CRIMINAL PRACTICE - Jury trial - Separation of jury after retirement and before verdict given or jury discharged - Juries Act 2000 (Vic) - Where jurors took separation oath on first day of trial - Where trial judge twice permitted jury to separate after retirement and before verdict or discharge - Where jury not reminded of separation oath - Where respondent's appeal against conviction successful - Where Court of Appeal held discretion to allow jury to separate conditional on jurors having taken separation oath shortly before power to allow separation exercised - Whether Juries Act, s 50 requires jurors to take separation oath shortly before power to allow separation exercised.
CRIMINAL PRACTICE - Jury trial - Separation of jury after retirement and before verdict given or jury discharged - Juries Act 2000 (Vic) - Where jurors took separation oath on first day of trial - Where trial judge twice permitted jury to separate after retirement and before verdict or discharge - Where jury not reminded of separation oath - Where respondent's appeal against conviction successful - Where Court of Appeal held discretion to allow jury to separate conditional on jurors having taken separation oath shortly before power to allow separation exercised - Whether Juries Act, s 50 requires jurors to take separation oath shortly before power to allow separation exercised.
WORDS AND PHRASES - "administration of jury trials", "deliberations", "discretion", "enduring efficacy of an oath taken by jurors", "error or irregularity", "integrity of the trial process", "jurors", "jury", "legislative history", "protecting the integrity of a jury's verdict", "reminder", "safeguard", "separation during deliberations", "separation oath", "sequestration", "text and statutory context".
Juries Act 2000 (Vic), s 50, Sch 5.
ADMINISTRATIVE LAW - Judicial review - Where appellant sought development consent for project to extend and expand coal mine - Where Independent Planning Commission of New South Wales ("Commission") granted development consent - Where Scope 3 emissions constituted 98 per cent of project's total greenhouse gas emissions - Where no conditions to minimise Scope 3 emissions imposed - Whether Commission complied with obligation to consider "likely impacts of that development, including environmental impacts ... in the locality" - Whether Commission complied with obligation to consider imposing conditions aimed at ensuring greenhouse gas emissions minimised to greatest extent practicable.
ADMINISTRATIVE LAW - Judicial review - Where appellant sought development consent for project to extend and expand coal mine - Where Independent Planning Commission of New South Wales ("Commission") granted development consent - Where Scope 3 emissions constituted 98 per cent of project's total greenhouse gas emissions - Where no conditions to minimise Scope 3 emissions imposed - Whether Commission complied with obligation to consider "likely impacts of that development, including environmental impacts ... in the locality" - Whether Commission complied with obligation to consider imposing conditions aimed at ensuring greenhouse gas emissions minimised to greatest extent practicable.
WORDS AND PHRASES - "climate change", "coal mine", "conditions", "consider", "consideration", "development consent", "duty to give reasons", "environmental impact statement", "environmental planning instrument", "global warming", "greatest extent practicable", "greenhouse gas emissions", "impact", "in the locality", "intended essential meaning", "interpretation of reasons", "judicial review", "jurisdictional error", "jurisdictional fact", "likely impacts", "mandatory relevant consideration", "materiality", "minimised to the greatest extent practicable", "Paris Agreement", "Scope 3 emissions".
Environmental Planning and Assessment Act 1979 (NSW), ss 4.15(1)(a)(i), 4.15(1)(b).
State Environmental Planning Policy (Resources and Energy) 2021 (NSW), cll 2.20(1)(c), 2.20(2).
ADMINISTRATIVE LAW - Appeal - Applicant sought to file charge-sheet in Magistrates' Court of Victoria to commence private prosecution against King Charles III for crimes of genocide under First Peoples' sovereign laws, common law, and div 268 of the Criminal Code Act 1995 (Cth) - Magistrates' Court refused to issue proceeding on basis that no proper source of law had been particularised and such a proceeding would be an abuse of process - Applicant sought review of refusal - Whether charge-sheet was capable of engaging criminal jurisdiction of Magistrates' Court - Trial judge dismissed proceeding for judicial review on basis that charge-sheet did not disclose an offence known to law and Magistrates' Court was correct to refuse to issue proposed proceeding - Whether First Peoples' law provided proper source of law - Whether common law offence of genocide exists through incorporation of customary international law - Whether provisions creating genocide offences in div 268 of Criminal Code Act 1995 (Cth) preclude private prosecution for common law offence of genocide - Whether requirement for consent of Commonwealth Attorney-General to bring genocide prosecution a violation of Racial Discrimination Act (1975) (Cth) - Trial judge made no error dismissing judicial review proceeding - No real prospect of success on any proposed ground - Application for leave to appeal refused.
ADMINISTRATIVE LAW - Appeal - Applicant sought to file charge-sheet in Magistrates' Court of Victoria to commence private prosecution against King Charles III for crimes of genocide under First Peoples' sovereign laws, common law, and div 268 of the Criminal Code Act 1995 (Cth) - Magistrates' Court refused to issue proceeding on basis that no proper source of law had been particularised and such a proceeding would be an abuse of process - Applicant sought review of refusal - Whether charge-sheet was capable of engaging criminal jurisdiction of Magistrates' Court - Trial judge dismissed proceeding for judicial review on basis that charge-sheet did not disclose an offence known to law and Magistrates' Court was correct to refuse to issue proposed proceeding - Whether First Peoples' law provided proper source of law - Whether common law offence of genocide exists through incorporation of customary international law - Whether provisions creating genocide offences in div 268 of Criminal Code Act 1995 (Cth) preclude private prosecution for common law offence of genocide - Whether requirement for consent of Commonwealth Attorney-General to bring genocide prosecution a violation of Racial Discrimination Act (1975) (Cth) - Trial judge made no error dismissing judicial review proceeding - No real prospect of success on any proposed ground - Application for leave to appeal refused.
Criminal Procedure Act 2009, ss 6, 12; Magistrates' Court Act 1989, s 25; Criminal Code Act 1995 (Cth), div 268; Racial Discrimination Act 1975 (Cth), s 10.
Nulyarimma v Thompson (1999) 96 FCR 153; Thorpe v Kennett [1999] VSC 442; Farah Constructions Pty Ltd v Say- Dee Pty Ltd (2007) 230 CLR 89; Chow Hung Ching v The King [1948] 77 CLR 449; Dietrich v The Queen (1992) 177 CLR 292; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Polyukhovich v Commonwealth (1991) 172 CLR 501; Taylor v Attorney-General (Cth) (2019) 268 CLR 224, considered.
PRACTICE AND PROCEDURE - Appeal - Application for extension of time within which to file application for leave to appeal from orders granting application for security for costs with costs - Substantial delay - No satisfactory explanation for delay - Prejudice - Proposed grounds of appeal having no merit - Application for extension of time refused.
PRACTICE AND PROCEDURE - Appeal - Application for extension of time within which to file application for leave to appeal from orders granting application for security for costs with costs - Substantial delay - No satisfactory explanation for delay - Prejudice - Proposed grounds of appeal having no merit - Application for extension of time refused.
Supreme Court (General Civil Procedure) Rules 2025, rr 64.05 and 64.08.
Gallo v Dawson (1990) 93 ALR 479; I Cook Foods Pty Ltd v State of Victoria [2026] VSCA 150; McIntyre v State of Victoria [2026] VSCA 213, applied.
PRACTICE AND PROCEDURE - Appeal - Application for stay of execution of judgment debt - Principles to be applied in stay application pursuant to r 64.39 - Whether appeal will be rendered nugatory because real risk applicants will be bankrupted or wound up if stay refused - Very limited evidence of applicants' financial position - Whether appeal will be rendered nugatory because real risk respondent may dissipate judgment debt - Where respondent gave evidence at trial of significant creditors - Evidence of improved financial position - Evidence of respondent's solvency and capacity to repay judgment debt if required - Stay refused.
PRACTICE AND PROCEDURE - Appeal - Application for stay of execution of judgment debt - Principles to be applied in stay application pursuant to r 64.39 - Whether appeal will be rendered nugatory because real risk applicants will be bankrupted or wound up if stay refused - Very limited evidence of applicants' financial position - Whether appeal will be rendered nugatory because real risk respondent may dissipate judgment debt - Where respondent gave evidence at trial of significant creditors - Evidence of improved financial position - Evidence of respondent's solvency and capacity to repay judgment debt if required - Stay refused.
Supreme Court (General Civil Procedure Rules) 2025, r 64.39.
Sami v Roads Corporation [2009] VSCA 44; Quick v Lam- Ly Pty Ltd [2019] VSCA 111; Bata v Pathik [2025] VSCA 156, referred to; Kalifair Pty Ltd v Digi- Tech (Australia) Ltd (2002) 55 NSWLR 737, distinguished.
PRACTICE AND PROCEDURE - Appeal - Application for security for costs - Where applicant for leave to appeal an undischarged bankrupt - Where applicant submits order for security would stultify proceeding - Where applicant submits public interest in proceeding outweighs risk adverse costs order is not met - Application for security granted.
PRACTICE AND PROCEDURE - Appeal - Application for security for costs - Where applicant for leave to appeal an undischarged bankrupt - Where applicant submits order for security would stultify proceeding - Where applicant submits public interest in proceeding outweighs risk adverse costs order is not met - Application for security granted.
Supreme Court (General Civil Procedure) Rules 2025, r 64.38; Racial and Religious Tolerance Act 2001, ss 7, 8.
Mikkelsen v Li (2022) 71 VR 232; Asea 1 Pty Ltd v Rudyard Pty Ltd [2020] VSCA 122; Djordjevich v Rohrt [2021] VSCA 279; Jafari v 23 Developments Pty Ltd [2019] VSCA 16; Trailer Trash Franchise Systems Pty Ltd v GM Fascia & Gutter Pty Ltd [2017] VSCA 293; Rozenbilt v Vainer [2019] VSCA 164, applied; Towns (a pseudonym) v Towns (a pseudonym) [2024] VSCA 300, referred to.
WILLS AND PROBATE - Leave to appeal - Extension of time - Application for leave to appeal totally without merit - Prejudice to other parties and to the estate - Application refused.
WILLS AND PROBATE - Leave to appeal - Extension of time - Application for leave to appeal totally without merit - Prejudice to other parties and to the estate - Application refused.
Civil Procedure Act 2010, s 7.
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Gippsreal Ltd v Kenny [2016] VSCA 65; Giurina v Sherriff for the State of Victoria [2024] VSCA 112; Muto v Secretary to the Department of Planning and Community Development (2013) 38 VR 293, applied.
CONTRACT - Formation in the absence of offer and acceptance - Existence of contract can be implied from circumstances where objective intention to enter into binding agreement - Judge's finding that emails and subsequent conduct resulted in binding agreement - No error by the judge - Leave refused.
CONTRACT - Formation in the absence of offer and acceptance - Existence of contract can be implied from circumstances where objective intention to enter into binding agreement - Judge's finding that emails and subsequent conduct resulted in binding agreement - No error by the judge - Leave refused.
Danbol Pty Ltd v Swiss Re International SE [2020] VSCA 274, followed.
P'Auer AG v Polybuild Technologies International Pty Ltd [2015] VSCA 42, considered and applied in part.
DAMAGES - Contract - Remoteness of damages - Judge found loss not too remote as loss claimed of general kind in reasonable contemplation of the parties - No error as only loss of general kind suffered need be in reasonable contemplation of parties - No requirement that particular kind of loss suffered by reason of particular obligation be in reasonable contemplation of parties - Leave refused.
Burns v MAN Automotive (Aust) Pty Ltd (1986) 161 CLR 653; Commonwealth v Amann Pty Ltd (1991) 174 CLR 64; Koufos v C Czarnikow Ltd [1969] 1 AC 350; Wenham v Ella (1972) 127 CLR 454, applied.
DAMAGES - Concurrent wrongdoer - Apportionment - Applicant contended judge erred in apportioning certain damages as between concurrent wrongdoers - No material House v The King error by the judge in doing so - Applicant also contended that judge erred in not apportioning damages in respect of another head of loss - Judge erred in finding one party not a concurrent wrongdoer in respect of that loss based on correctness standard - Court assessed respective responsibility of concurrent wrongdoers in respect of that loss - Leave granted - Appeal allowed.
Alcoa Portland Aluminium Pty Ltd v Husson (2007) 18 VR 112; House v The King (1936) 55 CLR 499; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; Shakespeare Partners Pty Ltd v Transonic Travel Pty Ltd [2026] VSCA 96, discussed.
Campbell v Blackshaw [2019] ACTCA 1; Di Iorio v Wagener [2016] QCA 346; Imbree v McNeilly (2008) 236 CLR 510; Moore (a pseudonym) v The King (2024) 282 CLR 460; R v Torrisi [1998] VSCA 21; Singh v Singh [2018] NSWCA 30, applied.
CRIMINAL LAW - Appeal - Sentence - Aggravated burglary, false imprisonment, kidnapping and theft offences - Total effective sentence of 10 years and 10 months' imprisonment - Whether sentence manifestly excessive - Parity - Totality - Whether judge erred in approach to - Applicant played lead role in offending - Parity ground dismissed - Sentence on kidnapping manifestly excessive - Appeal allowed - Adjustment for totality - Applicant resentenced to 9 years and 4 months' imprisonment.
CRIMINAL LAW - Appeal - Sentence - Aggravated burglary, false imprisonment, kidnapping and theft offences - Total effective sentence of 10 years and 10 months' imprisonment - Whether sentence manifestly excessive - Parity - Totality - Whether judge erred in approach to - Applicant played lead role in offending - Parity ground dismissed - Sentence on kidnapping manifestly excessive - Appeal allowed - Adjustment for totality - Applicant resentenced to 9 years and 4 months' imprisonment.
CRIMINAL LAW - Appeal - Sentence - Aggravated burglary, false imprisonment, kidnapping and theft offences - Complicity basis - Total effective sentence of 9 years and 5 months' imprisonment - Whether sentence manifestly excessive - Parity - Totality - Whether judge erred in approach to - Applicant played lesser role in offending but ran contested committal - Parity ground dismissed - Sentence on kidnapping manifestly excessive - Appeal allowed - Adjustment for totality - Applicant resentenced to 8 years and 5 months' imprisonment.
CRIMINAL LAW - Appeal - Sentence - Aggravated burglary, false imprisonment, kidnapping and theft offences - Total effective sentence of 8 years and 10 months' imprisonment - Whether sentence manifestly excessive - Whether judge erred in treating assaults on victim as aggravating feature of false imprisonment - No specific error made out - Discount for assistance to prosecution - Sentence on kidnapping and sentence on theft of replica coin manifestly excessive - Appeal allowed - Applicant resentenced to 7 years and 7 months' imprisonment.
Crimes Act 1958, ss 63A, 74, 77, 323; Drugs, Poisons and Controlled Substances Act 1981, s 73; Road Safety (Vehicles) Regulations 2021, s 65; Sentencing Act 1991, s 5.
Shams v The King [2024] VSCA 260; Stefani v The King [2024] VSCA 29; Roe v The Queen [2021] VSCA 54; Tonkin v The King [2023] VSCA 194; Director of Public Prosecutions v Meyers (2014) 44 VR 486; Huynh v The Queen [2020] VSCA 222; Director of Public Prosecutions v El Azar [2020] VCC 932; Nguyen v The King [2025] VSCA 3 considered.
Bugmy v The Queen (2013) 249 CLR 571; Haamid v The Queen [2018] VSCA 330; R v de Simoni (1981) 147 CLR 383; R v Newman (1997) 1 VR 146; Lowe v The Queen (1984) 154 CLR 606; Hili v The Queen (2010) 242 CLR 520; Kamal v The Queen [2021] VSCA 27; Semaan v The Queen [2017] VSCA 261; El- Sayed v The Queen [2019] VSCA 113; Azzopardi v The Queen (2011) 35 VR 43, referred to.
Hanna v The Queen [2014] VSCA 187; Taufeulungaki v The King [2026] VSCA 208; Hudson v The Queen; DPP v Hudson (2010) 30 VR 610; Phillips v the Queen (2012) 37 VR 594, applied.
CRIMINAL LAW - Leave to appeal - Sentence - Commonwealth offences - Whether sentencing judge erred in failing to take into account effect of family hardship on applicant - Sentencing judge considered hardship on the applicant's children but did not expressly consider the effect on the applicant - Where hardship to applicant was main aspect of submissions regarding hardship on plea - Leave granted - Appeal allowed - Applicant re-sentenced.
CRIMINAL LAW - Leave to appeal - Sentence - Commonwealth offences - Whether sentencing judge erred in failing to take into account effect of family hardship on applicant - Sentencing judge considered hardship on the applicant's children but did not expressly consider the effect on the applicant - Where hardship to applicant was main aspect of submissions regarding hardship on plea - Leave granted - Appeal allowed - Applicant re-sentenced.
Cuthbertson v The Queen [2019] VSCA 104; Markovic v The Queen (2010) 30 VR 589; Totaan v The Queen (2022) 108 NSWLR 17, applied.
Carabott v The King [2025] VSCA 118; Lindemann v The King [2025] VSCA 313, distinguished.
Crimes Act 1914 (Cth) s 16A(2)(p); Criminal Code Act 1995 (Cth) ss 11.1, 134.2.
CRIMINAL LAW - Appeal - Applicant's convictions for rape and sexual assault offences set aside on appeal - Applicant retried and convicted of same offences - Heavier sentence imposed after retrial - Appeal against sentence - 'Ceiling principle' - Ordinary rule that original sentence to be regarded as upper limit of sentence to be imposed after retrial - Policy and fairness considerations underpinning ceiling principle - Whether second sentencing judge must regard first sentence as manifestly inadequate to impose heavier sentence - Second judge must identify good reason for departing from ordinary rule - Second judge exercises sentencing discretion afresh - Ceiling principle a moderating influence on sentence to be imposed - Sentence manifestly excessive - Leave to appeal granted - Appeal allowed - Applicant resentenced.
CRIMINAL LAW - Appeal - Applicant's convictions for rape and sexual assault offences set aside on appeal - Applicant retried and convicted of same offences - Heavier sentence imposed after retrial - Appeal against sentence - 'Ceiling principle' - Ordinary rule that original sentence to be regarded as upper limit of sentence to be imposed after retrial - Policy and fairness considerations underpinning ceiling principle - Whether second sentencing judge must regard first sentence as manifestly inadequate to impose heavier sentence - Second judge must identify good reason for departing from ordinary rule - Second judge exercises sentencing discretion afresh - Ceiling principle a moderating influence on sentence to be imposed - Sentence manifestly excessive - Leave to appeal granted - Appeal allowed - Applicant resentenced.
Sentencing Act 1991, pts 2, 2A.
McL v The Queen (2000) 203 CLR 452; R v Chen [1993] 2 VR 139; R v Macfie [No 2] (2004) 11 VR 215; Director of Public Prosecutions v TY [No 2] (2009) 24 VR 705; Murdoch (a pseudonym) v The Queen (2013) 40 VR 451; DWG v Western Australia [2023] WASCA 133; Morton v The King [2025] SASCA 29, considered.
CRIMINAL LAW - Interlocutory appeal - Admissibility of hearsay evidence - Slavery offence - Deceased complainant - Previous representations by deceased complainant to clinicians, civilians and police - Whether previous representations admissible under exceptions to hearsay rule in criminal proceedings where maker not available - Whether trial judge erroneously reversed the effect of exceptions - Whether probative value of evidence outweighed by unfair prejudice - Leave to appeal granted - Appeal dismissed.
CRIMINAL LAW - Interlocutory appeal - Admissibility of hearsay evidence - Slavery offence - Deceased complainant - Previous representations by deceased complainant to clinicians, civilians and police - Whether previous representations admissible under exceptions to hearsay rule in criminal proceedings where maker not available - Whether trial judge erroneously reversed the effect of exceptions - Whether probative value of evidence outweighed by unfair prejudice - Leave to appeal granted - Appeal dismissed.
Evidence Act 2008, ss 65(2), 66A, 69, 137; Criminal Code Act 1995 (Cth), ss 11.2(1), 270.3(1); Crimes Act 1914 (Cth), s 15YM.
Williams v The Queen (2000) 119 A Crim R 490; Harris v R (2005) 158 A Crim R 454; IMM v The Queen (2016) 257 CLR 300; GLJ v Trustees of the Roman Catholic Church (2023) 97 ALJR 857; R v Kuzmanovic [2005] NSWSC 771; Kannan (Ruling No 13) [2020] VSC 805, referred to.
Conway v The Queen (2000) 98 FCR 204, discussed.
Sio v The Queen (2016) 259 CLR 47; Prasad v The Queen [2019] NSWCCA 272; Moore v The King (2024) 98 ALJR 1119; Moore v The King [2023] VSCA 236; Huici v The King [2023] VSCA 5, applied.
CRIMINAL LAW - Leave to appeal - Sentence - Applicant was the creator, controller, distributor and profit-maker of online game depicting child abuse and incest - Whether sentence for charge of controlling an electronic service used for child abuse material manifestly excessive - Minimum sentence regime - Very serious offending - Early guilty plea and some admissions made to police - Matters personal to offender given less weight in offending of this kind - Open to the trial judge to determine that it was not appropriate to impose a sentence below the statutory minimum in order to recognise the plea of guilty and the applicant's cooperation - Ground of appeal has no prospects of success - Leave refused.
CRIMINAL LAW - Leave to appeal - Sentence - Applicant was the creator, controller, distributor and profit-maker of online game depicting child abuse and incest - Whether sentence for charge of controlling an electronic service used for child abuse material manifestly excessive - Minimum sentence regime - Very serious offending - Early guilty plea and some admissions made to police - Matters personal to offender given less weight in offending of this kind - Open to the trial judge to determine that it was not appropriate to impose a sentence below the statutory minimum in order to recognise the plea of guilty and the applicant's cooperation - Ground of appeal has no prospects of success - Leave refused.
Criminal Code Act 1995 (Cth) s 474.23A(1); Criminal Procedure Act 2009 s 280.
Woodstock v The King [2026] VSCA 187; DPP (Cth) v Garside (2016) 50 VR 800, applied.
CRIMINAL LAW - Leave to appeal - Sentence - Whether sentence for possession of child abuse material manifestly excessive - 17 total images downloaded on 12 discrete dates - Depraved material - Whether sentence of 3 years and 6 months' imprisonment on single charge was outside range open to the trial judge - Trial judge correct to observe that type of material and depravity is primary focus - Consideration of comparable cases - While individual sentence arguably outside range, no reasonable prospect that Court would reduce total effective sentence - Leave refused.
Criminal Code Act 1995 (Cth) s 474.22(1); Crimes Act 1914 (Cth) ss 16AAA, 16AAC.
Crowder (a pseudonym) v The King [2024] VSCA 211; DPP v Latham [2009] TASSC 101; Hutchinson v The King [2022] VSCA 217 ; R v Hutchinson [2018] NSWCCA 152; considered.
CRIMINAL LAW - Leave to appeal - Sentence - Whether trial judge erred by taking into account that presentation of child abuse material in form of online game was an aggravating feature - No error - No breach of procedural fairness - Relevant that game widely available on internet and might be downloaded by children - Ground of appeal has no prospects of success - Leave refused.
Criminal Code Act 1995 (Cth) ss 474.23(1), 474.23A(1).
ADMINISTRATION AND PROBATE - Testator's family maintenance - Discovery - Plaintiff's application for discovery in a Part IV claim under the Administration and Probate Act 1958 (Vic) - Documents sought to support reasoning for estrangement - Whether special circumstances established - Where the documents sought are not relevant to a fact in issue - Application refused.
ADMINISTRATION AND PROBATE - Testator's family maintenance - Discovery - Plaintiff's application for discovery in a Part IV claim under the Administration and Probate Act 1958 (Vic) - Documents sought to support reasoning for estrangement - Whether special circumstances established - Where the documents sought are not relevant to a fact in issue - Application refused.
ADMINISTRATION AND PROBATE - Plaintiff in a Part IV claim under the Administration and Probate Act 1958 (Vic) seeking order for notice prior to any estate distribution - Whether the Court has power to make such order - Where the Defendant submits the order would be oppressive and impede the estate administration - Application refused.
Administration and Probate Act 1958 (Vic); Supreme Court (General Civil Procedure) Rules 2025 (Vic).
Re Castle [2025] VSC 331.
ADMINISTRATION AND PROBATE - Removal of executor and trustee of deceased estate - Order for true and just account of administration - Restitution or compensation for amounts taken from estate - Judgment against former executor and his company - Evidence Act 2008 s 128 - Administration and Probate Act 1958 ss 28, 34(1).
ADMINISTRATION AND PROBATE - Removal of executor and trustee of deceased estate - Order for true and just account of administration - Restitution or compensation for amounts taken from estate - Judgment against former executor and his company - Evidence Act 2008 s 128 - Administration and Probate Act 1958 ss 28, 34(1).
WORKERS COMPENSATION - RECOVERY ACTION - COSTS - Recovery proceeding under s 369 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) - Where claim established against first and second defendants and claim against third defendant previously settled on 'all in' basis - Where the plaintiff seeks order for payment of amount of compensation already paid together with interest only from first defendant and seeks only order for indemnity in respect of future payments from second defendant - Where first defendant would be entitled to contribution in equity from second defendant - Orders made as sought but with liberty to apply - Whether amount ordered to be paid should be reduced by reason of settlement from third defendant - Where no evidence as to apportionment or application of settlement sum - Where plaintiff not entitled to recover more than indemnity and costs - No reduction in amounts referred to in orders but liberty to apply - Albion Insurance Company Ltd v Government Insurance Office of New South Wales (1969) 121 CLR 342 - Friend v Brooker (2009) 239 CLR 129 - VWA v Crestwood Developments Pty Ltd (No. 2) [2014] VSC 513.
WORKERS COMPENSATION - RECOVERY ACTION - COSTS - Recovery proceeding under s 369 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) - Where claim established against first and second defendants and claim against third defendant previously settled on 'all in' basis - Where the plaintiff seeks order for payment of amount of compensation already paid together with interest only from first defendant and seeks only order for indemnity in respect of future payments from second defendant - Where first defendant would be entitled to contribution in equity from second defendant - Orders made as sought but with liberty to apply - Whether amount ordered to be paid should be reduced by reason of settlement from third defendant - Where no evidence as to apportionment or application of settlement sum - Where plaintiff not entitled to recover more than indemnity and costs - No reduction in amounts referred to in orders but liberty to apply - Albion Insurance Company Ltd v Government Insurance Office of New South Wales (1969) 121 CLR 342 - Friend v Brooker (2009) 239 CLR 129 - VWA v Crestwood Developments Pty Ltd (No. 2) [2014] VSC 513.
INTEREST - Where Authority commenced proceedings in County Court well prior to commencement of worker's proceeding - Where proceeding uplifted to Supreme Court following issue of worker's proceeding - Whether good cause shown not to award interest from date of issue - Interest ordered from date of issue in County Court against first defendant and from date of joinder against second defendant - Whether interest of less than full penalty rate should be ordered - Where reasonable not to impose full penalty interest prior to commencement of worker's proceeding - Interest at reduced rate of 7.5% ordered from date of issue to date of issue of worker's proceeding and thereafter at penalty rate - 1Marsh v Ruby [1975] VR 191 - Clarke v Foodland Stores [1993] 2 VR 382 - Supreme Court Act 1986 (Vic) s 60.
WORKERS COMPENSATION - RECOVERY ACTION - Recovery of no-fault benefits paid and indemnity for future payments - Scaffold erected by first defendant for use by second defendant using components supplied by third defendant - Scaffold failed causing labour-hire worker for second defendant to fall through wooden platform and suffer injury in course of employment - Whether first defendant failed adequately to tighten nut on coupler resulting in separation of tubes supporting platform - Whether third defendant supplied coupler unable to be sufficiently tightened due to corrosion - Where scaffold built to insufficient duty rating for works being undertaken - Whether overloading of scaffold also a cause of failure - Whether first defendant and/or second defendants failed adequately to communicate in relation to nature of works being undertaken prior to erection of scaffold - Whether employer breached duty - Where scaffold failed because first defendant failed to tighten nut and because scaffold overloaded - Where coupler not defective due to corrosion - Where both first and second defendants failed to communicate in relation to scaffolding duty rating required - Where labour hire employer failed to inspect premises and safe work method statement - Factor X - Liability apportioned 65% to first defendant, 30% to second defendant and 5% to worker's employer - Third defendant not liable - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 369.
WORKERS COMPENSATION - RECOVERY ACTION - Recovery of no-fault benefits paid and indemnity for future payments - Scaffold erected by first defendant for use by second defendant using components supplied by third defendant - Scaffold failed causing labour-hire worker for second defendant to fall through wooden platform and suffer injury in course of employment - Whether first defendant failed adequately to tighten nut on coupler resulting in separation of tubes supporting platform - Whether third defendant supplied coupler unable to be sufficiently tightened due to corrosion - Where scaffold built to insufficient duty rating for works being undertaken - Whether overloading of scaffold also a cause of failure - Whether first defendant and/or second defendants failed adequately to communicate in relation to nature of works being undertaken prior to erection of scaffold - Whether employer breached duty - Where scaffold failed because first defendant failed to tighten nut and because scaffold overloaded - Where coupler not defective due to corrosion - Where both first and second defendants failed to communicate in relation to scaffolding duty rating required - Where labour hire employer failed to inspect premises and safe work method statement - Factor X - Liability apportioned 65% to first defendant, 30% to second defendant and 5% to worker's employer - Third defendant not liable - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 369.
EQUITABLE CONTRIBUTION - WORKERS' COMPENSATION - RECOVERY ACTION - Recovery proceeding under s 369 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) - Where the plaintiff sought order for payment of amount of compensation already paid together with interest only from first defendant and sought only indemnity in respect of future payments from second defendant - Whether first defendant entitled to equitable contribution from second defendant towards any moneys paid to plaintiff and if so on what basis contribution should be calculated - Where entitled to equitable contribution and (in light of arguments put) apportionment of contribution calculated in this case by reference to factor 'X' of respective parties - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 369 - Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342 - Friend v Brooker (2009) 239 CLR 129 - Lavin v Toppi (2015) 254 CLR 459 - Drayton v Martin (1996) 67 FCR 1 - Burke v LFOT Pty Ltd (2002) 209 CLR 282 - Government Insurance Office (NSW) v Crowley [1975] 2 NSWLR 78 - GRE Insurance v QBE Insurance Ltd [1985] VR 83 - Drayton v Martin (1996) 67 FCR 1.
EQUITABLE CONTRIBUTION - WORKERS' COMPENSATION - RECOVERY ACTION - Recovery proceeding under s 369 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) - Where the plaintiff sought order for payment of amount of compensation already paid together with interest only from first defendant and sought only indemnity in respect of future payments from second defendant - Whether first defendant entitled to equitable contribution from second defendant towards any moneys paid to plaintiff and if so on what basis contribution should be calculated - Where entitled to equitable contribution and (in light of arguments put) apportionment of contribution calculated in this case by reference to factor 'X' of respective parties - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 369 - Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342 - Friend v Brooker (2009) 239 CLR 129 - Lavin v Toppi (2015) 254 CLR 459 - Drayton v Martin (1996) 67 FCR 1 - Burke v LFOT Pty Ltd (2002) 209 CLR 282 - Government Insurance Office (NSW) v Crowley [1975] 2 NSWLR 78 - GRE Insurance v QBE Insurance Ltd [1985] VR 83 - Drayton v Martin (1996) 67 FCR 1.
WILLS - Construction of deceased's will - Where will granted husband the right to reside in property - Where insufficient assets in estate to pay estate liabilities and retain property - Whether property may be sold to satisfy estate liabilities - Section 37 of the Administration and Probate Act 1958 (Vic) - Whether will grants husband a life interest or a mere right to occupy - Royal Melbourne Hospital v Equity Trustee (2007) 18 VR 469 - Whether husband's liability to the estate can be netted off against his entitlement under the will - Harris Health Care Pty Ltd v Hayes (2024) 116 NSWLR 273 - Held: Husband's right is a mere right to reside - Property may be sold to pay estate liabilities - Husband's liability to the estate can be netted off against his entitlement under the will.
WILLS - Construction of deceased's will - Where will granted husband the right to reside in property - Where insufficient assets in estate to pay estate liabilities and retain property - Whether property may be sold to satisfy estate liabilities - Section 37 of the Administration and Probate Act 1958 (Vic) - Whether will grants husband a life interest or a mere right to occupy - Royal Melbourne Hospital v Equity Trustee (2007) 18 VR 469 - Whether husband's liability to the estate can be netted off against his entitlement under the will - Harris Health Care Pty Ltd v Hayes (2024) 116 NSWLR 273 - Held: Husband's right is a mere right to reside - Property may be sold to pay estate liabilities - Husband's liability to the estate can be netted off against his entitlement under the will.
WILLS - Statutory will - Application by daughter for order authorising statutory will for her mother - Mother now lacking testamentary capacity - Prior to losing testamentary capacity mother and daughter were estranged - Mother converted her real property to joint tenancy with her son - Property therefore subject to principle of survivorship and would not form part of mother's estate if she predeceases son - Mother's personal property of relatively minor value - Mother and daughter recently reconciled - Daughter claimed mother intended her property to be shared equally between the two children - Daughter seeks order regarding severance of joint tenancy resulting in tenancy in common and authorisation of new will leaving interest in real property and other items to her - Whether joint tenancy severed - Whether proceeding against son relating to severance of joint tenancy required - Evidence of mother's statements of intention - Whether Court has power under Wills Act 1997 to make order about severance of joint tenancy - Whether test for making a statutory will satisfied - Wills Act 1997 ss 21, 21A, 21B, 22.
WILLS - Statutory will - Application by daughter for order authorising statutory will for her mother - Mother now lacking testamentary capacity - Prior to losing testamentary capacity mother and daughter were estranged - Mother converted her real property to joint tenancy with her son - Property therefore subject to principle of survivorship and would not form part of mother's estate if she predeceases son - Mother's personal property of relatively minor value - Mother and daughter recently reconciled - Daughter claimed mother intended her property to be shared equally between the two children - Daughter seeks order regarding severance of joint tenancy resulting in tenancy in common and authorisation of new will leaving interest in real property and other items to her - Whether joint tenancy severed - Whether proceeding against son relating to severance of joint tenancy required - Evidence of mother's statements of intention - Whether Court has power under Wills Act 1997 to make order about severance of joint tenancy - Whether test for making a statutory will satisfied - Wills Act 1997 ss 21, 21A, 21B, 22.
PRACTICE AND PROCEDURE - Civil Procedure Act 2010 (Vic), ss 62, 63 - Summary judgment application by defendant in judicial review proceeding - Whether proceeding has reasonable prospects of success - Supreme Court (General Civil Procedure) Rules 2025 (Vic), r 23.01 - Summary dismissal - Whether proceeding vexatious or abuse of process.
PRACTICE AND PROCEDURE - Civil Procedure Act 2010 (Vic), ss 62, 63 - Summary judgment application by defendant in judicial review proceeding - Whether proceeding has reasonable prospects of success - Supreme Court (General Civil Procedure) Rules 2025 (Vic), r 23.01 - Summary dismissal - Whether proceeding vexatious or abuse of process.
ADMINISTRATIVE LAW - Judicial review - Supreme Court (General Civil Procedure) Rules 2025 (Vic), Ord 56 - Public Prosecutions Act 1994 (Vic), s 22(1)(b)(ii) - Where private prosecutions taken over by Director of Public Prosecutions and charges withdrawn - Where plaintiff seeks review of decision to withdraw charges - Extent of supervisory jurisdiction of Supreme Court - Prosecutorial discretion insusceptible to judicial review - Maxwell v The Queen (1996) 184 CLR 501 and Likiardopoulos v The Queen (2012) 247 CLR 265, followed - Where plaintiff seeks review of decision of Magistrate to strike out charges after withdrawn - Where no obligation to afford procedural fairness to a plaintiff as a non-party after private prosecution taken over by Director.
PRACTICE AND PROCEDURE - Summonses - Application by defendants for stay of proceedings pending determination of related proceeding under the Vexatious Proceedings Act 2014 (Vic) - Judgment reserved in related proceeding subject of extended litigation restraint orders - Application by plaintiff for declaratory relief and for dismissal of defendants' application - Principles - Overarching purposes of the Civil Procedure Act 2010 (Vic) - Held: Appropriate to make orders temporarily staying proceedings pending determination of related proceeding.
PRACTICE AND PROCEDURE - Summonses - Application by defendants for stay of proceedings pending determination of related proceeding under the Vexatious Proceedings Act 2014 (Vic) - Judgment reserved in related proceeding subject of extended litigation restraint orders - Application by plaintiff for declaratory relief and for dismissal of defendants' application - Principles - Overarching purposes of the Civil Procedure Act 2010 (Vic) - Held: Appropriate to make orders temporarily staying proceedings pending determination of related proceeding.
JUDICIAL REVIEW - Claim for declaratory relief - USB storage device and contents list sent to prisoner by Victoria Legal Aid without prior approval - Whether decision to return the envelope unopened to the sender contravened the prisoner's rights - Whether power to censor part of letter enlivened - Whether declaratory relief should be refused on discretionary grounds - Application dismissed - Corrections Act 1986 (Vic) ss 47, 47A, 47B, 47C and 47D; Corrections Regulations 2019 (Vic) regs 5, 17, 18, 19 and 57; Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 7, 13 and 15 - Minogue v Dougherty [2017] VSC 724 distinguished; Thompson v Minogue (2021) 67 VR 301; HJ v Independent Broad- Based Anti-Corruption Commission (2021) 64 VR 270 applied.
JUDICIAL REVIEW - Claim for declaratory relief - USB storage device and contents list sent to prisoner by Victoria Legal Aid without prior approval - Whether decision to return the envelope unopened to the sender contravened the prisoner's rights - Whether power to censor part of letter enlivened - Whether declaratory relief should be refused on discretionary grounds - Application dismissed - Corrections Act 1986 (Vic) ss 47, 47A, 47B, 47C and 47D; Corrections Regulations 2019 (Vic) regs 5, 17, 18, 19 and 57; Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 7, 13 and 15 - Minogue v Dougherty [2017] VSC 724 distinguished; Thompson v Minogue (2021) 67 VR 301; HJ v Independent Broad- Based Anti-Corruption Commission (2021) 64 VR 270 applied.
COSTS - Whether parties to bear own costs - Finding that usual rule that costs follow the event applies - Whether non-party costs order should be made against sole director and guiding mind of corporate trustee - Director was real party to litigation - Appropriate to make non-party costs order - Whether costs to be awarded on standard or indemnity basis - Where director has serious medical issues but no appearance of any kind by trustee at trial - Appropriate to award standard costs - Whether corporate trustee not entitled to recover costs from trust assets - Not appropriate to determine the question of indemnity in this proceeding.
COSTS - Whether parties to bear own costs - Finding that usual rule that costs follow the event applies - Whether non-party costs order should be made against sole director and guiding mind of corporate trustee - Director was real party to litigation - Appropriate to make non-party costs order - Whether costs to be awarded on standard or indemnity basis - Where director has serious medical issues but no appearance of any kind by trustee at trial - Appropriate to award standard costs - Whether corporate trustee not entitled to recover costs from trust assets - Not appropriate to determine the question of indemnity in this proceeding.
GTW Investments (Aust) Pty Ltd v Pacreef Investments Pty Ltd (in liq) [2026] VSCA 90, applied.
COSTS - No good reason to depart from usual rule that costs follow the event - Application for gross sum costs order - Where gross sum sought is modest and fraction of defendant's actual costs - Where no confidence that process of taxation would bring finality to issue of costs - Gross sum costs order logical, fair and reasonable - Application granted.
COSTS - No good reason to depart from usual rule that costs follow the event - Application for gross sum costs order - Where gross sum sought is modest and fraction of defendant's actual costs - Where no confidence that process of taxation would bring finality to issue of costs - Gross sum costs order logical, fair and reasonable - Application granted.
PRACTICE AND PROCEDURE - Application for leave to discontinue proceeding - Where application made after order giving summary judgment - Leave refused.
PROPERTY - Caveats - Where first defendant registered proprietor of property - Where plaintiff awarded share of proceeds on sale of property by Family Court - Where second defendant and third defendant lodged caveats based on security interests arising under alleged loan agreements by which they lent money to first defendant or paid for renovations or mortgage - Whether loan agreements were genuine and whether terms of any loans included security interests over property - Where third defendant withdrew claims in the course of cross-examination - Where witnesses to signatures to last two agreements not called - Where person said to have prepared the agreements not called and no metadata provided - Where discrepancy between the alleged original documents produced during trial and copies earlier provided - Where execution pages on different paper to body of agreements - Where loan agreements had not been produced by first defendant in Family Court proceeding - Where some moneys had been advanced but terms of any loan agreements not established - No finding of secured interests - Where advances do not give rise to interest under resulting trust - Order for removal of caveats - Transfer of Land Act 1958, s 90(3) - Jones v Dunkel (1959) 101 CLR 2 - Calverley v Green (1984) 155 CLR 242 - Stephenson Nominees Pty Ltd v Official Receiver (1987) 16 FCR 536.
PROPERTY - Caveats - Where first defendant registered proprietor of property - Where plaintiff awarded share of proceeds on sale of property by Family Court - Where second defendant and third defendant lodged caveats based on security interests arising under alleged loan agreements by which they lent money to first defendant or paid for renovations or mortgage - Whether loan agreements were genuine and whether terms of any loans included security interests over property - Where third defendant withdrew claims in the course of cross-examination - Where witnesses to signatures to last two agreements not called - Where person said to have prepared the agreements not called and no metadata provided - Where discrepancy between the alleged original documents produced during trial and copies earlier provided - Where execution pages on different paper to body of agreements - Where loan agreements had not been produced by first defendant in Family Court proceeding - Where some moneys had been advanced but terms of any loan agreements not established - No finding of secured interests - Where advances do not give rise to interest under resulting trust - Order for removal of caveats - Transfer of Land Act 1958, s 90(3) - Jones v Dunkel (1959) 101 CLR 2 - Calverley v Green (1984) 155 CLR 242 - Stephenson Nominees Pty Ltd v Official Receiver (1987) 16 FCR 536.
APPEAL - Appeal from judgment and orders of Magistrates' Court - Whether Magistrate erred in law - Self-represented litigant - Further amended notice of appeal asserts nine grounds of appeal and eight questions of law - Judicial review - Whether appellant has identified any errors of law - Whether appellant has identified denial of procedural fairness - Whether appellant denied reasonable opportunity to present case - Consideration - Sufficiency of evidence - Adequacy of reasons - No practical injustice established - No errors of law established - Grounds of appeal unsuccessful - Appeal dismissed - Magistrates' Court Act 1989 (Vic), s 109.
APPEAL - Appeal from judgment and orders of Magistrates' Court - Whether Magistrate erred in law - Self-represented litigant - Further amended notice of appeal asserts nine grounds of appeal and eight questions of law - Judicial review - Whether appellant has identified any errors of law - Whether appellant has identified denial of procedural fairness - Whether appellant denied reasonable opportunity to present case - Consideration - Sufficiency of evidence - Adequacy of reasons - No practical injustice established - No errors of law established - Grounds of appeal unsuccessful - Appeal dismissed - Magistrates' Court Act 1989 (Vic), s 109.
BIAS - Reasonable apprehension of bias - Whether Magistrate's conduct of hearing gave rise to reasonable apprehension of bias - Double might test - Whether excessive interventions or asymmetric treatment of witnesses - No reasonable apprehension of bias established.
FIDUCIARY DUTY - Solicitor and client - Whether solicitor's retainer and fiduciary obligations continued after notice of intention to cease to act - Distinction between solicitor on the Court record and obligations under retainer - No breach of fiduciary duty established.
LEGAL PROFESSION UNIFORM LAW - Legal Profession Uniform Law (Vic), ss 172, 174, 178, 185, 194 - Costs disclosure obligations - Fair and reasonable costs - Whether alleged breaches open on pleaded case - Matters not pleaded before Magistrate - Whether appellant confined to pleaded case on appeal.
STATUTES INTERPRETATION - Proper construction of the Building Act 1993 (Vic) - Emergency orders made pursuant to s 102 of the Building Act - Emergency order not served in a manner specified in s 236 of the Building Act - Concession by council that order not served for the purposes of s 105(2) of the Building Act - Whether failure to serve under s 105(2) led to subsequent action being unauthorised under the Building Act and unlawful acts of trespass - Building Act ss 102, 105, 121, 228J, 236 - Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
STATUTES INTERPRETATION - Proper construction of the Building Act 1993 (Vic) - Emergency orders made pursuant to s 102 of the Building Act - Emergency order not served in a manner specified in s 236 of the Building Act - Concession by council that order not served for the purposes of s 105(2) of the Building Act - Whether failure to serve under s 105(2) led to subsequent action being unauthorised under the Building Act and unlawful acts of trespass - Building Act ss 102, 105, 121, 228J, 236 - Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
TORT - Trespass affecting land - Where alleged trespass consisted of entry onto land and works - Where entry was authorised by Building Act s 228J but works were not - Whether proof of damage was an element of the tort alleged in relation to works - Whether trespass in the form of deliberate interference with structures on land actionable per se.
DAMAGES - Tort affecting land - Trespass to structures on land owned by plaintiff - Council officer undertook demolition and works to make property safe without lawful authority - No loss or damage established by the plaintiff - No evidence of diminution of market value - No evidence to support assertion that plaintiff would reinstate property - Plaintiff's application for interlocutory injunction to restrain sale of property under warrant unsuccessful - Judicial notice of result of outcome of related litigation in which plaintiff unsuccessfully sought to restrain seizure and sale of same property - Whether an award of aggravated or exemplary damages appropriate - Actions by council officer to make property safe came after other attempts to have plaintiff attend to the property to prevent risks to public safety - Plaintiff on reasonable notice of need to take action - Plaintiff's subjective distress insufficient to justify aggravated damages - Council bore costs of works itself - Works benefitted plaintiff by saving him incurring costs of works that were necessary to prevent imminent risks to public safety - Council officer's knowledge about instructions to process server and inferred belief of service being effected - Overall conduct of council reasonable and not contumelious - Whether conduct which is allegedly in breach of the Charter of Human Rights and Responsibilities Act 2006 (Vic) relevant to question of aggravated or exemplary damages - Not appropriate to award aggravated or exemplary damages - Because trespass in the form of interference with the structures on the land was actionable per se, nominal damages of one dollar awarded.
DECLARATION - Declaration that plaintiff and estate 'not liable at law for any non-compliance with the second emergency order' included in claim for final relief - Unclear if there would be any practical foreseeable consequences for parties - Not appropriate to make declaration.
INJUNCTION - Injunctions to restrain enforcement of warrants of seizure and sale of property included in claim for final relief - Interlocutory injunction previously dismissed - Basis of claim for injunctions as final relief not explained - Injunctions futile.
HUMAN RIGHTS - Charter of Human Rights and Responsibilities Act 2006 (Vic) - No challenge to lawfulness of decision to make second emergency order raised in proceeding - Charter questions related to carrying out works in second emergency order before valid service of order had occurred - Whether decision-maker gave proper consideration to plaintiff's human rights in making decision to carry out works in second emergency order - Whether carrying out works in second emergency order was incompatible with plaintiff's human rights - Whether carrying out works in second emergency order deprived plaintiff of property otherwise than in accordance with law within the meaning of s 20 of the Charter - Potential relevance of authorised person's belief that service had occurred - Where acts said to have been in breach of the Charter rendered certain litigious claims nugatory - Court satisfied on other grounds that council officer's entry onto land was lawful and that officer's demolition and other works were unlawful - Unnecessary to determine whether works were also unlawful by reason of the Charter - Unavailability of damages - Charter of Human Rights and Responsibilities Act ss 4, 7, 20, 38(1), 39(1) and (3).
PRIVATE INTERNATIONAL LAW - Jurisdiction - Sovereign Immunity - Whether second defendant is a head of state - Exception - Proceedings concerning claim in negligence for failure to prevent sexual abuse by priest in Archdiocese of Melbourne - Whether immunity extends to impugned activities - Whether there has been submission to jurisdiction - Foreign State Immunities Act 1985 (Cth) ss 3, 7, 9, 10, 13, 36 - Diplomatic Privileges and Immunities Act 1967 (Cth) - Vienna Convention on Diplomatic Immunity - Common law - Australian Federation of Islamic Councils v Westpac Banking Corporation (1988) 17 NSWLR 623 - Thor Shipping A/S v The Ship Al Duhail (2008) 173 FCR 524 - Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ Rep 3 - Wilkins v Jenning (1985) Aust Torts Reports 80-754 - Zhang v Zemin (2010) 79 NSWLR 513 - Kingdom of Spain v Infrastructure Services Luxembourg Sàrl (2023) 275 CLR 292 - Holy See is a state under Foreign State Immunities Act 1985 - Common law immunity applies - Immunity from jurisdiction established - No submission to jurisdiction.
PRIVATE INTERNATIONAL LAW - Jurisdiction - Sovereign Immunity - Whether second defendant is a head of state - Exception - Proceedings concerning claim in negligence for failure to prevent sexual abuse by priest in Archdiocese of Melbourne - Whether immunity extends to impugned activities - Whether there has been submission to jurisdiction - Foreign State Immunities Act 1985 (Cth) ss 3, 7, 9, 10, 13, 36 - Diplomatic Privileges and Immunities Act 1967 (Cth) - Vienna Convention on Diplomatic Immunity - Common law - Australian Federation of Islamic Councils v Westpac Banking Corporation (1988) 17 NSWLR 623 - Thor Shipping A/S v The Ship Al Duhail (2008) 173 FCR 524 - Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ Rep 3 - Wilkins v Jenning (1985) Aust Torts Reports 80-754 - Zhang v Zemin (2010) 79 NSWLR 513 - Kingdom of Spain v Infrastructure Services Luxembourg Sàrl (2023) 275 CLR 292 - Holy See is a state under Foreign State Immunities Act 1985 - Common law immunity applies - Immunity from jurisdiction established - No submission to jurisdiction.
OWNERS CORPORATIONS - Apartment building on land affected by owners corporation - Apartments constituting individual lots - Water ingress arising from areas of external balcony to an apartment - Whether floor of balcony lot property or common property - Interpretation of plan of subdivision and notations on plan of subdivision - Where boundaries constituted by buildings - Where location of relevant boundary is 'interior face' - Meaning of 'interior face'.
OWNERS CORPORATIONS - Apartment building on land affected by owners corporation - Apartments constituting individual lots - Water ingress arising from areas of external balcony to an apartment - Whether floor of balcony lot property or common property - Interpretation of plan of subdivision and notations on plan of subdivision - Where boundaries constituted by buildings - Where location of relevant boundary is 'interior face' - Meaning of 'interior face'.
Owners Corporation Act 2006 (Vic) ss 4(b), 46, 47, 48, 49, 129 - Owners Corporation Regulations 2018 (Vic) - Subdivision (Procedures) Regulations 2000 (Vic) - Subdivision (Registrar's Requirements) Regulations 2011 (Vic) - Subdivision (Registrar's Requirements) Regulations 2021 (Vic).
EVIDENCE - Business records - Communications from the Shenzhen Wills Service Centre and Shenzhen Notary Office - Whether communications admissible as business records under s 69 of the Evidence Act 2008 (Vic) - Whether communications are hearsay - Whether representations in communications are made by persons having personal knowledge of asserted facts - Whether representations obtained for purpose of Australian legal proceedings - Whether s 64 of the Evidence Act 2008 (Vic) applies - Whether communications should be excluded as unfairly prejudicial under s 135 of the Evidence Act 2008 (Vic) - Lancaster v The Queen (2014) 44 VR 820, applied - Zhang v Zhao (No 3) [2025] VSC 810, applied - Lei v Lei (Ruling No 1) (2016) 50 VR 409, applied.
EVIDENCE - Business records - Communications from the Shenzhen Wills Service Centre and Shenzhen Notary Office - Whether communications admissible as business records under s 69 of the Evidence Act 2008 (Vic) - Whether communications are hearsay - Whether representations in communications are made by persons having personal knowledge of asserted facts - Whether representations obtained for purpose of Australian legal proceedings - Whether s 64 of the Evidence Act 2008 (Vic) applies - Whether communications should be excluded as unfairly prejudicial under s 135 of the Evidence Act 2008 (Vic) - Lancaster v The Queen (2014) 44 VR 820, applied - Zhang v Zhao (No 3) [2025] VSC 810, applied - Lei v Lei (Ruling No 1) (2016) 50 VR 409, applied.
ADMINISTRATIVE LAW - Judicial review - Whether Secretary required to accord procedural fairness in determining whether to impose a ban under s 43(1A) Corrections Act 1986 (Vic) on prisoner's mother and grandmother from visiting all prisons - Where AS v Secretary to the Department of Justice and Regulation [2017] VSC 310 not clearly wrong or inconsistent with later cases and determined plaintiffs' interest attracted obligation on Secretary to accord procedural fairness - Whether sufficient disclosure by Secretary to enable opportunity to be heard - Where Secretary accorded procedural fairness - Whether decision legally unreasonable by absence of intelligible reasoning process - Whether decision to ban 'video visits' authorised by s 43(1A) - Where s 43(1A) does not authorise bans of video visits - Corrections Act 1986 (Vic), ss 37, 43(1A) - Kioa v West (1985) 159 CLR 550 - Disorganized Developments Pty Ltd v South Australia (2023) 280 CLR 515 - Badari v Minister for Territory Families and Urban Housing (2025) 100 ALJR 30 - Mpwerempwer Aboriginal Corporation RNTBC v Minister for Territory Families and Urban Housing as delegate of the Minister for the Environment [2026] HCA 23.
ADMINISTRATIVE LAW - Judicial review - Whether Secretary required to accord procedural fairness in determining whether to impose a ban under s 43(1A) Corrections Act 1986 (Vic) on prisoner's mother and grandmother from visiting all prisons - Where AS v Secretary to the Department of Justice and Regulation [2017] VSC 310 not clearly wrong or inconsistent with later cases and determined plaintiffs' interest attracted obligation on Secretary to accord procedural fairness - Whether sufficient disclosure by Secretary to enable opportunity to be heard - Where Secretary accorded procedural fairness - Whether decision legally unreasonable by absence of intelligible reasoning process - Whether decision to ban 'video visits' authorised by s 43(1A) - Where s 43(1A) does not authorise bans of video visits - Corrections Act 1986 (Vic), ss 37, 43(1A) - Kioa v West (1985) 159 CLR 550 - Disorganized Developments Pty Ltd v South Australia (2023) 280 CLR 515 - Badari v Minister for Territory Families and Urban Housing (2025) 100 ALJR 30 - Mpwerempwer Aboriginal Corporation RNTBC v Minister for Territory Families and Urban Housing as delegate of the Minister for the Environment [2026] HCA 23.
HUMAN RIGHTS - Whether Secretary acted incompatibly with right to family or right to family protection under ss 13(a) and s 17(1) of Charter of Human Rights and Responsibilities Act 2006 (Vic) - Where interference with rights under s 13(a) not arbitrary - Where s 17(1) does not give rise to right limited by visit ban - Whether Secretary failed to give proper consideration to plaintiffs' rights - Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2), 13, 17, 38 - Thompson v Minogue (2021) 67 VR 301 - Charisiou v The King [2025] VSCA 277.
PUBLIC LAW - Application for renewal of supervision order - Renewed supervision order sought for five years with two-and-a-half-year review period and numerous conditions - Whether respondent poses unacceptable risk of committing "serious violence offence" if supervision order not renewed and if in community - Renewal of order not opposed by respondent - But respondent opposes proposed duration of order and continuation of conditions concerning electronic monitoring of whereabouts and alcohol consumption - Whether court has discretion as to duration of renewed order, notwithstanding person will pose unacceptable risk for longer period - Whether discretion as to period informed by risk of dashing hopes and thereby thwarting goal of community protection - Whether proposed electronic monitoring conditions reduce risk of re-offending - Whether those proposed conditions constitute minimum interference with liberty, privacy or freedom of movement necessary to ensure purpose of conditions and reasonably related to gravity of risk of re-offending - Renewed order made for three years with review in 18 months - Proposed conditions concerning electronic monitoring of whereabouts and alcohol consumption not renewed - *Serious Offenders Act *2008 (Vic), ss 3, 5, 8, 13, 14, 19, 22, 24, 27, 31, 34, 35, 36, 37, 38, 106, 273, 279 & 280; Crimes Act 1958 (Vic), ss 16 & 17.
PUBLIC LAW - Application for renewal of supervision order - Renewed supervision order sought for five years with two-and-a-half-year review period and numerous conditions - Whether respondent poses unacceptable risk of committing "serious violence offence" if supervision order not renewed and if in community - Renewal of order not opposed by respondent - But respondent opposes proposed duration of order and continuation of conditions concerning electronic monitoring of whereabouts and alcohol consumption - Whether court has discretion as to duration of renewed order, notwithstanding person will pose unacceptable risk for longer period - Whether discretion as to period informed by risk of dashing hopes and thereby thwarting goal of community protection - Whether proposed electronic monitoring conditions reduce risk of re-offending - Whether those proposed conditions constitute minimum interference with liberty, privacy or freedom of movement necessary to ensure purpose of conditions and reasonably related to gravity of risk of re-offending - Renewed order made for three years with review in 18 months - Proposed conditions concerning electronic monitoring of whereabouts and alcohol consumption not renewed - *Serious Offenders Act *2008 (Vic), ss 3, 5, 8, 13, 14, 19, 22, 24, 27, 31, 34, 35, 36, 37, 38, 106, 273, 279 & 280; Crimes Act 1958 (Vic), ss 16 & 17.
CRIMINAL LAW - Application for bail - Charged with armed robbery - Matter resolved with plea of guilty to one charge of robbery - Prima facie entitled to bail - Diagnosis of intellectual disability - Substance abuse - Extensive criminal history - Previous non-compliance with bail - Full-time residential rehabilitation program available - Whether applicant an unacceptable risk - Applicant not an unacceptable risk - Bail granted - Bail Act 1977 (Vic), ss 1B, 3AAA, 3A, 4AA, 4A, 4D, 4E, 5AAA.
CRIMINAL LAW - Application for bail - Charged with armed robbery - Matter resolved with plea of guilty to one charge of robbery - Prima facie entitled to bail - Diagnosis of intellectual disability - Substance abuse - Extensive criminal history - Previous non-compliance with bail - Full-time residential rehabilitation program available - Whether applicant an unacceptable risk - Applicant not an unacceptable risk - Bail granted - Bail Act 1977 (Vic), ss 1B, 3AAA, 3A, 4AA, 4A, 4D, 4E, 5AAA.
CRIMINAL LAW - Sentence - Murder - Standard sentence offence - Strangulation - Victim assaulted in own home - Plea of guilty at earliest opportunity - Traumatic upbringing - Childhood sexual abuse - Significant mental health issues - Intoxication at time of offending - Good prospects of rehabilitation - Sentenced to 24 years' imprisonment - Non-parole period of 17 years - R v Verdins (2007) 16 VR 269 - Bugmy v The Queen (2013) 249 CLR 571 - Sentencing Act 1991 (Vic), ss 5A(1)(b), 5(3).
CRIMINAL LAW - Sentence - Murder - Standard sentence offence - Strangulation - Victim assaulted in own home - Plea of guilty at earliest opportunity - Traumatic upbringing - Childhood sexual abuse - Significant mental health issues - Intoxication at time of offending - Good prospects of rehabilitation - Sentenced to 24 years' imprisonment - Non-parole period of 17 years - R v Verdins (2007) 16 VR 269 - Bugmy v The Queen (2013) 249 CLR 571 - Sentencing Act 1991 (Vic), ss 5A(1)(b), 5(3).
CRIMINAL LAW - Sentencing - Contravention of 12-month community correction order ("CCO") with special conditions requiring 200 hours of community work, supervision, non-association, treatment and rehabilitation - CCO imposed two years ago upon plea of guilty to assist offender (re manslaughter) committed four years ago - Sentenced at same time to 203 days' imprisonment (time served) for related kidnapping - Contravention of CCO constituted by multiple failures to attend community work and by further offending - Released in February after six-month prison sentence for latter offending - Completed 43 hours of community work and all other conditions of CCO - Aged 19 at time of original offending, 23 now - Plea of guilty - No prior convictions before original offending - No longer mixes with co-accused - Studying full-time at university - Well supported by family - Youth - Delay - Totality - Whether parity with (child) co-offender on original offending relevant to re-sentencing - Risk of contamination if placed on fresh CCO with work hours - Importance of rehabilitation - Convicted and fined $500 for contravention of CCO - Resentenced on assist offender to adjourned undertaking to be of good behaviour for 12 months, with conviction - Sentencing Act 1991 (Vic), ss 75, 82AC, 83AD, 83AS & 83AT; Crimes Act 1958 (Vic), ss 320 & 325.
CRIMINAL LAW - Sentencing - Contravention of 12-month community correction order ("CCO") with special conditions requiring 200 hours of community work, supervision, non-association, treatment and rehabilitation - CCO imposed two years ago upon plea of guilty to assist offender (re manslaughter) committed four years ago - Sentenced at same time to 203 days' imprisonment (time served) for related kidnapping - Contravention of CCO constituted by multiple failures to attend community work and by further offending - Released in February after six-month prison sentence for latter offending - Completed 43 hours of community work and all other conditions of CCO - Aged 19 at time of original offending, 23 now - Plea of guilty - No prior convictions before original offending - No longer mixes with co-accused - Studying full-time at university - Well supported by family - Youth - Delay - Totality - Whether parity with (child) co-offender on original offending relevant to re-sentencing - Risk of contamination if placed on fresh CCO with work hours - Importance of rehabilitation - Convicted and fined $500 for contravention of CCO - Resentenced on assist offender to adjourned undertaking to be of good behaviour for 12 months, with conviction - Sentencing Act 1991 (Vic), ss 75, 82AC, 83AD, 83AS & 83AT; Crimes Act 1958 (Vic), ss 320 & 325.
REVIEW OF JUDICIAL REGISTRAR DECISION - Summons - Amended statement of claim - Joinder of third defendant - Review of judicial registrar decision - Whether leave should be granted to amend pleadings - Whether leave should be granted to withdraw estoppel claim - Whether leave should be granted to join third defendant.
REVIEW OF JUDICIAL REGISTRAR DECISION - Summons - Amended statement of claim - Joinder of third defendant - Review of judicial registrar decision - Whether leave should be granted to amend pleadings - Whether leave should be granted to withdraw estoppel claim - Whether leave should be granted to join third defendant.
CONTRACTS - EQUITY - Guarantees - Whether guarantor personally liable for debts owing by company at time of liquidation - Guarantor charged all property and assets as security for company's obligations - Whether plaintiffs entitled to enforce equitable charge through judicial sale notwithstanding guarantor's bankruptcy - Morris Finance Ltd v Brown & Ors applied - Whether Court can determine the debt owing and grant declaratory relief in such proceedings - Determination a necessary incident of Court's consideration in ordering judicial sale - Declaratory relief ancillary to judicial sale - The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) (No 2) considered.
CONTRACTS - EQUITY - Guarantees - Whether guarantor personally liable for debts owing by company at time of liquidation - Guarantor charged all property and assets as security for company's obligations - Whether plaintiffs entitled to enforce equitable charge through judicial sale notwithstanding guarantor's bankruptcy - Morris Finance Ltd v Brown & Ors applied - Whether Court can determine the debt owing and grant declaratory relief in such proceedings - Determination a necessary incident of Court's consideration in ordering judicial sale - Declaratory relief ancillary to judicial sale - The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) (No 2) considered.