APPEAL - Criminal Procedure Act 2009, s 272 - Question of law - Whether Magistrate found applicant guilty of refusing to provide a sample of oral fluid or refusing to accompany - Whether Magistrate conflated refusing to provide a sample and refusing to accompany - Whether judge correct to conclude evidence was capable of proving elements of offence - Evidence not capable of proving elements of offence - Leave to appeal granted - Appeal allowed - Judge's orders set aside - Magistrate's order quashed.
APPEAL - Criminal Procedure Act 2009, s 272 - Question of law - Whether Magistrate found applicant guilty of refusing to provide a sample of oral fluid or refusing to accompany - Whether Magistrate conflated refusing to provide a sample and refusing to accompany - Whether judge correct to conclude evidence was capable of proving elements of offence - Evidence not capable of proving elements of offence - Leave to appeal granted - Appeal allowed - Judge's orders set aside - Magistrate's order quashed.
Criminal Procedure Act 2009, s 272; Evidence Act 2008, s 65; Road Safety Act 1986, ss 49(1)(eb), 55E(2).
Hrysikos v Mansfield (2002) 5 VR 485; Muscat v Magistrates' Court of Victoria (2018) 59 VR 570, considered - GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; Moore (a pseudonym) v The King (2024) 419 ALR 169, applied.
ADMINISTRATIVE LAW - Effect of order dismissing proceeding under s 78(2)(b)(i) of the Victorian Civil and Administrative Tribunal Act 1998 - Order sought by respondent/applicant by counterclaim in domestic building dispute - Conduct of applicant disadvantageous and prejudicial to respondent/applicant by counterclaim - Order found to have intended to dismiss both claim and counterclaim in proceeding - Victorian Civil and Administrative Tribunal Act 1998, ss 78(2)(b)(i), 120.
ADMINISTRATIVE LAW - Effect of order dismissing proceeding under s 78(2)(b)(i) of the Victorian Civil and Administrative Tribunal Act 1998 - Order sought by respondent/applicant by counterclaim in domestic building dispute - Conduct of applicant disadvantageous and prejudicial to respondent/applicant by counterclaim - Order found to have intended to dismiss both claim and counterclaim in proceeding - Victorian Civil and Administrative Tribunal Act 1998, ss 78(2)(b)(i), 120.
STATUTORY INTERPRETATION - Scope of power and meaning of 'proceeding' in s 78 of the Victorian Civil and Administrative Tribunal Act 1998 - Legislative intention to establish Tribunal as flexible, low-cost and informal forum to achieve just result in most efficient way - Purpose of provision to enable appropriate response to disadvantageous conduct by one party - Broad and flexible construction preferred - Victorian Civil and Administrative Tribunal Act 1998, s 78(2) - ACN 115 918 959 Pty Ltd (formerly known as Pearl Hill Pty Ltd) v Moulieris [2022] VSC 555; ACN 115 918 959 Pty Ltd (formerly known as Pearl Hill Pty Ltd) v Moulieris [2024] VSCA 71, considered.
ADMINISTRATIVE LAW - Whether appeal available from Tribunal reasons - No evidence of legislative intent to provide appeal from Tribunal's reasons for order - No appeal lies from Tribunal's reasons - Victorian Civil and Administrative Tribunal Act 1998, ss 117(6), 148(1) - Marke v Victoria Police [2021] VSC 483; Goodrich v Racing Victoria Racing Appeals and Disciplinary Board [2019] VSC 248; O'Bryan v Lindholm (2024) 74 VR 496, considered.
CONTRACTS - Construction - Objective intention of parties - Reasonable businessperson - Uncommercial outcome - Where parties entered into share sale agreement - Applicant agreed to buy shares held by respondent owning copper mine - As a result applicant held all shares in entity owning copper mine - Where share sale agreement required applicant to make upfront and earnout payments - Earnout payment conditional on aggregate of all cash returns payable to investors in applicant - Parties entered into share mortgage to secure applicant's obligations under share sale agreement - Applicant sold all shares to third respondent - Third respondent also held other mining assets - Third respondent sold shares in initial public offering and issued shares to applicant - Sellers purported to appoint receivers over applicant's shares in third respondent - Whether earnout payment depended on cash returns relating to broader group of investors in applicant - Whether terms of share mortgage required earnout payment to be paid into escrow at the time of the initial public offering - Leave to appeal granted - Appeal allowed.
CONTRACTS - Construction - Objective intention of parties - Reasonable businessperson - Uncommercial outcome - Where parties entered into share sale agreement - Applicant agreed to buy shares held by respondent owning copper mine - As a result applicant held all shares in entity owning copper mine - Where share sale agreement required applicant to make upfront and earnout payments - Earnout payment conditional on aggregate of all cash returns payable to investors in applicant - Parties entered into share mortgage to secure applicant's obligations under share sale agreement - Applicant sold all shares to third respondent - Third respondent also held other mining assets - Third respondent sold shares in initial public offering and issued shares to applicant - Sellers purported to appoint receivers over applicant's shares in third respondent - Whether earnout payment depended on cash returns relating to broader group of investors in applicant - Whether terms of share mortgage required earnout payment to be paid into escrow at the time of the initial public offering - Leave to appeal granted - Appeal allowed.
CONTRACTS - Construction - Extrinsic evidence - Where clause of share sale agreement providing for payment drafted in ambiguous terms - Where share mortgage provided for share sale agreement payments into escrow - Whether drafting history relevant to interpreting share sale agreement and share mortgage - Where definitions adopted in earlier drafts rejected in later drafts - Whether terms sheet setting out early in-principle agreement relevant to interpreting agreements.
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; Cherry v Steele- Park (2017) 96 NSWLR 548; Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522; SAS (Vic) Pty Ltd v Urban Ecological Systems Ltd [2021] VSCA 335, applied.
MCA International BV v Northern Star Holdings Ltd (Receivers and Managers Appointed) (1991) 4 ACSR 719; Esso Australia Ltd v Australian Petroleum Agents' & Distributors' Association [1999] 3 VR 642; Lodge Partners Pty Ltd v Pegum [2009] FCA 519, applied.
PRACTICE AND PROCEDURE - Application for leave to appeal interlocutory ruling - Trial judge refused application to vacate trial date - Application brought after final directions - Where application sought orders to join second plaintiff to proceeding and substantially amend statement of claim - Trial imminent - Application for leave to appeal refused - Civil Procedure Act 2010, s 26 - Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175; Pope v Madsen [2016] 1 Qd R 201, considered.
PRACTICE AND PROCEDURE - Application for leave to appeal interlocutory ruling - Trial judge refused application to vacate trial date - Application brought after final directions - Where application sought orders to join second plaintiff to proceeding and substantially amend statement of claim - Trial imminent - Application for leave to appeal refused - Civil Procedure Act 2010, s 26 - Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175; Pope v Madsen [2016] 1 Qd R 201, considered.
PRACTICE AND PROCEDURE - Applications for leave to intervene in proceeding - Applicants failed to file submissions that they proposed to make if application to intervene granted - Court not satisfied that applicants' contributions would assist in resolution of issues to be determined on appeal - Court not satisfied that participation of intervenors would not unreasonably interfere with conduct of proceeding - Applications for leave to intervene refused.
PRACTICE AND PROCEDURE - Applications for leave to intervene in proceeding - Applicants failed to file submissions that they proposed to make if application to intervene granted - Court not satisfied that applicants' contributions would assist in resolution of issues to be determined on appeal - Court not satisfied that participation of intervenors would not unreasonably interfere with conduct of proceeding - Applications for leave to intervene refused.
Supreme Court (General Civil Procedure) Rules 2015, r 64.10.
PRACTICE AND PROCEDURE - Filing - Power to direct Registrar to accept documents for filing - Registrar refused to accept documents for filing - Applicant sought review of Registrar's decision and judicial direction to Registrar to accept documents for filing - Documents were applications other than for leave to appeal - Documents mostly sought orders that the Court would not make - Documents mostly irregular, and/or frivolous or vexatious, and/or would give rise to abuse of process - Application for direction refused for most documents - Application for direction allowed in respect of two documents.
PRACTICE AND PROCEDURE - Filing - Power to direct Registrar to accept documents for filing - Registrar refused to accept documents for filing - Applicant sought review of Registrar's decision and judicial direction to Registrar to accept documents for filing - Documents were applications other than for leave to appeal - Documents mostly sought orders that the Court would not make - Documents mostly irregular, and/or frivolous or vexatious, and/or would give rise to abuse of process - Application for direction refused for most documents - Application for direction allowed in respect of two documents.
Supreme Court (General Civil Procedure) Rules 2015, rr 64.13, 64.43.
CRIMINAL LAW - Appeal - Conviction - Incest and other sexual offending against step-daughters and another child under 16 - Prosecution failed to obtain alleged post-offence call charge records of communications between the applicant and step-daughters - Whether duty of disclosure required prosecution to obtain the records for applicant's benefit - No duty on prosecution to obtain evidence not in its possession - Whether informant capable of being cross-examined on call charge records - Document not the informant's so cross-examination not permitted - Prosecution did not call stepson to give evidence or obtain a statement - Whether trial judge obliged to give a direction under s 43 of the Jury Direction Act 2015 - No direction required - Whether generality of tendency evidence deprived it of significant probative value - Tendency evidence admissible - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Incest and other sexual offending against step-daughters and another child under 16 - Prosecution failed to obtain alleged post-offence call charge records of communications between the applicant and step-daughters - Whether duty of disclosure required prosecution to obtain the records for applicant's benefit - No duty on prosecution to obtain evidence not in its possession - Whether informant capable of being cross-examined on call charge records - Document not the informant's so cross-examination not permitted - Prosecution did not call stepson to give evidence or obtain a statement - Whether trial judge obliged to give a direction under s 43 of the Jury Direction Act 2015 - No direction required - Whether generality of tendency evidence deprived it of significant probative value - Tendency evidence admissible - Leave to appeal refused.
Ho v The King [2023] NSWCCA 245; AJ v The Queen (2011) 32 VR 614 applied. Solis (a pseudonym) v The Queen [2018] VSCA 275 considered; Hughes v The Queen (2017) 263 CLR 338; R v Bauer (a pseudonym) (2018) 266 CLR 56 applied.
CRIMINAL LAW - Appeal - Sentence - Incest and other sexual offending against child under 16 - Whether orders for cumulation offended against principle of totality - Whether sentence manifestly excessive - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Respondent convicted of 13 charges of grooming a person to procure a child to engage in sexual activity outside Australia, 4 charges of procuring a child to engage in sexual activity outside Australia, 8 charges of using carriage service to solicit and transmit child abuse materials, 2 charges of possessing child abuse material obtained using a carriage service and 2 related summary bail offences - Sentenced to total effective sentence of 3 years and 10 months' imprisonment with non-parole period of 2 years and 8 months' imprisonment - Whether individual and aggregate sentences manifestly inadequate - Whether total effective sentence and non-parole period manifestly inadequate - Whether Verdins limbs 1-3 applicable - Whether respondent could identify children he sought to procure for sexual activity - High gravity of offending - Aggregate and individual sentences fail to reflect overall criminality - No basis to find respondent diagnosed with paedophilic disorder - Error to reduce moral culpability because of paedophilic disorder - No basis to extend mercy - Aggregate and individual sentences manifestly inadequate - Total effective sentence and non-parole period manifestly inadequate - Appeal allowed - Respondent resentenced to total effective sentence of 7 years 6 months' imprisonment.
CRIMINAL LAW - Appeal - Sentence - Respondent convicted of 13 charges of grooming a person to procure a child to engage in sexual activity outside Australia, 4 charges of procuring a child to engage in sexual activity outside Australia, 8 charges of using carriage service to solicit and transmit child abuse materials, 2 charges of possessing child abuse material obtained using a carriage service and 2 related summary bail offences - Sentenced to total effective sentence of 3 years and 10 months' imprisonment with non-parole period of 2 years and 8 months' imprisonment - Whether individual and aggregate sentences manifestly inadequate - Whether total effective sentence and non-parole period manifestly inadequate - Whether Verdins limbs 1-3 applicable - Whether respondent could identify children he sought to procure for sexual activity - High gravity of offending - Aggregate and individual sentences fail to reflect overall criminality - No basis to find respondent diagnosed with paedophilic disorder - Error to reduce moral culpability because of paedophilic disorder - No basis to extend mercy - Aggregate and individual sentences manifestly inadequate - Total effective sentence and non-parole period manifestly inadequate - Appeal allowed - Respondent resentenced to total effective sentence of 7 years 6 months' imprisonment.
Criminal Code Act 1995 (Cth) ss 272.14(1), 272.15A(1), 272.30(1)(b), 474.22(1), 474.22A(1), sch 1; Crimes Act 1914 (Cth), ss 16B; Criminal Procedure Act 2009, s 287.
DPP v Karazisis (2010) 31 VR 634; R v Gajjar (2008) 192 A Crim R 76, followed.
Verdins v The Queen (2007) 16 VR 269; Brown v The Queen (2020) 62 VR 491; Ryan v The Queen (2001) 206 CLR 267, discussed.
Dinsdale v The Queen (2000) 202 CLR 321; DPP (Cth) v Hizhnikov (2008) 192 A Crim R 69; DPP (Cth) v Walls [2014] VSCA 323; DPP v EB (2008) 186 A Crim R 314; DPP v Snow (a pseudonym) [2020] VSCA 67; DPP v Frewstal Pty Ltd (2015) 47 VR 660; Guode v The Queen [2020] VSCA 257; Leimonitis v The Queen [2018] VSCA 198; R v Major (1998) 70 SASR 488; The State of Western Australia v Collier (2007) 178 A Crim R 310, referred to.
CRIMINAL LAW - Appeal - Conviction - Sexual assault of child aged 16 or 17 under care, supervision or authority - Sexual penetration of a stepchild - Use of carriage service to cause offence - Whether jury verdicts inconsistent - Different verdicts explicable by inconsistencies and uncertainties in complainant's evidence attributable to intellectual deficits - Complainant's evidence less reliable and plausible in respect of some charges - Verdicts do not represent an affront to logic and commonsense - Whether judge erred in admitting Facebook messages as tendency evidence - Facebook messages support proof of tendency to have sexual interest in complainant and to act on that sexual interest - Facebook messages make it more likely that charged offences took place - Probative value of Facebook messages substantially outweigh prejudicial effect - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Sexual assault of child aged 16 or 17 under care, supervision or authority - Sexual penetration of a stepchild - Use of carriage service to cause offence - Whether jury verdicts inconsistent - Different verdicts explicable by inconsistencies and uncertainties in complainant's evidence attributable to intellectual deficits - Complainant's evidence less reliable and plausible in respect of some charges - Verdicts do not represent an affront to logic and commonsense - Whether judge erred in admitting Facebook messages as tendency evidence - Facebook messages support proof of tendency to have sexual interest in complainant and to act on that sexual interest - Facebook messages make it more likely that charged offences took place - Probative value of Facebook messages substantially outweigh prejudicial effect - Leave to appeal refused.
Evidence Act 2008, ss 97(1), 101(2).
MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; Erikson v The Queen [2021] VSCA 234; Hughes v The Queen (2017) 263 CLR 338, considered.
CRIMINAL LAW - Appeal - Substantial miscarriage of justice - Prosecution's pre-trial disclosure obligations - Where applicant found guilty of sexual offending against child - Where complainant's mother gave evidence as witness for the prosecution - Where witness's credibility a key issue at trial - Prosecution failed to disclose witness's previous complaints to police regarding the applicant - Material indicated witness previously made false criminal allegations against applicant - Where undisclosed material would have been admissible as credibility evidence - Where applicant denied the opportunity to impugn witness's credit by reference to undisclosed material - Leave to appeal allowed - Appeal allowed and retrial ordered.
CRIMINAL LAW - Appeal - Substantial miscarriage of justice - Prosecution's pre-trial disclosure obligations - Where applicant found guilty of sexual offending against child - Where complainant's mother gave evidence as witness for the prosecution - Where witness's credibility a key issue at trial - Prosecution failed to disclose witness's previous complaints to police regarding the applicant - Material indicated witness previously made false criminal allegations against applicant - Where undisclosed material would have been admissible as credibility evidence - Where applicant denied the opportunity to impugn witness's credit by reference to undisclosed material - Leave to appeal allowed - Appeal allowed and retrial ordered.
Criminal Procedure Act 2009, s 276(1)(b); Evidence Act 2008, ss 102, 103, 106.
Roberts v The Queen [2020] VSCA 277; Mallard v The Queen [2005] HCA 68; Cannon v Tahche [2002] VSCA 84; Nguyen v The Queen [2020] HCA 23; AJ v The Queen [2011] VSCA 215; Brawn v The King [2025] HCA 20, applied.
CRIMINAL LAW - Appeal - Sentence - Recklessly causing injury, false imprisonment and robbery - Victim transgender sex worker - Unprovoked attack - Aggregate sentence of two years' imprisonment with conditioned community correction order of two years' duration - Whether the sentencing judge gave insufficient weight to Bugmy principles - Whether sentence manifestly excessive - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Recklessly causing injury, false imprisonment and robbery - Victim transgender sex worker - Unprovoked attack - Aggregate sentence of two years' imprisonment with conditioned community correction order of two years' duration - Whether the sentencing judge gave insufficient weight to Bugmy principles - Whether sentence manifestly excessive - Leave to appeal refused.
Bugmy v The Queen (2013) 249 CLR 571; DPP v Herrmann (2021) 290 A Crim R 110 considered.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Respondent convicted of aggravated burglary, contravention of family violence intervention order and summary offences - Whether individual sentence for aggravated burglary inadequate - Whether total effective sentence inadequate - High gravity of offending against former partner - Where respondent did not take prescribed medicine and consumed alcohol - Previous offending under similar circumstances - Whether Verdins limbs 3 and 4 apply - Sentence on aggravated burglary manifestly inadequate - Total effective sentence manifestly inadequate - Appeal allowed - Respondent resentenced.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Respondent convicted of aggravated burglary, contravention of family violence intervention order and summary offences - Whether individual sentence for aggravated burglary inadequate - Whether total effective sentence inadequate - High gravity of offending against former partner - Where respondent did not take prescribed medicine and consumed alcohol - Previous offending under similar circumstances - Whether Verdins limbs 3 and 4 apply - Sentence on aggravated burglary manifestly inadequate - Total effective sentence manifestly inadequate - Appeal allowed - Respondent resentenced.
Crimes Act 1958; Criminal Procedure Act 2009, s 287.
DPP v Karazisis (2010) 31 VR 634, followed.
Dinsdale v The Queen (2000) 202 CLR 321; DPP v Meyers (2014) 44 VR 486; Leimonitis v The Queen [2018] VSCA 198; Skeates (a pseudonym) v The King [2023] VSCA 226, referred to.
CRIMINAL LAW - Appeal - Conviction - Rape - Whether verdict of the jury unreasonable or cannot be supported having regard to the evidence - Open to the jury to accept evidence of contemporaneous complaint supporting complainant - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Rape - Whether verdict of the jury unreasonable or cannot be supported having regard to the evidence - Open to the jury to accept evidence of contemporaneous complaint supporting complainant - Leave to appeal refused.
CRIMINAL LAW - Interlocutory appeal - Review of refusal to certify - Historical sexual offences - Five complainants were students at school where applicant was teacher - Delay of 36 to 46 years since alleged offending - Witnesses deceased - Documentary evidence lost - Evidence - Trial judge refused permanent stay - Trial judge refused to certify for interlocutory appeal - Leave to appeal granted - Appeal allowed - Permanent stay ordered.
CRIMINAL LAW - Interlocutory appeal - Review of refusal to certify - Historical sexual offences - Five complainants were students at school where applicant was teacher - Delay of 36 to 46 years since alleged offending - Witnesses deceased - Documentary evidence lost - Evidence - Trial judge refused permanent stay - Trial judge refused to certify for interlocutory appeal - Leave to appeal granted - Appeal allowed - Permanent stay ordered.
Criminal Procedure Act 2009, ss 295, 296.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURUSANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURUSANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
CRIMINAL LAW - Appeal - Sentence - Applicant convicted of child sex offences and child abuse material offence - Sexual penetration of child under 12 not established on complainant's evidence - Applicant admitted to sexual penetration in police interview - Whether sentence is manifestly excessive- Whether disclosure of offending given sufficient weight - Appropriate weight given to Doran discount - Principle of totality correctly applied - Order of cumulation well within range - Leave to appeal refused.
R v CLP [2008] VSCA 113; Doran v The Queen [2005] VSCA 271; DPC v The Queen [2011] VSCA 395; JBM v The Queen [2013] VSCA 69, discussed.
Goh v The Queen [2022] VSCA 24; Mush v The Queen [2019] VSCA 307; Ryan v The Queen (2001) CLR 267, referred to.
CRIMINAL LAW - Sentence - Application for leave to appeal - Recklessly causing serious injury - Applicant headbutted, punched, kneed and elbowed victim at nightclub - Applicant had previous martial arts training - Whether judge erred in placing weight on martial arts training - Whether martial arts training aggravating factor - No procedural unfairness - Martial arts training a relevant factor in sentencing - Leave to appeal refused.
CRIMINAL LAW - Sentence - Application for leave to appeal - Recklessly causing serious injury - Applicant headbutted, punched, kneed and elbowed victim at nightclub - Applicant had previous martial arts training - Whether judge erred in placing weight on martial arts training - Whether martial arts training aggravating factor - No procedural unfairness - Martial arts training a relevant factor in sentencing - Leave to appeal refused.
Elsayed v The Queen [2019] VSCA 113, referred to.
CRIMINAL LAW - Appeal - Conviction - Rape (8 charges), common assault (1 charge) - Relationship evidence - Other misconduct evidence - Whether prosecutor's address invited jury to engage in tendency reasoning - Whether judge's charge invited jury to engage in tendency reasoning, or did not adequately protect against risk jury might engage in tendency reasoning - Whether prosecutor reversed onus of proof - Whether judge's failure to give a direction required by s 27(2)(a) of Jury Directions Act 2015 gave rise to substantial miscarriage of justice - Appeal allowed - Retrial ordered.
CRIMINAL LAW - Appeal - Conviction - Rape (8 charges), common assault (1 charge) - Relationship evidence - Other misconduct evidence - Whether prosecutor's address invited jury to engage in tendency reasoning - Whether judge's charge invited jury to engage in tendency reasoning, or did not adequately protect against risk jury might engage in tendency reasoning - Whether prosecutor reversed onus of proof - Whether judge's failure to give a direction required by s 27(2)(a) of Jury Directions Act 2015 gave rise to substantial miscarriage of justice - Appeal allowed - Retrial ordered.
Jury Directions Act 2015, ss 12, 27 and 29.
LIMITATION OF ACTIONS - Transport accident - Application to extend time within which to commence proceeding under s 23A of the Limitation of Actions Act 1958 (Vic) - Reasonableness and credibility of the plaintiff's explanation for failing to issue the proceeding within the limitation period - Assessment of adequacy of explanation must take into account applicant's personal attributes and circumstances - Prejudice to the defendant resulting from delay - Griffiths v Nillumbik Shire Council [2022] VSCA 212, Prince Alfred College Incorporated v ADC (2016) 258 CLR 134 and Hunt v Holcombe [2018] VSCA 248 referred to - Just and reasonable in the circumstances to extend the limitation period - Application granted.
LIMITATION OF ACTIONS - Transport accident - Application to extend time within which to commence proceeding under s 23A of the Limitation of Actions Act 1958 (Vic) - Reasonableness and credibility of the plaintiff's explanation for failing to issue the proceeding within the limitation period - Assessment of adequacy of explanation must take into account applicant's personal attributes and circumstances - Prejudice to the defendant resulting from delay - Griffiths v Nillumbik Shire Council [2022] VSCA 212, Prince Alfred College Incorporated v ADC (2016) 258 CLR 134 and Hunt v Holcombe [2018] VSCA 248 referred to - Just and reasonable in the circumstances to extend the limitation period - Application granted.
PROPERTY LAW - Equitable estoppel - Whether plaintiff has an equitable interest in the family home - Whether clear and unequivocal promise - Whether mortgage payments made in reliance on a promise - Whether plaintiff acted to her detriment- Kramer v Stone (2024) 421 ALR 106.
PROPERTY LAW - Equitable estoppel - Whether plaintiff has an equitable interest in the family home - Whether clear and unequivocal promise - Whether mortgage payments made in reliance on a promise - Whether plaintiff acted to her detriment- Kramer v Stone (2024) 421 ALR 106.
BAILMENT - Whether breach of bailment by non-delivery or delivery in a damaged condition - Whether goods abandoned - Banks v Ferrari [2000] NSWSC 874.
EQUITY - Bank transactions made by daughter using elderly mother's funds - Whether fiduciary relationship in existence - Scope of fiduciary relationship - Whether duty to account - Evidentiary onus of proof - Whether breach of fiduciary duty - Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 - Breen v Williams (1996) 186 CLR 71 - Hrycenko v Hrycenko [2019] VSC 700.
LIMITATION OF ACTIONS - Alleged assault in context of family violence - Claim brought 12 years after alleged assault - Nature of injury suffered - Whether just and reasonable to extend limitation period - Limitation of Actions Act 1958 s 27K.
OPEN COURTS - Parens patriae jurisdiction - Child in the care of the Secretary to the Department of Families, Fairness and Housing - Housed in secure welfare service - Application for further hearings to be conducted in closed court - Inherent jurisdiction - Open Courts Act 2013 (Vic), ss 28, 29 - Application dismissed.
OPEN COURTS - Parens patriae jurisdiction - Child in the care of the Secretary to the Department of Families, Fairness and Housing - Housed in secure welfare service - Application for further hearings to be conducted in closed court - Inherent jurisdiction - Open Courts Act 2013 (Vic), ss 28, 29 - Application dismissed.
ADMINISTRATION AND PROBATE - Application for declaration of relationship between a person and a child and to direct the correction of a birth record - Status of Children Act 1974 (Vic), s 10 - Births, Deaths and Marriages Registration Act 1996 (Vic), s 43 - Standard of proof - Reliance on circumstantial evidence to establish relationship - Release from implied undertaking to rely on affidavit adduced in another proceeding - Reliance on hearsay evidence - Absence of DNA evidence.
ADMINISTRATION AND PROBATE - Application for declaration of relationship between a person and a child and to direct the correction of a birth record - Status of Children Act 1974 (Vic), s 10 - Births, Deaths and Marriages Registration Act 1996 (Vic), s 43 - Standard of proof - Reliance on circumstantial evidence to establish relationship - Release from implied undertaking to rely on affidavit adduced in another proceeding - Reliance on hearsay evidence - Absence of DNA evidence.
CIVIL PROCEDURE - Application by second defendant for summary judgment pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (Vic) - Whether the claim enjoys real prospect of success - Application dismissed - Plaintiff's claim enjoys a real prospect of success and raises factual disputes that should be examined and determined at trial.
CIVIL PROCEDURE - Application by second defendant for summary judgment pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (Vic) - Whether the claim enjoys real prospect of success - Application dismissed - Plaintiff's claim enjoys a real prospect of success and raises factual disputes that should be examined and determined at trial.
EQUITY AND TRUSTS - Liability of third party for procuring or inducing breach of trust or breach of fiduciary duty - Whether such liability exists as a separate form of liability to those established by the two limbs in Barnes v Addy (1874) LR 9 Ch App 244 - Whether requirement that third party be 'dishonest'.
LITIGATION GUARDIAN - Removal of litigation guardian under r 15.03(4)(a) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Conflict of interest - Where a defendant is litigation guardian of another defendant in proceeding.
CIVIL PROCEDURE - Application for use of single joint expert - Operation of s 65L of the Civil Procedure Act 2010 (Vic) - Appointment of joint expert to produce common data for analysis by parties' individual experts - Whether a joint expert is required to be engaged by all parties - Applicability of noise evidence to loss and damage arguments in claims other than nuisance - Whether all parties should share the cost of a single joint expert process if not all parties intend to make use of it - Utility of joint expert process where it binds all parties - Efficiencies and savings in the proceeding overall outweighing prejudice arising - All parties required to engage a single joint expert.
CIVIL PROCEDURE - Application for use of single joint expert - Operation of s 65L of the Civil Procedure Act 2010 (Vic) - Appointment of joint expert to produce common data for analysis by parties' individual experts - Whether a joint expert is required to be engaged by all parties - Applicability of noise evidence to loss and damage arguments in claims other than nuisance - Whether all parties should share the cost of a single joint expert process if not all parties intend to make use of it - Utility of joint expert process where it binds all parties - Efficiencies and savings in the proceeding overall outweighing prejudice arising - All parties required to engage a single joint expert.
COSTS - Hearing of preliminary questions - Where preliminary questions relate to issues squarely put by the second defendant - Where two questions answered in the plaintiff's favour, but unnecessary to determine third question - Whether costs payable to plaintiff should be reduced by costs incurred on third question where those costs would not have been incurred in any event in relation to the first two questions - Second defendant to pay 80% of the plaintiff's costs and to pay third defendant's costs - First defendant to bear own costs - Third defendant removed - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 63.04.
COSTS - Hearing of preliminary questions - Where preliminary questions relate to issues squarely put by the second defendant - Where two questions answered in the plaintiff's favour, but unnecessary to determine third question - Whether costs payable to plaintiff should be reduced by costs incurred on third question where those costs would not have been incurred in any event in relation to the first two questions - Second defendant to pay 80% of the plaintiff's costs and to pay third defendant's costs - First defendant to bear own costs - Third defendant removed - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 63.04.
COSTS - Offer of Compromise - Costs consequences of Offer of Compromise - Whether unreasonable for plaintiff to have refused defendants' offer - Whether Court should order otherwise than in accordance with the rules - Supreme Court (General Civil Procedure) Rules 2015 (Vic), Order 26.
COSTS - Offer of Compromise - Costs consequences of Offer of Compromise - Whether unreasonable for plaintiff to have refused defendants' offer - Whether Court should order otherwise than in accordance with the rules - Supreme Court (General Civil Procedure) Rules 2015 (Vic), Order 26.
COSTS - Self-represented litigant - Where appellant successful on appeal but rejected respondent's earlier Calderbank offer - Refusal of offer was unreasonable in the circumstances - Supreme Court Act 1986 s 24 - No order as to costs of appeal.
COSTS - Self-represented litigant - Where appellant successful on appeal but rejected respondent's earlier Calderbank offer - Refusal of offer was unreasonable in the circumstances - Supreme Court Act 1986 s 24 - No order as to costs of appeal.
APPEAL - Appeal from decision of Associate Judge to refuse defendants' application to summarily dismiss or permanently stay proceeding on grounds that it is an abuse of process - Proceeding is an attempt to re-litigate claims that were or should have been made in previous proceeding which were dismissed by consent - Proceeding is unjustifiably oppressive to defendants - Proceeding likely to undermine finality of litigation and give rise to adverse perception of administration of justice - UBS AG v Tyne (2018) 265 CLR 77 - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 23.01(1)(b) - Appeal allowed.
APPEAL - Appeal from decision of Associate Judge to refuse defendants' application to summarily dismiss or permanently stay proceeding on grounds that it is an abuse of process - Proceeding is an attempt to re-litigate claims that were or should have been made in previous proceeding which were dismissed by consent - Proceeding is unjustifiably oppressive to defendants - Proceeding likely to undermine finality of litigation and give rise to adverse perception of administration of justice - UBS AG v Tyne (2018) 265 CLR 77 - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 23.01(1)(b) - Appeal allowed.
APPEAL - Appeal from Victorian Civil and Administrative Tribunal - Building dispute - Tribunal allowed the respondent to file amended points of claim - Identical application had been previously refused - Whether the Tribunal applied the wrong test - Overriding principle what is in the interests of justice - No error of law - Whether proposed amendments futile because statute barred - Not a 'clear case' where limitation issues should be determined before final hearing - Whether Tribunal decision legally unreasonable - Tribunal decision not unreasonable - Leave to appeal granted - Appeal dismissed - DA Christie Pty Ltd v Baker [1996] 2 VR 582; Nominal Defendant v Manning (2000) 50 NSWLR 139 considered; Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2006] VSC 170; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 applied.
APPEAL - Appeal from Victorian Civil and Administrative Tribunal - Building dispute - Tribunal allowed the respondent to file amended points of claim - Identical application had been previously refused - Whether the Tribunal applied the wrong test - Overriding principle what is in the interests of justice - No error of law - Whether proposed amendments futile because statute barred - Not a 'clear case' where limitation issues should be determined before final hearing - Whether Tribunal decision legally unreasonable - Tribunal decision not unreasonable - Leave to appeal granted - Appeal dismissed - DA Christie Pty Ltd v Baker [1996] 2 VR 582; Nominal Defendant v Manning (2000) 50 NSWLR 139 considered; Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2006] VSC 170; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 applied.
ADMINISTRATIVE LAW - Judicial Review - Application for extension of time to apply for leave to appeal pursuant to section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Landlord and tenant - Litigants in person - Non-payment of rent - No reasonable excuse for not attending earlier hearing - Decision not to re-open earlier order under section 120 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Warrant of possession over tenant's property - Appeal out of time - No evidence providing explanation for delay - No prospect of success on appeal - No error of law established - Application of extension of time refused - Leave to appeal refused.
ADMINISTRATIVE LAW - Judicial Review - Application for extension of time to apply for leave to appeal pursuant to section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Landlord and tenant - Litigants in person - Non-payment of rent - No reasonable excuse for not attending earlier hearing - Decision not to re-open earlier order under section 120 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Warrant of possession over tenant's property - Appeal out of time - No evidence providing explanation for delay - No prospect of success on appeal - No error of law established - Application of extension of time refused - Leave to appeal refused.
APPEALS - Plaintiff applied for declaratory relief - 'Sole proprietor', 'paralegal service' and 'self-agency' - Application heard by an Associate Justice and dismissed - Appeal by way of rehearing - Grounds of appeal - Whether error shown - General principles and considerations of policy in respect of unrepresented litigants and costs - Relevant principles of contract and agency - Whether application for declaratory relief correctly refused - Form of declaration sought - Form and sufficiency of evidence - Practically hypothetical and advisory nature of the entire exercise - Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 77.06 - Kennedy v De Trafford [1897] AC 180; Petersen v Moloney (1951) 84 CLR 91; Rowley, Holmes & Co v Barber [1977] 1 WLR 371; Cachia v Hanes (1991) 23 NSWLR 304; Cachia v Hanes (1994) 179 CLR 403; Step v Northern Territory of Australia (2007) 20 NTLR 141; Leximed Pty Ltd v Morgan [2016] 2 Qd R 442 considered - Appeal dismissed.
APPEALS - Plaintiff applied for declaratory relief - 'Sole proprietor', 'paralegal service' and 'self-agency' - Application heard by an Associate Justice and dismissed - Appeal by way of rehearing - Grounds of appeal - Whether error shown - General principles and considerations of policy in respect of unrepresented litigants and costs - Relevant principles of contract and agency - Whether application for declaratory relief correctly refused - Form of declaration sought - Form and sufficiency of evidence - Practically hypothetical and advisory nature of the entire exercise - Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 77.06 - Kennedy v De Trafford [1897] AC 180; Petersen v Moloney (1951) 84 CLR 91; Rowley, Holmes & Co v Barber [1977] 1 WLR 371; Cachia v Hanes (1991) 23 NSWLR 304; Cachia v Hanes (1994) 179 CLR 403; Step v Northern Territory of Australia (2007) 20 NTLR 141; Leximed Pty Ltd v Morgan [2016] 2 Qd R 442 considered - Appeal dismissed.
EQUITY - Priority dispute between equitable interests of the plaintiff and defendant in the surplus proceeds of sale of a property - Failure of plaintiff to register mortgage or lodge a caveat - Subsequent equitable interest created by a charge over the property by defendant - Whether the presumption that the first in time interest holder has priority over later interest holders has been displaced - Mimi v Millenium Developments Pty Ltd [2003] VSC 260, Jacobs v Platt Nominees Pty Ltd [1990] VR 146 and Double Bay Newspapers Pty Ltd v AW Holdings Pty Ltd (1996) 42 NSWLR 409 referred to - Plaintiff's failure to register mortgage or lodge a caveat contributed to detriment suffered by the defendant and amounted to postponing conduct - Plaintiff's earlier equitable interest postponed to defendant's later equitable interest.
EQUITY - Priority dispute between equitable interests of the plaintiff and defendant in the surplus proceeds of sale of a property - Failure of plaintiff to register mortgage or lodge a caveat - Subsequent equitable interest created by a charge over the property by defendant - Whether the presumption that the first in time interest holder has priority over later interest holders has been displaced - Mimi v Millenium Developments Pty Ltd [2003] VSC 260, Jacobs v Platt Nominees Pty Ltd [1990] VR 146 and Double Bay Newspapers Pty Ltd v AW Holdings Pty Ltd (1996) 42 NSWLR 409 referred to - Plaintiff's failure to register mortgage or lodge a caveat contributed to detriment suffered by the defendant and amounted to postponing conduct - Plaintiff's earlier equitable interest postponed to defendant's later equitable interest.
TORTS - Nuisance - Continuous unreasonable noise by neighbour - Whether substantial and unreasonable interference with landlord's use and enjoyment of land - Entitlement of neighbour to commit nuisance to obtain redress - Reversioner's interest - Whether damage to reversion - Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145 - Jeffrey v Honig [1999] VSC 337 - Ehmler & Anor v Hall [1993] 1 EGLR 137 - Irontrain Investments Ltd v Ansari (Salim) [2005] EWCA Civ 1681 - Bell v The Midland Railway Co (1861) 10 CB (NS) 287; 142 ER 462.
TORTS - Nuisance - Continuous unreasonable noise by neighbour - Whether substantial and unreasonable interference with landlord's use and enjoyment of land - Entitlement of neighbour to commit nuisance to obtain redress - Reversioner's interest - Whether damage to reversion - Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145 - Jeffrey v Honig [1999] VSC 337 - Ehmler & Anor v Hall [1993] 1 EGLR 137 - Irontrain Investments Ltd v Ansari (Salim) [2005] EWCA Civ 1681 - Bell v The Midland Railway Co (1861) 10 CB (NS) 287; 142 ER 462.
INJUNCTION - Whether appropriate - Terms of injunction.
PRACTICE AND PROCEDURE - Freezing order - Whether there is an arguable case - Whether there is a risk of dissipation of assets - 'Good arguable case' of breach of fiduciary duty and 'knowing assistance' established - Risk of dissipation established - Supreme Court (General Civil Procedure) Rules 2025 order 37A - Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; Rozenblit v Vainer [2019] VSCA 164 applied - Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 applied - Application granted.
PRACTICE AND PROCEDURE - Freezing order - Whether there is an arguable case - Whether there is a risk of dissipation of assets - 'Good arguable case' of breach of fiduciary duty and 'knowing assistance' established - Risk of dissipation established - Supreme Court (General Civil Procedure) Rules 2025 order 37A - Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; Rozenblit v Vainer [2019] VSCA 164 applied - Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 applied - Application granted.
PRACTICE AND PROCEDURE - SUMMARY JUDGMENT APPLICATION - Applications by third parties for summary judgment, or in the alternative, strike out of the first defendant's third party notices - Laying of a polished concrete surface within part of construction of a development including a shopping precinct - Whether documentary evidence provided in application makes clear that a claim against the third parties for liability for construction of the pedestrian surface has no real prospect of success - Where a factual dispute about circumstances and responsibility for construction of the polished concrete surface in the relevant area of the Development is raised by the documents and affidavit evidence - Summary judgment refused - Civil Procedure Act (2010) (Vic) ss 62, 63 - Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) VR 27 - 230V Harvest Home Road Pty Ltd v Salvo & Ors [2021] VSC 558.
PRACTICE AND PROCEDURE - SUMMARY JUDGMENT APPLICATION - Applications by third parties for summary judgment, or in the alternative, strike out of the first defendant's third party notices - Laying of a polished concrete surface within part of construction of a development including a shopping precinct - Whether documentary evidence provided in application makes clear that a claim against the third parties for liability for construction of the pedestrian surface has no real prospect of success - Where a factual dispute about circumstances and responsibility for construction of the polished concrete surface in the relevant area of the Development is raised by the documents and affidavit evidence - Summary judgment refused - Civil Procedure Act (2010) (Vic) ss 62, 63 - Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) VR 27 - 230V Harvest Home Road Pty Ltd v Salvo & Ors [2021] VSC 558.
PRACTICE AND PROCEDURE - Application for discovery by the plaintiffs before a judicial registrar - Plaintiffs appealed subsequent orders made - Two categories of discovery remain in dispute - De novo hearing - Proceeding concerns a nuisance claim by the plaintiffs of noise emitted by a wind farm operated by the defendants - Discovery of two categories disputed as not relevant on pleadings and unduly time-consuming - Plaintiffs submit that the two categories are of particular relevance to the positive case the defendants have pleaded on the issues of reasonableness and aggravated and exemplary damages - Defendants are to make discovery of identified documents in relation to one of the two categories.
PRACTICE AND PROCEDURE - Application for discovery by the plaintiffs before a judicial registrar - Plaintiffs appealed subsequent orders made - Two categories of discovery remain in dispute - De novo hearing - Proceeding concerns a nuisance claim by the plaintiffs of noise emitted by a wind farm operated by the defendants - Discovery of two categories disputed as not relevant on pleadings and unduly time-consuming - Plaintiffs submit that the two categories are of particular relevance to the positive case the defendants have pleaded on the issues of reasonableness and aggravated and exemplary damages - Defendants are to make discovery of identified documents in relation to one of the two categories.
PRACTICE AND PROCEDURE - Costs - Referral of costs assessment to Costs Court by Judicial Registrar - Former executors were legal practitioners who provided legal services relating to administration of estate - Former executors were an employee solicitor and a director of a law practice that issued invoices on which payments for the executors' costs were made out of the estate - Plaintiff commenced this proceeding for removal of the executors and appointment of independent administrator - Jurisdiction and powers of Court relating to assessment of reasonableness of costs invoiced by law practice and assessment of whether the invoiced costs of former executors were properly paid out of the estate - Law practice was given the opportunity to be heard in relation to potential orders joining it as defendant and orders facilitating referral of assessment of costs invoiced by law practice to the Costs Court - Law practice opposed any such orders - Whether to direct law practice to issue summons in Costs Court - Whether to provide opportunity for administrator to issue summons in Costs Court - Civil Procedure Act 2010 s 9 - Supreme Court Act 1986 s 24(1) - Supreme Court (General Civil Procedure) Rules 2025 r 63.38.
PRACTICE AND PROCEDURE - Costs - Referral of costs assessment to Costs Court by Judicial Registrar - Former executors were legal practitioners who provided legal services relating to administration of estate - Former executors were an employee solicitor and a director of a law practice that issued invoices on which payments for the executors' costs were made out of the estate - Plaintiff commenced this proceeding for removal of the executors and appointment of independent administrator - Jurisdiction and powers of Court relating to assessment of reasonableness of costs invoiced by law practice and assessment of whether the invoiced costs of former executors were properly paid out of the estate - Law practice was given the opportunity to be heard in relation to potential orders joining it as defendant and orders facilitating referral of assessment of costs invoiced by law practice to the Costs Court - Law practice opposed any such orders - Whether to direct law practice to issue summons in Costs Court - Whether to provide opportunity for administrator to issue summons in Costs Court - Civil Procedure Act 2010 s 9 - Supreme Court Act 1986 s 24(1) - Supreme Court (General Civil Procedure) Rules 2025 r 63.38.
PRACTICE AND PROCEDURE - Representative proceeding - Application for declaration that proceeding not commenced against second defendant in accordance with Pt 4A of Supreme Court Act 1986 (Vic) - Application for leave to amend to satisfy requirements of s 33C(1) of the Act - Real prospect of establishing that seven or more group members have claims against second defendant - Bright v Femcare Ltd (2002) 195 ALR 574 - Green v Graincorp Oilseeds Pty Ltd [2023] VSC 395 - ABL Nominees Pty Ltd v MacKenzie (No 2) [2014] VSC 529 - Application dismissed - Application to amend group member definition - Proposed definition sufficiently clear to ascertain identity of group members - Supreme Court Act 1986 s 33H - Leave to amend granted - Application to declass group proceeding - Significant common questions to be determined at trial - Declassing unlikely to save significant time or cost compared to continuing as group proceeding - Where claim period of proceeding spans 38 years - Claim period for initial trial to be limited to lead plaintiff's claim period of nine years - Supreme Court Act 1986 s 33N - Application dismissed.
PRACTICE AND PROCEDURE - Representative proceeding - Application for declaration that proceeding not commenced against second defendant in accordance with Pt 4A of Supreme Court Act 1986 (Vic) - Application for leave to amend to satisfy requirements of s 33C(1) of the Act - Real prospect of establishing that seven or more group members have claims against second defendant - Bright v Femcare Ltd (2002) 195 ALR 574 - Green v Graincorp Oilseeds Pty Ltd [2023] VSC 395 - ABL Nominees Pty Ltd v MacKenzie (No 2) [2014] VSC 529 - Application dismissed - Application to amend group member definition - Proposed definition sufficiently clear to ascertain identity of group members - Supreme Court Act 1986 s 33H - Leave to amend granted - Application to declass group proceeding - Significant common questions to be determined at trial - Declassing unlikely to save significant time or cost compared to continuing as group proceeding - Where claim period of proceeding spans 38 years - Claim period for initial trial to be limited to lead plaintiff's claim period of nine years - Supreme Court Act 1986 s 33N - Application dismissed.
PRACTICE AND PROCEDURE - Group proceedings - Application by second defendant that proceeding no longer continue as a group proceeding - Where plaintiff alleges that defendants used a 'system' for giving legal advice with respect to claims under the National Redress Scheme which did not include advice about common law claims for institutional child sexual abuse - Pleadings give rise to substantial common issues of law and fact, including foreseeable risk of harm, content of duty and features of any 'system' - Potential class size and group member characteristics weigh against declassing proceeding - s 33N Supreme Court Act 1986 (Vic) - Jones v Waller Legal Pty Ltd [2025] VSC 42 - Application to strike-out amended statement of claim - Where pleaded amended statement of claim alleged to be embarrassing - Strike out of entire amended statement of claim not warranted - Application dismissed.
PRACTICE AND PROCEDURE - Group proceedings - Application by second defendant that proceeding no longer continue as a group proceeding - Where plaintiff alleges that defendants used a 'system' for giving legal advice with respect to claims under the National Redress Scheme which did not include advice about common law claims for institutional child sexual abuse - Pleadings give rise to substantial common issues of law and fact, including foreseeable risk of harm, content of duty and features of any 'system' - Potential class size and group member characteristics weigh against declassing proceeding - s 33N Supreme Court Act 1986 (Vic) - Jones v Waller Legal Pty Ltd [2025] VSC 42 - Application to strike-out amended statement of claim - Where pleaded amended statement of claim alleged to be embarrassing - Strike out of entire amended statement of claim not warranted - Application dismissed.
PRACTICE AND PROCEDURE - Costs - Executor's application for costs from the estate of the deceased in circumstances where the application for executor's commission under s 65 of the Administration and Probate Act 1958 (Vic) was refused - Rule 10.10 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) - Rules 63.01 and 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application refused - Second plaintiff to bear own cost and to pay costs of the first plaintiff's costs of the second plaintiff's application for executor's commission on a standard basis without indemnity from the deceased's estate.
PRACTICE AND PROCEDURE - Costs - Executor's application for costs from the estate of the deceased in circumstances where the application for executor's commission under s 65 of the Administration and Probate Act 1958 (Vic) was refused - Rule 10.10 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) - Rules 63.01 and 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application refused - Second plaintiff to bear own cost and to pay costs of the first plaintiff's costs of the second plaintiff's application for executor's commission on a standard basis without indemnity from the deceased's estate.
NEGLIGENCE - Personal injury - Plaintiff suffered partial amputation of finger on construction site while using circular saw - Plaintiff employed by first defendant - Second and third defendants were principal contractors in charge of construction project - Fourth defendant employed co-worker who was working with plaintiff when injury occurred - Plaintiff and co-worker working for second and third defendants pursuant to labour hire arrangements - Whether negligence by the defendants was a cause of the plaintiff's injury - Whether plaintiff was contributorily negligent - Each defendant breached duty owed to plaintiff - Plaintiff failed to take reasonable care for his own safety when using circular saw - Apportionment - Assessment of damages.
NEGLIGENCE - Personal injury - Plaintiff suffered partial amputation of finger on construction site while using circular saw - Plaintiff employed by first defendant - Second and third defendants were principal contractors in charge of construction project - Fourth defendant employed co-worker who was working with plaintiff when injury occurred - Plaintiff and co-worker working for second and third defendants pursuant to labour hire arrangements - Whether negligence by the defendants was a cause of the plaintiff's injury - Whether plaintiff was contributorily negligent - Each defendant breached duty owed to plaintiff - Plaintiff failed to take reasonable care for his own safety when using circular saw - Apportionment - Assessment of damages.
WORKERS COMPENSATION - Worker whose employment is connected with South Australia injured in Victoria - Worker successfully claimed compensation from the South Australian statutory insurer - Proceeding seeking common law damages commenced in Victoria by worker against non-employer defendants - Whether the plaintiff is a worker 'who is?or may be, entitled to compensation' in respect of his injury within the meaning of s 326 of the Workplace Injury Rehabilitation and Compensation Act 2013 ('WIRC Act') - Whether injured worker needs to satisfy the serious injury requirements of the WIRC Act.
WORKERS COMPENSATION - Worker whose employment is connected with South Australia injured in Victoria - Worker successfully claimed compensation from the South Australian statutory insurer - Proceeding seeking common law damages commenced in Victoria by worker against non-employer defendants - Whether the plaintiff is a worker 'who is?or may be, entitled to compensation' in respect of his injury within the meaning of s 326 of the Workplace Injury Rehabilitation and Compensation Act 2013 ('WIRC Act') - Whether injured worker needs to satisfy the serious injury requirements of the WIRC Act.
STATUTORY INTERPRETATION - Principles of statutory interpretation - Whether reference to 'compensation' in s 326 of the WIRC Act is a reference to compensation under that Act or to compensation whether or not awarded under the WIRC Act or the Act of some other state or territory.
SUMMARY JUDGMENT - ss 62 and 63 of the Civil Procedure Act 2010 (Vic) - No real prospect of success - Worker commenced proceeding without satisfying s 327 of the WIRC Act - Proceeding dismissed.
SENTENCE - A jury found the offender guilty of murder (x3) and attempted murder - Unknown motive - Offender invited her estranged husband, his parents and his aunt and uncle to lunch - Offender falsely represented that she had serious medical issues which she needed to discuss with them in the absence of her children - The night before the lunch, the husband told the offender he would not be attending - The offender served the four lunch guests Beef Wellingtons deliberately laced with death cap mushrooms - Only the husband's uncle survived - Substantial premeditation - Pitiless conduct post offending - The deceased suffered significantly pre-mortem - Sole survivor suffered similarly and has ongoing health problems - Many indirect victims - Elaborate cover-up - Betrayal of trust - Worst category offending - No evidence of remorse - Life imprisonment appropriate - Whether to fix non-parole period - No relevant criminal history - Offender notorious - Unprecedented media attention - For her own safety, offender held in continuous solitary confinement for past 15 months - Harsher than normal prison conditions likely to continue for foreseeable future - Imprisonment significantly more burdensome for offender than for mainstream prisoners - Non-parole period of 33 years imposed - The Queen v Coulston (1997) 2 VR 446 - R v Kilic (2016) 259 CLR 256 - The Queen v Males [2007] VSCA 302 - The Queen v Olbrich (1999) 199 CLR 270 - Yat v The King [2024] VSCA 93 - Crimes Act 1958 (Vic), ss 3, 321P - Sentencing Act 1991 (Vic), ss 5, 6A-6F, 11, 11A.
SENTENCE - A jury found the offender guilty of murder (x3) and attempted murder - Unknown motive - Offender invited her estranged husband, his parents and his aunt and uncle to lunch - Offender falsely represented that she had serious medical issues which she needed to discuss with them in the absence of her children - The night before the lunch, the husband told the offender he would not be attending - The offender served the four lunch guests Beef Wellingtons deliberately laced with death cap mushrooms - Only the husband's uncle survived - Substantial premeditation - Pitiless conduct post offending - The deceased suffered significantly pre-mortem - Sole survivor suffered similarly and has ongoing health problems - Many indirect victims - Elaborate cover-up - Betrayal of trust - Worst category offending - No evidence of remorse - Life imprisonment appropriate - Whether to fix non-parole period - No relevant criminal history - Offender notorious - Unprecedented media attention - For her own safety, offender held in continuous solitary confinement for past 15 months - Harsher than normal prison conditions likely to continue for foreseeable future - Imprisonment significantly more burdensome for offender than for mainstream prisoners - Non-parole period of 33 years imposed - The Queen v Coulston (1997) 2 VR 446 - R v Kilic (2016) 259 CLR 256 - The Queen v Males [2007] VSCA 302 - The Queen v Olbrich (1999) 199 CLR 270 - Yat v The King [2024] VSCA 93 - Crimes Act 1958 (Vic), ss 3, 321P - Sentencing Act 1991 (Vic), ss 5, 6A-6F, 11, 11A.
CRIMINAL LAW - Sentencing - Intentionally causing serious injury, possession of methylamphetamine, and having methylamphetamine in blood within three hours of driving - At very high speed in car, accused (aged 35) chased, and deliberately accelerated and crashed into rear of, motorbike ridden by complainant (aged 22) - Complainant knocked from motorbike onto road, suffering serious injury in consequence - Car rolled, but accused unharmed - Accused's car travelling at about 160 kph at impact - Accused angry at complainant because of his intimate relationship with accused's former partner of fourteen years - Objectively serious instance of offence - Complainant refused to give evidence at committal hearing, imprisoned for contempt - No victim impact statement from complainant as he remained disengaged from prosecution - Nor, for same reason, any up-to-date evidence of state of complainant's injuries sixteen months after offence - Plea of guilty following sentence indication - Plea of guilty despite arguable defence as to intent - Remorse - Relevant but older criminal history for violence - Evidence of positively good character - Strong support of former partner, children, employer - Strong work history - Good prospects of rehabilitation - Profound childhood deprivation, including exposure to extreme violence and drug and alcohol abuse - Whether nexus between deprived early life and offending - Whether Bugmy principle applicable absent expert evidence - Importance of general deterrence, denunciation, just punishment and rehabilitation as sentencing purposes - Less weight accorded to specific deterrence and community protection - Parsimony - On intentionally causing serious injury, sentence of six years' imprisonment with non-parole period of three years - But for plea of guilty, nine years' imprisonment with non-parole period of six years - On possession of smallish amount of methylamphetamine, convicted and discharged - On having methylamphetamine in blood within three hours of driving, convicted and fined $500 - Licence disqualification periods of 20 months and nine months (concurrent) - Bugmy v The Queen (2013) 249 CLR 571; DPP v Herrmann (2021) 290 A Crim R 110; Crimes Act 1958 (Vic), ss 15, 16, 17, 22 & 321M; Drugs, Poisons & Controlled Substances Act 1980 (Vic), s 73; Road Safety Act 1986 (Vic), ss 28 & 49(1)(i); Criminal Procedure Act 2009 (Vic), ss 145, 207-209 & 242; Sentencing Act 1991 (Vic), ss 5, 6, 6AAA, 18, 73 & 89A.
CRIMINAL LAW - Sentencing - Intentionally causing serious injury, possession of methylamphetamine, and having methylamphetamine in blood within three hours of driving - At very high speed in car, accused (aged 35) chased, and deliberately accelerated and crashed into rear of, motorbike ridden by complainant (aged 22) - Complainant knocked from motorbike onto road, suffering serious injury in consequence - Car rolled, but accused unharmed - Accused's car travelling at about 160 kph at impact - Accused angry at complainant because of his intimate relationship with accused's former partner of fourteen years - Objectively serious instance of offence - Complainant refused to give evidence at committal hearing, imprisoned for contempt - No victim impact statement from complainant as he remained disengaged from prosecution - Nor, for same reason, any up-to-date evidence of state of complainant's injuries sixteen months after offence - Plea of guilty following sentence indication - Plea of guilty despite arguable defence as to intent - Remorse - Relevant but older criminal history for violence - Evidence of positively good character - Strong support of former partner, children, employer - Strong work history - Good prospects of rehabilitation - Profound childhood deprivation, including exposure to extreme violence and drug and alcohol abuse - Whether nexus between deprived early life and offending - Whether Bugmy principle applicable absent expert evidence - Importance of general deterrence, denunciation, just punishment and rehabilitation as sentencing purposes - Less weight accorded to specific deterrence and community protection - Parsimony - On intentionally causing serious injury, sentence of six years' imprisonment with non-parole period of three years - But for plea of guilty, nine years' imprisonment with non-parole period of six years - On possession of smallish amount of methylamphetamine, convicted and discharged - On having methylamphetamine in blood within three hours of driving, convicted and fined $500 - Licence disqualification periods of 20 months and nine months (concurrent) - Bugmy v The Queen (2013) 249 CLR 571; DPP v Herrmann (2021) 290 A Crim R 110; Crimes Act 1958 (Vic), ss 15, 16, 17, 22 & 321M; Drugs, Poisons & Controlled Substances Act 1980 (Vic), s 73; Road Safety Act 1986 (Vic), ss 28 & 49(1)(i); Criminal Procedure Act 2009 (Vic), ss 145, 207-209 & 242; Sentencing Act 1991 (Vic), ss 5, 6, 6AAA, 18, 73 & 89A.
CRIMINAL LAW - Bail application - Prima facie entitlement to bail - Arson - Alleged offending while applicant on several counts of bail - Aboriginal applicant - First time in custody - Homelessness - Risk of harm in custody - Whether time on remand would exceed any custodial sentence - Bail granted - Bail Act 1977 ss 1B, 3A, 3AAA, 4, 4E - Re Terei [2024] VSC 294.
CRIMINAL LAW - Bail application - Prima facie entitlement to bail - Arson - Alleged offending while applicant on several counts of bail - Aboriginal applicant - First time in custody - Homelessness - Risk of harm in custody - Whether time on remand would exceed any custodial sentence - Bail granted - Bail Act 1977 ss 1B, 3A, 3AAA, 4, 4E - Re Terei [2024] VSC 294.
CRIMINAL LAW - Application for bail - Charges of burglary, theft of firearm, possession of traffickable quantity of firearms, false imprisonment and armed robbery - Where applicant has significant criminal history but no history of violent offending or firearm offences - Where applicant was subject to Community Correction Order and to prior grant of bail - Where applicant has longstanding substance abuse issues - Where offending connected to substance abuse - Where applicant has offer of residential drug and alcohol rehabilitation program - Where first opportunity for applicant to attend residential rehabilitation - Where exceptional circumstances exist to justify the grant of bail - Where the risk is acceptable on conditions that the applicant reside at rehabilitation facility - Bail Act 1977 (Vic) ss 4AA, 4A.
CRIMINAL LAW - Application for bail - Charges of burglary, theft of firearm, possession of traffickable quantity of firearms, false imprisonment and armed robbery - Where applicant has significant criminal history but no history of violent offending or firearm offences - Where applicant was subject to Community Correction Order and to prior grant of bail - Where applicant has longstanding substance abuse issues - Where offending connected to substance abuse - Where applicant has offer of residential drug and alcohol rehabilitation program - Where first opportunity for applicant to attend residential rehabilitation - Where exceptional circumstances exist to justify the grant of bail - Where the risk is acceptable on conditions that the applicant reside at rehabilitation facility - Bail Act 1977 (Vic) ss 4AA, 4A.
CRIMINAL LAW - Bail application - 15 year old child - Charged with armed robbery, theft, commit an indictable offence while on bail - Requirement to show exceptional circumstances - Overarching importance of community safety - Long-term approach to community safety - Availability of culturally appropriate supports and treatment - Stable accommodation - Family support - Custodial sentence unlikely - Exceptional circumstances established - Unacceptable risk not proven - Bail granted for a short period - Bail reform - Bail Act 1977 (Vic) ss 1B, 3B, 3AAA, 4A, 4AA, 4E.
CRIMINAL LAW - Bail application - 15 year old child - Charged with armed robbery, theft, commit an indictable offence while on bail - Requirement to show exceptional circumstances - Overarching importance of community safety - Long-term approach to community safety - Availability of culturally appropriate supports and treatment - Stable accommodation - Family support - Custodial sentence unlikely - Exceptional circumstances established - Unacceptable risk not proven - Bail granted for a short period - Bail reform - Bail Act 1977 (Vic) ss 1B, 3B, 3AAA, 4A, 4AA, 4E.
CRIMINAL LAW - Application for bail - Applicant 21-year old with extensive criminal history - Where charges included possession of weapons - Where applicant intending to plead guilty - Where applicant has residential drug and alcohol rehabilitation program available if granted bail - Where first opportunity for applicant to attend residential rehabilitation - Where evidence of genuine wish to rehabilitate - Where compelling reason exists justifying the grant of bail - Where risk is acceptable on conditions that applicant reside at rehabilitation facility and not leave without accompaniment - Re Tofaris [2021] VSC 249 - Bail Act 1977 (Vic) ss 3AAA, 4C, 4E.
CRIMINAL LAW - Application for bail - Applicant 21-year old with extensive criminal history - Where charges included possession of weapons - Where applicant intending to plead guilty - Where applicant has residential drug and alcohol rehabilitation program available if granted bail - Where first opportunity for applicant to attend residential rehabilitation - Where evidence of genuine wish to rehabilitate - Where compelling reason exists justifying the grant of bail - Where risk is acceptable on conditions that applicant reside at rehabilitation facility and not leave without accompaniment - Re Tofaris [2021] VSC 249 - Bail Act 1977 (Vic) ss 3AAA, 4C, 4E.
CRIMINAL LAW - Application for bail - Prima facie entitlement to bail - Personal circumstances - Whether unacceptable risk - Nature and seriousness of alleged offending - Strength of prosecution case - Extent of compliance with earlier grant of bail - Availability of stable accommodation - Proposed therapeutic treatment - Risk not shown to be unacceptable - Bail granted - Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4D, 4E, 5AAA - Crimes Act 1958 (Vic), ss 21A, 53R, 465AAA - Surveillance Devices Act 1999 (Vic), s 7.
CRIMINAL LAW - Application for bail - Prima facie entitlement to bail - Personal circumstances - Whether unacceptable risk - Nature and seriousness of alleged offending - Strength of prosecution case - Extent of compliance with earlier grant of bail - Availability of stable accommodation - Proposed therapeutic treatment - Risk not shown to be unacceptable - Bail granted - Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4D, 4E, 5AAA - Crimes Act 1958 (Vic), ss 21A, 53R, 465AAA - Surveillance Devices Act 1999 (Vic), s 7.
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.
RESIDENTIAL TENANCY - Mould outbreak at rented property - Whether mould caused by landlords' alleged failure to keep the property in good repair - Alternatively, whether mould outbreak due to the tenants' alleged failure to maintain the property in reasonable condition - Cross-claims for compensation.
RESIDENTIAL TENANCY - Mould outbreak at rented property - Whether mould caused by landlords' alleged failure to keep the property in good repair - Alternatively, whether mould outbreak due to the tenants' alleged failure to maintain the property in reasonable condition - Cross-claims for compensation.
CONTRACT LAW - Contract - Debt recovery - Media services agreement - Advertising services - Invoices unpaid - Set-off - Alternative dispute resolution clause - Defendant unrepresented - Defendant absent at trial - Undefended proceedings - Onus of proof - Termination of agreement - Statutory interest - Costs.
CONTRACT LAW - Contract - Debt recovery - Media services agreement - Advertising services - Invoices unpaid - Set-off - Alternative dispute resolution clause - Defendant unrepresented - Defendant absent at trial - Undefended proceedings - Onus of proof - Termination of agreement - Statutory interest - Costs.
STAY OF EXECUTION - MORTGAGES - Possession orders - Application for stay of execution of Sheriff's warrant - Refinancing proposal - Contract of sale - Discretion to stay under r 66.16 County Court Civil Procedure Rules 2018 - Special or exceptional circumstances - Reliance on GE Personal Finance Pty Ltd v Smith - Alleged imminent refinance with new lender - Whether refinance and sale proposal will yield sufficient funds to discharge total indebtedness - Family residence.
STAY OF EXECUTION - MORTGAGES - Possession orders - Application for stay of execution of Sheriff's warrant - Refinancing proposal - Contract of sale - Discretion to stay under r 66.16 County Court Civil Procedure Rules 2018 - Special or exceptional circumstances - Reliance on GE Personal Finance Pty Ltd v Smith - Alleged imminent refinance with new lender - Whether refinance and sale proposal will yield sufficient funds to discharge total indebtedness - Family residence.
CONTRACTS - BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT REGIME - BUILDING CONTRACT - Payment claim - Where defendant failed to issue payment schedule in response to payment claims - Whether there was a reference date - Whether there was a final claim reference date.
CONTRACTS - BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT REGIME - BUILDING CONTRACT - Payment claim - Where defendant failed to issue payment schedule in response to payment claims - Whether there was a reference date - Whether there was a final claim reference date.