CONSTITUTIONAL LAW (Cth) - Legislative power - Acquisition of property on just terms - Where Government of Russian Federation granted lease in 2008 by Commonwealth of Australia for land in Australian Capital Territory - Where land to be used for diplomatic, consular or official purposes by Russian Federation - Where land was 300 metres from Parliament House - Where lease terminated by operation of Home Affairs Act 2023 (Cth) - Whether Home Affairs Act supported by s 122 of the Constitution - Whether termination of lease constituted acquisition of property within meaning and scope of s 51(xxxi) of Constitution - Whether s 51(xxxi) of Constitution limited to empowering acquisition of property for purpose related to need for or proposed use or application of property to be acquired - Whether provision of just terms for termination of lease incongruous notion.
CONSTITUTIONAL LAW (Cth) - Legislative power - Acquisition of property on just terms - Where Government of Russian Federation granted lease in 2008 by Commonwealth of Australia for land in Australian Capital Territory - Where land to be used for diplomatic, consular or official purposes by Russian Federation - Where land was 300 metres from Parliament House - Where lease terminated by operation of Home Affairs Act 2023 (Cth) - Whether Home Affairs Act supported by s 122 of the Constitution - Whether termination of lease constituted acquisition of property within meaning and scope of s 51(xxxi) of Constitution - Whether s 51(xxxi) of Constitution limited to empowering acquisition of property for purpose related to need for or proposed use or application of property to be acquired - Whether provision of just terms for termination of lease incongruous notion.
WORDS AND PHRASES - "abstract", "acquisition", "acquisition of property", "acquisition power", "carved out", "compensation", "discretion as to costs", "fair dealing", "for the government of any territory", "foreign state", "head of power", "incidental power", "incongruous", "just terms", "land", "lease", "national security", "nexus", "Parliament House", "peace, order and good government", "power to make laws", "property", "proposed use", "protect", "purpose", "qualifies", "reversionary interest", "risk", "scope", "source of legislative power", "Takings Clause", "territories power".
Constitution, ss 51(xxxi), 96, 111, 122.
Home Affairs Act 2023 (Cth), ss 4, 5, 6, 7.
COURTS - Judges - Bias - Apprehended bias - Recusal application - Whether primary judge erred in failing to recuse himself from further hearing of proceeding due to apprehended bias - Primary judge having granted ex parte injunction - Primary judge having made procedural orders in favour of opposite party - Primary judge having refused applications made by moving party - Primary judge having made comments asserted to be unfavourable to moving party - Assertion that primary judge had conversation with judicial registrar who refused moving party's transfer application - Listing of recusal application at same time as other applications - Whether, in totality of circumstances, fair-minded lay observer might reasonably apprehend that primary judge might not bring impartial mind to resolution of remaining issues and trial - No substance in recusal application - Application for leave to appeal refused.
COURTS - Judges - Bias - Apprehended bias - Recusal application - Whether primary judge erred in failing to recuse himself from further hearing of proceeding due to apprehended bias - Primary judge having granted ex parte injunction - Primary judge having made procedural orders in favour of opposite party - Primary judge having refused applications made by moving party - Primary judge having made comments asserted to be unfavourable to moving party - Assertion that primary judge had conversation with judicial registrar who refused moving party's transfer application - Listing of recusal application at same time as other applications - Whether, in totality of circumstances, fair-minded lay observer might reasonably apprehend that primary judge might not bring impartial mind to resolution of remaining issues and trial - No substance in recusal application - Application for leave to appeal refused.
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148, applied.
Isbester v Knox City Council (2015) 255 CLR 135; Johnson v Johnson (2000) 201 CLR 488; R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546;* Re JRL; Ex parte CJL* (1986) 161 CLR 342, referred to.
ADMINISTRATION AND PROBATE - Application for leave to appeal against summary dismissal of claim for family provision under Part IV of the Administration and Probate Act 1958 by former stepchild of deceased - No provision in will - Applicant lived with deceased for seven years in childhood after mother formed relationship with deceased - Deceased and applicant's mother separated - Whether applicant an 'eligible person' within the definition in s 90 of the Administration and Probate Act 1958 - Application for leave to appeal granted - Appeal allowed.
ADMINISTRATION AND PROBATE - Application for leave to appeal against summary dismissal of claim for family provision under Part IV of the Administration and Probate Act 1958 by former stepchild of deceased - No provision in will - Applicant lived with deceased for seven years in childhood after mother formed relationship with deceased - Deceased and applicant's mother separated - Whether applicant an 'eligible person' within the definition in s 90 of the Administration and Probate Act 1958 - Application for leave to appeal granted - Appeal allowed.
Administration and Probate Act 1958, pt IV, ss 3(1), 90, 90A, 91.
Innes-Irons v Forrest [2016] VSC 782, applied; Bail v Scott-Mackenzie [2016] VSC 563; Whitehead v State Trustees Ltd (2011) 4 ASTLR 528, discussed.
NEGLIGENCE - Professional negligence - Advocate's immunity - Workplace injury - Solicitors allegedly failed to prepare and present evidence in serious injury application - Whether judge erred in finding that impugned conduct attracted advocate's immunity - Applicant accepted that impugned conduct was intimately connected with work done in court but contended that advocate's immunity did not apply to serious injury applications - No error - Leave to appeal refused.
NEGLIGENCE - Professional negligence - Advocate's immunity - Workplace injury - Solicitors allegedly failed to prepare and present evidence in serious injury application - Whether judge erred in finding that impugned conduct attracted advocate's immunity - Applicant accepted that impugned conduct was intimately connected with work done in court but contended that advocate's immunity did not apply to serious injury applications - No error - Leave to appeal refused.
Workplace Injury Rehabilitation and Compensation Act 2013, ss 325, 335
Giannarelli v Wraith (1988) 165 CLR 543; D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; Kendirjian v Lepore (2017) 259 CLR 275; Swannell v Farmer [1999] 1 VR 299.
CRIMINAL LAW - Leave to appeal - Sentence - Aggravated burglary - Conduct endangering persons - Sexual assault - Attempted rape - Conduct in front of children - Whether the sentencing judged erred in her findings - Whether the sentencing judge erred in her assessment of the prospects of rehabilitation - Whether the sentencing judge erred in her application of s 11(3) of the Sex Offenders Registration Act 2004 - Whether the sentence was manifestly excessive - Application for extension of time for leave to appeal against sentence refused.
CRIMINAL LAW - Leave to appeal - Sentence - Aggravated burglary - Conduct endangering persons - Sexual assault - Attempted rape - Conduct in front of children - Whether the sentencing judged erred in her findings - Whether the sentencing judge erred in her assessment of the prospects of rehabilitation - Whether the sentencing judge erred in her application of s 11(3) of the Sex Offenders Registration Act 2004 - Whether the sentence was manifestly excessive - Application for extension of time for leave to appeal against sentence refused.
Criminal Procedure Act 2009 s 278; Crimes Act 1958 ss 15, 22, 23; Sex Offenders Registration Act 2004 s 11(3).
Barbaro v The Queen (2012) 226 A Crim R 354; Bowden v The Queen (2013) 44 VR 229; Bugmy v The Queen (2013) 249 CLR 571; Dalgliesh (a pseudonym) v The Queen (2017) 262 CLR 428; Director of Public Prosecutions v Meyers (2014) 44 VR 486; Failla v The King [2025] VSCA 132; Kumova v The Queen (2012) 37 VR 538; Lowndes v The Queen (1999) 195 CLR 665; Sayer v The Queen [2018] VSCA 177; Stefani v The Queen [2024] VSCA 29; Surtees v The King [2023] VSCA 42, considered.
CRIMINAL LAW - Sentence - Appeal - Obtaining financial advantage by deception (2 charges), using false document (2 charges) - TES of 12 years, with NPP of 8 years - Amount obtained by deception in excess of $38 million - Sentences not manifestly excessive - Sentences not infringing principles of totality - Whether judge failed to take into account increased burden of imprisonment resulting from family hardship - Whether judge required to take into account family hardship which was not exceptional - No error by judge in relation to treatment of family hardship - Appeal dismissed.
CRIMINAL LAW - Sentence - Appeal - Obtaining financial advantage by deception (2 charges), using false document (2 charges) - TES of 12 years, with NPP of 8 years - Amount obtained by deception in excess of $38 million - Sentences not manifestly excessive - Sentences not infringing principles of totality - Whether judge failed to take into account increased burden of imprisonment resulting from family hardship - Whether judge required to take into account family hardship which was not exceptional - No error by judge in relation to treatment of family hardship - Appeal dismissed.
Charter of Human Rights and Responsibilities Act 2006, ss 17 and 32; Sentencing Act 1991, ss 5(1)(a) and 5(2)(g); Crimes Act 1914 (Cth), s 16A(2)(p).
Markovic v The Queen (2010) 30 VR 589; Clarkson v The Queen (2011) 32 VR 361, applied.
Totaan v The Queen (2022) 108 NSWLR 17; R v Zerafa [2013] NSWCCA 222; Adams (a pseudonym) v The Queen (2022) 141 SASR 204, referred to.
CRIMINAL LAW - Leave to appeal - Sentence - Whether sentencing judge erred in their findings as to the applicant's role in trafficking a commercial quantity of drugs - Trafficking various drugs - Possess various drugs of dependence - Possess tablet press - Make false document - Possess fireworks - Possess prohibited weapon - Source and manufacture steroids - Counterfeit drug business - Leave to appeal refused.
CRIMINAL LAW - Leave to appeal - Sentence - Whether sentencing judge erred in their findings as to the applicant's role in trafficking a commercial quantity of drugs - Trafficking various drugs - Possess various drugs of dependence - Possess tablet press - Make false document - Possess fireworks - Possess prohibited weapon - Source and manufacture steroids - Counterfeit drug business - Leave to appeal refused.
Criminal Procedure Act 2009, ss 278, 280.
Dao v The Queen (2014) 240 A Crim R 574; DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428; Elkadi v The King [2023] VSCA 328; Gregory v The Queen (2017) 268 A Crim R 1; R v Olbrich (1999) 199 CLR 270, considered.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Respondent pleaded guilty to nine charges of sexual offending against his two child nieces - Charges of sexual penetration of child under 12, sexual penetration of child under 16, sexual assault of child under 16, and encouraging child under 16 to engage in sexual activity - Total effective sentence of 5 years' imprisonment with non-parole period of 3 years - Whether total effective sentence and non-parole period manifestly inadequate - Whether orders for cumulation reflected the separate criminality of respondent's offending against two victims - Whether orders for cumulation were contrary to the presumption of total cumulation for serious sexual offenders - Whether judge misapplied principle of totality - Orders for cumulation manifestly inadequate - Appeal allowed - Respondent resentenced to total effective sentence of 8 years' imprisonment with non-parole period of 5 years.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Respondent pleaded guilty to nine charges of sexual offending against his two child nieces - Charges of sexual penetration of child under 12, sexual penetration of child under 16, sexual assault of child under 16, and encouraging child under 16 to engage in sexual activity - Total effective sentence of 5 years' imprisonment with non-parole period of 3 years - Whether total effective sentence and non-parole period manifestly inadequate - Whether orders for cumulation reflected the separate criminality of respondent's offending against two victims - Whether orders for cumulation were contrary to the presumption of total cumulation for serious sexual offenders - Whether judge misapplied principle of totality - Orders for cumulation manifestly inadequate - Appeal allowed - Respondent resentenced to total effective sentence of 8 years' imprisonment with non-parole period of 5 years.
Sentencing Act 1991, ss 6D, 6E.
DPP v Karazisis (2010) 31 VR 634; Nguyen v The Queen [2019] VSCA 184; R v GJ [2008] VSCA 222; Barnard v The Queen [2022] VSCA 42; R v Nguyen (2013) 234 A Crim R 324; R v MAK (2006) 167 A Crim R 159; DPP v Grabovac [1998] 1 VR 664; RH McL v The Queen (2000) 203 CLR 452; DPP v Hopson (a pseudonym) [2016] VSCA 303; Gordon (a pseudonym) v The Queen [2013] VSCA 343; Zhao v The Queen [2018] VSCA 267; Flynn (a pseudonym) v The Queen [2020] VSCA 173; Nguyen v The Queen (2016) 256 CLR 656.
CRIMINAL LAW - Sentence - Crown appeal - Recklessly causing serious injury and possessing controlled weapon - Knife attack - Victim disembowelled - Total effective sentence of 2 years and 3 months' imprisonment with non-parole period of 15 months - Sentence manifestly inadequate - resentenced to total effective sentence of 5 years and 6 months' imprisonment with a non-parole period of 3 years and 8 months.
CRIMINAL LAW - Sentence - Crown appeal - Recklessly causing serious injury and possessing controlled weapon - Knife attack - Victim disembowelled - Total effective sentence of 2 years and 3 months' imprisonment with non-parole period of 15 months - Sentence manifestly inadequate - resentenced to total effective sentence of 5 years and 6 months' imprisonment with a non-parole period of 3 years and 8 months.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURUSANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURUSANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
CRIMINAL LAW - Appeal - Sentence - Application for leave to appeal against sentence - Trafficking commercial quantity of drug of dependence, firearm and proceeds of crime offences - Significant and relevant criminal history - Total effective sentence 13 years 6 months' imprisonment - Whether judge failed to accord individualised justice to applicant - Whether sentence excessive - Sentence not manifestly excessive - Leave to appeal refused.
Acciarito v The Queen [2019] VSCA 26; Berichon v R [2013] VSCA 319; (2013) 40 VR 490; Bruce v The Queen [2022] VSCA 100; DPP v Condo [2019] VSCA 181; Lytras v The Queen [2020] VSCA 150; Nguyen v The Queen [2016] VSCA 198; 311 FLR 289; Obian v The King [2023] VSCA 18; (2023) 69 VR 553; Quah v The Queen [2021] VSCA 164; (2021) A Crim R 136, discussed.
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 ; DPP v Dalgliesh (a pseudonym) [2017] 262 CLR 428; (2017) HCA 41; Gregory (a pseudonym) v The Queen [2017] VSCA 151; (2017) 268 A Crim R 1; Leimonitis v The Queen [2018] VSCA 198, followed.
CRIMINAL LAW - Appeal - Sentence - Application for extension of time in which to seek leave to appeal against sentence - Applicant pleaded guilty to serious drug and associated offences - Sentence indication given absent knowledge of relevant sentencing consideration - Whether small disparity in indicated sentence and sentence later given evidences insufficient weight given to relevant sentencing consideration - Indicated sentence cannot evidence inadequate weight given to a sentencing factor - Application for extension of time refused.
CRIMINAL LAW - Appeal - Sentence - Application for extension of time in which to seek leave to appeal against sentence - Applicant pleaded guilty to serious drug and associated offences - Sentence indication given absent knowledge of relevant sentencing consideration - Whether small disparity in indicated sentence and sentence later given evidences insufficient weight given to relevant sentencing consideration - Indicated sentence cannot evidence inadequate weight given to a sentencing factor - Application for extension of time refused.
Karam v The King [2024] VSCA 164; Almatrah v The King [2024] VSCA 301; Madafferi v The Queen [2017] VSCA 302, followed.
Criminal Procedure Act 2009, ss 207-209; Sentencing Act 1991, s 6AAA.
CRIMINAL LAW - Appeal - Sentence - Application for extension of time to file notice of appeal against sentence - Applicant pleaded guilty to nine charges of handling stolen goods, one charge of possession of a drug of dependence, and four related summary charges - Applicant sentenced to total effective sentence of 3 years and 4 months' imprisonment with a non-parole period of 2 years and 1 month - Applicant involved in enterprise of receiving, altering and rebirthing stolen vehicles for profit - Value of stolen goods in excess of $280,000 - Where applicant re-offended following arrest - Limited matters in mitigation - Whether sentence manifestly excessive - Proposed ground of appeal not sufficiently arguable to warrant extension of time - Application refused.
CRIMINAL LAW - Appeal - Sentence - Application for extension of time to file notice of appeal against sentence - Applicant pleaded guilty to nine charges of handling stolen goods, one charge of possession of a drug of dependence, and four related summary charges - Applicant sentenced to total effective sentence of 3 years and 4 months' imprisonment with a non-parole period of 2 years and 1 month - Applicant involved in enterprise of receiving, altering and rebirthing stolen vehicles for profit - Value of stolen goods in excess of $280,000 - Where applicant re-offended following arrest - Limited matters in mitigation - Whether sentence manifestly excessive - Proposed ground of appeal not sufficiently arguable to warrant extension of time - Application refused.
Crimes Act 1958, s 88.
Clarkson v The Queen (2011) 32 VR 361, referred to.
CRIMINAL LAW - Appeal - Sentence - Burglary, theft, firearms offences and possession of drug of dependence - Aggregate sentence 12 months' imprisonment - Whether judge erred by imposing aggregate sentence - Applicant stole imitation firearm from neighbour's property and exchanged it for methylamphetamine - Charges founded on same facts - Continuous offending constituting single drug and firearm-related transaction - Offences not varying greatly in gravity - Aggregate sentence avoided artificial sentencing exercise - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Burglary, theft, firearms offences and possession of drug of dependence - Aggregate sentence 12 months' imprisonment - Whether judge erred by imposing aggregate sentence - Applicant stole imitation firearm from neighbour's property and exchanged it for methylamphetamine - Charges founded on same facts - Continuous offending constituting single drug and firearm-related transaction - Offences not varying greatly in gravity - Aggregate sentence avoided artificial sentencing exercise - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Manifest excess - Blackmail - Sentence of 12 months' imprisonment - Aggregate sentence 12 months' imprisonment on separate indictment charging burglary, firearms offences and possessing drug of dependence - Total effective sentence 18 months' imprisonment - Guilty plea - Applicant assisted authorities in relation to charges on second indictment - Aggregate sentence very moderate - Most charges carrying maximum 10 years' imprisonment - Possession of firearms by prohibited person serious offending - Blackmail planned and calculated against vulnerable victim - Applicant understated own contribution to blackmail while blaming co-offender - Blackmail sentence modest - Order for 6 months' cumulation well within range - Applicant having extensive criminal record - Sentence well within range - Leave to appeal refused.
Sentencing Act 1991, s 9.
Director of Public Prosecutions v Frewstal Pty Ltd (2015) 47 VR 660; Hassall v The King [2024] VSCA 163; Malovski v The King [2025] VSCA 72, referred to.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURUSANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURUSANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
CRIMINAL LAW - Appeal - Sentence - Application for leave to appeal against sentence - Applicant pleaded guilty to disposal of firearms, possession of a traffickable quantity of firearms, other firearm offences, eight drug trafficking offences, knowingly dealing with proceeds of crime and failure to comply with order to assist - Total effective sentence of 4 years and 3 months' imprisonment - Co-accused sentenced to 10 months' imprisonment with 2 year CCO - Whether unjustified disparity in sentences - Applicant leader in criminal enterprise - Co-accused had intellectual disability - Disparity justified by different roles and personal circumstances - Whether sentence manifestly excessive - Offending objectively serious - Sentence not manifestly excessive - Leave to appeal refused.
Clarkson v The Queen (2011) 32 VR 361; Barbaro v The Queen (2012) 226 A Crim R 354, applied.
Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; Chapman v The King [2024] VSCA 205; Berichon v The Queen (2013) 40 VR 490, referred to.
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to one charge of dangerous driving causing death and one charge of dangerous driving causing serious injury - Applicant failed to stop at stop sign when entering intersection and collided with oncoming car - Applicant ignored multiple warnings immediately prior to entering intersection - Passenger in other car died from injuries sustained in collision and another passenger seriously injured - Applicant sentenced to total effective sentence of 3 years and 9 months' imprisonment with non-parole period of 2 years and 6 months - Whether judge failed to take into account applicant's mental health and relative youth as mitigating factors in sentencing synthesis - Whether sentence manifestly excessive - Evidence of applicant's psychological state insufficient to support finding that prison would weigh more heavily on applicant - Applicant 25 years old at time of sentence - Sentence not wholly outside range of sentencing options available - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to one charge of dangerous driving causing death and one charge of dangerous driving causing serious injury - Applicant failed to stop at stop sign when entering intersection and collided with oncoming car - Applicant ignored multiple warnings immediately prior to entering intersection - Passenger in other car died from injuries sustained in collision and another passenger seriously injured - Applicant sentenced to total effective sentence of 3 years and 9 months' imprisonment with non-parole period of 2 years and 6 months - Whether judge failed to take into account applicant's mental health and relative youth as mitigating factors in sentencing synthesis - Whether sentence manifestly excessive - Evidence of applicant's psychological state insufficient to support finding that prison would weigh more heavily on applicant - Applicant 25 years old at time of sentence - Sentence not wholly outside range of sentencing options available - Application for leave to appeal refused.
Crimes Act 1958, s 319.
R v Verdins (2007) 16 VR 269; DPP v O'Neill (2015) 47 VR 395; DPP v Neethling (2009) 22 VR 466, considered - R v De Montero (2009) 25 VR 694, referred to.
CRIMINAL LAW - Appeal - Sentence - Plea of guilty to charges of recklessly causing serious injury, affray, and common law assault - Random street violence - Applicant and co-offender assaulted three victims in public place - Applicant under influence of alcohol and cocaine - Applicant struck one victim to the head when victim was in vulnerable and defenceless state, causing him to sustain a severe traumatic brain injury - Several mitigating factors, including applicant's deprived background and impaired mental functioning - Whether judge erred in application of Bugmy and Verdins principles - Whether unjustifiable disparity with co-offender's sentence - Whether sentence manifestly excessive - Total effective sentence of 6 years and 6 months' imprisonment with non-parole period of 4 years and 6 months within range - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Plea of guilty to charges of recklessly causing serious injury, affray, and common law assault - Random street violence - Applicant and co-offender assaulted three victims in public place - Applicant under influence of alcohol and cocaine - Applicant struck one victim to the head when victim was in vulnerable and defenceless state, causing him to sustain a severe traumatic brain injury - Several mitigating factors, including applicant's deprived background and impaired mental functioning - Whether judge erred in application of Bugmy and Verdins principles - Whether unjustifiable disparity with co-offender's sentence - Whether sentence manifestly excessive - Total effective sentence of 6 years and 6 months' imprisonment with non-parole period of 4 years and 6 months within range - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Intentionally causing serious injury - Excessive self-defence - Two victims suffering severe injuries - Total effective sentence 12 months' imprisonment with 18 month community correction order - Whether judge's finding that applicant was carrying a knife denied procedural fairness - Whether sentence manifestly excessive - Leave to appeal against sentence refused.
CRIMINAL LAW - Appeal - Sentence - Intentionally causing serious injury - Excessive self-defence - Two victims suffering severe injuries - Total effective sentence 12 months' imprisonment with 18 month community correction order - Whether judge's finding that applicant was carrying a knife denied procedural fairness - Whether sentence manifestly excessive - Leave to appeal against sentence refused.
CORPORATIONS - Voluntary administration - Deed of company arrangement - Application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer shares - Whether shareholders unfairly prejudiced - Kipoi Holdings Mauritius Limited v Kirman (No 4) [2024] WASCA 15 applied - Leave granted.
CORPORATIONS - Voluntary administration - Deed of company arrangement - Application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer shares - Whether shareholders unfairly prejudiced - Kipoi Holdings Mauritius Limited v Kirman (No 4) [2024] WASCA 15 applied - Leave granted.
CORPORATIONS - Failure to appoint requisite number of directors to a proprietary company resulting in breach of s 201A of the Corporations Act 2001 (Cth) - Whether breach rendered appointment of administrator under s 436A invalid - Re Condor Blanco Mines Ltd [2016] NSWSC 1196 discussed - Appointment not invalid despite breach of s 201A.
CONTRACTS - Construction of commercial contract - Share sale agreement - Company's business involves sale of redeemable gift cards - Deferred payment based on breakage calculations - Obligation to provide supporting information, calculations and documentation - Whether includes underlying Source Data - Whether includes Breakage Brief provided to consultant - Whether includes communications with consultant - Whether includes documents relied upon to prepare notices - Meaning of identical phrases in different contractual clauses - Whether right to access books and records expired after review period - Reasonableness of requests by party's adviser.
CONTRACTS - Construction of commercial contract - Share sale agreement - Company's business involves sale of redeemable gift cards - Deferred payment based on breakage calculations - Obligation to provide supporting information, calculations and documentation - Whether includes underlying Source Data - Whether includes Breakage Brief provided to consultant - Whether includes communications with consultant - Whether includes documents relied upon to prepare notices - Meaning of identical phrases in different contractual clauses - Whether right to access books and records expired after review period - Reasonableness of requests by party's adviser.
GROUP PROCEEDINGS - Costs - Application for a group costs order - Whether proposed tiered or ratcheted rate starting at 32.5 per cent is appropriate and necessary - Principles to be applied - Tiered or ratcheted rate not appropriate and necessary - GCO made at a flat rate of 30 per cent - Supreme Court Act 1986 (Vic) s 33ZDA.
GROUP PROCEEDINGS - Costs - Application for a group costs order - Whether proposed tiered or ratcheted rate starting at 32.5 per cent is appropriate and necessary - Principles to be applied - Tiered or ratcheted rate not appropriate and necessary - GCO made at a flat rate of 30 per cent - Supreme Court Act 1986 (Vic) s 33ZDA.
PRACTICE AND PROCEDURE - Supreme Court (General Civil Procedure) Rules 2025 (Vic), order 15 - Application for appointment of litigation guardian - Applicable principles - Appointment of defendant's wife as litigation guardian - Expert medical evidence - Vishniakov v Lay (2019) 58 VR 375; [2019] VSC 403 - Slaveski v State of Victoria (2009) 25 VR 160; [2009] VSC 596.
PRACTICE AND PROCEDURE - Supreme Court (General Civil Procedure) Rules 2025 (Vic), order 15 - Application for appointment of litigation guardian - Applicable principles - Appointment of defendant's wife as litigation guardian - Expert medical evidence - Vishniakov v Lay (2019) 58 VR 375; [2019] VSC 403 - Slaveski v State of Victoria (2009) 25 VR 160; [2009] VSC 596.
PRACTICE AND PROCEDURE - Summary judgment - Application uncontested - No real prospect of success - Civil Procedure Act 2010 (Vic) s 61 - Owners Corporation 1 Plan No PS 707553K v Shangri-La Construction Pty Ltd [2023] VCC 1473 applied - Owners Corporation No.1 of PS613436T v LU Simon Builders Pty Ltd (Building and Property) [2019] VCAT 286; Naqebullah v State of Victoria [2024] VSCA 307; State of Victoria v L.U. Simon Builders Pty Ltd [2025] VSCA 52; Owners Corporation 1 Plan No. PS 640567Y v Shangri-La Construction Pty Ltd (Unreported, Supreme Court of Victoria, Delany J, 24 September 2025) referred to.
PRACTICE AND PROCEDURE - Summary judgment - Application uncontested - No real prospect of success - Civil Procedure Act 2010 (Vic) s 61 - Owners Corporation 1 Plan No PS 707553K v Shangri-La Construction Pty Ltd [2023] VCC 1473 applied - Owners Corporation No.1 of PS613436T v LU Simon Builders Pty Ltd (Building and Property) [2019] VCAT 286; Naqebullah v State of Victoria [2024] VSCA 307; State of Victoria v L.U. Simon Builders Pty Ltd [2025] VSCA 52; Owners Corporation 1 Plan No. PS 640567Y v Shangri-La Construction Pty Ltd (Unreported, Supreme Court of Victoria, Delany J, 24 September 2025) referred to.
PRACTICE AND PROCEDURE - Calculation of interest - Second defendant not joined to proceeding until after the sixty-fourth plaintiff - Civil Procedure Act 2010 (Vic) s 60(1) - Johnson Tiles Pty Ltd v Esso Australia (No 3) [2003] VSC 244; Shoard v Palmer (1989) 98 FLR 402 referred to.
TAXATION - Stamp Duty - Assessment of duty - Consideration - Appeal from determination of objection - Transfer of real property - Where transferred land subject of contract involving vendor payments to purchaser - Whether payments made by a vendor can be offset against purchase price when determining consideration for dutiable transaction - Held that payments made by the vendor could not be offset - Duties Act 2000 (Vic) s 20(1)(a).
TAXATION - Stamp Duty - Assessment of duty - Consideration - Appeal from determination of objection - Transfer of real property - Where transferred land subject of contract involving vendor payments to purchaser - Whether payments made by a vendor can be offset against purchase price when determining consideration for dutiable transaction - Held that payments made by the vendor could not be offset - Duties Act 2000 (Vic) s 20(1)(a).
TAXATION - Penalties and Interest - Market rate interest - Where taxpayer sought legal advice on tax liability - Where taxpayer acted in accordance with advice - Whether Commissioner erred by determining not to remit interest charged at market rate - Held that the Commissioner was correct in determining not to remit interest charged at market rate - Taxation Administration Act 1997 (Vic) ss 25, 28.
APPEALS - Appeal from orders of an Associate Justice dismissing proceeding for want of prosecution - First plaintiff solicitor's repeated non-compliance with pre-trial orders - Some unusual features - Pre-trial orders again made, but with first plaintiff required to show cause if further non-compliance - Further non-compliance - First defendant's summons - Subsequent events and affidavit advising of additional bases for relief sought - Affidavit and written submissions served - No appearance by first plaintiff at hearing before Associate Justice - Summons amended and proceeding dismissed - Appeal in the nature of rehearing - Whether any claimed errors established - Whether Court had jurisdiction - Whether first plaintiff's defaults were 'intentional and contumelious' - Whether finding of 'no life interest' - Whether material denial of procedural fairness - Whether error in ordering costs of the proceeding on an indemnity basis - Supreme Court Act 1986 (Vic), ss 17(1A) and 17(3) - Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 1.14(2), 2.01(1), 2.04(1), 24.01(c), 24.05, 36.01(1), 46.02(1), 46.05(1), 46.07(1), 77.01(1), 77.02 and 77.06 - Perpetual Corporate Trust Limited v Sambanis [2025] VSC 531 considered - Appeal dismissed.
APPEALS - Appeal from orders of an Associate Justice dismissing proceeding for want of prosecution - First plaintiff solicitor's repeated non-compliance with pre-trial orders - Some unusual features - Pre-trial orders again made, but with first plaintiff required to show cause if further non-compliance - Further non-compliance - First defendant's summons - Subsequent events and affidavit advising of additional bases for relief sought - Affidavit and written submissions served - No appearance by first plaintiff at hearing before Associate Justice - Summons amended and proceeding dismissed - Appeal in the nature of rehearing - Whether any claimed errors established - Whether Court had jurisdiction - Whether first plaintiff's defaults were 'intentional and contumelious' - Whether finding of 'no life interest' - Whether material denial of procedural fairness - Whether error in ordering costs of the proceeding on an indemnity basis - Supreme Court Act 1986 (Vic), ss 17(1A) and 17(3) - Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 1.14(2), 2.01(1), 2.04(1), 24.01(c), 24.05, 36.01(1), 46.02(1), 46.05(1), 46.07(1), 77.01(1), 77.02 and 77.06 - Perpetual Corporate Trust Limited v Sambanis [2025] VSC 531 considered - Appeal dismissed.
CONTRACT - Appeals from Victorian Civil and Administrative Tribunal - Domestic building contract dispute - Whether Tribunal erred in concluding there was an express term regarding ability to reverse caravan down driveway - Written contract with entire contract clause - No pleading of collateral contract, rectification or misleading conduct - Ability to reverse caravan down driveway not a result stated in the contract - Tribunal erred in finding precontractual discussions regarding driveway gave rise to desired result being stated in contract.
CONTRACT - Appeals from Victorian Civil and Administrative Tribunal - Domestic building contract dispute - Whether Tribunal erred in concluding there was an express term regarding ability to reverse caravan down driveway - Written contract with entire contract clause - No pleading of collateral contract, rectification or misleading conduct - Ability to reverse caravan down driveway not a result stated in the contract - Tribunal erred in finding precontractual discussions regarding driveway gave rise to desired result being stated in contract.
CONTRACT - Contract plans specified driveway without material slope - Builder in breach - Rectification would require demolition of house and garage - No error in Tribunal finding that unreasonable to award rectification damages - Whether open to Tribunal to award damages for storage of caravan - Open for Tribunal to award damages for storage of caravan, loss of amenity and physical inconvenience - No error in Tribunal permitting further hearing regarding damages.
CONTRACT - Whether the Tribunal erred in its calculation of the compensation regarding other defects of the house - Whether Owners failed to mitigate loss - Owners not 'required' to give builder opportunity to rectify - No error as to the Tribunal's calculation regarding the other defects.
Stone v Chappel (2017) 128 SASR 165; Bellgrove v Eldridge (1954) 90 CLR 613; Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 344; 85 Princess Pty Ltd v Fleming [2025] NSWSC 407; Ceerose Pty Ltd v Owners of Strata Plan No 89074 [2025] NSWCA 235, considered.
FAMILY TRUST - Deceased was appointor of family trust - Provision in trust deed that, upon the appointor's death, the appointor's legal personal representative to become appointor, or if no legal personal representative, then the trustee to become appointor - Power of appointment exercisable by written instrument - Executor granted probate on basis of forged will - Previous trustee appointed the executor as new trustee - Executor purported to exercise powers as trustee - Probate revoked and alternative legal personal representative appointed by Court - Re Cassar [2022] VSC 126 - Whether executor's appointment and actions as trustee valid - Held: Executor's appointment as trustee invalid because no written instrument - Executor was trustee de son tort of trust property with obligations to beneficiaries but no authority to exercise powers of trustee under the settlement - Jasmine Trustees v Wells & Hind [2008] Ch 194 applied - Actions taken by executor invalid and void - Plaintiffs entitled to declarations and relief sought.
FAMILY TRUST - Deceased was appointor of family trust - Provision in trust deed that, upon the appointor's death, the appointor's legal personal representative to become appointor, or if no legal personal representative, then the trustee to become appointor - Power of appointment exercisable by written instrument - Executor granted probate on basis of forged will - Previous trustee appointed the executor as new trustee - Executor purported to exercise powers as trustee - Probate revoked and alternative legal personal representative appointed by Court - Re Cassar [2022] VSC 126 - Whether executor's appointment and actions as trustee valid - Held: Executor's appointment as trustee invalid because no written instrument - Executor was trustee de son tort of trust property with obligations to beneficiaries but no authority to exercise powers of trustee under the settlement - Jasmine Trustees v Wells & Hind [2008] Ch 194 applied - Actions taken by executor invalid and void - Plaintiffs entitled to declarations and relief sought.
CONTEMPT OF COURT - Application by originating motion and summons seeking orders that respondent guilty of 15 charges of contempt - Conduct comprising comments made by respondent in open court and by correspondence - Respondent made abusive and disrespectful comments to County Court judge in court - Respondent sent numerous emails to court containing threatening language and allegations of impropriety and corruption - Correspondence sent to judges' chambers and court registries - Whether conduct had tendency to interfere with administration of justice or otherwise scandalise the court - Contempt found proven.
CONTEMPT OF COURT - Application by originating motion and summons seeking orders that respondent guilty of 15 charges of contempt - Conduct comprising comments made by respondent in open court and by correspondence - Respondent made abusive and disrespectful comments to County Court judge in court - Respondent sent numerous emails to court containing threatening language and allegations of impropriety and corruption - Correspondence sent to judges' chambers and court registries - Whether conduct had tendency to interfere with administration of justice or otherwise scandalise the court - Contempt found proven.
Supreme Court (General Civil Procedure) Rules 2015, r 75.08.1; Charter of Human Rights and Responsibilities Act 2006, ss 8, 15, 21 and 24; Evidence Act 2008, s 161.
John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351; R v Dunbabin; ex parte Williams (1935) 53 CLR 434; Witham v Holloway (1995) 183 CLR 525; LCM Litigation Fund Pty Ltd v Coope [2017] NSWCA 200; R v Slaveski [2011] VSC 643; Prothonotary of the Supreme Court of New South Wales v Katelaris [2008] NSWSC 389; Re Dyce Sombre (1849) 1 MaC & G 116; 41 ER 1207; Gallagher v Durack (1983) 152 CLR 238; Ex parte Attorney- General; Re Goodwin(1969) 70 SR (NSW) 413; Re Wiseman [1969] NZLR 55; R v Collins [1954] VLR 46; McGuirk v University of New South Wales [2009] NSWSC 1058, considered.
EVIDENCE
EVIDENCE
PROCEDURE - Jurisdiction to discharge party from undertaking to the Court given as part of final relief - Application by appointor of trust for leave to be discharged from undertakings not to remove trustee - Where application brought after proceeding dismissed - Where undertakings given on final basis - Grant of liberty to apply - Where appointer seeks to exercise power of appointment to have new independent trustee appointed - Whether in the exercise of the Court's discretion it would be unjust for undertaking to be maintained - Where appointor seeks to use power of appointment because of concerns about trustee's management of trusts - Where no new facts or circumstances have arisen - Applicant failed to discharge onus that Court should exercise discretion to release party from undertaking - Application dismissed - Russell v Russell [1956] P 283 - Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 - Commonwealth Bank of Australia v Law Debenture Trust Corp PLC (No 4) [2018] WASC 165 - Lin v Lin No. 4 [2024] VSC 759.
PROCEDURE - Jurisdiction to discharge party from undertaking to the Court given as part of final relief - Application by appointor of trust for leave to be discharged from undertakings not to remove trustee - Where application brought after proceeding dismissed - Where undertakings given on final basis - Grant of liberty to apply - Where appointer seeks to exercise power of appointment to have new independent trustee appointed - Whether in the exercise of the Court's discretion it would be unjust for undertaking to be maintained - Where appointor seeks to use power of appointment because of concerns about trustee's management of trusts - Where no new facts or circumstances have arisen - Applicant failed to discharge onus that Court should exercise discretion to release party from undertaking - Application dismissed - Russell v Russell [1956] P 283 - Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 - Commonwealth Bank of Australia v Law Debenture Trust Corp PLC (No 4) [2018] WASC 165 - Lin v Lin No. 4 [2024] VSC 759.
COSTS - Group proceeding - Complaint by defendant that statement of claim defective - Pleadings not closed - Application by plaintiffs to amend statement of claim to add parties -Application by defendant to strike out statement of claim and that the proceeding not continue under pt 4A of the Supreme Court Act 1986- Significant change in position by plaintiffs -Application by defendant for costs of summonses, and pleading amendments and for immediate taxation - Supreme Court (General Civil Procedure) Rules 2025 rr 63.17, 63.20, 63.20.1- Costs order limited to particular period - No order as to immediate taxation - Summons for costs - Costs in proceeding.
COSTS - Group proceeding - Complaint by defendant that statement of claim defective - Pleadings not closed - Application by plaintiffs to amend statement of claim to add parties -Application by defendant to strike out statement of claim and that the proceeding not continue under pt 4A of the Supreme Court Act 1986- Significant change in position by plaintiffs -Application by defendant for costs of summonses, and pleading amendments and for immediate taxation - Supreme Court (General Civil Procedure) Rules 2025 rr 63.17, 63.20, 63.20.1- Costs order limited to particular period - No order as to immediate taxation - Summons for costs - Costs in proceeding.
COSTS - First defendant made application seeking (1) transfer of the proceeding under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) and (2) that the Court decline to exercise jurisdiction - Both aspects of the application were dismissed - Extent to which the other defendants joined in any and what aspects of the application - Hearing earlier adjourned to permit, among other things, service of notices under s 78B of the Judiciary Act 1903 (Cth) and relevant written submissions by the plaintiff - Costs principles - Costs thrown away - Issue based costs orders - Stay - Thurin v Krongold Constructions (Aust) Pty Ltd (No 2) [2022] VSCA 252 considered - Orders made.
COSTS - First defendant made application seeking (1) transfer of the proceeding under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) and (2) that the Court decline to exercise jurisdiction - Both aspects of the application were dismissed - Extent to which the other defendants joined in any and what aspects of the application - Hearing earlier adjourned to permit, among other things, service of notices under s 78B of the Judiciary Act 1903 (Cth) and relevant written submissions by the plaintiff - Costs principles - Costs thrown away - Issue based costs orders - Stay - Thurin v Krongold Constructions (Aust) Pty Ltd (No 2) [2022] VSCA 252 considered - Orders made.
PRACTICE AND PROCEDURE - Appeal from determination of Judicial Registrar - Joinder - Amendment of pleadings - Property Law Act, s 172.
PRACTICE AND PROCEDURE - Appeal from determination of Judicial Registrar - Joinder - Amendment of pleadings - Property Law Act, s 172.
PRACTICE AND PROCEDURE - Costs orders in three related matters - Contempt application - Two appeals from VCAT - In one matter extension of time granted and appeal dismissed - In second matter appeal allowed and VCAT decision set aside - Whether usual order for costs appropriate in the circumstances - Claim for fixed costs by the Respondents - Whether the matters were a public interest matter - Costs awarded on standard basis taxed in default of agreement.
PRACTICE AND PROCEDURE - Costs orders in three related matters - Contempt application - Two appeals from VCAT - In one matter extension of time granted and appeal dismissed - In second matter appeal allowed and VCAT decision set aside - Whether usual order for costs appropriate in the circumstances - Claim for fixed costs by the Respondents - Whether the matters were a public interest matter - Costs awarded on standard basis taxed in default of agreement.
PRACTICE AND PROCEDURE - Alleged breach of r 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Where r 28.05 concerns inspection of documents and covers persons not party to a proceeding - Where no evidence that documents in question accessed under r 28.05 - Where reasonable inference that fourth respondent came into possession of documents as a party representative - Where documents not covered by order of Court that they remain confidential - No breach found - Summons dismissed.
PRACTICE AND PROCEDURE - Alleged breach of r 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Where r 28.05 concerns inspection of documents and covers persons not party to a proceeding - Where no evidence that documents in question accessed under r 28.05 - Where reasonable inference that fourth respondent came into possession of documents as a party representative - Where documents not covered by order of Court that they remain confidential - No breach found - Summons dismissed.
PRACTICE AND PROCEDURE - Disclosure of documents in separate but related proceedings - Where contempt allegations made against first respondent and others - Harman undertaking raised - Whether affidavit subject to the implied undertaking in Hearne v Street - Whether breach of implied undertaking - Where documents not of the character that would attract implied undertaking - Where affidavit filed voluntarily, not under court compulsion - Affidavit not subject to implied undertaking - Contempt not made out - Summons dismissed.
Harman v Secretary of State for the Home Department [1983] 1 AC 280; Hearne v Street (2008) 235 CLR 125; Davey v Silverstein [2019] VSC 724; Yap v Lee (No 2) [2024] VSC 730.
PRACTICE AND PROCEDURE - Allegation that confidential documents used in false and misleading way - Where information contained in documents not confidential in relevant sense - Where emails attaching documents set out basis for settlement of proceedings - Where nothing inappropriate or prohibited in such an offer being made - Where content may be matter of dispute but no basis for contempt - Summons dismissed.
PRACTICE AND PROCEDURE -Application by defendant for a separate determination of preliminary questions - R 47.04 of the Supreme Court (General and Civil Procedure) Rules 2025 - S 49 of the Civil Procedure Act 2010 - Pt IIA div 5 of the Limitations of Actions Act 1958 -application dismissed - Application for trial date to be vacated - Application dismissed.
PRACTICE AND PROCEDURE -Application by defendant for a separate determination of preliminary questions - R 47.04 of the Supreme Court (General and Civil Procedure) Rules 2025 - S 49 of the Civil Procedure Act 2010 - Pt IIA div 5 of the Limitations of Actions Act 1958 -application dismissed - Application for trial date to be vacated - Application dismissed.
PRACTICE AND PROCEDURE - Costs - Executor's application for costs from the estate of the deceased in circumstances where the application for executor's commission under s 65 of the Administration and Probate Act 1958 (Vic) was refused - Rule 10.10 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) - Rules 63.01 and 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application refused - Second plaintiff to bear own cost and to pay costs of the first plaintiff's costs of the second plaintiff's application for executor's commission on a standard basis without indemnity from the deceased's estate.
PRACTICE AND PROCEDURE - Costs - Executor's application for costs from the estate of the deceased in circumstances where the application for executor's commission under s 65 of the Administration and Probate Act 1958 (Vic) was refused - Rule 10.10 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) - Rules 63.01 and 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application refused - Second plaintiff to bear own cost and to pay costs of the first plaintiff's costs of the second plaintiff's application for executor's commission on a standard basis without indemnity from the deceased's estate.
PRACTICE AND PROCEDURE - First defendant's application for leave to amend their defence - Choice of laws - Explanation for delay - Leave granted - Aon Risk v ANU (2009) 239 CLR 175 - I.C. Formwork Services Pty Limited v Moir (No 2) (2020) 356 FLR 111.
PRACTICE AND PROCEDURE - First defendant's application for leave to amend their defence - Choice of laws - Explanation for delay - Leave granted - Aon Risk v ANU (2009) 239 CLR 175 - I.C. Formwork Services Pty Limited v Moir (No 2) (2020) 356 FLR 111.
PRACTICE AND PROCEDURE - Plaintiff's application that the first defendant lost legal client privilege - No inconsistency with maintenance of legal client privilege - Application rejected - Section 122(2) Evidence Act 2008 (Vic) - Osland v Secretary to the Department of Justice [2007] VSCA 96 - Mann v Carnell (1999) 201 CLR 1 - Viterra Malt Pty Ltd v Cargill Australia Ltd [2018] VSCA 118.
ADMINISTRATION AND PROBATE - TESTATOR'S FAMILY MAINTENANCE - Extension of time to bring application for provision under s 99 of the Administration and Probate Act 1958 (Vic) - Whether implied application for extension of time in originating motion - Alternatively, whether plaintiff should have leave to amend originating motion to seek extension of time - Green & Anor v Ellul & Ors [2018] SASCFC 100 considered and applied - Held: No implied application for extension of time made by Originating Motion - Application to amend originating motion dismissed - Summary judgment granted to defendant.
ADMINISTRATION AND PROBATE - TESTATOR'S FAMILY MAINTENANCE - Extension of time to bring application for provision under s 99 of the Administration and Probate Act 1958 (Vic) - Whether implied application for extension of time in originating motion - Alternatively, whether plaintiff should have leave to amend originating motion to seek extension of time - Green & Anor v Ellul & Ors [2018] SASCFC 100 considered and applied - Held: No implied application for extension of time made by Originating Motion - Application to amend originating motion dismissed - Summary judgment granted to defendant.
ENVIRONMENTAL LAW - Pecuniary penalty, adverse publicity order, compensation and ancillary orders sought for breach of environmental laws - Parties jointly sought the Court's approval of proposed consent orders - Parties provided joint submissions and agreed statement of facts - Defendant caused environmental damage by exceeding odour and leachate limits - Defendant complied with improvement actions and investments to reduce risk of similar incident - Insight and remorse demonstrated by defendant - Court satisfied to adopt joint submissions and proposed consent orders as basis of judgment - Court satisfied that the penalty was just and proportionate - Cooperation of the parties commended - Environment Protection Act 2017 (Vic) ss 25(1), 63(1).
ENVIRONMENTAL LAW - Pecuniary penalty, adverse publicity order, compensation and ancillary orders sought for breach of environmental laws - Parties jointly sought the Court's approval of proposed consent orders - Parties provided joint submissions and agreed statement of facts - Defendant caused environmental damage by exceeding odour and leachate limits - Defendant complied with improvement actions and investments to reduce risk of similar incident - Insight and remorse demonstrated by defendant - Court satisfied to adopt joint submissions and proposed consent orders as basis of judgment - Court satisfied that the penalty was just and proportionate - Cooperation of the parties commended - Environment Protection Act 2017 (Vic) ss 25(1), 63(1).
APPEAL - Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Statutory interpretation - Whether Tribunal erred in its determination of the scope and exercise of an administrator's powers under the Owners Corporations Act 2006 (Vic) - Owners corporation in a deadlock necessitating an independent administrator - Whether Tribunal erred in finding that the administrator could enter into a loan agreement without a special resolution - Whether an administrator entering into a loan agreement was acting 'in trade or commerce' under the Australian Consumer Law - Whether Tribunal erred in failing to find that an administrator owes a duty to consider financial circumstances of lot owners - Statutory duty to maintain and repair premises - Duty of administrator to act honestly and in good faith - No real prospect of success - Appeal dismissed.
APPEAL - Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Statutory interpretation - Whether Tribunal erred in its determination of the scope and exercise of an administrator's powers under the Owners Corporations Act 2006 (Vic) - Owners corporation in a deadlock necessitating an independent administrator - Whether Tribunal erred in finding that the administrator could enter into a loan agreement without a special resolution - Whether an administrator entering into a loan agreement was acting 'in trade or commerce' under the Australian Consumer Law - Whether Tribunal erred in failing to find that an administrator owes a duty to consider financial circumstances of lot owners - Statutory duty to maintain and repair premises - Duty of administrator to act honestly and in good faith - No real prospect of success - Appeal dismissed.
Victorian Civil and Administrative Act 1998 (Vic) s 148; Owners Corporations Act 2006 (Vic) ss 24, 25, 173, 174, 176, 177; Competition and Consumer Act 2010 (Cth) sch 2; Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594, considered; Kondo v Owners Corporation 33218101 (Owners Corporations) [2016] VCAT 909 and Anthony Horden & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, distinguished; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, applied.
ADMINISTRATIVE LAW - Appeal on a question of law under s 109 of the Magistrates' Court Act 1989 (Vic) - Whether magistrate erred in refusing an application under s 42E of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) - Whether magistrate erred in refusing an application to adjourn to allow witness to testify - Grounds for appellate review of decisions on practice and procedure - Grounds for appellate review of decisions on evidence - Denial of opportunity to present further evidence - Denial of procedural fairness - Materiality where counter factual is non-binary - LPDT v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 and Stead v State Government Insurance Commission (1986) 161 CLR 141, considered - Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175 applied - Giovinazzo v Resource Capital Ltd [2025] VSCA 176 referred to - Appeal dismissed.
ADMINISTRATIVE LAW - Appeal on a question of law under s 109 of the Magistrates' Court Act 1989 (Vic) - Whether magistrate erred in refusing an application under s 42E of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) - Whether magistrate erred in refusing an application to adjourn to allow witness to testify - Grounds for appellate review of decisions on practice and procedure - Grounds for appellate review of decisions on evidence - Denial of opportunity to present further evidence - Denial of procedural fairness - Materiality where counter factual is non-binary - LPDT v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 and Stead v State Government Insurance Commission (1986) 161 CLR 141, considered - Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175 applied - Giovinazzo v Resource Capital Ltd [2025] VSCA 176 referred to - Appeal dismissed.
ADMINISTRATIVE LAW - Judicial Review - Appeal from Victorian Civil and Administrative Tribunal - Whether there was an error of law in statutory construction - Town planning - Repeat appeal - Decision to refuse to grant a permit - Non-residential use in residential zone - Wrong question or wrong test applied - Neighbourhood Residential Zone Schedule 3 (NRZ3) - Banyule Planning Scheme.
ADMINISTRATIVE LAW - Judicial Review - Appeal from Victorian Civil and Administrative Tribunal - Whether there was an error of law in statutory construction - Town planning - Repeat appeal - Decision to refuse to grant a permit - Non-residential use in residential zone - Wrong question or wrong test applied - Neighbourhood Residential Zone Schedule 3 (NRZ3) - Banyule Planning Scheme.
Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148; Planning and Environment Act 1987 (Vic).
ADMINISTRATIVE LAW - Judicial Review - Appeal from decision of Victorian Civil and Administrative Tribunal - Whether the Tribunal erred in statutory construction - Consideration of a jurisdictional question - Power to consider alternative use of land - Questions of law and fact - Dispute between developer and Wyndham City Council - Town planning - Generally in accordance principles - Precinct structure plan - Development Contributions Plan - Meaning of 'potential'.
ADMINISTRATIVE LAW - Judicial Review - Appeal from decision of Victorian Civil and Administrative Tribunal - Whether the Tribunal erred in statutory construction - Consideration of a jurisdictional question - Power to consider alternative use of land - Questions of law and fact - Dispute between developer and Wyndham City Council - Town planning - Generally in accordance principles - Precinct structure plan - Development Contributions Plan - Meaning of 'potential'.
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 orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under the Residential Tenancies Act 1997 (Vic) - Application to set aside VCAT decision ordering possession - Where residential rental provider gave renter a notice to vacate under s 91ZZB (premises to be sold) - Whether mandatory documentary evidence supporting the notice was valid - Whether redaction of time period on exclusive sale authority invalidated the authority, thereby invalidating the notice to vacate - Where no explanation provided for the redaction - Redaction affected the transparency of the authority - Authority found to be defective, therefore validity of notice impacted - Invalid notice - Leave to appeal allowed - Order for possession set aside - Appeal dismissed.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under the Residential Tenancies Act 1997 (Vic) - Application to set aside VCAT decision ordering possession - Where residential rental provider gave renter a notice to vacate under s 91ZZB (premises to be sold) - Whether mandatory documentary evidence supporting the notice was valid - Whether redaction of time period on exclusive sale authority invalidated the authority, thereby invalidating the notice to vacate - Where no explanation provided for the redaction - Redaction affected the transparency of the authority - Authority found to be defective, therefore validity of notice impacted - Invalid notice - Leave to appeal allowed - Order for possession set aside - Appeal dismissed.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under the Residential Tenancies Act 1997 (Vic) - Application to set aside VCAT decision ordering possession - Where residential rental provider gave renter a notice to vacate under s 91ZZB (premises to be sold) - Whether it was reasonable and proportionate for VCAT to make an order for possession - Whether residential rental provider had a genuine intention to sell the property - Whether previous attempts to gain possession for the same reason constituted retaliation in response to repeated repair and related applications made by the renter - Where rent was being paid into a rent special account - Whether Tribunal failed to take into account impact on renter, as required by s 330(1(f) of the Act - Whether Tribunal actively engaged with renter's submissions concerning the impact of a possession order upon her - Whether Tribunal placed greater emphasis upon unsubstantiated evidence provided by the residential rental provider, at the same time discounting evidence provided by the renter - Whether renter given a reasonable opportunity to present her evidence and make submissions - Whether procedural fairness - Renter not given fair hearing - Leave to appeal allowed - Order for possession set aside - Appeal dismissed.
Residential Tenancies Act 1997 (Vic), ss 77, 91ZZB, 91ZZO, 91ZZS, 322(1), 330, 330A, 486A(1); Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 97-98, 148(1), 148(7)(b).
Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439; Gombac Group Pty Ltd v Vero Insurance Ltd [2005] VSC 442; Dura (Australia) Constructions Pty Ltd v SC Land Richmond Pty Ltd (Domestic Building) [2006] VCAT 2120; Tomasevic v Travaglini [2007] VSC 337; Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd [2008] VCAT 1479; Metricon Homes Pty Ltd v Sawyer [2013] VSC 518; Shrestha v Migration Review Tribunal (2015) 229 FCR 301; Trkulja v Markovic [2015] VSCA 298; SZVCP v Minister for Immigration and Border Protection (2016) 238 FCR 15; LKZ v CGS (Residential Tenancies) [2021] VCAT 1391; Hanson v Director of Housing [2022] VSC 710; Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; Kao v Mazi (Residential Tenancies) [2024] VCAT 1179; Moustra v Elder [2024] VCAT 813.
ADMINISTRATIVE LAW - Application for leave to appeal from orders of the Victorian Civil and Administrative Tribunal affirming a decision of Registrar of Births, Deaths and Marriages to cancel registration of a relationship - Whether Senior Member erred in interpreting the requirement that a person in the relationship 'lives in the State' - Whether applicant denied natural justice - Unreasonableness - Whether Senior Member failed to have regard to presumption of regularity - Power to amend register of relationships -Relationships Act 2008 ss 6, 7, 18, 19 - Application for leave to appeal dismissed.
ADMINISTRATIVE LAW - Application for leave to appeal from orders of the Victorian Civil and Administrative Tribunal affirming a decision of Registrar of Births, Deaths and Marriages to cancel registration of a relationship - Whether Senior Member erred in interpreting the requirement that a person in the relationship 'lives in the State' - Whether applicant denied natural justice - Unreasonableness - Whether Senior Member failed to have regard to presumption of regularity - Power to amend register of relationships -Relationships Act 2008 ss 6, 7, 18, 19 - Application for leave to appeal dismissed.
CRIMINAL LAW - Application for Bail - Applicant seeking bail in relation to 18 offences - Significant criminal history - History of ongoing substance abuse and mental health issues - Physical health issues - Exceptional circumstances established - Unacceptable risk not established - Bail granted with conditions - Bail Act 1977 (Vic) ss 1B, 3AAA, 4A, 4C, 4E, 4F, 5AAAA.
CRIMINAL LAW - Application for Bail - Applicant seeking bail in relation to 18 offences - Significant criminal history - History of ongoing substance abuse and mental health issues - Physical health issues - Exceptional circumstances established - Unacceptable risk not established - Bail granted with conditions - Bail Act 1977 (Vic) ss 1B, 3AAA, 4A, 4C, 4E, 4F, 5AAAA.
CRIMINAL LAW - Bail - Charges of using a carriage service to publish violent extremist material, possessing and controlling such material, threatening to use force and violence against a group distinguished by religion and using a carriage service to make a threat to kill - Child applicant - Applicant assessed as unsuitable by Youth Justice for bail service - Failure to abide by bail conditions on previous grants of bail - Longstanding fixation with terrorist organisation and ideology - Acquisition of weapons that are unaccounted for - Whether exceptional circumstances made out - Whether unacceptable risk of endangering the safety or welfare of any person, or committing an offence while on bail - Exceptional circumstances made out - Unacceptable risk - Bail refused - Crimes Act 1914 (Cth) s 15AA; Bail Act 1977 (Vic) ss 1B, 3AAA, 3B and 4E.
CRIMINAL LAW - Bail - Charges of using a carriage service to publish violent extremist material, possessing and controlling such material, threatening to use force and violence against a group distinguished by religion and using a carriage service to make a threat to kill - Child applicant - Applicant assessed as unsuitable by Youth Justice for bail service - Failure to abide by bail conditions on previous grants of bail - Longstanding fixation with terrorist organisation and ideology - Acquisition of weapons that are unaccounted for - Whether exceptional circumstances made out - Whether unacceptable risk of endangering the safety or welfare of any person, or committing an offence while on bail - Exceptional circumstances made out - Unacceptable risk - Bail refused - Crimes Act 1914 (Cth) s 15AA; Bail Act 1977 (Vic) ss 1B, 3AAA, 3B and 4E.
CRIMINAL LAW - Bail - Applicant charged with trafficking in drug of dependence and other charges - Applicant accused of a Schedule 2 offence while subject to a summons to answer to a charge of another Schedule 2 offence - Requirement to show exceptional circumstances - Whether exceptional circumstances made out - Whether applicant an unacceptable risk - Bail granted - Bail Act 1977, ss 1B, 3AAA, 4AA, 4A, 4D and 4E.
CRIMINAL LAW - Bail - Applicant charged with trafficking in drug of dependence and other charges - Applicant accused of a Schedule 2 offence while subject to a summons to answer to a charge of another Schedule 2 offence - Requirement to show exceptional circumstances - Whether exceptional circumstances made out - Whether applicant an unacceptable risk - Bail granted - Bail Act 1977, ss 1B, 3AAA, 4AA, 4A, 4D and 4E.
CRIMINAL LAW - Sentence - Murder - Domestic partner - Attacked in home - Strangulation - Lies - Concealment - Incineration of victim - Youthful offender - Childhood marred by alcohol abuse and violence - Late guilty plea - Remorse - Sentenced to 28 years' imprisonment - Non-parole period of 22 years and 4 months - Crimes Act 1958 (Vic), s 3 - Sentencing Act 1991 (Vic), ss 3, 5, 5A, 5B, 6AAA, 11, 11A, 18.
CRIMINAL LAW - Sentence - Murder - Domestic partner - Attacked in home - Strangulation - Lies - Concealment - Incineration of victim - Youthful offender - Childhood marred by alcohol abuse and violence - Late guilty plea - Remorse - Sentenced to 28 years' imprisonment - Non-parole period of 22 years and 4 months - Crimes Act 1958 (Vic), s 3 - Sentencing Act 1991 (Vic), ss 3, 5, 5A, 5B, 6AAA, 11, 11A, 18.
CRIMINAL LAW - Sentence - Attempted murder- Offender, aged 20, stabbed victim multiple times in his own home - Victim was the offender's father - Objectively serious offending - History of childhood abuse and neglect while living with victim - Involvement of Child Protection services - Offender diagnosed with personality disorder, complex post-traumatic stress disorder and some cognitive disabilities - Reduced moral culpability - Full admissions to police and early plea of guilty - No relevant criminal history - Very good prospects of rehabilitation - Sentenced to eight years' imprisonment with a non-parole period of four years and three months' imprisonment - Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269; Director of Public Prosecutions (Vic) v Herrmann (2021) 290 A Crim R 110.
CRIMINAL LAW - Sentence - Attempted murder- Offender, aged 20, stabbed victim multiple times in his own home - Victim was the offender's father - Objectively serious offending - History of childhood abuse and neglect while living with victim - Involvement of Child Protection services - Offender diagnosed with personality disorder, complex post-traumatic stress disorder and some cognitive disabilities - Reduced moral culpability - Full admissions to police and early plea of guilty - No relevant criminal history - Very good prospects of rehabilitation - Sentenced to eight years' imprisonment with a non-parole period of four years and three months' imprisonment - Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269; Director of Public Prosecutions (Vic) v Herrmann (2021) 290 A Crim R 110.
CRIMINAL LAW - Murder - Attempted murder - Conduct endangering life - Where accused drove car into pedestrians and collided into car - Whether the accused had murderous intent - Whether internet search history admissible - Whether resignation text messages to employer admissible - Whether witness description of accused driving into pedestrians as 'deliberate' admissible - Whether admission to witness admissible - Whether statement by Dr Carroll was expressing an opinion about the accused's culpability or reporting an admission - Whether admission to paramedics in police station admissible - Evidence Act 2008 (Vic) ss 76, 78, 90, 137 - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 20, 21.
CRIMINAL LAW - Murder - Attempted murder - Conduct endangering life - Where accused drove car into pedestrians and collided into car - Whether the accused had murderous intent - Whether internet search history admissible - Whether resignation text messages to employer admissible - Whether witness description of accused driving into pedestrians as 'deliberate' admissible - Whether admission to witness admissible - Whether statement by Dr Carroll was expressing an opinion about the accused's culpability or reporting an admission - Whether admission to paramedics in police station admissible - Evidence Act 2008 (Vic) ss 76, 78, 90, 137 - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 20, 21.
CRIMINAL LAW - Sentence - Manslaughter by unlawful and dangerous act - 67 year old lead tenant killed in her home by 46 year old male subtenant - Offender disposed of body in green waste bin - Body recovered from tip several days later - Mechanism of death not able to be determined as injuries to body could have occurred post mortem in garbage truck - Plea of guilty - Mental impairments - Verdins 5 applicable - Limited priors - Protection prisoner - Sentenced to 10 years' imprisonment with non-parole period of 7 years - DPP v Giffith [2023] VSC 218, DPP v Ivankovic [2025] VSC 50, R v Jeffrey [2023] VSC 538, R v Males [2007] VSCA 302, DPP v Ristevski [2019] VSCA 287, DPP v Tiumalu [2024] VSCA 192, R v Verdins (2007) 16 VR 269, DPP v Wain [2024] VSC 533.
CRIMINAL LAW - Sentence - Manslaughter by unlawful and dangerous act - 67 year old lead tenant killed in her home by 46 year old male subtenant - Offender disposed of body in green waste bin - Body recovered from tip several days later - Mechanism of death not able to be determined as injuries to body could have occurred post mortem in garbage truck - Plea of guilty - Mental impairments - Verdins 5 applicable - Limited priors - Protection prisoner - Sentenced to 10 years' imprisonment with non-parole period of 7 years - DPP v Giffith [2023] VSC 218, DPP v Ivankovic [2025] VSC 50, R v Jeffrey [2023] VSC 538, R v Males [2007] VSCA 302, DPP v Ristevski [2019] VSCA 287, DPP v Tiumalu [2024] VSCA 192, R v Verdins (2007) 16 VR 269, DPP v Wain [2024] VSC 533.
CRIMINAL LAW - Attempted murder of child - Where finding of not guilty by reason of mental impairment - Where HR declared liable to supervision - Whether supervision order should be imposed or unconditional release ordered - Where major depressive disorder in remission with treatment by private psychiatrist - Where HR is currently compliant with treatment and medication in the community - Where Forensicare initially indicated unable to offer additional services and treatment to HR - Where concern that risk of harm may arise if treatment and medication ceased - Where psychiatric opinion that HR will need to continue taking medication for remainder of her life - Where HR told psychiatrist that she thought she could cease taking medication in a few months - Appropriate to impose non-custodial supervision order on condition that continue with treatment - Whether supervisor should be appointed - Where Director of Public Prosecutions does not consent to supervising HR and no governmental body providing services - Whether needs to be, or power to appoint, a supervisor - Where Forensicare then agreed to act as supervisor and indicated it could provide services - Richards (a pseudonym) v The Queen (No 2) [2017] VSCA 174 - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 24, 26, 29, 30A, 31, 41, 47.
CRIMINAL LAW - Attempted murder of child - Where finding of not guilty by reason of mental impairment - Where HR declared liable to supervision - Whether supervision order should be imposed or unconditional release ordered - Where major depressive disorder in remission with treatment by private psychiatrist - Where HR is currently compliant with treatment and medication in the community - Where Forensicare initially indicated unable to offer additional services and treatment to HR - Where concern that risk of harm may arise if treatment and medication ceased - Where psychiatric opinion that HR will need to continue taking medication for remainder of her life - Where HR told psychiatrist that she thought she could cease taking medication in a few months - Appropriate to impose non-custodial supervision order on condition that continue with treatment - Whether supervisor should be appointed - Where Director of Public Prosecutions does not consent to supervising HR and no governmental body providing services - Whether needs to be, or power to appoint, a supervisor - Where Forensicare then agreed to act as supervisor and indicated it could provide services - Richards (a pseudonym) v The Queen (No 2) [2017] VSCA 174 - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 24, 26, 29, 30A, 31, 41, 47.
CRIMINAL LAW - Child homicide - Where offender struck baby's head causing non-survivable skull fractures and brain injuries - Where offender told baby's mother not to call ambulance - Where offender withheld information about how injuries occurred to medical staff - Where offender then sought to blame the baby's mother for the death - Where baby born prematurely and extremely vulnerable - Where baby was in the offender's care - Where offender was seeking treatment for anger issues - Plea of guilty after contested committal - Absence of remorse - No deprived background or psychiatric illness - No relevant criminal history - Moderate prospects of rehabilitation - R v Dempsey [2001] VSC 123 - R v Hughes [2015] VSC 312 - DPP v Woodford [2017] VSCA 312 - R v Vinaccia [2019] VSC 683 - DPP v McDonald [2020] VSC 845 - Crimes Act 1958 (Vic) s 5A.
CRIMINAL LAW - Child homicide - Where offender struck baby's head causing non-survivable skull fractures and brain injuries - Where offender told baby's mother not to call ambulance - Where offender withheld information about how injuries occurred to medical staff - Where offender then sought to blame the baby's mother for the death - Where baby born prematurely and extremely vulnerable - Where baby was in the offender's care - Where offender was seeking treatment for anger issues - Plea of guilty after contested committal - Absence of remorse - No deprived background or psychiatric illness - No relevant criminal history - Moderate prospects of rehabilitation - R v Dempsey [2001] VSC 123 - R v Hughes [2015] VSC 312 - DPP v Woodford [2017] VSCA 312 - R v Vinaccia [2019] VSC 683 - DPP v McDonald [2020] VSC 845 - Crimes Act 1958 (Vic) s 5A.
ALLEGED BREACH OF TRUST BY TRUSTEE OF UNIT TRUST - Alleged breach of trust by trustee of unit trust - Plaintiff unit holder required to subscribe cash for units - Other unit holders allocated far larger numbers of units without cash subscription - Breach of trustee's duty to act impartially between beneficiaries - No disclosure to cash subscribing unit holders of the numbers of units allocated without cash subscription or the identity of the unit holders - Further breach of trust by trustee in raising money against trust estate to "cash out" a unit holder which made no initial subscription of cash with distribution made against only 30 per cent of value of subscription constituted by undistributed profits - Director of unit trust company liable as having knowingly assisted breaches of trust - Tracing distributions in breach of trust used to pay down mortgages on the matrimonial homes of director's son and daughter and son-in-law, and director's matrimonial home - No tracing through overdrawn accounts - Tracing claim fails - No claim against children and son-in-law "in personam" because distribution "spent" immediately when paid into overdrawn mortgage account - Director's wife a knowing participant - No declaration of constructive trust relative to voluntary transfer to her of Director's share in matrimonial home - Not established that subject matter of transfer constituted traceable proceeds of the breach of trust - Payments in relief of mortgage on director's home not capable of being traced through overdrawn account.
ALLEGED BREACH OF TRUST BY TRUSTEE OF UNIT TRUST - Alleged breach of trust by trustee of unit trust - Plaintiff unit holder required to subscribe cash for units - Other unit holders allocated far larger numbers of units without cash subscription - Breach of trustee's duty to act impartially between beneficiaries - No disclosure to cash subscribing unit holders of the numbers of units allocated without cash subscription or the identity of the unit holders - Further breach of trust by trustee in raising money against trust estate to "cash out" a unit holder which made no initial subscription of cash with distribution made against only 30 per cent of value of subscription constituted by undistributed profits - Director of unit trust company liable as having knowingly assisted breaches of trust - Tracing distributions in breach of trust used to pay down mortgages on the matrimonial homes of director's son and daughter and son-in-law, and director's matrimonial home - No tracing through overdrawn accounts - Tracing claim fails - No claim against children and son-in-law "in personam" because distribution "spent" immediately when paid into overdrawn mortgage account - Director's wife a knowing participant - No declaration of constructive trust relative to voluntary transfer to her of Director's share in matrimonial home - Not established that subject matter of transfer constituted traceable proceeds of the breach of trust - Payments in relief of mortgage on director's home not capable of being traced through overdrawn account.
CONTRACT - RECEIVERSHIP - Claim for specific performance - Whether the parties intended to enter into a legally binding contract by signing an exit agreement to sell a half share of a property held in partnership - Relevance of post signature conduct - Whether damages be an appropriate remedy - Should the partnership be wound up and a receiver appointed.
CONTRACT - RECEIVERSHIP - Claim for specific performance - Whether the parties intended to enter into a legally binding contract by signing an exit agreement to sell a half share of a property held in partnership - Relevance of post signature conduct - Whether damages be an appropriate remedy - Should the partnership be wound up and a receiver appointed.