CONSTITUTIONAL LAW (Cth) - Judicial power of Commonwealth - Where resident of Tasmania sought administrative review of decisions made on behalf of Commissioner of New South Wales Police Force - Where New South Wales Civil and Administrative Tribunal ("Tribunal") made order under s 55(2)(a) of Privacy and Personal Information Protection Act 1998 (NSW) - Where order that public sector agency pay applicant damages by way of compensation for any loss or damage suffered as a result of conduct in contravention of information protection principle - Where Tribunal not "court of a State" within meaning of ss 77(ii) and (iii) of Constitution - Where State Parliament lacks legislative capacity to confer on State tribunal that is not court of a State judicial power with respect to any matter in s 75 or s 76 of Constitution - Where s 75(iv) of Constitution refers to "matters ... between a State and a resident of another State" - Whether Tribunal exercised judicial power - Whether Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 distinguishable.
CONSTITUTIONAL LAW (Cth) - Judicial power of Commonwealth - Where resident of Tasmania sought administrative review of decisions made on behalf of Commissioner of New South Wales Police Force - Where New South Wales Civil and Administrative Tribunal ("Tribunal") made order under s 55(2)(a) of Privacy and Personal Information Protection Act 1998 (NSW) - Where order that public sector agency pay applicant damages by way of compensation for any loss or damage suffered as a result of conduct in contravention of information protection principle - Where Tribunal not "court of a State" within meaning of ss 77(ii) and (iii) of Constitution - Where State Parliament lacks legislative capacity to confer on State tribunal that is not court of a State judicial power with respect to any matter in s 75 or s 76 of Constitution - Where s 75(iv) of Constitution refers to "matters ... between a State and a resident of another State" - Whether Tribunal exercised judicial power - Whether Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 distinguishable.
WORDS AND PHRASES - "administrative power", "administrative review", "administrative standards", "administratively reviewable decision", "certificate", "compensation", "correct and preferable", "court", "damages", "distinguishable", "information protection principles", "internal review", "judgment", "judicial decision", "judicial power", "jurisdiction", "legislative capacity", "loss or damage", "matter", "non-judicial", "norm of conduct", "order", "privacy codes of practice", "public sector agency", "resident of another State", "tribunal".
Constitution, ss 75, 76, 77(ii), 77(iii).
Administrative Decisions Review Act 1997 (NSW), ss 6, 7, 8, 9, 53, 63, 64, 66.
Civil and Administrative Tribunal Act 2013 (NSW), ss 13, 27(1)(a), 38, 72, 78.
Privacy and Personal Information Protection Act 1998 (NSW), ss 3(1), 8-19, 21, 29, 30, 32, 52, 53, 55(1), 55(2)(a), 55(3), 55(4A), 69.
CONSTITUTIONAL LAW (Cth) - Judicial power of Commonwealth - Where s 44(1) of Administrative Appeals Tribunal Act 1975 (Cth) ("Act") provided party to certain proceedings before Administrative Appeals Tribunal ("Tribunal") may appeal to Federal Court of Australia on question of law from decision of Tribunal - Where s 46(2) of Act provided that if certificate in force certifying disclosure of matter contained in document would be contrary to public interest Federal Court must do all things necessary to ensure matter not disclosed to any person other than member of court as constituted for purposes of proceeding - Where in accordance with s 39B of Act such certificate included certificate issued by "ASIO Minister" certifying disclosure of matter would be contrary to public interest because it would prejudice security or defence or international relations of Australia - Where plaintiff sought declaration that s 46(2) of Act invalid on ground it infringes Ch III of the Constitution - Where earlier decision of High Court in SDCV v Director-General of Security (2022) 277 CLR 241 held s 46(2) of Act valid - Whether s 46(2) invalid because it required Federal Court to depart from "general rule" of procedural fairness more than reasonably necessary to protect compelling and legitimate public interest - Whether SDCV authority to contrary - Whether leave to re-open and overrule SDCV should be granted.
CONSTITUTIONAL LAW (Cth) - Judicial power of Commonwealth - Where s 44(1) of Administrative Appeals Tribunal Act 1975 (Cth) ("Act") provided party to certain proceedings before Administrative Appeals Tribunal ("Tribunal") may appeal to Federal Court of Australia on question of law from decision of Tribunal - Where s 46(2) of Act provided that if certificate in force certifying disclosure of matter contained in document would be contrary to public interest Federal Court must do all things necessary to ensure matter not disclosed to any person other than member of court as constituted for purposes of proceeding - Where in accordance with s 39B of Act such certificate included certificate issued by "ASIO Minister" certifying disclosure of matter would be contrary to public interest because it would prejudice security or defence or international relations of Australia - Where plaintiff sought declaration that s 46(2) of Act invalid on ground it infringes Ch III of the Constitution - Where earlier decision of High Court in SDCV v Director-General of Security (2022) 277 CLR 241 held s 46(2) of Act valid - Whether s 46(2) invalid because it required Federal Court to depart from "general rule" of procedural fairness more than reasonably necessary to protect compelling and legitimate public interest - Whether SDCV authority to contrary - Whether leave to re-open and overrule SDCV should be granted.
WORDS AND PHRASES - "adverse evidence", "ASIO", "certificate", "certified matter", "defence", "disclosure", "essential characteristic of a court", "forensic advantage", "heavy persuasive burden", "international relations", "practical injustice", "procedural fairness", "proportionality", "public interest immunity", "ratio decidendi", "reasonably necessary to protect a compelling and legitimate public interest", "security assessment", "special advocate".
Constitution, Ch III.
Administrative Appeals Tribunal Act 1975 (Cth), ss 39A, 39B, 44, 46.
PRACTICE AND PROCEDURE - Representative action - Orders - Where s 33V(2) of Federal Court of Australia Act 1976 (Cth) provides that in representative proceedings Federal Court may make such orders as are just with respect to distribution of any money paid under settlement or paid into Court - Where s 33Z(1)(g) of Federal Court of Australia Act provides Court may in determining matter in representative proceeding make such other order as Court thinks just - Where s 183 of Legal Profession Uniform Law (NSW) provides law practice must not enter into costs agreement under which amount payable is calculated by reference to amount of any award or settlement - Where applicants in representative proceeding proposed to provide notice of intention to seek common fund order in favour of law practice at settlement or judgment - Where costs agreements to be amended to provide for common fund order in favour of law practice if notice approved - Whether s 33V or s 33Z of Federal Court of Australia Act empowers Federal Court to make common fund order at settlement or judgment in favour of law practice.
PRACTICE AND PROCEDURE - Representative action - Orders - Where s 33V(2) of Federal Court of Australia Act 1976 (Cth) provides that in representative proceedings Federal Court may make such orders as are just with respect to distribution of any money paid under settlement or paid into Court - Where s 33Z(1)(g) of Federal Court of Australia Act provides Court may in determining matter in representative proceeding make such other order as Court thinks just - Where s 183 of Legal Profession Uniform Law (NSW) provides law practice must not enter into costs agreement under which amount payable is calculated by reference to amount of any award or settlement - Where applicants in representative proceeding proposed to provide notice of intention to seek common fund order in favour of law practice at settlement or judgment - Where costs agreements to be amended to provide for common fund order in favour of law practice if notice approved - Whether s 33V or s 33Z of Federal Court of Australia Act empowers Federal Court to make common fund order at settlement or judgment in favour of law practice.
WORDS AND PHRASES - "commencement CFO", "common fund order", "concept of justice", "contingency fee", "costs agreement", "distribution", "federal jurisdiction", "funding commission", "funding equalisation order", "group costs order", "just", "legal costs", "litigation funding", "new legal rights", "payment for costs and disbursements", "regulation of the legal profession", "remuneration for risk", "representative proceeding", "requirements of State law", "settlement CFO", "solicitors' CFO", "solicitors' common fund order".
Federal Court of Australia Act 1976 (Cth), Pt IVA, ss 33J, 33V, 33Z, 33ZF, 33ZJ.
Legal Profession Uniform Law (NSW), ss 3, 6, 169, 172, 179, 180, 181, 182, 183, 185.
INDUSTRIAL LAW (Cth) - Unfair dismissal - Genuine redundancy - Where employer dismissed employees because of changes in operational requirements of employer's enterprise - Where employer continued to deploy contractors to perform work in employer's enterprise - Where s 389(2) of Fair Work Act 2009 (Cth) provides dismissal not genuine redundancy if it would have been reasonable in all circumstances for person to be redeployed within employer's enterprise - Whether Fair Work Commission, in undertaking s 389(2) inquiry, permitted to inquire into whether employer could have made changes to its enterprise to create or make available position for otherwise redundant employee.
INDUSTRIAL LAW (Cth) - Unfair dismissal - Genuine redundancy - Where employer dismissed employees because of changes in operational requirements of employer's enterprise - Where employer continued to deploy contractors to perform work in employer's enterprise - Where s 389(2) of Fair Work Act 2009 (Cth) provides dismissal not genuine redundancy if it would have been reasonable in all circumstances for person to be redeployed within employer's enterprise - Whether Fair Work Commission, in undertaking s 389(2) inquiry, permitted to inquire into whether employer could have made changes to its enterprise to create or make available position for otherwise redundant employee.
APPEALS - Standard of appellate review - Where Full Bench of Fair Work Commission applied House v The King standard of appellate review to review of decision that dismissals were not cases of genuine redundancy under s 389 of Fair Work Act - Whether House v The King appropriate standard of appellate review - Whether application of wrong standard of appellate review would constitute jurisdictional error.
WORDS AND PHRASES - "affording latitude", "all the circumstances", "appeal by way of rehearing", "appellate restraint", "business, activity, project or undertaking", "case of genuine redundancy", "contractors", "correctness standard", "counter-factual", "discretionary decision", "employer's enterprise", "employment", "enterprise", "error within jurisdiction", "Fair Work Commission", "genuine redundancy", "House v The King", "hypothetical", "insourcing", "job", "judicial review", "jurisdictional error", "nature of the employer's enterprise", "operational requirements", "position", "reasonable in all the circumstances", "redeploy", "reinstatement", "restructure", "standard of appellate review", "termination", "unfair dismissal", "work", "would have been reasonable".
Fair Work Act 2009 (Cth), ss 385, 389.
INCOME TAX (Cth) - Notice of assessment - Royalty withholding tax - Diverted profits tax - Where non-resident companies entered into agreements with Australian company to bottle, sell and distribute beverages - Where agreements licensed intellectual property to Australian company - Where agreements did not provide for payment of royalty for use of intellectual property - Where no payment made by Australian taxpayer to non-resident companies - Where payment made to Australian subsidiary of non-resident companies for beverage concentrate - Whether payments to subsidiary included royalty for use of intellectual property owned by non-resident companies within meaning of s 6 of Income Tax Assessment Act 1936 (Cth) ("ITAA 1936") - Whether payments paid or credited to or derived by non-resident companies within meaning of s 128B of ITAA 1936 - Whether non-resident companies liable to pay diverted profits tax under s 177J of ITAA 1936.
INCOME TAX (Cth) - Notice of assessment - Royalty withholding tax - Diverted profits tax - Where non-resident companies entered into agreements with Australian company to bottle, sell and distribute beverages - Where agreements licensed intellectual property to Australian company - Where agreements did not provide for payment of royalty for use of intellectual property - Where no payment made by Australian taxpayer to non-resident companies - Where payment made to Australian subsidiary of non-resident companies for beverage concentrate - Whether payments to subsidiary included royalty for use of intellectual property owned by non-resident companies within meaning of s 6 of Income Tax Assessment Act 1936 (Cth) ("ITAA 1936") - Whether payments paid or credited to or derived by non-resident companies within meaning of s 128B of ITAA 1936 - Whether non-resident companies liable to pay diverted profits tax under s 177J of ITAA 1936.
WORDS AND PHRASES - "alternative postulate", "antecedent monetary obligation", "basis or condition", "consideration", "consideration for", "derived by", "diverted profits tax", "DPT", "DPT tax benefit", "exchange of promises", "income derived", "paid or credited", "payment by direction", "postulate", "principal purpose", "reasonable alternative", "reasonable expectation", "royalties", "royalty", "royalty withholding tax", "scheme", "single, integrated and indivisible transaction", "substance of the scheme", "tax benefit", "tax benefit in connection with the scheme".
Income Tax Assessment Act 1936 (Cth), ss 6, 128A, 128B, 177A, 177C, 177CB, 177D, 177F, 177H, 177J, 177N, 177P.
Taxation Administration Act 1953 (Cth), s 14ZZO.
PARLIAMENTARY ELECTIONS (Cth) - Communication of electoral matter - Where s 321D(5) of Commonwealth Electoral Act 1918 (Cth) requires "notifying entity" to ensure certain "particulars" notified - Where s 321D applies in relation to electoral matter that is "communicated to a person" - Where "electoral matter" posted on Facebook page on three occasions - Where failure on each occasion to ensure required "particulars" included in post - Where each post seen by several people who viewed Facebook page - Whether s 321D(5) contravened on each occasion person viewed post or on each occasion post made available for viewing.
PARLIAMENTARY ELECTIONS (Cth) - Communication of electoral matter - Where s 321D(5) of Commonwealth Electoral Act 1918 (Cth) requires "notifying entity" to ensure certain "particulars" notified - Where s 321D applies in relation to electoral matter that is "communicated to a person" - Where "electoral matter" posted on Facebook page on three occasions - Where failure on each occasion to ensure required "particulars" included in post - Where each post seen by several people who viewed Facebook page - Whether s 321D(5) contravened on each occasion person viewed post or on each occasion post made available for viewing.
WORDS AND PHRASES - "authorisation", "civil penalty provision", "communicated", "communication", "conduct", "contravention", "deterrence", "digital", "disclosure entity", "dominant purpose", "electoral advertisement", "electoral matter", "federal election", "free and informed voting", "impressions", "notifying entity", "particulars", "political communication", "political entity", "proportionality", "reach", "statutory construction", "text, context and purpose".
Acts Interpretation Act 1901 (Cth), ss 15AA, 23(b), 33(3A).
Commonwealth Electoral Act 1918 (Cth), Pt XXA, ss 4AA, 321B, 321C, 321D, 321E.
ADMINISTRATIVE LAW - Judicial review - Proposed amendment to Greater Shepparton Planning Scheme - Panel constituted under Planning and Environment Act 1987 pt 8 recommended adoption of amendment - Council resolved to adopt amendment - Amendment not yet approved by Minister - Applicants brought judicial review proceeding seeking relief in respect of alleged errors by Panel and Council - Whether Planning and Environment Act 1987 s 39 prevents applicants from seeking that relief - Planning and Environment Act 1987 ss 12, 24, 25, 27, 29, 35, 38, 39, 161.
ADMINISTRATIVE LAW - Judicial review - Proposed amendment to Greater Shepparton Planning Scheme - Panel constituted under Planning and Environment Act 1987 pt 8 recommended adoption of amendment - Council resolved to adopt amendment - Amendment not yet approved by Minister - Applicants brought judicial review proceeding seeking relief in respect of alleged errors by Panel and Council - Whether Planning and Environment Act 1987 s 39 prevents applicants from seeking that relief - Planning and Environment Act 1987 ss 12, 24, 25, 27, 29, 35, 38, 39, 161.
STATUTORY INTERPRETATION - Whether Planning and Environment Act 1987 s 39 prevents applicants seeking judicial review remedies in Supreme Court - Legislative intention to restrict jurisdiction - Constitutional considerations - Provision does not prevent judicial review for jurisdictional error - Planning and Environment Act 1987 s 39 - East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605, considered.
CONSTITUTIONAL LAW - Constraints on legislative power to limit jurisdiction of Supreme Court - Statute cannot oust Supreme Court's constitutionally entrenched supervisory jurisdiction to review for jurisdictional error - Constitution Act 1975 ss 18, 85 - Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531, applied.
PRACTICE AND PROCEDURE - Appeal - Finality of settlement - Where parties resolved dispute regarding loan agreements by settlement deed with right to reinstate proceedings to enforce the deed - Applicant failed to pay instalments under settlement deed and respondent successfully sought judgment - Applicant made arguments on appeal not made below, which could have been subject of evidence - Applicant argued settlement deed and loan agreements breached Australian Consumer Law and were sham arrangements to avoid National Credit Code - Whether judge erred in construing s 13 of National Credit Code - Leave to appeal refused.
PRACTICE AND PROCEDURE - Appeal - Finality of settlement - Where parties resolved dispute regarding loan agreements by settlement deed with right to reinstate proceedings to enforce the deed - Applicant failed to pay instalments under settlement deed and respondent successfully sought judgment - Applicant made arguments on appeal not made below, which could have been subject of evidence - Applicant argued settlement deed and loan agreements breached Australian Consumer Law and were sham arrangements to avoid National Credit Code - Whether judge erred in construing s 13 of National Credit Code - Leave to appeal refused.
National Consumer Credit Protection Act 2009 (Cth) sch 1 ('National Credit Code') ss 5(1), 13(2); Competition and Consumer Act 2010 (Cth) sch 2 ('Australian Consumer Law') ss 21, 22, 24(1).
Coulton v Holcombe (1986) 162 CLR 1; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; Viterra Malt Pty Ltd v Cargill Australia Ltd (2023) 74 VR 1, applied.
Wigan v Edwards (1973) 1 ALR 497; Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471, considered.
CRIMINAL LAW - Appeal - Conviction - Cultivating commercial quantity of cannabis - Commercial quantity constituted by weight - Defence case that applicant not aware that significant or real chance that commercial quantity exceeded - Whether judge erred in directions on good character - Whether judge's comments on disputed facts productive of a substantial miscarriage of justice - Appeal allowed - New trial ordered.
CRIMINAL LAW - Appeal - Conviction - Cultivating commercial quantity of cannabis - Commercial quantity constituted by weight - Defence case that applicant not aware that significant or real chance that commercial quantity exceeded - Whether judge erred in directions on good character - Whether judge's comments on disputed facts productive of a substantial miscarriage of justice - Appeal allowed - New trial ordered.
CRIMINAL LAW - Appeal - Procedure - Purported appeal to the Court of Appeal against conviction and sentence where County Court's appellate jurisdiction was exercised - Registrar refused to accept documents for filing - Application under r 1A.04(4) of the Supreme Court (Criminal Procedure) Rules 2017 to direct Registrar to accept documents for filing - Appeal incompetent - Application refused.
CRIMINAL LAW - Appeal - Procedure - Purported appeal to the Court of Appeal against conviction and sentence where County Court's appellate jurisdiction was exercised - Registrar refused to accept documents for filing - Application under r 1A.04(4) of the Supreme Court (Criminal Procedure) Rules 2017 to direct Registrar to accept documents for filing - Appeal incompetent - Application refused.
Supreme Court (Criminal Procedure) Rules 2017, r 1A.04(4).
James v English [2023] VSCA 46; Trajkovski v The King [2024] VSCA 271, applied.
CRIMINAL LAW - Appeal - Conviction - Murder - Unreasonable jury verdict - Two brothers stabbed by applicant in altercation at house - Wounds to one brother fatal - Inconsistent accounts from witnesses - Whether applicant was aggressor or acted in self-defence - Whether open to jury to accept surviving brother's account of stabbing despite demonstrable lies about circumstances leading up to altercation - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Murder - Unreasonable jury verdict - Two brothers stabbed by applicant in altercation at house - Wounds to one brother fatal - Inconsistent accounts from witnesses - Whether applicant was aggressor or acted in self-defence - Whether open to jury to accept surviving brother's account of stabbing despite demonstrable lies about circumstances leading up to altercation - Leave to appeal refused.
Pell v The Queen (2020) 268 CLR 123; M v The Queen (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439.
CRIMINAL LAW - Appeal - Conviction - Directions given by trial judge - Proof beyond reasonable doubt - Sections 63 and 64 of Jury Directions Act 2015 - Whether error to direct jury prior to evidence being adduced that 'proof beyond reasonable doubt' are plain ordinary English words that mean what they say and do not admit of any better definition - Whether such direction constituted an explanation of the standard of proof - Whether such direction impermissibly precluded jury from asking questions about the standard of proof - Leave to appeal granted - Appeal dismissed.
Jury Directions Act 2015, ss 63 and 64.
Farshchi v The King [2024] VSCA 235; Karam v The King [2023] VSCA 318; Awad v The Queen (2022) 275 CLR 421; Subramaniam v The Queen (2004) 79 ALJR 116.
CRIMINAL LAW - Director's appeal - Sentence - Murder - Offender stabbed former intimate partner to death in her home in front of her young child - Offender subject to intervention order at time of offence - Plea of guilty - Standard sentence for murder 25 years - Whether sentence of 24 years and 6 months' imprisonment with non-parole period of 19 years manifestly inadequate - Profound childhood disadvantage - Offender intoxicated and suffering from mental impairment at time of offending - Whether murder of intimate partner necessitates sentence higher than standard sentence for murder - Sentence lenient but within range - Appeal dismissed.
CRIMINAL LAW - Director's appeal - Sentence - Murder - Offender stabbed former intimate partner to death in her home in front of her young child - Offender subject to intervention order at time of offence - Plea of guilty - Standard sentence for murder 25 years - Whether sentence of 24 years and 6 months' imprisonment with non-parole period of 19 years manifestly inadequate - Profound childhood disadvantage - Offender intoxicated and suffering from mental impairment at time of offending - Whether murder of intimate partner necessitates sentence higher than standard sentence for murder - Sentence lenient but within range - Appeal dismissed.
Sentencing Act 1991, ss 5A, 5B.
DPP v Karazisis (2010) 31 VR 634; R v Verdins (2007) 16 VR 269; Bugmy v The Queen (2013) 249 CLR 571; Wright v The Queen (2015) 257 A Crim R 261; Brown v The Queen (2019) 59 VR 462; Skeates (a pseudonym) v The King [2023] VSCA 226; Marrah v The Queen [2014] VSCA 119.
CONTRACT - Alternative claims - Comprehensive 2013 loan agreement for US $74.5 million loan between plaintiff and parent company to which defendant was not a party - Alleged 2013 agreement partly in writing and partly oral between plaintiff and defendant - Alleged 2013 agreement not proved - 2016 security agreement in writing between plaintiff and defendant - No consideration - 2016 and alleged 2013 agreements not part of same transaction - Defendant not bound by 2016 security agreement - McVeigh v National Australia Bank Ltd (2000) 278 ALR 429; [2000] FCA 187, referred to.
CONTRACT - Alternative claims - Comprehensive 2013 loan agreement for US $74.5 million loan between plaintiff and parent company to which defendant was not a party - Alleged 2013 agreement partly in writing and partly oral between plaintiff and defendant - Alleged 2013 agreement not proved - 2016 security agreement in writing between plaintiff and defendant - No consideration - 2016 and alleged 2013 agreements not part of same transaction - Defendant not bound by 2016 security agreement - McVeigh v National Australia Bank Ltd (2000) 278 ALR 429; [2000] FCA 187, referred to.
AGENCY - Authority - Constitution required application of company seal attested to by two directors - 2016 agreement not executed by defendant under seal - 2016 agreement not signed by director of defendant - Agreement signed by executive director of parent company - Indoor management rule - Other companies in the group executed the agreement under seal - Past consideration - Plaintiff put on inquiry - Defendant not bound - Northside Developments Pty Ltd v Registrar- General (1990) 170 CLR 146; [1990] HCA 32, applied.
AUTHORITY - Ratification - Acts of single director in 2016 purportedly on behalf of defendant - Plaintiff relied on signed 2020/2021 agreement - Single director existing guarantor under comprehensive 2013 loan agreement signed 2020/2021 agreements - Director cannot make a representation as to his authority so as to make it a representation of the defendant - No ratification - Lederberger and Scheiner v Mediterranean Olives Financial Pty Ltd (2012) 38 VR 509; [2012] VSCA 262, applied.
ESTOPPEL - Estoppel alleged as alternative to 2013 agreement - No reliance - Crabtree- Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd (1975) 133 CLR 72; [1975] HCA 49, Kramer v Stone (2024) 99 ALJR 126; [2024] HCA 48, applied.
EVIDENCE - Application of Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 - Whether inference is open depends on pleadings and evidence adduced at trial - Does not supply a gap in the evidence.
COSTS - Application to set aside a statutory demand - Plaintiff established the existence of genuine offsetting claim - Demand set aside - Application by plaintiff for indemnity costs - Before service of the demand, after its service and during the compliance period of the demand and subsequent to the making of the application to set it aside, plaintiff articulated in detail in correspondence the basis of the offsetting claim with the statement that such correspondence would be produced on the question of costs if it became necessary to make application to set aside the demand - Circumstances warranted an order for indemnity costs.
COSTS - Application to set aside a statutory demand - Plaintiff established the existence of genuine offsetting claim - Demand set aside - Application by plaintiff for indemnity costs - Before service of the demand, after its service and during the compliance period of the demand and subsequent to the making of the application to set it aside, plaintiff articulated in detail in correspondence the basis of the offsetting claim with the statement that such correspondence would be produced on the question of costs if it became necessary to make application to set aside the demand - Circumstances warranted an order for indemnity costs.
PRACTICE AND PROCEDURE - Confidentiality orders - Party seeking to restrict access to affidavit material to legal representatives only - Whether Open Courts Act 2013 (Vic) applies - Common law principle of open justice - Rule 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Whether content of affidavit of a confidential nature - Access restriction refused - General principles regarding confidentiality orders - Access restriction orders not necessary for the administration of justice.
PRACTICE AND PROCEDURE - Confidentiality orders - Party seeking to restrict access to affidavit material to legal representatives only - Whether Open Courts Act 2013 (Vic) applies - Common law principle of open justice - Rule 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Whether content of affidavit of a confidential nature - Access restriction refused - General principles regarding confidentiality orders - Access restriction orders not necessary for the administration of justice.
PRACTICE AND PROCEDURE - Application for approval of settlement of group proceeding - Whether the terms of settlement fair and reasonable - Whether settlement distribution scheme fair and reasonable - Settlement approved - Supreme Court Act 1986 (Vic) pt 4A, ss 33V, 33ZF.
PRACTICE AND PROCEDURE - Application for approval of settlement of group proceeding - Whether the terms of settlement fair and reasonable - Whether settlement distribution scheme fair and reasonable - Settlement approved - Supreme Court Act 1986 (Vic) pt 4A, ss 33V, 33ZF.
PRACTICE AND PROCEDURE - Application for payment of costs of administering settlement distribution scheme - Costs approved.
PRACTICE AND PROCEDURE - Approval for payment of legal costs from settlement sum - Whether group costs order should be amended - Supreme Court Act 1986 (Vic) pt 4A, s 33ZDA.
GROUP PROCEEDINGS - Costs - Application for group costs order - Costs to be calculated as a percentage of the amount of any award or settlement recovered - Whether proposed rate proportionate and reasonable - Application granted - Supreme Court Act 1986 (Vic) s 33ZDA - Fox v Westpac; Crawford v ANZ [2021] VSC 573; Allen v G8 Education Ltd [2022] VSC 32; DA Lynch v Star Entertainment Group [2023] VSC 561; 5 Boroughs NY Pty Ltd v Victoria (No 5) [2023] VSC 682; Warner v Ansell Ltd [2024] VSC 491.
GROUP PROCEEDINGS - Costs - Application for group costs order - Costs to be calculated as a percentage of the amount of any award or settlement recovered - Whether proposed rate proportionate and reasonable - Application granted - Supreme Court Act 1986 (Vic) s 33ZDA - Fox v Westpac; Crawford v ANZ [2021] VSC 573; Allen v G8 Education Ltd [2022] VSC 32; DA Lynch v Star Entertainment Group [2023] VSC 561; 5 Boroughs NY Pty Ltd v Victoria (No 5) [2023] VSC 682; Warner v Ansell Ltd [2024] VSC 491.
CORPORATIONS - Winding up on just and equitable ground and on grounds of insolvency - Provisional liquidators previously appointed to corporate defendants - Provisional liquidators' report to the Court provides sufficient basis for corporate defendants to be wound up - Corporations Act 2001 (Cth), ss 461(1)(k), 459B - ASIC v ActiveSuper Pty Ltd (No 2) [2013] FCA 234, applied.
CORPORATIONS - Winding up on just and equitable ground and on grounds of insolvency - Provisional liquidators previously appointed to corporate defendants - Provisional liquidators' report to the Court provides sufficient basis for corporate defendants to be wound up - Corporations Act 2001 (Cth), ss 461(1)(k), 459B - ASIC v ActiveSuper Pty Ltd (No 2) [2013] FCA 234, applied.
CORPORATIONS - Managed investment schemes - Corporate defendants alleged to be operating an unregistered managed investment scheme in contravention of s 601ED(5) of the Corporations Act 2001 (Cth) - Group scheme wound up - Corporations Act 2001 (Cth), ss 9, 601ED, 601EE - Stewart v Spicer Thoroughbreds Pty Ltd [2022] NSWSC 558, applied.
CORPORATIONS - Oppression proceeding - Whether payment of remuneration to key executives associated with majority shareholder was excessive - Whether excessive remuneration was oppressive to minority shareholder - Whether non-payment of dividends was oppressive - Payment of bonuses was so high as to be oppressive - Non-payment of dividends oppressive to minority shareholder in context of excessive remuneration paid to key executives associated with majority shareholder - Corporations Act 2001 (Cth), ss 232, 233 - Shamsallah Holdings Pty Ltd v CBD Refrigeration and Airconditioning Services Pty Ltd [2001] WASC 8 applied - Slea Pty Ltd v Connective Services Pty Ltd (No 9) [2022] VSC 136 applied.
CORPORATIONS - Oppression proceeding - Whether payment of remuneration to key executives associated with majority shareholder was excessive - Whether excessive remuneration was oppressive to minority shareholder - Whether non-payment of dividends was oppressive - Payment of bonuses was so high as to be oppressive - Non-payment of dividends oppressive to minority shareholder in context of excessive remuneration paid to key executives associated with majority shareholder - Corporations Act 2001 (Cth), ss 232, 233 - Shamsallah Holdings Pty Ltd v CBD Refrigeration and Airconditioning Services Pty Ltd [2001] WASC 8 applied - Slea Pty Ltd v Connective Services Pty Ltd (No 9) [2022] VSC 136 applied.
CORPORATIONS - Oppression proceeding - Valuation of shares - Whether provisions of shareholder agreement regarding transfer of shares apply - Discount for minority shareholding not applicable where oppression is found - Smith Martis Cork & Rajan Pty Ltd v Benjamin Corporation Pty Ltd (2004) 207 ALR 136 applied - Dynasty Pty Ltd v Coombs (1995) 59 FCR 122 applied - Joint v Program IT Pty Ltd [2020] VSC 867 followed.
CORPORATIONS - Voluntary administration - Deed of company arrangement - Application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer shares pursuant to deed of company arrangement - Whether residual value of shares in company - Whether shareholders unfairly prejudiced - Leave granted.
CORPORATIONS - Voluntary administration - Deed of company arrangement - Application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer shares pursuant to deed of company arrangement - Whether residual value of shares in company - Whether shareholders unfairly prejudiced - Leave granted.
CORPORATIONS - Corporations Act 2001 (Cth) - Application to set aside a statutory demand pursuant to s 459G - Liability arising from an award of damages following Court of Appeal ruling and refusal of special leave application - Defendant claimed the amount of damages awarded in statutory demand - Whether genuine dispute - Whether offsetting claim - Application dismissed.
CORPORATIONS - Corporations Act 2001 (Cth) - Application to set aside a statutory demand pursuant to s 459G - Liability arising from an award of damages following Court of Appeal ruling and refusal of special leave application - Defendant claimed the amount of damages awarded in statutory demand - Whether genuine dispute - Whether offsetting claim - Application dismissed.
PRACTICE AND PROCEDURE - Procedural fairness - Self-represented litigant - Scandalous affidavit material and submissions filed by plaintiff - Rule 27.07(b) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Court's power to remove material from the Court file - Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1 - Bahonko v Sterjov (2008) 166 FCR 415 - Rule 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Court's power to mark material as confidential.
CONTRACT - Appeal from Magistrates' Court on question of law - Agreement between Australian Financial Services Licence holder (licensee) and authorised representative - Indemnity clause - Authorised representative provided financial advice to clients - Clients complained to Australian Financial Complaints Authority (AFCA) - Licensee settled with clients following recommendation from AFCA - Indemnity clause did not require licensee to show that authorised representatives caused loss to clients - Magistrate correctly construed indemnity clause - Licensee was required to prove settlement was reasonable - Magistrate did not consider reasonableness - Reasonable for licensee to settle with clients - Evidence only proved reasonableness of part of quantum - Appeal allowed - Horsell International Pty Ltd v Divetwo Pty Ltd [2013] NSWCA 368; Lumley General Insurance Ltd v Port Phillip City Council [2013] VSCA 367; Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603; Protec Pacific Pty Ltd v Steuler Services GmbH & Co KG [2014] VSCA 338 applied. GLP Batesford Pty Ltd v 68 Bridge Road Land Pty Ltd [2024] VSC 182; Speno Rail Maintenance Australia Pty Ltd v Hamersley Iron Pty Ltd (2000) 23 WAR 291; Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (2008) 72 NSWLR 1; UGL Rail Pty Ltd v Wilkinson Murray Pty Ltd [2014] NSWSC 1959 considered.
CONTRACT - Appeal from Magistrates' Court on question of law - Agreement between Australian Financial Services Licence holder (licensee) and authorised representative - Indemnity clause - Authorised representative provided financial advice to clients - Clients complained to Australian Financial Complaints Authority (AFCA) - Licensee settled with clients following recommendation from AFCA - Indemnity clause did not require licensee to show that authorised representatives caused loss to clients - Magistrate correctly construed indemnity clause - Licensee was required to prove settlement was reasonable - Magistrate did not consider reasonableness - Reasonable for licensee to settle with clients - Evidence only proved reasonableness of part of quantum - Appeal allowed - Horsell International Pty Ltd v Divetwo Pty Ltd [2013] NSWCA 368; Lumley General Insurance Ltd v Port Phillip City Council [2013] VSCA 367; Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603; Protec Pacific Pty Ltd v Steuler Services GmbH & Co KG [2014] VSCA 338 applied. GLP Batesford Pty Ltd v 68 Bridge Road Land Pty Ltd [2024] VSC 182; Speno Rail Maintenance Australia Pty Ltd v Hamersley Iron Pty Ltd (2000) 23 WAR 291; Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (2008) 72 NSWLR 1; UGL Rail Pty Ltd v Wilkinson Murray Pty Ltd [2014] NSWSC 1959 considered.
PROPERTY LAW - Orders for sale of land - Just and fair arrangement for sale - Appropriate period of settlement - Appointment of solicitors to act in the sale of the land - Jurisdiction of Supreme Court in co-ownership matters under the Property Law Act 1958 (Vic), Div 4 Part IV - Property Law Act 1958 (Vic) ss 225, 228, 234C.
PROPERTY LAW - Orders for sale of land - Just and fair arrangement for sale - Appropriate period of settlement - Appointment of solicitors to act in the sale of the land - Jurisdiction of Supreme Court in co-ownership matters under the Property Law Act 1958 (Vic), Div 4 Part IV - Property Law Act 1958 (Vic) ss 225, 228, 234C.
ENVIRONMENTAL LAW - Declarations, pecuniary penalties, adverse publicity order, compensation and ancillary orders sought for breach of environmental laws - Parties jointly seek the Court's approval of its proposed consent orders - Parties provided joint submissions and agreed statement of facts - Defendant caused environmental damage through industrial waste leakage - Defendant complied with improvement actions and investments to reduce risk of similar incident - Court satisfied to adopt joint submissions and proposed consent orders as basis of judgment - Cooperation of the parties commended - Environment Protection Act 2017 (Vic) ss 25(1), 133(1), 313(1), 315(1)(a), 330, referred to.
ENVIRONMENTAL LAW - Declarations, pecuniary penalties, adverse publicity order, compensation and ancillary orders sought for breach of environmental laws - Parties jointly seek the Court's approval of its proposed consent orders - Parties provided joint submissions and agreed statement of facts - Defendant caused environmental damage through industrial waste leakage - Defendant complied with improvement actions and investments to reduce risk of similar incident - Court satisfied to adopt joint submissions and proposed consent orders as basis of judgment - Cooperation of the parties commended - Environment Protection Act 2017 (Vic) ss 25(1), 133(1), 313(1), 315(1)(a), 330, referred to.
CRIMINAL LAW - Judicial review of Magistrates' Court decision to dismiss charge - Validity of charge under s 49(1)(eb) of the Road Safety Act 1986 (Vic) - Requirements for valid charge - Criminal Procedure Act 2009 (Vic), ss 6, 8, 9, sch 1, cl 1(a), 1(b) - Whether charge sufficiently described nature of the offence - Whether statutory preconditions described in s 55E(13)(a) and (b) are essential elements of distinct offences - Director of Public Prosecutions v Kypri (2011) 33 VR 157, Fox v Director of Public Prosecutions (2022) 66 VR 223, and DPP Reference No 2 of 2001; Collicoat v DPP; Bell v Dawson (2001) 4 VR 55 considered - Charge valid - Section 55E(13)(a) and (b) are not separate offences or essential matters required to be included in charge - Appeal allowed.
CRIMINAL LAW - Judicial review of Magistrates' Court decision to dismiss charge - Validity of charge under s 49(1)(eb) of the Road Safety Act 1986 (Vic) - Requirements for valid charge - Criminal Procedure Act 2009 (Vic), ss 6, 8, 9, sch 1, cl 1(a), 1(b) - Whether charge sufficiently described nature of the offence - Whether statutory preconditions described in s 55E(13)(a) and (b) are essential elements of distinct offences - Director of Public Prosecutions v Kypri (2011) 33 VR 157, Fox v Director of Public Prosecutions (2022) 66 VR 223, and DPP Reference No 2 of 2001; Collicoat v DPP; Bell v Dawson (2001) 4 VR 55 considered - Charge valid - Section 55E(13)(a) and (b) are not separate offences or essential matters required to be included in charge - Appeal allowed.
PRACTICE AND PROCEDURE - Plaintiff claims in respect of laser treatment in 2020 - Plaintiff served reports of psychiatrist and plastic surgeon - First defendant arranged examinations of the plaintiff by plastic surgeon and psychiatrist - Examination by plastic surgeon took place - Examination by psychiatrist cancelled at short notice and not re-scheduled - Indemnity dispute - Consequential change of solicitor for first defendant - Original trial date vacated owing to application by first and fourth defendants to bring third-party proceeding claiming indemnity - Original trial date vacated by consent and re-listed to August 2025 - Subsequent timetables of orders in respect of preparation for trial, including mediation - After mediation, and shortly prior to trial, first and fourth defendants seek that the plaintiff be psychiatrically examined - Plaintiff objects - Risk of further adjournment of listed trial date - Whether trial not fair if psychiatric examination not undertaken - Practical issues associated with late discovery - Civil Procedure Act 2010 (Vic), ss 7, 8 and 9 - Davies v Nilsen [2015] VSC 584; Grimmett v Rivdale Pty Ltd (Trading as Angela Sdrinis Legal) [2025] VSC 122 considered - Outstanding interlocutory steps in third-party proceeding - Third party seeks that third-party proceeding be heard separately and as a cause - Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 11.13(1)(b) and 47.04 - AMP Fire & General Insurance Co Ltd v Dixon [1982] VR 833 considered - Both applications made essentially orally at final directions hearing - Adjournment to permit the filing and service of proper material - Applications subsequently made by summonses supported by affidavit material - Application by first and fourth defendants refused - Application by third party allowed.
PRACTICE AND PROCEDURE - Plaintiff claims in respect of laser treatment in 2020 - Plaintiff served reports of psychiatrist and plastic surgeon - First defendant arranged examinations of the plaintiff by plastic surgeon and psychiatrist - Examination by plastic surgeon took place - Examination by psychiatrist cancelled at short notice and not re-scheduled - Indemnity dispute - Consequential change of solicitor for first defendant - Original trial date vacated owing to application by first and fourth defendants to bring third-party proceeding claiming indemnity - Original trial date vacated by consent and re-listed to August 2025 - Subsequent timetables of orders in respect of preparation for trial, including mediation - After mediation, and shortly prior to trial, first and fourth defendants seek that the plaintiff be psychiatrically examined - Plaintiff objects - Risk of further adjournment of listed trial date - Whether trial not fair if psychiatric examination not undertaken - Practical issues associated with late discovery - Civil Procedure Act 2010 (Vic), ss 7, 8 and 9 - Davies v Nilsen [2015] VSC 584; Grimmett v Rivdale Pty Ltd (Trading as Angela Sdrinis Legal) [2025] VSC 122 considered - Outstanding interlocutory steps in third-party proceeding - Third party seeks that third-party proceeding be heard separately and as a cause - Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 11.13(1)(b) and 47.04 - AMP Fire & General Insurance Co Ltd v Dixon [1982] VR 833 considered - Both applications made essentially orally at final directions hearing - Adjournment to permit the filing and service of proper material - Applications subsequently made by summonses supported by affidavit material - Application by first and fourth defendants refused - Application by third party allowed.
PRACTICE AND PROCEDURE - Costs - Probate granted in primary proceeding - Calderbank offer made to unsuccessful party - Disposition of related proceeding relating to earlier will - Costs sought against unsuccessful party - Unsuccessful party seeking costs from estate - Costs generally follow the event in adjudicated proceedings - No order to costs usually awarded in unadjudicated proceedings.
PRACTICE AND PROCEDURE - Costs - Probate granted in primary proceeding - Calderbank offer made to unsuccessful party - Disposition of related proceeding relating to earlier will - Costs sought against unsuccessful party - Unsuccessful party seeking costs from estate - Costs generally follow the event in adjudicated proceedings - No order to costs usually awarded in unadjudicated proceedings.
ADMINISTRATIVE LAW - Judicial review - Medical panel - Determination of 'significant injury' by panel under Part VBA of the Wrongs Act 1958 (Vic) - Whether panel erred in combining assessments under different methods in the AMA Guides - Whether panel was precluded under the AMA Guides from combining peripheral nerve assessment of one impairment under s 3.2k, with manual muscle testing assessment of another impairment under s 3.2d - Whether medical panel's decision in accordance with the AMA Guides - Whether jurisdictional error of a medical panel - Appeal dismissed.
ADMINISTRATIVE LAW - Judicial review - Medical panel - Determination of 'significant injury' by panel under Part VBA of the Wrongs Act 1958 (Vic) - Whether panel erred in combining assessments under different methods in the AMA Guides - Whether panel was precluded under the AMA Guides from combining peripheral nerve assessment of one impairment under s 3.2k, with manual muscle testing assessment of another impairment under s 3.2d - Whether medical panel's decision in accordance with the AMA Guides - Whether jurisdictional error of a medical panel - Appeal dismissed.
PERSONAL INJURY CLAIM - Application for leave to proceed nunc pro tunc and for expedited trial due to the plaintiff's severe chronic obstructive airway disease - Meaning of 'imminent risk of death' - Held, plaintiff not at imminent risk of death within the meaning of s 357 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) - Application refused - Proceeding struck out - Brew v Neptar Jam Pty Ltd [2015] VSC 762 - Roberts v ISS Facility Services Pty Ltd [2022] VSC 738.
PERSONAL INJURY CLAIM - Application for leave to proceed nunc pro tunc and for expedited trial due to the plaintiff's severe chronic obstructive airway disease - Meaning of 'imminent risk of death' - Held, plaintiff not at imminent risk of death within the meaning of s 357 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) - Application refused - Proceeding struck out - Brew v Neptar Jam Pty Ltd [2015] VSC 762 - Roberts v ISS Facility Services Pty Ltd [2022] VSC 738.
EQUITY - Fair-dealing rule - Where relevant trustees are not parties to the assignment of interests by the beneficiaries - Where assignee company is controlled and partly owned by the relevant trustees - Tito v Waddell (No 2) [1977] Ch 106 considered - Re James [1949] SASR 143, Yates v Halliday [2006] NSWSC 1346, Soulos v Pagones [2023] NSWCA 243 - Whether trustees took advantage of their position - Whether there was full disclosure or informed consent - Whether the transaction was fair and honest - Breach of fair-dealing rule established - Clay v Clay (2001) 202 CLR 410 applied.
EQUITY - Fair-dealing rule - Where relevant trustees are not parties to the assignment of interests by the beneficiaries - Where assignee company is controlled and partly owned by the relevant trustees - Tito v Waddell (No 2) [1977] Ch 106 considered - Re James [1949] SASR 143, Yates v Halliday [2006] NSWSC 1346, Soulos v Pagones [2023] NSWCA 243 - Whether trustees took advantage of their position - Whether there was full disclosure or informed consent - Whether the transaction was fair and honest - Breach of fair-dealing rule established - Clay v Clay (2001) 202 CLR 410 applied.
EQUITY - Undue influence - Whether will of each of the plaintiffs was overborne by undue influence - Rebuttable presumption arises from parent and child and trustee and beneficiary relationship - Presumption not rebutted - Whether undue influence by some directors on notice to company or can be imputed to company - Undue influence established - Princess Theatre Pty Ltd & Ors v Ansvar Insurance Limited [2024] VSC 363 applied - Harris v Jenkins (1922) 31 CLR 341 distinguished.
EQUITY - Unconscionable conduct - Whether plaintiffs were under special disadvantage - Whether defendants unconscientiously took advantage of special disadvantage - Whether unconscionable conduct by some directors was on notice to company or could be imputed to company - Unconscionable conduct established.
CONTRACTS - Two plaintiffs were minors when executing deed of assignment - Whether plaintiffs repudiated contract within reasonable time of attaining majority - Reasonableness of delay is a factual inquiry - Unreasonable delay found for one plaintiff - Edwards v Carter [1893] AC 360 applied.
LIMITATION OF ACTIONS - Whether action in respect of breach of trust barred by s 21(2) of Limitation of Actions Act 1958 - Action in respect of breach of trust to which s 21(2) applied - Whether proviso in s 21(2) engaged - Whether plaintiffs' revisionary or remainder interest was a future interest - Right of action accrued at death of life tenant - Claim of fair-dealing was brought within time - Re Pauling's Settlement Trusts [1964] Ch 303, Armitage v Nurse [1998] Ch 241, Johns v Johns [2004] 3 NZLR 202, Halford v Halford (2022) 58 WAR 254 applied - Menegazzo v Pricewaterhousecoopers (A Firm) & Ors [2016] QSC 94 considered.
EQUITY - Laches - Whether there was unreasonable delay resulting in sufficient prejudice to result in laches - Two plaintiffs attained knowledge of assignment deed 17 years before commencement of proceeding - Delay prejudiced defendants in ability to respond to claims - Other plaintiffs did not have sufficient knowledge of assignment deed until after death of life tenant - Laches established with respect to two plaintiffs - Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221 applied.
EQUITY - Acquiescence - Plaintiffs did not acquiesce with respect to impugned transaction - Acquiescence not established - Orr v Ford (1989) 167 CLR 316, Byrnes v Kendle (2011) 243 CLR 253 applied.
EQUITY - Will and estates - Deceased passed away in December 2020 leaving will dated in 2006 - Major asset of her estate is Harkaway Farm - Seven surviving children, including fifth defendant - Significant edifice of underlying and associated litigation - Plaintiff appointed as independent administrator in September 2021 - Orders made by consent in February 2025 that Harkaway Farm be sold by the plaintiff and associated directions made in respect of the process of sale - Judicial advice sought by the plaintiff in respect of confined aspects of the directed sale process - Application essentially opposed by the fifth defendant - Supreme Court (General Civil Procedure) Rules, r 54.02(2)(a)(i) - Judicial advice given.
EQUITY - Will and estates - Deceased passed away in December 2020 leaving will dated in 2006 - Major asset of her estate is Harkaway Farm - Seven surviving children, including fifth defendant - Significant edifice of underlying and associated litigation - Plaintiff appointed as independent administrator in September 2021 - Orders made by consent in February 2025 that Harkaway Farm be sold by the plaintiff and associated directions made in respect of the process of sale - Judicial advice sought by the plaintiff in respect of confined aspects of the directed sale process - Application essentially opposed by the fifth defendant - Supreme Court (General Civil Procedure) Rules, r 54.02(2)(a)(i) - Judicial advice given.
MINING LAW - Privately owned land - Mining reservation on Crown grant - Mining licences - Dispute over scope of activity licensee permitted to undertake on the land pursuant to licence and the Mineral Resources (Sustainable Development) Act 1990 (Vic) - Application for declaratory and injunctive relief - Whether work plan required prior to exploratory diamond core drilling and mineral sampling - Whether drilling and sampling is 'work' requiring compliance with compensation or consent requirements - Whether owners' consent or compensation is required for such activity - Declaratory and injunctive relief refused - Mineral Resources (Sustainable Development) Act 1990 (Vic), ss 4, 14, 40, 42, Schedule 4A; Mineral Resources (Sustainable Development) (Mineral Industries) Regulations 2019 (Vic), regs 41, 42, 43.
MINING LAW - Privately owned land - Mining reservation on Crown grant - Mining licences - Dispute over scope of activity licensee permitted to undertake on the land pursuant to licence and the Mineral Resources (Sustainable Development) Act 1990 (Vic) - Application for declaratory and injunctive relief - Whether work plan required prior to exploratory diamond core drilling and mineral sampling - Whether drilling and sampling is 'work' requiring compliance with compensation or consent requirements - Whether owners' consent or compensation is required for such activity - Declaratory and injunctive relief refused - Mineral Resources (Sustainable Development) Act 1990 (Vic), ss 4, 14, 40, 42, Schedule 4A; Mineral Resources (Sustainable Development) (Mineral Industries) Regulations 2019 (Vic), regs 41, 42, 43.
STATUTORY INTERPRETATION - Meaning of 'work' - Meaning of 'low impact exploration'.
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.
COSTS - Coercive powers order - Application for revocation dismissed with no adjudication on merits - Application for stay of proceedings dismissed - Court's power to award costs on dismissal of revocation application - Not necessary to characterise true nature of revocation proceedings - No determination of whether normal rule as to costs applies - No order as to costs - No certification to seek leave to appeal dismissal of stay proceeding - Major Crime (Investigative Powers) Act 2004 (Vic), ss 5(8), 7, 12, 12A - Supreme Court Act 1986 (Vic), s 24 - Criminal Procedure Act 2009 (Vic), ss 5, 295 - Supreme Court (Criminal Procedure) Rules 2017 (Vic), ord 13, rr 1.01(2), 13.03 - Appeal Costs Act 1998 (Vic), s 4(1) - Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 1.1(2), 1.05(1), 1.13(1), 63.02 - Crimes Act 1958 (Vic) - Civil Procedure Act 2010 (Vic), s 3 - Interpretation of Legislation Act 1984 (Vic).
COSTS - Coercive powers order - Application for revocation dismissed with no adjudication on merits - Application for stay of proceedings dismissed - Court's power to award costs on dismissal of revocation application - Not necessary to characterise true nature of revocation proceedings - No determination of whether normal rule as to costs applies - No order as to costs - No certification to seek leave to appeal dismissal of stay proceeding - Major Crime (Investigative Powers) Act 2004 (Vic), ss 5(8), 7, 12, 12A - Supreme Court Act 1986 (Vic), s 24 - Criminal Procedure Act 2009 (Vic), ss 5, 295 - Supreme Court (Criminal Procedure) Rules 2017 (Vic), ord 13, rr 1.01(2), 13.03 - Appeal Costs Act 1998 (Vic), s 4(1) - Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 1.1(2), 1.05(1), 1.13(1), 63.02 - Crimes Act 1958 (Vic) - Civil Procedure Act 2010 (Vic), s 3 - Interpretation of Legislation Act 1984 (Vic).
EVIDENCE - Admissibility - Coincidence evidence - Where the prosecution relies on 8 similarities in respect of Events 1-4 to prove that, in respect of Events 1-3, the meals supplied were poisoned and to prove that, in respect of Events 1-4, they were deliberately poisoned by the accused - Whether the coincidence evidence has significant probative value (s 98) - Whether the probative value of the coincidence evidence substantially outweighs any prejudicial effect to the accused (s 101) - Perry v R [1982] 150 CLR 580 - Evidence Act 2008 (Vic), ss 98, 101.
EVIDENCE - Admissibility - Coincidence evidence - Where the prosecution relies on 8 similarities in respect of Events 1-4 to prove that, in respect of Events 1-3, the meals supplied were poisoned and to prove that, in respect of Events 1-4, they were deliberately poisoned by the accused - Whether the coincidence evidence has significant probative value (s 98) - Whether the probative value of the coincidence evidence substantially outweighs any prejudicial effect to the accused (s 101) - Perry v R [1982] 150 CLR 580 - Evidence Act 2008 (Vic), ss 98, 101.
SEVERANCE - Where, by reason of the inadmissibility of the coincidence evidence relied on by the prosecution, it would be unfair to the accused to hear all charges together - Order for severance of Charges 1-3 from Charges 4-7 - Criminal Procedure Act 2009 (Vic), s 193.
EVIDENCE - Admissibility - Hearsay - Whether relevant - Whether danger of unfair prejudice outweighs probative value - Evidence Act 2008 (Vic), ss 55, 56, 65(2)(b), 65(2)(c), 66A, 137.
EVIDENCE - Admissibility - Hearsay - Whether relevant - Whether danger of unfair prejudice outweighs probative value - Evidence Act 2008 (Vic), ss 55, 56, 65(2)(b), 65(2)(c), 66A, 137.
EVIDENCE - Admissibility of cell tower evidence - Whether the accused attended Loch on 28 April 2023 and Loch and Outtrim on 22 May 2023 - Where there is evidence that the accused accessed iNaturalist website in 2022, including a map of locations of death cap mushrooms - Where information was posted on iNaturalist website in April and May 2023 that death cap mushrooms were sighted in Loch and Outtrim, being towns which were not far from where the accused was living at the time in Leongatha - Whether cell tower evidence supports inference that the accused attended Loch and/or Outtrim on days alleged to source death cap mushrooms to use in the Beef Wellingtons which she served to her lunch guests on 29 July 2023 - Evidence of Opportunity - Evidence admissible - Evidence Act 2008 (Vic), ss 55, 56, 137.
EVIDENCE - Admissibility of cell tower evidence - Whether the accused attended Loch on 28 April 2023 and Loch and Outtrim on 22 May 2023 - Where there is evidence that the accused accessed iNaturalist website in 2022, including a map of locations of death cap mushrooms - Where information was posted on iNaturalist website in April and May 2023 that death cap mushrooms were sighted in Loch and Outtrim, being towns which were not far from where the accused was living at the time in Leongatha - Whether cell tower evidence supports inference that the accused attended Loch and/or Outtrim on days alleged to source death cap mushrooms to use in the Beef Wellingtons which she served to her lunch guests on 29 July 2023 - Evidence of Opportunity - Evidence admissible - Evidence Act 2008 (Vic), ss 55, 56, 137.
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RELEASE OF EXHIBIT - Application by media for release of trial exhibit, namely, edited audiovisual recording of offender's police interview - Where offender opposes release and publication of exhibit - Where key aspects of prosecution's case were lies told in interview, allegedly constituting incriminating conduct - ABC v Victoria Police & Gardiner [2020] VSC 599 - ABC v Victoria Police & Kehoe [2020] VSC 410 - R v Hemming [2015] VSC 351 - In Films v Victoria Police & Gant [2022] VSC 159 - An application by Nine Network Pty Ltd [2016] VSC 158 - R v Reed- Robertson [2016] VSC 236 - DPP v Williams (Ruling No 1) (2015) 51 VR 408 - Crimes Act 1958 (Vic), ss 464JA, 464JB.
EVIDENCE - Admissibility - Alleged incriminating conduct - Whether evidence relevant - Whether probative value outweighed by danger of unfair prejudice to the accused - Whether evidence capable of being viewed as incriminating conduct - R v Lynn [2024] VSCA 62 - Evidence Act 2008 (Vic), ss 55, 56, 137 - Jury Directions Act 2015 (Vic), ss 18, 19, 20, 21.
EVIDENCE - Admissibility - Alleged incriminating conduct - Whether evidence relevant - Whether probative value outweighed by danger of unfair prejudice to the accused - Whether evidence capable of being viewed as incriminating conduct - R v Lynn [2024] VSCA 62 - Evidence Act 2008 (Vic), ss 55, 56, 137 - Jury Directions Act 2015 (Vic), ss 18, 19, 20, 21.
EVIDENCE - Admissibility - Miscellaneous pieces of evidence impugned by accused who is charged with attempted murder (x4) and murder (x3) - Evidence Act 2008 (Vic), ss 55,56, 135, 137.
EVIDENCE - Admissibility - Miscellaneous pieces of evidence impugned by accused who is charged with attempted murder (x4) and murder (x3) - Evidence Act 2008 (Vic), ss 55,56, 135, 137.
EVIDENCE - Admissibility - Tendency evidence - Whether accused had a tendency to act in a particular way, namely, to access websites (including iNaturalist) regarding poisons, including death cap mushrooms - Where sightings of death cap mushrooms in Loch and Outtrim posted on iNaturalist on 18 April 2023 and 21 May 2023 - Where no records on electronic devices seized from the accused of her accessing that particular information on iNaturalist - Where tendency evidence relied on for inference that the accused accessed that particular information on iNaturalist - Where cell tower evidence of the accused possibly visiting Loch and Outtrim in days following iNaturalist postings - Tendency evidence inadmissible - Hughes v R (2017) 263 CLR 338 - Evidence Act 2008 (Vic), ss 97, 98.
EVIDENCE - Admissibility - Tendency evidence - Whether accused had a tendency to act in a particular way, namely, to access websites (including iNaturalist) regarding poisons, including death cap mushrooms - Where sightings of death cap mushrooms in Loch and Outtrim posted on iNaturalist on 18 April 2023 and 21 May 2023 - Where no records on electronic devices seized from the accused of her accessing that particular information on iNaturalist - Where tendency evidence relied on for inference that the accused accessed that particular information on iNaturalist - Where cell tower evidence of the accused possibly visiting Loch and Outtrim in days following iNaturalist postings - Tendency evidence inadmissible - Hughes v R (2017) 263 CLR 338 - Evidence Act 2008 (Vic), ss 97, 98.
EVIDENCE - Admissibility - Evidence of computer records on devices seized from home of accused concerning access to, or possible access to, information on poisons - Where evidence relied on by prosecution to show that, leading up to and during the period of the alleged offences (attempted murder x4 and murder x3), the accused had a continuous state of mind, namely, an interest in poisons generally and in death cap mushrooms in particular - Where much of the computer evidence is also relied on by the prosecution to show that the accused had a tendency to access information online about death cap mushrooms and/or poisons on the iNaturalist website - Evidence Act 2008 (Vic) ss 55, 56, 76, 137.
EVIDENCE - Admissibility - Evidence of computer records on devices seized from home of accused concerning access to, or possible access to, information on poisons - Where evidence relied on by prosecution to show that, leading up to and during the period of the alleged offences (attempted murder x4 and murder x3), the accused had a continuous state of mind, namely, an interest in poisons generally and in death cap mushrooms in particular - Where much of the computer evidence is also relied on by the prosecution to show that the accused had a tendency to access information online about death cap mushrooms and/or poisons on the iNaturalist website - Evidence Act 2008 (Vic) ss 55, 56, 76, 137.
CRIMINAL LAW - Interlocutory appeal - Coincidence evidence - Three charges of murder and one of attempted murder by alleged poisoning of four lunch guests - Three charges of attempted murder of husband by alleged poisoning in three preceding episodes - Whether evidence relating to alleged poisoning of lunch guests admissible to prove that husband was poisoned - Whether evidence relating to alleged poisoning of husband admissible to prove lunch guests deliberately poisoned - Whether circular reasoning - Whether charges relating to husband should be severed from those relating to lunch guests - Whether probative value of coincidence evidence substantially outweighs any prejudicial effect on the accused - Judge was correct to sever indictment - Leave to appeal refused.
CRIMINAL LAW - Interlocutory appeal - Coincidence evidence - Three charges of murder and one of attempted murder by alleged poisoning of four lunch guests - Three charges of attempted murder of husband by alleged poisoning in three preceding episodes - Whether evidence relating to alleged poisoning of lunch guests admissible to prove that husband was poisoned - Whether evidence relating to alleged poisoning of husband admissible to prove lunch guests deliberately poisoned - Whether circular reasoning - Whether charges relating to husband should be severed from those relating to lunch guests - Whether probative value of coincidence evidence substantially outweighs any prejudicial effect on the accused - Judge was correct to sever indictment - Leave to appeal refused.
Evidence Act 2008 ss 98(1), 101(2); Perry v The Queen (1982) 150 CLR 580 considered.
CRIMINAL LAW - Murder - Consent mental impairment - Verdict of not guilty by reason of mental impairment - Accused declared liable to supervision - Matter adjourned to allow for report and certificate of available services to be obtained - Crimes Act 1958 (Vic), ss 323, 324 - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 3, 20, 21, 24, 41, 47, 38G, 38H, 38Z - Criminal Organisations Control and Other Acts Amendment Act 2014 (Vic), s 1 - Children, Youth and Families Act 2005 (Vic), s 534 - Interpretation of Legislation Act 1984 (Vic), s 35 - Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 23, 32.
CRIMINAL LAW - Murder - Consent mental impairment - Verdict of not guilty by reason of mental impairment - Accused declared liable to supervision - Matter adjourned to allow for report and certificate of available services to be obtained - Crimes Act 1958 (Vic), ss 323, 324 - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 3, 20, 21, 24, 41, 47, 38G, 38H, 38Z - Criminal Organisations Control and Other Acts Amendment Act 2014 (Vic), s 1 - Children, Youth and Families Act 2005 (Vic), s 534 - Interpretation of Legislation Act 1984 (Vic), s 35 - Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 23, 32.
PRACTICE AND PROCEDURE - Use of artificial intelligence to prepare written submissions filed with the court - Misinformation produced by artificial intelligence - Hallucinated case references - Irrelevant case references - Accuracy of quotations and citations not verified - Responsible use of artificial intelligence - Accuracy of submissions fundamental to due administration of justice.
CRIMINAL LAW - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - Sections 32 and 33 - Review of custodial supervision - Applicable considerations - Homicide - Paranoid schizophrenic - Non-custodial supervision order confirmed.
CRIMINAL LAW - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - Sections 32 and 33 - Review of custodial supervision - Applicable considerations - Homicide - Paranoid schizophrenic - Non-custodial supervision order confirmed.
CONTRACT OF SALE - GUARANTEES - Whether the purchaser and guarantor failed to settle a contract of sale - Whether the purchaser is entitled to a return of deposit and damages - Whether there was a failure to disclose a tree permit - Alleged non-compliance with permit.
CONTRACT OF SALE - GUARANTEES - Whether the purchaser and guarantor failed to settle a contract of sale - Whether the purchaser is entitled to a return of deposit and damages - Whether there was a failure to disclose a tree permit - Alleged non-compliance with permit.