PRACTICE AND PROCEDURE - Procedural fairness - Self-represented litigant - Nature of duty owed by trial judge to self-represented litigant - Respondent succeeded at trial on no case submission - Where applicant evinced misconception that he was entitled to adduce further evidence through respondent's witnesses - Failure of trial judge to appropriately correct misconception - Appeal allowed.
PRACTICE AND PROCEDURE - Procedural fairness - Self-represented litigant - Nature of duty owed by trial judge to self-represented litigant - Respondent succeeded at trial on no case submission - Where applicant evinced misconception that he was entitled to adduce further evidence through respondent's witnesses - Failure of trial judge to appropriately correct misconception - Appeal allowed.
PRACTICE AND PROCEDURE - Action for negligence - Where respondent succeeded on no case submission because applicant unable to establish factual causation under s 51(1)(a) of the Wrongs Act 1958 - Where s 51(2) may have provided alternative means of proving causation - Where failure to explain the terms of s 51(2) - Appeal allowed.
Evidence Act 2008, ss 37, 38; Wrongs Act 1958, s 51.
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; Doughty- Cowell v Kyriazis [2018] VSCA 216; Oakley v Insurance Manufacturers of Australia Pty Ltd [2008] VSC 68; Powney v Kerang and District Health (2014) 43 VR 506; Roberts v Harkness (2018) 57 VR 334; Strong v Woolworths Ltd (2012) 246 CLR 182; Trkulja v Markovic [2015] VSCA 298, discussed.
TORTS - Negligence - Causation - Effect of s 51(2) of Wrongs Act 1958 - Meaning of 'appropriate case' discussed.
CRIMINAL LAW - Appeal - Conviction - Intentionally causing serious injury and handling stolen goods - Prosecutor cross-examined principal prosecution witness without leave - Acquiescence of defence counsel - Whether defence counsel incompetent - Application granted - Appeal allowed - Convictions set aside - New trial ordered.
CRIMINAL LAW - Appeal - Conviction - Intentionally causing serious injury and handling stolen goods - Prosecutor cross-examined principal prosecution witness without leave - Acquiescence of defence counsel - Whether defence counsel incompetent - Application granted - Appeal allowed - Convictions set aside - New trial ordered.
CRIMINAL LAW - Sentence - Application for leave to appeal - Aggravated home invasion - Intentionally cause injury - Extortion - Theft - Whether proper weight given to parity principle in light of sentences imposed on two co-offenders - Whether orders for cumulation reflected overlap in offences - Whether sentence manifestly excessive - Sentences of 15 months, 12 months and 3 months' imprisonment for theft of laptop, car and car keys, with total of 5 months cumulated, manifestly excessive - Appeal allowed.
CRIMINAL LAW - Sentence - Application for leave to appeal - Aggravated home invasion - Intentionally cause injury - Extortion - Theft - Whether proper weight given to parity principle in light of sentences imposed on two co-offenders - Whether orders for cumulation reflected overlap in offences - Whether sentence manifestly excessive - Sentences of 15 months, 12 months and 3 months' imprisonment for theft of laptop, car and car keys, with total of 5 months cumulated, manifestly excessive - Appeal allowed.
Abdirahman v The Queen [2020] VSCA 87; DPP v Wol [2019] VSCA 268; Green v The Queen (2011) 244 CLR 462; Kellway (a pseudonym) v The King [2023] VSCA 109; Postiglione v The Queen (1997) 189 CLR 295; Wong v The Queen (2001) 207 CLR 584.
CRIMINAL LAW - Sentence - Appeal - Obtaining financial advantage by deception (7 charges) and obtaining property by deception (4 charges) - Offending over 16 months, involving 10 victims - Total obtained, $110, 610 - Relevant criminal history - Pleas of guilty having significant utilitarian value - TES of 7 years and 7 months, with NPP of 6 years - Whether judge erred in concluding that applicant's prospects of rehabilitation were poor - Manifest excess - Whether sentence manifestly excessive - No error in judge's conclusion of poor prospects of rehabilitation - Sentence not manifestly excessive - Appeal dismissed.
CRIMINAL LAW - Sentence - Appeal - Obtaining financial advantage by deception (7 charges) and obtaining property by deception (4 charges) - Offending over 16 months, involving 10 victims - Total obtained, $110, 610 - Relevant criminal history - Pleas of guilty having significant utilitarian value - TES of 7 years and 7 months, with NPP of 6 years - Whether judge erred in concluding that applicant's prospects of rehabilitation were poor - Manifest excess - Whether sentence manifestly excessive - No error in judge's conclusion of poor prospects of rehabilitation - Sentence not manifestly excessive - Appeal dismissed.
CRIMINAL LAW - Appeal - Conviction - Attempting to possess a border controlled drug - Prosecution did not rely on alternative bases for guilt - Direction to jury following jury question left alternative basis of guilt not initially relied on by prosecution - Whether direction resulted in impermissible enlargement of prosecution case - Appeal allowed.
CRIMINAL LAW - Appeal - Conviction - Attempting to possess a border controlled drug - Prosecution did not rely on alternative bases for guilt - Direction to jury following jury question left alternative basis of guilt not initially relied on by prosecution - Whether direction resulted in impermissible enlargement of prosecution case - Appeal allowed.
King v The Queen (1986) 161 CLR 423; R v GAS [1998] 3 VR 862, applied.
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to make threat to kill, aggravated burglary and rape - Rolled up rape charge encompassing three penetrations - Offending occurred in context of extended campaign of coercive behaviour by applicant towards victim for purposes of having her withdraw a family violence complaint and assist him with application for permanent residency - Whether sentence for rape, orders for cumulation and non-parole period manifestly excessive - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to make threat to kill, aggravated burglary and rape - Rolled up rape charge encompassing three penetrations - Offending occurred in context of extended campaign of coercive behaviour by applicant towards victim for purposes of having her withdraw a family violence complaint and assist him with application for permanent residency - Whether sentence for rape, orders for cumulation and non-parole period manifestly excessive - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Co-offender - Pleaded guilty to 40 offences - Whether judge erred by providing insufficient reasons for sentence - No error - Ground not established - Appeal dismissed.
CRIMINAL LAW - Appeal - Sentence - Co-offender - Pleaded guilty to 40 offences - Whether judge erred by providing insufficient reasons for sentence - No error - Ground not established - Appeal dismissed.
CRIMINAL LAW - Appeal - Sentence - Co-offender - Multiple offences including arson, theft, burglary, reckless conduct endangering persons and dangerous driving while pursued by police - Total effective sentence 8 years' imprisonment - Whether sentence manifestly excessive - Rampage of ongoing criminal conduct - Serious offender - Offending committed whilst on CCO - Extensive prior criminal history - No underlying sentencing error - Sentence within range and moderate - Appeal dismissed.
CRIMINAL LAW - Appeal - Sentence - Application for extension of time to seek leave to appeal against sentence - Conspiracy to recklessly cause injury - Judge misapprehended maximum penalty for offence - Whether sentencing discretion miscarried - Error established - Criminal Procedure Act 2009, s 280(1)(b) - Application for extension of time granted - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Application for extension of time to seek leave to appeal against sentence - Conspiracy to recklessly cause injury - Judge misapprehended maximum penalty for offence - Whether sentencing discretion miscarried - Error established - Criminal Procedure Act 2009, s 280(1)(b) - Application for extension of time granted - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Trafficking drug of dependence (3 charges), conspiracy to commit arson (2 charges), conspiracy to recklessly cause injury (2 charges), possess unregistered general category handgun (1 charge) - Total effective sentence of 18 years - Non-parole period of 13 years and 9 months - Whether sentence manifestly excessive - Criminal Procedure Act 2009, s 280(1)(b) - No reasonable prospect Court would impose a shorter period of cumulation - No reasonable prospect of reduction in total effective sentence or non-parole period - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Whether judge failed to find moral culpability reduced by reason of disadvantaged background - Bugmy v The Queen (2013) 249 CLR 571 - Specific deterrence - Community protection - Judge had regard to applicant's moral culpability - Open to conclude that moral culpability not reduced - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Fresh evidence - Delay in medical treatment in custody - Whether sentencing discretion should be re-opened - R v Nguyen [2006] VSCA 184 - Judge had regard to applicant's medical needs - Evidence does not shed significant new light on facts - Evidence is inadmissible - Leave to appeal refused.
Crimes Act 1958, s 18; Sentencing Act 1991, s 5(2)(a); Criminal Procedure Act 2009, s 281(1), s 280(1).
Bugmy v The Queen (2013) 249 CLR 571; DPP v Herrmann (2021) 290 A Crim R 110; Gillespie v The Queen [2018] VSCA 151; Leslie v The King [2025] VSCA 13; Madafferi v The Queen [2017] VSCA 302; R v AB [No 2] (2008) 18 VR 391; R v Beary (2004) 11 VR 151; R v Nguyen [2006] VSCA 184; R v RJE [1999] VSCA 79; R v Vachalec [1981] 1 NSWLR 351; Romero v R (2011) 32 VR 486; Sabatucci v The Queen [2021] VSCA 340; Stewart v The Queen [2015] VSCA 368, considered.
CRIMINAL LAW - Sentence - Application for leave to appeal - Aggravated burglary (1 charge), intentionally causing injury (2 charges) - TES of 4 years and 6 months, with NPP of 3 years - Manifest excess - Whether sentences or TES or NPP manifestly excessive - Whether NPP manifestly excessive as a proportion of TES - Complaints of manifest excess not reasonably arguable - Application for leave to appeal refused.
CRIMINAL LAW - Sentence - Application for leave to appeal - Aggravated burglary (1 charge), intentionally causing injury (2 charges) - TES of 4 years and 6 months, with NPP of 3 years - Manifest excess - Whether sentences or TES or NPP manifestly excessive - Whether NPP manifestly excessive as a proportion of TES - Complaints of manifest excess not reasonably arguable - Application for leave to appeal refused.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
CRIMINAL LAW - Appeal - Sentence - Proceeds of crime and drug offences - Applicant has paranoid schizophrenia - Whether judge erred on factual basis that applicant did not have schizophrenia at time of offending - Whether application of general deterrence should be moderated due to applicant's schizophrenia - Whether sentence manifestly excessive - Leave to appeal granted.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
CRIMINAL LAW - Appeal - Sentence - Criminal damage, intentionally cause injury, attempt to pervert the course of justice and persistent contravention of a family violence safety notice - All offending occurred within the context of family violence - Whether term of imprisonment with non-parole period manifestly excessive - Whether time served with Community Correction Order the only available sentencing option open - Leave to appeal refused.
Boulton v The Queen (2014) 46 VR 308; DPP v Reynolds (a pseudonym) (2022) 71 VR 366, referred to.
Skeates (a Pseudonym) v The King [2023] VSCA 226, applied.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
CRIMINAL LAW - Appeal - Sentence - Firearms, drug trafficking and proceeds of crime offending - Applicant on parole for similar offending at time offences committed - Significant and relevant criminal history - Statutory presumptions of cumulation and order of sentence - Totality - Whether sentence manifestly excessive - Sentence within range - Application for leave to appeal refused.
Sentencing Act 1991, ss 6E, 15 and 16(3B).
APPLICATION FOR EXTENSION OF TIME IN WHICH TO SEEK LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
APPLICATION FOR EXTENSION OF TIME IN WHICH TO SEEK LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
CRIMINAL LAW - Appeal - Sentence - Theft, dangerous driving causing serious injury and fail to render assistance - Whether judge unilaterally aggravated the factual basis of the plea by going behind the agreed summary - Whether judge impermissibly relied upon opinion evidence - No error - Leave for extension of time refused.
Madafferi v The Queen [2017] VSCA 302, applied.
Weininger v R (2002) 212 CLR 629; Ristevski v The Queen (2011) 31 VR 93; R v Bunning [2007] VSCA 205; R v Lowe [2009] VSCA 268; DPP v Walsh (a pseudonym) [2018] VSCA 172; Qayyum v The King [2025] VSCA 14, referred to.
CRIMINAL LAW - Appeal - Conviction - Sexual penetration of a child under 16 and associated offences - Trial judge discharged ill juror without hearing the parties - Irregularity occasioning a substantial miscarriage of justice.
CRIMINAL LAW - Appeal - Conviction - Sexual penetration of a child under 16 and associated offences - Trial judge discharged ill juror without hearing the parties - Irregularity occasioning a substantial miscarriage of justice.
CRIMINAL LAW - Appeal - Conviction - Sexual penetration of a child under 16 and associated offences - Recording of prosecution opening and defence response from previous trial played to jury in place of oral addresses by counsel - Recording of poor quality - Irregularity occasioning a substantial miscarriage of justice.
Criminal Procedure Act 2009 ss 224 and 225; Juries Act 2000 s 43.
DEED - Bitcoin - Whether clause is implied in a deed concerning release of security over Bitcoin - Whether other clauses implied in the deed that the obligations of a party under the deed are dependent upon the performance of another party's obligations under the deed - Where clause is implied in the deed concerning release of security over Bitcoin - Where other clauses not implied in the deed - Where one defendant is in liquidation and the other defendants did not appear - Where a counterclaim of one of the defendants who did not appear was dismissed - Where plaintiff did not seek final relief on his claims given a freezing order in other proceedings in this Court - Question of plaintiff's final relief adjourned for further hearing - Hacer Group Pty Ltd v Euro Façade Tech Export Sdn Bhd [2022] VSC 373, BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, Grocon Constructors (Victoria) Pty Ltd v APN DF2 Project 2 Pty Ltd [2015] VSCA 190, Hart v Macdonald (1910) 10 CLR 417, Vakras v Cripps [2015] VSCA 193, considered and applied.
DEED - Bitcoin - Whether clause is implied in a deed concerning release of security over Bitcoin - Whether other clauses implied in the deed that the obligations of a party under the deed are dependent upon the performance of another party's obligations under the deed - Where clause is implied in the deed concerning release of security over Bitcoin - Where other clauses not implied in the deed - Where one defendant is in liquidation and the other defendants did not appear - Where a counterclaim of one of the defendants who did not appear was dismissed - Where plaintiff did not seek final relief on his claims given a freezing order in other proceedings in this Court - Question of plaintiff's final relief adjourned for further hearing - Hacer Group Pty Ltd v Euro Façade Tech Export Sdn Bhd [2022] VSC 373, BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, Grocon Constructors (Victoria) Pty Ltd v APN DF2 Project 2 Pty Ltd [2015] VSCA 190, Hart v Macdonald (1910) 10 CLR 417, Vakras v Cripps [2015] VSCA 193, considered and applied.
RECEIVER - Just and convenient to appoint receivers to sell real property assets the subject of a deed of settlement - Deed put an end to four years of heavily contested litigation - Strong prima facie case of breach of the deed - Family relationship broken down - Multiple past breaches and delays by defendants - Breach of obligation to cooperate - Section 37(1) of the Supreme Court Act 1986 (Vic), ss 7 and 8 of the Civil Procedure Act 2010 (Vic) - Australian Securities and Investments Commission v Hopkins [2024] FCA 1371, University of Western Australia v Gray (No 6) [2006] FCA 1825 followed, National Australia Bank Limited v Bond Brewing Holdings Limited [1991] 1 VR 386 distinguished, Martyniuk v King & Ors [2000] VSC 319 considered.
RECEIVER - Just and convenient to appoint receivers to sell real property assets the subject of a deed of settlement - Deed put an end to four years of heavily contested litigation - Strong prima facie case of breach of the deed - Family relationship broken down - Multiple past breaches and delays by defendants - Breach of obligation to cooperate - Section 37(1) of the Supreme Court Act 1986 (Vic), ss 7 and 8 of the Civil Procedure Act 2010 (Vic) - Australian Securities and Investments Commission v Hopkins [2024] FCA 1371, University of Western Australia v Gray (No 6) [2006] FCA 1825 followed, National Australia Bank Limited v Bond Brewing Holdings Limited [1991] 1 VR 386 distinguished, Martyniuk v King & Ors [2000] VSC 319 considered.
COSTS - Where defendants applied for security for their costs of the proceeding - Where defendants were successful and security was awarded - Where the Court found it unnecessary to determine certain issues raised by defendants on their applications for security - Where the plaintiffs submitted that the costs should be reduced - Supreme Court Act 1986 (Vic) s 24 - Applicable principles on costs - Costs awarded to defendants with no reduction - Trailer Trash Franchise Systems Pty Ltd v GM Fascia & Gutter Pty Ltd [2017] VSCA 293, considered.
COSTS - Where defendants applied for security for their costs of the proceeding - Where defendants were successful and security was awarded - Where the Court found it unnecessary to determine certain issues raised by defendants on their applications for security - Where the plaintiffs submitted that the costs should be reduced - Supreme Court Act 1986 (Vic) s 24 - Applicable principles on costs - Costs awarded to defendants with no reduction - Trailer Trash Franchise Systems Pty Ltd v GM Fascia & Gutter Pty Ltd [2017] VSCA 293, considered.
PRACTICE AND PROCEDURE - Where matter set down for trial on 7 May 2025 and defendant seeks to vacate the trial, amend its defence, file and serve expert evidence by 10 June 2025 and obtain security for costs - Where defendant's explanation for delay is manifestly inadequate - Defendant's application to amend its defence allowed (in part) and other applications dismissed.
PRACTICE AND PROCEDURE - Where matter set down for trial on 7 May 2025 and defendant seeks to vacate the trial, amend its defence, file and serve expert evidence by 10 June 2025 and obtain security for costs - Where defendant's explanation for delay is manifestly inadequate - Defendant's application to amend its defence allowed (in part) and other applications dismissed.
PRACTICE AND PROCEDURE - Application for oral examination under Supreme Court (General Civil Procedure) Rules 2015 r 67.02 - Enforcement of untaxed costs order - Material questions as to availability of assets to meet costs order.
PRACTICE AND PROCEDURE - Application for oral examination under Supreme Court (General Civil Procedure) Rules 2015 r 67.02 - Enforcement of untaxed costs order - Material questions as to availability of assets to meet costs order.
PRACTICE AND PROCEDURE - Application for leave to serve defendant ordinarily residing in China - Supreme Court (General Civil Procedure) Rules 2015 r 7.08.
PRACTICE AND PROCEDURE - Interveners - Application for leave to intervene in two proceedings - Proposed intervention to support an application by the intervener's partner for a stay of cost orders against the partner - No utility in intervention - Leave refused - Proposed intervention also raises independent claims for final relief by a summons - Procedure inappropriate for such claims - Applications dismissed - Levy v Victoria (1997) 189 CLR 579, considered.
PRACTICE AND PROCEDURE - Interveners - Application for leave to intervene in two proceedings - Proposed intervention to support an application by the intervener's partner for a stay of cost orders against the partner - No utility in intervention - Leave refused - Proposed intervention also raises independent claims for final relief by a summons - Procedure inappropriate for such claims - Applications dismissed - Levy v Victoria (1997) 189 CLR 579, considered.
PRACTICE AND PROCEDURE - Interlocutory applications by a party in two proceedings - Where party seeks stays of gross sum cost orders - Where Court has previously refused a stay of some of the cost orders - Proposed stays for indeterminate duration - No proper basis for stay - Applications refused - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 66.16 - Sami v Roads Corporation [2009] VSCA 44 and Cross Country Realty Victoria Pty Ltd v Ubertas 350 William Street Pty Ltd [2015] VSCA 347, considered and applied.
PRACTICE AND PROCEDURE - Interlocutory applications by a party in two proceedings - Where party seeks stays of gross sum cost orders - Where Court has previously refused a stay of some of the cost orders - Proposed stays for indeterminate duration - No proper basis for stay - Applications refused - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 66.16 - Sami v Roads Corporation [2009] VSCA 44 and Cross Country Realty Victoria Pty Ltd v Ubertas 350 William Street Pty Ltd [2015] VSCA 347, considered and applied.
PRACTICE AND PROCEDURE - Application to vacate trial - Witness unavailable - Defendants' funding difficulties - Rules 48.06 and 49.03 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Where witness unavailable due to inability to leave China - Witness in China and restricted from giving oral or audio-visual evidence - Trial adjournment and trial vacation applications, general principles - Whether vacation would cause unfair prejudice - Whether not vacating trial would be prejudicial - Whether witness a critical witness - Trial vacation application refused - Liberty to apply to adjourn the trial part-heard to have witness give evidence at a later date reserved - Sections 47, 48 and 49 Civil Procedure Act 2010 (Vic) - Eaton v ISS Catering Services Pty Ltd [2013] 42 VR 635 - Dawn v Carlisle [2025] VSCA 58.
PRACTICE AND PROCEDURE - Application to vacate trial - Witness unavailable - Defendants' funding difficulties - Rules 48.06 and 49.03 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Where witness unavailable due to inability to leave China - Witness in China and restricted from giving oral or audio-visual evidence - Trial adjournment and trial vacation applications, general principles - Whether vacation would cause unfair prejudice - Whether not vacating trial would be prejudicial - Whether witness a critical witness - Trial vacation application refused - Liberty to apply to adjourn the trial part-heard to have witness give evidence at a later date reserved - Sections 47, 48 and 49 Civil Procedure Act 2010 (Vic) - Eaton v ISS Catering Services Pty Ltd [2013] 42 VR 635 - Dawn v Carlisle [2025] VSCA 58.
PRACTICE AND PROCEDURE - Costs - Whether leave to proceed against a corporate defendant now in liquidation should be granted so as to pursue making of a costs order - Leave is required - Leave granted, on conditions - Corporations Act 2010 (Cth), s 500(2).
PRACTICE AND PROCEDURE - Costs - Whether leave to proceed against a corporate defendant now in liquidation should be granted so as to pursue making of a costs order - Leave is required - Leave granted, on conditions - Corporations Act 2010 (Cth), s 500(2).
PRACTICE AND PROCEDURE - Costs - Whether leave is required to proceed against a defendant made bankrupt before relevant costs order is made - Leave not required as the costs order is not a provable debt - Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 - Bankruptcy Act 1966 (Cth), ss 58, 60 and 82.
PRACTICE AND PROCEDURE - Costs - Plaintiff seeks order for costs against defendants following Court of Appeal remitting assessment of loss of bargain damages to trial judge, setting aside costs orders previously made by trial judge and reserving the costs of the proceeding to the trial judge - Plaintiff substantially successful following trial, cross-appeal and the outcome of the remitter - No reason to displace ordinary rule that costs follow the event - Costs order made.
STANDING - s 58(1)(a) of the Bankruptcy Act 1966 (Cth) - General rule regarding vesting of property upon bankruptcy - Bankrupt no longer has standing in respect of the property the subject of the legal proceedings.
STANDING - s 58(1)(a) of the Bankruptcy Act 1966 (Cth) - General rule regarding vesting of property upon bankruptcy - Bankrupt no longer has standing in respect of the property the subject of the legal proceedings.
SUMMARY JUDGMENT - ss 61 and 63 of the Civil Procedure Act 2010 (Vic) - No real prospects of success - Failure to disclose an actionable defence.
CORPORATIONS - Extension of time to comply with statutory demand - Extension sought pending application for leave to appeal orders dismissing application to set aside statutory demand - Whether order should be made extending time for compliance with statutory demand - Corporations Act 2001 (Cth), s 459F - Further extension order sought - Time for compliance with statutory demand extended - General principles applicable to applications under s 459F(2)(a)(i) of the Corporations Act 2001 (Cth) - Time extension ultimately consented to - Whether extension order can be to the occurrence of a future event - Undertaking to prosecute application for leave to appeal with expedition.
CORPORATIONS - Extension of time to comply with statutory demand - Extension sought pending application for leave to appeal orders dismissing application to set aside statutory demand - Whether order should be made extending time for compliance with statutory demand - Corporations Act 2001 (Cth), s 459F - Further extension order sought - Time for compliance with statutory demand extended - General principles applicable to applications under s 459F(2)(a)(i) of the Corporations Act 2001 (Cth) - Time extension ultimately consented to - Whether extension order can be to the occurrence of a future event - Undertaking to prosecute application for leave to appeal with expedition.
PRACTICE AND PROCEDURE - Extension orders sought for filing and serving documents in support of application for leave to appeal - Written reasons for order the subject of application for leave to appeal not yet available - rr 64.05(1)(ab), 64.05(1)(c), and 64.35 of the Supreme Court (General Civil Procedure) Rules 2015 - Time for filing written case, list of authorities, and written reasons for decision extended.
CORPORATIONS - Interlocutory injunction - Oppression - Serious question to be tried - Balance of convenience - Competing offer from plaintiff to purchase company shares and offer from third party to purchase company investment shareholding - Whether shareholders sufficiently informed of third party offer - Application to restrain alternative resolution to wind up company - Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 - ENT Pty Ltd v Sunraysia Pty Ltd (2007) 61 ACSR 626 - Corporations Act 2001 (Cth), s 232.
CORPORATIONS - Interlocutory injunction - Oppression - Serious question to be tried - Balance of convenience - Competing offer from plaintiff to purchase company shares and offer from third party to purchase company investment shareholding - Whether shareholders sufficiently informed of third party offer - Application to restrain alternative resolution to wind up company - Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 - ENT Pty Ltd v Sunraysia Pty Ltd (2007) 61 ACSR 626 - Corporations Act 2001 (Cth), s 232.
CORPORATIONS - Voluntary administration - Declaration of validity of appointment of voluntary administrators to trustee company - Purported exercise of director's powers pursuant to a power of attorney - Corporations Act 2001 (Cth) s 447A.
CORPORATIONS - Voluntary administration - Declaration of validity of appointment of voluntary administrators to trustee company - Purported exercise of director's powers pursuant to a power of attorney - Corporations Act 2001 (Cth) s 447A.
CORPORATIONS - Application for orders under Corporations Act 2001 (Cth) sch 2 ss 90-15 and 90-20 - Insolvency Practice Schedule (Corporations) - Whether the company was justified and acting reasonably in proceeding on basis that it acted solely in its capacity as trustee at all times - Whether the administrators are entitled to use trust assets to pay their expenses and the creditors of the trust.
CORPORATIONS - Application for orders conferring powers to deal with trust assets on the trustee company under Trustee Act 1958 (Vic) s 63(1) - Where the company is a bare trustee - Whether the administrators should be appointed as receivers of the trust assets under Supreme Court Act 1986 (Vic) s 37(1).
CORPORATIONS - Application for relief from liability under Corporations Act 2001 (Cth) s 1318 and/or Trustee Act 1958 (Vic) s 67 - Where administrators exceeded powers as bare trustee in selling trust property - Whether administrators acted honestly and reasonably.
CORPORATIONS - Application for extension of the convening period for the second meeting of creditors - Corporations Act 2001 (Cth) s 439A.
FAMILY PROVISION AND MAINTENANCE - Application by domestic partner for further provision - Alleged failure by deceased to make adequate provision for plaintiff's proper maintenance and support - Where deceased executed will with letter of wishes - Testamentary freedom - Dispute as to length of domestic relationship - Widower cases distinguished - No need demonstrated by plaintiff - Application dismissed - Administration and Probate Act 1958 ss 3, 91, 91A - Relationships Act 2008 s 35(2) - Nock v Austin (1918) 25 CLR 519 - Bosch v Perpetual Trustee Co Ltd [1938] AC 463 - Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 - Re Buckland [1966] VR 404 - Singer v Berghouse (1994) 181 CLR 201 - Grey v Harrison [1997] 2 VR 359 - KQ v HAE [2007] 2 Qd R 32 - FO v HAF [2007] 2 Qd R 138 - Borebor v Keane (2013) 11 ASTLR 96 - Brimelow v Alampi (2016) 50 VR 219 - Davison v Kempson (2018) 17 ASTLR 244 - Re Ho; Liang v Broadfoot [2020] VSC 168 - Gash v Ruzicka [2023] VSCA 189.
FAMILY PROVISION AND MAINTENANCE - Application by domestic partner for further provision - Alleged failure by deceased to make adequate provision for plaintiff's proper maintenance and support - Where deceased executed will with letter of wishes - Testamentary freedom - Dispute as to length of domestic relationship - Widower cases distinguished - No need demonstrated by plaintiff - Application dismissed - Administration and Probate Act 1958 ss 3, 91, 91A - Relationships Act 2008 s 35(2) - Nock v Austin (1918) 25 CLR 519 - Bosch v Perpetual Trustee Co Ltd [1938] AC 463 - Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 - Re Buckland [1966] VR 404 - Singer v Berghouse (1994) 181 CLR 201 - Grey v Harrison [1997] 2 VR 359 - KQ v HAE [2007] 2 Qd R 32 - FO v HAF [2007] 2 Qd R 138 - Borebor v Keane (2013) 11 ASTLR 96 - Brimelow v Alampi (2016) 50 VR 219 - Davison v Kempson (2018) 17 ASTLR 244 - Re Ho; Liang v Broadfoot [2020] VSC 168 - Gash v Ruzicka [2023] VSCA 189.
APPEAL - Children's Court of Victoria - Interim accommodation order - Nature of appeal - Appellate intervention under s 271 where Court thinks that Children's Court ought to have made a different order - Evaluation of risks of harm and consideration of other relevant circumstances having regard to best interests of the children - One of the conditions in each of the current orders of Children's Court was inconsistent with the current arrangements for the care of the children - The current orders were made without regard to recent probative evidence of a senior psychologist - The father presented no risk to one of the children of the family and he had sole parental responsibility pursuant to orders of the Federal Circuit and Family Court of Australia - Decision-making principles - Risks of psychological harm to children - Wishes of children - Relationship with parents - Placement with siblings - Children, Youth and Families Act 2005, ss 8, 10, 263(7), 271.
APPEAL - Children's Court of Victoria - Interim accommodation order - Nature of appeal - Appellate intervention under s 271 where Court thinks that Children's Court ought to have made a different order - Evaluation of risks of harm and consideration of other relevant circumstances having regard to best interests of the children - One of the conditions in each of the current orders of Children's Court was inconsistent with the current arrangements for the care of the children - The current orders were made without regard to recent probative evidence of a senior psychologist - The father presented no risk to one of the children of the family and he had sole parental responsibility pursuant to orders of the Federal Circuit and Family Court of Australia - Decision-making principles - Risks of psychological harm to children - Wishes of children - Relationship with parents - Placement with siblings - Children, Youth and Families Act 2005, ss 8, 10, 263(7), 271.
PUBLIC LAW - Application for extended supervision order under Division 105A of Part 5.3 of the schedule to the Criminal Code Act 1995 (Cth) - Terrorist offender - Whether defendant poses an unacceptable risk of committing a serious Part 5.3 offence - Whether extended supervision order should be made - Whether conditions of extended supervision order reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the community from an unacceptable risk of the defendant committing a serious Part 5.3 offence - Extended supervision order made for a period of 7 months and 18 days - Conditions directed towards therapeutic matters only - Criminal Code Act 1995 (Cth), sch, pt 5.3, div 105A.
PUBLIC LAW - Application for extended supervision order under Division 105A of Part 5.3 of the schedule to the Criminal Code Act 1995 (Cth) - Terrorist offender - Whether defendant poses an unacceptable risk of committing a serious Part 5.3 offence - Whether extended supervision order should be made - Whether conditions of extended supervision order reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the community from an unacceptable risk of the defendant committing a serious Part 5.3 offence - Extended supervision order made for a period of 7 months and 18 days - Conditions directed towards therapeutic matters only - Criminal Code Act 1995 (Cth), sch, pt 5.3, div 105A.
PRACTICE AND PROCEDURE - Discovery of documents by category in group proceeding - Whether certain categories should be ordered to be discovered - Relevance as the touchstone - Orders for discovery in group proceedings extend to discovery of documents relevant to common issues raised on the pleadings - s 55 of the Civil Procedure Act 2010.
PRACTICE AND PROCEDURE - Discovery of documents by category in group proceeding - Whether certain categories should be ordered to be discovered - Relevance as the touchstone - Orders for discovery in group proceedings extend to discovery of documents relevant to common issues raised on the pleadings - s 55 of the Civil Procedure Act 2010.
PRACTICE AND PROCEDURE - Urgent application for interlocutory injunctions - Application by registered proprietors of land to restrain imminent settlement of contracts of sale of land - In related proceeding caveator seeks to maintain caveats on basis of claim of breach of mortgagee's duty in exercising power of sale - Outcome of related proceeding dependent on outcome of application for injunction - After receiving defendants' affidavit material plaintiffs apply for adjournment to supplement their affidavit material - Court hears application for interim injunction.
PRACTICE AND PROCEDURE - Urgent application for interlocutory injunctions - Application by registered proprietors of land to restrain imminent settlement of contracts of sale of land - In related proceeding caveator seeks to maintain caveats on basis of claim of breach of mortgagee's duty in exercising power of sale - Outcome of related proceeding dependent on outcome of application for injunction - After receiving defendants' affidavit material plaintiffs apply for adjournment to supplement their affidavit material - Court hears application for interim injunction.
INJUNCTIONS - Application by registered proprietors of land to restrain imminent settlement of contracts of sale of land - Two claims pleaded in general indorsement on writ - First claim alleges unconscionable conduct in relation to entry into loan facility agreement and steps taken by defendants under that agreement - Asserted claim subject to release contained in subsequent deed of forbearance - On current evidence prima facie case not established for first claim - Second claim alleges exercise by defendants of mortgagee's power of sale in breach of duty of good faith and s 77 of Transfer of Land Act 1958 - On current evidence, prima facie case for second claim not established - Further or alternatively, any such case insufficient to justify interim injunction preventing imminent settlement - Balance of convenience does not support the grant of the injunction - Not established that damages would be an inadequate remedy - Not established that usual undertaking as to damages would be meaningful in light of plaintiffs' inadequate finances, uncertain prospects of obtaining refinancing and the absence of any alternative additional security - Not established that plaintiffs face a greater risk of harm from settlements proceeding than defendants do from sales being restrained - Transfer of Land Act 1958 s 77.
PRACTICE AND PROCEDURE - Discovery - Application for particular discovery - Claim alleging exercise by defendants of mortgagee's power of sale in breach of duty of good faith and s 77 of Transfer of Land Act 1958 - Defendants disclosed partially redacted contracts of sale omitting identify of purchasers and purchase prices - Plaintiffs apply for discovery of unredacted contracts of sale - Relevance to claim - Defendants' allegations of interference with sale process by plaintiffs - Defendants' claims about commercial sensitivity and confidentiality - Whether necessary and appropriate to decide in course of urgent Practice Court hearing - Civil Procedure Act 2010.
ADMINISTRATIVE LAW - Judicial review - Coroner - Investigation - Claim for order remitting matter to different coroner - Extensive correspondence including memoranda of submissions sent by senior next of kin to Coroners Court - Memoranda contain allegations of wrongdoing by the investigating Coroner and staff - Application by senior next of kin for access to documents not yet decided - Letters from Coroners Court advising of complaint and appeal avenues and advising that Coroners Court would not engage in further correspondence on matters raised - Claims of breach of procedural fairness, unreasonableness and ostensible bias - Grounds of judicial review not established - Relief refused.
ADMINISTRATIVE LAW - Judicial review - Coroner - Investigation - Claim for order remitting matter to different coroner - Extensive correspondence including memoranda of submissions sent by senior next of kin to Coroners Court - Memoranda contain allegations of wrongdoing by the investigating Coroner and staff - Application by senior next of kin for access to documents not yet decided - Letters from Coroners Court advising of complaint and appeal avenues and advising that Coroners Court would not engage in further correspondence on matters raised - Claims of breach of procedural fairness, unreasonableness and ostensible bias - Grounds of judicial review not established - Relief refused.
CORONERS - Application for access to documents by senior next of kin - Application not yet decided - Potentially relevant considerations - Claim that documents are unlawfully withheld not established - Coroners Act 2008 s 115(2).
ADMINISTRATIVE LAW - Appeal from the Victorian Civil and Administrative Tribunal ('Tribunal') pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Dispute between residential rental provider ('landlord') and renter ('tenant') following break of lease - Where Tribunal dismissed part of landlord's claim and off-set other part as against renter's cross-claim - Landlord's appeal - Consideration of Tribunal's jurisdiction under the Residential Tenancies Act 1997 (Vic) - No neglect of mandatory considerations - No failure to exercise jurisdiction - No error of law established - Leave to appeal refused.
ADMINISTRATIVE LAW - Appeal from the Victorian Civil and Administrative Tribunal ('Tribunal') pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Dispute between residential rental provider ('landlord') and renter ('tenant') following break of lease - Where Tribunal dismissed part of landlord's claim and off-set other part as against renter's cross-claim - Landlord's appeal - Consideration of Tribunal's jurisdiction under the Residential Tenancies Act 1997 (Vic) - No neglect of mandatory considerations - No failure to exercise jurisdiction - No error of law established - Leave to appeal refused.
LEGAL PRACTITIONERS - Suspension of Australian practising certificate - Practising certificate suspended on the basis of a charge of an indictable offence - Charge of attempting to pervert the course of justice - Charge of serious offence not yet determined - Power of delegate of Victorian Legal Services Board to immediately suspend practising certificate - Delegate considered that it was necessary in the public interest to suspend the certificate immediately - Board to consider further suspension - Legal Profession Uniform Law (Vic) ss 77, 82(2).
LEGAL PRACTITIONERS - Suspension of Australian practising certificate - Practising certificate suspended on the basis of a charge of an indictable offence - Charge of attempting to pervert the course of justice - Charge of serious offence not yet determined - Power of delegate of Victorian Legal Services Board to immediately suspend practising certificate - Delegate considered that it was necessary in the public interest to suspend the certificate immediately - Board to consider further suspension - Legal Profession Uniform Law (Vic) ss 77, 82(2).
JUDICIAL REVIEW - Australian practising certificate suspended on the basis of a charge of an indictable offence - Delegate of Victorian Legal Services Board formed opinion that immediate suspension of practising certificate was necessary in the public interest and decided to immediately suspend practising certificate without notice to holder - No evidence of other information supporting charge-sheet - Charge related to conduct alleged six years earlier - No suggestion of ongoing relevant conduct - No action under Legal Profession Uniform Law (Vic) pt 3.5 yet commenced - No basis for thinking practitioner might engage in any actual similar conduct - Suspension decision based purely on perception of loss of confidence in the legal profession and administration of justice - Content of requirements of procedural fairness in context of statutory provisions and in all the circumstances - Procedural fairness required advance notice and an opportunity to respond to opinion formed by delegate before suspension decision was made - Unreasonable exercise of statutory power to immediately suspend without notice in the circumstances - Suspension decision quashed - Legal Profession Uniform Law (Vic) ss 77, 82(2) - Supreme Court (General Civil Procedure) Rules 2015 r 56.06.
COSTS - Indemnity principle - Where there was an initial costs agreement - Where failure of law practice to comply with ongoing costs disclosure - Where applicant and her solicitors subsequently entered into an oral costs agreement - Where oral costs agreement was conditional on no-win/no-fee - Cost agreement void - Whether applicant is liable to pay legal costs despite the void cost agreement - Whether taxation should be stayed until a costs assessment is conducted - Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 ss 172, 174, 178, 180, 181, 184, 185, 196, 198-200 - Legal Profession Uniform General Rules 2015 r 72A - Shaw v Yarranova [2011] VSCA 55 - Kuek v Devflan (2011) 31 VR 264 - Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 4) [2013] VSC 669 - Royal v El Ali (No 3) [2016] FCA 1573 - Wills v Woolworths [2022] FCA 1545.
COSTS - Indemnity principle - Where there was an initial costs agreement - Where failure of law practice to comply with ongoing costs disclosure - Where applicant and her solicitors subsequently entered into an oral costs agreement - Where oral costs agreement was conditional on no-win/no-fee - Cost agreement void - Whether applicant is liable to pay legal costs despite the void cost agreement - Whether taxation should be stayed until a costs assessment is conducted - Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 ss 172, 174, 178, 180, 181, 184, 185, 196, 198-200 - Legal Profession Uniform General Rules 2015 r 72A - Shaw v Yarranova [2011] VSCA 55 - Kuek v Devflan (2011) 31 VR 264 - Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 4) [2013] VSC 669 - Royal v El Ali (No 3) [2016] FCA 1573 - Wills v Woolworths [2022] FCA 1545.
COSTS COURT- Assessment of costs by Costs Registrar set aside by Judicial Registrar of the Costs Court - Application for review of orders made by Judicial Registrar of the Costs Court under s 17HA(1) of Supreme Court Act 1986 - Consideration of effect of slip rule order made by Magistrates' Court of Victoria - Whether Magistrates' Court's costs order remained in force - Appeal allowed, orders of Judicial Registrar in Costs Court set aside and orders of Costs Registrar re-instated.
COSTS COURT- Assessment of costs by Costs Registrar set aside by Judicial Registrar of the Costs Court - Application for review of orders made by Judicial Registrar of the Costs Court under s 17HA(1) of Supreme Court Act 1986 - Consideration of effect of slip rule order made by Magistrates' Court of Victoria - Whether Magistrates' Court's costs order remained in force - Appeal allowed, orders of Judicial Registrar in Costs Court set aside and orders of Costs Registrar re-instated.
CRIMINAL LAW - Offence - Murder - Identity of shooter in dispute - Whether evidence that the accused set fire to the deceased's restaurant approximately 7 weeks before shooting admissible - Prosecution rely on impugned evidence as evidence of motive to kill - Other evidence of the accused's animosity towards the deceased available to the prosecution - Whether impugned evidence relevant - Whether probative value outweighed by risk of unfair prejudice - Evidence Act 2008 (Vic) ss 55, 137 - Jury Directions Act 2015 (Vic) s 29.
CRIMINAL LAW - Offence - Murder - Identity of shooter in dispute - Whether evidence that the accused set fire to the deceased's restaurant approximately 7 weeks before shooting admissible - Prosecution rely on impugned evidence as evidence of motive to kill - Other evidence of the accused's animosity towards the deceased available to the prosecution - Whether impugned evidence relevant - Whether probative value outweighed by risk of unfair prejudice - Evidence Act 2008 (Vic) ss 55, 137 - Jury Directions Act 2015 (Vic) s 29.
CRIMINAL LAW - Application pursuant to s 39(2) of Sex Offenders Registration Act 2004 (Vic) to suspend registrable offender's lifelong reporting obligations - Where offending in relation to three girls between the ages of 5 and 8 and occurred between 1989 and 1996 - Where no suggestion of further sexual offending in previous 29 years - Where contemporaneous psychological opinion that applicant poses negligible risk to the community - Court satisfied, in accordance with s 40(2) of the Sex Offenders Registration Act 2004 (Vic), that the applicant poses a low risk to the sexual safety of the community and it is in the public interest to suspend the applicant's reporting obligations - Sex Offenders Registration Act 2004 (Vic) ss 39, 40.
CRIMINAL LAW - Application pursuant to s 39(2) of Sex Offenders Registration Act 2004 (Vic) to suspend registrable offender's lifelong reporting obligations - Where offending in relation to three girls between the ages of 5 and 8 and occurred between 1989 and 1996 - Where no suggestion of further sexual offending in previous 29 years - Where contemporaneous psychological opinion that applicant poses negligible risk to the community - Court satisfied, in accordance with s 40(2) of the Sex Offenders Registration Act 2004 (Vic), that the applicant poses a low risk to the sexual safety of the community and it is in the public interest to suspend the applicant's reporting obligations - Sex Offenders Registration Act 2004 (Vic) ss 39, 40.
CRIMINAL LAW - Sentence - Murder - Intentionally causing injury ("ICI") - In May 2023, group of four Year 12 students, including ST, armed with machetes and knife, confronted second group of schoolboys in street near busy suburban bus interchange - ST (aged 17) chased VC (aged 16), stabbed elbow with knife, causing injury - ST then chased PL (aged 16), stabbed twice in back, causing death - ST fled scene but handed himself in 12 days later - ST held on remand in youth justice centre ("YJC") thereafter - ST pleaded guilty to ICI and murder following sentence indication of total effective sentence of 13 years' imprisonment with non-parole period of eight years - Planned confrontation in company in disguise with weapons in full view of public - VC and PL unarmed - Profound victim impact on PL's loved ones - ST intended to cause only really serious injury to PL, not to kill - Plea of guilty to murder despite triable issue on murderous intent - Genuine remorse - Youth (17 then; 19 now) - No prior convictions - Positively good character - While some concerning behaviour on remand in YJC, ST engaged well in education - Strong support from family, former school teachers, and teachers in YJC - Excellent prospects of rehabilitation - Parity - Co-accused received non-custodial sentences or diversion on charges arising out of same incident, including affray, weapons offences, and ICI - On murder, proposed sentence of 13 years' imprisonment with non-parole period of eight years - On ICI, proposed sentence (as a child) of good behaviour bond - Contrary to (fundamentally flawed) Youth Justice reports recommending otherwise, Court recommends to Adult Parole Board that ST serve some of sentence in YJC, at least to complete education or training - But for pleas of guilty, total effective sentence in order of 18 years' imprisonment with non-parole period of 13 years - Sentences foreshadowed today but to be passed next week to allow ST to remain in YJC while Adult Parole Board in interim considers whether he serves some of balance of sentence in YJC before transfer to prison - Crimes Act 1958 (Vic), ss 3 & 18; Criminal Procedure Act 2009 (Vic), ss 207-?209; Sentencing Act 1991 (Vic), ss 5, 6AAA & 18; Children, Youth and Families Act 2005 (Vic), ss 360-?362, 367, 471, 516, 534 & 586.
CRIMINAL LAW - Sentence - Murder - Intentionally causing injury ("ICI") - In May 2023, group of four Year 12 students, including ST, armed with machetes and knife, confronted second group of schoolboys in street near busy suburban bus interchange - ST (aged 17) chased VC (aged 16), stabbed elbow with knife, causing injury - ST then chased PL (aged 16), stabbed twice in back, causing death - ST fled scene but handed himself in 12 days later - ST held on remand in youth justice centre ("YJC") thereafter - ST pleaded guilty to ICI and murder following sentence indication of total effective sentence of 13 years' imprisonment with non-parole period of eight years - Planned confrontation in company in disguise with weapons in full view of public - VC and PL unarmed - Profound victim impact on PL's loved ones - ST intended to cause only really serious injury to PL, not to kill - Plea of guilty to murder despite triable issue on murderous intent - Genuine remorse - Youth (17 then; 19 now) - No prior convictions - Positively good character - While some concerning behaviour on remand in YJC, ST engaged well in education - Strong support from family, former school teachers, and teachers in YJC - Excellent prospects of rehabilitation - Parity - Co-accused received non-custodial sentences or diversion on charges arising out of same incident, including affray, weapons offences, and ICI - On murder, proposed sentence of 13 years' imprisonment with non-parole period of eight years - On ICI, proposed sentence (as a child) of good behaviour bond - Contrary to (fundamentally flawed) Youth Justice reports recommending otherwise, Court recommends to Adult Parole Board that ST serve some of sentence in YJC, at least to complete education or training - But for pleas of guilty, total effective sentence in order of 18 years' imprisonment with non-parole period of 13 years - Sentences foreshadowed today but to be passed next week to allow ST to remain in YJC while Adult Parole Board in interim considers whether he serves some of balance of sentence in YJC before transfer to prison - Crimes Act 1958 (Vic), ss 3 & 18; Criminal Procedure Act 2009 (Vic), ss 207-?209; Sentencing Act 1991 (Vic), ss 5, 6AAA & 18; Children, Youth and Families Act 2005 (Vic), ss 360-?362, 367, 471, 516, 534 & 586.
CRIMINAL LAW - Sentence - Manslaughter by unlawful and dangerous act - Separate charge of armed robbery - Early pleas of guilty to both offences - Serious offences - Armed robbery in company - Accused armed with knife and co-offender with machete - Accused threatened to kill victim - Manslaughter - Accused and co-offenders confronted victim and associate in enclosed space - Accused stabbed victim with knife - Accused fled to Queensland after offence - Substantial criminal history - Childhood deprivation resulting in drug and alcohol dependency - Reduced culpability - Difficult circumstances in custody - Remorse - Significant utilitarian value of pleas.
CRIMINAL LAW - Sentence - Manslaughter by unlawful and dangerous act - Separate charge of armed robbery - Early pleas of guilty to both offences - Serious offences - Armed robbery in company - Accused armed with knife and co-offender with machete - Accused threatened to kill victim - Manslaughter - Accused and co-offenders confronted victim and associate in enclosed space - Accused stabbed victim with knife - Accused fled to Queensland after offence - Substantial criminal history - Childhood deprivation resulting in drug and alcohol dependency - Reduced culpability - Difficult circumstances in custody - Remorse - Significant utilitarian value of pleas.
CRIMINAL LAW - Sentence - Intentionally causing serious injury - In kitchen of family home, accused, without warning, stabbed estranged wife repeatedly to face, upper body, arms, hands with knife - After child wrested knife from him, accused resumed attack with meat cleaver - Children ultimately stopped assault, allowing mother to flee - Injuries included permanent blindness in left eye, significant laceration of tongue, noticeable facial and other scarring - Profound victim impact - Offence committed in breach of family violence intervention order ("FVIO") and adjourned undertaking for breaching similar order - Grave example of offence - Accused handed himself in to police, made some admissions - Plea of guilty - Genuine remorse - Accused aged 59 then, 61 now - No prior convictions, but previous instances of family (albeit not physical) violence - Solid work history - Support of adult son - Good prospects of rehabilitation - Accused's depression (severe), adjustment disorder, cognitive deficits and lack of English make imprisonment more burdensome - Mental health likely to deteriorate in prison - Importance of general deterrence, denunciation, just punishment, and rehabilitation - Specific deterrence and community protection of lesser moment - Parsimony - Current sentencing practices - Sentence of ten years' imprisonment with non-parole period of seven years - But for plea of guilty and remorse, sentence in order of thirteen years' imprisonment with non-parole period of ten years - Crimes Act 1958 (Vic), s 16; Sentencing Act 1991 (Vic), ss 5, 6AAA & 18.
CRIMINAL LAW - Sentence - Intentionally causing serious injury - In kitchen of family home, accused, without warning, stabbed estranged wife repeatedly to face, upper body, arms, hands with knife - After child wrested knife from him, accused resumed attack with meat cleaver - Children ultimately stopped assault, allowing mother to flee - Injuries included permanent blindness in left eye, significant laceration of tongue, noticeable facial and other scarring - Profound victim impact - Offence committed in breach of family violence intervention order ("FVIO") and adjourned undertaking for breaching similar order - Grave example of offence - Accused handed himself in to police, made some admissions - Plea of guilty - Genuine remorse - Accused aged 59 then, 61 now - No prior convictions, but previous instances of family (albeit not physical) violence - Solid work history - Support of adult son - Good prospects of rehabilitation - Accused's depression (severe), adjustment disorder, cognitive deficits and lack of English make imprisonment more burdensome - Mental health likely to deteriorate in prison - Importance of general deterrence, denunciation, just punishment, and rehabilitation - Specific deterrence and community protection of lesser moment - Parsimony - Current sentencing practices - Sentence of ten years' imprisonment with non-parole period of seven years - But for plea of guilty and remorse, sentence in order of thirteen years' imprisonment with non-parole period of ten years - Crimes Act 1958 (Vic), s 16; Sentencing Act 1991 (Vic), ss 5, 6AAA & 18.
CRIMINAL LAW - Evidence - Accused charged with murder - Tendency evidence - Whether tendency evidence sought to be adduced by prosecution concerning previous convictions of accused admissible - Whether tendency evidence sought to be adduced by prosecution concerning admissions supposedly made by accused admissible - Evidence Act 2008 (Vic) ss 97, 101.
CRIMINAL LAW - Evidence - Accused charged with murder - Tendency evidence - Whether tendency evidence sought to be adduced by prosecution concerning previous convictions of accused admissible - Whether tendency evidence sought to be adduced by prosecution concerning admissions supposedly made by accused admissible - Evidence Act 2008 (Vic) ss 97, 101.
CRIMINAL LAW - Change of venue application - Accused charged with murder - Proper venue is Geelong - Media publicity - Suitability of facilities in Geelong - Whether fair trial can be had - Criminal Procedure Act 2009 ss 169 and 192 - R v Iaria and Panozzo [2004] VSC 96.
CRIMINAL LAW - Change of venue application - Accused charged with murder - Proper venue is Geelong - Media publicity - Suitability of facilities in Geelong - Whether fair trial can be had - Criminal Procedure Act 2009 ss 169 and 192 - R v Iaria and Panozzo [2004] VSC 96.
CRIMINAL LAW - Sentence - Intentionally causing serious injury and common law assault - Verbal and physical altercation with wife at house party - Male house party guest called to assist stabbed soon after - Verbal and physical altercation with male victim prior to stabbing - Multiple stable wounds to torso, male victim would have died without urgent medical care - Early plea of guilt accepted for assault charge against wife - Offer to plead guilty to lesser charge not accepted with relation to stabbing - Male victim posed no threat to accused at time of offending - Lack of remorse for stabbing - Total effective sentence of 9 years and one month - R v Verdins (2007) 16 VR 269 - Sentencing Act 1991 (Vic) - Crimes Act 1958 (Vic) - Pihlgren v R [2024] VSCA 47.
CRIMINAL LAW - Sentence - Intentionally causing serious injury and common law assault - Verbal and physical altercation with wife at house party - Male house party guest called to assist stabbed soon after - Verbal and physical altercation with male victim prior to stabbing - Multiple stable wounds to torso, male victim would have died without urgent medical care - Early plea of guilt accepted for assault charge against wife - Offer to plead guilty to lesser charge not accepted with relation to stabbing - Male victim posed no threat to accused at time of offending - Lack of remorse for stabbing - Total effective sentence of 9 years and one month - R v Verdins (2007) 16 VR 269 - Sentencing Act 1991 (Vic) - Crimes Act 1958 (Vic) - Pihlgren v R [2024] VSCA 47.
CRIMINAL LAW - Bail - Family violence offending - Use of a firearm - Exceptional circumstances - Significant and relevant prior convictions - Applicant relies on delay of two years; the availability of residential rehabilitation at 'The Cottage'; and 'triable issues' - Respondent concedes that it is 'open' to the Court to find exceptional circumstances exist - Unacceptable risk alleged by respondent - Exceptional circumstances not established - Applicant an unacceptable risk in at least one of the ways alleged by the respondent - Bail refused - Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E; Rajic v The Queen [2016] VSC 27.
CRIMINAL LAW - Bail - Family violence offending - Use of a firearm - Exceptional circumstances - Significant and relevant prior convictions - Applicant relies on delay of two years; the availability of residential rehabilitation at 'The Cottage'; and 'triable issues' - Respondent concedes that it is 'open' to the Court to find exceptional circumstances exist - Unacceptable risk alleged by respondent - Exceptional circumstances not established - Applicant an unacceptable risk in at least one of the ways alleged by the respondent - Bail refused - Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E; Rajic v The Queen [2016] VSC 27.
CONTRACT - Contract of employment - Rights accrued prior to termination of contract - Terms which survive termination of contract - Repudiation of contract - Effect of termination following repudiation on accrued rights or survival of terms.
CONTRACT - Contract of employment - Rights accrued prior to termination of contract - Terms which survive termination of contract - Repudiation of contract - Effect of termination following repudiation on accrued rights or survival of terms.
INTEREST - Motor vehicle property damage claim - Cost of repairs, towing and storage - Replacement hire car charges - 'Good cause' - 'Compensation in respect of liabilities incurred which do not carry interest as against the person claiming interest' - Supreme Court Act 1986, ss 60(1), 60(3)(a).
INTEREST - Motor vehicle property damage claim - Cost of repairs, towing and storage - Replacement hire car charges - 'Good cause' - 'Compensation in respect of liabilities incurred which do not carry interest as against the person claiming interest' - Supreme Court Act 1986, ss 60(1), 60(3)(a).
WORKERS COMPENSATION - Whether plaintiff is a deemed worker - Preliminary ruling - Workplace Injury Rehabilitation and Compensation Act 2013 - Schedule 1 Clause 9 Contractors.
WORKERS COMPENSATION - Whether plaintiff is a deemed worker - Preliminary ruling - Workplace Injury Rehabilitation and Compensation Act 2013 - Schedule 1 Clause 9 Contractors.