TORT - Private nuisance - Where respondent planned and procured construction of Sydney Light Rail - Where appellants claimed to have suffered loss or damage by reason of substantial interference with ordinary enjoyment of land - Whether purpose of respondent's use of land common and ordinary - Whether construction work "conveniently done" - Whether respondent's liability based on exercise of special statutory power within meaning of s 43A of Civil Liability Act 2002 (NSW) - Whether respondent could rely on defence of statutory authority.
TORT - Private nuisance - Where respondent planned and procured construction of Sydney Light Rail - Where appellants claimed to have suffered loss or damage by reason of substantial interference with ordinary enjoyment of land - Whether purpose of respondent's use of land common and ordinary - Whether construction work "conveniently done" - Whether respondent's liability based on exercise of special statutory power within meaning of s 43A of Civil Liability Act 2002 (NSW) - Whether respondent could rely on defence of statutory authority.
DAMAGES - Assessment - Tort - Whether damages should include reasonable costs incurred in obtaining litigation funding.
WORDS AND PHRASES - "balance", "based on", "common and ordinary", "construction work", "construction works", "conveniently done", "damages", "defence of statutory authority", "defences", "funding commission", "give and take", "injury to land", "litigation funding costs", "not convenient", "not ordinary", "nuisance", "onus", "ordinary enjoyment of land", "private nuisance", "proper consideration", "public authority", "reasonable", "reasonable expectations of the locality", "reasonableness", "right to land", "social utility", "special statutory power", "statutory authority", "substantial interference", "undue interference", "unlawful interference", "unreasonable", "use of land", "wrongful interference".
Civil Liability Act 2002 (NSW), ss 40, 41, 43, 43A.
Roads Act 1993 (NSW), s 7, Pts 2-4, 7-10.
Transport Administration Act 1988 (NSW), ss 3C, 3E, 104N, 104P, Sch 1, cll 3, 9.
Transport Administration Amendment (RMS Dissolution) Act 2019 (NSW), Sch 1.
Transport Administration (General) Amendment (Light Rail) Regulation 2015 (NSW), Sch 1.
Transport Administration (General) Regulation 2013 (NSW), cl 82A
ADMINISTRATIVE LAW - Appeal on question of law under Magistrates Court Act 1989, s 109 - Possession order made against tenant - Compensation order of $7,515.95 later made for unpaid rent - Associate judge refused extension of time to appeal compensation order - Associate judge also summarily dismissed appeal - Where judge dismissed appeal from associate judge - Where applicant already vacated premises - Application for leave to appeal dismissed - Application totally without merit.
ADMINISTRATIVE LAW - Appeal on question of law under Magistrates Court Act 1989, s 109 - Possession order made against tenant - Compensation order of $7,515.95 later made for unpaid rent - Associate judge refused extension of time to appeal compensation order - Associate judge also summarily dismissed appeal - Where judge dismissed appeal from associate judge - Where applicant already vacated premises - Application for leave to appeal dismissed - Application totally without merit.
Electronic Transactions (Victoria) Act 2000, s 8(2); Magistrates' Court Act 1989, s 109; Supreme Court Act 1986, s 14D.
COURTS AND JUDGES - Orders after judgment remitting matter to associate judge - Determination of fair value - Valuation as at date of order of associate judge - Whether order requires working out - Whether order needing clarification - Liberty to apply not reserved - Whether Court of Appeal has power to vary order - Whether order should be varied in any event - Application to vary order dismissed.
COURTS AND JUDGES - Orders after judgment remitting matter to associate judge - Determination of fair value - Valuation as at date of order of associate judge - Whether order requires working out - Whether order needing clarification - Liberty to apply not reserved - Whether Court of Appeal has power to vary order - Whether order should be varied in any event - Application to vary order dismissed.
CORPORATIONS - Appeal - Statutory demand - Application to set aside demand - Whether plausible contention requiring further investigation as to genuine dispute - Whether plausible contention requiring further investigation as to debt amount - Whether plausible contention requiring further investigation that respondent acted unconscionably in recovering debt while negotiations were ongoing - No plausible contention established by applicant's evidence - Leave to appeal refused.
CORPORATIONS - Appeal - Statutory demand - Application to set aside demand - Whether plausible contention requiring further investigation as to genuine dispute - Whether plausible contention requiring further investigation as to debt amount - Whether plausible contention requiring further investigation that respondent acted unconscionably in recovering debt while negotiations were ongoing - No plausible contention established by applicant's evidence - Leave to appeal refused.
Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (in liq) [2015] VSCA 330; Coulton v Holcombe (1986) 162 CLR 1; Sambucco v Sambucco (2023) 72 VR 121; Water Board v Moustakas (1988) 180 CLR 491, applied; Ligon 158 Pty Ltd v Huber (2016) 117 ACSR 495; Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785, considered.
Corporations Act 2001 (Cth), ss 459G, 459H, 459J.
APPEAL - Administrative Law - Decision of Homes Victoria to redevelop public housing towers in Melbourne - Representative proceeding brought by resident seeking judicial review of decision - Judicial review proceeding dismissed - Procedural fairness - Nature of power - Whether decision affected legally recognised right or interest - Content of procedural fairness obligation - Materiality - No obligation to afford procedural fairness - Leave to appeal granted - Appeal dismissed.
APPEAL - Administrative Law - Decision of Homes Victoria to redevelop public housing towers in Melbourne - Representative proceeding brought by resident seeking judicial review of decision - Judicial review proceeding dismissed - Procedural fairness - Nature of power - Whether decision affected legally recognised right or interest - Content of procedural fairness obligation - Materiality - No obligation to afford procedural fairness - Leave to appeal granted - Appeal dismissed.
Housing Act 1983, ss 4, 6, 9, 10, 13, 14, 15.
Residential Tenancies Act 1997, ss 67, 91ZY, 330.
Badari v Minister for Territory Families and Urban Housing [2025] HCA 47; Disorganized Developments Pty Ltd v South Australia (2023) 280 CLR 515; Keasey v Director of Housing (2022) 66 VR 45; King v Ombudsman (2020) 137 SASR 18; Kioa v West (1985) 159 CLR 550; Plaintiff M61 (2010) 243 CLR 319, applied.
APPEAL - Charter of Human Rights and Responsibilities - Right to home - Whether decision constituted arbitrary interference - Whether Homes Victoria discharged onus to establish demonstrable justification - Whether Homes Victoria complied with procedural limb of s 38(1) of Charter - No arbitrary interference established.
Charter of Human Rights and Responsibilities Act 2006, ss 7, 13, 38(1).
HJ v Independent Broad-Based Anti-Corruption Commission (2021) 64 VR 270; Thompson v Minogue (2021) 67 VR 301; WBM v Commissioner of Police (2012) 43 VR 446, applied.
APPEAL - Evidence - Objection to expert evidence - Technical reports unavailable - Whether evidence unfairly prejudicial - Whether procedural prejudice - No error admitting evidence established.
Evidence Act 2008, s 135.
Moore (a pseudonym) v The King (2024) 308 A Crim R 592; R v Suteski (2002) 56 NSWLR 182; IMM v The Queen (2016) 257 CLR 300, applied.
PRACTICE AND PROCEDURE - Extensions of time - Self-represented applicant in protracted dispute with former lawyers over non-payment of legal fees and with executors of his late mother's estate about his distribution from estate - Whether applicant denied procedural fairness - Whether judge erred in determining no utility to grant extensions of time to appeal self-executing orders dismissing proposed appeals from decisions of Magistrate on basis that the proposed appeals from decisions of Magistrate had no prospects of success - Applications for leave to appeal totally without merit - Leave to appeal refused
PRACTICE AND PROCEDURE - Extensions of time - Self-represented applicant in protracted dispute with former lawyers over non-payment of legal fees and with executors of his late mother's estate about his distribution from estate - Whether applicant denied procedural fairness - Whether judge erred in determining no utility to grant extensions of time to appeal self-executing orders dismissing proposed appeals from decisions of Magistrate on basis that the proposed appeals from decisions of Magistrate had no prospects of success - Applications for leave to appeal totally without merit - Leave to appeal refused
Roberts v Harkness (2018) 57 VR 334; Trkulja v Markovic [2015] VSCA 298; Cai v County Court of Victoria [2017] VSCA 278; Macedon Ranges Shire Council v Thompson (2009) 170 LGERA 41.
PRACTICE AND PROCEDURE - Applicants sought to file document headed 'Writ' - Prothonotary refused to accept document for filing - Applicants did not seek that the Court exercise its power pursuant to r 28.04(5) - Primary judge did not decide whether to direct First Respondent to accept document for filing - No determination capable of being appealed - Leave to appeal refused.
PRACTICE AND PROCEDURE - Applicants sought to file document headed 'Writ' - Prothonotary refused to accept document for filing - Applicants did not seek that the Court exercise its power pursuant to r 28.04(5) - Primary judge did not decide whether to direct First Respondent to accept document for filing - No determination capable of being appealed - Leave to appeal refused.
Supreme Court (General Civil Procedure) Rules 2025, rr 28A.04(2), 28A.04(5), 64.15(5)(iv); Supreme Court Act 1986, s 14D(3).
Re Thorpe [2024] VSCA 172; O'Bryan v Lindholm (2024) 74 VR 496, considered.
PRACTICE AND PROCEDURE - Filing - Applicant sought to file document seeking directions for the assembly of a special court to hear certain matters and commencement of criminal proceeding - Deputy Prothonotary refused to seal documents as documents substantially and procedurally irregular - Judge declined to direct Prothonotary to seal document - Application is totally without merit - Leave to appeal refused.
PRACTICE AND PROCEDURE - Filing - Applicant sought to file document seeking directions for the assembly of a special court to hear certain matters and commencement of criminal proceeding - Deputy Prothonotary refused to seal documents as documents substantially and procedurally irregular - Judge declined to direct Prothonotary to seal document - Application is totally without merit - Leave to appeal refused.
Supreme Court (General Civil Procedure) Rules 2025, rr 28A.04(2), 64.15(5)(iv); Supreme Court Act 1986, s 14D(3).
LANDLORD AND TENNANT - Residential rental agreement - Order made by VCAT that tenant pay landlord compensation for unpaid rent and other costs incurred by landlord - Application for extension of time within which to seek leave to appeal from VCAT orders - Whether judge erred in refusing application for extension of time - Whether VCAT erred in law - Whether VCAT made jurisdictional error - Whether VCAT denied applicant procedural fairness - Applicant not establishing any error or denial of procedural fairness or bias on the part of VCAT - Proposed appeal having no prospects of success - Application for leave to appeal totally without merit - Application for leave to appeal refused.
LANDLORD AND TENNANT - Residential rental agreement - Order made by VCAT that tenant pay landlord compensation for unpaid rent and other costs incurred by landlord - Application for extension of time within which to seek leave to appeal from VCAT orders - Whether judge erred in refusing application for extension of time - Whether VCAT erred in law - Whether VCAT made jurisdictional error - Whether VCAT denied applicant procedural fairness - Applicant not establishing any error or denial of procedural fairness or bias on the part of VCAT - Proposed appeal having no prospects of success - Application for leave to appeal totally without merit - Application for leave to appeal refused.
Residential Tenancies Act 1997, ss 419A and 452; Victorian Civil and Administrative Tribunal Act 1998, ss 120, 126 and 148; Supreme Court Act 1986, s 14D(3).
TORTS - Appeal - Personal injury - Negligence - Plane crash during solo flying assessment - Whether aircraft under control of student and/or instructor - Whether instructor's negligence was a cause of plane crash - Whether plane crash solely the fault of student pilot - Whether judge made findings against weight of evidence - Evidence - Whether judge erred in accepting plaintiff's evidence in circumstances where judge found plaintiff's evidence unsatisfactory - No error in judge's analysis - Leave to appeal granted - Appeal dismissed.
TORTS - Appeal - Personal injury - Negligence - Plane crash during solo flying assessment - Whether aircraft under control of student and/or instructor - Whether instructor's negligence was a cause of plane crash - Whether plane crash solely the fault of student pilot - Whether judge made findings against weight of evidence - Evidence - Whether judge erred in accepting plaintiff's evidence in circumstances where judge found plaintiff's evidence unsatisfactory - No error in judge's analysis - Leave to appeal granted - Appeal dismissed.
Fox v Percy (2003) 214 CLR 118; Lee v Lee (2019) 266 CLR 129, applied.
DAMAGES - Loss of earning capacity - Loss of future earning capacity - Likelihood of occurrence of future events - Vicissitudes - Whether judge erred in failing to make Malec discount for future loss of earning capacity - Whether judge erred in discounting future loss of earning capacity only by reference to vicissitudes - No error in judge's analysis - Leave to appeal granted - Appeal dismissed.
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, discussed.
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649; Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485, referred to.
CRIMINAL LAW - Application for leave to appeal - Conviction - Applicant sentenced to 5 months' imprisonment (aggregate sentence) combined with a 2-year community correction order for one charge of aggravated burglary and two charges of theft (including theft of motor vehicle) with co-offenders - Applicant pleaded guilty after sentence indication hearing - Director appealed sentence on basis of manifest inadequacy - Application for leave to appeal against conviction instituted after applicant informed by the Court of Appeal that he was at risk of increase in sentence - Whether triable issues - Whether guilty plea freely made or improperly induced - Whether substantial miscarriage of justice - Plea freely and voluntarily made - Application for extension of time granted - Leave to appeal granted - Appeal dismissed.
CRIMINAL LAW - Application for leave to appeal - Conviction - Applicant sentenced to 5 months' imprisonment (aggregate sentence) combined with a 2-year community correction order for one charge of aggravated burglary and two charges of theft (including theft of motor vehicle) with co-offenders - Applicant pleaded guilty after sentence indication hearing - Director appealed sentence on basis of manifest inadequacy - Application for leave to appeal against conviction instituted after applicant informed by the Court of Appeal that he was at risk of increase in sentence - Whether triable issues - Whether guilty plea freely made or improperly induced - Whether substantial miscarriage of justice - Plea freely and voluntarily made - Application for extension of time granted - Leave to appeal granted - Appeal dismissed.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Whether aggregate sentence manifestly inadequate - Whether residual discretion on Director's appeal should be exercised - Sentence manifestly inadequate - No basis to exercise residual discretion - Appeal allowed - Resentenced to 3 years' imprisonment with a non-parole period of 22 months.
Criminal Procedure Act 2009, ss 207, 208, 209, 276.
Meissner v The Queen (1995) 184 CLR 132; Jamieson v The Queen [2017] VSCA 140; Peters v The Queen (No 2) (2019) 60 VR 231; DPP v Browne [2023] VSCA 13; Mongan v The King [2024] VSCA 126; Monaghan v The Queen [2022] VSCA 247; DPP v Karazisis (2010) 31 VR 634; DPP v Green (2011) 244 CLR 462, applied.
Guariglia v The Queen (2010) 208 A Crim R 49; Brown v The Queen [2021] VSCA 204, considered.
R v Turner [1970] 2 QB 321; R v Warfield (1994) 34 NSWLR 200; R v Glass (1994) 73 A Crim R 299; Spanakakis (1995) 83 A Crim R 513; R v Goodyear [2005] 1 WLR 2532; Hogarth v The Queen (2012) 37 VR 658; DPP v Meyers (2014) 44 VR 486, discussed.
CRIMINAL LAW - Interlocutory Appeal - Application for leave - Aggravated carjacking - Intentionally cause serious injury - Application to exclude evidence pursuant to ss 135 and 137 Evidence Act 2008 - Whether evidence likely to lead to undue waste of time, and be misleading or confusing - Whether probative value of evidence outweighed by danger of unfair prejudice - Call charge records not misleading, of high probative value not outweighed by danger of unfair prejudice - GPS tracking evidence of high probative value not outweighed by danger of unfair prejudice - Video mapping misleading in part - Video mapping giving rise to danger of unfair prejudice - Leave to appeal granted - Appeal allowed in respect of evidence of video mapping.
CRIMINAL LAW - Interlocutory Appeal - Application for leave - Aggravated carjacking - Intentionally cause serious injury - Application to exclude evidence pursuant to ss 135 and 137 Evidence Act 2008 - Whether evidence likely to lead to undue waste of time, and be misleading or confusing - Whether probative value of evidence outweighed by danger of unfair prejudice - Call charge records not misleading, of high probative value not outweighed by danger of unfair prejudice - GPS tracking evidence of high probative value not outweighed by danger of unfair prejudice - Video mapping misleading in part - Video mapping giving rise to danger of unfair prejudice - Leave to appeal granted - Appeal allowed in respect of evidence of video mapping.
Evidence Act 2008 ss 69, 79(1), 135, 137.
Telecommunications (Interception and Access) Act 1979 (Cth) ss 187(A), 187(AA).
Honeysett v The Queen (2014) 253 CLR 122, applied.
Davies v The Queen [2019] VSCA 66; Godwin (a pseudonym) v The King [2024] VSCA 225; Moreno (a pseudonym) v The King [2023] VSCA 98; Wagner v The King [2025] VSCA 56, referred to.
CRIMINAL LAW - Appeal - Applicant convicted of two charges of rape - Prosecutor's address - Prosecutor alleged that prosecution witness had 'gone in to bat' for applicant - Witness cross-examined by prosecutor by leave under s 38 of Evidence Act 2008 - Prosecutor failed to put allegation of bias and/or partiality to witness - Whether duty of fairness breached and breach of rule in Browne v Dunn (1893) 6 R 67 - Whether prosecutor in final address invited incriminating conduct reasoning - Whether prosecutor's address inverted the onus of proof - Whether prosecutor's address breached rule in Palmer v The Queen (1998) 138 CLR 1 - Application for extension of time refused.
CRIMINAL LAW - Appeal - Applicant convicted of two charges of rape - Prosecutor's address - Prosecutor alleged that prosecution witness had 'gone in to bat' for applicant - Witness cross-examined by prosecutor by leave under s 38 of Evidence Act 2008 - Prosecutor failed to put allegation of bias and/or partiality to witness - Whether duty of fairness breached and breach of rule in Browne v Dunn (1893) 6 R 67 - Whether prosecutor in final address invited incriminating conduct reasoning - Whether prosecutor's address inverted the onus of proof - Whether prosecutor's address breached rule in Palmer v The Queen (1998) 138 CLR 1 - Application for extension of time refused.
Evidence Act 2008, s 38.
Jury Directions Act 2015, s 18.
Criminal Procedure Act 2009, s 276(1)(b)-(c).
Browne v Dunn (1893) 6 R 67; Murillo (a pseudonym) v The Queen [2020] VSCA 68; R v Le (2002) 54 NSWLR 474; Reid v Kerr (1974) 9 SASR 367; Thomas v van den Yssel (1976) 14 SASR 205; Soames v The Queen [2012] NSWCCA 188; Ritchie (a pseudonym) v The Queen [2019] VSCA 202; Palmer v The Queen (1998) 138 CLR 1; Spence v The Queen [2016] VSCA 113, discussed.
Saddik v The Queen [2018] VSCA 249; Liberato v The Queen (1985) 159 CLR 507, referred to.
COSTS - Appeal - Application for extension of time within which to seek leave to appeal against costs order - Application for leave to appeal against costs order - Proposed appeal having no prospect of success - No adequate explanation for delay - Application for leave to appeal totally without merit - No basis for granting extension of time - Applications dismissed.
COSTS - Appeal - Application for extension of time within which to seek leave to appeal against costs order - Application for leave to appeal against costs order - Proposed appeal having no prospect of success - No adequate explanation for delay - Application for leave to appeal totally without merit - No basis for granting extension of time - Applications dismissed.
Freedom of Information Act 1982, s 39; Supreme Court Act 1986, s 14D.
COSTS - Mortgages - Mortgagee's entitlement to costs under general law and rules of court - Whether costs discretion should be exercised in accordance with contract - Where mortgagor alleged mortgagee invalidly appointed receivers - Mortgagee successful at trial but on appeal receivers found to be invalidly appointed - Mortgagee awarded 75 percent of costs of trial - Contract excluded mortgagee's liability for 'attempted' or 'purported' exercise of power - Contract indemnified mortgagee for 'exercise or attempted' exercise of power - Mortgagee rejected Calderbank offers - Costs in the Court's discretion - Orders for trial costs set aside - Mortgagee ordered to pay 25 percent of trial costs - No order for costs of appeal.
COSTS - Mortgages - Mortgagee's entitlement to costs under general law and rules of court - Whether costs discretion should be exercised in accordance with contract - Where mortgagor alleged mortgagee invalidly appointed receivers - Mortgagee successful at trial but on appeal receivers found to be invalidly appointed - Mortgagee awarded 75 percent of costs of trial - Contract excluded mortgagee's liability for 'attempted' or 'purported' exercise of power - Contract indemnified mortgagee for 'exercise or attempted' exercise of power - Mortgagee rejected Calderbank offers - Costs in the Court's discretion - Orders for trial costs set aside - Mortgagee ordered to pay 25 percent of trial costs - No order for costs of appeal.
Supreme Court Act 1986, s 24; Supreme Court (General Civil Procedure) Rules 2025, rr 63.13, 63.26.
Balanced Securities v Dumayne Property Group Pty Ltd (2017) 53 VR 14; Overton Investments Pty Ltd v Cuzeno RVM Pty Ltd [2003] NSWCA 27; Chen v Kevin McNamara & Son Pty Ltd [2012] VSCA 229; Talacko v Talacko [2009] VSC 579; Gomba Holdings (UK) Ltd v Minories Finance Ltd [No 2] [1993] Ch 171, applied.
In re Watts; Smith v Watts (1882) 22 Ch D 5; Cotterell v Stratton (1872) LR 8 Ch App 295; Pearson v Dennett (1911) 11 SR (NSW) 449, distinguished.
Calderbank v Calderbank [1975] 3 WLR 586; Cotterell v Finney (1874) LR 9 Ch App 541; Credland v Potter (1874) 10 Ch App 8; Kinnaird v Trollope (1889) 42 Ch D 610; KBL Mining Limited v Kidman Resources Limited [2015] NSWSC 515; Kyabram Property Investments Pty Ltd v Murray [2006] NSWSC 54, considered.
EVIDENCE - Admissibility - Relevance - Hearsay - Exclusion of evidence of judgments and convictions - Chinese court judgment - Business record exception - Chinese company search document obtained from a Chinese company website - Evidence Act 2008 (Vic), ss 48(1), 49, 55, 69, 91, 92, 156.
EVIDENCE - Admissibility - Relevance - Hearsay - Exclusion of evidence of judgments and convictions - Chinese court judgment - Business record exception - Chinese company search document obtained from a Chinese company website - Evidence Act 2008 (Vic), ss 48(1), 49, 55, 69, 91, 92, 156.
APPEAL - Appeal against decision of associate justice - Contract - Interpretation - Governing law and jurisdiction clause - Whether exclusive jurisdiction clause - Whether clause ambiguous or a 'nonsense' - Appeal dismissed.
APPEAL - Appeal against decision of associate justice - Contract - Interpretation - Governing law and jurisdiction clause - Whether exclusive jurisdiction clause - Whether clause ambiguous or a 'nonsense' - Appeal dismissed.
Need Pty Ltd v Need Essentials USA LLC [2023] VSC 184; Joshan v Pizza Pan Group Pty Ltd (2021) 106 NSWLR 104, discussed.
COSTS - Interlocutory injunction application dismissed - Whether costs should follow the event - Whether costs should be assessed on indemnity basis - Whether costs should be taxed immediately - Plaintiff failed to establish serious question to be tried - Defendants' use of confusing 'unpaid dividends' terminology and late disclosure of novation argument - Whether defendants' conduct amounts to disentitling conduct - Whether plaintiff acted in wilful disregard of known facts or when properly advised should have known application had no chance of success - Complex transactions requiring expert analysis - Whether plaintiff's conduct demonstrates want of competence and diligence - Pleadings not yet filed - Relationship between interlocutory application and substantive proceeding unclear - Costs ordered against plaintiff on standard basis to be taxed at conclusion of proceeding - Supreme Court (General Civil Procedure) Rules 2025 (Vic) rr 63.20, 63.20.1 - Supreme Court Act 1986 (Vic) s 24(1).
COSTS - Interlocutory injunction application dismissed - Whether costs should follow the event - Whether costs should be assessed on indemnity basis - Whether costs should be taxed immediately - Plaintiff failed to establish serious question to be tried - Defendants' use of confusing 'unpaid dividends' terminology and late disclosure of novation argument - Whether defendants' conduct amounts to disentitling conduct - Whether plaintiff acted in wilful disregard of known facts or when properly advised should have known application had no chance of success - Complex transactions requiring expert analysis - Whether plaintiff's conduct demonstrates want of competence and diligence - Pleadings not yet filed - Relationship between interlocutory application and substantive proceeding unclear - Costs ordered against plaintiff on standard basis to be taxed at conclusion of proceeding - Supreme Court (General Civil Procedure) Rules 2025 (Vic) rr 63.20, 63.20.1 - Supreme Court Act 1986 (Vic) s 24(1).
CORPORATIONS - Insolvency- Statutory presumption of insolvency - Commercial realities - Related party funding - Where lending entity has same controlling mind as the company - Whether ongoing intention to fund all liabilities exists - Where loaned monies not subject to written contract with repayment terms - Whether loaned monies is characterised as a short or long-term liability - Australian Securities and Investment Commission v Plymin (2003) 175 FLR 124 - Southern Cross Interiors v Deputy Commissioner of Taxation (2001) 53 NSWLR 213 - Canstruct Pty Ltd v Project Sea Dragon (2024) 172 ACSR 73 - Sandell v Porter (1966) 115 CLR 666 - Corporations Act 2001 ss 95A; 286 - Lending entity ready and willing to fund liabilities at all times - No insolvency.
CORPORATIONS - Insolvency- Statutory presumption of insolvency - Commercial realities - Related party funding - Where lending entity has same controlling mind as the company - Whether ongoing intention to fund all liabilities exists - Where loaned monies not subject to written contract with repayment terms - Whether loaned monies is characterised as a short or long-term liability - Australian Securities and Investment Commission v Plymin (2003) 175 FLR 124 - Southern Cross Interiors v Deputy Commissioner of Taxation (2001) 53 NSWLR 213 - Canstruct Pty Ltd v Project Sea Dragon (2024) 172 ACSR 73 - Sandell v Porter (1966) 115 CLR 666 - Corporations Act 2001 ss 95A; 286 - Lending entity ready and willing to fund liabilities at all times - No insolvency.
CORPORATIONS - Application to remove liquidator - Application to disallow liquidator from having remuneration and expenses incurred in this proceeding - Whether liquidator made allegations he knew to be incorrect - Whether liquidator continued to prosecute proceeding after changing his opinion on company's solvency - Court will not readily remove liquidator - Briginshaw standard applies - Re St Gregory's Armenian School (in liq) [2012] NSWSC 1215 - Gadsden v MacKinnon (Liquidator), in the matter of Allibi Pty Ltd (in liq) [2023] FCA 647 - Insolvency Practice Schedule (Corporations) s 90-15 - Grounds for removal established - Liquidator removed - Liquidator disallowed from having remuneration and expenses incurred in this proceeding.
CORPORATIONS LAW - Application by liquidator under s 588FF(3)(b) of the Corporations Act 2001 (Cth) for extension of time for making any application under s 588FF(1) - Extension sought to allow liquidator to review material provided by putative creditor and to form a view as to the potential claims identified by putative creditor - Application opposed by interested parties - Consideration of prejudice and delay - Unexplained delay - No evidence as to merits - Presumptive prejudice - Actual prejudice - Whether shelf order appropriate - Turns on own facts - Application refused.
CORPORATIONS LAW - Application by liquidator under s 588FF(3)(b) of the Corporations Act 2001 (Cth) for extension of time for making any application under s 588FF(1) - Extension sought to allow liquidator to review material provided by putative creditor and to form a view as to the potential claims identified by putative creditor - Application opposed by interested parties - Consideration of prejudice and delay - Unexplained delay - No evidence as to merits - Presumptive prejudice - Actual prejudice - Whether shelf order appropriate - Turns on own facts - Application refused.
REAL PROPERTY - Acquisition of land - Adverse possession - Standing to sue - Lease to incorporated association - Upon deregistration of incorporated association property vested in Registrar of Incorporated Associations - Breach of lease due to deregistration - Notice of default and termination of Lease - Continued use by Owners Corporation and its members - Construction of Agreement to Lease and Lease - Proprietary estoppel - Conventional estoppel - Owners Corporation Act 2006, ss 3, 4, 6, 15, 18 - Associations of Incorporation Reform Act 2012, ss 140, 142, 143, 187(1) - Associations Incorporation Act 1981, ss 3, 36E, 36F - Limitations of Actions Act 1958, ss 5, 8, 14 - Property Law Act 1958, s 139 - Transfer of Land Act 1958, s 42 - Coulls v Bagot's Executor & Trustee Co Ltd (1967) 119 CLR 469 - Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 - Des Barres v Shey (1873) 29 LT (NS) 592 - Ramnarace v Lutchman [2001] 1 WLR 1651 - Powell v McFarlane (1979) 38 P&CR 452 - Whittlesea City Council v Abbatangelo (2009) 259 ALR 56 - Eckford v Stanbroke Pastoral Co Pty Ltd (2012) 2 Qd R 323 - Sowler v Potter [1940] 1 KB 271 - Harvey v Pratt [1965] 1 WLR 1025 - Gurappaji v Duncan [2023] VSC 558 - Taylors Fashions Ltd v Liverpool Trustees Co Ltd [1982] QB 133 - Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1 - Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603.
REAL PROPERTY - Acquisition of land - Adverse possession - Standing to sue - Lease to incorporated association - Upon deregistration of incorporated association property vested in Registrar of Incorporated Associations - Breach of lease due to deregistration - Notice of default and termination of Lease - Continued use by Owners Corporation and its members - Construction of Agreement to Lease and Lease - Proprietary estoppel - Conventional estoppel - Owners Corporation Act 2006, ss 3, 4, 6, 15, 18 - Associations of Incorporation Reform Act 2012, ss 140, 142, 143, 187(1) - Associations Incorporation Act 1981, ss 3, 36E, 36F - Limitations of Actions Act 1958, ss 5, 8, 14 - Property Law Act 1958, s 139 - Transfer of Land Act 1958, s 42 - Coulls v Bagot's Executor & Trustee Co Ltd (1967) 119 CLR 469 - Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 - Des Barres v Shey (1873) 29 LT (NS) 592 - Ramnarace v Lutchman [2001] 1 WLR 1651 - Powell v McFarlane (1979) 38 P&CR 452 - Whittlesea City Council v Abbatangelo (2009) 259 ALR 56 - Eckford v Stanbroke Pastoral Co Pty Ltd (2012) 2 Qd R 323 - Sowler v Potter [1940] 1 KB 271 - Harvey v Pratt [1965] 1 WLR 1025 - Gurappaji v Duncan [2023] VSC 558 - Taylors Fashions Ltd v Liverpool Trustees Co Ltd [1982] QB 133 - Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1 - Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603.
LEGAL PRACTITIONERS - Application by defendant to restrain firm from continuing to act for plaintiffs - Whether firm should cease to act for clients where solicitor likely to give evidence as a material witness - Whether solicitor has a 'personal stake' in the proceedings - Inherent jurisdiction of Court over its officers and to control its processes - Presently low risk of inconsistency between evidence of solicitor and evidence or claim of clients - Low risk of relevant conflict - Discretionary factors weigh against restraint.
LEGAL PRACTITIONERS - Application by defendant to restrain firm from continuing to act for plaintiffs - Whether firm should cease to act for clients where solicitor likely to give evidence as a material witness - Whether solicitor has a 'personal stake' in the proceedings - Inherent jurisdiction of Court over its officers and to control its processes - Presently low risk of inconsistency between evidence of solicitor and evidence or claim of clients - Low risk of relevant conflict - Discretionary factors weigh against restraint.
PRACTICE AND PROCEDURE - Application for summary enforcement of a settlement agreement to resolve a proceeding - Roberts v Gippsland Agricultural & Earth Moving Contracting Co [1956] VLR 555 applied - Court must be satisfied justice can be done via summary procedure - Seachange Management Pty Ltd v Pital Business Pty Ltd (2009) 23 VR 396 applied - Bell v Knight 34 Langdon Road Pty Ltd [2022] VSC 497 applied - Re RM Road Services Pty Ltd (in liq) & Ors (No 2) [2025] VSC 382 followed - Application granted.
PRACTICE AND PROCEDURE - Application for summary enforcement of a settlement agreement to resolve a proceeding - Roberts v Gippsland Agricultural & Earth Moving Contracting Co [1956] VLR 555 applied - Court must be satisfied justice can be done via summary procedure - Seachange Management Pty Ltd v Pital Business Pty Ltd (2009) 23 VR 396 applied - Bell v Knight 34 Langdon Road Pty Ltd [2022] VSC 497 applied - Re RM Road Services Pty Ltd (in liq) & Ors (No 2) [2025] VSC 382 followed - Application granted.
PRACTICE AND PROCEDURE - Discovery - Definition of 'Documents' - Categories of discovery - Sufficiency and relevance of agreed discovery categories - Proportionality - Whether discovery should extend to emails - Costs and delays - Interlocutory orders made on the papers.
PRACTICE AND PROCEDURE - Discovery - Definition of 'Documents' - Categories of discovery - Sufficiency and relevance of agreed discovery categories - Proportionality - Whether discovery should extend to emails - Costs and delays - Interlocutory orders made on the papers.
PRACTICE AND PROCEDURE - Interpleader proceedings under Order 12 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Expectation of being sued - Collusion - Interpleader relief refused.
PRACTICE AND PROCEDURE - Interpleader proceedings under Order 12 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Expectation of being sued - Collusion - Interpleader relief refused.
OPEN COURTS ACT 2013 - Documents released by Family Court of Australia on condition of confidentiality - Referral to regulator by Family Court - Interim proceeding suppression orders made - Application by regulator for permanent orders - Whether orders proposed are 'necessary' for the proper administration of justice - Risk of 'chilling effect' on notifiers - Where conflicting considerations arise in different jurisdictions - Inherent jurisdiction to make anonymisation orders and closed file orders - Whether proceeding suppression order appropriate in the circumstance - Greater limitation to the scope of order than previously judicially considered - Closed file order made - Non-publication order considered - Modified form of reasons for judgment published - Pseudonym orders maintained.
OPEN COURTS ACT 2013 - Documents released by Family Court of Australia on condition of confidentiality - Referral to regulator by Family Court - Interim proceeding suppression orders made - Application by regulator for permanent orders - Whether orders proposed are 'necessary' for the proper administration of justice - Risk of 'chilling effect' on notifiers - Where conflicting considerations arise in different jurisdictions - Inherent jurisdiction to make anonymisation orders and closed file orders - Whether proceeding suppression order appropriate in the circumstance - Greater limitation to the scope of order than previously judicially considered - Closed file order made - Non-publication order considered - Modified form of reasons for judgment published - Pseudonym orders maintained.
Open Courts Act 2013 (Vic) ss 4, 17, 18, 20; Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 28.05(4); WEQ (a pseudonym) v Medical Board of Australia [2021] VSCA 343; (2021) 69 VR 1; WEQ (a pseudonym) v Medical Board of Australia [2025] VSCA 100, referred to.
APPEALS - PRACTICE AND PROCEDURE - Competency of appeal on question of law where order appealed from has ceased to operate - Appeal dismissed as incompetent - Children, Youth and Families Act 2005, ss 282, 329 - AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 278 CLR 512 - O'Bryan v Lindholm (2024) 74 VR 496.
APPEALS - PRACTICE AND PROCEDURE - Competency of appeal on question of law where order appealed from has ceased to operate - Appeal dismissed as incompetent - Children, Youth and Families Act 2005, ss 282, 329 - AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 278 CLR 512 - O'Bryan v Lindholm (2024) 74 VR 496.
WILLS AND ESTATES - Principal beneficiary of estate does not exist in the manner contemplated by the deceased, or at all - Applicability of Re Benjamin; Neville v Benjamin [1902] 1 Ch 723 - Construction and effect of testamentary disposition - Gift to principal beneficiary ineffective - Where non-existence of principal beneficiary not expressed as contingency for gift over - Whether gift over saved by the rule in Jones v Westcomb (1711) Prec Ch 316 - Where gift over saved.
WILLS AND ESTATES - Principal beneficiary of estate does not exist in the manner contemplated by the deceased, or at all - Applicability of Re Benjamin; Neville v Benjamin [1902] 1 Ch 723 - Construction and effect of testamentary disposition - Gift to principal beneficiary ineffective - Where non-existence of principal beneficiary not expressed as contingency for gift over - Whether gift over saved by the rule in Jones v Westcomb (1711) Prec Ch 316 - Where gift over saved.
WILLS AND ESTATES - Judicial advice - Plaintiff acting in capacity as administrator ad colligendum bona of estate - Advice sought on proposed partial implementation of agreement between First and Second Defendants and the Estate - Agreement reached following judicial mediation with all parties in 2019 - Plaintiff has obtained independent legal and taxation advice on proposed implementation - Proposal within plaintiff's powers as administrator - Implementation of agreement not improper exercise of plaintiff's powers.
WILLS AND ESTATES - Judicial advice - Plaintiff acting in capacity as administrator ad colligendum bona of estate - Advice sought on proposed partial implementation of agreement between First and Second Defendants and the Estate - Agreement reached following judicial mediation with all parties in 2019 - Plaintiff has obtained independent legal and taxation advice on proposed implementation - Proposal within plaintiff's powers as administrator - Implementation of agreement not improper exercise of plaintiff's powers.
Supreme Court (General Civil Procedure) Rules 2025, rr 54.02.
Re Yan; Hughes v Wong (No 2) [2016] VSC 504; Mirabella Nickel Ltd (in liq) v Mining Standards International Pty Ltd [2025] WASCA 82; Morris v Smoel [2013] VSCA 11; Longboat Holdings GroupNo3 Pty Ltd v Zacole Pty Ltd & Ors [2021] VSC 280; ExxonMobil Superannuation Plan Pty Ltd v Esso Australia Pty Ltd (2010) 29 VR 356; Re Cohen, deceased [1975] VR 187, considered.
PRACTICE AND PROCEDURE - Alleged breach of trust - Application for summary judgment - Application to restrain solicitor from acting - Notices to produce documents - Whether conduct inconsistent with claim for privilege being maintained - Application to restrain solicitor from acting dismissed - Application for summary judgment dismissed - Paragraphs of statement of claim struck out - Plaintiff given opportunity to replead.
PRACTICE AND PROCEDURE - Alleged breach of trust - Application for summary judgment - Application to restrain solicitor from acting - Notices to produce documents - Whether conduct inconsistent with claim for privilege being maintained - Application to restrain solicitor from acting dismissed - Application for summary judgment dismissed - Paragraphs of statement of claim struck out - Plaintiff given opportunity to replead.
PRACTICE AND PROCEDURE - Security for costs - Application against natural person - Supreme Court (General Civil Procedure) Rules 2025 (Vic) - r 62.02(1)(f) - Inherent jurisdiction to award security - Whether impecuniosity established - Whether real risk that costs order will be unenforceable - Where previous unpaid costs orders - Where respondent seeks stay of appeal pending payment of security sum together with payment of taxed costs in related proceeding - Security for costs refused.
PRACTICE AND PROCEDURE - Security for costs - Application against natural person - Supreme Court (General Civil Procedure) Rules 2025 (Vic) - r 62.02(1)(f) - Inherent jurisdiction to award security - Whether impecuniosity established - Whether real risk that costs order will be unenforceable - Where previous unpaid costs orders - Where respondent seeks stay of appeal pending payment of security sum together with payment of taxed costs in related proceeding - Security for costs refused.
ADMINISTRATIVE LAW - Judicial review and appeals - Application for leave to appeal against interlocutory orders of VCAT - Victorian Civil and Administrative Tribunal Act 1998 (Vic) - s 79 - Security for costs - s 148(7)(b) - Where security for costs sought on appeal an order 'that the Tribunal could have made in the proceeding' - Jurisdiction to make substitutive order only enlivened following the identification of error of law made by VCAT member - Osland v Secretary to the Department of Justice (2010) 241 CLR 320 followed.
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.
ADMINISTRATIVE LAW - Judicial review - Opinion of a Medical Panel - Whether the Medical Panel committed jurisdictional error - Whether the Medical Panel failed to have regard to a mandatory relevant consideration - Whether the Medical Panel failed to set out a path of reasoning which would enable a court to see whether the opinion does or does not involve any error of law - Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 - Victorian Workcover Authority v Putrus [2023] VSCA 28 - Victorian Workcover Authority v Jamali [2023] VSCA 240 - Sidiqi v Kotsios [2021] VSCA 187 - Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649 - Colquhoun v Capitol Radiology Pty Ltd (2013) 39 VR 296 - Ayana v Qantas Airways Ltd [2021] VSC 500 - Khayyerzadeh v Gibbons [2023] VSC 647 - Sahin v Victorian Workcover Authority [2024] VSC 241 - Khan v Romas [2017] VSC 731 - Bhelley v Coles Supermarkets Australia Pty Ltd [2022] VSC 446 - Wrongs Act 1958 Pt VBA ss 28LB, 28LF, 28LH, 28LJ, 28LL, 28LN, 28LWE, 28LZ, 28LZH, and 28LZI.
ADMINISTRATIVE LAW - Judicial review - Opinion of a Medical Panel - Whether the Medical Panel committed jurisdictional error - Whether the Medical Panel failed to have regard to a mandatory relevant consideration - Whether the Medical Panel failed to set out a path of reasoning which would enable a court to see whether the opinion does or does not involve any error of law - Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 - Victorian Workcover Authority v Putrus [2023] VSCA 28 - Victorian Workcover Authority v Jamali [2023] VSCA 240 - Sidiqi v Kotsios [2021] VSCA 187 - Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649 - Colquhoun v Capitol Radiology Pty Ltd (2013) 39 VR 296 - Ayana v Qantas Airways Ltd [2021] VSC 500 - Khayyerzadeh v Gibbons [2023] VSC 647 - Sahin v Victorian Workcover Authority [2024] VSC 241 - Khan v Romas [2017] VSC 731 - Bhelley v Coles Supermarkets Australia Pty Ltd [2022] VSC 446 - Wrongs Act 1958 Pt VBA ss 28LB, 28LF, 28LH, 28LJ, 28LL, 28LN, 28LWE, 28LZ, 28LZH, and 28LZI.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under Residential Tenancies Act 1997 (Vic) - Application for extension of time - Extension of time granted - Where residential rental provider gave renter a notice of proposed rent increase under s 44(1) - Where renter believed notice to be invalid and asked VCAT to set it aside - Where renter's application included a request for compensation which was not maintained at the hearing - Where VCAT dismissed the application on the basis of having no jurisdiction to make the order sought - Whether VCAT had jurisdiction to hear an application for an ancillary order in the absence of an application for a substantive order - Where no jurisdiction to make such an order - Leave to appeal allowed - Appeal dismissed.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under Residential Tenancies Act 1997 (Vic) - Application for extension of time - Extension of time granted - Where residential rental provider gave renter a notice of proposed rent increase under s 44(1) - Where renter believed notice to be invalid and asked VCAT to set it aside - Where renter's application included a request for compensation which was not maintained at the hearing - Where VCAT dismissed the application on the basis of having no jurisdiction to make the order sought - Whether VCAT had jurisdiction to hear an application for an ancillary order in the absence of an application for a substantive order - Where no jurisdiction to make such an order - Leave to appeal allowed - Appeal dismissed.
Residential Tenancies Act 1997 (Vic), ss 44, 45, 46, 452, 472; Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 124, 148; Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic), r 4.08.
Victoria v Bradto [2006] VCAT 1864; Xiao v Perpetual Trustee Company Ltd [2009] V ConvR 54-756; [2008] VSC 412; Kracke v Mental Health Review Board [2009] VCAT 646; Casa Di Iorio Investments Pty Ltd v Guirguis [2017] VSC 266; Rosewarne v Lim [2022] VCAT 1015.
ADMINISTRATIVE LAW - Appeal from Victorian Civil and Administrative Tribunal ('VCAT') in a proceeding under the Residential Tenancies Act 1997 (Vic) ('RTA') - Application to set aside VCAT decision refusing application to extend the period of storage for goods left behind for indeterminate period - Where tenant unable to collect goods from property due to bail conditions - Where goods left behind prevented property from being relet - Where residential rental provider gave notice under s 386 (goods left behind) of RTA - Whether consideration by VCAT of landlord's ability to relet the property relevant - Whether VCAT correctly interpreted 'reclaim' under ss 387 and 389 of RTA - Whether goods able to be stored for indefinite period of time - Whether leave to appeal should be granted - No real prospects of success - Leave to appeal denied.
ADMINISTRATIVE LAW - Appeal from Victorian Civil and Administrative Tribunal ('VCAT') in a proceeding under the Residential Tenancies Act 1997 (Vic) ('RTA') - Application to set aside VCAT decision refusing application to extend the period of storage for goods left behind for indeterminate period - Where tenant unable to collect goods from property due to bail conditions - Where goods left behind prevented property from being relet - Where residential rental provider gave notice under s 386 (goods left behind) of RTA - Whether consideration by VCAT of landlord's ability to relet the property relevant - Whether VCAT correctly interpreted 'reclaim' under ss 387 and 389 of RTA - Whether goods able to be stored for indefinite period of time - Whether leave to appeal should be granted - No real prospects of success - Leave to appeal denied.
Residential Tenancies Act 1997 (Vic), ss 64, 378, 379, 384, 386, 387, 388, 391, 395, 401; Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 97, 98, 148.
Chopra v Department of Education and Training [2019] VSC 488; McSteen v Architects Registration Board of Victoria (No 2) [2018] VSCA 136; Velardo v Andonov [2010] VSCA 38; Republic of Turkey v Mackie Pty Ltd [2019] VSC 103; Khanna v Kulathayendran [2012] VSC 250; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
APPEAL - Victorian Civil and Administrative Tribunal decision - Dispute as between owners corporation and owner of one of four lots with shared common property - Determination by VCAT that owner remove external CCTV cameras, awning, relocate external component of air conditioning unit installed on her lot and pay civil penalty - Leave to appeal refused - Owners Corporations Act 2006 (Vic) - Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(2A) - Shearman v Owners Corporation No 1 417405X [2016] VSC 551 - Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317.
APPEAL - Victorian Civil and Administrative Tribunal decision - Dispute as between owners corporation and owner of one of four lots with shared common property - Determination by VCAT that owner remove external CCTV cameras, awning, relocate external component of air conditioning unit installed on her lot and pay civil penalty - Leave to appeal refused - Owners Corporations Act 2006 (Vic) - Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(2A) - Shearman v Owners Corporation No 1 417405X [2016] VSC 551 - Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317.
APPEAL - Appeal from the Tribunal - Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Medical practitioner - Referral to the Tribunal by Medical Board under section 193 of Health Practitioner Regulation National Law - Disciplinary proceedings for professional misconduct or unprofessional conduct - Appeals from Tribunal's interlocutory and final orders - Whether Tribunal exercising federal jurisdiction - Tribunal not exercising legislative or judicial function in determining disciplinary proceeding under the National Law - Whether the Tribunal acted without jurisdiction in reliance on evidence before the Family Court of Australia - Documents released by Family Court order - Whether a Medical Board referral to the Tribunal was based on unlawfully obtained evidence - Admissibility of evidence and the rules of evidence at the discretion of the Tribunal - Effect of interlocutory orders subsumed by appeal against final orders - Procedural fairness - No error established - No real prospect of success - Leave to appeal refused.
APPEAL - Appeal from the Tribunal - Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Medical practitioner - Referral to the Tribunal by Medical Board under section 193 of Health Practitioner Regulation National Law - Disciplinary proceedings for professional misconduct or unprofessional conduct - Appeals from Tribunal's interlocutory and final orders - Whether Tribunal exercising federal jurisdiction - Tribunal not exercising legislative or judicial function in determining disciplinary proceeding under the National Law - Whether the Tribunal acted without jurisdiction in reliance on evidence before the Family Court of Australia - Documents released by Family Court order - Whether a Medical Board referral to the Tribunal was based on unlawfully obtained evidence - Admissibility of evidence and the rules of evidence at the discretion of the Tribunal - Effect of interlocutory orders subsumed by appeal against final orders - Procedural fairness - No error established - No real prospect of success - Leave to appeal refused.
OPEN COURTS ACT - Documents released by Family Court of Australia on confidential basis - Previous orders made in the Family Court of Australia - Closed Court order refused - Pseudonym orders appropriate to sufficiently protect family members - Non-publication order considered.
Victorian Civil and Administrative Act 1998 (Vic) ss 97, 148; Health Practitioner Regulation National Law (Victoria) ss 193, 196; Burns v Corbett [2018] HCA 15, (2018) 265 CLR 304; Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16, (2022) 276 CLR 216; De Pardo v Legal Practitioners Complaints Committee [1999] FCA 698, (1999) 93 FCR 294; Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board [2007] HCA 23, referred to.
LIMITATION OF ACTIONS - Section 23A of the Limitation of Actions Act 1958 (Vic) - Workplace injury - Worker's cause of action statute barred - Application to extend time within which to commence proceeding - Delay caused by incorrect advice of former lawyers as to limitation period - Evidence of claim in negligence against former solicitors not sufficiently strong to conclude plaintiff would suffer no prejudice if application refused - General prejudice presumed because of delay of 7 years and 7 months but not substantial - Evidentiary onus on defendants to establish they may suffer specific prejudice - Evidence of some specific prejudice but not significant - Just and reasonable to extend time.
LIMITATION OF ACTIONS - Section 23A of the Limitation of Actions Act 1958 (Vic) - Workplace injury - Worker's cause of action statute barred - Application to extend time within which to commence proceeding - Delay caused by incorrect advice of former lawyers as to limitation period - Evidence of claim in negligence against former solicitors not sufficiently strong to conclude plaintiff would suffer no prejudice if application refused - General prejudice presumed because of delay of 7 years and 7 months but not substantial - Evidentiary onus on defendants to establish they may suffer specific prejudice - Evidence of some specific prejudice but not significant - Just and reasonable to extend time.
POLICE - Terrorism - Statute empowering Supreme Court to authorise exercise of special powers to ensure the safety of persons attending event - Whether authorisation reasonably necessary to ensure the safety of persons attending event - Terrorism (Community Protection) Act 2003 (Vic), Part 3A, s 21.
POLICE - Terrorism - Statute empowering Supreme Court to authorise exercise of special powers to ensure the safety of persons attending event - Whether authorisation reasonably necessary to ensure the safety of persons attending event - Terrorism (Community Protection) Act 2003 (Vic), Part 3A, s 21.
HUMAN RIGHTS - Terrorism - Authorisation of special police powers to ensure safety of persons attending event - Limitation of human rights - Whether limitation on human rights reasonable and is demonstrably justifiable in a free and democratic society, taking into account statutory intent - Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2), 9, 10, 12, 14, 15, 16, 17, 21, 22, 32(1), 38(1).
COSTS - Plaintiff wholly unsuccessful in proceeding - Where plaintiff opposed order to pay second defendant's costs - Whether reduction in costs due to defendants' common interest in proceeding - Order that plaintiff pay second defendant's costs - No order as to reduction of costs.
COSTS - Plaintiff wholly unsuccessful in proceeding - Where plaintiff opposed order to pay second defendant's costs - Whether reduction in costs due to defendants' common interest in proceeding - Order that plaintiff pay second defendant's costs - No order as to reduction of costs.
COSTS - Group proceeding - Application by second defendant for proceeding to be declassed and amended statement of claim struck out - Costs of summons - Immediate taxation - Supreme Court (General Civil Procedure) Rules 2025 rr 63.20, 63.20.1 - Second defendant pay plaintiff's costs of summons - No order as to immediate taxation.
COSTS - Group proceeding - Application by second defendant for proceeding to be declassed and amended statement of claim struck out - Costs of summons - Immediate taxation - Supreme Court (General Civil Procedure) Rules 2025 rr 63.20, 63.20.1 - Second defendant pay plaintiff's costs of summons - No order as to immediate taxation.
CRIMINAL LAW - Application for bail - Schedule 1 offence - Requirement to show exceptional circumstances - Nature and seriousness of alleged offending - Strength of prosecution case - Personal circumstances - Special vulnerability - Dependants in need of support - Availability of treatment services - Availability of employment - Offers of bail guarantees - Exceptional circumstances established - Whether applicant an unacceptable risk - Risk not shown to be unacceptable if bail granted on strict conditions - Bail granted - Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5AAA, Schedule 1, Item 6(a), (b).
CRIMINAL LAW - Application for bail - Schedule 1 offence - Requirement to show exceptional circumstances - Nature and seriousness of alleged offending - Strength of prosecution case - Personal circumstances - Special vulnerability - Dependants in need of support - Availability of treatment services - Availability of employment - Offers of bail guarantees - Exceptional circumstances established - Whether applicant an unacceptable risk - Risk not shown to be unacceptable if bail granted on strict conditions - Bail granted - Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5AAA, Schedule 1, Item 6(a), (b).
CRIMINAL LAW - Bail - Murder - Allegation that the applicant was one of two men who lay in wait for victim, then shot him dead with the use of a shotgun and another weapon - Possible organised crime connection - Victim feared attack, and was armed with a handgun for self-defence - Victim fired shots in course of attack upon him - Applicant and co-offender driven to hospital with gunshot wounds following altercation - DNA linking both alleged offenders to scene of shooting - Strength of prosecution case - Applicant aged 21 with no criminal history - Sustained serious injuries in incident - Question as to the sufficiency of medical treatment provided to applicant in custody - Psychological condition of applicant - Onerous conditions in custody, including very limited time out of cell each day - Likely to be ongoing - Family support - Substantial bail guarantee offered - Delay - Question of risk - Use of police intelligence as informing issue of risk - Exceptional circumstances not established - Unacceptable risk in any event - Bail refused - Bail Act 1977 ss 1B, 3AAA, 4, 4A, 4AA, 4D, 4E, 8.
CRIMINAL LAW - Bail - Murder - Allegation that the applicant was one of two men who lay in wait for victim, then shot him dead with the use of a shotgun and another weapon - Possible organised crime connection - Victim feared attack, and was armed with a handgun for self-defence - Victim fired shots in course of attack upon him - Applicant and co-offender driven to hospital with gunshot wounds following altercation - DNA linking both alleged offenders to scene of shooting - Strength of prosecution case - Applicant aged 21 with no criminal history - Sustained serious injuries in incident - Question as to the sufficiency of medical treatment provided to applicant in custody - Psychological condition of applicant - Onerous conditions in custody, including very limited time out of cell each day - Likely to be ongoing - Family support - Substantial bail guarantee offered - Delay - Question of risk - Use of police intelligence as informing issue of risk - Exceptional circumstances not established - Unacceptable risk in any event - Bail refused - Bail Act 1977 ss 1B, 3AAA, 4, 4A, 4AA, 4D, 4E, 8.
CRIMINAL LAW - Application for bail - Where allegations of possession of commercial quantity (74kg) of unlawfully imported cocaine - Whether exceptional circumstances exist that justify the grant of bail - Where prosecution case strong - Where delay significant - Where applicant suffers from post traumatic stress disorder and substance abuse issues - Where surety offered - Exceptional circumstances not found - Unacceptable risk of committing Schedule 1 or Schedule 2 offence - Bail refused - Bail Act 1977 (Vic) ss 4AA, 4A, 4E.
CRIMINAL LAW - Application for bail - Where allegations of possession of commercial quantity (74kg) of unlawfully imported cocaine - Whether exceptional circumstances exist that justify the grant of bail - Where prosecution case strong - Where delay significant - Where applicant suffers from post traumatic stress disorder and substance abuse issues - Where surety offered - Exceptional circumstances not found - Unacceptable risk of committing Schedule 1 or Schedule 2 offence - Bail refused - Bail Act 1977 (Vic) ss 4AA, 4A, 4E.
CRIMINAL LAW - Bail - 29 year old applicant - Armed robbery - Mobile phone allegedly snatched by applicant - Person who came to the aid of the owner of the phone allegedly stabbed in the back - Applicant charged with a number of other offences including intentionally causing injury ('ICI') - On community correction order at time for offences including possession of a loaded firearm and possessing knives - Poor compliance with CCO - Likelihood that present matter would settle, with armed robbery charge not proceeded with - Availability to applicant of place in a residential drug treatment centre if released on bail - Likely sentence would exceed time spent on remand - Real question as to genuineness of applicant's desire and willingness to receive drug treatment - Significant risk posed - Exceptional circumstances not established - Unacceptable risk in any event - Bail refused - Bail Act 1977 ss 1B, 3AAA, 4AA, 4A, 4E.
CRIMINAL LAW - Bail - 29 year old applicant - Armed robbery - Mobile phone allegedly snatched by applicant - Person who came to the aid of the owner of the phone allegedly stabbed in the back - Applicant charged with a number of other offences including intentionally causing injury ('ICI') - On community correction order at time for offences including possession of a loaded firearm and possessing knives - Poor compliance with CCO - Likelihood that present matter would settle, with armed robbery charge not proceeded with - Availability to applicant of place in a residential drug treatment centre if released on bail - Likely sentence would exceed time spent on remand - Real question as to genuineness of applicant's desire and willingness to receive drug treatment - Significant risk posed - Exceptional circumstances not established - Unacceptable risk in any event - Bail refused - Bail Act 1977 ss 1B, 3AAA, 4AA, 4A, 4E.
CRIMINAL LAW - Ruling - Charges of aggravated servitude - Objection to admission to evidence pursuant to sections 55, 59, and 76 of the Evidence Act 2008 (Vic) - Application to exclude evidence pursuant to section 137 of the Evidence Act 2008 (Vic) - Application granted in part.
CRIMINAL LAW - Ruling - Charges of aggravated servitude - Objection to admission to evidence pursuant to sections 55, 59, and 76 of the Evidence Act 2008 (Vic) - Application to exclude evidence pursuant to section 137 of the Evidence Act 2008 (Vic) - Application granted in part.
CRIMINAL LAW - Ruling - Charges of aggravated servitude - Application for leave to file over fresh indictment - Amendment of particulars - Whether filing over would cause injustice to the accused - Application granted - Application for stay of two charges - Whether continuation would result in abuse of process - Whether continuation would involve unacceptable injustice, unfairness or oppression - Forensic disadvantage - Application refused - Criminal Procedure Act 2009 (Vic) ss 159, 164, 165 - Falzon v The Queen [2017] VSCA 74 - R v Street [1960] VR 669 - Whedlock v Flaws [2022] VSC 359 - DPP v Jarvis (a pseudonym) (2018) 55 VR 543 - DPP (Cth) v Al Salman (No 6) [2025] VSC 813 - Hermanus v The Queen (2015) 44 VR 335 - Brewer v The Queen [2017] VSCA 117 - Haris (a pseudonym) v The King [2023] VSCA 205 - Jago v District Court of New South Wales (1989) 168 CLR 23.
CRIMINAL LAW - Ruling - Charges of aggravated servitude - Application for leave to file over fresh indictment - Amendment of particulars - Whether filing over would cause injustice to the accused - Application granted - Application for stay of two charges - Whether continuation would result in abuse of process - Whether continuation would involve unacceptable injustice, unfairness or oppression - Forensic disadvantage - Application refused - Criminal Procedure Act 2009 (Vic) ss 159, 164, 165 - Falzon v The Queen [2017] VSCA 74 - R v Street [1960] VR 669 - Whedlock v Flaws [2022] VSC 359 - DPP v Jarvis (a pseudonym) (2018) 55 VR 543 - DPP (Cth) v Al Salman (No 6) [2025] VSC 813 - Hermanus v The Queen (2015) 44 VR 335 - Brewer v The Queen [2017] VSCA 117 - Haris (a pseudonym) v The King [2023] VSCA 205 - Jago v District Court of New South Wales (1989) 168 CLR 23.
CRIMINAL LAW - Ruling - Charges of aggravated servitude - Application to exclude evidence pursuant to ss 135 and 137 of the Evidence Act 2008 (Vic) and the Haddara discretion - Whether probative value substantially outweighed by danger evidence would be unfairly prejudicial, misleading or confusing, or result in undue waste of time - Whether probative value outweighed by danger of unfair prejudice - Translation and interpretation - Loss of opportunity to cross-examine - Forensic disadvantage - Effect of jury directions - Evidence not excluded - Evidence Act 2008 (Vic) ss 55(1), 135, 137 - Sutton v The Queen (1984) 152 CLR 528 - Browne v Dunn (1893) 6 R 67 - R v Tran [1994] 2 SCR 951 - De La Espriella-Velasco v The Queen (2006) 31 WAR 291 - Haddara v The Queen (2014) 43 VR 53 - DPP v Wise (a pseudonym) [2016] VSCA 173 - R v DG (2010) 28 VR 127 - IMM v The Queen (2016) 257 CLR 300 - Dupas v The Queen (2012) 40 VR 182 - NT v The Queen [2012] VSCA 213 - DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177 - Jago v District Court of NSW (1989) 168 CLR 23 - Dietrich v The Queen (1992) 177 CLR 292 - Moreno v The King [2023] VSCA 98 - R v Johnson (1987) 25 A Crim R 433 - DPP v McDermott (No 7) [2016] VSC 819 - Luna v The Queen [2016] VSCA 10 - Bufton v The Queen [2019] VSCA 96 - Snyder (a pseudonym) v The Queen [2021] VSCA 96 - Norris (a pseudonym) v The Queen [2018] VSCA 137.
CRIMINAL LAW - Ruling - Charges of aggravated servitude - Application to exclude evidence pursuant to ss 135 and 137 of the Evidence Act 2008 (Vic) and the Haddara discretion - Whether probative value substantially outweighed by danger evidence would be unfairly prejudicial, misleading or confusing, or result in undue waste of time - Whether probative value outweighed by danger of unfair prejudice - Translation and interpretation - Loss of opportunity to cross-examine - Forensic disadvantage - Effect of jury directions - Evidence not excluded - Evidence Act 2008 (Vic) ss 55(1), 135, 137 - Sutton v The Queen (1984) 152 CLR 528 - Browne v Dunn (1893) 6 R 67 - R v Tran [1994] 2 SCR 951 - De La Espriella-Velasco v The Queen (2006) 31 WAR 291 - Haddara v The Queen (2014) 43 VR 53 - DPP v Wise (a pseudonym) [2016] VSCA 173 - R v DG (2010) 28 VR 127 - IMM v The Queen (2016) 257 CLR 300 - Dupas v The Queen (2012) 40 VR 182 - NT v The Queen [2012] VSCA 213 - DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177 - Jago v District Court of NSW (1989) 168 CLR 23 - Dietrich v The Queen (1992) 177 CLR 292 - Moreno v The King [2023] VSCA 98 - R v Johnson (1987) 25 A Crim R 433 - DPP v McDermott (No 7) [2016] VSC 819 - Luna v The Queen [2016] VSCA 10 - Bufton v The Queen [2019] VSCA 96 - Snyder (a pseudonym) v The Queen [2021] VSCA 96 - Norris (a pseudonym) v The Queen [2018] VSCA 137.
CRIMINAL LAW - Ruling One - Charges of aggravated servitude - Evidence of past conduct occurring interstate - Application to exclude evidence pursuant to s 137 refused - Evidence Act 2008.
CRIMINAL LAW - Ruling One - Charges of aggravated servitude - Evidence of past conduct occurring interstate - Application to exclude evidence pursuant to s 137 refused - Evidence Act 2008.
CRIMINAL LAW - Ruling Two - Evidence of accused receiving massages with sexual connotation from complainants - Ruled inadmissible - Prejudice outweighs probative value - Evidence of accused controlling and interfering in complainants' use of the bathroom - Parts of evidence with sexual connotation ruled inadmissible - Otherwise admissible - Prejudice outweighs probative value - Evidence of accused's missed treatment of animals - Ruled admissible - Prejudice not outweighed by probative value.
CRIMINAL LAW - Ruling Three - Extracts for witness VARES and Statements - Extracts ruled admissible - Prejudice not outweighed by probative value.
CRIMINAL LAW - Sentence - Manslaughter - Where offender forced way into house and initiated confrontation with victim who owed him money and from whom he wished to buy drugs and caused a single stab wound to victim's chest causing his death - Where offender has criminal history but not of direct crimes of violence and was subject to community correction order - History of substance abuse - Plea of guilty - Reasonable prospects of rehabilitation - Term of imprisonment imposed.
CRIMINAL LAW - Sentence - Manslaughter - Where offender forced way into house and initiated confrontation with victim who owed him money and from whom he wished to buy drugs and caused a single stab wound to victim's chest causing his death - Where offender has criminal history but not of direct crimes of violence and was subject to community correction order - History of substance abuse - Plea of guilty - Reasonable prospects of rehabilitation - Term of imprisonment imposed.
CRIMINAL LAW - Sentence - Arson causing death - Guilty plea - Accused set fire to house in circumstances where he ought to have known person was inside - Fire ignited with accelerant - High gravity of offending - Bugmy considerations - Guarded prospects of rehabilitation - Denunciation - Deterrence - Sentence of 11 years' imprisonment with non-parole period of 8 years.
CRIMINAL LAW - Sentence - Arson causing death - Guilty plea - Accused set fire to house in circumstances where he ought to have known person was inside - Fire ignited with accelerant - High gravity of offending - Bugmy considerations - Guarded prospects of rehabilitation - Denunciation - Deterrence - Sentence of 11 years' imprisonment with non-parole period of 8 years.
CRIMINAL LAW - Manslaughter by unlawful and dangerous act - Statutory complicity - Where three offenders entered agreement to dangerously assault and rob deceased - Exact cause of death not known - Attempted dismemberment and disposal of body - Attempted destruction of evidence by housefire - Each offender to be sentenced on different factual bases - Where first co-offender is sentenced on basis she was present but did not physically participate in assault - Markedly deprived childhood - No history of violent criminal behaviour and reasonable prospects of rehabilitation - Where second co-offender is sentenced on basis that he inflicted prolonged assault involving hog-tying and choking deceased and use of weapons, attempted to dismember body, transported body in a wheelie bin and disposed of body near train tracks and kept finger as a trophy - Second co-offender set fire to house in attempt to destroy evidence - No remorse in period following offending - Relevant criminal history and 'guarded' prospects of rehabilitation - Possibility of deportation - Where Verdins and Bugmy principles enlivened for first and second co-offenders - Pleas of guilty avoided need for separate trials - Where third co-offender is sentenced on basis that he was not present during the assault that led to death but encouraged violence and provided logistical support - Third co-offender found guilty after trial - Limited remorse and acceptance of responsibility - Limited prior criminal history and good to reasonable prospects of rehabilitation - First co-offender sentenced to seven years' imprisonment with non-parole period of five years - Second co-offender sentenced to 12 years' imprisonment with non-parole period of eight years and six months - Third co-offender sentenced to 10 years' imprisonment with non-parole period of six years - R v Verdins (2007) 16 VR 269 - Guden v The Queen (2010) 28 VR 288 - Ulutui v The Queen [2012] VSCA 301 - Bugmy v The Queen (2013) 249 CLR 571 - Contos v The Queen [2022] NSWCCA 92 - R v Bos [2023] VSC 68.
CRIMINAL LAW - Manslaughter by unlawful and dangerous act - Statutory complicity - Where three offenders entered agreement to dangerously assault and rob deceased - Exact cause of death not known - Attempted dismemberment and disposal of body - Attempted destruction of evidence by housefire - Each offender to be sentenced on different factual bases - Where first co-offender is sentenced on basis she was present but did not physically participate in assault - Markedly deprived childhood - No history of violent criminal behaviour and reasonable prospects of rehabilitation - Where second co-offender is sentenced on basis that he inflicted prolonged assault involving hog-tying and choking deceased and use of weapons, attempted to dismember body, transported body in a wheelie bin and disposed of body near train tracks and kept finger as a trophy - Second co-offender set fire to house in attempt to destroy evidence - No remorse in period following offending - Relevant criminal history and 'guarded' prospects of rehabilitation - Possibility of deportation - Where Verdins and Bugmy principles enlivened for first and second co-offenders - Pleas of guilty avoided need for separate trials - Where third co-offender is sentenced on basis that he was not present during the assault that led to death but encouraged violence and provided logistical support - Third co-offender found guilty after trial - Limited remorse and acceptance of responsibility - Limited prior criminal history and good to reasonable prospects of rehabilitation - First co-offender sentenced to seven years' imprisonment with non-parole period of five years - Second co-offender sentenced to 12 years' imprisonment with non-parole period of eight years and six months - Third co-offender sentenced to 10 years' imprisonment with non-parole period of six years - R v Verdins (2007) 16 VR 269 - Guden v The Queen (2010) 28 VR 288 - Ulutui v The Queen [2012] VSCA 301 - Bugmy v The Queen (2013) 249 CLR 571 - Contos v The Queen [2022] NSWCCA 92 - R v Bos [2023] VSC 68.
CRIMINAL LAW - Application to change of trial venue from Shepparton to Melbourne - Three accused charged with kidnapping, murder, and arson - Accused on remand in prisons - Because of distance between prisons and court, all accused kept in police cells in Shepparton from Monday to Thursday nights, and transported to and from prisons on Friday evenings and Monday mornings - Pursuant to Victoria Police policy said to be aimed at welfare of those in custody, lights in police cells left on all night and accused roused or woken every hour throughout night - Despite resulting sleep-deprivation rendering accused so tired as to be unfit for proper participation in trial, Victoria Police refused to relax policy - No mental health or other concerns justifying exposure of these accused to policy - Accused unable to receive fair trial in consequence of Victoria Police's intransigence in application of policy - Accused not exposed to same policy if trial heard in Melbourne - Application granted - Venue of trial changed from Shepparton to Melbourne - Criminal Procedure Act 2009 (Vic), s 192.
CRIMINAL LAW - Application to change of trial venue from Shepparton to Melbourne - Three accused charged with kidnapping, murder, and arson - Accused on remand in prisons - Because of distance between prisons and court, all accused kept in police cells in Shepparton from Monday to Thursday nights, and transported to and from prisons on Friday evenings and Monday mornings - Pursuant to Victoria Police policy said to be aimed at welfare of those in custody, lights in police cells left on all night and accused roused or woken every hour throughout night - Despite resulting sleep-deprivation rendering accused so tired as to be unfit for proper participation in trial, Victoria Police refused to relax policy - No mental health or other concerns justifying exposure of these accused to policy - Accused unable to receive fair trial in consequence of Victoria Police's intransigence in application of policy - Accused not exposed to same policy if trial heard in Melbourne - Application granted - Venue of trial changed from Shepparton to Melbourne - Criminal Procedure Act 2009 (Vic), s 192.
CRIMINAL LAW - Six pre-trial rulings (and numerous sub-rulings) on admissibility or permitted use of evidence Crown propose to lead at joint trial - Accused charged with kidnapping and murder of Charlie Gander (aged 19) and arson of car - Crown allege that, in early hours of Christmas eve 2022, accused, motivated by belief he had implicated another to police in crime, kidnapped deceased from Shepparton; murdered him by unknown means at unknown location; then, in Bunbartha, burned car deceased had been driving with his body inside it - Deceased not killed by fire, but cause of death not ascertainable - Crown case on each charge against each accused put on basis of involvement in offence by way of agreement to commit offence or, alternatively, on direct basis of perpetration of offence - Admissibility of records of interview - Lies as incriminating conduct - Other conduct as incriminating conduct - Admissibility of secretly recorded conversation in police cell between one accused and covert operative posing as criminal - Admissions - Implied admissions - Circumstantial evidence - Hearsay - Opinion - Motive - Animus - Intention - Complicity - Crimes Act 1958 (Vic), ss 197, 323(1)(c), 324(1), 324A, 324B, 464, 464A & 464C; Evidence Act 2008 (Vic), ss 59, 76, 81, 83, 87, 89, 135, 136, 137 & 138.
CRIMINAL LAW - Six pre-trial rulings (and numerous sub-rulings) on admissibility or permitted use of evidence Crown propose to lead at joint trial - Accused charged with kidnapping and murder of Charlie Gander (aged 19) and arson of car - Crown allege that, in early hours of Christmas eve 2022, accused, motivated by belief he had implicated another to police in crime, kidnapped deceased from Shepparton; murdered him by unknown means at unknown location; then, in Bunbartha, burned car deceased had been driving with his body inside it - Deceased not killed by fire, but cause of death not ascertainable - Crown case on each charge against each accused put on basis of involvement in offence by way of agreement to commit offence or, alternatively, on direct basis of perpetration of offence - Admissibility of records of interview - Lies as incriminating conduct - Other conduct as incriminating conduct - Admissibility of secretly recorded conversation in police cell between one accused and covert operative posing as criminal - Admissions - Implied admissions - Circumstantial evidence - Hearsay - Opinion - Motive - Animus - Intention - Complicity - Crimes Act 1958 (Vic), ss 197, 323(1)(c), 324(1), 324A, 324B, 464, 464A & 464C; Evidence Act 2008 (Vic), ss 59, 76, 81, 83, 87, 89, 135, 136, 137 & 138.
CRIMINAL LAW - Serious violent offender - Serious sex offender - Supervision orders - Unacceptable risk - Degree of risk that offender will reoffend - Consequences if risk eventuates - Offender assessed as 'low risk' of sex offending - Offender assessed variously as 'moderate risk' and 'low-to-moderate risk' of serious violence offending - Whether cogent evidence to a high degree of probability that offender still poses an unacceptable risk - Serious Offenders Act 2018, ss 14, 99, 104, 105 and 106.
CRIMINAL LAW - Serious violent offender - Serious sex offender - Supervision orders - Unacceptable risk - Degree of risk that offender will reoffend - Consequences if risk eventuates - Offender assessed as 'low risk' of sex offending - Offender assessed variously as 'moderate risk' and 'low-to-moderate risk' of serious violence offending - Whether cogent evidence to a high degree of probability that offender still poses an unacceptable risk - Serious Offenders Act 2018, ss 14, 99, 104, 105 and 106.
JOINDER OF FURTHER DEFENDANTS, PLEADINGS - Application for review under r84.03(3) of the County Court Civil Procedure Rules 2008 - Whether there should be joinder of further defendants - Proposed defendants are employees of the first defendant acting in the course of their employment and within the scope of their employment - Exemplary damages - Pleadings.
JOINDER OF FURTHER DEFENDANTS, PLEADINGS - Application for review under r84.03(3) of the County Court Civil Procedure Rules 2008 - Whether there should be joinder of further defendants - Proposed defendants are employees of the first defendant acting in the course of their employment and within the scope of their employment - Exemplary damages - Pleadings.
CONTRACT - FRANCHISES - Whether the first defendant breached a licensing agreement - Whether the first defendant failed to report sales as required - Whether the first defendant failed to pay proceeds of sales - Whether the first defendant failed to return goods to the plaintiff - Whether the second defendant is personally liable for damages for breach - Whether the first defendant holds proceeds of sale on trust for the plaintiff - Terms of the licensing agreement - Whether the plaintiff was entitled to terminate - Whether the plaintiff suffered loss and damage - Whether the Franchising Code applies - Whether the plaintiff breached the Franchising Code - Whether the plaintiff breached the licensing agreement - Whether the second defendant is entitled to an indemnity.
CONTRACT - FRANCHISES - Whether the first defendant breached a licensing agreement - Whether the first defendant failed to report sales as required - Whether the first defendant failed to pay proceeds of sales - Whether the first defendant failed to return goods to the plaintiff - Whether the second defendant is personally liable for damages for breach - Whether the first defendant holds proceeds of sale on trust for the plaintiff - Terms of the licensing agreement - Whether the plaintiff was entitled to terminate - Whether the plaintiff suffered loss and damage - Whether the Franchising Code applies - Whether the plaintiff breached the Franchising Code - Whether the plaintiff breached the licensing agreement - Whether the second defendant is entitled to an indemnity.
EQUITY - EQUITABLE REMEDIES - INJUNCTION - INTERIM INJUNCTION - SERIOUS QUESTION TO BE TRIED - BALANCE OF CONVENIENCE GENERALLY - Whether the first defendant should be restrained from calling on three bank guarantees provided by the plaintiff as performance bonds under a building contract - The bank guarantees perform both security and risk allocation functions under the contract - Synergy Construct Australia Pty Ltd v GSA North Terrace Pty Ltd [2025] SASCA 72 - Sugar Australia Pty Ltd v Lend Lease Services Pty Ltd [2015] VSCA 98 - Fletcher Construction Australia Ltd v Varnsdorf Pty Ltd [1998] 3 VR 812.
EQUITY - EQUITABLE REMEDIES - INJUNCTION - INTERIM INJUNCTION - SERIOUS QUESTION TO BE TRIED - BALANCE OF CONVENIENCE GENERALLY - Whether the first defendant should be restrained from calling on three bank guarantees provided by the plaintiff as performance bonds under a building contract - The bank guarantees perform both security and risk allocation functions under the contract - Synergy Construct Australia Pty Ltd v GSA North Terrace Pty Ltd [2025] SASCA 72 - Sugar Australia Pty Ltd v Lend Lease Services Pty Ltd [2015] VSCA 98 - Fletcher Construction Australia Ltd v Varnsdorf Pty Ltd [1998] 3 VR 812.
CONTRACT - CONSTRUCTION - Whether rectification of contract required in order for first defendant to be able to call on the bank guarantees where name stated in contract was 22 Upton Road Pty Ltd and name in bank guarantee was 22 Upton Rd Pty Ltd - Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85.
SUMMARY JUDGMENT - Mortgages - Recovery of possession - Default under home loan - Failure to remedy arrears - Service of notice under s 76 Transfer of Land Act - Validity and enforceability of mortgage - Allegations of invalid loan contract - Memorandum of common provisions - Demand for "wet-ink" documents - Securitisation arguments - Counterclaim - Law Reform - Effectiveness of Civil Procedure Act 2010 in achieving its objectives - Particularly in relation to self-represented litigants.
SUMMARY JUDGMENT - Mortgages - Recovery of possession - Default under home loan - Failure to remedy arrears - Service of notice under s 76 Transfer of Land Act - Validity and enforceability of mortgage - Allegations of invalid loan contract - Memorandum of common provisions - Demand for "wet-ink" documents - Securitisation arguments - Counterclaim - Law Reform - Effectiveness of Civil Procedure Act 2010 in achieving its objectives - Particularly in relation to self-represented litigants.
CRIMINAL LAW - Insulting words - s 17 Summary Offences Act - Freedom of expression - s 15 Charter of Human Rights and Responsibilities Act - Implied freedom of political communication.
CRIMINAL LAW - Insulting words - s 17 Summary Offences Act - Freedom of expression - s 15 Charter of Human Rights and Responsibilities Act - Implied freedom of political communication.