CONSTITUTIONAL LAW (Cth) - Legislative power - Implied freedom of political communication - Judicial power of Commonwealth - Acquisition of property on just terms - Where Construction and General Division ("C&G Division") of Construction, Forestry and Maritime Employees Union ("CFMEU") is organisation of employees registered under Fair Work (Registered Organisations) Act 2009 (Cth) ("FWRO Act") - Where Fair Work (Registered Organisations) Amendment (Administration) Act 2024 (Cth) inserted Pt 2A of Ch 11 into FWRO Act and s 177A into Fair Work Act 2009 (Cth) - Where C&G Division of CFMEU and each of its branches placed under administration in accordance with Pt 2A of Ch 11 of FWRO Act - Where Attorney-General of Commonwealth determined Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024 ("Scheme") - Where Administrator of Scheme appointed - Where during ongoing administration of C&G Division of CFMEU and its branches under Pt 2A of Ch 11 of FWRO Act, Administrator has and will continue to have powers of control, management and disposition of property of CFMEU previously used solely or predominantly for purposes of C&G Division or any of its branches - Where plaintiffs had been office holders in C&G Division of CFMEU until removed from offices as a result of Scheme - Whether impugned legislative provisions unsupported by head of Commonwealth legislative power - Whether impugned legislative provisions and/or Scheme infringed implied freedom of political communication - Whether impugned legislative provisions infringed Ch III of Constitution - Whether impugned legislative provisions effected "acquisition of property" within meaning of s 51(xxxi) of Constitution otherwise than on just terms.
CONSTITUTIONAL LAW (Cth) - Legislative power - Implied freedom of political communication - Judicial power of Commonwealth - Acquisition of property on just terms - Where Construction and General Division ("C&G Division") of Construction, Forestry and Maritime Employees Union ("CFMEU") is organisation of employees registered under Fair Work (Registered Organisations) Act 2009 (Cth) ("FWRO Act") - Where Fair Work (Registered Organisations) Amendment (Administration) Act 2024 (Cth) inserted Pt 2A of Ch 11 into FWRO Act and s 177A into Fair Work Act 2009 (Cth) - Where C&G Division of CFMEU and each of its branches placed under administration in accordance with Pt 2A of Ch 11 of FWRO Act - Where Attorney-General of Commonwealth determined Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024 ("Scheme") - Where Administrator of Scheme appointed - Where during ongoing administration of C&G Division of CFMEU and its branches under Pt 2A of Ch 11 of FWRO Act, Administrator has and will continue to have powers of control, management and disposition of property of CFMEU previously used solely or predominantly for purposes of C&G Division or any of its branches - Where plaintiffs had been office holders in C&G Division of CFMEU until removed from offices as a result of Scheme - Whether impugned legislative provisions unsupported by head of Commonwealth legislative power - Whether impugned legislative provisions and/or Scheme infringed implied freedom of political communication - Whether impugned legislative provisions infringed Ch III of Constitution - Whether impugned legislative provisions effected "acquisition of property" within meaning of s 51(xxxi) of Constitution otherwise than on just terms.
WORDS AND PHRASES - "acquisition of property", "administration", "best interests", "bill of pains and penalties", "collective will", "compensation", "constitutional corporations", "constitutionally prescribed system of representative government", "control", "detriments", "dysfunction", "effective burden", "efficient and democratic conduct", "extrinsic material", "foreseeable effects", "forfeiture", "head of power", "illegitimate purpose", "implied freedom of political communication", "intention", "invalidity", "judicial power", "legislative intent", "legislative purpose", "level of generality", "motive", "party-political donations", "prima facie punitive", "private correspondence", "property", "protective purpose", "public interest", "punishment", "reasonably appropriate and adapted", "reasonably capable of being seen as necessary", "shipwrecks clause", "single question of characterisation", "structured proportionality", "trade unions".
Constitution, ss 7, 24, 51(xx), 51(xxxi), Ch III.
CRIMINAL PRACTICE - Appeal - Wrong decision on question of law - Where appellant convicted of sexual offences - Where Crown led evidence of appellant smacking complainant's backside as evidence of sexual interest - Where direction to jury permitted use of that evidence as propensity evidence - Where appellant's trial counsel did not object to admission of evidence or to direction - Whether admission of evidence wrong decision on question of law - Whether direction wrong decision on question of law - Whether wrong decision on question of law has materiality threshold - Whether direction material - Whether substantial miscarriage of justice.
CRIMINAL PRACTICE - Appeal - Wrong decision on question of law - Where appellant convicted of sexual offences - Where Crown led evidence of appellant smacking complainant's backside as evidence of sexual interest - Where direction to jury permitted use of that evidence as propensity evidence - Where appellant's trial counsel did not object to admission of evidence or to direction - Whether admission of evidence wrong decision on question of law - Whether direction wrong decision on question of law - Whether wrong decision on question of law has materiality threshold - Whether direction material - Whether substantial miscarriage of justice.
WORDS AND PHRASES - "appeal", "common form criminal appeal provision", "conduct of counsel", "context evidence", "could realistically have affected the reasoning of the jury to a verdict of guilty", "decision", "decision over objection", "direction to the jury", "error or irregularity", "evidence of sexual interest", "failure to object", "fundamental", "inadmissible evidence", "materiality", "misdirection", "Pfennig direction", "Pfennig test", "propensity direction", "propensity evidence", "propensity reasoning", "proviso", "question of law", "relationship evidence", "rule in Pfennig", "second limb", "sexual interest", "sexual offence", "substantial miscarriage of justice", "trial counsel", "wrong decision", "wrong decision on a question of law".
Criminal Code (Qld), s 668E.
NEGLIGENCE - Duty of care - Psychiatric injury - Co-worker attempted suicide by driving motor vehicle into power pole - Where applicant accompanied work supervisor to scene of collision - Applicant saw ambulance driving in opposite direction - Where applicant arrived at scene 40 minutes after incident occurred - Where applicant's co-worker no longer at scene - Where applicant saw damaged car and power pole - Police officer at scene opined that collision had been intentional - Applicant subsequently developed psychiatric injury - Whether applicant was owed duty of care as co-worker who may witness the 'aftermath' of event - No duty of care established on the agreed facts - Appeal dismissed.
NEGLIGENCE - Duty of care - Psychiatric injury - Co-worker attempted suicide by driving motor vehicle into power pole - Where applicant accompanied work supervisor to scene of collision - Applicant saw ambulance driving in opposite direction - Where applicant arrived at scene 40 minutes after incident occurred - Where applicant's co-worker no longer at scene - Where applicant saw damaged car and power pole - Police officer at scene opined that collision had been intentional - Applicant subsequently developed psychiatric injury - Whether applicant was owed duty of care as co-worker who may witness the 'aftermath' of event - No duty of care established on the agreed facts - Appeal dismissed.
PRACTICE AND PROCEDURE - Parties mutually agreed to separate trial of preliminary question as to duty of care - Parties adduced agreed statement of facts - Applicant later abandoned facts relevant to nature of personal relationship between applicant and co-worker - Facts clearly identified - No basis for speculating as to what further evidence might have been adduced - Parties bound by procedure adopted by agreement of legal representatives.
Civil Procedure Act 2010, s 7; County Court Civil Procedure Rules 2018, r 47.04.
Tame v New South Wales (2002) 211 CLR 317, applied; Jaensch v Coffey (1984) 155 CLR 549; King v Philcox (2015) 255 CLR 304; Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; Caffrey v AAI Ltd [2019] QSC 7; FAI General Insurance Co Ltd v Lucre (2000) 50 NSWLR 261; Homsi v Homsi (2016) 51 VR 694; Bass v Permanent Trustees Co Ltd (1999) 198 CLR 334, considered.
DEFAMATION - Whether prior conduct in connection with previous defamation proceeding relevant to issues in current proceeding - Sufficiency of pleading as to absence of consent in claimed imputation of rape - Whether respondent's particulars invited 'roving inquiry' as to irrelevant matters - Held: matters for determination by trial judge after hearing evidence and submissions.
DEFAMATION - Whether prior conduct in connection with previous defamation proceeding relevant to issues in current proceeding - Sufficiency of pleading as to absence of consent in claimed imputation of rape - Whether respondent's particulars invited 'roving inquiry' as to irrelevant matters - Held: matters for determination by trial judge after hearing evidence and submissions.
PRACTICE AND PROCEDURE - Appeal - Application for leave to appeal interlocutory question of practice and procedure - No prospects of success in application for leave to appeal - Application for leave to appeal refused.
Defamation Act 2005, s 26; Crimes Act 1958, ss 35, 35A.
Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369, considered.
EVIDENCE - Onus of proof - Trustee held units in unit trust in 2008 - Onus lay on applicant to prove that trustee still held units in 2019 - Evidence that units transferred from trustee in 2014 - Evidence included memorandum of resolutions approving transfer - Judge determined applicant failed to establish trustee did not transfer units in 2014 - Whether judge imposed incorrect onus - Judge's analysis reflected application of Corporations Act 2001 (Cth), s 251A(6) - Evidence of transfer stood in way of finding sought by applicant - Judge's conclusion reflecting that applicant failed to shift obstacle - No impermissible onus in judge's conclusion.
EVIDENCE - Onus of proof - Trustee held units in unit trust in 2008 - Onus lay on applicant to prove that trustee still held units in 2019 - Evidence that units transferred from trustee in 2014 - Evidence included memorandum of resolutions approving transfer - Judge determined applicant failed to establish trustee did not transfer units in 2014 - Whether judge imposed incorrect onus - Judge's analysis reflected application of Corporations Act 2001 (Cth), s 251A(6) - Evidence of transfer stood in way of finding sought by applicant - Judge's conclusion reflecting that applicant failed to shift obstacle - No impermissible onus in judge's conclusion.
EVIDENCE - Proof - Onus of proof - Judge found principal witnesses dishonest and unreliable - Parties relied on evidence given by each other in preference to own evidence - Judge made no finding as to particular factual controversy - Whether open to decide issue without resolving factual controversy on basis onus of proof not discharged - Unsatisfactory state of evidence justified judge's approach - No error shown - Leave to appeal refused.
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; In re B [2009] AC 11; Trustees of the Christian Brothers v DZY (a pseudonym) [2024] VSCA 73; Eumeralla Estate Pty Ltd v Chen [2022] VSCA 78; Rhesa Shipping Co SA v Edmunds [1985] 2 All ER 712; Murray v Murray (1960) 33 ALJR 521, referred to; Ryan v Trustees Executors and Agency Co Ltd (1937) 10 ALJ 461, distinguished.
WILLS AND ESTATES - Mutual wills agreement - Husband and wife made wills in substantially mirror form leaving estate to survivor or if no survivor to respondents being children of husband - Husband's will less favourable to respondents than prior will - Wife made five subsequent wills leaving increasingly generous dispositions to applicants - Husband not consenting to subsequent wills - Husband predeceasing wife - Whether judge erred in finding husband and wife intended to be bound by mutual wills agreement - Respondents testified to meeting with husband and wife who described testamentary arrangements and mutual wills agreement - Wider context supporting testimony - Not in issue that husband considered agreement binding - Judge's finding correct.
WILLS AND ESTATES - Mutual wills agreement - Husband and wife made wills in substantially mirror form leaving estate to survivor or if no survivor to respondents being children of husband - Husband's will less favourable to respondents than prior will - Wife made five subsequent wills leaving increasingly generous dispositions to applicants - Husband not consenting to subsequent wills - Husband predeceasing wife - Whether judge erred in finding husband and wife intended to be bound by mutual wills agreement - Respondents testified to meeting with husband and wife who described testamentary arrangements and mutual wills agreement - Wider context supporting testimony - Not in issue that husband considered agreement binding - Judge's finding correct.
TRUSTS - Tracing - Aunt inherited share of residuary estate with life interest in income and capital sum passing to applicants upon her death - Expert evidence showing capital sum growing to $900,000 if invested in mixed investment portfolio - No evidence how capital sum treated - Applicants argued aunt mixed trust property with own property - Judge could not exclude possibility capital sum held in term deposit - Judge found no basis for tracing to specific assets - Whether basis for tracing to mixed assets in aunt's estate upon principle that where fiduciary mixes trust property with their own whole is treated as trust property - Mixed assets in aunt's estate $1,136,099 - Subject property capable of pro rata division - No basis for remedy in excess of capital sum - No error in judge rejecting tracing claim.
APPEAL - New point on appeal - Claim for equitable compensation or constructive trust arising from various breaches not advanced at trial - Resolution of claim requiring consideration of factual issues and expert evidence - Not expedient in interests of justice to permit claim to be raised on appeal.
COSTS - Order for costs to be paid out of estate - Whether error in judge's order - Probate rule justifying costs out of estate where testator cause of litigation - Testator's conduct may be relevant to costs discretion in non-probate cases - Open for judge to treat controversy as other than ordinary adversarial litigation between beneficiaries - Relevant to consider whether defendants acted reasonably in conducting litigation - Relevant to consider size of estate - No error in judge's approach.
APPEALS - Costs - Leave to appeal - Exceptional to grant leave to appeal costs orders - Matters of general principle - Specific kind of costs order - Leave appropriate unless no real prospect of success - Leave to appeal granted.
Birmingham v Renfrew (1937) 57 CLR 666; Fox v Percy (2003) 214 CLR 118; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679; Lee v Lee (2019) 266 CLR 129; Mantovani v Vanta Pty Ltd [No 3] [2022] VSC 357, referred to; Re Goodchild, deceased [1997] 1 WLR 1216; Shovelar v Lane [2012] 1 WLR 637, explained; Foskett v McKeown [2001] 1 AC 102; Toksoz v Westpac Banking Corporation (2012) 289 ALR 577, distinguished; Re Buckton [1907] 2 Ch 406, considered; Sambucco v Sambucco (2023) 72 VR 121, applied.
EMPLOYMENT - Sale of dentistry practice - Director of corporate vendor retained as dentist and manager of dentistry practice under services agreement - Services agreement operated during period where dentistry practice required to meet annual earnings targets for vendor to receive final tranches of purchase price - Whether director of vendor was employee or independent contractor when managing dentistry practice during this period - Terms of services agreement did not establish an employment relationship - Commercial context and purpose of services agreement relevant - Leave to appeal granted - Appeal allowed.
EMPLOYMENT - Sale of dentistry practice - Director of corporate vendor retained as dentist and manager of dentistry practice under services agreement - Services agreement operated during period where dentistry practice required to meet annual earnings targets for vendor to receive final tranches of purchase price - Whether director of vendor was employee or independent contractor when managing dentistry practice during this period - Terms of services agreement did not establish an employment relationship - Commercial context and purpose of services agreement relevant - Leave to appeal granted - Appeal allowed.
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165; ZG Operations Australia Pty Ltd v Jamsek (2022) 275 CLR 254; Rinehart v Hancock Prospecting Pty Ltd (2019) 267 CLR 514; Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16.
CONTRACT - Sale of dentistry practice - Contract provided for purchase price to be paid by an upfront payment and two tranches, with each of the tranches dependent on dentistry practice meeting an annual earnings target - Expenses not arising in the ordinary course of business of the dentistry practice to be excluded in calculating earnings of practice for purpose of annual earnings target - Whether amount of money received in fees paid by patients at the practice but not banked by the practice was an expense arising in ordinary course of business of the practice - No error by judge in concluding that unbanked money was such an expense.
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104.
COSTS - No order as to costs - Consolidated proceeding - Consolidation of proceeding involving commercial dispute between two corporate entities and proceeding in which director of one corporate entity sought relief under the Fair Work Act 2009 (Cth) from other corporate entity - Trial judge applied s 570 of Fair Work Act 2009 (Cth) to consolidated proceeding - No error by trial judge in applying s 570 - Trial judge declined to order costs under s 570(2)(b) because refusal of offers of compromise was not unreasonable - No error by trial judge.
Fair Work Act 2009 (Cth), s 570.
Joseph v Parnell Corporate Services Pty Ltd (2021) 284 FCR 546; Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221; O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356.
PRACTICE AND PROCEDURE - Jurisdiction - Cross-vesting - Special federal matter - Whether special reasons exist to not transfer proceedings to Federal Court - Significant court time, public expense and delay constitute special reasons - Order made under s 6(3) of Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).
Fair Work Act 2009 (Cth), s 565; Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), ss 3, 6.
Palmer v Ayres (2017) 259 CLR 478; Re Wakim; Ex parte McNally (1999) 198 CLR 511; Fencott v Muller (1983) 152 CLR 570; Krongold Constructions (Aust) Pty Ltd v Thurin (2023) 414 ALR 1; Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174; NEC Information Systems Australia Pty Ltd v Lockhart (1992) 36 FCR 258; Huynh v Attorney- General (NSW) (2023) 112 NSWLR 149.
CRIMINAL LAW - Appeal - Sexual penetration of child under the age of 16 years - Whether guilty verdict unreasonable or cannot be supported having regard to evidence - Whether Crown proved absence of reasonable belief that complainant aged 16 years or older - Appeal allowed - Acquittal entered - Crimes Act 1958, s 45(4)(a).
CRIMINAL LAW - Appeal - Sexual penetration of child under the age of 16 years - Whether guilty verdict unreasonable or cannot be supported having regard to evidence - Whether Crown proved absence of reasonable belief that complainant aged 16 years or older - Appeal allowed - Acquittal entered - Crimes Act 1958, s 45(4)(a).
M v The Queen (1994) 181 CLR 487, applied.
CRIMINAL LAW - Application for leave to appeal sentence - Indecent act with a child under 16 - Incest and attempted incest - Whether error in application of principles for sentencing person who was a child at time of offending - Whether error in sentencing judge's assessment of remorse component of guilty plea - Whether undue weight given to victim impact statement - Whether sentences manifestly excessive - No error found - Leave to appeal refused.
CRIMINAL LAW - Application for leave to appeal sentence - Indecent act with a child under 16 - Incest and attempted incest - Whether error in application of principles for sentencing person who was a child at time of offending - Whether error in sentencing judge's assessment of remorse component of guilty plea - Whether undue weight given to victim impact statement - Whether sentences manifestly excessive - No error found - Leave to appeal refused.
Sentencing Act 1991, ss 5(2), 8K.
R v PJP (2007) 17 VR 300, discussed.
Barbaro v The Queen; Zirilli v The Queen (2012) 226 A Crim R 354; Gray (a pseudonym) v The Queen [2018] VSCA 163; Clarkson v The Queen (2011) 32 VR 361, applied.
CRIMINAL LAW - Sentence - Appeal - Trafficking - Possess drug of dependence - Handle stolen goods - Prohibited person possess firearm - Possess explosive substance without excuse - Knowingly deal with proceeds of crime - Total effective sentence 5 years - Non-parole period 3 years 4 months - Whether error in sentencing applicant on basis of a 'continuing business' of drug trafficking where sentenced to trafficking on a simpliciter basis confined to a single date - Whether sentence manifestly excessive - Where total cumulation did not reflect degree of overlap between factors relevant both to both trafficking and individual charges.
CRIMINAL LAW - Sentence - Appeal - Trafficking - Possess drug of dependence - Handle stolen goods - Prohibited person possess firearm - Possess explosive substance without excuse - Knowingly deal with proceeds of crime - Total effective sentence 5 years - Non-parole period 3 years 4 months - Whether error in sentencing applicant on basis of a 'continuing business' of drug trafficking where sentenced to trafficking on a simpliciter basis confined to a single date - Whether sentence manifestly excessive - Where total cumulation did not reflect degree of overlap between factors relevant both to both trafficking and individual charges.
R v Giretti (1986) 24 A Crim R 112; R v De Simoni (1981) 147 CLR 383; Lago v The Queen [2015] NSWCCA 296; Kelly v The Queen [2018] NSWCCA 44, considered.
CRIMINAL LAW - Appeal - Sentence - Import commercial quantity of border controlled drug - Post-sentence diagnosis of terminal cancer - Short life expectancy - Fresh evidence - Mercy - Leave to appeal granted - Appeal allowed - Non-parole period of 396 days fixed.
CRIMINAL LAW - Appeal - Sentence - Import commercial quantity of border controlled drug - Post-sentence diagnosis of terminal cancer - Short life expectancy - Fresh evidence - Mercy - Leave to appeal granted - Appeal allowed - Non-parole period of 396 days fixed.
Ale v The King [2025] VSCA 92; R v Nguyen [2006] VSCA 184; DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; R v Shrestha (1991) 173 CLR 48, considered.
Price (a pseudonym) v The Queen [2018] VSCA 54; Cavanagh v the Queen [2016] VSCA 305; Ridge v The Queen [2013] VSCA 203; Cardona v the Queen [2011] VSCA 58, followed.
CRIMINAL LAW - Appeal - Conviction - Rape - Five charges involving one complainant in the course of one incident - Jury convicted applicant on three charges and acquitted him of two - Whether verdicts inconsistent - Guilty verdicts capable of being reconciled with not guilty verdicts - Appeal dismissed.
CRIMINAL LAW - Appeal - Conviction - Rape - Five charges involving one complainant in the course of one incident - Jury convicted applicant on three charges and acquitted him of two - Whether verdicts inconsistent - Guilty verdicts capable of being reconciled with not guilty verdicts - Appeal dismissed.
CRIMINAL LAW - Appeal - Conviction - Rape - Whether guilty verdicts unreasonable or not able to be supported having regard to the evidence - Whether evidence of complainant contained so many untruths, discrepancies and inadequacies that no jury acting rationally could have been satisfied beyond reasonable doubt as to applicant's guilt - Open to jury to be satisfied beyond reasonable doubt - Appeal dismissed.
Pell v The Queen (2020) 268 CLR 123; M v The Queen (1994) 181 CLR 487; Pears v The King [2025] VSCA 35; MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; Booth v The King [2024] VSCA 318, applied.
CRIMINAL LAW - Conviction - Applicant convicted of three charges of resist emergency worker on duty - Applicant acquitted of assault emergency worker 'on duty' - Whether police 'on duty' - Police arrest of applicant - Whether arrest lawful - Whether police believed on reasonable grounds that applicant guilty of offence of assault - Whether jury directed sufficiently concerning lawfulness of applicant's arrest - Whether open to jury to find applicant's arrest lawful - Directions insufficient - Not open to jury to find arrest of applicant lawful - Appeal allowed - Applicant acquitted.
CRIMINAL LAW - Conviction - Applicant convicted of three charges of resist emergency worker on duty - Applicant acquitted of assault emergency worker 'on duty' - Whether police 'on duty' - Police arrest of applicant - Whether arrest lawful - Whether police believed on reasonable grounds that applicant guilty of offence of assault - Whether jury directed sufficiently concerning lawfulness of applicant's arrest - Whether open to jury to find applicant's arrest lawful - Directions insufficient - Not open to jury to find arrest of applicant lawful - Appeal allowed - Applicant acquitted.
Crimes Act 1958, ss 31(1)(b) & (2), 458, 462, 462A, 459; Jury Directions Act 2015, ss 11(b)(i), 12, 13, 14 & 15; Road Safety Act 1986, s 16.
M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123, applied.
CRIMINAL LAW - Appeal - Conviction - Sexual offences against child under 16 - Victim applicant's stepdaughter - Evidence of good character - Whether failure by defence counsel to adduce evidence of applicant's lack of prior and subsequent sexual offending capable of explanation as rational forensic decision - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Sexual offences against child under 16 - Victim applicant's stepdaughter - Evidence of good character - Whether failure by defence counsel to adduce evidence of applicant's lack of prior and subsequent sexual offending capable of explanation as rational forensic decision - Leave to appeal refused.
Evidence Act 2008, s 110.
Baker (a pseudonym) v The King [2024] VSCA 87; Parsons (a pseudonym) v The Queen [2016] VSCA 17; Schmidt v The King [2024] VSCA 256.
CRIMINAL LAW - Appeal - Conviction - Evidence of incriminating conduct - Whether prosecutor impermissibly relied on evidence of incriminating conduct - Leave to appeal granted - Appeal allowed.
Jury Directions Act 2015, ss 18, 19, 20, 21, 22.
Hussain v The King [2024] VSCA 288; Director of Public Prosecutions v Lynn [2024] VSCA 62; Pompei v The King [2023] VSCA 71.
CRIMINAL LAW - Appeal - Conviction - Proof beyond reasonable doubt - Direction that reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility - Whether direction inconsistent with Criminal Code (Cth) and Constitution - Farshchi v The King [2024] VSCA 235 applied - Leave to appeal refused.
Jury Directions Act 2015, s 64; Criminal Code (Cth), s 13.2; Constitution, s 80.
Farshchi v The King [2024] VSCA 235.
CRIMINAL LAW - Conviction - Appeal - Substantial miscarriage of justice - Applicant made admission to police prior to being cautioned - Whether trial counsel should have objected to admission being used in evidence - Whether applicant bound by conduct of trial counsel - Whether Liberato direction should have been given to jury - Leave to appeal granted - Appeal dismissed.
CRIMINAL LAW - Conviction - Appeal - Substantial miscarriage of justice - Applicant made admission to police prior to being cautioned - Whether trial counsel should have objected to admission being used in evidence - Whether applicant bound by conduct of trial counsel - Whether Liberato direction should have been given to jury - Leave to appeal granted - Appeal dismissed.
Saricayir v The Queen [2018] VSCA 319; Frendo v The Queen [2024] VSCA 319; Liberato v The Queen (1985) 159 CLR 507; De Silva v The Queen (2019) 268 CLR 57, applied.
Jury Directions Act 2015, ss 15, 16.
EVIDENCE - Admissions - Appeal - Police told applicant to get on the ground and asked whether he stabbed the complainant before cautioning - Police formally arrested applicant after applicant made admission - Whether applicant in company of investigating official for purpose of being questioned under s 139(5) of the Evidence Act 2008 - Whether applicant in custody suspected of having committed an offence under s 464A of the Crimes Act 1958 - Leave to appeal granted - Appeal dismissed.
R v Naa (2009) 76 NSWLR 271; George v Rockett (1990) 170 CLR 104 applied; Severino v The Queen [2017] NSWCCA 80 distinguished.
Evidence Act 2008, ss 138(1)(a), 139(1), 139(5).
Crimes Act 1958, ss 458, 459, 464(1), 464A(2), (3).
CRIMINAL LAW - Appeal - Conviction - Multiple offences of burglary and theft - Whether prosecution could prove applicant's involvement in any of the offending - Use of coincidence evidence - Whether judge erred in finding coincidence evidence was significantly probative - Whether use of coincidence evidence occasioned unfair prejudice - No error established - Application for extension of time in which to seek leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Multiple offences of burglary and theft - Whether prosecution could prove applicant's involvement in any of the offending - Use of coincidence evidence - Whether judge erred in finding coincidence evidence was significantly probative - Whether use of coincidence evidence occasioned unfair prejudice - No error established - Application for extension of time in which to seek leave to appeal refused.
Evidence Act 2008, ss 98, 101.
CGL v DPP (2010) 24 VR 486, followed.
PG v The Queen [2010] VSCA 289; CW v The Queen [2010] VSCA 288; R v Dupas (No 2) (2005) 12 VR 601; Pfennig v The Queen (1995) 182 CLR 461, referred to.
CRIMINAL LAW - Appeal - Sentence - Whether 3 years and 9 months' sentence for attempted aggravated burglary manifestly excessive - Extensive and relevant prior criminal history - On bail at time of offence - Serious example of serious offence - Sentence not manifestly excessive - Application for extension of time in which to seek leave to appeal refused.
DPP v Meyers (2014) 44 VR 486; Clarkson v The Queen (2011) 32 VR 361, referred to.
CRIMINAL LAW - Sentence - Appeal - Dangerous driving causing serious injury (charge 1) and failure to render assistance (charge 2) - Total effective sentence of 3 years' imprisonment - Non-parole period of 2 years - Charge 2 sentence was 2 years and 6 months' imprisonment - Whether sentence imposed on charge 2 manifestly excessive - Applicant's guilty plea, youth, limited criminal history and good rehabilitation prospects - Victim seriously injured - Applicant fled collision scene in self-preservation - General deterrence appropriately prominent in sentencing - Applicant's moral culpability not at lower end - Sentence within range - Leave to appeal refused.
CRIMINAL LAW - Sentence - Appeal - Dangerous driving causing serious injury (charge 1) and failure to render assistance (charge 2) - Total effective sentence of 3 years' imprisonment - Non-parole period of 2 years - Charge 2 sentence was 2 years and 6 months' imprisonment - Whether sentence imposed on charge 2 manifestly excessive - Applicant's guilty plea, youth, limited criminal history and good rehabilitation prospects - Victim seriously injured - Applicant fled collision scene in self-preservation - General deterrence appropriately prominent in sentencing - Applicant's moral culpability not at lower end - Sentence within range - Leave to appeal refused.
Clarkson v The Queen (2011) 32 VR 361; DPP (Vic) v OJA (2007) 172 A Crim R 181; Lai v The King [2023] VSCA 151; R v Kilic (2016) 259 CLR 256, applied.
Abbott v The Queen (2021) 96 MVR 225; Al- Anwiya v The Queen (2022) 101 MVR 447; Bankal v The Queen [2019] VSCA 171; Sarikaya v The Queen (2015) 73 MVR 1; Stewart v The Queen (2018) 83 MVR 535; Tokay v The Queen (2014) 69 MVR 24; Worboyes v The Queen (2021) 96 MVR 344, referred to.
COSTS - Court has broad discretion - Whether costs to be awarded on a standard or indemnity basis - Whether interlocutory appeal was a hopeless case - Where interlocutory appeal delayed the progression of the matter - Held, insufficient basis to award indemnity costs - Whether costs to be taxed immediately - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.20.1 - Whether demands of justice require a departure from the ordinary rule - Where there is likely to be a considerable period of time before the final determination of the proceeding - Where interlocutory appeal concerned a discrete question - Held, costs to be taxed immediately.
COSTS - Court has broad discretion - Whether costs to be awarded on a standard or indemnity basis - Whether interlocutory appeal was a hopeless case - Where interlocutory appeal delayed the progression of the matter - Held, insufficient basis to award indemnity costs - Whether costs to be taxed immediately - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.20.1 - Whether demands of justice require a departure from the ordinary rule - Where there is likely to be a considerable period of time before the final determination of the proceeding - Where interlocutory appeal concerned a discrete question - Held, costs to be taxed immediately.
COSTS - Group proceedings - Indemnity costs - Pre-litigation offers to compromise made to group members - Where group members rejected offers - Where offer to plaintiff to compromise individual claim made and accepted - Where indemnity costs sought against plaintiff for costs of the proceeding on grounds of group members' refusing individual offers of settlement - Where group members agreed to share plaintiff's costs in proceeding - Immunity of group members from costs liability - Construction of r 26.08.1 - Whether group member 'party' under r 26.08.1 - Discretion of Court to award costs - Costs consequence attach to offeree in respect of proceeding - Group members' conduct not attributable to plaintiff - Indemnity costs not awarded - Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435 - Aljade and MKIC v OCBC [2004] VSC 351 - Tongue v Tamworth City Council (2004) 141 FCR 233 - Timbercorp Finance Pty Ltd v Collins (2016) 259 CLR 212 - Liesfield v Ausnet Electricity Services Pty Ltd & Ors (No. 4) [2014] VSC 496 - Knight v FP Special Assets Ltd (1992) 174 CLR 178 - Financial Wisdom Ltd v Newman & Ord (2005) 12 VR 79 - Burns Philp & Cor v Bhagat [1993] 1 VR 202 - Moon v Atherton [1972] 2 QB 435 - Supreme Court Act 1986 (Vic), Part 4A, s 24(1) - Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 26.08.1.
COSTS - Group proceedings - Indemnity costs - Pre-litigation offers to compromise made to group members - Where group members rejected offers - Where offer to plaintiff to compromise individual claim made and accepted - Where indemnity costs sought against plaintiff for costs of the proceeding on grounds of group members' refusing individual offers of settlement - Where group members agreed to share plaintiff's costs in proceeding - Immunity of group members from costs liability - Construction of r 26.08.1 - Whether group member 'party' under r 26.08.1 - Discretion of Court to award costs - Costs consequence attach to offeree in respect of proceeding - Group members' conduct not attributable to plaintiff - Indemnity costs not awarded - Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435 - Aljade and MKIC v OCBC [2004] VSC 351 - Tongue v Tamworth City Council (2004) 141 FCR 233 - Timbercorp Finance Pty Ltd v Collins (2016) 259 CLR 212 - Liesfield v Ausnet Electricity Services Pty Ltd & Ors (No. 4) [2014] VSC 496 - Knight v FP Special Assets Ltd (1992) 174 CLR 178 - Financial Wisdom Ltd v Newman & Ord (2005) 12 VR 79 - Burns Philp & Cor v Bhagat [1993] 1 VR 202 - Moon v Atherton [1972] 2 QB 435 - Supreme Court Act 1986 (Vic), Part 4A, s 24(1) - Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 26.08.1.
COSTS - Court has broad discretion - Whether costs to be awarded on a standard or indemnity basis - Failure to observe the rule in Browne v Dunn (1894) 6 R 67 - Groundless allegations of fraudulent or deceitful behaviour - Plaintiff to pay 40% of the defendant's costs of the proceeding on an indemnity basis, the remainder on a standard basis - Refusal of Calderbank offers not unreasonable - BHP Billiton Olympic Dam Corporation Pty Ltd v Steuler Industriewerke GmbH (No 3) [2012] VSC 414, applied - Whether defendant liable for the costs of its withdrawn third party notice - Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 25.05, 63.15 - Soteriadis v Nillumbik Shire Council [2015] VSC 363 and GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 201 ALR 55, applied.
COSTS - Court has broad discretion - Whether costs to be awarded on a standard or indemnity basis - Failure to observe the rule in Browne v Dunn (1894) 6 R 67 - Groundless allegations of fraudulent or deceitful behaviour - Plaintiff to pay 40% of the defendant's costs of the proceeding on an indemnity basis, the remainder on a standard basis - Refusal of Calderbank offers not unreasonable - BHP Billiton Olympic Dam Corporation Pty Ltd v Steuler Industriewerke GmbH (No 3) [2012] VSC 414, applied - Whether defendant liable for the costs of its withdrawn third party notice - Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 25.05, 63.15 - Soteriadis v Nillumbik Shire Council [2015] VSC 363 and GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 201 ALR 55, applied.
EQUITY - Trusts - Funds advanced from mother in China to son in Australia - Funds dissipated and property purchased - Whether agreement to invest funds or funds advanced by way of gift - Whether presumption of resulting trust applies - Whether presumption of resulting trust is displaced by presumption of advancement - Agreement to invest funds - Funds held on resulting trust - Re BBY (Receivers and Managers appointed) (2022) 409 ALR 558 - Bosanac v Commissioner of Taxation (2022) 275 CLR 37 - Martin v Martin (1959) 110 CLR 297.
EQUITY - Trusts - Funds advanced from mother in China to son in Australia - Funds dissipated and property purchased - Whether agreement to invest funds or funds advanced by way of gift - Whether presumption of resulting trust applies - Whether presumption of resulting trust is displaced by presumption of advancement - Agreement to invest funds - Funds held on resulting trust - Re BBY (Receivers and Managers appointed) (2022) 409 ALR 558 - Bosanac v Commissioner of Taxation (2022) 275 CLR 37 - Martin v Martin (1959) 110 CLR 297.
EVIDENCE - Evaluation of witness evidence - Most compelling evidence is contemporaneous documentation - Assessment of credit - Indicators of unsatisfactory witness evidence - LL Up Pty Ltd v Kegland Distribution Pty Ltd [2024] VSC 651 - Brookfield v Yevad [2004] FCA 1164 - Painter v Hutchinson [2007] EWHC 758 (Ch) - Webb v Getswift (No 5) [2019] FCA 1533 - Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm).
COURTS AND JUDGES - Disqualification of judge - Reasonable apprehension of bias - Whether public comments made by judge prior to appointment warrant recusal - Whether past professional business association warrants recusal - Relevant principles considered - No reasonable apprehension of bias - Nonetheless prudent not to sit - Recusal of judge - Fuller v Fletcher Building Limited [2024] VSC 712; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; Gaudie v Local Court (NSW) (2013) 235 A Crim R 98; Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451; NTD8 v Australian Crime Commission (2008) 249 ALR 559; Smits v Roach (2006) 227 CLR 423 considered.
COURTS AND JUDGES - Disqualification of judge - Reasonable apprehension of bias - Whether public comments made by judge prior to appointment warrant recusal - Whether past professional business association warrants recusal - Relevant principles considered - No reasonable apprehension of bias - Nonetheless prudent not to sit - Recusal of judge - Fuller v Fletcher Building Limited [2024] VSC 712; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; Gaudie v Local Court (NSW) (2013) 235 A Crim R 98; Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451; NTD8 v Australian Crime Commission (2008) 249 ALR 559; Smits v Roach (2006) 227 CLR 423 considered.
REPRESENTATIVE PROCEEDINGS - Part 4A Group proceeding - Application for approval of settlement - Whether settlement fair and reasonable as between the parties and as between group members - Shareholder class action - Alleged breach of continuous disclosure obligations over a 5.5 year period - Two defendants - The company and its auditors - Defences raised proportionate liability issues - Cross claims and third party claims between defendants - Financial circumstances of the company - Settlement involves all parties - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, ss 33V, 33ZF - Botsman v Bolitho [2018] VSCA 278, applied.
REPRESENTATIVE PROCEEDINGS - Part 4A Group proceeding - Application for approval of settlement - Whether settlement fair and reasonable as between the parties and as between group members - Shareholder class action - Alleged breach of continuous disclosure obligations over a 5.5 year period - Two defendants - The company and its auditors - Defences raised proportionate liability issues - Cross claims and third party claims between defendants - Financial circumstances of the company - Settlement involves all parties - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, ss 33V, 33ZF - Botsman v Bolitho [2018] VSCA 278, applied.
PRACTICE AND PROCEDURE - Part 4A Group proceeding - Application for approval of settlement - Soft class closure order - Proceeding settled at mediation - Applications for late registration to permit participation in the settlement - Andrianakis v Uber Technologies Inc and Others (Settlement Approval) [2024] VSC 733, applied.
PRACTICE AND PROCEDURE - Part 4A Group proceeding - Appointment of Scheme Administrator - Approval for payment of costs of administering settlement distribution scheme.
PRACTICE AND PROCEDURE - Part 4A Group proceeding - Approval for payment of legal costs from settlement sum - No reason to vary group costs order - Supreme Court Act 1986 (Vic) Part 4A, 33ZDA - Allen v G8 Education Ltd (No 4) [2024] VSC 487, applied.
CORPORATIONS - Earlier declarations and orders for the payment of a pecuniary penalty in Federal Court proceedings between ASIC and the first defendant - Contravening conduct occurred during part of the claim period in this proceeding and in respect of the same subject matter - Plaintiffs in this proceeding intervened in their representative capacity in the Federal Court proceeding - Pecuniary penalty ordered to be paid into the Federal Court subject to further order - Statement of agreed facts in this proceeding as between the plaintiffs and first defendant mirrors facts agreed in the Federal Court proceeding between ASIC and the first defendant - Declarations and orders made in this proceeding on the basis of the agreed facts to facilitate the potential payment of compensation by the Federal Court to group members whose claims relate to the same period as the contravening conduct - Corporations Act 2001 (Cth) ss 674, 1317HA, 1317QF - ASIC v Noumi Limited (No 3) [2024] FCA 862 referred to.
CORPORATIONS - Section 459G of Corporations Act 2001 (Cth) - Application to set aside a statutory demand on ground that plaintiff had an offsetting claim - Defendant entered into an agreement to host a conference at plaintiff's hotel - Whether the agreement was subject to a condition precedent - Plaintiff's offsetting claim relied on establishing that it was arguable there was a valid binding agreement between the parties - Inappropriate to determine competing interpretations of the agreement in application to set aside a statutory demand - Plaintiff demonstrated plausible contention giving rise to an arguable offsetting claim - Statutory demand set aside.
CORPORATIONS - Section 459G of Corporations Act 2001 (Cth) - Application to set aside a statutory demand on ground that plaintiff had an offsetting claim - Defendant entered into an agreement to host a conference at plaintiff's hotel - Whether the agreement was subject to a condition precedent - Plaintiff's offsetting claim relied on establishing that it was arguable there was a valid binding agreement between the parties - Inappropriate to determine competing interpretations of the agreement in application to set aside a statutory demand - Plaintiff demonstrated plausible contention giving rise to an arguable offsetting claim - Statutory demand set aside.
CORPORATIONS - Oppressive conduct - Whether affairs of company conducted in an oppressive manner - Unilateral decision by defendant to acquire member's interest - Unlawful appropriation of shares - Refusal to reinstate member's status as registered shareholder - Exclusion of member from business operations - Denial of access to company records - Repeated failure to comply with court orders - Prior finding of contempt - Whether defendant's conduct was unfairly prejudicial to member - Commercial unfairness - Consideration of relevant principles - Oppression made out.
CORPORATIONS - Oppressive conduct - Whether affairs of company conducted in an oppressive manner - Unilateral decision by defendant to acquire member's interest - Unlawful appropriation of shares - Refusal to reinstate member's status as registered shareholder - Exclusion of member from business operations - Denial of access to company records - Repeated failure to comply with court orders - Prior finding of contempt - Whether defendant's conduct was unfairly prejudicial to member - Commercial unfairness - Consideration of relevant principles - Oppression made out.
CORPORATIONS - Oppression relief - Appropriate remedies - Whether defendant should be ordered to buy out member - Whether company should be wound up - Winding up as a remedy of last resort - Whether 'some other remedy' available that is less intrusive - Valuation of shares - Expert opinion - Compulsory buyout order - Corporations Act 2001 (Cth) ss 232(e), 233(1)(a) and (d), 461(1)(f)(g) and (k).
PRACTICE AND PROCEDURE - Costs - Discretion of the court - Whether indemnity costs order appropriate - Unmeritorious and improper conduct by defendant - Breach of court orders - Significant delay and costs - Indemnity costs awarded.
CORPORATIONS - Corporations Act 2001 (Cth) - Section 90-15 (Sch 2, Insolvency Practice Schedule (Corporations)) - Application by liquidator for directions from Court as to beneficial ownership of large semi-rural property - Where Court made various declarations, including that company holds property on trust for third defendant.
CORPORATIONS - Corporations Act 2001 (Cth) - Section 90-15 (Sch 2, Insolvency Practice Schedule (Corporations)) - Application by liquidator for directions from Court as to beneficial ownership of large semi-rural property - Where Court made various declarations, including that company holds property on trust for third defendant.
PRACTICE AND PROCEDURE - Costs - Trust dispute - Competing costs applications by defendants against each other - Whether sixth defendant acted as contradictor in proceeding for judicial advice about existence of trust and beneficial ownership of property - Whether adversarial inter partes proceeding - Whether ordinary rule that costs follow the event applies - Where third and fifth defendant did not succeed on all claims and third defendant abandoned adverse possession claim during trial - Whether rr 25.03, 25.05 and 63.15 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) apply to withdrawal of adverse possession claim - Apportionment of costs.
PRACTICE AND PROCEDURE - Application by plaintiff for leave to discontinue the proceeding - Proper test - Discontinuance has no unfair, unreasonable or adverse consequence for group members - Leave granted - Consequence of discontinuance for suspension of limitation periods - Requirement for notice to group members dispensed with - Supreme Court Act 1986 (Vic) ss 33X, 33V.
PRACTICE AND PROCEDURE - Application by plaintiff for leave to discontinue the proceeding - Proper test - Discontinuance has no unfair, unreasonable or adverse consequence for group members - Leave granted - Consequence of discontinuance for suspension of limitation periods - Requirement for notice to group members dispensed with - Supreme Court Act 1986 (Vic) ss 33X, 33V.
PRACTICE AND PROCEDURE - Group proceeding - Application for approval of settlement of group proceeding - Whether terms of settlement fair and reasonable - Whether settlement distribution scheme fair and reasonable - Whether claim for legal fees and disbursements fair and reasonable - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, ss 33V, 33ZF - Legal Profession Uniform Law s 182.
PRACTICE AND PROCEDURE - Group proceeding - Application for approval of settlement of group proceeding - Whether terms of settlement fair and reasonable - Whether settlement distribution scheme fair and reasonable - Whether claim for legal fees and disbursements fair and reasonable - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, ss 33V, 33ZF - Legal Profession Uniform Law s 182.
PRACTICE AND PROCEDURE - Application by eight unregistered group members for leave to participate in the settlement - Adequacy of reasons for failure to register claims by registration deadline - Two applications by unregistered group members granted.
PRACTICE AND PROCEDURE - Departure from pleadings - Exercise of discretion - Declined to consider submissions introducing new causes of action that were not pleaded.
PRACTICE AND PROCEDURE - Departure from pleadings - Exercise of discretion - Declined to consider submissions introducing new causes of action that were not pleaded.
CONTRACTS - Contractual construction - Application of general principles.
CONTRACTS - Loan agreement - Options - Whether call option validly exercised - Attempts to vary the terms of the option - Purported exercise not absolute and unqualified - Option not validly exercised.
CONTRACTS - Loan agreement - Whether approval for temporary road access granted in accordance with loan agreement - Scope of approval required - Permit required to create or alter access to road - Victorian Planning Provisions cl 25.29 - Peninsula Blue Developments Pty Ltd v Frankston City Council [2015] VCAT 571 - Permit not applied for or obtained - Approval not granted.
CONTRACTS - Loan agreement - Best endeavours clause - Meaning of "best endeavours" - Plaintiff's actions failed to satisfy the threshold level of conduct prescribed by the clause.
PROPERTY - Mortgages - Whether notices of default validly issued - Whether mortgagor entitled to take possession of and sell mortgaged land - Transfer of Land Act 1958 (Vic) ss 76, 77(1), 78(1).
PRACTICE AND PROCEDURE - Application pursuant to r 2.07(1) of the Supreme Court (Miscellaneous Civil Proceeding) Rules 2018 (Vic) ch II - Leave pursuant to r 2.07(1) of the Supreme Court (Miscellaneous Civil Proceeding) Rules 2018 (Vic) ch II to seek to enter judgment in default of appearance refused - Application for leave to proceed against a defendant served out of Australia pursuant to r 7.07 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Leave to proceed against a defendant served out of Australia granted - Operation of r 21.03(1.2) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Judgment in default of appearance not permitted to be entered in respect of a debt claim in a currency other than Australian dollars - Application for judgment in default of appearance for a debt in foreign currency - Application for judgment in default of appearance pursuant to r 21.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Principles applicable to applications under r 21.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Principles applicable to application for leave pursuant to r 7.07 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
PRACTICE AND PROCEDURE - Application pursuant to r 2.07(1) of the Supreme Court (Miscellaneous Civil Proceeding) Rules 2018 (Vic) ch II - Leave pursuant to r 2.07(1) of the Supreme Court (Miscellaneous Civil Proceeding) Rules 2018 (Vic) ch II to seek to enter judgment in default of appearance refused - Application for leave to proceed against a defendant served out of Australia pursuant to r 7.07 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Leave to proceed against a defendant served out of Australia granted - Operation of r 21.03(1.2) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Judgment in default of appearance not permitted to be entered in respect of a debt claim in a currency other than Australian dollars - Application for judgment in default of appearance for a debt in foreign currency - Application for judgment in default of appearance pursuant to r 21.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Principles applicable to applications under r 21.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Principles applicable to application for leave pursuant to r 7.07 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
PRACTICE AND PROCEDURE - Pleadings - Application to amend statement of claim - Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 36.01, 36.04 - Whether amended statement of claim has no real prospect of success - Whether amended statement of claim allows for identification of real issues in dispute and just resolution of the proceeding - Leave to amend granted.
PRACTICE AND PROCEDURE - Pleadings - Application to amend statement of claim - Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 36.01, 36.04 - Whether amended statement of claim has no real prospect of success - Whether amended statement of claim allows for identification of real issues in dispute and just resolution of the proceeding - Leave to amend granted.
PRACTICE AND PROCEDURE - Joinder - Application to join third party as defendant - Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 9.02(b), 9.06(b) - Where joinder of third party is relevant to a claim under Property Law Act 1958 (Vic) s 172 - Leave to join third party granted.
PRACTICE AND PROCEDURE - Application for summary judgment by defendant - Civil Procedure Act 2010 (Vic) s 62 - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 22.16 - Whether plaintiffs have a real prospect of success - Where proceeding concerns important and difficult issues of fact and/or law - Application for summary judgment denied.
PRACTICE AND PROCEDURE - Application to strike out statement of claim - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 23.02 - Where amended statement of claim held to disclose a cause of action as the claim has a real prospect of success - Application for strike out denied.
PRACTICE AND PROCEDURE - Application to amend a statement of claim - Application also to strike out parts of the statement of claim and for further particulars - Application to amend allowed in part - Application to strike out refused - Application for further particulars allowed in part - Rules 23.02 and 36.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), Rule 7.02 of the Supreme Court (Intellectual Property) Rules 2016 applied - Cargill Australia Limited v Viterra Malt Pty Ltd (No 18) [2018] VSC 772; Wheelahan & Anor v City of Casey & Ors (No 12) [2013] VSC 316; Checked-out Pty Ltd v Eagle Eye Inspections Pty Ltd of NSW [1999] FCA 552; Australian Institute of Refrigeration, Air Conditioning and Heating v Smarttrade Limited [2023] FedCFamC2G 855; Harstedt Pty Ltd v Tomanek (2018) 55 VR 158; Chickabo Pty Ltd v Zphere Pty Ltd (2019) 57 VR 406, applied.
PRACTICE AND PROCEDURE - Application to amend a statement of claim - Application also to strike out parts of the statement of claim and for further particulars - Application to amend allowed in part - Application to strike out refused - Application for further particulars allowed in part - Rules 23.02 and 36.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), Rule 7.02 of the Supreme Court (Intellectual Property) Rules 2016 applied - Cargill Australia Limited v Viterra Malt Pty Ltd (No 18) [2018] VSC 772; Wheelahan & Anor v City of Casey & Ors (No 12) [2013] VSC 316; Checked-out Pty Ltd v Eagle Eye Inspections Pty Ltd of NSW [1999] FCA 552; Australian Institute of Refrigeration, Air Conditioning and Heating v Smarttrade Limited [2023] FedCFamC2G 855; Harstedt Pty Ltd v Tomanek (2018) 55 VR 158; Chickabo Pty Ltd v Zphere Pty Ltd (2019) 57 VR 406, applied.
CONTRACTS - Plaintiffs seek to enforce loan agreements and guarantees where no repayments had been made - Non-fulfilment of condition precedent - Whether condition is a condition precedent to formation or instead to performance - Waiver - Whether requirement for waiver to be in writing can itself be waived - Non-compliance with some procedural requirements - Whether payments made by plaintiffs were made pursuant to the loan agreements - Whether borrowers were in default at time plaintiffs sought repayment - If payments not made pursuant to loan agreements, whether restitution claim arises - Commonwealth v Verwayen (1990) 170 CLR 394 - Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2017] QSC 85 - Canberra Advance Bank Ltd v Benny (1991) 115 ALR 207 - Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537.
CONTRACTS - Plaintiffs seek to enforce loan agreements and guarantees where no repayments had been made - Non-fulfilment of condition precedent - Whether condition is a condition precedent to formation or instead to performance - Waiver - Whether requirement for waiver to be in writing can itself be waived - Non-compliance with some procedural requirements - Whether payments made by plaintiffs were made pursuant to the loan agreements - Whether borrowers were in default at time plaintiffs sought repayment - If payments not made pursuant to loan agreements, whether restitution claim arises - Commonwealth v Verwayen (1990) 170 CLR 394 - Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2017] QSC 85 - Canberra Advance Bank Ltd v Benny (1991) 115 ALR 207 - Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537.
CONTRACTS - Dispute resolution clause - Expert determination - Application for stay of proceedings - Joint venture agreement - Whether dispute resolution clause applies to matters in dispute - Whether expert determination procedures sufficiently certain to be enforceable - Absence of procedural directions and mechanism for resolving overlapping expert disciplines - Discretionary factors - Delay in asserting dispute resolution rights - Stay refused - Property Law Act 1958 (Vic), s 225.
CONTRACTS - Dispute resolution clause - Expert determination - Application for stay of proceedings - Joint venture agreement - Whether dispute resolution clause applies to matters in dispute - Whether expert determination procedures sufficiently certain to be enforceable - Absence of procedural directions and mechanism for resolving overlapping expert disciplines - Discretionary factors - Delay in asserting dispute resolution rights - Stay refused - Property Law Act 1958 (Vic), s 225.
REAL PROPERTY - Application for removal of caveat pursuant to Transfer of Land Act 1958 (Vic) s 90(3) - Where relevant clause of loan agreement created both an equitable charge and an equitable mortgage - Transfer of Land Act 1958 (Vic) s 91(4) not contravened - Respondent established a prima facie case justifying its interest in the property as chargee - Balance of convenience favoured maintenance of caveat - Caveat not removed.
REAL PROPERTY - Application for removal of caveat pursuant to Transfer of Land Act 1958 (Vic) s 90(3) - Where relevant clause of loan agreement created both an equitable charge and an equitable mortgage - Transfer of Land Act 1958 (Vic) s 91(4) not contravened - Respondent established a prima facie case justifying its interest in the property as chargee - Balance of convenience favoured maintenance of caveat - Caveat not removed.
TRUSTS AND ESTATES - Trust created by terms of will - Bequest of real and personal property for creation of charitable trust for establishment and maintenance of art gallery and use of surrounding land for public educational purposes - Terms of trust include providing access to public free of charge - Bequest insufficient to fund building and ongoing maintenance of art gallery and all related activities - Charitable trust able to effect original purposes only with financial and other contributions from donors - Continuing operation of trust unsustainable without amendment to terms of trust - Variation of trust by way of cy-près scheme to enable continued operation of gallery, park and educational activities - Trustee Act 1958, ss 51, 52, 58 and 61 - Charities Act 1978, s 2.
TRUSTS AND ESTATES - Trust created by terms of will - Bequest of real and personal property for creation of charitable trust for establishment and maintenance of art gallery and use of surrounding land for public educational purposes - Terms of trust include providing access to public free of charge - Bequest insufficient to fund building and ongoing maintenance of art gallery and all related activities - Charitable trust able to effect original purposes only with financial and other contributions from donors - Continuing operation of trust unsustainable without amendment to terms of trust - Variation of trust by way of cy-près scheme to enable continued operation of gallery, park and educational activities - Trustee Act 1958, ss 51, 52, 58 and 61 - Charities Act 1978, s 2.
JUDICIAL REVIEW - Section 61 of the Civil Procedure Act 2010 (Vic) - Appeal from decision of Associate Justice - Summary judgment - Real prospects of success - Dispute between residential rental provider and renter - Consideration of rights under Residential Tenancies Act 1997 (Vic) in temporary crisis accommodation - Failure to consider validity of notice to vacate - No error of law established - Leave to appeal refused.
JUDICIAL REVIEW - Section 61 of the Civil Procedure Act 2010 (Vic) - Appeal from decision of Associate Justice - Summary judgment - Real prospects of success - Dispute between residential rental provider and renter - Consideration of rights under Residential Tenancies Act 1997 (Vic) in temporary crisis accommodation - Failure to consider validity of notice to vacate - No error of law established - Leave to appeal refused.
Civil Procedure Act 2010 (Vic) ss 61, 64; Residential Tenancies Act 1997 (Vic) ss 1, 3, 22; Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 22, 77; Residential Tenancies Regulations 2022 (Vic) r 6; Supreme Court Act 1986 (Vic) s 17.
ENVIRONMENTAL LAW - Appeal - Criminal Procedure Act 2009 (Vic) - Appeal from the Magistrates' Court of Victoria against dismissal of charges brought under the Environment Protection Act 2017 (Vic) - Illegal storage of 'waste' or 'industrial waste' - Whether finding of illegal receipt of waste can be relied upon for charge of failure to comply with an Improvement Notice - Defence of 'reasonable excuse' not available to first charge of receiving waste - Receipt of tyres in relation to Charge 1 admitted - Use of tyres as building material in construction of a fire wall - Defence of 'reasonable excuse' in separate charge - Failure to comply with Improvement Notice without 'reasonable excuse' - Whether behaviour inconsistent or in breach of the Act bars a finding of 'reasonable excuse' - Statutory context and circumstances relevant to determination of 'reasonable excuse' - Expert evidence on utility of the re-use of tyres as construction material - Ambulatory construction of the phrase 'reasonable excuse' - No error by Magistrate - Appeal dismissed.
ENVIRONMENTAL LAW - Appeal - Criminal Procedure Act 2009 (Vic) - Appeal from the Magistrates' Court of Victoria against dismissal of charges brought under the Environment Protection Act 2017 (Vic) - Illegal storage of 'waste' or 'industrial waste' - Whether finding of illegal receipt of waste can be relied upon for charge of failure to comply with an Improvement Notice - Defence of 'reasonable excuse' not available to first charge of receiving waste - Receipt of tyres in relation to Charge 1 admitted - Use of tyres as building material in construction of a fire wall - Defence of 'reasonable excuse' in separate charge - Failure to comply with Improvement Notice without 'reasonable excuse' - Whether behaviour inconsistent or in breach of the Act bars a finding of 'reasonable excuse' - Statutory context and circumstances relevant to determination of 'reasonable excuse' - Expert evidence on utility of the re-use of tyres as construction material - Ambulatory construction of the phrase 'reasonable excuse' - No error by Magistrate - Appeal dismissed.
ENVIRONMENTAL LAW - Appeal - Criminal Procedure Act 2009 (Vic) - Appeal from the Magistrates' Court of Victoria against dismissal of charges brought under the Environment Protection Act 2017 (Vic) - Charge of obstruction of authorised officer - Whether 'abusive', 'threatening', or 'insulting' language - Body worn camera footage available to Magistrate - Objective test required - Whether Magistrate applied a subjective test - Magistrate's reasons given must be read fairly and in their entirety - Reasons demonstrate no error in use of an objective test - Whole of the context to be considered in determining if the words and behaviour alleged constituted abusive, threatening or insulting language - No error by Magistrate - Appeal dismissed.
Environment Protection Act 2017 (Vic) ss 3(1), 6, 18, 134, 246, 266(c), 271, 286(1) - Criminal Procedure Act 2009 (Vic) s 272 - Dasma Environmental Pty Ltd v Environment Protection Authority [2022] VSCA 248 - Wood v Adelaide Resource Recovery Pty Ltd [2017] SASCFC 13 - Taiko v R (1996) 186 CLR 454, referred to.
ADMINISTRATIVE LAW - Appeal from associate judge - Application for security for costs for an appeal refused by an associate judge - Impecunious appellant - General principle that impecuniosity no bar to a litigant modified - Where application for security made in respect of an appeal by an impecunious litigant - Consideration of other discretionary factors including merits of the appeal - Test for appeal under section 148 Victorian Civil and Administrative Tribunal Act 1998 (Vic) requires satisfaction that the appeal has 'a real prospect of success' - Wrong test applied - Appeal allowed - Exercise of inherent jurisdiction to make an order for security - Rehearing - Order for security for costs made in substitution for original order - Supreme Court Act 1986 (Vic) s 17(3) - Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 77.06.1-77.06.9 - Jafari v 23 Developments Pty Ltd [2019] VSCA 16 - Nyoni v Pharmacy Board of Australia [2018] FCA 1313 discussed.
ADMINISTRATIVE LAW - Appeal from associate judge - Application for security for costs for an appeal refused by an associate judge - Impecunious appellant - General principle that impecuniosity no bar to a litigant modified - Where application for security made in respect of an appeal by an impecunious litigant - Consideration of other discretionary factors including merits of the appeal - Test for appeal under section 148 Victorian Civil and Administrative Tribunal Act 1998 (Vic) requires satisfaction that the appeal has 'a real prospect of success' - Wrong test applied - Appeal allowed - Exercise of inherent jurisdiction to make an order for security - Rehearing - Order for security for costs made in substitution for original order - Supreme Court Act 1986 (Vic) s 17(3) - Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 77.06.1-77.06.9 - Jafari v 23 Developments Pty Ltd [2019] VSCA 16 - Nyoni v Pharmacy Board of Australia [2018] FCA 1313 discussed.
ADMINISTRATIVE LAW - Freedom of Information - Appeal from Victorian Civil and Administrative Tribunal - Whether Tribunal has jurisdiction to review 'no documents decision' - Approach to construing request for documents - Whether Office of Victorian Information Commissioner erred in treating application for review as complaint - OVIC entitled to treat application for review as complaint - No documents decision not a decision refusing to grant access to a document in accordance with a request - Tribunal had no jurisdiction to review no documents decision - Appeal dismissed - Victoria Police v Burton [1999] VSC 534 distinguished; McKechnie v VCAT & Anor [2020] VSC 454; Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce [2008] NSWCA 140; XYZ v Victoria Police [2010] VCAT 255 considered.
ADMINISTRATIVE LAW - Freedom of Information - Appeal from Victorian Civil and Administrative Tribunal - Whether Tribunal has jurisdiction to review 'no documents decision' - Approach to construing request for documents - Whether Office of Victorian Information Commissioner erred in treating application for review as complaint - OVIC entitled to treat application for review as complaint - No documents decision not a decision refusing to grant access to a document in accordance with a request - Tribunal had no jurisdiction to review no documents decision - Appeal dismissed - Victoria Police v Burton [1999] VSC 534 distinguished; McKechnie v VCAT & Anor [2020] VSC 454; Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce [2008] NSWCA 140; XYZ v Victoria Police [2010] VCAT 255 considered.
PRACTICE AND PROCEDURE - Costs - Executor's application for costs from the estate of the deceased in circumstances where the application for executor's commission under s 65 of the Administration and Probate Act 1958 (Vic) was refused - Rule 10.10 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) - Rules 63.01 and 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application refused - Second plaintiff to bear own cost and to pay costs of the first plaintiff's costs of the second plaintiff's application for executor's commission on a standard basis without indemnity from the deceased's estate.
PRACTICE AND PROCEDURE - Costs - Executor's application for costs from the estate of the deceased in circumstances where the application for executor's commission under s 65 of the Administration and Probate Act 1958 (Vic) was refused - Rule 10.10 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) - Rules 63.01 and 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application refused - Second plaintiff to bear own cost and to pay costs of the first plaintiff's costs of the second plaintiff's application for executor's commission on a standard basis without indemnity from the deceased's estate.
PRACTICE AND PROCEDURE - Appeal from order of associate judge refusing leave to appeal under s 109 of the Magistrates' Court Act 1989 (Vic) - Whether associate judge erred in finding that appellant's failure to institute appeal within 30 days was not due to exceptional circumstances - Whether associate judge erred in finding no arguable case - Held failure to institute appeal within time due to exceptional circumstances - Held no arguable case on appeal - Appeal dismissed - Magistrates' Court Act 1989 (Vic) s 109 - Personal Safety Intervention Orders Act 2010 (Vic) ss 1, 4, pt 3 - Supreme Court Act 1986 (Vic) s 17(3) - Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 58.10(9), 77.06.1-9 - Austin v Dwyer [2024] VSC 435.
PRACTICE AND PROCEDURE - Appeal from order of associate judge refusing leave to appeal under s 109 of the Magistrates' Court Act 1989 (Vic) - Whether associate judge erred in finding that appellant's failure to institute appeal within 30 days was not due to exceptional circumstances - Whether associate judge erred in finding no arguable case - Held failure to institute appeal within time due to exceptional circumstances - Held no arguable case on appeal - Appeal dismissed - Magistrates' Court Act 1989 (Vic) s 109 - Personal Safety Intervention Orders Act 2010 (Vic) ss 1, 4, pt 3 - Supreme Court Act 1986 (Vic) s 17(3) - Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 58.10(9), 77.06.1-9 - Austin v Dwyer [2024] VSC 435.
PRACTICE AND PROCEDURE - Application for leave to appeal from costs order made by associate judge - Whether associate judge erred in exercising discretion to order appellant to pay respondent's costs of the proceeding - Leave to appeal refused - Magistrates' Court Act 1989 (Vic) s 109 - Supreme Court Act 1986 (Vic) s 17A(2) - Personal Safety Intervention Orders Act 2010 (Vic) ss 109, 111, 126(1).
WILLS AND ESTATES - Application for executor's commission - Where executors seek a commission of 1.5 percent of the corpus and income of the estate - Administration and Probate Act 1958 (Vic), s 65 - Application opposed by four beneficiaries - Whether it is appropriate to award a commission - Whether the executors' conduct in managing the estate and dealing with the beneficiaries disentitles them to a commission - Re Buckingham (2016) 51 VR 453 referred to and distinguished - Executors awarded commission at a reduced rate.
WILLS AND ESTATES - Application for executor's commission - Where executors seek a commission of 1.5 percent of the corpus and income of the estate - Administration and Probate Act 1958 (Vic), s 65 - Application opposed by four beneficiaries - Whether it is appropriate to award a commission - Whether the executors' conduct in managing the estate and dealing with the beneficiaries disentitles them to a commission - Re Buckingham (2016) 51 VR 453 referred to and distinguished - Executors awarded commission at a reduced rate.
APPEAL - Application for an extension of time to appeal cost orders made by the Victorian Civil and Administrative Tribunal - Icbudak v Symmetric Homes Pty Ltd (Building and Property) (Costs) [2024] VCAT 595 (3 July 2024) - Applicants sought costs of rectifying alleged defects to their house - Icbudak v Symmetric Homes Pty Ltd (Building and Property) [2021] VCAT 1074 - Huang v Frankston City Council [2024] VSCA 38 - Explanation for delay - Whether any prejudice has been caused by the delay - Merits of the proposed appeal - Discretionary nature of cost decisions - Francis v Wilson [2023] VSC 410 - Real prospect of success - Extension of time to appeal granted.
APPEAL - Application for an extension of time to appeal cost orders made by the Victorian Civil and Administrative Tribunal - Icbudak v Symmetric Homes Pty Ltd (Building and Property) (Costs) [2024] VCAT 595 (3 July 2024) - Applicants sought costs of rectifying alleged defects to their house - Icbudak v Symmetric Homes Pty Ltd (Building and Property) [2021] VCAT 1074 - Huang v Frankston City Council [2024] VSCA 38 - Explanation for delay - Whether any prejudice has been caused by the delay - Merits of the proposed appeal - Discretionary nature of cost decisions - Francis v Wilson [2023] VSC 410 - Real prospect of success - Extension of time to appeal granted.
APPEAL - Appeal of Magistrate decision to dismiss application for review of Judicial Registrar decision - Whether appellant denied procedural fairness - Where appellant prevented from adducing potentially relevant evidence - Where appellant prevented from cross-examining respondent on relevant credit issues - Magistrate did not sufficiently address unfairness to appellant - Magistrates' Court Act 1989 (Vic) s 16K - Magistrates' Court Judicial Registrar Rules 2015 (Vic) r 16 - Appeal allowed.
APPEAL - Appeal of Magistrate decision to dismiss application for review of Judicial Registrar decision - Whether appellant denied procedural fairness - Where appellant prevented from adducing potentially relevant evidence - Where appellant prevented from cross-examining respondent on relevant credit issues - Magistrate did not sufficiently address unfairness to appellant - Magistrates' Court Act 1989 (Vic) s 16K - Magistrates' Court Judicial Registrar Rules 2015 (Vic) r 16 - Appeal allowed.
CRIMINAL LAW - Bail - 17 year old, intellectually disabled Aboriginal applicant - Aggravated burglary (x2) and other offences - Offences committed while applicant on seven grants of bail, and subject to seven summons - Exceptional circumstances test applicable - Respondent conceded open to Court to find exceptional circumstances - Exceptional circumstances made out - Whether unacceptable risk - Poor performance on previous grants of bail - Refusal of applicant to accept supervision and support of Youth Justice - Youth Justice no longer supportive of Supervised Bail - Whether recent determination of intellectual disability significant change - Nature of prior and current alleged offending points to risk of community being endangered - Significant risk applicant would not abide by conditions of bail - Recent changes to Bail Act 1977 making safety of the community of overarching importance - Unacceptable risk made out - Bail Act 1977 ss 1B, 3AAA, 3A, 3B, 4AA, 4A and 4E.
CRIMINAL LAW - Bail - 17 year old, intellectually disabled Aboriginal applicant - Aggravated burglary (x2) and other offences - Offences committed while applicant on seven grants of bail, and subject to seven summons - Exceptional circumstances test applicable - Respondent conceded open to Court to find exceptional circumstances - Exceptional circumstances made out - Whether unacceptable risk - Poor performance on previous grants of bail - Refusal of applicant to accept supervision and support of Youth Justice - Youth Justice no longer supportive of Supervised Bail - Whether recent determination of intellectual disability significant change - Nature of prior and current alleged offending points to risk of community being endangered - Significant risk applicant would not abide by conditions of bail - Recent changes to Bail Act 1977 making safety of the community of overarching importance - Unacceptable risk made out - Bail Act 1977 ss 1B, 3AAA, 3A, 3B, 4AA, 4A and 4E.
CRIMINAL LAW - Bail - Charges of theft from motor vehicle, fail to answer bail, aggravated burglary, theft of motor vehicle, theft, attempted aggravated burglary, obtain property by deception, possess methylamphetamine, possess drug of dependence, deal with property suspected of being proceeds of crime - Additional charges of attempted criminal damage by fire (arson), burglary, theft and theft of motor vehicle - Compelling reason - Unacceptable risk - Bail granted - Bail Act 1977 ss 1B, 3AAA, 3A, 4E - Re Singh [2025] VSC 266 - Re Boland [2024] VSC 85.
CRIMINAL LAW - Bail - Charges of theft from motor vehicle, fail to answer bail, aggravated burglary, theft of motor vehicle, theft, attempted aggravated burglary, obtain property by deception, possess methylamphetamine, possess drug of dependence, deal with property suspected of being proceeds of crime - Additional charges of attempted criminal damage by fire (arson), burglary, theft and theft of motor vehicle - Compelling reason - Unacceptable risk - Bail granted - Bail Act 1977 ss 1B, 3AAA, 3A, 4E - Re Singh [2025] VSC 266 - Re Boland [2024] VSC 85.
CRIMINAL LAW - Murder - Attempted murder - Conduct endangering life - Where accused has diagnosis of schizoaffective disorder and was experiencing psychosis and mania - Defence of mental impairment - Defence established - Where it is in the public interest to make a suppression order - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 20, 21, 23(a), 41, 47, 75.
CRIMINAL LAW - Murder - Attempted murder - Conduct endangering life - Where accused has diagnosis of schizoaffective disorder and was experiencing psychosis and mania - Defence of mental impairment - Defence established - Where it is in the public interest to make a suppression order - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 20, 21, 23(a), 41, 47, 75.
CRIMINAL LAW - Application under Sex Offender's Registration Act 2004 to suspend lifelong reporting obligations - Applicant convicted in 2007 of two charges of sexual penetration of child under 16 and placed on a community based order - No prior convictions - No subsequent convictions - Diligent compliance with reporting obligations over 18 year period - Low risk of reoffending - Whether in public interest to suspend reporting obligations - Application granted - Sex Offenders Registration Act 2004 (Vic) ss 39 & 40; Re GH [2024] VSC 216.
CRIMINAL LAW - Application under Sex Offender's Registration Act 2004 to suspend lifelong reporting obligations - Applicant convicted in 2007 of two charges of sexual penetration of child under 16 and placed on a community based order - No prior convictions - No subsequent convictions - Diligent compliance with reporting obligations over 18 year period - Low risk of reoffending - Whether in public interest to suspend reporting obligations - Application granted - Sex Offenders Registration Act 2004 (Vic) ss 39 & 40; Re GH [2024] VSC 216.
CRIMINAL LAW - Sentence - Where accused companies failed to ensure electrical work was only carried out by licensed electricians - Where work environment gave rise to risks that employees would suffer serious injury or death - Where accused companies' conduct came to light after apprentice electrician was electrocuted - Where accused companies to be sentenced for offences that are 'risk-based' not 'outcome-based' - Where accused companies pleaded guilty and are of good prior character - Where accused companies have common director making management decisions for both entities and employees performing work for the benefit of each company - Accused companies must be treated as separate legal entities - Whether need for specific deterrence reduced where accused companies' director is father of the deceased - Aggregate fines imposed - DPP v Vibro- Pile (Aust) Pty Ltd (2016) 49 VR 676 - Nash v Glennies Creek Coal Management Pty Ltd; Nash v Integra Coal Operations Pty Ltd (No 9) (2015) 91 NSWLR 368 - Occupational Health and Safety Act 2004 (Vic) ss 21(1), 21(2)(a), 21(2)(e), 23 - Electricity Safety Act 1998 (Vic) ss 30, 36(1), 37 - Electricity Safety (General) Regulations 2019 (Vic) rr 507(1), 509(1), 510(1), 511(1) - Sentencing Act 1991 (Vic) ss 51, 52.
CRIMINAL LAW - Sentence - Where accused companies failed to ensure electrical work was only carried out by licensed electricians - Where work environment gave rise to risks that employees would suffer serious injury or death - Where accused companies' conduct came to light after apprentice electrician was electrocuted - Where accused companies to be sentenced for offences that are 'risk-based' not 'outcome-based' - Where accused companies pleaded guilty and are of good prior character - Where accused companies have common director making management decisions for both entities and employees performing work for the benefit of each company - Accused companies must be treated as separate legal entities - Whether need for specific deterrence reduced where accused companies' director is father of the deceased - Aggregate fines imposed - DPP v Vibro- Pile (Aust) Pty Ltd (2016) 49 VR 676 - Nash v Glennies Creek Coal Management Pty Ltd; Nash v Integra Coal Operations Pty Ltd (No 9) (2015) 91 NSWLR 368 - Occupational Health and Safety Act 2004 (Vic) ss 21(1), 21(2)(a), 21(2)(e), 23 - Electricity Safety Act 1998 (Vic) ss 30, 36(1), 37 - Electricity Safety (General) Regulations 2019 (Vic) rr 507(1), 509(1), 510(1), 511(1) - Sentencing Act 1991 (Vic) ss 51, 52.
CRIMINAL LAW - Sentence - Murder - Standard sentence offence - Accused poured petrol over man working on property next door and set him alight, intending to cause really serious injury - Death resulted - Plea of guilty - Accused suffered from personality disorder of moderate severity - Realistic connection between personality disorder and offending - Moral culpability reduced, but still high - Actions motivated by anger, not by fear - No remorse - Poor prospects of rehabilitation - Importance of just punishment, denunciation, general and specific deterrence, and protection of the community - Offending towards upper end of range of seriousness - Head sentence of 35 years' imprisonment - Non-parole period of 27 years' imprisonment.
CRIMINAL LAW - Sentence - Murder - Standard sentence offence - Accused poured petrol over man working on property next door and set him alight, intending to cause really serious injury - Death resulted - Plea of guilty - Accused suffered from personality disorder of moderate severity - Realistic connection between personality disorder and offending - Moral culpability reduced, but still high - Actions motivated by anger, not by fear - No remorse - Poor prospects of rehabilitation - Importance of just punishment, denunciation, general and specific deterrence, and protection of the community - Offending towards upper end of range of seriousness - Head sentence of 35 years' imprisonment - Non-parole period of 27 years' imprisonment.
CRIMINAL LAW - Serious violent offender - Application for interim supervision order - Application for supervision order pending - Application unopposed by respondent - Whether documents in support would, if proved, justify the granting of supervision order - Whether in public interest to make order - Historical pattern of violent behaviour - Propensity to use weapons - Limited insight into offending - Respondent high risk of committing serious violence offence - Making of interim supervision order justified - Non-publication order - Serious offenders Act 2018, ss 8, 13, 27, 31, 46, 47, 279.
CRIMINAL LAW - Serious violent offender - Application for interim supervision order - Application for supervision order pending - Application unopposed by respondent - Whether documents in support would, if proved, justify the granting of supervision order - Whether in public interest to make order - Historical pattern of violent behaviour - Propensity to use weapons - Limited insight into offending - Respondent high risk of committing serious violence offence - Making of interim supervision order justified - Non-publication order - Serious offenders Act 2018, ss 8, 13, 27, 31, 46, 47, 279.
TAXATION - DIRECTOR PENALTY REGIME - Defendant director of company with outstanding liabilities in respect of withholding tax and superannuation contributions.
TAXATION - DIRECTOR PENALTY REGIME - Defendant director of company with outstanding liabilities in respect of withholding tax and superannuation contributions.
CONTRACT CLAIMS - Misleading and deceptive conduct claims - Turns on own facts.
CONTRACT CLAIMS - Misleading and deceptive conduct claims - Turns on own facts.
BUILDING - PRACTICE AND PROCEDURE - Whether building works undertaken by the defendants complied with an order granting specific performance of a deed of settlement entered into by the parties.
BUILDING - PRACTICE AND PROCEDURE - Whether building works undertaken by the defendants complied with an order granting specific performance of a deed of settlement entered into by the parties.