TESTATOR'S FAMILY MAINTENANCE - Family provision - Adequacy of reasons - Applicant adult son of deceased - Respondent wife of deceased - Whole of deceased's estate passed to respondent - Applicant sought provision of $265,000 under Administration and Probate Act 1958 pt IV - Associate judge refused application on basis deceased not having failed to make adequate provision - Reasons not expressly finding deceased owed moral duty to applicant - Judge's consideration of adequacy of provision depended on anterior finding of moral duty - Implicit in judge's reasons that moral duty was established - Whether associate judge erred in determination that deceased failed to make adequate provision to applicant by focusing only on whether to order provision in amount sought by applicant - No error.
TESTATOR'S FAMILY MAINTENANCE - Family provision - Adequacy of reasons - Applicant adult son of deceased - Respondent wife of deceased - Whole of deceased's estate passed to respondent - Applicant sought provision of $265,000 under Administration and Probate Act 1958 pt IV - Associate judge refused application on basis deceased not having failed to make adequate provision - Reasons not expressly finding deceased owed moral duty to applicant - Judge's consideration of adequacy of provision depended on anterior finding of moral duty - Implicit in judge's reasons that moral duty was established - Whether associate judge erred in determination that deceased failed to make adequate provision to applicant by focusing only on whether to order provision in amount sought by applicant - No error.
TESTATOR'S FAMILY MAINTENANCE - Alleged error in determination of adequacy of provision - Value of estate approximately $420,000-$487,500 - 'Reasonably modest' size of estate central to associate judge's finding no failure to make adequate provision - Financial resources of respondent included real estate worth $1,920,000-$2,287,500 formerly held jointly with deceased and cash and superannuation accounts worth $1,262,000 - Whether judge erred by failing to take proper account of respondent's financial resources - Size of deceased's estate of relatively minor significance to respondent's financial position - Leave to appeal granted - Appeal allowed.
TESTATOR'S FAMILY MAINTENANCE - Order for provision - Jurisdictional requirements in Administration and Probate Act 1958, s 91(2) satisfied - Applicant adult son having fallen on hard times following divorce - Applicant seeking provision of $265,000 to provide house deposit and discharge debts - Debts not so burdensome as to warrant provision - Applicant and wife having some means to save for house deposit - Applicant able to purchase suitable property with $147,000 deposit by taking mortgage insurance - Moral duty - Order made for provision of $125,000.
WORDS AND PHRASES - 'moral duty' - Administration and Probate Act 1958, s 91(2)(c).
Administration and Probate Act 1958, ss 90, 91, 91A.
Singer v Berghouse (1994) 181 CLR 201, Blair v Blair (2004) 10 VR 69, Walsh v Walsh [2013] NSWSC 1065, referred to.
CRIMINAL LAW - Appeal - Bail - Appeal against refusal of bail - Appellant charged with aggravated burglary (two charges), theft, theft of motor vehicle and possession of methylamphetamine - Offences committed while appellant on seven grants of bail and subject to seven separate sets of charges - Appellant 17 year old First Nations person of Yorta Yorta, Kurnai, Gunditjmara and Monero peoples - Appellant of extremely low intellect - History of physical and sexual abuse - Judge found exceptional circumstances existed which justified grant of bail - Whether judge erred in finding that there was an unacceptable risk that the appellant would commit a Schedule 1 or Schedule 2 offence or otherwise endanger the safety of any person if granted bail - No error established - Appeal dismissed.
CRIMINAL LAW - Appeal - Bail - Appeal against refusal of bail - Appellant charged with aggravated burglary (two charges), theft, theft of motor vehicle and possession of methylamphetamine - Offences committed while appellant on seven grants of bail and subject to seven separate sets of charges - Appellant 17 year old First Nations person of Yorta Yorta, Kurnai, Gunditjmara and Monero peoples - Appellant of extremely low intellect - History of physical and sexual abuse - Judge found exceptional circumstances existed which justified grant of bail - Whether judge erred in finding that there was an unacceptable risk that the appellant would commit a Schedule 1 or Schedule 2 offence or otherwise endanger the safety of any person if granted bail - No error established - Appeal dismissed.
Bail Act 1977, ss 1B, 3A, 3AAA, 3B, 4AA, 4A, 4D, 4E, considered - Disability Act 2006, referred to.
House v The King (1936) 55 CLR 499; HA (a pseudonym) v The Queen [2021] VSCA 64, referred to.
CRIMINAL LAW - Appeal - Bail - Appeal against refusal of bail - Cultivating not less than a commercial quantity of cannabis and associated charges - Judge found exceptional circumstances existed which justified grant of bail - Whether judge erred in finding that there was an unacceptable risk that the appellant would commit a Schedule 1 or Schedule 2 offence if granted bail - Whether judge erred in finding that there was an unacceptable risk that the appellant would fail to answer bail - No error established - Appeal dismissed.
CRIMINAL LAW - Appeal - Bail - Appeal against refusal of bail - Cultivating not less than a commercial quantity of cannabis and associated charges - Judge found exceptional circumstances existed which justified grant of bail - Whether judge erred in finding that there was an unacceptable risk that the appellant would commit a Schedule 1 or Schedule 2 offence if granted bail - Whether judge erred in finding that there was an unacceptable risk that the appellant would fail to answer bail - No error established - Appeal dismissed.
Bail Act 1977, ss 1B, 3AAA, 4AA, 4A, 4D, 4E.
House v The King (1936) 55 CLR 499; Dale v DPP [2009] VSCA 212; Zayneh v The King [2023] VSCA 311; FT (a pseudonym) v The King [2024] VSCA 90.
PRACTICE AND PROCEDURE - Application to amend notice of appeal to include additional ground of appeal - Application to rely on fresh evidence in support of additional ground in notice of appeal - Documents subject of fresh evidence applications not discovered by respondent before judgment delivered in lower court - Where documents include allegations of sexual abuse committed by key witness called by respondent - Where judge found witness to be credible and reliable - Failure to discover documents conceded by respondent - Sufficiently arguable that documents could have affected judge's assessment of witness at trial - Sufficiently arguable documents could have enabled applicant's counsel to pursue line of questioning of witness not available at trial - Applicant granted leave to amend notice of appeal to include additional ground.
PRACTICE AND PROCEDURE - Application to amend notice of appeal to include additional ground of appeal - Application to rely on fresh evidence in support of additional ground in notice of appeal - Documents subject of fresh evidence applications not discovered by respondent before judgment delivered in lower court - Where documents include allegations of sexual abuse committed by key witness called by respondent - Where judge found witness to be credible and reliable - Failure to discover documents conceded by respondent - Sufficiently arguable that documents could have affected judge's assessment of witness at trial - Sufficiently arguable documents could have enabled applicant's counsel to pursue line of questioning of witness not available at trial - Applicant granted leave to amend notice of appeal to include additional ground.
Civil Procedure Act 2010, ss 26 and 27; Supreme Court (General Civil Procedure) Rules 2015, r 64, referred to - Commonwealth Bank of Australia v Quade & Ors (1991) 178 CLR 134; Zafiriou v Saint-Gobain Administration Pty Ltd [2013] VSCA 383, referred to.
PRACTICE AND PROCEDURE - Freezing order - Whether good arguable case - Applicable principles - Whether judge erred in applying s 1274B(2) of the Corporations Act 2001 (Cth) where evidence to the contrary of ASIC documents tendered - Whether judge impermissibly elevated ASIC documents to 'prima facie evidence unless proven to the contrary' - Whether judge impermissibly shifted burden of proof - Judge appropriately weighed relevant evidence in concluding good arguable case - Leave to appeal granted - Appeal dismissed.
PRACTICE AND PROCEDURE - Freezing order - Whether good arguable case - Applicable principles - Whether judge erred in applying s 1274B(2) of the Corporations Act 2001 (Cth) where evidence to the contrary of ASIC documents tendered - Whether judge impermissibly elevated ASIC documents to 'prima facie evidence unless proven to the contrary' - Whether judge impermissibly shifted burden of proof - Judge appropriately weighed relevant evidence in concluding good arguable case - Leave to appeal granted - Appeal dismissed.
Supreme Court (General Civil Procedure) Rules 2015, Ord 37A; Corporations Act 2001 (Cth), ss 231, 1274B(2).
Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH & Co ('The Niedersachsen') [1983] 1 WLR 1412; [1984] 1 All ER 398, applied; Rozenblit v Vainer [2019] VSCA 164, considered; Barboutis v The Kart Centre Pty Ltd [No 2] [2020] WASCA 41, considered.
PRACTICE AND PROCEDURE - Appeal - Application for stay of execution of judgment debt - Principles to be applied in stay applications pursuant to r 64.39 - Whether appeal will be rendered nugatory because real risk not restored to former position if appeal successful - Whether execution of judgment debt requires sale of 'family home' - Sale of family home if the subject matter of the proceedings may constitute special or exceptional circumstances to justify stay - Sale of family home may be relevant notwithstanding not subject matter of proceeding - Sale of family home to meet judgment debt not itself sufficient to justify special circumstances - Insufficient evidence of financial position and consequences of medical condition to give rise to special circumstances - Lack of candour - Stay refused.
PRACTICE AND PROCEDURE - Appeal - Application for stay of execution of judgment debt - Principles to be applied in stay applications pursuant to r 64.39 - Whether appeal will be rendered nugatory because real risk not restored to former position if appeal successful - Whether execution of judgment debt requires sale of 'family home' - Sale of family home if the subject matter of the proceedings may constitute special or exceptional circumstances to justify stay - Sale of family home may be relevant notwithstanding not subject matter of proceeding - Sale of family home to meet judgment debt not itself sufficient to justify special circumstances - Insufficient evidence of financial position and consequences of medical condition to give rise to special circumstances - Lack of candour - Stay refused.
Supreme Court (General Civil Procedure) Rules 2015, r 64.39.
Maher v Commonwealth Bank of Australia [2008] VSCA 122; Neate v Thoroughbred International Marketing Pty Ltd (2012) 34 VR 318; Sandri v O'Driscoll [2013] VSCA 281, distinguished; Ozden v Commonwealth Bank of Australia [2013] VSCA 195, distinguished.
PRACTICE AND PROCEDURE - Appeal - Stay of execution - Principles to be applied in stay applications pursuant to r 64.39 - Whether real risk that application for appeal stifled because real risk of bankruptcy - Service of bankruptcy notice not sufficient special circumstances - Insufficient evidence of financial position to conclude real likelihood applicant will be bankrupted or that appeal stifled because cannot meet judgment debt - Stay refused.
Supreme Court (General Civil Procedure) Rules 2015, r 64.39.
Narain v Euroasia (Pacific) Pty Ltd [2008] VSCA 195; Sami v Roads Corporation [2009] VSCA 44; Kairouz v Jasper Nominees Ltd [2024] VSCA 68.
PRACTICE AND PROCEDURE - Appeal - Security for costs of appeal - Whether financial position of applicant for leave to appeal problematic thereby creating a risk of non-satisfaction of costs order of respondent, if successful - Insufficient evidence of financial position such that financial position 'problematic' - Whether order for security for costs would stultify or stifle appeal - Evidence of access to third party funds unexplained and/or undisclosed source of funds to meet costs orders - Security granted.
Supreme Court (General Civil Procedure) Rules 2015, r 64.38(4).
Cwalina v Rose [2025] VSCA 53; Mikkelsen v Li (2022) 71 VR 232.
PRACTICE AND PROCEDURE - Application for Personal Safety Intervention Order refused by Magistrates' Court - Applicant appealed refusal to County Court and sought transfer of appeal to Supreme Court - Application for transfer to Supreme Court refused by County Court judge - Procedural orders made in County Court appeal by successive County Court judges - Application for leave to appeal refusal of transfer application - Application for leave to appeal procedural orders - No error in refusing transfer application - No error in making procedural orders - No injustice in leaving any of impugned orders unreversed - Applications for leave to appeal having no prospects of success - Applications for leave to appeal totally without merit - Applications for leave to appeal refused.
PRACTICE AND PROCEDURE - Application for Personal Safety Intervention Order refused by Magistrates' Court - Applicant appealed refusal to County Court and sought transfer of appeal to Supreme Court - Application for transfer to Supreme Court refused by County Court judge - Procedural orders made in County Court appeal by successive County Court judges - Application for leave to appeal refusal of transfer application - Application for leave to appeal procedural orders - No error in refusing transfer application - No error in making procedural orders - No injustice in leaving any of impugned orders unreversed - Applications for leave to appeal having no prospects of success - Applications for leave to appeal totally without merit - Applications for leave to appeal refused.
Personal Safety Intervention Orders Act 2010, ss 91 and 92; Courts (Case Transfer) Act 1991, ss 3 and 16; Supreme Court Act 1986, s 14D.
Cargill Australia Limited v Viterra Malt Ltd [2018] VSCA 260; Woodman v State of Victoria [2023] VSCA 169; Qu v Wilks [2023] VSCA 198; Kajula Pty Ltd v Downer EDI Ltd [2024] VSCA 236; Wilks v Qu [2025] VSCA 135, applied.
CRIMINAL LAW - Leave to appeal - Conviction - Manslaughter by unlawful and dangerous act - Throwing object at head and kick to hip - Whether substantial miscarriage of justice occasioned by jury directions on causation - Where multiple contributing factors to cause of death - Complex medical evidence - Where directions found to be consistent with 'substantial and significant' cause test - Ground not established.
CRIMINAL LAW - Leave to appeal - Conviction - Manslaughter by unlawful and dangerous act - Throwing object at head and kick to hip - Whether substantial miscarriage of justice occasioned by jury directions on causation - Where multiple contributing factors to cause of death - Complex medical evidence - Where directions found to be consistent with 'substantial and significant' cause test - Ground not established.
EVIDENCE - Hearsay - Exceptions to hearsay rule - Opinion evidence - Business records - Whether medical records were inadmissible - Where trial counsel made a forensic decision not to object to medical records - Ground not necessary to determine.
EVIDENCE - Tape recording of offender demanding CCTV footage of assault be wiped - CCTV footage of offender's arrival and departure from scene - Whether evidence was prejudicial or irrelevant - Where evidence of post-offending conduct involved use as incriminating conduct reasoning - Appeal allowed.
Jury Directions Act 2015, s 65(b); Evidence Act 2008, ss 65, 69, 76-79, 137; Criminal Procedure Act 2009, s 276(1)(b); Coroners Act 2008, ss 4, 10, 14, 52.
Royall v The Queen (1991) 172 CLR 378; Swan v The Queen (2020) 269 CLR 663; Robb v The Queen [2016] VSCA 125; De Silva v The Queen (2019) 268 CLR 57; Schanker v The Queen [2018] VSCA 94; R v Birks (1990) 19 NSWLR 677; Crampton v The Queen (2000) 206 CLR 161; TKWJ v The Queen (2002) 212 CLR 124; Nudd v The Queen (2006) 162 A Crim R 301; R v Jung [2006] NSWSC 658; Lowe v The Queen [2015] VSCA 327; R v Wills [1983] 2 VR 201; Wilson v The Queen (1992) 174 CLR 313; R v Besim (2004) 148 A Crim R 28; R v Thomas [2015] NSWSC 537, applied.
CRIMINAL LAW - Appeal - Application for leave to appeal - Sentence - Trafficking drug of a dependence - Possession of counterfeit money - Whether judge erred in application of parity principle - Whether discrepancy between co-offenders' sentences manifestly inadequate - Whether individual sentences manifestly excessive - Where judge took into account time spent at residential rehabilitation program while on bail - Whether appropriate weight given to established rehabilitation - Where offender had prior conviction for drug trafficking - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Application for leave to appeal - Sentence - Trafficking drug of a dependence - Possession of counterfeit money - Whether judge erred in application of parity principle - Whether discrepancy between co-offenders' sentences manifestly inadequate - Whether individual sentences manifestly excessive - Where judge took into account time spent at residential rehabilitation program while on bail - Whether appropriate weight given to established rehabilitation - Where offender had prior conviction for drug trafficking - Application for leave to appeal refused.
Akoka v The Queen [2017] VSCA 214, referred to.
CRIMINAL LAW - Sentence - Application for leave to appeal - Trafficking in a drug of dependence - Possession of a drug of dependence - Prohibited person possess firearm - Knowingly deal in proceeds of crime - Where offending committed on parole - Whether cumulation orders amounted to double punishment - Whether sentencing judge erred in approach to totality - Whether sentencing judge erred in consideration of drug quantity - Whether sentence was manifestly excessive - No error in sentencing judge's approach - Sentence not manifestly excessive in the circumstances - Leave refused.
CRIMINAL LAW - Sentence - Application for leave to appeal - Trafficking in a drug of dependence - Possession of a drug of dependence - Prohibited person possess firearm - Knowingly deal in proceeds of crime - Where offending committed on parole - Whether cumulation orders amounted to double punishment - Whether sentencing judge erred in approach to totality - Whether sentencing judge erred in consideration of drug quantity - Whether sentence was manifestly excessive - No error in sentencing judge's approach - Sentence not manifestly excessive in the circumstances - Leave refused.
DPP v Bowen (2021) 65 VR 385; Nguyen v The Queen [2019] VSCA 184; DPP v Pham (2015) 256 CLR 550; Velevski v The Queen [2010] VSCA 90; Zarghami v The Queen [2020] VSCA 74, referred to.
Clarkson v The Queen (2011) 32 VR 361; DPP v Johnson (2011) 35 VR 25; Einfeld v The Queen (2010) 200 A Crim R 1; Hogan v The King [2025] VSCA 142; Johnson v The Queen [2022] VSCA 228; Lago v The Queen [2015] NSWCCA 296; Pearce v The Queen (1998) 194 CLR 610; DPP v Kelly [2018] NSWCCA 44; R v Pidoto (2006) 14 VR 269; The Queen v Ververis [2010] VSCA 7; Wong v The Queen (2001) 207 CLR 584, applied.
Sentencing Act 1991, s 16(3B).
CRIMINAL LAW - Appeal - Conviction - Rape and other offences - Application for extension of time - Whether the judge erred in taking a majority verdict - Whether judge gave a perseverance direction at the same time as a majority verdict direction - Extension of time refused.
CRIMINAL LAW - Appeal - Conviction - Rape and other offences - Application for extension of time - Whether the judge erred in taking a majority verdict - Whether judge gave a perseverance direction at the same time as a majority verdict direction - Extension of time refused.
Juries Act 2000, s 46(2); Jury Directions Act 2015, s 64B, s 64D.
Black v The Queen (1993) 179 CLR 44.
CRIMINAL LAW - Appeal - Sentence - Charges of attempting to obtain and obtaining a financial advantage from Commonwealth entity - Whether sentencing error caused by imposition of complete cumulation between two individual sentences - Error conceded - Appeal allowed - Applicant resentenced.
CRIMINAL LAW - Appeal - Sentence - Charges of attempting to obtain and obtaining a financial advantage from Commonwealth entity - Whether sentencing error caused by imposition of complete cumulation between two individual sentences - Error conceded - Appeal allowed - Applicant resentenced.
CRIMINAL LAW - Reserved questions of law - Charges of entering into agreement or transaction with intentions including preventing recovery of entitlements of employees in contravention of Corporations Act 2001 (Cth) s 596AB(1) as in force 10 July 2014 - Whether person entering into agreement can intend to prevent recovery of entitlements where person expects or believes employees will be paid pursuant to Fair Entitlements Guarantee Act 2012 (Cth) - Payment by Commonwealth of advance under Fair Entitlements Guarantee Act - Employees recover entitlements where liquidator pays from advance - No intention to prevent recovery where person expects or believes liquidator will pay employee entitlements using advance under Fair Entitlements Guarantee Act.
CRIMINAL LAW - Reserved questions of law - Charges of entering into agreement or transaction with intentions including preventing recovery of entitlements of employees in contravention of Corporations Act 2001 (Cth) s 596AB(1) as in force 10 July 2014 - Whether person entering into agreement can intend to prevent recovery of entitlements where person expects or believes employees will be paid pursuant to Fair Entitlements Guarantee Act 2012 (Cth) - Payment by Commonwealth of advance under Fair Entitlements Guarantee Act - Employees recover entitlements where liquidator pays from advance - No intention to prevent recovery where person expects or believes liquidator will pay employee entitlements using advance under Fair Entitlements Guarantee Act.
WORDS AND PHRASES - 'recovery' - 'entitlements'.
Corporations Act 2001 (Cth) ss 556, 560, 596AA, 596AB; Fair Entitlements Guarantee Act 2012 (Cth) ss 28, 29; Criminal Procedure Act 2009, s 302.
CRIMINAL LAW - Appeal - Interlocutory appeal - Child sexual offences - 37 to 40 year delay between alleged offending and proceedings - Permanent stay of indictment refused by trial judge - Whether incurable forensic disadvantage resulting from delay - Whether deceased witness akin to alibi witness - Evidence said to be lost merely contextual and speculative - Unfairness capable of amelioration by jury direction - Leave to appeal refused.
CRIMINAL LAW - Appeal - Interlocutory appeal - Child sexual offences - 37 to 40 year delay between alleged offending and proceedings - Permanent stay of indictment refused by trial judge - Whether incurable forensic disadvantage resulting from delay - Whether deceased witness akin to alibi witness - Evidence said to be lost merely contextual and speculative - Unfairness capable of amelioration by jury direction - Leave to appeal refused.
Criminal Procedure Act 2009, s 295.
Jury Directions Act 2015, ss 39, 47E, 52.
Morton (a pseudonym) v The Queen [2020] VSCA 49; Green (a pseudonym) v The Queen [2017] VSCA 277, referred to.
R v Glennon (1992) 173 CLR 592; Jago v District Court (NSW) (1989) 168 CLR 23; Dupas v The Queen (2010) 241 CLR 237; Walton v Gardiner (1993) 177 CLR 378, discussed.
Hermanus v The Queen (2015) 44 VR 335; R v FJL (2014) 41 VR 572; Buchanan (a pseudonym) v The King [No 2] [2024] VSCA 50; Lucciano (a pseudonym) v The Queen [2021] VSCA 12, followed.
CRIMINAL LAW - Appeal - Conviction - Applicant charged with seven charges of sexual assault and two charges of rape - Offending occurred during massage service - Directed acquittals on two sexual assault charges - Jury acquittals on two sexual assault charges and one rape charge - Whether not guilty verdicts inconsistent with guilty verdicts on three sexual assault charges and rape charge - Differing verdicts logical and reasonable - No inconsistency - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Applicant charged with seven charges of sexual assault and two charges of rape - Offending occurred during massage service - Directed acquittals on two sexual assault charges - Jury acquittals on two sexual assault charges and one rape charge - Whether not guilty verdicts inconsistent with guilty verdicts on three sexual assault charges and rape charge - Differing verdicts logical and reasonable - No inconsistency - Leave to appeal refused.
MacKenzie v The Queen (1996) 190 CLR 348, applied.
MFA v The Queen (2002) 213 CLR 606; R v Ware [1997] 1 VR 647; Sladek v The King [2024] VSCA 119; Booth v The King [2024] VSCA 318; Fiddes v The King [2025] VSCA 141, referred to.
CRIMINAL LAW - Appeal - Conviction - Applicant pleaded guilty to charges of armed robbery, reckless conduct endangering persons, theft, prohibited person possessing firearm, and prohibited person using firearm - Sentenced to 18 years and 2 months' imprisonment - Applicant committed armed robbery on two security guards with loaded shotgun - Applicant engaged in siege with police - Applicant fired multiple shots at police in course of siege - Allegation by applicant that counsel pressured him to plead guilty to charges in circumstances where applicant wished to raise defences of necessity, duress and self-defence - Where applicant alleged diagnosis of PTSD affected his state of mind at time of offending - No evidentiary bases to support defences - Application for extension of time - Delay of 9 years and 8 months - No adequate explanation for delay - Proposed grounds of appeal not sufficiently arguable - Application for extension of time in which to file leave to appeal against conviction refused.
CRIMINAL LAW - Appeal - Conviction - Applicant pleaded guilty to charges of armed robbery, reckless conduct endangering persons, theft, prohibited person possessing firearm, and prohibited person using firearm - Sentenced to 18 years and 2 months' imprisonment - Applicant committed armed robbery on two security guards with loaded shotgun - Applicant engaged in siege with police - Applicant fired multiple shots at police in course of siege - Allegation by applicant that counsel pressured him to plead guilty to charges in circumstances where applicant wished to raise defences of necessity, duress and self-defence - Where applicant alleged diagnosis of PTSD affected his state of mind at time of offending - No evidentiary bases to support defences - Application for extension of time - Delay of 9 years and 8 months - No adequate explanation for delay - Proposed grounds of appeal not sufficiently arguable - Application for extension of time in which to file leave to appeal against conviction refused.
Crimes Act 1958, ss 322K, 322N, 322O, 322P and 322Q referred to - Madafferi v The Queen [2017] VSCA 302; Peters v The Queen (No 2) (2019) 60 VR 231; R v Hurley [1967] VR 526; R v Rowan (a pseudonym) (2024) 418 ALR 91, applied; R v Loughnan [1981] VR 443; Zecevic v Director of Public Prosecutions (1987) 162 CLR 645, referred to.
PRACTICE AND PROCEDURE - Applicant filed several applications under s 317 of Criminal Procedure Act 2009 seeking documents from various persons and entities - Whether in the interests of justice to order production of documents - Whether applicant has legitimate forensic purpose in seeking production of documents - Requests for documents a fishing expedition - Not in the interests of justice to order production of documents - Applications refused - Criminal Procedure Act 2009, ss 317 and 319A, referred to - Polimeni v The Queen [2022] VSCA 20, considered.
CRIMINAL LAW - Appeal - Sentence - Application for leave to appeal against sentence - Dangerous driving causing death and related summary offence - Driving while under influence of methylamphetamine - Collision with pedestrian causing death - Plea of guilty - Genuine remorse - Prospects of rehabilitation reasonable to good - Seriousness of offending above mid-range - Sentence of 3 years 6 months' imprisonment with non-parole period of 2 years 2 months - Whether sentence manifestly excessive - Sentence within range consistent with current sentencing practices - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Application for leave to appeal against sentence - Dangerous driving causing death and related summary offence - Driving while under influence of methylamphetamine - Collision with pedestrian causing death - Plea of guilty - Genuine remorse - Prospects of rehabilitation reasonable to good - Seriousness of offending above mid-range - Sentence of 3 years 6 months' imprisonment with non-parole period of 2 years 2 months - Whether sentence manifestly excessive - Sentence within range consistent with current sentencing practices - Leave to appeal refused.
Sentencing Act 1991, ss 5(2), (2H).
Stephens v The Queen (2016) 50 VR 740; Clarkson v The Queen (2011) 32 VR 361; DPP v Dalgliesh (2017) 262 CLR 428; R v Kilic (2016) 259 CLR 256, referred to.
GROUP PROCEEDING - Application for approval of settlement of group proceeding - Approval of settlement under s 33V of the Supreme Court Act 1986 (Vic) - Whether settlement distribution scheme is fair and reasonable - Settlement distribution between classes of group members - Deductions from the settlement fund - Whether group costs order should be varied - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, s 33V.
GROUP PROCEEDING - Application for approval of settlement of group proceeding - Approval of settlement under s 33V of the Supreme Court Act 1986 (Vic) - Whether settlement distribution scheme is fair and reasonable - Settlement distribution between classes of group members - Deductions from the settlement fund - Whether group costs order should be varied - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, s 33V.
PRACTICE AND PROCEDURE - Confidentiality orders.
CORPORATIONS - Application to set aside statutory demand pursuant to ss 459G, 459H and 459J of the Corporations Act 2001 (Cth) - Whether genuine dispute as to whether the debt was due and payable - Defect under s 459J(1)(a) of the Corporations Act 2001 (Cth) - 'Some other reason' under s 459J(1)(b) of the Corporations Act 2001 (Cth) - Debt the subject of the demand based on a compensation order made pursuant to s 85B of the Sentencing Act 1991 (Vic) - Plaintiff found guilty of workplace manslaughter pursuant to s 39G of the Occupational Health and Safety Act 2004 (Vic) - Stay of compensation order pending plaintiff's appeals pursuant to s 311(2) of the Criminal Procedure Act 2009 (Vic) - Effect of stay under s 311(2) of the Criminal Procedure Act 2009 (Vic) - Whether stay of operation or stay of execution - Whether there was a genuine dispute that the debt claimed was not due and payable at the time of service of the demand by reason of the stay being a stay of operation - Whether demand should be set aside by reason of the existence of the stay pursuant to s 459J(1)(b) - Alleged defect in the demand under s 459J(1)(a) - Schedule to demand included the words 'and penalty interest' but no penalty interest was quantified as part of the debt claimed in the demand - Finding that there was a defect in demand but such defect did not cause substantial injustice - Finding that there was a genuine dispute as to the nature and effect of the stay imposed by s 311 of the Criminal Procedure Act which was not appropriate to be resolved in this application - Demand set aside.
CORPORATIONS - Application to set aside statutory demand pursuant to ss 459G, 459H and 459J of the Corporations Act 2001 (Cth) - Whether genuine dispute as to whether the debt was due and payable - Defect under s 459J(1)(a) of the Corporations Act 2001 (Cth) - 'Some other reason' under s 459J(1)(b) of the Corporations Act 2001 (Cth) - Debt the subject of the demand based on a compensation order made pursuant to s 85B of the Sentencing Act 1991 (Vic) - Plaintiff found guilty of workplace manslaughter pursuant to s 39G of the Occupational Health and Safety Act 2004 (Vic) - Stay of compensation order pending plaintiff's appeals pursuant to s 311(2) of the Criminal Procedure Act 2009 (Vic) - Effect of stay under s 311(2) of the Criminal Procedure Act 2009 (Vic) - Whether stay of operation or stay of execution - Whether there was a genuine dispute that the debt claimed was not due and payable at the time of service of the demand by reason of the stay being a stay of operation - Whether demand should be set aside by reason of the existence of the stay pursuant to s 459J(1)(b) - Alleged defect in the demand under s 459J(1)(a) - Schedule to demand included the words 'and penalty interest' but no penalty interest was quantified as part of the debt claimed in the demand - Finding that there was a defect in demand but such defect did not cause substantial injustice - Finding that there was a genuine dispute as to the nature and effect of the stay imposed by s 311 of the Criminal Procedure Act which was not appropriate to be resolved in this application - Demand set aside.
CORPORATIONS - Application to set aside a statutory demand - Where debt identified in demand is the subject of the proceeding brought by the defendant in the Victorian County Court - Whether the statutory demand should be set aside for some other reason pursuant to s 459J(1)(b) of the Corporations Act 2001 (Cth) - Whether there is an abuse of process - Re Zarzar Pty Ltd [2017] NSWSC 93, Re Modern Wholesale Jewellery Pty Ltd [2017] NSWSC 236 and Re 47 Industrial Pty Ltd [2024] NSWSC 1166 referred to - Finding that there is no abuse of process.
CORPORATIONS - Application to set aside a statutory demand - Where debt identified in demand is the subject of the proceeding brought by the defendant in the Victorian County Court - Whether the statutory demand should be set aside for some other reason pursuant to s 459J(1)(b) of the Corporations Act 2001 (Cth) - Whether there is an abuse of process - Re Zarzar Pty Ltd [2017] NSWSC 93, Re Modern Wholesale Jewellery Pty Ltd [2017] NSWSC 236 and Re 47 Industrial Pty Ltd [2024] NSWSC 1166 referred to - Finding that there is no abuse of process.
CORPORATIONS - Appointment of provisional liquidator - Independent accountant previously appointed by Court by consent of the parties to provide report on corporate defendants' financial affairs - Independent accountant unable to complete report due to conduct of defendants - Independent accountant's preliminary but incomplete view is that corporate defendants are currently insolvent - Jurisdiction to appoint provisional liquidator enlivened - Discretionary factors to justify the appointment met - Corporations Act 2001 (Cth), s 472(2) - Zempilas v J N Taylor Holdings Pty Ltd (in prov liq) (No 2) (1990) 55 SASR 103; Constantinidis v JGL Trading Pty Ltd (1995) 17 ACSR 625; ASIC v ActiveSuper Pty Ltd (No 2) [2013] FCA 234.
CORPORATIONS - Appointment of provisional liquidator - Independent accountant previously appointed by Court by consent of the parties to provide report on corporate defendants' financial affairs - Independent accountant unable to complete report due to conduct of defendants - Independent accountant's preliminary but incomplete view is that corporate defendants are currently insolvent - Jurisdiction to appoint provisional liquidator enlivened - Discretionary factors to justify the appointment met - Corporations Act 2001 (Cth), s 472(2) - Zempilas v J N Taylor Holdings Pty Ltd (in prov liq) (No 2) (1990) 55 SASR 103; Constantinidis v JGL Trading Pty Ltd (1995) 17 ACSR 625; ASIC v ActiveSuper Pty Ltd (No 2) [2013] FCA 234.
PRACTICE AND PROCEDURE - Application for leave to file a notice of solicitor ceasing to act - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 20.03(3)(b) - Where proceeding set down for trial - Where client did not provide solicitor with sufficient funds to conduct the trial - Where application was made one week prior to trial - Court has a broad discretion - Leave granted.
PRACTICE AND PROCEDURE - Application for leave to file a notice of solicitor ceasing to act - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 20.03(3)(b) - Where proceeding set down for trial - Where client did not provide solicitor with sufficient funds to conduct the trial - Where application was made one week prior to trial - Court has a broad discretion - Leave granted.
PRACTICE AND PROCEDURE - Summary judgment - Plaintiff seeks summary judgment against defendants - Whether first defendant has real prospect of success on its defence - Plaintiff's cause of action made out - First defendant's defence has no real prospect of success - Civil Procedure Act 2010 (Vic), ss 61 and 63 - Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27; [2013] VSCA 158.
PRACTICE AND PROCEDURE - Summary judgment - Plaintiff seeks summary judgment against defendants - Whether first defendant has real prospect of success on its defence - Plaintiff's cause of action made out - First defendant's defence has no real prospect of success - Civil Procedure Act 2010 (Vic), ss 61 and 63 - Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27; [2013] VSCA 158.
PRACTICE AND PROCEDURE - Ex parte freezing order - Whether there is an arguable case - Whether there is a risk of dissipation of assets - Where applicant is judgment creditor of first to fifth respondents - Where sixth to sixteenth respondents not party to primary proceeding - Where fourth and fifth respondents director and shareholder of third party corporate respondents - Whether freezing order ought to extend to third party entities - Freezing order granted against first to fifth respondents - Fourth and fifth respondents refrained from diminishing their assets - Supreme Court (General Civil Procedure) Rules 2015 order 37A - Rozenblit v Vainer [2019] VSCA 164 - Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 - Viterra BV & Shandong Ruyi Technology Group Co Ltd (2022) 291 FCR 640 - Resort Lifestyle Developments Pty Ltd v NGI Savannah Living Communities Pty Ltd [2022] QSC 194 - Varangian Pty Ltd v OFM Capital Limited [2003] VSC 444 - Convoy Collateral Ltd v Broad Idea International Ltd [2022] 2 WLR 703 - BCBC Singapore Pte Ltd v PT Bayan Resources TBK and Another (No 3) (2013) 276 FLR 273 - Application granted in respect of primary respondents but refused in respect of third party respondents.
PRACTICE AND PROCEDURE - Ex parte freezing order - Whether there is an arguable case - Whether there is a risk of dissipation of assets - Where applicant is judgment creditor of first to fifth respondents - Where sixth to sixteenth respondents not party to primary proceeding - Where fourth and fifth respondents director and shareholder of third party corporate respondents - Whether freezing order ought to extend to third party entities - Freezing order granted against first to fifth respondents - Fourth and fifth respondents refrained from diminishing their assets - Supreme Court (General Civil Procedure) Rules 2015 order 37A - Rozenblit v Vainer [2019] VSCA 164 - Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 - Viterra BV & Shandong Ruyi Technology Group Co Ltd (2022) 291 FCR 640 - Resort Lifestyle Developments Pty Ltd v NGI Savannah Living Communities Pty Ltd [2022] QSC 194 - Varangian Pty Ltd v OFM Capital Limited [2003] VSC 444 - Convoy Collateral Ltd v Broad Idea International Ltd [2022] 2 WLR 703 - BCBC Singapore Pte Ltd v PT Bayan Resources TBK and Another (No 3) (2013) 276 FLR 273 - Application granted in respect of primary respondents but refused in respect of third party respondents.
PRACTICE AND PROCEDURE - Application to restrain fourth and fifth respondents from leaving jurisdiction - Order appropriate where there is risk of plaintiff not obtaining information required to be disclosed - Power restricts individual freedom of movement and to be exercised with caution - Risk of oral examination rendered ineffective if fourth and fifth respondents leave jurisdiction - Risk may be less than proof on the probabilities but must be more than fear - Order granted for short period of time - Talacko v Talacko (No 2) [2009] VSC 444 - Bayer AG v Winter [1986] 1 WLR 497 - Rhino Trading Pty Ltd v Lotte Enterprise Pty Ltd [2024] VSC 52.
PRACTICE AND PROCEDURE - Freezing order - Application to discharge freezing order based on material change in circumstances - Where the plaintiff no longer has standing to pursue the proceeding - Where the undertaking as to damages is not continuing - Where the proceeding is to be temporarily stayed pending the outcome of another yet to be commenced proceeding - Brimaud v Honeyset Instant Print Ltd (1988) 217 ALR 44 - National Australia Bank Ltd v Human Group Pty Ltd (No 2) [2020] NSWSC 1900 - Rozenblit v Vainer [2019] VSCA 164 - Distinctive FX Pty Ltd v Van Der Slot [2016] VSCA 39.
PRACTICE AND PROCEDURE - Freezing order - Application to discharge freezing order based on material change in circumstances - Where the plaintiff no longer has standing to pursue the proceeding - Where the undertaking as to damages is not continuing - Where the proceeding is to be temporarily stayed pending the outcome of another yet to be commenced proceeding - Brimaud v Honeyset Instant Print Ltd (1988) 217 ALR 44 - National Australia Bank Ltd v Human Group Pty Ltd (No 2) [2020] NSWSC 1900 - Rozenblit v Vainer [2019] VSCA 164 - Distinctive FX Pty Ltd v Van Der Slot [2016] VSCA 39.
GROUP PROCEEDINGS - Consolidated proceeding - Whether the extant group costs order should continue to apply - Whether plaintiffs should apply for new group costs order - Whether extant group costs order should be varied - Extant group costs order should continue to apply according to its terms - No reason to vary - Supreme Court Act 1986 (Vic) s 33ZDA(3).
GROUP PROCEEDINGS - Consolidated proceeding - Whether the extant group costs order should continue to apply - Whether plaintiffs should apply for new group costs order - Whether extant group costs order should be varied - Extant group costs order should continue to apply according to its terms - No reason to vary - Supreme Court Act 1986 (Vic) s 33ZDA(3).
COSTS - Indemnity Costs - Proceeding discontinued against defendant on the eve of trial - Unreasonable rejection of Calderbank offer - Long delays in the conduct of the proceeding by the plaintiff - Failure by the plaintiff to discontinue against the defendant when invited by the Court to do so - Allegations of fraud - No explanation for late discontinuance - Indemnity costs ordered - Civil Procedure Act 2010 (Vic) ss 19, 22, 23, 25 - NIML Ltd v Man Financial Australia Ltd (No 2) [2004] VSC 510, Russian Airlines v Leeds [2018] EWHC 1735 (Ch), Aljade and Malaysian Kuwaiti Investment Co SDN BHD (MKIC) v Oversea-Chinese Banking Corp Ltd (OCBC) [2004] VSC 351, Leichhardt Municipal Council v Green [2004] NSWCA 341, Bathurst Real Estate Pty Ltd v Fairbrother (No 2) [2022] NSWSC 408, referred to.
COSTS - Indemnity Costs - Proceeding discontinued against defendant on the eve of trial - Unreasonable rejection of Calderbank offer - Long delays in the conduct of the proceeding by the plaintiff - Failure by the plaintiff to discontinue against the defendant when invited by the Court to do so - Allegations of fraud - No explanation for late discontinuance - Indemnity costs ordered - Civil Procedure Act 2010 (Vic) ss 19, 22, 23, 25 - NIML Ltd v Man Financial Australia Ltd (No 2) [2004] VSC 510, Russian Airlines v Leeds [2018] EWHC 1735 (Ch), Aljade and Malaysian Kuwaiti Investment Co SDN BHD (MKIC) v Oversea-Chinese Banking Corp Ltd (OCBC) [2004] VSC 351, Leichhardt Municipal Council v Green [2004] NSWCA 341, Bathurst Real Estate Pty Ltd v Fairbrother (No 2) [2022] NSWSC 408, referred to.
CONSTITUTIONAL LAW - Plaintiffs alleged that by reason of their reliance upon the Australian Consumer Law (Cth) ('ACL') in VCAT proceedings VCAT did not have jurisdiction to hear and determine the proceeding - Plaintiffs' application for judicial review involved a matter arising under the Commonwealth Constitution - Plaintiffs failed to serve notices of a constitutional matter upon Attorneys-General of the Commonwealth and States - Whether necessary in the interests of justice for the Court to grant an urgent interlocutory injunction - Judiciary Act 1903 (Cth) ss 78B(1), 78B(5).
CONSTITUTIONAL LAW - Plaintiffs alleged that by reason of their reliance upon the Australian Consumer Law (Cth) ('ACL') in VCAT proceedings VCAT did not have jurisdiction to hear and determine the proceeding - Plaintiffs' application for judicial review involved a matter arising under the Commonwealth Constitution - Plaintiffs failed to serve notices of a constitutional matter upon Attorneys-General of the Commonwealth and States - Whether necessary in the interests of justice for the Court to grant an urgent interlocutory injunction - Judiciary Act 1903 (Cth) ss 78B(1), 78B(5).
INJUNCTIONS - Application for urgent interlocutory injunction to restrain VCAT from hearing a proceeding - Whether VCAT lacked jurisdiction to hear proceeding by reason of plaintiffs' reliance on the ACL - Whether the reference to the ACL in points of claim in VCAT proceeding referred to ACL as a law of the Commonwealth or as a Victorian law - When read in context the reference to the ACL was a reference to the ACL as a Victorian law - Not necessary in the interests of justice to restrain VCAT from continuing to hear the plaintiffs' claim - Competition and Consumer Act 2010 (Cth) schedule 2, ss 18, 236 - Australian Consumer Law and Fair Trading Act 2012 (Vic) ss 8, 12, 13, 224 - Supreme Court (General Civil Procedure) Rules 2015 Order 56.
WILLS AND ESTATES - Section 34 of the Administration and Probate Act 1958 (Vic) and s 48 of the Trustee Act 1958 (Vic) - Removal of executors and trustees of the estate on the basis that they are unfit to remain - Significant lapse of time since probate granted - Multiple firms of solicitors retained over time with consequent cost to the estate - Delay in administration of estate due to executors refusal to comply with terms of settlement deed - One executor no longer wishes to remain executor and trustee - Application granted.
WILLS AND ESTATES - Section 34 of the Administration and Probate Act 1958 (Vic) and s 48 of the Trustee Act 1958 (Vic) - Removal of executors and trustees of the estate on the basis that they are unfit to remain - Significant lapse of time since probate granted - Multiple firms of solicitors retained over time with consequent cost to the estate - Delay in administration of estate due to executors refusal to comply with terms of settlement deed - One executor no longer wishes to remain executor and trustee - Application granted.
PRACTICE AND PROCEDURE - Costs - Whether circumstances justify departure from usual rule that successful party is entitled to costs - No circumstances justifying departure - Respondents' conduct did not invite litigation - Proceeding did not concern 'public interest' - Self-represented status and financial circumstances of applicant not relevant - Whether orders sought for costs on gross sum basis appropriate - Orders appropriate to avoid further expense and delay.
PRACTICE AND PROCEDURE - Costs - Whether circumstances justify departure from usual rule that successful party is entitled to costs - No circumstances justifying departure - Respondents' conduct did not invite litigation - Proceeding did not concern 'public interest' - Self-represented status and financial circumstances of applicant not relevant - Whether orders sought for costs on gross sum basis appropriate - Orders appropriate to avoid further expense and delay.
PRACTICE AND PROCEDURE - Application to set aside judgment pursuant to r 46.08 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Civil Procedure Act 2010 (Vic), s 56(2) - Where there have been ongoing failures to comply with discovery obligations and orders of the Court in relation to discovery - Where the party has failed to provide a plausible and reasonable explanation for her failure to engage in the proceeding and appear at the application for judgment - Whether the result would have been any different - Ren v Sinicorp Pty Ltd [2021] VSC 728 and National Builders Group IP Holdings Pty Ltd v ACN 092 675 164 Pty Ltd (in liq) [2015] VSCA 260 referred to - Application refused.
PRACTICE AND PROCEDURE - Application to set aside judgment pursuant to r 46.08 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Civil Procedure Act 2010 (Vic), s 56(2) - Where there have been ongoing failures to comply with discovery obligations and orders of the Court in relation to discovery - Where the party has failed to provide a plausible and reasonable explanation for her failure to engage in the proceeding and appear at the application for judgment - Whether the result would have been any different - Ren v Sinicorp Pty Ltd [2021] VSC 728 and National Builders Group IP Holdings Pty Ltd v ACN 092 675 164 Pty Ltd (in liq) [2015] VSCA 260 referred to - Application refused.
EXTENSION OF TIME - Whether time for application for leave to appeal on question of law should be extended - Unexplained delay - Period of delay significant - Proposed ground of appeal directed to the question whether VCAT order beyond jurisdiction on its face - Consequential hearing under order not yet completed - Extension of time granted.
EXTENSION OF TIME - Whether time for application for leave to appeal on question of law should be extended - Unexplained delay - Period of delay significant - Proposed ground of appeal directed to the question whether VCAT order beyond jurisdiction on its face - Consequential hearing under order not yet completed - Extension of time granted.
LEAVE TO APPEAL FROM VCAT - Domestic building dispute - Whether Tribunal order determining liability and providing for subsequent assessment of damages within ambit of s 78 of the Victorian Civil and Administrative Tribunal Act 1998 - Whether Tribunal functus officio after determination of liability under s 78 - Meaning of 'determine' in s 78 - Consistent with statutory text, context and purpose for s 78 to extend to determination of a proceeding by way of a decision as to liability coupled with an order providing for the consequential assessment of damages - No real prospect of success - Leave to appeal refused.
LEAVE TO APPEAL FROM VCAT - Whether respondent caused 'unnecessary disadvantage' for the purposes of s 78 by failing to take an active part in proceedings - Where delay and inaction found to unnecessarily disadvantage applicant - No real prospect of success - Leave to appeal refused.
LEAVE TO APPEAL FROM VCAT - Whether Tribunal failed to consider that the applicant's documents comprising the claim were deficient - Where points of claim sufficiently identified cause of action for damages arising from breaches of implied warranties - Where documents provided basis for the assessment of damages by reference to rectification costs - No real prospect of success - Leave to appeal refused.
Victorian Civil and Administrative Tribunal Act 1998, ss 3, 75, 76, 77, 78, 80, 98, 109, 111, 120, 148.
Supreme Court (General Civil Procedure) Rules 2015, rr 21, 51, 52.
Domestic Building Contracts Act 1995, s 4(b).
Concrete Construction Systems Pty Ltd v Inglese [2024] VSC 266; Brandwill Holdings Pty Ltd v Peter Jonson [2014] VSC 356; Shire of Sherbrooke v F L Byrne Pty Ltd (1986) 63 LGRA 320; Victorian Economic Development Corporation v Clovervale Pty Ltd & Ors (1992) 1 VR 596, referred to.
PROPERTY LAW - Restrictive covenants - Subdivided land in large scale business park - Restrictive covenant imposed by developer on sale of significant lot - Restriction on subdivision of lot and on the creation of two or more occupancies on the lot without consent of owner of adjoining lot - Adjoining lot in the business park owned by the original developer - Whether restrictive covenant enforceable against subsequent purchaser - Whether restrictive covenant touches and concerns the benefitted land.
PROPERTY LAW - Restrictive covenants - Subdivided land in large scale business park - Restrictive covenant imposed by developer on sale of significant lot - Restriction on subdivision of lot and on the creation of two or more occupancies on the lot without consent of owner of adjoining lot - Adjoining lot in the business park owned by the original developer - Whether restrictive covenant enforceable against subsequent purchaser - Whether restrictive covenant touches and concerns the benefitted land.
PROPERTY LAW - Restrictive covenants - Proper construction of restrictive covenant - Evidence admissible on construction of restrictive covenant - Evidence admissible to determine purpose or object of restrictive covenant - Evidence admissible on question of whether restrictive covenant touches and concerns the land.
PROPERTY LAW - Restrictive covenant prohibiting subdivision of land or creation of two occupancies without consent of proprietor of benefitted land - Whether requirement for consent is to be construed as 'consent not unreasonably to be withheld' - Whether restrictive covenant is subject to an implied term that consent is not to be unreasonably withheld - Consent not sought prior to creation of second occupancy - Lot burdened by restrictive covenant has two large existing buildings - Large commercial warehouse and separate very large commercial freezer - Creation of separate tenancy for commercial freezer in addition to existing tenancy for warehouse - Restrictive covenant breached.
COMPETITION LAW - Restrictive covenant said by plaintiff developer to have the purpose of protecting against competition in the sale or leasing of land in the business park - Pleading by plaintiff owner of the burdened land that if the restrictive covenant has that purpose, it is a contract, arrangement or understanding which has the purpose or effect of substantially lessening competition - Competition and Consumer Act 2010 (Cth), s 45 - Definition of 'competition' for purposes of s 45 - Whether competition in market for sale of land is the subject of s 45.
PROPERTY LAW - Application for modification of restrictive covenant pursuant to ss 84(1)(a) and 84(1)(c) of the Property Law Act 1958 (Vic) - Whether continued existence of the restriction imposed by covenant would impede reasonable user of the land without securing practical benefits to other persons - Whether proposed modification of restriction will not substantially injure the persons entitled to the benefit of the restriction - Evidence admissible on questions of reasonable user, practical benefit and substantial injury.
PROPERTY LAW - Application for modification of restrictive covenant pursuant to ss 84(1)(a) and 84(1)(c) of the Property Law Act 1958 (Vic) - Whether the Court can be satisfied of conditions for modification of restrictive covenant to permit two or more occupancies - Modification of restrictive covenant to permit separate tenancies in freezer and in warehouse would not substantially injure the registered proprietor of the benefitted land or other persons - Application for modification under s 84(1)(c) granted.
JUDICIAL REVIEW - Application for leave to appeal dismissal of proceeding by Victorian Civil and Administrative Tribunal - Various questions of law and extensive grounds of appeal - Various baseless and unsubstantiated allegations made against the Tribunal - Leave to appeal refused for all but one ground - Whether Tribunal correctly refused application to cross-examine witnesses - Leave to appeal granted - No unfairness in refusing application to cross-examine witnesses - Appeal dismissed - Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 62, 78, 102 and 148 - Concrete Construction Systems Pty Ltd v Inglese [2024] VSC 266, Leon Holdings Pty Ltd v O'Donnell [2009] VSC 430 considered; Bahl Enterprises Pty Ltd v Sikandar [2025] VSC 394, Bell Corp Victoria Pty Ltd and Ors v Stephenson [2003] VSC 255, ACN 115 918 959 Pty Ltd v Moulieris [2024] VSCA 71, Patsuris v Gippsland and Southern Rural Water Corporation (2016) 218 LGERA 167; [2016] VSCA 109, Rugolino v Howard [2010] VSC 590 referred to.
JUDICIAL REVIEW - Application for leave to appeal dismissal of proceeding by Victorian Civil and Administrative Tribunal - Various questions of law and extensive grounds of appeal - Various baseless and unsubstantiated allegations made against the Tribunal - Leave to appeal refused for all but one ground - Whether Tribunal correctly refused application to cross-examine witnesses - Leave to appeal granted - No unfairness in refusing application to cross-examine witnesses - Appeal dismissed - Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 62, 78, 102 and 148 - Concrete Construction Systems Pty Ltd v Inglese [2024] VSC 266, Leon Holdings Pty Ltd v O'Donnell [2009] VSC 430 considered; Bahl Enterprises Pty Ltd v Sikandar [2025] VSC 394, Bell Corp Victoria Pty Ltd and Ors v Stephenson [2003] VSC 255, ACN 115 918 959 Pty Ltd v Moulieris [2024] VSCA 71, Patsuris v Gippsland and Southern Rural Water Corporation (2016) 218 LGERA 167; [2016] VSCA 109, Rugolino v Howard [2010] VSC 590 referred to.
JUDICIAL REVIEW - Appeal from decision of Associate Justice - Application for leave to appeal procedural orders of Victorian Civil and Administrative Tribunal - Associate Justice dismissed application for leave - Associate Justice found no purpose served by proposed appeal in circumstances where Tribunal had dismissed proceeding and applicant had sought leave to appeal dismissal - No error shown in Associate Justice's conclusion - Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic).
JUDICIAL REVIEW - Application for leave to appeal various orders consequent upon dismissal of proceeding by Victorian Civil and Administrative Tribunal - Leave to appeal refused.
CONTRACT - Application for summary judgment - Appeal from associate judge - Whether completion of contract contingent on rezoning and subdivision being obtained prior to settlement.
CONTRACT - Application for summary judgment - Appeal from associate judge - Whether completion of contract contingent on rezoning and subdivision being obtained prior to settlement.
CRIMINAL LAW - Coercive powers order - Application for revocation - Application for stay of proceedings - Court not in a position to determine underlying facts - No proper basis to grant stay - Application for stay dismissed - Major Crime (Investigative Powers) Act 2004 (Vic), s 12.
CRIMINAL LAW - Coercive powers order - Application for revocation - Application for stay of proceedings - Court not in a position to determine underlying facts - No proper basis to grant stay - Application for stay dismissed - Major Crime (Investigative Powers) Act 2004 (Vic), s 12.
CRIMINAL LAW - Sentence - Manslaughter by criminal negligence - Driving of a motor vehicle in pursuit of deceased following earlier altercation - No aggressive intent - Dishonest account to police - Plea of guilty - Prospects of rehabilitation.
CRIMINAL LAW - Sentence - Manslaughter by criminal negligence - Driving of a motor vehicle in pursuit of deceased following earlier altercation - No aggressive intent - Dishonest account to police - Plea of guilty - Prospects of rehabilitation.
CRIMINAL LAW - Sentence - Murder - Planned attack upon an innocent victim for the purpose of protecting and enhancing the reputation of the Comanchero, an outlaw motorcycle gang - Accused all members of the Comanchero - Victim shot multiple times while driving home at night time - Extremely grave offending - High degree of planning - Steps to avoid apprehension after crime - Accused all awarded special patch as reward for their conduct - Roles of individual offenders - Very high degree of moral culpability - Mitigating factors - Whether head sentence of life imprisonment warranted in the circumstances - Whether non-parole periods should comply with s 11A(4) - Prospects of rehabilitation - Important sentencing purposes - Life imprisonment the necessary and appropriate head sentence for all accused - Non-parole periods reflect somewhat reduced role of Taumoefolau - Non-parole periods of 28 years for Ene and Kakato, and 26 years for Taumoefolau.
CRIMINAL LAW - Sentence - Murder - Planned attack upon an innocent victim for the purpose of protecting and enhancing the reputation of the Comanchero, an outlaw motorcycle gang - Accused all members of the Comanchero - Victim shot multiple times while driving home at night time - Extremely grave offending - High degree of planning - Steps to avoid apprehension after crime - Accused all awarded special patch as reward for their conduct - Roles of individual offenders - Very high degree of moral culpability - Mitigating factors - Whether head sentence of life imprisonment warranted in the circumstances - Whether non-parole periods should comply with s 11A(4) - Prospects of rehabilitation - Important sentencing purposes - Life imprisonment the necessary and appropriate head sentence for all accused - Non-parole periods reflect somewhat reduced role of Taumoefolau - Non-parole periods of 28 years for Ene and Kakato, and 26 years for Taumoefolau.
CRIMINAL LAW - Evidence - Murder - Lay opinion evidence - Whether defence permitted to adduce evidence from a prosecution witness that the deceased 'would have' badly bashed the accused - Whether evidence relevant - Whether evidence an opinion - Whether the evidence comes within s 78 of the Evidence Act 2008 (Vic) - Evidence not admissible - Evidence Act 2008 (Vic) ss 76, 77 & 78; Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36.
CRIMINAL LAW - Evidence - Murder - Lay opinion evidence - Whether defence permitted to adduce evidence from a prosecution witness that the deceased 'would have' badly bashed the accused - Whether evidence relevant - Whether evidence an opinion - Whether the evidence comes within s 78 of the Evidence Act 2008 (Vic) - Evidence not admissible - Evidence Act 2008 (Vic) ss 76, 77 & 78; Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36.
CRIMINAL LAW - Evidence - Conduct of co-offender in circumstances where prosecution do not rely on any type of complicity - Use that can be made of such conduct - Application by accused to limit the use of the evidence pursuant to s 136 of the Evidence Act 2008 (Vic) - Danger that jury might use the evidence in a way that is unfairly prejudicial to the accused - Use of evidence limited - Evidence Act 2008 (Vic) s 136; R v Bauer (a pseudonym) (2018) 266 CLR 56.
CRIMINAL LAW - Evidence - Conduct of co-offender in circumstances where prosecution do not rely on any type of complicity - Use that can be made of such conduct - Application by accused to limit the use of the evidence pursuant to s 136 of the Evidence Act 2008 (Vic) - Danger that jury might use the evidence in a way that is unfairly prejudicial to the accused - Use of evidence limited - Evidence Act 2008 (Vic) s 136; R v Bauer (a pseudonym) (2018) 266 CLR 56.
CRIMINAL LAW - Evidence - Murder - No dispute that accused caused the deceased's death by a conscious, voluntary and deliberate act - Accused denies murderous intent - Self-defence - Whether self-defence is available will likely be an issue at the close of the evidence - Admissibility of evidence - Admissions - Incriminating conduct - Whether probative value of evidence is outweighed by the danger of unfair prejudice - Jury Direction Act 2015 (Vic) s 20; Evidence Act 2008 (Vic) ss 55 & 137; DPP v Lynn [2024] VSCA 62; Cookson v The King [2024] VSCA 289; DPP v Scriven (Ruling No 4) [2015] VSC 220.
CRIMINAL LAW - Evidence - Murder - No dispute that accused caused the deceased's death by a conscious, voluntary and deliberate act - Accused denies murderous intent - Self-defence - Whether self-defence is available will likely be an issue at the close of the evidence - Admissibility of evidence - Admissions - Incriminating conduct - Whether probative value of evidence is outweighed by the danger of unfair prejudice - Jury Direction Act 2015 (Vic) s 20; Evidence Act 2008 (Vic) ss 55 & 137; DPP v Lynn [2024] VSCA 62; Cookson v The King [2024] VSCA 289; DPP v Scriven (Ruling No 4) [2015] VSC 220.
CRIMINAL LAW - Sentence - Contravention of condition of supervision order - Where accused had prior convictions for breaching interim supervision order - Where accused used methylamphetamine - Where plea of guilty entered at earliest opportunity - Whether to impose a period of imprisonment - Sentenced to 26 days' imprisonment being time served - DPP v SM [2019] VSC 466 - DPP v SJW [2020] VSC 746 - DPP v XG [2023] VSC 127 - Serious Offenders Act 2018 (Vic) ss 14(1)(b), 169(1), 174(1) - Sentencing Act 1991 (Vic) ss 6AAA(1), 18(4), 109(3).
CRIMINAL LAW - Sentence - Contravention of condition of supervision order - Where accused had prior convictions for breaching interim supervision order - Where accused used methylamphetamine - Where plea of guilty entered at earliest opportunity - Whether to impose a period of imprisonment - Sentenced to 26 days' imprisonment being time served - DPP v SM [2019] VSC 466 - DPP v SJW [2020] VSC 746 - DPP v XG [2023] VSC 127 - Serious Offenders Act 2018 (Vic) ss 14(1)(b), 169(1), 174(1) - Sentencing Act 1991 (Vic) ss 6AAA(1), 18(4), 109(3).
CRIMINAL LAW - Application for bail for offences involving violence - Where applicant has extensive criminal history, is subject to supervision order under Serious Offenders Act 2018 and is alleged to have committed Schedule 2 offences while on bail for another Schedule 2 offence - Whether applicant has significant medical issues that cannot adequately be treated in custody - Whether definition of 'vulnerable adult' is relevant to statutory tests - Where applicant has not meaningfully engaged in treatment programs and counselling offered - Where applicant's access to public housing is at risk - Where applicant's relationship with partner is not a protective factor - Where psychiatric opinion that applicant poses an ongoing risk of breaching conditions, acting impulsively, and being aggressive and violent - Where not likely period of remand would exceed any term of imprisonment imposed - Exceptional circumstances not established - Unacceptable risk of applicant committing further Schedule 1 or Schedule 2 offences or endangering public - Application for bail refused - Bail Act 1977 (Vic) ss 3AAAA, 3AAA, 4A, 4E.
CRIMINAL LAW - Application for bail for offences involving violence - Where applicant has extensive criminal history, is subject to supervision order under Serious Offenders Act 2018 and is alleged to have committed Schedule 2 offences while on bail for another Schedule 2 offence - Whether applicant has significant medical issues that cannot adequately be treated in custody - Whether definition of 'vulnerable adult' is relevant to statutory tests - Where applicant has not meaningfully engaged in treatment programs and counselling offered - Where applicant's access to public housing is at risk - Where applicant's relationship with partner is not a protective factor - Where psychiatric opinion that applicant poses an ongoing risk of breaching conditions, acting impulsively, and being aggressive and violent - Where not likely period of remand would exceed any term of imprisonment imposed - Exceptional circumstances not established - Unacceptable risk of applicant committing further Schedule 1 or Schedule 2 offences or endangering public - Application for bail refused - Bail Act 1977 (Vic) ss 3AAAA, 3AAA, 4A, 4E.
CRIMINAL LAW - Bail - Armed robbery (x2) of retail premises and numerous other dishonesty and other offences - Applicant a 43 year old Aboriginal man with history of long-term drug addiction and various other difficult personal circumstances - History of homelessness - Long criminal history - Poor compliance with previous grants of bail - Proposal that the applicant, if bailed, would reside at Odyssey House - Show compelling reason test - Combination of factors relied upon - Compelling reason made out - Whether unacceptable risk - Real prospect that applicant would commit Schedule 1 or 2 offences, endanger the public, or fail to answer bail - Unacceptable risk established - Bail refused - Bail Act 1977 ss 1B, 3AAA, 3A, 4AA, 4A and 4E.
CRIMINAL LAW - Bail - Armed robbery (x2) of retail premises and numerous other dishonesty and other offences - Applicant a 43 year old Aboriginal man with history of long-term drug addiction and various other difficult personal circumstances - History of homelessness - Long criminal history - Poor compliance with previous grants of bail - Proposal that the applicant, if bailed, would reside at Odyssey House - Show compelling reason test - Combination of factors relied upon - Compelling reason made out - Whether unacceptable risk - Real prospect that applicant would commit Schedule 1 or 2 offences, endanger the public, or fail to answer bail - Unacceptable risk established - Bail refused - Bail Act 1977 ss 1B, 3AAA, 3A, 4AA, 4A and 4E.
CRIMINAL LAW - Bail - Applicant charged with trafficking in drug of dependence and other charges - Applicant accused of a Schedule 2 offence while subject to a summons to answer to a charge of another Schedule 2 offence - Requirement to show exceptional circumstances - Whether exceptional circumstances made out - Whether applicant an unacceptable risk - Bail granted - Bail Act 1977, ss 1B, 3AAA, 4AA, 4A, 4D and 4E.
CRIMINAL LAW - Bail - Applicant charged with trafficking in drug of dependence and other charges - Applicant accused of a Schedule 2 offence while subject to a summons to answer to a charge of another Schedule 2 offence - Requirement to show exceptional circumstances - Whether exceptional circumstances made out - Whether applicant an unacceptable risk - Bail granted - Bail Act 1977, ss 1B, 3AAA, 4AA, 4A, 4D and 4E.
CRIMINAL LAW - Bail application - Charges of armed robbery, assault with weapon and possess controlled weapon without excuse - Applicant 18 years old - Aboriginal heritage - Significant traumatic childhood events - No prior convictions - Compelling reasons exists - Whether risk unacceptable - Unacceptable risk not established - Risk of committing an offence can be managed by conditions - Bail granted with conditions - Bail Act 1977 ss 3AAA, 3A, 4AA, 4E.
CRIMINAL LAW - Bail application - Charges of armed robbery, assault with weapon and possess controlled weapon without excuse - Applicant 18 years old - Aboriginal heritage - Significant traumatic childhood events - No prior convictions - Compelling reasons exists - Whether risk unacceptable - Unacceptable risk not established - Risk of committing an offence can be managed by conditions - Bail granted with conditions - Bail Act 1977 ss 3AAA, 3A, 4AA, 4E.
PRACTICE AND PROCEDURE - PLEADINGS - Application for leave to file further amended statement of claim and variation of earlier orders of the Court - Proposed pleading manifestly defective - Whether plaintiff should be permitted to act as solicitor for proposed substituted corporate plaintiff.
PRACTICE AND PROCEDURE - PLEADINGS - Application for leave to file further amended statement of claim and variation of earlier orders of the Court - Proposed pleading manifestly defective - Whether plaintiff should be permitted to act as solicitor for proposed substituted corporate plaintiff.
TORT - TRESPASS - DAMAGES - Alleged trespass to illegally hunt hog deer - Where hog deer wild animals not owned by landowner - Measure of damages - Where illegal hunting and use of gun equipped with suppressor - Aggravated damages - Punitive damages - TRIGGER WARNING - Judgment contains images of dead deer.
TORT - TRESPASS - DAMAGES - Alleged trespass to illegally hunt hog deer - Where hog deer wild animals not owned by landowner - Measure of damages - Where illegal hunting and use of gun equipped with suppressor - Aggravated damages - Punitive damages - TRIGGER WARNING - Judgment contains images of dead deer.
LEASE - CONTRACT - RETIREMENT VILLAGE - Construction of terms of lease in a Retirement Village - Existing tenant vacated - Entitled to refund of ingoing loan amount less a deferred management fee - Deferred management fee to be calculated based on new loan amount paid by incoming tenant - Where no new loan amount as no incoming tenant as building to be demolished - New loan amount to be substituted with a proxy amount based on the current market value of the residence rights - Calculation of market value - Adequacy of valuation evidence.
LEASE - CONTRACT - RETIREMENT VILLAGE - Construction of terms of lease in a Retirement Village - Existing tenant vacated - Entitled to refund of ingoing loan amount less a deferred management fee - Deferred management fee to be calculated based on new loan amount paid by incoming tenant - Where no new loan amount as no incoming tenant as building to be demolished - New loan amount to be substituted with a proxy amount based on the current market value of the residence rights - Calculation of market value - Adequacy of valuation evidence.
INDUSTRIAL LAW - Labour Hire Licensing Act 2018 ss 7, 9, 14, 93, 94(2), 95 - Labour hire licence required to advertise provision of labour hire services - Admitted contravention of civil penalty provisions - Persons involved in contravening civil penalty provision - Agreed statement of facts - Agreed submissions on liability and penalties - Nature and extent of any loss or damage suffered as a result of the contravention - Course of conduct principles.
INDUSTRIAL LAW - Labour Hire Licensing Act 2018 ss 7, 9, 14, 93, 94(2), 95 - Labour hire licence required to advertise provision of labour hire services - Admitted contravention of civil penalty provisions - Persons involved in contravening civil penalty provision - Agreed statement of facts - Agreed submissions on liability and penalties - Nature and extent of any loss or damage suffered as a result of the contravention - Course of conduct principles.
INDUSTRIAL LAW - Fair Work Act 2009 (Cth) ss 44, 45, 323(1), 535, 536, 547, 548, 557C - Small claim - Alleged failure by employer to pay employee any wages or entitlements - Pay slips falsely state payment made to employee's bank account - Credit and reliability of witness evidence - Operation of s 557C - Employer burden of disproving non-payment allegation - Interest - Good cause shown to the contrary.
INDUSTRIAL LAW - Fair Work Act 2009 (Cth) ss 44, 45, 323(1), 535, 536, 547, 548, 557C - Small claim - Alleged failure by employer to pay employee any wages or entitlements - Pay slips falsely state payment made to employee's bank account - Credit and reliability of witness evidence - Operation of s 557C - Employer burden of disproving non-payment allegation - Interest - Good cause shown to the contrary.
APPLICATION - Strike out for lack of jurisdiction - 'Recovery of money owed to the owners corporation by a lot owner' - Jurisdiction of the Magistrates' Court - Statutory interpretation - Owners Corporations Act 2006 (Vic) ss 1, 18, 30, 31, 32, Part 11, Div 1, Magistrates' Court Act 1989 (Vic) s 100(1).
APPLICATION - Strike out for lack of jurisdiction - 'Recovery of money owed to the owners corporation by a lot owner' - Jurisdiction of the Magistrates' Court - Statutory interpretation - Owners Corporations Act 2006 (Vic) ss 1, 18, 30, 31, 32, Part 11, Div 1, Magistrates' Court Act 1989 (Vic) s 100(1).
APPLICATION - Re-hearing - 'Recovery of money owed to the owners corporation by a lot owner' - Jurisdiction of the Magistrates' Court - Statutory interpretation Owners Corporations Act 2006 (Vic) ss 1, 18, 30, 31, 32, Part 11, Division 1, Magistrates' Court Act 1989 (Vic) ss 100(1), 110.
APPLICATION - Re-hearing - 'Recovery of money owed to the owners corporation by a lot owner' - Jurisdiction of the Magistrates' Court - Statutory interpretation Owners Corporations Act 2006 (Vic) ss 1, 18, 30, 31, 32, Part 11, Division 1, Magistrates' Court Act 1989 (Vic) ss 100(1), 110.
JURISDICTION - 'Recovery of money owed to the owners corporation by a lot owner' - Jurisdiction of the Magistrates' Court - Statutory interpretation - Owners Corporations Act 2006 (Vic) ss 1, 18, 30, 31, 32, Part 11, Div 1, Magistrates' Court Act 1989 (Vic) s 100(1).
JURISDICTION - 'Recovery of money owed to the owners corporation by a lot owner' - Jurisdiction of the Magistrates' Court - Statutory interpretation - Owners Corporations Act 2006 (Vic) ss 1, 18, 30, 31, 32, Part 11, Div 1, Magistrates' Court Act 1989 (Vic) s 100(1).