COURTS AND JUDGES - Orders after judgment remitting matter to associate judge - Determination of fair value - Valuation as at date of order of associate judge - Whether order requires working out - Whether order needing clarification - Liberty to apply not reserved - Whether Court of Appeal has power to vary order - Whether order should be varied in any event - Application to vary order dismissed.
COURTS AND JUDGES - Orders after judgment remitting matter to associate judge - Determination of fair value - Valuation as at date of order of associate judge - Whether order requires working out - Whether order needing clarification - Liberty to apply not reserved - Whether Court of Appeal has power to vary order - Whether order should be varied in any event - Application to vary order dismissed.
CORPORATIONS - Appeal - Statutory demand - Application to set aside demand - Whether plausible contention requiring further investigation as to genuine dispute - Whether plausible contention requiring further investigation as to debt amount - Whether plausible contention requiring further investigation that respondent acted unconscionably in recovering debt while negotiations were ongoing - No plausible contention established by applicant's evidence - Leave to appeal refused.
CORPORATIONS - Appeal - Statutory demand - Application to set aside demand - Whether plausible contention requiring further investigation as to genuine dispute - Whether plausible contention requiring further investigation as to debt amount - Whether plausible contention requiring further investigation that respondent acted unconscionably in recovering debt while negotiations were ongoing - No plausible contention established by applicant's evidence - Leave to appeal refused.
Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (in liq) [2015] VSCA 330; Coulton v Holcombe (1986) 162 CLR 1; Sambucco v Sambucco (2023) 72 VR 121; Water Board v Moustakas (1988) 180 CLR 491, applied; Ligon 158 Pty Ltd v Huber (2016) 117 ACSR 495; Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785, considered.
Corporations Act 2001 (Cth), ss 459G, 459H, 459J.
APPEAL - Administrative Law - Decision of Homes Victoria to redevelop public housing towers in Melbourne - Representative proceeding brought by resident seeking judicial review of decision - Judicial review proceeding dismissed - Procedural fairness - Nature of power - Whether decision affected legally recognised right or interest - Content of procedural fairness obligation - Materiality - No obligation to afford procedural fairness - Leave to appeal granted - Appeal dismissed.
APPEAL - Administrative Law - Decision of Homes Victoria to redevelop public housing towers in Melbourne - Representative proceeding brought by resident seeking judicial review of decision - Judicial review proceeding dismissed - Procedural fairness - Nature of power - Whether decision affected legally recognised right or interest - Content of procedural fairness obligation - Materiality - No obligation to afford procedural fairness - Leave to appeal granted - Appeal dismissed.
Housing Act 1983, ss 4, 6, 9, 10, 13, 14, 15.
Residential Tenancies Act 1997, ss 67, 91ZY, 330.
Badari v Minister for Territory Families and Urban Housing [2025] HCA 47; Disorganized Developments Pty Ltd v South Australia (2023) 280 CLR 515; Keasey v Director of Housing (2022) 66 VR 45; King v Ombudsman (2020) 137 SASR 18; Kioa v West (1985) 159 CLR 550; Plaintiff M61 (2010) 243 CLR 319, applied.
APPEAL - Charter of Human Rights and Responsibilities - Right to home - Whether decision constituted arbitrary interference - Whether Homes Victoria discharged onus to establish demonstrable justification - Whether Homes Victoria complied with procedural limb of s 38(1) of Charter - No arbitrary interference established.
Charter of Human Rights and Responsibilities Act 2006, ss 7, 13, 38(1).
HJ v Independent Broad-Based Anti-Corruption Commission (2021) 64 VR 270; Thompson v Minogue (2021) 67 VR 301; WBM v Commissioner of Police (2012) 43 VR 446, applied.
APPEAL - Evidence - Objection to expert evidence - Technical reports unavailable - Whether evidence unfairly prejudicial - Whether procedural prejudice - No error admitting evidence established.
Evidence Act 2008, s 135.
Moore (a pseudonym) v The King (2024) 308 A Crim R 592; R v Suteski (2002) 56 NSWLR 182; IMM v The Queen (2016) 257 CLR 300, applied.
PRACTICE AND PROCEDURE - Extensions of time - Self-represented applicant in protracted dispute with former lawyers over non-payment of legal fees and with executors of his late mother's estate about his distribution from estate - Whether applicant denied procedural fairness - Whether judge erred in determining no utility to grant extensions of time to appeal self-executing orders dismissing proposed appeals from decisions of Magistrate on basis that the proposed appeals from decisions of Magistrate had no prospects of success - Applications for leave to appeal totally without merit - Leave to appeal refused
PRACTICE AND PROCEDURE - Extensions of time - Self-represented applicant in protracted dispute with former lawyers over non-payment of legal fees and with executors of his late mother's estate about his distribution from estate - Whether applicant denied procedural fairness - Whether judge erred in determining no utility to grant extensions of time to appeal self-executing orders dismissing proposed appeals from decisions of Magistrate on basis that the proposed appeals from decisions of Magistrate had no prospects of success - Applications for leave to appeal totally without merit - Leave to appeal refused
Roberts v Harkness (2018) 57 VR 334; Trkulja v Markovic [2015] VSCA 298; Cai v County Court of Victoria [2017] VSCA 278; Macedon Ranges Shire Council v Thompson (2009) 170 LGERA 41.
PRACTICE AND PROCEDURE - Applicants sought to file document headed 'Writ' - Prothonotary refused to accept document for filing - Applicants did not seek that the Court exercise its power pursuant to r 28.04(5) - Primary judge did not decide whether to direct First Respondent to accept document for filing - No determination capable of being appealed - Leave to appeal refused.
PRACTICE AND PROCEDURE - Applicants sought to file document headed 'Writ' - Prothonotary refused to accept document for filing - Applicants did not seek that the Court exercise its power pursuant to r 28.04(5) - Primary judge did not decide whether to direct First Respondent to accept document for filing - No determination capable of being appealed - Leave to appeal refused.
Supreme Court (General Civil Procedure) Rules 2025, rr 28A.04(2), 28A.04(5), 64.15(5)(iv); Supreme Court Act 1986, s 14D(3).
Re Thorpe [2024] VSCA 172; O'Bryan v Lindholm (2024) 74 VR 496, considered.
PRACTICE AND PROCEDURE - Filing - Applicant sought to file document seeking directions for the assembly of a special court to hear certain matters and commencement of criminal proceeding - Deputy Prothonotary refused to seal documents as documents substantially and procedurally irregular - Judge declined to direct Prothonotary to seal document - Application is totally without merit - Leave to appeal refused.
PRACTICE AND PROCEDURE - Filing - Applicant sought to file document seeking directions for the assembly of a special court to hear certain matters and commencement of criminal proceeding - Deputy Prothonotary refused to seal documents as documents substantially and procedurally irregular - Judge declined to direct Prothonotary to seal document - Application is totally without merit - Leave to appeal refused.
Supreme Court (General Civil Procedure) Rules 2025, rr 28A.04(2), 64.15(5)(iv); Supreme Court Act 1986, s 14D(3).
LANDLORD AND TENNANT - Residential rental agreement - Order made by VCAT that tenant pay landlord compensation for unpaid rent and other costs incurred by landlord - Application for extension of time within which to seek leave to appeal from VCAT orders - Whether judge erred in refusing application for extension of time - Whether VCAT erred in law - Whether VCAT made jurisdictional error - Whether VCAT denied applicant procedural fairness - Applicant not establishing any error or denial of procedural fairness or bias on the part of VCAT - Proposed appeal having no prospects of success - Application for leave to appeal totally without merit - Application for leave to appeal refused.
LANDLORD AND TENNANT - Residential rental agreement - Order made by VCAT that tenant pay landlord compensation for unpaid rent and other costs incurred by landlord - Application for extension of time within which to seek leave to appeal from VCAT orders - Whether judge erred in refusing application for extension of time - Whether VCAT erred in law - Whether VCAT made jurisdictional error - Whether VCAT denied applicant procedural fairness - Applicant not establishing any error or denial of procedural fairness or bias on the part of VCAT - Proposed appeal having no prospects of success - Application for leave to appeal totally without merit - Application for leave to appeal refused.
Residential Tenancies Act 1997, ss 419A and 452; Victorian Civil and Administrative Tribunal Act 1998, ss 120, 126 and 148; Supreme Court Act 1986, s 14D(3).
TORTS - Appeal - Personal injury - Negligence - Plane crash during solo flying assessment - Whether aircraft under control of student and/or instructor - Whether instructor's negligence was a cause of plane crash - Whether plane crash solely the fault of student pilot - Whether judge made findings against weight of evidence - Evidence - Whether judge erred in accepting plaintiff's evidence in circumstances where judge found plaintiff's evidence unsatisfactory - No error in judge's analysis - Leave to appeal granted - Appeal dismissed.
TORTS - Appeal - Personal injury - Negligence - Plane crash during solo flying assessment - Whether aircraft under control of student and/or instructor - Whether instructor's negligence was a cause of plane crash - Whether plane crash solely the fault of student pilot - Whether judge made findings against weight of evidence - Evidence - Whether judge erred in accepting plaintiff's evidence in circumstances where judge found plaintiff's evidence unsatisfactory - No error in judge's analysis - Leave to appeal granted - Appeal dismissed.
Fox v Percy (2003) 214 CLR 118; Lee v Lee (2019) 266 CLR 129, applied.
DAMAGES - Loss of earning capacity - Loss of future earning capacity - Likelihood of occurrence of future events - Vicissitudes - Whether judge erred in failing to make Malec discount for future loss of earning capacity - Whether judge erred in discounting future loss of earning capacity only by reference to vicissitudes - No error in judge's analysis - Leave to appeal granted - Appeal dismissed.
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, discussed.
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649; Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485, referred to.
CRIMINAL LAW - Application for leave to appeal - Conviction - Applicant sentenced to 5 months' imprisonment (aggregate sentence) combined with a 2-year community correction order for one charge of aggravated burglary and two charges of theft (including theft of motor vehicle) with co-offenders - Applicant pleaded guilty after sentence indication hearing - Director appealed sentence on basis of manifest inadequacy - Application for leave to appeal against conviction instituted after applicant informed by the Court of Appeal that he was at risk of increase in sentence - Whether triable issues - Whether guilty plea freely made or improperly induced - Whether substantial miscarriage of justice - Plea freely and voluntarily made - Application for extension of time granted - Leave to appeal granted - Appeal dismissed.
CRIMINAL LAW - Application for leave to appeal - Conviction - Applicant sentenced to 5 months' imprisonment (aggregate sentence) combined with a 2-year community correction order for one charge of aggravated burglary and two charges of theft (including theft of motor vehicle) with co-offenders - Applicant pleaded guilty after sentence indication hearing - Director appealed sentence on basis of manifest inadequacy - Application for leave to appeal against conviction instituted after applicant informed by the Court of Appeal that he was at risk of increase in sentence - Whether triable issues - Whether guilty plea freely made or improperly induced - Whether substantial miscarriage of justice - Plea freely and voluntarily made - Application for extension of time granted - Leave to appeal granted - Appeal dismissed.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Whether aggregate sentence manifestly inadequate - Whether residual discretion on Director's appeal should be exercised - Sentence manifestly inadequate - No basis to exercise residual discretion - Appeal allowed - Resentenced to 3 years' imprisonment with a non-parole period of 22 months.
Criminal Procedure Act 2009, ss 207, 208, 209, 276.
Meissner v The Queen (1995) 184 CLR 132; Jamieson v The Queen [2017] VSCA 140; Peters v The Queen (No 2) (2019) 60 VR 231; DPP v Browne [2023] VSCA 13; Mongan v The King [2024] VSCA 126; Monaghan v The Queen [2022] VSCA 247; DPP v Karazisis (2010) 31 VR 634; DPP v Green (2011) 244 CLR 462, applied.
Guariglia v The Queen (2010) 208 A Crim R 49; Brown v The Queen [2021] VSCA 204, considered.
R v Turner [1970] 2 QB 321; R v Warfield (1994) 34 NSWLR 200; R v Glass (1994) 73 A Crim R 299; Spanakakis (1995) 83 A Crim R 513; R v Goodyear [2005] 1 WLR 2532; Hogarth v The Queen (2012) 37 VR 658; DPP v Meyers (2014) 44 VR 486, discussed.
CRIMINAL LAW - Interlocutory Appeal - Application for leave - Aggravated carjacking - Intentionally cause serious injury - Application to exclude evidence pursuant to ss 135 and 137 Evidence Act 2008 - Whether evidence likely to lead to undue waste of time, and be misleading or confusing - Whether probative value of evidence outweighed by danger of unfair prejudice - Call charge records not misleading, of high probative value not outweighed by danger of unfair prejudice - GPS tracking evidence of high probative value not outweighed by danger of unfair prejudice - Video mapping misleading in part - Video mapping giving rise to danger of unfair prejudice - Leave to appeal granted - Appeal allowed in respect of evidence of video mapping.
CRIMINAL LAW - Interlocutory Appeal - Application for leave - Aggravated carjacking - Intentionally cause serious injury - Application to exclude evidence pursuant to ss 135 and 137 Evidence Act 2008 - Whether evidence likely to lead to undue waste of time, and be misleading or confusing - Whether probative value of evidence outweighed by danger of unfair prejudice - Call charge records not misleading, of high probative value not outweighed by danger of unfair prejudice - GPS tracking evidence of high probative value not outweighed by danger of unfair prejudice - Video mapping misleading in part - Video mapping giving rise to danger of unfair prejudice - Leave to appeal granted - Appeal allowed in respect of evidence of video mapping.
Evidence Act 2008 ss 69, 79(1), 135, 137.
Telecommunications (Interception and Access) Act 1979 (Cth) ss 187(A), 187(AA).
Honeysett v The Queen (2014) 253 CLR 122, applied.
Davies v The Queen [2019] VSCA 66; Godwin (a pseudonym) v The King [2024] VSCA 225; Moreno (a pseudonym) v The King [2023] VSCA 98; Wagner v The King [2025] VSCA 56, referred to.
CRIMINAL LAW - Appeal - Applicant convicted of two charges of rape - Prosecutor's address - Prosecutor alleged that prosecution witness had 'gone in to bat' for applicant - Witness cross-examined by prosecutor by leave under s 38 of Evidence Act 2008 - Prosecutor failed to put allegation of bias and/or partiality to witness - Whether duty of fairness breached and breach of rule in Browne v Dunn (1893) 6 R 67 - Whether prosecutor in final address invited incriminating conduct reasoning - Whether prosecutor's address inverted the onus of proof - Whether prosecutor's address breached rule in Palmer v The Queen (1998) 138 CLR 1 - Application for extension of time refused.
CRIMINAL LAW - Appeal - Applicant convicted of two charges of rape - Prosecutor's address - Prosecutor alleged that prosecution witness had 'gone in to bat' for applicant - Witness cross-examined by prosecutor by leave under s 38 of Evidence Act 2008 - Prosecutor failed to put allegation of bias and/or partiality to witness - Whether duty of fairness breached and breach of rule in Browne v Dunn (1893) 6 R 67 - Whether prosecutor in final address invited incriminating conduct reasoning - Whether prosecutor's address inverted the onus of proof - Whether prosecutor's address breached rule in Palmer v The Queen (1998) 138 CLR 1 - Application for extension of time refused.
Evidence Act 2008, s 38.
Jury Directions Act 2015, s 18.
Criminal Procedure Act 2009, s 276(1)(b)-(c).
Browne v Dunn (1893) 6 R 67; Murillo (a pseudonym) v The Queen [2020] VSCA 68; R v Le (2002) 54 NSWLR 474; Reid v Kerr (1974) 9 SASR 367; Thomas v van den Yssel (1976) 14 SASR 205; Soames v The Queen [2012] NSWCCA 188; Ritchie (a pseudonym) v The Queen [2019] VSCA 202; Palmer v The Queen (1998) 138 CLR 1; Spence v The Queen [2016] VSCA 113, discussed.
Saddik v The Queen [2018] VSCA 249; Liberato v The Queen (1985) 159 CLR 507, referred to.
COSTS - Appeal - Application for extension of time within which to seek leave to appeal against costs order - Application for leave to appeal against costs order - Proposed appeal having no prospect of success - No adequate explanation for delay - Application for leave to appeal totally without merit - No basis for granting extension of time - Applications dismissed.
COSTS - Appeal - Application for extension of time within which to seek leave to appeal against costs order - Application for leave to appeal against costs order - Proposed appeal having no prospect of success - No adequate explanation for delay - Application for leave to appeal totally without merit - No basis for granting extension of time - Applications dismissed.
Freedom of Information Act 1982, s 39; Supreme Court Act 1986, s 14D.
COSTS - Mortgages - Mortgagee's entitlement to costs under general law and rules of court - Whether costs discretion should be exercised in accordance with contract - Where mortgagor alleged mortgagee invalidly appointed receivers - Mortgagee successful at trial but on appeal receivers found to be invalidly appointed - Mortgagee awarded 75 percent of costs of trial - Contract excluded mortgagee's liability for 'attempted' or 'purported' exercise of power - Contract indemnified mortgagee for 'exercise or attempted' exercise of power - Mortgagee rejected Calderbank offers - Costs in the Court's discretion - Orders for trial costs set aside - Mortgagee ordered to pay 25 percent of trial costs - No order for costs of appeal.
COSTS - Mortgages - Mortgagee's entitlement to costs under general law and rules of court - Whether costs discretion should be exercised in accordance with contract - Where mortgagor alleged mortgagee invalidly appointed receivers - Mortgagee successful at trial but on appeal receivers found to be invalidly appointed - Mortgagee awarded 75 percent of costs of trial - Contract excluded mortgagee's liability for 'attempted' or 'purported' exercise of power - Contract indemnified mortgagee for 'exercise or attempted' exercise of power - Mortgagee rejected Calderbank offers - Costs in the Court's discretion - Orders for trial costs set aside - Mortgagee ordered to pay 25 percent of trial costs - No order for costs of appeal.
Supreme Court Act 1986, s 24; Supreme Court (General Civil Procedure) Rules 2025, rr 63.13, 63.26.
Balanced Securities v Dumayne Property Group Pty Ltd (2017) 53 VR 14; Overton Investments Pty Ltd v Cuzeno RVM Pty Ltd [2003] NSWCA 27; Chen v Kevin McNamara & Son Pty Ltd [2012] VSCA 229; Talacko v Talacko [2009] VSC 579; Gomba Holdings (UK) Ltd v Minories Finance Ltd [No 2] [1993] Ch 171, applied.
In re Watts; Smith v Watts (1882) 22 Ch D 5; Cotterell v Stratton (1872) LR 8 Ch App 295; Pearson v Dennett (1911) 11 SR (NSW) 449, distinguished.
Calderbank v Calderbank [1975] 3 WLR 586; Cotterell v Finney (1874) LR 9 Ch App 541; Credland v Potter (1874) 10 Ch App 8; Kinnaird v Trollope (1889) 42 Ch D 610; KBL Mining Limited v Kidman Resources Limited [2015] NSWSC 515; Kyabram Property Investments Pty Ltd v Murray [2006] NSWSC 54, considered.
OPEN COURTS ACT 2013 - Documents released by Family Court of Australia on condition of confidentiality - Referral to regulator by Family Court - Interim proceeding suppression orders made - Application by regulator for permanent orders - Whether orders proposed are 'necessary' for the proper administration of justice - Risk of 'chilling effect' on notifiers - Where conflicting considerations arise in different jurisdictions - Inherent jurisdiction to make anonymisation orders and closed file orders - Whether proceeding suppression order appropriate in the circumstance - Greater limitation to the scope of order than previously judicially considered - Closed file order made - Non-publication order considered - Modified form of reasons for judgment published - Pseudonym orders maintained.
OPEN COURTS ACT 2013 - Documents released by Family Court of Australia on condition of confidentiality - Referral to regulator by Family Court - Interim proceeding suppression orders made - Application by regulator for permanent orders - Whether orders proposed are 'necessary' for the proper administration of justice - Risk of 'chilling effect' on notifiers - Where conflicting considerations arise in different jurisdictions - Inherent jurisdiction to make anonymisation orders and closed file orders - Whether proceeding suppression order appropriate in the circumstance - Greater limitation to the scope of order than previously judicially considered - Closed file order made - Non-publication order considered - Modified form of reasons for judgment published - Pseudonym orders maintained.
Open Courts Act 2013 (Vic) ss 4, 17, 18, 20; Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 28.05(4); WEQ (a pseudonym) v Medical Board of Australia [2021] VSCA 343; (2021) 69 VR 1; WEQ (a pseudonym) v Medical Board of Australia [2025] VSCA 100, referred to.
APPEALS - PRACTICE AND PROCEDURE - Competency of appeal on question of law where order appealed from has ceased to operate - Appeal dismissed as incompetent - Children, Youth and Families Act 2005, ss 282, 329 - AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 278 CLR 512 - O'Bryan v Lindholm (2024) 74 VR 496.
APPEALS - PRACTICE AND PROCEDURE - Competency of appeal on question of law where order appealed from has ceased to operate - Appeal dismissed as incompetent - Children, Youth and Families Act 2005, ss 282, 329 - AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 278 CLR 512 - O'Bryan v Lindholm (2024) 74 VR 496.
WILLS AND ESTATES - Principal beneficiary of estate does not exist in the manner contemplated by the deceased, or at all - Applicability of Re Benjamin; Neville v Benjamin [1902] 1 Ch 723 - Construction and effect of testamentary disposition - Gift to principal beneficiary ineffective - Where non-existence of principal beneficiary not expressed as contingency for gift over - Whether gift over saved by the rule in Jones v Westcomb (1711) Prec Ch 316 - Where gift over saved.
WILLS AND ESTATES - Principal beneficiary of estate does not exist in the manner contemplated by the deceased, or at all - Applicability of Re Benjamin; Neville v Benjamin [1902] 1 Ch 723 - Construction and effect of testamentary disposition - Gift to principal beneficiary ineffective - Where non-existence of principal beneficiary not expressed as contingency for gift over - Whether gift over saved by the rule in Jones v Westcomb (1711) Prec Ch 316 - Where gift over saved.
WILLS AND ESTATES - Judicial advice - Plaintiff acting in capacity as administrator ad colligendum bona of estate - Advice sought on proposed partial implementation of agreement between First and Second Defendants and the Estate - Agreement reached following judicial mediation with all parties in 2019 - Plaintiff has obtained independent legal and taxation advice on proposed implementation - Proposal within plaintiff's powers as administrator - Implementation of agreement not improper exercise of plaintiff's powers.
WILLS AND ESTATES - Judicial advice - Plaintiff acting in capacity as administrator ad colligendum bona of estate - Advice sought on proposed partial implementation of agreement between First and Second Defendants and the Estate - Agreement reached following judicial mediation with all parties in 2019 - Plaintiff has obtained independent legal and taxation advice on proposed implementation - Proposal within plaintiff's powers as administrator - Implementation of agreement not improper exercise of plaintiff's powers.
Supreme Court (General Civil Procedure) Rules 2025, rr 54.02.
Re Yan; Hughes v Wong (No 2) [2016] VSC 504; Mirabella Nickel Ltd (in liq) v Mining Standards International Pty Ltd [2025] WASCA 82; Morris v Smoel [2013] VSCA 11; Longboat Holdings GroupNo3 Pty Ltd v Zacole Pty Ltd & Ors [2021] VSC 280; ExxonMobil Superannuation Plan Pty Ltd v Esso Australia Pty Ltd (2010) 29 VR 356; Re Cohen, deceased [1975] VR 187, considered.
PRACTICE AND PROCEDURE - Alleged breach of trust - Application for summary judgment - Application to restrain solicitor from acting - Notices to produce documents - Whether conduct inconsistent with claim for privilege being maintained - Application to restrain solicitor from acting dismissed - Application for summary judgment dismissed - Paragraphs of statement of claim struck out - Plaintiff given opportunity to replead.
PRACTICE AND PROCEDURE - Alleged breach of trust - Application for summary judgment - Application to restrain solicitor from acting - Notices to produce documents - Whether conduct inconsistent with claim for privilege being maintained - Application to restrain solicitor from acting dismissed - Application for summary judgment dismissed - Paragraphs of statement of claim struck out - Plaintiff given opportunity to replead.
PRACTICE AND PROCEDURE - Security for costs - Application against natural person - Supreme Court (General Civil Procedure) Rules 2025 (Vic) - r 62.02(1)(f) - Inherent jurisdiction to award security - Whether impecuniosity established - Whether real risk that costs order will be unenforceable - Where previous unpaid costs orders - Where respondent seeks stay of appeal pending payment of security sum together with payment of taxed costs in related proceeding - Security for costs refused.
PRACTICE AND PROCEDURE - Security for costs - Application against natural person - Supreme Court (General Civil Procedure) Rules 2025 (Vic) - r 62.02(1)(f) - Inherent jurisdiction to award security - Whether impecuniosity established - Whether real risk that costs order will be unenforceable - Where previous unpaid costs orders - Where respondent seeks stay of appeal pending payment of security sum together with payment of taxed costs in related proceeding - Security for costs refused.
ADMINISTRATIVE LAW - Judicial review and appeals - Application for leave to appeal against interlocutory orders of VCAT - Victorian Civil and Administrative Tribunal Act 1998 (Vic) - s 79 - Security for costs - s 148(7)(b) - Where security for costs sought on appeal an order 'that the Tribunal could have made in the proceeding' - Jurisdiction to make substitutive order only enlivened following the identification of error of law made by VCAT member - Osland v Secretary to the Department of Justice (2010) 241 CLR 320 followed.
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.
ADMINISTRATIVE LAW - Judicial review - Opinion of a Medical Panel - Whether the Medical Panel committed jurisdictional error - Whether the Medical Panel failed to have regard to a mandatory relevant consideration - Whether the Medical Panel failed to set out a path of reasoning which would enable a court to see whether the opinion does or does not involve any error of law - Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 - Victorian Workcover Authority v Putrus [2023] VSCA 28 - Victorian Workcover Authority v Jamali [2023] VSCA 240 - Sidiqi v Kotsios [2021] VSCA 187 - Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649 - Colquhoun v Capitol Radiology Pty Ltd (2013) 39 VR 296 - Ayana v Qantas Airways Ltd [2021] VSC 500 - Khayyerzadeh v Gibbons [2023] VSC 647 - Sahin v Victorian Workcover Authority [2024] VSC 241 - Khan v Romas [2017] VSC 731 - Bhelley v Coles Supermarkets Australia Pty Ltd [2022] VSC 446 - Wrongs Act 1958 Pt VBA ss 28LB, 28LF, 28LH, 28LJ, 28LL, 28LN, 28LWE, 28LZ, 28LZH, and 28LZI.
ADMINISTRATIVE LAW - Judicial review - Opinion of a Medical Panel - Whether the Medical Panel committed jurisdictional error - Whether the Medical Panel failed to have regard to a mandatory relevant consideration - Whether the Medical Panel failed to set out a path of reasoning which would enable a court to see whether the opinion does or does not involve any error of law - Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 - Victorian Workcover Authority v Putrus [2023] VSCA 28 - Victorian Workcover Authority v Jamali [2023] VSCA 240 - Sidiqi v Kotsios [2021] VSCA 187 - Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649 - Colquhoun v Capitol Radiology Pty Ltd (2013) 39 VR 296 - Ayana v Qantas Airways Ltd [2021] VSC 500 - Khayyerzadeh v Gibbons [2023] VSC 647 - Sahin v Victorian Workcover Authority [2024] VSC 241 - Khan v Romas [2017] VSC 731 - Bhelley v Coles Supermarkets Australia Pty Ltd [2022] VSC 446 - Wrongs Act 1958 Pt VBA ss 28LB, 28LF, 28LH, 28LJ, 28LL, 28LN, 28LWE, 28LZ, 28LZH, and 28LZI.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under Residential Tenancies Act 1997 (Vic) - Application for extension of time - Extension of time granted - Where residential rental provider gave renter a notice of proposed rent increase under s 44(1) - Where renter believed notice to be invalid and asked VCAT to set it aside - Where renter's application included a request for compensation which was not maintained at the hearing - Where VCAT dismissed the application on the basis of having no jurisdiction to make the order sought - Whether VCAT had jurisdiction to hear an application for an ancillary order in the absence of an application for a substantive order - Where no jurisdiction to make such an order - Leave to appeal allowed - Appeal dismissed.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under Residential Tenancies Act 1997 (Vic) - Application for extension of time - Extension of time granted - Where residential rental provider gave renter a notice of proposed rent increase under s 44(1) - Where renter believed notice to be invalid and asked VCAT to set it aside - Where renter's application included a request for compensation which was not maintained at the hearing - Where VCAT dismissed the application on the basis of having no jurisdiction to make the order sought - Whether VCAT had jurisdiction to hear an application for an ancillary order in the absence of an application for a substantive order - Where no jurisdiction to make such an order - Leave to appeal allowed - Appeal dismissed.
Residential Tenancies Act 1997 (Vic), ss 44, 45, 46, 452, 472; Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 124, 148; Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic), r 4.08.
Victoria v Bradto [2006] VCAT 1864; Xiao v Perpetual Trustee Company Ltd [2009] V ConvR 54-756; [2008] VSC 412; Kracke v Mental Health Review Board [2009] VCAT 646; Casa Di Iorio Investments Pty Ltd v Guirguis [2017] VSC 266; Rosewarne v Lim [2022] VCAT 1015.
ADMINISTRATIVE LAW - Appeal from Victorian Civil and Administrative Tribunal ('VCAT') in a proceeding under the Residential Tenancies Act 1997 (Vic) ('RTA') - Application to set aside VCAT decision refusing application to extend the period of storage for goods left behind for indeterminate period - Where tenant unable to collect goods from property due to bail conditions - Where goods left behind prevented property from being relet - Where residential rental provider gave notice under s 386 (goods left behind) of RTA - Whether consideration by VCAT of landlord's ability to relet the property relevant - Whether VCAT correctly interpreted 'reclaim' under ss 387 and 389 of RTA - Whether goods able to be stored for indefinite period of time - Whether leave to appeal should be granted - No real prospects of success - Leave to appeal denied.
ADMINISTRATIVE LAW - Appeal from Victorian Civil and Administrative Tribunal ('VCAT') in a proceeding under the Residential Tenancies Act 1997 (Vic) ('RTA') - Application to set aside VCAT decision refusing application to extend the period of storage for goods left behind for indeterminate period - Where tenant unable to collect goods from property due to bail conditions - Where goods left behind prevented property from being relet - Where residential rental provider gave notice under s 386 (goods left behind) of RTA - Whether consideration by VCAT of landlord's ability to relet the property relevant - Whether VCAT correctly interpreted 'reclaim' under ss 387 and 389 of RTA - Whether goods able to be stored for indefinite period of time - Whether leave to appeal should be granted - No real prospects of success - Leave to appeal denied.
Residential Tenancies Act 1997 (Vic), ss 64, 378, 379, 384, 386, 387, 388, 391, 395, 401; Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 97, 98, 148.
Chopra v Department of Education and Training [2019] VSC 488; McSteen v Architects Registration Board of Victoria (No 2) [2018] VSCA 136; Velardo v Andonov [2010] VSCA 38; Republic of Turkey v Mackie Pty Ltd [2019] VSC 103; Khanna v Kulathayendran [2012] VSC 250; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
APPEAL - Victorian Civil and Administrative Tribunal decision - Dispute as between owners corporation and owner of one of four lots with shared common property - Determination by VCAT that owner remove external CCTV cameras, awning, relocate external component of air conditioning unit installed on her lot and pay civil penalty - Leave to appeal refused - Owners Corporations Act 2006 (Vic) - Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(2A) - Shearman v Owners Corporation No 1 417405X [2016] VSC 551 - Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317.
APPEAL - Victorian Civil and Administrative Tribunal decision - Dispute as between owners corporation and owner of one of four lots with shared common property - Determination by VCAT that owner remove external CCTV cameras, awning, relocate external component of air conditioning unit installed on her lot and pay civil penalty - Leave to appeal refused - Owners Corporations Act 2006 (Vic) - Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(2A) - Shearman v Owners Corporation No 1 417405X [2016] VSC 551 - Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317.
APPEAL - Appeal from the Tribunal - Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Medical practitioner - Referral to the Tribunal by Medical Board under section 193 of Health Practitioner Regulation National Law - Disciplinary proceedings for professional misconduct or unprofessional conduct - Appeals from Tribunal's interlocutory and final orders - Whether Tribunal exercising federal jurisdiction - Tribunal not exercising legislative or judicial function in determining disciplinary proceeding under the National Law - Whether the Tribunal acted without jurisdiction in reliance on evidence before the Family Court of Australia - Documents released by Family Court order - Whether a Medical Board referral to the Tribunal was based on unlawfully obtained evidence - Admissibility of evidence and the rules of evidence at the discretion of the Tribunal - Effect of interlocutory orders subsumed by appeal against final orders - Procedural fairness - No error established - No real prospect of success - Leave to appeal refused.
APPEAL - Appeal from the Tribunal - Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Medical practitioner - Referral to the Tribunal by Medical Board under section 193 of Health Practitioner Regulation National Law - Disciplinary proceedings for professional misconduct or unprofessional conduct - Appeals from Tribunal's interlocutory and final orders - Whether Tribunal exercising federal jurisdiction - Tribunal not exercising legislative or judicial function in determining disciplinary proceeding under the National Law - Whether the Tribunal acted without jurisdiction in reliance on evidence before the Family Court of Australia - Documents released by Family Court order - Whether a Medical Board referral to the Tribunal was based on unlawfully obtained evidence - Admissibility of evidence and the rules of evidence at the discretion of the Tribunal - Effect of interlocutory orders subsumed by appeal against final orders - Procedural fairness - No error established - No real prospect of success - Leave to appeal refused.
OPEN COURTS ACT - Documents released by Family Court of Australia on confidential basis - Previous orders made in the Family Court of Australia - Closed Court order refused - Pseudonym orders appropriate to sufficiently protect family members - Non-publication order considered.
Victorian Civil and Administrative Act 1998 (Vic) ss 97, 148; Health Practitioner Regulation National Law (Victoria) ss 193, 196; Burns v Corbett [2018] HCA 15, (2018) 265 CLR 304; Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16, (2022) 276 CLR 216; De Pardo v Legal Practitioners Complaints Committee [1999] FCA 698, (1999) 93 FCR 294; Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board [2007] HCA 23, referred to.
POLICE - Terrorism - Statute empowering Supreme Court to authorise exercise of special powers to ensure the safety of persons attending event - Whether authorisation reasonably necessary to ensure the safety of persons attending event - Terrorism (Community Protection) Act 2003 (Vic), Part 3A, s 21.
POLICE - Terrorism - Statute empowering Supreme Court to authorise exercise of special powers to ensure the safety of persons attending event - Whether authorisation reasonably necessary to ensure the safety of persons attending event - Terrorism (Community Protection) Act 2003 (Vic), Part 3A, s 21.
HUMAN RIGHTS - Terrorism - Authorisation of special police powers to ensure safety of persons attending event - Limitation of human rights - Whether limitation on human rights reasonable and is demonstrably justifiable in a free and democratic society, taking into account statutory intent - Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2), 9, 10, 12, 14, 15, 16, 17, 21, 22, 32(1), 38(1).
COSTS - Plaintiff wholly unsuccessful in proceeding - Where plaintiff opposed order to pay second defendant's costs - Whether reduction in costs due to defendants' common interest in proceeding - Order that plaintiff pay second defendant's costs - No order as to reduction of costs.
COSTS - Plaintiff wholly unsuccessful in proceeding - Where plaintiff opposed order to pay second defendant's costs - Whether reduction in costs due to defendants' common interest in proceeding - Order that plaintiff pay second defendant's costs - No order as to reduction of costs.
JOINDER OF FURTHER DEFENDANTS, PLEADINGS - Application for review under r84.03(3) of the County Court Civil Procedure Rules 2008 - Whether there should be joinder of further defendants - Proposed defendants are employees of the first defendant acting in the course of their employment and within the scope of their employment - Exemplary damages - Pleadings.
JOINDER OF FURTHER DEFENDANTS, PLEADINGS - Application for review under r84.03(3) of the County Court Civil Procedure Rules 2008 - Whether there should be joinder of further defendants - Proposed defendants are employees of the first defendant acting in the course of their employment and within the scope of their employment - Exemplary damages - Pleadings.
CONTRACT - FRANCHISES - Whether the first defendant breached a licensing agreement - Whether the first defendant failed to report sales as required - Whether the first defendant failed to pay proceeds of sales - Whether the first defendant failed to return goods to the plaintiff - Whether the second defendant is personally liable for damages for breach - Whether the first defendant holds proceeds of sale on trust for the plaintiff - Terms of the licensing agreement - Whether the plaintiff was entitled to terminate - Whether the plaintiff suffered loss and damage - Whether the Franchising Code applies - Whether the plaintiff breached the Franchising Code - Whether the plaintiff breached the licensing agreement - Whether the second defendant is entitled to an indemnity.
CONTRACT - FRANCHISES - Whether the first defendant breached a licensing agreement - Whether the first defendant failed to report sales as required - Whether the first defendant failed to pay proceeds of sales - Whether the first defendant failed to return goods to the plaintiff - Whether the second defendant is personally liable for damages for breach - Whether the first defendant holds proceeds of sale on trust for the plaintiff - Terms of the licensing agreement - Whether the plaintiff was entitled to terminate - Whether the plaintiff suffered loss and damage - Whether the Franchising Code applies - Whether the plaintiff breached the Franchising Code - Whether the plaintiff breached the licensing agreement - Whether the second defendant is entitled to an indemnity.
EQUITY - EQUITABLE REMEDIES - INJUNCTION - INTERIM INJUNCTION - SERIOUS QUESTION TO BE TRIED - BALANCE OF CONVENIENCE GENERALLY - Whether the first defendant should be restrained from calling on three bank guarantees provided by the plaintiff as performance bonds under a building contract - The bank guarantees perform both security and risk allocation functions under the contract - Synergy Construct Australia Pty Ltd v GSA North Terrace Pty Ltd [2025] SASCA 72 - Sugar Australia Pty Ltd v Lend Lease Services Pty Ltd [2015] VSCA 98 - Fletcher Construction Australia Ltd v Varnsdorf Pty Ltd [1998] 3 VR 812.
EQUITY - EQUITABLE REMEDIES - INJUNCTION - INTERIM INJUNCTION - SERIOUS QUESTION TO BE TRIED - BALANCE OF CONVENIENCE GENERALLY - Whether the first defendant should be restrained from calling on three bank guarantees provided by the plaintiff as performance bonds under a building contract - The bank guarantees perform both security and risk allocation functions under the contract - Synergy Construct Australia Pty Ltd v GSA North Terrace Pty Ltd [2025] SASCA 72 - Sugar Australia Pty Ltd v Lend Lease Services Pty Ltd [2015] VSCA 98 - Fletcher Construction Australia Ltd v Varnsdorf Pty Ltd [1998] 3 VR 812.
CONTRACT - CONSTRUCTION - Whether rectification of contract required in order for first defendant to be able to call on the bank guarantees where name stated in contract was 22 Upton Road Pty Ltd and name in bank guarantee was 22 Upton Rd Pty Ltd - Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85.
SUMMARY JUDGMENT - Mortgages - Recovery of possession - Default under home loan - Failure to remedy arrears - Service of notice under s 76 Transfer of Land Act - Validity and enforceability of mortgage - Allegations of invalid loan contract - Memorandum of common provisions - Demand for "wet-ink" documents - Securitisation arguments - Counterclaim - Law Reform - Effectiveness of Civil Procedure Act 2010 in achieving its objectives - Particularly in relation to self-represented litigants.
SUMMARY JUDGMENT - Mortgages - Recovery of possession - Default under home loan - Failure to remedy arrears - Service of notice under s 76 Transfer of Land Act - Validity and enforceability of mortgage - Allegations of invalid loan contract - Memorandum of common provisions - Demand for "wet-ink" documents - Securitisation arguments - Counterclaim - Law Reform - Effectiveness of Civil Procedure Act 2010 in achieving its objectives - Particularly in relation to self-represented litigants.
CRIMINAL LAW - Insulting words - s 17 Summary Offences Act - Freedom of expression - s 15 Charter of Human Rights and Responsibilities Act - Implied freedom of political communication.
CRIMINAL LAW - Insulting words - s 17 Summary Offences Act - Freedom of expression - s 15 Charter of Human Rights and Responsibilities Act - Implied freedom of political communication.