CONSTITUTIONAL LAW (Cth) - Judicial power of Commonwealth - Where resident of Tasmania sought administrative review of decisions made on behalf of Commissioner of New South Wales Police Force - Where New South Wales Civil and Administrative Tribunal ("Tribunal") made order under s 55(2)(a) of Privacy and Personal Information Protection Act 1998 (NSW) - Where order that public sector agency pay applicant damages by way of compensation for any loss or damage suffered as a result of conduct in contravention of information protection principle - Where Tribunal not "court of a State" within meaning of ss 77(ii) and (iii) of Constitution - Where State Parliament lacks legislative capacity to confer on State tribunal that is not court of a State judicial power with respect to any matter in s 75 or s 76 of Constitution - Where s 75(iv) of Constitution refers to "matters ... between a State and a resident of another State" - Whether Tribunal exercised judicial power - Whether Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 distinguishable.
CONSTITUTIONAL LAW (Cth) - Judicial power of Commonwealth - Where resident of Tasmania sought administrative review of decisions made on behalf of Commissioner of New South Wales Police Force - Where New South Wales Civil and Administrative Tribunal ("Tribunal") made order under s 55(2)(a) of Privacy and Personal Information Protection Act 1998 (NSW) - Where order that public sector agency pay applicant damages by way of compensation for any loss or damage suffered as a result of conduct in contravention of information protection principle - Where Tribunal not "court of a State" within meaning of ss 77(ii) and (iii) of Constitution - Where State Parliament lacks legislative capacity to confer on State tribunal that is not court of a State judicial power with respect to any matter in s 75 or s 76 of Constitution - Where s 75(iv) of Constitution refers to "matters ... between a State and a resident of another State" - Whether Tribunal exercised judicial power - Whether Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 distinguishable.
WORDS AND PHRASES - "administrative power", "administrative review", "administrative standards", "administratively reviewable decision", "certificate", "compensation", "correct and preferable", "court", "damages", "distinguishable", "information protection principles", "internal review", "judgment", "judicial decision", "judicial power", "jurisdiction", "legislative capacity", "loss or damage", "matter", "non-judicial", "norm of conduct", "order", "privacy codes of practice", "public sector agency", "resident of another State", "tribunal".
Constitution, ss 75, 76, 77(ii), 77(iii).
Administrative Decisions Review Act 1997 (NSW), ss 6, 7, 8, 9, 53, 63, 64, 66.
Civil and Administrative Tribunal Act 2013 (NSW), ss 13, 27(1)(a), 38, 72, 78.
Privacy and Personal Information Protection Act 1998 (NSW), ss 3(1), 8-19, 21, 29, 30, 32, 52, 53, 55(1), 55(2)(a), 55(3), 55(4A), 69.
CONSTITUTIONAL LAW (Cth) - Judicial power of Commonwealth - Where s 44(1) of Administrative Appeals Tribunal Act 1975 (Cth) ("Act") provided party to certain proceedings before Administrative Appeals Tribunal ("Tribunal") may appeal to Federal Court of Australia on question of law from decision of Tribunal - Where s 46(2) of Act provided that if certificate in force certifying disclosure of matter contained in document would be contrary to public interest Federal Court must do all things necessary to ensure matter not disclosed to any person other than member of court as constituted for purposes of proceeding - Where in accordance with s 39B of Act such certificate included certificate issued by "ASIO Minister" certifying disclosure of matter would be contrary to public interest because it would prejudice security or defence or international relations of Australia - Where plaintiff sought declaration that s 46(2) of Act invalid on ground it infringes Ch III of the Constitution - Where earlier decision of High Court in SDCV v Director-General of Security (2022) 277 CLR 241 held s 46(2) of Act valid - Whether s 46(2) invalid because it required Federal Court to depart from "general rule" of procedural fairness more than reasonably necessary to protect compelling and legitimate public interest - Whether SDCV authority to contrary - Whether leave to re-open and overrule SDCV should be granted.
CONSTITUTIONAL LAW (Cth) - Judicial power of Commonwealth - Where s 44(1) of Administrative Appeals Tribunal Act 1975 (Cth) ("Act") provided party to certain proceedings before Administrative Appeals Tribunal ("Tribunal") may appeal to Federal Court of Australia on question of law from decision of Tribunal - Where s 46(2) of Act provided that if certificate in force certifying disclosure of matter contained in document would be contrary to public interest Federal Court must do all things necessary to ensure matter not disclosed to any person other than member of court as constituted for purposes of proceeding - Where in accordance with s 39B of Act such certificate included certificate issued by "ASIO Minister" certifying disclosure of matter would be contrary to public interest because it would prejudice security or defence or international relations of Australia - Where plaintiff sought declaration that s 46(2) of Act invalid on ground it infringes Ch III of the Constitution - Where earlier decision of High Court in SDCV v Director-General of Security (2022) 277 CLR 241 held s 46(2) of Act valid - Whether s 46(2) invalid because it required Federal Court to depart from "general rule" of procedural fairness more than reasonably necessary to protect compelling and legitimate public interest - Whether SDCV authority to contrary - Whether leave to re-open and overrule SDCV should be granted.
WORDS AND PHRASES - "adverse evidence", "ASIO", "certificate", "certified matter", "defence", "disclosure", "essential characteristic of a court", "forensic advantage", "heavy persuasive burden", "international relations", "practical injustice", "procedural fairness", "proportionality", "public interest immunity", "ratio decidendi", "reasonably necessary to protect a compelling and legitimate public interest", "security assessment", "special advocate".
Constitution, Ch III.
Administrative Appeals Tribunal Act 1975 (Cth), ss 39A, 39B, 44, 46.
PRACTICE AND PROCEDURE - Representative action - Orders - Where s 33V(2) of Federal Court of Australia Act 1976 (Cth) provides that in representative proceedings Federal Court may make such orders as are just with respect to distribution of any money paid under settlement or paid into Court - Where s 33Z(1)(g) of Federal Court of Australia Act provides Court may in determining matter in representative proceeding make such other order as Court thinks just - Where s 183 of Legal Profession Uniform Law (NSW) provides law practice must not enter into costs agreement under which amount payable is calculated by reference to amount of any award or settlement - Where applicants in representative proceeding proposed to provide notice of intention to seek common fund order in favour of law practice at settlement or judgment - Where costs agreements to be amended to provide for common fund order in favour of law practice if notice approved - Whether s 33V or s 33Z of Federal Court of Australia Act empowers Federal Court to make common fund order at settlement or judgment in favour of law practice.
PRACTICE AND PROCEDURE - Representative action - Orders - Where s 33V(2) of Federal Court of Australia Act 1976 (Cth) provides that in representative proceedings Federal Court may make such orders as are just with respect to distribution of any money paid under settlement or paid into Court - Where s 33Z(1)(g) of Federal Court of Australia Act provides Court may in determining matter in representative proceeding make such other order as Court thinks just - Where s 183 of Legal Profession Uniform Law (NSW) provides law practice must not enter into costs agreement under which amount payable is calculated by reference to amount of any award or settlement - Where applicants in representative proceeding proposed to provide notice of intention to seek common fund order in favour of law practice at settlement or judgment - Where costs agreements to be amended to provide for common fund order in favour of law practice if notice approved - Whether s 33V or s 33Z of Federal Court of Australia Act empowers Federal Court to make common fund order at settlement or judgment in favour of law practice.
WORDS AND PHRASES - "commencement CFO", "common fund order", "concept of justice", "contingency fee", "costs agreement", "distribution", "federal jurisdiction", "funding commission", "funding equalisation order", "group costs order", "just", "legal costs", "litigation funding", "new legal rights", "payment for costs and disbursements", "regulation of the legal profession", "remuneration for risk", "representative proceeding", "requirements of State law", "settlement CFO", "solicitors' CFO", "solicitors' common fund order".
Federal Court of Australia Act 1976 (Cth), Pt IVA, ss 33J, 33V, 33Z, 33ZF, 33ZJ.
Legal Profession Uniform Law (NSW), ss 3, 6, 169, 172, 179, 180, 181, 182, 183, 185.
INDUSTRIAL LAW (Cth) - Unfair dismissal - Genuine redundancy - Where employer dismissed employees because of changes in operational requirements of employer's enterprise - Where employer continued to deploy contractors to perform work in employer's enterprise - Where s 389(2) of Fair Work Act 2009 (Cth) provides dismissal not genuine redundancy if it would have been reasonable in all circumstances for person to be redeployed within employer's enterprise - Whether Fair Work Commission, in undertaking s 389(2) inquiry, permitted to inquire into whether employer could have made changes to its enterprise to create or make available position for otherwise redundant employee.
INDUSTRIAL LAW (Cth) - Unfair dismissal - Genuine redundancy - Where employer dismissed employees because of changes in operational requirements of employer's enterprise - Where employer continued to deploy contractors to perform work in employer's enterprise - Where s 389(2) of Fair Work Act 2009 (Cth) provides dismissal not genuine redundancy if it would have been reasonable in all circumstances for person to be redeployed within employer's enterprise - Whether Fair Work Commission, in undertaking s 389(2) inquiry, permitted to inquire into whether employer could have made changes to its enterprise to create or make available position for otherwise redundant employee.
APPEALS - Standard of appellate review - Where Full Bench of Fair Work Commission applied House v The King standard of appellate review to review of decision that dismissals were not cases of genuine redundancy under s 389 of Fair Work Act - Whether House v The King appropriate standard of appellate review - Whether application of wrong standard of appellate review would constitute jurisdictional error.
WORDS AND PHRASES - "affording latitude", "all the circumstances", "appeal by way of rehearing", "appellate restraint", "business, activity, project or undertaking", "case of genuine redundancy", "contractors", "correctness standard", "counter-factual", "discretionary decision", "employer's enterprise", "employment", "enterprise", "error within jurisdiction", "Fair Work Commission", "genuine redundancy", "House v The King", "hypothetical", "insourcing", "job", "judicial review", "jurisdictional error", "nature of the employer's enterprise", "operational requirements", "position", "reasonable in all the circumstances", "redeploy", "reinstatement", "restructure", "standard of appellate review", "termination", "unfair dismissal", "work", "would have been reasonable".
Fair Work Act 2009 (Cth), ss 385, 389.
COSTS - Appeal - Offer of compromise - Challenge to finding of mutual wills - Tracing claim - Trial judgment $60,000 in favour of appellants - Application for leave to appeal granted - Appeal dismissed - Offer by respondents to pay $350,000 inclusive of costs - Non-acceptance of offer - Mutual wills claim worth approximately $6.9 million - Tracing claim approximately $1.1 million - Onus on party seeking indemnity costs - Whether non-acceptance of offer unreasonable in all the circumstances - Not unreasonable for appellants not to accept offer - Appellants to pay respondents' costs on standard basis - Supreme Court (General Civil Procedure) Rules 2015, r 26.12 - Hazeldene's Chicken Farm Pty Ltd v WorkCover Authority (Vic) [No 2] (2005) 13 VR 435, applied.
COSTS - Appeal - Offer of compromise - Challenge to finding of mutual wills - Tracing claim - Trial judgment $60,000 in favour of appellants - Application for leave to appeal granted - Appeal dismissed - Offer by respondents to pay $350,000 inclusive of costs - Non-acceptance of offer - Mutual wills claim worth approximately $6.9 million - Tracing claim approximately $1.1 million - Onus on party seeking indemnity costs - Whether non-acceptance of offer unreasonable in all the circumstances - Not unreasonable for appellants not to accept offer - Appellants to pay respondents' costs on standard basis - Supreme Court (General Civil Procedure) Rules 2015, r 26.12 - Hazeldene's Chicken Farm Pty Ltd v WorkCover Authority (Vic) [No 2] (2005) 13 VR 435, applied.
TRUSTS AND ESTATES - Trustee's indemnity - Administrator of deceased estate not taking part in appeal - Administrator seeking order for indemnity out of estate in respect of costs - No dispute before Court as to indemnity - No basis for identifying extent of indemnity - No extant or potential controversy - Not appropriate to make orders regarding administrator's indemnity.
ADMINISTRATIVE LAW - Judicial review - Proposed amendment to Greater Shepparton Planning Scheme - Panel constituted under Planning and Environment Act 1987 pt 8 recommended adoption of amendment - Council resolved to adopt amendment - Amendment not yet approved by Minister - Applicants brought judicial review proceeding seeking relief in respect of alleged errors by Panel and Council - Whether Planning and Environment Act 1987 s 39 prevents applicants from seeking that relief - Planning and Environment Act 1987 ss 12, 24, 25, 27, 29, 35, 38, 39, 161.
ADMINISTRATIVE LAW - Judicial review - Proposed amendment to Greater Shepparton Planning Scheme - Panel constituted under Planning and Environment Act 1987 pt 8 recommended adoption of amendment - Council resolved to adopt amendment - Amendment not yet approved by Minister - Applicants brought judicial review proceeding seeking relief in respect of alleged errors by Panel and Council - Whether Planning and Environment Act 1987 s 39 prevents applicants from seeking that relief - Planning and Environment Act 1987 ss 12, 24, 25, 27, 29, 35, 38, 39, 161.
STATUTORY INTERPRETATION - Whether Planning and Environment Act 1987 s 39 prevents applicants seeking judicial review remedies in Supreme Court - Legislative intention to restrict jurisdiction - Constitutional considerations - Provision does not prevent judicial review for jurisdictional error - Planning and Environment Act 1987 s 39 - East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605, considered.
CONSTITUTIONAL LAW - Constraints on legislative power to limit jurisdiction of Supreme Court - Statute cannot oust Supreme Court's constitutionally entrenched supervisory jurisdiction to review for jurisdictional error - Constitution Act 1975 ss 18, 85 - Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531, applied.
CRIMINAL LAW - Interlocutory appeal - Coincidence evidence - Three charges of murder and one of attempted murder by alleged poisoning of four lunch guests - Three charges of attempted murder of husband by alleged poisoning in three preceding episodes - Whether evidence relating to alleged poisoning of lunch guests admissible to prove that husband was poisoned - Whether evidence relating to alleged poisoning of husband admissible to prove lunch guests deliberately poisoned - Whether circular reasoning - Whether charges relating to husband should be severed from those relating to lunch guests - Whether probative value of coincidence evidence substantially outweighs any prejudicial effect on the accused - Judge was correct to sever indictment - Leave to appeal refused.
CRIMINAL LAW - Interlocutory appeal - Coincidence evidence - Three charges of murder and one of attempted murder by alleged poisoning of four lunch guests - Three charges of attempted murder of husband by alleged poisoning in three preceding episodes - Whether evidence relating to alleged poisoning of lunch guests admissible to prove that husband was poisoned - Whether evidence relating to alleged poisoning of husband admissible to prove lunch guests deliberately poisoned - Whether circular reasoning - Whether charges relating to husband should be severed from those relating to lunch guests - Whether probative value of coincidence evidence substantially outweighs any prejudicial effect on the accused - Judge was correct to sever indictment - Leave to appeal refused.
Evidence Act 2008 ss 98(1), 101(2); Perry v The Queen (1982) 150 CLR 580 considered.
CRIMINAL LAW - Appeal - Conviction - Murder - Unreasonable jury verdict - Two brothers stabbed by applicant in altercation at house - Wounds to one brother fatal - Inconsistent accounts from witnesses - Whether applicant was aggressor or acted in self-defence - Whether open to jury to accept surviving brother's account of stabbing despite demonstrable lies about circumstances leading up to altercation - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Murder - Unreasonable jury verdict - Two brothers stabbed by applicant in altercation at house - Wounds to one brother fatal - Inconsistent accounts from witnesses - Whether applicant was aggressor or acted in self-defence - Whether open to jury to accept surviving brother's account of stabbing despite demonstrable lies about circumstances leading up to altercation - Leave to appeal refused.
Pell v The Queen (2020) 268 CLR 123; M v The Queen (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439.
CRIMINAL LAW - Appeal - Conviction - Directions given by trial judge - Proof beyond reasonable doubt - Sections 63 and 64 of Jury Directions Act 2015 - Whether error to direct jury prior to evidence being adduced that 'proof beyond reasonable doubt' are plain ordinary English words that mean what they say and do not admit of any better definition - Whether such direction constituted an explanation of the standard of proof - Whether such direction impermissibly precluded jury from asking questions about the standard of proof - Leave to appeal granted - Appeal dismissed.
Jury Directions Act 2015, ss 63 and 64.
Farshchi v The King [2024] VSCA 235; Karam v The King [2023] VSCA 318; Awad v The Queen (2022) 275 CLR 421; Subramaniam v The Queen (2004) 79 ALJR 116.
CRIMINAL LAW - Director's appeal - Sentence - Murder - Offender stabbed former intimate partner to death in her home in front of her young child - Offender subject to intervention order at time of offence - Plea of guilty - Standard sentence for murder 25 years - Whether sentence of 24 years and 6 months' imprisonment with non-parole period of 19 years manifestly inadequate - Profound childhood disadvantage - Offender intoxicated and suffering from mental impairment at time of offending - Whether murder of intimate partner necessitates sentence higher than standard sentence for murder - Sentence lenient but within range - Appeal dismissed.
CRIMINAL LAW - Director's appeal - Sentence - Murder - Offender stabbed former intimate partner to death in her home in front of her young child - Offender subject to intervention order at time of offence - Plea of guilty - Standard sentence for murder 25 years - Whether sentence of 24 years and 6 months' imprisonment with non-parole period of 19 years manifestly inadequate - Profound childhood disadvantage - Offender intoxicated and suffering from mental impairment at time of offending - Whether murder of intimate partner necessitates sentence higher than standard sentence for murder - Sentence lenient but within range - Appeal dismissed.
Sentencing Act 1991, ss 5A, 5B.
DPP v Karazisis (2010) 31 VR 634; R v Verdins (2007) 16 VR 269; Bugmy v The Queen (2013) 249 CLR 571; Wright v The Queen (2015) 257 A Crim R 261; Brown v The Queen (2019) 59 VR 462; Skeates (a pseudonym) v The King [2023] VSCA 226; Marrah v The Queen [2014] VSCA 119.
PRACTICE AND PROCEDURE - Appeal - Discretionary decision to refuse leave to subpoena a new witness after trial commenced and contrary to earlier procedural orders - Parties entered into an oral agreement regarding ownership of shares - Parties saw a solicitor eighteen months later and discussed matters relating to the agreement - Critical question in trial concerned ownership of shares - Finding on ownership of shares turned on credit of witnesses - Applicant sought to call solicitor as new witness during trial - Primary judge refused to allow new witness - Whether applicant denied procedural fairness by not allowing new witness - Whether primary judge erred in finding new evidence not of central importance to the critical question - Relevance of post-contractual conduct - Whether new witness would cause unfair prejudice to other parties - Whether new witness would present rebuttal evidence - Whether new witness should have been subpoenaed earlier - Where limited window available for trial and new witness would derail trial - Whether decision not to allow new witness unreasonable or plainly unjust - No error established - Leave to appeal refused.
PRACTICE AND PROCEDURE - Appeal - Discretionary decision to refuse leave to subpoena a new witness after trial commenced and contrary to earlier procedural orders - Parties entered into an oral agreement regarding ownership of shares - Parties saw a solicitor eighteen months later and discussed matters relating to the agreement - Critical question in trial concerned ownership of shares - Finding on ownership of shares turned on credit of witnesses - Applicant sought to call solicitor as new witness during trial - Primary judge refused to allow new witness - Whether applicant denied procedural fairness by not allowing new witness - Whether primary judge erred in finding new evidence not of central importance to the critical question - Relevance of post-contractual conduct - Whether new witness would cause unfair prejudice to other parties - Whether new witness would present rebuttal evidence - Whether new witness should have been subpoenaed earlier - Where limited window available for trial and new witness would derail trial - Whether decision not to allow new witness unreasonable or plainly unjust - No error established - Leave to appeal refused.
Civil Procedure Act 2010; Supreme Court (General Civil Procedure) Rules 2015; Corporations Act 2001 (Cth).
Hightime Investments Pty Ltd v Adamus Resources Ltd [2012] WASC 295; County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193, discussed.
Eaton v ISS Catering Services Pty Ltd (2013) 42 VR 635; Wilson v Bauer Media [Ruling No 1] [2017] VSC 302; Rush v Nationwide News Pty Ltd [No 4] [2018] FCA 1558; Mobile Innovations Limited v Vodafone Pacific Limited [2003] NSWSC 309; Primrose Meadows Pty Ltd v River View Pty Ltd [2017] VSC 487; N M Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2011] NSWSC 1561; Clifford v Vegas Enterprises Pty Ltd [No 4] [2010] FCA 326; Northern Health v Kuipers [2015] VSCA 172, cited.
MISLEADING AND DECEPTIVE CONDUCT - Whether representations were made to the effect that payments made by the plaintiffs would be wholly or substantially used in product development - Whether representations made that the plaintiff would acquire part ownership of the entities that owned the physical and intellectual property relating to the products under development - Whether the defendants' conduct was misleading and deceptive - Reliance - Causation - Whether deceit - Australian Consumer Law, s 18 - Australian Securities and Investment Commission Act 2001 (Cth), s 12DA.
MISLEADING AND DECEPTIVE CONDUCT - Whether representations were made to the effect that payments made by the plaintiffs would be wholly or substantially used in product development - Whether representations made that the plaintiff would acquire part ownership of the entities that owned the physical and intellectual property relating to the products under development - Whether the defendants' conduct was misleading and deceptive - Reliance - Causation - Whether deceit - Australian Consumer Law, s 18 - Australian Securities and Investment Commission Act 2001 (Cth), s 12DA.
EVIDENCE - Whether recording of a telephone conversation should be admitted where one party to conversation unaware of recording Surveillance Devices Act 1999 (Vic) ss 6(1), 11(1); Evidence Act 2008 (Vic) s 38.
CONTRIBUTORY NEGLIGENCE - Whether the plaintiffs' award should be reduced for contributory negligence - Competition and Consumer Act 2010 (Cth) s 137B - Australian Securities and Investment Commission Act 2001 (Cth) ss 12GP, 12GR.
ACCESSORIAL LIABILITY - Relevant principles - Whether knowing involvement by accountant in misleading and deceptive conduct.
TRUSTS - Whether payments subject to trust of the character described in Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 - Whether payments subject to a trust of the character described in Black v S Freedman & Co (1910) 12 CLR 105.
KNOWING ASSISTANCE - Whether second limb of the description in Barnes v Addy (1874) LR 9 Ch App 244 applies - Relevant principles.
ILLEGALITY - Failure to disclose bankruptcy - Whether bankrupt managed a corporation - Corporations Act 2001 (Cth) ss 206A, 206B(3).
BUILDING CONTRACTS - Building and Construction Industry Security of Payment Act 2002 (Vic) ('the Act') - Whether the Adjudication Determination should be set aside - Whether the payment claim meet the requirements of s 14(2) of the Act - Whether the payment claim was served within the time required by s 14 of the Act - Whether the s 18(2) notice was given within the time allowed by the Act - Whether the Adjudication Determination took into account excluded amounts and other matters - Whether there is denial of procedural fairness and apportionment to the plaintiff of the Adjudicator's fee - Adjudicator erred in determining the reference date pursuant to s 9(2)(c) of the Act - The s 18(2) notice was not served within time allowed by the Act.
BUILDING CONTRACTS - Building and Construction Industry Security of Payment Act 2002 (Vic) ('the Act') - Whether the Adjudication Determination should be set aside - Whether the payment claim meet the requirements of s 14(2) of the Act - Whether the payment claim was served within the time required by s 14 of the Act - Whether the s 18(2) notice was given within the time allowed by the Act - Whether the Adjudication Determination took into account excluded amounts and other matters - Whether there is denial of procedural fairness and apportionment to the plaintiff of the Adjudicator's fee - Adjudicator erred in determining the reference date pursuant to s 9(2)(c) of the Act - The s 18(2) notice was not served within time allowed by the Act.
TAXATION LAW - Addition to grounds of objection by Commissioner - Where proposed additional grounds opposed on lack of proper basis - Whether Appellant is holding the same legal and equitable interests on trust for itself - Taxation Administration Act 1997 s 109 - Leave to add grounds granted.
TAXATION LAW - Addition to grounds of objection by Commissioner - Where proposed additional grounds opposed on lack of proper basis - Whether Appellant is holding the same legal and equitable interests on trust for itself - Taxation Administration Act 1997 s 109 - Leave to add grounds granted.
PRACTICE AND PROCEDURE - Application to consolidate six separate proceedings - Where grounds of appeal overlap - Civil Procedure Act 2010 - Aston (Aust) Properties Pty Ltd v Commissioner of State Revenue (2012) 88 ATR 211 - Traditional Values Management Ltd v Taylor & Ors [2012] VSC 299 - Application to consolidate refused.
CONTRACTS - Deed of settlement and release - Construction - Interpretation - Whether statutory unfair preference claims by liquidator released by deed of settlement between parties arising from earlier litigation over lien claimed by creditor - Whether preference claims 'in connection with' contract between parties under which creditor performed work - Whether claims in contemplation of parties at time of execution of deed - Whether unconscientious reliance by creditor upon general words of release - Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 applied.
CONTRACTS - Deed of settlement and release - Construction - Interpretation - Whether statutory unfair preference claims by liquidator released by deed of settlement between parties arising from earlier litigation over lien claimed by creditor - Whether preference claims 'in connection with' contract between parties under which creditor performed work - Whether claims in contemplation of parties at time of execution of deed - Whether unconscientious reliance by creditor upon general words of release - Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 applied.
CORPORATIONS - Insolvency - Corporations Act 2001 (Cth) - Div 2 of Pt 5.7B - Voidable transactions - s 588FA - Unfair preference claims brought by liquidator under s 588FF(1) - s 588FA(3) - Whether payments an integral part of continuing business relationship - Running account - Where progress payments made by company to creditor under engineering, procurement and construction management contract - Where additional work performed contemplated by contract itself - Payments for additional work not connected with future supply - Walsh v Salzer Constructions Pty Ltd (2000) 3 VR 305 followed - s 588FG(2) - Good faith defence - Whether creditor had no reasonable grounds for suspecting company insolvent at time of transactions - Whether reasonable person in creditor's circumstances had no such grounds for so suspecting - Where creditor bore onus of proving defence but failed to call key witnesses - Inferences made that witnesses would not have assisted creditor in making out defence - Cook's Construction Pty Ltd v Brown (2004) 49 ACSR 62 applied.
PRACTICE AND PROCEDURE - Application for approval of settlement of group proceeding - Whether the terms of settlement fair and reasonable - Whether settlement distribution scheme fair and reasonable - Settlement approved - Supreme Court Act 1986 (Vic) pt 4A, ss 33V, 33ZF.
PRACTICE AND PROCEDURE - Application for approval of settlement of group proceeding - Whether the terms of settlement fair and reasonable - Whether settlement distribution scheme fair and reasonable - Settlement approved - Supreme Court Act 1986 (Vic) pt 4A, ss 33V, 33ZF.
PRACTICE AND PROCEDURE - Application for payment of costs of administering settlement distribution scheme - Costs approved.
PRACTICE AND PROCEDURE - Approval for payment of legal costs from settlement sum - Whether group costs order should be amended - Supreme Court Act 1986 (Vic) pt 4A, s 33ZDA.
PRACTICE AND PROCEDURE - Application pursuant to s 27(3)(b) of the Civil Procedure Act 2010 (Vic) and the inherent jurisdiction - Release of obligation imposed in respect of documents and information used in a previous proceeding to allow use in the current proceeding - Requirement for special circumstances - Harman undertaking - Implied undertaking not to use documents or information for a purpose other than the legal proceeding - Documents and information required to have been produced under compulsion - Only the court can release a party from the implied undertaking - Application granted - Harman undertaking general principles.
PRACTICE AND PROCEDURE - Application pursuant to s 27(3)(b) of the Civil Procedure Act 2010 (Vic) and the inherent jurisdiction - Release of obligation imposed in respect of documents and information used in a previous proceeding to allow use in the current proceeding - Requirement for special circumstances - Harman undertaking - Implied undertaking not to use documents or information for a purpose other than the legal proceeding - Documents and information required to have been produced under compulsion - Only the court can release a party from the implied undertaking - Application granted - Harman undertaking general principles.
PRACTICE AND PROCEDURE - Defendant's application to vacate trial date - Defendant not responding to communications from his solicitors - Counsel returned brief and unavailable - Rules 48.06 and 49.03 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Where defendant said to be unavailable due to inability to leave China - Vague and inadequate evidence and explanation - Trial adjournment and trial vacation applications, general principles - Whether vacation would cause unfair prejudice - Trial vacation application refused - Liberty to apply to take defendant's evidence by alternative means or to adjourn the trial part-heard to have the defendant give evidence at a later date reserved - Sections 47, 48 and 49 Civil Procedure Act 2010 (Vic) - Eaton v ISS Catering Services Pty Ltd (2013) 42 VR 635 - Dawn v Carlisle Homes Pty Ltd [2025] VSCA 58.
PRACTICE AND PROCEDURE - Defendant's application to vacate trial date - Defendant not responding to communications from his solicitors - Counsel returned brief and unavailable - Rules 48.06 and 49.03 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Where defendant said to be unavailable due to inability to leave China - Vague and inadequate evidence and explanation - Trial adjournment and trial vacation applications, general principles - Whether vacation would cause unfair prejudice - Trial vacation application refused - Liberty to apply to take defendant's evidence by alternative means or to adjourn the trial part-heard to have the defendant give evidence at a later date reserved - Sections 47, 48 and 49 Civil Procedure Act 2010 (Vic) - Eaton v ISS Catering Services Pty Ltd (2013) 42 VR 635 - Dawn v Carlisle Homes Pty Ltd [2025] VSCA 58.
CORPORATIONS - Voluntary administration - Deed of company arrangement - Application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer shares pursuant to deed of company arrangement - Whether residual value of shares in company - Whether shareholders unfairly prejudiced - Leave granted.
CORPORATIONS - Voluntary administration - Deed of company arrangement - Application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer shares pursuant to deed of company arrangement - Whether residual value of shares in company - Whether shareholders unfairly prejudiced - Leave granted.
CORPORATIONS - Corporations Act 2001 (Cth) - Application to set aside a statutory demand pursuant to s 459G - Liability arising from an award of damages following Court of Appeal ruling and refusal of special leave application - Defendant claimed the amount of damages awarded in statutory demand - Whether genuine dispute - Whether offsetting claim - Application dismissed.
CORPORATIONS - Corporations Act 2001 (Cth) - Application to set aside a statutory demand pursuant to s 459G - Liability arising from an award of damages following Court of Appeal ruling and refusal of special leave application - Defendant claimed the amount of damages awarded in statutory demand - Whether genuine dispute - Whether offsetting claim - Application dismissed.
PRACTICE AND PROCEDURE - Procedural fairness - Self-represented litigant - Scandalous affidavit material and submissions filed by plaintiff - Rule 27.07(b) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Court's power to remove material from the Court file - Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1 - Bahonko v Sterjov (2008) 166 FCR 415 - Rule 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Court's power to mark material as confidential.
CORPORATIONS - Corporations Act 2001 (Cth) - Part 5.4 - Insolvency - Statutory demand - s 459G - Application to set aside - Where related oppression proceeding commenced by defendant seeking payment of same debts claimed in statutory demand - Where demand withdrawn by defendant prior to final hearing.
CORPORATIONS - Corporations Act 2001 (Cth) - Part 5.4 - Insolvency - Statutory demand - s 459G - Application to set aside - Where related oppression proceeding commenced by defendant seeking payment of same debts claimed in statutory demand - Where demand withdrawn by defendant prior to final hearing.
COSTS - Proceeding resolved prior to final hearing - Exceptions to general rule that costs orders will not be made where no hearing on the merits - Whether defendant acted unreasonably or engaged in abuse of process by not withdrawing statutory demand upon filing of oppression proceeding claiming same debts - Whether eventual capitulation by defendant - Order that the defendant pay the plaintiff's costs.
CORPORATIONS - External administration - Corporations Act 2001 (Cth), s 420, sch 2, ss 90-15, 90-20 ('Insolvency Practice Schedule (Corporations)') - Trustee Act 1958 (Vic), s 63 - Liquidation of companies which acted as trustees of unit trusts - Application by liquidator for orders in respect of the trust property - Companies became bare trustees upon liquidation by reason of operation of ipso facto clause in trust deeds - Trustees right of indemnity from trust assets - Evidence that companies only carried on business as trustees of the trusts - Orders made that liquidator was justified and acting reasonably and proceeding on the basis that the companies respectively acted solely as trustees of the trusts and that all the property of the trusts are properly characterised as property of the companies and that all creditors of the company were creditors of the respective trusts - Orders made giving the liquidators powers in respect of the assets of the trusts nunc pro tunc under s 63 of Trustee Act 1958 (Vic) by reference to the powers described in s 420(2) of the Corporations Act 2001 (Cth) - Declaration made that Instagram account was property of one of the trusts.
CORPORATIONS - External administration - Corporations Act 2001 (Cth), s 420, sch 2, ss 90-15, 90-20 ('Insolvency Practice Schedule (Corporations)') - Trustee Act 1958 (Vic), s 63 - Liquidation of companies which acted as trustees of unit trusts - Application by liquidator for orders in respect of the trust property - Companies became bare trustees upon liquidation by reason of operation of ipso facto clause in trust deeds - Trustees right of indemnity from trust assets - Evidence that companies only carried on business as trustees of the trusts - Orders made that liquidator was justified and acting reasonably and proceeding on the basis that the companies respectively acted solely as trustees of the trusts and that all the property of the trusts are properly characterised as property of the companies and that all creditors of the company were creditors of the respective trusts - Orders made giving the liquidators powers in respect of the assets of the trusts nunc pro tunc under s 63 of Trustee Act 1958 (Vic) by reference to the powers described in s 420(2) of the Corporations Act 2001 (Cth) - Declaration made that Instagram account was property of one of the trusts.
CONTRACT - Alternative claims - Comprehensive 2013 loan agreement for US $74.5 million loan between plaintiff and parent company to which defendant was not a party - Alleged 2013 agreement partly in writing and partly oral between plaintiff and defendant - Alleged 2013 agreement not proved - 2016 security agreement in writing between plaintiff and defendant - No consideration - 2016 and alleged 2013 agreements not part of same transaction - Defendant not bound by 2016 security agreement - McVeigh v National Australia Bank Ltd (2000) 278 ALR 429; [2000] FCA 187, referred to.
CONTRACT - Alternative claims - Comprehensive 2013 loan agreement for US $74.5 million loan between plaintiff and parent company to which defendant was not a party - Alleged 2013 agreement partly in writing and partly oral between plaintiff and defendant - Alleged 2013 agreement not proved - 2016 security agreement in writing between plaintiff and defendant - No consideration - 2016 and alleged 2013 agreements not part of same transaction - Defendant not bound by 2016 security agreement - McVeigh v National Australia Bank Ltd (2000) 278 ALR 429; [2000] FCA 187, referred to.
AGENCY - Authority - Constitution required application of company seal attested to by two directors - 2016 agreement not executed by defendant under seal - 2016 agreement not signed by director of defendant - Agreement signed by executive director of parent company - Indoor management rule - Other companies in the group executed the agreement under seal - Past consideration - Plaintiff put on inquiry - Defendant not bound - Northside Developments Pty Ltd v Registrar- General (1990) 170 CLR 146; [1990] HCA 32, applied.
AUTHORITY - Ratification - Acts of single director in 2016 purportedly on behalf of defendant - Plaintiff relied on signed 2020/2021 agreement - Single director existing guarantor under comprehensive 2013 loan agreement signed 2020/2021 agreements - Director cannot make a representation as to his authority so as to make it a representation of the defendant - No ratification - Lederberger and Scheiner v Mediterranean Olives Financial Pty Ltd (2012) 38 VR 509; [2012] VSCA 262, applied.
ESTOPPEL - Estoppel alleged as alternative to 2013 agreement - No reliance - Crabtree- Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd (1975) 133 CLR 72; [1975] HCA 49, Kramer v Stone (2024) 99 ALJR 126; [2024] HCA 48, applied.
EVIDENCE - Application of Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 - Whether inference is open depends on pleadings and evidence adduced at trial - Does not supply a gap in the evidence.
CONTRACT - Co-Owners Deed - Construction of terms - Clause 9 required mandatory sale of property within 36 months - Contract expressed time was of the essence - Expiry of deed date - No unanimous agreement to extend time - Whether failure to place land for sale constituted breach of clause 9 - Specific performance sought by unitholder to enforce sale of land - Alternative claims based on waiver and estoppel - Principles of contractual interpretation - Co-Owners Deed to be construed consistently with adopted legal and commercial structures - Preservation of Unit Trust Deed and commercial trust arrangements.
CONTRACT - Co-Owners Deed - Construction of terms - Clause 9 required mandatory sale of property within 36 months - Contract expressed time was of the essence - Expiry of deed date - No unanimous agreement to extend time - Whether failure to place land for sale constituted breach of clause 9 - Specific performance sought by unitholder to enforce sale of land - Alternative claims based on waiver and estoppel - Principles of contractual interpretation - Co-Owners Deed to be construed consistently with adopted legal and commercial structures - Preservation of Unit Trust Deed and commercial trust arrangements.
EQUITY - Trusts and trustees - Unit trust established by families as a vehicle for business and property investments - Trust assets - Whether property is wholly held on trust - Unit Trust Deed - Division of units - Trustee powers including power of sale - Dispute between directors of corporate trustee as to sale of property - Application brought by unitholder to compel sale - Land owned by trustee - Interference with trustee's role - Opposition by other unitholder seeking to retain property - Option to acquire either side's interest - Buyout offer and counter-offer - Whether deadlock in affairs of unit trust - Breakdown of commercial relationships - Court's power to order sale - Application dismissed.
EQUITY - Claims for equitable relief - Discretionary nature of specific performance - Whether remedy available where time specified in clause 9 had expired - Term no longer capable of performance - Consideration of unitholder's own contribution to delay - Whether waiver - Whether conduct of other unitholder amounted to waiver of right to insist on strict compliance with clause 9 - Correspondence between solicitors - No such representations made - Any waiver unilateral and ineffective - Whether equitable estoppel - Elements not established - No clear and unequivocal promise to abandon parties' contractual obligation - No evidence of detrimental reliance - Whether forced sale of land necessary - Alternative mechanism available to purchase interest in property at fair value - Current 'open' offer - Claim dismissed - Commercial workaround available to parties.
CIVIL PROCEDURE - Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Ancillary bases for relief - Order 54 - Proceedings relating to trusts - Availability of relief without general administration - Scope and limitations - Whether Titles 2 and 3 of property held on trust - Order 55, r 55.02 - Court's power to order sale of land - Whether rule confers a wide-ranging discretion to order sale - Not a free-standing power exercisable merely when 'necessary or expedient' - Express wording 'for the purposes of the proceeding' confines power - Historical development and operation of rule.
CONTRACT - Claim for specific performance - Whether parties agreed upon new contract - Whether previous contract expired - Whether previous contract validly terminated - Whether parties' conduct constitutes a binding concluded agreement - Masters v Cameron (1954) 91 CLR 353 - Claim unsuccessful - No contract established.
CONTRACT - Claim for specific performance - Whether parties agreed upon new contract - Whether previous contract expired - Whether previous contract validly terminated - Whether parties' conduct constitutes a binding concluded agreement - Masters v Cameron (1954) 91 CLR 353 - Claim unsuccessful - No contract established.
DAMAGES - Loss and damages evidenced in table prepared by employees of the Plaintiff - Loss and damages calculated using unaudited figures - Unable to test or verify calculation - Claim unsuccessful - No basis for award of loss and damages.
JUDICIAL REVIEW - Application for leave to appeal against costs decision of Victorian Civil and Administrative Tribunal - Where most of applicant's arguments challenge substantive orders or fail to identify questions of law - Whether costs decision reasonably open - Whether Tribunal failed to accord procedural fairness by not considering emailed submission on costs - Leave granted and appeal allowed on ground that the Tribunal failed to accord procedural fairness - Application for costs remitted - Observations on difficulties the Tribunal faces dealing with litigants in person who send emails rather than file submissions - Nathanson v Minister for Home Affairs (2022) 276 CLR 80 - Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 109.
JUDICIAL REVIEW - Application for leave to appeal against costs decision of Victorian Civil and Administrative Tribunal - Where most of applicant's arguments challenge substantive orders or fail to identify questions of law - Whether costs decision reasonably open - Whether Tribunal failed to accord procedural fairness by not considering emailed submission on costs - Leave granted and appeal allowed on ground that the Tribunal failed to accord procedural fairness - Application for costs remitted - Observations on difficulties the Tribunal faces dealing with litigants in person who send emails rather than file submissions - Nathanson v Minister for Home Affairs (2022) 276 CLR 80 - Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 109.
CONTEMPT OF COURT - Breach of freezing orders - First defendant and second defendant failed to file affidavits re assets - First defendant disposed of assets subject to freezing orders - First defendant guilty of contempt of court - Conduct contumacious - Appropriate that sentence of imprisonment imposed.
CONTEMPT OF COURT - Breach of freezing orders - First defendant and second defendant failed to file affidavits re assets - First defendant disposed of assets subject to freezing orders - First defendant guilty of contempt of court - Conduct contumacious - Appropriate that sentence of imprisonment imposed.
TESTATOR'S FAMILY MAINTENANCE - Family provision and maintenance - Estrangement - Whether contribution to building up estate - Whether deceased owed moral duty - Whether distribution adequate and proper - Administration and Probate Act 1958 pt IV.
TESTATOR'S FAMILY MAINTENANCE - Family provision and maintenance - Estrangement - Whether contribution to building up estate - Whether deceased owed moral duty - Whether distribution adequate and proper - Administration and Probate Act 1958 pt IV.
EQUITY - Breach of executors' obligations - Whether income should have been derived from estate.
STATUTORY INTERPRETATION - Referral of a question from the Magistrates' Court for determination by the Supreme Court under the Charter of Human Rights and Responsibilities Act 2006 (Vic) - Whether 'right to life' engaged in the interpretation of the Magistrates' power to grant bail in Victoria - Person accused of murder - Bail Act 1977 (Vic) - No jurisdiction for Magistrate to grant bail for murder - Power not enlarged by Charter - Clear meaning of the words of section 13(2) of the Bail Act 1977 (Vic) - Court to answer only the question raised by the referral - Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 1, 9, 21, 32, 33 - Service and Execution of Process Act 1992 (Cth) ss 82, 83, 88 - Bail Act 1977 (Vic) s 13(2).
STATUTORY INTERPRETATION - Referral of a question from the Magistrates' Court for determination by the Supreme Court under the Charter of Human Rights and Responsibilities Act 2006 (Vic) - Whether 'right to life' engaged in the interpretation of the Magistrates' power to grant bail in Victoria - Person accused of murder - Bail Act 1977 (Vic) - No jurisdiction for Magistrate to grant bail for murder - Power not enlarged by Charter - Clear meaning of the words of section 13(2) of the Bail Act 1977 (Vic) - Court to answer only the question raised by the referral - Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 1, 9, 21, 32, 33 - Service and Execution of Process Act 1992 (Cth) ss 82, 83, 88 - Bail Act 1977 (Vic) s 13(2).
CONTRACT - Appeal from Magistrates' Court on question of law - Agreement between Australian Financial Services Licence holder (licensee) and authorised representative - Indemnity clause - Authorised representative provided financial advice to clients - Clients complained to Australian Financial Complaints Authority (AFCA) - Licensee settled with clients following recommendation from AFCA - Indemnity clause did not require licensee to show that authorised representatives caused loss to clients - Magistrate correctly construed indemnity clause - Licensee was required to prove settlement was reasonable - Magistrate did not consider reasonableness - Reasonable for licensee to settle with clients - Evidence only proved reasonableness of part of quantum - Appeal allowed - Horsell International Pty Ltd v Divetwo Pty Ltd [2013] NSWCA 368; Lumley General Insurance Ltd v Port Phillip City Council [2013] VSCA 367; Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603; Protec Pacific Pty Ltd v Steuler Services GmbH & Co KG [2014] VSCA 338 applied. GLP Batesford Pty Ltd v 68 Bridge Road Land Pty Ltd [2024] VSC 182; Speno Rail Maintenance Australia Pty Ltd v Hamersley Iron Pty Ltd (2000) 23 WAR 291; Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (2008) 72 NSWLR 1; UGL Rail Pty Ltd v Wilkinson Murray Pty Ltd [2014] NSWSC 1959 considered.
CONTRACT - Appeal from Magistrates' Court on question of law - Agreement between Australian Financial Services Licence holder (licensee) and authorised representative - Indemnity clause - Authorised representative provided financial advice to clients - Clients complained to Australian Financial Complaints Authority (AFCA) - Licensee settled with clients following recommendation from AFCA - Indemnity clause did not require licensee to show that authorised representatives caused loss to clients - Magistrate correctly construed indemnity clause - Licensee was required to prove settlement was reasonable - Magistrate did not consider reasonableness - Reasonable for licensee to settle with clients - Evidence only proved reasonableness of part of quantum - Appeal allowed - Horsell International Pty Ltd v Divetwo Pty Ltd [2013] NSWCA 368; Lumley General Insurance Ltd v Port Phillip City Council [2013] VSCA 367; Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603; Protec Pacific Pty Ltd v Steuler Services GmbH & Co KG [2014] VSCA 338 applied. GLP Batesford Pty Ltd v 68 Bridge Road Land Pty Ltd [2024] VSC 182; Speno Rail Maintenance Australia Pty Ltd v Hamersley Iron Pty Ltd (2000) 23 WAR 291; Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (2008) 72 NSWLR 1; UGL Rail Pty Ltd v Wilkinson Murray Pty Ltd [2014] NSWSC 1959 considered.
PROPERTY LAW - Orders for sale of land - Just and fair arrangement for sale - Appropriate period of settlement - Appointment of solicitors to act in the sale of the land - Jurisdiction of Supreme Court in co-ownership matters under the Property Law Act 1958 (Vic), Div 4 Part IV - Property Law Act 1958 (Vic) ss 225, 228, 234C.
PROPERTY LAW - Orders for sale of land - Just and fair arrangement for sale - Appropriate period of settlement - Appointment of solicitors to act in the sale of the land - Jurisdiction of Supreme Court in co-ownership matters under the Property Law Act 1958 (Vic), Div 4 Part IV - Property Law Act 1958 (Vic) ss 225, 228, 234C.
ENVIRONMENTAL LAW - Declarations, pecuniary penalties, adverse publicity order, compensation and ancillary orders sought for breach of environmental laws - Parties jointly seek the Court's approval of its proposed consent orders - Parties provided joint submissions and agreed statement of facts - Defendant caused environmental damage through industrial waste leakage - Defendant complied with improvement actions and investments to reduce risk of similar incident - Court satisfied to adopt joint submissions and proposed consent orders as basis of judgment - Cooperation of the parties commended - Environment Protection Act 2017 (Vic) ss 25(1), 133(1), 313(1), 315(1)(a), 330, referred to.
ENVIRONMENTAL LAW - Declarations, pecuniary penalties, adverse publicity order, compensation and ancillary orders sought for breach of environmental laws - Parties jointly seek the Court's approval of its proposed consent orders - Parties provided joint submissions and agreed statement of facts - Defendant caused environmental damage through industrial waste leakage - Defendant complied with improvement actions and investments to reduce risk of similar incident - Court satisfied to adopt joint submissions and proposed consent orders as basis of judgment - Cooperation of the parties commended - Environment Protection Act 2017 (Vic) ss 25(1), 133(1), 313(1), 315(1)(a), 330, referred to.
CRIMINAL LAW - Bail - Applicant charged with trafficking in drug of dependence and other charges - Applicant accused of a Schedule 2 offence while subject to a summons to answer to a charge of another Schedule 2 offence - Requirement to show exceptional circumstances - Whether exceptional circumstances made out - Whether applicant an unacceptable risk - Bail granted - Bail Act 1977, ss 1B, 3AAA, 4AA, 4A, 4D and 4E.
CRIMINAL LAW - Bail - Applicant charged with trafficking in drug of dependence and other charges - Applicant accused of a Schedule 2 offence while subject to a summons to answer to a charge of another Schedule 2 offence - Requirement to show exceptional circumstances - Whether exceptional circumstances made out - Whether applicant an unacceptable risk - Bail granted - Bail Act 1977, ss 1B, 3AAA, 4AA, 4A, 4D and 4E.
COSTS - Coercive powers order - Application for revocation dismissed with no adjudication on merits - Application for stay of proceedings dismissed - Court's power to award costs on dismissal of revocation application - Not necessary to characterise true nature of revocation proceedings - No determination of whether normal rule as to costs applies - No order as to costs - No certification to seek leave to appeal dismissal of stay proceeding - Major Crime (Investigative Powers) Act 2004 (Vic), ss 5(8), 7, 12, 12A - Supreme Court Act 1986 (Vic), s 24 - Criminal Procedure Act 2009 (Vic), ss 5, 295 - Supreme Court (Criminal Procedure) Rules 2017 (Vic), ord 13, rr 1.01(2), 13.03 - Appeal Costs Act 1998 (Vic), s 4(1) - Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 1.1(2), 1.05(1), 1.13(1), 63.02 - Crimes Act 1958 (Vic) - Civil Procedure Act 2010 (Vic), s 3 - Interpretation of Legislation Act 1984 (Vic).
COSTS - Coercive powers order - Application for revocation dismissed with no adjudication on merits - Application for stay of proceedings dismissed - Court's power to award costs on dismissal of revocation application - Not necessary to characterise true nature of revocation proceedings - No determination of whether normal rule as to costs applies - No order as to costs - No certification to seek leave to appeal dismissal of stay proceeding - Major Crime (Investigative Powers) Act 2004 (Vic), ss 5(8), 7, 12, 12A - Supreme Court Act 1986 (Vic), s 24 - Criminal Procedure Act 2009 (Vic), ss 5, 295 - Supreme Court (Criminal Procedure) Rules 2017 (Vic), ord 13, rr 1.01(2), 13.03 - Appeal Costs Act 1998 (Vic), s 4(1) - Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 1.1(2), 1.05(1), 1.13(1), 63.02 - Crimes Act 1958 (Vic) - Civil Procedure Act 2010 (Vic), s 3 - Interpretation of Legislation Act 1984 (Vic).
CRIMINAL LAW - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - Sections 32 and 33 - Review of custodial supervision - Applicable considerations - Homicide - Paranoid schizophrenic - Non-custodial supervision order confirmed.
CRIMINAL LAW - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - Sections 32 and 33 - Review of custodial supervision - Applicable considerations - Homicide - Paranoid schizophrenic - Non-custodial supervision order confirmed.
TORT - NEGLIGENCE - CONTRACT - RESIDENTIAL TENANCY - BREACH OF CONTRACT - BREACH OF DUTY - Fire - Property damage - Point of origin of fire - Cause of fire - Inferences - Expert evidence of fire investigators.
TORT - NEGLIGENCE - CONTRACT - RESIDENTIAL TENANCY - BREACH OF CONTRACT - BREACH OF DUTY - Fire - Property damage - Point of origin of fire - Cause of fire - Inferences - Expert evidence of fire investigators.
PRACTICE AND PROCEDURE - Amendment to pleadings - Case management - Late application for leave to amend defence - Amendments sought to pleading not articulated - Disregard of directions and court orders - Overarching obligations - Trial date vacated on 3 occasions - Allowing amendment would cause fourth vacation - Prejudice and delay - Interests of justice - Amendment not permitted.
PRACTICE AND PROCEDURE - Amendment to pleadings - Case management - Late application for leave to amend defence - Amendments sought to pleading not articulated - Disregard of directions and court orders - Overarching obligations - Trial date vacated on 3 occasions - Allowing amendment would cause fourth vacation - Prejudice and delay - Interests of justice - Amendment not permitted.
INDUSTRIAL LAW - Fair Work Act 2009 (Cth) ss 45, 546(1), 546(3), 550, 557 - Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2020 rr 1.6, 13.01, 13.02, 13.03, 13.04, Form 13D - Magistrates' Court General Civil Procedure Rules 2020 r 43.03 - Evidentiary requirements for an order in default - Pecuniary penalties - Order for payment of penalties to a third party.
INDUSTRIAL LAW - Fair Work Act 2009 (Cth) ss 45, 546(1), 546(3), 550, 557 - Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2020 rr 1.6, 13.01, 13.02, 13.03, 13.04, Form 13D - Magistrates' Court General Civil Procedure Rules 2020 r 43.03 - Evidentiary requirements for an order in default - Pecuniary penalties - Order for payment of penalties to a third party.