IMMIGRATION - Visas - Where plaintiff applied for protection (subclass 866) visa - Where document in application for visa included English text and images with Mandarin characters - Where Minister's delegate requested further information under s 56 of Migration Act 1958 (Cth) - Where plaintiff did not provide translation of document relied on - Where delegate refused application for protection visa - Where delegate stated documents not translated not included as part of assessment - Whether delegate failed to comply with ss 54 and 56 of Migration Act - Whether delegate's decision legally unreasonable - Whether necessary in interests of administration of justice to grant extension of time to make application for constitutional or other writ.
IMMIGRATION - Visas - Where plaintiff applied for protection (subclass 866) visa - Where document in application for visa included English text and images with Mandarin characters - Where Minister's delegate requested further information under s 56 of Migration Act 1958 (Cth) - Where plaintiff did not provide translation of document relied on - Where delegate refused application for protection visa - Where delegate stated documents not translated not included as part of assessment - Whether delegate failed to comply with ss 54 and 56 of Migration Act - Whether delegate's decision legally unreasonable - Whether necessary in interests of administration of justice to grant extension of time to make application for constitutional or other writ.
WORDS AND PHRASES - "certiorari", "constitutional or other writ", "extension of time", "have regard to all of the information", "invitation for additional information", "jurisdictional error", "mandamus", "materiality", "must have regard to that information", "necessary in the interests of the administration of justice", "protection obligations", "protection visa", "realistic possibility", "specify all particulars of his or her claim", "unreasonableness".
Migration Act 1958 (Cth), ss 5AAA, 54, 56, 58, 62, 65, 476, 476A, 476B, 486A.
High Court Rules 2004 (Cth), rr 4.02, 25.02.1, 25.02.2, 25.09.3.
CONSTITUTIONAL LAW (Cth) - Implied freedom of communication about government or political matters - Where s 501(6)(d)(iv) of the Migration Act 1958 (Cth) provides that person does not pass character test if risk they would, if allowed to enter Australia, "incite discord in the Australian community or in a segment of that community" - Where Minister for Home Affairs ("Minister") refused visa to controversial political commentator on basis of s 501(6)(d)(iv) - Whether there need be risk of harm to Australian community or segment of that community in order to satisfy s 501(6)(d)(iv) - Whether s 501(6)(d)(iv) invalid for infringing implied freedom of communication about government or political matters - Whether Minister misconstrued s 501(6)(d)(iv) in decision to refuse visa.
CONSTITUTIONAL LAW (Cth) - Implied freedom of communication about government or political matters - Where s 501(6)(d)(iv) of the Migration Act 1958 (Cth) provides that person does not pass character test if risk they would, if allowed to enter Australia, "incite discord in the Australian community or in a segment of that community" - Where Minister for Home Affairs ("Minister") refused visa to controversial political commentator on basis of s 501(6)(d)(iv) - Whether there need be risk of harm to Australian community or segment of that community in order to satisfy s 501(6)(d)(iv) - Whether s 501(6)(d)(iv) invalid for infringing implied freedom of communication about government or political matters - Whether Minister misconstrued s 501(6)(d)(iv) in decision to refuse visa.
WORDS AND PHRASES - "aliens power", "character test", "controversial views", "danger", "definitional", "discord", "dissension or strife", "effectively burdens", "extremist views", "free flow of political communication", "harm", "implicature", "implied freedom of political communication", "in the Australian community or a segment of that community", "incite discord", "national interest", "no liberty to enter", "non-citizens", "personal right", "political communication", "practical burden", "right-wing extremism", "visa".
Constitution, ss 7, 24, 51(xix), (xxvii).
Migration Act 1958 (Cth), ss 65, 501(3), 501(6)(d)(iv), 501(6)(d)(v).
CONSTITUTIONAL LAW (Cth) - Legislative power - Inconsistency between Commonwealth and State laws - External affairs - Acquisition of property on just terms - Where rate of land tax imposed by State law on non-residents and foreign-owned or controlled entities higher than rate of land tax imposed on other residents and entities - Where Commonwealth law gave force of law to international agreements prohibiting discriminatory land tax on non-residents and foreign-owned or controlled entities - Where Commonwealth Parliament subsequently passed law excluding State taxes from scope of prohibition in Commonwealth law on imposition of discriminatory land tax on non-residents and foreign-owned or controlled entities - Whether State law inconsistent with Commonwealth law for purposes of s 109 of Constitution - Whether subsequent Commonwealth law supported by external affairs power - Whether subsequent Commonwealth law had retroactive or retrospective effect - Whether subsequent Commonwealth law effective in removing retroactively inconsistency between Commonwealth law and State law - Whether University of Wollongong v Metwally (1984) 158 CLR 447 should be reopened and overruled - Whether Commonwealth law reviving operation of State law imposing "genuine taxation" characterised as a law with respect to acquisition of property.
CONSTITUTIONAL LAW (Cth) - Legislative power - Inconsistency between Commonwealth and State laws - External affairs - Acquisition of property on just terms - Where rate of land tax imposed by State law on non-residents and foreign-owned or controlled entities higher than rate of land tax imposed on other residents and entities - Where Commonwealth law gave force of law to international agreements prohibiting discriminatory land tax on non-residents and foreign-owned or controlled entities - Where Commonwealth Parliament subsequently passed law excluding State taxes from scope of prohibition in Commonwealth law on imposition of discriminatory land tax on non-residents and foreign-owned or controlled entities - Whether State law inconsistent with Commonwealth law for purposes of s 109 of Constitution - Whether subsequent Commonwealth law supported by external affairs power - Whether subsequent Commonwealth law had retroactive or retrospective effect - Whether subsequent Commonwealth law effective in removing retroactively inconsistency between Commonwealth law and State law - Whether University of Wollongong v Metwally (1984) 158 CLR 447 should be reopened and overruled - Whether Commonwealth law reviving operation of State law imposing "genuine taxation" characterised as a law with respect to acquisition of property.
CONSTITUTIONAL LAW (Cth) - Judicial power of Commonwealth - Admissibility of evidence - Where information and records obtained pursuant to warrants - Where Surveillance Legislation (Confirmation of Application) Act 2024 (Cth) ("Confirmation of Application Act") deems information and records obtained under specified warrants to have been lawfully obtained - Whether Confirmation of Application Act invalid - Whether Confirmation of Application Act impermissible exercise by Parliament of judicial power of Commonwealth - Whether Confirmation of Application Act impermissibly interferes with and undermines institutional integrity of courts vested with federal jurisdiction.
CONSTITUTIONAL LAW (Cth) - Judicial power of Commonwealth - Admissibility of evidence - Where information and records obtained pursuant to warrants - Where Surveillance Legislation (Confirmation of Application) Act 2024 (Cth) ("Confirmation of Application Act") deems information and records obtained under specified warrants to have been lawfully obtained - Whether Confirmation of Application Act invalid - Whether Confirmation of Application Act impermissible exercise by Parliament of judicial power of Commonwealth - Whether Confirmation of Application Act impermissibly interferes with and undermines institutional integrity of courts vested with federal jurisdiction.
WORDS AND PHRASES - "admissible", "communication", "criminal proceedings", "evidence", "exercise of judicial power", "illegally obtained", "inadmissible", "intercepting a communication", "interfere with the integrity of courts", "judicial power", "legislative power", "statutory concept", "telecommunications system", "undue impairment of judicial power", "unlawfully intercepted", "usurpation of judicial power", "warrant".
Constitution, Ch III.
Surveillance Legislation (Confirmation of Application) Act 2024 (Cth), ss 4, 5, 6. 7.
Telecommunications (Interception and Access) Act 1979 (Cth), ss 7, 63, 77.
PRACTICE AND PROCEDURE - Appeal - Application for security for costs - No dispute as to entitlement to security for costs - Quantum of security - Orders made for security for costs.
PRACTICE AND PROCEDURE - Appeal - Application for security for costs - No dispute as to entitlement to security for costs - Quantum of security - Orders made for security for costs.
Cwalina v Rose [2025] VSCA 53; Mikkelsen v Li [2022] VSCA 126; Szwarcbord v Charbord Investments Pty Ltd [2024] VSCA 92, applied.
PROPERTY LAW - Application for possession of property by mother against son under o 53 of the Supreme Court (General Civil Procedure) Rules 2015 granted by Associate Justice - Applicant self-represented in proceeding below - Applicant filed appearance but did not file any material in opposition and did not attend Trial Division hearing - Whether Associate Justice erred in declaring that at that stage of the proceeding there was no question to be tried - Whether Associate Justice erred in declaring that a judgment for possession under o 53 was justified and the respondent was entitled to possession of the land at that stage of the proceeding - Leave to appeal refused.
PROPERTY LAW - Application for possession of property by mother against son under o 53 of the Supreme Court (General Civil Procedure) Rules 2015 granted by Associate Justice - Applicant self-represented in proceeding below - Applicant filed appearance but did not file any material in opposition and did not attend Trial Division hearing - Whether Associate Justice erred in declaring that at that stage of the proceeding there was no question to be tried - Whether Associate Justice erred in declaring that a judgment for possession under o 53 was justified and the respondent was entitled to possession of the land at that stage of the proceeding - Leave to appeal refused.
Supreme Court (General Civil Procedure) Rules 2025, o 53.
CRIMINAL LAW - Appeal - Sentence - Manslaughter - Unlawful and dangerous act - Sentence of 15 years and 6 months' imprisonment with 11 years non-parole - Appellant severely beat female domestic partner causing death - Appellant caused multiple serious injuries to victim over extended period - Appellant lied to police to divert investigation - Whether judge erred in treating lies as aggravating circumstance - No error - Whether sentence manifestly excessive - Sentence just and proportionate - Appeal dismissed.
CRIMINAL LAW - Appeal - Sentence - Manslaughter - Unlawful and dangerous act - Sentence of 15 years and 6 months' imprisonment with 11 years non-parole - Appellant severely beat female domestic partner causing death - Appellant caused multiple serious injuries to victim over extended period - Appellant lied to police to divert investigation - Whether judge erred in treating lies as aggravating circumstance - No error - Whether sentence manifestly excessive - Sentence just and proportionate - Appeal dismissed.
R v Storey [1998] 1 VR 359; DPP v England [1999] 2 VR 258; DPP v Ristevski [2019] VSCA 287, referred to.
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to two charges of common assault, three charges of conduct endangering persons, one charge of being a prohibited person in possession of an imitation firearm, and two summary charges of trespass - Trespass - Offending took place over two days - Applicant attended complainant's garage and prevented complainant from leaving - Applicant assaulted complainant - Applicant threatened complainant by brandishing hammer - Whether sentencing judge impermissibly took into account circumstances of aggravation which could have warranted conviction against applicant of more serious charge of stalking - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to two charges of common assault, three charges of conduct endangering persons, one charge of being a prohibited person in possession of an imitation firearm, and two summary charges of trespass - Trespass - Offending took place over two days - Applicant attended complainant's garage and prevented complainant from leaving - Applicant assaulted complainant - Applicant threatened complainant by brandishing hammer - Whether sentencing judge impermissibly took into account circumstances of aggravation which could have warranted conviction against applicant of more serious charge of stalking - Leave to appeal refused.
Crimes Act 1958, s 21A.
R v De Simoni (1981) 147 CLR 383; Director of Public Prosecutions v McMaster (2008) 19 VR 191; Farah v The Queen [2019] VSCA 300, considered.
CRIMINAL LAW - Appeal - Sentence - Applicant sentenced to total effective sentence of 4 years and 2 months' imprisonment with non-parole period of 2 years - Applicant received maximum sentence of 6 months' imprisonment on summary charge of trespass - Whether total effective sentence and sentence imposed on charge of trespass manifestly excessive - Pleas of guilty - Limited previous convictions - Disadvantaged and traumatic upbringing - Applicant made positive steps toward rehabilitation while on bail - Appeal allowed on sentence for trespass - Application for leave to appeal total effective sentence otherwise refused.
Clarkson v The Queen (2011) 32 VR 361; DPP v Macarthur [2019] VSCA 71; Veen v The Queen (No 2) (1988) 164 CLR 465; Freeburn v The Queen [No 2] [2020] VSCA 176, referred to.
CRIMINAL LAW - Appeal - Conviction - Applicant convicted of one charge of sexual penetration of a stepchild and two charges of sexual assault of a child under 16 years - Complainant aged 9 years at time of offending - Complainant previously made allegations that she had been sexually abused by applicant's father - Alleged offending by applicant's father similar to conduct comprising charges against the applicant - Evidence of allegations against applicant's father not before jury - Where prosecutor put to jury in closing address that complainant would not have knowledge of the offending comprising charges against the applicant unless they actually happened to the complainant - Whether prosecutor acted unfairly in misleading jury - Substantial miscarriage of justice - Application for leave to appeal granted - Appeal allowed - Retrial ordered.
CRIMINAL LAW - Appeal - Conviction - Applicant convicted of one charge of sexual penetration of a stepchild and two charges of sexual assault of a child under 16 years - Complainant aged 9 years at time of offending - Complainant previously made allegations that she had been sexually abused by applicant's father - Alleged offending by applicant's father similar to conduct comprising charges against the applicant - Evidence of allegations against applicant's father not before jury - Where prosecutor put to jury in closing address that complainant would not have knowledge of the offending comprising charges against the applicant unless they actually happened to the complainant - Whether prosecutor acted unfairly in misleading jury - Substantial miscarriage of justice - Application for leave to appeal granted - Appeal allowed - Retrial ordered.
Bugeja v The Queen (2010) 30 VR 493, considered; R v Bazley (1986) 21 A Crim R 19; Richardson v The Queen (1974) 131 CLR 116; Ritchie (a pseudonym) v The Queen [2019] VSCA 202, referred to.
CRIMINAL LAW - Appeal - Conviction - Murder - Causation - Deceased suffered stab wounds and brain injuries - Medical evidence that cause of death was multiple stab wounds in the setting of blunt head trauma - Whether judge erred in directions to jury on causation - Proposed ground of appeal without merit - Application for extension of time in which to seek leave to appeal against conviction refused.
CRIMINAL LAW - Appeal - Conviction - Murder - Causation - Deceased suffered stab wounds and brain injuries - Medical evidence that cause of death was multiple stab wounds in the setting of blunt head trauma - Whether judge erred in directions to jury on causation - Proposed ground of appeal without merit - Application for extension of time in which to seek leave to appeal against conviction refused.
CRIMINAL LAW - Application for extension of time for leave to appeal against sentence - Manifest excess - Aggravated burglary with intent to steal - Sexual assault - Where applicant on bail and community correction order at time of offending - Where applicant sexually assaulted the complainant after entering home with intention to steal - Aggravated burglary an inherently serious offence - Sexual assault is serious offending where vulnerable victim lying asleep in her home assaulted by a trespasser - Sentence and orders for cumulation wholly adequate in the circumstances - Application for extension of time dismissed.
CRIMINAL LAW - Application for extension of time for leave to appeal against sentence - Manifest excess - Aggravated burglary with intent to steal - Sexual assault - Where applicant on bail and community correction order at time of offending - Where applicant sexually assaulted the complainant after entering home with intention to steal - Aggravated burglary an inherently serious offence - Sexual assault is serious offending where vulnerable victim lying asleep in her home assaulted by a trespasser - Sentence and orders for cumulation wholly adequate in the circumstances - Application for extension of time dismissed.
Crimes Act 1958, ss 40, 74(1), 77, 82(1), 88, 321M; Bail Act 1977, s 30B; Crimes Amendment (Sexual Offences) Act 2016.
Brown v The Queen [2021] VSCA 204; Comensoli v The Queen [2020] VSCA 2 considered; Traeger (a pseudonym) v The Queen [2019] VSCA 231; Perry v The King [2023] VSCA 218, distinguished.
CRIMINAL LAW - Appeal - Conviction - Rape by failing to withdraw - Two incidents of sexual penetration of a sex worker in a commercial setting - Whether verdicts unreasonable or cannot be supported having regard to the evidence - Appeal allowed - Judgments and verdicts of acquittal entered.
CRIMINAL LAW - Appeal - Conviction - Rape by failing to withdraw - Two incidents of sexual penetration of a sex worker in a commercial setting - Whether verdicts unreasonable or cannot be supported having regard to the evidence - Appeal allowed - Judgments and verdicts of acquittal entered.
CRIMINAL LAW - Appeal - Conviction - Rape by failing to withdraw - Two incidents of sexual penetration of a sex worker in a commercial setting - Police recorded taking of complainant's statement - Defence counsel played recording to complainant - Complainant distressed - Whether substantial miscarriage of justice resulted - Appeal allowed.
CRIMINAL LAW - Appeal - Conviction - Rape by failing to withdraw - Two incidents of sexual penetration of a sex worker in a commercial setting - Newspaper article published in course of trial concerning assaults on sex workers - Cross-examination disjointed as a result of complainant's conduct - Applications to discharge jury refused - Whether substantial miscarriage of justice - Appeal allowed.
CONTRACT - Construction - Sale by applicant to respondent of business comprising wholesale selling to customers of suites of software products, domain names, and website and email hosting services - Service Agreement for provision of transitional services by applicant to respondent following sale - Whether hosting on applicant's servers of data and software required for provision of webhosting services to customers included in 'Services' as defined - Principles of construction - Text, context, and commercial purpose considered - 'Services' includes hosting data and software - Commercially rational outcome consistent with commercial purpose - Leave to appeal granted - Appeal dismissed.
CONTRACT - Construction - Sale by applicant to respondent of business comprising wholesale selling to customers of suites of software products, domain names, and website and email hosting services - Service Agreement for provision of transitional services by applicant to respondent following sale - Whether hosting on applicant's servers of data and software required for provision of webhosting services to customers included in 'Services' as defined - Principles of construction - Text, context, and commercial purpose considered - 'Services' includes hosting data and software - Commercially rational outcome consistent with commercial purpose - Leave to appeal granted - Appeal dismissed.
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; The J&P Marlow (No 2) Pty Ltd v Hayes (2023) 112 NSWLR 29, considered.
APPEAL - Judicial review - Permanent care order granted - Whether failure to consider mandatory principles - Whether failure to consider need to give widest possible protection to parent/child relationship - Whether misapplication of relevant principle - Removal of child from parent where unacceptable risk of harm established - Construction of 'parent'- No error of law established - Leave to appeal granted - Appeal allowed.
APPEAL - Judicial review - Permanent care order granted - Whether failure to consider mandatory principles - Whether failure to consider need to give widest possible protection to parent/child relationship - Whether misapplication of relevant principle - Removal of child from parent where unacceptable risk of harm established - Construction of 'parent'- No error of law established - Leave to appeal granted - Appeal allowed.
Children, Youth and Families Act 2005, ss 3, 8, 9, 10, 319.
Department of Human Services v DR [2013] VSC 579; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; Mia Harris (a pseudonym) and Adam Jackson (a pseudonym) v Secretary to the Department of Families, Fairness and Housing [2023] VSC 228; Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24.
EQUITY - Developers purchased property via special purpose vehicle ('SPV') - Building and development business - Pre-existing lease between former owner and telecommunications group relating to roof equipment ('1996 Lease') - 1996 Lease commercially lucrative - Plan of Subdivision prepared to sell lots - Roof identified as common property vested in body corporate under strata law - Developer entered into long-term lease with body corporate over common property ('2000 Lease') to retain benefit of subsisting lease - 2000 Lease executed following AGM of body corporate - Resolutions passed - Deregistration of SPV on project completion - Rights assigned to plaintiff - Dispute between succeeding body corporate and plaintiff over enforceability of 2000 Lease - Whether 2000 Lease invalid - Whether defective authorisation - Whether fraud on the power occurred where SPV sole owner of lots and single voter at AGM - Whether developer breached fiduciary duties - Entitlement of Owners Corporation ('OC') to recover (rent) moneys accrued by plaintiff - OC bound by 2000 Lease - Declaration in favour of plaintiff - Counterclaim dismissed - Subdivision Act 1988 (Vic) ss 3(1), 5 & 5(3)(e), 24(1) & (3), 27(2), 28(1)(b) & (c), 31A(1)(c) - Subdivision (Body Corporate) Regulations 1989 (Vic) Regs 401(m), 402, 609(1) & (2) - Owners Corporation Act 2006 (Vic) ss 10(1) & (2), 20(1) - Sale of land Act 1962 (Vic) ss 32K(2), (3), (4)(a) & (b).
EQUITY - Developers purchased property via special purpose vehicle ('SPV') - Building and development business - Pre-existing lease between former owner and telecommunications group relating to roof equipment ('1996 Lease') - 1996 Lease commercially lucrative - Plan of Subdivision prepared to sell lots - Roof identified as common property vested in body corporate under strata law - Developer entered into long-term lease with body corporate over common property ('2000 Lease') to retain benefit of subsisting lease - 2000 Lease executed following AGM of body corporate - Resolutions passed - Deregistration of SPV on project completion - Rights assigned to plaintiff - Dispute between succeeding body corporate and plaintiff over enforceability of 2000 Lease - Whether 2000 Lease invalid - Whether defective authorisation - Whether fraud on the power occurred where SPV sole owner of lots and single voter at AGM - Whether developer breached fiduciary duties - Entitlement of Owners Corporation ('OC') to recover (rent) moneys accrued by plaintiff - OC bound by 2000 Lease - Declaration in favour of plaintiff - Counterclaim dismissed - Subdivision Act 1988 (Vic) ss 3(1), 5 & 5(3)(e), 24(1) & (3), 27(2), 28(1)(b) & (c), 31A(1)(c) - Subdivision (Body Corporate) Regulations 1989 (Vic) Regs 401(m), 402, 609(1) & (2) - Owners Corporation Act 2006 (Vic) ss 10(1) & (2), 20(1) - Sale of land Act 1962 (Vic) ss 32K(2), (3), (4)(a) & (b).
LEASES AND TENANCIES - Validity - Whether 2000 Lease void where possessory interest already vested in lessee under 1996 Lease - Overlapping demise under both leases - Whether 2000 Lease operated concurrently during period of overlapping demise - Application of orthodox principles - Leasehold grant preserved rights of telecommunications group - Assignment of reversionary rights - Concurrent lease doctrine upheld - Special resolution valid to authorise grant of 2000 Lease - Defective execution due to lack of clear delegation to body corporate manager - Non-compliance with regulations - Eureka Operations Pty Ltd v Viva Energy Australia Ltd [2015] VSC 648.
EQUITY - Equitable relief - Whether recourse to part performance or estoppel available where 2000 Lease improperly executed - Clear acts of reliance by plaintiff on assumption of valid execution - Waltons Stores estoppel elements satisfied - Plaintiff relied on holding leasehold interest and associated subleasing rights - Undue detriment arises if OC not bound - Breach of fiduciary duty not made out where 2000 Lease disclosed to future lot owners in contracts of sale - Purchasers' consent obtained - Voting entitlements validly exercised by developer - No fraud on the power - No dishonest scheme - OC's own failure to locate files despite awareness of 2000 Lease - Equitable doctrines invoked to support plaintiff's claim - Further statutory limitation periods and laches considered barring OC's counterclaim - Community Association DP No 270180 v Arrow Asset Management Pty Ltd [2007] NSWSC 527 - Houghton & Anor v Immer (No 155) Pty Ltd & Anor (1997) 44 NSWLR 46 - CSR Limited v Amaca Pty Ltd [2016] VSCA 320.
COSTS - Application for the award of costs on discontinuance - Whether the Court should award costs or otherwise order - Relevant principles - Supreme Court Act 1986 (Vic) s 24(1) - Northern Territory v Sangare [2019] 265 CLR 164; Soteriadis v Nillumbik Shire Council [2015] VSC 363; Merkon Constructions Pty Ltd v Residence Company Pty Ltd [2024] VSC 402, applied.
COSTS - Application for the award of costs on discontinuance - Whether the Court should award costs or otherwise order - Relevant principles - Supreme Court Act 1986 (Vic) s 24(1) - Northern Territory v Sangare [2019] 265 CLR 164; Soteriadis v Nillumbik Shire Council [2015] VSC 363; Merkon Constructions Pty Ltd v Residence Company Pty Ltd [2024] VSC 402, applied.
Appeal from Commissioner's determination disallowing appellant's objection against an assessment for landholder duty under Part 2 of Chapter 3 of Duties Act 2000 - Where appeal dismissed - Where parties are not agreed as to final orders including as to costs - 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 on appeal was seeking to recover duty in the same amount but on the re-vamped basis contended for (i.e. reflecting 'what the Commissioner in effect did') - Where Court has determined it is appropriate to remit the assessment to the Commissioner to give effect to the Court's reasons - Where appellant has been put to significant trouble and expense as a result of the Commissioner's late change of position on appeal - Appellant ordered to pay 75% of the Commissioner's costs on the standard basis - Final orders made - Taxation Administration Act 1997 (Vic) ss 109, 112, 114; Supreme Court Act 1986 (Vic) s 24; Civil Procedure Act 2010 (Vic) s 65C.
Appeal from Commissioner's determination disallowing appellant's objection against an assessment for landholder duty under Part 2 of Chapter 3 of Duties Act 2000 - Where appeal dismissed - Where parties are not agreed as to final orders including as to costs - 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 on appeal was seeking to recover duty in the same amount but on the re-vamped basis contended for (i.e. reflecting 'what the Commissioner in effect did') - Where Court has determined it is appropriate to remit the assessment to the Commissioner to give effect to the Court's reasons - Where appellant has been put to significant trouble and expense as a result of the Commissioner's late change of position on appeal - Appellant ordered to pay 75% of the Commissioner's costs on the standard basis - Final orders made - Taxation Administration Act 1997 (Vic) ss 109, 112, 114; Supreme Court Act 1986 (Vic) s 24; Civil Procedure Act 2010 (Vic) s 65C.
INTERLOCUTORY INJUNCTION - Urgent ex parte application - Where in advance of his departure, former employee of a security services business has downloaded information including client data - Where former employee has recently established a rival security services business and has been contacting plaintiff's clients seeking their business - Where injunction sought to prevent continuing misuse of confidential information including client data - Prima facie case and serious question to be tried - Consideration as to whether a plaintiff claiming misuse of confidential information must demonstrate damages would not be an adequate remedy - Whether balance of convenience favours granting of an injunction - Where lower risk of injustice if interim relief sought is granted - Usual undertakings as to damages given by the plaintiff - Supreme Court Act 1986 (Vic) s 37 - Court satisfied that it is just and convenient to grant the injunctive relief sought on an interim basis.
INTERLOCUTORY INJUNCTION - Urgent ex parte application - Where in advance of his departure, former employee of a security services business has downloaded information including client data - Where former employee has recently established a rival security services business and has been contacting plaintiff's clients seeking their business - Where injunction sought to prevent continuing misuse of confidential information including client data - Prima facie case and serious question to be tried - Consideration as to whether a plaintiff claiming misuse of confidential information must demonstrate damages would not be an adequate remedy - Whether balance of convenience favours granting of an injunction - Where lower risk of injustice if interim relief sought is granted - Usual undertakings as to damages given by the plaintiff - Supreme Court Act 1986 (Vic) s 37 - Court satisfied that it is just and convenient to grant the injunctive relief sought on an interim basis.
TRUSTS - Application by the unitholders to inspect the documents relating to legal advice obtained by the trustee of the trust - Whether 'proprietary approach' or 'discretionary approach' should be applied - Whether joint privilege applies in the legal-professional privilege - Whether the beneficiaries should not have a right of access to the relevant documents where the legal advice and services were provided during and for the purposes of a dispute between a trustee and a related entity of the beneficiaries - Deutsch v Trumble (2016) 52 VR 108; [2016] VSC 263 applied - Orders made for production and inspection.
TRUSTS - Application by the unitholders to inspect the documents relating to legal advice obtained by the trustee of the trust - Whether 'proprietary approach' or 'discretionary approach' should be applied - Whether joint privilege applies in the legal-professional privilege - Whether the beneficiaries should not have a right of access to the relevant documents where the legal advice and services were provided during and for the purposes of a dispute between a trustee and a related entity of the beneficiaries - Deutsch v Trumble (2016) 52 VR 108; [2016] VSC 263 applied - Orders made for production and inspection.
PRACTICE AND PROCEDURE - Group proceeding - Application for approval of settlement - Whether confidentiality orders should be made - Whether settlement distribution scheme is fair and reasonable - Settlement distribution between classes of group members - Deductions from the settlement fund - Whether group costs order should be varied - No variation to group costs order - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, s 33V, s 33ZDA.
PRACTICE AND PROCEDURE - Group proceeding - Application for approval of settlement - Whether confidentiality orders should be made - Whether settlement distribution scheme is fair and reasonable - Settlement distribution between classes of group members - Deductions from the settlement fund - Whether group costs order should be varied - No variation to group costs order - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, s 33V, s 33ZDA.
PRACTICE AND PROCEDURE - Security for costs - Quantum of security - Weight to be attributed to expert evidence and evidence from the parties' solicitors as to quantum - Impact of potential duplication of work between legal practitioners - Whether quantum should be reduced due to the costs associated with the counterclaim - Whether a further discount is appropriate to account for the risk that specified costs are not incurred - Supreme Court (General Civil Procedure) Rules 2015, r 62.02 - Trailer Trash Franchise Systems Pty Ltd v Go Markets Fascia & Cutter Pty Ltd [2017] VSCA 293 - Grace Christian Chapel v Canaan Holdings Pty Ltd [2019] VSC 5 - Jabiru Satellite Ltd (in liq) (recs and mgrs apptd) v Societe Generale [2022] VSC 521 - Norcast S.ár.L v Bradken Ltd [2012] FCA 765.
PRACTICE AND PROCEDURE - Security for costs - Quantum of security - Weight to be attributed to expert evidence and evidence from the parties' solicitors as to quantum - Impact of potential duplication of work between legal practitioners - Whether quantum should be reduced due to the costs associated with the counterclaim - Whether a further discount is appropriate to account for the risk that specified costs are not incurred - Supreme Court (General Civil Procedure) Rules 2015, r 62.02 - Trailer Trash Franchise Systems Pty Ltd v Go Markets Fascia & Cutter Pty Ltd [2017] VSCA 293 - Grace Christian Chapel v Canaan Holdings Pty Ltd [2019] VSC 5 - Jabiru Satellite Ltd (in liq) (recs and mgrs apptd) v Societe Generale [2022] VSC 521 - Norcast S.ár.L v Bradken Ltd [2012] FCA 765.
CORPORATIONS - Liquidation of trustee company - Company operated exclusively in its capacity as trustee - Whether liquidator justified and acting reasonably in so concluding - Whether to appoint liquidator as receiver and manager pursuant to s 37(1) of the Supreme Court Act 1986 (Vic) or make orders pursuant to s 63 of Trustee Act 1958 (Vic) - Liquidator appointed as receiver and manager - Re Waratah Group Pty Ltd (in liq) [2020] VSC 523, applied; Re Amerind Pty Ltd (receivers and managers apptd) (in liq) (2017) 320 FLR 118, applied.
CORPORATIONS - Liquidation of trustee company - Company operated exclusively in its capacity as trustee - Whether liquidator justified and acting reasonably in so concluding - Whether to appoint liquidator as receiver and manager pursuant to s 37(1) of the Supreme Court Act 1986 (Vic) or make orders pursuant to s 63 of Trustee Act 1958 (Vic) - Liquidator appointed as receiver and manager - Re Waratah Group Pty Ltd (in liq) [2020] VSC 523, applied; Re Amerind Pty Ltd (receivers and managers apptd) (in liq) (2017) 320 FLR 118, applied.
CORPORATIONS - Application for winding up in insolvency - Whether plaintiff had established presumptions of insolvency under s 459C(2)(b) of the Corporations Act 2001 (Cth) arising from alleged wholly unsatisfied warrant of seizure and sale and partly unsatisfied garnishee order - Finding that warrant not returned unsatisfied - Finding that garnishee order was returned partly unsatisfied - Exercise of discretion under s 467(1)(a) of the Corporations Act 2001 (Cth) to dismiss the application despite ground having been proved.
CORPORATIONS - Application for winding up in insolvency - Whether plaintiff had established presumptions of insolvency under s 459C(2)(b) of the Corporations Act 2001 (Cth) arising from alleged wholly unsatisfied warrant of seizure and sale and partly unsatisfied garnishee order - Finding that warrant not returned unsatisfied - Finding that garnishee order was returned partly unsatisfied - Exercise of discretion under s 467(1)(a) of the Corporations Act 2001 (Cth) to dismiss the application despite ground having been proved.
PRIVATE INTERNATIONAL LAW - Stay application - General principles - Fragmentation of litigation - Forum non conveniens - Supreme Court of Victoria not an inappropriate forum - Foreign law - Presumption that foreign law is the same as the law of the forum - Displacing the presumption - Clearly inappropriate forum test - No obligation on plaintiff to allege foreign law - Regie Nationale Des Usines Renault SA v Zhang (2002) 210 CLR 491; Palmer v Turnbull [2019] 1 Qd R 286; Damberg v Damberg (2001) 52 NSWLR 492; Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331; Benson v Rational Entertainment Enterprises Ltd (2018) 97 NSWLR 798; Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235.
PRIVATE INTERNATIONAL LAW - Stay application - General principles - Fragmentation of litigation - Forum non conveniens - Supreme Court of Victoria not an inappropriate forum - Foreign law - Presumption that foreign law is the same as the law of the forum - Displacing the presumption - Clearly inappropriate forum test - No obligation on plaintiff to allege foreign law - Regie Nationale Des Usines Renault SA v Zhang (2002) 210 CLR 491; Palmer v Turnbull [2019] 1 Qd R 286; Damberg v Damberg (2001) 52 NSWLR 492; Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331; Benson v Rational Entertainment Enterprises Ltd (2018) 97 NSWLR 798; Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235.
PRACTICE AND PROCEDURE - Service of originating process - Whether basis for service out of Australia under r 7.02 - Whether basis for service out of Australia under r 7.02(h)(i) - Failure to serve a notice pursuant to r 7.05 - Failure to serve a person out of Australia with a notice in Form 7AAA - Whether second defendant a necessary or proper party within the meaning of r 7.02(h)(i) - Meaning of proper party - Meaning of proper party under r 7.02(h)(i) - Rules 9.02 and 9.06(b) - Permissive joinder of parties under r 9.02 and r 7.02(h)(i) - Maclaine Watson & Co Private Ltd v Bing Chen [1983] 1 NSWLR 163 - Beamer Pty Ltd v Star Lodge Supported Residential Services Pty Ltd (No 1) [2004] VSC 390 - Colosseum Investment Holdings Pty Ltd and Anor v Vanguard Logistics Services Pty Ltd and Ors [2005] NSWSC 803 - Sapphire Group Pty Ltd v Luxotico HK Ltd [2021] NSWSC 589 - Horizon Capital Fund v Insurance Australia Ltd; Horizon Capital Fund v Tokio Marine & Nichido Fire Insurance Co. Ltd [2023] NSWSC 389; Harpur v Levy [2007] 16 VR 587; Madden International Ltd v Lew Footwear Holdings Pty Ltd [2015] VSCA 90; (2015) 50 VR 22; Schib Packaging Srl v Emrich Industries Pty Ltd [2005] VSCA 236; (2005) 12 VR 268; Chickabo Pty Ltd & Ors v Zphere Pty Ltd & Ors (No 2) [2019] VSC 580.
PRACTICE AND PROCEDURE - Application for originating process to be set aside pursuant to r 7.04 - Whether Supreme Court of Victoria an inappropriate forum - Forum non conveniens general principles - Meaning of 'inappropriate forum' in r 7.04(2)(b) - Whether 'inappropriate forum' means 'clearly inappropriate forum' - Whether claim against overseas defendant has insufficient prospects of success to warrant putting the defendant served out of Australia to the time, expense and trouble of defending the claim - Rule 7.04(2)(c) - Applicable test for determining whether a claim has 'insufficient prospects of success' within the meaning of r 7.04(2)(c) -Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; Regie Nationale Des Usines Renault SA v Zhang (2002) 210 CLR 491; Republica Democratica de Timor Leste v Lighthouse Corp Ltd [2019] VSCA 290; Incitec Ltd v Alkimos Shipping Corporation & Anor (2004) 138 FCR 496; Agar v Hyde (2000) 201 CLR 552; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; Rowe v Grunenthal GmbH [2011] VSC 657; Bendigo and Adelaide Bank Limited v Quine (2018) 55 VR 701; Azzi v Fox Fire Security System L.L.C. [2020] NSWSC 331; Shenzhen Xinhe Hongshi Investment and Consultancy Co Ltd v Shandong Ruyi Technology Group Co Ltd [2025] FCA 860.
CONTRACT - Breach of contract - General principles for the tort of inducing breach of contract.
SPECIFIC PERFORMANCE - Building contract - Delay in completing the rectification work under the contract - Whether specific performance is an adequate remedy - Mayor, Aldermen and Burgesses of Wolverhampton v Emmons [1901] 1 QB 515 applied - Whether the scope of work is clearly defined - Whether damages are a more adequate remedy.
SPECIFIC PERFORMANCE - Building contract - Delay in completing the rectification work under the contract - Whether specific performance is an adequate remedy - Mayor, Aldermen and Burgesses of Wolverhampton v Emmons [1901] 1 QB 515 applied - Whether the scope of work is clearly defined - Whether damages are a more adequate remedy.
PROBATE - Application for revocation of grant of letters of administration of intestacy - Where copy of original will found - Presumption of destruction by the deceased animo revocandi must be overcome - Presumption not rebutted - Application dismissed - Re Ionnidis: Gebert v Sarvos [2025] VSC 418, [72]-[82] applied.
PROBATE - Application for revocation of grant of letters of administration of intestacy - Where copy of original will found - Presumption of destruction by the deceased animo revocandi must be overcome - Presumption not rebutted - Application dismissed - Re Ionnidis: Gebert v Sarvos [2025] VSC 418, [72]-[82] applied.
PRACTICE AND PROCEDURE - Representative proceeding - Application for leave to amend writ and statement of claim - Amendment to group member definition - Leave granted - Application to dispense with requirements to notify group members - Supreme Court Act 1986 ss 33V, 33X - Crawford v Australia and New Zealand Banking Group Ltd [2022] VSC 297 - Hassan v Van Diemen [2021] VSC 839 - Notice requirement dispensed with.
PRACTICE AND PROCEDURE - Representative proceeding - Application for leave to amend writ and statement of claim - Amendment to group member definition - Leave granted - Application to dispense with requirements to notify group members - Supreme Court Act 1986 ss 33V, 33X - Crawford v Australia and New Zealand Banking Group Ltd [2022] VSC 297 - Hassan v Van Diemen [2021] VSC 839 - Notice requirement dispensed with.
PRACTICE AND PROCEDURE - Costs - Executor's application for costs from the estate of the deceased in circumstances where the application for executor's commission under s 65 of the Administration and Probate Act 1958 (Vic) was refused - Rule 10.10 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) - Rules 63.01 and 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application refused - Second plaintiff to bear own cost and to pay costs of the first plaintiff's costs of the second plaintiff's application for executor's commission on a standard basis without indemnity from the deceased's estate.
PRACTICE AND PROCEDURE - Costs - Executor's application for costs from the estate of the deceased in circumstances where the application for executor's commission under s 65 of the Administration and Probate Act 1958 (Vic) was refused - Rule 10.10 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) - Rules 63.01 and 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application refused - Second plaintiff to bear own cost and to pay costs of the first plaintiff's costs of the second plaintiff's application for executor's commission on a standard basis without indemnity from the deceased's estate.
PRACTICE COURT - INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION - Application to restrain publication of information derived from or contained in a draft report - Claim for breach of confidence - Serious issue to be tried - Balance of convenience - Interlocutory injunction granted - Independent Broad-based Anti-corruption Commission Act 2011 (Vic) ss 162, 166.
PRACTICE COURT - INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION - Application to restrain publication of information derived from or contained in a draft report - Claim for breach of confidence - Serious issue to be tried - Balance of convenience - Interlocutory injunction granted - Independent Broad-based Anti-corruption Commission Act 2011 (Vic) ss 162, 166.
CRIMINAL LAW - Bail - Whether exceptional circumstances exist justifying grant of bail - Charges include trafficking a large commercial quantity of methylamphetamine and trafficking a commercial quantity of cocaine - Where at time of alleged offences applicant on parole - Where offences for which parole was granted included trafficking in a large commercial quantity of MDMA and 3 counts of trafficking in a commercial quantity of various drugs of dependence - Where parole was revoked - Where circumstantial prosecution case on major charges has reasonable prospects of success - Where sentence on major charges if convicted will exceed time on remand - Where applicant has history of illicit drug use - Where residential drug program available - Exceptional circumstances not established - Unacceptable risk - Bail refused - Bail Act 1977 (Vic) ss, 3AAA, 4AA, 4A, 4D, 4E, Item 6 of Schedule 1.
CRIMINAL LAW - Bail - Whether exceptional circumstances exist justifying grant of bail - Charges include trafficking a large commercial quantity of methylamphetamine and trafficking a commercial quantity of cocaine - Where at time of alleged offences applicant on parole - Where offences for which parole was granted included trafficking in a large commercial quantity of MDMA and 3 counts of trafficking in a commercial quantity of various drugs of dependence - Where parole was revoked - Where circumstantial prosecution case on major charges has reasonable prospects of success - Where sentence on major charges if convicted will exceed time on remand - Where applicant has history of illicit drug use - Where residential drug program available - Exceptional circumstances not established - Unacceptable risk - Bail refused - Bail Act 1977 (Vic) ss, 3AAA, 4AA, 4A, 4D, 4E, Item 6 of Schedule 1.
CRIMINAL LAW - Bail - Charges of using a carriage service to publish violent extremist material, possessing and controlling such material, threatening to use force and violence against a group distinguished by religion and using a carriage service to make a threat to kill - Child applicant - Applicant assessed as unsuitable by Youth Justice for bail service - Failure to abide by bail conditions on previous grants of bail - Longstanding fixation with terrorist organisation and ideology - Acquisition of weapons that are unaccounted for - Whether exceptional circumstances made out - Whether unacceptable risk of endangering the safety or welfare of any person, or committing an offence while on bail - Exceptional circumstances made out - Unacceptable risk - Bail refused - Crimes Act 1914 (Cth) s 15AA; Bail Act 1977 (Vic) ss 1B, 3AAA, 3B and 4E.
CRIMINAL LAW - Bail - Charges of using a carriage service to publish violent extremist material, possessing and controlling such material, threatening to use force and violence against a group distinguished by religion and using a carriage service to make a threat to kill - Child applicant - Applicant assessed as unsuitable by Youth Justice for bail service - Failure to abide by bail conditions on previous grants of bail - Longstanding fixation with terrorist organisation and ideology - Acquisition of weapons that are unaccounted for - Whether exceptional circumstances made out - Whether unacceptable risk of endangering the safety or welfare of any person, or committing an offence while on bail - Exceptional circumstances made out - Unacceptable risk - Bail refused - Crimes Act 1914 (Cth) s 15AA; Bail Act 1977 (Vic) ss 1B, 3AAA, 3B and 4E.
CRIMINAL LAW - Application for bail - Charge of murder - Where the applicant is charged with dealing fatal blow in assault of worker - Whether exceptional circumstances exist that justify grant of bail - Where applicant has no prior criminal history - Where delay is not inordinate - Where triable issues but Crown case not weak - Where applicant submission of disproportionate financial hardship to family not supported by evidence - Where substantial surety offered - Exceptional circumstances not found - Where unacceptable risk applicant would interfere with witnesses - Bail Act 1977 (Vic) ss 4A(1), 4E.
CRIMINAL LAW - Application for bail - Charge of murder - Where the applicant is charged with dealing fatal blow in assault of worker - Whether exceptional circumstances exist that justify grant of bail - Where applicant has no prior criminal history - Where delay is not inordinate - Where triable issues but Crown case not weak - Where applicant submission of disproportionate financial hardship to family not supported by evidence - Where substantial surety offered - Exceptional circumstances not found - Where unacceptable risk applicant would interfere with witnesses - Bail Act 1977 (Vic) ss 4A(1), 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.
CRIMINAL LAW - Sentence - Possessing an unregistered general category handgun - Loaded, shortened .22 rifle - Previously kept by accused in unsecured state in the bedroom of his house - Possession not in connection with ongoing criminal activity - Plea of guilty - Limited criminal history - Long period on remand for charges which ultimately resulted in verdicts of not guilty by jury - Good prospects of rehabilitation - Concession by defence that term of imprisonment appropriate - Sentence of imprisonment for 10 months.
CRIMINAL LAW - Sentence - Possessing an unregistered general category handgun - Loaded, shortened .22 rifle - Previously kept by accused in unsecured state in the bedroom of his house - Possession not in connection with ongoing criminal activity - Plea of guilty - Limited criminal history - Long period on remand for charges which ultimately resulted in verdicts of not guilty by jury - Good prospects of rehabilitation - Concession by defence that term of imprisonment appropriate - Sentence of imprisonment for 10 months.
CRIMINAL LAW - Contraventions of condition of supervision order - Use of methylamphetamine in context of difficulties coping with stress - Admissions made in record of interview - Plea of guilty at earliest opportunity - First contraventions of supervision order - Aggregate fine imposed - DPP v SM [2019] VSC 466 - Serious Offenders Act 2018 (Vic) s 169.
CRIMINAL LAW - Contraventions of condition of supervision order - Use of methylamphetamine in context of difficulties coping with stress - Admissions made in record of interview - Plea of guilty at earliest opportunity - First contraventions of supervision order - Aggregate fine imposed - DPP v SM [2019] VSC 466 - Serious Offenders Act 2018 (Vic) s 169.
CRIMINAL LAW - Reckless conduct endangering life - Attempting to pervert course of justice - Accused bought kerosene and unsuccessfully tried to set fire to herself and her young child at family home - Accused called child's carer from custody and sought them to convince child to withdraw statement - Accused was experiencing distress in context of marriage breakdown and loss of opportunity to stay in Australia - No diagnosed psychiatric injury or illness - Verdins principles not enlivened - Early pleas of guilty - Accused regretful but no genuine remorse indicative of acceptance of responsibility - DPP v Deakin [2021] VSC 719 - DPP v LK [2020] VSC 193 - DPP v Bennett [2004] VSC 207 - Guden v The Queen (2010) 28 VR 288 - Crimes Act 1958 (Vic) ss 22, 320 - Sentencing Act 1991 (Vic) ss 5(2AA), 11(2).
CRIMINAL LAW - Reckless conduct endangering life - Attempting to pervert course of justice - Accused bought kerosene and unsuccessfully tried to set fire to herself and her young child at family home - Accused called child's carer from custody and sought them to convince child to withdraw statement - Accused was experiencing distress in context of marriage breakdown and loss of opportunity to stay in Australia - No diagnosed psychiatric injury or illness - Verdins principles not enlivened - Early pleas of guilty - Accused regretful but no genuine remorse indicative of acceptance of responsibility - DPP v Deakin [2021] VSC 719 - DPP v LK [2020] VSC 193 - DPP v Bennett [2004] VSC 207 - Guden v The Queen (2010) 28 VR 288 - Crimes Act 1958 (Vic) ss 22, 320 - Sentencing Act 1991 (Vic) ss 5(2AA), 11(2).
CRIMINAL LAW - Offences - Armed robbery, burglary, criminal damage, robbery (x2), theft of motor vehicle, unlicensed driving - President of Children's Court sentenced offender to total effective sentence of 10 months' detention in a Youth Justice Centre - Offender's late Notice of Appeal against sentence deemed to be application for leave to appeal against sentence - No merit in appeal - Application for leave to appeal refused - Children, Youth and Families Act 2005, ss 362, 424, 430.
CRIMINAL LAW - Offences - Armed robbery, burglary, criminal damage, robbery (x2), theft of motor vehicle, unlicensed driving - President of Children's Court sentenced offender to total effective sentence of 10 months' detention in a Youth Justice Centre - Offender's late Notice of Appeal against sentence deemed to be application for leave to appeal against sentence - No merit in appeal - Application for leave to appeal refused - Children, Youth and Families Act 2005, ss 362, 424, 430.
CRIMINAL LAW - Sentence - Causing serious injury intentionally in circumstances of gross violence - Plea of guilty - Petrol thrown on the head and upper body of victim, who was then set alight with a jet lighter - Full thickness burns to head, neck, chest, and arms and to 30% of total body surface area - Claim of having acted out of fear rejected - Relevance of Bugmy and Verdins principles - Childhood disadvantage - Some reduction in moral culpability on account of general Bugmy principle, but moral culpability still high - Limb 5 of Verdins enlivened, to modest effect - Head sentence of 13 years' imprisonment, with non-parole period of 9 years.
CRIMINAL LAW - Sentence - Causing serious injury intentionally in circumstances of gross violence - Plea of guilty - Petrol thrown on the head and upper body of victim, who was then set alight with a jet lighter - Full thickness burns to head, neck, chest, and arms and to 30% of total body surface area - Claim of having acted out of fear rejected - Relevance of Bugmy and Verdins principles - Childhood disadvantage - Some reduction in moral culpability on account of general Bugmy principle, but moral culpability still high - Limb 5 of Verdins enlivened, to modest effect - Head sentence of 13 years' imprisonment, with non-parole period of 9 years.
CRIMINAL LAW - Murder - Accused stabbed a man outside house as victim was leaving property - Defence of mental impairment - Where accused has diagnosis of schizophrenia and was experiencing psychosis with delusional belief system that victim intended to harm accused - Where two psychiatrists opined accused could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong - Defence established - Accused declared liable to supervision - Matter adjourned so that necessary further examination, report and certificate of available services be obtained - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 20, 21, 23.
CRIMINAL LAW - Murder - Accused stabbed a man outside house as victim was leaving property - Defence of mental impairment - Where accused has diagnosis of schizophrenia and was experiencing psychosis with delusional belief system that victim intended to harm accused - Where two psychiatrists opined accused could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong - Defence established - Accused declared liable to supervision - Matter adjourned so that necessary further examination, report and certificate of available services be obtained - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 20, 21, 23.
White Proceeding: Limitation period - Whether irremediable harm caused by failure to plead limitation defence - Whether leave should be granted to amend defence - Whether extension of time can be granted.
White Proceeding: Limitation period - Whether irremediable harm caused by failure to plead limitation defence - Whether leave should be granted to amend defence - Whether extension of time can be granted.
Whether plaintiff identified - Extrinsic facts - Whether all imputations conveyed attach to plaintiff - Whether imputations conveyed are true - Qualified privilege reply to attack.
Dalas Proceeding: Serious harm - Whether plaintiff can rely on multiple publications of same defamatory matter to establish serious harm - Whether serious harm needs to be established for each imputation - Whether imputations were expression of honest opinion - Qualified privilege reply to attack - Where defendant was attacker - Assessment of damages - Aggravated damages where defendant relied on truth defence after receiving information that the allegation was not true - Where defendant motivated by malice - Injunction where defendant has demonstrated unwillingness to comply with terms of intervention order - Where defendant has published over seventy posts about plaintiff.
CRIMINAL LAW - Extradition - Murder - s 83 and s 88 Service and Execution of Process Act 1992 (Cth) - s 13 Bail Act 1977 (Vic) - Jurisdiction of the Magistrates' Court of Victoria.
CRIMINAL LAW - Extradition - Murder - s 83 and s 88 Service and Execution of Process Act 1992 (Cth) - s 13 Bail Act 1977 (Vic) - Jurisdiction of the Magistrates' Court of Victoria.