PRACTICE AND PROCEDURE - Interlocutory decision concerning practice and procedure - Application for leave to appeal and application for leave to cross-appeal - Application below for summary dismissal or strike out of parts of pleading - Whether applicant and cross-applicants established substantial injustice - Where applicant a defendant in group proceeding concerning claims relating to cosmetic surgery procedures - Where plaintiffs allege cross-applicants liable as accessories - Plaintiffs' allegations include false, misleading or deceptive conduct - Plaintiffs granted leave to amend statement of claim - Amendments alleged implied representations to 'potential patients' - Amendments alleged representations made on social media - Whether amended pleadings disclose a cause of action - Whether conduct said to convey misleading representations adequately pleaded - Whether pleaded facts and particulars of knowledge adequate to establish accessorial liability - Leave to appeal allowed in part - Appeal allowed - Leave to cross-appeal refused.
PRACTICE AND PROCEDURE - Interlocutory decision concerning practice and procedure - Application for leave to appeal and application for leave to cross-appeal - Application below for summary dismissal or strike out of parts of pleading - Whether applicant and cross-applicants established substantial injustice - Where applicant a defendant in group proceeding concerning claims relating to cosmetic surgery procedures - Where plaintiffs allege cross-applicants liable as accessories - Plaintiffs' allegations include false, misleading or deceptive conduct - Plaintiffs granted leave to amend statement of claim - Amendments alleged implied representations to 'potential patients' - Amendments alleged representations made on social media - Whether amended pleadings disclose a cause of action - Whether conduct said to convey misleading representations adequately pleaded - Whether pleaded facts and particulars of knowledge adequate to establish accessorial liability - Leave to appeal allowed in part - Appeal allowed - Leave to cross-appeal refused.
Supreme Court (General Civil Procedure) Rules 2015, r 23; Civil Procedure Act 2010, s 63.
Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260; Kennedy v Shire of Campaspe [2015] VSCA 47; Kajula Pty Ltd v Downer EDI Ltd (2024) 76 VR 75; Fei v Hexin Pty Ltd (2024) 75 VR 581; Coles Myer Ltd v Victorian WorkCover Authority [2002] VSCA 144, applied.
CONSUMER LAW - False, misleading or deceptive conduct - Group proceeding - Where plaintiffs allege representations made to 'potential patients' of cosmetic surgery service - Whether assessment of whether representations were misleading etc to be assessed by reference to individual claimants or hypothetical reasonable person - Issue to be determined at trial - Where plaintiffs unable to plead detail content of social media said to convey representations - Pleadings 'meld' misleading representations with conduct said to convey representations.
Competition and Consumer Act 2010 (Cth) sch 2 ('Australian Consumer Law') ss 2, 18, 29, 34.
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; Self Care IP Holdings Pty Ltd (2023) 277 CLR 186; Karpik v Carnival plc (The Ruby Princess) [2023] FCA 1280; Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435, considered.
CONSUMER LAW - False, misleading or deceptive conduct - Accessorial liability - Group proceeding - Nature of involvement in representations required for accessorial liability - Whether pleaded facts and particulars of knowledge adequate to establish accessorial liability.
Competition and Consumer Act 2010 (Cth) sch 2 ('Australian Consumer Law') ss 2, 18, 29, 34.
Productivity Partners Pty Ltd v Australian Competition and Consumer Commission (2024) 98 ALJR 1021, considered.
RECEIVER - Interlocutory order appointing receivers to sell real property assets subject of deed of settlement - Principles regarding appointment of receivers - Breakdown in parties' relationship and ongoing breaches of deed - Properties at risk of mortgagee sale - Where primary judge recognised the need for caution and considered interests of all parties - No alternative and less drastic order available - Application for leave to appeal refused.
RECEIVER - Interlocutory order appointing receivers to sell real property assets subject of deed of settlement - Principles regarding appointment of receivers - Breakdown in parties' relationship and ongoing breaches of deed - Properties at risk of mortgagee sale - Where primary judge recognised the need for caution and considered interests of all parties - No alternative and less drastic order available - Application for leave to appeal refused.
Supreme Court Act 1986, s 37(1).
National Australia Bank Limited v Bond Brewing Holdings Limited [1991] 1 VR 386; Yunghanns v Candoora No 19 Pty Ltd (No 2) (2000) 35 ACSR 34; Martyniuk v King [2000] VSC 319, considered.
EVIDENCE - Rule in Browne v Dunn - Common law damages claim for motor vehicle injury - Applicant alleged to have assaulted driver - Evidence of assault not put to applicant during cross-examination - After applicant closed case, respondent called witness to give evidence of assault - Applicant consented to being recalled on basis of reassurances that leave would be given to reopen case - Judge refused leave - Denial of procedural fairness in holding plaintiff to forensic choice not to call certain witnesses while allowing recall of plaintiff - Unfair to refuse leave following assurances otherwise - Application for leave to appeal granted - Appeal allowed.
EVIDENCE - Rule in Browne v Dunn - Common law damages claim for motor vehicle injury - Applicant alleged to have assaulted driver - Evidence of assault not put to applicant during cross-examination - After applicant closed case, respondent called witness to give evidence of assault - Applicant consented to being recalled on basis of reassurances that leave would be given to reopen case - Judge refused leave - Denial of procedural fairness in holding plaintiff to forensic choice not to call certain witnesses while allowing recall of plaintiff - Unfair to refuse leave following assurances otherwise - Application for leave to appeal granted - Appeal allowed.
Browne v Dunn (1893) 6 R 67, considered.
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.
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.
CRIMINAL LAW - Appeal - Sentence - Sexual assault - Rolled-up charge - Sentence of 12 months' imprisonment - Plea of guilty - Sentence imposed after earlier successful conviction appeal - Whether sentencing judge failed to pay proper regard to previous sentence - Whether judge failed properly to take into account pre-sentence detention - Whether sentence manifestly excessive - Appeal dismissed.
CRIMINAL LAW - Appeal - Sentence - Sexual assault - Rolled-up charge - Sentence of 12 months' imprisonment - Plea of guilty - Sentence imposed after earlier successful conviction appeal - Whether sentencing judge failed to pay proper regard to previous sentence - Whether judge failed properly to take into account pre-sentence detention - Whether sentence manifestly excessive - Appeal dismissed.
CRIMINAL LAW - Application for leave to appeal - Sentence - Home invasion - Theft of motor vehicles and other items - Total effective sentence of 1 year and 10 months' imprisonment with non-parole period of 12 months - Applicant assisted authorities against co-offenders - Whether sentencing judge erred by failing to account for risk to applicant in custody due to the assistance - No error made by sentencing judge - Whether sentences manifestly excessive in light of mitigatory factors - Not reasonably arguable that sentences manifestly excessive - Application for leave to appeal against sentence refused.
CRIMINAL LAW - Application for leave to appeal - Sentence - Home invasion - Theft of motor vehicles and other items - Total effective sentence of 1 year and 10 months' imprisonment with non-parole period of 12 months - Applicant assisted authorities against co-offenders - Whether sentencing judge erred by failing to account for risk to applicant in custody due to the assistance - No error made by sentencing judge - Whether sentences manifestly excessive in light of mitigatory factors - Not reasonably arguable that sentences manifestly excessive - Application for leave to appeal against sentence refused.
Haamid (a pseudonym) v The Queen [2018] VSCA 330; Mejia (a pseudonym) v The Queen [2020] VSCA 141; Scerri v The Queen (2010) 206 A Crim R 1; Nguyen v The Queen (2011) 31 VR 673, discussed.
CRIMINAL LAW - Prosecution appeal - Whether sentence manifestly inadequate - Residual discretion - Respondent pleaded guilty to seven charges relating to trafficking and possessing drugs of dependence and related equipment and substances - Respondent in possession of over 4 times the commercial quantity of 1,4 butanediol - Total effective sentence of 4 years' imprisonment and a drug and alcohol treatment order - Offending within middle of the range - Whether orders for cumulation manifestly inadequate - Material does not show broader sentencing practices for 1,4 butanediol are inadequate - Orders for cumulation not manifestly inadequate - Sentence not manifestly inadequate - Respondent has complied with stringent conditions of non-custodial sentence - Community benefitted by respondent's rehabilitation - Appropriate to exercise residual discretion in any event - Appeal dismissed.
CRIMINAL LAW - Prosecution appeal - Whether sentence manifestly inadequate - Residual discretion - Respondent pleaded guilty to seven charges relating to trafficking and possessing drugs of dependence and related equipment and substances - Respondent in possession of over 4 times the commercial quantity of 1,4 butanediol - Total effective sentence of 4 years' imprisonment and a drug and alcohol treatment order - Offending within middle of the range - Whether orders for cumulation manifestly inadequate - Material does not show broader sentencing practices for 1,4 butanediol are inadequate - Orders for cumulation not manifestly inadequate - Sentence not manifestly inadequate - Respondent has complied with stringent conditions of non-custodial sentence - Community benefitted by respondent's rehabilitation - Appropriate to exercise residual discretion in any event - Appeal dismissed.
Drugs, Poisons and Controlled Substances Act 1981, ss 71AA(1), 71AC(1), 73(1), 71A(1), 16B(2); Sentencing Act 1991, ss 18X-18ZT.
Gregory (a pseudonym) v The Queen [2017] VSCA 151; Ellis v The Queen [2018] VSCA 221; DPP v Moustafa [2018] VSCA 331; Arici v The Queen [2019] VSCA 228; Roach v The Queen [2020] VSCA 205; Al-Dimachki v The Queen [2021] VSCA 98; Sharbell v The Queen [2018] VSCA 324; Fernando v The Queen [2017] VSCA 208; DPP (Cth) v Maxwell [2013] VSCA 50; Sengul v The King [2023] VSCA 63; Needham v The King [2024] VSCA 270; DPP v Fatho [2019] VSCA 311; DPP v Barton (a pseudonym) [2025] VSCA 202, considered.
DPP v Currie; DPP v Daniels (a pseudonym) [2021] VSCA 272; DPP v Karazisis [2010] VSCA 350; CMB v Attorney-General (NSW) [2015] HCA 9; Cumberland v The Queen [2020] HCA 21; DPP v Lombardo [2022] VSCA 204; DPP v Goldsmid [2023] VSCA 124, applied.
CRIMINAL LAW - Appeal - Sentence - Fresh or new evidence - Armed robbery and related offending - Applicant sentenced on the basis that she had borderline personality - Subsequent diagnosis of schizophrenia - Sentencing discretion reopened - Appeal allowed - Resentenced accordingly.
CRIMINAL LAW - Appeal - Sentence - Fresh or new evidence - Armed robbery and related offending - Applicant sentenced on the basis that she had borderline personality - Subsequent diagnosis of schizophrenia - Sentencing discretion reopened - Appeal allowed - Resentenced accordingly.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
CRIMINAL LAW - Application for leave to appeal - Sentence - Summary offence of intentionally distributing intimate image of another person where distribution is contrary to community standards of acceptable conduct - Offender also convicted of rape, indecent assault and other offences against intimate partner - Offender distributed videos of rape during the offending to people known to intimate partner - Whether sentence of 14 months' imprisonment, with 7 months cumulated on sentence for rape, is manifestly excessive - Whether judge gave adequate weight to mitigating factors - Profound childhood disadvantage and intellectual disability - Current sentencing practices - Leave to appeal refused.
Summary Offences Act 1966, ss 40, 41DA.
Clarkson v The Queen (2011) 32 VR 361; Young v The Queen [2016] VSCA 149; R v Pham (2015) 256 CLR 550; DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; Gaunt v The Queen [2019] VSCA 241; DPP v Hartland [2019] VCC 628.
CRIMINAL LAW - Appeal - Sentence - Substantial theft by employee of small business over several years - Whether early guilty plea given appropriate weight - Whether applicant demonstrated genuine remorse - Where only part of stolen monies recovered - Where victims required to issue proceedings and pay legal costs to effect partial recovery of stolen monies - No evidence that offender sought to engage with victims concerning repayment of monies - Plea of guilty not necessarily indicative of an expression of remorse - Judge correct to conclude only some limited remorse - No error established - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Substantial theft by employee of small business over several years - Whether early guilty plea given appropriate weight - Whether applicant demonstrated genuine remorse - Where only part of stolen monies recovered - Where victims required to issue proceedings and pay legal costs to effect partial recovery of stolen monies - No evidence that offender sought to engage with victims concerning repayment of monies - Plea of guilty not necessarily indicative of an expression of remorse - Judge correct to conclude only some limited remorse - No error established - Leave to appeal refused.
Crimes Act 1958, s 74.
Potter v The King [2023] VSCA 104; R v Gray [1977] VR 225; R v Starr [2002] VSCA 180; Repac v The King [2023] VSCA 313, considered.
Mohtadi v The Queen [2018] VSCA 238, applied.
CRIMINAL LAW - Conviction - Appeal - Trafficking in drugs of dependence in commercial quantities and large commercial quantities - Applicant convicted of 24 charges related to the manufacture of methylamphetamine and MDMA at two clandestine laboratories - Admission of evidence of admitted prior drug trafficking convictions - Whether jury invited to use as tendency evidence - Whether danger of prejudice outweighed probative value - Admission of evidence of firearm at clandestine laboratory - Whether relevant evidence - Whether danger of prejudice outweighed probative value - Whether trial judge erred in directions on what is necessary to prove an intention to manufacture a commercial quantity or large commercial quantity of a drug of dependence when drug is found in a mixed substance - Leave to appeal refused.
CRIMINAL LAW - Conviction - Appeal - Trafficking in drugs of dependence in commercial quantities and large commercial quantities - Applicant convicted of 24 charges related to the manufacture of methylamphetamine and MDMA at two clandestine laboratories - Admission of evidence of admitted prior drug trafficking convictions - Whether jury invited to use as tendency evidence - Whether danger of prejudice outweighed probative value - Admission of evidence of firearm at clandestine laboratory - Whether relevant evidence - Whether danger of prejudice outweighed probative value - Whether trial judge erred in directions on what is necessary to prove an intention to manufacture a commercial quantity or large commercial quantity of a drug of dependence when drug is found in a mixed substance - Leave to appeal refused.
Drugs, Poisons and Controlled Substances Act 1981, ss 4, 70; Evidence Act 2008, s 137.
R v Ahmed (2007) 17 VR 454; Trajkovski v The Queen (2011) 32 VR 587.
CRIMINAL LAW - Conviction - Appeal - Complicity in trafficking in drugs of dependence in commercial quantities - Prosecution alleged applicant agreed with co-accused that co-accused would manufacture commercial quantities of MDMA and methylamphetamine in a clandestine laboratory at premises controlled by applicant - Whether prosecution case impermissibly changed at trial - Whether trial judge impermissibly intervened to broaden prosecution case - Whether applicant denied natural justice because prosecution failed to disclose path of reasoning to conviction to the jury - Whether trial judge erred in directions on scope of necessary agreement between applicant and manufacturer - Whether evidence that applicant hid from police and lied in record of interview admissible as evidence of incriminating conduct - Whether conviction on charge of trafficking commercial quantity of MDMA was inconsistent with acquittal on charge of trafficking commercial quantity of methylamphetamine - Leave to appeal refused.
Jury Directions Act 2015, ss 18, 20, 21, 22.
DPP v Scriven [No 4] [2015] VSC 220; DPP v Lynn [2024] VSCA 62; Cookson (a pseudonym) v The King [2024] VSCA 289; MacKenzie v The Queen (1996) 190 CLR 348; Booth v The King [2024] VSCA 318.
REPRESENTATIVE PROCEEDINGS - Part 4A Group proceeding - Application for approval of settlement - Whether settlement is fair and reasonable as between the parties and as between group members - Shareholder class action - Alleged breach of continuous disclosure obligations - Financial circumstances of the company - Payment of settlement sum in instalments - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, ss 33V, 33ZF - Botsman v Bolitho (No 1) [2018] 57 VR 68, Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2006) 236 ALR 322, Kelly v Willmott Forests Ltd (in liq) (No 4) (2016) 335 ALR 439, applied.
REPRESENTATIVE PROCEEDINGS - Part 4A Group proceeding - Application for approval of settlement - Whether settlement is fair and reasonable as between the parties and as between group members - Shareholder class action - Alleged breach of continuous disclosure obligations - Financial circumstances of the company - Payment of settlement sum in instalments - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, ss 33V, 33ZF - Botsman v Bolitho (No 1) [2018] 57 VR 68, Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2006) 236 ALR 322, Kelly v Willmott Forests Ltd (in liq) (No 4) (2016) 335 ALR 439, applied.
PRACTICE AND PROCEDURE - Part 4A Group proceeding - Application for approval of settlement - Soft class closure order - Proceeding settled at mediation - Applications for late registration to permit participation in the settlement - All applications approved - Andrianakis v Uber Technologies Inc and Others (Settlement Approval) [2024] VSC 733, applied.
PRACTICE AND PROCEDURE - Part 4A Group proceeding - Approval for payment of legal costs from settlement sum - No reason to vary group costs order - Supreme Court Act 1986 (Vic) Part 4A, s 33ZDA - Fox v Westpac Banking Corporation (2021) 69 VR 487, Allen & Anor v G8 Education Ltd (No 4) [2024] VSC 487, applied - Fuller & Anor v Allianz Australia Insurance Ltd & Anor (Settlement Approval) [2025] VSC 160, McCoy v Hino Motors Ltd (No 2) [2025] VSC 553, discussed.
PRACTICE AND PROCEDURE - Part 4A Group proceeding - Appointment of Scheme Administrator - Approval for payment of costs of administering settlement distribution scheme.
PROPERTY LAW - Proposed transfer and release to the purchaser of deposit money under contract for the sale of land - Condition in deed of variation enuring for the benefit of the purchaser - Proceeding by vendor client against former solicitor seeking transfer of deposit moneys - Transfer not permitted - Sale of Land Act 1962 (Vic) ss 24, 27 - Whether notice under s 27 of the Sale of Land Act 1962 (Vic) is effective - 68 Bridge Road Land Pty Ltd v GLP Batesford Holdings Pty Ltd [2023] VSCA 325, Aurumstone Pty Ltd v Yarra Bank Developments Pty Ltd [2017] VSC 502, followed.
PROPERTY LAW - Proposed transfer and release to the purchaser of deposit money under contract for the sale of land - Condition in deed of variation enuring for the benefit of the purchaser - Proceeding by vendor client against former solicitor seeking transfer of deposit moneys - Transfer not permitted - Sale of Land Act 1962 (Vic) ss 24, 27 - Whether notice under s 27 of the Sale of Land Act 1962 (Vic) is effective - 68 Bridge Road Land Pty Ltd v GLP Batesford Holdings Pty Ltd [2023] VSCA 325, Aurumstone Pty Ltd v Yarra Bank Developments Pty Ltd [2017] VSC 502, followed.
CONTRACT - Construction - Variation deed - Where clause introduced by variation inconsistent with standard clause in contract of sale - Where to give effect to the words in the standard clause mean the clause in the deed of variation could perform no work.
FREEZING ORDER - Application to vary to permit payment of entities incorporated overseas conducting business in Dubai - Application refused - Dispute about whether certain expenses are captured by exceptions in freezing order permitting the payment of reasonable living expenses and ordinary business expenses.
PRACTICE AND PROCEDURE - Freezing order in place - Need for prompt trial given existing expenditure by defendants on legal costs and the prospect of erosion of limited resources due to expenditure permitted by carve-outs from freezing order - Defence not yet filed - Interlocutory skirmishes taking up too many court days and resources - Page and time limits imposed - Timetable for completion of steps prior to trial including expert evidence revised to bring forward date of readiness for trial - Civil Procedure Act 2010 (Vic) ss 7(1), 8, Part 4.2.
INTERLOCUTORY INJUNCTION - Milk supply agreement - Injunction by a milk processor and dairy goods manufacturer to restrain a dairy farmer from taking any action in furtherance of, or in reliance upon, a notice of termination of the milk supply agreement - Purported right to terminate on account of alleged failure to 'review' the minimum price payable for supply of milk - Whether serious question to be tried - Construction of term providing that supplier is 'eligible for a review' of minimum price - Whether balance of convenience favours the grant of the injunction - Injunction granted.
INTERLOCUTORY INJUNCTION - Milk supply agreement - Injunction by a milk processor and dairy goods manufacturer to restrain a dairy farmer from taking any action in furtherance of, or in reliance upon, a notice of termination of the milk supply agreement - Purported right to terminate on account of alleged failure to 'review' the minimum price payable for supply of milk - Whether serious question to be tried - Construction of term providing that supplier is 'eligible for a review' of minimum price - Whether balance of convenience favours the grant of the injunction - Injunction granted.
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.
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.
PRACTICE AND PROCEDURE - Group Proceeding - Application for approval of settlement of group proceeding - Whether confidentiality orders should be made - Whether settlement distribution scheme is fair and reasonable - Settlement distribution between classes of group members - Deductions from the settlement fund - Whether group costs order should be varied - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, ss 33V, 33ZDA.
PRACTICE AND PROCEDURE - Group Proceeding - Application for approval of settlement of group proceeding - Whether confidentiality orders should be made - Whether settlement distribution scheme is fair and reasonable - Settlement distribution between classes of group members - Deductions from the settlement fund - Whether group costs order should be varied - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, ss 33V, 33ZDA.
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.
CIVIL PROCEDURE - Foreign Judgments - Application for recognition and enforcement of monetary judgment of the People's Republic of China - Interest payable on judgment sum - Whether 'double part interest' portion of interest payment penal in nature - Double interest not penal in nature - Application for confirmation of informal service and judgment in default against first defendant - Likely first defendant is aware of proceedings - Order confirming informal service - Appropriate to proceed to judgment in default of appearance against first defendant - Foreign judgment enforceable against first and second defendants - Supreme Court (General Civil Procedure) Rules 2025 (Vic) rr 45.03(1) and 80.11(2) - Doe v Howard [2015] VSC 75; Suzhou Haishun Investment Management Co Ltd v Zhao [2019] VSC 110, applied - Andrews v Australia and New Zealand Banking Group Limited (2012) 247 CLR 205; Benefits Strategies Group Inc v Prider (2005) 91 SASR 554; Bao v Qu; Tian (No 2) (2020) 102 NSWLR 435; Zhengzhou Lvdu Real Estate Group Co Ltd v Shu [2024] NSWSC 58; INGENU CRO Pty Ltd v Psycheceutical AU Pty Ltd (in liquidation) [2025] VSC 581, considered - Schnabel v Lui [2002] NSWSC 15, distinguished.
CIVIL PROCEDURE - Foreign Judgments - Application for recognition and enforcement of monetary judgment of the People's Republic of China - Interest payable on judgment sum - Whether 'double part interest' portion of interest payment penal in nature - Double interest not penal in nature - Application for confirmation of informal service and judgment in default against first defendant - Likely first defendant is aware of proceedings - Order confirming informal service - Appropriate to proceed to judgment in default of appearance against first defendant - Foreign judgment enforceable against first and second defendants - Supreme Court (General Civil Procedure) Rules 2025 (Vic) rr 45.03(1) and 80.11(2) - Doe v Howard [2015] VSC 75; Suzhou Haishun Investment Management Co Ltd v Zhao [2019] VSC 110, applied - Andrews v Australia and New Zealand Banking Group Limited (2012) 247 CLR 205; Benefits Strategies Group Inc v Prider (2005) 91 SASR 554; Bao v Qu; Tian (No 2) (2020) 102 NSWLR 435; Zhengzhou Lvdu Real Estate Group Co Ltd v Shu [2024] NSWSC 58; INGENU CRO Pty Ltd v Psycheceutical AU Pty Ltd (in liquidation) [2025] VSC 581, considered - Schnabel v Lui [2002] NSWSC 15, distinguished.
WILLS AND ESTATES - Where plaintiff seeks removal of defendant as executor and trustee of deceased's estate - Only asset of estate is real property - Defendant entered into deed of settlement with third party without consent of and in opposition to beneficiaries - Deed of settlement terms include sale of property and payment of 40% of proceeds of sale to third party - Where defendant did not seek judicial advice to compromise third party claim - Where defendant did not obtain consent of beneficiaries to compromise third party claim - Where defendant failed to seek independent legal advice regarding third party claim - Where defendant unreasonably refused to acknowledge plaintiff was a beneficiary of estate - Where defendant failed to provide prompt and proper responses to beneficiaries - Where defendant in breach of Court orders - Defendant unfit to act as executor - Defendant removed as executor and trustee of deceased's estate - Plaintiff appointed in place - Miller v Cameron (1936) 54 CLR 572 - Monty Financial Services v Delmo [1996] 1 VR 65 - Fysh v Coote [2000] VSCA 150 - Dowling v St Vincent de Paul Society of Victoria Inc [2003] VSC 454 - Administration and Probate Act 1958 (Vic) s 34(1)(c) - Trustee Act 1958 (Vic) s 19(1)(f) - Family Law Act 1975 (Cth) ss 90C, 90G(1) - Supreme Court (General Civil Procedure) Rules 2025 (Vic), Order 54.
WILLS AND ESTATES - Where plaintiff seeks removal of defendant as executor and trustee of deceased's estate - Only asset of estate is real property - Defendant entered into deed of settlement with third party without consent of and in opposition to beneficiaries - Deed of settlement terms include sale of property and payment of 40% of proceeds of sale to third party - Where defendant did not seek judicial advice to compromise third party claim - Where defendant did not obtain consent of beneficiaries to compromise third party claim - Where defendant failed to seek independent legal advice regarding third party claim - Where defendant unreasonably refused to acknowledge plaintiff was a beneficiary of estate - Where defendant failed to provide prompt and proper responses to beneficiaries - Where defendant in breach of Court orders - Defendant unfit to act as executor - Defendant removed as executor and trustee of deceased's estate - Plaintiff appointed in place - Miller v Cameron (1936) 54 CLR 572 - Monty Financial Services v Delmo [1996] 1 VR 65 - Fysh v Coote [2000] VSCA 150 - Dowling v St Vincent de Paul Society of Victoria Inc [2003] VSC 454 - Administration and Probate Act 1958 (Vic) s 34(1)(c) - Trustee Act 1958 (Vic) s 19(1)(f) - Family Law Act 1975 (Cth) ss 90C, 90G(1) - Supreme Court (General Civil Procedure) Rules 2025 (Vic), Order 54.
COSTS - Where plaintiff seeks defendant pay costs on indemnity basis without indemnification from deceased's estate - Where defendant's failures are numerous and profound - Impropriety exception - Defendant to pay plaintiff's costs on indemnity basis - Costs to be paid personally by defendant without indemnification from estate - Banksia Securities Ltd v Insurance House Pty Ltd (Costs) [2020] VSC 234 - Hopkins v Edwards [2020] VSC 456.
LIMITATION OF ACTIONS - Limitation of Actions Act 1958 (Vic) ss 27QD, 27QE - Institutional abuse - Prior settlement deed - Application to set aside prior deed - Whether just and reasonable to set aside prior deed - Where plaintiff overcame a limitation of actions defence in prior proceeding - Whether any legal barriers impacted plaintiff's decision to enter into the prior deed - Whether the law on vicarious liability impacted plaintiff's decision to enter into the prior deed - Adequacy of the settlement sum and other risk factors - Adequacy of legal representation - Bargaining power of the parties and conduct of the defendant - Plaintiff's mental health - Not just and reasonable to set aside prior deed - DZY (a pseudonym) v Trustees of the Christian Brothers (2025) 99 ALJR 806 - New South Wales v Lepore (2003) 212 CLR 511 - Prince Alfred College Inc v ADC (2016) 258 CLR 134.
LIMITATION OF ACTIONS - Limitation of Actions Act 1958 (Vic) ss 27QD, 27QE - Institutional abuse - Prior settlement deed - Application to set aside prior deed - Whether just and reasonable to set aside prior deed - Where plaintiff overcame a limitation of actions defence in prior proceeding - Whether any legal barriers impacted plaintiff's decision to enter into the prior deed - Whether the law on vicarious liability impacted plaintiff's decision to enter into the prior deed - Adequacy of the settlement sum and other risk factors - Adequacy of legal representation - Bargaining power of the parties and conduct of the defendant - Plaintiff's mental health - Not just and reasonable to set aside prior deed - DZY (a pseudonym) v Trustees of the Christian Brothers (2025) 99 ALJR 806 - New South Wales v Lepore (2003) 212 CLR 511 - Prince Alfred College Inc v ADC (2016) 258 CLR 134.
LIMITATION OF ACTIONS - Historical sexual abuse - Settlement agreement - Application to set aside settlement agreement pursuant to s 27QD of Limitation of Actions Act 1958 (Vic) - Whether 'just and reasonable' to set aside agreement, in whole or part - Where Ellis defence materially influenced plaintiff's decision to enter into settlement agreement - Where plaintiff voluntarily gave up claim for economic loss - Just and reasonable to set aside only part of the deed - Limitation of Actions Act 1958 (Vic), ss 27QA(2), 27QD, 27QE - Trustees of the Roman Catholic Church of the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565; DZY v Trustees of the Christian Brothers (2025) 99 ALJR 806; Roman Catholic Trusts Corporation for the Diocese of Sale v WCB (2020) 62 VR 234.
LIMITATION OF ACTIONS - Historical sexual abuse - Settlement agreement - Application to set aside settlement agreement pursuant to s 27QD of Limitation of Actions Act 1958 (Vic) - Whether 'just and reasonable' to set aside agreement, in whole or part - Where Ellis defence materially influenced plaintiff's decision to enter into settlement agreement - Where plaintiff voluntarily gave up claim for economic loss - Just and reasonable to set aside only part of the deed - Limitation of Actions Act 1958 (Vic), ss 27QA(2), 27QD, 27QE - Trustees of the Roman Catholic Church of the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565; DZY v Trustees of the Christian Brothers (2025) 99 ALJR 806; Roman Catholic Trusts Corporation for the Diocese of Sale v WCB (2020) 62 VR 234.
JUDICIAL REVIEW - Appeal on a question of law pursuant to s 109 of the Magistrates' Court Act 1989 (Vic) - Claim against former employee for recovery of allegedly unauthorised payment of legal fees - Whether the magistrate mistook the evidence and made a decision no reasonable magistrate could make - Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 referred to - Whether the magistrate erred in failing to draw an inference from what was said and not said in telephone and email communications - Whether only available inference - Whether exception to the Abalos principle applies - Abalos v Australian Postal Commission (1990) 171 CLR 167, Fox v Percy (2003) 214 CLR 118, and Lee v Lee (2019) 266 CLR 129 referred to - Learned magistrate considered the appellant's evidence but this did not overcome credibility issues - Learned magistrate did not reach a conclusion which was glaringly improbable or contrary to incontrovertible facts - Appeal dismissed.
JUDICIAL REVIEW - Appeal on a question of law pursuant to s 109 of the Magistrates' Court Act 1989 (Vic) - Claim against former employee for recovery of allegedly unauthorised payment of legal fees - Whether the magistrate mistook the evidence and made a decision no reasonable magistrate could make - Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 referred to - Whether the magistrate erred in failing to draw an inference from what was said and not said in telephone and email communications - Whether only available inference - Whether exception to the Abalos principle applies - Abalos v Australian Postal Commission (1990) 171 CLR 167, Fox v Percy (2003) 214 CLR 118, and Lee v Lee (2019) 266 CLR 129 referred to - Learned magistrate considered the appellant's evidence but this did not overcome credibility issues - Learned magistrate did not reach a conclusion which was glaringly improbable or contrary to incontrovertible facts - Appeal dismissed.
PRACTICE AND PROCEDURE - The plaintiff be released from obligations per s 27(1) of the Civil Procedure Act 2010 (Vic) - Release of plaintiff from Harman obligations - Production of documents in institutional abuse appeal with related facts - Clifford v Missionaries of the Sacred Heart [2024] VSC 812 - Clifford (A Pseudonym) v Corp of Society of Missionaries of Sacred Heart [2025] VSCA 169 - Relevance of documents contested - Williams v TT-Line [2021] VSC 150 - Goulburn Valley Grammar School Limited v Liberty Mutual Insurance Company [2025] VSC 467 - Whether special circumstances exist - Contested documents relevant - Release from implied undertaking.
PRACTICE AND PROCEDURE - The plaintiff be released from obligations per s 27(1) of the Civil Procedure Act 2010 (Vic) - Release of plaintiff from Harman obligations - Production of documents in institutional abuse appeal with related facts - Clifford v Missionaries of the Sacred Heart [2024] VSC 812 - Clifford (A Pseudonym) v Corp of Society of Missionaries of Sacred Heart [2025] VSCA 169 - Relevance of documents contested - Williams v TT-Line [2021] VSC 150 - Goulburn Valley Grammar School Limited v Liberty Mutual Insurance Company [2025] VSC 467 - Whether special circumstances exist - Contested documents relevant - Release from implied undertaking.
PRACTICE AND PROCEDURE - Injunctive relief - Building contract - Application to restrain principal from call on bank guarantees - Serious issue to be tried - Plaintiff has strong arguable case that entitlement to call on bank guarantees does not arise or has not accrued - Balance of convenience - reputational damage - Application for injunction granted.
PRACTICE AND PROCEDURE - Injunctive relief - Building contract - Application to restrain principal from call on bank guarantees - Serious issue to be tried - Plaintiff has strong arguable case that entitlement to call on bank guarantees does not arise or has not accrued - Balance of convenience - reputational damage - Application for injunction granted.
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.
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.
CONFISCATION AND PROCEEDS OF CRIME
CONFISCATION AND PROCEEDS OF CRIME
PRACTICE AND PROCEDURE - Subpoenas issued by accused to non-parties - Applications to set aside - Whether legitimate forensic purpose - Whether reasonable possibility of documents materially assisting accused's case - Some subpoenaed documents already produced or disclosed - Failure to identify legitimate forensic purpose - No reasonable possibility of assisting accused's case - Subpoenas set aside.
PRACTICE AND PROCEDURE - Subpoenas issued by accused to non-parties - Applications to set aside - Whether legitimate forensic purpose - Whether reasonable possibility of documents materially assisting accused's case - Some subpoenaed documents already produced or disclosed - Failure to identify legitimate forensic purpose - No reasonable possibility of assisting accused's case - Subpoenas set aside.
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 - Application for bail - Where applicant is charged with drug trafficking, possessing various drugs of dependence and driving dangerously in suburban areas while pursued by police - Where applicant already on bail and subject to community corrections order for Schedule 2 offences - Whether exceptional circumstances exist - Where applicant is eight months pregnant with her first child - Where pregnancy has complications and is associated with additional stressors in custody - Where applicant is able to access appropriate antenatal treatment in custody - Where period of remand unlikely to exceed any sentence imposed - Where applicant has access to stable accommodation and other supports in the community - Exceptional circumstances established - Whether applicant poses unacceptable risk - Where applicant has access to mental health and drug treatments support in the community - Where applicant has demonstrated a willingness to act unlawfully even while under supervision by relevant authorities - Where applicant submits she will not revert to her drug lifestyle because of her pregnancy - Where applicant has told falsehoods about her drug use to supervising authorities and drug treatment supports - Where foetus is not 'other person' for purpose of assessing unacceptable risk of endangering safety or welfare of any other person, but future child is - Unacceptable risk of committing Schedule 2 offence - Unacceptable risk of endangering the safety or welfare of any other person - Bail denied - R v Boulton (2014) 46 VR 308 - Bail Act 1977 (Vic) ss 3AAA, 4A, 4E - Interpretation of Legislation Act 1984 (Vic) s 38.
CRIMINAL LAW - Application for bail - Where applicant is charged with drug trafficking, possessing various drugs of dependence and driving dangerously in suburban areas while pursued by police - Where applicant already on bail and subject to community corrections order for Schedule 2 offences - Whether exceptional circumstances exist - Where applicant is eight months pregnant with her first child - Where pregnancy has complications and is associated with additional stressors in custody - Where applicant is able to access appropriate antenatal treatment in custody - Where period of remand unlikely to exceed any sentence imposed - Where applicant has access to stable accommodation and other supports in the community - Exceptional circumstances established - Whether applicant poses unacceptable risk - Where applicant has access to mental health and drug treatments support in the community - Where applicant has demonstrated a willingness to act unlawfully even while under supervision by relevant authorities - Where applicant submits she will not revert to her drug lifestyle because of her pregnancy - Where applicant has told falsehoods about her drug use to supervising authorities and drug treatment supports - Where foetus is not 'other person' for purpose of assessing unacceptable risk of endangering safety or welfare of any other person, but future child is - Unacceptable risk of committing Schedule 2 offence - Unacceptable risk of endangering the safety or welfare of any other person - Bail denied - R v Boulton (2014) 46 VR 308 - Bail Act 1977 (Vic) ss 3AAA, 4A, 4E - Interpretation of Legislation Act 1984 (Vic) s 38.
CRIMINAL LAW - Application for bail - Applicant charged with firearm offences and contravention of family violence intervention order whilst on bail - Where applicant has history of firearm offences - Where applicant was twice subject to community correction orders - Where persons affected by family violence are supportive of bail application - Where availability of accommodation with family friend and ex-policeman - Where Court Integrated Services Program recommends the applicant for case management - Where firearms are two air rifles and a homemade PVC fruit gun - Where no suggestion that firearms ever used in a threatening manner - Where exceptional circumstances exist to justify grant of bail - Where the risk is acceptable with imposition of bail conditions - Bail Act 1977 (Vic) ss 4AA, 4A.
CRIMINAL LAW - Application for bail - Applicant charged with firearm offences and contravention of family violence intervention order whilst on bail - Where applicant has history of firearm offences - Where applicant was twice subject to community correction orders - Where persons affected by family violence are supportive of bail application - Where availability of accommodation with family friend and ex-policeman - Where Court Integrated Services Program recommends the applicant for case management - Where firearms are two air rifles and a homemade PVC fruit gun - Where no suggestion that firearms ever used in a threatening manner - Where exceptional circumstances exist to justify grant of bail - Where the risk is acceptable with imposition of bail conditions - Bail Act 1977 (Vic) ss 4AA, 4A.
CRIMINAL LAW - Application for Bail - Applicant seeking bail in relation to ten offences - Significant criminal history - Family violence - History of childhood trauma and ongoing substance abuse and mental health issues - Physical health issues - Delay - Compelling reason not established - Unacceptable risk established - Bail refused - Bail Act 1977 (Vic) ss 1(B), 3AAA, 4B-4E, 5AAAA.
CRIMINAL LAW - Application for Bail - Applicant seeking bail in relation to ten offences - Significant criminal history - Family violence - History of childhood trauma and ongoing substance abuse and mental health issues - Physical health issues - Delay - Compelling reason not established - Unacceptable risk established - Bail refused - Bail Act 1977 (Vic) ss 1(B), 3AAA, 4B-4E, 5AAAA.
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.
SUMMARY JUDGMENT - Application for partial summary judgment - Uncontested evidence - Partnership - Alleged abandonment of business - Defence of breach of fiduciary obligations arising from alleged competing business - Inconsistent pleas on facts - Contradictory alternative plea - Partial summary judgment granted.
SUMMARY JUDGMENT - Application for partial summary judgment - Uncontested evidence - Partnership - Alleged abandonment of business - Defence of breach of fiduciary obligations arising from alleged competing business - Inconsistent pleas on facts - Contradictory alternative plea - Partial summary judgment granted.
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.