DAMAGES - Assessment - Tort - Personal injury - Where appellant suffered personal injuries arising from his treatment as patient at hospital operated by respondent - Where prior to injury appellant lived in his own home with his brother where his son and dogs could stay - Where after injury appellant transferred to nursing home - Where appellant's physical condition deteriorated because of lack of therapy and exercise - Whether reasonable for damages awarded to appellant to include component for medical and nursing care and treatment in own home - Whether assessment of reasonableness confined to balancing only health benefits against cost.
DAMAGES - Assessment - Tort - Personal injury - Where appellant suffered personal injuries arising from his treatment as patient at hospital operated by respondent - Where prior to injury appellant lived in his own home with his brother where his son and dogs could stay - Where after injury appellant transferred to nursing home - Where appellant's physical condition deteriorated because of lack of therapy and exercise - Whether reasonable for damages awarded to appellant to include component for medical and nursing care and treatment in own home - Whether assessment of reasonableness confined to balancing only health benefits against cost.
WORDS AND PHRASES - "assessment of damages", "assessment of reasonableness", "care at home", "compensation", "compensatory principle", "cost of home care", "cost of nursing and medical care", "costs of future care", "extreme brain injury", "general damages", "health benefits", "home care", "home or in a home setting", "injury scale", "institution or in an institutional setting", "institutional care", "matters of amenities", "mitigation of loss", "nursing and medical expenses", "onus", "other matters", "pain, suffering and loss of amenities of life", "proof of loss", "quantum", "reasonable", "reasonableness", "reasonably incurred", "repair the consequences of the tort", "unreasonably refused".
Civil Liability Act 2003 (Qld), ss 61, 62.
Civil Liability Regulation 2014 (Qld), Sch 3, Pt 2, Sch 4.
STATUTES - Construction - Temporal operation of statute - Where in June 2020 archaeological artefact imported into Australia - Where artefact seized by inspector under Protection of Movable Cultural Heritage Act 1986 (Cth) ("Act") upon request for return of artefact from Government of Bolivia - Where artefact unlawfully exported from Bolivia before commencement of Act - Where appellant purchaser commenced action for recovery of artefact under s 37 of Act - Where Act enacted to bring Australia into conformity with obligations of State Party to UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970) prior to Australia acceding to Convention - Where s 14(1) of Act provides that "protected object of a foreign country" may be liable to forfeiture - Whether s 14(1) renders liable to forfeiture protected object of a foreign country unlawfully exported from that country before commencement of Act.
STATUTES - Construction - Temporal operation of statute - Where in June 2020 archaeological artefact imported into Australia - Where artefact seized by inspector under Protection of Movable Cultural Heritage Act 1986 (Cth) ("Act") upon request for return of artefact from Government of Bolivia - Where artefact unlawfully exported from Bolivia before commencement of Act - Where appellant purchaser commenced action for recovery of artefact under s 37 of Act - Where Act enacted to bring Australia into conformity with obligations of State Party to UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970) prior to Australia acceding to Convention - Where s 14(1) of Act provides that "protected object of a foreign country" may be liable to forfeiture - Whether s 14(1) renders liable to forfeiture protected object of a foreign country unlawfully exported from that country before commencement of Act.
WORDS AND PHRASES - "archaeological artefact", "context", "cultural property", "exportation of cultural property", "extrinsic material", "forfeiture", "has been exported", "import of cultural property", "modern approach to statutory interpretation", "movable cultural heritage", "obligations of a State Party", "ordinary language", "presumption against redundant words", "presumption against surplusage", "protected object of a foreign country", "redundant words", "statutory construction", "statutory purpose", "syntax", "temporal operation", "unlawful exportation".
Protection of Movable Cultural Heritage Act 1986 (Cth), Pts II, V, ss 3, 7, 8, 9, 10, 12, 14, 27, 28, 34, 37, 38, 41.
Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB.
Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970), Arts 1, 2, 5, 6, 7, 15.
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES - Land rights - Claimable Crown lands - Where land claimed under s 36(2) of Aboriginal Land Rights Act 1983 (NSW) ("Act") subject to lease granted by Crown - Where lessee had not undertaken purposeful activity on land - Where "claimable Crown lands" in s 36(1) of Act means lands vested in Crown that are "not lawfully used" - Whether land "lawfully used" for purpose of s 36(1)(b) of Act merely because land subject to existing lease from Crown.
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES - Land rights - Claimable Crown lands - Where land claimed under s 36(2) of Aboriginal Land Rights Act 1983 (NSW) ("Act") subject to lease granted by Crown - Where lessee had not undertaken purposeful activity on land - Where "claimable Crown lands" in s 36(1) of Act means lands vested in Crown that are "not lawfully used" - Whether land "lawfully used" for purpose of s 36(1)(b) of Act merely because land subject to existing lease from Crown.
WORDS AND PHRASES - "actual use", "claimable Crown lands", "constructive use", "Crown lands", "doctrine of concurrent leases", "estate or interest in land", "exploitation of rights to land", "land", "land claim", "land vested", "lands", "lands vested", "lawfully used or occupied", "lease", "occupation", "occupied", "physical area", "possession", "purposeful interaction", "remedial or beneficial legislation", "reversionary interest", "rights to land", "rights to the physical area", "used", "vested".
Aboriginal Land Rights Act 1983 (NSW), Pt 2, ss 4(1), 36, Sch 4, cl 8.
Conveyancing Act 1919 (NSW), ss 7(1), 117, 118, 119.
Crown Land Management Act 2016 (NSW), ss 1.5(1), 1.7(a), 1.10, 1.12, 3.3, 3.13(1).
Crown Lands Act 1989 (NSW), ss 3(1), 80(1), 87(1), Sch 7.
Crown Lands Consolidation Act 1913 (NSW), s 5(1).
Interpretation Act 1987 (NSW), ss 3(3), 5, 6, 8(c), 13, 68(3), Sch 4.
Native Title Act 1993 (Cth), ss 10, 184, 186(1)(e), 223(1), 225, 253.
Real Property Act 1900 (NSW), ss 3(1)(a), 13(2), 13D, 13J, 40(3), 42(1), 46C.
IMMIGRATION - Visas - Ministerial directions under s 499(1) of Migration Act 1958 (Cth) - Where delegate of Minister refused to grant appellant partner visa on character grounds - Where ministerial direction in force at time of refusal was Direction 65 - Where Direction 65 subsequently revoked - Where appellant applied to then Administrative Appeals Tribunal ("Tribunal") for review of delegate's decision - Where Direction 90 in force at time of Tribunal's decision - Where Tribunal applied Direction 90 and not Direction 65 - Whether Tribunal was required to comply with direction in force at time of its decision - Whether appellant had accrued right to have Tribunal determine his review in accordance with direction in force at time of delegate's decision.
IMMIGRATION - Visas - Ministerial directions under s 499(1) of Migration Act 1958 (Cth) - Where delegate of Minister refused to grant appellant partner visa on character grounds - Where ministerial direction in force at time of refusal was Direction 65 - Where Direction 65 subsequently revoked - Where appellant applied to then Administrative Appeals Tribunal ("Tribunal") for review of delegate's decision - Where Direction 90 in force at time of Tribunal's decision - Where Tribunal applied Direction 90 and not Direction 65 - Whether Tribunal was required to comply with direction in force at time of its decision - Whether appellant had accrued right to have Tribunal determine his review in accordance with direction in force at time of delegate's decision.
WORDS AND PHRASES - "accrued right", "affected Act", "character grounds", "family violence", "laws governing the exercise of powers and discretions", "legislative instrument", "merits review", "ministerial direction", "repeal or amendment", "time of the decision under review", "time of the exercise of the relevant function or power".
Acts Interpretation Act 1901 (Cth), ss 7(2), 46(1)(a).
Administrative Appeals Tribunal Act 1975 (Cth), ss 25, 43(1).
Legislation Act 2003 (Cth), s 13(1)(a).
Migration Act 1958 (Cth), ss 496, 499, 500(1), 501(1).
IMMIGRATION - Visas - Cancellation of visa - Where plaintiff held Temporary Protection (Class XD) (subclass 785) visa ("TPV") - Where plaintiff's TPV mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) ("Act") following conviction and imprisonment for offence - Where plaintiff made representations about reasons why mandatory cancellation of TPV should be revoked under s 501CA(4) of Act but Minister's delegate decided not to revoke cancellation - Where plaintiff released from immigration detention - Where plaintiff incorrectly believed cancellation of TPV revoked when plaintiff released under Bridging R (Class WR) (subclass 070) (Bridging (Removal Pending)) visa ("BVR") - Where BVR ceased pursuant to s 76AAA of Act when Republic of Nauru granted plaintiff permission to enter and remain - Where documents plaintiff gave Department of Home Affairs in support of representations included legal advice subject to legal professional privilege - Where delegate read and quoted from legal advice in delegate's reasons - Whether necessary in interests of administration of justice to grant extension of time under s 486A(2) of Act - Whether non-revocation decision void for jurisdictional error - Whether delegate did not properly confront legal consequences of non-revocation decision as required by Ministerial Direction 110 - Whether delegate misapplied para 8.5 of Ministerial Direction 110 - Whether use of legal advice by delegate without notice to plaintiff denied plaintiff procedural fairness or legally unreasonable.
IMMIGRATION - Visas - Cancellation of visa - Where plaintiff held Temporary Protection (Class XD) (subclass 785) visa ("TPV") - Where plaintiff's TPV mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) ("Act") following conviction and imprisonment for offence - Where plaintiff made representations about reasons why mandatory cancellation of TPV should be revoked under s 501CA(4) of Act but Minister's delegate decided not to revoke cancellation - Where plaintiff released from immigration detention - Where plaintiff incorrectly believed cancellation of TPV revoked when plaintiff released under Bridging R (Class WR) (subclass 070) (Bridging (Removal Pending)) visa ("BVR") - Where BVR ceased pursuant to s 76AAA of Act when Republic of Nauru granted plaintiff permission to enter and remain - Where documents plaintiff gave Department of Home Affairs in support of representations included legal advice subject to legal professional privilege - Where delegate read and quoted from legal advice in delegate's reasons - Whether necessary in interests of administration of justice to grant extension of time under s 486A(2) of Act - Whether non-revocation decision void for jurisdictional error - Whether delegate did not properly confront legal consequences of non-revocation decision as required by Ministerial Direction 110 - Whether delegate misapplied para 8.5 of Ministerial Direction 110 - Whether use of legal advice by delegate without notice to plaintiff denied plaintiff procedural fairness or legally unreasonable.
WORDS AND PHRASES - "certiorari", "constitutional writs", "expectations of the Australian community", "extension of time", "immigration detention", "irrational or unreasonable", "jurisdictional error", "legal advice", "legal consequences of decision", "legal professional privilege", "mandamus", "mandatory cancellation", "necessary in the interests of the administration of justice", "no real prospect of removal", "non-refoulement", "non-revocation", "practical injustice", "procedural fairness", "protection finding", "protection visa", "refugee", "relevant adverse material".
Judiciary Act 1903 (Cth), s 44.
Migration Act 1958 (Cth), ss 36(2)(a), 76AAA, 189, 195A, 197C(5)(a), 476(2), 476A, 486A, 499(2A), 501(3A), 501CA(4).
Migration Regulations 1994 (Cth), regs 2.08F, 2.20(18), 2.25AA(2), 2.25AB, Sch 2, cll 070.612(1), 070.612A(1).
APPEAL - Criminal Procedure Act 2009, s 272 - Question of law - Whether Magistrate found applicant guilty of refusing to provide a sample of oral fluid or refusing to accompany - Whether Magistrate conflated refusing to provide a sample and refusing to accompany - Whether judge correct to conclude evidence was capable of proving elements of offence - Evidence not capable of proving elements of offence - Leave to appeal granted - Appeal allowed - Judge's orders set aside - Magistrate's order quashed.
APPEAL - Criminal Procedure Act 2009, s 272 - Question of law - Whether Magistrate found applicant guilty of refusing to provide a sample of oral fluid or refusing to accompany - Whether Magistrate conflated refusing to provide a sample and refusing to accompany - Whether judge correct to conclude evidence was capable of proving elements of offence - Evidence not capable of proving elements of offence - Leave to appeal granted - Appeal allowed - Judge's orders set aside - Magistrate's order quashed.
Criminal Procedure Act 2009, s 272; Evidence Act 2008, s 65; Road Safety Act 1986, ss 49(1)(eb), 55E(2).
Hrysikos v Mansfield (2002) 5 VR 485; Muscat v Magistrates' Court of Victoria (2018) 59 VR 570, considered - GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; Moore (a pseudonym) v The King (2024) 419 ALR 169, applied.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Respondent convicted of aggravated burglary, contravention of family violence intervention order and summary offences - Whether individual sentence for aggravated burglary inadequate - Whether total effective sentence inadequate - High gravity of offending against former partner - Where respondent did not take prescribed medicine and consumed alcohol - Previous offending under similar circumstances - Whether Verdins limbs 3 and 4 apply - Sentence on aggravated burglary manifestly inadequate - Total effective sentence manifestly inadequate - Appeal allowed - Respondent resentenced.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Respondent convicted of aggravated burglary, contravention of family violence intervention order and summary offences - Whether individual sentence for aggravated burglary inadequate - Whether total effective sentence inadequate - High gravity of offending against former partner - Where respondent did not take prescribed medicine and consumed alcohol - Previous offending under similar circumstances - Whether Verdins limbs 3 and 4 apply - Sentence on aggravated burglary manifestly inadequate - Total effective sentence manifestly inadequate - Appeal allowed - Respondent resentenced.
Crimes Act 1958; Criminal Procedure Act 2009, s 287.
DPP v Karazisis (2010) 31 VR 634, followed.
Dinsdale v The Queen (2000) 202 CLR 321; DPP v Meyers (2014) 44 VR 486; Leimonitis v The Queen [2018] VSCA 198; Skeates (a pseudonym) v The King [2023] VSCA 226, referred to.
CRIMINAL LAW - Appeal - Conviction - Rape - Whether verdict of the jury unreasonable or cannot be supported having regard to the evidence - Open to the jury to accept evidence of contemporaneous complaint supporting complainant - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Rape - Whether verdict of the jury unreasonable or cannot be supported having regard to the evidence - Open to the jury to accept evidence of contemporaneous complaint supporting complainant - Leave to appeal refused.
CRIMINAL LAW - Interlocutory appeal - Review of refusal to certify - Historical sexual offences - Five complainants were students at school where applicant was teacher - Delay of 36 to 46 years since alleged offending - Witnesses deceased - Documentary evidence lost - Evidence - Trial judge refused permanent stay - Trial judge refused to certify for interlocutory appeal - Leave to appeal granted - Appeal allowed - Permanent stay ordered.
CRIMINAL LAW - Interlocutory appeal - Review of refusal to certify - Historical sexual offences - Five complainants were students at school where applicant was teacher - Delay of 36 to 46 years since alleged offending - Witnesses deceased - Documentary evidence lost - Evidence - Trial judge refused permanent stay - Trial judge refused to certify for interlocutory appeal - Leave to appeal granted - Appeal allowed - Permanent stay ordered.
Criminal Procedure Act 2009, ss 295, 296.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURUSANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURUSANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
CRIMINAL LAW - Appeal - Sentence - Applicant convicted of child sex offences and child abuse material offence - Sexual penetration of child under 12 not established on complainant's evidence - Applicant admitted to sexual penetration in police interview - Whether sentence is manifestly excessive- Whether disclosure of offending given sufficient weight - Appropriate weight given to *Doran *discount - Principle of totality correctly applied - Order of cumulation well within range - Leave to appeal refused.
R v CLP [2008] VSCA 113; Doran v The Queen [2005] VSCA 271; DPC v The Queen [2011] VSCA 395; JBM v The Queen [2013] VSCA 69, discussed.
Goh v The Queen [2022] VSCA 24; Mush v The Queen [2019] VSCA 307; Ryan v The Queen (2001) CLR 267, referred to.
CRIMINAL LAW - Sentence - Application for leave to appeal - Recklessly causing serious injury - Applicant headbutted, punched, kneed and elbowed victim at nightclub - Applicant had previous martial arts training - Whether judge erred in placing weight on martial arts training - Whether martial arts training aggravating factor - No procedural unfairness - Martial arts training a relevant factor in sentencing - Leave to appeal refused.
CRIMINAL LAW - Sentence - Application for leave to appeal - Recklessly causing serious injury - Applicant headbutted, punched, kneed and elbowed victim at nightclub - Applicant had previous martial arts training - Whether judge erred in placing weight on martial arts training - Whether martial arts training aggravating factor - No procedural unfairness - Martial arts training a relevant factor in sentencing - Leave to appeal refused.
Elsayed v The Queen [2019] VSCA 113, referred to.
CRIMINAL LAW - Appeal - Conviction - Rape (8 charges), common assault (1 charge) - Relationship evidence - Other misconduct evidence - Whether prosecutor's address invited jury to engage in tendency reasoning - Whether judge's charge invited jury to engage in tendency reasoning, or did not adequately protect against risk jury might engage in tendency reasoning - Whether prosecutor reversed onus of proof - Whether judge's failure to give a direction required by s 27(2)(a) of Jury Directions Act 2015 gave rise to substantial miscarriage of justice - Appeal allowed - Retrial ordered.
CRIMINAL LAW - Appeal - Conviction - Rape (8 charges), common assault (1 charge) - Relationship evidence - Other misconduct evidence - Whether prosecutor's address invited jury to engage in tendency reasoning - Whether judge's charge invited jury to engage in tendency reasoning, or did not adequately protect against risk jury might engage in tendency reasoning - Whether prosecutor reversed onus of proof - Whether judge's failure to give a direction required by s 27(2)(a) of Jury Directions Act 2015 gave rise to substantial miscarriage of justice - Appeal allowed - Retrial ordered.
Jury Directions Act 2015, ss 12, 27 and 29.
CRIMINAL LAW - Interlocutory appeal - Refusal of permanent stay - Four charges of sexual penetration of child under 16 years, one charge of indecent assault and one charge of arson - Complainant aged between 9 and 15 and accused aged between 14 and 20 - Delay of 36 to 43 years since alleged offending - Delayed and inadequate four-year long police investigation - Issues with complainant's memory - Unavailable and deceased witnesses - Loss of documentary evidence - Whether trial judge erred in only ordering permanent stay of arson charge - Whether accused in intractable forensic position about whether to cross-examine complainant on circumstances of stayed arson charge - Whether lost evidence merely contextual and speculative - Whether disadvantage to accused capable of being addressed through directions and evidentiary rulings - Leave to appeal granted - Appeal dismissed.
CRIMINAL LAW - Interlocutory appeal - Refusal of permanent stay - Four charges of sexual penetration of child under 16 years, one charge of indecent assault and one charge of arson - Complainant aged between 9 and 15 and accused aged between 14 and 20 - Delay of 36 to 43 years since alleged offending - Delayed and inadequate four-year long police investigation - Issues with complainant's memory - Unavailable and deceased witnesses - Loss of documentary evidence - Whether trial judge erred in only ordering permanent stay of arson charge - Whether accused in intractable forensic position about whether to cross-examine complainant on circumstances of stayed arson charge - Whether lost evidence merely contextual and speculative - Whether disadvantage to accused capable of being addressed through directions and evidentiary rulings - Leave to appeal granted - Appeal dismissed.
Criminal Procedure Act 2009, s 295; Jury Directions Act 2015, s 39.
GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; Walton v Gardiner (1993) 177 CLR 378; Dupas v The Queen (2010) 241 CLR 237; Jago v District Court (NSW) (1989) 168 CLR 23; R v Edwards (2009) 255 ALR 399; Newell v The King [2025] VSCA 160; Buchanan (a pseudonym) v The King [No 2] [2024] VSCA 50; Ballard (a pseudonym) v The King [2024] VSCA 26; Hermanus (a pseudonym) v The Queen (2015) 44 VR 335; Lucciano (a pseudonym) v The Queen (2021) 287 A Crim R 529; Morton (a pseudonym) v The Queen [2020] VSCA 49; Kenny (a pseudonym) v The Queen [2018] VSCA 220; R v FJL (2014) 41 VR 672; Briggs (a pseudonym) v The King [2024] VSCA 80; Robbins (a pseudonym) v The Queen (2017) 269 A Crim R 244; Haynes (a pseudonym) v The King [2024] VSCA 207.
CRIMINAL LAW - Application for release from implied undertaking in Harman v Secretary of State for Home Department [1983] 1 AC 280 to enable use of documents for the purpose of immigration proceedings - Application for variation of orders made pursuant to s 43A of the Major Crime (Investigative Powers Act) 2004 to permit release of restricted evidence - Where producing party consents to release from implied and express confidentiality undertakings - Applicant released from Harman undertaking, and provided limited release from express undertaking - Where information restricted pursuant to the Major Crime (Investigative Powers Act) 2004 can only be considered for release in criminal proceedings and is therefore not available for consideration in the immigration proceedings of the applicant - Application for variation refused.
CRIMINAL LAW - Application for release from implied undertaking in Harman v Secretary of State for Home Department [1983] 1 AC 280 to enable use of documents for the purpose of immigration proceedings - Application for variation of orders made pursuant to s 43A of the Major Crime (Investigative Powers Act) 2004 to permit release of restricted evidence - Where producing party consents to release from implied and express confidentiality undertakings - Applicant released from Harman undertaking, and provided limited release from express undertaking - Where information restricted pursuant to the Major Crime (Investigative Powers Act) 2004 can only be considered for release in criminal proceedings and is therefore not available for consideration in the immigration proceedings of the applicant - Application for variation refused.
Criminal Procedure Act 2009, s 317; Major Crime (Investigative Powers) Act 2004, s 43A.
Madafferi v The Queen (2021) 287 A Crim R 380; Madafferi v The King [2023] VSCA 178; Madafferi v The King [2024] VSCA 12; Madafferi v The King [No 2] [2024] VSCA 14; Madafferi v The King [2025] VSCA 114; Jean Ross (a Pseudonym) v The Chief Commissioner of Police and the Chief Examiner (2014) 45 VR 220; Harman v Secretary of State for Home Department [1983] 1 AC 280; Hearne v Street [2008] HCA 36; Deputy Commissioner of Taxation v Karas [2012] VSC 143; Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217.
ADMINISTRATIVE LAW - Effect of order dismissing proceeding under s 78(2)(b)(i) of the Victorian Civil and Administrative Tribunal Act 1998 - Order sought by respondent/applicant by counterclaim in domestic building dispute - Conduct of applicant disadvantageous and prejudicial to respondent/applicant by counterclaim - Order found to have intended to dismiss both claim and counterclaim in proceeding - Victorian Civil and Administrative Tribunal Act 1998, ss 78(2)(b)(i), 120.
ADMINISTRATIVE LAW - Effect of order dismissing proceeding under s 78(2)(b)(i) of the Victorian Civil and Administrative Tribunal Act 1998 - Order sought by respondent/applicant by counterclaim in domestic building dispute - Conduct of applicant disadvantageous and prejudicial to respondent/applicant by counterclaim - Order found to have intended to dismiss both claim and counterclaim in proceeding - Victorian Civil and Administrative Tribunal Act 1998, ss 78(2)(b)(i), 120.
STATUTORY INTERPRETATION - Scope of power and meaning of 'proceeding' in s 78 of the Victorian Civil and Administrative Tribunal Act 1998 - Legislative intention to establish Tribunal as flexible, low-cost and informal forum to achieve just result in most efficient way - Purpose of provision to enable appropriate response to disadvantageous conduct by one party - Broad and flexible construction preferred - Victorian Civil and Administrative Tribunal Act 1998, s 78(2) - ACN 115 918 959 Pty Ltd (formerly known as Pearl Hill Pty Ltd) v Moulieris [2022] VSC 555; ACN 115 918 959 Pty Ltd (formerly known as Pearl Hill Pty Ltd) v Moulieris [2024] VSCA 71, considered.
ADMINISTRATIVE LAW - Whether appeal available from Tribunal reasons - No evidence of legislative intent to provide appeal from Tribunal's reasons for order - No appeal lies from Tribunal's reasons - Victorian Civil and Administrative Tribunal Act 1998, ss 117(6), 148(1) - Marke v Victoria Police [2021] VSC 483; Goodrich v Racing Victoria Racing Appeals and Disciplinary Board [2019] VSC 248; O'Bryan v Lindholm (2024) 74 VR 496, considered.
PRACTICE AND PROCEDURE - Applications for leave to intervene in proceeding - Applicants failed to file submissions that they proposed to make if application to intervene granted - Court not satisfied that applicants' contributions would assist in resolution of issues to be determined on appeal - Court not satisfied that participation of intervenors would not unreasonably interfere with conduct of proceeding - Applications for leave to intervene refused.
PRACTICE AND PROCEDURE - Applications for leave to intervene in proceeding - Applicants failed to file submissions that they proposed to make if application to intervene granted - Court not satisfied that applicants' contributions would assist in resolution of issues to be determined on appeal - Court not satisfied that participation of intervenors would not unreasonably interfere with conduct of proceeding - Applications for leave to intervene refused.
Supreme Court (General Civil Procedure) Rules 2015, r 64.10.
PRACTICE AND PROCEDURE - Filing - Power to direct Registrar to accept documents for filing - Registrar refused to accept documents for filing - Applicant sought review of Registrar's decision and judicial direction to Registrar to accept documents for filing - Documents were applications other than for leave to appeal - Documents mostly sought orders that the Court would not make - Documents mostly irregular, and/or frivolous or vexatious, and/or would give rise to abuse of process - Application for direction refused for most documents - Application for direction allowed in respect of two documents.
PRACTICE AND PROCEDURE - Filing - Power to direct Registrar to accept documents for filing - Registrar refused to accept documents for filing - Applicant sought review of Registrar's decision and judicial direction to Registrar to accept documents for filing - Documents were applications other than for leave to appeal - Documents mostly sought orders that the Court would not make - Documents mostly irregular, and/or frivolous or vexatious, and/or would give rise to abuse of process - Application for direction refused for most documents - Application for direction allowed in respect of two documents.
Supreme Court (General Civil Procedure) Rules 2015, rr 64.13, 64.43.
PRACTICE AND PROCEDURE - Appeal - Judicial review of decision by Victoria Legal Aid to refuse grant of legal aid as originating process - Respondent sought summary dismissal of judicial review application - Proceeding delayed for two years as a result of applicant's numerous unmeritorious interlocutory applications - Applicant appealed to single judge of the Supreme Court against timetabling orders of Associate Justice and Judicial Registrars - Applicant raised unintelligible constitutional questions - Applicant sought to transfer proceedings to another Court - Applicant made entirely unfounded accusations of bias against primary judge - Application totally without merit - Leave to appeal refused.
PRACTICE AND PROCEDURE - Appeal - Judicial review of decision by Victoria Legal Aid to refuse grant of legal aid as originating process - Respondent sought summary dismissal of judicial review application - Proceeding delayed for two years as a result of applicant's numerous unmeritorious interlocutory applications - Applicant appealed to single judge of the Supreme Court against timetabling orders of Associate Justice and Judicial Registrars - Applicant raised unintelligible constitutional questions - Applicant sought to transfer proceedings to another Court - Applicant made entirely unfounded accusations of bias against primary judge - Application totally without merit - Leave to appeal refused.
Guardianship and Administration Act 2019 s 179; Civil Procedure Act 2010 ss 7(1), 9(1); Jurisdiction of Courts (Cross-vesting) Act 1987; Judiciary Act 1903 (Cth) s 78B(1).
South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16; Davies v The Queen [2019] VSCA 66, applied.
CONTRACTS - Construction - Objective intention of parties - Reasonable businessperson - Uncommercial outcome - Where parties entered into share sale agreement - Applicant agreed to buy shares held by respondent owning copper mine - As a result applicant held all shares in entity owning copper mine - Where share sale agreement required applicant to make upfront and earnout payments - Earnout payment conditional on aggregate of all cash returns payable to investors in applicant - Parties entered into share mortgage to secure applicant's obligations under share sale agreement - Applicant sold all shares to third respondent - Third respondent also held other mining assets - Third respondent sold shares in initial public offering and issued shares to applicant - Sellers purported to appoint receivers over applicant's shares in third respondent - Whether earnout payment depended on cash returns relating to broader group of investors in applicant - Whether terms of share mortgage required earnout payment to be paid into escrow at the time of the initial public offering - Leave to appeal granted - Appeal allowed.
CONTRACTS - Construction - Objective intention of parties - Reasonable businessperson - Uncommercial outcome - Where parties entered into share sale agreement - Applicant agreed to buy shares held by respondent owning copper mine - As a result applicant held all shares in entity owning copper mine - Where share sale agreement required applicant to make upfront and earnout payments - Earnout payment conditional on aggregate of all cash returns payable to investors in applicant - Parties entered into share mortgage to secure applicant's obligations under share sale agreement - Applicant sold all shares to third respondent - Third respondent also held other mining assets - Third respondent sold shares in initial public offering and issued shares to applicant - Sellers purported to appoint receivers over applicant's shares in third respondent - Whether earnout payment depended on cash returns relating to broader group of investors in applicant - Whether terms of share mortgage required earnout payment to be paid into escrow at the time of the initial public offering - Leave to appeal granted - Appeal allowed.
CONTRACTS - Construction - Extrinsic evidence - Where clause of share sale agreement providing for payment drafted in ambiguous terms - Where share mortgage provided for share sale agreement payments into escrow - Whether drafting history relevant to interpreting share sale agreement and share mortgage - Where definitions adopted in earlier drafts rejected in later drafts - Whether terms sheet setting out early in-principle agreement relevant to interpreting agreements.
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; Cherry v Steele- Park (2017) 96 NSWLR 548; Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522; SAS (Vic) Pty Ltd v Urban Ecological Systems Ltd [2021] VSCA 335, applied.
MCA International BV v Northern Star Holdings Ltd (Receivers and Managers Appointed) (1991) 4 ACSR 719; Esso Australia Ltd v Australian Petroleum Agents' & Distributors' Association [1999] 3 VR 642; Lodge Partners Pty Ltd v Pegum [2009] FCA 519, applied.
CONTRACT - Construction and interpretation of lease - Force majeure provisions - Whether legislative instruments enacted in response to COVID-19 constituted a Force Majeure Event - Whether lessees ability to operate the business materially and adversely affected - Whether lessee determined to suspend operation of the business - Whether compliance with notice provisions in the lease - Lessee not entitled to abate the rent - Calculation of abatement not in accordance with the lease - Whether lessee entitled to terminate lease - Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37; World Touring Melbourne Ltd v Australian Grand Prix Corporation [2024] VSC 521, referred to - International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151; [2008] HCA 3, applied.
CONTRACT - Construction and interpretation of lease - Force majeure provisions - Whether legislative instruments enacted in response to COVID-19 constituted a Force Majeure Event - Whether lessees ability to operate the business materially and adversely affected - Whether lessee determined to suspend operation of the business - Whether compliance with notice provisions in the lease - Lessee not entitled to abate the rent - Calculation of abatement not in accordance with the lease - Whether lessee entitled to terminate lease - Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37; World Touring Melbourne Ltd v Australian Grand Prix Corporation [2024] VSC 521, referred to - International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151; [2008] HCA 3, applied.
DAMAGES - Whether lessor suffered loss due to lessees wrongful termination of the Lease - Causation - Property sold with vacant possession - Decision to sell independent intervening act - Counterfactual - Future sale at specific dates with lease in place not proved - Expert evidence of loss - Adopted yields not satisfactorily proved - Chand v Commonwealth Bank of Australia [2015] NSWCA 181; Johnson v Perez (1988) 166 CLR 351; [1988] HCA 64, 597, applied.
INJUNCTION - Interlocutory Injunction - Application to restrain appointment of receivers - No serious question to be tried - Balance of convenience against injunctive relief being granted given undertaking to make a limited appointment.
INJUNCTION - Interlocutory Injunction - Application to restrain appointment of receivers - No serious question to be tried - Balance of convenience against injunctive relief being granted given undertaking to make a limited appointment.
REPRESENTATIVE PROCEEDINGS - Part 4A Group proceeding - Settlement approved - Approval for payment of legal costs from settlement sum - Whether group costs order should be varied - Necessary or appropriate that group costs order should be varied - Supreme Court Act 1986 (Vic) Part 4A, ss 33ZDA(1), (3) - Allen v G8 Education Ltd (No 4) [2024] VSC 487, applied.
REPRESENTATIVE PROCEEDINGS - Part 4A Group proceeding - Settlement approved - Approval for payment of legal costs from settlement sum - Whether group costs order should be varied - Necessary or appropriate that group costs order should be varied - Supreme Court Act 1986 (Vic) Part 4A, ss 33ZDA(1), (3) - Allen v G8 Education Ltd (No 4) [2024] VSC 487, applied.
RESTITUTION - Claim for monies had and received - Whether roaming fee withheld under contract exceeded statutory cap.
RESTITUTION - Claim for monies had and received - Whether roaming fee withheld under contract exceeded statutory cap.
RESTITUTIONARY INTEREST - Whether entitled at common law - Whether entitled in equity - Whether free-standing right to compound interest exists at common law - Northern Territory v Griffiths (2019) 269 CLR 1 applied.
CORPORATIONS - Statutory demand - Application to set aside under s 459H of Corporations Act 2001 (Cth) - Whether there is a genuine dispute as to whether the debt is due and payable - Where no dispute as to the quantum of the debt - Whether there is sufficient evidence as to an alleged oral agreement to defer payment - Whether Court may entertain alternative arguments by a defendant which assume that genuine dispute has been established - Whether it is appropriate to subpoena documents in support of an alternative argument - Corporations Act 2001 (Cth), ss 459H(1)(a), 459H(3).
CORPORATIONS - Statutory demand - Application to set aside under s 459H of Corporations Act 2001 (Cth) - Whether there is a genuine dispute as to whether the debt is due and payable - Where no dispute as to the quantum of the debt - Whether there is sufficient evidence as to an alleged oral agreement to defer payment - Whether Court may entertain alternative arguments by a defendant which assume that genuine dispute has been established - Whether it is appropriate to subpoena documents in support of an alternative argument - Corporations Act 2001 (Cth), ss 459H(1)(a), 459H(3).
CORPORATIONS - Oppression proceeding - Company a special purpose vehicle for property development - Property sold by mortgagee in possession - Whether affixing signatures on loan documents and removing director from ASIC register amounts to oppressive conduct against a member - Conduct admitted by director of defendant company - Application to wind up - No assets held - Unable to pay debt owing to lender - Relief granted - Re Dawning Investments Pty Ltd (2022) 68 VR 226 - Trafalga West Investments Pty Ltd v Superior Lawns Australia Pty Ltd (No 6) (2014) 102 ACSR 130 - Liu v Gan (No 2) [2025] VSC 372 - Briginshaw v Briginshaw (1938) 60 CLR 336 - Re SRW Nominees Pty Ltd [2019] VSC 547 - Corporations Act 2001 (Cth), ss 232, 233, 461, 467.
CORPORATIONS - Oppression proceeding - Company a special purpose vehicle for property development - Property sold by mortgagee in possession - Whether affixing signatures on loan documents and removing director from ASIC register amounts to oppressive conduct against a member - Conduct admitted by director of defendant company - Application to wind up - No assets held - Unable to pay debt owing to lender - Relief granted - Re Dawning Investments Pty Ltd (2022) 68 VR 226 - Trafalga West Investments Pty Ltd v Superior Lawns Australia Pty Ltd (No 6) (2014) 102 ACSR 130 - Liu v Gan (No 2) [2025] VSC 372 - Briginshaw v Briginshaw (1938) 60 CLR 336 - Re SRW Nominees Pty Ltd [2019] VSC 547 - Corporations Act 2001 (Cth), ss 232, 233, 461, 467.
EVIDENCE - Evaluation of witness evidence - Most compelling evidence is contemporaneous documentation - Assessment of credit - Indicators of unsatisfactory witness evidence - LL Up Pty Ltd v Kegland Distribution Pty Ltd [2024] VSC 651.
CORPORATIONS - Personal Property Securities Act 2009 (Cth) - Security interests - Purchase money security interests - Lease of livestock and machinery - Failure to register within prescribed time - Where failure to register due to inadvertence - Application to fix later time for registration - Whether discretion should be exercised - Company in liquidation - Crystallised rights of unsecured creditors - Substantial delay in registration - Prejudice to creditors - Corporations Act 2001 (Cth) s 588FM.
CORPORATIONS - Personal Property Securities Act 2009 (Cth) - Security interests - Purchase money security interests - Lease of livestock and machinery - Failure to register within prescribed time - Where failure to register due to inadvertence - Application to fix later time for registration - Whether discretion should be exercised - Company in liquidation - Crystallised rights of unsecured creditors - Substantial delay in registration - Prejudice to creditors - Corporations Act 2001 (Cth) s 588FM.
PRACTICE AND PROCEDURE - Pleadings - Leave to amend Statement of Claim - Proceeding commenced by generally indorsed writ - Whether proposed amendments otherwise statute barred are outside the perimeter or range of the indorsement - Whether leave should be given to amend to rely on statute barred causes of action - Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 36.01(1), (6); Limitations of Actions Act 1958 (Vic) s 34 - Renowden v McMullin (1970) 123 CLR 584; Hepi v Toyota Finance Limited [2025] VSC 121, applied; Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield (2003) 7 VR 63; Commonwealth of Australia v Winston (2024) 116 NSWLR 111, referred to.
PRACTICE AND PROCEDURE - Pleadings - Leave to amend Statement of Claim - Proceeding commenced by generally indorsed writ - Whether proposed amendments otherwise statute barred are outside the perimeter or range of the indorsement - Whether leave should be given to amend to rely on statute barred causes of action - Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 36.01(1), (6); Limitations of Actions Act 1958 (Vic) s 34 - Renowden v McMullin (1970) 123 CLR 584; Hepi v Toyota Finance Limited [2025] VSC 121, applied; Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield (2003) 7 VR 63; Commonwealth of Australia v Winston (2024) 116 NSWLR 111, referred to.
PRACTICE AND PROCEDURE - Ex parte freezing order - Ancillary orders - Whether there is a good arguable case - Whether there is a risk of dissipation of assets - Whether balance of convenience favours grant of order - Where defendant employed by plaintiff - Where defendant transferred assets from the plaintiff to business he owned - Re Memon Bros Pty Ltd [2025] VSC 47 - Distinctive FX Pty Ltd v Wright [2015] VSC 299 - Application granted.
PRACTICE AND PROCEDURE - Ex parte freezing order - Ancillary orders - Whether there is a good arguable case - Whether there is a risk of dissipation of assets - Whether balance of convenience favours grant of order - Where defendant employed by plaintiff - Where defendant transferred assets from the plaintiff to business he owned - Re Memon Bros Pty Ltd [2025] VSC 47 - Distinctive FX Pty Ltd v Wright [2015] VSC 299 - Application granted.
CONTRACTS - Provision of clinical research services - Performance of services pursuant to contract - Payment not received - Action in debt.
CONTRACTS - Provision of clinical research services - Performance of services pursuant to contract - Payment not received - Action in debt.
CORPORATIONS - Application for leave to continue proceedings against a company in liquidation - Whether leave should be granted - Leave granted - Corporations Act 2001 (Cth), s 500(2).
PRACTICE AND PROCEDURE - Security for costs - Counterclaim stayed due to failure to provide security for costs - Discretion to dismiss - Counterclaim dismissed - Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 62.04.
PRACTICE AND PROCEDURE - Judgment in foreign currency - Conversion to Australian currency as at the date of judgment - Election.
PRACTICE AND PROCEDURE - Pre-judgment interest - Whether pre-judgment interest to be applied at the rate fixed under the Penalty Interest Rates Act 1983 (Vic) - Supreme Court Act 1986 (Vic), s 58.
WILLS AND ESTATES - Application by plaintiff for a grant of probate - Caveat filed by defendant to oppose grant - Plaintiff's application to strike out caveat on the basis that there is no prima facie case - No prima facie case for objection demonstrated - Caveat struck out.
WILLS AND ESTATES - Application by plaintiff for a grant of probate - Caveat filed by defendant to oppose grant - Plaintiff's application to strike out caveat on the basis that there is no prima facie case - No prima facie case for objection demonstrated - Caveat struck out.
HUMAN TISSUE REMOVAL - Urgent application for an order granting the removal of spermatozoa and associated tissue from body of deceased domestic partner - Limited power to make such an order - Court itself has no power to authorise removal - Declaratory powers of the Court in the circumstances - Whether Plaintiff was 'senior available next of kin' for the purposes of s 26 of the Human Tissue Act 1982 (Vic) - Whether the purposes of the procedure amounts to 'medical purposes' - Declaration made that the Plaintiff was 'senior available next of kin' and consent could be given - Declaration that the Defendant was authorised to remove spermatozoa and associated tissue from the body of the deceased - Human Tissue Act 1982 (Vic) ss 3, 26 - Relationships Act 2008 (Vic) s 35 - Y v Austin Health [2005] VSC 427 - P v Melbourne Health [2019] VSC 500, applied.
HUMAN TISSUE REMOVAL - Urgent application for an order granting the removal of spermatozoa and associated tissue from body of deceased domestic partner - Limited power to make such an order - Court itself has no power to authorise removal - Declaratory powers of the Court in the circumstances - Whether Plaintiff was 'senior available next of kin' for the purposes of s 26 of the Human Tissue Act 1982 (Vic) - Whether the purposes of the procedure amounts to 'medical purposes' - Declaration made that the Plaintiff was 'senior available next of kin' and consent could be given - Declaration that the Defendant was authorised to remove spermatozoa and associated tissue from the body of the deceased - Human Tissue Act 1982 (Vic) ss 3, 26 - Relationships Act 2008 (Vic) s 35 - Y v Austin Health [2005] VSC 427 - P v Melbourne Health [2019] VSC 500, applied.
JUDICIAL REVIEW AND APPEALS LIST - Judicial review of a family violence final intervention order - Plaintiff's appeal of a County Court order from a rehearing of a County Court appeal - Error alleged on the basis of jurisdictional error, errors of law, denial of procedural fairness and breach of natural justice - Standing of Victoria Police officers in subsequent applications under Family Violence Protection Act 2008 (Vic) - Definition of a 'party' to proceedings under the FVP Act - Appeal dismissed - Nathanson v Minister for Home Affairs (2022) 276 CLR 80 - Family Violence Protection Act 2008 (Vic) ss 108, 120.
JUDICIAL REVIEW AND APPEALS LIST - Judicial review of a family violence final intervention order - Plaintiff's appeal of a County Court order from a rehearing of a County Court appeal - Error alleged on the basis of jurisdictional error, errors of law, denial of procedural fairness and breach of natural justice - Standing of Victoria Police officers in subsequent applications under Family Violence Protection Act 2008 (Vic) - Definition of a 'party' to proceedings under the FVP Act - Appeal dismissed - Nathanson v Minister for Home Affairs (2022) 276 CLR 80 - Family Violence Protection Act 2008 (Vic) ss 108, 120.
LIMITATION OF ACTIONS - Transport accident - Application to extend time within which to commence proceeding under s 23A of the Limitation of Actions Act 1958 (Vic) - Reasonableness and credibility of the plaintiff's explanation for failing to issue the proceeding within the limitation period - Assessment of adequacy of explanation must take into account applicant's personal attributes and circumstances - Prejudice to the defendant resulting from delay - Griffiths v Nillumbik Shire Council [2022] VSCA 212, Prince Alfred College Incorporated v ADC (2016) 258 CLR 134 and Hunt v Holcombe [2018] VSCA 248 referred to - Just and reasonable in the circumstances to extend the limitation period - Application granted.
LIMITATION OF ACTIONS - Transport accident - Application to extend time within which to commence proceeding under s 23A of the Limitation of Actions Act 1958 (Vic) - Reasonableness and credibility of the plaintiff's explanation for failing to issue the proceeding within the limitation period - Assessment of adequacy of explanation must take into account applicant's personal attributes and circumstances - Prejudice to the defendant resulting from delay - Griffiths v Nillumbik Shire Council [2022] VSCA 212, Prince Alfred College Incorporated v ADC (2016) 258 CLR 134 and Hunt v Holcombe [2018] VSCA 248 referred to - Just and reasonable in the circumstances to extend the limitation period - Application granted.
PROPERTY LAW - Equitable estoppel - Whether plaintiff has an equitable interest in the family home - Whether clear and unequivocal promise - Whether mortgage payments made in reliance on a promise - Whether plaintiff acted to her detriment- Kramer v Stone (2024) 421 ALR 106.
PROPERTY LAW - Equitable estoppel - Whether plaintiff has an equitable interest in the family home - Whether clear and unequivocal promise - Whether mortgage payments made in reliance on a promise - Whether plaintiff acted to her detriment- Kramer v Stone (2024) 421 ALR 106.
BAILMENT - Whether breach of bailment by non-delivery or delivery in a damaged condition - Whether goods abandoned - Banks v Ferrari [2000] NSWSC 874.
EQUITY - Bank transactions made by daughter using elderly mother's funds - Whether fiduciary relationship in existence - Scope of fiduciary relationship - Whether duty to account - Evidentiary onus of proof - Whether breach of fiduciary duty - Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 - Breen v Williams (1996) 186 CLR 71 - Hrycenko v Hrycenko [2019] VSC 700.
LIMITATION OF ACTIONS - Alleged assault in context of family violence - Claim brought 12 years after alleged assault - Nature of injury suffered - Whether just and reasonable to extend limitation period - Limitation of Actions Act 1958 s 27K.
OPEN COURTS - Parens patriae jurisdiction - Child in the care of the Secretary to the Department of Families, Fairness and Housing - Housed in secure welfare service - Application for further hearings to be conducted in closed court - Inherent jurisdiction - Open Courts Act 2013 (Vic), ss 28, 29 - Application dismissed.
OPEN COURTS - Parens patriae jurisdiction - Child in the care of the Secretary to the Department of Families, Fairness and Housing - Housed in secure welfare service - Application for further hearings to be conducted in closed court - Inherent jurisdiction - Open Courts Act 2013 (Vic), ss 28, 29 - Application dismissed.
ADMINISTRATION AND PROBATE - Application for declaration of relationship between a person and a child and to direct the correction of a birth record - Status of Children Act 1974 (Vic), s 10 - Births, Deaths and Marriages Registration Act 1996 (Vic), s 43 - Standard of proof - Reliance on circumstantial evidence to establish relationship - Release from implied undertaking to rely on affidavit adduced in another proceeding - Reliance on hearsay evidence - Absence of DNA evidence.
ADMINISTRATION AND PROBATE - Application for declaration of relationship between a person and a child and to direct the correction of a birth record - Status of Children Act 1974 (Vic), s 10 - Births, Deaths and Marriages Registration Act 1996 (Vic), s 43 - Standard of proof - Reliance on circumstantial evidence to establish relationship - Release from implied undertaking to rely on affidavit adduced in another proceeding - Reliance on hearsay evidence - Absence of DNA evidence.
CIVIL PROCEDURE - Application by second defendant for summary judgment pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (Vic) - Whether the claim enjoys real prospect of success - Application dismissed - Plaintiff's claim enjoys a real prospect of success and raises factual disputes that should be examined and determined at trial.
CIVIL PROCEDURE - Application by second defendant for summary judgment pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (Vic) - Whether the claim enjoys real prospect of success - Application dismissed - Plaintiff's claim enjoys a real prospect of success and raises factual disputes that should be examined and determined at trial.
EQUITY AND TRUSTS - Liability of third party for procuring or inducing breach of trust or breach of fiduciary duty - Whether such liability exists as a separate form of liability to those established by the two limbs in Barnes v Addy (1874) LR 9 Ch App 244 - Whether requirement that third party be 'dishonest'.
LITIGATION GUARDIAN - Removal of litigation guardian under r 15.03(4)(a) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Conflict of interest - Where a defendant is litigation guardian of another defendant in proceeding.
CIVIL PROCEDURE - Application for use of single joint expert - Operation of s 65L of the Civil Procedure Act 2010 (Vic) - Appointment of joint expert to produce common data for analysis by parties' individual experts - Whether a joint expert is required to be engaged by all parties - Applicability of noise evidence to loss and damage arguments in claims other than nuisance - Whether all parties should share the cost of a single joint expert process if not all parties intend to make use of it - Utility of joint expert process where it binds all parties - Efficiencies and savings in the proceeding overall outweighing prejudice arising - All parties required to engage a single joint expert.
CIVIL PROCEDURE - Application for use of single joint expert - Operation of s 65L of the Civil Procedure Act 2010 (Vic) - Appointment of joint expert to produce common data for analysis by parties' individual experts - Whether a joint expert is required to be engaged by all parties - Applicability of noise evidence to loss and damage arguments in claims other than nuisance - Whether all parties should share the cost of a single joint expert process if not all parties intend to make use of it - Utility of joint expert process where it binds all parties - Efficiencies and savings in the proceeding overall outweighing prejudice arising - All parties required to engage a single joint expert.
CIVIL PROCEDURE - Transport Accident Compensation scheme - Claim brought under s 104 of the Transport Accident Act 1986 (Vic) for indemnification for amounts paid - Application for further discovery of documents in related common law damages proceeding - Indemnity proceeding pursued years after the finalisation of the common law proceeding - Operation of s 126B of the Transport Accident Act 1986 (Vic) - Documents produced or served or information acquired under or in accordance with the Act - Implied undertaking to the Court from Hearne v Street and Harman v Secretary of State for the Home Department - Rule 29.08(2) Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Whether the claimant is on notice of the application - Privacy and confidentiality of medical records - Application partially successful.
CIVIL PROCEDURE - Transport Accident Compensation scheme - Claim brought under s 104 of the Transport Accident Act 1986 (Vic) for indemnification for amounts paid - Application for further discovery of documents in related common law damages proceeding - Indemnity proceeding pursued years after the finalisation of the common law proceeding - Operation of s 126B of the Transport Accident Act 1986 (Vic) - Documents produced or served or information acquired under or in accordance with the Act - Implied undertaking to the Court from Hearne v Street and Harman v Secretary of State for the Home Department - Rule 29.08(2) Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Whether the claimant is on notice of the application - Privacy and confidentiality of medical records - Application partially successful.
COSTS - Hearing of preliminary questions - Where preliminary questions relate to issues squarely put by the second defendant - Where two questions answered in the plaintiff's favour, but unnecessary to determine third question - Whether costs payable to plaintiff should be reduced by costs incurred on third question where those costs would not have been incurred in any event in relation to the first two questions - Second defendant to pay 80% of the plaintiff's costs and to pay third defendant's costs - First defendant to bear own costs - Third defendant removed - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 63.04.
COSTS - Hearing of preliminary questions - Where preliminary questions relate to issues squarely put by the second defendant - Where two questions answered in the plaintiff's favour, but unnecessary to determine third question - Whether costs payable to plaintiff should be reduced by costs incurred on third question where those costs would not have been incurred in any event in relation to the first two questions - Second defendant to pay 80% of the plaintiff's costs and to pay third defendant's costs - First defendant to bear own costs - Third defendant removed - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 63.04.
COSTS - Offer of Compromise - Costs consequences of Offer of Compromise - Whether unreasonable for plaintiff to have refused defendants' offer - Whether Court should order otherwise than in accordance with the rules - Supreme Court (General Civil Procedure) Rules 2015 (Vic), Order 26.
COSTS - Offer of Compromise - Costs consequences of Offer of Compromise - Whether unreasonable for plaintiff to have refused defendants' offer - Whether Court should order otherwise than in accordance with the rules - Supreme Court (General Civil Procedure) Rules 2015 (Vic), Order 26.
COSTS - Self-represented litigant - Where appellant successful on appeal but rejected respondent's earlier Calderbank offer - Refusal of offer was unreasonable in the circumstances - Supreme Court Act 1986 s 24 - No order as to costs of appeal.
COSTS - Self-represented litigant - Where appellant successful on appeal but rejected respondent's earlier Calderbank offer - Refusal of offer was unreasonable in the circumstances - Supreme Court Act 1986 s 24 - No order as to costs of appeal.
APPEAL - Appeal from decision of Associate Judge to refuse defendants' application to summarily dismiss or permanently stay proceeding on grounds that it is an abuse of process - Proceeding is an attempt to re-litigate claims that were or should have been made in previous proceeding which were dismissed by consent - Proceeding is unjustifiably oppressive to defendants - Proceeding likely to undermine finality of litigation and give rise to adverse perception of administration of justice - UBS AG v Tyne (2018) 265 CLR 77 - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 23.01(1)(b) - Appeal allowed.
APPEAL - Appeal from decision of Associate Judge to refuse defendants' application to summarily dismiss or permanently stay proceeding on grounds that it is an abuse of process - Proceeding is an attempt to re-litigate claims that were or should have been made in previous proceeding which were dismissed by consent - Proceeding is unjustifiably oppressive to defendants - Proceeding likely to undermine finality of litigation and give rise to adverse perception of administration of justice - UBS AG v Tyne (2018) 265 CLR 77 - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 23.01(1)(b) - Appeal allowed.
APPEAL - Appeal from Victorian Civil and Administrative Tribunal - Building dispute - Tribunal allowed the respondent to file amended points of claim - Identical application had been previously refused - Whether the Tribunal applied the wrong test - Overriding principle what is in the interests of justice - No error of law - Whether proposed amendments futile because statute barred - Not a 'clear case' where limitation issues should be determined before final hearing - Whether Tribunal decision legally unreasonable - Tribunal decision not unreasonable - Leave to appeal granted - Appeal dismissed - DA Christie Pty Ltd v Baker [1996] 2 VR 582; Nominal Defendant v Manning (2000) 50 NSWLR 139 considered; Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2006] VSC 170; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 applied.
APPEAL - Appeal from Victorian Civil and Administrative Tribunal - Building dispute - Tribunal allowed the respondent to file amended points of claim - Identical application had been previously refused - Whether the Tribunal applied the wrong test - Overriding principle what is in the interests of justice - No error of law - Whether proposed amendments futile because statute barred - Not a 'clear case' where limitation issues should be determined before final hearing - Whether Tribunal decision legally unreasonable - Tribunal decision not unreasonable - Leave to appeal granted - Appeal dismissed - DA Christie Pty Ltd v Baker [1996] 2 VR 582; Nominal Defendant v Manning (2000) 50 NSWLR 139 considered; Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2006] VSC 170; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 applied.
ADMINISTRATIVE LAW - Judicial Review - Application for extension of time to apply for leave to appeal pursuant to section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Landlord and tenant - Litigants in person - Non-payment of rent - No reasonable excuse for not attending earlier hearing - Decision not to re-open earlier order under section 120 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Warrant of possession over tenant's property - Appeal out of time - No evidence providing explanation for delay - No prospect of success on appeal - No error of law established - Application of extension of time refused - Leave to appeal refused.
ADMINISTRATIVE LAW - Judicial Review - Application for extension of time to apply for leave to appeal pursuant to section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Landlord and tenant - Litigants in person - Non-payment of rent - No reasonable excuse for not attending earlier hearing - Decision not to re-open earlier order under section 120 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Warrant of possession over tenant's property - Appeal out of time - No evidence providing explanation for delay - No prospect of success on appeal - No error of law established - Application of extension of time refused - Leave to appeal refused.
ADMINISTRATIVE LAW - Appeal from VCAT - Summary dismissal of proceeding at VCAT - Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'), s 148 - Scope of appeal on a question of law from an order made - Ambit of appeal constrained to issues pertaining to order made - VCAT Act, s 76 application for summary dismissal for want of prosecution - Tribunal applied correct test for summary dismissal - VCAT Act, s 108 application not considered - Discretion of Court to dismiss appeal where ground of appeal made out but remittal nugatory - Section 148(7)(a) and (d), applied.
ADMINISTRATIVE LAW - Appeal from VCAT - Summary dismissal of proceeding at VCAT - Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'), s 148 - Scope of appeal on a question of law from an order made - Ambit of appeal constrained to issues pertaining to order made - VCAT Act, s 76 application for summary dismissal for want of prosecution - Tribunal applied correct test for summary dismissal - VCAT Act, s 108 application not considered - Discretion of Court to dismiss appeal where ground of appeal made out but remittal nugatory - Section 148(7)(a) and (d), applied.
GROUNDS OF APPEAL - Failure to exercise jurisdiction ground conceded - Procedural fairness in the context of a self-represented litigant - Doughty-Cowell (Victoria Police) v Kyriazis [2018] VSCA 216, applied - No unfairness in all of the circumstances - Bias - No actual or apprehended bias established - Other grounds not within ambit of appeal - Leave to appeal granted but appeal dismissed.
Victorian Civil and Administrative Tribunal Act 1998 (Vic), Equal Opportunity Act 2010 (Vic), Charter of Human Rights and Responsibilities Act 2006 (Vic), Religious Tolerance Act 2001 (Vic), and Corrections Act 1986 (Vic).
APPEALS - Plaintiff applied for declaratory relief - 'Sole proprietor', 'paralegal service' and 'self-agency' - Application heard by an Associate Justice and dismissed - Appeal by way of rehearing - Grounds of appeal - Whether error shown - General principles and considerations of policy in respect of unrepresented litigants and costs - Relevant principles of contract and agency - Whether application for declaratory relief correctly refused - Form of declaration sought - Form and sufficiency of evidence - Practically hypothetical and advisory nature of the entire exercise - Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 77.06 - Kennedy v De Trafford [1897] AC 180; Petersen v Moloney (1951) 84 CLR 91; Rowley, Holmes & Co v Barber [1977] 1 WLR 371; Cachia v Hanes (1991) 23 NSWLR 304; Cachia v Hanes (1994) 179 CLR 403; Step v Northern Territory of Australia (2007) 20 NTLR 141; Leximed Pty Ltd v Morgan [2016] 2 Qd R 442 considered - Appeal dismissed.
APPEALS - Plaintiff applied for declaratory relief - 'Sole proprietor', 'paralegal service' and 'self-agency' - Application heard by an Associate Justice and dismissed - Appeal by way of rehearing - Grounds of appeal - Whether error shown - General principles and considerations of policy in respect of unrepresented litigants and costs - Relevant principles of contract and agency - Whether application for declaratory relief correctly refused - Form of declaration sought - Form and sufficiency of evidence - Practically hypothetical and advisory nature of the entire exercise - Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 77.06 - Kennedy v De Trafford [1897] AC 180; Petersen v Moloney (1951) 84 CLR 91; Rowley, Holmes & Co v Barber [1977] 1 WLR 371; Cachia v Hanes (1991) 23 NSWLR 304; Cachia v Hanes (1994) 179 CLR 403; Step v Northern Territory of Australia (2007) 20 NTLR 141; Leximed Pty Ltd v Morgan [2016] 2 Qd R 442 considered - Appeal dismissed.
PRACTICE AND PROCEDURE - Application for discovery by the plaintiffs before a judicial registrar - Plaintiffs appealed subsequent orders made - Two categories of discovery remain in dispute - De novo hearing - Proceeding concerns a nuisance claim by the plaintiffs of noise emitted by a wind farm operated by the defendants - Discovery of two categories disputed as not relevant on pleadings and unduly time-consuming - Plaintiffs submit that the two categories are of particular relevance to the positive case the defendants have pleaded on the issues of reasonableness and aggravated and exemplary damages - Defendants are to make discovery of identified documents in relation to one of the two categories.
PRACTICE AND PROCEDURE - Application for discovery by the plaintiffs before a judicial registrar - Plaintiffs appealed subsequent orders made - Two categories of discovery remain in dispute - De novo hearing - Proceeding concerns a nuisance claim by the plaintiffs of noise emitted by a wind farm operated by the defendants - Discovery of two categories disputed as not relevant on pleadings and unduly time-consuming - Plaintiffs submit that the two categories are of particular relevance to the positive case the defendants have pleaded on the issues of reasonableness and aggravated and exemplary damages - Defendants are to make discovery of identified documents in relation to one of the two categories.
PRACTICE AND PROCEDURE - SUMMARY JUDGEMENT APPLICATION - Applications by third parties for summary judgment, or in the alternative, strike out of the first defendant's third party notices - Laying of a polished concrete surface within part of construction of a development including a shopping precinct - Whether documentary evidence provided in application makes clear that a claim against the third parties for liability for construction of the pedestrian surface has no real prospect of success - Where a factual dispute about circumstances and responsibility for construction of the polished concrete surface in the relevant area of the Development is raised by the documents and affidavit evidence - Summary judgment refused - Civil Procedure Act (2010) (Vic) ss 62, 63 - Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) VR 27 - 230V Harvest Home Road Pty Ltd v Salvo & Ors [2021] VSC 558.
PRACTICE AND PROCEDURE - SUMMARY JUDGEMENT APPLICATION - Applications by third parties for summary judgment, or in the alternative, strike out of the first defendant's third party notices - Laying of a polished concrete surface within part of construction of a development including a shopping precinct - Whether documentary evidence provided in application makes clear that a claim against the third parties for liability for construction of the pedestrian surface has no real prospect of success - Where a factual dispute about circumstances and responsibility for construction of the polished concrete surface in the relevant area of the Development is raised by the documents and affidavit evidence - Summary judgment refused - Civil Procedure Act (2010) (Vic) ss 62, 63 - Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) VR 27 - 230V Harvest Home Road Pty Ltd v Salvo & Ors [2021] VSC 558.
PRACTICE AND PROCEDURE - Costs - Referral of costs assessment to Costs Court by Judicial Registrar - Former executors were legal practitioners who provided legal services relating to administration of estate - Former executors were an employee solicitor and a director of a law practice that issued invoices on which payments for the executors' costs were made out of the estate - Plaintiff commenced this proceeding for removal of the executors and appointment of independent administrator - Jurisdiction and powers of Court relating to assessment of reasonableness of costs invoiced by law practice and assessment of whether the invoiced costs of former executors were properly paid out of the estate - Law practice was given the opportunity to be heard in relation to potential orders joining it as defendant and orders facilitating referral of assessment of costs invoiced by law practice to the Costs Court - Law practice opposed any such orders - Whether to direct law practice to issue summons in Costs Court - Whether to provide opportunity for administrator to issue summons in Costs Court - Civil Procedure Act 2010 s 9 - Supreme Court Act 1986 s 24(1) - Supreme Court (General Civil Procedure) Rules 2025 r 63.38.
PRACTICE AND PROCEDURE - Costs - Referral of costs assessment to Costs Court by Judicial Registrar - Former executors were legal practitioners who provided legal services relating to administration of estate - Former executors were an employee solicitor and a director of a law practice that issued invoices on which payments for the executors' costs were made out of the estate - Plaintiff commenced this proceeding for removal of the executors and appointment of independent administrator - Jurisdiction and powers of Court relating to assessment of reasonableness of costs invoiced by law practice and assessment of whether the invoiced costs of former executors were properly paid out of the estate - Law practice was given the opportunity to be heard in relation to potential orders joining it as defendant and orders facilitating referral of assessment of costs invoiced by law practice to the Costs Court - Law practice opposed any such orders - Whether to direct law practice to issue summons in Costs Court - Whether to provide opportunity for administrator to issue summons in Costs Court - Civil Procedure Act 2010 s 9 - Supreme Court Act 1986 s 24(1) - Supreme Court (General Civil Procedure) Rules 2025 r 63.38.
PRACTICE AND PROCEDURE - Representative proceeding - Application for declaration that proceeding not commenced against second defendant in accordance with Pt 4A of Supreme Court Act 1986 (Vic) - Application for leave to amend to satisfy requirements of s 33C(1) of the Act - Real prospect of establishing that seven or more group members have claims against second defendant - Bright v Femcare Ltd (2002) 195 ALR 574 - Green v Graincorp Oilseeds Pty Ltd [2023] VSC 395 - ABL Nominees Pty Ltd v MacKenzie (No 2) [2014] VSC 529 - Application dismissed - Application to amend group member definition - Proposed definition sufficiently clear to ascertain identity of group members - Supreme Court Act s 33H - Leave to amend granted - Application to declass group proceeding - Significant common questions to be determined at trial - Declassing unlikely to save significant time or cost compared to continuing as group proceeding - Where claim period of proceeding spans 38 years - Claim period for initial trial to be limited to lead plaintiff's claim period of nine years - Supreme Court Act (Vic) s 33N - Application dismissed.
PRACTICE AND PROCEDURE - Representative proceeding - Application for declaration that proceeding not commenced against second defendant in accordance with Pt 4A of Supreme Court Act 1986 (Vic) - Application for leave to amend to satisfy requirements of s 33C(1) of the Act - Real prospect of establishing that seven or more group members have claims against second defendant - Bright v Femcare Ltd (2002) 195 ALR 574 - Green v Graincorp Oilseeds Pty Ltd [2023] VSC 395 - ABL Nominees Pty Ltd v MacKenzie (No 2) [2014] VSC 529 - Application dismissed - Application to amend group member definition - Proposed definition sufficiently clear to ascertain identity of group members - Supreme Court Act s 33H - Leave to amend granted - Application to declass group proceeding - Significant common questions to be determined at trial - Declassing unlikely to save significant time or cost compared to continuing as group proceeding - Where claim period of proceeding spans 38 years - Claim period for initial trial to be limited to lead plaintiff's claim period of nine years - Supreme Court Act (Vic) s 33N - Application dismissed.
PRACTICE AND PROCEDURE - Group proceedings - Application by second defendant that proceeding no longer continue as a group proceeding - Where plaintiff alleges that defendants used a 'system' for giving legal advice with respect to claims under the National Redress Scheme which did not include advice about common law claims for institutional child sexual abuse - Pleadings give rise to substantial common issues of law and fact, including foreseeable risk of harm, content of duty and features of any 'system' - Potential class size and group member characteristics weigh against declassing proceeding - s 33N Supreme Court Act 1986 (Vic) - Jones v Waller Legal Pty Ltd [2025] VSC 42 - Application to strike-out amended statement of claim - Where pleaded amended statement of claim alleged to be embarrassing - Strike out of entire amended statement of claim not warranted - Application dismissed.
PRACTICE AND PROCEDURE - Group proceedings - Application by second defendant that proceeding no longer continue as a group proceeding - Where plaintiff alleges that defendants used a 'system' for giving legal advice with respect to claims under the National Redress Scheme which did not include advice about common law claims for institutional child sexual abuse - Pleadings give rise to substantial common issues of law and fact, including foreseeable risk of harm, content of duty and features of any 'system' - Potential class size and group member characteristics weigh against declassing proceeding - s 33N Supreme Court Act 1986 (Vic) - Jones v Waller Legal Pty Ltd [2025] VSC 42 - Application to strike-out amended statement of claim - Where pleaded amended statement of claim alleged to be embarrassing - Strike out of entire amended statement of claim not warranted - Application dismissed.
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.
SENTENCE - A jury found the offender guilty of murder (x3) and attempted murder - Unknown motive - Offender invited her estranged husband, his parents and his aunt and uncle to lunch - Offender falsely represented that she had serious medical issues which she needed to discuss with them in the absence of her children - The night before the lunch, the husband told the offender he would not be attending - The offender served the four lunch guests Beef Wellingtons deliberately laced with death cap mushrooms - Only the husband's uncle survived - Substantial premeditation - Pitiless conduct post offending - The deceased suffered significantly pre-mortem - Sole survivor suffered similarly and has ongoing health problems - Many indirect victims - Elaborate cover-up - Betrayal of trust - Worst category offending - No evidence of remorse - Life imprisonment appropriate - Whether to fix non-parole period - No relevant criminal history - Offender notorious - Unprecedented media attention - For her own safety, offender held in continuous solitary confinement for past 15 months - Harsher than normal prison conditions likely to continue for foreseeable future - Imprisonment significantly more burdensome for offender than for mainstream prisoners - Non-parole period of 33 years imposed - The Queen v Coulston (1997) 2 VR 446 - R v Kilic (2016) 259 CLR 256 - The Queen v Males [2007] VSCA 302 - The Queen v Olbrich (1999) 199 CLR 270 - Yat v The King [2024] VSCA 93 - Crimes Act 1958 (Vic), ss 3, 321P - Sentencing Act 1991 (Vic), ss 5, 6A-6F, 11, 11A.
SENTENCE - A jury found the offender guilty of murder (x3) and attempted murder - Unknown motive - Offender invited her estranged husband, his parents and his aunt and uncle to lunch - Offender falsely represented that she had serious medical issues which she needed to discuss with them in the absence of her children - The night before the lunch, the husband told the offender he would not be attending - The offender served the four lunch guests Beef Wellingtons deliberately laced with death cap mushrooms - Only the husband's uncle survived - Substantial premeditation - Pitiless conduct post offending - The deceased suffered significantly pre-mortem - Sole survivor suffered similarly and has ongoing health problems - Many indirect victims - Elaborate cover-up - Betrayal of trust - Worst category offending - No evidence of remorse - Life imprisonment appropriate - Whether to fix non-parole period - No relevant criminal history - Offender notorious - Unprecedented media attention - For her own safety, offender held in continuous solitary confinement for past 15 months - Harsher than normal prison conditions likely to continue for foreseeable future - Imprisonment significantly more burdensome for offender than for mainstream prisoners - Non-parole period of 33 years imposed - The Queen v Coulston (1997) 2 VR 446 - R v Kilic (2016) 259 CLR 256 - The Queen v Males [2007] VSCA 302 - The Queen v Olbrich (1999) 199 CLR 270 - Yat v The King [2024] VSCA 93 - Crimes Act 1958 (Vic), ss 3, 321P - Sentencing Act 1991 (Vic), ss 5, 6A-6F, 11, 11A.
CRIMINAL LAW - Sentencing - Intentionally causing serious injury, possession of methylamphetamine, and having methylamphetamine in blood within three hours of driving - At very high speed in car, accused (aged 35) chased, and deliberately accelerated and crashed into rear of, motorbike ridden by complainant (aged 22) - Complainant knocked from motorbike onto road, suffering serious injury in consequence - Car rolled, but accused unharmed - Accused's car travelling at about 160 kph at impact - Accused angry at complainant because of his intimate relationship with accused's former partner of fourteen years - Objectively serious instance of offence - Complainant refused to give evidence at committal hearing, imprisoned for contempt - No victim impact statement from complainant as he remained disengaged from prosecution - Nor, for same reason, any up-to-date evidence of state of complainant's injuries sixteen months after offence - Plea of guilty following sentence indication - Plea of guilty despite arguable defence as to intent - Remorse - Relevant but older criminal history for violence - Evidence of positively good character - Strong support of former partner, children, employer - Strong work history - Good prospects of rehabilitation - Profound childhood deprivation, including exposure to extreme violence and drug and alcohol abuse - Whether nexus between deprived early life and offending - Whether Bugmy principle applicable absent expert evidence - Importance of general deterrence, denunciation, just punishment and rehabilitation as sentencing purposes - Less weight accorded to specific deterrence and community protection - Parsimony - On intentionally causing serious injury, sentence of six years' imprisonment with non-parole period of three years - But for plea of guilty, nine years' imprisonment with non-parole period of six years - On possession of smallish amount of methylamphetamine, convicted and discharged - On having methylamphetamine in blood within three hours of driving, convicted and fined $500 - Licence disqualification periods of 20 months and nine months (concurrent) - Bugmy v The Queen (2013) 249 CLR 571; DPP v Herrmann (2021) 290 A Crim R 110; Crimes Act 1958 (Vic), ss 15, 16, 17, 22 & 321M; Drugs, Poisons & Controlled Substances Act 1980 (Vic), s 73; Road Safety Act 1986 (Vic), ss 28 & 49(1)(i); Criminal Procedure Act 2009 (Vic), ss 145, 207-209 & 242; Sentencing Act 1991 (Vic), ss 5, 6, 6AAA, 18, 73 & 89A.
CRIMINAL LAW - Sentencing - Intentionally causing serious injury, possession of methylamphetamine, and having methylamphetamine in blood within three hours of driving - At very high speed in car, accused (aged 35) chased, and deliberately accelerated and crashed into rear of, motorbike ridden by complainant (aged 22) - Complainant knocked from motorbike onto road, suffering serious injury in consequence - Car rolled, but accused unharmed - Accused's car travelling at about 160 kph at impact - Accused angry at complainant because of his intimate relationship with accused's former partner of fourteen years - Objectively serious instance of offence - Complainant refused to give evidence at committal hearing, imprisoned for contempt - No victim impact statement from complainant as he remained disengaged from prosecution - Nor, for same reason, any up-to-date evidence of state of complainant's injuries sixteen months after offence - Plea of guilty following sentence indication - Plea of guilty despite arguable defence as to intent - Remorse - Relevant but older criminal history for violence - Evidence of positively good character - Strong support of former partner, children, employer - Strong work history - Good prospects of rehabilitation - Profound childhood deprivation, including exposure to extreme violence and drug and alcohol abuse - Whether nexus between deprived early life and offending - Whether Bugmy principle applicable absent expert evidence - Importance of general deterrence, denunciation, just punishment and rehabilitation as sentencing purposes - Less weight accorded to specific deterrence and community protection - Parsimony - On intentionally causing serious injury, sentence of six years' imprisonment with non-parole period of three years - But for plea of guilty, nine years' imprisonment with non-parole period of six years - On possession of smallish amount of methylamphetamine, convicted and discharged - On having methylamphetamine in blood within three hours of driving, convicted and fined $500 - Licence disqualification periods of 20 months and nine months (concurrent) - Bugmy v The Queen (2013) 249 CLR 571; DPP v Herrmann (2021) 290 A Crim R 110; Crimes Act 1958 (Vic), ss 15, 16, 17, 22 & 321M; Drugs, Poisons & Controlled Substances Act 1980 (Vic), s 73; Road Safety Act 1986 (Vic), ss 28 & 49(1)(i); Criminal Procedure Act 2009 (Vic), ss 145, 207-209 & 242; Sentencing Act 1991 (Vic), ss 5, 6, 6AAA, 18, 73 & 89A.
CRIMINAL LAW - Application for bail - Charges of burglary, theft of firearm, possession of traffickable quantity of firearms, false imprisonment and armed robbery - Where applicant has significant criminal history but no history of violent offending or firearm offences - Where applicant was subject to Community Correction Order and to prior grant of bail - Where applicant has longstanding substance abuse issues - Where offending connected to substance abuse - Where applicant has offer of residential drug and alcohol rehabilitation program - Where first opportunity for applicant to attend residential rehabilitation - Where exceptional circumstances exist to justify the grant of bail - Where the risk is acceptable on conditions that the applicant reside at rehabilitation facility - Bail Act 1977 (Vic) ss 4AA, 4A.
CRIMINAL LAW - Application for bail - Charges of burglary, theft of firearm, possession of traffickable quantity of firearms, false imprisonment and armed robbery - Where applicant has significant criminal history but no history of violent offending or firearm offences - Where applicant was subject to Community Correction Order and to prior grant of bail - Where applicant has longstanding substance abuse issues - Where offending connected to substance abuse - Where applicant has offer of residential drug and alcohol rehabilitation program - Where first opportunity for applicant to attend residential rehabilitation - Where exceptional circumstances exist to justify the grant of bail - Where the risk is acceptable on conditions that the applicant reside at rehabilitation facility - Bail Act 1977 (Vic) ss 4AA, 4A.
CRIMINAL LAW - Bail application - 15 year old child - Charged with armed robbery, theft, commit an indictable offence while on bail - Requirement to show exceptional circumstances - Overarching importance of community safety - Long-term approach to community safety - Availability of culturally appropriate supports and treatment - Stable accommodation - Family support - Custodial sentence unlikely - Exceptional circumstances established - Unacceptable risk not proven - Bail granted for a short period - Bail reform - Bail Act 1977 (Vic) ss 1B, 3B, 3AAA, 4A, 4AA, 4E.
CRIMINAL LAW - Bail application - 15 year old child - Charged with armed robbery, theft, commit an indictable offence while on bail - Requirement to show exceptional circumstances - Overarching importance of community safety - Long-term approach to community safety - Availability of culturally appropriate supports and treatment - Stable accommodation - Family support - Custodial sentence unlikely - Exceptional circumstances established - Unacceptable risk not proven - Bail granted for a short period - Bail reform - Bail Act 1977 (Vic) ss 1B, 3B, 3AAA, 4A, 4AA, 4E.
CRIMINAL LAW - Application for bail - Applicant 21-year old with extensive criminal history - Where charges included possession of weapons - Where applicant intending to plead guilty - Where applicant has residential drug and alcohol rehabilitation program available if granted bail - Where first opportunity for applicant to attend residential rehabilitation - Where evidence of genuine wish to rehabilitate - Where compelling reason exists justifying the grant of bail - Where risk is acceptable on conditions that applicant reside at rehabilitation facility and not leave without accompaniment - Re Tofaris [2021] VSC 249 - Bail Act 1977 (Vic) ss 3AAA, 4C, 4E.
CRIMINAL LAW - Application for bail - Applicant 21-year old with extensive criminal history - Where charges included possession of weapons - Where applicant intending to plead guilty - Where applicant has residential drug and alcohol rehabilitation program available if granted bail - Where first opportunity for applicant to attend residential rehabilitation - Where evidence of genuine wish to rehabilitate - Where compelling reason exists justifying the grant of bail - Where risk is acceptable on conditions that applicant reside at rehabilitation facility and not leave without accompaniment - Re Tofaris [2021] VSC 249 - Bail Act 1977 (Vic) ss 3AAA, 4C, 4E.
CRIMINAL LAW - Application for bail - Prima facie entitlement to bail - Personal circumstances - Whether unacceptable risk - Nature and seriousness of alleged offending - Strength of prosecution case - Extent of compliance with earlier grant of bail - Availability of stable accommodation - Proposed therapeutic treatment - Risk not shown to be unacceptable - Bail granted - Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4D, 4E, 5AAA - Crimes Act 1958 (Vic), ss 21A, 53R, 465AAA - Surveillance Devices Act 1999 (Vic), s 7.
CRIMINAL LAW - Application for bail - Prima facie entitlement to bail - Personal circumstances - Whether unacceptable risk - Nature and seriousness of alleged offending - Strength of prosecution case - Extent of compliance with earlier grant of bail - Availability of stable accommodation - Proposed therapeutic treatment - Risk not shown to be unacceptable - Bail granted - Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4D, 4E, 5AAA - Crimes Act 1958 (Vic), ss 21A, 53R, 465AAA - Surveillance Devices Act 1999 (Vic), s 7.
CRIMINAL LAW - Application for bail - Where applicant alleged to have murdered son with schizoaffective disorder and threatened family members - Whether exceptional circumstances test satisfied - Where applicant has no criminal history or past failure to comply with bail conditions - Where alleged offending occurred in unusual circumstances and unlikely to be repeated - Where surety is offered - Where there are triable issues - Where period likely spent on remand substantial but not uncommon - Where applicant has accommodation available - Whether unacceptable risk the applicant would interfere with a witness or obstruct cause of justice - Where primary witnesses' concerns of interference lack substantive detail - Where imposition of bail conditions will mitigate risk - Bail granted - Re CT [2018] VSC 559 - Re Politis [2019] VSC 780 - Re Pham [2024] VSC 143 - R v Cox [2003] VSC 245 - Re Foxwell [2013] VSC 716 - Bail Act 1977 (Vic), ss 4A(1A), 4E.
CRIMINAL LAW - Application for bail - Where applicant alleged to have murdered son with schizoaffective disorder and threatened family members - Whether exceptional circumstances test satisfied - Where applicant has no criminal history or past failure to comply with bail conditions - Where alleged offending occurred in unusual circumstances and unlikely to be repeated - Where surety is offered - Where there are triable issues - Where period likely spent on remand substantial but not uncommon - Where applicant has accommodation available - Whether unacceptable risk the applicant would interfere with a witness or obstruct cause of justice - Where primary witnesses' concerns of interference lack substantive detail - Where imposition of bail conditions will mitigate risk - Bail granted - Re CT [2018] VSC 559 - Re Politis [2019] VSC 780 - Re Pham [2024] VSC 143 - R v Cox [2003] VSC 245 - Re Foxwell [2013] VSC 716 - Bail Act 1977 (Vic), ss 4A(1A), 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.