IMMIGRATION - Visas - Cancellation of visa - Revocation of cancellation of visa - Where appellant convicted of offences and sentenced to aggregate term of imprisonment - Where appellant's visa mandatorily cancelled on the basis of "substantial criminal record" under s 501(3A) of Migration Act 1958 (Cth) - Where appellant notified of cancellation and invited to make representations about revocation of cancellation decision within 28 days pursuant to s 501CA(3) of Migration Act ("notification") when appellant was receiving psychiatric care - Where appellant lacked legal capacity to make representations sought or to empower person to make decisions on his behalf at date of notification - Where appellant did not make representations sought within 28 days - Where guardian subsequently appointed to appellant pursuant to Guardianship and Administration Act 2019 (Vic) - Whether notification valid - Whether Minister discharged duty in s 501CA(3) at date of notification.
WORDS AND PHRASES - "cancellation", "capacity", "character test", "constructively unperformed", "fit to plead", "guardian", "invitation", "notification", "practicable", "representations", "revocation", "soundness of mind", "substantial criminal record", "unable to be held criminally responsible", "vitiate".
Migration Act 1958 (Cth), ss 501, 501CA.
Guardianship and Administration Act 2019 (Vic), ss 3(1), 5, 22, 30.
ADMINISTRATIVE LAW - Judicial review - Decision of administrative character made under an enactment - Where prisoner was subject to supervision order of Supreme Court of Queensland - Where Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) required supervision order to contain requirement that prisoner comply with every reasonable direction of corrective services officer - Whether prisoner entitled to reasons for direction - Whether Act source of direction's effect on prisoner's legal obligations.
WORDS AND PHRASES - "decision made under an enactment", "direction", "judicial review", "legal force or effect from statute", "legal rights or obligations", "statement of reasons", "supervision order".
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), ss 13, 16, 16C, 20, 43AA.
Judicial Review Act 1991 (Qld), ss 4, 30, 32, 33.
STATUTES - Construction - Migration Act 1958 (Cth) - Aggregate sentences - Where visas subject to mandatory cancellation under s 501(3A) of Migration Act because plaintiff and appellants did not pass character test on basis of s 501(7)(c) - Where s 501(7)(c) engaged if person sentenced to a term of imprisonment of 12 months or more - Where plaintiff and appellants each convicted of multiple offences and received aggregate sentence of imprisonment of 12 months or more - Where items 4(3), 4(4) and 4(5)(b)(i) of Sch 1 to Migration Amendment (Aggregate Sentences) Act 2023 (Cth) ("Aggregate Sentences Act") purported to retrospectively validate decisions made under Migration Act rendered invalid by reason that aggregate sentence for 12 months or more was not considered "a term of imprisonment of 12 months or more" - Whether aggregate sentence "a term of imprisonment" within meaning of s 501(7)(c) - Whether Aggregate Sentences Act validated decisions of Administrative Appeals Tribunal affirming decisions not to revoke cancellation of visas - Whether items 4(3), 4(4) and 4(5)(b)(i) of Sch 1 to Aggregate Sentences Act invalid - Whether second applications for special leave should be granted.
WORDS AND PHRASES - "aggregate sentence", "character test", "decision", "imprisonment", "mandatory cancellation of a visa", "punishment for an offence", "sentence", "substantial criminal record", "validity".
Migration Act 1958 (Cth), ss 501, 501CA.
Migration Amendment (Aggregate Sentences) Act 2023 (Cth), Sch 1, items 4(3), 4(4) and 4(5)(b)(i).
INJUNCTIONS - Appeal - Application for leave to appeal against refusal of interlocutory injunction - No evidentiary foundation for granting of interlocutory injunction - Applicant failing to establish serious question to be tried as to entitlement to relief - No error in primary judge refusing to grant interlocutory injunction - Proposed appeal not having a real prospect of success - Application for leave to appeal refused.
ADMINISTRATION AND PROBATE - Appeal - Applications for leave to appeal procedural orders - Application for leave to appeal substantive orders - Whether trial judge erred in granting probate of copy will - Whether trial judge erred in passing over one of two executors - Whether trial judge erred in making orders for production of documents and inspection of books of company - Whether other judges erred in making procedural orders - Whether any injustice in leaving procedural orders unreversed - Bias - Whether any orders affected by racial, cultural or apparent bias - Application for leave to appeal from judge's orders directing Prothonotary not to accept for filing proposed notices of appeal from procedural orders made by associate justices - 81 proposed grounds of appeal - Proposed grounds of appeal devoid of merit - Proposed appeals having no prospects of success - Applications for leave to appeal refused.
NEGLIGENCE - Professional negligence - Applicant alleged solicitor mishandled personal injury claim - Solicitor retained discredited expert ergonomist - Solicitor allegedly delayed in retaining expert - Solicitor allegedly failed to arrange site visit for expert - Expert not called at trial - Whether judge erred in finding that failure to arrange site visit did not cause expert to not be called - No error.
NEGLIGENCE - Professional negligence - Solicitor allegedly failed to follow instructions to exclude certain juror - Whether judge erred in finding that no instruction given - No error.
PRACTICE AND PROCEDURE - Summary dismissal - Judge on summary dismissal application appeared to determine that advocate's immunity did not protect solicitor - Whether final determination of issue - Determination not final - Whether solicitor's attempt to renew summary dismissal application constituted abuse of process - Judge refused attempt to renew - Applicant's complaint of no consequence.
NEGLIGENCE - Professional negligence - Advocate's immunity - Whether solicitor's retention of expert protected by advocate's immunity - Unnecessary to decide - Applicant failed to prove loss or damage.
PRACTICE AND PROCEDURE - Whether judge erred in discussing evidence of one witness in presence of another witness - Judge should have requested witness to leave courtroom - No material injustice to applicant.
Civil Procedure Act 2010, ss 62, 63; County Court Civil Procedure Rules 2018, r 22.16.
Blair v Curran (1939) 62 CLR 464; Jones v Dunkel (1959) 101 CLR 298; Fox v Percy (2003) 214 CLR 118; Kuligowski v Metrobus (2004) 220 CLR 363; Lee v Lee (2019) 266 CLR 129; Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; The Bishop of the Roman Catholic Diocese of Wagga Wagga, Mark Edwards v TJ (a pseudonym) [2024] VSCA 262; Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485.
COSTS - Where alternative claims made - Where alternative claim withdrawn prior to trial - Whether costs should be awarded against the applicants under r 63.15 of the Supreme Court (General Civil Procedure) Rules 2015- Where election made in a timely manner prior to trial - Where multiple amendments to pleadings - Where trial contained to one day - Appropriate to 'otherwise order' such that costs follow event.
Supreme Court (General Civil Procedure) Rules 2015 rr26.08, 63.15, 63.17.
ADMINISTRATIVE LAW - Judicial review - Internal arbitration of allegation of misconduct by Councillor - Finding of misconduct arising from content of social media post on Councillor's private account relating to a matter for decision by Council - Whether trial judge erred in finding the expression 'in performing the role of a Councillor' applied to the Councillor's conduct - Whether 'decision making' involved acquisition of information about 'the diversity of interests and needs of the municipal community' - Democratic nature of local government - Arbitrator the sole contradictor - No breach of Hardiman principle - Application for appeal to appeal granted - Appeal dismissed.
Constitution Act 1975 s 74A; Local Government Act 2020 ss 4, 8, 9, 28, 139, 142, 143, 144; Local Government (Governance and Integrity) Regulations 2020 r 12, Schedule 1.
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, applied; R v A2 (2019) 269 CLR 507, applied.
BUILDING AND CONSTRUCTION - Breach of statutory warranties by builder in relation to non-compliant cladding - State subrogated to rights of owners - Section 137F(3) of the Building Act 1993 provides that right or remedy to which State subrogated enforceable against officers of entity - Whether s 137F(3) has retrospective operation - Section 137F(3) applies retrospectively - Leave to appeal refused.
BUILDING AND CONSTRUCTION - Section 137F(4) of the Building Act 1993 provides that right or remedy under s 137F(3) not enforceable against officer of entity where act or omission by entity occurred without knowledge or consent of officer - Whether officer's liability depends on knowledge of non-compliant nature of cladding - Knowledge of non-compliant nature of cladding not required - Leave to appeal refused.
BUILDING AND CONSTRUCTION - Whether judge erred in finding building permit invalid - Nothing turns on judge's finding - Leave to appeal refused.
BUILDING AND CONSTRUCTION - Whether judge erred in finding State established quantum of liability - State proved reasonable costs of rectification - Leave to appeal refused.
PRACTICE AND PROCEDURE - Costs - Whether judge erred in awarding costs in relation to State's intervention prior to parties being joined - Judge erred in applying s 137F in relation to costs where State brought proceeding in own name - Leave to appeal granted - Appeal allowed - Applicant to pay State's costs from time of joinder only.
JURISDICTION - County Court proceeding heard on referral from Victorian Civil and Administrative Tribunal ('VCAT') - VCAT joined parties to proceeding - Whether VCAT's joinder orders invalid because matter in federal jurisdiction - Sections 57F and 57G would validate joinder orders even if matter in federal jurisdiction - Leave to amend application for leave to appeal refused.
Building Act 1993, s 137F; Charter of Human Rights and Responsibilities Act 2006, s 27; Domestic Building Contracts Act 1995, s 8; Victorian Civil and Administrative Tribunal 1998, ss 57F, 57G, 57I.
Bellgrove v Eldridge (1954) 90 CLR 613; Maxwell v Murphy (1957) 96 CLR 261; Owners SP 92450 [2023] NSWCA 114; Productivity Partners v Australian Competition and Consumer Commission (2024) 98 ALJR 1021; Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272, considered.
PRACTICE AND PROCEDURE - Appeal - Application for security for costs in sum of $73,570 - Whether unacceptable risk that respondent, if successful, will be unable to recover its costs of application for leave to appeal due to impecuniosity of applicant - Whether appropriate to make order for security for costs in all the circumstances - Quantum of security for costs where issues on appeal relatively confined - Security for costs ordered in sum of $30,000.
PRACTICE AND PROCEDURE - Application for summary dismissal - Where application for leave to appeal concerns Family Violence Intervention Order ('FVIO') - Whether application to appeal lacks utility because FVIO has expired - Arguable that application does not lack utility - Application for summary dismissal refused.
PRACTICE AND PROCEDURE - Application for security for costs - Applicant for leave to appeal resident outside jurisdiction and has no substantial assets in jurisdiction - No evidence that order for security would stifle reasonably arguable claim - Applicant's case on application for leave to appeal plausible - Application for leave to appeal raises issue of public interest - Respondent's delay in seeking order for security relatively short - Application for security for costs granted.
PRACTICE AND PROCEDURE - Costs - Court refused application for leave to appeal and determined it was 'totally without merit' pursuant to s 14D(3) of Supreme Court Act 1986 - Whether respondent entitled to award of costs on indemnity basis - Whether applicant knew or should have known that case was hopeless - Where applicant self-represented litigant - Applicant did not appear to understand that case was hopeless - Order for costs on standard basis.
Macedon Ranges Shire Council v Thompson (2009) 170 LGERA 41; Riaz v City of Greater Dandenong [2023] VSCA 190; Cai v County Court of Victoria [2017] VSCA 278, referred to.
CRIMINAL LAW - Sentence - Application for leave to appeal against sentence - Persistent sexual abuse of child outside Australia, grooming to make easier to engage in sexual activity with child outside Australia, using carriage service to solicit, and cause to be transmitted to self, child abuse material, possessing or controlling child abuse material obtained or accessed using carriage service and visually capturing genital or anal region (upskirting) - TES of 13 years and 8 months, with NPP of 9 years and 6 months - Whether sentence manifestly excessive - Not reasonably arguable that sentence manifestly excessive - Application for leave to appeal refused.
CRIMINAL LAW - Conviction - Appeal - Practice and procedure - Jury empanelment - Judge excused panel member after commencement of procedure for selecting jury in s 36 of Juries Act 2000 - Whether judge had power to excuse panel member - No statutory power to excuse panel member after commencement of s 36 process - Whether power at common law - Common law power to excuse panel member before sworn as juror - *Juries Act 2000 *not excluding common law power - No irregularity in course taken by judge - Leave to appeal granted - Appeal dismissed.
CRIMINAL LAW - Jury verdicts - Sexual penetration of child under 16 - Indecent act with child under 16 - Four guilty verdicts and two not guilty verdicts - Offending covering distinct events - Whether verdicts inconsistent - Not guilty verdict explicable by reference to conflicting evidence - Leave to appeal refused.
Juries Act 1904, s 2; Juries Act 1967; Juries Act 2000 ss 32, 36.
Pell v The Queen [2019] VSCA 186; Mansell v The Queen (1857) 8 E & B 54; 120 ER 20; R v Cullen [1951] VLR 335; R v Abrahams [1948] VLR 51; R v Searle [1993] 2 VR 367; R v Lewis (2000) 1 VR 290; R v Panozzo (2003) 8 VR 548, discussed; MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606, applied.
CRIMINAL LAW - Interlocutory appeal - Pending trial for aggravated home invasion - Admissions to police undercover operatives in cells and in a record of interview - Admissions alleged to have been made after an earlier, unrecorded interview - Failed police recording - Whether the trial judge erred in refusing to exclude the admissions - No error - Application for leave to appeal refused.
Evidence Act 2008 ss 85, 90.
Em v The Queen (2007) 232 CLR 67 - R v Em [2003] NSWCCA 374 - House v The King (1936) 55 CLR 499 - DPP (NSW) v Sullivan [2022] NSWCCA 183, considered.
CRIMINAL LAW - Appeal - Sentence - Aggravated burglary - Recklessly causing injury - Total effective sentence 2 years' imprisonment - 12 month non-parole period - Applicant's co-accused to aggravated burglary received 70-day imprisonment and 2-year CCO - Whether applicant's sentence infringed parity principle - Whether sentence was manifestly excessive - Objectively similar gravity and moral culpability for both co-offenders - Similar circumstances for both co-offenders - Sentence disparity was manifestly excessive - Leave to appeal granted - Appeal allowed - Applicant resentenced to total effective sentence of 15 months' imprisonment - 9 month non-parole period.
Crimes Act 1958, ss 18, 77; Control of Weapons Act 1990, s 5AA.
Galea v The Queen [2020] VSCA 69; Green v The Queen (2011) 244 CLR 462; Grey v The King [2024] VSCA 75; Hafner v The Queen [2012] VSCA 190; O'Loughlan v The Queen [2010] VSCA 175; Postiglione v The Queen (1997) 189 CLR 295, considered.
CRIMINAL LAW - Appeal - Conviction - Indecent assault of adopted daughter - Alleged offending between 1973 and 1975 - Judge alone trial - Whether trial unacceptably unfair due to delay - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Indecent assault of adopted daughter - Alleged offending between 1973 and 1975 - Judge alone trial - Whether substantial miscarriage of justice due to failure of defence counsel to adduce evidence concerning accuracy of memory and other matters - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Indecent assault of adopted daughter - Alleged offending between 1973 and 1975 - Judge alone trial - Whether error in failing to uphold defence hypotheses consistent with innocence - Whether other error in judge's reasoning - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Indecent assault of adopted daughter - Total effective sentence 4 years and 6 months' imprisonment with 2 years and 9 months non-parole - Alleged offending between 1973 and 1975 - Whether judge erred in finding absence of remorse - Whether judge erred in failing to take into account applicant's age - Whether judge erred in failing to take into account sentencing practices at time of offending - Appeal allowed - Appellant resentenced to total effective sentence of 3 years' imprisonment with 21 months non-parole.
CRIMINAL LAW - Appeal - Conviction - Rape - Threat to inflict serious injury - Aggravated burglary - Stalking - Complainant alleged assault by stranger - Applicant admitted attending complainant's residence four times after alleged rape - Applicant gave innocent explanation - Applicant and complainant frequented same hotel - CCTV footage taken after offending showing complainant and applicant in same room at hotel - Whether footage showed complainant recognising applicant - Whether jury acting rationally must have entertained reasonable doubt about applicant's guilt - Inconsistencies, discrepancies, untruth and other issues in complainant's evidence - Jury could not rationally exclude possibility complainant recognised applicant at hotel - Effect on complainant's credibility - Leave to appeal granted - Appeal allowed - Acquittals entered.
CRIMINAL LAW - Incriminating conduct - Lies - Applicant claimed in police interview not to have been to complainant's unit - Expressed mystification when shown proof of attendance at unit - Admission to telling lies to distance self from false allegations - Whether lies reasonably capable of being viewed by jury as evidence of incriminating conduct - Leave to appeal refused.
CRIMINAL LAW - Evidence - Directions to jury - Incriminating conduct - Direction that lies could only be used as evidence of incriminating conduct if only reasonable explanation for lies was that applicant thought truth would implicate him in serious criminal conduct alleged by complainant - Whether direction to jury required instruction to consider level of satisfaction separately in relation to each charge - Applicant's belief a matter to be addressed by reference to charges as a whole - Kim v The King [2023] VSCA 228, distinguished - Leave to appeal refused.
Jury Directions Act 2015 ss 20, 21, 22.
Davis v The Queen (2016) A Crim R 492; [2016] VSCA 272, discussed; M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123, applied.
CRIMINAL LAW - Appeal - Sentence - Rape and associated offences - Childhood deprivation - Intellectual disability - Prior conviction for similar rape - Dangerous offender - Need for community protection - Prospects of rehabilitation bleak - Whether community protection given too much weight - Whether sentence manifestly excessive - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Recklessly exposing an emergency worker to risks by driving and reckless conduct endangering life - Appellant drove vehicle on pedestrian footpath to evade police - Police officer exposed to risk - Pedestrians and workers endangered - Total effective sentence of 7 years' imprisonment with 5 years non-parole - Whether individual sentences manifestly excessive - Whether orders for cumulation resulted in a total effective sentence that is manifestly excessive - Whether principle of totality breached in circumstances where one course of conduct resulted in multiple victims - Lack of remorse - Poor criminal history for driving offences - Appeal dismissed.
FINAL ORDERS - Form of order to give effect to judgment - Principled approach to the payment of funds held in Court - No statutory interest - Orders as proposed by the defendants.
PRACTICE AND PROCEDURE - Issue regarding costs of a security for costs application resolved by agreement - Plaintiff agreed to pay defendants' costs of application - Defendant seeking order that the defendant be entitled to tax the costs of the interlocutory application immediately - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.20.1 - General principles regarding orders for immediate taxation of the costs of an interlocutory application - Dale v Clayton Utz (No 3) [2013] VSC 593 - Immediate taxation order application refused.
PRACTICE AND PROCEDURE - Summary judgment - Whether defendants have real prospects of success on their third party notice - Civil Procedure Act 2010 (Vic), ss 62 and 64 - Supreme Court (General Civil Procedure) Rules 2015 (Vic), rule 22.16 - Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 - Where defendants are guarantors in respect of secured property - Where defendants bring a standalone claim against mortgagees in respect of equitable and statutory duties concerning the sale of secured property for alleged undervalue - Transfer of Land Act 1958 (Vic), ss 76 and 77 - Corporations Act 2001 (Cth), s 420A - Irani v St George Bank Limited (No 2) [2005] VSC 403, considered - Webster Investments Pty Ltd v Anderson (2016) 52 VR 610, Williams v Frayne (1937) 58 CLR 710, GE Capital Australia v Davis (2002) 180 FLR 250, Jovanovic v Commonwealth Bank of Australia (2004) 87 SASR 570, Florgale Uniforms Pty Ltd v Orders (2004) 11 VR 54, James v Australia and New Zealand Banking Group Ltd (2018) 97 NSWLR 663, MBF Investments Pty Ltd v Nolan (2011) 37 VR 116, Brueckner v Satellite Group (Ultimo) Pty Ltd (2002) 15 BPR 28,885, applied - Application for summary judgment allowed.
PRACTICE AND PROCEDURE - Strike out application - Supreme Court (General Civil Procedure) Rules 2015 (Vic), rule 23.02 - Whether defendants' third-party claim should be struck out - Unnecessary to decide.
PRACTICE AND PROCEDURE - Application to set aside judgment - Explanation for failure to appear at trial not satisfactory - Defence on merits not substantiated - Supreme Court (General Civil Procedure) Rules 2015, r 49.02 - TSC Nominees Pty Ltd v Canham Commercial Interiors Pty Ltd and Ors [2017] VSC 86, applied.
PRACTICE AND PROCEDURE - Evidence by audio-visual link from People's Republic of China - Evidence (Miscellaneous Provisions) Act 1958 (Vic), s 42E - Grege v Grege [2024] VSC 475, applied - In the matter of Sunnya Pty Ltd [2023] NSWSC 1286, distinguished.
BUILDING CONTRACTS - Adjudication - Judicial review - Setting aside judgments and orders of the County Court - Award of costs - Indemnity certificate - Building and Construction Industry Security of Payment Act 2002 (Vic) s 28R(5); Appeal Costs Act 1998 (Vic) s 4(1)(a); Norwood Ponds Operations v Merrion (4) Pty Ltd [2020] VSC 77 (Digby J) and Radman v Open Plan [2020] VSC 318 (Digby J) followed.
ENERGY AND RESOURCES - Energy retailers supplying electricity and gas to retail customers - Contravention of door-to-door sales prohibitions and explicit informed consent obligations - Contravention of obligation to provide customers with 'deemed best offer messages' - Civil penalty provisions - Mandatory statutory considerations - The 'French factors' - Adverse publicity orders - Injunctions - Declarations of contraventions - Cooperation and acknowledgement of liability - Essential Services Commission Act 2001 (Vic) ss 53, 54, 54A, 54F, 54G, 54O, 54ZH, 54ZD, 77 - Electricity Industry Act 2000 (Vic) s 40EB(1) - Gas Industry Act 2001 (Vic) s 48DB(1) - Energy Retail Code cls 16(4), 57(1) - Energy Retail Code of Practice cl 5(2) - Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 - Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) (2016) 340 ALR 25 - Australian Energy Regulator v Origin Energy Electricity Ltd & Ors [2022] FCA 802 - Australian Energy Regulator v Energy Australia Pty Ltd [2022] FCA 644 - Australian Energy Regulator v AGL Sales Pty Ltd & Ors [2020] FCA 1623.
CONTRACTS - Dealership agreement repudiated and subsequently terminated prior to conclusion of its term - Damages for breach of contract for loss of profits for remaining contractual period - Liability conceded by defendant - Dispute as to quantum of damages - Findings on key disputed integers in the assessment of damages determined in earlier judgment - Amount of damages to be calculated by experts retained by the parties in accordance with the findings.
CONTRACTS - Finalisation of quantum of damages awarded for breach of contract - Onus of proof when alleging failure to mitigate loss - TC Industrial Plant Pty Ltd v Robert's Queensland Pty Ltd (1963) 180 CLR 138.
PRACTICE AND PROCEDURE - Costs - Whether to apportion costs on issues basis - Calderbank offer - Whether unreasonable to have rejected offer - Whether to order indemnity costs for whole proceeding after date of offer - Sedgwick v Varzonek (No 2) [2015] NSWSC 1613 considered - Calderbank v Calderbank [1975] 3 All ER 333; Hazeldene's Chicken Farm Pty Ltd v Workcover Authority (Vic) (No 2) (2005) 13 VR 435 applied - Chen v Chan [2009] VSCA 233 - Smith v Starke [2016] FCA 40 - McKay v Commissioner of Main Roads (No 7) [2011] WASC 223 (S).
COSTS - Claim for indemnity costs due to defendants' conduct - Compliance with trial preparation directions - Trial vacated - Allocation of responsibility for trial being vacated - Late filing of new witness statement by defendants on eve of trial - Relevant documents not discovered relied upon in new witness statement - Conduct of trial preparation where solicitor litigant - Indemnity costs ordered - Portion of costs to be paid immediately - Supreme Court Act 1986 (Vic) s 24 - Supreme Court (General Civil Procedure) Rules 2015, r 63.28 - Civil Procedure Act 2010 (Vic) Part 2.4.
PRACTICE AND PROCEDURE - Appeal from Associate Judge - Rule 77.06 Supreme Court (General Civil Procedure) Rules 2015 - Notice to produce documents, summons for particular discovery and subpoena for production to Prothonotary - Where documents sought concern legal advice given to party - Where documents subject to legal professional privilege - Nature of an appeal from an Associate Judge - Receipt of further evidence upon questions of fact in the context of an appeal from an Associate Judge - No legitimate forensic purpose - Where it is not on the cards that the production documents would assist in demonstrating error - Notice to produce, summons for particular discovery and subpoena for production dismissed.
Supreme Court (General Civil Procedure) Rules 2015; Civil Procedure Act 2010; Supreme Court Act 1986.
I Cook Foods Pty Ltd v Greater Dandenong City Council [2024] VSC 496; I Cook Foods Pty Ltd v State of Victoria [2023] VSC 654; Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; Smith v Trustees of the Christian Brothers [2023] VSC 171; Chiodo Investments Pty Ltd v Rilac Pty Ltd [2023] VSC 32; Re Ascot Vale Self- Storage Centre Pty Ltd (in liq) [2014] VSC 75; ANZ Banking Group Ltd v Loftus [2014] VSC 342; Metcalf v Wellington (No 2) [2007] VSCA 292; Cargill Australia Ltd v Viterra Malt Pty Ltd (No 19) [2018] VSC 798; Madafferi v The Queen [2021] VSCA 1; Victoria (Department of Justice) v Lane [2012] VSC 328.
PRACTICE AND PROCEDURE - Application for approval of settlement of group proceeding - Whether terms of settlement fair and reasonable - Whether settlement distribution scheme fair and reasonable - Whether claim for legal fees and disbursements fair and reasonable - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A.
PRACTICE AND PROCEDURE - Applications by unregistered group members for leave to participate in the settlement - Rationale for soft class closure orders is consistent with requirement for unfair prejudice to be established as the basis for granting such leave - Adequacy of notification regime - Exercise of discretion partly by way of categories.
PRACTICE AND PROCEDURE - Litigation restraint order - Application by plaintiff for leave to continue proceedings - No reasonable grounds - Application dismissed - Vexatious Proceedings Act 2014 ss 3, 17, 52, 53.
PRACTICE AND PROCEDURE - Extended litigation restraint order - Application by plaintiff for leave to appeal from summary judgment for defendant - No reasonable grounds for proposed appeal - Application dismissed - Vexatious Proceedings Act 2014 ss 3, 17, 52, 53.
JUDICIAL REVIEW - Medical Panel - Alleged jurisdictional errors - Panel's duty to disregard impairment from unrelated injuries or causes - Whether Panel erred in identification of impairment from unrelated injury or cause - Whether finding that impairment from unrelated injuries or causes was playing a part in plaintiff's current impairment - Alleged factual errors - Wrongs Act 1958 s 28LL(3).
ADMINISTRATIVE LAW - Application for leave to appeal from Victorian Civil and Administrative Tribunal - Orders made pursuant to s 120 of the Victorian Civil and Administrative Tribunal Act 1998 refusing to reopen orders made at an earlier hearing at which the applicant had not appeared - No appearance by the applicant at the hearing of the reopening application - Application refused.
ADMINISTRATIVE LAW - Judicial review - Medical panel opinion - Plaintiff claimed in respect of industrial deafness and tinnitus - Accepted injury in respect of industrial deafness; tinnitus rejected - Medical questions referred to a medical panel - Medical panel calculated whole person impairment of 11% taking into account allowance of 2% for tinnitus - Whether opinion legally unreasonable, illogical, irrational or not open - Whether failure to take account of relevant matters - Whether constructive failure to exercise jurisdiction owing to factual error - Whether denial of procedural fairness - Whether reasons of medical panel legally inadequate - Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248, Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, Chang v Neill (2020) 62 VR 174, Sidiqi v Kotsios [2021] VSCA 187, Scardamaglia v Amcor Pty Ltd [2023] VSC 114 and Amcor PLC v Scardamaglia [2023] VSCA 290, considered - Proceeding dismissed.
CORONERS COURT - Coronial inquest - Appeal under s 83 of the Coroners Act 2008 (Vic) - No right of appeal against coroner's recommendations or comments - Whether appeal brought against coroner's findings - Whether appeal raised question of law - Held appeal not brought against coroner's findings - Held no question of law raised on appeal - Appeal dismissed - Coroners Act 2008 (Vic) ss 67, 83, 87.
PROCEDURE - Courts and judges generally - Jurisdiction to discharge party from undertaking not to exercise power to appoint or remove trustee - Where proceeding dismissed - Where undertakings given on final basis - Application by appointor to be discharged from undertaking - Grant of liberty to apply - Where independent trustee not party to proceeding - Where independent trustee seeks to stay or strike out application as abuse of process - Court retains jurisdiction - Application to stay or strike out application dismissed - Russell v Russell [1956] P 283 - Bailey v Marinoff (1971) 125 CLR 529 - Kensington Housing Trust v Oliver (1998) 30 HLR 608 - Birch v Birch [2017] 1 WLR 2959 - Commonwealth Bank v The Law Debenture Trust Corporation PLC [No 4] [2018] WASC 165 - Application of Rinehart 2020/142504 (No 2) [2021] NSWSC 364 - Lin & Ors v Lin & Ors (No 2) [2022] VSC 542 - Lin v Lin (No 3) [2024] VSC 17.
TRUSTS - Application to vary terms of family trust - Approval on behalf of beneficiaries who are unable to consent - Extension of vesting date and introduction of statutory perpetuity period - Enlargement of class of beneficiaries to include corporations and trusts in which existing beneficiaries have an interest - Whether a resettlement of the trust - Amendments to avoid adverse taxation outcomes - Whether open to vary trust to introduce general power of amendment for trustee - Trustee Act 1958 (Vic), s 63, s 63A - Perpetuities and Accumulations Act 1958 (Vic),** s 5.
ESTOPPEL - Proprietary estoppel - Constructive trust - Plaintiff promised to bequeath property to first defendant if he undertook significant renovation of property - First defendant relied upon promise to his detriment by working full time on renovation for fifteen months, forgoing income he would otherwise have earned and contributing to the cost of the renovation - Whether unconscionable for plaintiff to depart from promise - Prima facie entitlement of first defendant to receive proceeds of sale of property - Whether receipt of proceeds of sale goes beyond what is required for conscientious conduct - Whether remedy is disproportionate to first defendant's detriment.
LACHES - Whether first defendant acquiesced to plaintiff having legal and beneficial interest in property to the exclusion of first defendant's proprietary interest in property - Whether first defendant's delay in lodging a caveat on title of property unreasonable - Whether plaintiff suffered serious prejudice by reason of first defendant's delay in claiming a proprietary interest - Plaintiff failed to establish prejudice by reason of first defendant's delay.
LEGISLATION - Evidence Act 2008 ss 64(2)(b), 64(3)(b), 140(2)(c) - Limitation of Actions Act 1958 s 21(1)(b) - *Supreme Court (General Civil Procedure) Rules 2015 *order 15.03(3).
CRIMINAL LAW - Bail - Charges of burglary, theft, firearm and other offences - Prima facie entitlement to bail - Whether applicant an unacceptable risk of endangering the safety or welfare of any other person, whether by committing an offence that has that effect or by any other means - Applicant not an unacceptable risk if bail granted for a fixed period - Bail granted for a fixed period - Bail Act 1977 (Vic), ss 1B, 3, 3AAA, 4D, 4E, 5AAA.
CRIMINAL LAW - Bail - 13 year old child - Presumption of doli incapax - Charges of motor vehicle theft, aggravated burglary, armed robbery, theft, threats to kill and false imprisonment - Further charges and breaches of conditions during 1 week grant of bail - Requirement to show exceptional circumstances - Exceptional circumstances established - Unacceptable risk established - Bail refused - Bail Act 1977 (Vic), ss 3AAA, 3B, 4E, 12.
CRIMINAL LAW - Bail - Applicant charged with multiple offences including aggravated carjacking - Schedule 1 offence - Requirement to show exceptional circumstances - Applicant subject to a drug treatment order at time of alleged offending - Prior criminal history - Availability of residential rehabilitation - Exceptional circumstances established - Unacceptable risk alleged - Unacceptable risk not established - Application granted - Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E & Sch 1.
CRIMINAL LAW - Appeal - Sentence - Multiple offences including aggravated burglary, theft, home invasion, false imprisonment and handling stolen goods - Total effective sentence of 10 years and 1 month imprisonment - Non-parole period of 5 years and 6 months - Cumulation of individual sentences - Whether cumulation was manifestly excessive - Whether sentencing judge failed to give sufficient weight to the totality principle - Total effective sentence was within range reasonably open to sentencing judge - Outrageous criminality - Offending was objectively grave and repeated - Significant cumulation was appropriate - Appeal dismissed.
CRIMINAL LAW - Appeal - Sentence - Whether total effective sentence was manifestly excessive - Offending was objectively grave and repeated - Total effective sentence was within range reasonably open to sentencing judge - Sentencing principles were given appropriate weight - Appeal dismissed.
Azzopardi v The Queen (2011) 35 VR 43; Clarkson v The Queen (2011) 32 VR 361; Rohen v The King [2024] VSCA 1, applied; Cay v The Queen (2010) 29 VR 560; Nguyen v The Queen (2016) 256 CLR 626, considered.
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to charges of intentionally causing injury, theft, attempting to pervert the course of justice and persistent contravention of Family Violence Intervention Order - Whether sentences and orders for cumulation imposed in respect of second and third charges manifestly excessive - Relevance of absence of aggravating features - Sentences and orders for cumulation not manifestly excessive - Application for leave to appeal refused.
R v Oksuz (2015) 47 VR 731, discussed; Brown v The Queen [2021] VSCA 204; Adamson v The Queen (2015) 47 VR 268; R v Conos (2021) 294 A Crim R 403; Stephens v The Queen (2016) 50 VR 740, applied; Carter v The Queen [2020] VSCA 15; Dragovic v The King [2024] VSCA 95, referred to.
PRACTICE AND PROCEDURE - Application to set aside judgment in default of defence - Whether a real issue to be tried - Application dismissed.