REPRESENTATIVE ACTIONS - Practice and procedure - Orders - Notices to group members - Where representative proceeding under Pt 10 of Civil Procedure Act 2005 (NSW) ("CPA") - Where defendant proposed to provide notice ("proposed notice") setting out its intention to seek certain order if proceeding settled - Where proposed notice indicated defendant's intention to seek orders that a group member who had neither opted out nor registered to participate in the proceeding would remain a group member, but shall not, without leave of the Court, be permitted to seek any benefit pursuant to any settlement of the proceeding that occurs before final judgment - Where unregistered group member's claims against defendant would therefore be extinguished by settlement - Where intermediate appellate court authority in conflict - Whether Supreme Court of New South Wales could make an order under s 175(5) of CPA that proposed notice be given to group members.
REPRESENTATIVE ACTIONS - Practice and procedure - Orders - Notices to group members - Where representative proceeding under Pt 10 of Civil Procedure Act 2005 (NSW) ("CPA") - Where defendant proposed to provide notice ("proposed notice") setting out its intention to seek certain order if proceeding settled - Where proposed notice indicated defendant's intention to seek orders that a group member who had neither opted out nor registered to participate in the proceeding would remain a group member, but shall not, without leave of the Court, be permitted to seek any benefit pursuant to any settlement of the proceeding that occurs before final judgment - Where unregistered group member's claims against defendant would therefore be extinguished by settlement - Where intermediate appellate court authority in conflict - Whether Supreme Court of New South Wales could make an order under s 175(5) of CPA that proposed notice be given to group members.
WORDS AND PHRASES - "appellate jurisdiction", "compelling reason", "conflict of interest", "forensic advantage", "fundamental precept", "group member", "inconsistency of interest", "intention to seek an order", "intermediate appellate court", "notice", "opt in", "opt out", "plainly wrong", "power to order", "precedent", "ratio decidendi", "registration", "representative proceeding", "separate question", "seriously considered obiter dicta", "settlement", "settlement approval", "settlement negotiations", "statutory context".
Civil Procedure Act 2005 (NSW), Pt 10, ss 159(1), 161, 162, 166(1)(d), 171(1), 173, 175(1), 175(5), 175(6), 176, 177, 179(b), 183.
CRIMINAL PRACTICE - Appeal - Irregularity in criminal trial - Where principal issue at trial was whether perpetrator was appellant or another adult member of complainant's community - Where after trial prosecution disclosed appellant's father had been charged with sexual offences against another child - Where appellant appealed conviction on ground that there had been a miscarriage of justice - Where Court of Appeal of Supreme Court of South Australia found prosecution breached prosecution's common law duty of disclosure - Where Court of Appeal found no miscarriage of justice because appellant did not demonstrate that defence would have been conducted differently but for breach of duty of disclosure - Whether Court of Appeal erred in finding no miscarriage of justice - Whether error or irregularity must be material to establish miscarriage of justice.
CRIMINAL PRACTICE - Appeal - Irregularity in criminal trial - Where principal issue at trial was whether perpetrator was appellant or another adult member of complainant's community - Where after trial prosecution disclosed appellant's father had been charged with sexual offences against another child - Where appellant appealed conviction on ground that there had been a miscarriage of justice - Where Court of Appeal of Supreme Court of South Australia found prosecution breached prosecution's common law duty of disclosure - Where Court of Appeal found no miscarriage of justice because appellant did not demonstrate that defence would have been conducted differently but for breach of duty of disclosure - Whether Court of Appeal erred in finding no miscarriage of justice - Whether error or irregularity must be material to establish miscarriage of justice.
WORDS AND PHRASES - "all relevant evidence", "appeal", "burden", "categories of potential miscarriages of justice", "character evidence", "common form criminal appeal provision", "concession", "conviction set aside", "could realistically have affected the reasoning of the jury to a verdict of guilty", "disclosure after the trial", "duty of disclosure", "error or irregularity", "fanciful or improbable", "final address", "forensic utility", "fundamental", "identity of the perpetrator", "informing a relevant line of inquiry", "maintaining an unlawful sexual relationship with a child under the age of 17 years", "materiality", "miscarriage of justice", "negative proposition", "new trial ordered", "opening address", "perpetrator", "proviso", "third limb".
Criminal Procedure Act 1921 (SA), s 158.
CRIMINAL PRACTICE - Particular offences - Accessory before the fact to constructive murder - Where foundational offence was attempted robbery armed with dangerous weapon - Whether accessory before the fact to constructive murder is an offence known to law.
CRIMINAL PRACTICE - Particular offences - Accessory before the fact to constructive murder - Where foundational offence was attempted robbery armed with dangerous weapon - Whether accessory before the fact to constructive murder is an offence known to law.
HIGH COURT - Special leave to appeal - Where New South Wales Court of Criminal Appeal ("CCA") ordered new trial - Where Crown sought orders setting aside orders of CCA and dismissing respondent's appeal against conviction - Where Crown argued accessory before the fact to constructive murder is an offence known to law - Where Crown argued different formulation of mental element in CCA and High Court - Where Crown conceded acceptance of its argument required CCA's order for new trial to be affirmed - Whether special leave to appeal should be revoked - Whether interests of justice warranted revocation of special leave to appeal - Whether Crown in substance seeking guidance as to scope of retrial - Whether case ceased to be appropriate vehicle.
WORDS AND PHRASES - "accessorial liability", "accessory before the fact", "accessory before the fact to constructive murder", "appeal against reasons", "appropriate vehicle", "armed robbery", "constructive murder", "derivative liability", "extended joint criminal enterprise", "foundational offence", "ground of appeal", "guidance", "gun", "high vis shirt", "interests of justice", "joint criminal enterprise", "jury", "jury direction", "knowledge of the act causing death", "mental element", "new trial", "no real dispute", "offence known to law", "primary liability", "revocation of special leave to appeal", "special leave to appeal", "state of mind", "trial judge's direction", "variation of orders".
Crimes Act 1900 (NSW), ss 18, 346.
AVIATION - Carriage of passengers by air - Contract of carriage - Where Air Canada's International Passenger Rules and Fares Tariff ("Air Canada Tariff") formed part of contract of carriage with passengers - Where defences to liability recognised by Convention for the Unification of Certain Rules for International Carriage by Air (1999) ("Montreal Convention") - Where treaty provisions given effect in domestic law - Where liability rules of Montreal Convention expressly incorporated into Air Canada Tariff - Where partial defence in Art 21(2) of Montreal Convention raised - Whether open to Air Canada to waive partial defence limiting extent of passengers' recovery of damages for bodily injury allegedly caused by turbulence experienced on flight - Whether any waiver of partial defence in Air Canada Tariff.
AVIATION - Carriage of passengers by air - Contract of carriage - Where Air Canada's International Passenger Rules and Fares Tariff ("Air Canada Tariff") formed part of contract of carriage with passengers - Where defences to liability recognised by Convention for the Unification of Certain Rules for International Carriage by Air (1999) ("Montreal Convention") - Where treaty provisions given effect in domestic law - Where liability rules of Montreal Convention expressly incorporated into Air Canada Tariff - Where partial defence in Art 21(2) of Montreal Convention raised - Whether open to Air Canada to waive partial defence limiting extent of passengers' recovery of damages for bodily injury allegedly caused by turbulence experienced on flight - Whether any waiver of partial defence in Air Canada Tariff.
WORDS AND PHRASES - "aviation", "bodily injury", "context", "contract of carriage", "damages", "defence", "financial limit", "liability cap", "liability rules", "partial defence", "purpose", "tiers of liability", "travaux préparatoires", "treaty", "treaty interpretation", "unlimited liability", "waiver".
Civil Aviation (Carriers' Liability) Act 1959 (Cth), ss 9B, 11.
Convention for the Unification of Certain Rules for International Carriage by Air (1999), Arts 17, 21, 25.
Vienna Convention on the Law of Treaties (1969), Arts 31, 32.
CONSTITUTIONAL LAW (Cth) - Free and informed choice - Implied freedom of political communication - Where United Australia Party ("UAP") was formerly registered under Pt XI of Commonwealth Electoral Act 1918 (Cth) ("Act") and had been voluntarily deregistered under s 135(1) of Act - Where s 135(3) of Act precluded reregistration of UAP from occurring before next general election following voluntary deregistration - Whether s 135(3) invalid on ground that it impairs direct choice by people of Senators and members of House of Representatives - Whether s 135(3) invalid on ground that it impermissibly discriminates against candidates of political party or Parliamentary party that has deregistered voluntarily - Whether s 135(3) invalid on ground that it infringes implied freedom of political communication.
CONSTITUTIONAL LAW (Cth) - Free and informed choice - Implied freedom of political communication - Where United Australia Party ("UAP") was formerly registered under Pt XI of Commonwealth Electoral Act 1918 (Cth) ("Act") and had been voluntarily deregistered under s 135(1) of Act - Where s 135(3) of Act precluded reregistration of UAP from occurring before next general election following voluntary deregistration - Whether s 135(3) invalid on ground that it impairs direct choice by people of Senators and members of House of Representatives - Whether s 135(3) invalid on ground that it impermissibly discriminates against candidates of political party or Parliamentary party that has deregistered voluntarily - Whether s 135(3) invalid on ground that it infringes implied freedom of political communication.
WORDS AND PHRASES - "annual disclosure obligations", "anti-avoidance purpose", "anti-phoenixing purpose", "anti-rollover purpose", "burden or impairment", "deregistration", "effective burden", "electoral choice", "electoral expenditure", "explicature", "free and informed choice", "implicature", "implied freedom of political communication", "Parliamentary party", "rational connection", "reasonably appropriate and adapted", "registered political party", "reregistration", "structured proportionality", "transparency purpose", "voluntary deregistration".
Constitution, ss 7, 24.
Commonwealth Electoral Act 1918 (Cth), Pts XI, XX.
LANDLORD AND TENANT - Residential rental agreement - Order for possession made by VCAT after notice to vacate given on basis that owner wanted to sell property - Application by tenant to review possession order refused by VCAT - Application for leave to appeal VCAT's orders refused by primary judge - Applicant seeking leave to appeal primary judge's refusal to grant leave to appeal VCAT's orders - Proposed appeal having no real prospect of success - Application for leave to appeal refused.
LANDLORD AND TENANT - Residential rental agreement - Order for possession made by VCAT after notice to vacate given on basis that owner wanted to sell property - Application by tenant to review possession order refused by VCAT - Application for leave to appeal VCAT's orders refused by primary judge - Applicant seeking leave to appeal primary judge's refusal to grant leave to appeal VCAT's orders - Proposed appeal having no real prospect of success - Application for leave to appeal refused.
Victorian Civil and Administrative Tribunal Act 1998, s 148; Supreme Court Act 1986, s 14C.
CRIMINAL LAW - Appeals - Sentence - Crown appeals - Obtaining property by deception - Respondents deceived married couple into contributing financially towards fictitious High Court case - $2.9 million obtained by deception - Others deceived by one respondent into contributing financially to separate fictitious schemes - Whether sentences imposed on respondents manifestly inadequate - Rolled-up charges - Course of conduct charge - Appeals allowed - Respondents resentenced.
CRIMINAL LAW - Appeals - Sentence - Crown appeals - Obtaining property by deception - Respondents deceived married couple into contributing financially towards fictitious High Court case - $2.9 million obtained by deception - Others deceived by one respondent into contributing financially to separate fictitious schemes - Whether sentences imposed on respondents manifestly inadequate - Rolled-up charges - Course of conduct charge - Appeals allowed - Respondents resentenced.
Crimes Act 1958, s 81; Sentencing Act 1991, s 5(2F).
Poursanidis v The Queen (2016) 50 VR 681; R v Jones [2004] VSCA 68; R v Samia [2009] VSCA 5, discussed - DPP v Karazisis (2010) 31 VR 634; DPP v Ristic [2024] VSCA 251, applied.
CRIMINAL LAW - Interlocutory appeal - Rape and sexual assault - Whether judge erred in not granting leave to cross-examine complainant about sexual activities - Where complainant had made prior complaints of sexual abuse - Where prior complaints involve similar circumstances to present complaints - Judge not satisfied evidence of prior complaints substantially relevant to a fact in issue - Whether necessary for applicant to establish falsity of prior complaints - Complaints sufficiently similar to permit inferential reasoning - Interests of justice allow applicant to cross-examine complainant about prior complaints - Appeal allowed.
CRIMINAL LAW - Interlocutory appeal - Rape and sexual assault - Whether judge erred in not granting leave to cross-examine complainant about sexual activities - Where complainant had made prior complaints of sexual abuse - Where prior complaints involve similar circumstances to present complaints - Judge not satisfied evidence of prior complaints substantially relevant to a fact in issue - Whether necessary for applicant to establish falsity of prior complaints - Complaints sufficiently similar to permit inferential reasoning - Interests of justice allow applicant to cross-examine complainant about prior complaints - Appeal allowed.
Criminal Procedure Act 2009, ss 342, 346(2), 349.
Jackmain v The Queen (2020) 102 NSWLR 847, considered.
CRIMINAL LAW - Sentence - Negligently causing serious injury by driving - Appellant sustained traumatic brain injury with ongoing cognitive deficits due to collision - Whether proper approach taken to appellant's ongoing injuries as a mitigating factor - Whether sentence manifestly excessive - Sentence of 4 years' imprisonment with non-parole period of 2 years and 4 months was within range - Appeal dismissed.
CRIMINAL LAW - Sentence - Negligently causing serious injury by driving - Appellant sustained traumatic brain injury with ongoing cognitive deficits due to collision - Whether proper approach taken to appellant's ongoing injuries as a mitigating factor - Whether sentence manifestly excessive - Sentence of 4 years' imprisonment with non-parole period of 2 years and 4 months was within range - Appeal dismissed.
Harrison v The Queen (2015) 49 VR 619; R v Barci (1994) 76 A Crim R 103; DPP v King (2008) 187 A Crim R 219; Romero v The Queen (2011) 32 VR 486.
CRIMINAL LAW - Second or subsequent appeal - Conviction - Aggravated home invasion and other offences - Claimed misconduct at trial by police and prosecution - Claimed prosecution breach of duty of disclosure - Claimed errors by defence counsel at trial and on appeal - No fresh and compelling evidence - Leave to appeal refused.
CRIMINAL LAW - Second or subsequent appeal - Conviction - Aggravated home invasion and other offences - Claimed misconduct at trial by police and prosecution - Claimed prosecution breach of duty of disclosure - Claimed errors by defence counsel at trial and on appeal - No fresh and compelling evidence - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Applicant convicted of two charges of rape - Crown case one of manifest non-consent - Whether direction on reasonable belief in consent should have included reference to whether the applicant took steps to find out whether the complainant was consenting - Whether direction reversed onus of proof - Whether direction invited a compromise verdict - Whether direction on reasonable belief in consent should have included direction on general assumptions as to the consumption of alcohol and flirtatious behaviour by a complainant - No error in direction - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Applicant convicted of two charges of rape - Crown case one of manifest non-consent - Whether direction on reasonable belief in consent should have included reference to whether the applicant took steps to find out whether the complainant was consenting - Whether direction reversed onus of proof - Whether direction invited a compromise verdict - Whether direction on reasonable belief in consent should have included direction on general assumptions as to the consumption of alcohol and flirtatious behaviour by a complainant - No error in direction - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Applicant behaved in a dysregulated manner outside the courtroom on the third day of the trial - Applicant was yelling, crying and flailing arms - Applicant physically escorted from County Court building by his counsel and mother - Applicant observed in that state outside the building by a juror - Assumption that entire jury would know of the incident - No application for discharge of the jury - Direction given as to applicant's emotional distress - Whether judge should have made enquiry of a juror or jurors as to their knowledge of the incident - Whether incident was an irregularity in the trial incapable of amelioration other than by discharge of the jury - Whether terms of the direction given were adequate - No substantial miscarriage of justice - Leave to appeal refused.
Crimes Act 1958, s 36A; Jury Directions Act 2015, ss 6, 46, 47, 47C, 47G and 47I.
Maric v R (1978) 20 ALR 513; Percival v The Queen [2015] VSCA 2000; R v Halliday (2009) 23 VR 419; I v Western Australia (2006) 165 A Crim R 420; Damien Aubrey Platt v The Queen (2018) 58 VR 593; and Gilbert v R (2000) 201 CLR 414, referred to.
CRIMINAL LAW - Appeal - Conviction - Indecent assault - Sexual penetration of a person aged between 10 and 16 - Sexual penetration of a person aged between 10 and 16 who was under care, supervision or authority - Sexual penetration of a child under 16 - Gross indecency - Whether jury verdicts unreasonable or cannot be supported having regard to evidence - Whether significant infirmities in complainant's evidence - Infirmities in complainant's evidence explicable by effluxion of time - Judge properly directed jury on forensic disadvantage - Whether key witness' evidence properly characterised as unchallenged - Whether key witness' evidence alibi evidence - Witness' evidence not so cogent as to render doubt as to applicant's guilt - Witness' evidence not unchallenged alibi evidence - Jury not bound to accept witness' evidence - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Indecent assault - Sexual penetration of a person aged between 10 and 16 - Sexual penetration of a person aged between 10 and 16 who was under care, supervision or authority - Sexual penetration of a child under 16 - Gross indecency - Whether jury verdicts unreasonable or cannot be supported having regard to evidence - Whether significant infirmities in complainant's evidence - Infirmities in complainant's evidence explicable by effluxion of time - Judge properly directed jury on forensic disadvantage - Whether key witness' evidence properly characterised as unchallenged - Whether key witness' evidence alibi evidence - Witness' evidence not so cogent as to render doubt as to applicant's guilt - Witness' evidence not unchallenged alibi evidence - Jury not bound to accept witness' evidence - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Whether prosecutor's comments in closing submissions created unacceptable risk of substantial miscarriage of justice - Whether prosecutor invited jury to speculate about matters not in evidence - Whether prosecutor's closing address contained improper remarks apt to lead jury into error - No error in prosecutor's closing address.
CRIMINAL LAW - Appeal - Conviction - Whether judge erred in ruling that evidence of complainant's tendency to lie and make up false allegations between ages 5 and 16 was inadmissible - Whether judge wrongly attributed concessions to defence counsel - Proposed tendency evidence not of significant probative value - Judge was correct to refuse application.
Evidence Act 2008, ss 97, 135.
Palmer v The Queen (1998) 193 CLR 1; Pell v The Queen (2020) 268 CLR 123; SKA v The Queen (2011) 243 CLR 400; GAX v The Queen (2017) 91 ALJR 698; Tyrrell v The Queen [2019] VSCA 52; M v The Queen (1994) 181 CLR 487, considered.
CRIMINAL LAW - Appeal - Conviction - Intentionally causing serious injury and handling stolen goods - Prosecutor cross-examined principal prosecution witness without leave - Acquiescence of defence counsel - Whether defence counsel incompetent - Application granted - Appeal allowed - Convictions set aside - New trial ordered.
CRIMINAL LAW - Appeal - Conviction - Intentionally causing serious injury and handling stolen goods - Prosecutor cross-examined principal prosecution witness without leave - Acquiescence of defence counsel - Whether defence counsel incompetent - Application granted - Appeal allowed - Convictions set aside - New trial ordered.
CRIMINAL LAW - Sentence - Application for leave to appeal - Aggravated home invasion - Intentionally cause injury - Extortion - Theft - Whether proper weight given to parity principle in light of sentences imposed on two co-offenders - Whether orders for cumulation reflected overlap in offences - Whether sentence manifestly excessive - Sentences of 15 months, 12 months and 3 months' imprisonment for theft of laptop, car and car keys, with total of 5 months cumulated, manifestly excessive - Appeal allowed.
CRIMINAL LAW - Sentence - Application for leave to appeal - Aggravated home invasion - Intentionally cause injury - Extortion - Theft - Whether proper weight given to parity principle in light of sentences imposed on two co-offenders - Whether orders for cumulation reflected overlap in offences - Whether sentence manifestly excessive - Sentences of 15 months, 12 months and 3 months' imprisonment for theft of laptop, car and car keys, with total of 5 months cumulated, manifestly excessive - Appeal allowed.
Abdirahman v The Queen [2020] VSCA 87; DPP v Wol [2019] VSCA 268; Green v The Queen (2011) 244 CLR 462; Kellway (a pseudonym) v The King [2023] VSCA 109; Postiglione v The Queen (1997) 189 CLR 295; Wong v The Queen (2001) 207 CLR 584.
STANDING - s 58(1)(a) of the Bankruptcy Act 1966 (Cth) - General rule regarding vesting of property upon bankruptcy - Bankrupt no longer has standing in respect of the property the subject of the legal proceedings.
STANDING - s 58(1)(a) of the Bankruptcy Act 1966 (Cth) - General rule regarding vesting of property upon bankruptcy - Bankrupt no longer has standing in respect of the property the subject of the legal proceedings.
SUMMARY JUDGMENT - ss 61 and 63 of the Civil Procedure Act 2010 (Vic) - No real prospects of success - Failure to disclose an actionable defence.
DEFAULT JUDGMENT - Application by defendant to set aside judgment obtained in default of appearance - Defendant claimed judgment entered irregularly because writ and statement of claim not served personally - Plaintiff relied on agreement for service contained in Memorandum of Common Provisions attached to registered Mortgage - Defendant claimed he had filed a notice of appearance - Whether defendant had already filed an appearance - Whether defendant had an arguable defence on the merits if judgment regularly obtained - rr 6.02, 6.14, 8.07, 21.07 of the Supreme Court (General Civil Procedure) Rules 2015 - Application dismissed.
DEFAULT JUDGMENT - Application by defendant to set aside judgment obtained in default of appearance - Defendant claimed judgment entered irregularly because writ and statement of claim not served personally - Plaintiff relied on agreement for service contained in Memorandum of Common Provisions attached to registered Mortgage - Defendant claimed he had filed a notice of appearance - Whether defendant had already filed an appearance - Whether defendant had an arguable defence on the merits if judgment regularly obtained - rr 6.02, 6.14, 8.07, 21.07 of the Supreme Court (General Civil Procedure) Rules 2015 - Application dismissed.
ARBITRATION - International commercial arbitration - Indemnity costs - Where opposition to stay application had no reasonable prospects of success - Sino Dragon Trading Ltd v Noble Resources International Pte Ltd (No 2) [2016] FCA 1169 - Pipeline Services WA Pty Ltd v Atco Gas Australia Pty Ltd [2014] WASC 10 (S) - Winslow Constructors Pty Ltd v Head Transport for Victoria (2021) 64 VR 200 - No special costs rule - Applying general costs principles - Indemnity costs ordered as to part.
ARBITRATION - International commercial arbitration - Indemnity costs - Where opposition to stay application had no reasonable prospects of success - Sino Dragon Trading Ltd v Noble Resources International Pte Ltd (No 2) [2016] FCA 1169 - Pipeline Services WA Pty Ltd v Atco Gas Australia Pty Ltd [2014] WASC 10 (S) - Winslow Constructors Pty Ltd v Head Transport for Victoria (2021) 64 VR 200 - No special costs rule - Applying general costs principles - Indemnity costs ordered as to part.
INTEREST - Interest pursuant to contract - Statutory interest - Accrued unpaid interest - Whether entitled to interest under contract once contract has been terminated - Standard interest - Default interest - Whether both standard and default interest continued to accrue on the terms of the contract.
INTEREST - Interest pursuant to contract - Statutory interest - Accrued unpaid interest - Whether entitled to interest under contract once contract has been terminated - Standard interest - Default interest - Whether both standard and default interest continued to accrue on the terms of the contract.
COSTS - Where plaintiffs successful in claim - Where some defendants successful and unsuccessful in defending claim - Determining costs orders where mixed success of the parties - Overlap of costs due to the same legal representation - Broad impressionistic approach.
COSTS - Whether plaintiffs entitled to costs on an indemnity basis or standard basis - Whether entitled to costs on an indemnity basis under a clause of the contract or due to rejected Calderbank offer - Whether Calderbank offer unreasonably refused - Costs awarded on an indemnity basis - Calderbank v Calderbank [1975] 3 WLR 586.
CONTRACT - Interpretation of terms - Construction of contract - What a reasonable person would have understood the terms of the contract to mean - Consideration of the text of the contract and surrounding circumstances known to the parties - Purpose and object of the transaction - Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104.
CONTRACT - Accrued rights - What rights had the lender accrued at the date repudiation of the contract was accepted by the borrower - McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 - Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560.
PRACTICE AND PROCEDURE - Application by second defendant to set aside orders of judicial registrar made ex parte extending period of validity for service of the writ and to set aside service - Alleged failure to comply with obligation of utmost good faith by failing to disclose all material facts on an ex parte application - Re-hearing of extension application - Whether plaintiff had shown 'good reason' for the extension - Set aside on the basis of material non-disclosure not successful - Set aside on the re-hearing successful as no 'good reason' shown - Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 46.08(b), r 5.12.
PRACTICE AND PROCEDURE - Application by second defendant to set aside orders of judicial registrar made ex parte extending period of validity for service of the writ and to set aside service - Alleged failure to comply with obligation of utmost good faith by failing to disclose all material facts on an ex parte application - Re-hearing of extension application - Whether plaintiff had shown 'good reason' for the extension - Set aside on the basis of material non-disclosure not successful - Set aside on the re-hearing successful as no 'good reason' shown - Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 46.08(b), r 5.12.
PRACTICE AND PROCEDURE - Debt claim under a promissory note - Writ issued under s 4 of Instruments Act 1958 (Vic) - Time for defendant seeking leave to file an appearance expired and cannot be extended - Right to enter final judgment - Entry of final judgment under s 4 of Instruments Act is not entry of judgment in default of defendant filing an appearance under r 21.01(2) - Appearance under r 21.01(2) - Notice of application given to defendant who failed to seek leave to enter an appearance under s 5 of the Instruments Act 1958 (Vic) - Entry of default judgment under the Supreme Court (General Civil Procedure) Rules 2015 (Vic) is an act of ministerial character of the Prothonotary - Instruments Act 1958 (Vic) ss 3, 4, 5 and 10 and Second Schedule thereto - Supreme Court (General Civil Procedure) Rules 2015 rr 21.01(2) - Rule 2.07(1) of Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic) ch II not engaged - Kay's Leasing Corporation Pty Ltd v Burgess [1961] VR 703; Costain Australia Limited v Dennehy [1983] 2 VR 353; Cooper Morison Pty Ltd v Tennozan Pty Ltd [2008] VSC 273; Victorian WorkCover Authority v White [2021] VSC 458; Laminex Group Pty Ltd v Dwan [2023] VSC 595 referred to.
PRACTICE AND PROCEDURE - Debt claim under a promissory note - Writ issued under s 4 of Instruments Act 1958 (Vic) - Time for defendant seeking leave to file an appearance expired and cannot be extended - Right to enter final judgment - Entry of final judgment under s 4 of Instruments Act is not entry of judgment in default of defendant filing an appearance under r 21.01(2) - Appearance under r 21.01(2) - Notice of application given to defendant who failed to seek leave to enter an appearance under s 5 of the Instruments Act 1958 (Vic) - Entry of default judgment under the Supreme Court (General Civil Procedure) Rules 2015 (Vic) is an act of ministerial character of the Prothonotary - Instruments Act 1958 (Vic) ss 3, 4, 5 and 10 and Second Schedule thereto - Supreme Court (General Civil Procedure) Rules 2015 rr 21.01(2) - Rule 2.07(1) of Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic) ch II not engaged - Kay's Leasing Corporation Pty Ltd v Burgess [1961] VR 703; Costain Australia Limited v Dennehy [1983] 2 VR 353; Cooper Morison Pty Ltd v Tennozan Pty Ltd [2008] VSC 273; Victorian WorkCover Authority v White [2021] VSC 458; Laminex Group Pty Ltd v Dwan [2023] VSC 595 referred to.
PRACTICE AND PROCEDURE - Group proceeding - Settlement approval - Superannuation trustees - Statutory and general law duties - Failure to transition accrued default amounts - Application to approve settlement and distribution scheme - Approval of legal costs - Approval of settlement administration costs - Approval of plaintiff reimbursement payments - Appointment of administrator - Confidentiality - Supreme Court Act 1986 (Vic) ss 33V, 33ZB, 33ZF - Practice Note SC GEN 10 - Settlement approved.
PRACTICE AND PROCEDURE - Group proceeding - Settlement approval - Superannuation trustees - Statutory and general law duties - Failure to transition accrued default amounts - Application to approve settlement and distribution scheme - Approval of legal costs - Approval of settlement administration costs - Approval of plaintiff reimbursement payments - Appointment of administrator - Confidentiality - Supreme Court Act 1986 (Vic) ss 33V, 33ZB, 33ZF - Practice Note SC GEN 10 - Settlement approved.
PRACTICE AND PROCEDURE - Stay of proceedings - Arbitration - Application to lift stay - Where stay ordered by consent subject to condition that stay be lifted if defendant failed to progress arbitration with reasonable expedition - Where defendant failed to file response to notice of arbitration or pay share of arbitration costs - Where arbitration proceedings suspended - Whether condition for lifting stay satisfied - Whether arbitration agreement rendered 'inoperative' - UNCITRAL Model Law, article 8.
PRACTICE AND PROCEDURE - Stay of proceedings - Arbitration - Application to lift stay - Where stay ordered by consent subject to condition that stay be lifted if defendant failed to progress arbitration with reasonable expedition - Where defendant failed to file response to notice of arbitration or pay share of arbitration costs - Where arbitration proceedings suspended - Whether condition for lifting stay satisfied - Whether arbitration agreement rendered 'inoperative' - UNCITRAL Model Law, article 8.
PRACTICE AND PROCEDURE - Where matter set down for trial on 7 May 2025 and defendant seeks to vacate the trial, amend its defence, file and serve expert evidence by 10 June 2025 and obtain security for costs - Where defendant's explanation for delay is manifestly inadequate - Defendant's application to amend its defence allowed (in part) and other applications dismissed.
PRACTICE AND PROCEDURE - Where matter set down for trial on 7 May 2025 and defendant seeks to vacate the trial, amend its defence, file and serve expert evidence by 10 June 2025 and obtain security for costs - Where defendant's explanation for delay is manifestly inadequate - Defendant's application to amend its defence allowed (in part) and other applications dismissed.
PRACTICE AND PROCEDURE - Application for oral examination under Supreme Court (General Civil Procedure) Rules 2015 r 67.02 - Enforcement of untaxed costs order - Material questions as to availability of assets to meet costs order.
PRACTICE AND PROCEDURE - Application for oral examination under Supreme Court (General Civil Procedure) Rules 2015 r 67.02 - Enforcement of untaxed costs order - Material questions as to availability of assets to meet costs order.
PRACTICE AND PROCEDURE - Application for leave to serve defendant ordinarily residing in China - Supreme Court (General Civil Procedure) Rules 2015 r 7.08.
CONTRACTS - Proper construction of a clause in a standard form contract for the sale of land - Where plaintiff paid the deposit but the contract was rescinded and deposit forfeited - Where plaintiff also paid an instalment amount of the price under the contract - Where parties in dispute as to whether a clause of the contract entitles the defendant to retain the instalment amount - Held the defendant is not entitled to retain the instalment amount - Judgment for the plaintiff - Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, considered and applied.
CONTRACTS - Proper construction of a clause in a standard form contract for the sale of land - Where plaintiff paid the deposit but the contract was rescinded and deposit forfeited - Where plaintiff also paid an instalment amount of the price under the contract - Where parties in dispute as to whether a clause of the contract entitles the defendant to retain the instalment amount - Held the defendant is not entitled to retain the instalment amount - Judgment for the plaintiff - Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, considered and applied.
CONSTITUTIONAL LAW - Inconsistency of laws - Whether ss 10B, 23(1), 23(2), 23(2A), 28M, 28O, 28R(1)-(4), 28R(5)(a)(i) and/or 28R(5)(a)(ii) of the Building and Construction Industry Security of Payment Act 2002 (Vic) are inconsistent with ss 18, 232, 234, 236 and/or 237 of Australian Consumer Law as set out in Schedule 2 to the Competition and Consumer Act 2020 (Cth) and invalid to that extent under s 109 of the Commonwealth of Australia Constitution Act - Where State legislation creates administrative process for adjudication of claims to progress payments under construction contracts - Finding there is no operational inconsistency between the State law and Commonwealth law - Birdon Pty Ltd v Houben Marine Pty Ltd (2011) 197 FCR 25, applied - Bitannia Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238, not followed - Façade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd (2016) 337 ALR 452, distinguished.
CONSTITUTIONAL LAW - Inconsistency of laws - Whether ss 10B, 23(1), 23(2), 23(2A), 28M, 28O, 28R(1)-(4), 28R(5)(a)(i) and/or 28R(5)(a)(ii) of the Building and Construction Industry Security of Payment Act 2002 (Vic) are inconsistent with ss 18, 232, 234, 236 and/or 237 of Australian Consumer Law as set out in Schedule 2 to the Competition and Consumer Act 2020 (Cth) and invalid to that extent under s 109 of the Commonwealth of Australia Constitution Act - Where State legislation creates administrative process for adjudication of claims to progress payments under construction contracts - Finding there is no operational inconsistency between the State law and Commonwealth law - Birdon Pty Ltd v Houben Marine Pty Ltd (2011) 197 FCR 25, applied - Bitannia Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238, not followed - Façade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd (2016) 337 ALR 452, distinguished.
JUDGMENT - Whether judgment obtained in the County Court of Victoria pursuant to s 28R(1)-(4) of the Building and Construction Industry Security of Payment Act 2002 (Vic) should be set aside on the basis that it is irregular and/or because a necessary fact to enliven the County Court's jurisdiction did not exist - Where original adjudication determination was corrected as a consequence of a slip or error pursuant to s 24 of the Building and Construction Industry Security of Payment Act 2002 (Vic) - Whether the "relevant date" to pay the adjudicated amount pursuant to s 28M of the Building and Construction Industry Security of Payment Act 2002 (Vic) is calculated from the time of issue of the original adjudication determination or the corrected adjudication determination - Where no irregularity.
PROCEDURAL FAIRNESS - Whether ex parte judgment obtained in the County Court of Victoria pursuant to s 28R(1)-(4) of the Building and Construction Industry Security of Payment Act 2002 (Vic) was entered in circumstances which denied 1559 High Street Pty Ltd procedural fairness - Whether Camillo Builders Pty Ltd breached duty of candour when moving for judgment - Where no denial of procedural fairness or breach of candour.
CORPORATIONS - Winding up - Voidable transactions - Corporations Act 2001 (Cth) s 588FF(3)(b) - Application for extension of time to bring voidable transaction proceedings against multiple defendants - Significant value of transactions sought to be impugned - Discussion of factors relevant to exercise of Court's discretion to grant extension - Where delay in bringing proceedings sufficiently explained - Impact of size and complexity of affairs of corporate group on liquidation process - Lack of resources of liquidators to bring all voidable transaction claims within time - No evidence of specific prejudice to persons affected by proposed claims - Time elapsed from filing of application relevant to fixing period of any extension where investigations undertaken in interim - Short extension of time granted.
CORPORATIONS - Winding up - Voidable transactions - Corporations Act 2001 (Cth) s 588FF(3)(b) - Application for extension of time to bring voidable transaction proceedings against multiple defendants - Significant value of transactions sought to be impugned - Discussion of factors relevant to exercise of Court's discretion to grant extension - Where delay in bringing proceedings sufficiently explained - Impact of size and complexity of affairs of corporate group on liquidation process - Lack of resources of liquidators to bring all voidable transaction claims within time - No evidence of specific prejudice to persons affected by proposed claims - Time elapsed from filing of application relevant to fixing period of any extension where investigations undertaken in interim - Short extension of time granted.
CORPORATIONS - Winding up - Creditor's statutory demand - Application to set aside - Whether there is a genuine dispute about the existence of the debt - Costs - Corporations Act 2001 (Cth), s 459H - Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (in liq) [2015] VSCA 300; Panel Tech Industries (Australia) Pty Ltd v Australian Skyreach Equipment Pty Ltd (No 2) [2003] NSWSC 896, applied; In the matter of CharterLaw Legal Pty Ltd [2025] NSWSC 297, cited - Demand set aside.
CORPORATIONS - Winding up - Creditor's statutory demand - Application to set aside - Whether there is a genuine dispute about the existence of the debt - Costs - Corporations Act 2001 (Cth), s 459H - Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (in liq) [2015] VSCA 300; Panel Tech Industries (Australia) Pty Ltd v Australian Skyreach Equipment Pty Ltd (No 2) [2003] NSWSC 896, applied; In the matter of CharterLaw Legal Pty Ltd [2025] NSWSC 297, cited - Demand set aside.
PRACTICE AND PROCEDURE - Civil Procedure Act 2010 (Vic) obligations upon the Court, parties and practitioners in context of applications to set aside statutory demand for modest monetary amount - Civil Procedure Act 2010 (Vic), ss 7, 8, 23, 24, 25, 28 - No order as to costs.
CORPORATIONS - Application by director under s 583 of the Corporations Act 2001 (Cth) - Foreign company - Whether Part 5.7 body - Company unable to pay its debts - Business no longer carried on in Australia - Held: Application successful.
CORPORATIONS - Application by director under s 583 of the Corporations Act 2001 (Cth) - Foreign company - Whether Part 5.7 body - Company unable to pay its debts - Business no longer carried on in Australia - Held: Application successful.
CORPORATIONS - Extension of time to comply with statutory demand - Extension sought pending application for leave to appeal orders dismissing application to set aside statutory demand - Whether order should be made extending time for compliance with statutory demand - Corporations Act 2001 (Cth), s 459F - Further extension order sought - Time for compliance with statutory demand extended - General principles applicable to applications under s 459F(2)(a)(i) of the Corporations Act 2001 (Cth) - Time extension ultimately consented to - Whether extension order can be to the occurrence of a future event - Undertaking to prosecute application for leave to appeal with expedition.
CORPORATIONS - Extension of time to comply with statutory demand - Extension sought pending application for leave to appeal orders dismissing application to set aside statutory demand - Whether order should be made extending time for compliance with statutory demand - Corporations Act 2001 (Cth), s 459F - Further extension order sought - Time for compliance with statutory demand extended - General principles applicable to applications under s 459F(2)(a)(i) of the Corporations Act 2001 (Cth) - Time extension ultimately consented to - Whether extension order can be to the occurrence of a future event - Undertaking to prosecute application for leave to appeal with expedition.
PRACTICE AND PROCEDURE - Extension orders sought for filing and serving documents in support of application for leave to appeal - Written reasons for order the subject of application for leave to appeal not yet available - rr 64.05(1)(ab), 64.05(1)(c), and 64.35 of the Supreme Court (General Civil Procedure) Rules 2015 - Time for filing written case, list of authorities, and written reasons for decision extended.
LEGAL PRACTITIONERS - Suspension of Australian practising certificate - Practising certificate suspended on the basis of a charge of an indictable offence - Charge of attempting to pervert the course of justice - Charge of serious offence not yet determined - Power of delegate of Victorian Legal Services Board to immediately suspend practising certificate - Delegate considered that it was necessary in the public interest to suspend the certificate immediately - Board to consider further suspension - Legal Profession Uniform Law (Vic) ss 77, 82(2).
LEGAL PRACTITIONERS - Suspension of Australian practising certificate - Practising certificate suspended on the basis of a charge of an indictable offence - Charge of attempting to pervert the course of justice - Charge of serious offence not yet determined - Power of delegate of Victorian Legal Services Board to immediately suspend practising certificate - Delegate considered that it was necessary in the public interest to suspend the certificate immediately - Board to consider further suspension - Legal Profession Uniform Law (Vic) ss 77, 82(2).
JUDICIAL REVIEW - Australian practising certificate suspended on the basis of a charge of an indictable offence - Delegate of Victorian Legal Services Board formed opinion that immediate suspension of practising certificate was necessary in the public interest and decided to immediately suspend practising certificate without notice to holder - No evidence of other information supporting charge-sheet - Charge related to conduct alleged six years earlier - No suggestion of ongoing relevant conduct - No action under Legal Profession Uniform Law (Vic) pt 3.5 yet commenced - No basis for thinking practitioner might engage in any actual similar conduct - Suspension decision based purely on perception of loss of confidence in the legal profession and administration of justice - Content of requirements of procedural fairness in context of statutory provisions and in all the circumstances - Procedural fairness required advance notice and an opportunity to respond to opinion formed by delegate before suspension decision was made - Unreasonable exercise of statutory power to immediately suspend without notice in the circumstances - Suspension decision quashed - Legal Profession Uniform Law (Vic) ss 77, 82(2) - Supreme Court (General Civil Procedure) Rules 2015 r 56.06.
COSTS - Judicial review - Where plaintiffs made unsuccessful application for declaratory relief - Where no utility in relief sought - Where plaintiffs did not comply with procedural directions - Where plaintiffs failed to articulate claim - Where no error of law identified - Where plaintiffs brought multiple interlocutory applications at trial - Where plaintiffs brought interlocutory application found to be part of course of conduct to delay and undermine administration of justice - Whether plaintiffs should be ordered to pay indemnity costs - Whether indemnity costs should be awarded on a fixed sum basis - Quantum of fixed sum to be paid.
COSTS - Judicial review - Where plaintiffs made unsuccessful application for declaratory relief - Where no utility in relief sought - Where plaintiffs did not comply with procedural directions - Where plaintiffs failed to articulate claim - Where no error of law identified - Where plaintiffs brought multiple interlocutory applications at trial - Where plaintiffs brought interlocutory application found to be part of course of conduct to delay and undermine administration of justice - Whether plaintiffs should be ordered to pay indemnity costs - Whether indemnity costs should be awarded on a fixed sum basis - Quantum of fixed sum to be paid.
COSTS - Administrative law - Appeal from VCAT dismissed - Where leave to appeal refused - No prospect of success - Whether applicant should be ordered to pay indemnity costs - Application for urgent oral hearing for leave to file rebuttal submissions - Application refused - Costs to be determined on the papers - Leave to file rebuttal submissions granted - Indemnity costs awarded to first respondent.
COSTS - Administrative law - Appeal from VCAT dismissed - Where leave to appeal refused - No prospect of success - Whether applicant should be ordered to pay indemnity costs - Application for urgent oral hearing for leave to file rebuttal submissions - Application refused - Costs to be determined on the papers - Leave to file rebuttal submissions granted - Indemnity costs awarded to first respondent.
Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 - Supreme Court Act 1958 (Vic) s 24 - Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 - Colgate- Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 - Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237, applied - J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (No 2) (1993) 46 IR 301 - Bishopsgate Insurance Australia Ltd v Deloitte Haskins & Sells [1993] 3 VR 863 - ACN 115 918 959 Pty Ltd (formerly known as Pearl Hill Pty Ltd) v Moulieris [2022] VSC 555, referred to.
JURISDICTION - Claim seeking enforcement of a restrictive covenant pleaded to have the purpose and effect of restricting competition in sales of land - Rejoinder and counterclaim pleading that if covenant has the pleaded effect, it is a contract, arrangement or understanding the effect of which is to substantially lessen competition in breach of s 45, Competition and Consumer Act 2010 (Cth) - Declaration sought that restrictive covenant is ineffective and unenforceable on the basis of contravention of s 45 - Jurisdiction of the Supreme Court to hear a matter raising such an issue - Whether the matter is a 'special federal matter' - Application for the Supreme Court to order that there are 'special reasons' why the matter should be determined by the Supreme Court.
JURISDICTION - Claim seeking enforcement of a restrictive covenant pleaded to have the purpose and effect of restricting competition in sales of land - Rejoinder and counterclaim pleading that if covenant has the pleaded effect, it is a contract, arrangement or understanding the effect of which is to substantially lessen competition in breach of s 45, Competition and Consumer Act 2010 (Cth) - Declaration sought that restrictive covenant is ineffective and unenforceable on the basis of contravention of s 45 - Jurisdiction of the Supreme Court to hear a matter raising such an issue - Whether the matter is a 'special federal matter' - Application for the Supreme Court to order that there are 'special reasons' why the matter should be determined by the Supreme Court.
Competition and Consumer Act 2010 (Cth), ss 45, 86 (1), 86(2), 86(4); Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), ss 3, 4(1), 6; Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) ss 3, 6; Carlton and United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543; Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511.
PRACTICE AND PROCEDURE - Overarching obligations - Application by the defendant under s 29 of the Civil Procedure Act 2010 (Vic) regarding the conduct of the plaintiff and her solicitor - Alleged breach of the overarching obligation not to bring a claim without a proper basis and the overarching obligation not to mislead or deceive - Whether the plaintiff and her solicitor breached their overarching obligations to the Court by not exhibiting certain documents in the plaintiff's affidavit filed in support of the originating motion, and by making allegedly false statements - Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) (2014) 48 VR 1 referred to - Whether the plaintiff was justified in bringing her claims in this proceedings - Whether leave was required to bring the proceeding by way of originating motion pursuant to r 45.05(2)(b) of the Supreme Court General Civil Procedure Rules 2015 (Vic) - Plaintiff had reasonable grievances and was justified in bringing this proceeding, and there was no breach of any overarching obligations - Application dismissed.
PRACTICE AND PROCEDURE - Overarching obligations - Application by the defendant under s 29 of the Civil Procedure Act 2010 (Vic) regarding the conduct of the plaintiff and her solicitor - Alleged breach of the overarching obligation not to bring a claim without a proper basis and the overarching obligation not to mislead or deceive - Whether the plaintiff and her solicitor breached their overarching obligations to the Court by not exhibiting certain documents in the plaintiff's affidavit filed in support of the originating motion, and by making allegedly false statements - Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) (2014) 48 VR 1 referred to - Whether the plaintiff was justified in bringing her claims in this proceedings - Whether leave was required to bring the proceeding by way of originating motion pursuant to r 45.05(2)(b) of the Supreme Court General Civil Procedure Rules 2015 (Vic) - Plaintiff had reasonable grievances and was justified in bringing this proceeding, and there was no breach of any overarching obligations - Application dismissed.
ADMINISTRATION AND PROBATE - Application by beneficiary for removal of the executor of their late father's estate - Administration and Probate Act 1958 (Vic), s 34 - Brito- Babapulle v Brito- Babapulle [2024] VSC 281 referred to - Significant delays in the administration of the estate primarily due to ongoing dispute between the plaintiff and defendant relating to the disposition of real property forming part of the estate - Where the defendant has not complied with terms of a settlement deed executed by the parties and has failed to finalise the estate - Defendant is disqualified from continuing to act as executor where she has failed to fulfil her executorial duties in a timely and responsible manner - Application granted.
PRACTICE AND PROCEDURE - Cross-vesting application - Proceeding claiming damages for personal injury arising out of alleged sexual and physical abuse whilst the plaintiff was a child in the care of New South Wales - Application to transfer proceeding to New South Wales - Effect of s 58 of the Judiciary Act 1903 (Cth) and s 75 of the Australian Constitution - Whether the Supreme Court of New South Wales is the more appropriate forum - Interests of justice considered - Supreme Court of Victoria more appropriate forum - Defendant's application dismissed - Judiciary Act 1903 (Cth) s 58; Australian Constitution s 75(iv); Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) s 5(2) - BHP Billiton Ltd v Schultz (2004) 221 CLR 400; Irwin v State of Queensland [2011] VSC 291; Vernon v Kaefer Integrated Services Pty Ltd [2023] VSC 667 considered.
PRACTICE AND PROCEDURE - Cross-vesting application - Proceeding claiming damages for personal injury arising out of alleged sexual and physical abuse whilst the plaintiff was a child in the care of New South Wales - Application to transfer proceeding to New South Wales - Effect of s 58 of the Judiciary Act 1903 (Cth) and s 75 of the Australian Constitution - Whether the Supreme Court of New South Wales is the more appropriate forum - Interests of justice considered - Supreme Court of Victoria more appropriate forum - Defendant's application dismissed - Judiciary Act 1903 (Cth) s 58; Australian Constitution s 75(iv); Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) s 5(2) - BHP Billiton Ltd v Schultz (2004) 221 CLR 400; Irwin v State of Queensland [2011] VSC 291; Vernon v Kaefer Integrated Services Pty Ltd [2023] VSC 667 considered.
TRUSTS - Distribution of assets to trusts under a will - Lost trust deeds - Secondary evidence available to declare the terms of the trusts - General class of beneficiaries under the lost trusts do not extend to siblings - Lost trusts each contain an appointer clause - Supreme Court (General Civil Procedure) Rules 2015, O 54.
TRUSTS - Distribution of assets to trusts under a will - Lost trust deeds - Secondary evidence available to declare the terms of the trusts - General class of beneficiaries under the lost trusts do not extend to siblings - Lost trusts each contain an appointer clause - Supreme Court (General Civil Procedure) Rules 2015, O 54.
WILLS AND ESTATES - Application for judicial advice - Where trusts specified as beneficiaries in the will are uncertain - Armchair principle - Consideration of extrinsic circumstances - Irreconcilable uncertainty in one named beneficiary, certainty in the other - Trust cannot be established after the testator's death to fit the description of a named beneficiary - Wills Act 1997 (Vic) s 36 - Re Niall [2019] VSC 423 - Craven v Bradley (2021) 63 VR 567 -* Greenham v Greenham* [2020] VSC 749 - Bullock v Bennett (1855) 7 De G M&G 283 - Radford v Wills (1871) Ch App 7.
ADMINISTRATIVE LAW - Application to re-open a Coroner's investigation into a death - Prior appeal of coronial finding as to cause of death - Application to re-open refused by Coroners Court - Question of law - Was a further investigation desirable or necessary in the interests of justice - Coroners Act 2008 ss 77, 84, 87, 87A - Appeal dismissed.
ADMINISTRATIVE LAW - Application to re-open a Coroner's investigation into a death - Prior appeal of coronial finding as to cause of death - Application to re-open refused by Coroners Court - Question of law - Was a further investigation desirable or necessary in the interests of justice - Coroners Act 2008 ss 77, 84, 87, 87A - Appeal dismissed.
ADMINISTRATIVE LAW - Judicial review - Decision under Health Practitioner Regulation National Law ('National Law') s 156 - Conditions imposed on medical practitioner's registration - Whether s 156 of the National Law imposes an impermissible burden on freedom of political communication under the Constitution - S 156 does not impose impermissible burden on freedom of political communication - Proceeding dismissed - National Law ss 156, 157 - Peers v Medical Board of Australia [2024] VSC 630; Brown v Tasmania (2017) 261 CLR 328; Fidge v Medical Board of Australia [2024] VSC 471; Comcare v Banerji (2019) 267 CLR 373 considered.
ADMINISTRATIVE LAW - Judicial review - Decision under Health Practitioner Regulation National Law ('National Law') s 156 - Conditions imposed on medical practitioner's registration - Whether s 156 of the National Law imposes an impermissible burden on freedom of political communication under the Constitution - S 156 does not impose impermissible burden on freedom of political communication - Proceeding dismissed - National Law ss 156, 157 - Peers v Medical Board of Australia [2024] VSC 630; Brown v Tasmania (2017) 261 CLR 328; Fidge v Medical Board of Australia [2024] VSC 471; Comcare v Banerji (2019) 267 CLR 373 considered.
ADMINISTRATIVE LAW - Judicial review - Coroner - Investigation - Claim for order remitting matter to different coroner - Extensive correspondence including memoranda of submissions sent by senior next of kin to Coroners Court - Memoranda contain allegations of wrongdoing by the investigating Coroner and staff - Application by senior next of kin for access to documents not yet decided - Letters from Coroners Court advising of complaint and appeal avenues and advising that Coroners Court would not engage in further correspondence on matters raised - Claims of breach of procedural fairness, unreasonableness and ostensible bias - Grounds of judicial review not established - Relief refused.
ADMINISTRATIVE LAW - Judicial review - Coroner - Investigation - Claim for order remitting matter to different coroner - Extensive correspondence including memoranda of submissions sent by senior next of kin to Coroners Court - Memoranda contain allegations of wrongdoing by the investigating Coroner and staff - Application by senior next of kin for access to documents not yet decided - Letters from Coroners Court advising of complaint and appeal avenues and advising that Coroners Court would not engage in further correspondence on matters raised - Claims of breach of procedural fairness, unreasonableness and ostensible bias - Grounds of judicial review not established - Relief refused.
CORONERS - Application for access to documents by senior next of kin - Application not yet decided - Potentially relevant considerations - Claim that documents are unlawfully withheld not established - Coroners Act 2008 s 115(2).
APPEALS - Appeal from order granting summary judgment in respect of part of a claim - Appeal by way of rehearing - Whether error shown - Plaintiff and first defendant each rely upon argument and authorities not relied on in argument below - Claimed protected disclosure under 'Whistleblower protections' - Analysis of relevant statutory provisions and authorities - Claim in respect of 'detrimental conduct' - Nature of claim - Terms and nature of statutory bar to actions or other proceeding for damages in respect of injury sustained in the course of employment - Claim not barred - Safety Rehabilitation and Compensation Act 1988 (Cth), pt IV - Corporations Act 2001 (Cth), pt 9.4AAA - Farah Constructions Pty Ltd v Say- Dee Pty Ltd (2007) 230 CLR 89; Attorney- General (Vic) v Andrews (2007) 230 CLR 369; Waters v Commonwealth (2013) 274 FLR 338; Romero v Farstad Shipping (Indian Pacific) Pty Ltd (2014) 231 FCR 403; Comcare v Friend (2024) 301 FCR 617 considered and discussed - Appeal allowed.
APPEALS - Appeal from order granting summary judgment in respect of part of a claim - Appeal by way of rehearing - Whether error shown - Plaintiff and first defendant each rely upon argument and authorities not relied on in argument below - Claimed protected disclosure under 'Whistleblower protections' - Analysis of relevant statutory provisions and authorities - Claim in respect of 'detrimental conduct' - Nature of claim - Terms and nature of statutory bar to actions or other proceeding for damages in respect of injury sustained in the course of employment - Claim not barred - Safety Rehabilitation and Compensation Act 1988 (Cth), pt IV - Corporations Act 2001 (Cth), pt 9.4AAA - Farah Constructions Pty Ltd v Say- Dee Pty Ltd (2007) 230 CLR 89; Attorney- General (Vic) v Andrews (2007) 230 CLR 369; Waters v Commonwealth (2013) 274 FLR 338; Romero v Farstad Shipping (Indian Pacific) Pty Ltd (2014) 231 FCR 403; Comcare v Friend (2024) 301 FCR 617 considered and discussed - Appeal allowed.
COSTS - Indemnity principle - Where there was an initial costs agreement - Where failure of law practice to comply with ongoing costs disclosure - Where applicant and her solicitors subsequently entered into an oral costs agreement - Where oral costs agreement was conditional on no-win/no-fee - Cost agreement void - Whether applicant is liable to pay legal costs despite the void cost agreement - Whether taxation should be stayed until a costs assessment is conducted - Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 ss 172, 174, 178, 180, 181, 184, 185, 196, 198-200 - Legal Profession Uniform General Rules 2015 r 72A - Shaw v Yarranova [2011] VSCA 55 - Kuek v Devflan (2011) 31 VR 264 - Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 4) [2013] VSC 669 - Royal v El Ali (No 3) [2016] FCA 1573 - Wills v Woolworths [2022] FCA 1545.
COSTS - Indemnity principle - Where there was an initial costs agreement - Where failure of law practice to comply with ongoing costs disclosure - Where applicant and her solicitors subsequently entered into an oral costs agreement - Where oral costs agreement was conditional on no-win/no-fee - Cost agreement void - Whether applicant is liable to pay legal costs despite the void cost agreement - Whether taxation should be stayed until a costs assessment is conducted - Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 ss 172, 174, 178, 180, 181, 184, 185, 196, 198-200 - Legal Profession Uniform General Rules 2015 r 72A - Shaw v Yarranova [2011] VSCA 55 - Kuek v Devflan (2011) 31 VR 264 - Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 4) [2013] VSC 669 - Royal v El Ali (No 3) [2016] FCA 1573 - Wills v Woolworths [2022] FCA 1545.
COSTS COURT- Assessment of costs by Costs Registrar set aside by Judicial Registrar of the Costs Court - Application for review of orders made by Judicial Registrar of the Costs Court under s 17HA(1) of Supreme Court Act 1986 - Consideration of effect of slip rule order made by Magistrates' Court of Victoria - Whether Magistrates' Court's costs order remained in force - Appeal allowed, orders of Judicial Registrar in Costs Court set aside and orders of Costs Registrar re-instated.
COSTS COURT- Assessment of costs by Costs Registrar set aside by Judicial Registrar of the Costs Court - Application for review of orders made by Judicial Registrar of the Costs Court under s 17HA(1) of Supreme Court Act 1986 - Consideration of effect of slip rule order made by Magistrates' Court of Victoria - Whether Magistrates' Court's costs order remained in force - Appeal allowed, orders of Judicial Registrar in Costs Court set aside and orders of Costs Registrar re-instated.
CRIMINAL LAW - Sentence - Charge of aggravated servitude based on cruel, inhuman or degrading treatment - Other charges of common assault and possession of a drug of dependence - Guilty plea - Accused intimate partner of victim - Serious level of offending relating to the charge of aggravated slavery - Absence of remorse - Prospects for rehabilitation fairly poor - General deterrence - Total effective sentence of 12 years' imprisonment with a non-parole period of 9 years - Criminal Code Act 1995 (Cth) - Crimes Act 1914 (Cth) - Sentencing Act (1991) (Vic) - R v Verdins (2007) 16 VR 269 - Brown v The Queen (2020) 62 VR 491 - Markarian v The Queen (2005) 228 CLR 357 - DPP (Cth) v Kannan [2021] VSC 439 - Kannan v The King (2023) 306 A Crim R 363 - Ho v The Queen (2011) 219 A Crim R 74 - DPP v Laurence [2004] VSCA 154 - Nolan v The Queen [2017] VSCA 240 - Azzopardi v The Queen [2011] VSCA 372 - Nantahkum v The Queen (2013) 236 A Crim R 158.
CRIMINAL LAW - Sentence - Charge of aggravated servitude based on cruel, inhuman or degrading treatment - Other charges of common assault and possession of a drug of dependence - Guilty plea - Accused intimate partner of victim - Serious level of offending relating to the charge of aggravated slavery - Absence of remorse - Prospects for rehabilitation fairly poor - General deterrence - Total effective sentence of 12 years' imprisonment with a non-parole period of 9 years - Criminal Code Act 1995 (Cth) - Crimes Act 1914 (Cth) - Sentencing Act (1991) (Vic) - R v Verdins (2007) 16 VR 269 - Brown v The Queen (2020) 62 VR 491 - Markarian v The Queen (2005) 228 CLR 357 - DPP (Cth) v Kannan [2021] VSC 439 - Kannan v The King (2023) 306 A Crim R 363 - Ho v The Queen (2011) 219 A Crim R 74 - DPP v Laurence [2004] VSCA 154 - Nolan v The Queen [2017] VSCA 240 - Azzopardi v The Queen [2011] VSCA 372 - Nantahkum v The Queen (2013) 236 A Crim R 158.
CRIMINAL LAW - Murder - Joint trial - Applications to discharge jury on behalf of first and second accused - Applications arising from address by counsel for third accused - Application refused - Jury Directions Act 2015 (Vic) ss 7 & 42; R v Boland [1974] VR 849; DPP v Hills & Ors (Ruling No 9) [2010] VSC 597.
CRIMINAL LAW - Murder - Joint trial - Applications to discharge jury on behalf of first and second accused - Applications arising from address by counsel for third accused - Application refused - Jury Directions Act 2015 (Vic) ss 7 & 42; R v Boland [1974] VR 849; DPP v Hills & Ors (Ruling No 9) [2010] VSC 597.
CRIMINAL LAW - Murder - Self-defence - Prosecution case closed and accused yet to announce their course - Application by two accused for advance ruling on question of whether self-defence will be left for the jury's consideration - Advance ruling appropriate - Whether accused have discharged the evidentiary burden found in s 322I of the Crimes Act 1958 (Vic) - Evidentiary burden not discharged - Self-defence not to be left for jury's consideration on the evidence as it stands - Crimes Act 1958 (Vic) ss 322I & 322K; Edmunds v The King [2025] VSCA 31; R v Kell (Ruling No 1) [2008] VSC 518.
CRIMINAL LAW - Murder - Self-defence - Prosecution case closed and accused yet to announce their course - Application by two accused for advance ruling on question of whether self-defence will be left for the jury's consideration - Advance ruling appropriate - Whether accused have discharged the evidentiary burden found in s 322I of the Crimes Act 1958 (Vic) - Evidentiary burden not discharged - Self-defence not to be left for jury's consideration on the evidence as it stands - Crimes Act 1958 (Vic) ss 322I & 322K; Edmunds v The King [2025] VSCA 31; R v Kell (Ruling No 1) [2008] VSC 518.
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.
CRIMINAL LAW - Evidence - Murder - Joint trial - Prosecution intend to lead evidence admissible in the trial of the accused Mehdi only - Counsel for the accused Qian objects to the evidence pursuant to s 135(a) of the Evidence Act 2008 (Vic) - If evidence admitted, the accused Qian seeks a separate trial - Evidence admissible - Separate trial application refused - Evidence Act 2008 (Vic) s 135; Criminal Procedure Act 2009 (Vic) ss 170 & 193; McNamara v The King (2023) 98 ALJR 1; Jones and Waghorn v R (1991) 55 A Crim R 159; R v Iaria and Panozzo [2004] VSC 110.
CRIMINAL LAW - Evidence - Murder - Joint trial - Prosecution intend to lead evidence admissible in the trial of the accused Mehdi only - Counsel for the accused Qian objects to the evidence pursuant to s 135(a) of the Evidence Act 2008 (Vic) - If evidence admitted, the accused Qian seeks a separate trial - Evidence admissible - Separate trial application refused - Evidence Act 2008 (Vic) s 135; Criminal Procedure Act 2009 (Vic) ss 170 & 193; McNamara v The King (2023) 98 ALJR 1; Jones and Waghorn v R (1991) 55 A Crim R 159; R v Iaria and Panozzo [2004] VSC 110.
CRIMINAL LAW - Evidence - Tendency - Whether evidence of prior convictions of deceased admissible - Whether excluded pursuant to s 97 of the Evidence Act - Evidence admitted - Evidence Act 2008 (Vic) s 97; R v PP [2002] VSC 523; DPP v Campbell & Ors (Ruling No 1) [2013] VSC 665; Re Knowles [1984] VR 751; R v Lockyer (1996) 89 A Crim R 457.
CRIMINAL LAW - Evidence - Tendency - Whether evidence of prior convictions of deceased admissible - Whether excluded pursuant to s 97 of the Evidence Act - Evidence admitted - Evidence Act 2008 (Vic) s 97; R v PP [2002] VSC 523; DPP v Campbell & Ors (Ruling No 1) [2013] VSC 665; Re Knowles [1984] VR 751; R v Lockyer (1996) 89 A Crim R 457.
CRIMINAL LAW - Bail - Charges including stalking and making a threat to kill - Show compelling reason test - Victim of alleged offending a work colleague of sister of applicant, towards whom he developed an infatuation - Letter delivered to complainant on behalf of applicant in which he claimed to be a member of Australian Federal Police - Numerous Instagram messages then sent by applicant to complainant from his sister's account - Further threatening messages sent to another work colleague of complainant - Applicant relied upon a combination of matters, including young age and lack of criminal history in proof of compelling reason - Compelling reason established by applicant - Respondent failed to demonstrate unacceptable risk - Risk capable of being mitigated by strict conditions - Bail granted - Bail Act 1977 ss 1B, 3AAA(1), 4C-4E, 4AA, 5AAA and Schedule 2.
CRIMINAL LAW - Bail - Charges including stalking and making a threat to kill - Show compelling reason test - Victim of alleged offending a work colleague of sister of applicant, towards whom he developed an infatuation - Letter delivered to complainant on behalf of applicant in which he claimed to be a member of Australian Federal Police - Numerous Instagram messages then sent by applicant to complainant from his sister's account - Further threatening messages sent to another work colleague of complainant - Applicant relied upon a combination of matters, including young age and lack of criminal history in proof of compelling reason - Compelling reason established by applicant - Respondent failed to demonstrate unacceptable risk - Risk capable of being mitigated by strict conditions - Bail granted - Bail Act 1977 ss 1B, 3AAA(1), 4C-4E, 4AA, 5AAA and Schedule 2.
CRIMINAL LAW - Bail - Family violence offending - Use of a firearm - Exceptional circumstances - Significant and relevant prior convictions - Applicant relies on delay of two years; the availability of residential rehabilitation at 'The Cottage'; and 'triable issues' - Respondent concedes that it is 'open' to the Court to find exceptional circumstances exist - Unacceptable risk alleged by respondent - Exceptional circumstances not established - Applicant an unacceptable risk in at least one of the ways alleged by the respondent - Bail refused - Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E; Rajic v The Queen [2016] VSC 27.
CRIMINAL LAW - Bail - Family violence offending - Use of a firearm - Exceptional circumstances - Significant and relevant prior convictions - Applicant relies on delay of two years; the availability of residential rehabilitation at 'The Cottage'; and 'triable issues' - Respondent concedes that it is 'open' to the Court to find exceptional circumstances exist - Unacceptable risk alleged by respondent - Exceptional circumstances not established - Applicant an unacceptable risk in at least one of the ways alleged by the respondent - Bail refused - Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E; Rajic v The Queen [2016] VSC 27.
CIVIL PROCEDURE - SUMMARY JUDGMENT - Building and Construction Industry Security of Payment Act 2002 (Vic) - Summary judgment procedure - Power to dispense with requirements of the Rules.
CIVIL PROCEDURE - SUMMARY JUDGMENT - Building and Construction Industry Security of Payment Act 2002 (Vic) - Summary judgment procedure - Power to dispense with requirements of the Rules.
LANDLORD AND TENANT - Retail tenancies - Exercise of option - Validity of exercise - Retail tenancies - Holding over after expiry of term - Unpaid rent - Guarantee of tenant's obligation.
LANDLORD AND TENANT - Retail tenancies - Exercise of option - Validity of exercise - Retail tenancies - Holding over after expiry of term - Unpaid rent - Guarantee of tenant's obligation.
TORT- Conversion - Whether plaintiff had immediate right to possession - Right to possession made out - Damages - Value of goods at time of conversion.
TORT- Conversion - Whether plaintiff had immediate right to possession - Right to possession made out - Damages - Value of goods at time of conversion.
CONTRACTS - LOAN AGREEMENTS - Contract for loan - Failure to make interest repayments - Entitlement to possession of properties upon default - Where plaintiff is a lender providing urgent loan - Whether insistence on additional security unconscionable conduct - Alleged misleading or deceptive conduct - Alleged harassment and coercion - Existence of implied terms of cooperation, reasonableness and good faith.
CONTRACTS - LOAN AGREEMENTS - Contract for loan - Failure to make interest repayments - Entitlement to possession of properties upon default - Where plaintiff is a lender providing urgent loan - Whether insistence on additional security unconscionable conduct - Alleged misleading or deceptive conduct - Alleged harassment and coercion - Existence of implied terms of cooperation, reasonableness and good faith.
WORKERS COMPENSATION - Whether plaintiff is a deemed worker - Preliminary ruling - Workplace Injury Rehabilitation and Compensation Act 2013 - Schedule 1 Clause 9 Contractors.
WORKERS COMPENSATION - Whether plaintiff is a deemed worker - Preliminary ruling - Workplace Injury Rehabilitation and Compensation Act 2013 - Schedule 1 Clause 9 Contractors.