TESTATOR'S FAMILY MAINTENANCE - Family provision - Adequacy of reasons - Applicant adult son of deceased - Respondent wife of deceased - Whole of deceased's estate passed to respondent - Applicant sought provision of $265,000 under Administration and Probate Act 1958 pt IV - Associate judge refused application on basis deceased not having failed to make adequate provision - Reasons not expressly finding deceased owed moral duty to applicant - Judge's consideration of adequacy of provision depended on anterior finding of moral duty - Implicit in judge's reasons that moral duty was established - Whether associate judge erred in determination that deceased failed to make adequate provision to applicant by focusing only on whether to order provision in amount sought by applicant - No error.
TESTATOR'S FAMILY MAINTENANCE - Family provision - Adequacy of reasons - Applicant adult son of deceased - Respondent wife of deceased - Whole of deceased's estate passed to respondent - Applicant sought provision of $265,000 under Administration and Probate Act 1958 pt IV - Associate judge refused application on basis deceased not having failed to make adequate provision - Reasons not expressly finding deceased owed moral duty to applicant - Judge's consideration of adequacy of provision depended on anterior finding of moral duty - Implicit in judge's reasons that moral duty was established - Whether associate judge erred in determination that deceased failed to make adequate provision to applicant by focusing only on whether to order provision in amount sought by applicant - No error.
TESTATOR'S FAMILY MAINTENANCE - Alleged error in determination of adequacy of provision - Value of estate approximately $420,000-$487,500 - 'Reasonably modest' size of estate central to associate judge's finding no failure to make adequate provision - Financial resources of respondent included real estate worth $1,920,000-$2,287,500 formerly held jointly with deceased and cash and superannuation accounts worth $1,262,000 - Whether judge erred by failing to take proper account of respondent's financial resources - Size of deceased's estate of relatively minor significance to respondent's financial position - Leave to appeal granted - Appeal allowed.
TESTATOR'S FAMILY MAINTENANCE - Order for provision - Jurisdictional requirements in Administration and Probate Act 1958, s 91(2) satisfied - Applicant adult son having fallen on hard times following divorce - Applicant seeking provision of $265,000 to provide house deposit and discharge debts - Debts not so burdensome as to warrant provision - Applicant and wife having some means to save for house deposit - Applicant able to purchase suitable property with $147,000 deposit by taking mortgage insurance - Moral duty - Order made for provision of $125,000.
WORDS AND PHRASES - 'moral duty' - Administration and Probate Act 1958, s 91(2)(c).
Administration and Probate Act 1958, ss 90, 91, 91A.
Singer v Berghouse (1994) 181 CLR 201, Blair v Blair (2004) 10 VR 69, Walsh v Walsh [2013] NSWSC 1065, referred to.
CRIMINAL LAW - Appeal - Bail - Appeal against refusal of bail - Appellant charged with aggravated burglary (two charges), theft, theft of motor vehicle and possession of methylamphetamine - Offences committed while appellant on seven grants of bail and subject to seven separate sets of charges - Appellant 17 year old First Nations person of Yorta Yorta, Kurnai, Gunditjmara and Monero peoples - Appellant of extremely low intellect - History of physical and sexual abuse - Judge found exceptional circumstances existed which justified grant of bail - Whether judge erred in finding that there was an unacceptable risk that the appellant would commit a Schedule 1 or Schedule 2 offence or otherwise endanger the safety of any person if granted bail - No error established - Appeal dismissed.
CRIMINAL LAW - Appeal - Bail - Appeal against refusal of bail - Appellant charged with aggravated burglary (two charges), theft, theft of motor vehicle and possession of methylamphetamine - Offences committed while appellant on seven grants of bail and subject to seven separate sets of charges - Appellant 17 year old First Nations person of Yorta Yorta, Kurnai, Gunditjmara and Monero peoples - Appellant of extremely low intellect - History of physical and sexual abuse - Judge found exceptional circumstances existed which justified grant of bail - Whether judge erred in finding that there was an unacceptable risk that the appellant would commit a Schedule 1 or Schedule 2 offence or otherwise endanger the safety of any person if granted bail - No error established - Appeal dismissed.
Bail Act 1977, ss 1B, 3A, 3AAA, 3B, 4AA, 4A, 4D, 4E, considered - Disability Act 2006, referred to.
House v The King (1936) 55 CLR 499; HA (a pseudonym) v The Queen [2021] VSCA 64, referred to.
PRACTICE AND PROCEDURE - Filing - Power to direct Registrar to accept documents for filing - Registrar refused to accept documents for filing - Applicant sought judicial direction to Registrar to accept documents for filing - Documents were applications other than for leave to appeal - Documents sought entirely inappropriate orders that Court would not make - Applications incomplete or failed to comply with Rules - Application for direction refused.
PRACTICE AND PROCEDURE - Filing - Power to direct Registrar to accept documents for filing - Registrar refused to accept documents for filing - Applicant sought judicial direction to Registrar to accept documents for filing - Documents were applications other than for leave to appeal - Documents sought entirely inappropriate orders that Court would not make - Applications incomplete or failed to comply with Rules - Application for direction refused.
Supreme Court (General Civil Procedure) Rules 2015 rr 9.07, 64.43.
PRACTICE AND PROCEDURE - Application to amend notice of appeal to include additional ground of appeal - Application to rely on fresh evidence in support of additional ground in notice of appeal - Documents subject of fresh evidence applications not discovered by respondent before judgment delivered in lower court - Where documents include allegations of sexual abuse committed by key witness called by respondent - Where judge found witness to be credible and reliable - Failure to discover documents conceded by respondent - Sufficiently arguable that documents could have affected judge's assessment of witness at trial - Sufficiently arguable documents could have enabled applicant's counsel to pursue line of questioning of witness not available at trial - Applicant granted leave to amend notice of appeal to include additional ground.
PRACTICE AND PROCEDURE - Application to amend notice of appeal to include additional ground of appeal - Application to rely on fresh evidence in support of additional ground in notice of appeal - Documents subject of fresh evidence applications not discovered by respondent before judgment delivered in lower court - Where documents include allegations of sexual abuse committed by key witness called by respondent - Where judge found witness to be credible and reliable - Failure to discover documents conceded by respondent - Sufficiently arguable that documents could have affected judge's assessment of witness at trial - Sufficiently arguable documents could have enabled applicant's counsel to pursue line of questioning of witness not available at trial - Applicant granted leave to amend notice of appeal to include additional ground.
Civil Procedure Act 2010, ss 26 and 27; Supreme Court (General Civil Procedure) Rules 2015, r 64, referred to - Commonwealth Bank of Australia v Quade & Ors (1991) 178 CLR 134; Zafiriou v Saint-Gobain Administration Pty Ltd [2013] VSCA 383, referred to.
PRACTICE AND PROCEDURE - Freezing order - Whether good arguable case - Applicable principles - Whether judge erred in applying s 1274B(2) of the Corporations Act 2001 (Cth) where evidence to the contrary of ASIC documents tendered - Whether judge impermissibly elevated ASIC documents to 'prima facie evidence unless proven to the contrary' - Whether judge impermissibly shifted burden of proof - Judge appropriately weighed relevant evidence in concluding good arguable case - Leave to appeal granted - Appeal dismissed.
PRACTICE AND PROCEDURE - Freezing order - Whether good arguable case - Applicable principles - Whether judge erred in applying s 1274B(2) of the Corporations Act 2001 (Cth) where evidence to the contrary of ASIC documents tendered - Whether judge impermissibly elevated ASIC documents to 'prima facie evidence unless proven to the contrary' - Whether judge impermissibly shifted burden of proof - Judge appropriately weighed relevant evidence in concluding good arguable case - Leave to appeal granted - Appeal dismissed.
Supreme Court (General Civil Procedure) Rules 2015, Ord 37A; Corporations Act 2001 (Cth), ss 231, 1274B(2).
Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH & Co ('The Niedersachsen') [1983] 1 WLR 1412; [1984] 1 All ER 398, applied; Rozenblit v Vainer [2019] VSCA 164, considered; Barboutis v The Kart Centre Pty Ltd [No 2] [2020] WASCA 41, considered.
CRIMINAL LAW - Interlocutory appeal - Conspiracy to import commercial quantity of border controlled drug - Nine 'dry run' consignments with consignment 10 containing 111 kg of methamphetamine - 'Cloning methodology' used in consignments - Whether consignments 1 to 9 irrelevant - Whether cloning methodology capable of being used as evidence of conspiracy - Significant evidence of both applicants' participation in conspiracy -Ahern/Tripoldi 'reasonable evidence' test satisfied - Leave to appeal refused.
CRIMINAL LAW - Interlocutory appeal - Conspiracy to import commercial quantity of border controlled drug - Nine 'dry run' consignments with consignment 10 containing 111 kg of methamphetamine - 'Cloning methodology' used in consignments - Whether consignments 1 to 9 irrelevant - Whether cloning methodology capable of being used as evidence of conspiracy - Significant evidence of both applicants' participation in conspiracy -Ahern/Tripoldi 'reasonable evidence' test satisfied - Leave to appeal refused.
Criminal Code (Cth) ss 11.5(2)(b), 11.5(2)(c); Evidence Act s 137, considered.
DPP (Cth) v Kola (2024) 418 ALR 176, considered; Ahern v The Queen (1988) 165 CLR 87; Tripodi v The Queen (1961) 104 CLR 1, discussed; Moore (a pseudonym v The King) (2024) 419 ALR 169, applied.
CRIMINAL LAW - Interlocutory appeal - Evidence of 'cloning methodology' and 'dry run' consignments - Whether probative value of evidence outweighed risk of unfair prejudice - High probative value of evidence - No innocent explanation - Does not invite unfair speculation - Leave to appeal refused.
Damoun v The Queen [2015] NSWCCA 109; Standen v The Queen (2015) 253 A Crim R 301, considered.
CRIMINAL LAW - Interlocutory appeal - Cash totalling $1.474 million and $132,190 found in relation to applicants 1 and 2 respectively - Whether cash capable of being used as evidence of conspiracy - 'Accoutrements of crime' support inference of conspiracy - Cash is circumstantial evidence of ongoing business to traffick methamphetamine - Leave to appeal refused.
R v Falzon (2018) 264 CLR 361, discussed; Sultana v The Queen (1994) 74 A Crim R 27, considered.
CRIMINAL LAW - Interlocutory appeal - Six phone calls regarding transportation of consignment 10 - Alleged to be Teague's voice - Whether Detective's voice identification evidence was admissible as lay opinion evidence - If all or majority of voice recordings played to jury, Detective will be in no better position than jury to compare Teague's voice with recorded voice - Leave to appeal granted - Appeal allowed.
Evidence Act 2008, s 78, discussed.
Kheir v The Queen (2014) 43 VR 308; Tran & Chang v The Queen [2016] VSCA 79, discussed; R v Smith (2001) 206 CLR 650, distinguished.
CRIMINAL LAW - Interlocutory appeal - One conspiracy charge and two proceeds of crime charges - Whether joinder of charges permissible - Evidence of cash material fact to primary charge of conspiracy - Proceeds of crime charges subsidiary to conspiracy charge - Offences founded on same material facts - Related offences - Leave to appeal granted - Appeal allowed.
Criminal Procedure Act 2009, sch 1 cl 5, s 3, discussed.
R v Barrell and Wilson (1979) 69 Cr App Rep 250; R v Reid [1999] 2 VR 605; discussed; Fleming (a pseudonym) v The Queen [2021] VSCA 206; R v Falzon (2018) 264 CLR 361; R v McLean (2000) 2 VR 118; White (a pseudonym) v The King [2022] VSCA 278, considered.
CRIMINAL LAW - Interlocutory appeal - One conspiracy charge and two proceeds of crime charges - Whether accused's right to fair trial compromised by joinder - Judge's obiter remarks do not constitute interlocutory decision - Ground 2 incompetent.
R v McLean (2000) 2 VR 118, referred to.
CRIMINAL LAW - Interlocutory appeal - Review of refusal to certify - Evidentiary ruling - Home invasion and related offences - Admissions to covert police operative in cells - Whether evidence improperly obtained - Evidence of admissions ruled admissible - Trial judge refused to certify that evidence of admissions if ruled inadmissible would eliminate or substantially weaken prosecution case - Application to review refusal to certify refused.
CRIMINAL LAW - Interlocutory appeal - Review of refusal to certify - Evidentiary ruling - Home invasion and related offences - Admissions to covert police operative in cells - Whether evidence improperly obtained - Evidence of admissions ruled admissible - Trial judge refused to certify that evidence of admissions if ruled inadmissible would eliminate or substantially weaken prosecution case - Application to review refusal to certify refused.
Criminal Procedure Act 2009, s 295(3)(a), considered.
DPP v Paulino (2017) 54 VR 109, applied.
CRIMINAL LAW - Leave to appeal - Conviction - Manslaughter by unlawful and dangerous act - Throwing object at head and kick to hip - Whether substantial miscarriage of justice occasioned by jury directions on causation - Where multiple contributing factors to cause of death - Complex medical evidence - Where directions found to be consistent with 'substantial and significant' cause test - Ground not established.
CRIMINAL LAW - Leave to appeal - Conviction - Manslaughter by unlawful and dangerous act - Throwing object at head and kick to hip - Whether substantial miscarriage of justice occasioned by jury directions on causation - Where multiple contributing factors to cause of death - Complex medical evidence - Where directions found to be consistent with 'substantial and significant' cause test - Ground not established.
EVIDENCE - Hearsay - Exceptions to hearsay rule - Opinion evidence - Business records - Whether medical records were inadmissible - Where trial counsel made a forensic decision not to object to medical records - Ground not necessary to determine.
EVIDENCE - Tape recording of offender demanding CCTV footage of assault be wiped - CCTV footage of offender's arrival and departure from scene - Whether evidence was prejudicial or irrelevant - Where evidence of post-offending conduct involved use as incriminating conduct reasoning - Appeal allowed.
Jury Directions Act 2015, s 65(b); Evidence Act 2008, ss 65, 69, 76-79, 137; Criminal Procedure Act 2009, s 276(1)(b); Coroners Act 2008, ss 4, 10, 14, 52.
Royall v The Queen (1991) 172 CLR 378; Swan v The Queen (2020) 269 CLR 663; Robb v The Queen [2016] VSCA 125; De Silva v The Queen (2019) 268 CLR 57; Schanker v The Queen [2018] VSCA 94; R v Birks (1990) 19 NSWLR 677; Crampton v The Queen (2000) 206 CLR 161; TKWJ v The Queen (2002) 212 CLR 124; Nudd v The Queen (2006) 162 A Crim R 301; R v Jung [2006] NSWSC 658; Lowe v The Queen [2015] VSCA 327; R v Wills [1983] 2 VR 201; Wilson v The Queen (1992) 174 CLR 313; R v Besim (2004) 148 A Crim R 28; R v Thomas [2015] NSWSC 537, applied.
CRIMINAL LAW - Appeal - Application for leave to appeal - Sentence - Trafficking drug of a dependence - Possession of counterfeit money - Whether judge erred in application of parity principle - Whether discrepancy between co-offenders' sentences manifestly inadequate - Whether individual sentences manifestly excessive - Where judge took into account time spent at residential rehabilitation program while on bail - Whether appropriate weight given to established rehabilitation - Where offender had prior conviction for drug trafficking - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Application for leave to appeal - Sentence - Trafficking drug of a dependence - Possession of counterfeit money - Whether judge erred in application of parity principle - Whether discrepancy between co-offenders' sentences manifestly inadequate - Whether individual sentences manifestly excessive - Where judge took into account time spent at residential rehabilitation program while on bail - Whether appropriate weight given to established rehabilitation - Where offender had prior conviction for drug trafficking - Application for leave to appeal refused.
Akoka v The Queen [2017] VSCA 214, referred to.
CRIMINAL LAW - Sentence - Application for leave to appeal - Trafficking in a drug of dependence - Possession of a drug of dependence - Prohibited person possess firearm - Knowingly deal in proceeds of crime - Where offending committed on parole - Whether cumulation orders amounted to double punishment - Whether sentencing judge erred in approach to totality - Whether sentencing judge erred in consideration of drug quantity - Whether sentence was manifestly excessive - No error in sentencing judge's approach - Sentence not manifestly excessive in the circumstances - Leave refused.
CRIMINAL LAW - Sentence - Application for leave to appeal - Trafficking in a drug of dependence - Possession of a drug of dependence - Prohibited person possess firearm - Knowingly deal in proceeds of crime - Where offending committed on parole - Whether cumulation orders amounted to double punishment - Whether sentencing judge erred in approach to totality - Whether sentencing judge erred in consideration of drug quantity - Whether sentence was manifestly excessive - No error in sentencing judge's approach - Sentence not manifestly excessive in the circumstances - Leave refused.
DPP v Bowen (2021) 65 VR 385; Nguyen v The Queen [2019] VSCA 184; DPP v Pham (2015) 256 CLR 550; Velevski v The Queen [2010] VSCA 90; Zarghami v The Queen [2020] VSCA 74, referred to.
Clarkson v The Queen (2011) 32 VR 361; DPP v Johnson (2011) 35 VR 25; Einfeld v The Queen (2010) 200 A Crim R 1; Hogan v The King [2025] VSCA 142; Johnson v The Queen [2022] VSCA 228; Lago v The Queen [2015] NSWCCA 296; Pearce v The Queen (1998) 194 CLR 610; DPP v Kelly [2018] NSWCCA 44; R v Pidoto (2006) 14 VR 269; The Queen v Ververis [2010] VSCA 7; Wong v The Queen (2001) 207 CLR 584, applied.
Sentencing Act 1991, s 16(3B).
CRIMINAL LAW - Appeal - Conviction - Rape and other offences - Application for extension of time - Whether the judge erred in taking a majority verdict - Whether judge gave a perseverance direction at the same time as a majority verdict direction - Extension of time refused.
CRIMINAL LAW - Appeal - Conviction - Rape and other offences - Application for extension of time - Whether the judge erred in taking a majority verdict - Whether judge gave a perseverance direction at the same time as a majority verdict direction - Extension of time refused.
Juries Act 2000, s 46(2); Jury Directions Act 2015, s 64B, s 64D.
Black v The Queen (1993) 179 CLR 44.
CRIMINAL LAW - Appeal - Sentence - Charges of attempting to obtain and obtaining a financial advantage from Commonwealth entity - Whether sentencing error caused by imposition of complete cumulation between two individual sentences - Error conceded - Appeal allowed - Applicant resentenced.
CRIMINAL LAW - Appeal - Sentence - Charges of attempting to obtain and obtaining a financial advantage from Commonwealth entity - Whether sentencing error caused by imposition of complete cumulation between two individual sentences - Error conceded - Appeal allowed - Applicant resentenced.
CRIMINAL LAW - Reserved questions of law - Charges of entering into agreement or transaction with intentions including preventing recovery of entitlements of employees in contravention of Corporations Act 2001 (Cth) s 596AB(1) as in force 10 July 2014 - Whether person entering into agreement can intend to prevent recovery of entitlements where person expects or believes employees will be paid pursuant to Fair Entitlements Guarantee Act 2012 (Cth) - Payment by Commonwealth of advance under Fair Entitlements Guarantee Act - Employees recover entitlements where liquidator pays from advance - No intention to prevent recovery where person expects or believes liquidator will pay employee entitlements using advance under Fair Entitlements Guarantee Act.
CRIMINAL LAW - Reserved questions of law - Charges of entering into agreement or transaction with intentions including preventing recovery of entitlements of employees in contravention of Corporations Act 2001 (Cth) s 596AB(1) as in force 10 July 2014 - Whether person entering into agreement can intend to prevent recovery of entitlements where person expects or believes employees will be paid pursuant to Fair Entitlements Guarantee Act 2012 (Cth) - Payment by Commonwealth of advance under Fair Entitlements Guarantee Act - Employees recover entitlements where liquidator pays from advance - No intention to prevent recovery where person expects or believes liquidator will pay employee entitlements using advance under Fair Entitlements Guarantee Act.
WORDS AND PHRASES - 'recovery' - 'entitlements'.
Corporations Act 2001 (Cth) ss 556, 560, 596AA, 596AB; Fair Entitlements Guarantee Act 2012 (Cth) ss 28, 29; Criminal Procedure Act 2009, s 302.
GROUP PROCEEDING - Application for approval of settlement of group proceeding - Approval of settlement under s 33V of the Supreme Court Act 1986 (Vic) - Whether settlement distribution scheme is fair and reasonable - Settlement distribution between classes of group members - Deductions from the settlement fund - Whether group costs order should be varied - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, s 33V.
GROUP PROCEEDING - Application for approval of settlement of group proceeding - Approval of settlement under s 33V of the Supreme Court Act 1986 (Vic) - Whether settlement distribution scheme is fair and reasonable - Settlement distribution between classes of group members - Deductions from the settlement fund - Whether group costs order should be varied - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, s 33V.
PRACTICE AND PROCEDURE - Confidentiality orders.
PRACTICE AND PROCEDURE - Application for leave to file a notice of solicitor ceasing to act - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 20.03(3)(b) - Where proceeding set down for trial - Where client did not provide solicitor with sufficient funds to conduct the trial - Where application was made one week prior to trial - Court has a broad discretion - Leave granted.
PRACTICE AND PROCEDURE - Application for leave to file a notice of solicitor ceasing to act - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 20.03(3)(b) - Where proceeding set down for trial - Where client did not provide solicitor with sufficient funds to conduct the trial - Where application was made one week prior to trial - Court has a broad discretion - Leave granted.
PRACTICE AND PROCEDURE - Summary judgment - Plaintiff seeks summary judgment against defendants - Whether first defendant has real prospect of success on its defence - Plaintiff's cause of action made out - First defendant's defence has no real prospect of success - Civil Procedure Act 2010 (Vic), ss 61 and 63 - Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27; [2013] VSCA 158.
PRACTICE AND PROCEDURE - Summary judgment - Plaintiff seeks summary judgment against defendants - Whether first defendant has real prospect of success on its defence - Plaintiff's cause of action made out - First defendant's defence has no real prospect of success - Civil Procedure Act 2010 (Vic), ss 61 and 63 - Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27; [2013] VSCA 158.
PRACTICE AND PROCEDURE - Ex parte freezing order - Whether there is an arguable case - Whether there is a risk of dissipation of assets - Where applicant is judgment creditor of first to fifth respondents - Where sixth to sixteenth respondents not party to primary proceeding - Where fourth and fifth respondents director and shareholder of third party corporate respondents - Whether freezing order ought to extend to third party entities - Freezing order granted against first to fifth respondents - Fourth and fifth respondents refrained from diminishing their assets - Supreme Court (General Civil Procedure) Rules 2015 order 37A - Rozenblit v Vainer [2019] VSCA 164 - Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 - Viterra BV & Shandong Ruyi Technology Group Co Ltd (2022) 291 FCR 640 - Resort Lifestyle Developments Pty Ltd v NGI Savannah Living Communities Pty Ltd [2022] QSC 194 - Varangian Pty Ltd v OFM Capital Limited [2003] VSC 444 - Convoy Collateral Ltd v Broad Idea International Ltd [2022] 2 WLR 703 - BCBC Singapore Pte Ltd v PT Bayan Resources TBK and Another (No 3) (2013) 276 FLR 273 - Application granted in respect of primary respondents but refused in respect of third party respondents.
PRACTICE AND PROCEDURE - Ex parte freezing order - Whether there is an arguable case - Whether there is a risk of dissipation of assets - Where applicant is judgment creditor of first to fifth respondents - Where sixth to sixteenth respondents not party to primary proceeding - Where fourth and fifth respondents director and shareholder of third party corporate respondents - Whether freezing order ought to extend to third party entities - Freezing order granted against first to fifth respondents - Fourth and fifth respondents refrained from diminishing their assets - Supreme Court (General Civil Procedure) Rules 2015 order 37A - Rozenblit v Vainer [2019] VSCA 164 - Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 - Viterra BV & Shandong Ruyi Technology Group Co Ltd (2022) 291 FCR 640 - Resort Lifestyle Developments Pty Ltd v NGI Savannah Living Communities Pty Ltd [2022] QSC 194 - Varangian Pty Ltd v OFM Capital Limited [2003] VSC 444 - Convoy Collateral Ltd v Broad Idea International Ltd [2022] 2 WLR 703 - BCBC Singapore Pte Ltd v PT Bayan Resources TBK and Another (No 3) (2013) 276 FLR 273 - Application granted in respect of primary respondents but refused in respect of third party respondents.
PRACTICE AND PROCEDURE - Application to restrain fourth and fifth respondents from leaving jurisdiction - Order appropriate where there is risk of plaintiff not obtaining information required to be disclosed - Power restricts individual freedom of movement and to be exercised with caution - Risk of oral examination rendered ineffective if fourth and fifth respondents leave jurisdiction - Risk may be less than proof on the probabilities but must be more than fear - Order granted for short period of time - Talacko v Talacko (No 2) [2009] VSC 444 - Bayer AG v Winter [1986] 1 WLR 497 - Rhino Trading Pty Ltd v Lotte Enterprise Pty Ltd [2024] VSC 52.
GROUP PROCEEDINGS - Consolidated proceeding - Whether the extant group costs order should continue to apply - Whether plaintiffs should apply for new group costs order - Whether extant group costs order should be varied - Extant group costs order should continue to apply according to its terms - No reason to vary - Supreme Court Act 1986 (Vic) s 33ZDA(3).
GROUP PROCEEDINGS - Consolidated proceeding - Whether the extant group costs order should continue to apply - Whether plaintiffs should apply for new group costs order - Whether extant group costs order should be varied - Extant group costs order should continue to apply according to its terms - No reason to vary - Supreme Court Act 1986 (Vic) s 33ZDA(3).
COSTS - Indemnity Costs - Proceeding discontinued against defendant on the eve of trial - Unreasonable rejection of Calderbank offer - Long delays in the conduct of the proceeding by the plaintiff - Failure by the plaintiff to discontinue against the defendant when invited by the Court to do so - Allegations of fraud - No explanation for late discontinuance - Indemnity costs ordered - Civil Procedure Act 2010 (Vic) ss 19, 22, 23, 25 - NIML Ltd v Man Financial Australia Ltd (No 2) [2004] VSC 510, Russian Airlines v Leeds [2018] EWHC 1735 (Ch), Aljade and Malaysian Kuwaiti Investment Co SDN BHD (MKIC) v Oversea-Chinese Banking Corp Ltd (OCBC) [2004] VSC 351, Leichhardt Municipal Council v Green [2004] NSWCA 341, Bathurst Real Estate Pty Ltd v Fairbrother (No 2) [2022] NSWSC 408, referred to.
COSTS - Indemnity Costs - Proceeding discontinued against defendant on the eve of trial - Unreasonable rejection of Calderbank offer - Long delays in the conduct of the proceeding by the plaintiff - Failure by the plaintiff to discontinue against the defendant when invited by the Court to do so - Allegations of fraud - No explanation for late discontinuance - Indemnity costs ordered - Civil Procedure Act 2010 (Vic) ss 19, 22, 23, 25 - NIML Ltd v Man Financial Australia Ltd (No 2) [2004] VSC 510, Russian Airlines v Leeds [2018] EWHC 1735 (Ch), Aljade and Malaysian Kuwaiti Investment Co SDN BHD (MKIC) v Oversea-Chinese Banking Corp Ltd (OCBC) [2004] VSC 351, Leichhardt Municipal Council v Green [2004] NSWCA 341, Bathurst Real Estate Pty Ltd v Fairbrother (No 2) [2022] NSWSC 408, referred to.
EQUITY - Whether solicitors have equitable lien in trust fund - Client denied the existence of the trust fund - Fund not obtained as a result of a judgement or award or compromise - Solicitors failed to show they had played at least a significant part in the conduct of litigation leading to the creation of the fund - Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96, applied.
EQUITY - Whether solicitors have equitable lien in trust fund - Client denied the existence of the trust fund - Fund not obtained as a result of a judgement or award or compromise - Solicitors failed to show they had played at least a significant part in the conduct of litigation leading to the creation of the fund - Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96, applied.
CONTRACT - Deed not executed by corporation in its capacity as trustee - Deed not effective to create a solicitor's lien over trust fund where no lien over trust property previously existed - Re Interwest Hotels Pty Ltd (in liq) (1993) 12 ACSR 78, applied.
CORPORATIONS - Corporations Act 2001 (Cth) - Pt 5.4A - Sections 461(1)(a) and/or 461(1)(k) - Application for winding up of company by executor of deceased estate of company's sole director and shareholder - Section 462(2) - Standing to make winding up application - Whether applicant has standing to apply in name of company under s 462(2)(a) - Whether applicant has standing as a contributory under s 462(2)(c) - Re Meyer Douglas Pty Ltd [1965] VR 638 distinguished - Declaration under s 1072E(2) that applicant entitled to be registered as holder of shares - Section 175(1) - Power to order correction of share register of company - Corrective order made - Standing requirement satisfied under s 462(2)(c) - Where company has no directors and no likelihood that any will be appointed - Where company in state of corporate paralysis - Company wound up on just and equitable ground under s 461(1)(k).
CORPORATIONS - Corporations Act 2001 (Cth) - Pt 5.4A - Sections 461(1)(a) and/or 461(1)(k) - Application for winding up of company by executor of deceased estate of company's sole director and shareholder - Section 462(2) - Standing to make winding up application - Whether applicant has standing to apply in name of company under s 462(2)(a) - Whether applicant has standing as a contributory under s 462(2)(c) - Re Meyer Douglas Pty Ltd [1965] VR 638 distinguished - Declaration under s 1072E(2) that applicant entitled to be registered as holder of shares - Section 175(1) - Power to order correction of share register of company - Corrective order made - Standing requirement satisfied under s 462(2)(c) - Where company has no directors and no likelihood that any will be appointed - Where company in state of corporate paralysis - Company wound up on just and equitable ground under s 461(1)(k).
CORPORATIONS - Application to set aside statutory demand pursuant to ss 459G, 459H and 459J of the Corporations Act 2001 (Cth) - Whether genuine dispute as to whether the debt was due and payable - Defect under s 459J(1)(a) of the Corporations Act 2001 (Cth) - 'Some other reason' under s 459J(1)(b) of the Corporations Act 2001 (Cth) - Debt the subject of the demand based on a compensation order made pursuant to s 85B of the Sentencing Act 1991 (Vic) - Plaintiff found guilty of workplace manslaughter pursuant to s 39G of the Occupational Health and Safety Act 2004 (Vic) - Stay of compensation order pending plaintiff's appeals pursuant to s 311(2) of the Criminal Procedure Act 2009 (Vic) - Effect of stay under s 311(2) of the Criminal Procedure Act 2009 (Vic) - Whether stay of operation or stay of execution - Whether there was a genuine dispute that the debt claimed was not due and payable at the time of service of the demand by reason of the stay being a stay of operation - Whether demand should be set aside by reason of the existence of the stay pursuant to s 459J(1)(b) - Alleged defect in the demand under s 459J(1)(a) - Schedule to demand included the words 'and penalty interest' but no penalty interest was quantified as part of the debt claimed in the demand - Finding that there was a defect in demand but such defect did not cause substantial injustice - Finding that there was a genuine dispute as to the nature and effect of the stay imposed by s 311 of the Criminal Procedure Act which was not appropriate to be resolved in this application - Demand set aside.
CORPORATIONS - Application to set aside statutory demand pursuant to ss 459G, 459H and 459J of the Corporations Act 2001 (Cth) - Whether genuine dispute as to whether the debt was due and payable - Defect under s 459J(1)(a) of the Corporations Act 2001 (Cth) - 'Some other reason' under s 459J(1)(b) of the Corporations Act 2001 (Cth) - Debt the subject of the demand based on a compensation order made pursuant to s 85B of the Sentencing Act 1991 (Vic) - Plaintiff found guilty of workplace manslaughter pursuant to s 39G of the Occupational Health and Safety Act 2004 (Vic) - Stay of compensation order pending plaintiff's appeals pursuant to s 311(2) of the Criminal Procedure Act 2009 (Vic) - Effect of stay under s 311(2) of the Criminal Procedure Act 2009 (Vic) - Whether stay of operation or stay of execution - Whether there was a genuine dispute that the debt claimed was not due and payable at the time of service of the demand by reason of the stay being a stay of operation - Whether demand should be set aside by reason of the existence of the stay pursuant to s 459J(1)(b) - Alleged defect in the demand under s 459J(1)(a) - Schedule to demand included the words 'and penalty interest' but no penalty interest was quantified as part of the debt claimed in the demand - Finding that there was a defect in demand but such defect did not cause substantial injustice - Finding that there was a genuine dispute as to the nature and effect of the stay imposed by s 311 of the Criminal Procedure Act which was not appropriate to be resolved in this application - Demand set aside.
JUDICIAL REVIEW - Application for leave to appeal dismissal of proceeding by Victorian Civil and Administrative Tribunal - Various questions of law and extensive grounds of appeal - Various baseless and unsubstantiated allegations made against the Tribunal - Leave to appeal refused for all but one ground - Whether Tribunal correctly refused application to cross-examine witnesses - Leave to appeal granted - No unfairness in refusing application to cross-examine witnesses - Appeal dismissed - Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 62, 78, 102 and 148 - Concrete Construction Systems Pty Ltd v Inglese [2024] VSC 266, Leon Holdings Pty Ltd v O'Donnell [2009] VSC 430 considered; Bahl Enterprises Pty Ltd v Sikandar [2025] VSC 394, Bell Corp Victoria Pty Ltd and Ors v Stephenson [2003] VSC 255, ACN 115 918 959 Pty Ltd v Moulieris [2024] VSCA 71, Patsuris v Gippsland and Southern Rural Water Corporation (2016) 218 LGERA 167; [2016] VSCA 109, Rugolino v Howard [2010] VSC 590 referred to.
JUDICIAL REVIEW - Application for leave to appeal dismissal of proceeding by Victorian Civil and Administrative Tribunal - Various questions of law and extensive grounds of appeal - Various baseless and unsubstantiated allegations made against the Tribunal - Leave to appeal refused for all but one ground - Whether Tribunal correctly refused application to cross-examine witnesses - Leave to appeal granted - No unfairness in refusing application to cross-examine witnesses - Appeal dismissed - Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 62, 78, 102 and 148 - Concrete Construction Systems Pty Ltd v Inglese [2024] VSC 266, Leon Holdings Pty Ltd v O'Donnell [2009] VSC 430 considered; Bahl Enterprises Pty Ltd v Sikandar [2025] VSC 394, Bell Corp Victoria Pty Ltd and Ors v Stephenson [2003] VSC 255, ACN 115 918 959 Pty Ltd v Moulieris [2024] VSCA 71, Patsuris v Gippsland and Southern Rural Water Corporation (2016) 218 LGERA 167; [2016] VSCA 109, Rugolino v Howard [2010] VSC 590 referred to.
JUDICIAL REVIEW - Appeal from decision of Associate Justice - Application for leave to appeal procedural orders of Victorian Civil and Administrative Tribunal - Associate Justice dismissed application for leave - Associate Justice found no purpose served by proposed appeal in circumstances where Tribunal had dismissed proceeding and applicant had sought leave to appeal dismissal - No error shown in Associate Justice's conclusion - Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic).
JUDICIAL REVIEW - Application for leave to appeal various orders consequent upon dismissal of proceeding by Victorian Civil and Administrative Tribunal - Leave to appeal refused.
CONTRACT - Application for summary judgment - Appeal from associate judge - Whether completion of contract contingent on rezoning and subdivision being obtained prior to settlement.
CONTRACT - Application for summary judgment - Appeal from associate judge - Whether completion of contract contingent on rezoning and subdivision being obtained prior to settlement.
WILLS AND PROBATE - Where the plaintiff seeks grant of probate a copy will - Where the original will was traced to the possession of the testator and cannot be found - Whether the presumption of revocation has been overcome - Where the defendant claims that the copy will was not a product of mature deliberation and the deceased's testamentary intentions at his death were inconsistent with the terms of the copy will - Cahill v Rhodes [2002] NSWSC 561, Demediuk v Demediuk [2019] VSCA 79 and Ulman v Mom [2022] VSC 186 referred to - Presumption of revocation has been rebutted - Application granted.
WILLS AND PROBATE - Where the plaintiff seeks grant of probate a copy will - Where the original will was traced to the possession of the testator and cannot be found - Whether the presumption of revocation has been overcome - Where the defendant claims that the copy will was not a product of mature deliberation and the deceased's testamentary intentions at his death were inconsistent with the terms of the copy will - Cahill v Rhodes [2002] NSWSC 561, Demediuk v Demediuk [2019] VSCA 79 and Ulman v Mom [2022] VSC 186 referred to - Presumption of revocation has been rebutted - Application granted.
APPEAL - Appeal from Magistrates' Court - Statutory requirement to bring an appeal within 28 days after the day on which final order was made - Leave required for appeal commenced outside 28 day period - Whether applicant has demonstrated failure to commence appeal within 28 days was due to 'exceptional circumstances' - No exceptional circumstances demonstrated - Leave to appeal refused - Criminal Procedure Act 2009 (Vic) s 272.
APPEAL - Appeal from Magistrates' Court - Statutory requirement to bring an appeal within 28 days after the day on which final order was made - Leave required for appeal commenced outside 28 day period - Whether applicant has demonstrated failure to commence appeal within 28 days was due to 'exceptional circumstances' - No exceptional circumstances demonstrated - Leave to appeal refused - Criminal Procedure Act 2009 (Vic) s 272.
WILLS AND ESTATES - Caveator filed grounds of objection to grant of probate of testator's will - Alleged lack of testamentary capacity - Testator dying and in palliative care at time of consulting with solicitor who prepared will and at time of executing will - No contemporaneous report by a medical practitioner attesting to testator's testamentary capacity - Contemporaneous medical notes referred to testator's lack of comprehension of details and seriousness of medical condition - Test for testamentary capacity does not require comprehension of medical condition - Clear evidence of deceased's testamentary capacity given by solicitor and by witnessing interpreter - Corroborative contextual evidence of family members and annotations on will - Court affirmatively satisfied that testator had testamentary capacity - Kantor v Vosahlo [2004] VSCA 235 - Brown v Guss [2014] VSC 251 - Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 - Re Matthews [2022] VSC 15 - Re Klapsas; Klapsas v Muscat [2022] VSC 755.
WILLS AND ESTATES - Caveator filed grounds of objection to grant of probate of testator's will - Alleged lack of testamentary capacity - Testator dying and in palliative care at time of consulting with solicitor who prepared will and at time of executing will - No contemporaneous report by a medical practitioner attesting to testator's testamentary capacity - Contemporaneous medical notes referred to testator's lack of comprehension of details and seriousness of medical condition - Test for testamentary capacity does not require comprehension of medical condition - Clear evidence of deceased's testamentary capacity given by solicitor and by witnessing interpreter - Corroborative contextual evidence of family members and annotations on will - Court affirmatively satisfied that testator had testamentary capacity - Kantor v Vosahlo [2004] VSCA 235 - Brown v Guss [2014] VSC 251 - Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 - Re Matthews [2022] VSC 15 - Re Klapsas; Klapsas v Muscat [2022] VSC 755.
PRACTICE AND PROCEDURE - Caveator sought retrospective extension of time before expiry of caveat to file and serve grounds of objection - Extension of very short duration - No prejudice claimed - Extension granted - Supreme Court (Administration and Probate) Rules 2014 r 8.03(3)(b).
CRIMINAL LAW - Coercive powers order - Application for revocation - Application for stay of proceedings - Court not in a position to determine underlying facts - No proper basis to grant stay - Application for stay dismissed - Major Crime (Investigative Powers) Act 2004 (Vic), s 12.
CRIMINAL LAW - Coercive powers order - Application for revocation - Application for stay of proceedings - Court not in a position to determine underlying facts - No proper basis to grant stay - Application for stay dismissed - Major Crime (Investigative Powers) Act 2004 (Vic), s 12.
CRIMINAL LAW - Sentence - Manslaughter by criminal negligence - Driving of a motor vehicle in pursuit of deceased following earlier altercation - No aggressive intent - Dishonest account to police - Plea of guilty - Prospects of rehabilitation.
CRIMINAL LAW - Sentence - Manslaughter by criminal negligence - Driving of a motor vehicle in pursuit of deceased following earlier altercation - No aggressive intent - Dishonest account to police - Plea of guilty - Prospects of rehabilitation.
CRIMINAL LAW - Sentence - Murder - Planned attack upon an innocent victim for the purpose of protecting and enhancing the reputation of the Comanchero, an outlaw motorcycle gang - Accused all members of the Comanchero - Victim shot multiple times while driving home at night time - Extremely grave offending - High degree of planning - Steps to avoid apprehension after crime - Accused all awarded special patch as reward for their conduct - Roles of individual offenders - Very high degree of moral culpability - Mitigating factors - Whether head sentence of life imprisonment warranted in the circumstances - Whether non-parole periods should comply with s 11A(4) - Prospects of rehabilitation - Important sentencing purposes - Life imprisonment the necessary and appropriate head sentence for all accused - Non-parole periods reflect somewhat reduced role of Taumoefolau - Non-parole periods of 28 years for Ene and Kakato, and 26 years for Taumoefolau.
CRIMINAL LAW - Sentence - Murder - Planned attack upon an innocent victim for the purpose of protecting and enhancing the reputation of the Comanchero, an outlaw motorcycle gang - Accused all members of the Comanchero - Victim shot multiple times while driving home at night time - Extremely grave offending - High degree of planning - Steps to avoid apprehension after crime - Accused all awarded special patch as reward for their conduct - Roles of individual offenders - Very high degree of moral culpability - Mitigating factors - Whether head sentence of life imprisonment warranted in the circumstances - Whether non-parole periods should comply with s 11A(4) - Prospects of rehabilitation - Important sentencing purposes - Life imprisonment the necessary and appropriate head sentence for all accused - Non-parole periods reflect somewhat reduced role of Taumoefolau - Non-parole periods of 28 years for Ene and Kakato, and 26 years for Taumoefolau.
CRIMINAL LAW - Evidence - Murder - Lay opinion evidence - Whether defence permitted to adduce evidence from a prosecution witness that the deceased 'would have' badly bashed the accused - Whether evidence relevant - Whether evidence an opinion - Whether the evidence comes within s 78 of the Evidence Act 2008 (Vic) - Evidence not admissible - Evidence Act 2008 (Vic) ss 76, 77 & 78; Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36.
CRIMINAL LAW - Evidence - Murder - Lay opinion evidence - Whether defence permitted to adduce evidence from a prosecution witness that the deceased 'would have' badly bashed the accused - Whether evidence relevant - Whether evidence an opinion - Whether the evidence comes within s 78 of the Evidence Act 2008 (Vic) - Evidence not admissible - Evidence Act 2008 (Vic) ss 76, 77 & 78; Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36.
CRIMINAL LAW - Evidence - Conduct of co-offender in circumstances where prosecution do not rely on any type of complicity - Use that can be made of such conduct - Application by accused to limit the use of the evidence pursuant to s 136 of the Evidence Act 2008 (Vic) - Danger that jury might use the evidence in a way that is unfairly prejudicial to the accused - Use of evidence limited - Evidence Act 2008 (Vic) s 136; R v Bauer (a pseudonym) (2018) 266 CLR 56.
CRIMINAL LAW - Evidence - Conduct of co-offender in circumstances where prosecution do not rely on any type of complicity - Use that can be made of such conduct - Application by accused to limit the use of the evidence pursuant to s 136 of the Evidence Act 2008 (Vic) - Danger that jury might use the evidence in a way that is unfairly prejudicial to the accused - Use of evidence limited - Evidence Act 2008 (Vic) s 136; R v Bauer (a pseudonym) (2018) 266 CLR 56.
CRIMINAL LAW - Evidence - Murder - No dispute that accused caused the deceased's death by a conscious, voluntary and deliberate act - Accused denies murderous intent - Self-defence - Whether self-defence is available will likely be an issue at the close of the evidence - Admissibility of evidence - Admissions - Incriminating conduct - Whether probative value of evidence is outweighed by the danger of unfair prejudice - Jury Direction Act 2015 (Vic) s 20; Evidence Act 2008 (Vic) ss 55 & 137; DPP v Lynn [2024] VSCA 62; Cookson v The King [2024] VSCA 289; DPP v Scriven (Ruling No 4) [2015] VSC 220.
CRIMINAL LAW - Evidence - Murder - No dispute that accused caused the deceased's death by a conscious, voluntary and deliberate act - Accused denies murderous intent - Self-defence - Whether self-defence is available will likely be an issue at the close of the evidence - Admissibility of evidence - Admissions - Incriminating conduct - Whether probative value of evidence is outweighed by the danger of unfair prejudice - Jury Direction Act 2015 (Vic) s 20; Evidence Act 2008 (Vic) ss 55 & 137; DPP v Lynn [2024] VSCA 62; Cookson v The King [2024] VSCA 289; DPP v Scriven (Ruling No 4) [2015] VSC 220.
CRIMINAL LAW - Application for bail for offences involving violence - Where applicant has extensive criminal history, is subject to supervision order under Serious Offenders Act 2018 and is alleged to have committed Schedule 2 offences while on bail for another Schedule 2 offence - Whether applicant has significant medical issues that cannot adequately be treated in custody - Whether definition of 'vulnerable adult' is relevant to statutory tests - Where applicant has not meaningfully engaged in treatment programs and counselling offered - Where applicant's access to public housing is at risk - Where applicant's relationship with partner is not a protective factor - Where psychiatric opinion that applicant poses an ongoing risk of breaching conditions, acting impulsively, and being aggressive and violent - Where not likely period of remand would exceed any term of imprisonment imposed - Exceptional circumstances not established - Unacceptable risk of applicant committing further Schedule 1 or Schedule 2 offences or endangering public - Application for bail refused - Bail Act 1977 (Vic) ss 3AAAA, 3AAA, 4A, 4E.
CRIMINAL LAW - Application for bail for offences involving violence - Where applicant has extensive criminal history, is subject to supervision order under Serious Offenders Act 2018 and is alleged to have committed Schedule 2 offences while on bail for another Schedule 2 offence - Whether applicant has significant medical issues that cannot adequately be treated in custody - Whether definition of 'vulnerable adult' is relevant to statutory tests - Where applicant has not meaningfully engaged in treatment programs and counselling offered - Where applicant's access to public housing is at risk - Where applicant's relationship with partner is not a protective factor - Where psychiatric opinion that applicant poses an ongoing risk of breaching conditions, acting impulsively, and being aggressive and violent - Where not likely period of remand would exceed any term of imprisonment imposed - Exceptional circumstances not established - Unacceptable risk of applicant committing further Schedule 1 or Schedule 2 offences or endangering public - Application for bail refused - Bail Act 1977 (Vic) ss 3AAAA, 3AAA, 4A, 4E.
CRIMINAL LAW - Bail - Armed robbery (x2) of retail premises and numerous other dishonesty and other offences - Applicant a 43 year old Aboriginal man with history of long-term drug addiction and various other difficult personal circumstances - History of homelessness - Long criminal history - Poor compliance with previous grants of bail - Proposal that the applicant, if bailed, would reside at Odyssey House - Show compelling reason test - Combination of factors relied upon - Compelling reason made out - Whether unacceptable risk - Real prospect that applicant would commit Schedule 1 or 2 offences, endanger the public, or fail to answer bail - Unacceptable risk established - Bail refused - Bail Act 1977 ss 1B, 3AAA, 3A, 4AA, 4A and 4E.
CRIMINAL LAW - Bail - Armed robbery (x2) of retail premises and numerous other dishonesty and other offences - Applicant a 43 year old Aboriginal man with history of long-term drug addiction and various other difficult personal circumstances - History of homelessness - Long criminal history - Poor compliance with previous grants of bail - Proposal that the applicant, if bailed, would reside at Odyssey House - Show compelling reason test - Combination of factors relied upon - Compelling reason made out - Whether unacceptable risk - Real prospect that applicant would commit Schedule 1 or 2 offences, endanger the public, or fail to answer bail - Unacceptable risk established - Bail refused - Bail Act 1977 ss 1B, 3AAA, 3A, 4AA, 4A 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.
PRACTICE AND PROCEDURE - PLEADINGS - Application for leave to file further amended statement of claim and variation of earlier orders of the Court - Proposed pleading manifestly defective - Whether plaintiff should be permitted to act as solicitor for proposed substituted corporate plaintiff.
PRACTICE AND PROCEDURE - PLEADINGS - Application for leave to file further amended statement of claim and variation of earlier orders of the Court - Proposed pleading manifestly defective - Whether plaintiff should be permitted to act as solicitor for proposed substituted corporate plaintiff.
TORT - TRESPASS - DAMAGES - Alleged trespass to illegally hunt hog deer - Where hog deer wild animals not owned by landowner - Measure of damages - Where illegal hunting and use of gun equipped with suppressor - Aggravated damages - Punitive damages - TRIGGER WARNING - Judgment contains images of dead deer.
TORT - TRESPASS - DAMAGES - Alleged trespass to illegally hunt hog deer - Where hog deer wild animals not owned by landowner - Measure of damages - Where illegal hunting and use of gun equipped with suppressor - Aggravated damages - Punitive damages - TRIGGER WARNING - Judgment contains images of dead deer.
LEASE - CONTRACT - RETIREMENT VILLAGE - Construction of terms of lease in a Retirement Village - Existing tenant vacated - Entitled to refund of ingoing loan amount less a deferred management fee - Deferred management fee to be calculated based on new loan amount paid by incoming tenant - Where no new loan amount as no incoming tenant as building to be demolished - New loan amount to be substituted with a proxy amount based on the current market value of the residence rights - Calculation of market value - Adequacy of valuation evidence.
LEASE - CONTRACT - RETIREMENT VILLAGE - Construction of terms of lease in a Retirement Village - Existing tenant vacated - Entitled to refund of ingoing loan amount less a deferred management fee - Deferred management fee to be calculated based on new loan amount paid by incoming tenant - Where no new loan amount as no incoming tenant as building to be demolished - New loan amount to be substituted with a proxy amount based on the current market value of the residence rights - Calculation of market value - Adequacy of valuation evidence.
INDUSTRIAL LAW - Labour Hire Licensing Act 2018 ss 7, 9, 14, 93, 94(2), 95 - Labour hire licence required to advertise provision of labour hire services - Admitted contravention of civil penalty provisions - Persons involved in contravening civil penalty provision - Agreed statement of facts - Agreed submissions on liability and penalties - Nature and extent of any loss or damage suffered as a result of the contravention - Course of conduct principles.
INDUSTRIAL LAW - Labour Hire Licensing Act 2018 ss 7, 9, 14, 93, 94(2), 95 - Labour hire licence required to advertise provision of labour hire services - Admitted contravention of civil penalty provisions - Persons involved in contravening civil penalty provision - Agreed statement of facts - Agreed submissions on liability and penalties - Nature and extent of any loss or damage suffered as a result of the contravention - Course of conduct principles.
INDUSTRIAL LAW - Fair Work Act 2009 (Cth) ss 44, 45, 323(1), 535, 536, 547, 548, 557C - Small claim - Alleged failure by employer to pay employee any wages or entitlements - Pay slips falsely state payment made to employee's bank account - Credit and reliability of witness evidence - Operation of s 557C - Employer burden of disproving non-payment allegation - Interest - Good cause shown to the contrary.
INDUSTRIAL LAW - Fair Work Act 2009 (Cth) ss 44, 45, 323(1), 535, 536, 547, 548, 557C - Small claim - Alleged failure by employer to pay employee any wages or entitlements - Pay slips falsely state payment made to employee's bank account - Credit and reliability of witness evidence - Operation of s 557C - Employer burden of disproving non-payment allegation - Interest - Good cause shown to the contrary.
APPLICATION - Strike out for lack of jurisdiction - 'Recovery of money owed to the owners corporation by a lot owner' - Jurisdiction of the Magistrates' Court - Statutory interpretation - Owners Corporations Act 2006 (Vic) ss 1, 18, 30, 31, 32, Part 11, Div 1, Magistrates' Court Act 1989 (Vic) s 100(1).
APPLICATION - Strike out for lack of jurisdiction - 'Recovery of money owed to the owners corporation by a lot owner' - Jurisdiction of the Magistrates' Court - Statutory interpretation - Owners Corporations Act 2006 (Vic) ss 1, 18, 30, 31, 32, Part 11, Div 1, Magistrates' Court Act 1989 (Vic) s 100(1).
APPLICATION - Re-hearing - 'Recovery of money owed to the owners corporation by a lot owner' - Jurisdiction of the Magistrates' Court - Statutory interpretation Owners Corporations Act 2006 (Vic) ss 1, 18, 30, 31, 32, Part 11, Division 1, Magistrates' Court Act 1989 (Vic) ss 100(1), 110.
APPLICATION - Re-hearing - 'Recovery of money owed to the owners corporation by a lot owner' - Jurisdiction of the Magistrates' Court - Statutory interpretation Owners Corporations Act 2006 (Vic) ss 1, 18, 30, 31, 32, Part 11, Division 1, Magistrates' Court Act 1989 (Vic) ss 100(1), 110.
JURISDICTION - 'Recovery of money owed to the owners corporation by a lot owner' - Jurisdiction of the Magistrates' Court - Statutory interpretation - Owners Corporations Act 2006 (Vic) ss 1, 18, 30, 31, 32, Part 11, Div 1, Magistrates' Court Act 1989 (Vic) s 100(1).
JURISDICTION - 'Recovery of money owed to the owners corporation by a lot owner' - Jurisdiction of the Magistrates' Court - Statutory interpretation - Owners Corporations Act 2006 (Vic) ss 1, 18, 30, 31, 32, Part 11, Div 1, Magistrates' Court Act 1989 (Vic) s 100(1).