JUDICIAL REVIEW - Application for extension of time within which to seek leave to appeal against primary judge's refusal to extend time within which to commence judicial review proceeding - Judicial review proceeding commenced 5 years and 8 months out of time - Primary judge finding that delay not adequately explained - Primary judge not satisfied of existence of special circumstances justifying extension of time - Proposed appeal having no prospects of success - Futile to grant extension of time to seek leave to appeal - Application for extension of time refused.
JUDICIAL REVIEW - Application for extension of time within which to seek leave to appeal against primary judge's refusal to extend time within which to commence judicial review proceeding - Judicial review proceeding commenced 5 years and 8 months out of time - Primary judge finding that delay not adequately explained - Primary judge not satisfied of existence of special circumstances justifying extension of time - Proposed appeal having no prospects of success - Futile to grant extension of time to seek leave to appeal - Application for extension of time refused.
Supreme Court (General Civil Procedure) Rules 2015, rr 56.02(1) and 56.02(3).
NEGLIGENCE - Proceeding for damages brought by former member of Defence Force against Commonwealth in respect of service injury - Proceeding dismissed for failure to comply with s 389(2) of Military Rehabilitation and Compensation Act 2004 (Cth) before proceeding commenced - Application for extension of time within which to seek leave to appeal against dismissal of proceeding - Proposed appeal having no prospects of success - Futile to grant extension of time to seek leave to appeal - Application for extension of time refused.
NEGLIGENCE - Proceeding for damages brought by former member of Defence Force against Commonwealth in respect of service injury - Proceeding dismissed for failure to comply with s 389(2) of Military Rehabilitation and Compensation Act 2004 (Cth) before proceeding commenced - Application for extension of time within which to seek leave to appeal against dismissal of proceeding - Proposed appeal having no prospects of success - Futile to grant extension of time to seek leave to appeal - Application for extension of time refused.
Military Rehabilitation and Compensation Act 2004 (Cth), ss 388 and 389.
Commonwealth of Australia v Flaviano (1996) 40 NSWLR 199; Austral Pacific Group Ltd v Airservices Australia (2000) 203 CLR 136; Harris v The Commonwealth of Australia [2003] WASCA 220; FJ v Commonwealth (2017) 55 VR 108, applied.
COSTS - Costs of manifestly hopeless applications for leave to appeal - Costs of applications for leave to appeal in which applicants made baseless allegations of misconduct against respondents and their lawyers - No reason costs should not follow the event - Respondents entitled to indemnity costs - Respondents entitled to awards of costs on gross sum basis in order to avoid expense, delay and aggravation involved in taxation.
COSTS - Costs of manifestly hopeless applications for leave to appeal - Costs of applications for leave to appeal in which applicants made baseless allegations of misconduct against respondents and their lawyers - No reason costs should not follow the event - Respondents entitled to indemnity costs - Respondents entitled to awards of costs on gross sum basis in order to avoid expense, delay and aggravation involved in taxation.
Supreme Court (General Civil Procedure) Rules 2015, rr 63.07, 63.28, 63.30 and 63.30.1.
CONTRACT - Agreement for sale of off-the-plan apartments - Disagreement between the parties concerning the requirements of special condition in relation to NDIS standards - Email sent by purchaser stating it would be unable to settle because of financial incapacity - Objective evidence of financial difficulties - Whether email constituted a renunciation of the contract - Email to be given plain meaning - Reasonable person in position of developer would understand the contract was repudiated - Leave to appeal granted - Appeal allowed.
CONTRACT - Agreement for sale of off-the-plan apartments - Disagreement between the parties concerning the requirements of special condition in relation to NDIS standards - Email sent by purchaser stating it would be unable to settle because of financial incapacity - Objective evidence of financial difficulties - Whether email constituted a renunciation of the contract - Email to be given plain meaning - Reasonable person in position of developer would understand the contract was repudiated - Leave to appeal granted - Appeal allowed.
Property Law Act 1958, s 49(1).
Foran v Wight (1989) 168 CLR 385; Schevill v Builders Licensing Board (1982) 149 CLR 620; Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471, referred to.
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115, applied.
PRACTICE AND PROCEDURE - Application for leave to appeal interlocutory orders of trial judge - Interim suppression and confidentiality orders - Orders deferring consideration of certain matters until trial - Orders interlocutory and made in exercise of discretion - Applicant will have opportunity to make arguments at trial about final suppression and confidentiality orders - No real prospects of success - Application for leave to appeal refused.
PRACTICE AND PROCEDURE - Application for leave to appeal interlocutory orders of trial judge - Interim suppression and confidentiality orders - Orders deferring consideration of certain matters until trial - Orders interlocutory and made in exercise of discretion - Applicant will have opportunity to make arguments at trial about final suppression and confidentiality orders - No real prospects of success - Application for leave to appeal refused.
OPEN COURTS - Suppression orders - Underlying proceeding concerns disciplinary proceedings against medical practitioner - Referral to regulator by Family Court - Materials in Family Court proceeding released to regulator on condition that confidentiality orders sought in disciplinary proceeding - Respondent sought suppression orders and confidentiality orders in present proceeding - Closed court order made - Pseudonym order made - Order prohibiting inspection of court file made - Application for suppression orders refused - Proposed orders of great breadth - Parties given opportunity to comment on any redactions required in Court's reasons.
Open Courts Act 2013, ss 17, 20, 30; Supreme Court (General Civil Procedure) Rules 2015, r 28.05(4); Supreme Court Act 1986, s 14C.
Fei v Hexin Pty Ltd (2024) 75 VR 581; Secretary, Department of Justice and Regulation v Zhong [No 2] [2017] VSCA 19; MSB v Chief Commissioner of Police (2018) 57 VR 360; Re Japara Holdings [2010] VSC 361; Re Proceeding 291 of 1944 [2006] VSC 50, discussed.
CRIMINAL LAW - Appeal - Conviction - Rape - Applicant charged on indictment with two charges of rape of wife - Jury returned verdict of guilty on Charge 1 and not guilty on Charge 2 - Whether verdict on Charge 1 inconsistent with verdict on Charge 2 - Whether verdict on Charge 1 a compromise verdict - Whether reasonable and rational basis for jury to distinguish between Charge 1 and Charge 2 - Where complainant's evidence in relation to Charge 1 not able to be distinguished from evidence in relation to Charge 2 - Complainant's evidence not capable of rationally explaining different verdicts - Verdicts explicable only as compromise - Appeal allowed.
CRIMINAL LAW - Appeal - Conviction - Rape - Applicant charged on indictment with two charges of rape of wife - Jury returned verdict of guilty on Charge 1 and not guilty on Charge 2 - Whether verdict on Charge 1 inconsistent with verdict on Charge 2 - Whether verdict on Charge 1 a compromise verdict - Whether reasonable and rational basis for jury to distinguish between Charge 1 and Charge 2 - Where complainant's evidence in relation to Charge 1 not able to be distinguished from evidence in relation to Charge 2 - Complainant's evidence not capable of rationally explaining different verdicts - Verdicts explicable only as compromise - Appeal allowed.
MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) CLR 606, considered.
CRIMINAL LAW - Appeal - Sentence - Pleaded guilty to 11 drug-related offences - Charge 2 for possession of substances, materials, documents and equipment for drug trafficking - Sentence on charge 2 (base) of 2 years and 4 months - Whether sentencing discretion on charge 2 miscarried by treatment as 'rolled-up charge' comprising 26 instances - Was open to style charge 2 as 'rolled-up charge' - Applicant pleaded guilty to 'rolled-up charge' - No miscarriage - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Pleaded guilty to 11 drug-related offences - Charge 2 for possession of substances, materials, documents and equipment for drug trafficking - Sentence on charge 2 (base) of 2 years and 4 months - Whether sentencing discretion on charge 2 miscarried by treatment as 'rolled-up charge' comprising 26 instances - Was open to style charge 2 as 'rolled-up charge' - Applicant pleaded guilty to 'rolled-up charge' - No miscarriage - Leave to appeal refused.
Drugs, Poisons and Controlled Substances Act 1981, ss 71A, 71D.
Lipp v The Queen [2013] VSCA 384, considered.
CRIMINAL LAW - Appeal - Sentence - Pleaded guilty to 11 drug-related offences - Total effective sentence of 3 years and 6 months - Non-parole period of 1 year and 9 months - Whether judge failed to regard effect of family hardship on the applicant - Absence of explicit reference in judge's reasons does not mean failure to consider effect of family hardship on applicant - Leave to appeal refused.
Markovic v The Queen (2010) 30 VR 589; R v Panuccio (Court of Appeal of the Supreme Court of Victoria, Winneke P, Brooking and Charles JJA, 4 May 1998), discussed.
R v Koumis (2008) 18 VR 434; Bleakley v The King [2024] VSCA 88, considered.
CRIMINAL LAW - Appeal - Sentence - Pleaded guilty to 11 drug-related offences - Total effective sentence of 3 years and 6 months - Non-parole period of 1 year and 9 months - Whether individual sentences, orders for cumulation and non-parole period manifestly excessive - Whether exercise of mercy as consequence of exceptional family hardship established - Markovic v The Queen (2010) 30 VR 589 - Applicant's son suffering from non-verbal autism - Applicant's wife suffering from mental and physical health conditions - Exceptional family hardship on family members established - Sentence on charge 2 wholly outside range - Combination of mitigating factors especially exceptional family hardship - Leave to appeal granted - Appeal allowed - Applicant resentenced to 16 months with 8-month non-parole period.
DPP v Miceli (1997) 94 A Crim R 327; DPP v Milson [2019] VSCA 55; DPP v Snow (a pseudonym) [2020] VSCA 67.
Clarkson v The Queen (2011) 32 VR 361; Karam v The King [2024] VSCA 164; Lai v The King [2023] VSCA 151, considered.
CRIMINAL LAW - Appeal - Practice and procedure - Application for production pursuant to s 317 of the Criminal Procedure Act 2009 - Where application directed to Department of Premier and Cabinet as record holder of submissions made to the Royal Commission into the Management of Police Informants - Where the Department is poorly placed to identify, assess or present submissions to the Court in respect of objections to production - Where it is suitable for the Court to inspect the subject documents in the absence of an objection to production or claim of public interest immunity - Where it is in the interests of justice to order production of specific documents.
CRIMINAL LAW - Appeal - Practice and procedure - Application for production pursuant to s 317 of the Criminal Procedure Act 2009 - Where application directed to Department of Premier and Cabinet as record holder of submissions made to the Royal Commission into the Management of Police Informants - Where the Department is poorly placed to identify, assess or present submissions to the Court in respect of objections to production - Where it is suitable for the Court to inspect the subject documents in the absence of an objection to production or claim of public interest immunity - Where it is in the interests of justice to order production of specific documents.
Criminal Procedure Act 2009; Inquiries Act 2014; Evidence Act 2008.
Zirilli v The Queen [2021] VSCA 174; Polimeni v The Queen [2022] VSCA 20; State of Victoria (Department of Justice) v Lane [2012] VSC 328; Zirilli v The Queen (2021) 287 A Crim R 407; Ragg v Magistrates' Court of Victoria (2008) 18 VR 300; Ryan v State of Victoria [2015] VSCA 353; Zirilli v The King [2023] VSCA 64; Alister v The Queen (1984) 154 CLR 404; R v Debono [2012] VSC 476; Sankey v Whitlam (1978) 142 CLR 1; Commonwealth v Northern Land Council (1993) 176 CLR 604; R v Saleam (1989) 16 NSWLR 14; Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49; Madafferi v The Queen [2021] VSCA 1; Zirilli v The Queen [2021] VSCA 2; Polimeni v The Queen [2021] VSCA 329.
CRIMINAL LAW - Appeal - Supervision order under Serious Offenders Act 2018 - Appellant convicted of serious sex offences - Whether judge erred in imposing residence condition - Whether evidence wrongly admitted - Whether appellant afforded fair hearing - High risk of re-offending - No error established - Appeal dismissed.
CRIMINAL LAW - Appeal - Supervision order under Serious Offenders Act 2018 - Appellant convicted of serious sex offences - Whether judge erred in imposing residence condition - Whether evidence wrongly admitted - Whether appellant afforded fair hearing - High risk of re-offending - No error established - Appeal dismissed.
Charter of Human Rights and Responsibilities Act; 2006; Serious Offenders Act 2018 ss 8, 14, 19, 27, 28, 29, 33, 34, 35, 36, 40, 41, 115, 119, 121, 134.
Greene v Secretary to the Department of Justice and Community Safety [2021] VSCA 79; House v The King (1936) 55 CLR 499; Nigro v Secretary to the Department of Justice (2013) 41 VR 359; Thompson v Minogue (2021) 67 VR 301; WBM v Chief Commissioner of Police (2012) 43 VR 446 applied.
CRIMINAL LAW - Appeal - Sentence - Applicant convicted of 11 online child sex offences including transmission and solicitation of child abuse material - Some victims aged 16 or 17 years - Whether children aged 16 or 17 years at risk of premature sexualisation - Whether presumption of harm should be moderated for children aged 16 or 17 years - Child abuse material offending involving children aged 16 or 17 years not inherently less serious - Presumption of harm with respect to child abuse material applies to children aged 17 years or under - Objective gravity and moral culpability to be assessed considering all relevant circumstances including age - Whether sentences imposed offended principle of totality - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Applicant convicted of 11 online child sex offences including transmission and solicitation of child abuse material - Some victims aged 16 or 17 years - Whether children aged 16 or 17 years at risk of premature sexualisation - Whether presumption of harm should be moderated for children aged 16 or 17 years - Child abuse material offending involving children aged 16 or 17 years not inherently less serious - Presumption of harm with respect to child abuse material applies to children aged 17 years or under - Objective gravity and moral culpability to be assessed considering all relevant circumstances including age - Whether sentences imposed offended principle of totality - Leave to appeal refused.
Criminal Code Act 2005 (Cth) ss 473.1, 474.19(1), 474.22(1), 474.22A(1), 474.26(1); Crimes Act 1958 (Vic) ss 35D, 51A.
Clarkson v The Queen (2011) 32 VR 361, discussed; Adamson v The Queen (2015) 47 VR 268, followed.
CRIMINAL LAW - Appeal - Sentence - Applicant convicted of conspiracy to do acts in preparation for or planning a terrorist act - Co-conspirators convicted of separate terrorism offending - Total effective sentence of co-conspirators reduced on appeal on application of totality principle by lessening period of cumulation between sentences - Whether marked disparity in sentences relevant to common offending has resulted - Whether applicant has a justifiable sentence of grievance - Differences in sentences explicable by objective criteria - Application for extension of time in which to seek leave to appeal granted - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Applicant convicted of conspiracy to do acts in preparation for or planning a terrorist act - Co-conspirators convicted of separate terrorism offending - Total effective sentence of co-conspirators reduced on appeal on application of totality principle by lessening period of cumulation between sentences - Whether marked disparity in sentences relevant to common offending has resulted - Whether applicant has a justifiable sentence of grievance - Differences in sentences explicable by objective criteria - Application for extension of time in which to seek leave to appeal granted - Application for leave to appeal refused.
Crimes Act 1914 (Cth), s 19AB(2).
Postiglione v The Queen (1997) 189 CLR 295; Green v The Queen (2011) 244 CLR 462; Kellway v The King [2023] VSCA 109; Mohamed v The Queen (2022) 367 FLR 482; Mohamed v The King [No 2] [2023] VSCA 177; Chaarani v the King [2023] VSCA 275; Kelly v R [2017] NSWCCA 256; Wood v R [2022] NSWCCA 84, referred to.
CRIMINAL LAW - Appeal - Sentence - Applicant intent on maximising revenge against former employer - Aggravated burglary, false imprisonment, kidnapping (2 charges), rape, sexual assault, common law assault and theft - 15 years' imprisonment on rape - Total effective sentence 22 years' imprisonment - Whether individual sentences and orders for cumulation manifestly excessive - Sentence on rape at higher end - Egregious, abhorrent and dehumanising offending - Objective gravity demanded lengthy sentence - Lack of remorse for sexual offending - High moral culpability - Leave to appeal granted - Appeal dismissed.
CRIMINAL LAW - Appeal - Sentence - Applicant intent on maximising revenge against former employer - Aggravated burglary, false imprisonment, kidnapping (2 charges), rape, sexual assault, common law assault and theft - 15 years' imprisonment on rape - Total effective sentence 22 years' imprisonment - Whether individual sentences and orders for cumulation manifestly excessive - Sentence on rape at higher end - Egregious, abhorrent and dehumanising offending - Objective gravity demanded lengthy sentence - Lack of remorse for sexual offending - High moral culpability - Leave to appeal granted - Appeal dismissed.
Russo v The King [2024] VSCA 291, discussed.
Bugmy v The Queen (2013) 249 CLR 571; Clarkson v The Queen (2011) 32 VR 361; Karam v The King [2024] VSCA 164; Lai v The King [2023] VSCA 151; R v Pham (2015) 256 CLR 550, R v Verdins (2007) 16 VR 269, referred to.
CRIMINAL LAW - Sentence - Application for leave to appeal - Aggravated burglary - Intentionally causing injury - Theft - Handling stolen goods - Whether sentences manifestly excessive - Not reasonably arguable that sentences manifestly excessive - Application for leave to appeal refused.
CRIMINAL LAW - Sentence - Application for leave to appeal - Aggravated burglary - Intentionally causing injury - Theft - Handling stolen goods - Whether sentences manifestly excessive - Not reasonably arguable that sentences manifestly excessive - Application for leave to appeal refused.
Hogarth v The Queen (2012) 37 VR 658; DPP v Meyers (2014) 44 VR 486, referred to.
CRIMINAL LAW - Appeal - Sentence - Multiple charges of aggravated burglary, theft of motor vehicles and related dishonesty offences - 17 prior aggravated burglaries - Total effective sentence of 4 years and 4 months' imprisonment - Non-parole period of 2 years - Whether Director of Public Prosecutions v Ristic [2024] VSCA 251 correctly applied - Whether sentence manifestly excessive - No error of law in judge's decision - Judge appropriately considered unique circumstances - Applicant's numerous failed attempts to rehabilitate - Very serious offending - Re-traumatised same victims - Sentence well within range - Proposed grounds have no merit - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Multiple charges of aggravated burglary, theft of motor vehicles and related dishonesty offences - 17 prior aggravated burglaries - Total effective sentence of 4 years and 4 months' imprisonment - Non-parole period of 2 years - Whether Director of Public Prosecutions v Ristic [2024] VSCA 251 correctly applied - Whether sentence manifestly excessive - No error of law in judge's decision - Judge appropriately considered unique circumstances - Applicant's numerous failed attempts to rehabilitate - Very serious offending - Re-traumatised same victims - Sentence well within range - Proposed grounds have no merit - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Serious online sexual offending - Applicant pleaded guilty to using carriage service to procure a person under 16 years of age for sexual activity (charges 1 and 3), using carriage service to cause child pornography material to be transmitted to self (charge 2), using carriage service to cause child abuse material to be transmitted to self (charges 4 and 6), using carriage service to transmit child abuse material (charges 5 and 7 to 22), and possessing or controlling child abuse material obtained or accessed using carriage service (charge 23) - Total effective sentence of 10 years' imprisonment with non-parole period of 6 years and 7 months - Applicant engaged in majority of offending with co-offender - Co-offender also pleaded guilty to charges - Co-offender sentenced to 11 years' imprisonment with non-parole period of 7 years and 3 months - Total effective sentence of co-offender reduced to 8 years with non-parole period of 5 years and 6 months on appeal - Whether disparity between sentences of applicant and co-offender manifestly excessive - Application for leave to appeal granted - Appeal allowed.
CRIMINAL LAW - Appeal - Sentence - Serious online sexual offending - Applicant pleaded guilty to using carriage service to procure a person under 16 years of age for sexual activity (charges 1 and 3), using carriage service to cause child pornography material to be transmitted to self (charge 2), using carriage service to cause child abuse material to be transmitted to self (charges 4 and 6), using carriage service to transmit child abuse material (charges 5 and 7 to 22), and possessing or controlling child abuse material obtained or accessed using carriage service (charge 23) - Total effective sentence of 10 years' imprisonment with non-parole period of 6 years and 7 months - Applicant engaged in majority of offending with co-offender - Co-offender also pleaded guilty to charges - Co-offender sentenced to 11 years' imprisonment with non-parole period of 7 years and 3 months - Total effective sentence of co-offender reduced to 8 years with non-parole period of 5 years and 6 months on appeal - Whether disparity between sentences of applicant and co-offender manifestly excessive - Application for leave to appeal granted - Appeal allowed.
Criminal Code (Cth), ss 474.19, 474.22, 474.22A, 474.26 and 474.27A; Crimes Act 1958, ss 46D, 49F; Crimes Act 1914 (Cth), ss 16A, 16BA, 19, referred to.
Heels v The King [2024] VSCA 133; R v Verdins (2007) 16 VR 269; Director of Public Prosecutions (Cth) v D'Alessandro (2016) 26 VR 477; Crowder (a pseudonym) v The King [2024] VSCA 211; R v De Leeuw [2015] NSWCCA 183; R v Edwards [2019] QCA 015; Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295.
CRIMINAL LAW - Appeal - Conviction - Occupational health and safety - Failing to provide and maintain a safe working environment for employees (two charges) and failing to ensure that persons other than employees were not exposed to risks to health and safety (one charge) - Applicant found guilty of one charge of failing to provide and maintain a safe working environment for employees by failure to provide and maintain necessary systems of work and failing to ensure that persons other than employees were not exposed to risks to health and safety - Applicant found not guilty of failing to provide and maintain a safe working environment for employees by failure to provide necessary information instruction or training - Whether convictions inconsistent with acquittal - Verdicts not inconsistent - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Occupational health and safety - Failing to provide and maintain a safe working environment for employees (two charges) and failing to ensure that persons other than employees were not exposed to risks to health and safety (one charge) - Applicant found guilty of one charge of failing to provide and maintain a safe working environment for employees by failure to provide and maintain necessary systems of work and failing to ensure that persons other than employees were not exposed to risks to health and safety - Applicant found not guilty of failing to provide and maintain a safe working environment for employees by failure to provide necessary information instruction or training - Whether convictions inconsistent with acquittal - Verdicts not inconsistent - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Occupational health and safety - Failing to provide and maintain a safe working environment for employees by failure to provide and maintain necessary systems of work - Prosecutor's reference in final address to checklist - Checklist not opened - Checklist not a particular of charge - Whether reference to checklist expanded prosecution case - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Occupational health and safety - Failing to provide and maintain a safe working environment for employees - Jury question during deliberations as to whether 'process and procedures that ensure a safe system of work need to be documented' - Whether trial judge's answer 'no' erroneous - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Occupational health and safety - Failing to provide and maintain a safe working environment for employees and failing to ensure that persons other than employees were not exposed to risks to health and safety - Without conviction fined $275,000 on each charge (total $550,000) - Whether judge erred in assessing gravity of offending - Whether sentence manifestly excessive - Leave to appeal refused.
CRIMINAL LAW - Appeals - Sentence - Crown appeals - Obtaining property by deception - Respondents deceived married couple into contributing financially towards fictitious High Court case - $2.9 million obtained by deception - Others deceived by one respondent into contributing financially to separate fictitious schemes - Whether sentences imposed on respondents manifestly inadequate - Rolled-up charges - Course of conduct charge - Appeals allowed - Respondents resentenced.
CRIMINAL LAW - Appeals - Sentence - Crown appeals - Obtaining property by deception - Respondents deceived married couple into contributing financially towards fictitious High Court case - $2.9 million obtained by deception - Others deceived by one respondent into contributing financially to separate fictitious schemes - Whether sentences imposed on respondents manifestly inadequate - Rolled-up charges - Course of conduct charge - Appeals allowed - Respondents resentenced.
Crimes Act 1958, s 81; Sentencing Act 1991, s 5(2F).
Poursanidis v The Queen (2016) 50 VR 681; R v Jones [2004] VSCA 68; R v Samia [2009] VSCA 5, discussed - DPP v Karazisis (2010) 31 VR 634; DPP v Ristic [2024] VSCA 251, applied.
CRIMINAL LAW - Interlocutory appeal - Rape and sexual assault - Whether judge erred in not granting leave to cross-examine complainant about sexual activities - Where complainant had made prior complaints of sexual abuse - Where prior complaints involve similar circumstances to present complaints - Judge not satisfied evidence of prior complaints substantially relevant to a fact in issue - Whether necessary for applicant to establish falsity of prior complaints - Complaints sufficiently similar to permit inferential reasoning - Interests of justice allow applicant to cross-examine complainant about prior complaints - Appeal allowed.
CRIMINAL LAW - Interlocutory appeal - Rape and sexual assault - Whether judge erred in not granting leave to cross-examine complainant about sexual activities - Where complainant had made prior complaints of sexual abuse - Where prior complaints involve similar circumstances to present complaints - Judge not satisfied evidence of prior complaints substantially relevant to a fact in issue - Whether necessary for applicant to establish falsity of prior complaints - Complaints sufficiently similar to permit inferential reasoning - Interests of justice allow applicant to cross-examine complainant about prior complaints - Appeal allowed.
Criminal Procedure Act 2009, ss 342, 346(2), 349.
Jackmain v The Queen (2020) 102 NSWLR 847, considered.
CRIMINAL LAW - Sentence - Negligently causing serious injury by driving - Appellant sustained traumatic brain injury with ongoing cognitive deficits due to collision - Whether proper approach taken to appellant's ongoing injuries as a mitigating factor - Whether sentence manifestly excessive - Sentence of 4 years' imprisonment with non-parole period of 2 years and 4 months was within range - Appeal dismissed.
CRIMINAL LAW - Sentence - Negligently causing serious injury by driving - Appellant sustained traumatic brain injury with ongoing cognitive deficits due to collision - Whether proper approach taken to appellant's ongoing injuries as a mitigating factor - Whether sentence manifestly excessive - Sentence of 4 years' imprisonment with non-parole period of 2 years and 4 months was within range - Appeal dismissed.
Harrison v The Queen (2015) 49 VR 619; R v Barci (1994) 76 A Crim R 103; DPP v King (2008) 187 A Crim R 219; Romero v The Queen (2011) 32 VR 486.
CONTRACTS - Proper construction of a clause in a standard form contract for the sale of land - Where plaintiff paid the deposit but the contract was rescinded and deposit forfeited - Where plaintiff also paid an instalment amount of the price under the contract - Where parties in dispute as to whether a clause of the contract entitles the defendant to retain the instalment amount - Held the defendant is not entitled to retain the instalment amount - Judgment for the plaintiff - Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, considered and applied.
CONTRACTS - Proper construction of a clause in a standard form contract for the sale of land - Where plaintiff paid the deposit but the contract was rescinded and deposit forfeited - Where plaintiff also paid an instalment amount of the price under the contract - Where parties in dispute as to whether a clause of the contract entitles the defendant to retain the instalment amount - Held the defendant is not entitled to retain the instalment amount - Judgment for the plaintiff - Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, considered and applied.
CONSTITUTIONAL LAW - Inconsistency of laws - Whether ss 10B, 23(1), 23(2), 23(2A), 28M, 28O, 28R(1)-(4), 28R(5)(a)(i) and/or 28R(5)(a)(ii) of the Building and Construction Industry Security of Payment Act 2002 (Vic) are inconsistent with ss 18, 232, 234, 236 and/or 237 of Australian Consumer Law as set out in Schedule 2 to the Competition and Consumer Act 2020 (Cth) and invalid to that extent under s 109 of the Commonwealth of Australia Constitution Act - Where State legislation creates administrative process for adjudication of claims to progress payments under construction contracts - Finding there is no operational inconsistency between the State law and Commonwealth law - Birdon Pty Ltd v Houben Marine Pty Ltd (2011) 197 FCR 25, applied - Bitannia Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238, not followed - Façade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd (2016) 337 ALR 452, distinguished.
CONSTITUTIONAL LAW - Inconsistency of laws - Whether ss 10B, 23(1), 23(2), 23(2A), 28M, 28O, 28R(1)-(4), 28R(5)(a)(i) and/or 28R(5)(a)(ii) of the Building and Construction Industry Security of Payment Act 2002 (Vic) are inconsistent with ss 18, 232, 234, 236 and/or 237 of Australian Consumer Law as set out in Schedule 2 to the Competition and Consumer Act 2020 (Cth) and invalid to that extent under s 109 of the Commonwealth of Australia Constitution Act - Where State legislation creates administrative process for adjudication of claims to progress payments under construction contracts - Finding there is no operational inconsistency between the State law and Commonwealth law - Birdon Pty Ltd v Houben Marine Pty Ltd (2011) 197 FCR 25, applied - Bitannia Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238, not followed - Façade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd (2016) 337 ALR 452, distinguished.
JUDGMENT - Whether judgment obtained in the County Court of Victoria pursuant to s 28R(1)-(4) of the Building and Construction Industry Security of Payment Act 2002 (Vic) should be set aside on the basis that it is irregular and/or because a necessary fact to enliven the County Court's jurisdiction did not exist - Where original adjudication determination was corrected as a consequence of a slip or error pursuant to s 24 of the Building and Construction Industry Security of Payment Act 2002 (Vic) - Whether the "relevant date" to pay the adjudicated amount pursuant to s 28M of the Building and Construction Industry Security of Payment Act 2002 (Vic) is calculated from the time of issue of the original adjudication determination or the corrected adjudication determination - Where no irregularity.
PROCEDURAL FAIRNESS - Whether ex parte judgment obtained in the County Court of Victoria pursuant to s 28R(1)-(4) of the Building and Construction Industry Security of Payment Act 2002 (Vic) was entered in circumstances which denied 1559 High Street Pty Ltd procedural fairness - Whether Camillo Builders Pty Ltd breached duty of candour when moving for judgment - Where no denial of procedural fairness or breach of candour.
GROUP PROCEEDINGS - Costs - Costs to be calculated as a percentage of the amount of any award or settlement recovered - Application for a group costs order - Whether proper evidentiary basis to make group costs order - Whether group costs order fixed at 30 per cent appropriate or necessary - Principles to be applied - 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 - Dawson & Anor v Insurance Australia Ltd & Anor [2024] VSC 808.
GROUP PROCEEDINGS - Costs - Costs to be calculated as a percentage of the amount of any award or settlement recovered - Application for a group costs order - Whether proper evidentiary basis to make group costs order - Whether group costs order fixed at 30 per cent appropriate or necessary - Principles to be applied - 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 - Dawson & Anor v Insurance Australia Ltd & Anor [2024] VSC 808.
CONTRACT - Building construction contract - Ordinary meaning of terms of a commercial contract - Lease surrender option deed - Liability to pay surrender option fee - Where third party enters into purchase contract for land subject of lease surrender option deed - Party includes 'and/or nominee' - Whether nomination occurred.
CONTRACT - Building construction contract - Ordinary meaning of terms of a commercial contract - Lease surrender option deed - Liability to pay surrender option fee - Where third party enters into purchase contract for land subject of lease surrender option deed - Party includes 'and/or nominee' - Whether nomination occurred.
PRACTICE AND PROCEDURE - Group proceedings - Multiplicity of proceedings - Consolidation - Application to consolidate two proceedings - Agreement between plaintiffs to have two firms of solicitors acting - Supreme Court (General Civil Procedure Rules) 2015 (Vic) r 9.12(1).
PRACTICE AND PROCEDURE - Group proceedings - Multiplicity of proceedings - Consolidation - Application to consolidate two proceedings - Agreement between plaintiffs to have two firms of solicitors acting - Supreme Court (General Civil Procedure Rules) 2015 (Vic) r 9.12(1).
GROUP PROCEEDINGS - Consolidation - Agreement between plaintiffs to have two firms of solicitors acting - Whether independent costs referee should be appointed to monitor costs to identify unnecessary or duplicated work and costs.
CORPORATIONS - External administration - Termination of winding up - Application under s 482(1A)(a) of the Corporations Act 2001 (Cth) to terminate the winding up - Company trustee of a discretionary trust - Secured creditor appointed receivers - Application to vacate the Court-appointed receivership - Termination orders concerning winding up and receivership condition precedent to deed of company arrangement - All relevant parties consent or do not oppose the termination orders - Limited recoveries by the liquidators - Liquidators unfunded - Payment of $1.6 million by deed proponent already made - Priority creditors to be paid in full - Small dividend to be paid to remaining unsecured creditors - Release of all claims including by secured creditor - Retirement of secured creditor appointed receiver - Trust and trust assets to revert to deed proponent - Company to revert to a neutral position subject to potential involvement in legal proceedings by the deed proponent trustee to recover specific debt - Undertaking by sole director of deed proponent that it will indemnify the company in relation to any cost disbursements, debts or liabilities connected with proposed legal proceedings supported by deed poll from litigation funder - Creditors acting on sufficient information better judges of what is to their commercial advantage than the Court can be - von Risefer v Mainfreight International Pty Ltd [2009] VSCA 179; 25 VR 366; 73 ACSR 427; Re Warbler Pty Ltd (1982) 6 ACLR 526; Re Glass Recycling Pty Ltd [2014] NSWSC 439, applied; English, Scottish & Australian Chartered Bank [1893] 3 Ch 385, per Lindley LJ cited.
CORPORATIONS - External administration - Termination of winding up - Application under s 482(1A)(a) of the Corporations Act 2001 (Cth) to terminate the winding up - Company trustee of a discretionary trust - Secured creditor appointed receivers - Application to vacate the Court-appointed receivership - Termination orders concerning winding up and receivership condition precedent to deed of company arrangement - All relevant parties consent or do not oppose the termination orders - Limited recoveries by the liquidators - Liquidators unfunded - Payment of $1.6 million by deed proponent already made - Priority creditors to be paid in full - Small dividend to be paid to remaining unsecured creditors - Release of all claims including by secured creditor - Retirement of secured creditor appointed receiver - Trust and trust assets to revert to deed proponent - Company to revert to a neutral position subject to potential involvement in legal proceedings by the deed proponent trustee to recover specific debt - Undertaking by sole director of deed proponent that it will indemnify the company in relation to any cost disbursements, debts or liabilities connected with proposed legal proceedings supported by deed poll from litigation funder - Creditors acting on sufficient information better judges of what is to their commercial advantage than the Court can be - von Risefer v Mainfreight International Pty Ltd [2009] VSCA 179; 25 VR 366; 73 ACSR 427; Re Warbler Pty Ltd (1982) 6 ACLR 526; Re Glass Recycling Pty Ltd [2014] NSWSC 439, applied; English, Scottish & Australian Chartered Bank [1893] 3 Ch 385, per Lindley LJ cited.
Corporations - Liquidation of trustee company - Company operated exclusively in capacity as trustee - Creditors on notice of remuneration to be sought by the liquidator - No objection or opposition to remuneration - Remuneration approved - Liquidator appointed receiver to enable recovery of debt alleged to be owed to the trust notwithstanding the very modest potential dividend to creditors from any such recovery after the payment of remuneration - Re Cremin (in his capacity as liquidator of Brimson Pty Ltd (in liq) [2019] FCA 1023; Re Amerind Pty Ltd (receivers and managers apptd) (in liq) [2017] VSC 127; (2017) 320 FLR 118, applied.
Corporations - Liquidation of trustee company - Company operated exclusively in capacity as trustee - Creditors on notice of remuneration to be sought by the liquidator - No objection or opposition to remuneration - Remuneration approved - Liquidator appointed receiver to enable recovery of debt alleged to be owed to the trust notwithstanding the very modest potential dividend to creditors from any such recovery after the payment of remuneration - Re Cremin (in his capacity as liquidator of Brimson Pty Ltd (in liq) [2019] FCA 1023; Re Amerind Pty Ltd (receivers and managers apptd) (in liq) [2017] VSC 127; (2017) 320 FLR 118, applied.
CORPORATIONS - Winding up - Creditor's statutory demand - Application to set aside - Whether the company has an offsetting claim - Corporations Act 2001 (Cth), s 459H(1)(b) - Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd [2013] NSWCA 344; (2013) 85 NSWLR 601, applied - No offsetting claim.
CORPORATIONS - Winding up - Creditor's statutory demand - Application to set aside - Whether the company has an offsetting claim - Corporations Act 2001 (Cth), s 459H(1)(b) - Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd [2013] NSWCA 344; (2013) 85 NSWLR 601, applied - No offsetting claim.
CORPORATIONS - Winding up - Creditor's statutory demand - Application to set aside - Whether there is some other reason - Corporations Act 2001 (Cth), s 459J - Arcade Bridge Embroidery Co-Pty Ltd v The Deputy Commissioner of Taxation [2005] ACTCA 3; (2005) 157 ACTR 22; Re MHC Pathology Pty Ltd [2020] VSC 789, applied - Some other reason not found.
PRACTICE AND PROCEDURE - Application to rely on evidence out of time - Refused.
PRACTICE AND PROCEDURE - Application for adjournment of hearing - Refused.
PRACTICE AND PROCEDURE - Civil Procedure Act 2010 (Vic) obligations upon the Court, parties and practitioners in context of applications to set aside - Civil Procedure Act 2010 (Vic), ss 7, 8, 23, 24, 25, 28 - Inordinate delay and non-compliance - Indemnity costs awarded.
CORPORATIONS - Winding up - Voidable transactions - Corporations Act 2001 (Cth) s 588FF(3)(b) - Application for extension of time to bring voidable transaction proceedings against multiple defendants - Significant value of transactions sought to be impugned - Discussion of factors relevant to exercise of Court's discretion to grant extension - Where delay in bringing proceedings sufficiently explained - Impact of size and complexity of affairs of corporate group on liquidation process - Lack of resources of liquidators to bring all voidable transaction claims within time - No evidence of specific prejudice to persons affected by proposed claims - Time elapsed from filing of application relevant to fixing period of any extension where investigations undertaken in interim - Short extension of time granted.
CORPORATIONS - Winding up - Voidable transactions - Corporations Act 2001 (Cth) s 588FF(3)(b) - Application for extension of time to bring voidable transaction proceedings against multiple defendants - Significant value of transactions sought to be impugned - Discussion of factors relevant to exercise of Court's discretion to grant extension - Where delay in bringing proceedings sufficiently explained - Impact of size and complexity of affairs of corporate group on liquidation process - Lack of resources of liquidators to bring all voidable transaction claims within time - No evidence of specific prejudice to persons affected by proposed claims - Time elapsed from filing of application relevant to fixing period of any extension where investigations undertaken in interim - Short extension of time granted.
CORPORATIONS - Winding up - Creditor's statutory demand - Application to set aside - Whether there is a genuine dispute about the existence of the debt - Costs - Corporations Act 2001 (Cth), s 459H - Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (in liq) [2015] VSCA 300; Panel Tech Industries (Australia) Pty Ltd v Australian Skyreach Equipment Pty Ltd (No 2) [2003] NSWSC 896, applied; In the matter of CharterLaw Legal Pty Ltd [2025] NSWSC 297, cited - Demand set aside.
CORPORATIONS - Winding up - Creditor's statutory demand - Application to set aside - Whether there is a genuine dispute about the existence of the debt - Costs - Corporations Act 2001 (Cth), s 459H - Malec Holdings Pty Ltd v Scotts Agencies Pty Ltd (in liq) [2015] VSCA 300; Panel Tech Industries (Australia) Pty Ltd v Australian Skyreach Equipment Pty Ltd (No 2) [2003] NSWSC 896, applied; In the matter of CharterLaw Legal Pty Ltd [2025] NSWSC 297, cited - Demand set aside.
PRACTICE AND PROCEDURE - Civil Procedure Act 2010 (Vic) obligations upon the Court, parties and practitioners in context of applications to set aside statutory demand for modest monetary amount - Civil Procedure Act 2010 (Vic), ss 7, 8, 23, 24, 25, 28 - No order as to costs.
PRACTICE AND PROCEDURE - Overarching obligations - Application by the defendant under s 29 of the Civil Procedure Act 2010 (Vic) regarding the conduct of the plaintiff and her solicitor - Alleged breach of the overarching obligation not to bring a claim without a proper basis and the overarching obligation not to mislead or deceive - Whether the plaintiff and her solicitor breached their overarching obligations to the Court by not exhibiting certain documents in the plaintiff's affidavit filed in support of the originating motion, and by making allegedly false statements - Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) (2014) 48 VR 1 referred to - Whether the plaintiff was justified in bringing her claims in this proceedings - Whether leave was required to bring the proceeding by way of originating motion pursuant to r 45.05(2)(b) of the Supreme Court General Civil Procedure Rules 2015 (Vic) - Plaintiff had reasonable grievances and was justified in bringing this proceeding, and there was no breach of any overarching obligations - Application dismissed.
PRACTICE AND PROCEDURE - Overarching obligations - Application by the defendant under s 29 of the Civil Procedure Act 2010 (Vic) regarding the conduct of the plaintiff and her solicitor - Alleged breach of the overarching obligation not to bring a claim without a proper basis and the overarching obligation not to mislead or deceive - Whether the plaintiff and her solicitor breached their overarching obligations to the Court by not exhibiting certain documents in the plaintiff's affidavit filed in support of the originating motion, and by making allegedly false statements - Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) (2014) 48 VR 1 referred to - Whether the plaintiff was justified in bringing her claims in this proceedings - Whether leave was required to bring the proceeding by way of originating motion pursuant to r 45.05(2)(b) of the Supreme Court General Civil Procedure Rules 2015 (Vic) - Plaintiff had reasonable grievances and was justified in bringing this proceeding, and there was no breach of any overarching obligations - Application dismissed.
ADMINISTRATION AND PROBATE - Application by beneficiary for removal of the executor of their late father's estate - Administration and Probate Act 1958 (Vic), s 34 - Brito-Babapulle v Brito-Babapulle [2024] VSC 281 referred to - Significant delays in the administration of the estate primarily due to ongoing dispute between the plaintiff and defendant relating to the disposition of real property forming part of the estate - Where the defendant has not complied with terms of a settlement deed executed by the parties and has failed to finalise the estate - Defendant is disqualified from continuing to act as executor where she has failed to fulfil her executorial duties in a timely and responsible manner - Application granted.
TRUSTS - Distribution of assets to trusts under a will - Lost trust deeds - Secondary evidence available to declare the terms of the trusts - General class of beneficiaries under the lost trusts do not extend to siblings - Lost trusts each contain an appointer clause - Supreme Court (General Civil Procedure) Rules 2015, O 54.
TRUSTS - Distribution of assets to trusts under a will - Lost trust deeds - Secondary evidence available to declare the terms of the trusts - General class of beneficiaries under the lost trusts do not extend to siblings - Lost trusts each contain an appointer clause - Supreme Court (General Civil Procedure) Rules 2015, O 54.
WILLS AND ESTATES - Application for judicial advice - Where trusts specified as beneficiaries in the will are uncertain - Armchair principle - Consideration of extrinsic circumstances - Irreconcilable uncertainty in one named beneficiary, certainty in the other - Trust cannot be established after the testator's death to fit the description of a named beneficiary - Wills Act 1997 (Vic) s 36 - Re Niall [2019] VSC 423 - Craven v Bradley (2021) 63 VR 567 - Greenham v Greenham [2020] VSC 749 - Bullock v Bennett (1855) 7 De G M&G 283 - Radford v Wills (1871) Ch App 7.
APPEALS - Appeal from order granting summary judgment in respect of part of a claim - Appeal by way of rehearing - Whether error shown - Plaintiff and first defendant each rely upon argument and authorities not relied on in argument below - Claimed protected disclosure under 'Whistleblower protections' - Analysis of relevant statutory provisions and authorities - Claim in respect of 'detrimental conduct' - Nature of claim - Terms and nature of statutory bar to actions or other proceeding for damages in respect of injury sustained in the course of employment - Claim not barred - Safety Rehabilitation and Compensation Act 1988 (Cth), pt IV - Corporations Act 2001 (Cth), pt 9.4AAA - Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Attorney-General (Vic) v Andrews (2007) 230 CLR 369; Waters v Commonwealth (2013) 274 FLR 338; Romero v Farstad Shipping (Indian Pacific) Pty Ltd (2014) 231 FCR 403; Comcare v Friend (2024) 301 FCR 617 considered and discussed - Appeal allowed.
APPEALS - Appeal from order granting summary judgment in respect of part of a claim - Appeal by way of rehearing - Whether error shown - Plaintiff and first defendant each rely upon argument and authorities not relied on in argument below - Claimed protected disclosure under 'Whistleblower protections' - Analysis of relevant statutory provisions and authorities - Claim in respect of 'detrimental conduct' - Nature of claim - Terms and nature of statutory bar to actions or other proceeding for damages in respect of injury sustained in the course of employment - Claim not barred - Safety Rehabilitation and Compensation Act 1988 (Cth), pt IV - Corporations Act 2001 (Cth), pt 9.4AAA - Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Attorney-General (Vic) v Andrews (2007) 230 CLR 369; Waters v Commonwealth (2013) 274 FLR 338; Romero v Farstad Shipping (Indian Pacific) Pty Ltd (2014) 231 FCR 403; Comcare v Friend (2024) 301 FCR 617 considered and discussed - Appeal allowed.
COSTS - Application for non-party costs order - Where r 63.23 of the Supreme Court (General Civil Procedure) Rules 2015 does not apply as non-party not a solicitor - Where non-party advised that a person can swear or affirm affidavit on behalf of another - Where non-party advised a grant of administration can be made to a person who lacks legal capacity - Where non-party's erroneous advice necessitated proceedings - Court's discretion to make a non-party costs order not enlivened - Supreme Court Act 1986, s 24(1) - Knight v FP Special Assets Ltd (1992) 174 CLR 178 - Applicant NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 396 - Bakers Investment Group (Australia) Pty Ltd v Caason Investments Pty Ltd [2015] VSC 644 - Gdanski v Palms Court Management Pty Ltd [2017] VSCA 348 - Kyne v Gerard Brandrick & Associates Pty Ltd [2025] VSCA 17.
COSTS - Application for non-party costs order - Where r 63.23 of the Supreme Court (General Civil Procedure) Rules 2015 does not apply as non-party not a solicitor - Where non-party advised that a person can swear or affirm affidavit on behalf of another - Where non-party advised a grant of administration can be made to a person who lacks legal capacity - Where non-party's erroneous advice necessitated proceedings - Court's discretion to make a non-party costs order not enlivened - Supreme Court Act 1986, s 24(1) - Knight v FP Special Assets Ltd (1992) 174 CLR 178 - Applicant NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 396 - Bakers Investment Group (Australia) Pty Ltd v Caason Investments Pty Ltd [2015] VSC 644 - Gdanski v Palms Court Management Pty Ltd [2017] VSCA 348 - Kyne v Gerard Brandrick & Associates Pty Ltd [2025] VSCA 17.
ADMINISTRATIVE LAW - Judicial review of orders of County Court of Victoria - Plaintiff found guilty of charge of distributing intimate image - Evidence received of investigation by Military Police - Whether constitutes denial of procedural fairness - Military law operates concurrently with the ordinary civil jurisdiction of the States and supplementary to ordinary criminal law - Application dismissed - Defence Force Discipline Act 1982 (Cth) ss 101X, 111B, 190 - Summary Offences Act 1966 (Vic) ss 40, 41DA - Evidence Act 2008 (Vic) s 191 - Groves v Commonwealth (1982) 150 CLR 113 - Re Tracey; Ex parte Ryan (1989) 166 CLR 518 - McWaters v Day (1989) 168 CLR 289 - Private R v Cowen (2020) 271 CLR 316.
ADMINISTRATIVE LAW - Judicial review of orders of County Court of Victoria - Plaintiff found guilty of charge of distributing intimate image - Evidence received of investigation by Military Police - Whether constitutes denial of procedural fairness - Military law operates concurrently with the ordinary civil jurisdiction of the States and supplementary to ordinary criminal law - Application dismissed - Defence Force Discipline Act 1982 (Cth) ss 101X, 111B, 190 - Summary Offences Act 1966 (Vic) ss 40, 41DA - Evidence Act 2008 (Vic) s 191 - Groves v Commonwealth (1982) 150 CLR 113 - Re Tracey; Ex parte Ryan (1989) 166 CLR 518 - McWaters v Day (1989) 168 CLR 289 - Private R v Cowen (2020) 271 CLR 316.
ADMINISTRATIVE LAW - Application to re-open a Coroner's investigation into a death - Prior appeal of coronial finding as to cause of death - Application to re-open refused by Coroners Court - Question of law - Was a further investigation desirable or necessary in the interests of justice - Coroners Act 2008 ss 77, 84, 87, 87A - Appeal dismissed.
ADMINISTRATIVE LAW - Application to re-open a Coroner's investigation into a death - Prior appeal of coronial finding as to cause of death - Application to re-open refused by Coroners Court - Question of law - Was a further investigation desirable or necessary in the interests of justice - Coroners Act 2008 ss 77, 84, 87, 87A - Appeal dismissed.
ADMINISTRATIVE LAW - Judicial review - Decision under Health Practitioner Regulation National Law ('National Law') s 156 - Conditions imposed on medical practitioner's registration - Whether s 156 of the National Law imposes an impermissible burden on freedom of political communication under the Constitution - s 156 does not impose impermissible burden on freedom of political communication - Proceeding dismissed - National Law ss 156, 157 - Peers v Medical Board of Australia [2024] VSC 630; Brown v Tasmania (2017) 261 CLR 328; Fidge v Medical Board of Australia [2024] VSC 471; Comcare v Banerji (2019) 267 CLR 373 considered.
ADMINISTRATIVE LAW - Judicial review - Decision under Health Practitioner Regulation National Law ('National Law') s 156 - Conditions imposed on medical practitioner's registration - Whether s 156 of the National Law imposes an impermissible burden on freedom of political communication under the Constitution - s 156 does not impose impermissible burden on freedom of political communication - Proceeding dismissed - National Law ss 156, 157 - Peers v Medical Board of Australia [2024] VSC 630; Brown v Tasmania (2017) 261 CLR 328; Fidge v Medical Board of Australia [2024] VSC 471; Comcare v Banerji (2019) 267 CLR 373 considered.
CONTEMPT OF COURT - Alleged breach of freezing orders - Whether first and second defendant failed to comply with freezing orders - First and second defendant guilty of contempt - Deputy Commissioner of Taxation v Gashi (No 2) [2011] VSC 351; Australian Competition and Consumer Commission v Goldstar Corporation Pty Ltd [1999] FCA 585; Moira Shire Council v Sidebottom Group Pty Ltd (No 3) [2018] VSC 556 considered.
CONTEMPT OF COURT - Alleged breach of freezing orders - Whether first and second defendant failed to comply with freezing orders - First and second defendant guilty of contempt - Deputy Commissioner of Taxation v Gashi (No 2) [2011] VSC 351; Australian Competition and Consumer Commission v Goldstar Corporation Pty Ltd [1999] FCA 585; Moira Shire Council v Sidebottom Group Pty Ltd (No 3) [2018] VSC 556 considered.
WILLS AND ESTATES - Testamentary capacity - Knowledge and approval - Challenge to will of the deceased - Testator with dementia - Testator made a bequest to the defendant equal to 2.5% of her estate - Will prepared by solicitor who was satisfied testator had testamentary capacity when providing instructions for preparation of will and also when the will was executed - Testator assessed for testamentary capacity six months after the will was executed by a medical practitioner who considered that testator did not have testamentary capacity - Significant cognitive decline during the six month period between execution of will and medical assessment of testamentary capacity - Court satisfied of testamentary capacity and knowledge and approval - Testator's will to be admitted to probate.
WILLS AND ESTATES - Testamentary capacity - Knowledge and approval - Challenge to will of the deceased - Testator with dementia - Testator made a bequest to the defendant equal to 2.5% of her estate - Will prepared by solicitor who was satisfied testator had testamentary capacity when providing instructions for preparation of will and also when the will was executed - Testator assessed for testamentary capacity six months after the will was executed by a medical practitioner who considered that testator did not have testamentary capacity - Significant cognitive decline during the six month period between execution of will and medical assessment of testamentary capacity - Court satisfied of testamentary capacity and knowledge and approval - Testator's will to be admitted to probate.
PROBATE - Application for the revocation of a grant of probate - Whether the applicant's grounds of objection establish a prima facie case for revocation - Whether particulars of grounds of objection involving allegations that the deceased's will was made in suspicious circumstances, was procured by undue influence or that the deceased did not know or approve the contents of the will should be struck out - Montalto v Sala (2016) 15 ASTLR 393 and Gardiner v Hughes [No 2] [2019] VSCA 198 referred to - Offending grounds unsustainable and should be struck out.
PROBATE - Application for the revocation of a grant of probate - Whether the applicant's grounds of objection establish a prima facie case for revocation - Whether particulars of grounds of objection involving allegations that the deceased's will was made in suspicious circumstances, was procured by undue influence or that the deceased did not know or approve the contents of the will should be struck out - Montalto v Sala (2016) 15 ASTLR 393 and Gardiner v Hughes [No 2] [2019] VSCA 198 referred to - Offending grounds unsustainable and should be struck out.
OPEN COURTS - Application for proceeding suppression orders - Application for pseudonym orders - Proceedings to be heard together - Applications made by one accused only - Existing publicity - Other proceedings - Accused a member of outlaw motorcycle gang - Orders not necessary - Applications dismissed - Open Courts Act 2013 (Vic), ss 17, 18(1)(a).
OPEN COURTS - Application for proceeding suppression orders - Application for pseudonym orders - Proceedings to be heard together - Applications made by one accused only - Existing publicity - Other proceedings - Accused a member of outlaw motorcycle gang - Orders not necessary - Applications dismissed - Open Courts Act 2013 (Vic), ss 17, 18(1)(a).
CRIMINAL LAW - Sentence - Murder - Shooting - Guilty verdict following jury trial - Sentenced to 32 years' imprisonment with a non-parole period of 25 years - Sentencing Act 1991 ss 3, 5, 11A, 18 - DPP v Rider & Ong [2023] VSC 466 - DPP v Thorn [2023] VSC 702.
CRIMINAL LAW - Sentence - Murder - Shooting - Guilty verdict following jury trial - Sentenced to 32 years' imprisonment with a non-parole period of 25 years - Sentencing Act 1991 ss 3, 5, 11A, 18 - DPP v Rider & Ong [2023] VSC 466 - DPP v Thorn [2023] VSC 702.
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.
TORT - Conversion - Whether plaintiff had immediate right to possession - Right to possession made out - Damages - Value of goods at time of conversion.
TORT - Conversion - Whether plaintiff had immediate right to possession - Right to possession made out - Damages - Value of goods at time of conversion.
CONTRACTS - LOAN AGREEMENTS - Contract for loan - Failure to make interest repayments - Entitlement to possession of properties upon default - Where plaintiff is a lender providing urgent loan - Whether insistence on additional security unconscionable conduct - Alleged misleading or deceptive conduct - Alleged harassment and coercion - Existence of implied terms of cooperation, reasonableness and good faith.
CONTRACTS - LOAN AGREEMENTS - Contract for loan - Failure to make interest repayments - Entitlement to possession of properties upon default - Where plaintiff is a lender providing urgent loan - Whether insistence on additional security unconscionable conduct - Alleged misleading or deceptive conduct - Alleged harassment and coercion - Existence of implied terms of cooperation, reasonableness and good faith.
INTEREST ON JUDGMENT DEBT - Joint venture dispute - Judgment on counterclaim in favour of defendant venturer - Supreme Court Act 1986 ss 58 and 60 - Date from which interest to accrue until judgment - Interest on award of damages for replacement hay to accrue from date of commencement of proceeding (not the filing of counterclaim) under s 60 of the Supreme Court Act 1986 - Interest under s 58 of the Supreme Court Act 1986 to accrue as from the date of demand constituted by rendering of invoices for joint venture expenses - Interest as to undistributed income to accrue from date of demand for such amount by solicitors for first defendant.
INTEREST ON JUDGMENT DEBT - Joint venture dispute - Judgment on counterclaim in favour of defendant venturer - Supreme Court Act 1986 ss 58 and 60 - Date from which interest to accrue until judgment - Interest on award of damages for replacement hay to accrue from date of commencement of proceeding (not the filing of counterclaim) under s 60 of the Supreme Court Act 1986 - Interest under s 58 of the Supreme Court Act 1986 to accrue as from the date of demand constituted by rendering of invoices for joint venture expenses - Interest as to undistributed income to accrue from date of demand for such amount by solicitors for first defendant.