Criminal practice - Directions to jury - Distress evidence - Where respondent found guilty of offences against two complainants - Where evidence of pre-trial distress when one complainant made complaint - Where trial judge gave directions in relation to evidence of complainant's distress - Whether trial judge's directions invited jury to use distress evidence as independent support for complainant's account - Whether directions occasioned substantial miscarriage of justice - Whether Court of Appeal's reasoning contrary to R v Churchill (a pseudonym) (2025) 99 ALJR 719; 422 ALR 265 - Whether evidence inadmissible under s 137 of Evidence Act 2008 (Vic) - Whether miscarriage of justice because prosecutor described distress evidence as "independent evidence".
Criminal practice - Directions to jury - Distress evidence - Where respondent found guilty of offences against two complainants - Where evidence of pre-trial distress when one complainant made complaint - Where trial judge gave directions in relation to evidence of complainant's distress - Whether trial judge's directions invited jury to use distress evidence as independent support for complainant's account - Whether directions occasioned substantial miscarriage of justice - Whether Court of Appeal's reasoning contrary to R v Churchill (a pseudonym) (2025) 99 ALJR 719; 422 ALR 265 - Whether evidence inadmissible under s 137 of Evidence Act 2008 (Vic) - Whether miscarriage of justice because prosecutor described distress evidence as "independent evidence".
WORDS AND PHRASES - "alleged offending", "capable of supporting", "causal connection", "circumstantial evidence", "corroboration", "credit", "direction", "distress evidence", "hearsay rule", "historical evidentiary rules", "independent evidence", "indirect evidence", "pre-trial distress evidence", "probative value", "sexual offence", "substantial and compelling reasons", "substantial miscarriage of justice", "unfair prejudice", "unreliable", "weight".
Evidence Act 2008 (Vic), ss 55, 56, 66, 137.
Jury Directions Act 2015 (Vic), ss 12, 15, 16, 31, 32.
CRIMINAL PRACTICE - Admissibility of evidence - Sexual offences against child - Where evidence said to be available that complainant displayed sexualised behaviour prior to alleged offending - Where application to call evidence and cross-examine complainant about prior sexual history refused - Where s 293(3) of Criminal Procedure Act 1986 (NSW) rendered inadmissible evidence that discloses or implies complainant had or may have had sexual experience or lack of sexual experience, or had or may have taken part or not taken part in sexual activity - Whether evidence admissible under exception to s 293(3) - Whether "disclosed or implied in the case for the prosecution" that complainant had or may have had sexual experience or lack of sexual experience or had or may have taken part or not taken part in sexual activity - Whether disclosure or implication from prosecution adducing evidence that complainant was nine years old and from not adducing evidence of complainant's alleged prior sexual experience - Whether Crown Prosecutor's final address unfair.
CRIMINAL PRACTICE - Admissibility of evidence - Sexual offences against child - Where evidence said to be available that complainant displayed sexualised behaviour prior to alleged offending - Where application to call evidence and cross-examine complainant about prior sexual history refused - Where s 293(3) of Criminal Procedure Act 1986 (NSW) rendered inadmissible evidence that discloses or implies complainant had or may have had sexual experience or lack of sexual experience, or had or may have taken part or not taken part in sexual activity - Whether evidence admissible under exception to s 293(3) - Whether "disclosed or implied in the case for the prosecution" that complainant had or may have had sexual experience or lack of sexual experience or had or may have taken part or not taken part in sexual activity - Whether disclosure or implication from prosecution adducing evidence that complainant was nine years old and from not adducing evidence of complainant's alleged prior sexual experience - Whether Crown Prosecutor's final address unfair.
WORDS AND PHRASES - "assumption or inference a juror might hold or draw", "complainant's age alone", "disclosed or implied in the case for the prosecution", "evidence adduced or the submissions made in the case for the prosecution", "expressly or implicitly relied on by the prosecution", "failure of the prosecution to adduce evidence", "had or may have had sexual experience", "miscarriage of justice", "sexual activity", "sexual experience", "unfair reasoning".
Criminal Appeal Act 1912 (NSW), s 6(1).
Criminal Procedure Act 1986 (NSW), s 293.
ADMINISTRATIVE LAW- Judicial review - Jurisdictional error - Where application for student visa refused on basis that plaintiff not genuine applicant for entry and stay as student - Where plaintiff informed Tribunal he did not have current Confirmation of Enrolment in registered course of study - Where plaintiff consented to decision being made without hearing - Where Tribunal affirmed refusal decision on basis that plaintiff not enrolled in registered course of study - Where Federal Circuit Court of Australia refused application for judicial review - Whether decision by Federal Court of Australia to refuse extension of time and leave to appeal involved jurisdictional error - Whether abuse of process to contend Tribunal fell into jurisdictional error.
ADMINISTRATIVE LAW- Judicial review - Jurisdictional error - Where application for student visa refused on basis that plaintiff not genuine applicant for entry and stay as student - Where plaintiff informed Tribunal he did not have current Confirmation of Enrolment in registered course of study - Where plaintiff consented to decision being made without hearing - Where Tribunal affirmed refusal decision on basis that plaintiff not enrolled in registered course of study - Where Federal Circuit Court of Australia refused application for judicial review - Whether decision by Federal Court of Australia to refuse extension of time and leave to appeal involved jurisdictional error - Whether abuse of process to contend Tribunal fell into jurisdictional error.
WORDS AND PHRASES - "abuse of process", "certiorari", "consent", "jurisdictional error", "mandamus", "prospect of success", "reasonably impressionistic level", "registered course of study", "student visa".
Federal Court of Australia Act 1976 (Cth), ss 24, 25, 33.
Migration Act 1958 (Cth), ss 359, 359C, 360.
Federal Circuit Court Rules 2001 (Cth), r 44.12.
High Court Rules 2004 (Cth), r 25.09.3.
Migration Regulations 1994 (Cth), r 1.03, Sch 2 cll 500.111, 500.211, 500.212.
Criminal law - Appeal against conviction - Where appellant charged with two forced labour offences contrary to Criminal Code (Cth) - Where County Court of Victoria exercised federal jurisdiction for appellant's trial and conviction on indictment - Where trial judge proceeded on basis that ss 63 and 64 of Jury Directions Act 2015 (Vic) applied in accordance with s 68(1)(c) of Judiciary Act 1903 (Cth) - Where jury directed in accordance with s 64(1)(e) of Jury Directions Act that "[a] reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility" - Whether indication that "reasonable doubt is not ... an unrealistic possibility" alters, impairs, detracts from or diminishes criminal standard of proof "beyond reasonable doubt" - Whether indication inconsistent with s 13.2 of the Criminal Code (Cth).
Criminal law - Appeal against conviction - Where appellant charged with two forced labour offences contrary to Criminal Code (Cth) - Where County Court of Victoria exercised federal jurisdiction for appellant's trial and conviction on indictment - Where trial judge proceeded on basis that ss 63 and 64 of Jury Directions Act 2015 (Vic) applied in accordance with s 68(1)(c) of Judiciary Act 1903 (Cth) - Where jury directed in accordance with s 64(1)(e) of Jury Directions Act that "[a] reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility" - Whether indication that "reasonable doubt is not ... an unrealistic possibility" alters, impairs, detracts from or diminishes criminal standard of proof "beyond reasonable doubt" - Whether indication inconsistent with s 13.2 of the Criminal Code (Cth).
Constitutional law - Whether explanation contained in Jury Directions Act inconsistent with requirements of "trial on indictment ... by jury" in s 80 of Constitution - Whether essential content of "trial on indictment ... by jury" includes requirement that jury be unanimously satisfied of guilt beyond reasonable doubt.
WORDS AND PHRASES - "alter, impair or detract", "beyond reasonable doubt", "Commonwealth offences", "compound expression", "connotation", "controlling standard", "denotation", "essential feature", "explanation", "federal jurisdiction", "imaginary or fanciful doubt", "improbable", "inconsistency", "picked up and applied", "proof beyond reasonable doubt", "standard of proof", "sure", "trial on indictment by jury", "unreal possibility", "unrealistic possibility".
Constitution, ss 80, 109.
Criminal Code (Cth), ss 13.2, 270.6A.
Judiciary Act 1903 (Cth), s 68.
Jury Directions Act 2015 (Vic), ss 63, 64.
TRADE PRACTICES - Misleading or deceptive conduct - Where "House Bed & Bath" trade mark used as name of new soft homewares stores - Where network of stores throughout Australia sold soft homewares under trade marks including "BED BATH 'N' TABLE" since 1976 - Whether use of "House Bed & Bath" trade mark misleading or deceptive or likely to mislead or deceive in contravention of s 18(1) of Australian Consumer Law - Whether trader's wilful blindness to possibility of confusion relevant to objective question of misleading or deceptive conduct - Whether primary judge's conclusion involved material error.
TRADE PRACTICES - Misleading or deceptive conduct - Where "House Bed & Bath" trade mark used as name of new soft homewares stores - Where network of stores throughout Australia sold soft homewares under trade marks including "BED BATH 'N' TABLE" since 1976 - Whether use of "House Bed & Bath" trade mark misleading or deceptive or likely to mislead or deceive in contravention of s 18(1) of Australian Consumer Law - Whether trader's wilful blindness to possibility of confusion relevant to objective question of misleading or deceptive conduct - Whether primary judge's conclusion involved material error.
WORDS AND PHRASES - "appellate review", "conduct", "confusion", "context", "deceptive similarity", "deceptively similar", "distinctiveness", "evidentiary approach", "immediate and broader context", "inference", "likely to mislead or deceive", "misleading or deceptive", "objective assessment of fact", "reputation", "state of mind", "trade mark", "trade or commerce", "trader", "wilful blindness".
Competition and Consumer Act 2010 (Cth), Sch 2, s 18(1).
Trade Marks Act 1995 (Cth), s 120(1).
Statutes - Construction - Housing Act 1982 (NT), s 23 - Power of Minister to make determinations regarding rent to be paid for dwelling or class of dwelling - Where rent determined by Minister is to be paid despite anything to the contrary in existing tenancy agreement - Where Minister made determinations without giving notice to any tenant or inviting any tenant to make submissions on the proposed change in rent - Whether Minister owed duty to afford procedural fairness - Whether content of duty to afford procedural fairness included obligation to give hearing - Whether failure to afford procedural fairness was material - Whether determinations were legally unreasonable.
Statutes - Construction - Housing Act 1982 (NT), s 23 - Power of Minister to make determinations regarding rent to be paid for dwelling or class of dwelling - Where rent determined by Minister is to be paid despite anything to the contrary in existing tenancy agreement - Where Minister made determinations without giving notice to any tenant or inviting any tenant to make submissions on the proposed change in rent - Whether Minister owed duty to afford procedural fairness - Whether content of duty to afford procedural fairness included obligation to give hearing - Whether failure to afford procedural fairness was material - Whether determinations were legally unreasonable.
WORDS AND PHRASES - "content", "determination", "duty of procedural fairness", "eligible person", "fair rent", "general policy", "individual rights and interests", "judicial review", "landlord", "lease", "legal unreasonableness", "let a dwelling", "materiality", "natural justice", "not adequately housed", "prior notice", "procedural fairness", "public housing", "rebate", "remote communities", "rent", "residential accommodation", "safety net", "statutory power", "submissions", "tenancy agreement", "tenant".
Housing Act 1982 (NT), ss 6, 14, 15, 16, 17, 23, 34, 37.
Housing Regulations 1983 (NT), regs 3, 4, 5.
Residential Tenancies Act 1999 (NT), ss 3, 41, 42, 4.
PRACTICE AND PROCEDURE - Jurisdiction - Jurisdiction of the Full Court of the Supreme Court of the Northern Territory on referral under ss 15 and 21 of Supreme Court Act 1979 (NT) - Where application for declaration referred for determination by the Full Court - Where the Full Court declined to accept the referral - Where parties subsequently made no submissions to the Full Court regarding application for declaration - Where the Full Court subsequently purported to order that application for declaration be dismissed - Whether the Full Court had jurisdiction to order dismissal of application - Whether regard may be had to extrinsic material in interpreting the Court's order.
PRACTICE AND PROCEDURE - Jurisdiction - Jurisdiction of the Full Court of the Supreme Court of the Northern Territory on referral under ss 15 and 21 of Supreme Court Act 1979 (NT) - Where application for declaration referred for determination by the Full Court - Where the Full Court declined to accept the referral - Where parties subsequently made no submissions to the Full Court regarding application for declaration - Where the Full Court subsequently purported to order that application for declaration be dismissed - Whether the Full Court had jurisdiction to order dismissal of application - Whether regard may be had to extrinsic material in interpreting the Court's order.
WORDS AND PHRASES -- "decline to accept referral", "determination", "extrinsic material", "jurisdiction", "order", "public housing", "referral", "remote communities", "rent", "special leave to appeal", "tenant".
Housing Act 1982 (NT), s 23.
Housing Regulations 1983 (NT).
Residential Tenancies Act 1999 (NT), s 41.
Residential Tenancies Regulations 2000 (NT), Sch 2 cl 2.
Supreme Court Act 1979 (NT), ss 15, 18, 21.
HIGH COURT - Original jurisdiction - Application for constitutional or other writ - Application for stay - Where orders made by Federal Circuit and Family Court of Australia (Division 1) ("Division 1 Court") - Where plaintiffs sought writs of certiorari quashing orders of Division 1 Court - Where plaintiffs sought writs of prohibition, mandamus and declarations - Whether extension of time should be granted to seek constitutional or other writ - Whether application for stay should be granted.
HIGH COURT - Original jurisdiction - Application for constitutional or other writ - Application for stay - Where orders made by Federal Circuit and Family Court of Australia (Division 1) ("Division 1 Court") - Where plaintiffs sought writs of certiorari quashing orders of Division 1 Court - Where plaintiffs sought writs of prohibition, mandamus and declarations - Whether extension of time should be granted to seek constitutional or other writ - Whether application for stay should be granted.
WORDS AND PHRASES - "certiorari", "constitutional or other writ", "declarations", "exceptional cases", "extension of time", "interests of justice", "joinder orders", "mandamus", "orders by consent", "prohibition", "property settlement", "stay".
Constitution, s 51(xxii).
Family Law Act 1975 (Cth), ss 4, 39, 78, 79, 90AF, 114.
Federal Circuit and Family Court of Australia Act 2021 (Cth), s 26.
Judiciary Act 1903 (Cth), s 44.
LIMITATION OF ACTIONS - Settlement agreement - Historical sexual abuse - Application to set aside settlement agreement under Limitation of Actions Act 1958, s 27QE - Primary judge set aside agreement in whole - Whether judge erred in finding just and reasonable to set aside settlement agreement in whole - Whether existence of Ellis defence relevant to plaintiff's decision not to make claim for economic loss - Whether plaintiff elected not to pursue claim for economic loss - No error made by primary judge - Application for leave to appeal refused.
LIMITATION OF ACTIONS - Settlement agreement - Historical sexual abuse - Application to set aside settlement agreement under Limitation of Actions Act 1958, s 27QE - Primary judge set aside agreement in whole - Whether judge erred in finding just and reasonable to set aside settlement agreement in whole - Whether existence of Ellis defence relevant to plaintiff's decision not to make claim for economic loss - Whether plaintiff elected not to pursue claim for economic loss - No error made by primary judge - Application for leave to appeal refused.
Limitation of Actions Act 1958, s 27QE.
DZY (a pseudonym) v Trustees of the Christian Brothers (2025) 99 ALJR 806, applied.
CONTRACT - Contract of insurance covering loss 'resulting from' a 'claim' - Applicant made claim to recover loss arising from settlement of proceeding commenced by applicant against third party - Applicant sought specific performance of contract with third party for sale of land - Applicant spent $5,350,140 to construct gaming venue on land - Counterclaim sought to set aside contract of sale on grounds including breach of fiduciary duties - Counterclaim sought equitable compensation in alternative - Proceeding settled - Applicant agreed to purchase land from third party for increased price - Loss claimed by applicant $1,971,604 reflecting difference between purchase price in settlement agreement and previously agreed price - Definition of 'claim' included proceeding seeking 'compensation or other legal remedy' - Whether 'claim' extended to non-monetary claim - Judge found equitable compensation claim only component of counterclaim within definition of 'claim'.
CONTRACT - Contract of insurance covering loss 'resulting from' a 'claim' - Applicant made claim to recover loss arising from settlement of proceeding commenced by applicant against third party - Applicant sought specific performance of contract with third party for sale of land - Applicant spent $5,350,140 to construct gaming venue on land - Counterclaim sought to set aside contract of sale on grounds including breach of fiduciary duties - Counterclaim sought equitable compensation in alternative - Proceeding settled - Applicant agreed to purchase land from third party for increased price - Loss claimed by applicant $1,971,604 reflecting difference between purchase price in settlement agreement and previously agreed price - Definition of 'claim' included proceeding seeking 'compensation or other legal remedy' - Whether 'claim' extended to non-monetary claim - Judge found equitable compensation claim only component of counterclaim within definition of 'claim'.
INSURANCE - Contract of insurance covering 'loss' 'resulting from' a 'claim' - Judge found settlement amount reflected various commercial and legal benefits - Judge found settlement amount not attributable to counterclaim - Whether 'obligation to pay under settlement' constituted 'loss' - Whether 'loss' required establishment of underlying liability independent of settlement - Express reference to settlements in definition of 'loss'.
INSURANCE - Settlement - Reasonableness of settlement - Judge found settlement not reasonable because settlement amount attributable to larger commercial agreement - Legal advice of significant risk counterclaim would succeed - Counsel considered settlement amount within scope of potential liability if counterclaim successful - Settlement amount represented cost of settling counterclaim and avoiding risks posed by counterclaim to applicant's business - Settlement reasonable - Leave to appeal granted - Appeal allowed.
WORDS AND PHRASES - 'claim' - 'loss' - 'resulting from'.
National Australia Bank Ltd v Nautilus Insurance Pte Ltd [No 3] [2019] FCA 2139; AstraZeneca Insurance Company Ltd v XL Insurance (Bermuda) Ltd [2014] 2 All ER (Comm) 55; CIMIC Group Ltd v AIG Group Ltd [2022] NSWSC 999; Delta Pty Ltd v Team Rock Anchors Pty Ltd [2018] 1 Qd R 564, referred to; Weir Services Australia Pty Ltd v AXA Corporate Solutions Assurance (2018) 359 ALR 314, discussed.
ADMINISTRATIVE LAW - Judicial Review - Medical Panel - Procedural fairness -Where Panel tested applicant's grip strength - Where AMA Guides provided one may 'assume' the patient is not exerting 'full effort' if there is more than 20% variation in test results - Where Panel found results of grip strength testing were 'variable and unreliable' and did not represent 'maximal effort' - Whether Panel's finding went to credit - Whether Panel required to invite further submissions - Finding reflects outcome of testing and not credit - No failure to accord procedural fairness - Application for leave to appeal refused.
ADMINISTRATIVE LAW - Judicial Review - Medical Panel - Procedural fairness -Where Panel tested applicant's grip strength - Where AMA Guides provided one may 'assume' the patient is not exerting 'full effort' if there is more than 20% variation in test results - Where Panel found results of grip strength testing were 'variable and unreliable' and did not represent 'maximal effort' - Whether Panel's finding went to credit - Whether Panel required to invite further submissions - Finding reflects outcome of testing and not credit - No failure to accord procedural fairness - Application for leave to appeal refused.
PRACTICE AND PROCEDURE - Application to adduce further evidence - Medical literature not adduced at trial - Article sought to be adduced to assist in determining non-legal technical meaning of phrase 'maximal effort'- Article not admissible - No reason that article could not have been obtained with reasonable diligence for use before primary judge - Application refused - Supreme Court (General Civil Procedure) Rules 2025, r 64.13(1) - Victorian WorkCover Authority v Elsdon (2013) 42 VR 434, discussed.
Wrongs Act 1958, ss 28LE, 28LF, 28LWE.
Jankulovska v Hayman [2017] VSC 752; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; Wagstaff Cranbourne Pty Ltd v Hashimi [2020] VSCA 33; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, discussed.
PRACTICE AND PROCEDURE - Appeal - Application for summary judgment - Bank commenced proceedings seeking amount owing for three loans and possession of mortgaged property - Applicants argued mortgage was not a contract and not binding - Applicants claimed they had discharged mortgage by 'bill of exchange' and 'promissory note' - Bank obtained summary judgment against applicants - Applicants' proposed grounds of appeal were unmeritorious - Applicants' defence and counterclaim was legal nonsense - Leave to appeal refused.
PRACTICE AND PROCEDURE - Appeal - Application for summary judgment - Bank commenced proceedings seeking amount owing for three loans and possession of mortgaged property - Applicants argued mortgage was not a contract and not binding - Applicants claimed they had discharged mortgage by 'bill of exchange' and 'promissory note' - Bank obtained summary judgment against applicants - Applicants' proposed grounds of appeal were unmeritorious - Applicants' defence and counterclaim was legal nonsense - Leave to appeal refused.
Civil Procedure Act 2010, s 64; County Court Civil Procedure Rules 2018, Order 22.
Atkinson v Federal Commissioner of Taxation [2014] FCA 1217; Maksacheff v Commonwealth Bank of Australia (No 2) [2016] NSWSC 1109; Aslor Pty Ltd (in liq) v Springmount Pty Ltd [1998] VSC 108; Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27; Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523; Fielding & Platt Ltd v Selim Najjar [1969] 1 WLR 357; Spencer v Commonwealth of Australia (2010) 241 CLR 118; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, considered.
PRACTICE AND PROCEDURE - Self-represented applicant made claim for damages against respondent builder for defective plumbing works - Applicant sent frequent and at times inflammatory communications to solicitors for respondent, its insurer and solicitors for its insurer - Trial judge made declaration that applicant breached overarching obligation in s 19 of the Civil Procedure Act 2010 as a result of communications and made orders that the applicant only be permitted to communicate with a specified solicitor acting on behalf of respondent and insurer - Whether sending correspondence was a 'step' in connection with a civil proceeding - Whether trial judge erred in finding that the applicant did not reasonably believe that sending the correspondence was necessary to facilitate the resolution or determination of the proceeding - Whether trial judge erred in holding that sending correspondence was a contravention of s 19 of the Civil Procedure Act 2010 - Whether trial judge failed to provide reasonable advice and assistance to applicant as unrepresented person - Whether trial judge breached rules of natural justice by not hearing applicant on question of costs - Application for leave to appeal granted - Appeal allowed.
PRACTICE AND PROCEDURE - Self-represented applicant made claim for damages against respondent builder for defective plumbing works - Applicant sent frequent and at times inflammatory communications to solicitors for respondent, its insurer and solicitors for its insurer - Trial judge made declaration that applicant breached overarching obligation in s 19 of the Civil Procedure Act 2010 as a result of communications and made orders that the applicant only be permitted to communicate with a specified solicitor acting on behalf of respondent and insurer - Whether sending correspondence was a 'step' in connection with a civil proceeding - Whether trial judge erred in finding that the applicant did not reasonably believe that sending the correspondence was necessary to facilitate the resolution or determination of the proceeding - Whether trial judge erred in holding that sending correspondence was a contravention of s 19 of the Civil Procedure Act 2010 - Whether trial judge failed to provide reasonable advice and assistance to applicant as unrepresented person - Whether trial judge breached rules of natural justice by not hearing applicant on question of costs - Application for leave to appeal granted - Appeal allowed.
Civil Procedure Act 2010, ss 19, 29.
Bolitho v Banksia Securities (No 18) (remitter) (2021) 69 VR 28, approved.
PRACTICE AND PROCEDURE - Appeal against dismissal of proceeding for want of prosecution - Long and protracted litigation history - Inordinate and inexcusable delay - Test for dismissal for want of prosecution - Whether test requires reconsideration in light of GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 - Test remains that dismissal will be ordered if justice so demands - Guidelines adopted in Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863 unaffected - Court now also obliged to have regard to the efficient conduct of its business, efficient use of its resources, minimising delay, and the timely determination of the proceeding.
PRACTICE AND PROCEDURE - Appeal against dismissal of proceeding for want of prosecution - Long and protracted litigation history - Inordinate and inexcusable delay - Test for dismissal for want of prosecution - Whether test requires reconsideration in light of GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 - Test remains that dismissal will be ordered if justice so demands - Guidelines adopted in Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863 unaffected - Court now also obliged to have regard to the efficient conduct of its business, efficient use of its resources, minimising delay, and the timely determination of the proceeding.
PRACTICE AND PROCEDURE - Appeal against dismissal of proceeding for want of prosecution - Whether judge applied correct test - Judge identified correct test but did not distinguish between prejudice to respondent due to applicants' inordinate and inexcusable delay and prejudice respondent would have suffered in any event - Dismissal application reconsidered - Further periods of inordinate and inexcusable delay found - Proceeding should be dismissed for want of prosecution.
Civil Procedure Act 2010 (Vic), ss 7, 8, 9; Supreme Court (General Civil Procedure) Rules 2025 (Vic), Order 24.
Department of Transport v Chris Smaller (Transport) Ltd [1989] AC 1197; Birkett v James [1978] AC 297; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863, considered.
PRACTICE AND PROCEDURE - Appeal from refusal to grant freezing order - Whether leave should be granted - Discretion to grant relief in freezing order application attracts the House v R standard - Balance of convenience part of discretion as to relief - Whether reasonable possibility of dissipation - Whether good arguable case - Good arguable case and risk of dissipation established - Freezing order refused - Notification order and ancillary order made.
PRACTICE AND PROCEDURE - Appeal from refusal to grant freezing order - Whether leave should be granted - Discretion to grant relief in freezing order application attracts the House v R standard - Balance of convenience part of discretion as to relief - Whether reasonable possibility of dissipation - Whether good arguable case - Good arguable case and risk of dissipation established - Freezing order refused - Notification order and ancillary order made.
Supreme Court (General Civil Procedure) Rules 2025, ord 37A.
Rozenblit v Vainer [2019] VSCA 164; Kajula Pty Ltd v Downer EDI Limited [2024] VSCA 236; Patterson v BTR Engineering (1989) 18 NSWLR 319; KTC v Singh [2018] NSWSC 1510; Victoria University of Technology v Wilson [2003] VSC 299; RHG Mortgage Corporation Ltd v Kelly [2016] WASC 169; Lakatamia Shipping Company Ltd v Morimoto [2019] EWCA Civ 2203, applied.
GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442, considered.
ACCIDENT COMPENSATION - Appeal - Workplace injury - Serious injury application - Procedural Fairness - Where applicant contends the trial was procedurally unfair due to inadequate legal representation and interpretation services - Where applicant contends the trial judge failed to properly evaluate the medical evidence and apply Accident Compensation Act 1985, s 134AB - No failure to accord procedural fairness - Accident Compensation Act 1985, s 134AB was inapplicable, being the legislative predecessor to the Workplace Injury Rehabilitation and Compensation Act 2013 - No error in evaluation of medical evidence under the correct statute - Application for leave to appeal refused.
ACCIDENT COMPENSATION - Appeal - Workplace injury - Serious injury application - Procedural Fairness - Where applicant contends the trial was procedurally unfair due to inadequate legal representation and interpretation services - Where applicant contends the trial judge failed to properly evaluate the medical evidence and apply Accident Compensation Act 1985, s 134AB - No failure to accord procedural fairness - Accident Compensation Act 1985, s 134AB was inapplicable, being the legislative predecessor to the Workplace Injury Rehabilitation and Compensation Act 2013 - No error in evaluation of medical evidence under the correct statute - Application for leave to appeal refused.
PRACTICE AND PROCEDURE - Application to adduce further evidence - Medical reports not adduced at trial - Further medical reports emailed to registry post-hearing - No reason that the medical reports could not have been obtained with reasonable diligence for use before trial judge - Medical reports unlikely to have resulted in a different outcome at trial - No right to keep submitting material following a hearing - Application dismissed.
Workplace Injury Rehabilitation and Compensation Act 2013, ss 325, 335(2)(d).
Supreme Court (General Civil Procedure) Rules 2025, r 64.13(1).
Carroll v Goff [2021] VSCA 267, followed.
Rowe v Transport Accident Commission [2017] VSCA 377, referred to
LAND VALUATION - Assessment of capital improved value of land under Valuation of Land Act 1960 - Where land Crown land and land vested in Victorian Plantations Corporation - Where land used for forestry plantation - Whether 'forest produce' forms part of land for the purpose of assessment - Whether Forests Act 1958 and Victorian Plantations Corporation Act 1993 separate ownership of land from forest produce - Whether plantation licence an 'other charge' for the purposes of assessment - Forests Act and Victorian Plantations Corporation Act do not apply to hypothetical fee simple estate - 'Other charge' refers to general burden on land and encompasses licence - Forest produce forms part of land to be valued - Application for leave to appeal refused.
LAND VALUATION - Assessment of capital improved value of land under Valuation of Land Act 1960 - Where land Crown land and land vested in Victorian Plantations Corporation - Where land used for forestry plantation - Whether 'forest produce' forms part of land for the purpose of assessment - Whether Forests Act 1958 and Victorian Plantations Corporation Act 1993 separate ownership of land from forest produce - Whether plantation licence an 'other charge' for the purposes of assessment - Forests Act and Victorian Plantations Corporation Act do not apply to hypothetical fee simple estate - 'Other charge' refers to general burden on land and encompasses licence - Forest produce forms part of land to be valued - Application for leave to appeal refused.
Forests Act 1958, ss 3(1), 4, 7, 42, 50, 51, 52, 58, 80; Victorian Plantations Corporation Act 1993, pt 3 div 3, pt 3A, ss 3, 20(2), 22; Valuation of Land Act 1960, ss 2(1), 5A.
Royal Sydney Golf Club v Commissioner of Taxation (Cth) (1955) 91 CLR 610; Valuer-General v AWF Prop Co No 2 Pty Ltd (2021) 65 VR 327; Shell Co of Australia Ltd v City of Melbourne [1997] 2 VR 615, considered.
CONTRACTS - Expert determination - Agreement for lease - Practical completion of works by respondent owner condition precedent to commencement of lease - Applicant alleged works incomplete or defective - Agreement providing for architect to issue certificate of practical completion - Respondent procured certificate - Dispute whether incomplete or defective works prevented practical completion - Dispute referred for expert determination - Deed defining dispute whether respondent achieved practical completion 'in accordance with' agreement for lease - Expert found certificate issued in accordance with agreement for lease, without considering effect of incomplete or defective works on practical completion - Preliminary question whether expert failed to determine dispute as defined in deed - Whether dispute extended to question whether practical completion achieved - Whether expert could only determine whether certificate issued in good faith - Judge found expert properly and appropriately determined dispute - Notices of dispute reveal substance of dispute as whether practical completion not achieved in light of alleged defective or incomplete works - Use of recitals in construing contracts - Expert failed to determine dispute defined in deed - Leave to appeal granted - Appeal allowed.
CONTRACTS - Expert determination - Agreement for lease - Practical completion of works by respondent owner condition precedent to commencement of lease - Applicant alleged works incomplete or defective - Agreement providing for architect to issue certificate of practical completion - Respondent procured certificate - Dispute whether incomplete or defective works prevented practical completion - Dispute referred for expert determination - Deed defining dispute whether respondent achieved practical completion 'in accordance with' agreement for lease - Expert found certificate issued in accordance with agreement for lease, without considering effect of incomplete or defective works on practical completion - Preliminary question whether expert failed to determine dispute as defined in deed - Whether dispute extended to question whether practical completion achieved - Whether expert could only determine whether certificate issued in good faith - Judge found expert properly and appropriately determined dispute - Notices of dispute reveal substance of dispute as whether practical completion not achieved in light of alleged defective or incomplete works - Use of recitals in construing contracts - Expert failed to determine dispute defined in deed - Leave to appeal granted - Appeal allowed.
Adventure Golf Systems Australia Pty Ltd v Belgravia Health & Leisure Group Pty Ltd (2017) 54 VR 625; GTW Investments (Aust) Pty Ltd v Pacreef Investments Pty Ltd (2023) 74 VR 290; Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; S&C Nicola Pty Ltd v Peter Holmes Investment Pty Ltd (2022) 108 NSWLR 165; Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, referred to.
CRIMINAL LAW - Sentence - Appeal - Intentionally causing injury - Intimidating a law enforcement officer - Persistent and violent assault by applicant and co-offender - Judge found injury to ear of victim caused by knife - Whether conclusion open on the evidence - Whether error, if made, material - Co-offender sentenced by different judge for intentionally causing serious injury - Whether insufficient disparity between sentence imposed on applicant and sentence imposed on co-offender for offence with much higher maximum penalty - Whether sentence manifestly excessive - Leave to appeal refused.
CRIMINAL LAW - Sentence - Appeal - Intentionally causing injury - Intimidating a law enforcement officer - Persistent and violent assault by applicant and co-offender - Judge found injury to ear of victim caused by knife - Whether conclusion open on the evidence - Whether error, if made, material - Co-offender sentenced by different judge for intentionally causing serious injury - Whether insufficient disparity between sentence imposed on applicant and sentence imposed on co-offender for offence with much higher maximum penalty - Whether sentence manifestly excessive - Leave to appeal refused.
Bugmy v The Queen (2013) 249 CLR 571; R v Beary (2004) 11 VR 151; Gillespie (a pseudonym) v The Queen [2018] VSCA 15; Repac v The King [2023] VSCA 313; Anthony v The Queen [2016] VSCA 22; Worboyes v The Queen [2021] VSCA 169; Barbaro v The Queen (2012) 226 A Crim R 354; R v Morgan (2010) 24 VR 230; Honeysett v The Queen [2018] VSCA 214.
CRIMINAL LAW - Appeal - Conviction - Rape - Separation oath administered to jury at commencement of trial - Oath not administered at a time proximate to jury's separation during deliberation - Failure to do so fundamental irregularity - Appeal allowed.
CRIMINAL LAW - Appeal - Conviction - Rape - Separation oath administered to jury at commencement of trial - Oath not administered at a time proximate to jury's separation during deliberation - Failure to do so fundamental irregularity - Appeal allowed.
Juries Act 2000 s 50; R v Taylor (1996) 86 A Crim R 293; R v Patton [1998] 1 VR 7; Youssef (a pseudonym) v The Queen [2019] VSCA 240.
CRIMINAL LAW - Appeal - Sentence - Culpable driving causing death, recklessly causing injury and related offences - Driving at high speed to evade police - Driving under the influence of methylamphetamine to such an extent as to be incapable of having proper control of vehicle - Driving in wrong direction around roundabout - Collision with another vehicle causing fatal injuries to driver and injury to passenger - Whether total effective sentence of 11 years and 6 months' imprisonment with 7 years and 6 months manifestly excessive - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Culpable driving causing death, recklessly causing injury and related offences - Driving at high speed to evade police - Driving under the influence of methylamphetamine to such an extent as to be incapable of having proper control of vehicle - Driving in wrong direction around roundabout - Collision with another vehicle causing fatal injuries to driver and injury to passenger - Whether total effective sentence of 11 years and 6 months' imprisonment with 7 years and 6 months manifestly excessive - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Application for extension of time to file application for leave to appeal against sentence - Applicant pleaded guilty to murder - Sentenced to 25 years' imprisonment with non-parole period of 20 years - Applicant stabbed former partner three times with kitchen knife - Fatal stab wound severely damaged victim's spinal cord - Applicant diagnosed with psychotic depression - Whether judge placed disproportionate emphasis on applicant's knowledge of wrongfulness of his conduct when considering moral culpability - Whether judge failed to give appropriate weight to applicant's psychological condition - Moral culpability high - Application for extension of time refused.
CRIMINAL LAW - Appeal - Sentence - Application for extension of time to file application for leave to appeal against sentence - Applicant pleaded guilty to murder - Sentenced to 25 years' imprisonment with non-parole period of 20 years - Applicant stabbed former partner three times with kitchen knife - Fatal stab wound severely damaged victim's spinal cord - Applicant diagnosed with psychotic depression - Whether judge placed disproportionate emphasis on applicant's knowledge of wrongfulness of his conduct when considering moral culpability - Whether judge failed to give appropriate weight to applicant's psychological condition - Moral culpability high - Application for extension of time refused.
R v Verdins (2007) 16 VR 269; DPP v O'Neill (2015) 47 VR 395; Njovu v The King [2025] VSCA 289, considered.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Aggravated burglary, intentionally causing injury and false imprisonment - Victim female domestic partner - Respondent suffering treatment-resistant schizophrenia - Total effective sentence 6 years' imprisonment with 4 years non-parole - Whether manifestly inadequate - Appeal dismissed.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Aggravated burglary, intentionally causing injury and false imprisonment - Victim female domestic partner - Respondent suffering treatment-resistant schizophrenia - Total effective sentence 6 years' imprisonment with 4 years non-parole - Whether manifestly inadequate - Appeal dismissed.
CRIMINAL LAW - Conviction - Appeal - Aggravated burglary and associated offences - Applicant pleaded guilty to seven charges on joint indictment - Whether factual basis of convictions for charge of making threat to inflict serious injury to one victim and charge of common assault against same victim were identical - Appeal allowed - Total effective sentence and non-parole period reduced.
CRIMINAL LAW - Conviction - Appeal - Aggravated burglary and associated offences - Applicant pleaded guilty to seven charges on joint indictment - Whether factual basis of convictions for charge of making threat to inflict serious injury to one victim and charge of common assault against same victim were identical - Appeal allowed - Total effective sentence and non-parole period reduced.
Mongan v The King [2024] VSCA 126.
CRIMINAL LAW - Appeal - Conviction - Conspiracy to defraud - Aiding, abetting, counselling or procuring commission of offence - Intentionally dealing with proceeds of crime - Criminal Code (Cth), s 11.2 - Criminal Code, div 400 - Whether aiding, abetting, counselling or procuring under s 11.2 inapplicable to offence of intentionally dealing with proceeds of crime under div 400 of Criminal Code - Definition of 'dealing with' in div 400 of Criminal Code not limited to physical possession - Prosecutorial discretion - Lie as incriminating conduct - Notice of incriminating conduct under s 19 of Jury Directions Act 2015 - Independent evidence of lie subject of incriminating conduct - Function of prosecution - No obligation on prosecution to advise accused whether evidence admissible - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Conspiracy to defraud - Aiding, abetting, counselling or procuring commission of offence - Intentionally dealing with proceeds of crime - Criminal Code (Cth), s 11.2 - Criminal Code, div 400 - Whether aiding, abetting, counselling or procuring under s 11.2 inapplicable to offence of intentionally dealing with proceeds of crime under div 400 of Criminal Code - Definition of 'dealing with' in div 400 of Criminal Code not limited to physical possession - Prosecutorial discretion - Lie as incriminating conduct - Notice of incriminating conduct under s 19 of Jury Directions Act 2015 - Independent evidence of lie subject of incriminating conduct - Function of prosecution - No obligation on prosecution to advise accused whether evidence admissible - Application for leave to appeal refused.
Crimes Act 1958, s 321; Criminal Code (Cth), ss 11.2, 400.2, 400.3, 400.4, 400.5, 400.6; Jury Directions Act 2015, ss 19, 21, referred to.
Giorgianni v The Queen (1985) 156 CLR 473; Mallan v Lee (1949) 80 CLR 198; R v Caldwell (2009) 22 VR 93, distinguished.
Dietrich v The Queen (1992) 177 CLR 292, applied. R v Russo (2004) 11 VR 1, discussed.
CRIMINAL LAW - Appeal - Sentence - Murder - Recklessly causing injury - Offender killed his intimate partner in a jealous rage, stabbing her multiple times in her home, using six knives - Victim's young daughter injured when attempting to intervene during attack - Plea of guilty - Limited matters in mitigation - Whether judge erred in approach to offender's previous good character - Whether judge failed to take into account effect on offender of hardship to family caused by his imprisonment - Whether sentence of 30 years' imprisonment for murder, and total effective sentence of 31 years' imprisonment with non-parole period of 25 years, within range - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Murder - Recklessly causing injury - Offender killed his intimate partner in a jealous rage, stabbing her multiple times in her home, using six knives - Victim's young daughter injured when attempting to intervene during attack - Plea of guilty - Limited matters in mitigation - Whether judge erred in approach to offender's previous good character - Whether judge failed to take into account effect on offender of hardship to family caused by his imprisonment - Whether sentence of 30 years' imprisonment for murder, and total effective sentence of 31 years' imprisonment with non-parole period of 25 years, within range - Leave to appeal refused.
Sentencing Act 1991, ss 5, 5A, 11A.
Ryan v The Queen (2001) 206 CLR 267; SD v The Queen (2013) 39 VR 487; Wakim v The Queen [2016] VSCA 301; Torrefranca v The Queen [2021] VSCA 157; Markovic v The Queen (2010) 30 VR 589; Carabott v The King [2025] VSCA 118; R v Koumis (2008) 18 VR 434; Clarkson v The Queen (2011) 32 VR 361; Lowndes v The Queen (1999) 195 CLR 665; Young v The Queen [2016] VSCA 149; R v Pham (2015) 256 CLR 550; Hili v The Queen (2010) 242 CLR 520; Brown v The Queen (2019) 59 VR 462; Romero v The Queen (2011) 32 VR 486; Kumova v The Queen (2012) 37 VR 538.*
CRIMINAL LAW - Sentence - Application for leave to appeal - Trafficking in not less than a large commercial quantity - Additional charges of trafficking, possession and dealing with proceeds of crime and property suspected to be proceeds of crime - Whether reasonably arguable that sentence imposed on large commercial quantity charge, resulting total effective sentence and non-parole period manifestly excessive - Serious example of offending - Sentencing principles of general deterrence and denunciation highly relevant - Not reasonably arguable that sentences manifestly excessive - Application refused.
CRIMINAL LAW - Sentence - Application for leave to appeal - Trafficking in not less than a large commercial quantity - Additional charges of trafficking, possession and dealing with proceeds of crime and property suspected to be proceeds of crime - Whether reasonably arguable that sentence imposed on large commercial quantity charge, resulting total effective sentence and non-parole period manifestly excessive - Serious example of offending - Sentencing principles of general deterrence and denunciation highly relevant - Not reasonably arguable that sentences manifestly excessive - Application refused.
R v Pham (2015) 256 CLR 550; Quah v The Queen (2021) 290 A Crim R 136; Dimovski v The Queen [2022] VSCA 6, considered.
CRIMINAL LAW - Appeal - Sentence - Trafficking in a drug of dependence and associated offences - Prosecution concession that community correction orders open - Total effective sentences of 2 years and 2 months' imprisonment and 1 year and 11 month's imprisonment - Whether denial of procedural fairness - Whether sentences manifestly excessive - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Trafficking in a drug of dependence and associated offences - Prosecution concession that community correction orders open - Total effective sentences of 2 years and 2 months' imprisonment and 1 year and 11 month's imprisonment - Whether denial of procedural fairness - Whether sentences manifestly excessive - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to charges of criminal damage, intentionally causing injury, attempting to pervert course of justice, persistent contravention of family violence safety notice, and related summary offence - Sentenced to total effective sentence of 2 years and 9 months' imprisonment with non-parole period of 1 year and 10 months - Family violence - Applicant assaulted complainant and threatened complainant while brandishing hammer - Offending occurred on multiple occasions - Perverting course of justice - Applicant drafted and coerced complainant to sign statement of no complainant - Statement purported to denigrate complainant and exculpate applicant - Whether sentence manifestly excessive - Significant violent offending - Sentence not wholly outside range of sentencing options - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to charges of criminal damage, intentionally causing injury, attempting to pervert course of justice, persistent contravention of family violence safety notice, and related summary offence - Sentenced to total effective sentence of 2 years and 9 months' imprisonment with non-parole period of 1 year and 10 months - Family violence - Applicant assaulted complainant and threatened complainant while brandishing hammer - Offending occurred on multiple occasions - Perverting course of justice - Applicant drafted and coerced complainant to sign statement of no complainant - Statement purported to denigrate complainant and exculpate applicant - Whether sentence manifestly excessive - Significant violent offending - Sentence not wholly outside range of sentencing options - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - New evidence - Applicant sought leave to adduce evidence in support of amended grounds of appeal - Evidence comprised psychologist report and correspondence from Department of Home Affairs cancelling applicant's visa - Evidence not before sentencing judge - Whether fresh or new evidence - Psychologist report inadmissible - Evidence of applicant's visa status would not have materially affected sentence - Application refused.
Crimes Act 1958, ss 18, 197; Family Violence Protection Act 2008, s 125A; Sentencing Act 1991, s 5(2AA); Migration Act 1958 (Cth), s 501(3A).
Carter v The Queen [2020] VSCA 156; DPP v Oksuz (2015) 47 VR 731; Barnes v The Queen [2022] NSWCCA 140; Allouch v The Queen (2018) 276 A Crim R 1; R v Nguyen [2006] VSCA 184, referred to.
CRIMINAL LAW - Appeal - Conviction - Guilty plea - Charge of entering into agreement or transaction with intentions including preventing recovery of entitlements of employees in contravention of Corporations Act 2001 (Cth) s 596AB(1) as in force 10 July 2014 - Agreement entered into with expectation that entitlements to be paid to employees pursuant to scheme under Fair Entitlements Guarantee Act 2012 (Cth) - Applicant's co-accused made application for referral of question of law to Court of Appeal asking whether person entering into such agreement intends to prevent recovery where expecting payment of entitlements under FEG Act - Court of Appeal answered 'no' to question - Prosecutions against co-accused discontinued - Application for leave to appeal against conviction on basis that applicant could not have been found guilty of offence charged - Respondent conceding appeal - Not open to find applicant intended to prevent recovery of entitlements because applicant believed employee entitlements recoverable under FEG Act - Whether to order trial or entry of acquittal - No prospect of conviction on prosecution case - Prospect of new trial advancing case against applicant reliant on fundamentally different material strikingly unfair - Leave to appeal granted - Appeal allowed - Order for acquittal.
CRIMINAL LAW - Appeal - Conviction - Guilty plea - Charge of entering into agreement or transaction with intentions including preventing recovery of entitlements of employees in contravention of Corporations Act 2001 (Cth) s 596AB(1) as in force 10 July 2014 - Agreement entered into with expectation that entitlements to be paid to employees pursuant to scheme under Fair Entitlements Guarantee Act 2012 (Cth) - Applicant's co-accused made application for referral of question of law to Court of Appeal asking whether person entering into such agreement intends to prevent recovery where expecting payment of entitlements under FEG Act - Court of Appeal answered 'no' to question - Prosecutions against co-accused discontinued - Application for leave to appeal against conviction on basis that applicant could not have been found guilty of offence charged - Respondent conceding appeal - Not open to find applicant intended to prevent recovery of entitlements because applicant believed employee entitlements recoverable under FEG Act - Whether to order trial or entry of acquittal - No prospect of conviction on prosecution case - Prospect of new trial advancing case against applicant reliant on fundamentally different material strikingly unfair - Leave to appeal granted - Appeal allowed - Order for acquittal.
Criminal Procedure Act 2009, s 277.
Peters v The Queen [No 2] (2019) 60 VR 231; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; Mokbel v The King [2025] VSCA 243; Mokbel v Director of Public Prosecutions (Cth) (2021) 289 A Crim R 1; [2021] VSCA 94, applied.
CRIMINAL LAW - Appeal - Conviction - Rape and sexual assault - Applicant and complainant patients in mental health facility - Complainant distressed when giving evidence - Judge failed to direct that untruthful account may be given with obvious signs of emotion or distress - Whether substantial miscarriage of justice - Appeal allowed.
CRIMINAL LAW - Appeal - Conviction - Rape and sexual assault - Applicant and complainant patients in mental health facility - Complainant distressed when giving evidence - Judge failed to direct that untruthful account may be given with obvious signs of emotion or distress - Whether substantial miscarriage of justice - Appeal allowed.
Jury Directions Act 2015 s 54K(5); Awad v The Queen (2022) 275 CLR 421.
CRIMINAL LAW - Appeal - Murder - Evidence - Hearsay evidence - Whether evidence of previous representations to police witnesses first-hand hearsay - Whether evidence inadmissible because danger of unfair prejudice outweighed probative value - No substantial miscarriage of justice - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Murder - Evidence - Hearsay evidence - Whether evidence of previous representations to police witnesses first-hand hearsay - Whether evidence inadmissible because danger of unfair prejudice outweighed probative value - No substantial miscarriage of justice - Application for leave to appeal refused.
Evidence Act 2008, ss 62, 66.
CRIMINAL LAW - Rape - Applicant sentenced to 4 years and 3 months' imprisonment with a non-parole period of 2 years and 3 months' imprisonment for oral penetration of complainant niece when complainant was teenager - Delayed complaint - Repressed/recovered memory - Memory recovered approximately 15 years after incident triggered by sexualised comment made by applicant about complainant's infant child triggering sense of déjà vu - Meaning of comment in Vietnamese ambiguous - Recovered memory one of two purportedly recovered as part of déjà vu following same trigger at same time in respect of applicant and friend of applicant - Friend of applicant gave unchallenged evidence denying offending by him at trial of applicant - Whether verdict unreasonable or unable to be supported by the evidence - Whether recovered memory reliable - Whether substantial miscarriage of justice resulted from prosecutor's invitation to jury to discount applicant's denials in record of interview because he was the accused - Appeal allowed - Applicant acquitted.
CRIMINAL LAW - Rape - Applicant sentenced to 4 years and 3 months' imprisonment with a non-parole period of 2 years and 3 months' imprisonment for oral penetration of complainant niece when complainant was teenager - Delayed complaint - Repressed/recovered memory - Memory recovered approximately 15 years after incident triggered by sexualised comment made by applicant about complainant's infant child triggering sense of déjà vu - Meaning of comment in Vietnamese ambiguous - Recovered memory one of two purportedly recovered as part of déjà vu following same trigger at same time in respect of applicant and friend of applicant - Friend of applicant gave unchallenged evidence denying offending by him at trial of applicant - Whether verdict unreasonable or unable to be supported by the evidence - Whether recovered memory reliable - Whether substantial miscarriage of justice resulted from prosecutor's invitation to jury to discount applicant's denials in record of interview because he was the accused - Appeal allowed - Applicant acquitted.
Jury Directions Act 2015, div 2 pt 5, div 3 pt 5, ss 51(1)(c), 52, 54D, 54H.
Evidence Act 2008, ss 79, 80.
M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123, Robinson v The Queen (1991) 180 CLR 531; Hargraves v The Queen (2011) 245 CLR 257; Awad v The Queen (2022) 275 CLR 421, applied.
R v E (1997) 96 A Crim R 489, referred to.
EQUITY - Trusts - Beneficiary application for inspection of trust documents - Alleged breach of duty to permit inspection of trust documents - Whether beneficiary has a proprietary right to inspection - Whether inspection should be granted in court's supervisory jurisdiction - Substantial production of documents for inspection and copying already provided - No breach of duty to permit inspection of trust documents established - The court's discretion in its supervisory jurisdiction is enlivened - No orders made for further inspection - Deutsch v Trumble (2016) 52 VR 108; Erceg v Erceg (2017) 1 NZLR 320; Chan v Valmorbida Custodians Pty Ltd [2020] VSC 590; Re Londonderry's Settlement [1965] Ch 918; Mandie v Memart Nominees Pty Ltd (2014) 42 VR 325; Hartigan Nominees Pty Ltd & Anor v Rydge (1992) 29 NSWLR 405, considered.
EQUITY - Trusts - Beneficiary application for inspection of trust documents - Alleged breach of duty to permit inspection of trust documents - Whether beneficiary has a proprietary right to inspection - Whether inspection should be granted in court's supervisory jurisdiction - Substantial production of documents for inspection and copying already provided - No breach of duty to permit inspection of trust documents established - The court's discretion in its supervisory jurisdiction is enlivened - No orders made for further inspection - Deutsch v Trumble (2016) 52 VR 108; Erceg v Erceg (2017) 1 NZLR 320; Chan v Valmorbida Custodians Pty Ltd [2020] VSC 590; Re Londonderry's Settlement [1965] Ch 918; Mandie v Memart Nominees Pty Ltd (2014) 42 VR 325; Hartigan Nominees Pty Ltd & Anor v Rydge (1992) 29 NSWLR 405, considered.
JOINDER APPLICATION - Supreme Court (General Civil Procedure) Rules 2015 (Vic) reg 9.06(b)(ii) - Whether primary insurers should be added as a party to proceedings - Whether just and convenient - CGU Insurance Limited v Blakeley (2016) 259 CLR 339 - S Pirrie Equities Pty Ltd & Ors v Venetian Media Group Pty Ltd & Ors ('S Pirrie') [2023] VSC 253 - Whether there should be exercise of discretion - Owners-Strata Plan 62658 v Mestrez Pty Ltd (2012) NSWSC 1259 - No denial of liability by the insurers - Whether there is a bona fide dispute - Civil Procedure Act 2010 (Vic).
JOINDER APPLICATION - Supreme Court (General Civil Procedure) Rules 2015 (Vic) reg 9.06(b)(ii) - Whether primary insurers should be added as a party to proceedings - Whether just and convenient - CGU Insurance Limited v Blakeley (2016) 259 CLR 339 - S Pirrie Equities Pty Ltd & Ors v Venetian Media Group Pty Ltd & Ors ('S Pirrie') [2023] VSC 253 - Whether there should be exercise of discretion - Owners-Strata Plan 62658 v Mestrez Pty Ltd (2012) NSWSC 1259 - No denial of liability by the insurers - Whether there is a bona fide dispute - Civil Procedure Act 2010 (Vic).
WILLS AND ESTATES - Application by plaintiff for a grant of letters of administration - Caveat filed by caveator to oppose the making of the grant - Plaintiff's application for summary judgment or strike out of caveat on the basis that the caveator lacks standing and cannot establish a prima facie case - Caveator lacks standing to oppose the grant - Caveator cannot establish prima facie case - Caveat dismissed - Civil Procedure Act 2010 (Vic), s 63.
WILLS AND ESTATES - Application by plaintiff for a grant of letters of administration - Caveat filed by caveator to oppose the making of the grant - Plaintiff's application for summary judgment or strike out of caveat on the basis that the caveator lacks standing and cannot establish a prima facie case - Caveator lacks standing to oppose the grant - Caveator cannot establish prima facie case - Caveat dismissed - Civil Procedure Act 2010 (Vic), s 63.
SERVICE OUT OF JURISDICTION - Service effected by plaintiff on Spanish corporation under r 80.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters -Application by Spanish corporation to set aside service of process and for permanent stay of proceeding - Finding that claims made by plaintiff were within ambit of exclusive jurisdiction clause which required such claims to be brought in Spanish court - No features of the matter which warranted departure from prima facie position that plaintiff should be required to adhere to the choice of jurisdiction provision in the agreement between the parties - Orders made setting aside service and for a permanent stay of the proceeding - VS Property & Holding Pty Ltd v Zurzolo [2024] VSCA 199; Global Partners Fund Ltd v Babcock & Brown Ltd (2010) 79 ACSR 383; Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160; Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45 applied.
SERVICE OUT OF JURISDICTION - Service effected by plaintiff on Spanish corporation under r 80.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters -Application by Spanish corporation to set aside service of process and for permanent stay of proceeding - Finding that claims made by plaintiff were within ambit of exclusive jurisdiction clause which required such claims to be brought in Spanish court - No features of the matter which warranted departure from prima facie position that plaintiff should be required to adhere to the choice of jurisdiction provision in the agreement between the parties - Orders made setting aside service and for a permanent stay of the proceeding - VS Property & Holding Pty Ltd v Zurzolo [2024] VSCA 199; Global Partners Fund Ltd v Babcock & Brown Ltd (2010) 79 ACSR 383; Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160; Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45 applied.
COURTS AND JUDGES - 13 year old girl - Complex background trauma, auditory and visual hallucinations, self-harm, suicidal ideation, planning and attempts - Psychiatric admissions - Child Protection involved since January 2025 - Serious psychiatric diagnoses - Protection application made but yet to be determined by the Children's Court - Repeated interim accommodation orders made - Repeated placements in out of home care - Repeated placements in 'secure welfare service' - Escalating incidents of self-harm, suicidal ideation and planning - Limitation in the applicable statutory scheme - Application made in the parens patriae jurisdiction of the Court - Acute risk of self-harm, suicide and death - Risk of institutionalisation - Child in need of protection in demonstrably exceptional circumstances - Best interests of the child - Human rights considerations - Ward of the Court - Delegation - Interim placement in 'secure welfare service' - 'Bespoke' model of care under consideration - Children, Youth and Families Act 2005 (Vic), ss 173, 263, 264, 267 and 268; Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2) and 38(1) - Secretary, Department of Health and Community Services v JWB and SMB [Marion's case] (1992) 175 CLR 218; Director-General, Department of Community Services; Re Jules (2008) 40 Fam LR 122; Re Beth (2013) 42 VR 124; Re WD (No 3) [2024] VSC 14; Secretary DFFH v Hage (a pseudonym) (2025) 77 VR 1 considered - Orders made - Parties to return to Court in mid-December.
COURTS AND JUDGES - 13 year old girl - Complex background trauma, auditory and visual hallucinations, self-harm, suicidal ideation, planning and attempts - Psychiatric admissions - Child Protection involved since January 2025 - Serious psychiatric diagnoses - Protection application made but yet to be determined by the Children's Court - Repeated interim accommodation orders made - Repeated placements in out of home care - Repeated placements in 'secure welfare service' - Escalating incidents of self-harm, suicidal ideation and planning - Limitation in the applicable statutory scheme - Application made in the parens patriae jurisdiction of the Court - Acute risk of self-harm, suicide and death - Risk of institutionalisation - Child in need of protection in demonstrably exceptional circumstances - Best interests of the child - Human rights considerations - Ward of the Court - Delegation - Interim placement in 'secure welfare service' - 'Bespoke' model of care under consideration - Children, Youth and Families Act 2005 (Vic), ss 173, 263, 264, 267 and 268; Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2) and 38(1) - Secretary, Department of Health and Community Services v JWB and SMB [Marion's case] (1992) 175 CLR 218; Director-General, Department of Community Services; Re Jules (2008) 40 Fam LR 122; Re Beth (2013) 42 VR 124; Re WD (No 3) [2024] VSC 14; Secretary DFFH v Hage (a pseudonym) (2025) 77 VR 1 considered - Orders made - Parties to return to Court in mid-December.
CORPORATIONS - Voluntary administration - Deed of company arrangement - Application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer shares - Whether members unfairly prejudiced - Kipoi Holdings Mauritius Ltd v Kirman (as joint and several admins of Tiger Resources Ltd) (subject to deed of company arrangement) (No 4) [2024] WASCA 145, distinguished - Members unfairly prejudiced - Failure to prove shares have no value - Potential benefit to members from further investigation - Transfer would amount to contravention of Part 9.4AAA - Leave refused.
CORPORATIONS - Voluntary administration - Deed of company arrangement - Application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer shares - Whether members unfairly prejudiced - Kipoi Holdings Mauritius Ltd v Kirman (as joint and several admins of Tiger Resources Ltd) (subject to deed of company arrangement) (No 4) [2024] WASCA 145, distinguished - Members unfairly prejudiced - Failure to prove shares have no value - Potential benefit to members from further investigation - Transfer would amount to contravention of Part 9.4AAA - Leave refused.
CORPORATIONS - Whistleblower protection - Part 9.4AAA of the Corporations Act 2001 (Cth) - Leave to administrator to transfer shares would result in contravention of s 1317AB - Whether administrator's application to transfer shares for no consideration amounts to threat to cause detriment within meaning of s 1317AD - Restraint of liquidator pursuant to s 1317AE(1)(c).
CORPORATIONS - 'Perfection' of security interests under the Personal Property Securities Act 2009 (Cth) - Corporations Act 2001 (Cth) - S 588FL - Where lender initially registered security interests on Personal Property Securities Register within prescribed time but specified incorrect collateral class - Status and effect of initial registration - Where subsequent registration specified correct collateral class but made outside prescribed period - S 588FM - Application for extension of time for subsequent registration - Whether failure to register in timely way accidental or due to inadvertence - Whether just and equitable to grant relief - Whether discretion to fix later time should be exercised - Relief granted with liberty reserved to unsecured creditors and any liquidator or administrator to apply to set aside order in event of external administration of grantor company.
CORPORATIONS - 'Perfection' of security interests under the Personal Property Securities Act 2009 (Cth) - Corporations Act 2001 (Cth) - S 588FL - Where lender initially registered security interests on Personal Property Securities Register within prescribed time but specified incorrect collateral class - Status and effect of initial registration - Where subsequent registration specified correct collateral class but made outside prescribed period - S 588FM - Application for extension of time for subsequent registration - Whether failure to register in timely way accidental or due to inadvertence - Whether just and equitable to grant relief - Whether discretion to fix later time should be exercised - Relief granted with liberty reserved to unsecured creditors and any liquidator or administrator to apply to set aside order in event of external administration of grantor company.
CORPORATIONS - Winding up - Presumption of insolvency - Statutory demand - Service - Where demand received by email prior to deemed receipt by post - Whether demand served when the email came to the attention of the company's sole director - Whether time for compliance commences from date of delivery of the email - Whether demand was stale at time the winding-up application was filed - Corporations Act 2001 (Cth) ss 105A, 105B, 109C, 109D, 459C, 459F - Howship Holdings Pty Ltd v Leslie (No 2) (1996) 41 NSWLR 542, Re New Wilkie Energy Group Ltd [2024] NSWSC 942, CED WISE AB Services Pty Ltd v Hilltops Pastoral Group Pty Ltd [2013] QSC 259, EC Newstead Property Group Pty Ltd v H&T Qld Pty Ltd [2020] VSC 322, Re Kornucopia Pty Ltd (No 1) [2019] VSC 756, Re Bioaction Pty Ltd [2022] FCA 436, Sandys Swim Pty Ltd v Morgan [2022] FCA 1574 considered.
CORPORATIONS - Winding up - Presumption of insolvency - Statutory demand - Service - Where demand received by email prior to deemed receipt by post - Whether demand served when the email came to the attention of the company's sole director - Whether time for compliance commences from date of delivery of the email - Whether demand was stale at time the winding-up application was filed - Corporations Act 2001 (Cth) ss 105A, 105B, 109C, 109D, 459C, 459F - Howship Holdings Pty Ltd v Leslie (No 2) (1996) 41 NSWLR 542, Re New Wilkie Energy Group Ltd [2024] NSWSC 942, CED WISE AB Services Pty Ltd v Hilltops Pastoral Group Pty Ltd [2013] QSC 259, EC Newstead Property Group Pty Ltd v H&T Qld Pty Ltd [2020] VSC 322, Re Kornucopia Pty Ltd (No 1) [2019] VSC 756, Re Bioaction Pty Ltd [2022] FCA 436, Sandys Swim Pty Ltd v Morgan [2022] FCA 1574 considered.
CORPORATIONS - Winding up - Where statutory presumption of insolvency disputed -Whether application fails to comply with s 459Q of the Corporations Act 2001 (Cth) or is defective or misleading for failing to provide particulars of email service of the statutory demand - Oral application to amend the application to raise actual insolvency refused - Corporations Act 2001 (Cth) ss 459Q, 459R, 467(3)(e).
CORPORATIONS - Liquidation of trustee company - Company operated exclusively in its capacity as trustee - Whether liquidator justified and acting reasonably in so concluding - Whether to appoint liquidator as receiver and manager pursuant to s 37(1) of the Supreme Court Act 1986 (Vic) or make orders conferring powers pursuant to s 63 of Trustee Act 1958 (Vic) - Liquidator conferred powers pursuant to s 63 of Trustee Act 1958 (Vic) - Re Amerind Pty Ltd (receivers and managers apptd) (in liq) (2017) 320 FLR 118, applied.
CORPORATIONS - Liquidation of trustee company - Company operated exclusively in its capacity as trustee - Whether liquidator justified and acting reasonably in so concluding - Whether to appoint liquidator as receiver and manager pursuant to s 37(1) of the Supreme Court Act 1986 (Vic) or make orders conferring powers pursuant to s 63 of Trustee Act 1958 (Vic) - Liquidator conferred powers pursuant to s 63 of Trustee Act 1958 (Vic) - Re Amerind Pty Ltd (receivers and managers apptd) (in liq) (2017) 320 FLR 118, applied.
PRACTICE AND PROCEDURE - Pleadings - Late application to file a further amended defence and counterclaim - Application for amendment under r 36.01(1) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Amendment application general principles - Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 - Multiple previous pleadings and draft pleadings - Application made at end of trial - Civil Procedure Act 2010 (Vic) ss 7, 8 and 9 - Delay - Explanation for delay - Claimed prejudice - Overarching purpose - Application for joinder under rr 9.06 and 10.03 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Joinder application at conclusion of trial - Joinder application general principles.
PRACTICE AND PROCEDURE - Pleadings - Late application to file a further amended defence and counterclaim - Application for amendment under r 36.01(1) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Amendment application general principles - Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 - Multiple previous pleadings and draft pleadings - Application made at end of trial - Civil Procedure Act 2010 (Vic) ss 7, 8 and 9 - Delay - Explanation for delay - Claimed prejudice - Overarching purpose - Application for joinder under rr 9.06 and 10.03 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Joinder application at conclusion of trial - Joinder application general principles.
PRACTICE AND PROCEDURE - Discovery - Defendants' application for specific discovery - Rule 29.08 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Whether documents relevant to question or fact in issue on the pleadings - Order for discovery made.
PRACTICE AND PROCEDURE - Discovery - Defendants' application for specific discovery - Rule 29.08 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Whether documents relevant to question or fact in issue on the pleadings - Order for discovery made.
COSTS - Judgment for the plaintiff - Whether defendant should pay costs on an indemnity basis - Whether allegations of fraud and dishonesty made without proper basis - Whether unreasonable refusal of Calderbank offer - Proper order for indemnity costs - Supreme Court (General Civil Procedure) Rules 2025, Ord 63 - Supreme Court Act 1986, s 24 - Li v So (No 2) - [2019] VSC 655 - Oshlack v Richmond River Council (1998) 193 CLR 72 - Norman South & Anor v Da Silva [2012] VSC 622 - Jeans v Bruce [2004] NSWSC 758 - Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435.
COSTS - Judgment for the plaintiff - Whether defendant should pay costs on an indemnity basis - Whether allegations of fraud and dishonesty made without proper basis - Whether unreasonable refusal of Calderbank offer - Proper order for indemnity costs - Supreme Court (General Civil Procedure) Rules 2025, Ord 63 - Supreme Court Act 1986, s 24 - Li v So (No 2) - [2019] VSC 655 - Oshlack v Richmond River Council (1998) 193 CLR 72 - Norman South & Anor v Da Silva [2012] VSC 622 - Jeans v Bruce [2004] NSWSC 758 - Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435.
CONTEMPT OF COURT - Sentence - Respondent adjudged guilty of 14 charges of contempt - Respondent made abusive and disrespectful comments to County Court judge in court - Respondent sent emails to court containing threatening language and allegations of impropriety and corruption - Threats to judge serious examples of contempt - Late apology offered - Provisional diagnosis of autism - Term of imprisonment appropriate.
CONTEMPT OF COURT - Sentence - Respondent adjudged guilty of 14 charges of contempt - Respondent made abusive and disrespectful comments to County Court judge in court - Respondent sent emails to court containing threatening language and allegations of impropriety and corruption - Threats to judge serious examples of contempt - Late apology offered - Provisional diagnosis of autism - Term of imprisonment appropriate.
R v Bonacci (No 2) [2015] VSC 134; Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309; Rich v Attorney-General (Vic) (1999) 103 A Crim R 261; Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90, considered.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under Residential Tenancies Act 1997 (Vic) - Application for extension of time - Extension of time granted - Where residential rental provider gave renter a notice of proposed rent increase under s 44(1) - Where renter believed notice to be invalid and asked VCAT to set it aside - Where renter's application included a request for compensation which was not maintained at the hearing - Where VCAT dismissed the application on the basis of having no jurisdiction to make the order sought - Whether VCAT had jurisdiction to hear an application for an ancillary order in the absence of an application for a substantive order - Where no jurisdiction to make such an order - Leave to appeal allowed - Appeal dismissed.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under Residential Tenancies Act 1997 (Vic) - Application for extension of time - Extension of time granted - Where residential rental provider gave renter a notice of proposed rent increase under s 44(1) - Where renter believed notice to be invalid and asked VCAT to set it aside - Where renter's application included a request for compensation which was not maintained at the hearing - Where VCAT dismissed the application on the basis of having no jurisdiction to make the order sought - Whether VCAT had jurisdiction to hear an application for an ancillary order in the absence of an application for a substantive order - Where no jurisdiction to make such an order - Leave to appeal allowed - Appeal dismissed.
Residential Tenancies Act 1997 (Vic), ss 44, 45, 46, 452, 472; Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 124, 148; Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic), r 4.08.
Victoria v Bradto [2006] VCAT 1864; Xiao v Perpetual Trustee Company Ltd [2009] V ConvR 54-756; [2008] VSC 412; Kracke v Mental Health Review Board [2009] VCAT 646; Casa Di Iorio Investments Pty Ltd v Guirguis [2017] VSC 266; Rosewarne v Lim [2022] VCAT 1015.
ADMINISTRATIVE LAW - Judicial review - Application for review of decision of the delegate to the Secretary to the Department of Justice and Community Safety not to grant emergency management days - Whether delegate's decision was unlawfully fettered by departmental policy - Whether decision maker failed to evaluate the material before her - Whether delegate's decision legally unreasonably - Proceeding dismissed - Corrections Act 1986 (Vic) s 58E.
ADMINISTRATIVE LAW - Judicial review - Application for review of decision of the delegate to the Secretary to the Department of Justice and Community Safety not to grant emergency management days - Whether delegate's decision was unlawfully fettered by departmental policy - Whether decision maker failed to evaluate the material before her - Whether delegate's decision legally unreasonably - Proceeding dismissed - Corrections Act 1986 (Vic) s 58E.
ADMINISTRATIVE LAW - Appeal pursuant to section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Whether Tribunal erred in affirming the decision of the Medical Board of Australia to take immediate action to suspend medical practitioner registration - Relevance and weight to be given to Coronial findings and expert evidence - Whether Tribunal erred by denying procedural fairness - Function of the Tribunal on review - Decision referred for reconsideration during the proceeding - Original decision affirmed by Medical Board of Australia - Consideration of public interest in taking immediate action against a medical practitioner - Leave to appeal refused.
ADMINISTRATIVE LAW - Appeal pursuant to section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Whether Tribunal erred in affirming the decision of the Medical Board of Australia to take immediate action to suspend medical practitioner registration - Relevance and weight to be given to Coronial findings and expert evidence - Whether Tribunal erred by denying procedural fairness - Function of the Tribunal on review - Decision referred for reconsideration during the proceeding - Original decision affirmed by Medical Board of Australia - Consideration of public interest in taking immediate action against a medical practitioner - Leave to appeal refused.
Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 51(2), 51A, 98, 148; Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) ss 155-157; Medical Board of Australia v Liang Joo Leow [2019] VSC 532, referred to; Kozanoglu v Pharmacy Board of Australia (2012) 36 VR 656, distinguished.
REAL PROPERTY - Restrictive covenants - Application to modify restrictive covenant under s 84(1)(b) and (c) of the Property Law Act 1958 (Vic) - Covenant not to build dwelling above a certain height - Covenant breached - Whether acquiescence constitutes agreement under s 84(1)(b) of the Property Law Act 1958 (Vic) - Whether inaction by beneficiaries constitutes agreement to modification of the covenant - Whether modification would not cause substantial injury - Re Clearwater Properties Ltd [2013] ] UKUT 210 (LC) applied - No discretionary matters warranting refusal of application - Application granted pursuant to s 84(1)(b) of the Property Law Act 2010 (Vic).
REAL PROPERTY - Restrictive covenants - Application to modify restrictive covenant under s 84(1)(b) and (c) of the Property Law Act 1958 (Vic) - Covenant not to build dwelling above a certain height - Covenant breached - Whether acquiescence constitutes agreement under s 84(1)(b) of the Property Law Act 1958 (Vic) - Whether inaction by beneficiaries constitutes agreement to modification of the covenant - Whether modification would not cause substantial injury - Re Clearwater Properties Ltd [2013] ] UKUT 210 (LC) applied - No discretionary matters warranting refusal of application - Application granted pursuant to s 84(1)(b) of the Property Law Act 2010 (Vic).
STATUTORY INTERPRETATION - Meaning of 'agreement' under s 84(1)(b) of the Property Law Act 1958 (Vic) - Natural and ordinary meaning - Interpretation to give effect to harmonious goals - Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied.
APPEALS - Appeals from different orders of Associate Judge made on three separate occasions - Appeals from costs orders, from orders for summary judgment and summary dismissal of related proceedings under Civil Procedure Act 2010 (Vic) for persistent breaches of discovery orders, and also from refusal to exercise discretion to set aside orders made in absence of a party - Appeals brought pursuant to s 17 of the Supreme Court Act 1986 (Vic) and r 77.06 of the Supreme Court (General Civil Procedure Rules) 2015 - No application for extension of time where Notices of Appeal from some orders filed out of time and applicant self-represented - Applications for extension of time still considered but refused - Grounds of appeal concerning inter alia procedural fairness - No legal, factual or discretionary error in the Associate Judge's decision established - Appeals dismissed.
APPEALS - Appeals from different orders of Associate Judge made on three separate occasions - Appeals from costs orders, from orders for summary judgment and summary dismissal of related proceedings under Civil Procedure Act 2010 (Vic) for persistent breaches of discovery orders, and also from refusal to exercise discretion to set aside orders made in absence of a party - Appeals brought pursuant to s 17 of the Supreme Court Act 1986 (Vic) and r 77.06 of the Supreme Court (General Civil Procedure Rules) 2015 - No application for extension of time where Notices of Appeal from some orders filed out of time and applicant self-represented - Applications for extension of time still considered but refused - Grounds of appeal concerning inter alia procedural fairness - No legal, factual or discretionary error in the Associate Judge's decision established - Appeals dismissed.
APPLICATIONS -Application to refer respondent to the Director of Public Prosecutions for investigation for perjury pursuant to s 314 of the Crimes Act 1958 (Vic) - Further application seeking travel restraint orders against respondent - No legitimate grounds for making referral or restraint orders sought - Applications refused.
TRUSTS AND TRUSTEES - Charitable trust - Where land held in trust is situated in parish - Judicial advice - Where plaintiff trustee seeks justification and indemnity directions to defend main proceeding and prosecute counterclaim - Application for joinder by Attorney-General of Victoria - Attorney-General added as defendant as the proper and competent party - Application for joinder by member of the parish as proposed objector - Where proposed objector the plaintiff in main proceeding - Summary character of judicial advice proceedings - Proposed objector's joinder application dismissed - Proposed objector to pay costs of joinder application - Where dispute about charitable purposes of the trust in main proceeding - Proper basis for plaintiff's defence and counterclaim in main proceeding - Best interests of the trust - Consideration of confidential advice from counsel - Justification direction granted - Proposed expenditure of costs not futile or fruitless - Costs cap proposed - Capacity to vary or revoke indemnity order - Costs broadly appropriate - Indemnity order made - Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 - Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor (2006) 66 NSWLR 112 - Plan B Trustees Ltd v Parker (No 2) (2013) 11 ASTLR 242 - Re Estate Late Chow Cho-Poon; application for judicial advice (2013) NSWSC 844 - Charlesworth Nominees Pty Ltd v Charlesworth (2017) 54 VR 155 - Hopkins v Edwards [2020] VSC 456 - Re Macedonian Orthodox Church Community 'Saint Dimitrij Solunski' Springvale Inc [2020] VSC 274 - Avery v Manno (2020) 62 VR 281 - Supreme Court (General Civil Procedure) Rules 2025, Order 54, r 63.26 - Trustee Act 1958, s 36(2) - Trustee Act 1925 (NSW), s 63 - Religious and Successory Trusts Act 1958 - Trustees Act 1962 (WA), s 92.
TRUSTS AND TRUSTEES - Charitable trust - Where land held in trust is situated in parish - Judicial advice - Where plaintiff trustee seeks justification and indemnity directions to defend main proceeding and prosecute counterclaim - Application for joinder by Attorney-General of Victoria - Attorney-General added as defendant as the proper and competent party - Application for joinder by member of the parish as proposed objector - Where proposed objector the plaintiff in main proceeding - Summary character of judicial advice proceedings - Proposed objector's joinder application dismissed - Proposed objector to pay costs of joinder application - Where dispute about charitable purposes of the trust in main proceeding - Proper basis for plaintiff's defence and counterclaim in main proceeding - Best interests of the trust - Consideration of confidential advice from counsel - Justification direction granted - Proposed expenditure of costs not futile or fruitless - Costs cap proposed - Capacity to vary or revoke indemnity order - Costs broadly appropriate - Indemnity order made - Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 - Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor (2006) 66 NSWLR 112 - Plan B Trustees Ltd v Parker (No 2) (2013) 11 ASTLR 242 - Re Estate Late Chow Cho-Poon; application for judicial advice (2013) NSWSC 844 - Charlesworth Nominees Pty Ltd v Charlesworth (2017) 54 VR 155 - Hopkins v Edwards [2020] VSC 456 - Re Macedonian Orthodox Church Community 'Saint Dimitrij Solunski' Springvale Inc [2020] VSC 274 - Avery v Manno (2020) 62 VR 281 - Supreme Court (General Civil Procedure) Rules 2025, Order 54, r 63.26 - Trustee Act 1958, s 36(2) - Trustee Act 1925 (NSW), s 63 - Religious and Successory Trusts Act 1958 - Trustees Act 1962 (WA), s 92.
INTERIM INJUNCTION - Interim orders under Environment Protection Act 2017 (Vic) - Modification of principles to be applied in determining whether to grant interim injunctive relief - Whether prima facie case made out - Balance of convenience - Where no undertaking as to damages required by relevant legislation - Principles of environmental protection relevant to the exercise of power under sections 309 and 310 of the Environment Protection Act 2017 (Vic) - Exercise of discretion to make alternative orders - Orders requiring reporting made.
INTERIM INJUNCTION - Interim orders under Environment Protection Act 2017 (Vic) - Modification of principles to be applied in determining whether to grant interim injunctive relief - Whether prima facie case made out - Balance of convenience - Where no undertaking as to damages required by relevant legislation - Principles of environmental protection relevant to the exercise of power under sections 309 and 310 of the Environment Protection Act 2017 (Vic) - Exercise of discretion to make alternative orders - Orders requiring reporting made.
Environment Protection Act 2017 (Vic) ss 1, 11, 13-23, 25, 309-310; Tymbook Pty Ltd v State of Victoria; Bradto Pty Ltd v State of Victoria (2006) 15 VR 65; Australian Competition and Consumer Commission v IVF Finance Pty Ltd (No 2) [2021] FCA 1295, referred to.
PRACTICE AND PROCEDURE - Standing - Claim for declaratory and injunctive relief to enforce the conditions of a licence to operate an abattoir - Plaintiff a charitable organisation concerned with animal welfare - Whether plaintiff has standing to bring claim in relation to breach of licence - Statutory context does not support or assist claim by plaintiff to standing - Plaintiff has not demonstrated a special interest in the subject matter of the proceeding - Proceeding dismissed - VicForests v Kinglake Friends of the Forest Inc (2021) 66 VR 143.
PRACTICE AND PROCEDURE - Standing - Claim for declaratory and injunctive relief to enforce the conditions of a licence to operate an abattoir - Plaintiff a charitable organisation concerned with animal welfare - Whether plaintiff has standing to bring claim in relation to breach of licence - Statutory context does not support or assist claim by plaintiff to standing - Plaintiff has not demonstrated a special interest in the subject matter of the proceeding - Proceeding dismissed - VicForests v Kinglake Friends of the Forest Inc (2021) 66 VR 143.
PRACTICE AND PROCEDURE - Summary dismissal - Whether relief sought amounts to declaration that the first defendant has committed criminal offences - Facts in issue and potential for extensive evidence to be led at trial - Whether claims for relief have a real prospect of success - Civil Procedure Act 2010 ss 63, 64.
STATUTORY INTERPRETATION - Whether Meat Industry Act 1993 concerned with animal welfare - Whether Meat Industry Act 1993 recognises an interest in animal welfare, imposes any public duties or creates a concomitant public right.
PRACTICE AND PROCEDURE - Mode and date of trial - Plaintiff's application to vacate trial date - Third defendant's application to dispense with jury - Insufficient explanation for lateness of adjournment application - Need for adjournment because of a revised estimate of time as a jury matter - Content of trial not beyond understanding of community members albeit a matter of complexity, but proceeding as a jury would involve waste of significant time and expenses on the eve of trial - Application to vacate rejected - Application to dispense with jury successful - Gaskin v The Geelong Revival Centre [2025] VSCA 225 - Trevor Roller Shutter Service Pty Ltd v Duane Alex Crowe [2011] VSCA 16 - Birti v SPI Electricity [2011] VSC 566 - McCullough v Footscray FC [2025] VSC 443 - Rule 47.02 of Supreme Court (General Civil Procedure) Rules 2025 (Vic).
PRACTICE AND PROCEDURE - Mode and date of trial - Plaintiff's application to vacate trial date - Third defendant's application to dispense with jury - Insufficient explanation for lateness of adjournment application - Need for adjournment because of a revised estimate of time as a jury matter - Content of trial not beyond understanding of community members albeit a matter of complexity, but proceeding as a jury would involve waste of significant time and expenses on the eve of trial - Application to vacate rejected - Application to dispense with jury successful - Gaskin v The Geelong Revival Centre [2025] VSCA 225 - Trevor Roller Shutter Service Pty Ltd v Duane Alex Crowe [2011] VSCA 16 - Birti v SPI Electricity [2011] VSC 566 - McCullough v Footscray FC [2025] VSC 443 - Rule 47.02 of Supreme Court (General Civil Procedure) Rules 2025 (Vic).
PRACTICE AND PROCEDURE - Plaintiff's application to extend time to serve interrogatories - Application to amend 'at large' - Application opposed by all defendants - Application permitted only to extent that second and fourth defendants prepared to answer - Leave otherwise not granted.
PRACTICE AND PROCEDURE - Third defendant's application to amend defence - Proposed amendment would not change the plaintiff's obligation to prove the duty or cause prejudice - Application to amend granted - Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 - Rule 36.01 of Supreme Court (General Civil Procedure) Rules 2025 (Vic).
PRACTICE AND PROCEDURE - Applicant solicitor - Disciplinary findings made by the Victorian Civil and Administrative Tribunal following a hearing held over several days in December 2023 and October 2024 - Findings of professional misconduct and unsatisfactory professional conduct, including a finding of seriously dishonest conduct in connection with the practice of law - Application for review sought to be brought by the applicant under s 4 of the Administrative Law Act 1978 (Vic) - Application determined by an associate justice to have been made out of time - Urgent hearing sought seeking the stay of a penalty hearing - Whether onus discharged - Whether special or exceptional circumstances shown - Supreme Court (General Civil Procedure) Rules 2025 (Vic), r 77.06.6 - Frugtniet v Law Institute of Victoria Limited [2011] VSCA 184; Quick v Lam-Ly Pty Ltd [2019] VSCA 111 considered - Application dismissed.
PRACTICE AND PROCEDURE - Applicant solicitor - Disciplinary findings made by the Victorian Civil and Administrative Tribunal following a hearing held over several days in December 2023 and October 2024 - Findings of professional misconduct and unsatisfactory professional conduct, including a finding of seriously dishonest conduct in connection with the practice of law - Application for review sought to be brought by the applicant under s 4 of the Administrative Law Act 1978 (Vic) - Application determined by an associate justice to have been made out of time - Urgent hearing sought seeking the stay of a penalty hearing - Whether onus discharged - Whether special or exceptional circumstances shown - Supreme Court (General Civil Procedure) Rules 2025 (Vic), r 77.06.6 - Frugtniet v Law Institute of Victoria Limited [2011] VSCA 184; Quick v Lam-Ly Pty Ltd [2019] VSCA 111 considered - Application dismissed.
PRACTICE AND PROCEDURE - Appeal from determination of judicial registrar - Scheduling orders - Inspection of court file - Supreme Court (General Civil Procedure) Rules 2025, r 28.05(4).
PRACTICE AND PROCEDURE - Appeal from determination of judicial registrar - Scheduling orders - Inspection of court file - Supreme Court (General Civil Procedure) Rules 2025, r 28.05(4).
PRACTICE AND PROCEDURE - Strike out application - Pleadings - Breach of Contract - Whether singular or multiple breaches alleged - Whether pleadings are ambiguous - Potential limitations defence unless pleadings clarified - Leave to file amended pleadings granted.
PRACTICE AND PROCEDURE - Strike out application - Pleadings - Breach of Contract - Whether singular or multiple breaches alleged - Whether pleadings are ambiguous - Potential limitations defence unless pleadings clarified - Leave to file amended pleadings granted.
Supreme Court (General Civil Procedure) Rules 2025 (Vic) rr 13.02(1)(a), 23.02 - Civil Procedure Act 2010 (Vic) ss 62-64 - Wheelahan & Anor v City of Casey & Ors (No 12) [2013] VSC 316, Uber Australia Pty Ltd & Anor v Andrianakis (2020) 61 VR 580, Larking v Great Western (Nepean) Gravel Ltd (in liq) (1940) 60 CLR 221, referred to.
PRACTICE AND PROCEDURE - Costs - Executor's application for costs from the estate of the deceased in circumstances where the application for executor's commission under s 65 of the Administration and Probate Act 1958 (Vic) was refused - Rule 10.10 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) - Rules 63.01 and 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application refused - Second plaintiff to bear own cost and to pay costs of the first plaintiff's costs of the second plaintiff's application for executor's commission on a standard basis without indemnity from the deceased's estate.
PRACTICE AND PROCEDURE - Costs - Executor's application for costs from the estate of the deceased in circumstances where the application for executor's commission under s 65 of the Administration and Probate Act 1958 (Vic) was refused - Rule 10.10 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) - Rules 63.01 and 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application refused - Second plaintiff to bear own cost and to pay costs of the first plaintiff's costs of the second plaintiff's application for executor's commission on a standard basis without indemnity from the deceased's estate.
PRACTICE AND PROCEDURE - Representative proceeding - Negligence - Alternative claim for breach of duties under the Occupational Health and Safety Regulations- Application for summary judgment and strike out of pleadings - Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436 - Deal v Father Pius Kodakkathanath (2016) 258 CLR 281 - No cause of action disclosed by pleadings - Claim struck out with leave to replead.
PRACTICE AND PROCEDURE - Representative proceeding - Negligence - Alternative claim for breach of duties under the Occupational Health and Safety Regulations- Application for summary judgment and strike out of pleadings - Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436 - Deal v Father Pius Kodakkathanath (2016) 258 CLR 281 - No cause of action disclosed by pleadings - Claim struck out with leave to replead.
PRACTICE AND PROCEDURE - APPLICATION FOR REINSTATEMENT OF PROCEEDING AND SUMMARY JUDGMENT PURSUANT TO TERMS OF SETTLEMENT - Whether extraneous matters involved in settlement - Whether justice can be done - No dispute of enforceability of settlement terms - Where refinance arrangement to repay settlement sum proposed - Stay on enforcement of summary judgment appropriate.
PRACTICE AND PROCEDURE - APPLICATION FOR REINSTATEMENT OF PROCEEDING AND SUMMARY JUDGMENT PURSUANT TO TERMS OF SETTLEMENT - Whether extraneous matters involved in settlement - Whether justice can be done - No dispute of enforceability of settlement terms - Where refinance arrangement to repay settlement sum proposed - Stay on enforcement of summary judgment appropriate.