ADMINISTRATION AND PROBATE - Application for leave to appeal against summary dismissal of claim for family provision under Part IV of the Administration and Probate Act 1958 by former stepchild of deceased - No provision in will - Applicant lived with deceased for seven years in childhood after mother formed relationship with deceased - Deceased and applicant's mother separated - Whether applicant an 'eligible person' within the definition in s 90 of the Administration and Probate Act 1958 - Application for leave to appeal granted - Appeal allowed.
ADMINISTRATION AND PROBATE - Application for leave to appeal against summary dismissal of claim for family provision under Part IV of the Administration and Probate Act 1958 by former stepchild of deceased - No provision in will - Applicant lived with deceased for seven years in childhood after mother formed relationship with deceased - Deceased and applicant's mother separated - Whether applicant an 'eligible person' within the definition in s 90 of the Administration and Probate Act 1958 - Application for leave to appeal granted - Appeal allowed.
Administration and Probate Act 1958, pt IV, ss 3(1), 90, 90A, 91.
Innes-Irons v Forrest [2016] VSC 782, applied; Bail v Scott-Mackenzie [2016] VSC 563; Whitehead v State Trustees Ltd (2011) 4 ASTLR 528, discussed.
NEGLIGENCE - Professional negligence - Advocate's immunity - Workplace injury - Solicitors allegedly failed to prepare and present evidence in serious injury application - Whether judge erred in finding that impugned conduct attracted advocate's immunity - Applicant accepted that impugned conduct was intimately connected with work done in court but contended that advocate's immunity did not apply to serious injury applications - No error - Leave to appeal refused.
NEGLIGENCE - Professional negligence - Advocate's immunity - Workplace injury - Solicitors allegedly failed to prepare and present evidence in serious injury application - Whether judge erred in finding that impugned conduct attracted advocate's immunity - Applicant accepted that impugned conduct was intimately connected with work done in court but contended that advocate's immunity did not apply to serious injury applications - No error - Leave to appeal refused.
Workplace Injury Rehabilitation and Compensation Act 2013, ss 325, 335
Giannarelli v Wraith (1988) 165 CLR 543; D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; Kendirjian v Lepore (2017) 259 CLR 275; Swannell v Farmer [1999] 1 VR 299.
CRIMINAL LAW - Leave to appeal - Sentence - Aggravated burglary - Conduct endangering persons - Sexual assault - Attempted rape - Conduct in front of children - Whether the sentencing judged erred in her findings - Whether the sentencing judge erred in her assessment of the prospects of rehabilitation - Whether the sentencing judge erred in her application of s 11(3) of the Sex Offenders Registration Act 2004 - Whether the sentence was manifestly excessive - Application for extension of time for leave to appeal against sentence refused.
CRIMINAL LAW - Leave to appeal - Sentence - Aggravated burglary - Conduct endangering persons - Sexual assault - Attempted rape - Conduct in front of children - Whether the sentencing judged erred in her findings - Whether the sentencing judge erred in her assessment of the prospects of rehabilitation - Whether the sentencing judge erred in her application of s 11(3) of the Sex Offenders Registration Act 2004 - Whether the sentence was manifestly excessive - Application for extension of time for leave to appeal against sentence refused.
Criminal Procedure Act 2009 s 278; Crimes Act 1958 ss 15, 22, 23; Sex Offenders Registration Act 2004 s 11(3).
Barbaro v The Queen (2012) 226 A Crim R 354; Bowden v The Queen (2013) 44 VR 229; Bugmy v The Queen (2013) 249 CLR 571; Dalgliesh (a pseudonym) v The Queen (2017) 262 CLR 428; Director of Public Prosecutions v Meyers (2014) 44 VR 486; Failla v The King [2025] VSCA 132; Kumova v The Queen (2012) 37 VR 538; Lowndes v The Queen (1999) 195 CLR 665; Sayer v The Queen [2018] VSCA 177; Stefani v The Queen [2024] VSCA 29; Surtees v The King [2023] VSCA 42, considered.
CRIMINAL LAW - Leave to appeal - Sentence - Whether sentencing judge erred in their findings as to the applicant's role in trafficking a commercial quantity of drugs - Trafficking various drugs - Possess various drugs of dependence - Possess tablet press - Make false document - Possess fireworks - Possess prohibited weapon - Source and manufacture steroids - Counterfeit drug business - Leave to appeal refused.
CRIMINAL LAW - Leave to appeal - Sentence - Whether sentencing judge erred in their findings as to the applicant's role in trafficking a commercial quantity of drugs - Trafficking various drugs - Possess various drugs of dependence - Possess tablet press - Make false document - Possess fireworks - Possess prohibited weapon - Source and manufacture steroids - Counterfeit drug business - Leave to appeal refused.
Criminal Procedure Act 2009, ss 278, 280.
Dao v The Queen (2014) 240 A Crim R 574; DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428; Elkadi v The King [2023] VSCA 328; Gregory v The Queen (2017) 268 A Crim R 1; R v Olbrich (1999) 199 CLR 270, considered.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Respondent pleaded guilty to nine charges of sexual offending against his two child nieces - Charges of sexual penetration of child under 12, sexual penetration of child under 16, sexual assault of child under 16, and encouraging child under 16 to engage in sexual activity - Total effective sentence of 5 years' imprisonment with non-parole period of 3 years - Whether total effective sentence and non-parole period manifestly inadequate - Whether orders for cumulation reflected the separate criminality of respondent's offending against two victims - Whether orders for cumulation were contrary to the presumption of total cumulation for serious sexual offenders - Whether judge misapplied principle of totality - Orders for cumulation manifestly inadequate - Appeal allowed - Respondent resentenced to total effective sentence of 8 years' imprisonment with non-parole period of 5 years.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Respondent pleaded guilty to nine charges of sexual offending against his two child nieces - Charges of sexual penetration of child under 12, sexual penetration of child under 16, sexual assault of child under 16, and encouraging child under 16 to engage in sexual activity - Total effective sentence of 5 years' imprisonment with non-parole period of 3 years - Whether total effective sentence and non-parole period manifestly inadequate - Whether orders for cumulation reflected the separate criminality of respondent's offending against two victims - Whether orders for cumulation were contrary to the presumption of total cumulation for serious sexual offenders - Whether judge misapplied principle of totality - Orders for cumulation manifestly inadequate - Appeal allowed - Respondent resentenced to total effective sentence of 8 years' imprisonment with non-parole period of 5 years.
Sentencing Act 1991, ss 6D, 6E.
DPP v Karazisis (2010) 31 VR 634; Nguyen v The Queen [2019] VSCA 184; R v GJ [2008] VSCA 222; Barnard v The Queen [2022] VSCA 42; R v Nguyen (2013) 234 A Crim R 324; R v MAK (2006) 167 A Crim R 159; DPP v Grabovac [1998] 1 VR 664; RH McL v The Queen (2000) 203 CLR 452; DPP v Hopson (a pseudonym) [2016] VSCA 303; Gordon (a pseudonym) v The Queen [2013] VSCA 343; Zhao v The Queen [2018] VSCA 267; Flynn (a pseudonym) v The Queen [2020] VSCA 173; Nguyen v The Queen (2016) 256 CLR 656.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURUSANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURUSANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
CRIMINAL LAW - Appeal - Sentence - Application for leave to appeal against sentence - Trafficking commercial quantity of drug of dependence, firearm and proceeds of crime offences - Significant and relevant criminal history - Total effective sentence 13 years 6 months' imprisonment - Whether judge failed to accord individualised justice to applicant - Whether sentence excessive - Sentence not manifestly excessive - Leave to appeal refused.
Acciarito v The Queen [2019] VSCA 26; Berichon v R [2013] VSCA 319; (2013) 40 VR 490; Bruce v The Queen [2022] VSCA 100; DPP v Condo [2019] VSCA 181; Lytras v The Queen [2020] VSCA 150; Nguyen v The Queen [2016] VSCA 198; 311 FLR 289; Obian v The King [2023] VSCA 18; (2023) 69 VR 553; Quah v The Queen [2021] VSCA 164; (2021) A Crim R 136, discussed.
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 ; DPP v Dalgliesh (a pseudonym) [2017] 262 CLR 428; (2017) HCA 41; Gregory (a pseudonym) v The Queen [2017] VSCA 151; (2017) 268 A Crim R 1; Leimonitis v The Queen [2018] VSCA 198, followed.
CRIMINAL LAW - Appeal - Sentence - Application for extension of time in which to seek leave to appeal against sentence - Applicant pleaded guilty to serious drug and associated offences - Sentence indication given absent knowledge of relevant sentencing consideration - Whether small disparity in indicated sentence and sentence later given evidences insufficient weight given to relevant sentencing consideration - Indicated sentence cannot evidence inadequate weight given to a sentencing factor - Application for extension of time refused.
CRIMINAL LAW - Appeal - Sentence - Application for extension of time in which to seek leave to appeal against sentence - Applicant pleaded guilty to serious drug and associated offences - Sentence indication given absent knowledge of relevant sentencing consideration - Whether small disparity in indicated sentence and sentence later given evidences insufficient weight given to relevant sentencing consideration - Indicated sentence cannot evidence inadequate weight given to a sentencing factor - Application for extension of time refused.
Karam v The King [2024] VSCA 164; Almatrah v The King [2024] VSCA 301; Madafferi v The Queen [2017] VSCA 302, followed.
Criminal Procedure Act 2009, ss 207-209; Sentencing Act 1991, s 6AAA.
CRIMINAL LAW - Appeal - Sentence - Application for extension of time to file notice of appeal against sentence - Applicant pleaded guilty to nine charges of handling stolen goods, one charge of possession of a drug of dependence, and four related summary charges - Applicant sentenced to total effective sentence of 3 years and 4 months' imprisonment with a non-parole period of 2 years and 1 month - Applicant involved in enterprise of receiving, altering and rebirthing stolen vehicles for profit - Value of stolen goods in excess of $280,000 - Where applicant re-offended following arrest - Limited matters in mitigation - Whether sentence manifestly excessive - Proposed ground of appeal not sufficiently arguable to warrant extension of time - Application refused.
CRIMINAL LAW - Appeal - Sentence - Application for extension of time to file notice of appeal against sentence - Applicant pleaded guilty to nine charges of handling stolen goods, one charge of possession of a drug of dependence, and four related summary charges - Applicant sentenced to total effective sentence of 3 years and 4 months' imprisonment with a non-parole period of 2 years and 1 month - Applicant involved in enterprise of receiving, altering and rebirthing stolen vehicles for profit - Value of stolen goods in excess of $280,000 - Where applicant re-offended following arrest - Limited matters in mitigation - Whether sentence manifestly excessive - Proposed ground of appeal not sufficiently arguable to warrant extension of time - Application refused.
Crimes Act 1958, s 88.
Clarkson v The Queen (2011) 32 VR 361, referred to.
CRIMINAL LAW - Appeal - Sentence - Burglary, theft, firearms offences and possession of drug of dependence - Aggregate sentence 12 months' imprisonment - Whether judge erred by imposing aggregate sentence - Applicant stole imitation firearm from neighbour's property and exchanged it for methylamphetamine - Charges founded on same facts - Continuous offending constituting single drug and firearm-related transaction - Offences not varying greatly in gravity - Aggregate sentence avoided artificial sentencing exercise - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Burglary, theft, firearms offences and possession of drug of dependence - Aggregate sentence 12 months' imprisonment - Whether judge erred by imposing aggregate sentence - Applicant stole imitation firearm from neighbour's property and exchanged it for methylamphetamine - Charges founded on same facts - Continuous offending constituting single drug and firearm-related transaction - Offences not varying greatly in gravity - Aggregate sentence avoided artificial sentencing exercise - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Manifest excess - Blackmail - Sentence of 12 months' imprisonment - Aggregate sentence 12 months' imprisonment on separate indictment charging burglary, firearms offences and possessing drug of dependence - Total effective sentence 18 months' imprisonment - Guilty plea - Applicant assisted authorities in relation to charges on second indictment - Aggregate sentence very moderate - Most charges carrying maximum 10 years' imprisonment - Possession of firearms by prohibited person serious offending - Blackmail planned and calculated against vulnerable victim - Applicant understated own contribution to blackmail while blaming co-offender - Blackmail sentence modest - Order for 6 months' cumulation well within range - Applicant having extensive criminal record - Sentence well within range - Leave to appeal refused.
Sentencing Act 1991, s 9.
Director of Public Prosecutions v Frewstal Pty Ltd (2015) 47 VR 660; Hassall v The King [2024] VSCA 163; Malovski v The King [2025] VSCA 72, referred to.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURUSANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURUSANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
CRIMINAL LAW - Appeal - Sentence - Application for leave to appeal against sentence - Applicant pleaded guilty to disposal of firearms, possession of a traffickable quantity of firearms, other firearm offences, eight drug trafficking offences, knowingly dealing with proceeds of crime and failure to comply with order to assist - Total effective sentence of 4 years and 3 months' imprisonment - Co-accused sentenced to 10 months' imprisonment with 2 year CCO - Whether unjustified disparity in sentences - Applicant leader in criminal enterprise - Co-accused had intellectual disability - Disparity justified by different roles and personal circumstances - Whether sentence manifestly excessive - Offending objectively serious - Sentence not manifestly excessive - Leave to appeal refused.
Clarkson v The Queen (2011) 32 VR 361; Barbaro v The Queen (2012) 226 A Crim R 354, applied.
Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; Chapman v The King [2024] VSCA 205; Berichon v The Queen (2013) 40 VR 490, referred to.
CRIMINAL LAW - Appeal - Sentence - Plea of guilty to charges of recklessly causing serious injury, affray, and common law assault - Random street violence - Applicant and co-offender assaulted three victims in public place - Applicant under influence of alcohol and cocaine - Applicant struck one victim to the head when victim was in vulnerable and defenceless state, causing him to sustain a severe traumatic brain injury - Several mitigating factors, including applicant's deprived background and impaired mental functioning - Whether judge erred in application of Bugmy and Verdins principles - Whether unjustifiable disparity with co-offender's sentence - Whether sentence manifestly excessive - Total effective sentence of 6 years and 6 months' imprisonment with non-parole period of 4 years and 6 months within range - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Plea of guilty to charges of recklessly causing serious injury, affray, and common law assault - Random street violence - Applicant and co-offender assaulted three victims in public place - Applicant under influence of alcohol and cocaine - Applicant struck one victim to the head when victim was in vulnerable and defenceless state, causing him to sustain a severe traumatic brain injury - Several mitigating factors, including applicant's deprived background and impaired mental functioning - Whether judge erred in application of Bugmy and Verdins principles - Whether unjustifiable disparity with co-offender's sentence - Whether sentence manifestly excessive - Total effective sentence of 6 years and 6 months' imprisonment with non-parole period of 4 years and 6 months within range - Leave to appeal refused.
CONTRACT - Appeals from Victorian Civil and Administrative Tribunal - Domestic building contract dispute - Whether Tribunal erred in concluding there was an express term regarding ability to reverse caravan down driveway - Written contract with entire contract clause - No pleading of collateral contract, rectification or misleading conduct - Ability to reverse caravan down driveway not a result stated in the contract - Tribunal erred in finding precontractual discussions regarding driveway gave rise to desired result being stated in contract.
CONTRACT - Appeals from Victorian Civil and Administrative Tribunal - Domestic building contract dispute - Whether Tribunal erred in concluding there was an express term regarding ability to reverse caravan down driveway - Written contract with entire contract clause - No pleading of collateral contract, rectification or misleading conduct - Ability to reverse caravan down driveway not a result stated in the contract - Tribunal erred in finding precontractual discussions regarding driveway gave rise to desired result being stated in contract.
CONTRACT - Contract plans specified driveway without material slope - Builder in breach - Rectification would require demolition of house and garage - No error in Tribunal finding that unreasonable to award rectification damages - Whether open to Tribunal to award damages for storage of caravan - Open for Tribunal to award damages for storage of caravan, loss of amenity and physical inconvenience - No error in Tribunal permitting further hearing regarding damages.
CONTRACT - Whether the Tribunal erred in its calculation of the compensation regarding other defects of the house - Whether Owners failed to mitigate loss - Owners not 'required' to give builder opportunity to rectify - No error as to the Tribunal's calculation regarding the other defects.
Stone v Chappel (2017) 128 SASR 165; Bellgrove v Eldridge (1954) 90 CLR 613; Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 344; 85 Princess Pty Ltd v Fleming [2025] NSWSC 407; Ceerose Pty Ltd v Owners of Strata Plan No 89074 [2025] NSWCA 235, considered.
FAMILY TRUST - Deceased was appointor of family trust - Provision in trust deed that, upon the appointor's death, the appointor's legal personal representative to become appointor, or if no legal personal representative, then the trustee to become appointor - Power of appointment exercisable by written instrument - Executor granted probate on basis of forged will - Previous trustee appointed the executor as new trustee - Executor purported to exercise powers as trustee - Probate revoked and alternative legal personal representative appointed by Court - Re Cassar [2022] VSC 126 - Whether executor's appointment and actions as trustee valid - Held: Executor's appointment as trustee invalid because no written instrument - Executor was trustee de son tort of trust property with obligations to beneficiaries but no authority to exercise powers of trustee under the settlement - Jasmine Trustees v Wells & Hind [2008] Ch 194 applied - Actions taken by executor invalid and void - Plaintiffs entitled to declarations and relief sought.
FAMILY TRUST - Deceased was appointor of family trust - Provision in trust deed that, upon the appointor's death, the appointor's legal personal representative to become appointor, or if no legal personal representative, then the trustee to become appointor - Power of appointment exercisable by written instrument - Executor granted probate on basis of forged will - Previous trustee appointed the executor as new trustee - Executor purported to exercise powers as trustee - Probate revoked and alternative legal personal representative appointed by Court - Re Cassar [2022] VSC 126 - Whether executor's appointment and actions as trustee valid - Held: Executor's appointment as trustee invalid because no written instrument - Executor was trustee de son tort of trust property with obligations to beneficiaries but no authority to exercise powers of trustee under the settlement - Jasmine Trustees v Wells & Hind [2008] Ch 194 applied - Actions taken by executor invalid and void - Plaintiffs entitled to declarations and relief sought.
CONTEMPT OF COURT - Application by originating motion and summons seeking orders that respondent guilty of 15 charges of contempt - Conduct comprising comments made by respondent in open court and by correspondence - Respondent made abusive and disrespectful comments to County Court judge in court - Respondent sent numerous emails to court containing threatening language and allegations of impropriety and corruption - Correspondence sent to judges' chambers and court registries - Whether conduct had tendency to interfere with administration of justice or otherwise scandalise the court - Contempt found proven.
CONTEMPT OF COURT - Application by originating motion and summons seeking orders that respondent guilty of 15 charges of contempt - Conduct comprising comments made by respondent in open court and by correspondence - Respondent made abusive and disrespectful comments to County Court judge in court - Respondent sent numerous emails to court containing threatening language and allegations of impropriety and corruption - Correspondence sent to judges' chambers and court registries - Whether conduct had tendency to interfere with administration of justice or otherwise scandalise the court - Contempt found proven.
Supreme Court (General Civil Procedure) Rules 2015, r 75.08.1; Charter of Human Rights and Responsibilities Act 2006, ss 8, 15, 21 and 24; Evidence Act 2008, s 161.
John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351; R v Dunbabin; ex parte Williams (1935) 53 CLR 434; Witham v Holloway (1995) 183 CLR 525; LCM Litigation Fund Pty Ltd v Coope [2017] NSWCA 200; R v Slaveski [2011] VSC 643; Prothonotary of the Supreme Court of New South Wales v Katelaris [2008] NSWSC 389; Re Dyce Sombre (1849) 1 MaC & G 116; 41 ER 1207; Gallagher v Durack (1983) 152 CLR 238; Ex parte Attorney- General; Re Goodwin(1969) 70 SR (NSW) 413; Re Wiseman [1969] NZLR 55; R v Collins [1954] VLR 46; McGuirk v University of New South Wales [2009] NSWSC 1058, considered.
EVIDENCE
EVIDENCE
PROCEDURE - Jurisdiction to discharge party from undertaking to the Court given as part of final relief - Application by appointor of trust for leave to be discharged from undertakings not to remove trustee - Where application brought after proceeding dismissed - Where undertakings given on final basis - Grant of liberty to apply - Where appointer seeks to exercise power of appointment to have new independent trustee appointed - Whether in the exercise of the Court's discretion it would be unjust for undertaking to be maintained - Where appointor seeks to use power of appointment because of concerns about trustee's management of trusts - Where no new facts or circumstances have arisen - Applicant failed to discharge onus that Court should exercise discretion to release party from undertaking - Application dismissed - Russell v Russell [1956] P 283 - Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 - Commonwealth Bank of Australia v Law Debenture Trust Corp PLC (No 4) [2018] WASC 165 - Lin v Lin No. 4 [2024] VSC 759.
PROCEDURE - Jurisdiction to discharge party from undertaking to the Court given as part of final relief - Application by appointor of trust for leave to be discharged from undertakings not to remove trustee - Where application brought after proceeding dismissed - Where undertakings given on final basis - Grant of liberty to apply - Where appointer seeks to exercise power of appointment to have new independent trustee appointed - Whether in the exercise of the Court's discretion it would be unjust for undertaking to be maintained - Where appointor seeks to use power of appointment because of concerns about trustee's management of trusts - Where no new facts or circumstances have arisen - Applicant failed to discharge onus that Court should exercise discretion to release party from undertaking - Application dismissed - Russell v Russell [1956] P 283 - Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 - Commonwealth Bank of Australia v Law Debenture Trust Corp PLC (No 4) [2018] WASC 165 - Lin v Lin No. 4 [2024] VSC 759.
COSTS - Group proceeding - Complaint by defendant that statement of claim defective - Pleadings not closed - Application by plaintiffs to amend statement of claim to add parties -Application by defendant to strike out statement of claim and that the proceeding not continue under pt 4A of the Supreme Court Act 1986- Significant change in position by plaintiffs -Application by defendant for costs of summonses, and pleading amendments and for immediate taxation - Supreme Court (General Civil Procedure) Rules 2025 rr 63.17, 63.20, 63.20.1- Costs order limited to particular period - No order as to immediate taxation - Summons for costs - Costs in proceeding.
COSTS - Group proceeding - Complaint by defendant that statement of claim defective - Pleadings not closed - Application by plaintiffs to amend statement of claim to add parties -Application by defendant to strike out statement of claim and that the proceeding not continue under pt 4A of the Supreme Court Act 1986- Significant change in position by plaintiffs -Application by defendant for costs of summonses, and pleading amendments and for immediate taxation - Supreme Court (General Civil Procedure) Rules 2025 rr 63.17, 63.20, 63.20.1- Costs order limited to particular period - No order as to immediate taxation - Summons for costs - Costs in proceeding.
COSTS - First defendant made application seeking (1) transfer of the proceeding under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) and (2) that the Court decline to exercise jurisdiction - Both aspects of the application were dismissed - Extent to which the other defendants joined in any and what aspects of the application - Hearing earlier adjourned to permit, among other things, service of notices under s 78B of the Judiciary Act 1903 (Cth) and relevant written submissions by the plaintiff - Costs principles - Costs thrown away - Issue based costs orders - Stay - Thurin v Krongold Constructions (Aust) Pty Ltd (No 2) [2022] VSCA 252 considered - Orders made.
COSTS - First defendant made application seeking (1) transfer of the proceeding under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) and (2) that the Court decline to exercise jurisdiction - Both aspects of the application were dismissed - Extent to which the other defendants joined in any and what aspects of the application - Hearing earlier adjourned to permit, among other things, service of notices under s 78B of the Judiciary Act 1903 (Cth) and relevant written submissions by the plaintiff - Costs principles - Costs thrown away - Issue based costs orders - Stay - Thurin v Krongold Constructions (Aust) Pty Ltd (No 2) [2022] VSCA 252 considered - Orders made.
DEFAMATION - Validity of concerns notice - Serious financial loss - Whether imputations particularised - Defamation Act 2005, ss 10A, 12A, 12B - Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726.
DEFAMATION - Validity of concerns notice - Serious financial loss - Whether imputations particularised - Defamation Act 2005, ss 10A, 12A, 12B - Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726.
PRACTICE AND PROCEDURE - Appeal from determination of Judicial Registrar - Joinder - Amendment of pleadings - Property Law Act, s 172.
PRACTICE AND PROCEDURE - Appeal from determination of Judicial Registrar - Joinder - Amendment of pleadings - Property Law Act, s 172.
PRACTICE AND PROCEDURE - Costs orders in three related matters - Contempt application - Two appeals from VCAT - In one matter extension of time granted and appeal dismissed - In second matter appeal allowed and VCAT decision set aside - Whether usual order for costs appropriate in the circumstances - Claim for fixed costs by the Respondents - Whether the matters were a public interest matter - Costs awarded on standard basis taxed in default of agreement.
PRACTICE AND PROCEDURE - Costs orders in three related matters - Contempt application - Two appeals from VCAT - In one matter extension of time granted and appeal dismissed - In second matter appeal allowed and VCAT decision set aside - Whether usual order for costs appropriate in the circumstances - Claim for fixed costs by the Respondents - Whether the matters were a public interest matter - Costs awarded on standard basis taxed in default of agreement.
PRACTICE AND PROCEDURE - Alleged breach of r 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Where r 28.05 concerns inspection of documents and covers persons not party to a proceeding - Where no evidence that documents in question accessed under r 28.05 - Where reasonable inference that fourth respondent came into possession of documents as a party representative - Where documents not covered by order of Court that they remain confidential - No breach found - Summons dismissed.
PRACTICE AND PROCEDURE - Alleged breach of r 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Where r 28.05 concerns inspection of documents and covers persons not party to a proceeding - Where no evidence that documents in question accessed under r 28.05 - Where reasonable inference that fourth respondent came into possession of documents as a party representative - Where documents not covered by order of Court that they remain confidential - No breach found - Summons dismissed.
PRACTICE AND PROCEDURE - Disclosure of documents in separate but related proceedings - Where contempt allegations made against first respondent and others - Harman undertaking raised - Whether affidavit subject to the implied undertaking in Hearne v Street - Whether breach of implied undertaking - Where documents not of the character that would attract implied undertaking - Where affidavit filed voluntarily, not under court compulsion - Affidavit not subject to implied undertaking - Contempt not made out - Summons dismissed.
Harman v Secretary of State for the Home Department [1983] 1 AC 280; Hearne v Street (2008) 235 CLR 125; Davey v Silverstein [2019] VSC 724; Yap v Lee (No 2) [2024] VSC 730.
PRACTICE AND PROCEDURE - Allegation that confidential documents used in false and misleading way - Where information contained in documents not confidential in relevant sense - Where emails attaching documents set out basis for settlement of proceedings - Where nothing inappropriate or prohibited in such an offer being made - Where content may be matter of dispute but no basis for contempt - Summons dismissed.
PRACTICE AND PROCEDURE -Application by defendant for a separate determination of preliminary questions - R 47.04 of the Supreme Court (General and Civil Procedure) Rules 2025 - S 49 of the Civil Procedure Act 2010 - Pt IIA div 5 of the Limitations of Actions Act 1958 -application dismissed - Application for trial date to be vacated - Application dismissed.
PRACTICE AND PROCEDURE -Application by defendant for a separate determination of preliminary questions - R 47.04 of the Supreme Court (General and Civil Procedure) Rules 2025 - S 49 of the Civil Procedure Act 2010 - Pt IIA div 5 of the Limitations of Actions Act 1958 -application dismissed - Application for trial date to be vacated - Application dismissed.
PRACTICE AND PROCEDURE - Costs - Executor's application for costs from the estate of the deceased in circumstances where the application for executor's commission under s 65 of the Administration and Probate Act 1958 (Vic) was refused - Rule 10.10 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) - Rules 63.01 and 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application refused - Second plaintiff to bear own cost and to pay costs of the first plaintiff's costs of the second plaintiff's application for executor's commission on a standard basis without indemnity from the deceased's estate.
PRACTICE AND PROCEDURE - Costs - Executor's application for costs from the estate of the deceased in circumstances where the application for executor's commission under s 65 of the Administration and Probate Act 1958 (Vic) was refused - Rule 10.10 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) - Rules 63.01 and 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application refused - Second plaintiff to bear own cost and to pay costs of the first plaintiff's costs of the second plaintiff's application for executor's commission on a standard basis without indemnity from the deceased's estate.
PRACTICE AND PROCEDURE - First defendant's application for leave to amend their defence - Choice of laws - Explanation for delay - Leave granted - Aon Risk v ANU (2009) 239 CLR 175 - I.C. Formwork Services Pty Limited v Moir (No 2) (2020) 356 FLR 111.
PRACTICE AND PROCEDURE - First defendant's application for leave to amend their defence - Choice of laws - Explanation for delay - Leave granted - Aon Risk v ANU (2009) 239 CLR 175 - I.C. Formwork Services Pty Limited v Moir (No 2) (2020) 356 FLR 111.
PRACTICE AND PROCEDURE - Plaintiff's application that the first defendant lost legal client privilege - No inconsistency with maintenance of legal client privilege - Application rejected - Section 122(2) Evidence Act 2008 (Vic) - Osland v Secretary to the Department of Justice [2007] VSCA 96 - Mann v Carnell (1999) 201 CLR 1 - Viterra Malt Pty Ltd v Cargill Australia Ltd [2018] VSCA 118.
ADMINISTRATION AND PROBATE - TESTATOR'S FAMILY MAINTENANCE - Extension of time to bring application for provision under s 99 of the Administration and Probate Act 1958 (Vic) - Whether implied application for extension of time in originating motion - Alternatively, whether plaintiff should have leave to amend originating motion to seek extension of time - Green & Anor v Ellul & Ors [2018] SASCFC 100 considered and applied - Held: No implied application for extension of time made by Originating Motion - Application to amend originating motion dismissed - Summary judgment granted to defendant.
ADMINISTRATION AND PROBATE - TESTATOR'S FAMILY MAINTENANCE - Extension of time to bring application for provision under s 99 of the Administration and Probate Act 1958 (Vic) - Whether implied application for extension of time in originating motion - Alternatively, whether plaintiff should have leave to amend originating motion to seek extension of time - Green & Anor v Ellul & Ors [2018] SASCFC 100 considered and applied - Held: No implied application for extension of time made by Originating Motion - Application to amend originating motion dismissed - Summary judgment granted to defendant.
ENVIRONMENTAL LAW - Pecuniary penalty, adverse publicity order, compensation and ancillary orders sought for breach of environmental laws - Parties jointly sought the Court's approval of proposed consent orders - Parties provided joint submissions and agreed statement of facts - Defendant caused environmental damage by exceeding odour and leachate limits - Defendant complied with improvement actions and investments to reduce risk of similar incident - Insight and remorse demonstrated by defendant - Court satisfied to adopt joint submissions and proposed consent orders as basis of judgment - Court satisfied that the penalty was just and proportionate - Cooperation of the parties commended - Environment Protection Act 2017 (Vic) ss 25(1), 63(1).
ENVIRONMENTAL LAW - Pecuniary penalty, adverse publicity order, compensation and ancillary orders sought for breach of environmental laws - Parties jointly sought the Court's approval of proposed consent orders - Parties provided joint submissions and agreed statement of facts - Defendant caused environmental damage by exceeding odour and leachate limits - Defendant complied with improvement actions and investments to reduce risk of similar incident - Insight and remorse demonstrated by defendant - Court satisfied to adopt joint submissions and proposed consent orders as basis of judgment - Court satisfied that the penalty was just and proportionate - Cooperation of the parties commended - Environment Protection Act 2017 (Vic) ss 25(1), 63(1).
JUDICIAL REVIEW - Appeal from Magistrates' Court - Charge of 'sexual activity directed at another person' - Magistrate found unsolicited exposure of genitals via video did not constitute 'sexual activity' - Was Magistrate's order a final order; is Appeal Proceeding competent - Issues on appeal: what material may Court have consideration to in determining whether there was an error of law; was respondent's alleged conduct 'sexual activity'; Did the Magistrate err in finding no 'sexual activity' - Appeal allowed - Order of Magistrate set aside - Proceeding remitted to Magistrates' Court - Crimes Act 1958 (Vic) ss 35D, 37A, 37B, 48; Summary Offences Act 1966 (Vic) s 19; Criminal Procedure Act 2009 (Vic) s 272; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 56.
JUDICIAL REVIEW - Appeal from Magistrates' Court - Charge of 'sexual activity directed at another person' - Magistrate found unsolicited exposure of genitals via video did not constitute 'sexual activity' - Was Magistrate's order a final order; is Appeal Proceeding competent - Issues on appeal: what material may Court have consideration to in determining whether there was an error of law; was respondent's alleged conduct 'sexual activity'; Did the Magistrate err in finding no 'sexual activity' - Appeal allowed - Order of Magistrate set aside - Proceeding remitted to Magistrates' Court - Crimes Act 1958 (Vic) ss 35D, 37A, 37B, 48; Summary Offences Act 1966 (Vic) s 19; Criminal Procedure Act 2009 (Vic) s 272; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 56.
ADMINISTRATIVE LAW - Judicial Review - Appeal from Victorian Civil and Administrative Tribunal - Whether there was an error of law in statutory construction - Town planning - Repeat appeal - Decision to refuse to grant a permit - Non-residential use in residential zone - Wrong question or wrong test applied - Neighbourhood Residential Zone Schedule 3 (NRZ3) - Banyule Planning Scheme.
ADMINISTRATIVE LAW - Judicial Review - Appeal from Victorian Civil and Administrative Tribunal - Whether there was an error of law in statutory construction - Town planning - Repeat appeal - Decision to refuse to grant a permit - Non-residential use in residential zone - Wrong question or wrong test applied - Neighbourhood Residential Zone Schedule 3 (NRZ3) - Banyule Planning Scheme.
Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148; Planning and Environment Act 1987 (Vic).
ADMINISTRATIVE LAW - Judicial Review - Appeal from decision of Victorian Civil and Administrative Tribunal - Whether the Tribunal erred in statutory construction - Consideration of a jurisdictional question - Power to consider alternative use of land - Questions of law and fact - Dispute between developer and Wyndham City Council - Town planning - Generally in accordance principles - Precinct structure plan - Development Contributions Plan - Meaning of 'potential'.
ADMINISTRATIVE LAW - Judicial Review - Appeal from decision of Victorian Civil and Administrative Tribunal - Whether the Tribunal erred in statutory construction - Consideration of a jurisdictional question - Power to consider alternative use of land - Questions of law and fact - Dispute between developer and Wyndham City Council - Town planning - Generally in accordance principles - Precinct structure plan - Development Contributions Plan - Meaning of 'potential'.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under Residential Tenancies Act 1997 (Vic) - Application for extension of time - Extension of time granted - Where residential rental provider gave renter a notice of proposed rent increase under s 44(1) - Where renter believed notice to be invalid and asked VCAT to set it aside - Where renter's application included a request for compensation which was not maintained at the hearing - Where VCAT dismissed the application on the basis of having no jurisdiction to make the order sought - Whether VCAT had jurisdiction to hear an application for an ancillary order in the absence of an application for a substantive order - Where no jurisdiction to make such an order - Leave to appeal allowed - Appeal dismissed.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under Residential Tenancies Act 1997 (Vic) - Application for extension of time - Extension of time granted - Where residential rental provider gave renter a notice of proposed rent increase under s 44(1) - Where renter believed notice to be invalid and asked VCAT to set it aside - Where renter's application included a request for compensation which was not maintained at the hearing - Where VCAT dismissed the application on the basis of having no jurisdiction to make the order sought - Whether VCAT had jurisdiction to hear an application for an ancillary order in the absence of an application for a substantive order - Where no jurisdiction to make such an order - Leave to appeal allowed - Appeal dismissed.
Residential Tenancies Act 1997 (Vic), ss 44, 45, 46, 452, 472; Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 124, 148; Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic), r 4.08.
Victoria v Bradto [2006] VCAT 1864; Xiao v Perpetual Trustee Company Ltd [2009] V ConvR 54-756; [2008] VSC 412; Kracke v Mental Health Review Board [2009] VCAT 646; Casa Di Iorio Investments Pty Ltd v Guirguis [2017] VSC 266; Rosewarne v Lim [2022] VCAT 1015.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under the Residential Tenancies Act 1997 (Vic) - Application to set aside VCAT decision ordering possession - Where residential rental provider gave renter a notice to vacate under s 91ZZB (premises to be sold) - Whether mandatory documentary evidence supporting the notice was valid - Whether redaction of time period on exclusive sale authority invalidated the authority, thereby invalidating the notice to vacate - Where no explanation provided for the redaction - Redaction affected the transparency of the authority - Authority found to be defective, therefore validity of notice impacted - Invalid notice - Leave to appeal allowed - Order for possession set aside - Appeal dismissed.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under the Residential Tenancies Act 1997 (Vic) - Application to set aside VCAT decision ordering possession - Where residential rental provider gave renter a notice to vacate under s 91ZZB (premises to be sold) - Whether mandatory documentary evidence supporting the notice was valid - Whether redaction of time period on exclusive sale authority invalidated the authority, thereby invalidating the notice to vacate - Where no explanation provided for the redaction - Redaction affected the transparency of the authority - Authority found to be defective, therefore validity of notice impacted - Invalid notice - Leave to appeal allowed - Order for possession set aside - Appeal dismissed.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under the Residential Tenancies Act 1997 (Vic) - Application to set aside VCAT decision ordering possession - Where residential rental provider gave renter a notice to vacate under s 91ZZB (premises to be sold) - Whether it was reasonable and proportionate for VCAT to make an order for possession - Whether residential rental provider had a genuine intention to sell the property - Whether previous attempts to gain possession for the same reason constituted retaliation in response to repeated repair and related applications made by the renter - Where rent was being paid into a rent special account - Whether Tribunal failed to take into account impact on renter, as required by s 330(1(f) of the Act - Whether Tribunal actively engaged with renter's submissions concerning the impact of a possession order upon her - Whether Tribunal placed greater emphasis upon unsubstantiated evidence provided by the residential rental provider, at the same time discounting evidence provided by the renter - Whether renter given a reasonable opportunity to present her evidence and make submissions - Whether procedural fairness - Renter not given fair hearing - Leave to appeal allowed - Order for possession set aside - Appeal dismissed.
Residential Tenancies Act 1997 (Vic), ss 77, 91ZZB, 91ZZO, 91ZZS, 322(1), 330, 330A, 486A(1); Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 97-98, 148(1), 148(7)(b).
Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439; Gombac Group Pty Ltd v Vero Insurance Ltd [2005] VSC 442; Dura (Australia) Constructions Pty Ltd v SC Land Richmond Pty Ltd (Domestic Building) [2006] VCAT 2120; Tomasevic v Travaglini [2007] VSC 337; Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd [2008] VCAT 1479; Metricon Homes Pty Ltd v Sawyer [2013] VSC 518; Shrestha v Migration Review Tribunal (2015) 229 FCR 301; Trkulja v Markovic [2015] VSCA 298; SZVCP v Minister for Immigration and Border Protection (2016) 238 FCR 15; LKZ v CGS (Residential Tenancies) [2021] VCAT 1391; Hanson v Director of Housing [2022] VSC 710; Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; Kao v Mazi (Residential Tenancies) [2024] VCAT 1179; Moustra v Elder [2024] VCAT 813.
ADMINISTRATIVE LAW - Application for leave to appeal from orders of the Victorian Civil and Administrative Tribunal affirming a decision of Registrar of Births, Deaths and Marriages to cancel registration of a relationship - Whether Senior Member erred in interpreting the requirement that a person in the relationship 'lives in the State' - Whether applicant denied natural justice - Unreasonableness - Whether Senior Member failed to have regard to presumption of regularity - Power to amend register of relationships -Relationships Act 2008 ss 6, 7, 18, 19 - Application for leave to appeal dismissed.
ADMINISTRATIVE LAW - Application for leave to appeal from orders of the Victorian Civil and Administrative Tribunal affirming a decision of Registrar of Births, Deaths and Marriages to cancel registration of a relationship - Whether Senior Member erred in interpreting the requirement that a person in the relationship 'lives in the State' - Whether applicant denied natural justice - Unreasonableness - Whether Senior Member failed to have regard to presumption of regularity - Power to amend register of relationships -Relationships Act 2008 ss 6, 7, 18, 19 - Application for leave to appeal dismissed.
ALLEGED BREACH OF TRUST BY TRUSTEE OF UNIT TRUST - Alleged breach of trust by trustee of unit trust - Plaintiff unit holder required to subscribe cash for units - Other unit holders allocated far larger numbers of units without cash subscription - Breach of trustee's duty to act impartially between beneficiaries - No disclosure to cash subscribing unit holders of the numbers of units allocated without cash subscription or the identity of the unit holders - Further breach of trust by trustee in raising money against trust estate to "cash out" a unit holder which made no initial subscription of cash with distribution made against only 30 per cent of value of subscription constituted by undistributed profits - Director of unit trust company liable as having knowingly assisted breaches of trust - Tracing distributions in breach of trust used to pay down mortgages on the matrimonial homes of director's son and daughter and son-in-law, and director's matrimonial home - No tracing through overdrawn accounts - Tracing claim fails - No claim against children and son-in-law "in personam" because distribution "spent" immediately when paid into overdrawn mortgage account - Director's wife a knowing participant - No declaration of constructive trust relative to voluntary transfer to her of Director's share in matrimonial home - Not established that subject matter of transfer constituted traceable proceeds of the breach of trust - Payments in relief of mortgage on director's home not capable of being traced through overdrawn account.
ALLEGED BREACH OF TRUST BY TRUSTEE OF UNIT TRUST - Alleged breach of trust by trustee of unit trust - Plaintiff unit holder required to subscribe cash for units - Other unit holders allocated far larger numbers of units without cash subscription - Breach of trustee's duty to act impartially between beneficiaries - No disclosure to cash subscribing unit holders of the numbers of units allocated without cash subscription or the identity of the unit holders - Further breach of trust by trustee in raising money against trust estate to "cash out" a unit holder which made no initial subscription of cash with distribution made against only 30 per cent of value of subscription constituted by undistributed profits - Director of unit trust company liable as having knowingly assisted breaches of trust - Tracing distributions in breach of trust used to pay down mortgages on the matrimonial homes of director's son and daughter and son-in-law, and director's matrimonial home - No tracing through overdrawn accounts - Tracing claim fails - No claim against children and son-in-law "in personam" because distribution "spent" immediately when paid into overdrawn mortgage account - Director's wife a knowing participant - No declaration of constructive trust relative to voluntary transfer to her of Director's share in matrimonial home - Not established that subject matter of transfer constituted traceable proceeds of the breach of trust - Payments in relief of mortgage on director's home not capable of being traced through overdrawn account.
CONTRACT - RECEIVERSHIP - Claim for specific performance - Whether the parties intended to enter into a legally binding contract by signing an exit agreement to sell a half share of a property held in partnership - Relevance of post signature conduct - Whether damages be an appropriate remedy - Should the partnership be wound up and a receiver appointed.
CONTRACT - RECEIVERSHIP - Claim for specific performance - Whether the parties intended to enter into a legally binding contract by signing an exit agreement to sell a half share of a property held in partnership - Relevance of post signature conduct - Whether damages be an appropriate remedy - Should the partnership be wound up and a receiver appointed.