INCOME TAX (Cth) - Notice of assessment - Royalty withholding tax - Diverted profits tax - Where non-resident companies entered into agreements with Australian company to bottle, sell and distribute beverages - Where agreements licensed intellectual property to Australian company - Where agreements did not provide for payment of royalty for use of intellectual property - Where no payment made by Australian taxpayer to non-resident companies - Where payment made to Australian subsidiary of non-resident companies for beverage concentrate - Whether payments to subsidiary included royalty for use of intellectual property owned by non-resident companies within meaning of s 6 of Income Tax Assessment Act 1936 (Cth) ("ITAA 1936") - Whether payments paid or credited to or derived by non-resident companies within meaning of s 128B of ITAA 1936 - Whether non-resident companies liable to pay diverted profits tax under s 177J of ITAA 1936.
INCOME TAX (Cth) - Notice of assessment - Royalty withholding tax - Diverted profits tax - Where non-resident companies entered into agreements with Australian company to bottle, sell and distribute beverages - Where agreements licensed intellectual property to Australian company - Where agreements did not provide for payment of royalty for use of intellectual property - Where no payment made by Australian taxpayer to non-resident companies - Where payment made to Australian subsidiary of non-resident companies for beverage concentrate - Whether payments to subsidiary included royalty for use of intellectual property owned by non-resident companies within meaning of s 6 of Income Tax Assessment Act 1936 (Cth) ("ITAA 1936") - Whether payments paid or credited to or derived by non-resident companies within meaning of s 128B of ITAA 1936 - Whether non-resident companies liable to pay diverted profits tax under s 177J of ITAA 1936.
WORDS AND PHRASES - "alternative postulate", "antecedent monetary obligation", "basis or condition", "consideration", "consideration for", "derived by", "diverted profits tax", "DPT", "DPT tax benefit", "exchange of promises", "income derived", "paid or credited", "payment by direction", "postulate", "principal purpose", "reasonable alternative", "reasonable expectation", "royalties", "royalty", "royalty withholding tax", "scheme", "single, integrated and indivisible transaction", "substance of the scheme", "tax benefit", "tax benefit in connection with the scheme".
Income Tax Assessment Act 1936 (Cth), ss 6, 128A, 128B, 177A, 177C, 177CB, 177D, 177F, 177H, 177J, 177N, 177P.
Taxation Administration Act 1953 (Cth), s 14ZZO.
PARLIAMENTARY ELECTIONS (Cth) - Communication of electoral matter - Where s 321D(5) of Commonwealth Electoral Act 1918 (Cth) requires "notifying entity" to ensure certain "particulars" notified - Where s 321D applies in relation to electoral matter that is "communicated to a person" - Where "electoral matter" posted on Facebook page on three occasions - Where failure on each occasion to ensure required "particulars" included in post - Where each post seen by several people who viewed Facebook page - Whether s 321D(5) contravened on each occasion person viewed post or on each occasion post made available for viewing.
PARLIAMENTARY ELECTIONS (Cth) - Communication of electoral matter - Where s 321D(5) of Commonwealth Electoral Act 1918 (Cth) requires "notifying entity" to ensure certain "particulars" notified - Where s 321D applies in relation to electoral matter that is "communicated to a person" - Where "electoral matter" posted on Facebook page on three occasions - Where failure on each occasion to ensure required "particulars" included in post - Where each post seen by several people who viewed Facebook page - Whether s 321D(5) contravened on each occasion person viewed post or on each occasion post made available for viewing.
WORDS AND PHRASES - "authorisation", "civil penalty provision", "communicated", "communication", "conduct", "contravention", "deterrence", "digital", "disclosure entity", "dominant purpose", "electoral advertisement", "electoral matter", "federal election", "free and informed voting", "impressions", "notifying entity", "particulars", "political communication", "political entity", "proportionality", "reach", "statutory construction", "text, context and purpose".
Acts Interpretation Act 1901 (Cth), ss 15AA, 23(b), 33(3A).
Commonwealth Electoral Act 1918 (Cth), Pt XXA, ss 4AA, 321B, 321C, 321D, 321E.
CRIMINAL LAW - Interlocutory appeal - Coincidence evidence - Three charges of murder and one of attempted murder by alleged poisoning of four lunch guests - Three charges of attempted murder of husband by alleged poisoning in three preceding episodes - Whether evidence relating to alleged poisoning of lunch guests admissible to prove that husband was poisoned - Whether evidence relating to alleged poisoning of husband admissible to prove lunch guests deliberately poisoned - Whether circular reasoning - Whether charges relating to husband should be severed from those relating to lunch guests - Whether probative value of coincidence evidence substantially outweighs any prejudicial effect on the accused - Judge was correct to sever indictment - Leave to appeal refused.
CRIMINAL LAW - Interlocutory appeal - Coincidence evidence - Three charges of murder and one of attempted murder by alleged poisoning of four lunch guests - Three charges of attempted murder of husband by alleged poisoning in three preceding episodes - Whether evidence relating to alleged poisoning of lunch guests admissible to prove that husband was poisoned - Whether evidence relating to alleged poisoning of husband admissible to prove lunch guests deliberately poisoned - Whether circular reasoning - Whether charges relating to husband should be severed from those relating to lunch guests - Whether probative value of coincidence evidence substantially outweighs any prejudicial effect on the accused - Judge was correct to sever indictment - Leave to appeal refused.
Evidence Act 2008 ss 98(1), 101(2); Perry v The Queen (1982) 150 CLR 580 considered.
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.
PRACTICE AND PROCEDURE - Appeal - Finality of settlement - Where parties resolved dispute regarding loan agreements by settlement deed with right to reinstate proceedings to enforce the deed - Applicant failed to pay instalments under settlement deed and respondent successfully sought judgment - Applicant made arguments on appeal not made below, which could have been subject of evidence - Applicant argued settlement deed and loan agreements breached Australian Consumer Law and were sham arrangements to avoid National Credit Code - Whether judge erred in construing s 13 of National Credit Code - Leave to appeal refused.
PRACTICE AND PROCEDURE - Appeal - Finality of settlement - Where parties resolved dispute regarding loan agreements by settlement deed with right to reinstate proceedings to enforce the deed - Applicant failed to pay instalments under settlement deed and respondent successfully sought judgment - Applicant made arguments on appeal not made below, which could have been subject of evidence - Applicant argued settlement deed and loan agreements breached Australian Consumer Law and were sham arrangements to avoid National Credit Code - Whether judge erred in construing s 13 of National Credit Code - Leave to appeal refused.
National Consumer Credit Protection Act 2009 (Cth) sch 1 ('National Credit Code') ss 5(1), 13(2); Competition and Consumer Act 2010 (Cth) sch 2 ('Australian Consumer Law') ss 21, 22, 24(1).
Coulton v Holcombe (1986) 162 CLR 1; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; Viterra Malt Pty Ltd v Cargill Australia Ltd (2023) 74 VR 1, applied.
Wigan v Edwards (1973) 1 ALR 497; Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471, considered.
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 - 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.
CRIMINAL LAW - Appeal - Conviction - Cultivating commercial quantity of cannabis - Commercial quantity constituted by weight - Defence case that applicant not aware that significant or real chance that commercial quantity exceeded - Whether judge erred in directions on good character - Whether judge's comments on disputed facts productive of a substantial miscarriage of justice - Appeal allowed - New trial ordered.
CRIMINAL LAW - Appeal - Conviction - Cultivating commercial quantity of cannabis - Commercial quantity constituted by weight - Defence case that applicant not aware that significant or real chance that commercial quantity exceeded - Whether judge erred in directions on good character - Whether judge's comments on disputed facts productive of a substantial miscarriage of justice - Appeal allowed - New trial ordered.
COSTS - Application to set aside a statutory demand - Plaintiff established the existence of genuine offsetting claim - Demand set aside - Application by plaintiff for indemnity costs - Before service of the demand, after its service and during the compliance period of the demand and subsequent to the making of the application to set it aside, plaintiff articulated in detail in correspondence the basis of the offsetting claim with the statement that such correspondence would be produced on the question of costs if it became necessary to make application to set aside the demand - Circumstances warranted an order for indemnity costs.
COSTS - Application to set aside a statutory demand - Plaintiff established the existence of genuine offsetting claim - Demand set aside - Application by plaintiff for indemnity costs - Before service of the demand, after its service and during the compliance period of the demand and subsequent to the making of the application to set it aside, plaintiff articulated in detail in correspondence the basis of the offsetting claim with the statement that such correspondence would be produced on the question of costs if it became necessary to make application to set aside the demand - Circumstances warranted an order for indemnity costs.
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.
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.
GROUP PROCEEDINGS - Costs - Application for group costs order - Costs to be calculated as a percentage of the amount of any award or settlement recovered - Whether proposed rate proportionate and reasonable - Application granted - Supreme Court Act 1986 (Vic) s 33ZDA - Fox v Westpac; Crawford v ANZ [2021] VSC 573; Allen v G8 Education Ltd [2022] VSC 32; DA Lynch v Star Entertainment Group [2023] VSC 561; 5 Boroughs NY Pty Ltd v Victoria (No 5) [2023] VSC 682; Warner v Ansell Ltd [2024] VSC 491.
GROUP PROCEEDINGS - Costs - Application for group costs order - Costs to be calculated as a percentage of the amount of any award or settlement recovered - Whether proposed rate proportionate and reasonable - Application granted - Supreme Court Act 1986 (Vic) s 33ZDA - Fox v Westpac; Crawford v ANZ [2021] VSC 573; Allen v G8 Education Ltd [2022] VSC 32; DA Lynch v Star Entertainment Group [2023] VSC 561; 5 Boroughs NY Pty Ltd v Victoria (No 5) [2023] VSC 682; Warner v Ansell Ltd [2024] VSC 491.
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.
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.
PRACTICE AND PROCEDURE - Confidentiality orders - Party seeking to restrict access to affidavit material to legal representatives only - Whether Open Courts Act 2013 (Vic) applies - Common law principle of open justice - Rule 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Whether content of affidavit of a confidential nature - Access restriction refused - General principles regarding confidentiality orders - Access restriction orders not necessary for the administration of justice.
PRACTICE AND PROCEDURE - Confidentiality orders - Party seeking to restrict access to affidavit material to legal representatives only - Whether Open Courts Act 2013 (Vic) applies - Common law principle of open justice - Rule 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Whether content of affidavit of a confidential nature - Access restriction refused - General principles regarding confidentiality orders - Access restriction orders not necessary for the administration of justice.
CRIMINAL LAW - Judicial review of Magistrates' Court decision to dismiss charge - Validity of charge under s 49(1)(eb) of the Road Safety Act 1986 (Vic) - Requirements for valid charge - Criminal Procedure Act 2009 (Vic), ss 6, 8, 9, sch 1, cl 1(a), 1(b) - Whether charge sufficiently described nature of the offence - Whether statutory preconditions described in s 55E(13)(a) and (b) are essential elements of distinct offences - Director of Public Prosecutions v Kypri (2011) 33 VR 157, Fox v Director of Public Prosecutions (2022) 66 VR 223, and DPP Reference No 2 of 2001; Collicoat v DPP; Bell v Dawson (2001) 4 VR 55 considered - Charge valid - Section 55E(13)(a) and (b) are not separate offences or essential matters required to be included in charge - Appeal allowed.
CRIMINAL LAW - Judicial review of Magistrates' Court decision to dismiss charge - Validity of charge under s 49(1)(eb) of the Road Safety Act 1986 (Vic) - Requirements for valid charge - Criminal Procedure Act 2009 (Vic), ss 6, 8, 9, sch 1, cl 1(a), 1(b) - Whether charge sufficiently described nature of the offence - Whether statutory preconditions described in s 55E(13)(a) and (b) are essential elements of distinct offences - Director of Public Prosecutions v Kypri (2011) 33 VR 157, Fox v Director of Public Prosecutions (2022) 66 VR 223, and DPP Reference No 2 of 2001; Collicoat v DPP; Bell v Dawson (2001) 4 VR 55 considered - Charge valid - Section 55E(13)(a) and (b) are not separate offences or essential matters required to be included in charge - Appeal allowed.
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.
EQUITY - Will and estates - Deceased passed away in December 2020 leaving will dated in 2006 - Major asset of her estate is Harkaway Farm - Seven surviving children, including fifth defendant - Significant edifice of underlying and associated litigation - Plaintiff appointed as independent administrator in September 2021 - Orders made by consent in February 2025 that Harkaway Farm be sold by the plaintiff and associated directions made in respect of the process of sale - Judicial advice sought by the plaintiff in respect of confined aspects of the directed sale process - Application essentially opposed by the fifth defendant - Supreme Court (General Civil Procedure) Rules, r 54.02(2)(a)(i) - Judicial advice given.
EQUITY - Will and estates - Deceased passed away in December 2020 leaving will dated in 2006 - Major asset of her estate is Harkaway Farm - Seven surviving children, including fifth defendant - Significant edifice of underlying and associated litigation - Plaintiff appointed as independent administrator in September 2021 - Orders made by consent in February 2025 that Harkaway Farm be sold by the plaintiff and associated directions made in respect of the process of sale - Judicial advice sought by the plaintiff in respect of confined aspects of the directed sale process - Application essentially opposed by the fifth defendant - Supreme Court (General Civil Procedure) Rules, r 54.02(2)(a)(i) - Judicial advice given.
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).
PRACTICE AND PROCEDURE - Plaintiff claims in respect of laser treatment in 2020 - Plaintiff served reports of psychiatrist and plastic surgeon - First defendant arranged examinations of the plaintiff by plastic surgeon and psychiatrist - Examination by plastic surgeon took place - Examination by psychiatrist cancelled at short notice and not re-scheduled - Indemnity dispute - Consequential change of solicitor for first defendant - Original trial date vacated owing to application by first and fourth defendants to bring third-party proceeding claiming indemnity - Original trial date vacated by consent and re-listed to August 2025 - Subsequent timetables of orders in respect of preparation for trial, including mediation - After mediation, and shortly prior to trial, first and fourth defendants seek that the plaintiff be psychiatrically examined - Plaintiff objects - Risk of further adjournment of listed trial date - Whether trial not fair if psychiatric examination not undertaken - Practical issues associated with late discovery - Civil Procedure Act 2010 (Vic), ss 7, 8 and 9 - Davies v Nilsen [2015] VSC 584; Grimmett v Rivdale Pty Ltd (Trading as Angela Sdrinis Legal) [2025] VSC 122 considered - Outstanding interlocutory steps in third-party proceeding - Third party seeks that third-party proceeding be heard separately and as a cause - Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 11.13(1)(b) and 47.04 - AMP Fire & General Insurance Co Ltd v Dixon [1982] VR 833 considered - Both applications made essentially orally at final directions hearing - Adjournment to permit the filing and service of proper material - Applications subsequently made by summonses supported by affidavit material - Application by first and fourth defendants refused - Application by third party allowed.
PRACTICE AND PROCEDURE - Plaintiff claims in respect of laser treatment in 2020 - Plaintiff served reports of psychiatrist and plastic surgeon - First defendant arranged examinations of the plaintiff by plastic surgeon and psychiatrist - Examination by plastic surgeon took place - Examination by psychiatrist cancelled at short notice and not re-scheduled - Indemnity dispute - Consequential change of solicitor for first defendant - Original trial date vacated owing to application by first and fourth defendants to bring third-party proceeding claiming indemnity - Original trial date vacated by consent and re-listed to August 2025 - Subsequent timetables of orders in respect of preparation for trial, including mediation - After mediation, and shortly prior to trial, first and fourth defendants seek that the plaintiff be psychiatrically examined - Plaintiff objects - Risk of further adjournment of listed trial date - Whether trial not fair if psychiatric examination not undertaken - Practical issues associated with late discovery - Civil Procedure Act 2010 (Vic), ss 7, 8 and 9 - Davies v Nilsen [2015] VSC 584; Grimmett v Rivdale Pty Ltd (Trading as Angela Sdrinis Legal) [2025] VSC 122 considered - Outstanding interlocutory steps in third-party proceeding - Third party seeks that third-party proceeding be heard separately and as a cause - Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 11.13(1)(b) and 47.04 - AMP Fire & General Insurance Co Ltd v Dixon [1982] VR 833 considered - Both applications made essentially orally at final directions hearing - Adjournment to permit the filing and service of proper material - Applications subsequently made by summonses supported by affidavit material - Application by first and fourth defendants refused - Application by third party allowed.
PRACTICE AND PROCEDURE - Costs - Probate granted in primary proceeding - Calderbank offer made to unsuccessful party - Disposition of related proceeding relating to earlier will - Costs sought against unsuccessful party - Unsuccessful party seeking costs from estate - Costs generally follow the event in adjudicated proceedings - No order to costs usually awarded in unadjudicated proceedings.
PRACTICE AND PROCEDURE - Costs - Probate granted in primary proceeding - Calderbank offer made to unsuccessful party - Disposition of related proceeding relating to earlier will - Costs sought against unsuccessful party - Unsuccessful party seeking costs from estate - Costs generally follow the event in adjudicated proceedings - No order to costs usually awarded in unadjudicated proceedings.
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.
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.
EVIDENCE - Admissibility - Hearsay - Whether relevant - Whether danger of unfair prejudice outweighs probative value - Evidence Act 2008 (Vic), ss 55, 56, 65(2)(b), 65(2)(c), 66A, 137.
EVIDENCE - Admissibility - Hearsay - Whether relevant - Whether danger of unfair prejudice outweighs probative value - Evidence Act 2008 (Vic), ss 55, 56, 65(2)(b), 65(2)(c), 66A, 137.
EVIDENCE - Admissibility of cell tower evidence - Whether the accused attended Loch on 28 April 2023 and Loch and Outtrim on 22 May 2023 - Where there is evidence that the accused accessed iNaturalist website in 2022, including a map of locations of death cap mushrooms - Where information was posted on iNaturalist website in April and May 2023 that death cap mushrooms were sighted in Loch and Outtrim, being towns which were not far from where the accused was living at the time in Leongatha - Whether cell tower evidence supports inference that the accused attended Loch and/or Outtrim on days alleged to source death cap mushrooms to use in the Beef Wellingtons which she served to her lunch guests on 29 July 2023 - Evidence of Opportunity - Evidence admissible - Evidence Act 2008 (Vic), ss 55, 56, 137.
EVIDENCE - Admissibility of cell tower evidence - Whether the accused attended Loch on 28 April 2023 and Loch and Outtrim on 22 May 2023 - Where there is evidence that the accused accessed iNaturalist website in 2022, including a map of locations of death cap mushrooms - Where information was posted on iNaturalist website in April and May 2023 that death cap mushrooms were sighted in Loch and Outtrim, being towns which were not far from where the accused was living at the time in Leongatha - Whether cell tower evidence supports inference that the accused attended Loch and/or Outtrim on days alleged to source death cap mushrooms to use in the Beef Wellingtons which she served to her lunch guests on 29 July 2023 - Evidence of Opportunity - Evidence admissible - Evidence Act 2008 (Vic), ss 55, 56, 137.
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RELEASE OF EXHIBIT - Application by media for release of trial exhibit, namely, edited audiovisual recording of offender's police interview - Where offender opposes release and publication of exhibit - Where key aspects of prosecution's case were lies told in interview, allegedly constituting incriminating conduct - ABC v Victoria Police & Gardiner [2020] VSC 599 - ABC v Victoria Police & Kehoe [2020] VSC 410 - R v Hemming [2015] VSC 351 - In Films v Victoria Police & Gant [2022] VSC 159 - An application by Nine Network Pty Ltd [2016] VSC 158 - R v Reed-Robertson [2016] VSC 236 - DPP v Williams (Ruling No 1) (2015) 51 VR 408 - Crimes Act 1958 (Vic), ss 464JA, 464JB.
EVIDENCE - Admissibility - Alleged incriminating conduct - Whether evidence relevant - Whether probative value outweighed by danger of unfair prejudice to the accused - Whether evidence capable of being viewed as incriminating conduct - R v Lynn [2024] VSCA 62 - Evidence Act 2008 (Vic), ss 55, 56, 137 - Jury Directions Act 2015 (Vic), ss 18, 19, 20, 21.
EVIDENCE - Admissibility - Alleged incriminating conduct - Whether evidence relevant - Whether probative value outweighed by danger of unfair prejudice to the accused - Whether evidence capable of being viewed as incriminating conduct - R v Lynn [2024] VSCA 62 - Evidence Act 2008 (Vic), ss 55, 56, 137 - Jury Directions Act 2015 (Vic), ss 18, 19, 20, 21.
EVIDENCE - Admissibility - Miscellaneous pieces of evidence impugned by accused who is charged with attempted murder (x4) and murder (x3) - Evidence Act 2008 (Vic), ss 55, 56, 135, 137.
EVIDENCE - Admissibility - Miscellaneous pieces of evidence impugned by accused who is charged with attempted murder (x4) and murder (x3) - Evidence Act 2008 (Vic), ss 55, 56, 135, 137.
EVIDENCE - Admissibility - Coincidence evidence - Where the prosecution relies on 8 similarities in respect of Events 1-4 to prove that, in respect of Events 1-3, the meals supplied were poisoned and to prove that, in respect of Events 1-4, they were deliberately poisoned by the accused - Whether the coincidence evidence has significant probative value (s 98) - Whether the probative value of the coincidence evidence substantially outweighs any prejudicial effect to the accused (s 101) - Perry v R [1982] 150 CLR 580 - Evidence Act 2008 (Vic), ss 98, 101.
EVIDENCE - Admissibility - Coincidence evidence - Where the prosecution relies on 8 similarities in respect of Events 1-4 to prove that, in respect of Events 1-3, the meals supplied were poisoned and to prove that, in respect of Events 1-4, they were deliberately poisoned by the accused - Whether the coincidence evidence has significant probative value (s 98) - Whether the probative value of the coincidence evidence substantially outweighs any prejudicial effect to the accused (s 101) - Perry v R [1982] 150 CLR 580 - Evidence Act 2008 (Vic), ss 98, 101.
SEVERANCE - Where, by reason of the inadmissibility of the coincidence evidence relied on by the prosecution, it would be unfair to the accused to hear all charges together - Order for severance of Charges 1-3 from Charges 4-7 - Criminal Procedure Act 2009 (Vic), s 193.
EVIDENCE - Admissibility - Tendency evidence - Whether accused had a tendency to act in a particular way, namely, to access websites (including iNaturalist) regarding poisons, including death cap mushrooms - Where sightings of death cap mushrooms in Loch and Outtrim posted on iNaturalist on 18 April 2023 and 21 May 2023 - Where no records on electronic devices seized from the accused of her accessing that particular information on iNaturalist - Where tendency evidence relied on for inference that the accused accessed that particular information on iNaturalist - Where cell tower evidence of the accused possibly visiting Loch and Outtrim in days following iNaturalist postings - Tendency evidence inadmissible - Hughes v R (2017) 263 CLR 338 - Evidence Act 2008 (Vic), ss 97, 98.
EVIDENCE - Admissibility - Tendency evidence - Whether accused had a tendency to act in a particular way, namely, to access websites (including iNaturalist) regarding poisons, including death cap mushrooms - Where sightings of death cap mushrooms in Loch and Outtrim posted on iNaturalist on 18 April 2023 and 21 May 2023 - Where no records on electronic devices seized from the accused of her accessing that particular information on iNaturalist - Where tendency evidence relied on for inference that the accused accessed that particular information on iNaturalist - Where cell tower evidence of the accused possibly visiting Loch and Outtrim in days following iNaturalist postings - Tendency evidence inadmissible - Hughes v R (2017) 263 CLR 338 - Evidence Act 2008 (Vic), ss 97, 98.
EVIDENCE - Admissibility - Evidence of computer records on devices seized from home of accused concerning access to, or possible access to, information on poisons - Where evidence relied on by prosecution to show that, leading up to and during the period of the alleged offences (attempted murder x4 and murder x3), the accused had a continuous state of mind, namely, an interest in poisons generally and in death cap mushrooms in particular - Where much of the computer evidence is also relied on by the prosecution to show that the accused had a tendency to access information online about death cap mushrooms and/or poisons on the iNaturalist website - Evidence Act 2008 (Vic) ss 55, 56, 76, 137.
EVIDENCE - Admissibility - Evidence of computer records on devices seized from home of accused concerning access to, or possible access to, information on poisons - Where evidence relied on by prosecution to show that, leading up to and during the period of the alleged offences (attempted murder x4 and murder x3), the accused had a continuous state of mind, namely, an interest in poisons generally and in death cap mushrooms in particular - Where much of the computer evidence is also relied on by the prosecution to show that the accused had a tendency to access information online about death cap mushrooms and/or poisons on the iNaturalist website - Evidence Act 2008 (Vic) ss 55, 56, 76, 137.
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 - 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.
CONTRACT OF SALE - GUARANTEES - Whether the purchaser and guarantor failed to settle a contract of sale - Whether the purchaser is entitled to a return of deposit and damages - Whether there was a failure to disclose a tree permit - Alleged non-compliance with permit.
CONTRACT OF SALE - GUARANTEES - Whether the purchaser and guarantor failed to settle a contract of sale - Whether the purchaser is entitled to a return of deposit and damages - Whether there was a failure to disclose a tree permit - Alleged non-compliance with permit.
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.