CRIMINAL LAW - Sentencing - Aggregate sentence of imprisonment - Where offence attracted mandatory minimum sentence of imprisonment under s 16AAA of Crimes Act 1914 (Cth) - Whether New South Wales courts can impose aggregate sentence with respect to multiple Commonwealth offences - Whether New South Wales courts can impose aggregate sentence where Commonwealth offence attracts mandatory minimum sentence of imprisonment - Whether s 53A of Crimes (Sentencing Procedure) Act 1999 (NSW) capable of being picked up and applied by s 68(1) of Judiciary Act 1903 (Cth) to sentencing for Commonwealth offences - Whether s 53A(2)(b) of Crimes (Sentencing Procedure) Act 1999 (NSW) incompatible with Div 2 of Pt IB of Crimes Act 1914 (Cth).
CRIMINAL LAW - Sentencing - Aggregate sentence of imprisonment - Where offence attracted mandatory minimum sentence of imprisonment under s 16AAA of Crimes Act 1914 (Cth) - Whether New South Wales courts can impose aggregate sentence with respect to multiple Commonwealth offences - Whether New South Wales courts can impose aggregate sentence where Commonwealth offence attracts mandatory minimum sentence of imprisonment - Whether s 53A of Crimes (Sentencing Procedure) Act 1999 (NSW) capable of being picked up and applied by s 68(1) of Judiciary Act 1903 (Cth) to sentencing for Commonwealth offences - Whether s 53A(2)(b) of Crimes (Sentencing Procedure) Act 1999 (NSW) incompatible with Div 2 of Pt IB of Crimes Act 1914 (Cth).
WORDS AND PHRASES - "aggregate sentence", "deterrence", "different legal operation", "discount", "essential meaning", "federal jurisdiction", "federal offences", "general sentencing principles", "incompatibility", "inconsistency", "indication", "indicative sentence", "instinctive synthesis", "jurisdiction", "like jurisdiction", "mandatory minimum sentence", "mandatory minimum term of imprisonment", "minimum term", "multiple offences", "non-parole period", "operative sentence", "picked up", "sentence of imprisonment", "sentencing principles", "substantively different legal operation", "totality", "translation", "transparency", "yardstick".
Crimes Act 1914 (Cth), ss 16A, 16AAA, 16AAB, 16AAC, 19(2), 19AB(1).
Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A.
Judiciary Act 1903 (Cth), s 68.
TRADE MARKS - Rectification of Register of Trade Marks under Trade Marks Act 1995 (Cth) - Where appellant registered owner of trade mark "Katie Perry" in class 25 (clothes) from 29 September 2008 ("priority date") - Where second respondent known as Katy Perry is famous pop star - Where respondents sought rectification of Register by cancelling "Katie Perry" trade mark - Whether use of "Katie Perry" trade mark at priority date likely to deceive or cause confusion due to reputation of pop star's trade mark - Whether use of "Katie Perry" trade mark at time of application for rectification likely to deceive or cause confusion because of circumstances at that time - Whether discretion not to rectify Register under Act enlivened.
TRADE MARKS - Rectification of Register of Trade Marks under Trade Marks Act 1995 (Cth) - Where appellant registered owner of trade mark "Katie Perry" in class 25 (clothes) from 29 September 2008 ("priority date") - Where second respondent known as Katy Perry is famous pop star - Where respondents sought rectification of Register by cancelling "Katie Perry" trade mark - Whether use of "Katie Perry" trade mark at priority date likely to deceive or cause confusion due to reputation of pop star's trade mark - Whether use of "Katie Perry" trade mark at time of application for rectification likely to deceive or cause confusion because of circumstances at that time - Whether discretion not to rectify Register under Act enlivened.
WORDS AND PHRASES - "acquired a reputation", "act or fault", "actual use", "assiduous infringer", "blameworthy conduct", "cancelling the registration of a trade mark", "deceptively similar", "fashion designer", "lack of evidence", "likely to deceive or cause confusion", "material error", "merchandise", "normal and fair use", "notional use", "pop star", "priority date", "real and tangible danger", "rectification", "reputation", "trade mark", "undue weight", "wrongful conduct".
Trade Marks Act 1995 (Cth), ss 60, 88(1), 88(2)(a), 88(2)(c), 89.
ADMINISTRATIVE LAW - Judicial review - Jurisdictional error - Where application for approval of nomination of individual for Subclass 482 (Skills in Demand) visa refused - Where refusal was based, amongst other things, on consideration of documents and information provided by plaintiff - Where delegate not satisfied that position associated with nominated occupation is genuine - Where application for constitutional or other writ is brought because no other tribunal or court has jurisdiction, respectively, to review or judicially review decision - Whether delegate of Minister constructively failed to exercise jurisdiction by refusing nomination application - Whether delegate's decision was legally unreasonable.
ADMINISTRATIVE LAW - Judicial review - Jurisdictional error - Where application for approval of nomination of individual for Subclass 482 (Skills in Demand) visa refused - Where refusal was based, amongst other things, on consideration of documents and information provided by plaintiff - Where delegate not satisfied that position associated with nominated occupation is genuine - Where application for constitutional or other writ is brought because no other tribunal or court has jurisdiction, respectively, to review or judicially review decision - Whether delegate of Minister constructively failed to exercise jurisdiction by refusing nomination application - Whether delegate's decision was legally unreasonable.
WORDS AND PHRASES - "abuse of process", "business sponsor", "constitutional writs", "constructive failure to exercise jurisdiction", "delay", "jurisdictional error", "legally unreasonable", "nomination", "organisational chart", "original jurisdiction", "Skills in Demand", "unavailability of the usual court process".
Administrative Review Tribunal Act 2024 (Cth), ss 18(1), 295(1).
Administrative Review Tribunal Rules 2024 (Cth), r 6(3).
High Court Rules 2004 (Cth), r 25.02.
Migration Act 1958 (Cth), ss 140E, 140GB, 338(1), 338(9), 476, 476B.
Migration Regulations 1994 (Cth), regs 2.58(1)(a), 2.59, 4.02(4)(d), Div 2.17.
PRACTICE AND PROCEDURE - Judgments and orders - Application to recall and amend orders - Where party did not seek orders for remittal of costs issue in notice of appeal - Where party maintained remittal sought in written submissions - Where justification for remittal overlooked - Where error or omission obvious - Whether discretionary power to correct error or omission should be exercised.
PRACTICE AND PROCEDURE - Judgments and orders - Application to recall and amend orders - Where party did not seek orders for remittal of costs issue in notice of appeal - Where party maintained remittal sought in written submissions - Where justification for remittal overlooked - Where error or omission obvious - Whether discretionary power to correct error or omission should be exercised.
WORDS AND PHRASES - "accidental slip or omission", "applications to recall and amend orders", "discretionary power to correct an error or omission", "error or omission is plain or obvious", "incidental and necessary to the exercise of jurisdiction", "interests of justice", "no relevant disadvantage", "recall and amend orders", "source of power".
High Court Rules 2004 (Cth), r 3.01.2.
INSURANCE - Contract of insurance issued pursuant to ministerial order made under Building Act 1993 s 135 requiring certain builders to hold specified kind of insurance - Domestic building contract in respect of works to construct residential dwelling - Rights under contract of insurance passing to successors in title - Respondent acquired title 3 years after completion of works - Respondent alleged defects in building - Respondent made claim under contract of insurance - Policy covering 'loss or damage arising from a non-structural defect occurring during the period commencing on the commencement date and ending 2 years after the completion of the work' - Whether 'occurring during the period' referred to occurrence of loss or damage or occurrence of defect - Construction of commercial contract - General commercial purposes not assisting construction - Relevance of ministerial order - Leave to appeal granted - Appeal allowed.
INSURANCE - Contract of insurance issued pursuant to ministerial order made under Building Act 1993 s 135 requiring certain builders to hold specified kind of insurance - Domestic building contract in respect of works to construct residential dwelling - Rights under contract of insurance passing to successors in title - Respondent acquired title 3 years after completion of works - Respondent alleged defects in building - Respondent made claim under contract of insurance - Policy covering 'loss or damage arising from a non-structural defect occurring during the period commencing on the commencement date and ending 2 years after the completion of the work' - Whether 'occurring during the period' referred to occurrence of loss or damage or occurrence of defect - Construction of commercial contract - General commercial purposes not assisting construction - Relevance of ministerial order - Leave to appeal granted - Appeal allowed.
BUILDING AND CONSTRUCTION - Statutory warranties under Domestic Building Contracts Act 1995 s 8 - Section 9 of Act providing warranties to run with ownership of land and building - Whether s 9 facilitating suit of successor in title based upon loss or damage sustained by prior owner - Successor needing to prove own loss or damage.
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; Carr v Western Australia (2007) 232 CLR 138; Insurance Australia Ltd v Milonas [2021] VSC 602; Mirvac Victoria Pty Ltd v Liszka (2019) 61 VR 527; Allianz Australia Insurance Ltd v Waterbrook at Yowie Bay Pty Ltd (2009) 15 ANZ Ins Cas œ61-827, referred to.
Domestic Building Contracts Act 1995 ss 8, 9.
PRACTICE AND PROCEDURE - Dismissal for want of prosecution - Application filed on 18 March 2025 - Applicant failed to comply with timetable orders or settle application book despite repeated efforts by respondent and Registry to engage with applicant - Registrar informed applicant that application deemed to be abandoned - Applicant did not apply to renew application - Parties notified Court was considering whether matter should be dismissed for want of prosecution - Parties asked whether they objected to dismissal - No objection to dismissal received - Applicant showed intention not to take further steps in proceeding - Dismissal would further overarching purpose in the Civil Procedure Act 2010 - Application dismissed for want of prosecution.
PRACTICE AND PROCEDURE - Dismissal for want of prosecution - Application filed on 18 March 2025 - Applicant failed to comply with timetable orders or settle application book despite repeated efforts by respondent and Registry to engage with applicant - Registrar informed applicant that application deemed to be abandoned - Applicant did not apply to renew application - Parties notified Court was considering whether matter should be dismissed for want of prosecution - Parties asked whether they objected to dismissal - No objection to dismissal received - Applicant showed intention not to take further steps in proceeding - Dismissal would further overarching purpose in the Civil Procedure Act 2010 - Application dismissed for want of prosecution.
LEGAL PRACTITIONERS - Disciplinary matters - Inappropriate use of large language model artificial intelligence ('AI') - Applicant's written case, signed and filed by solicitor, appeared to contain non-existent cases and hallucinated quotations - Use of AI appeared to be contrary to Court's guidelines - Court notified applicant's solicitor of Court's concerns - Solicitor did not provide an explanation - Applicant's solicitor cautioned that matter would be referred to Legal Services Commissioner - Solicitor did not provide substantive response - Matter referred to Legal Services Commissioner for investigation.
Supreme Court (General Civil Procedure) Rules, rr 64.45, 64.46; Civil Procedure Act 2010, ss 7, 9(1), (2); Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015, r 5.1.2; Guidelines for litigants - Responsible Use of Artificial Intelligence in Litigation.
Bishopsgate Insurance Australia Ltd v Deloitte Haskins & Sells [1999] 3 VR 863; Efektiv Pty Ltd v Madgwicks [2022] VSCA 72; De Lutis v Rolfe [2023] VSCA 323; Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [No 2] [2016] VSCA 183; Vella v Waybecca Pty Ltd [2022] VSCA 120; Udowenko and Ors v Chief Executive Officer & Board of Directors of St Georges Bank - a Division of Westpac Banking Corporation and Ors [No 2] [2011] NSWSC 1122, considered.
Director of Public Prosecutions v GR [2025] VSC 490; Re Walker [2025] VSC 714; Re Zita (a solicitor) [2022] VSC 354, approved.
INTERLOCUTORY INJUNCTION - Application to restrain service of notices to vacate on public housing residents - Whether injunctive relief necessary to preserve subject matter of litigation - Prospects of success of application for special leave - Balance of convenience - No undertaking as to damages - Exceptional circumstances - Application for injunctive relief granted.
INTERLOCUTORY INJUNCTION - Application to restrain service of notices to vacate on public housing residents - Whether injunctive relief necessary to preserve subject matter of litigation - Prospects of success of application for special leave - Balance of convenience - No undertaking as to damages - Exceptional circumstances - Application for injunctive relief granted.
Evidence Act 2008, s 135.
Housing Act 1983, s 15(1)(a).
Judiciary Act 1903 (Cth), s 35A.
Residential Tenancies Act 1997, s 91ZY.
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Rinehart v Welker (2012) 83 NSWLR 347; Australian Football League v Carlton Football Club Ltd (Victorian Court of Appeal, Tadgell, Hayne JJA and Ashley AJA, 1 August 1997), applied.
COSTS - Appeal - Mixed success - Appellants failed on four out of five proposed grounds of appeal - Result was that one order of court below was set aside, but two were not - Issues on which appellants failed were more significant than issue on which they succeeded - Four unsuccessful grounds occupied the great bulk of the parties' written submissions and oral argument - General principle that costs follow the event not appropriate - Court may take a pragmatic approach and order party to pay a percentage of other parties' costs - Appellant to pay 80 per cent of the first to third respondents' costs on the standard basis.
COSTS - Appeal - Mixed success - Appellants failed on four out of five proposed grounds of appeal - Result was that one order of court below was set aside, but two were not - Issues on which appellants failed were more significant than issue on which they succeeded - Four unsuccessful grounds occupied the great bulk of the parties' written submissions and oral argument - General principle that costs follow the event not appropriate - Court may take a pragmatic approach and order party to pay a percentage of other parties' costs - Appellant to pay 80 per cent of the first to third respondents' costs on the standard basis.
COSTS - Appeal - Interveners' costs - Calderbank offers by interveners - Interveners were counsel for respondents - Appellants made serious allegations against interveners and sought order for costs against them - Appellants unsuccessful on all grounds concerning interveners - Interveners made Calderbank offer that parties bear their own costs - Offer stated that parties would enter into a deed - Offer open for five days - Appellants refused Calderbank offer - Whether interveners entitled to indemnity costs - Whether offer was a genuine compromise - Whether offer subject to deed was capable of acceptance - Whether appellants' rejection of offer was unreasonable - Appellants to pay interveners' costs on indemnity basis from date after Calderbank offer.
Nom de Plume Nominees Pty Ltd v Fingal Developments Pty Ltd [No 2] [2016] VSCA 233; Wills v Chief Executive Officer of the Australian Skills Quality Authority [2022] FCAFC 43; United Petroleum Australia Pty Ltd v Herbert Smith Freehills (No 2) [2018] VSC 501; Hazeldene's Chicken Farm v Workcover Authority (Vic) (No 2) (2005) 13 VR 435; Godecke v Kirwan (1973) 129 CLR 629, applied.
Naqebullah v State of Victoria [2024] VSCA 307; Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618; Amorosi v Robinson (No 2) [2024] VSC 806, discussed.
ACCIDENT COMPENSATION - Transport accident - Serious injury application - Chronic pain condition - Paragraph (a) of definition of serious injury - Whether applicant required to establish existence of ongoing physical injury in order to succeed in claim based on paragraph (a) of definition - Whether judge erred in dismissing applicant's claim on basis of applicant's failure to establish existence of ongoing physical injury - No error made by judge - Application for leave to appeal refused.
ACCIDENT COMPENSATION - Transport accident - Serious injury application - Chronic pain condition - Paragraph (a) of definition of serious injury - Whether applicant required to establish existence of ongoing physical injury in order to succeed in claim based on paragraph (a) of definition - Whether judge erred in dismissing applicant's claim on basis of applicant's failure to establish existence of ongoing physical injury - No error made by judge - Application for leave to appeal refused.
EVIDENCE - Judge found applicant's evidence unreliable - Whether, notwithstanding unreliability, judge erred not granting applicant's application - Whether judge erred in failing to consider all of the evidence - Whether evidence from witnesses not cross-examined was unchallenged - Whether relevant aspects of applicant's evidence unchallenged - Whether, notwithstanding unreliability of applicant's evidence, judge erred in not accepting medical evidence - No error made by judge - Application for leave to appeal refused.
Transport Accident Act 1986, s 93.
Humphries v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79, applied.
Meadows v Lichmore [2013] VSCA 201, discussed.
CORPORATIONS - Application for leave to appeal - Applicant majority shareholder - Respondent minority shareholder - Primary judge held that applicant engaged in oppressive conduct under s 232 of Corporations Act 2001 (Cth) and ordered buy out of minority shareholder - Applicant sought leave to appeal - Applicant held to have no real prospect of success - Application for leave to appeal refused.
CORPORATIONS - Application for leave to appeal - Applicant majority shareholder - Respondent minority shareholder - Primary judge held that applicant engaged in oppressive conduct under s 232 of Corporations Act 2001 (Cth) and ordered buy out of minority shareholder - Applicant sought leave to appeal - Applicant held to have no real prospect of success - Application for leave to appeal refused.
Supreme Court Act 1986, s 14A; Supreme Court (General Civil Procedure) Rules 2015, r 64.15; Corporations Act 2001 (Cth), s 232-233.
Kennedy v Shire of Campaspe [2015] VSCA 47; Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189; Etna & Anor v Arif & Ors [1999] 2 VR 353; A Team Diamond Headquarters Pty Ltd & Anor v Main Road Property Group Pty Ltd & Ors (2009) 25 VR 189; Commissioner of the Australian Federal Police v Opal Storm Pty Ltd & Ors [2018] VSCA 301, referred to.
ADMINISTRATIVE LAW - Judicial review - Appeal - Respondent (a police officer) participated in messages with other Victoria Police employees involving discriminatory remarks and sharing of sensitive information - Respondent charged with breach of discipline - Officer authorised to inquire into and determine the charge (the 'DIO') amended the charge in the course of the inquiry - DIO found charge proven and determined respondent should be dismissed from Victoria Police - Respondent applied to review the determination to the Police Registration and Services Board - Board affirmed DIO's decision - Respondent applied for judicial review of Board's decision - Primary judge found DIO's amendment of charge was invalid and that Board's decision contained an error of law on the face of the record in that it failed to find that the dismissal was 'unjust' - Appeal allowed - DIO had power to amend charge - Further, 'unjust' finding would not have inevitably followed from finding that amendment was invalid.
ADMINISTRATIVE LAW - Judicial review - Appeal - Respondent (a police officer) participated in messages with other Victoria Police employees involving discriminatory remarks and sharing of sensitive information - Respondent charged with breach of discipline - Officer authorised to inquire into and determine the charge (the 'DIO') amended the charge in the course of the inquiry - DIO found charge proven and determined respondent should be dismissed from Victoria Police - Respondent applied to review the determination to the Police Registration and Services Board - Board affirmed DIO's decision - Respondent applied for judicial review of Board's decision - Primary judge found DIO's amendment of charge was invalid and that Board's decision contained an error of law on the face of the record in that it failed to find that the dismissal was 'unjust' - Appeal allowed - DIO had power to amend charge - Further, 'unjust' finding would not have inevitably followed from finding that amendment was invalid.
Victoria Police Act 2013, ss 125(1)(j), 130, 152(2), (3), pt 8 div 2; Victoria Police Regulations 2014, reg 52; Interpretation of Legislation Act, s 41A.
Kirkham v Industrial Relations Commissioner & Anor (2015) 121 SASR 471; Byrne v Australian Airlines Ltd (1995) 185 CLR 410, applied; Chief Commissioner of Police v HDB [2024] VSC 465, not followed.
Collector of Customs v Agfa- Gevaert Ltd (1996) 186 CLR 389; SAS Trustee Corporation v Miles (2018) 265 CLR 137; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; R v Young (1999) 46 NSWLR 681, applied.
Attorney-General (NSW) v Quin (1990) 170 CLR 1; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, considered.
CONTRACT - Construction of commercial contracts - Entitlement to claim progress payments under s 9, Building and Construction Industry Security of Payment Act 2002 - Whether contractual precondition to claim progress payments for Structure stage had been met - Contract entitled applicant to claim payment for Structure stage when 'building's structural steel frame and concrete panel works' had been 'completed and approved by a building surveyor' - Contractual preconditions to entitlement to progress payments partly corresponded to mandatory notification stages and inspections under Building Act 1993, with further preconditions - Builder entitled to milestone payment only when work had been 'approved' - No requirement under Building Act 1993 for affirmative approval of building work - Whether precondition of 'approval by a building surveyor' in contract supplementary to statutory regime - Builder entitled to progress payment only when agreed works 'approved' - Concrete panel works not inspected - Agreed works not 'approved' - Leave to appeal refused.
CONTRACT - Construction of commercial contracts - Entitlement to claim progress payments under s 9, Building and Construction Industry Security of Payment Act 2002 - Whether contractual precondition to claim progress payments for Structure stage had been met - Contract entitled applicant to claim payment for Structure stage when 'building's structural steel frame and concrete panel works' had been 'completed and approved by a building surveyor' - Contractual preconditions to entitlement to progress payments partly corresponded to mandatory notification stages and inspections under Building Act 1993, with further preconditions - Builder entitled to milestone payment only when work had been 'approved' - No requirement under Building Act 1993 for affirmative approval of building work - Whether precondition of 'approval by a building surveyor' in contract supplementary to statutory regime - Builder entitled to progress payment only when agreed works 'approved' - Concrete panel works not inspected - Agreed works not 'approved' - Leave to appeal refused.
Building and Construction Industry Security of Payment Act 2002, ss 3, 9; Building Act 1993, ss 33(1), 34, 35A, 76, 238; Building Regulations 2018, regs 167, 171.
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, applied.
CONTRACT - Major domestic building contract - Claim for progress payment - Contract containing divisible obligations of performance in respect of each construction stage - Relevance of defects to completion of intermediate construction stage - Whether lock-up stage complete - Plyboard barrier in place of door or temporary door - Lock-up stage not complete - Builder not entitled to progress payment - Neither party effectively rescinded contract - Mutual abandonment of contract - Builder failed to establish claim for quantum meruit - Appeal against dismissal of counterclaim partly allowed - Owners entitled to liquidated damages - Leave to appeal granted - Appeal allowed.
CONTRACT - Major domestic building contract - Claim for progress payment - Contract containing divisible obligations of performance in respect of each construction stage - Relevance of defects to completion of intermediate construction stage - Whether lock-up stage complete - Plyboard barrier in place of door or temporary door - Lock-up stage not complete - Builder not entitled to progress payment - Neither party effectively rescinded contract - Mutual abandonment of contract - Builder failed to establish claim for quantum meruit - Appeal against dismissal of counterclaim partly allowed - Owners entitled to liquidated damages - Leave to appeal granted - Appeal allowed.
Domestic Building Contracts Act 1995, s 40; Building Act 1993, s 106.
Cardona v Brown (2012) 35 VR 538, considered; Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560, Foran v Wright (1989) 168 CLR 385, Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635, Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221, applied.
PRACTICE AND PROCEDURE - Application to adduce further evidence - Leave to adduce further evidence denied but for two documents.
Supreme Court (General Civil Procedure) Rules 2025, r 64.13.
Carroll v Goff [2021] VSCA 267, Foody v Horewood [2007] VSCA 130, applied.
CONTRACT - Guarantee - Guarantee of new tenants' obligations under assignment of lease - New tenants promised in cl 3 of assignment to 'pay the Rent and do everything else required by the lease for the remainder of the lease and any period it stays in possession after it ends' - Lease contained express overholding provisions - New guarantee at time of assignment that the new tenant 'will pay the rent promptly and do everything the lease requires' - Proper construction of guarantee to be determined having regard to proper construction of new tenants' obligations in cl 3 - Whether guarantee extended to period during which new tenant remained in possession under new agreement to lease - Properly construed, obligations of guarantor limited to obligation to pay rent under the lease (including the overholding provision), not pursuant to any new agreement to lease under which new tenant remains in possession - Obligation sufficiently certain and not ambiguous - No need to resort to strictissimi juris principle in construing guarantee - Leave to appeal granted - Appeal allowed.
CONTRACT - Guarantee - Guarantee of new tenants' obligations under assignment of lease - New tenants promised in cl 3 of assignment to 'pay the Rent and do everything else required by the lease for the remainder of the lease and any period it stays in possession after it ends' - Lease contained express overholding provisions - New guarantee at time of assignment that the new tenant 'will pay the rent promptly and do everything the lease requires' - Proper construction of guarantee to be determined having regard to proper construction of new tenants' obligations in cl 3 - Whether guarantee extended to period during which new tenant remained in possession under new agreement to lease - Properly construed, obligations of guarantor limited to obligation to pay rent under the lease (including the overholding provision), not pursuant to any new agreement to lease under which new tenant remains in possession - Obligation sufficiently certain and not ambiguous - No need to resort to strictissimi juris principle in construing guarantee - Leave to appeal granted - Appeal allowed.
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; Bofinger v Kingsway Group Ltd (2009) 239 CLR 269; Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549; Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; Chan v Cresdon Pty Ltd (1989) 168 CLR 242; Cao v Baccello Pty Ltd [2020] WASCA 82, referred to.
CRIMINAL LAW - Application for leave to appeal against conviction - Applicant seeks documents from Chief Commissioner of Victoria Police - Application pursuant to s 317 of the Criminal Procedure Act 2009 (Vic) - Where the respondent to production submits that the application has no legitimate forensic purpose - Where the respondent to production submits that the applicant impermissibly seeks to relitigate matters - Where orders for production are in the interests of justice - Where the applicant has identified limited legitimate forensic purpose.
CRIMINAL LAW - Application for leave to appeal against conviction - Applicant seeks documents from Chief Commissioner of Victoria Police - Application pursuant to s 317 of the Criminal Procedure Act 2009 (Vic) - Where the respondent to production submits that the application has no legitimate forensic purpose - Where the respondent to production submits that the applicant impermissibly seeks to relitigate matters - Where orders for production are in the interests of justice - Where the applicant has identified limited legitimate forensic purpose.
Criminal Procedure Act 2009 (Vic), ss 274, 326A and 317.
Zirilli v The Queen [2021] VSCA 174; Polimeni v The Queen [2022] VSCA 20; Ragg v Magistrates' Court of Victoria [2008] VSC 1; (2008) 18 VR 300; Zirilli v The Queen (2021) 287 A Crim R 407; [2021] VSCA 2; State of Victoria (Department of Justice) v Lane [2012] VSC 328; Holloway v State of Victoria (Department of Justice) (2015) 73 MVR 145; [2015] VSC 526; Binse v The King [2025] VSCA 158.
CRIMINAL LAW - Sentence - Application for leave to appeal - Applicant charged with theft and conduct endangering persons - Applicant and co-offender jointly charged with discharging firearm - Applicant had related summary charges including offending whilst on bail - Whether applicant doubly punished for offending whilst on bail - Whether parity principle breached when sentencing applicant and co-offender - Application refused.
CRIMINAL LAW - Sentence - Application for leave to appeal - Applicant charged with theft and conduct endangering persons - Applicant and co-offender jointly charged with discharging firearm - Applicant had related summary charges including offending whilst on bail - Whether applicant doubly punished for offending whilst on bail - Whether parity principle breached when sentencing applicant and co-offender - Application refused.
Criminal Procedure Act 2009, s 280(1)(b).
Farrugia v The Queen (2011) 32 VR 140; DPP v Milson [2019] VSCA 55; Idrizi v The King [2025] VSCA 286, referred to.
CRIMINAL LAW - Appeal - Conviction - Applicant convicted on 10 counts of dishonestly causing a loss to the Commonwealth - Applicant allegedly engaged in enterprise of property development - Loss alleged as failure to pay goods and services tax ('GST') on taxable supplies made in course of enterprise - Where prosecutor erred by stating that each sale price expressed as 'inclusive of GST' was 'as such' a taxable supply - Where prosecutor erred by referring to 'collection' or 'receipt' of GST 'paid' by purchaser and to be 'remitted' to Australian Taxation Office - Where jury invited to consider case on erroneous basis that alleged loss fixed and quantified as amount in Appendix to notice of agreed facts - Where knowledge and dishonesty in issue - Errors had capacity to affect result of trial - Substantial miscarriage of justice - Leave to appeal granted - Appeal allowed - Conviction quashed.
CRIMINAL LAW - Appeal - Conviction - Applicant convicted on 10 counts of dishonestly causing a loss to the Commonwealth - Applicant allegedly engaged in enterprise of property development - Loss alleged as failure to pay goods and services tax ('GST') on taxable supplies made in course of enterprise - Where prosecutor erred by stating that each sale price expressed as 'inclusive of GST' was 'as such' a taxable supply - Where prosecutor erred by referring to 'collection' or 'receipt' of GST 'paid' by purchaser and to be 'remitted' to Australian Taxation Office - Where jury invited to consider case on erroneous basis that alleged loss fixed and quantified as amount in Appendix to notice of agreed facts - Where knowledge and dishonesty in issue - Errors had capacity to affect result of trial - Substantial miscarriage of justice - Leave to appeal granted - Appeal allowed - Conviction quashed.
CRIMINAL LAW - Appeal - Conviction - New evidence - Application to adduce evidence previously given by witness in separate proceeding - Evidence could have been obtained with reasonable diligence - No significant possibility that evidence would have led jury to acquit in any event - Application refused.
CRIMINAL LAW - Appeal - Conviction - Where witness's memory significantly impaired and inconsistent with other evidence - Where limited contemporaneous documentary evidence - Where investigator's recording of interview with witness destroyed - Defence counsel addressed jury on issue of witness's reliability - Verdict not unreasonable or unable to be supported.
TAXATION - Goods and Services Tax - Enterprise - Meaning of phrase 'adventure or concern in the nature of trade' in s 9-20(1)(b) of A New Tax System (Goods and Services Tax) Act 1999 (Cth) ('GST Act') - Adventure or concern need not be 'isolated' - Evidence capable of showing that applicant engaged in adventure or concern in nature of trade - Verdict open.
CRIMINAL LAW - Appeal - Conviction - Whether trial judge's failure to direct jury on s 9-20(2)(c) of GST Act resulted in substantial miscarriage of justice - Where relevant evidence included documents unlikely to assist applicant - Defence counsel's approach explicable on basis of forensic advantage - No substantial miscarriage of justice.
CRIMINAL LAW - Appeal - Conviction quashed on appeal - Whether appropriate to order retrial or acquittal - Entirety of sentence having been served - Many years since alleged offending - Where memories of witnesses already adversely affected - Retrial not in interests of justice - Acquittal ordered.
A New Tax System (Goods and Services Tax) Act 1999 (Cth) ss 7-1, 7-5, 9-5, 9-10, 9-20, 9-40, 9-70, 9-75, 11-5, 17-5, 23-5, 31-5, 75-5, 75-10, 188-25; Criminal Code Act 1995 (Cth) sch 1 ss 5.3, 130.1, 130.3, 130.4, 135.1(5); Criminal Procedure Act 2009 ss 276, 277(1).
Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; Vinaccia v The Queen (2022) 70 VR 36, applied.
Applicant for an ABN v Registrar of the Australian Business Register (2007) 65 ATR 434; AB v Commissioner of Taxation (Cth) (1997) 37 ATR 225; Duoedge Pty Ltd v Leong [2013] VSC 36; R v Cranston [No 21] [2022] NSWSC 1616; R v Phan (2010) 106 SASR 116, discussed.
Borg v The King [2024] VSCA 65; Holland v The King [2025] VSCA 5; Konebada Pty Ltd v Federal Commissioner of Taxation (2023) 115 ATR 542; Rabey v The Queen [1980] WAR 84, referred to.
SECURITY FOR COSTS - Application by plaintiff for security of costs - Solicitor fee estimates - Broad-brush approach - Professional costs and disbursements - Rule 62.02 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Section 1335 of the Corporations Act 2001 (Cth) - Additional security - Global discount.
SECURITY FOR COSTS - Application by plaintiff for security of costs - Solicitor fee estimates - Broad-brush approach - Professional costs and disbursements - Rule 62.02 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Section 1335 of the Corporations Act 2001 (Cth) - Additional security - Global discount.
COSTS - Discretion - Apportionment - Issue by issue apportionment - Further application - GJB Building Pty Ltd v AI&PB Property Pty Ltd [2024] VSC 790.
COSTS - Discretion - Apportionment - Issue by issue apportionment - Further application - GJB Building Pty Ltd v AI&PB Property Pty Ltd [2024] VSC 790.
CONTRACT - Loan agreement - Where alleged loan agreement was not formally documented - Whether loan agreement can be inferred from company books and records - Corporations Act 2001 (Cth) s 1305.
CONTRACT - Loan agreement - Where alleged loan agreement was not formally documented - Whether loan agreement can be inferred from company books and records - Corporations Act 2001 (Cth) s 1305.
WINDING UP - Voidable transactions - Unreasonable director-related transactions - Corporations Act 2001 (Cth) ss 588FDA, 588FE, 588FF.
GROUP PROCEEDINGS - Costs - Application to vary a group costs order prior to settlement - Contradictor appointed - Standing to bring application - Relevant considerations for varying a group costs order prior to settlement of group proceeding - Whether variation of group costs order to a tiered rate is appropriate and necessary to ensure that justice is done in the proceeding - Confidentiality of reasons - Supreme Court Act 1986 (Vic) Part 4A, s 33ZDA.
GROUP PROCEEDINGS - Costs - Application to vary a group costs order prior to settlement - Contradictor appointed - Standing to bring application - Relevant considerations for varying a group costs order prior to settlement of group proceeding - Whether variation of group costs order to a tiered rate is appropriate and necessary to ensure that justice is done in the proceeding - Confidentiality of reasons - Supreme Court Act 1986 (Vic) Part 4A, s 33ZDA.
CONTRACTS - Construction of building contracts - Construction of contractual notices - Where a subcontract contained a clause purporting to suspend downstream Linked Claims and Linked Disputes pending the resolution of Linked Claims and Linked Disputes upstream under a head contract - Whether the subcontractor had made Linked Claims and whether they remained in existence - Whether disputes identified in a notice of dispute issued by the contractor identified Linked Claims or Linked Disputes - Alphington Developments Pty Ltd v Amcor Pty Ltd [2025] VSCA 48, referred to - Held that Linked Disputes identified in the contractor's notice of dispute remained extant - Application dismissed.
CONTRACTS - Construction of building contracts - Construction of contractual notices - Where a subcontract contained a clause purporting to suspend downstream Linked Claims and Linked Disputes pending the resolution of Linked Claims and Linked Disputes upstream under a head contract - Whether the subcontractor had made Linked Claims and whether they remained in existence - Whether disputes identified in a notice of dispute issued by the contractor identified Linked Claims or Linked Disputes - Alphington Developments Pty Ltd v Amcor Pty Ltd [2025] VSCA 48, referred to - Held that Linked Disputes identified in the contractor's notice of dispute remained extant - Application dismissed.
CONTRACTS - Construction of building sub-contract - Security of payment - Whether a provision of the subcontract was rendered of no effect by reason of s 13 of the Building and Construction Industry Security of Payment Act 2002 (Vic), or void by reason of s 48 - Where there was no payment claim on foot - Maxcon Constructions Pty Ltd v Vadasz (2018) 264 CLR 46, Lal Lal Wind Farms Nom Co Pty Ltd v Vestas - Australian Wind Technology Pty Ltd [2021] VSC 807, referred to - JG King Project Management Pty Ltd v Hunters Green Retirement Living Pty Ltd (2024) 77 VR 406, SSC Plenty Road Pty Ltd v Construction Engineering (Aust) Pty Ltd [2016] VSCA 119, referred to - Held that s 13 did not apply in the absence of a payment claim - Held that it would not be a proper exercise of discretion to declare the contractual provision void under s 48 on a basis divorced from any factual dispute - Application dismissed.
PRACTICE AND PROCEDURE - Declarations - Whether declaratory relief should be granted pursuant to the Supreme Court Act 1986 (Vic), s 36 - Where declarations sought in hypothetical circumstances - Hobart International Airport Pty Ltd v Clarence City Council (2022) 276 CLR 519 - Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 - Ansett Australia Ground Staff Superannuation Fund Pty Ltd v Ansett Australia Ltd (2003) 176 FLR 393, followed - Held that declaratory relief refused as it was divorced from the facts and hypothetical - Declaration refused.
CORPORATIONS - Application to settle proceeding brought on behalf of company in liquidation - Proceeding was commenced pursuant to derivative leave obtained under the Court's inherent jurisdiction - Whether leave to settle is required to settle a proceeding commenced pursuant to derivative leave granted in the Court's inherent jurisdiction - Circumstances of this case mean that leave is required before proceeding can be settled - Terms of order made when granting derivative leave unlikely to encompass settlement - Liquidators are defendants in this proceeding - Court's supervisory role regarding derivative proceedings extends to settlement of such proceedings.
CORPORATIONS - Application to settle proceeding brought on behalf of company in liquidation - Proceeding was commenced pursuant to derivative leave obtained under the Court's inherent jurisdiction - Whether leave to settle is required to settle a proceeding commenced pursuant to derivative leave granted in the Court's inherent jurisdiction - Circumstances of this case mean that leave is required before proceeding can be settled - Terms of order made when granting derivative leave unlikely to encompass settlement - Liquidators are defendants in this proceeding - Court's supervisory role regarding derivative proceedings extends to settlement of such proceedings.
CORPORATIONS - Liquidation of trustee company - Company operated exclusively in its capacity as trustee - Whether liquidator justified and acting reasonably in so concluding - Whether to appoint liquidator as receiver and manager pursuant to s 37(1) of the Supreme Court Act 1986 (Vic) or make orders pursuant to s 63 of Trustee Act 1958 (Vic) - Liquidator appointed as receiver and manager - Re Waratah Group Pty Ltd (in liq) [2020] VSC 523, applied; Re Amerind Pty Ltd (receivers and managers apptd) (in liq) (2017) 320 FLR 118, applied - Powers granted under s 420 of Corporations Act 2001 (Vic) - Appointment made nunc pro tunc.
CORPORATIONS - Liquidation of trustee company - Company operated exclusively in its capacity as trustee - Whether liquidator justified and acting reasonably in so concluding - Whether to appoint liquidator as receiver and manager pursuant to s 37(1) of the Supreme Court Act 1986 (Vic) or make orders pursuant to s 63 of Trustee Act 1958 (Vic) - Liquidator appointed as receiver and manager - Re Waratah Group Pty Ltd (in liq) [2020] VSC 523, applied; Re Amerind Pty Ltd (receivers and managers apptd) (in liq) (2017) 320 FLR 118, applied - Powers granted under s 420 of Corporations Act 2001 (Vic) - Appointment made nunc pro tunc.
PRACTICE AND PROCEDURE - Abuse of Process - Whether the doctrine of abuse of process can preclude a person, who is neither a party or a privy of a party from earlier proceedings, from raising related claims in subsequent proceedings - Whether a new claim in the successive proceeding by the alter ego of a corporate entity must be permanently stayed - Claim materially inconsistent with claim advanced by corporate alter ego in earlier proceeding - Stay granted - Civil Procedure Act 2010 (Vic) ss 7, 8 - UBS AG v Tyne as Trustee of the Argot Trust (2018) 265 CLR 77 applied - Madden (Receiver) v Mining Standards International Pty Ltd [2025] FCAFC 142 applied.
PRACTICE AND PROCEDURE - Abuse of Process - Whether the doctrine of abuse of process can preclude a person, who is neither a party or a privy of a party from earlier proceedings, from raising related claims in subsequent proceedings - Whether a new claim in the successive proceeding by the alter ego of a corporate entity must be permanently stayed - Claim materially inconsistent with claim advanced by corporate alter ego in earlier proceeding - Stay granted - Civil Procedure Act 2010 (Vic) ss 7, 8 - UBS AG v Tyne as Trustee of the Argot Trust (2018) 265 CLR 77 applied - Madden (Receiver) v Mining Standards International Pty Ltd [2025] FCAFC 142 applied.
PRACTICE AND PROCEDURE - Order 42A - Subpoena objections - Subpoenas issued prior to filing of defence - Whether subpoenas premature - Whether subpoenas issued for a legitimate forensic purpose - Wawryk v Mercedes-Benz Australia/Pacific Pty Ltd (Subpoena Ruling) [2024] VSC 120 - Universal Press Pty Limited v Provest Limited [1989] FCA 402 - Volunteer Fire Brigades Victoria v CFA (discovery ruling) [2016] VSC 573 - HungryPanda AU Pty Ltd v Fantuan Australia Pty Ltd [2022] VSC 448 - Whether inspection should be deferred - Subpoenas allowed - Inspection not deferred.
PRACTICE AND PROCEDURE - Order 42A - Subpoena objections - Subpoenas issued prior to filing of defence - Whether subpoenas premature - Whether subpoenas issued for a legitimate forensic purpose - Wawryk v Mercedes-Benz Australia/Pacific Pty Ltd (Subpoena Ruling) [2024] VSC 120 - Universal Press Pty Limited v Provest Limited [1989] FCA 402 - Volunteer Fire Brigades Victoria v CFA (discovery ruling) [2016] VSC 573 - HungryPanda AU Pty Ltd v Fantuan Australia Pty Ltd [2022] VSC 448 - Whether inspection should be deferred - Subpoenas allowed - Inspection not deferred.
PRACTICE AND PROCEDURE - Security for costs - Application by third defendant (Jiang) for security of $440,000 for proceeding up to trial - Further application for security of $241,309.87 in respect of undertaking as to damages supporting interlocutory injunction - Consideration of presence of foreign plaintiff - Grant of security unopposed by plaintiff - Quantum of security contested - Broad brush approach - Discretionary factors and relevant legal principles - Whether estimated costs are excessive - Whether security should extend to past costs - Security granted in part based on the Judge's calculations - Staged security - Order made - Trailer Trash Franchise Systems Pty Ltd v GM Fascia & Gutter Pty Ltd [2017] VSCA 293, [63]-[65] - Oswal v Australia and New Zealand Banking Group Ltd [2016] VSC 52.
PRACTICE AND PROCEDURE - Security for costs - Application by third defendant (Jiang) for security of $440,000 for proceeding up to trial - Further application for security of $241,309.87 in respect of undertaking as to damages supporting interlocutory injunction - Consideration of presence of foreign plaintiff - Grant of security unopposed by plaintiff - Quantum of security contested - Broad brush approach - Discretionary factors and relevant legal principles - Whether estimated costs are excessive - Whether security should extend to past costs - Security granted in part based on the Judge's calculations - Staged security - Order made - Trailer Trash Franchise Systems Pty Ltd v GM Fascia & Gutter Pty Ltd [2017] VSCA 293, [63]-[65] - Oswal v Australia and New Zealand Banking Group Ltd [2016] VSC 52.
PRACTICE AND PROCEDURE - Application for adjournment of the proceeding for a period of six months - Plaintiff seeking litigation funding - Whether further steps should be taken in the proceeding in the interim - Application refused and timetabling orders made.
PRACTICE AND PROCEDURE - Application for adjournment of the proceeding for a period of six months - Plaintiff seeking litigation funding - Whether further steps should be taken in the proceeding in the interim - Application refused and timetabling orders made.
PRACTICE AND PROCEDURE - Leave to discontinue and cost consequences - Where defendant seeks costs on indemnity basis or from plaintiff - Where defendant says plaintiff acted unreasonably in commencing separate litigation seeking inconsistent relief - Special circumstances found - Supreme Court (General Civil Procedure) Rules 2025 (Vic) rr 25.05 and 63.15.
PRACTICE AND PROCEDURE - Leave to discontinue and cost consequences - Where defendant seeks costs on indemnity basis or from plaintiff - Where defendant says plaintiff acted unreasonably in commencing separate litigation seeking inconsistent relief - Special circumstances found - Supreme Court (General Civil Procedure) Rules 2025 (Vic) rr 25.05 and 63.15.
CORPORATIONS - Corporations Act 2001 (Cth) - Part 5.4 - Ulterior or collateral purpose in commencing winding up application - Removal and replacement of corporate trustee - Forced sale of properties in liquidation scenario - Abuse of process.
PRACTICE AND PROCEDURE - Legal professional privilege - Section 118(c) of the Evidence Act 2008 (Vic) - Plaintiffs engaged lawyers to provide legal services in relation to building dispute - Lawyers subsequently engaged experts - Whether dominant purpose of communications between lawyers and experts was for legal advice - Whether evidence from lawyer who did not author communications was sufficient evidence of dominant purpose - Inferences to be drawn from context - AWB v Cole (No 5) (2006) 155 FCR 30 - Court's discretion to inspect documents over which privilege claimed pursuant to s 133 of the Evidence Act - Cargill Australia Ltd v Viterra Malt Pty Ltd (No 8) [2018] VSC 193 considered - Whether plaintiffs' selective disclosure of privileged material in pleading constitutes waiver of privilege in undisclosed documents - Meaning of 'inconsistency' in s 122 Evidence Act - Viterra Malt Pty Ltd v Cargill Australia Ltd (2018) 58 VR 333 - Held: Documents privileged but privilege waived.
PRACTICE AND PROCEDURE - Legal professional privilege - Section 118(c) of the Evidence Act 2008 (Vic) - Plaintiffs engaged lawyers to provide legal services in relation to building dispute - Lawyers subsequently engaged experts - Whether dominant purpose of communications between lawyers and experts was for legal advice - Whether evidence from lawyer who did not author communications was sufficient evidence of dominant purpose - Inferences to be drawn from context - AWB v Cole (No 5) (2006) 155 FCR 30 - Court's discretion to inspect documents over which privilege claimed pursuant to s 133 of the Evidence Act - Cargill Australia Ltd v Viterra Malt Pty Ltd (No 8) [2018] VSC 193 considered - Whether plaintiffs' selective disclosure of privileged material in pleading constitutes waiver of privilege in undisclosed documents - Meaning of 'inconsistency' in s 122 Evidence Act - Viterra Malt Pty Ltd v Cargill Australia Ltd (2018) 58 VR 333 - Held: Documents privileged but privilege waived.
PRACTICE AND PROCEDURE - Allegations not pleaded - Allegations raised during closing submissions - Exercise of discretion - Self-represented defendant - Insufficient notice of allegations - Declined to determine issues that were not adequately pleaded.
PRACTICE AND PROCEDURE - Allegations not pleaded - Allegations raised during closing submissions - Exercise of discretion - Self-represented defendant - Insufficient notice of allegations - Declined to determine issues that were not adequately pleaded.
EQUITY - Trusts - Whether funds held on trust - Common intention constructive trust - Joint endeavour constructive trust - Trustee de son tort - Barnes v Addy liability - Breach of institutional constructive trust not pleaded - Elements of trusts not proved - No breach of trust found.
EQUITY - Fiduciary duties - Indicia of fiduciary relationship - Alleged relationship of agent and principal - Breach of fiduciary duty not pleaded - Unregistered migration agent - No agency relationship as no capacity to affect purported principal's legal relations - Subjective trust and confidence and vulnerability insufficient - No fiduciary relationship found.
CONSUMER LAW - Misleading or deceptive conduct - Financial services - Australian Securities and Investment Commission Act 2001 (Cth) ss 12BAA, 12BAB, 12BB, 12DA - Corporations Act 2001 (Cth) ss 763A, 763B, 763E - Competition and Consumer Act 2010 (Cth) sch 2 - Australian Consumer Law ss 4, 18 - Whether investment for primarily immigration-related benefits was a "financial product" - Whether representation was made about a future matter without reasonable grounds - Corporations Act 2001 (Cth) ss 1041E, 1041F inapplicable as investment was not a "financial product" under the Corporations Act 2001 (Cth).
TORTS - Deceit - Defendant made representations with knowledge they were false or reckless or careless as to their truth - Defendant made representations with intention that plaintiff would rely on them - Plaintiff acted in reliance on representations - Causation - Deceit proved.
UNJUST ENRICHMENT - Money had and received - Vitiating factor not pleaded or proved.
CONTRACT - Whether plaintiff verbally agreed not to sue defendant - Insufficient evidence of agreement not to sue.
ESTOPPEL - Whether plaintiff estopped from resiling from representation not to sue defendant - Insufficient evidence of representation not to sue - Detriment and unconscionability not shown.
DAMAGES - Aggravated damages - Exemplary damages - No aggravated damages awarded as plaintiff did not identify damage requiring additional compensation - Exemplary damages awarded.
APPEALS - Workers compensation - Appeal by way of rehearing - Statutory construction - Text, context and purpose - Legislative history - 'Dark and thorny thickets' - Established construction - Accident Compensation Act 1985 (Vic), ss 80, 82(1), 82(6) and 134AB(1) - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss 37, 39(1), 39(3) and 326 - Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Martin v Bailey (2009) 26 VR 270; Rogers v State of Victoria [2011] VSC 298; Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232; Australian Rail Track Corporation Limited v Dollisson [2020] NSWCA 58 considered and followed - Appeal allowed.
APPEALS - Workers compensation - Appeal by way of rehearing - Statutory construction - Text, context and purpose - Legislative history - 'Dark and thorny thickets' - Established construction - Accident Compensation Act 1985 (Vic), ss 80, 82(1), 82(6) and 134AB(1) - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss 37, 39(1), 39(3) and 326 - Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Martin v Bailey (2009) 26 VR 270; Rogers v State of Victoria [2011] VSC 298; Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232; Australian Rail Track Corporation Limited v Dollisson [2020] NSWCA 58 considered and followed - Appeal allowed.
PROCEEDS OF CRIME - Restraining orders on properties - Applicants applied for substitution of properties subject to restraining orders with unrestrained properties - Where multiple parties involved in complex money laundering operation - Where unrestrained properties only partially owned by applicants - No explanations given by owners of unrestrained properties for accepting restraints - Whether proposed undertakings satisfactory given nature of broader proceeds of crime proceedings.
PROCEEDS OF CRIME - Restraining orders on properties - Applicants applied for substitution of properties subject to restraining orders with unrestrained properties - Where multiple parties involved in complex money laundering operation - Where unrestrained properties only partially owned by applicants - No explanations given by owners of unrestrained properties for accepting restraints - Whether proposed undertakings satisfactory given nature of broader proceeds of crime proceedings.
PRACTICE AND PROCEDURE - Restraining order on properties - Applicants apply for exclusion of properties from restraining orders - Where multiple parties involved in complex money laundering operation - Whether the Commissioner of the Australian Federal Police has had reasonable opportunity to conduct their examinations.
ADMINISTRATION AND PROBATE - CONTEMPT OF COURT - COSTS - Deceased left will appointing two sons as executors and leaving estate evenly between them - Grant of letters of administration on intestacy obtained by elder son on false assertion of intestacy - Other son sought account of administration and applied for revocation of letters of administration - Administrator ordered to provide account of administration by completing and verifying Form 3-6AA - Utility of revocation depended on account of administration - Administrator failed to provide Form 3-6AA - Application alleging contempt of court - Administrator claimed to have been acting on legal advice that he did not need to provide the Form 3-6AA - Notice and right to appear given to solicitors - Solicitors' written response corroborated administrator's claim that solicitors had advised he need not provide Form 3-6AA - Solicitors not briefed with relevant order - Solicitors' advice was incorrect through no fault of their own - Court again directed administrator to complete form - Errors in Form 3-6AA when belatedly provided - Whether Court satisfied beyond reasonable doubt that disobedience with order to provide form was wilful in all the circumstances - Indemnity costs.
ADMINISTRATION AND PROBATE - CONTEMPT OF COURT - COSTS - Deceased left will appointing two sons as executors and leaving estate evenly between them - Grant of letters of administration on intestacy obtained by elder son on false assertion of intestacy - Other son sought account of administration and applied for revocation of letters of administration - Administrator ordered to provide account of administration by completing and verifying Form 3-6AA - Utility of revocation depended on account of administration - Administrator failed to provide Form 3-6AA - Application alleging contempt of court - Administrator claimed to have been acting on legal advice that he did not need to provide the Form 3-6AA - Notice and right to appear given to solicitors - Solicitors' written response corroborated administrator's claim that solicitors had advised he need not provide Form 3-6AA - Solicitors not briefed with relevant order - Solicitors' advice was incorrect through no fault of their own - Court again directed administrator to complete form - Errors in Form 3-6AA when belatedly provided - Whether Court satisfied beyond reasonable doubt that disobedience with order to provide form was wilful in all the circumstances - Indemnity costs.
EQUITY - Joint tenancy - Severance - Whether holder of an equitable interest may sever a joint tenancy by unilateral act - Whether deceased acting as trustee or beneficiary - Corin v Patton (1990) 169 CLR 540 - Whitty v Talia (2023) 72 VR 1 - Williams v Hensman 70 ER 862; (1861) 1 John & H 546 - Property Law Act 1958 (Vic), s 53.
EQUITY - Joint tenancy - Severance - Whether holder of an equitable interest may sever a joint tenancy by unilateral act - Whether deceased acting as trustee or beneficiary - Corin v Patton (1990) 169 CLR 540 - Whitty v Talia (2023) 72 VR 1 - Williams v Hensman 70 ER 862; (1861) 1 John & H 546 - Property Law Act 1958 (Vic), s 53.
CONTRACT - Sale of units in a unit trust - Plaintiffs allege breach of restraint of trade - First defendant employed at competing business - Restraint clause not void for uncertainty - Whether first defendant working in restricted capacity - Not working in restricted capacity therefore no breach of restraint clause - Consideration of geographical and temporal restraints - Evidence of discounted purchase price without restraint clauses unpersuasive - No evidence of harm - Injunctive and declaratory relief inappropriate if clause had been breached - Proceeding dismissed.
CONTRACT - Sale of units in a unit trust - Plaintiffs allege breach of restraint of trade - First defendant employed at competing business - Restraint clause not void for uncertainty - Whether first defendant working in restricted capacity - Not working in restricted capacity therefore no breach of restraint clause - Consideration of geographical and temporal restraints - Evidence of discounted purchase price without restraint clauses unpersuasive - No evidence of harm - Injunctive and declaratory relief inappropriate if clause had been breached - Proceeding dismissed.
ADMINISTRATIVE LAW - Judicial review - Application for review of two decisions of Victorian Racing Tribunal (Tribunal) - Suspension of training license - Horse presented to race with prohibited substance detected - Whether Tribunal failed to afford procedural fairness in determining liability - No denial of procedural fairness or bias demonstrated - Alleged errors of law in construing and applying requirements of Racing Act 1958 (Vic) and Rules of Racing of Racing Victoria - Whether testing methods for therapeutic substance fit for purpose - Whether Tribunal failed to properly consider expert evidence - No error of law disclosed - Alleged failure of Tribunal to consider trainer's relative culpability in determining appropriate penalty - No error in exercise of Tribunal's discretion on penalty - Appeal dismissed.
ADMINISTRATIVE LAW - Judicial review - Application for review of two decisions of Victorian Racing Tribunal (Tribunal) - Suspension of training license - Horse presented to race with prohibited substance detected - Whether Tribunal failed to afford procedural fairness in determining liability - No denial of procedural fairness or bias demonstrated - Alleged errors of law in construing and applying requirements of Racing Act 1958 (Vic) and Rules of Racing of Racing Victoria - Whether testing methods for therapeutic substance fit for purpose - Whether Tribunal failed to properly consider expert evidence - No error of law disclosed - Alleged failure of Tribunal to consider trainer's relative culpability in determining appropriate penalty - No error in exercise of Tribunal's discretion on penalty - Appeal dismissed.
ADMINISTRATIVE LAW - Application for leave to appeal decision of Victorian Civil and Administrative Tribunal - Declaratory relief - Whether any practical or foreseeable consequences - Leave to appeal refused - Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 - Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148.
ADMINISTRATIVE LAW - Application for leave to appeal decision of Victorian Civil and Administrative Tribunal - Declaratory relief - Whether any practical or foreseeable consequences - Leave to appeal refused - Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 - Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148.
COSTS - Freezing order discharged - Whether costs should follow the event - Applicant failed to establish an unjustified dissipation of funds - Where respondent fails to reply to correspondence from the applicant - Where applicant fails to reach agreement with respondent prior to final hearing.
COSTS - Freezing order discharged - Whether costs should follow the event - Applicant failed to establish an unjustified dissipation of funds - Where respondent fails to reply to correspondence from the applicant - Where applicant fails to reach agreement with respondent prior to final hearing.
COSTS - Proceeding suppression order - Order 56 Review - Order refused by County Court - Appeal allowed - Proceeding remitted back to County Court - Application for costs by the Plaintiff - No order for costs made - Supreme Court Act 1986 (Vic) s 24 - Appeal Costs Act 1998 (Vic).
COSTS - Proceeding suppression order - Order 56 Review - Order refused by County Court - Appeal allowed - Proceeding remitted back to County Court - Application for costs by the Plaintiff - No order for costs made - Supreme Court Act 1986 (Vic) s 24 - Appeal Costs Act 1998 (Vic).
JUDICIAL REVIEW - Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) - Application for order in the nature of mandamus - Whether Magistrates' Court has jurisdiction to make costs orders in criminal proceeding after it has entered final orders disposing of charges - Where plaintiff had majority of charges against him dismissed and some days later sought to apply for costs - Where magistrate considered himself bound by Mansell v Keating and that he was functus officio upon entering final substantive orders - Statutory provisions conferring jurisdiction to order costs exercisable after entry of substantive orders - Court not functus officio in relation to jurisdiction to order costs - Mansell v Keating plainly wrong - Matter remitted to the Magistrates' Court to hear and determine costs application according to law - Mansell v Keating (Supreme Court of Victoria, O'Bryan J, 5 May 1995) - Brew v Whitlock (No 3) [1968] VR 504 - Whitlock v Brew (1968) 118 CLR 445 - Telescourt v Commonwealth of Australia (1991) 29 FCR 227 - Grace v Grace (No 9) [2014] NSWSC 1239 - Fosse v Director of Public Prosecutions (1989) 16 NSWLR 540 - In the Marriage of Kazimierczak [1987] FLC 91-849 - Director of Public Prosecutions v Hofschuster (1995) 125 FLR 239 - Magistrates' Court Act 1989 (Vic) s 131(1) - Criminal Procedure Act 2009 (Vic) s 401(1).
JUDICIAL REVIEW - Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) - Application for order in the nature of mandamus - Whether Magistrates' Court has jurisdiction to make costs orders in criminal proceeding after it has entered final orders disposing of charges - Where plaintiff had majority of charges against him dismissed and some days later sought to apply for costs - Where magistrate considered himself bound by Mansell v Keating and that he was functus officio upon entering final substantive orders - Statutory provisions conferring jurisdiction to order costs exercisable after entry of substantive orders - Court not functus officio in relation to jurisdiction to order costs - Mansell v Keating plainly wrong - Matter remitted to the Magistrates' Court to hear and determine costs application according to law - Mansell v Keating (Supreme Court of Victoria, O'Bryan J, 5 May 1995) - Brew v Whitlock (No 3) [1968] VR 504 - Whitlock v Brew (1968) 118 CLR 445 - Telescourt v Commonwealth of Australia (1991) 29 FCR 227 - Grace v Grace (No 9) [2014] NSWSC 1239 - Fosse v Director of Public Prosecutions (1989) 16 NSWLR 540 - In the Marriage of Kazimierczak [1987] FLC 91-849 - Director of Public Prosecutions v Hofschuster (1995) 125 FLR 239 - Magistrates' Court Act 1989 (Vic) s 131(1) - Criminal Procedure Act 2009 (Vic) s 401(1).
JUDICIAL REVIEW - Proceeding suppression order - Order 56 Review - Order refused by County Court - Whether a failure to consider relevant considerations - Whether irrationality, illogicality or unreasonableness in findings - Whether limited extent of order sought is a mandatory consideration - Mental health of the Plaintiff - Whether the evidence established the making of an order 'necessary' to protect the safety of any person - Causal connection between the making of the order and the safety of the person - Open Courts Act 2013 (Vic) ss 4, 18(1)(c), 19(1)(b) - Cooper v Herald & Weekly Times Pty Ltd & Ors [2013] VSC 589 - Director of Public Prosecutions v EN [2023] VSC 724, referred to.
JUDICIAL REVIEW - Proceeding suppression order - Order 56 Review - Order refused by County Court - Whether a failure to consider relevant considerations - Whether irrationality, illogicality or unreasonableness in findings - Whether limited extent of order sought is a mandatory consideration - Mental health of the Plaintiff - Whether the evidence established the making of an order 'necessary' to protect the safety of any person - Causal connection between the making of the order and the safety of the person - Open Courts Act 2013 (Vic) ss 4, 18(1)(c), 19(1)(b) - Cooper v Herald & Weekly Times Pty Ltd & Ors [2013] VSC 589 - Director of Public Prosecutions v EN [2023] VSC 724, referred to.
PRACTICE AND PROCEDURE - Security for costs - Whether there is a risk that the law practice may be unable to pay an adverse costs order - Whether law practice has sufficient assets in the jurisdiction - Law practice's assets to meet an adverse costs order located outside of the jurisdiction - Security for costs required to cover enforcement costs in other jurisdiction - PS Chellaram & Co Ltd v China Ocean Shipping Co (1991) 65 ALJR 642; Energy Drilling Inc v Petroz NL [1989] ATPR 40-954; Trailer Trash Franchise Systems Pty Ltd v GM Fascia & Gutter Pty Ltd [2017] VSCA 293; Nathan v Macquarie Leasing Pty Ltd [2024] VSC 794, considered.
PRACTICE AND PROCEDURE - Security for costs - Whether there is a risk that the law practice may be unable to pay an adverse costs order - Whether law practice has sufficient assets in the jurisdiction - Law practice's assets to meet an adverse costs order located outside of the jurisdiction - Security for costs required to cover enforcement costs in other jurisdiction - PS Chellaram & Co Ltd v China Ocean Shipping Co (1991) 65 ALJR 642; Energy Drilling Inc v Petroz NL [1989] ATPR 40-954; Trailer Trash Franchise Systems Pty Ltd v GM Fascia & Gutter Pty Ltd [2017] VSCA 293; Nathan v Macquarie Leasing Pty Ltd [2024] VSC 794, considered.
PRACTICE AND PROCEDURE - Application for judgment where no appearance under r 45.03 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) ('Rules') - Whether application for judgment in default of appearance under Order 21 of the Rules appropriate - Order 21 not appropriate where proceeding commenced by originating motion and continued as if commenced by writ under r 4.07 of the Rules - Loan agreements between plaintiff and multiple parties - Where proceedings settled between plaintiff and other parties except the first and third defendants - Where third defendant appeared in the proceeding - Where third defendant self-represented with limited knowledge of English - Where circumstances of the proceeding may have been misrepresented to third defendant - Where defendant alleges serious misconduct of other parties including a party previously a part of the proceeding - Where other parties denied opportunity to respond - Application dismissed.
PRACTICE AND PROCEDURE - Application for judgment where no appearance under r 45.03 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) ('Rules') - Whether application for judgment in default of appearance under Order 21 of the Rules appropriate - Order 21 not appropriate where proceeding commenced by originating motion and continued as if commenced by writ under r 4.07 of the Rules - Loan agreements between plaintiff and multiple parties - Where proceedings settled between plaintiff and other parties except the first and third defendants - Where third defendant appeared in the proceeding - Where third defendant self-represented with limited knowledge of English - Where circumstances of the proceeding may have been misrepresented to third defendant - Where defendant alleges serious misconduct of other parties including a party previously a part of the proceeding - Where other parties denied opportunity to respond - Application dismissed.
PRACTICE AND PROCEDURE - Application to set aside subpoenas - Where subpoenas issued to other parties including a former party in the proceeding - Abuse of process - Where evidence could be subject of future litigation - Subpoenas set aside.
PRACTICE AND PROCEDURE - Representative proceeding - Amendment to statement of claim following Court of Appeal decision - Lanzer v Lombardo [2025] VSCA 229 - Discovery of documents by category in group proceeding - Whether certain categories should be ordered to be discovered.
PRACTICE AND PROCEDURE - Representative proceeding - Amendment to statement of claim following Court of Appeal decision - Lanzer v Lombardo [2025] VSCA 229 - Discovery of documents by category in group proceeding - Whether certain categories should be ordered to be discovered.
CRIMINAL LAW - Bail - Murder - Applicant convicted of one charge of murder and acquitted of another - Conviction set aside on appeal due to conduct of prosecuting counsel compromising fairness of applicant's trial - Retrial ordered - Delay - Prospect of further delay - Whether exceptional circumstances exist that justify grant of bail - Bail refused - Bail Act 1977 ss 1B, 3AAA and 4A.
CRIMINAL LAW - Bail - Murder - Applicant convicted of one charge of murder and acquitted of another - Conviction set aside on appeal due to conduct of prosecuting counsel compromising fairness of applicant's trial - Retrial ordered - Delay - Prospect of further delay - Whether exceptional circumstances exist that justify grant of bail - Bail refused - Bail Act 1977 ss 1B, 3AAA and 4A.
APPEAL - Crown appeal of decision of Children's Court - Rehearing of trial - Respondent not bound - Sentence of Children's Court set aside - 12 month Youth Supervision Order without conviction imposed - Children, Youth and Families Act 2005 (Vic) ss 360, 389, 429, 534.
APPEAL - Crown appeal of decision of Children's Court - Rehearing of trial - Respondent not bound - Sentence of Children's Court set aside - 12 month Youth Supervision Order without conviction imposed - Children, Youth and Families Act 2005 (Vic) ss 360, 389, 429, 534.
CRIMINAL LAW - Sentence - Manslaughter by unlawful and dangerous act - Throwing object with intention to hit head - Kicking with intention to kick to the ground - Intoxication - Not guilty plea - Retrial - Prospects of rehabilitation - General and specific deterrence - Sentenced to 7 years and 9 months' imprisonment, with a non-parole period of 4 years and 8 months - Sentencing Act 1991 (Vic), s 5.
CRIMINAL LAW - Sentence - Manslaughter by unlawful and dangerous act - Throwing object with intention to hit head - Kicking with intention to kick to the ground - Intoxication - Not guilty plea - Retrial - Prospects of rehabilitation - General and specific deterrence - Sentenced to 7 years and 9 months' imprisonment, with a non-parole period of 4 years and 8 months - Sentencing Act 1991 (Vic), s 5.
CRIMINAL LAW - Sentencing - Contravene condition of supervision order (four charges) - Commit indictable offence while on bail (three charges) - Contravene family violence intervention order ("FVIO") (two charges) - Some charges rolled up - Summary hearing - Guilty pleas - Supervision order offences constituted by multiple instances of using methylamphetamine - Bail offences constituted by commission of supervision order offences while on bail - FVIO offences constituted by two unanswered phone calls to protected persons - Prior convictions for same offending, including imprisonment on supervision order and bail offences - Accused aged 49 - Early pleas of guilty - Childhood sexual abuse, military trauma, serious back injury, other afflictions, and poor resulting mental health explain resort to drug use - No suggestion of violence when using drugs on charged occasions - Particular hardship of prison given back pain, urinary and faecal incontinence, immobility (requires a walking frame), mental ill-health (including PTSD, major depressive disorder) - Mental and physical health likely to deteriorate in prison - Reasonable prospects of rehabilitation - Convicted and discharged on FVIO offences - Aggregate sentence of two months' imprisonment on supervision order and bail offences (time served) - Serious Offenders Act 2018 (Vic), ss 169, 173, 174 & 175; Family Violence Protection Act 2008 (Vic), s 123; Bail Act 1977 (Vic), s 30B; Sentencing Act 1991 (Vic), ss 5, 6AAA, 9, 18, 73, 113 & 113B.
CRIMINAL LAW - Sentencing - Contravene condition of supervision order (four charges) - Commit indictable offence while on bail (three charges) - Contravene family violence intervention order ("FVIO") (two charges) - Some charges rolled up - Summary hearing - Guilty pleas - Supervision order offences constituted by multiple instances of using methylamphetamine - Bail offences constituted by commission of supervision order offences while on bail - FVIO offences constituted by two unanswered phone calls to protected persons - Prior convictions for same offending, including imprisonment on supervision order and bail offences - Accused aged 49 - Early pleas of guilty - Childhood sexual abuse, military trauma, serious back injury, other afflictions, and poor resulting mental health explain resort to drug use - No suggestion of violence when using drugs on charged occasions - Particular hardship of prison given back pain, urinary and faecal incontinence, immobility (requires a walking frame), mental ill-health (including PTSD, major depressive disorder) - Mental and physical health likely to deteriorate in prison - Reasonable prospects of rehabilitation - Convicted and discharged on FVIO offences - Aggregate sentence of two months' imprisonment on supervision order and bail offences (time served) - Serious Offenders Act 2018 (Vic), ss 169, 173, 174 & 175; Family Violence Protection Act 2008 (Vic), s 123; Bail Act 1977 (Vic), s 30B; Sentencing Act 1991 (Vic), ss 5, 6AAA, 9, 18, 73, 113 & 113B.
CRIMINAL LAW - Two accused (JK and TW) jointly charged with manslaughter of AA - Application for separate trial by JK - AA died as a result of blunt force trauma to head - On Crown case, both accused assaulted AA, causing death - Each accused alleged to be liable directly or in statutory complicity - In conversation with covert operative, TW exculpates himself but implicates JK in assaults on AA - TW's conversation admissible in his trial but inadmissible in trial of JK - Whether TW's conversation impermissibly tends to bolster evidence of key witnesses SS and KY as against JK - Whether weak case against JK - Whether jury directions capable of curing prejudice to JK's fair trial - Whether unacceptable risk jury directions unable to be followed or might not be properly applied by jury - Notwithstanding usual reasons favouring joint trial, risk of miscarriage of justice too great to maintain joint trial - Separate trial ordered - Criminal Procedure Act 2009 (Vic), s 193; R v Iaria [2004] VSC 110; Young & Ors v The Queen [2015] VSCA 265.
CRIMINAL LAW - Two accused (JK and TW) jointly charged with manslaughter of AA - Application for separate trial by JK - AA died as a result of blunt force trauma to head - On Crown case, both accused assaulted AA, causing death - Each accused alleged to be liable directly or in statutory complicity - In conversation with covert operative, TW exculpates himself but implicates JK in assaults on AA - TW's conversation admissible in his trial but inadmissible in trial of JK - Whether TW's conversation impermissibly tends to bolster evidence of key witnesses SS and KY as against JK - Whether weak case against JK - Whether jury directions capable of curing prejudice to JK's fair trial - Whether unacceptable risk jury directions unable to be followed or might not be properly applied by jury - Notwithstanding usual reasons favouring joint trial, risk of miscarriage of justice too great to maintain joint trial - Separate trial ordered - Criminal Procedure Act 2009 (Vic), s 193; R v Iaria [2004] VSC 110; Young & Ors v The Queen [2015] VSCA 265.
CRIMINAL LAW - Sentence following sentence indication - Common law assault - Theft - Where offender assaulted victim over debt owed to co-offender and stole victim's laptop - Where co-offender stabbed victim causing his death - Where offender rendered assistance to victim - Where offender profoundly affected by victim's death - Where offender has relevant criminal history and was subject to community correction order - Plea of guilty - Genuine remorse - Whether lesser sentence than sentence indication may be imposed without identifying change of circumstances - Term of imprisonment of 8 weeks (already served) and community correction order imposed - Greenaway (a pseudonym) v The King [2025] VSCA 280 - Karam v The King [2024] VSCA 164 - Sentencing Act 1991 (Vic) - Criminal Procedure Act 2009 (Vic) pt 5.6.
CRIMINAL LAW - Sentence following sentence indication - Common law assault - Theft - Where offender assaulted victim over debt owed to co-offender and stole victim's laptop - Where co-offender stabbed victim causing his death - Where offender rendered assistance to victim - Where offender profoundly affected by victim's death - Where offender has relevant criminal history and was subject to community correction order - Plea of guilty - Genuine remorse - Whether lesser sentence than sentence indication may be imposed without identifying change of circumstances - Term of imprisonment of 8 weeks (already served) and community correction order imposed - Greenaway (a pseudonym) v The King [2025] VSCA 280 - Karam v The King [2024] VSCA 164 - Sentencing Act 1991 (Vic) - Criminal Procedure Act 2009 (Vic) pt 5.6.
CRIMINAL LAW - Sentencing - Common assault (two charges) - TW personally, and partly in company with JK and DT, assaulted AA on two separate occasions an hour apart at party in city apartment rented for night - AA and TW heavily intoxicated - After second assault, AA left alone on apartment floor from 4:45 a.m. without medical treatment - At 10:20 a.m., AA found alone in apartment in parlous state; died an hour later - TW tried on manslaughter, but jury failed to reach verdict - Subsequently, JK acquitted of manslaughter at separate trial - Thereafter, Crown conceded unable to prove assaults caused death, and filed fresh indictment charging TW with common assaults instead - Aggravating factors included AA's vulnerability because so intoxicated, no threat, and outnumbered, leaving him alone without medical treatment - TW has relevant prior criminal history, but also good character traits - Early pleas of guilty - Remorse - Only 23 when offended, 26 now - After eight months on remand, TW bailed on onerous conditions for 21 months - While on bail, engaged positively in Youth Junction's programme - Strong social supports - Solid employment history - Good prospects of rehabilitation - Bugmy considerations - Crown concedes time served open - Aggregate sentence of eight months' imprisonment (time served) - But for pleas of guilty, aggregate sentence of 12 months' imprisonment - Sentencing Act 1991 (Vic), ss 5, 6, 6AAA, 18 & 44; Crimes Act 1958 (Vic), s 320.
CRIMINAL LAW - Sentencing - Common assault (two charges) - TW personally, and partly in company with JK and DT, assaulted AA on two separate occasions an hour apart at party in city apartment rented for night - AA and TW heavily intoxicated - After second assault, AA left alone on apartment floor from 4:45 a.m. without medical treatment - At 10:20 a.m., AA found alone in apartment in parlous state; died an hour later - TW tried on manslaughter, but jury failed to reach verdict - Subsequently, JK acquitted of manslaughter at separate trial - Thereafter, Crown conceded unable to prove assaults caused death, and filed fresh indictment charging TW with common assaults instead - Aggravating factors included AA's vulnerability because so intoxicated, no threat, and outnumbered, leaving him alone without medical treatment - TW has relevant prior criminal history, but also good character traits - Early pleas of guilty - Remorse - Only 23 when offended, 26 now - After eight months on remand, TW bailed on onerous conditions for 21 months - While on bail, engaged positively in Youth Junction's programme - Strong social supports - Solid employment history - Good prospects of rehabilitation - Bugmy considerations - Crown concedes time served open - Aggregate sentence of eight months' imprisonment (time served) - But for pleas of guilty, aggregate sentence of 12 months' imprisonment - Sentencing Act 1991 (Vic), ss 5, 6, 6AAA, 18 & 44; Crimes Act 1958 (Vic), s 320.
CRIMINAL LAW - Determination of appropriate form of supervision order to be imposed on EN - Where EN intentionally drowned three-year-old son in bath - Where EN charged with murder and held in custody - Where four psychiatrists agree EN mentally impaired at time of drowning - Where, at consent mental impairment hearing, EN found not guilty of murder because of mental impairment - Where EN declared liable to supervision - Where EN thereafter held on forensic remand at Thomas Embling Hospital to ready her for expected release on non-custodial supervision order ("NCSO") - Where (uncontradicted) psychiatric evidence supports release on NCSO - Where parties agree EN should be released on an NCSO; the NCSO should be reviewed in 12 months; and a non-publication order should be made - Custodial supervision order ("CSO") rejected - EN released on NCSO with nominal term of 25 years and conditions - Review of NCSO in 12 months (7 December 2026) - Non-publication order as to names and addresses of EN, deceased, and their relatives - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 20, 21, 23, 24, 26, 27, 28, 41, 47 & 75.
CRIMINAL LAW - Determination of appropriate form of supervision order to be imposed on EN - Where EN intentionally drowned three-year-old son in bath - Where EN charged with murder and held in custody - Where four psychiatrists agree EN mentally impaired at time of drowning - Where, at consent mental impairment hearing, EN found not guilty of murder because of mental impairment - Where EN declared liable to supervision - Where EN thereafter held on forensic remand at Thomas Embling Hospital to ready her for expected release on non-custodial supervision order ("NCSO") - Where (uncontradicted) psychiatric evidence supports release on NCSO - Where parties agree EN should be released on an NCSO; the NCSO should be reviewed in 12 months; and a non-publication order should be made - Custodial supervision order ("CSO") rejected - EN released on NCSO with nominal term of 25 years and conditions - Review of NCSO in 12 months (7 December 2026) - Non-publication order as to names and addresses of EN, deceased, and their relatives - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 20, 21, 23, 24, 26, 27, 28, 41, 47 & 75.
CRIMINAL LAW - Second major review of non-custodial supervision order ("NCSO") - In 2009, TK attacked family member, causing life-threatening injuries - TK psychotic at time as a result of effects of schizophrenia - TK charged with attempted murder but found not guilty by reason of mental impairment - In 2011, TK placed on NCSO - On first major review in November 2023, NCSO confirmed - In October 2024, TK apprehended and admitted to Thomas Embling Hospital after suicide attempt by overdose of heroin - In October 2025, TK transferred to secure extended care unit ("SECU") - Secretary to Department of Health and Attorney-General initially filed applications to vary NCSO to custodial supervision order ("CSO"), but applications later withdrawn - Ultimately, at second major view in November 2025, all parties submitted NCSO should be confirmed - NCSO confirmed - Further major review of NCSO in 12 months - Non-publication order previously made remains in force - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 20, 23, 24, 26, 28, 29, 30, 35, 38C, 39, 40 & 75.
CRIMINAL LAW - Second major review of non-custodial supervision order ("NCSO") - In 2009, TK attacked family member, causing life-threatening injuries - TK psychotic at time as a result of effects of schizophrenia - TK charged with attempted murder but found not guilty by reason of mental impairment - In 2011, TK placed on NCSO - On first major review in November 2023, NCSO confirmed - In October 2024, TK apprehended and admitted to Thomas Embling Hospital after suicide attempt by overdose of heroin - In October 2025, TK transferred to secure extended care unit ("SECU") - Secretary to Department of Health and Attorney-General initially filed applications to vary NCSO to custodial supervision order ("CSO"), but applications later withdrawn - Ultimately, at second major view in November 2025, all parties submitted NCSO should be confirmed - NCSO confirmed - Further major review of NCSO in 12 months - Non-publication order previously made remains in force - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 20, 23, 24, 26, 28, 29, 30, 35, 38C, 39, 40 & 75.
PRACTICE AND PROCEDURE - Self-executing order - Non-compliance - Defence struck out - Judgment entered - Application to set aside judgment under Rule 24.06(b) County Court Civil Procedure Rules 2018 - Relevant discretionary factors on application - Includes whether defendant's defence has real prospects of success.
PRACTICE AND PROCEDURE - Self-executing order - Non-compliance - Defence struck out - Judgment entered - Application to set aside judgment under Rule 24.06(b) County Court Civil Procedure Rules 2018 - Relevant discretionary factors on application - Includes whether defendant's defence has real prospects of success.
PRACTICE AND PROCEDURE - NOTICE TO REVIEW ORDER OF COURT CONSTITUTED BY JUDICIAL REGISTRAR - Review of judicial registrar's determination not to set aside default judgment - Leave to defendant to rely on affidavits that were not before judicial registrar - Determination varied so that part of the default judgment is set aside.
DEFAMATION - MISLEADING AND DECEPTIVE CONDUCT - BREACH OF CONFIDENCE - Defamation - Former friends - Claim of tax fraud - Allegation of conspiracy - Credit of witnesses - Dishonest conduct - Reliability of documents - Allegations that documents have been fabricated - Truth defence - Australian Consumer Law - Misleading and deceptive conduct - Whether representations made in an email to plaintiff's clients were made in trade or commerce - Whether defendant offering a service or seeking a benefit - Whether misleading representations caused harm to plaintiffs - Breach of Confidence - Whether defendants used confidential information in breach of alleged agreement - Whether defendants obtained information from alternative source - Whether plaintiff discharged burden of proof.
DEFAMATION - MISLEADING AND DECEPTIVE CONDUCT - BREACH OF CONFIDENCE - Defamation - Former friends - Claim of tax fraud - Allegation of conspiracy - Credit of witnesses - Dishonest conduct - Reliability of documents - Allegations that documents have been fabricated - Truth defence - Australian Consumer Law - Misleading and deceptive conduct - Whether representations made in an email to plaintiff's clients were made in trade or commerce - Whether defendant offering a service or seeking a benefit - Whether misleading representations caused harm to plaintiffs - Breach of Confidence - Whether defendants used confidential information in breach of alleged agreement - Whether defendants obtained information from alternative source - Whether plaintiff discharged burden of proof.
CONTRACT - Joint venture agreement - Later express written terms between parties contradict earlier oral terms between individuals - Principles of construction of contract - Setoff as a defence under rule 13.14 of the County Court Civil Procedure Rules 2018.
CONTRACT - Joint venture agreement - Later express written terms between parties contradict earlier oral terms between individuals - Principles of construction of contract - Setoff as a defence under rule 13.14 of the County Court Civil Procedure Rules 2018.
CONTRACT - SPECIFIC PERFORMANCE - Whether there was an obligation to provide updated financial documents to the purchaser - Whether there was a duty not to prevent, delay or hamper performance of the contract - Whether the purchaser exercised "reasonable endeavours" to obtain finance and landlord consent - Whether the purchaser was entitled to the goodwill of the business - Whether the purchaser or vendor repudiated the contract - Whether the purchaser engaged in misleading or deceptive conduct - Whether the order for specific performance be set aside - Whether the vendor is entitled to damages - Whether there ought to be declaratory relief granted.
CONTRACT - SPECIFIC PERFORMANCE - Whether there was an obligation to provide updated financial documents to the purchaser - Whether there was a duty not to prevent, delay or hamper performance of the contract - Whether the purchaser exercised "reasonable endeavours" to obtain finance and landlord consent - Whether the purchaser was entitled to the goodwill of the business - Whether the purchaser or vendor repudiated the contract - Whether the purchaser engaged in misleading or deceptive conduct - Whether the order for specific performance be set aside - Whether the vendor is entitled to damages - Whether there ought to be declaratory relief granted.