CONTRACT - Breach - Loan note - Where term of contract between borrower and two lenders required repayment of loan into account nominated by both lenders - Where borrower repaid money into account of one lender without obtaining nomination from both lenders - Whether term requiring nomination of account by both lenders operated only as a condition precedent to discharge of debt - Whether other lender waived breach of contract term by prosecuting earlier proceedings against recipient lender - Whether abuse of process for lender subsequently to proceed against borrower and guarantor for breach of contract.
CONTRACT - Breach - Loan note - Where term of contract between borrower and two lenders required repayment of loan into account nominated by both lenders - Where borrower repaid money into account of one lender without obtaining nomination from both lenders - Whether term requiring nomination of account by both lenders operated only as a condition precedent to discharge of debt - Whether other lender waived breach of contract term by prosecuting earlier proceedings against recipient lender - Whether abuse of process for lender subsequently to proceed against borrower and guarantor for breach of contract.
WORDS AND PHRASES - "abuse of process", "account nominated", "affirmation", "borrower", "breach of contract", "breach of duty", "condition precedent", "consequential loss", "creditor", "debtor", "defective performance", "direction", "discharge of a debt", "double operation", "guarantor", "joint account", "jointly and severally", "lender", "liability for breach", "loan contract", "loan note", "mitigation of loss", "negative duty", "note certificate", "obligation as to the manner of discharging the debt", "obligation to repay the debt", "ratification", "redemption notice", "remedies which were cumulative", "separate obligations", "waiver".
NEGLIGENCE - Proof of loss and damage - Negligence by solicitor - Financial agreement under Family Law Act 1975 (Cth) Pt VIIIA entered before marriage - Financial agreement provided how property and financial resources dealt with on breakdown of marriage - Where financial agreement prepared by solicitor void for uncertainty - Where financial agreement prepared by solicitor set aside on hardship grounds - Where solicitor breached duty of care to take reasonable care in giving advice - Whether client failed to adduce evidence establishing loss - Whether negligence claim statute barred - When loss first suffered.
NEGLIGENCE - Proof of loss and damage - Negligence by solicitor - Financial agreement under Family Law Act 1975 (Cth) Pt VIIIA entered before marriage - Financial agreement provided how property and financial resources dealt with on breakdown of marriage - Where financial agreement prepared by solicitor void for uncertainty - Where financial agreement prepared by solicitor set aside on hardship grounds - Where solicitor breached duty of care to take reasonable care in giving advice - Whether client failed to adduce evidence establishing loss - Whether negligence claim statute barred - When loss first suffered.
WORDS AND PHRASES - "binding financial agreement", "cause of action accrued", "character of the alleged loss", "compensable loss", "compensatory damages", "consequential losses", "damages", "date of separation", "did not get what he should have got", "failed to prove any further loss or damage", "financial agreement before marriage", "financial agreement prepared with reasonable care and skill", "in the event of the breakdown of the marriage", "lack of any evidence", "loss of chance", "loss or damage in tort", "lost opportunity", "no force or effect until a separation declaration is made", "properly characterising the claimed loss", "provision for the birth of a child or children", "provision of advice", "recovery of damages for the legal costs", "set aside for uncertainty", "spouse parties", "statute barred", "substantial prospect of a beneficial outcome", "terms or scope of a financial agreement drafted with reasonable care and skill", "unless and until the marriage breaks down", "void, voidable or unenforceable", "wasted legal fees", "would not have entered into the marriage".
Limitation of Actions Act 1936 (SA), s 35(c).
Family Law Act 1975 (Cth), ss 71A, 79, 90B, 90C, 90D, 90DA, 90DB, 90G, 90K, 90KA.
RESTITUTION - Unjust enrichment - Failure of basis or condition - Interest - Where client engaged law firm under retainer agreements - Where retainer agreements imposed binding obligations on client to pay legal costs - Where law firm had no right to retain payment under Legal Practice Act 2003 (WA) if, and to extent that, payment was found on taxation to exceed amount authorised by certificate from taxing officer - Where, prior to taxation, client and law firm reached settlement - Where settlement deed required repayment of sum as "amount that would have been ordered to be refunded" if there had been taxation - Where settlement deed left open option of litigating further claim for interest on settlement sum - Whether interest available on settlement sum - Whether there had been failure of basis or condition for client's payments of invoices issued under retainer agreements - Whether Legal Practice Act formed comprehensive regime for recovery of principal sum paid for legal costs over amount certified by taxing officer, and interest on that sum, to the exclusion of any common law restitutionary claim.
RESTITUTION - Unjust enrichment - Failure of basis or condition - Interest - Where client engaged law firm under retainer agreements - Where retainer agreements imposed binding obligations on client to pay legal costs - Where law firm had no right to retain payment under Legal Practice Act 2003 (WA) if, and to extent that, payment was found on taxation to exceed amount authorised by certificate from taxing officer - Where, prior to taxation, client and law firm reached settlement - Where settlement deed required repayment of sum as "amount that would have been ordered to be refunded" if there had been taxation - Where settlement deed left open option of litigating further claim for interest on settlement sum - Whether interest available on settlement sum - Whether there had been failure of basis or condition for client's payments of invoices issued under retainer agreements - Whether Legal Practice Act formed comprehensive regime for recovery of principal sum paid for legal costs over amount certified by taxing officer, and interest on that sum, to the exclusion of any common law restitutionary claim.
WORDS AND PHRASES - "basis or condition", "bill of costs", "compound interest", "condition subsequent", "conditional obligation", "deemed taxation", "failure of basis or condition", "fair and reasonable", "interest", "legal costs", "no juristic reason", "no justification", "principal", "restitution", "retainer agreement", "simple interest", "statutory interest", "taxation certificate", "unjust enrichment".
Legal Practice Act 2003 (WA), ss 221, 222, 229(a), 231, 232, 235, 240, 242, 243.
Legal Profession Act 2008 (WA), ss 2(b), 598, 616(1).
Legal Profession Uniform Law Application Act 2022 (WA), s 260.
Supreme Court Act 1935 (WA), s 32.
CONTRACT - Causation - Where retainers for accountant to provide advisory services in relation to purchase of a business - Where accountant found to have breached retainers - Where breach of one of the retainers (the 'Porter retainer') limited to misuse of confidential information after termination of retainer - Scope of breach - Breach constituted by misuse of form and contents of earlier conditional offer - Where judge unable to say that earlier offer provided to accountant prior to making successful unconditional 'cash' offer - Where further information available from other sources included more recent conditional offer and highly attractive valuation - Causation not established - Leave to appeal granted - Appeal allowed - Alexander v Cambridge Credit Co Ltd (1987) 9 NSWLR 310; Amaca Pty Ltd v Booth (2011) 246 CLR 36; Young v Chief Executive Officer (Housing) (2023) 278 CLR 208; Lewis v Australian Capital Territory (2020) 271 CLR 208, discussed.
CONTRACT - Causation - Where retainers for accountant to provide advisory services in relation to purchase of a business - Where accountant found to have breached retainers - Where breach of one of the retainers (the 'Porter retainer') limited to misuse of confidential information after termination of retainer - Scope of breach - Breach constituted by misuse of form and contents of earlier conditional offer - Where judge unable to say that earlier offer provided to accountant prior to making successful unconditional 'cash' offer - Where further information available from other sources included more recent conditional offer and highly attractive valuation - Causation not established - Leave to appeal granted - Appeal allowed - Alexander v Cambridge Credit Co Ltd (1987) 9 NSWLR 310; Amaca Pty Ltd v Booth (2011) 246 CLR 36; Young v Chief Executive Officer (Housing) (2023) 278 CLR 208; Lewis v Australian Capital Territory (2020) 271 CLR 208, discussed.
CONTRACT - Construction - Whether implied obligation of good faith or obligation not to improperly use position as advisor survived termination of Porter retainer - Not reasonable or necessary for terms to survive termination - Notice of contention rejected.
PRACTICE AND PROCEDURE - Incompetency - Application for proposed ground of appeal to be struck out as incompetent - Where proposed ground seeks to set aside 'findings' in judge's reasons as to accountant acting dishonestly and fraudulently in breach of procedural fairness - Whether findings constituted 'determination[s]' within the meaning of s 17(2) of the Supreme Court Act 1986 - Concept of 'determination' in s 17(2) does not extend to findings made - Proposed ground of appeal incompetent - Accountant had adequate notice in any event - O'Bryan v Lindholm (2024) 74 VR 496, applied; Barnes v Addy (1874) LR 9 Ch App 244; Nadinic v Drinkwater (2017) 94 NSWLR 518; Grimaldi v Chameleon Mining NL [No 2] (2012) 200 FCR 296, discussed.
EVIDENCE - Fresh evidence - Application to adduce further evidence pursuant to r 64.13(1) of the Supreme Court (General Civil Procedure) Rules 2025 - Where judge found that account of profits capable of doing full justice and refused constructive trust remedy - Whether parties shared 'common assumptions' that corporate trustee defendant would not be insolvent - Whether 'common assumptions' falsified by subsequent liquidation - No evidence that parties shared common assumptions - Assumptions misconceived and not 'falsified' in any event - Application refused in exercise of discretion - Foody v Horewood (2007) 62 ACSR 576; Apostolidis v Kalenik (2011) 35 VR 563, considered.
EQUITY - Fiduciary duty - Whether fiduciary relationship in addition to contractual relationship - Lack of necessary undertaking and vulnerability - No fiduciary duty owed - Applications for leave to cross-appeal refused - Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; Grimaldi v Chameleon Mining NL [No 2] (2012) 200 FCR 296; ABN AMRO Bank NV v Bathurst Regional Council (2014) 224 FCR 1, discussed.
PRACTICE AND PROCEDURE - Applications for leave to intervene in proceeding - Applicants are barristers whose conduct of the proceeding below is impugned - Procedural fairness requires opportunity to be heard - No objection to intervention - Applications for leave to intervene granted.
PRACTICE AND PROCEDURE - Applications for leave to intervene in proceeding - Applicants are barristers whose conduct of the proceeding below is impugned - Procedural fairness requires opportunity to be heard - No objection to intervention - Applications for leave to intervene granted.
Supreme Court (General Civil Procedure) Rules 2025, r 64.10.
PRACTICE AND PROCEDURE - Application to restrain barristers from acting for first to third respondents in application for leave to appeal and any appeal - Barristers stated to Court that they regard themselves as unable to act until application for leave to appeal and any appeal is decided - Order restraining barristers not necessary.
PRACTICE AND PROCEDURE - Filing - Power to direct Registrar to accept documents for filing - Registrar refused to accept documents for filing - Application for Judge of Appeal to direct Registrar to accept documents for filing - Proposed documents seeking leave to appeal against orders of judge at directions hearing - No finding or determination made by judge - Direction to accept documents not made.
PRACTICE AND PROCEDURE - Filing - Power to direct Registrar to accept documents for filing - Registrar refused to accept documents for filing - Application for Judge of Appeal to direct Registrar to accept documents for filing - Proposed documents seeking leave to appeal against orders of judge at directions hearing - No finding or determination made by judge - Direction to accept documents not made.
Supreme Court Act 1986 s 17; Supreme Court (General Civil Procedure) Rules 2025 rr 28.03, 64.43.
Re Thorpe [2024] VSCA 172, applied; Staats v United States of America (1992) 66 ALJR 793, considered.
COSTS - Costs of manifestly hopeless application for leave to appeal - No reasons costs should not follow the event - Respondents entitled to indemnity costs.
COSTS - Costs of manifestly hopeless application for leave to appeal - No reasons costs should not follow the event - Respondents entitled to indemnity costs.
CRIMINAL LAW - Appeal - Sentence - Dishonestly obtain financial advantage by deception from Commonwealth entity - Knowingly use false document to dishonestly influence the exercise of a duty or function of Commonwealth public official - Applicant initially sentenced to 3 years and 6 months' imprisonment to be released after 20 months pursuant to recognizance release order - Judge substituted recognizance release order with non-parole period of 20 months - Whether judge erred in substituting recognizance release order with non-parole period - Whether s 19AH(2) of the Crimes Act 1914 (Cth) operates to specifically exclude failure to make non-parole period in circumstance where judge made recognizance release order but had no power to do so - Section 19AH(2) applicable therefore section 19AH(1) not available to judge - Judge erred in substituting recognizance release order with non-parole period - Appeal allowed - Applicant resentenced to 3 years and 6 months' imprisonment with non-parole period of 17 months.
CRIMINAL LAW - Appeal - Sentence - Dishonestly obtain financial advantage by deception from Commonwealth entity - Knowingly use false document to dishonestly influence the exercise of a duty or function of Commonwealth public official - Applicant initially sentenced to 3 years and 6 months' imprisonment to be released after 20 months pursuant to recognizance release order - Judge substituted recognizance release order with non-parole period of 20 months - Whether judge erred in substituting recognizance release order with non-parole period - Whether s 19AH(2) of the Crimes Act 1914 (Cth) operates to specifically exclude failure to make non-parole period in circumstance where judge made recognizance release order but had no power to do so - Section 19AH(2) applicable therefore section 19AH(1) not available to judge - Judge erred in substituting recognizance release order with non-parole period - Appeal allowed - Applicant resentenced to 3 years and 6 months' imprisonment with non-parole period of 17 months.
Crimes Act 1914 (Cth), ss 19AB, 19AC, 19AH, 19AHA; Sentencing Act 1991, s 104B.
ABC v The King [2023] VSCA 280; Putland v The Queen (2004) 218 CLR 174; Hili v The Queen (2010) 242 CLR 520, applied.
DPP (Cth) v Wallace (2011) 213 A Crim R 420; R v TW (No 2) [2014] ACTCA 37, considered.
CRIMINAL LAW - Interlocutory appeal - Review of refusal to certify - Historical sexual offences - Three complainant nieces - Delay of 40 to 45 years since alleged offending - Witnesses and documentary evidence claimed to be unavailable - Trial judge refused permanent stay - Trial judge refused to certify for interlocutory appeal - Application to review refusal to certify refused.
CRIMINAL LAW - Interlocutory appeal - Review of refusal to certify - Historical sexual offences - Three complainant nieces - Delay of 40 to 45 years since alleged offending - Witnesses and documentary evidence claimed to be unavailable - Trial judge refused permanent stay - Trial judge refused to certify for interlocutory appeal - Application to review refusal to certify refused.
CRIMINAL LAW - Leave to appeal - Sentence - Aggravated Burglary - Conduct endangering persons - Sexual Assault - Attempted rape - Conduct in front of children - Whether the sentencing judged erred in her findings - Whether the sentencing judge erred in her assessment of the prospects of rehabilitation - Whether the sentencing judge erred in her application of s 11(3) of the Sex Offenders Registration Act 2004 - Whether the sentence was manifestly excessive - Application for extension of time for leave to appeal against sentence refused.
CRIMINAL LAW - Leave to appeal - Sentence - Aggravated Burglary - Conduct endangering persons - Sexual Assault - Attempted rape - Conduct in front of children - Whether the sentencing judged erred in her findings - Whether the sentencing judge erred in her assessment of the prospects of rehabilitation - Whether the sentencing judge erred in her application of s 11(3) of the Sex Offenders Registration Act 2004 - Whether the sentence was manifestly excessive - Application for extension of time for leave to appeal against sentence refused.
Criminal Procedure Act 2009 s 278; Crimes Act 1958 ss 15, 22, 23; Sex Offenders Registration Act 2004 s 11(3).
Barbaro v The Queen (2012) 226 A Crim R 354; Bowden v The Queen (2013) 44 VR 229; Bugmy v The Queen (2013) 249 CLR 571; Dalgliesh (a pseudonym) v The Queen (2017) 262 CLR 428; Director of Public Prosecutions v Meyers (2014) 44 VR 486; Failla v The King [2025] VSCA 132; Kumova v The Queen (2012) 37 VR 538; Lowndes v The Queen (1999) 195 CLR 665; Sayer v The Queen [2018] VSCA 177; Stefani v The Queen [2024] VSCA 29; Surtees v The King [2023] VSCA 42, considered.
CRIMINAL LAW - Leave to appeal - Sentence - Whether sentencing judge erred in their findings as to the applicant's role in trafficking a commercial quantity of drugs - Trafficking various drugs - Possess various drugs of dependence - Possess tablet press - Make false document - Possess fireworks - Possess prohibited weapon - Source and manufacture steroids - Counterfeit drug business - Leave to appeal refused.
CRIMINAL LAW - Leave to appeal - Sentence - Whether sentencing judge erred in their findings as to the applicant's role in trafficking a commercial quantity of drugs - Trafficking various drugs - Possess various drugs of dependence - Possess tablet press - Make false document - Possess fireworks - Possess prohibited weapon - Source and manufacture steroids - Counterfeit drug business - Leave to appeal refused.
Criminal Procedure Act 2009, ss 278, 280.
Dao v The Queen (2014) 240 A Crim R 574; DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428; Elkadi v The King [2023] VSCA 328; Gregory v The Queen (2017) 268 A Crim R 1; R v Olbrich (1999) 199 CLR 270, considered.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Respondent pleaded guilty to nine charges of sexual offending against his two child nieces - Charges of sexual penetration of child under 12, sexual penetration of child under 16, sexual assault of child under 16, and encouraging child under 16 to engage in sexual activity - Total effective sentence of 5 years' imprisonment with non-parole period of 3 years - Whether total effective sentence and non-parole period manifestly inadequate - Whether orders for cumulation reflected the separate criminality of respondent's offending against two victims - Whether orders for cumulation were contrary to the presumption of total cumulation for serious sexual offenders - Whether judge misapplied principle of totality - Orders for cumulation manifestly inadequate - Appeal allowed - Respondent resentenced to total effective sentence of 8 years' imprisonment with non-parole period of 5 years.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Respondent pleaded guilty to nine charges of sexual offending against his two child nieces - Charges of sexual penetration of child under 12, sexual penetration of child under 16, sexual assault of child under 16, and encouraging child under 16 to engage in sexual activity - Total effective sentence of 5 years' imprisonment with non-parole period of 3 years - Whether total effective sentence and non-parole period manifestly inadequate - Whether orders for cumulation reflected the separate criminality of respondent's offending against two victims - Whether orders for cumulation were contrary to the presumption of total cumulation for serious sexual offenders - Whether judge misapplied principle of totality - Orders for cumulation manifestly inadequate - Appeal allowed - Respondent resentenced to total effective sentence of 8 years' imprisonment with non-parole period of 5 years.
Sentencing Act 1991, ss 6D, 6E.
DPP v Karazisis (2010) 31 VR 634; Nguyen v The Queen [2019] VSCA 184; R v GJ [2008] VSCA 222; Barnard v The Queen [2022] VSCA 42; R v Nguyen (2013) 234 A Crim R 324; R v MAK (2006) 167 A Crim R 159; DPP v Grabovac [1998] 1 VR 664; RH McL v The Queen (2000) 203 CLR 452; DPP v Hopson (a pseudonym) [2016] VSCA 303; Gordon (a pseudonym) v The Queen [2013] VSCA 343; Zhao v The Queen [2018] VSCA 267; Flynn (a pseudonym) v The Queen [2020] VSCA 173; Nguyen v The Queen (2016) 256 CLR 656.
CRIMINAL LAW - Appeal - Interlocutory appeal - Prosecution of aged care home operator in relation to Covid-19 outbreak - Alleged offence under s 26 of Occupational Health and Safety Act 2004 - Where judge ruled evidence of number of deaths at aged care home inadmissible - Where judge refused to certify decision under s 295 of Criminal Procedure Act 2009 - Judge erred in refusing to certify - Exclusion of evidence would substantially weaken prosecution case for purposes of s 295(3)(a) - Court satisfied that in 'interests of justice' to grant leave to appeal for purposes of s 297 - Application for leave to appeal against interlocutory decision granted.
CRIMINAL LAW - Appeal - Interlocutory appeal - Prosecution of aged care home operator in relation to Covid-19 outbreak - Alleged offence under s 26 of Occupational Health and Safety Act 2004 - Where judge ruled evidence of number of deaths at aged care home inadmissible - Where judge refused to certify decision under s 295 of Criminal Procedure Act 2009 - Judge erred in refusing to certify - Exclusion of evidence would substantially weaken prosecution case for purposes of s 295(3)(a) - Court satisfied that in 'interests of justice' to grant leave to appeal for purposes of s 297 - Application for leave to appeal against interlocutory decision granted.
CRIMINAL LAW - Appeal - Interlocutory appeal - Whether evidence of number of deaths irrelevant because existence of risk admitted - Evidence of number of deaths relevant to assessment of 'degree of harm that would result if hazard or risk eventuated' under s 20(2)(b) of Occupational Health and Safety Act 2004 - 'Degree of harm' encompasses both nature and extent of consequences of risk eventuating - Admission goes only to nature of consequences - Impugned evidence goes to extent of consequences - Appeal allowed.
CRIMINAL LAW - Appeal - Interlocutory appeal - Whether evidence irrelevant because matter of 'common knowledge' within meaning of s 144 of Evidence Act 2008 - Section 144 removes requirement for proof of certain matters but does not go to relevance - Evidence in question not a matter of 'common knowledge' or 'knowledge that is not reasonably open to question'.
CRIMINAL LAW - Appeal - Interlocutory appeal - Whether evidence of number of deaths inadmissible pursuant to s 137 of Evidence Act 2008 - Probative value of evidence high because goes to extent of consequences of risk eventuating - Risk of unfair prejudice to defendant low because evidence is bare number - Risk of unfair prejudice can be ameliorated by directions to jury - Evidence admissible - Appeal allowed.
Occupational Health and Safety Act 2004, ss 20, 26; Criminal Procedure Act 2009, ss 295, 296, 297; Evidence Act 2008, ss 55, 137, 144.
R v Vibro- Pile (Aust) Pty Ltd (2016) 49 VR 676; Moore (a pseudonym) v The King (2024) 98 ALJR 1119; Kane (a pseudonym) v The King (2023) 383 FLR 387; R v Paulino (2017) 54 VR 109, considered.
CRIMINAL LAW - Appeal - Sentence - Application for extension of time to file notice of appeal against sentence - Applicant pleaded guilty to nine charges of handling stolen goods, one charge of possession of a drug of dependence, and four related summary charges - Applicant sentenced to total effective sentence of 3 years and 4 months' imprisonment with a non-parole period of 2 years and 1 month - Applicant involved in enterprise of receiving, altering and rebirthing stolen vehicles for profit - Value of stolen goods in excess of $280,000 - Where applicant re-offended following arrest - Limited matters in mitigation - Whether sentence manifestly excessive - Proposed ground of appeal not sufficiently arguable to warrant extension of time - Application refused.
CRIMINAL LAW - Appeal - Sentence - Application for extension of time to file notice of appeal against sentence - Applicant pleaded guilty to nine charges of handling stolen goods, one charge of possession of a drug of dependence, and four related summary charges - Applicant sentenced to total effective sentence of 3 years and 4 months' imprisonment with a non-parole period of 2 years and 1 month - Applicant involved in enterprise of receiving, altering and rebirthing stolen vehicles for profit - Value of stolen goods in excess of $280,000 - Where applicant re-offended following arrest - Limited matters in mitigation - Whether sentence manifestly excessive - Proposed ground of appeal not sufficiently arguable to warrant extension of time - Application refused.
Crimes Act 1958, s 88.
Clarkson v The Queen (2011) 32 VR 361, referred to.
CRIMINAL LAW - Appeal - Sentence - Burglary, theft, firearms offences and possession of drug of dependence - Aggregate sentence 12 months' imprisonment - Whether judge erred by imposing aggregate sentence - Applicant stole imitation firearm from neighbour's property and exchanged it for methylamphetamine - Charges founded on same facts - Continuous offending constituting single drug and firearm-related transaction - Offences not varying greatly in gravity - Aggregate sentence avoided artificial sentencing exercise - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Burglary, theft, firearms offences and possession of drug of dependence - Aggregate sentence 12 months' imprisonment - Whether judge erred by imposing aggregate sentence - Applicant stole imitation firearm from neighbour's property and exchanged it for methylamphetamine - Charges founded on same facts - Continuous offending constituting single drug and firearm-related transaction - Offences not varying greatly in gravity - Aggregate sentence avoided artificial sentencing exercise - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Manifest excess - Blackmail - Sentence of 12 months' imprisonment - Aggregate sentence 12 months' imprisonment on separate indictment charging burglary, firearms offences and possessing drug of dependence - Total effective sentence 18 months' imprisonment - Guilty plea - Applicant assisted authorities in relation to charges on second indictment - Aggregate sentence very moderate - Most charges carrying maximum 10 years' imprisonment - Possession of firearms by prohibited person serious offending - Blackmail planned and calculated against vulnerable victim - Applicant understated own contribution to blackmail while blaming co-offender - Blackmail sentence modest - Order for 6 months' cumulation well within range - Applicant having extensive criminal record - Sentence well within range - Leave to appeal refused.
Sentencing Act 1991, s 9.
Director of Public Prosecutions v Frewstal Pty Ltd (2015) 47 VR 660; Hassall v The King [2024] VSCA 163; Malovski v The King [2025] VSCA 72, referred to.
CRIMINAL LAW - Appeal - Sentence - Plea of guilty to charges of recklessly causing serious injury, affray, and common law assault - Random street violence - Applicant and co-offender assaulted three victims in public place - Applicant under influence of alcohol and cocaine - Applicant struck one victim to the head when victim was in vulnerable and defenceless state, causing him to sustain a severe traumatic brain injury - Several mitigating factors, including applicant's deprived background and impaired mental functioning - Whether judge erred in application of Bugmy and Verdins principles - Whether unjustifiable disparity with co-offender's sentence - Whether sentence manifestly excessive - Total effective sentence of 6 years and 6 months' imprisonment with non-parole period of 4 years and 6 months within range - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Plea of guilty to charges of recklessly causing serious injury, affray, and common law assault - Random street violence - Applicant and co-offender assaulted three victims in public place - Applicant under influence of alcohol and cocaine - Applicant struck one victim to the head when victim was in vulnerable and defenceless state, causing him to sustain a severe traumatic brain injury - Several mitigating factors, including applicant's deprived background and impaired mental functioning - Whether judge erred in application of Bugmy and Verdins principles - Whether unjustifiable disparity with co-offender's sentence - Whether sentence manifestly excessive - Total effective sentence of 6 years and 6 months' imprisonment with non-parole period of 4 years and 6 months within range - Leave to appeal refused.
APPEALS - PRACTICE AND PROCEDURE - Appeal from a decision of an Associate Judge granting the plaintiff summary judgment against the defendants - Whether a clause in a loan agreement limited the trustee's liability - Held that it limited the lender's recourse in enforcing the Trustee's liability - Appeal dismissed - Section 17(3) of the Supreme Court Act 1986, r 77.06 of the Supreme Court (General Civil Procedure) Rules 2025, Copper (Qld) Investment Pte Ltd v Hallion [2025] VSCA 221 applied, Re Wilson [1942] VLR 177, Agusta Pty Ltd v Provident Capital Ltd [2012] NSWCA 26 and General Credits Ltd v Tawilla Pty Ltd [1984] 1 Qd R 388 referred to.
APPEALS - PRACTICE AND PROCEDURE - Appeal from a decision of an Associate Judge granting the plaintiff summary judgment against the defendants - Whether a clause in a loan agreement limited the trustee's liability - Held that it limited the lender's recourse in enforcing the Trustee's liability - Appeal dismissed - Section 17(3) of the Supreme Court Act 1986, r 77.06 of the Supreme Court (General Civil Procedure) Rules 2025, Copper (Qld) Investment Pte Ltd v Hallion [2025] VSCA 221 applied, Re Wilson [1942] VLR 177, Agusta Pty Ltd v Provident Capital Ltd [2012] NSWCA 26 and General Credits Ltd v Tawilla Pty Ltd [1984] 1 Qd R 388 referred to.
CORPORATIONS - Corporations Act 2001 (Cth) ('Act') - External administration - s 436B(2)(g) - Application by liquidator for leave to be appointed as voluntary administrator of company in context of proposed deed of company arrangement - s 447A(1) - Truncated administration orders - s 90-15(1) of the Insolvency Practice Schedule (Corporations) in Sch 2 of the Act - Judicial advice sought to not receive Report on Company Affairs and Property - s 482(1) of Act - Stay of winding up of company sought until end of voluntary administration period - Application granted.
CORPORATIONS - Corporations Act 2001 (Cth) ('Act') - External administration - s 436B(2)(g) - Application by liquidator for leave to be appointed as voluntary administrator of company in context of proposed deed of company arrangement - s 447A(1) - Truncated administration orders - s 90-15(1) of the Insolvency Practice Schedule (Corporations) in Sch 2 of the Act - Judicial advice sought to not receive Report on Company Affairs and Property - s 482(1) of Act - Stay of winding up of company sought until end of voluntary administration period - Application granted.
CORPORATIONS - Winding up - Application to defer deregistration of company - Corporations Act 2001 (Cth) s 509(2).
CORPORATIONS - Winding up - Application to defer deregistration of company - Corporations Act 2001 (Cth) s 509(2).
EVIDENCE - Privilege against self-incrimination - Freezing order - Disclosure order - Section 128A of Evidence Act 2008 (Vic) - Whether valid objection made - Whether separate affidavit adequately set out basis of objection - Whether reasonable grounds for objection - Whether real and appreciable risk of prosecution - Whether interests of justice require disclosure - Consideration of efficacy of freezing order where minimal assets disclosed - Balancing public interest in compliance with disclosure order against potential detriment to defendant - Confidential affidavit ordered to be returned to defendant - Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235, considered.
EVIDENCE - Privilege against self-incrimination - Freezing order - Disclosure order - Section 128A of Evidence Act 2008 (Vic) - Whether valid objection made - Whether separate affidavit adequately set out basis of objection - Whether reasonable grounds for objection - Whether real and appreciable risk of prosecution - Whether interests of justice require disclosure - Consideration of efficacy of freezing order where minimal assets disclosed - Balancing public interest in compliance with disclosure order against potential detriment to defendant - Confidential affidavit ordered to be returned to defendant - Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235, considered.
CONTRACTS - Construction of commercial contract - Share sale agreement - Company's business involves sale of redeemable gift cards - Deferred payment based on breakage calculations - Obligation to provide supporting information, calculations and documentation - Whether includes underlying Source Data - Whether includes Breakage Brief provided to consultant - Whether includes communications with consultant - Whether includes documents relied upon to prepare notices - Meaning of identical phrases in different contractual clauses - Whether right to access books and records expired after review period - Reasonableness of requests by party's adviser.
CONTRACTS - Construction of commercial contract - Share sale agreement - Company's business involves sale of redeemable gift cards - Deferred payment based on breakage calculations - Obligation to provide supporting information, calculations and documentation - Whether includes underlying Source Data - Whether includes Breakage Brief provided to consultant - Whether includes communications with consultant - Whether includes documents relied upon to prepare notices - Meaning of identical phrases in different contractual clauses - Whether right to access books and records expired after review period - Reasonableness of requests by party's adviser.
PRACTICE AND PROCEDURE - Application to adjourn trial - Application brought on the first day of trial by unrepresented defendants - Where application sought an adjournment for a month - Where trial date previously vacated and re-listed from September to October 2025, and then adjourned for two days on the first day of re-listed trial - Where defendants failed to pay solicitor and solicitor ceased to act in the week leading up to the re-listed trial - Where defendants seek a month adjournment in order to prepare for trial as self-represented litigants - No adequate explanation for lack of preparedness for trial - Prejudice to plaintiff and case management would result from adjournment for a month - Application refused, but adjournment granted for one week - Dawn v Carlisle Homes Pty Ltd [2025] VSCA 58, applied.
PRACTICE AND PROCEDURE - Application to adjourn trial - Application brought on the first day of trial by unrepresented defendants - Where application sought an adjournment for a month - Where trial date previously vacated and re-listed from September to October 2025, and then adjourned for two days on the first day of re-listed trial - Where defendants failed to pay solicitor and solicitor ceased to act in the week leading up to the re-listed trial - Where defendants seek a month adjournment in order to prepare for trial as self-represented litigants - No adequate explanation for lack of preparedness for trial - Prejudice to plaintiff and case management would result from adjournment for a month - Application refused, but adjournment granted for one week - Dawn v Carlisle Homes Pty Ltd [2025] VSCA 58, applied.
PRACTICE AND PROCEDURE - Group proceedings - Multiplicity of proceedings - Competing carriage applications - Applications for group costs order and stay of proceedings - Principles applied - Which arrangement is in the best interests of the group members - Experience of legal teams - Funding and available resources - Importance of transparency in funding arrangements - Importance of realistic litigation budgets - Group costs order appropriate - Supreme Court Act 1986 (Vic) s 33ZDA.
PRACTICE AND PROCEDURE - Group proceedings - Multiplicity of proceedings - Competing carriage applications - Applications for group costs order and stay of proceedings - Principles applied - Which arrangement is in the best interests of the group members - Experience of legal teams - Funding and available resources - Importance of transparency in funding arrangements - Importance of realistic litigation budgets - Group costs order appropriate - Supreme Court Act 1986 (Vic) s 33ZDA.
GROUP PROCEEDINGS - Costs - Application for a group costs order - Whether proposed tiered or ratcheted rate starting at 32.5 per cent is appropriate and necessary - Principles to be applied - Tiered or ratcheted rate not appropriate and necessary - GCO made at a flat rate of 30 per cent - Supreme Court Act 1986 (Vic) s 33ZDA.
GROUP PROCEEDINGS - Costs - Application for a group costs order - Whether proposed tiered or ratcheted rate starting at 32.5 per cent is appropriate and necessary - Principles to be applied - Tiered or ratcheted rate not appropriate and necessary - GCO made at a flat rate of 30 per cent - Supreme Court Act 1986 (Vic) s 33ZDA.
COSTS - First defendant made application seeking (1) transfer of the proceeding under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) and (2) that the Court decline to exercise jurisdiction - Both aspects of the application were dismissed - Extent to which the other defendants joined in any and what aspects of the application - Hearing earlier adjourned to permit, among other things, service of notices under s 78B of the Judiciary Act 1903 (Cth) and relevant written submissions by the plaintiff - Costs principles - Costs thrown away - Issue based costs orders - Stay - Thurin v Krongold Constructions (Aust) Pty Ltd (No 2) [2022] VSCA 252 considered - Orders made.
COSTS - First defendant made application seeking (1) transfer of the proceeding under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) and (2) that the Court decline to exercise jurisdiction - Both aspects of the application were dismissed - Extent to which the other defendants joined in any and what aspects of the application - Hearing earlier adjourned to permit, among other things, service of notices under s 78B of the Judiciary Act 1903 (Cth) and relevant written submissions by the plaintiff - Costs principles - Costs thrown away - Issue based costs orders - Stay - Thurin v Krongold Constructions (Aust) Pty Ltd (No 2) [2022] VSCA 252 considered - Orders made.
CONTEMPT OF COURT - Application by originating motion and summons seeking orders that respondent guilty of 15 charges of contempt - Conduct comprising comments made by respondent in open court and by correspondence - Respondent made abusive and disrespectful comments to County Court judge in court - Respondent sent numerous emails to court containing threatening language and allegations of impropriety and corruption - Correspondence sent to judges' chambers and court registries - Whether conduct had tendency to interfere with administration of justice or otherwise scandalise the court - Contempt found proven.
CONTEMPT OF COURT - Application by originating motion and summons seeking orders that respondent guilty of 15 charges of contempt - Conduct comprising comments made by respondent in open court and by correspondence - Respondent made abusive and disrespectful comments to County Court judge in court - Respondent sent numerous emails to court containing threatening language and allegations of impropriety and corruption - Correspondence sent to judges' chambers and court registries - Whether conduct had tendency to interfere with administration of justice or otherwise scandalise the court - Contempt found proven.
Supreme Court (General Civil Procedure) Rules 2015, r 75.08.1; Charter of Human Rights and Responsibilities Act 2006, ss 8, 15, 21 and 24; Evidence Act 2008, s 161.
John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351; R v Dunbabin; ex parte Williams (1935) 53 CLR 434; Witham v Holloway (1995) 183 CLR 525; LCM Litigation Fund Pty Ltd v Coope [2017] NSWCA 200; R v Slaveski [2011] VSC 643; Prothonotary of the Supreme Court of New South Wales v Katelaris [2008] NSWSC 389; Re Dyce Sombre (1849) 1 MaC & G 116; 41 ER 1207; Gallagher v Durack (1983) 152 CLR 238; Ex parte Attorney- General; Re Goodwin(1969) 70 SR (NSW) 413; Re Wiseman [1969] NZLR 55; R v Collins [1954] VLR 46; McGuirk v University of New South Wales [2009] NSWSC 1058, considered.
EVIDENCE
EVIDENCE
DEFAMATION - Validity of concerns notice - Serious financial loss - Whether imputations particularised - Defamation Act 2005, ss 10A, 12A, 12B - Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726.
DEFAMATION - Validity of concerns notice - Serious financial loss - Whether imputations particularised - Defamation Act 2005, ss 10A, 12A, 12B - Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726.
ADMINISTRATION AND PROBATE - TESTATOR'S FAMILY MAINTENANCE - Extension of time to bring application for provision under s 99 of the Administration and Probate Act 1958 (Vic) - Whether implied application for extension of time in originating motion - Alternatively, whether plaintiff should have leave to amend originating motion to seek extension of time - Green & Anor v Ellul & Ors [2018] SASCFC 100 considered and applied - Held: No implied application for extension of time made by Originating Motion - Application to amend originating motion dismissed - Summary judgment granted to defendant.
ADMINISTRATION AND PROBATE - TESTATOR'S FAMILY MAINTENANCE - Extension of time to bring application for provision under s 99 of the Administration and Probate Act 1958 (Vic) - Whether implied application for extension of time in originating motion - Alternatively, whether plaintiff should have leave to amend originating motion to seek extension of time - Green & Anor v Ellul & Ors [2018] SASCFC 100 considered and applied - Held: No implied application for extension of time made by Originating Motion - Application to amend originating motion dismissed - Summary judgment granted to defendant.
PRACTICE AND PROCEDURE - Allegation of contempt by the Plaintiff against the Defendants' use of documents discovered in the proceeding - Whether use of discovered documents likely to interfere or obstruct administration of justice - Breach of the Harman undertaking found - Contempt established - Apology given - Purge of contempt - Application for relief from Harman undertaking as an alternative defence - Application for retrospective release from the Harman undertaking was granted - Allegation of contempt by the Plaintiff against the Defendants for interfering with a witness - Whether Defendants' conduct amounts to intimidation of a witness - Contempt not established on this basis.
PRACTICE AND PROCEDURE - Allegation of contempt by the Plaintiff against the Defendants' use of documents discovered in the proceeding - Whether use of discovered documents likely to interfere or obstruct administration of justice - Breach of the Harman undertaking found - Contempt established - Apology given - Purge of contempt - Application for relief from Harman undertaking as an alternative defence - Application for retrospective release from the Harman undertaking was granted - Allegation of contempt by the Plaintiff against the Defendants for interfering with a witness - Whether Defendants' conduct amounts to intimidation of a witness - Contempt not established on this basis.
Harman v Secretary of State for the Home Department [1983] 1 AC 280; R v Taylor [1999] 3 VR 657; R v Witt (No 2) [2016] VSC 142; Hearne v Street (2008) 235 CLR 125; Saridas v Papuan Oil Search Limited [2025] NSWSC 481; PharmX Pty Ltd (in its capacity as trustee of PharmX Unit Trust) v Fred IT Group Pty Ltd (No 2) [2019] VSC 494; Yap v Lee (No 2) [2024] VSC 730; Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67; R v Silverstein [2020] VSCA 233; R v Wright (No 1) [1968] VR 164; Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 38.01, considered; Khoury v Kirwan (No 4) [2021] VSC 333, distinguished.
PRACTICE AND PROCEDURE - Costs orders in three related matters - Contempt application - Two appeals from VCAT - In one matter extension of time granted and appeal dismissed - In second matter appeal allowed and VCAT decision set aside - Whether usual order for costs appropriate in the circumstances - Claim for fixed costs by the Respondents - Whether the matters were a public interest matter - Costs awarded on standard basis taxed in default of agreement.
PRACTICE AND PROCEDURE - Costs orders in three related matters - Contempt application - Two appeals from VCAT - In one matter extension of time granted and appeal dismissed - In second matter appeal allowed and VCAT decision set aside - Whether usual order for costs appropriate in the circumstances - Claim for fixed costs by the Respondents - Whether the matters were a public interest matter - Costs awarded on standard basis taxed in default of agreement.
PRACTICE AND PROCEDURE - Alleged breach of r 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Where r 28.05 concerns inspection of documents and covers persons not party to a proceeding - Where no evidence that documents in question accessed under r 28.05 - Where reasonable inference that fourth respondent came into possession of documents as a party representative - Where documents not covered by order of Court that they remain confidential - No breach found - Summons dismissed.
PRACTICE AND PROCEDURE - Alleged breach of r 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Where r 28.05 concerns inspection of documents and covers persons not party to a proceeding - Where no evidence that documents in question accessed under r 28.05 - Where reasonable inference that fourth respondent came into possession of documents as a party representative - Where documents not covered by order of Court that they remain confidential - No breach found - Summons dismissed.
PRACTICE AND PROCEDURE - Disclosure of documents in separate but related proceedings - Where contempt allegations made against first respondent and others - Harman undertaking raised - Whether affidavit subject to the implied undertaking in Hearne v Street - Whether breach of implied undertaking - Where documents not of the character that would attract implied undertaking - Where affidavit filed voluntarily, not under court compulsion - Affidavit not subject to implied undertaking - Contempt not made out - Summons dismissed.
Harman v Secretary of State for the Home Department [1983] 1 AC 280; Hearne v Street (2008) 235 CLR 125; Davey v Silverstein [2019] VSC 724; Yap v Lee (No 2) [2024] VSC 730.
PRACTICE AND PROCEDURE - Allegation that confidential documents used in false and misleading way - Where information contained in documents not confidential in relevant sense - Where emails attaching documents set out basis for settlement of proceedings - Where nothing inappropriate or prohibited in such an offer being made - Where content may be matter of dispute but no basis for contempt - Summons dismissed.
PRACTICE AND PROCEDURE - Civil Procedure Act 2010 (Vic), ss 62, 63 and 64 - Whether claim enjoys a real prospect of success - Proceeding dismissed.
PRACTICE AND PROCEDURE - Civil Procedure Act 2010 (Vic), ss 62, 63 and 64 - Whether claim enjoys a real prospect of success - Proceeding dismissed.
PART IV OF THE ADMINISTRATION AND PROBATE ACT 1958 (VIC) - Claim for further provision made out of time - Time for assessing adequacy of provision - Summary judgment where failure to establish jurisdiction where provision adequate - Application to extend time under s 99.
PRACTICE AND PROCEDURE - Costs - Executor's application for costs from the estate of the deceased in circumstances where the application for executor's commission under s 65 of the Administration and Probate Act 1958 (Vic) was refused - Rule 10.10 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) - Rules 63.01 and 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application refused - Second plaintiff to bear own cost and to pay costs of the first plaintiff's costs of the second plaintiff's application for executor's commission on a standard basis without indemnity from the deceased's estate.
PRACTICE AND PROCEDURE - Costs - Executor's application for costs from the estate of the deceased in circumstances where the application for executor's commission under s 65 of the Administration and Probate Act 1958 (Vic) was refused - Rule 10.10 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) - Rules 63.01 and 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application refused - Second plaintiff to bear own cost and to pay costs of the first plaintiff's costs of the second plaintiff's application for executor's commission on a standard basis without indemnity from the deceased's estate.
PRACTICE AND PROCEDURE - First defendant's application for leave to amend their defence - Choice of laws - Explanation for delay - Leave granted - Aon Risk v ANU (2009) 239 CLR 175 - I.C. Formwork Services Pty Limited v Moir (No 2) 356 FLR 111.
PRACTICE AND PROCEDURE - First defendant's application for leave to amend their defence - Choice of laws - Explanation for delay - Leave granted - Aon Risk v ANU (2009) 239 CLR 175 - I.C. Formwork Services Pty Limited v Moir (No 2) 356 FLR 111.
PRACTICE AND PROCEDURE - Plaintiff's application that the first defendant lost legal client privilege - No inconsistency with maintenance of legal client privilege - Application rejected - Section 122(2) Evidence Act 2008 (Vic) - Osland v Secretary to the Department of Justice [2007] VSCA 96 - Mann v Carnell (1999) 201 CLR 1 - Viterra Malt Pty Ltd v Cargill Australia Ltd [2018] VSCA 118.
PRACTICE AND PROCEDURE - Application for summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (Vic) - Whether the plaintiff's claims have a real prospect of success - Failure to disclose a proper or reasonable cause of action - Whether proceeding vexatious or an abuse of process - Alternative applications pursuant to rr 23.01 and 23.02 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) to permanently stay or strike out the proceeding - Proceeding summarily dismissed.
PRACTICE AND PROCEDURE - Application for summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (Vic) - Whether the plaintiff's claims have a real prospect of success - Failure to disclose a proper or reasonable cause of action - Whether proceeding vexatious or an abuse of process - Alternative applications pursuant to rr 23.01 and 23.02 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) to permanently stay or strike out the proceeding - Proceeding summarily dismissed.
ENVIRONMENTAL LAW - Pecuniary penalty, adverse publicity order, compensation and ancillary orders sought for breach of environmental laws - Parties jointly sought the Court's approval of proposed consent orders - Parties provided joint submissions and agreed statement of facts - Defendant caused environmental damage by exceeding odour and leachate limits - Defendant complied with improvement actions and investments to reduce risk of similar incident - Insight and remorse demonstrated by defendant - Court satisfied to adopt joint submissions and proposed consent orders as basis of judgment - Court satisfied that the penalty was just and proportionate - Cooperation of the parties commended - Environment Protection Act 2017 (Vic) ss 25(1), 63(1).
ENVIRONMENTAL LAW - Pecuniary penalty, adverse publicity order, compensation and ancillary orders sought for breach of environmental laws - Parties jointly sought the Court's approval of proposed consent orders - Parties provided joint submissions and agreed statement of facts - Defendant caused environmental damage by exceeding odour and leachate limits - Defendant complied with improvement actions and investments to reduce risk of similar incident - Insight and remorse demonstrated by defendant - Court satisfied to adopt joint submissions and proposed consent orders as basis of judgment - Court satisfied that the penalty was just and proportionate - Cooperation of the parties commended - Environment Protection Act 2017 (Vic) ss 25(1), 63(1).
JUDICIAL REVIEW - Appeal from Magistrates' Court - Charge of 'sexual activity directed at another person' - Magistrate found unsolicited exposure of genitals via video did not constitute 'sexual activity' - Was Magistrate's order a final order; is Appeal Proceeding competent - Issues on appeal: what material may Court have consideration to in determining whether there was an error of law; was respondent's alleged conduct 'sexual activity'; Did the Magistrate err in finding no 'sexual activity' - Appeal allowed - Order of Magistrate set aside - Proceeding remitted to Magistrates' Court - Crimes Act 1958 (Vic) ss 35D, 37A, 37B, 48; Summary Offences Act 1966 (Vic) s 19; Criminal Procedure Act 2009 (Vic) s 272; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 56.
JUDICIAL REVIEW - Appeal from Magistrates' Court - Charge of 'sexual activity directed at another person' - Magistrate found unsolicited exposure of genitals via video did not constitute 'sexual activity' - Was Magistrate's order a final order; is Appeal Proceeding competent - Issues on appeal: what material may Court have consideration to in determining whether there was an error of law; was respondent's alleged conduct 'sexual activity'; Did the Magistrate err in finding no 'sexual activity' - Appeal allowed - Order of Magistrate set aside - Proceeding remitted to Magistrates' Court - Crimes Act 1958 (Vic) ss 35D, 37A, 37B, 48; Summary Offences Act 1966 (Vic) s 19; Criminal Procedure Act 2009 (Vic) s 272; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 56.
ADMINISTRATIVE LAW - Judicial Review - Appeal from Victorian Civil and Administrative Tribunal - Whether there was an error of law in statutory construction - Town planning - Repeat appeal - Decision to refuse to grant a permit - Non-residential use in residential zone - Wrong question or wrong test applied - Neighbourhood Residential Zone Schedule 3 (NRZ3) - Banyule Planning Scheme.
ADMINISTRATIVE LAW - Judicial Review - Appeal from Victorian Civil and Administrative Tribunal - Whether there was an error of law in statutory construction - Town planning - Repeat appeal - Decision to refuse to grant a permit - Non-residential use in residential zone - Wrong question or wrong test applied - Neighbourhood Residential Zone Schedule 3 (NRZ3) - Banyule Planning Scheme.
Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148; Planning and Environment Act 1987 (Vic).
ADMINISTRATIVE LAW - Judicial Review - Appeal from decision of Victorian Civil and Administrative Tribunal - Whether the Tribunal erred in statutory construction - Consideration of a jurisdictional question - Power to consider alternative use of land - Questions of law and fact - Dispute between developer and Wyndham City Council - Town planning - Generally in accordance principles - Precinct Structure Plan - Development Contributions Plan - Meaning of 'potential'.
ADMINISTRATIVE LAW - Judicial Review - Appeal from decision of Victorian Civil and Administrative Tribunal - Whether the Tribunal erred in statutory construction - Consideration of a jurisdictional question - Power to consider alternative use of land - Questions of law and fact - Dispute between developer and Wyndham City Council - Town planning - Generally in accordance principles - Precinct Structure Plan - Development Contributions Plan - Meaning of 'potential'.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under Residential Tenancies Act 1997 (Vic) - Application for extension of time - Extension of time granted - Where Residential Rental Provider gave Renter a notice of proposed rent increase under s 44(1) - Where Renter believed notice to be invalid and asked VCAT to set it aside - Where Renter's application included a request for compensation which was not maintained at the hearing - Where VCAT dismissed the application on the basis of having no jurisdiction to make the order sought - Whether VCAT had jurisdiction to hear an application for an ancillary order in the absence of an application for a substantive order - Where no jurisdiction to make such an order - Leave to appeal allowed - Appeal dismissed.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under Residential Tenancies Act 1997 (Vic) - Application for extension of time - Extension of time granted - Where Residential Rental Provider gave Renter a notice of proposed rent increase under s 44(1) - Where Renter believed notice to be invalid and asked VCAT to set it aside - Where Renter's application included a request for compensation which was not maintained at the hearing - Where VCAT dismissed the application on the basis of having no jurisdiction to make the order sought - Whether VCAT had jurisdiction to hear an application for an ancillary order in the absence of an application for a substantive order - Where no jurisdiction to make such an order - Leave to appeal allowed - Appeal dismissed.
Residential Tenancies Act 1997 (Vic), ss 44, 45, 46, 452, 472; *Victorian Civil and Administrative Tribunal Act 1998 *(Vic), ss 124, 148; Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic), r 4.08.
Victoria v Bradto [2006] VCAT 1864; Xiao v Perpetual Trustee Company Ltd [2009] V ConvR 54-756; [2008] VSC 412; Kracke v Mental Health Review Board [2009] VCAT 646; Casa Di Iorio Investments Pty Ltd v Guirguis [2017] VSC 266; Rosewarne v Lim [2022] VCAT 1015.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under the Residential Tenancies Act 1997 (Vic) - Application to set aside VCAT decision ordering possession - Where Residential Rental Provider gave Renter a notice to vacate under s 91ZZB (premises to be sold) - Whether mandatory documentary evidence supporting the notice was valid - Whether redaction of time period on exclusive sale authority invalidated the authority, thereby invalidating the notice to vacate - Where no explanation provided for the redaction - Redaction affected the transparency of the authority - Authority found to be defective, therefore validity of notice impacted - Invalid notice - Leave to appeal allowed - Order for possession set aside - Appeal dismissed.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under the Residential Tenancies Act 1997 (Vic) - Application to set aside VCAT decision ordering possession - Where Residential Rental Provider gave Renter a notice to vacate under s 91ZZB (premises to be sold) - Whether mandatory documentary evidence supporting the notice was valid - Whether redaction of time period on exclusive sale authority invalidated the authority, thereby invalidating the notice to vacate - Where no explanation provided for the redaction - Redaction affected the transparency of the authority - Authority found to be defective, therefore validity of notice impacted - Invalid notice - Leave to appeal allowed - Order for possession set aside - Appeal dismissed.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under the Residential Tenancies Act 1997 (Vic) - Application to set aside VCAT decision ordering possession - Where Residential Rental Provider gave Renter a notice to vacate under s 91ZZB (premises to be sold) - Whether it was reasonable and proportionate for VCAT to make an order for possession - Whether Residential Rental Provider had a genuine intention to sell the property - Whether previous attempts to gain possession for the same reason constituted retaliation in response to repeated repair and related applications made by the Renter - Where rent was being paid into a rent special account - Whether Tribunal failed to take into account impact on Renter, as required by s 330(1(f) of the Act - Whether Tribunal actively engaged with Renter's submissions concerning the impact of a possession order upon her - Whether Tribunal placed greater emphasis upon unsubstantiated evidence provided by the Residential Rental Provider, at the same time discounting evidence provided by the Renter - Whether Renter given a reasonable opportunity to present her evidence and make submissions - Whether Renter afforded procedural fairness - Renter not given fair hearing - Leave to appeal allowed - Order for possession set aside - Appeal dismissed.
Residential Tenancies Act 1997 (Vic), ss 77, 91ZZB, 91ZZO, 91ZZS, 322(1), 330, 330A, 486A(1); Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 97-98, 148(1), 148(7)(b).
Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439; Gombac Group Pty Ltd v Vero Insurance Ltd [2005] VSC 442; Dura (Australia) Constructions Pty Ltd v SC Land Richmond Pty Ltd (Domestic Building) [2006] VCAT 2120; Tomasevic v Travaglini [2007] VSC 337; Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd [2008] VCAT 1479; Metricon Homes Pty Ltd v Sawyer [2013] VSC 518; Shrestha v Migration Review Tribunal (2015) 229 FCR 301; Trkulja v Markovic [2015] VSCA 298; SZVCP v Minister for Immigration and Border Protection (2016) 238 FCR 15; LKZ v CGS (Residential Tenancies) [2021] VCAT 1391; Hanson v Director of Housing [2022] VSC 710; Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; Kao v Mazi (Residential Tenancies) [2024] VCAT 1179; Moustra v Elder [2024] VCAT 813.
CRIMINAL LAW - Bail - Charges of using a carriage service to publish violent extremist material, possessing and controlling such material, threatening to use force and violence against a group distinguished by religion and using a carriage service to make a threat to kill - Child applicant - Applicant assessed as unsuitable by Youth Justice for bail service - Failure to abide by bail conditions on previous grants of bail - Longstanding fixation with terrorist organisation and ideology - Acquisition of weapons that are unaccounted for - Whether exceptional circumstances made out - Whether unacceptable risk of endangering the safety or welfare of any person, or committing an offence while on bail - Exceptional circumstances made out - Unacceptable risk - Bail refused - Crimes Act 1914 (Cth) s 15AA; Bail Act 1977 (Vic) ss 1B, 3AAA, 3B and 4E.
CRIMINAL LAW - Bail - Charges of using a carriage service to publish violent extremist material, possessing and controlling such material, threatening to use force and violence against a group distinguished by religion and using a carriage service to make a threat to kill - Child applicant - Applicant assessed as unsuitable by Youth Justice for bail service - Failure to abide by bail conditions on previous grants of bail - Longstanding fixation with terrorist organisation and ideology - Acquisition of weapons that are unaccounted for - Whether exceptional circumstances made out - Whether unacceptable risk of endangering the safety or welfare of any person, or committing an offence while on bail - Exceptional circumstances made out - Unacceptable risk - Bail refused - Crimes Act 1914 (Cth) s 15AA; Bail Act 1977 (Vic) ss 1B, 3AAA, 3B and 4E.
CRIMINAL LAW - Bail - Applicant charged with trafficking in drug of dependence and other charges - Applicant accused of a Schedule 2 offence while subject to a summons to answer to a charge of another Schedule 2 offence - Requirement to show exceptional circumstances - Whether exceptional circumstances made out - Whether applicant an unacceptable risk - Bail granted - Bail Act 1977, ss 1B, 3AAA, 4AA, 4A, 4D and 4E.
CRIMINAL LAW - Bail - Applicant charged with trafficking in drug of dependence and other charges - Applicant accused of a Schedule 2 offence while subject to a summons to answer to a charge of another Schedule 2 offence - Requirement to show exceptional circumstances - Whether exceptional circumstances made out - Whether applicant an unacceptable risk - Bail granted - Bail Act 1977, ss 1B, 3AAA, 4AA, 4A, 4D and 4E.
CRIMINAL LAW - Bail - Aggravated burglary and assault with intent to commit a sexual offence ('trial indictment charges'), and persistent contravention of family violence intervention order ('FVIO') (x2) ('plea indictment charges') - Alleged offending against former partner - Prior convictions for offences including persistent contravention of FVIO and assault against same complainant - Applicant subject to community correction order at time of offending - Two trials of trial indictment charges commenced and then juries discharged - Third trial listed 7 October 2025 - Bail refused by trial judge following aborted trials - Exceptional circumstances test - Combination of matters including relative strength of Crown case, delay and availability of supports relied upon in proof of exceptional circumstances - Exceptional circumstances not established - Unacceptable risk in any event - Application refused - Bail Act 1977 ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5AAAA.
CRIMINAL LAW - Bail - Aggravated burglary and assault with intent to commit a sexual offence ('trial indictment charges'), and persistent contravention of family violence intervention order ('FVIO') (x2) ('plea indictment charges') - Alleged offending against former partner - Prior convictions for offences including persistent contravention of FVIO and assault against same complainant - Applicant subject to community correction order at time of offending - Two trials of trial indictment charges commenced and then juries discharged - Third trial listed 7 October 2025 - Bail refused by trial judge following aborted trials - Exceptional circumstances test - Combination of matters including relative strength of Crown case, delay and availability of supports relied upon in proof of exceptional circumstances - Exceptional circumstances not established - Unacceptable risk in any event - Application refused - Bail Act 1977 ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5AAAA.
CRIMINAL LAW - Murder - Attempted murder - Conduct endangering life - Where accused drove car into pedestrians and collided into car - Whether the accused had murderous intent - Whether internet search history admissible - Whether resignation text messages to employer admissible - Whether witness description of accused driving into pedestrians as 'deliberate' admissible - Whether admission to witness admissible - Whether statement by Dr Carroll was expressing an opinion about the accused's culpability or reporting an admission - Whether admission to paramedics in police station admissible - Evidence Act 2008 (Vic) ss 76, 78, 90, 137 - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 20, 21.
CRIMINAL LAW - Murder - Attempted murder - Conduct endangering life - Where accused drove car into pedestrians and collided into car - Whether the accused had murderous intent - Whether internet search history admissible - Whether resignation text messages to employer admissible - Whether witness description of accused driving into pedestrians as 'deliberate' admissible - Whether admission to witness admissible - Whether statement by Dr Carroll was expressing an opinion about the accused's culpability or reporting an admission - Whether admission to paramedics in police station admissible - Evidence Act 2008 (Vic) ss 76, 78, 90, 137 - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 20, 21.
CRIMINAL LAW - Trial - Attempted murder - Evidence - Victim allegedly set fire by the accused after flammable liquid thrown on her and blowtorch lit - Findings by forensic officer of flammable substances in crime scene samples - Flammable liquids found in shed of accused - Opinion expressed by forensic officer as to cause of fire - CCTV footage showing accused picking up and walking away with blowtorch in kitchen of his house shortly before the fire - Similar looking blowtorch found in tray of his utility vehicle shortly after fire - Whether items of evidence relevant - Whether should be excluded pursuant to ss 135 or 137 - Evidence clearly relevant, and of substantial probative value - No danger of unfair prejudice - No basis for exclusion under ss 135 or 137 - Evidence admissible - Evidence Act 2008 ss 55, 56, 135, 137.
CRIMINAL LAW - Trial - Attempted murder - Evidence - Victim allegedly set fire by the accused after flammable liquid thrown on her and blowtorch lit - Findings by forensic officer of flammable substances in crime scene samples - Flammable liquids found in shed of accused - Opinion expressed by forensic officer as to cause of fire - CCTV footage showing accused picking up and walking away with blowtorch in kitchen of his house shortly before the fire - Similar looking blowtorch found in tray of his utility vehicle shortly after fire - Whether items of evidence relevant - Whether should be excluded pursuant to ss 135 or 137 - Evidence clearly relevant, and of substantial probative value - No danger of unfair prejudice - No basis for exclusion under ss 135 or 137 - Evidence admissible - Evidence Act 2008 ss 55, 56, 135, 137.
CRIMINAL LAW - Trial - Attempted murder - Prosecution seeks leave, part-way through its case, to rely on complicity as an additional pathway to guilt beyond the main prosecution contention - Opposed by defence - Expansion of Crown case necessary response to opaque defence case - Application granted - Jury subsequently discharged without verdict by agreement of parties.
CRIMINAL LAW - Trial - Attempted murder - Prosecution seeks leave, part-way through its case, to rely on complicity as an additional pathway to guilt beyond the main prosecution contention - Opposed by defence - Expansion of Crown case necessary response to opaque defence case - Application granted - Jury subsequently discharged without verdict by agreement of parties.
CRIMINAL LAW - Trial - Jury Directions Act 2015 discussions - Question whether prosecution should be permitted to rely upon two aspects of the conduct of the accused as incriminating conduct - In aftermath of incident in which complainant set alight, the accused directed his partner to terminate a call to triple 0 - Accused and family then immediately drove away from the scene - Accused drove to police station - Question whether the two items of conduct passed the test for use as incriminating conduct in s 20(1)(b) of the Act - Evidence permitted to be relied on as incriminating conduct - Jury Directions Act ss 18-21.
CRIMINAL LAW - Trial - Jury Directions Act 2015 discussions - Question whether prosecution should be permitted to rely upon two aspects of the conduct of the accused as incriminating conduct - In aftermath of incident in which complainant set alight, the accused directed his partner to terminate a call to triple 0 - Accused and family then immediately drove away from the scene - Accused drove to police station - Question whether the two items of conduct passed the test for use as incriminating conduct in s 20(1)(b) of the Act - Evidence permitted to be relied on as incriminating conduct - Jury Directions Act ss 18-21.
CRIMINAL LAW - Attempted murder of child - Where finding of not guilty by reason of mental impairment - Where HR declared liable to supervision - Whether supervision order should be imposed or unconditional release ordered - Where major depressive disorder in remission with treatment by private psychiatrist - Where HR is currently compliant with treatment and medication in the community - Where Forensicare initially indicated unable to offer additional services and treatment to HR - Where concern that risk of harm may arise if treatment and medication ceased - Where psychiatric opinion that HR will need to continue taking medication for remainder of her life - Where HR told psychiatrist that she thought she could cease taking medication in a few months - Appropriate to impose non-custodial supervision order on condition that continue with treatment - Whether supervisor should be appointed - Where Director of Public Prosecutions does not consent to supervising HR and no governmental body providing services - Whether needs to be, or power to appoint, a supervisor - Where Forensicare then agreed to act as supervisor and indicated it could provide services - Richards (a pseudonym) v The Queen (No 2) [2017] VSCA 174 - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 24, 26, 29, 30A, 31, 41, 47.
CRIMINAL LAW - Attempted murder of child - Where finding of not guilty by reason of mental impairment - Where HR declared liable to supervision - Whether supervision order should be imposed or unconditional release ordered - Where major depressive disorder in remission with treatment by private psychiatrist - Where HR is currently compliant with treatment and medication in the community - Where Forensicare initially indicated unable to offer additional services and treatment to HR - Where concern that risk of harm may arise if treatment and medication ceased - Where psychiatric opinion that HR will need to continue taking medication for remainder of her life - Where HR told psychiatrist that she thought she could cease taking medication in a few months - Appropriate to impose non-custodial supervision order on condition that continue with treatment - Whether supervisor should be appointed - Where Director of Public Prosecutions does not consent to supervising HR and no governmental body providing services - Whether needs to be, or power to appoint, a supervisor - Where Forensicare then agreed to act as supervisor and indicated it could provide services - Richards (a pseudonym) v The Queen (No 2) [2017] VSCA 174 - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 24, 26, 29, 30A, 31, 41, 47.
CRIMINAL LAW - Application to suspend reporting obligations under the Sex Offenders Registration Act 2004 (Vic) - Applicant subjected to reporting obligations in 2009 following conviction on four counts of sexual penetration of a child under the age of 16, contrary to s 45(1) of the Crimes Act 1958 (Vic), as it then stood - Application supported by expert evidence that applicant is a low risk of reoffending - Application also supported by testimonials from applicant's employer, family, friends and even the original complainant - Application unopposed by Chief Commissioner of Police - Pseudonym order also in the interests of justice - Sex Offenders Registration Act 2004 (Vic), ss 39, 40.
CRIMINAL LAW - Application to suspend reporting obligations under the Sex Offenders Registration Act 2004 (Vic) - Applicant subjected to reporting obligations in 2009 following conviction on four counts of sexual penetration of a child under the age of 16, contrary to s 45(1) of the Crimes Act 1958 (Vic), as it then stood - Application supported by expert evidence that applicant is a low risk of reoffending - Application also supported by testimonials from applicant's employer, family, friends and even the original complainant - Application unopposed by Chief Commissioner of Police - Pseudonym order also in the interests of justice - Sex Offenders Registration Act 2004 (Vic), ss 39, 40.
CONTRACT - Plaintiff claiming breach of asset purchase agreement - Whether defendant liable under agreement - Whether plaintiff had warranty claim - Whether plant and equipment in good working order and fit for purpose - Whether plaintiff gave notice of warranty claims - Whether defendant disclosed faults - Whether defendant liable under Australian Consumer Law - Whether directors of defendant companies liable.
CONTRACT - Plaintiff claiming breach of asset purchase agreement - Whether defendant liable under agreement - Whether plaintiff had warranty claim - Whether plant and equipment in good working order and fit for purpose - Whether plaintiff gave notice of warranty claims - Whether defendant disclosed faults - Whether defendant liable under Australian Consumer Law - Whether directors of defendant companies liable.