in relation to an unsuccessful public interest immunity ('PII') claim by the CCP - Whether a PII claim in the context of a prosecution brought by the Director of Public Prosecutions is a criminal proceeding for the purpose of s 24 (2) of the SCA - Whether the practice of costs not being awarded in criminal proceedings applies to a PII claim - Chief Commissioner of Police v Crupi (2024) 98 ALJR 1131 - R v Crupi (Ruling No 4) [2022] VSC 676 (Redacted) - R v Payara (2012) 36 VR 326 - Perkins v County Court of Victoria (2000) 2 VR 246 - R v Wright, Danci and Currie (1992) 77 A Crim R 67 - Criminal Procedure Act 2009 ss 302, 304 - Evidence Act 2008, ss 130, 131A - Supreme Court Act 1986, s 24.
COSTS - Whether s 24(1) of the Supreme Court Act 1986 ('SCA') confers a statutory power to award costs against the Chief Commissioner of Police ('CCP') in relation to an unsuccessful public interest immunity ('PII') claim by the CCP - Whether a PII claim in the context of a prosecution brought by the Director of Public Prosecutions is a criminal proceeding for the purpose of s 24 (2) of the SCA - Whether the practice of costs not being awarded in criminal proceedings applies to a PII claim - Chief Commissioner of Police v Crupi (2024) 98 ALJR 1131 - R v Crupi (Ruling No 4) [2022] VSC 676 (Redacted) - R v Payara (2012) 36 VR 326 - Perkins v County Court of Victoria (2000) 2 VR 246 - R v Wright, Danci and Currie (1992) 77 A Crim R 67 - Criminal Procedure Act 2009 ss 302, 304 - Evidence Act 2008, ss 130, 131A - Supreme Court Act 1986, s 24.
CRIMINAL LAW - Application for bail - Charge of murder - Where the applicant is charged with dealing fatal blow in assault of worker - Whether exceptional circumstances exist that justify grant of bail - Where applicant has no prior criminal history - Where delay is not inordinate - Where triable issues but Crown case not weak - Where applicant submission of disproportionate financial hardship to family not supported by evidence - Where substantial surety offered - Exceptional circumstances not found - Where unacceptable risk applicant would interfere with witnesses - Bail Act 1977 (Vic) ss 4A(1), 4E.
CRIMINAL LAW - Application for bail - Charge of murder - Where the applicant is charged with dealing fatal blow in assault of worker - Whether exceptional circumstances exist that justify grant of bail - Where applicant has no prior criminal history - Where delay is not inordinate - Where triable issues but Crown case not weak - Where applicant submission of disproportionate financial hardship to family not supported by evidence - Where substantial surety offered - Exceptional circumstances not found - Where unacceptable risk applicant would interfere with witnesses - Bail Act 1977 (Vic) ss 4A(1), 4E.
CRIMINAL LAW - Application for bail - Applicant charged with offences including aggravated burglary and theft whilst on bail - Where applicant has history of aggravated burglary, theft and failure to answer bail offences - Whether exceptional circumstances exist that justify grant of bail - Where applicant is vulnerable and pregnant Aboriginal woman - Exceptional circumstances exist - Whether unacceptable risk that if granted bail may commit Schedule 1 or Schedule 2 offences or endanger safety or welfare of other persons - Where aggravated burglary does not involve allegations of violence - Where no history of physical violence - Where thefts may endanger safety and welfare of other persons notwithstanding lack of physical violence - Where triable issues - Where applicant has access to stable accommodation - Where applicant has access to culturally-appropriate prenatal treatment and drug and alcohol counselling - Where Court Integrated Services Program recommends the applicant for case management - Risk is acceptable with imposition of bail conditions - Bail Act 1977 (Vic) ss 3AAA, 4AA, 4A.
CRIMINAL LAW - Application for bail - Applicant charged with offences including aggravated burglary and theft whilst on bail - Where applicant has history of aggravated burglary, theft and failure to answer bail offences - Whether exceptional circumstances exist that justify grant of bail - Where applicant is vulnerable and pregnant Aboriginal woman - Exceptional circumstances exist - Whether unacceptable risk that if granted bail may commit Schedule 1 or Schedule 2 offences or endanger safety or welfare of other persons - Where aggravated burglary does not involve allegations of violence - Where no history of physical violence - Where thefts may endanger safety and welfare of other persons notwithstanding lack of physical violence - Where triable issues - Where applicant has access to stable accommodation - Where applicant has access to culturally-appropriate prenatal treatment and drug and alcohol counselling - Where Court Integrated Services Program recommends the applicant for case management - Risk is acceptable with imposition of bail conditions - Bail Act 1977 (Vic) ss 3AAA, 4AA, 4A.
CRIMINAL LAW - Bail - Applicant charged with trafficking in drug of dependence and other charges - Applicant accused of a Schedule 2 offence while subject to a summons to answer to a charge of another Schedule 2 offence - Requirement to show exceptional circumstances - Whether exceptional circumstances made out - Whether applicant an unacceptable risk - Bail granted - Bail Act 1977, ss 1B, 3AAA, 4AA, 4A, 4D and 4E.
CRIMINAL LAW - Bail - Applicant charged with trafficking in drug of dependence and other charges - Applicant accused of a Schedule 2 offence while subject to a summons to answer to a charge of another Schedule 2 offence - Requirement to show exceptional circumstances - Whether exceptional circumstances made out - Whether applicant an unacceptable risk - Bail granted - Bail Act 1977, ss 1B, 3AAA, 4AA, 4A, 4D and 4E.
CRIMINAL LAW - Sentence - Causing serious injury intentionally in circumstances of gross violence - Plea of guilty - Petrol thrown on the head and upper body of victim, who was then set alight with a jet lighter - Full thickness burns to head, neck, chest, and arms and to 30% of total body surface area - Claim of having acted out of fear rejected - Relevance of Bugmy and Verdins principles - Childhood disadvantage - Some reduction in moral culpability on account of general Bugmy principle, but moral culpability still high - Limb 5 of Verdins enlivened, to modest effect - Head sentence of 13 years' imprisonment, with non-parole period of 9 years.
CRIMINAL LAW - Sentence - Causing serious injury intentionally in circumstances of gross violence - Plea of guilty - Petrol thrown on the head and upper body of victim, who was then set alight with a jet lighter - Full thickness burns to head, neck, chest, and arms and to 30% of total body surface area - Claim of having acted out of fear rejected - Relevance of Bugmy and Verdins principles - Childhood disadvantage - Some reduction in moral culpability on account of general Bugmy principle, but moral culpability still high - Limb 5 of Verdins enlivened, to modest effect - Head sentence of 13 years' imprisonment, with non-parole period of 9 years.
CRIMINAL LAW - Murder - Accused stabbed a man outside house as victim was leaving property - Defence of mental impairment - Where accused has diagnosis of schizophrenia and was experiencing psychosis with delusional belief system that victim intended to harm accused - Where two psychiatrists opined accused could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong - Defence established - Accused declared liable to supervision - Matter adjourned so that necessary further examination, report and certificate of available services be obtained - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 20, 21, 23.
CRIMINAL LAW - Murder - Accused stabbed a man outside house as victim was leaving property - Defence of mental impairment - Where accused has diagnosis of schizophrenia and was experiencing psychosis with delusional belief system that victim intended to harm accused - Where two psychiatrists opined accused could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong - Defence established - Accused declared liable to supervision - Matter adjourned so that necessary further examination, report and certificate of available services be obtained - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 20, 21, 23.
BIRTHS, DEATHS AND MARRIAGES REGISTRATION - Application for an approval of a proposed change of name of a child - Mother seeking change of name - Objection by the father to surname - Whether a change of name is in the best interests of the child.
BIRTHS, DEATHS AND MARRIAGES REGISTRATION - Application for an approval of a proposed change of name of a child - Mother seeking change of name - Objection by the father to surname - Whether a change of name is in the best interests of the child.