COURTS - Abuse of process - Application for permanent stay of child abuse proceeding - Child abuse alleged to have been perpetrated more than 70 years ago by two now deceased Christian Brothers - Impoverishment of evidence - Death of potential witnesses - Loss of potentially relevant documents - No unrelated complaints of sexual abuse against one Brother - Paucity of complaints of sexual abuse against other Brother - No evidence of any complaints being made about conduct of alleged perpetrators during their lifetimes - Whether trial of proceeding would be necessarily unfair - Whether exceptional circumstances exist justifying permanent stay of proceeding - Principles and techniques available to deal with evidentiary imbalance - Appeal against primary judge's dismissal of stay application dismissed.
COURTS - Abuse of process - Application for permanent stay of child abuse proceeding - Child abuse alleged to have been perpetrated more than 70 years ago by two now deceased Christian Brothers - Impoverishment of evidence - Death of potential witnesses - Loss of potentially relevant documents - No unrelated complaints of sexual abuse against one Brother - Paucity of complaints of sexual abuse against other Brother - No evidence of any complaints being made about conduct of alleged perpetrators during their lifetimes - Whether trial of proceeding would be necessarily unfair - Whether exceptional circumstances exist justifying permanent stay of proceeding - Principles and techniques available to deal with evidentiary imbalance - Appeal against primary judge's dismissal of stay application dismissed.
Limitation of Actions Act 1958, s 27P.
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; Willmot v Queensland (2024) 98 ALJR 1407, applied; RC v The Salvation Army (Western Australia) Property Trust (2024) 98 ALJR 1453, referred to.
PRACTICE AND PROCEDURE - Application to intervene by plaintiff to separate proceeding - Application to intervene in proceeding concerning two questions reserved for the Court of Appeal by a judge of the trial division - Where identified legal interest is the likelihood of being affected by the outcome of the proceeding - Permission to intervene refused.
PRACTICE AND PROCEDURE - Application to intervene by plaintiff to separate proceeding - Application to intervene in proceeding concerning two questions reserved for the Court of Appeal by a judge of the trial division - Where identified legal interest is the likelihood of being affected by the outcome of the proceeding - Permission to intervene refused.
Roadshow Films Pty Ltd v iiNet Limited (2011) 248 CLR 37; Levy v Victoria (1997) 189 CLR 579, considered.
PRACTICE AND PROCEDURE - Application for leave to appeal interlocutory orders of trial judge - Interim suppression and confidentiality orders - Orders deferring consideration of certain matters until trial - Orders interlocutory and made in exercise of discretion - Applicant will have opportunity to make arguments at trial about final suppression and confidentiality orders - No real prospects of success - Application for leave to appeal refused.
PRACTICE AND PROCEDURE - Application for leave to appeal interlocutory orders of trial judge - Interim suppression and confidentiality orders - Orders deferring consideration of certain matters until trial - Orders interlocutory and made in exercise of discretion - Applicant will have opportunity to make arguments at trial about final suppression and confidentiality orders - No real prospects of success - Application for leave to appeal refused.
OPEN COURTS - Suppression orders - Underlying proceeding concerns disciplinary proceedings against medical practitioner - Referral to regulator by Family Court - Materials in Family Court proceeding released to regulator on condition that confidentiality orders sought in disciplinary proceeding - Respondent sought suppression orders and confidentiality orders in present proceeding - Closed court order made - Pseudonym order made - Order prohibiting inspection of court file made - Application for suppression orders refused - Proposed orders of great breadth - Parties given opportunity to comment on any redactions required in Court's reasons.
Open Courts Act 2013, ss 17, 20, 30; Supreme Court (General Civil Procedure) Rules 2015, r 28.05(4); Supreme Court Act 1986, s 14C.
Fei v Hexin Pty Ltd (2024) 75 VR 581; Secretary, Department of Justice and Regulation v Zhong [No 2] [2017] VSCA 19; MSB v Chief Commissioner of Police (2018) 57 VR 360; Re Japara Holdings [2010] VSC 361; Re Proceeding 291 of 1944 [2006] VSC 50, discussed.
ACCIDENT COMPENSATION - Transport accident - Serious injury - Application for leave to commence common law proceeding - Applicant's vehicle collided with truck - Accident caused seatbelt to pull hard across applicant's stomach - No significant health abnormalities detected by treating physicians immediately following accident - Applicant subsequently experienced abdominal pain in weeks following accident - Applicant re-admitted to hospital and diagnosed with severe colitis - Applicant underwent total colectomy and ileostomy - Causation - Whether probable causal connection between transport accident and colitis - Expert evidence that transport accident a possible cause of colitis - Where applicant was in good health prior to accident - Temporal connection between accident and symptoms of colitis - Application for leave to appeal granted - Appeal allowed.
ACCIDENT COMPENSATION - Transport accident - Serious injury - Application for leave to commence common law proceeding - Applicant's vehicle collided with truck - Accident caused seatbelt to pull hard across applicant's stomach - No significant health abnormalities detected by treating physicians immediately following accident - Applicant subsequently experienced abdominal pain in weeks following accident - Applicant re-admitted to hospital and diagnosed with severe colitis - Applicant underwent total colectomy and ileostomy - Causation - Whether probable causal connection between transport accident and colitis - Expert evidence that transport accident a possible cause of colitis - Where applicant was in good health prior to accident - Temporal connection between accident and symptoms of colitis - Application for leave to appeal granted - Appeal allowed.
Transport Accident Act 1986, s 93.
EMI (Australia) Ltd v BES [1970] 2 NSWR 238; Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303; Dahl & Anor v Grice [1981] VR 513, considered; Fox v Percy (2003) 214 CLR 118, referred to.
LAND ACQUISITION AND COMPENSATION - Proper construction of the Land Acquisition and Compensation Act 1986 s 41(5) and s 41(7) - Whether reservation compensation paid under the Town and Country Planning Act 1961 s 41(1) is to be taken into account in determining acquisition compensation under Land Acquisition and Compensation Act 1986 s 41(5) - Calculation of the 'B' value in the formula contained in the Land Acquisition and Compensation Act 1986 s 41(7) - Studley Developments Pty Ltd v Department of Planning and Urban Growth [1993] 1 VR 15; Studley Developments Pty Ltd v Department of Planning and Urban Growth [1994] 1 VR 643, considered.
LAND ACQUISITION AND COMPENSATION - Proper construction of the Land Acquisition and Compensation Act 1986 s 41(5) and s 41(7) - Whether reservation compensation paid under the Town and Country Planning Act 1961 s 41(1) is to be taken into account in determining acquisition compensation under Land Acquisition and Compensation Act 1986 s 41(5) - Calculation of the 'B' value in the formula contained in the Land Acquisition and Compensation Act 1986 s 41(7) - Studley Developments Pty Ltd v Department of Planning and Urban Growth [1993] 1 VR 15; Studley Developments Pty Ltd v Department of Planning and Urban Growth [1994] 1 VR 643, considered.
STATUTORY INTERPRETATION - Principles of statutory construction - Purposive approach to statutory construction - Legislative intent to pursue its purposes by coherent means - Construction of statutory provisions on the prima facie basis that they were intended to give effect to harmonious goals - Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; SAS Trustee Corporation v Miles (2018) 265 CLR 137; R v A2 (2019) 269 CLR 507; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, followed.
STATUTORY INTERPRETATION - Effect of savings provisions - Application of the Interpretation of Legislation Act 1984 s 16(b) - Whether Pt 5 of the Planning and Environment Act 1987 is a re-enactment - Whether there is an express contrary intention - Whether the previous payments of compensation were a 'thing done under the repealed Act or provision' within the meaning of s 16(b) - Scope and application of the Planning and Environment Act 1987 s 206 - Felman v Law Institute of Victoria [1998] 4 VR 324; Waterfront Place Pty Ltd v Minister for Planning and Environment (2019) 59 VR 556; ADCO Containers Pty Ltd v Goudappel (2014) 254 CLR 1; North Burnside Pty Ltd v Melton Shire Council (2006) 18 VR 1, considered.
WORDS AND PHRASES - Meaning of expression 'pursuant to' in Land Acquisition and Compensation Act 1986 s 41(5) - Garbin v Wild [1965] WAR 72; Habel v Tiller [1929] SASR 170; Birchill & Ors v Premier Holdings Pty Ltd and Anor [2011] NSWSC 1020, considered.
CIVIL PROCEDURE - Taking of new points on appeal - Whether exceptional circumstances - Coulton v Holcombe (1986) 162 CLR 1; Sambucco v Sambucco (2023) 72 VR 121, followed.
Town and Country Planning Act 1961 ss 41(1)-(4), 42(4)-(5); Planning and Environment Act 1987 ss 4(1), 4(2)(l), 98, 99 (a)-(b), (d), 102, 105, 110-112, 206, 207(2); Land Acquisition and Compensation Act 1986 ss 30, 37, 40, 41(1), 41(5), 41(7), 89(2); Interpretation of Legislation Act 1984 s 16(b).
CRIMINAL LAW - Appeal - Second or subsequent appeal - Sexual offending against children - Whether evidence on which applicant relied 'fresh and compelling' - Majority of evidence available to applicant at time of trial - Evidence that is 'fresh' not 'compelling' - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Second or subsequent appeal - Sexual offending against children - Whether evidence on which applicant relied 'fresh and compelling' - Majority of evidence available to applicant at time of trial - Evidence that is 'fresh' not 'compelling' - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Applications for witnesses to attend and be examined pursuant to s 318 of Criminal Procedure Act 2009 - Applicant sought to examine large number of witnesses about a range of issues - Not in interests of justice to require witnesses to give evidence - Applications refused.
Criminal Procedure Act 2009, ss 318, 326A, 326C.
Van Beelen v The Queen (2017) 262 CLR 565; Roberts v The Queen (2020) 60 VR 431; Madafferi v The King [2024] VSCA 229, discussed.
CRIMINAL LAW - Appeal - Conviction - Three charges of rape, as well as charges of violence, including charge of threat to kill complainant - Tendency evidence adduced of applicant's tendency to engage in violence against females - Evidence of uncharged act of threat made to complainant concerning her children led in relation to threat to kill charge - Evidence inadmissible and not subject of tendency notice - Whether substantial miscarriage of justice - Where mixed verdicts - Where jury acquitted applicant of charge of threat to kill - Where extensive evidence of applicant's poor character included the making of a threat in front of complainant's children - No substantial miscarriage of justice - Appeal dismissed.
CRIMINAL LAW - Appeal - Conviction - Three charges of rape, as well as charges of violence, including charge of threat to kill complainant - Tendency evidence adduced of applicant's tendency to engage in violence against females - Evidence of uncharged act of threat made to complainant concerning her children led in relation to threat to kill charge - Evidence inadmissible and not subject of tendency notice - Whether substantial miscarriage of justice - Where mixed verdicts - Where jury acquitted applicant of charge of threat to kill - Where extensive evidence of applicant's poor character included the making of a threat in front of complainant's children - No substantial miscarriage of justice - Appeal dismissed.
Criminal Procedure Act 2009, s 276(1)(b); Evidence Act 2008, ss 97, 137.
Karam v The King [2023] VSCA 318, applied.
CRIMINAL LAW - Sentence - Appeal - Principle of parity - Appellant and other offender both convicted of firearm related offences in relation to same firearms - Other offender subject to lesser sentence - Whether primary judge had regard to principle of parity - Circumstances of appellant's offending and his criminal history justified higher sentence - Leave to appeal granted - Appeal dismissed.
CRIMINAL LAW - Sentence - Appeal - Principle of parity - Appellant and other offender both convicted of firearm related offences in relation to same firearms - Other offender subject to lesser sentence - Whether primary judge had regard to principle of parity - Circumstances of appellant's offending and his criminal history justified higher sentence - Leave to appeal granted - Appeal dismissed.
Rose v The King [2024] VSCA 296, applied.
CRIMINAL LAW - Sentence - Appeal - Whether sentence manifestly excessive - Applicant pleaded guilty to failing to immediately surrender a firearm related item when served with a prohibition order - Primary judge imposed sentence of 6 months for that offence, with cumulation of 3 months - Gravamen of offending was failure to surrender five rounds of ammunition - Offending at the very low end of seriousness - Mitigating circumstances - Leave to appeal granted - Appeal allowed.
Firearms Act 1996 ss 3, 7C, 112P; Crimes Act 1958 s 465AAA, considered.
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64; Kellway (a pseudonym) v The King [2023] VSCA 109; Nipoe v The Queen [2020] VSCA 137, discussed.
CRIMINAL LAW - Sentence - Appeal - Applicant pleaded guilty to defrauding financial institutions and telephone companies - Whether judge erred by rejecting expert opinion that applicant's IQ was 65 - Applicant acquired $1.128 million in financial advantage and property - Offending occurred over three years, including whilst applicant in custody - Prior dishonesty and deception convictions - Entrenched and recalcitrant behaviour - Deception using falsified documents and stolen or fictitious identities - Offending sophisticated and planned - IQ test flawed by motivational compromise - Open to the judge to reject IQ evidence - Leave to appeal refused.
CRIMINAL LAW - Sentence - Appeal - Applicant pleaded guilty to defrauding financial institutions and telephone companies - Whether judge erred by rejecting expert opinion that applicant's IQ was 65 - Applicant acquired $1.128 million in financial advantage and property - Offending occurred over three years, including whilst applicant in custody - Prior dishonesty and deception convictions - Entrenched and recalcitrant behaviour - Deception using falsified documents and stolen or fictitious identities - Offending sophisticated and planned - IQ test flawed by motivational compromise - Open to the judge to reject IQ evidence - Leave to appeal refused.
R v Olbrich (1999) 199 CLR 270, considered.
CRIMINAL LAW - Sentence - Appeal - Applicant pleaded guilty to defrauding financial institutions and telephone companies - Total effective sentence of 6 years and 5 months' imprisonment - Non-parole period of 4 years and 6 months - Whether applicant was denied procedural fairness - Judge said she was considering a sentence of 5 years' imprisonment with 3 years' non-parole and then imposed a more severe sentence - Judge did not go beyond expressing a tentative view - Defence counsel had opportunity to, and made, full plea submissions - No denial of procedural fairness - Leave to appeal granted - Appeal dismissed.
Criminal Procedure Act s 2009, s 280, considered.
Mendelle v The Queen [2018] VSCA 204; Weir v The Queen [2011] NSWCCA 123, discussed.
Anae v The Queen [2018] NSWCCA 73; Pantorno v The Queen (1989) 166 CLR 466; R v Grillo [2003] VSCA 143, considered.
R v Grossi (2008) 23 VR 500, referred to.
CRIMINAL LAW - Appeal - Practice and procedure - Application for production pursuant to s 317 of the Criminal Procedure Act 2009 - Where application directed to Department of Premier and Cabinet as record holder of submissions made to the Royal Commission into the Management of Police Informants - Where the Department is poorly placed to identify, assess or present submissions to the Court in respect of objections to production - Where it is suitable for the Court to inspect the subject documents in the absence of an objection to production or claim of public interest immunity - Where it is in the interests of justice to order production of specific documents.
CRIMINAL LAW - Appeal - Practice and procedure - Application for production pursuant to s 317 of the Criminal Procedure Act 2009 - Where application directed to Department of Premier and Cabinet as record holder of submissions made to the Royal Commission into the Management of Police Informants - Where the Department is poorly placed to identify, assess or present submissions to the Court in respect of objections to production - Where it is suitable for the Court to inspect the subject documents in the absence of an objection to production or claim of public interest immunity - Where it is in the interests of justice to order production of specific documents.
Criminal Procedure Act 2009; Inquiries Act 2014; Evidence Act 2008.
Zirilli v The Queen [2021] VSCA 174; Polimeni v The Queen [2022] VSCA 20; State of Victoria (Department of Justice) v Lane [2012] VSC 328; Zirilli v The Queen (2021) 287 A Crim R 407; Ragg v Magistrates' Court of Victoria (2008) 18 VR 300; Ryan v State of Victoria [2015] VSCA 353; Zirilli v The King [2023] VSCA 64; Alister v The Queen (1984) 154 CLR 404; R v Debono [2012] VSC 476; Sankey v Whitlam (1978) 142 CLR 1; Commonwealth v Northern Land Council (1993) 176 CLR 604; R v Saleam (1989) 16 NSWLR 14; Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49; Madafferi v The Queen [2021] VSCA 1; Zirilli v The Queen [2021] VSCA 2; Polimeni v The Queen [2021] VSCA 329.
CRIMINAL LAW - Appeal - Conviction - Rape - Applicant charged on indictment with two charges of rape of wife - Jury returned verdict of guilty on Charge 1 and not guilty on Charge 2 - Whether verdict on Charge 1 inconsistent with verdict on Charge 2 - Whether verdict on Charge 1 a compromise verdict - Whether reasonable and rational basis for jury to distinguish between Charge 1 and Charge 2 - Where complainant's evidence in relation to Charge 1 not able to be distinguished from evidence in relation to Charge 2 - Complainant's evidence not capable of rationally explaining different verdicts - Verdicts explicable only as compromise - Appeal allowed.
CRIMINAL LAW - Appeal - Conviction - Rape - Applicant charged on indictment with two charges of rape of wife - Jury returned verdict of guilty on Charge 1 and not guilty on Charge 2 - Whether verdict on Charge 1 inconsistent with verdict on Charge 2 - Whether verdict on Charge 1 a compromise verdict - Whether reasonable and rational basis for jury to distinguish between Charge 1 and Charge 2 - Where complainant's evidence in relation to Charge 1 not able to be distinguished from evidence in relation to Charge 2 - Complainant's evidence not capable of rationally explaining different verdicts - Verdicts explicable only as compromise - Appeal allowed.
MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) CLR 606, considered.
CRIMINAL LAW - Appeal - Supervision order under Serious Offenders Act 2018 - Appellant convicted of serious sex offences - Whether judge erred in imposing residence condition - Whether evidence wrongly admitted - Whether appellant afforded fair hearing - High risk of re-offending - No error established - Appeal dismissed.
CRIMINAL LAW - Appeal - Supervision order under Serious Offenders Act 2018 - Appellant convicted of serious sex offences - Whether judge erred in imposing residence condition - Whether evidence wrongly admitted - Whether appellant afforded fair hearing - High risk of re-offending - No error established - Appeal dismissed.
Charter of Human Rights and Responsibilities Act; 2006; Serious Offenders Act 2018 ss 8, 14, 19, 27, 28, 29, 33, 34, 35, 36, 40, 41, 115, 119, 121, 134.
Greene v Secretary to the Department of Justice and Community Safety [2021] VSCA 79; House v The King (1936) 55 CLR 499; Nigro v Secretary to the Department of Justice (2013) 41 VR 359; Thompson v Minogue (2021) 67 VR 301; WBM v Chief Commissioner of Police (2012) 43 VR 446 applied.
CRIMINAL LAW - Appeal - Sentence - Pleaded guilty to 11 drug-related offences - Charge 2 for possession of substances, materials, documents and equipment for drug trafficking - Sentence on charge 2 (base) of 2 years and 4 months - Whether sentencing discretion on charge 2 miscarried by treatment as 'rolled-up charge' comprising 26 instances - Was open to style charge 2 as 'rolled-up charge' - Applicant pleaded guilty to 'rolled-up charge' - No miscarriage - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Pleaded guilty to 11 drug-related offences - Charge 2 for possession of substances, materials, documents and equipment for drug trafficking - Sentence on charge 2 (base) of 2 years and 4 months - Whether sentencing discretion on charge 2 miscarried by treatment as 'rolled-up charge' comprising 26 instances - Was open to style charge 2 as 'rolled-up charge' - Applicant pleaded guilty to 'rolled-up charge' - No miscarriage - Leave to appeal refused.
Drugs, Poisons and Controlled Substances Act 1981, ss 71A, 71D.
Lipp v The Queen [2013] VSCA 384, considered.
CRIMINAL LAW - Appeal - Sentence - Pleaded guilty to 11 drug-related offences - Total effective sentence of 3 years and 6 months - Non-parole period of 1 year and 9 months - Whether judge failed to regard effect of family hardship on the applicant - Absence of explicit reference in judge's reasons does not mean failure to consider effect of family hardship on applicant - Leave to appeal refused.
Markovic v The Queen (2010) 30 VR 589; R v Panuccio (Court of Appeal of the Supreme Court of Victoria, Winneke P, Brooking and Charles JJA, 4 May 1998), discussed.
R v Koumis (2008) 18 VR 434; Bleakley v The King [2024] VSCA 88, considered.
CRIMINAL LAW - Appeal - Sentence - Pleaded guilty to 11 drug-related offences - Total effective sentence of 3 years and 6 months - Non-parole period of 1 year and 9 months - Whether individual sentences, orders for cumulation and non-parole period manifestly excessive - Whether exercise of mercy as consequence of exceptional family hardship established - Markovic v The Queen (2010) 30 VR 589 - Applicant's son suffering from non-verbal autism - Applicant's wife suffering from mental and physical health conditions - Exceptional family hardship on family members established - Sentence on charge 2 wholly outside range - Combination of mitigating factors especially exceptional family hardship - Leave to appeal granted - Appeal allowed - Applicant resentenced to 16 months with 8-month non-parole period.
DPP v Miceli (1997) 94 A Crim R 327; DPP v Milson [2019] VSCA 55; DPP v Snow (a pseudonym) [2020] VSCA 67.
Clarkson v The Queen (2011) 32 VR 361; Karam v The King [2024] VSCA 164; Lai v The King [2023] VSCA 151, considered.
EQUITY - Fiduciary duties - Duties of company directors - Duty to act in good faith and in the best interests of the company - Whether subjective or objective test to be applied - Duty to act for a proper purpose - Duty to avoid conflicts of interest - Duty to avoid unauthorised benefit - Where director caused assignment of intellectual property to another company for nominal value - Where director caused company to incur research and development expenditure following the assignment of the intellectual property - Fiduciary duties not breached.
EQUITY - Fiduciary duties - Duties of company directors - Duty to act in good faith and in the best interests of the company - Whether subjective or objective test to be applied - Duty to act for a proper purpose - Duty to avoid conflicts of interest - Duty to avoid unauthorised benefit - Where director caused assignment of intellectual property to another company for nominal value - Where director caused company to incur research and development expenditure following the assignment of the intellectual property - Fiduciary duties not breached.
CONSUMER LAW - Competition and Consumer Act 2010 (Cth) sch 2 - Australian Consumer Law s 18 - Misleading or deceptive conduct - Where representations made by way of contractual warranties - Whether warranty representations were false - Whether silence amounted to misleading or deceptive conduct - Accessorial liability - Australian Consumer Law s 236(1).
EVIDENCE - Valuation of intellectual property - Expert valuation reports unsatisfactory.
CONTEMPT - Where defendant failed to comply with court judgment to pay debt or deliver up goods - Defendant's contempt proven - Penalty - Belated purging of contempt - Fine imposed - Legal Services Board v Forster [2012] VSC 633 - Hera v Bisognin (No 2) [2019] VSC 625 - Victorian Legal Services Board v Jensen [2022] VSC 603 - Zhang v Shi (No 6) [2022] VSC 271 - Reliance Financial Services Pty Ltd v Allyma Express Holdings Pty Ltd (No 3) [2019] NSWSC 511.
CONTEMPT - Where defendant failed to comply with court judgment to pay debt or deliver up goods - Defendant's contempt proven - Penalty - Belated purging of contempt - Fine imposed - Legal Services Board v Forster [2012] VSC 633 - Hera v Bisognin (No 2) [2019] VSC 625 - Victorian Legal Services Board v Jensen [2022] VSC 603 - Zhang v Shi (No 6) [2022] VSC 271 - Reliance Financial Services Pty Ltd v Allyma Express Holdings Pty Ltd (No 3) [2019] NSWSC 511.
CORPORATIONS - Examination of persons - Application for access to confidential affidavit - Whether arguable case established that examination summonses issued for improper purposes constituting an abuse of process - Whether examinations sought for legitimate investigation of examinable affairs - Access to confidential material refused where no arguable case demonstrated - Corporations Act 2001 (Cth), ss 596A, 596B, 596C, 9, 53.
CORPORATIONS - Examination of persons - Application for access to confidential affidavit - Whether arguable case established that examination summonses issued for improper purposes constituting an abuse of process - Whether examinations sought for legitimate investigation of examinable affairs - Access to confidential material refused where no arguable case demonstrated - Corporations Act 2001 (Cth), ss 596A, 596B, 596C, 9, 53.
CORPORATIONS - External administration - Termination of winding up - Application under s 482(1A)(a) of the Corporations Act 2001 (Cth) to terminate the winding up - Company trustee of a discretionary trust - Secured creditor appointed receivers - Application to vacate the Court-appointed receivership - Termination orders concerning winding up and receivership condition precedent to deed of company arrangement - All relevant parties consent or do not oppose the termination orders - Limited recoveries by the liquidators - Liquidators unfunded - Payment of $1.6 million by deed proponent already made - Priority creditors to be paid in full - Small dividend to be paid to remaining unsecured creditors - Release of all claims including by secured creditor - Retirement of secured creditor appointed receiver - Trust and trust assets to revert to deed proponent - Company to revert to a neutral position subject to potential involvement in legal proceedings by the deed proponent trustee to recover specific debt - Undertaking by sole director of deed proponent that it will indemnify the company in relation to any cost disbursements, debts or liabilities connected with proposed legal proceedings supported by deed poll from litigation funder - Creditors acting on sufficient information better judges of what is to their commercial advantage than the Court can be - von Risefer v Mainfreight International Pty Ltd [2009] VSCA 179; 25 VR 366; 73 ACSR 427; Re Warbler Pty Ltd (1982) 6 ACLR 526; Re Glass Recycling Pty Ltd [2014] NSWSC 439, applied; English, Scottish & Australian Chartered Bank [1893] 3 Ch 385, per Lindley LJ cited.
CORPORATIONS - External administration - Termination of winding up - Application under s 482(1A)(a) of the Corporations Act 2001 (Cth) to terminate the winding up - Company trustee of a discretionary trust - Secured creditor appointed receivers - Application to vacate the Court-appointed receivership - Termination orders concerning winding up and receivership condition precedent to deed of company arrangement - All relevant parties consent or do not oppose the termination orders - Limited recoveries by the liquidators - Liquidators unfunded - Payment of $1.6 million by deed proponent already made - Priority creditors to be paid in full - Small dividend to be paid to remaining unsecured creditors - Release of all claims including by secured creditor - Retirement of secured creditor appointed receiver - Trust and trust assets to revert to deed proponent - Company to revert to a neutral position subject to potential involvement in legal proceedings by the deed proponent trustee to recover specific debt - Undertaking by sole director of deed proponent that it will indemnify the company in relation to any cost disbursements, debts or liabilities connected with proposed legal proceedings supported by deed poll from litigation funder - Creditors acting on sufficient information better judges of what is to their commercial advantage than the Court can be - von Risefer v Mainfreight International Pty Ltd [2009] VSCA 179; 25 VR 366; 73 ACSR 427; Re Warbler Pty Ltd (1982) 6 ACLR 526; Re Glass Recycling Pty Ltd [2014] NSWSC 439, applied; English, Scottish & Australian Chartered Bank [1893] 3 Ch 385, per Lindley LJ cited.
Corporations - Liquidation of trustee company - Company operated exclusively in capacity as trustee - Creditors on notice of remuneration to be sought by the liquidator - No objection or opposition to remuneration - Remuneration approved - Liquidator appointed receiver to enable recovery of debt alleged to be owed to the trust notwithstanding the very modest potential dividend to creditors from any such recovery after the payment of remuneration - Re Cremin (in his capacity as liquidator of Brimson Pty Ltd (in liq) [2019] FCA 1023; Re Amerind Pty Ltd (receivers and managers apptd) (in liq) [2017] VSC 127; (2017) 320 FLR 118, applied.
Corporations - Liquidation of trustee company - Company operated exclusively in capacity as trustee - Creditors on notice of remuneration to be sought by the liquidator - No objection or opposition to remuneration - Remuneration approved - Liquidator appointed receiver to enable recovery of debt alleged to be owed to the trust notwithstanding the very modest potential dividend to creditors from any such recovery after the payment of remuneration - Re Cremin (in his capacity as liquidator of Brimson Pty Ltd (in liq) [2019] FCA 1023; Re Amerind Pty Ltd (receivers and managers apptd) (in liq) [2017] VSC 127; (2017) 320 FLR 118, applied.
APPEAL - Appeal from decision of an Associate Judge - Appeal pursuant to r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Whether legal, factual or discretionary error on the part of the Associate Judge - No error by the Associate Judge demonstrated - Appeal dismissed.
APPEAL - Appeal from decision of an Associate Judge - Appeal pursuant to r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Whether legal, factual or discretionary error on the part of the Associate Judge - No error by the Associate Judge demonstrated - Appeal dismissed.
EVIDENCE - Client legal privilege - Joint client exception - Evidence Act 2008 (Vic) ss 118, 124 - Whether parties had a joint interest - No explicit joint retainer - Whether formal legal relationship required - Relevance of reasonably held subjective belief - Whether Associate Judge's findings merely established a prima facie basis to justify the exercise of power to inspect documents - Evidence Act 2008 (Vic) s 133.
INTERLOCUTORY INJUNCTION - Legal partnership - Injunction to restrain partners acting on a notice to convene a general meeting to consider resolutions to terminate partners - Whether serious question to be tried - Whether balance of convenience favours the grant of the injunction - Injunction granted.
INTERLOCUTORY INJUNCTION - Legal partnership - Injunction to restrain partners acting on a notice to convene a general meeting to consider resolutions to terminate partners - Whether serious question to be tried - Whether balance of convenience favours the grant of the injunction - Injunction granted.
PRACTICE AND PROCEDURE - Security for costs - Proceeding stayed due to failure to provide security for costs - Discretion to dismiss - Short extension of the time by which security must be paid following which the proceeding will stand dismissed - Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 62.04; Civil Procedure Act 2010 (Vic) ss 7, 8, 25.
PRACTICE AND PROCEDURE - Security for costs - Proceeding stayed due to failure to provide security for costs - Discretion to dismiss - Short extension of the time by which security must be paid following which the proceeding will stand dismissed - Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 62.04; Civil Procedure Act 2010 (Vic) ss 7, 8, 25.
PRACTICE AND PROCEDURE - Application for leave to amend defence and counterclaim - Where application made after the trial was vacated, an unsuccessful mediation and the death of the second plaintiff/second defendant to counterclaim - Where leave opposed in relation to proposed new claims in the counterclaim - Whether claims have no real prospects of success - Where Court not satisfied that the claims have no real prospects of success - Where explanation for delay in making the application is inadequate - Where no irreparable prejudice to the first plaintiff/first defendant to counterclaim - Where prejudice to the first defendant/first plaintiff by counterclaim if leave not granted - Leave granted to amend to include claims - Carroll v Goff [2021] VSCA 267 applied.
PRACTICE AND PROCEDURE - Application for leave to amend defence and counterclaim - Where application made after the trial was vacated, an unsuccessful mediation and the death of the second plaintiff/second defendant to counterclaim - Where leave opposed in relation to proposed new claims in the counterclaim - Whether claims have no real prospects of success - Where Court not satisfied that the claims have no real prospects of success - Where explanation for delay in making the application is inadequate - Where no irreparable prejudice to the first plaintiff/first defendant to counterclaim - Where prejudice to the first defendant/first plaintiff by counterclaim if leave not granted - Leave granted to amend to include claims - Carroll v Goff [2021] VSCA 267 applied.
PRACTICE AND PROCEDURE - Application to dismiss a proceeding for failure to pay security for costs - Application to dismiss proceeding for want of prosecution within the inherent jurisdiction of the Court - Whether inordinate and inexcusable delay - Discretion - Applicable principles - Prejudice - Whether substantial risk that it is not possible to have a fair trial - Whether the plaintiffs have failed to comply with Court orders - Ability to fund litigation - Idoport Pty Ltd v National Australia Bank & Ors [2002] NSWSC 18 - Farnell v Penhallurick (2010) 29 VR 727 - Imaging Applications Pty Ltd v Sun Alliance Australia Ltd [1999] VSC 230 - Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 62.04, 24.05.
PRACTICE AND PROCEDURE - Application to dismiss a proceeding for failure to pay security for costs - Application to dismiss proceeding for want of prosecution within the inherent jurisdiction of the Court - Whether inordinate and inexcusable delay - Discretion - Applicable principles - Prejudice - Whether substantial risk that it is not possible to have a fair trial - Whether the plaintiffs have failed to comply with Court orders - Ability to fund litigation - Idoport Pty Ltd v National Australia Bank & Ors [2002] NSWSC 18 - Farnell v Penhallurick (2010) 29 VR 727 - Imaging Applications Pty Ltd v Sun Alliance Australia Ltd [1999] VSC 230 - Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 62.04, 24.05.
PRACTICE AND PROCEDURE - Case management principles - Administration of justice - Conduct of the parties - Paramount duty - Overarching obligations - Trailer Trash Franchise Systems Pty Ltd v GM Fascia & Gutter Pty Ltd [2017] VSCA 293 - Pentridge Village Pty Ltd (In Liq) v Capital Finance Australia (No 3) [2023] VSC 605 - Civil Procedure Act 2010 (Vic) ss 7, 16.
PROBATE - Application for the revocation of a grant of probate - Whether the applicant's grounds of objection establish a prima facie case for revocation - Whether particulars of grounds of objection involving allegations that the deceased's will was made in suspicious circumstances, was procured by undue influence or that the deceased did not know or approve the contents of the will should be struck out - Montalto v Sala (2016) 15 ASTLR 393 and Gardiner v Hughes [No 2] [2019] VSCA 198 referred to - Offending grounds unsustainable and should be struck out.
PROBATE - Application for the revocation of a grant of probate - Whether the applicant's grounds of objection establish a prima facie case for revocation - Whether particulars of grounds of objection involving allegations that the deceased's will was made in suspicious circumstances, was procured by undue influence or that the deceased did not know or approve the contents of the will should be struck out - Montalto v Sala (2016) 15 ASTLR 393 and Gardiner v Hughes [No 2] [2019] VSCA 198 referred to - Offending grounds unsustainable and should be struck out.
JUDICIAL REVIEW - Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Extension of time within which to commence proceeding - No special circumstances made out - Application dismissed.
JUDICIAL REVIEW - Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Extension of time within which to commence proceeding - No special circumstances made out - Application dismissed.
JUDICIAL REVIEW - Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Extension of time within which to commence proceedings - No special circumstances - Applications dismissed
JUDICIAL REVIEW - Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Extension of time within which to commence proceedings - No special circumstances - Applications dismissed
ADMINISTRATION AND PROBATE - Administrator - Application for independent legal practitioner to be appointed as limited administrator pendente lite - Plaintiff alleged defendant dissipated funds as attorney under enduring power of attorney during the deceased's life - Plaintiff alleged defendant in control of estate assets, and associated family trust and superannuation fund - In related proceeding, defendant seeking probate of a will appointing him sole executor, specific beneficiary of deceased's former home and sole residuary beneficiary - Plaintiff alleged defendant was in a position of undue influence over deceased during last five years of her life as her live-in carer - Plaintiff alleged defendant had remained in possession of deceased's former home since her death rent free - Necessary to appoint independent person to preserve estate assets and ascertain potential debts to and property of the estate while the defendant's application for probate is pending - Limited administrator is empowered to sell the property if necessary to fund costs of estate administration - Sale of property will defeat a specific bequest but is permitted in absence of other estate assets to fund costs of estate administration - Henderson v Executor Trustee Australia Ltd & Ors (2005) 93 SASR 337; [2005] SASC 477 - Administration and Probate Act 1958 s 22.
ADMINISTRATION AND PROBATE - Administrator - Application for independent legal practitioner to be appointed as limited administrator pendente lite - Plaintiff alleged defendant dissipated funds as attorney under enduring power of attorney during the deceased's life - Plaintiff alleged defendant in control of estate assets, and associated family trust and superannuation fund - In related proceeding, defendant seeking probate of a will appointing him sole executor, specific beneficiary of deceased's former home and sole residuary beneficiary - Plaintiff alleged defendant was in a position of undue influence over deceased during last five years of her life as her live-in carer - Plaintiff alleged defendant had remained in possession of deceased's former home since her death rent free - Necessary to appoint independent person to preserve estate assets and ascertain potential debts to and property of the estate while the defendant's application for probate is pending - Limited administrator is empowered to sell the property if necessary to fund costs of estate administration - Sale of property will defeat a specific bequest but is permitted in absence of other estate assets to fund costs of estate administration - Henderson v Executor Trustee Australia Ltd & Ors (2005) 93 SASR 337; [2005] SASC 477 - Administration and Probate Act 1958 s 22.
TESTATOR'S FAMILY MAINTENANCE - Application under Part IV of the Administration and Probate Act 1958 (Vic) for family provision order by adult daughter out of mother's estate - Where deceased made no provision for adult daughter in her Will - Moral duty owed by mother to make provision for an adult daughter in need - Applicant in poor health, in receipt of government benefits, limited employment capacity and financial resources - Needs of other beneficiary unknown - Estrangement - Where daughter and deceased estranged for short period - Whether estrangement is a disentitling factor - Whether conduct of adult daughter responsible for estrangement - Defendant did not participate in proceeding - What amount constitutes adequate provision for the proper maintenance and support of the plaintiff - Held: Order made for provision to the plaintiff under Part IV of the Administration and Probate Act 1958 (Vic) ss 90, 91, 91A.
TESTATOR'S FAMILY MAINTENANCE - Application under Part IV of the Administration and Probate Act 1958 (Vic) for family provision order by adult daughter out of mother's estate - Where deceased made no provision for adult daughter in her Will - Moral duty owed by mother to make provision for an adult daughter in need - Applicant in poor health, in receipt of government benefits, limited employment capacity and financial resources - Needs of other beneficiary unknown - Estrangement - Where daughter and deceased estranged for short period - Whether estrangement is a disentitling factor - Whether conduct of adult daughter responsible for estrangement - Defendant did not participate in proceeding - What amount constitutes adequate provision for the proper maintenance and support of the plaintiff - Held: Order made for provision to the plaintiff under Part IV of the Administration and Probate Act 1958 (Vic) ss 90, 91, 91A.
REMOVAL OF CAVEAT - Removal of caveat pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic) - Onus on caveator to prove prima facie case of caveatable interest and balance of convenience favouring maintenance of caveat - Held, first defendant has established prima facie case for caveatable interest but balance of convenience favours removal of caveat - Application allowed - Piroshenko v Grojsman (2010) 27 VR 489, applied.
REMOVAL OF CAVEAT - Removal of caveat pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic) - Onus on caveator to prove prima facie case of caveatable interest and balance of convenience favouring maintenance of caveat - Held, first defendant has established prima facie case for caveatable interest but balance of convenience favours removal of caveat - Application allowed - Piroshenko v Grojsman (2010) 27 VR 489, applied.
PRACTICE AND PROCEDURE - Recovery of land under Order 53 of the Supreme Court (General Civil Procedure) Act 2015 (Vic) - Application dismissed as subject property vacated.
PRACTICE AND PROCEDURE - Setting aside judgment obtained in default of defence - Whether default judgment irregularly entered - Whether plaintiff had proved default in service of defence as required by r 21.02(2) of the Supreme Court (General Civil Procedure) Rules 2015 - Whether error in interlocutory judgment as to how it was obtained was an irregularity warranting set aside - Whether arguable defence on the merits - Factors relevant to discretion to set aside regularly entered judgment in default - r 21.07 of the Supreme Court (General Civil Procedure) Rules 2015.
PRACTICE AND PROCEDURE - Setting aside judgment obtained in default of defence - Whether default judgment irregularly entered - Whether plaintiff had proved default in service of defence as required by r 21.02(2) of the Supreme Court (General Civil Procedure) Rules 2015 - Whether error in interlocutory judgment as to how it was obtained was an irregularity warranting set aside - Whether arguable defence on the merits - Factors relevant to discretion to set aside regularly entered judgment in default - r 21.07 of the Supreme Court (General Civil Procedure) Rules 2015.
PRACTICE AND PROCEDURE - Costs - Interlocutory application for freezing orders - Application dismissed by consent and not resolved on merits - Whether it was unreasonable to bring and maintain application - Whether circumstances warrant departure from general practice of ordering that costs be costs in the proceeding - Supreme Court (General Civil Procedure) Rules 2015, r 63.20.
PRACTICE AND PROCEDURE - Costs - Interlocutory application for freezing orders - Application dismissed by consent and not resolved on merits - Whether it was unreasonable to bring and maintain application - Whether circumstances warrant departure from general practice of ordering that costs be costs in the proceeding - Supreme Court (General Civil Procedure) Rules 2015, r 63.20.
PRACTICE AND PROCEDURE - Whether affidavit sworn in accordance with Part 3 of the Oaths and Affirmations Act 2018 - Affidavit not sworn in accordance with statutory requirements - Whether filing an affidavit incorrectly sworn constituted compliance with self-executing orders - Construction of terms of the self-executing orders - Discretion under r 24.06 of the Supreme Court (General Civil Procedure) Rules 2015 to set aside judgment where non-compliance with self-executing orders.
PRACTICE AND PROCEDURE - Whether affidavit sworn in accordance with Part 3 of the Oaths and Affirmations Act 2018 - Affidavit not sworn in accordance with statutory requirements - Whether filing an affidavit incorrectly sworn constituted compliance with self-executing orders - Construction of terms of the self-executing orders - Discretion under r 24.06 of the Supreme Court (General Civil Procedure) Rules 2015 to set aside judgment where non-compliance with self-executing orders.
TESTATORS FAMILY MAINTENANCE - Application for a family provision order under Part IV of the Administration and Probate Act 1958 (Vic) by adult daughter - Where deceased died intestate - Where estate to be equally divided between two adult daughters - Where plaintiff lived in the deceased's property for majority of her life - Whether equal division of the estate adequately provides for the plaintiff's proper maintenance and support - Application dismissed - Administration and Probate Act 1958 (Vic) ss 90A, 91, 91A.
TESTATORS FAMILY MAINTENANCE - Application for a family provision order under Part IV of the Administration and Probate Act 1958 (Vic) by adult daughter - Where deceased died intestate - Where estate to be equally divided between two adult daughters - Where plaintiff lived in the deceased's property for majority of her life - Whether equal division of the estate adequately provides for the plaintiff's proper maintenance and support - Application dismissed - Administration and Probate Act 1958 (Vic) ss 90A, 91, 91A.
NEGLIGENCE - Professional liability - Negligence claim regarding adequacy of advice given by lawyer to client in historical institutional sexual abuse claim against unincorporated religious order for abuse suffered by plaintiff at Catholic school managed by order - Plaintiff advised to settle general damages and not make 'formal' economic loss claim in circumstances where scant evidence of plaintiff's work history due to failure to file tax returns - Defendant law firm believed Ellis defence would be taken and unincorporated association would not name appropriate defendant - Defendant law firm's belief as to obstacles facing plaintiff in making common law claim negligently held - Law firm gave erroneous advice - Breach of duty of care established - Causation established.
NEGLIGENCE - Professional liability - Negligence claim regarding adequacy of advice given by lawyer to client in historical institutional sexual abuse claim against unincorporated religious order for abuse suffered by plaintiff at Catholic school managed by order - Plaintiff advised to settle general damages and not make 'formal' economic loss claim in circumstances where scant evidence of plaintiff's work history due to failure to file tax returns - Defendant law firm believed Ellis defence would be taken and unincorporated association would not name appropriate defendant - Defendant law firm's belief as to obstacles facing plaintiff in making common law claim negligently held - Law firm gave erroneous advice - Breach of duty of care established - Causation established.
DAMAGES - Difficultly in assessing value of a loss of opportunity to litigate - Not possible or appropriate to assess loss by way of arithmetical calculation - Necessary to undertake informed estimation.
MISLEADING OR DECEPTIVE CONDUCT - Claim made under s 18(1) of the Australian Consumer Law - Claim framed as misleading conduct by silence of junior solicitor in failing to correct asserted error of counsel - Relevant conduct by barrister not law firm - Defendant law firm did not engage in actionable conduct within meaning of s 18.
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Badenach v Calvert (2016) 257 CLR 440, applied.
Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565; Taseska v Carus [2019] VSC 342;* Rosenberg v Percival* (2001) 205 CLR 434; Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; Talacko v Talacko (2021) 272 CLR 478; Jadwan Pty Ltd v Rae & Partners (a firm) (2020) 278 FCR 1, referred to.
Wrongs Act 1958, ss 51(1)(a), 52, 58, pt X div 5.
Australian Consumer Law, s 18.
Evidence Act 2008, ss 135(a), 55, 140.
CRIMINAL LAW - Sentence - Contravention of supervision order - Summary hearing - Use of methylamphetamine - 8 prior convictions for similar offending - Guilty plea - General and specific deterrence - Community protection - Prospects of rehabilitation - Long-standing drug addiction - Sentenced to 68 days' imprisonment - 68 days of pre-sentence detention reckoned as time served - Serious Offenders Act 2018 (Vic), ss 169(1), 279 - Sentencing Act 1991 (Vic), ss 5, 6AAA, 18.
CRIMINAL LAW - Sentence - Contravention of supervision order - Summary hearing - Use of methylamphetamine - 8 prior convictions for similar offending - Guilty plea - General and specific deterrence - Community protection - Prospects of rehabilitation - Long-standing drug addiction - Sentenced to 68 days' imprisonment - 68 days of pre-sentence detention reckoned as time served - Serious Offenders Act 2018 (Vic), ss 169(1), 279 - Sentencing Act 1991 (Vic), ss 5, 6AAA, 18.
CRIMINAL LAW - Sentence - Intentionally causing serious injury and common law assault - Verbal and physical altercation with wife at house party - Male house party guest called to assist stabbed soon after - Verbal and physical altercation with male victim prior to stabbing - Multiple stable wounds to torso, male victim would have died without urgent medical care - Early plea of guilt accepted for assault charge against wife - Offer to plead guilty to lesser charge not accepted with relation to stabbing - Male victim posed no threat to accused at time of offending - Lack of remorse for stabbing - Total effective sentence of 9 years and one month - R v Verdins (2007) 16 VR 269 - Sentencing Act 1991 (Vic) - Crimes Act 1958 (Vic) - Pihlgren v R [2024] VSCA 47.
CRIMINAL LAW - Sentence - Intentionally causing serious injury and common law assault - Verbal and physical altercation with wife at house party - Male house party guest called to assist stabbed soon after - Verbal and physical altercation with male victim prior to stabbing - Multiple stable wounds to torso, male victim would have died without urgent medical care - Early plea of guilt accepted for assault charge against wife - Offer to plead guilty to lesser charge not accepted with relation to stabbing - Male victim posed no threat to accused at time of offending - Lack of remorse for stabbing - Total effective sentence of 9 years and one month - R v Verdins (2007) 16 VR 269 - Sentencing Act 1991 (Vic) - Crimes Act 1958 (Vic) - Pihlgren v R [2024] VSCA 47.
REAL PROPERTY - CONTRACTS - DAMAGES - Sale of residential property - Failure by purchaser to complete - Termination by vendor - Assessment of damages and interest payable.
REAL PROPERTY - CONTRACTS - DAMAGES - Sale of residential property - Failure by purchaser to complete - Termination by vendor - Assessment of damages and interest payable.