ADMINISTRATIVE LAW - Judicial review - Validity of fisheries notice issued under Fisheries Act 1995 - Whether power to issue notice exercised for improper purpose - Whether exercise of power reasonably proportionate to relevant statutory objective - Whether compliance with statutory consultation principles a condition of validity - Whether notice an impermissible exercise of State's power - Notice lawfully issued to address concerns regarding management and use of fisheries - Lawful exercise of State legislative power with extra-territorial effect - Compliance with consultation principles not a condition of validity - Notice not reasonably proportionate to relevant statutory objective - Application for leave to appeal allowed - Appeal allowed.
ADMINISTRATIVE LAW - Judicial review - Validity of fisheries notice issued under Fisheries Act 1995 - Whether power to issue notice exercised for improper purpose - Whether exercise of power reasonably proportionate to relevant statutory objective - Whether compliance with statutory consultation principles a condition of validity - Whether notice an impermissible exercise of State's power - Notice lawfully issued to address concerns regarding management and use of fisheries - Lawful exercise of State legislative power with extra-territorial effect - Compliance with consultation principles not a condition of validity - Notice not reasonably proportionate to relevant statutory objective - Application for leave to appeal allowed - Appeal allowed.
Fisheries Act 1995, ss 3, 3A, 11(4), 36, 38, 52, 54, 68A, 114, 152; Fisheries Regulations 2019, regs 144, 234-240; Coastal Waters (State Powers) Act 1980 (Cth) ss 5, 7; Seas and Submerged Lands Act 1973 (Cth) ss 6, 11.
R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170; [1981] HCA 74; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565; [1993] FCA 522; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; Randwick City Council v Minister for the Environment (1998) 54 ALD 682; Babington v Commonwealth (2016) 240 FCR 495; [2016] FCAFC 45; Lavender v Director of Fisheries Compliance, Department of Industry Skills and Regional Development (2018) 336 FLR 37; [2018] NSWCA 174; Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340; [1989] HCA 49.
COSTS - Family provision - Costs of trial - Application for provision refused at trial - Provision ordered on appeal in amount substantially less than initially sought - Substantial dispute at trial over property valuations ultimately not of significance to disposition of case - Whether modest success and valuation dispute justify order that defendant pay only half plaintiff's costs - Plaintiff successfully invoked Court's jurisdiction - No offer of compromise for relevant amount - Both parties took robust approach to valuation dispute - No basis for departure from usual order for costs.
COSTS - Family provision - Costs of trial - Application for provision refused at trial - Provision ordered on appeal in amount substantially less than initially sought - Substantial dispute at trial over property valuations ultimately not of significance to disposition of case - Whether modest success and valuation dispute justify order that defendant pay only half plaintiff's costs - Plaintiff successfully invoked Court's jurisdiction - No offer of compromise for relevant amount - Both parties took robust approach to valuation dispute - No basis for departure from usual order for costs.
COSTS - Costs of appeal - Provision ordered in amount substantially less than sought - Several grounds unsuccessful - Whether costs should be decided according to issues in appeal - Appellant succeeded on fundamental issue whether testator failed to discharge moral duty - No basis for departure from usual order for costs.
COSTS - Application for leave to appeal - Application for leave to rely on new evidence - Order made for indemnity costs for the costs thrown away by reason of the adjournment of the trial and the need to undertake further interlocutory work and trial preparation - Order for amount of $120,000 to be paid on account forthwith - Applicants contend that this figure is unreasonable and seek to rely on new affidavit - Application to rely upon new affidavit refused - Application for leave to appeal refused.
COSTS - Application for leave to appeal - Application for leave to rely on new evidence - Order made for indemnity costs for the costs thrown away by reason of the adjournment of the trial and the need to undertake further interlocutory work and trial preparation - Order for amount of $120,000 to be paid on account forthwith - Applicants contend that this figure is unreasonable and seek to rely on new affidavit - Application to rely upon new affidavit refused - Application for leave to appeal refused.
Supreme Court (General Civil Procedure) Rules 2015.
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; Brookvista Pty Ltd v Meloni [2009] WASCA 180; Giurina v Greater Geelong City Council [2021] VSCA 341; Kuksal v Victorian Legal Services Board [2025] VSC 48; Giles v Jeffrey [2016] VSCA 314; Cargill Australia Ltd v Viterra Malt Pty Ltd [2023] VSCA 301; Gayed v Yuan [2024] VSCA 85; Li v So [2021] VSCA 32; State of Victoria v Villan [2022] VSCA 106, referred to.
PRACTICE AND PROCEDURE - Application for extension of time within which to file application for leave to appeal - Application for leave to appeal filed more than three years out of time - Application for extension of time refused - Proposed appeal totally without merit - Application for leave to appeal dismissed.
PRACTICE AND PROCEDURE - Application for extension of time within which to file application for leave to appeal - Application for leave to appeal filed more than three years out of time - Application for extension of time refused - Proposed appeal totally without merit - Application for leave to appeal dismissed.
Personal Safety Intervention Orders Act 2010 ss 91-4, 97; Supreme Court (General Civil Procedure) Rules 2015 rr 56.02, 64.08.
Austin v Dobbs [2019] VSC 355; Austin v Dobbs [2019] VSCA 296, referred.
CORPORATIONS - Appeal - Statutory demand - Where respondent issued two demands for payment for shop fit-out works for applicant's restaurant - First demand subject of deed of settlement - Applicant raised new offsetting claim when applying to set aside second demand - Applicant claimed it relied on respondent's misleading representations when entering into contract for fit-out works - Applicant claimed respondent agreed to only require payment for works after applicant was paid lease incentive by lessor - Whether applicant established a plausible contention requiring investigation as to new offsetting claim - Whether offsetting claim merely constructed in response to statutory demand - No plausible contention established by applicant's evidence - Leave to appeal refused.
CORPORATIONS - Appeal - Statutory demand - Where respondent issued two demands for payment for shop fit-out works for applicant's restaurant - First demand subject of deed of settlement - Applicant raised new offsetting claim when applying to set aside second demand - Applicant claimed it relied on respondent's misleading representations when entering into contract for fit-out works - Applicant claimed respondent agreed to only require payment for works after applicant was paid lease incentive by lessor - Whether applicant established a plausible contention requiring investigation as to new offsetting claim - Whether offsetting claim merely constructed in response to statutory demand - No plausible contention established by applicant's evidence - Leave to appeal refused.
Corporations Act 2001 (Cth) s 459G; Competition and Consumer Act 2010 (Cth) sch 2 ('Australian Consumer Law') s 18.
Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (in liq) [2015] VSCA 330, applied; Energy Equity Corp Ltd v Sinedie Pty Ltd (2001) 166 FLR 179; Sceam Construction Pty Ltd v Clyne (2021) 64 VR 404, discussed.
PRACTICE AND PROCEDURE - Application by solicitor for leave to file notice that they cease to act for applicant - Leave granted - Application by company director for leave to represent applicant - Leave granted.
Supreme Court (General Civil Procedure) Rules 2015 rr 1.17(1), 2.04(1), 20.03(1); Civil Procedure Act 2010 ss 7, 8.
Worldwide Enterprises Pty Ltd v Silberman (2010) 26 VR 595, applied.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Breach of intervention orders - Making threats to kill - Aggravated burglary - Attempting to pervert course of justice - Offending committed in context of family violence - Whether individual sentences, orders for cumulation, total effective sentence and non-parole period manifestly inadequate - Sentences imposed did not reflect objective gravity of offending and need for community protection - Appeal allowed - Respondent resentenced.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Breach of intervention orders - Making threats to kill - Aggravated burglary - Attempting to pervert course of justice - Offending committed in context of family violence - Whether individual sentences, orders for cumulation, total effective sentence and non-parole period manifestly inadequate - Sentences imposed did not reflect objective gravity of offending and need for community protection - Appeal allowed - Respondent resentenced.
Sentencing Act 1991, ss 5, 6D, 6E.
DPP v Meyers (2014) 44 VR 486; Hogarth v The Queen (2012) 37 VR 658; Skeates (a pseudonym) v The King [2023] VSCA 226, discussed.
CRIMINAL LAW - Sentence - Crown appeal - Multiple sexual offences against children - Persistent sexual abuse of a child under 16; sexual penetration with a child aged 16 or 17 under care, supervision or authority; grooming for sexual conduct with a child under 16 (2 charges); sexual assault of a child under 16; sexual assault of a child aged 16 or 17 under care, supervision or authority - Course of conduct charges - TES of 9 years and 9 months, with NPP of 6 years - Manifest inadequacy - Whether individual sentences, orders for cumulation and TES manifestly inadequate - Substantial delay - Respondent remanded and subject to lockdowns and restrictions during pandemic - Lenient sentences and orders for cumulation leading to lenient TES - Sentences and orders not wholly outside permissible range of sentences open to sentencing judge - Appeal dismissed.
CRIMINAL LAW - Sentence - Crown appeal - Multiple sexual offences against children - Persistent sexual abuse of a child under 16; sexual penetration with a child aged 16 or 17 under care, supervision or authority; grooming for sexual conduct with a child under 16 (2 charges); sexual assault of a child under 16; sexual assault of a child aged 16 or 17 under care, supervision or authority - Course of conduct charges - TES of 9 years and 9 months, with NPP of 6 years - Manifest inadequacy - Whether individual sentences, orders for cumulation and TES manifestly inadequate - Substantial delay - Respondent remanded and subject to lockdowns and restrictions during pandemic - Lenient sentences and orders for cumulation leading to lenient TES - Sentences and orders not wholly outside permissible range of sentences open to sentencing judge - Appeal dismissed.
Sentencing Act 1991, ss 5(2F), 5(2G), 5A, 5B, 6D, 6E and 11A.
CRIMINAL LAW - Appeal - Sentence - Murder - Applicant shot deceased in back whilst deceased seated in car - Sentence indication of not more than 25 years' imprisonment - Applicant sentenced to 24 years' imprisonment with 17 years' non-parole period - Whether judge erred in application of Bugmy principles - Whether head sentence and non-parole period manifestly excessive - Application for extension of time in which to seek leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Murder - Applicant shot deceased in back whilst deceased seated in car - Sentence indication of not more than 25 years' imprisonment - Applicant sentenced to 24 years' imprisonment with 17 years' non-parole period - Whether judge erred in application of Bugmy principles - Whether head sentence and non-parole period manifestly excessive - Application for extension of time in which to seek leave to appeal refused.
Bugmy v The Queen (2013) 249 CLR 571; DPP v Herrmann (2021) 290 A Crim R 110; Hurst v The King [2023] VSCA 286; R v Verdins (2007) 16 VR 269; Sabbatucci v The Queen [2021] VSCA 340, referred to.
CRIMINAL LAW - Appeal - Conviction - Dangerous driving causing serious injury - Whether unfair plea and pressure to plead guilty - Whether full opportunity to plead case - No intention to drive dangerously - Grounds not reasonably arguable - Application for appeal bail refused - Application for extension of time to seek leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Dangerous driving causing serious injury - Whether unfair plea and pressure to plead guilty - Whether full opportunity to plead case - No intention to drive dangerously - Grounds not reasonably arguable - Application for appeal bail refused - Application for extension of time to seek leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Dangerous driving causing serious injury - Sentence 3 years' imprisonment with non-parole period 2 years - Guilty plea - Maximum penalty 5 years' imprisonment - Family hardship - Extended period of extremely risky driving - Severe and life changing injuries - Prior convictions for speeding and dangerous driving - Whether sentence manifestly excessive - Application for extension of time to seek leave to appeal refused.
Carabott v The King [2025] VSCA 118; Grimm v The King [2025] VSCA 11; Madafferi v The Queen [2021] VSCA 332; Mongan v The King [2024] VSCA 126; R v Nguyen [2006] VSCA 184, applied.
CRIMINAL LAW - Interlocutory appeal - Prosecutor comments raising issue of incriminating conduct without notice - Whether prosecutor's comments were capable of being cured by judicial directions - Defence application to discharge jury refused - Application for certification granted - Whether judge erred in failing to discharge jury - Whether judge erred in granting certification - Leave to appeal against interlocutory decision refused.
CRIMINAL LAW - Interlocutory appeal - Prosecutor comments raising issue of incriminating conduct without notice - Whether prosecutor's comments were capable of being cured by judicial directions - Defence application to discharge jury refused - Application for certification granted - Whether judge erred in failing to discharge jury - Whether judge erred in granting certification - Leave to appeal against interlocutory decision refused.
Criminal Procedure Act 2009, ss 297, 295(3)(b) and (c).
Baker v The King [2025] VSCA 139; Carson v The Queen [2019] VSCA 317; Crofts v The Queen (1996) 186 CLR 427; Director of Public Prosecutions v Pace (a pseudonym) (2015) 45 VR 276; Director of Public Prosecutions v Paulino [2017] VSCA 38; Healy v The King [2024] VSCA 81; Hutton v The King [2024] VSCA 282; Males v The Queen (2021) 292 A Crim R 61; Moore v The King (2024) 419 ALR 169; Pompei v The King [2023] VSCA 71; Pope (a pseudonym) v The Queen [2017] VSCA 324; R v Boland [1974] VR 849; R v Vaitos (1981) 4 A Crim 238; R v Walker [2025] NSWCCA 62; Webb v The Queen (1994) 181 CLR 41, applied.
CRIMINAL LAW - Appeal - Sentence - Aiding and abetting the importation of commercial quantity of border-controlled drug, MDMA - Sentence 14 years' imprisonment with 8 years and 9 months non-parole - Crown concession of error - Appeal allowed - Resentenced to 11 years' imprisonment with 7 years non-parole.
CRIMINAL LAW - Appeal - Sentence - Aiding and abetting the importation of commercial quantity of border-controlled drug, MDMA - Sentence 14 years' imprisonment with 8 years and 9 months non-parole - Crown concession of error - Appeal allowed - Resentenced to 11 years' imprisonment with 7 years non-parole.
CRIMINAL LAW - Appeal - Sentence - Two charges of dangerous driving causing serious injury - Total effective sentence 3 years 2 months - Non-parole period 2 years 1 month - Applicant serving sentences for additional offending - Deprived background - Whether sentence manifestly excessive - Whether principle of totality infringed - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Two charges of dangerous driving causing serious injury - Total effective sentence 3 years 2 months - Non-parole period 2 years 1 month - Applicant serving sentences for additional offending - Deprived background - Whether sentence manifestly excessive - Whether principle of totality infringed - Leave to appeal refused.
Bugmy v R (2013) 249 CLR 571; Mill v The Queen (1988) 166 CLR 59; Morgan v The Queen [2013] VSCA 33.
CRIMINAL LAW - Application for leave to appeal - Application for extension of time - Fresh evidence - Attempting to traffick in a drug of dependence not less than a large commercial quantity - Importing border controlled substances in quantities not less than a commercial quantity - Total effective sentence 13 years' imprisonment - Non-parole period 6 years 10 months - Where applicant residing in solitary confinement for duration of sentence - Whether fresh evidence demonstrates true significance of facts in existence at the time of the sentence - Evidence that the risks taken into account by a judge have materialised is not fresh evidence which can lead to the re-opening of the sentencing discretion - Application for extension of time refused - Leave to appeal refused.
CRIMINAL LAW - Application for leave to appeal - Application for extension of time - Fresh evidence - Attempting to traffick in a drug of dependence not less than a large commercial quantity - Importing border controlled substances in quantities not less than a commercial quantity - Total effective sentence 13 years' imprisonment - Non-parole period 6 years 10 months - Where applicant residing in solitary confinement for duration of sentence - Whether fresh evidence demonstrates true significance of facts in existence at the time of the sentence - Evidence that the risks taken into account by a judge have materialised is not fresh evidence which can lead to the re-opening of the sentencing discretion - Application for extension of time refused - Leave to appeal refused.
Drugs, Poisons and Controlled Substances Act 1981, s 71(1); Criminal Code (Cth) s 307.1(1); Criminal Procedure Act 2009.
R v Nguyen [2006] VSCA 184; Packard (a pseudonym) v The Queen (2022) 300 A Crim R 55; Ale v The King [2025] VSCA 92, applied.
CRIMINAL LAW - Appeal - Conviction - Application for leave to appeal against conviction - Facts underlying proposed ground of appeal in dispute - Need to resolve factual disputes underlying proposed ground of appeal - Application for reference determination pursuant to s 319A of the Criminal Procedure Act 2009 - Referral of factual issues and matters to Trial Division for reference determination - Appropriate terms of referral.
CRIMINAL LAW - Appeal - Conviction - Application for leave to appeal against conviction - Facts underlying proposed ground of appeal in dispute - Need to resolve factual disputes underlying proposed ground of appeal - Application for reference determination pursuant to s 319A of the Criminal Procedure Act 2009 - Referral of factual issues and matters to Trial Division for reference determination - Appropriate terms of referral.
Criminal Procedure Act 2009, s 319A.
CRIMINAL LAW - Appeal - Sentence - Conduct endangering persons - Causing injury intentionally - Racist motivation - First victim of African appearance - Applicant shouted racist abuse at first victim - Endangered first victim by driving vehicle towards him - Second victim of Indian appearance - Applicant used vehicle to run over second victim - Judge found racist motivation underlying offending against both victims - Applicant submitting in respect of second victim finding not open - Whether finding open - Close temporal proximity between offences - Open to view offences as part of single larger transaction - No error in judge's finding - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Conduct endangering persons - Causing injury intentionally - Racist motivation - First victim of African appearance - Applicant shouted racist abuse at first victim - Endangered first victim by driving vehicle towards him - Second victim of Indian appearance - Applicant used vehicle to run over second victim - Judge found racist motivation underlying offending against both victims - Applicant submitting in respect of second victim finding not open - Whether finding open - Close temporal proximity between offences - Open to view offences as part of single larger transaction - No error in judge's finding - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Remorse - Letter of applicant expressing sorrow and claiming racism produced by drug-induced psychosis - Letter of friends of applicant attesting to applicant's good character - Judge not dealing in terms with remorse - Whether judge erred by not having regard to remorse - Psychiatrist's report showing applicant downplayed responsibility for offending - Judge referred to friends' letter - Judge addressed remorse - Mere failure to refer to sentencing consideration not establishing failure to take into account - No error in judge's approach - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Manifest excess - Guilty plea - Evidence of rehabilitation in custody - Applicant having spent about two years in custody before plea - No discount available for pre-sentence detention - Applicant serving terms of imprisonment for two unrelated sentences - Whether total effective sentence 6 years 3 months' imprisonment and non-parole period 4 years 9 months for conduct endangering persons and causing injury intentionally manifestly excessive - Very serious examples of offending - Limited mitigating factors - Moderate orders for cumulation - Judge had regard to totality - No error in judge's approach - Leave to appeal refused.
Sentencing Act 1991, s 5(2)(daaa); Criminal Procedure Act 2009, s 209.
CRIMINAL LAW - Appeal - Sentence - Traffick drug of dependence in commercial quantity - Possess drug of dependence - Deal with property suspected of being proceeds of crime - Fail to comply with direction to assist - Applicant incorrectly sentenced as serious drug offender on charge 1 - Judge erred in regarding protection of community as principal sentencing purpose in respect of charge 1 - Judge erred in imposing sentence on charge 2 on factual basis that quantity was in excess of large commercial quantity - Sentencing exercise vitiated - Appeal allowed - Objective gravity of offending mid-range - Verdins not enlivened - Moral culpability for offending high despite cognitive impairments and difficult childhood - Applicant resentenced to total effective sentence of 7 years and 3 months' imprisonment.
CRIMINAL LAW - Appeal - Sentence - Traffick drug of dependence in commercial quantity - Possess drug of dependence - Deal with property suspected of being proceeds of crime - Fail to comply with direction to assist - Applicant incorrectly sentenced as serious drug offender on charge 1 - Judge erred in regarding protection of community as principal sentencing purpose in respect of charge 1 - Judge erred in imposing sentence on charge 2 on factual basis that quantity was in excess of large commercial quantity - Sentencing exercise vitiated - Appeal allowed - Objective gravity of offending mid-range - Verdins not enlivened - Moral culpability for offending high despite cognitive impairments and difficult childhood - Applicant resentenced to total effective sentence of 7 years and 3 months' imprisonment.
Sentencing Act 1991, ss 6B, 6D(a), 6E.
R v Verdins (2007) 16 VR 269; DPP v Richardson [2023] VSCA 241; DPP v Fatho [2019] VSCA 311; Danaf v The Queen [2020] VSCA 226; Gayed v The Queen [2021] VSCA 141, considered.
TAXATION - Statutory construction - Landholder provisions in Part 2 of Chapter 3 of Duties Act 2000 - Where Commissioner assessed appellant trustee for transfer duty and penalty tax and interest in respect of 'relevant acquisitions' of interest by acquirers in a landholder - Where landholder is a 'private unit trust scheme' and acquirers are transferees of units in the unit trust - Where trustee purportedly has discretions in relation to distribution of trust property of the unit trust on a (statutory) winding up of the landholder under s 79(3) - Whether each of the acquirers has the requisite 'entitlement' to a distribution of property from, and thus an interest in, the landholder on a (statutory) winding up of the landholder - Whether each of the acquirers has a 'significant interest' in a landholder - Appeal dismissed - Duties Act 2000 (Vic), ss 3, 71, 72, 74, 77, 78, 79, 80, 85, 89H - CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98, applied.
TAXATION - Statutory construction - Landholder provisions in Part 2 of Chapter 3 of Duties Act 2000 - Where Commissioner assessed appellant trustee for transfer duty and penalty tax and interest in respect of 'relevant acquisitions' of interest by acquirers in a landholder - Where landholder is a 'private unit trust scheme' and acquirers are transferees of units in the unit trust - Where trustee purportedly has discretions in relation to distribution of trust property of the unit trust on a (statutory) winding up of the landholder under s 79(3) - Whether each of the acquirers has the requisite 'entitlement' to a distribution of property from, and thus an interest in, the landholder on a (statutory) winding up of the landholder - Whether each of the acquirers has a 'significant interest' in a landholder - Appeal dismissed - Duties Act 2000 (Vic), ss 3, 71, 72, 74, 77, 78, 79, 80, 85, 89H - CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98, applied.
TAXATION - Appeal from Commissioner's determination disallowing appellant's objection against an Assessment for landholder duty under Part 2 of Chapter 3 of the Duties Act 2000 - Where the Commissioner, by leave, advanced new or re-vamped basis to support the Assessment on appeal - Where the Commissioner acknowledged that there were 'inaccuracies' in the Assessment as made but says it nevertheless charged the correct amounts of duty, penalty and interest - Where Commissioner contends any error in the Assessment is immaterial - Whether it is appropriate to remit the Assessment to the Commissioner - Assessment remitted - Taxation Administration Act 1997 (Vic), ss 8, 109, 112.
CORPORATIONS - Application to set aside creditor's statutory demand - Whether affidavits can be relied upon - Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452 - Sceam Construction Pty Ltd v Clyne (2021) 64 VR 404 - GoConnect Ltd v Sono Strategic International Ltd (in liq) [2016] VSCA 315 - Whether there is a genuine dispute - Corporations Act 2001 (Cth), s 459H - Demand varied - Whether the company has an offsetting claim - Corporations Act 2001 (Cth), s 459H(1)(b) - Britten Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601 - TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd (2008) 66 ACSR 67 - No offsetting claim.
CORPORATIONS - Application to set aside creditor's statutory demand - Whether affidavits can be relied upon - Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452 - Sceam Construction Pty Ltd v Clyne (2021) 64 VR 404 - GoConnect Ltd v Sono Strategic International Ltd (in liq) [2016] VSCA 315 - Whether there is a genuine dispute - Corporations Act 2001 (Cth), s 459H - Demand varied - Whether the company has an offsetting claim - Corporations Act 2001 (Cth), s 459H(1)(b) - Britten Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601 - TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd (2008) 66 ACSR 67 - No offsetting claim.
CORPORATIONS - Application to set aside creditor's statutory demand - Whether the company has an offsetting claim - Corporations Act 2001 (Cth), s 459H(1)(b) - Britten Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601, applied - TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd (2008) 66 ACSR 67, applied - No offsetting claim.
CORPORATIONS - Application to set aside creditor's statutory demand - Whether the company has an offsetting claim - Corporations Act 2001 (Cth), s 459H(1)(b) - Britten Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601, applied - TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd (2008) 66 ACSR 67, applied - No offsetting claim.
CORPORATIONS - Winding up - Creditor's statutory demand - Application to set aside creditor's statutory demand - Whether there is some other reason - Corporations Act 2001 (Cth), s 459J(1)(b) - Arcade Bridge Embroidery Co Pty Ltd v The Deputy Commissioner of Taxation (2005) 157 ACTR 22; Kisimul Holdings Pty Ltd v Clear Position Pty Ltd [2014] NSWCA 262, applied - Some other reason not found.
PRACTICE AND PROCEDURE - Application to rely on evidence out of time - Re Tarrawarra Yarra Valley Holding Pty Ltd [2025] VSC 293, applied - Application refused.
CORPORATIONS - Winding up on just and equitable ground and on grounds of insolvency - Provisional liquidators previously appointed to corporate defendants - Provisional liquidators' report to the Court provides sufficient basis for corporate defendants to be wound up - Corporations Act 2001 (Cth), ss 461(1)(k), 459B - ASIC v ActiveSuper Pty Ltd (No 2) [2013] FCA 234, applied.
CORPORATIONS - Winding up on just and equitable ground and on grounds of insolvency - Provisional liquidators previously appointed to corporate defendants - Provisional liquidators' report to the Court provides sufficient basis for corporate defendants to be wound up - Corporations Act 2001 (Cth), ss 461(1)(k), 459B - ASIC v ActiveSuper Pty Ltd (No 2) [2013] FCA 234, applied.
CORPORATIONS - Managed investment schemes - Corporate defendants alleged to be operating an unregistered managed investment scheme in contravention of s 601ED(5) of the Corporations Act 2001 (Cth) - Group scheme wound up - Corporations Act 2001 (Cth), ss 9, 601ED, 601EE - Stewart v Spicer Thoroughbreds Pty Ltd [2022] NSWSC 558, applied.
CORPORATIONS - Oppression proceeding - Whether payment of remuneration to key executives associated with majority shareholder was excessive - Whether excessive remuneration was oppressive to minority shareholder - Whether non-payment of dividends was oppressive - Payment of bonuses was so high as to be oppressive - Non-payment of dividends oppressive to minority shareholder in context of excessive remuneration paid to key executives associated with majority shareholder - Corporations Act 2001 (Cth), ss 232, 233 - Shamsallah Holdings Pty Ltd v CBD Refrigeration and Airconditioning Services Pty Ltd [2001] WASC 8 applied - Slea Pty Ltd v Connective Services Pty Ltd (No 9) [2022] VSC 136 applied.
CORPORATIONS - Oppression proceeding - Whether payment of remuneration to key executives associated with majority shareholder was excessive - Whether excessive remuneration was oppressive to minority shareholder - Whether non-payment of dividends was oppressive - Payment of bonuses was so high as to be oppressive - Non-payment of dividends oppressive to minority shareholder in context of excessive remuneration paid to key executives associated with majority shareholder - Corporations Act 2001 (Cth), ss 232, 233 - Shamsallah Holdings Pty Ltd v CBD Refrigeration and Airconditioning Services Pty Ltd [2001] WASC 8 applied - Slea Pty Ltd v Connective Services Pty Ltd (No 9) [2022] VSC 136 applied.
CORPORATIONS - Oppression proceeding - Valuation of shares - Whether provisions of shareholder agreement regarding transfer of shares apply - Discount for minority shareholding not applicable where oppression is found - Smith Martis Cork & Rajan Pty Ltd v Benjamin Corporation Pty Ltd (2004) 207 ALR 136 applied - Dynasty Pty Ltd v Coombs (1995) 59 FCR 122 applied - Joint v Program IT Pty Ltd [2020] VSC 867 followed.
GROUP PROCEEDINGS - Application for a Group Costs Order - Costs to be calculated as a percentage of the amount of any award or settlement recovered - Whether proposed percentage appropriate or necessary - Supreme Court Act 1986 (Vic), s 33ZDA.
GROUP PROCEEDINGS - Application for a Group Costs Order - Costs to be calculated as a percentage of the amount of any award or settlement recovered - Whether proposed percentage appropriate or necessary - Supreme Court Act 1986 (Vic), s 33ZDA.
GROUP PROCEEDINGS - Costs - Application for a group costs order - Costs to be calculated as a percentage of the amount of any award or settlement recovered - Whether proposed rate of 35 per cent appropriate or necessary - Principles to be applied - GCO made at a rate of 30 per cent - Supreme Court Act 1986 (Vic) s 33ZDA.
GROUP PROCEEDINGS - Costs - Application for a group costs order - Costs to be calculated as a percentage of the amount of any award or settlement recovered - Whether proposed rate of 35 per cent appropriate or necessary - Principles to be applied - GCO made at a rate of 30 per cent - Supreme Court Act 1986 (Vic) s 33ZDA.
PRACTICE AND PROCEDURE - Proceeding commenced by originating motion - Judgment in default of appearance obtained without notice to defendants - Application to set aside default judgment - Default judgment set aside as it is irregular - Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 5.03(1), 45.03, 45.05, 46.08.
PRACTICE AND PROCEDURE - Proceeding commenced by originating motion - Judgment in default of appearance obtained without notice to defendants - Application to set aside default judgment - Default judgment set aside as it is irregular - Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 5.03(1), 45.03, 45.05, 46.08.
PRACTICE AND PROCEDURE - Group proceeding - Application for substitution of first lead plaintiff - Whether substitution of plaintiff is appropriate in the circumstances - Whether substitution will cause any real prejudice to the defendants - Supreme Court Act 1986, ss 33T, 33ZF, 33Z(1)(g).
PRACTICE AND PROCEDURE - Group proceeding - Application for substitution of first lead plaintiff - Whether substitution of plaintiff is appropriate in the circumstances - Whether substitution will cause any real prejudice to the defendants - Supreme Court Act 1986, ss 33T, 33ZF, 33Z(1)(g).
PRACTICE AND PROCEDURE - Confidentiality orders sought - Matters confidential and privileged - Supreme Court Act 1986, s 33ZF, Supreme Court (General Civil Procedure) Rules 2015, r 28.05(4).
PRACTICE AND PROCEDURE - Application for final relief and damages assessment - Judgment sought by plaintiff to recover commission pursuant to property consultancy agreement - Entry of final orders - Damages awarded with statutory interest - Interlocutory judgment for damages to be assessed precludes alternative judgment for debt - Liability established of first defendant as undisclosed principal bound to perform contract - Second defendant executed agreement as agent for first defendant - Application of undisclosed principal doctrine - Alternative misleading and deceptive conduct claim against second defendant not made out - Form of judgment when pleading alleges inconsistent counterfactuals - Damages against second defendant assessed at nil - Declaratory relief when default judgment obtained - Appropriateness of declaratory relief - Supreme Court Rules (General Civil Procedure) Rules 2015, rr 24.02; 21.03; 21.04; 59.01.
PRACTICE AND PROCEDURE - Application for final relief and damages assessment - Judgment sought by plaintiff to recover commission pursuant to property consultancy agreement - Entry of final orders - Damages awarded with statutory interest - Interlocutory judgment for damages to be assessed precludes alternative judgment for debt - Liability established of first defendant as undisclosed principal bound to perform contract - Second defendant executed agreement as agent for first defendant - Application of undisclosed principal doctrine - Alternative misleading and deceptive conduct claim against second defendant not made out - Form of judgment when pleading alleges inconsistent counterfactuals - Damages against second defendant assessed at nil - Declaratory relief when default judgment obtained - Appropriateness of declaratory relief - Supreme Court Rules (General Civil Procedure) Rules 2015, rr 24.02; 21.03; 21.04; 59.01.
COSTS - Standard basis - Indemnity costs refused - Defendants' failure to accept Calderbank offer not unreasonable in the circumstances - Prior orders made for final costs payment - Additional order for costs incurred post-interlocutory judgment - No further departure from the usual order as to costs warranted.
PRACTICE AND PROCEDURE - Application for leave to amend statement of claim and file further evidence - Where application filed three months prior to trial - Where proposed amendments introduce new claims - Where leave opposed due to delay and likelihood of adjournment of trial - Where delay in making the application is explained, but not excused, by new solicitors and counsel casting 'fresh eyes' over the proceeding - Where plaintiff failed to comply with earlier orders - Where, if leave is granted, the trial will be adjourned - Court available to hear the proceeding in February 2026 - Leave granted to amend pleading and file new evidence - Carroll v Goff [2021] VSCA 267; Cargill Australia Limited v Viterra Malt Pty Ltd (No 18) [2018] VSC 772; Billington v Sussan Corporation Australia [2020] VSCA 12, applied.
PRACTICE AND PROCEDURE - Application for leave to amend statement of claim and file further evidence - Where application filed three months prior to trial - Where proposed amendments introduce new claims - Where leave opposed due to delay and likelihood of adjournment of trial - Where delay in making the application is explained, but not excused, by new solicitors and counsel casting 'fresh eyes' over the proceeding - Where plaintiff failed to comply with earlier orders - Where, if leave is granted, the trial will be adjourned - Court available to hear the proceeding in February 2026 - Leave granted to amend pleading and file new evidence - Carroll v Goff [2021] VSCA 267; Cargill Australia Limited v Viterra Malt Pty Ltd (No 18) [2018] VSC 772; Billington v Sussan Corporation Australia [2020] VSCA 12, applied.
PRACTICE AND PROCEDURE - Appeal against order made by Associate Justice - Whether order should have been made for a further extension of time for the determination of the plaintiff's winding up application - Whether further extension order was unreasonable, unjust and failed to take into account or to accord proper weight to material considerations - Whether there has been an unreasonable prolongation of the proceeding - Whether there is prejudice to the company as being a defendant in unresolved winding up proceedings - Irregularity of the proceeding due to deregistered plaintiff - Whether substitution application an abuse of process - Unfilled proposal to reinstate or substitute - Delay in bringing application and lack of prospects - Supreme Court (General Civil Procedure) Rules 2015 r 77.06 - Corporations Act 2001 (Cth) ss 459R, 465B - House v The King (1936) 55 CLR 499 - Appeal dismissed.
PRACTICE AND PROCEDURE - Appeal against order made by Associate Justice - Whether order should have been made for a further extension of time for the determination of the plaintiff's winding up application - Whether further extension order was unreasonable, unjust and failed to take into account or to accord proper weight to material considerations - Whether there has been an unreasonable prolongation of the proceeding - Whether there is prejudice to the company as being a defendant in unresolved winding up proceedings - Irregularity of the proceeding due to deregistered plaintiff - Whether substitution application an abuse of process - Unfilled proposal to reinstate or substitute - Delay in bringing application and lack of prospects - Supreme Court (General Civil Procedure) Rules 2015 r 77.06 - Corporations Act 2001 (Cth) ss 459R, 465B - House v The King (1936) 55 CLR 499 - Appeal dismissed.
PRACTICE AND PROCEDURE - Application for trial of preliminary question - Group proceeding - Questions not likely to be dispositive - Basis on which questions to be answered uncertain - Proceeding raises novel questions - Consideration of the alternative of a limited initial trial - Application refused - Murphy v State of Victoria (2014) 45 VR 119; [2014] VSCA 238, applied - Doyle's Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) 106 NSWLR 41; [2021] NSWCA 246, Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19, Andrews v Australia and New Zealand Banking Group Ltd (2011) 281 ALR 113; [2011] FCA 388, Abdulrahim v Adult Parole Board of Victoria [2023] VSC 101, referred to - Williams v Toyota Motor Corporation Australia Limited (2024) 419 ALR 373; [2024] HCA 38, discussed - Competition and Consumer Act 2010 (Cth), Sch 2 ss 54, 259 - Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 47.04 - Civil Procedure Act 2010 (Vic), ss 7, 8.
PRACTICE AND PROCEDURE - Application for trial of preliminary question - Group proceeding - Questions not likely to be dispositive - Basis on which questions to be answered uncertain - Proceeding raises novel questions - Consideration of the alternative of a limited initial trial - Application refused - Murphy v State of Victoria (2014) 45 VR 119; [2014] VSCA 238, applied - Doyle's Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) 106 NSWLR 41; [2021] NSWCA 246, Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19, Andrews v Australia and New Zealand Banking Group Ltd (2011) 281 ALR 113; [2011] FCA 388, Abdulrahim v Adult Parole Board of Victoria [2023] VSC 101, referred to - Williams v Toyota Motor Corporation Australia Limited (2024) 419 ALR 373; [2024] HCA 38, discussed - Competition and Consumer Act 2010 (Cth), Sch 2 ss 54, 259 - Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 47.04 - Civil Procedure Act 2010 (Vic), ss 7, 8.
PERSONAL INJURY CLAIM - Application for leave to proceed nunc pro tunc and for expedited trial due to the plaintiff's severe chronic obstructive airway disease - Meaning of 'imminent risk of death' - Held, plaintiff not at imminent risk of death within the meaning of s 357 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) - Application refused - Proceeding struck out - Brew v Neptar Jam Pty Ltd [2015] VSC 762 - Roberts v ISS Facility Services Pty Ltd [2022] VSC 738.
PERSONAL INJURY CLAIM - Application for leave to proceed nunc pro tunc and for expedited trial due to the plaintiff's severe chronic obstructive airway disease - Meaning of 'imminent risk of death' - Held, plaintiff not at imminent risk of death within the meaning of s 357 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) - Application refused - Proceeding struck out - Brew v Neptar Jam Pty Ltd [2015] VSC 762 - Roberts v ISS Facility Services Pty Ltd [2022] VSC 738.
EQUITY - Fair-dealing rule - Where relevant trustees are not parties to the assignment of interests by the beneficiaries - Where assignee company is controlled and partly owned by the relevant trustees - Tito v Waddell (No 2) [1977] Ch 106 considered - Re James [1949] SASR 143, Yates v Halliday [2006] NSWSC 1346, Soulos v Pagones [2023] NSWCA 243 - Whether trustees took advantage of their position - Whether there was full disclosure or informed consent - Whether the transaction was fair and honest - Breach of fair-dealing rule established - Clay v Clay (2001) 202 CLR 410 applied.
EQUITY - Fair-dealing rule - Where relevant trustees are not parties to the assignment of interests by the beneficiaries - Where assignee company is controlled and partly owned by the relevant trustees - Tito v Waddell (No 2) [1977] Ch 106 considered - Re James [1949] SASR 143, Yates v Halliday [2006] NSWSC 1346, Soulos v Pagones [2023] NSWCA 243 - Whether trustees took advantage of their position - Whether there was full disclosure or informed consent - Whether the transaction was fair and honest - Breach of fair-dealing rule established - Clay v Clay (2001) 202 CLR 410 applied.
EQUITY - Undue influence - Whether will of each of the plaintiffs was overborne by undue influence - Rebuttable presumption arises from parent and child and trustee and beneficiary relationship - Presumption not rebutted - Whether undue influence by some directors on notice to company or can be imputed to company - Undue influence established - Princess Theatre Pty Ltd & Ors v Ansvar Insurance Limited [2024] VSC 363 applied - Harris v Jenkins (1922) 31 CLR 341 distinguished.
EQUITY - Unconscionable conduct - Whether plaintiffs were under special disadvantage - Whether defendants unconscientiously took advantage of special disadvantage - Whether unconscionable conduct by some directors was on notice to company or could be imputed to company - Unconscionable conduct established.
CONTRACTS - Two plaintiffs were minors when executing deed of assignment - Whether plaintiffs repudiated contract within reasonable time of attaining majority - Reasonableness of delay is a factual inquiry - Unreasonable delay found for one plaintiff - Edwards v Carter [1893] AC 360 applied.
LIMITATION OF ACTIONS - Whether action in respect of breach of trust barred by s 21(2) of Limitation of Actions Act 1958 - Action in respect of breach of trust to which s 21(2) applied - Whether proviso in s 21(2) engaged - Whether plaintiffs' revisionary or remainder interest was a future interest - Right of action accrued at death of life tenant - Claim of fair-dealing was brought within time - Re Pauling's Settlement Trusts [1964] Ch 303, Armitage v Nurse [1998] Ch 241, Johns v Johns [2004] 3 NZLR 202, Halford v Halford (2022) 58 WAR 254 applied - Menegazzo v Pricewaterhousecoopers (A Firm) & Ors [2016] QSC 94 considered.
EQUITY - Laches - Whether there was unreasonable delay resulting in sufficient prejudice to result in laches - Two plaintiffs attained knowledge of assignment deed 17 years before commencement of proceeding - Delay prejudiced defendants in ability to respond to claims - Other plaintiffs did not have sufficient knowledge of assignment deed until after death of life tenant - Laches established with respect to two plaintiffs - Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221 applied.
EQUITY - Acquiescence - Plaintiffs did not acquiesce with respect to impugned transaction - Acquiescence not established - Orr v Ford (1989) 167 CLR 316, Byrnes v Kendle (2011) 243 CLR 253 applied.
MINING LAW - Privately owned land - Mining reservation on Crown grant - Mining licences - Dispute over scope of activity licensee permitted to undertake on the land pursuant to licence and the Mineral Resources (Sustainable Development) Act 1990 (Vic) - Application for declaratory and injunctive relief - Whether work plan required prior to exploratory diamond core drilling and mineral sampling - Whether drilling and sampling is 'work' requiring compliance with compensation or consent requirements - Whether owners' consent or compensation is required for such activity - Declaratory and injunctive relief refused - Mineral Resources (Sustainable Development) Act 1990 (Vic), ss 4, 14, 40, 42, Schedule 4A; Mineral Resources (Sustainable Development) (Mineral Industries) Regulations 2019 (Vic), regs 41, 42, 43.
MINING LAW - Privately owned land - Mining reservation on Crown grant - Mining licences - Dispute over scope of activity licensee permitted to undertake on the land pursuant to licence and the Mineral Resources (Sustainable Development) Act 1990 (Vic) - Application for declaratory and injunctive relief - Whether work plan required prior to exploratory diamond core drilling and mineral sampling - Whether drilling and sampling is 'work' requiring compliance with compensation or consent requirements - Whether owners' consent or compensation is required for such activity - Declaratory and injunctive relief refused - Mineral Resources (Sustainable Development) Act 1990 (Vic), ss 4, 14, 40, 42, Schedule 4A; Mineral Resources (Sustainable Development) (Mineral Industries) Regulations 2019 (Vic), regs 41, 42, 43.
STATUTORY INTERPRETATION - Meaning of 'work' - Meaning of 'low impact exploration'.
CAVEATS - Application for removal of multiple caveats by registered mortgagee - Caveats lodged by individuals investing in land under a joint venture agreement relating to unsubdivided land - Terms of agreements and associated contracts of sale provided for sale of lot in land when subdivided - Mortgagee on notice of caveats prior to registration but caveats removed to enable registration of mortgage and subsequently replaced - Whether 'terms contract' within meaning of Sale of Land Act 1962 - Transfer of Land Act 1958, s 90(3).
CAVEATS - Application for removal of multiple caveats by registered mortgagee - Caveats lodged by individuals investing in land under a joint venture agreement relating to unsubdivided land - Terms of agreements and associated contracts of sale provided for sale of lot in land when subdivided - Mortgagee on notice of caveats prior to registration but caveats removed to enable registration of mortgage and subsequently replaced - Whether 'terms contract' within meaning of Sale of Land Act 1962 - Transfer of Land Act 1958, s 90(3).
APPEAL - Appeal from decision of Associate Judge to dismiss plaintiff's application to change mode of trial to jury - Application for leave to appeal subsequent costs order - Each ground of appeal advanced by plaintiff is without merit - Appeal dismissed - Plaintiff has not demonstrated any basis to review costs order made against it - Leave to appeal costs order refused.
APPEAL - Appeal from decision of Associate Judge to dismiss plaintiff's application to change mode of trial to jury - Application for leave to appeal subsequent costs order - Each ground of appeal advanced by plaintiff is without merit - Appeal dismissed - Plaintiff has not demonstrated any basis to review costs order made against it - Leave to appeal costs order refused.
PRACTICE AND PROCEDURE - Accidental slip or omission - Costs order - Decision under appeal - Amendment does not cause prejudice - Amendment to orders - Scope of costs order narrowed to the appeal - Costs of and incidental to appeal - Slip rule under r 36.07 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
PRACTICE AND PROCEDURE - Accidental slip or omission - Costs order - Decision under appeal - Amendment does not cause prejudice - Amendment to orders - Scope of costs order narrowed to the appeal - Costs of and incidental to appeal - Slip rule under r 36.07 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
ADMINISTRATION AND PROBATE - Removal of executor and trustee - Unanswered evidence of dishonesty by solicitor appointed as executor of estates of clients - Named beneficiaries were relatives residing overseas - Administration and Probate Act 1958 s 34 - Trustee Act 1958 s 48.
ADMINISTRATION AND PROBATE - Removal of executor and trustee - Unanswered evidence of dishonesty by solicitor appointed as executor of estates of clients - Named beneficiaries were relatives residing overseas - Administration and Probate Act 1958 s 34 - Trustee Act 1958 s 48.
TORTS - Conspiracy - Combination - Combination within a corporate group - Combination not established - O'Brien v Dawson (1942) 66 CLR 18 - LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2001] NSWSC 886 - Copperweld Corp v Independence Tube Corp 104 S.Ct. 2731 (1984) - Digicel (St Lucia) Ltd v Cable & Wireless Plc [2010] EWHC 774 (Ch).
TORTS - Conspiracy - Combination - Combination within a corporate group - Combination not established - O'Brien v Dawson (1942) 66 CLR 18 - LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2001] NSWSC 886 - Copperweld Corp v Independence Tube Corp 104 S.Ct. 2731 (1984) - Digicel (St Lucia) Ltd v Cable & Wireless Plc [2010] EWHC 774 (Ch).
TORTS - Conspiracy - Intention - Subjective intention - Direction of intention toward all members of class - Rules of attribution of knowledge to a company - Subjective knowledge established in respect of one of three state-based conspiracies - Australian Competition and Consumer Commission v Colgate- Palmolive Pty Ltd (No 4) (2017) 353 ALR 460 - Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537 - Dresna Pty Ltd v Misu Nominees Pty Ltd (2003) ATPR - Lonrho Ltd v Shell Petroleum Co Ltd No 2 [1981] Com LR 6 - Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580 - McWilliam v Penthouse Publications Ltd [2001] NSWCA 237 - OBG v Allan [2008] 1 AC 1 - ED & F Man Capital Markets Limited v Come Harvest Holdings Ltd [2022] EWHC 229 - British American Tobacco Australia Services Limited v Slater & Gordon Ltd (No 3) [2009] VSC 619 - Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 - Stanley v & Ors v Layne Christensen Co [2006] WASCA 56 - Hamilton & Whitehead (1988) 166 CLR 121 - Tesco Supermarkets Ltd v Nattrass [1972] AC 153 - Commonwealth Bank of Australia v Kojic [2016] FCAFC 186 - McKernan v Fraser [1931] 46 CLR 343 - Williams v Hursey (1959) 103 CLR 30 - Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 - Anderson v Canaccord Genuity Financial Ltd [2023] NSWCA 294.
TORTS - Conspiracy - Unlawful means - Nature of unlawful means - Whether remedy prescribed by statute is exclusive - Whether unlawful means must be independently actionable - Whether unlawful means must infringe a private legal right of the plaintiff - Whether acts caused loss or were merely the occasion of such loss - Williams v Hursey (1959) 103 CLR 30 - Revenue and Customs Commissioners v Total Network [2008] 1 AC 1174 - Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 - Fatimi v Bryant (2004) 59 NSWLR 678 - Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 - Council of the City of Gold Coast v Pioneer concrete (QLD) Pty Ltd (1994) 121 ALR 405 - McKernan v Fraser (1931) 46 CLR 343 - Dresna Pty Ltd v Misu Nominees Pty Ltd (2004) ATPR 42-013 - Coal Miners' Industrial Union of Workers (WA) (Collie v True) (1959) 33 ALJR 224.
EQUITY - Breach of confidence - Whether defendants' use of proxy to obtain plaintiff's list of drivers constituted a breach of confidence - Whether information in driver list identifiable with specificity - Whether driver list had necessary quality of confidence - Whether data received by defendants through proxy was in circumstances importing an obligation of confidence - Whether there was a misuse of information without plaintiff's consent - Breach of confidence established - Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 - Del Casale v Artedomus (Aust) Pty Ltd (2007) 73 IPR 326, referred to - Robb v Green [1895] 2 QB 1 - IF Asia Pacific Pty Ltd v Galbally and Others [2003] VSC 192 - Saltman Engineering Co Ltd and Others v Campbell Engineering Co Ltd [1963] 3 All ER 413 - Mars UK Ltd v Teknowledge Ltd (1999) 46 IPR 248 - Cray Valley Ltd v Deltech Europe Ltd [2003] EWHC 728 (Ch) - Spycatcher (Attorney- General v Guardian Newspapers (No 2) [1990] 1 AC 109 - Smith Kline & French Laboratories (Australia) Ltd and Others v Secretary, Department of Community Services and Health (1990) 22 FCR 73, (1990) 95 ALR 87 - Optus Networks Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281 - Coco v AN Clark (Engineers) Ltd [1968] RPC 41.
EQUITY - Breach of confidence - Whether declaratory relief should be granted pursuant to s 36 of the Supreme Court Act 1986 (Vic) - Whether the granting of declaratory relief would produce any foreseeable consequences for the parties - CE Heath Casualty & General Insurance Ltd & AMP General Insurance Ltd v Pyramid Building Society (in liq) [1997] 2 VR 256, referred to - Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591, referred to - Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, followed - Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070, followed - No declaratory relief granted as it would not produce any foreseeable consequences for the parties.
PROCEDURE - Costs - Plaintiff unsuccessful in family provision claim - Plaintiff seeks defendants' costs from estate - Defendants seek plaintiff pay costs on standard basis and on indemnity basis following offer of compromise - Where plaintiff not in need and relationship with deceased of limited duration - Usual order as to costs - Plaintiff's case not borderline - Plaintiff unreasonably failed to accept offer of compromise - Plaintiff not impecunious as a result of costs order - Plaintiff to pay defendants' costs on standard basis up to offer of compromise and indemnity costs thereafter - Administration of Probate Act 1958 Part IV - Supreme Court (General Civil Procedure) Rules 2015 rr 26.02, 26.08(4), ord 63 - Supreme Court Act 1986 ss 24, 97(60), 97(7) - Justice Legislation Amendment (Succession and Surrogacy) Act 2014 s 6(7) - Lennan v Chao [2025] VSC 220 - Re Schlink; Keane v Corns (No 2) [2020] VSC 417 - Innes- Irons & Anor v Forrest (Costs) [2017] VSC 10 - Webb v Ryan (No 2) [2012] VSC 431 - McCusker v Rutter (2010) 7 ASTLR 137 - Haertsch v Whiteway (No 2) [2020] NSWCA 287.
PROCEDURE - Costs - Plaintiff unsuccessful in family provision claim - Plaintiff seeks defendants' costs from estate - Defendants seek plaintiff pay costs on standard basis and on indemnity basis following offer of compromise - Where plaintiff not in need and relationship with deceased of limited duration - Usual order as to costs - Plaintiff's case not borderline - Plaintiff unreasonably failed to accept offer of compromise - Plaintiff not impecunious as a result of costs order - Plaintiff to pay defendants' costs on standard basis up to offer of compromise and indemnity costs thereafter - Administration of Probate Act 1958 Part IV - Supreme Court (General Civil Procedure) Rules 2015 rr 26.02, 26.08(4), ord 63 - Supreme Court Act 1986 ss 24, 97(60), 97(7) - Justice Legislation Amendment (Succession and Surrogacy) Act 2014 s 6(7) - Lennan v Chao [2025] VSC 220 - Re Schlink; Keane v Corns (No 2) [2020] VSC 417 - Innes- Irons & Anor v Forrest (Costs) [2017] VSC 10 - Webb v Ryan (No 2) [2012] VSC 431 - McCusker v Rutter (2010) 7 ASTLR 137 - Haertsch v Whiteway (No 2) [2020] NSWCA 287.
FOREIGN JUDGMENTS - Plaintiffs obtained judgments from Chinese Courts against defendant after service by public announcement - Plaintiffs not aware of, or personally served with process in, Chinese proceeding - Plaintiffs knew defendant's email and WeChat addresses - Notice of proceedings not communicated to defendant by email or WeChat - Yin v Wu (2023) 73 VR 21 considered and applied - Defendant prima facie denied natural justice - Whether defendant served in accordance with Chinese Law - Whether defendant served in accordance with contractual provision for service - Whether principles of comity require recognition of Chinese Judgments - Held: Principles of comity give way to fundamental principles of justice, which includes natural justice - Applied Yin v Wu, Court should look unfavourably on failure to notify or serve defendant by available electronic means - Defendant was denied natural justice - Registration of foreign judgments refused.
FOREIGN JUDGMENTS - Plaintiffs obtained judgments from Chinese Courts against defendant after service by public announcement - Plaintiffs not aware of, or personally served with process in, Chinese proceeding - Plaintiffs knew defendant's email and WeChat addresses - Notice of proceedings not communicated to defendant by email or WeChat - Yin v Wu (2023) 73 VR 21 considered and applied - Defendant prima facie denied natural justice - Whether defendant served in accordance with Chinese Law - Whether defendant served in accordance with contractual provision for service - Whether principles of comity require recognition of Chinese Judgments - Held: Principles of comity give way to fundamental principles of justice, which includes natural justice - Applied Yin v Wu, Court should look unfavourably on failure to notify or serve defendant by available electronic means - Defendant was denied natural justice - Registration of foreign judgments refused.
LIMITATION OF ACTIONS - Historical sexual abuse - Settlement agreement - Application to set aside settlement agreement under s 27QD of Limitation of Actions Act 1958 (Vic) - Whether 'just and reasonable' to set aside agreement - Where Ellis defence materially influenced plaintiff's decision to enter into settlement agreement, the deed to be set aside - Limitation of Actions Act 1958 (Vic), ss 27QA(2), 27QD, 27QE - Trustees of the Roman Catholic Church of the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565; DZY v Trustees of the Christian Brothers (2025) 99 ALJR 806; Roman Catholic Trusts Corporation for the Diocese of Sale v WCB (2020) 62 VR 234.
LIMITATION OF ACTIONS - Historical sexual abuse - Settlement agreement - Application to set aside settlement agreement under s 27QD of Limitation of Actions Act 1958 (Vic) - Whether 'just and reasonable' to set aside agreement - Where Ellis defence materially influenced plaintiff's decision to enter into settlement agreement, the deed to be set aside - Limitation of Actions Act 1958 (Vic), ss 27QA(2), 27QD, 27QE - Trustees of the Roman Catholic Church of the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565; DZY v Trustees of the Christian Brothers (2025) 99 ALJR 806; Roman Catholic Trusts Corporation for the Diocese of Sale v WCB (2020) 62 VR 234.
LIMITATION OF ACTIONS - Limitation of Actions Act 1958 (Vic), ss 27QD, 27QE - Institutional abuse - Prior settlement deed - Application to set aside prior deed - Whether just and reasonable to set aside prior deed - Whether the Ellis defence impacted plaintiff's decision to enter into the prior deed - Whether the expiry of the limitation period impacted plaintiff's decision to enter into prior deed - Whether the plaintiff had an erroneous belief concerning the application of the Ellis defence and limitation period - Whether the Court can consider the plaintiff's erroneous beliefs in deciding whether it is just and reasonable - Unequal bargaining power - Legal advice - Prospects of success and settlement amount - Interests of the parties - Just and reasonable to set aside the prior deed - DZY (a pseudonym) v Trustees of the Christian Brothers (2025) 99 ALJR 806.
LIMITATION OF ACTIONS - Limitation of Actions Act 1958 (Vic), ss 27QD, 27QE - Institutional abuse - Prior settlement deed - Application to set aside prior deed - Whether just and reasonable to set aside prior deed - Whether the Ellis defence impacted plaintiff's decision to enter into the prior deed - Whether the expiry of the limitation period impacted plaintiff's decision to enter into prior deed - Whether the plaintiff had an erroneous belief concerning the application of the Ellis defence and limitation period - Whether the Court can consider the plaintiff's erroneous beliefs in deciding whether it is just and reasonable - Unequal bargaining power - Legal advice - Prospects of success and settlement amount - Interests of the parties - Just and reasonable to set aside the prior deed - DZY (a pseudonym) v Trustees of the Christian Brothers (2025) 99 ALJR 806.
ADMINISTRATIVE LAW - Judicial Review - Strategic Planning - Planning and Environment Act 1987 (Vic) ('P&E Act') Part 3AAB - Distinctive areas and landscapes declaration for Bellarine Peninsula - Minister's decision to finalise statement of planning policy - Whether decision affected by irrationality or unreasonableness - 'Evident and intelligible justification' and 'genuine consideration' - Whether Minister genuinely engaged with recommendation of advisory committee - Whether Minister genuine considered the community consultation as obligated - Whether error in the Minister's decision to approve statement of planning policy by reason of a pre-election commitment - Apprehended bias - Consideration of apprehension of bias where decision made by elected official - Decision made not legally unreasonable or irrational - No bias - Minister entitled to take into account policy commitment.
ADMINISTRATIVE LAW - Judicial Review - Strategic Planning - Planning and Environment Act 1987 (Vic) ('P&E Act') Part 3AAB - Distinctive areas and landscapes declaration for Bellarine Peninsula - Minister's decision to finalise statement of planning policy - Whether decision affected by irrationality or unreasonableness - 'Evident and intelligible justification' and 'genuine consideration' - Whether Minister genuinely engaged with recommendation of advisory committee - Whether Minister genuine considered the community consultation as obligated - Whether error in the Minister's decision to approve statement of planning policy by reason of a pre-election commitment - Apprehended bias - Consideration of apprehension of bias where decision made by elected official - Decision made not legally unreasonable or irrational - No bias - Minister entitled to take into account policy commitment.
PLANNING LAW - Role of an advisory committee to which advice had been sought - Statutory interpretation - Exercise of discretion under s 46AV of the P&E Act.
Zeally Investments Pty Ltd v Minister for Planning [2023] VSC 755, Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, Haneef v Minister for Immigration and Citizenship (2007) 161 FCR 40, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, Immigration and Border Protection v SZVFW (2018) 264 CLR 541, Plaintiff S183/2021 v Minister for Home Affairs (2022) 96 ALJR 464, Zaburoni v Minister for Immigration and Border Protection (2017) 256 FCR 197, Minister for Families and Children v Arthur (2016) 51 VR 597, Jones v Dunkel (1959) 101 CLR 298, referred to; Stambe v Minister for Health (2019) 270 FCR 173, distinguished.
ADMINISTRATIVE LAW - Judicial review - Magistrates' Court decision not to set aside and instead to vary a proceeding suppression order - Plaintiffs claiming certiorari to quash suppression order - Suppression order made in circumstances where a retrial had not yet been ordered - On its face scope of order was broader than scope of empowering provision - Whether proceeding could be determined on basis that order be read down - Parties to be heard on whether suppression order should be quashed as being broader than scope of empowering provision - Open Courts Act 2013 ss 13, 15, 17, 18, 26.
ADMINISTRATIVE LAW - Judicial review - Magistrates' Court decision not to set aside and instead to vary a proceeding suppression order - Plaintiffs claiming certiorari to quash suppression order - Suppression order made in circumstances where a retrial had not yet been ordered - On its face scope of order was broader than scope of empowering provision - Whether proceeding could be determined on basis that order be read down - Parties to be heard on whether suppression order should be quashed as being broader than scope of empowering provision - Open Courts Act 2013 ss 13, 15, 17, 18, 26.
PRACTICE AND PROCEDURE - Suppression order - Open Courts Act 2013 ss 13, 15, 17, 18, 26.
ADMINISTRATIVE LAW - Judicial review - Medical panel - Determination of 'significant injury' by panel under Part VBA of the Wrongs Act 1958 (Vic) - Whether panel erred in combining assessments under different methods in the AMA Guides - Whether panel was precluded under the AMA Guides from combining peripheral nerve assessment of one impairment under s 3.2k, with manual muscle testing assessment of another impairment under s 3.2d - Whether medical panel's decision in accordance with the AMA Guides - Whether jurisdictional error of a medical panel - Appeal dismissed.
ADMINISTRATIVE LAW - Judicial review - Medical panel - Determination of 'significant injury' by panel under Part VBA of the Wrongs Act 1958 (Vic) - Whether panel erred in combining assessments under different methods in the AMA Guides - Whether panel was precluded under the AMA Guides from combining peripheral nerve assessment of one impairment under s 3.2k, with manual muscle testing assessment of another impairment under s 3.2d - Whether medical panel's decision in accordance with the AMA Guides - Whether jurisdictional error of a medical panel - Appeal dismissed.
CRIMINAL LAW - Sentence - Appeal against sentencing decision of the President of the Children's Court - Sentence set aside - Rehearing - Charge of intentionally cause serious injury in circumstances of gross violence - Guilty plea - Accused 17 years old at time of offending - Mental health - Autism Spectrum Disorder - Attention-deficit Hyperactivity Disorder - Severe disadvantage - Reduced moral culpability - Positive prospects of rehabilitation - Verdins - Bugmy - Sentenced to a youth justice supervision order for a period of 16 months - Children, Youth and Families Act 2005 ss 360-362, 387(1), 414, 424, 426(1), 430I.
CRIMINAL LAW - Sentence - Appeal against sentencing decision of the President of the Children's Court - Sentence set aside - Rehearing - Charge of intentionally cause serious injury in circumstances of gross violence - Guilty plea - Accused 17 years old at time of offending - Mental health - Autism Spectrum Disorder - Attention-deficit Hyperactivity Disorder - Severe disadvantage - Reduced moral culpability - Positive prospects of rehabilitation - Verdins - Bugmy - Sentenced to a youth justice supervision order for a period of 16 months - Children, Youth and Families Act 2005 ss 360-362, 387(1), 414, 424, 426(1), 430I.
CRIMINAL LAW - Murder - Consent mental impairment - Verdict of not guilty by reason of mental impairment - Accused declared liable to supervision - Matter adjourned to allow for report and certificate of available services to be obtained - Crimes Act 1958 (Vic), ss 323, 324 - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 3, 20, 21, 24, 41, 47, 38G, 38H, 38Z - Criminal Organisations Control and Other Acts Amendment Act 2014 (Vic), s 1 - Children, Youth and Families Act 2005 (Vic), s 534 - Interpretation of Legislation Act 1984 (Vic), s 35 - Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 23, 32.
CRIMINAL LAW - Murder - Consent mental impairment - Verdict of not guilty by reason of mental impairment - Accused declared liable to supervision - Matter adjourned to allow for report and certificate of available services to be obtained - Crimes Act 1958 (Vic), ss 323, 324 - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 3, 20, 21, 24, 41, 47, 38G, 38H, 38Z - Criminal Organisations Control and Other Acts Amendment Act 2014 (Vic), s 1 - Children, Youth and Families Act 2005 (Vic), s 534 - Interpretation of Legislation Act 1984 (Vic), s 35 - Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 23, 32.
PRACTICE AND PROCEDURE - Use of artificial intelligence to prepare written submissions filed with the court - Misinformation produced by artificial intelligence - Hallucinated case references - Irrelevant case references - Accuracy of quotations and citations not verified - Responsible use of artificial intelligence - Accuracy of submissions fundamental to due administration of justice.
CRIMINAL LAW - Bail application - Applicant charged with two charges of intentionally damaging property by fire - Applicant prima facie entitled to bail - Whether unacceptable risk of endangering the safety and welfare of others if granted bail - Whether unacceptable risk applicant will fail to answer bail - Applicant Aboriginal person - Intellectual disability - Significant mental health issues - Bail Act 1977 (Vic) ss 1B, 3AAA, 3A, 4, and 4E, considered.
CRIMINAL LAW - Bail application - Applicant charged with two charges of intentionally damaging property by fire - Applicant prima facie entitled to bail - Whether unacceptable risk of endangering the safety and welfare of others if granted bail - Whether unacceptable risk applicant will fail to answer bail - Applicant Aboriginal person - Intellectual disability - Significant mental health issues - Bail Act 1977 (Vic) ss 1B, 3AAA, 3A, 4, and 4E, considered.
CRIMINAL LAW - Bail - Applicant charged with voluminous number of offences - Multiple charges of bail contraventions - Determination in relation to an Aboriginal person - Whether exceptional circumstances - Whether unacceptable risk - Bail Act 1977 (Vic), s 3A - Re Terei [2024] VSC 294.
CRIMINAL LAW - Bail - Applicant charged with voluminous number of offences - Multiple charges of bail contraventions - Determination in relation to an Aboriginal person - Whether exceptional circumstances - Whether unacceptable risk - Bail Act 1977 (Vic), s 3A - Re Terei [2024] VSC 294.
CRIMINAL LAW - Application for bail - Where alleged offending involves aggravated home invasion with four co-accused - Whether exceptional circumstances test satisfied - Where applicant was 18 years old at time of offending - Where applicant has no criminal history or past failure to comply with bail conditions - Where the applicant has polysubstance abuse issue - Where applicant has secure employment and is commencing vocational studies - Where applicant willing to engage with Youth Justice program if granted bail - Where a grant of bail would allow applicant to receive support services for substance abuse - Where delay would not exceed any sentence of imprisonment imposed if found guilty - Where reliability of admissions made to covert operative challenged - Where there are triable issues - Whether unacceptable risk test satisfied - Whether imposition of conditions may mitigate risk - Bail Act 1977 (Vic), ss 3AAA, 4A, 4E.
CRIMINAL LAW - Application for bail - Where alleged offending involves aggravated home invasion with four co-accused - Whether exceptional circumstances test satisfied - Where applicant was 18 years old at time of offending - Where applicant has no criminal history or past failure to comply with bail conditions - Where the applicant has polysubstance abuse issue - Where applicant has secure employment and is commencing vocational studies - Where applicant willing to engage with Youth Justice program if granted bail - Where a grant of bail would allow applicant to receive support services for substance abuse - Where delay would not exceed any sentence of imprisonment imposed if found guilty - Where reliability of admissions made to covert operative challenged - Where there are triable issues - Whether unacceptable risk test satisfied - Whether imposition of conditions may mitigate risk - Bail Act 1977 (Vic), ss 3AAA, 4A, 4E.
CRIMINAL LAW - Bail - Applicant charged with trafficking in drug of dependence and other charges - Applicant accused of a Schedule 2 offence while subject to a summons to answer to a charge of another Schedule 2 offence - Requirement to show exceptional circumstances - Whether exceptional circumstances made out - Whether applicant an unacceptable risk - Bail granted - Bail Act 1977, ss 1B, 3AAA, 4AA, 4A, 4D and 4E.
CRIMINAL LAW - Bail - Applicant charged with trafficking in drug of dependence and other charges - Applicant accused of a Schedule 2 offence while subject to a summons to answer to a charge of another Schedule 2 offence - Requirement to show exceptional circumstances - Whether exceptional circumstances made out - Whether applicant an unacceptable risk - Bail granted - Bail Act 1977, ss 1B, 3AAA, 4AA, 4A, 4D and 4E.
PRACTICE AND PROCEDURE - STAYS - Plaintiffs seeking release of funds held in court representing part judgment - Whether further stay of execution on judgment debt should be granted - Stay of civil proceeding sought by the defendant pending trial of related criminal proceedings against directors of the plaintiffs.
PRACTICE AND PROCEDURE - STAYS - Plaintiffs seeking release of funds held in court representing part judgment - Whether further stay of execution on judgment debt should be granted - Stay of civil proceeding sought by the defendant pending trial of related criminal proceedings against directors of the plaintiffs.
WORKERS' COMPENSATION - Mental injury claim by WorkSafe inspector following claimed exposure to trauma - Significant contributing factor - 'Management action' - Reduction of weekly earnings where employment terminated on grounds of misconduct - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss 39(1), 40(1), 40(3), 185(1), sch 1, cl 25.
WORKERS' COMPENSATION - Mental injury claim by WorkSafe inspector following claimed exposure to trauma - Significant contributing factor - 'Management action' - Reduction of weekly earnings where employment terminated on grounds of misconduct - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss 39(1), 40(1), 40(3), 185(1), sch 1, cl 25.