EVIDENCE - Onus of proof - Trustee held units in unit trust in 2008 - Onus lay on applicant to prove that trustee still held units in 2019 - Evidence that units transferred from trustee in 2014 - Evidence included memorandum of resolutions approving transfer - Judge determined applicant failed to establish trustee did not transfer units in 2014 - Whether judge imposed incorrect onus - Judge's analysis reflected application of Corporations Act 2001 (Cth), s 251A(6) - Evidence of transfer stood in way of finding sought by applicant - Judge's conclusion reflecting that applicant failed to shift obstacle - No impermissible onus in judge's conclusion.
EVIDENCE - Onus of proof - Trustee held units in unit trust in 2008 - Onus lay on applicant to prove that trustee still held units in 2019 - Evidence that units transferred from trustee in 2014 - Evidence included memorandum of resolutions approving transfer - Judge determined applicant failed to establish trustee did not transfer units in 2014 - Whether judge imposed incorrect onus - Judge's analysis reflected application of Corporations Act 2001 (Cth), s 251A(6) - Evidence of transfer stood in way of finding sought by applicant - Judge's conclusion reflecting that applicant failed to shift obstacle - No impermissible onus in judge's conclusion.
EVIDENCE - Proof - Onus of proof - Judge found principal witnesses dishonest and unreliable - Parties relied on evidence given by each other in preference to own evidence - Judge made no finding as to particular factual controversy - Whether open to decide issue without resolving factual controversy on basis onus of proof not discharged - Unsatisfactory state of evidence justified judge's approach - No error shown - Leave to appeal refused.
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; In re B [2009] AC 11; Trustees of the Christian Brothers v DZY (a pseudonym) [2024] VSCA 73; Eumeralla Estate Pty Ltd v Chen [2022] VSCA 78; Rhesa Shipping Co SA v Edmunds [1985] 2 All ER 712; Murray v Murray (1960) 33 ALJR 521, referred to; Ryan v Trustees Executors and Agency Co Ltd (1937) 10 ALJ 461, distinguished.
WILLS AND ESTATES - Mutual wills agreement - Husband and wife made wills in substantially mirror form leaving estate to survivor or if no survivor to respondents being children of husband - Husband's will less favourable to respondents than prior will - Wife made five subsequent wills leaving increasingly generous dispositions to applicants - Husband not consenting to subsequent wills - Husband predeceasing wife - Whether judge erred in finding husband and wife intended to be bound by mutual wills agreement - Respondents testified to meeting with husband and wife who described testamentary arrangements and mutual wills agreement - Wider context supporting testimony - Not in issue that husband considered agreement binding - Judge's finding correct.
WILLS AND ESTATES - Mutual wills agreement - Husband and wife made wills in substantially mirror form leaving estate to survivor or if no survivor to respondents being children of husband - Husband's will less favourable to respondents than prior will - Wife made five subsequent wills leaving increasingly generous dispositions to applicants - Husband not consenting to subsequent wills - Husband predeceasing wife - Whether judge erred in finding husband and wife intended to be bound by mutual wills agreement - Respondents testified to meeting with husband and wife who described testamentary arrangements and mutual wills agreement - Wider context supporting testimony - Not in issue that husband considered agreement binding - Judge's finding correct.
TRUSTS - Tracing - Aunt inherited share of residuary estate with life interest in income and capital sum passing to applicants upon her death - Expert evidence showing capital sum growing to $900,000 if invested in mixed investment portfolio - No evidence how capital sum treated - Applicants argued aunt mixed trust property with own property - Judge could not exclude possibility capital sum held in term deposit - Judge found no basis for tracing to specific assets - Whether basis for tracing to mixed assets in aunt's estate upon principle that where fiduciary mixes trust property with their own whole is treated as trust property - Mixed assets in aunt's estate $1,136,099 - Subject property capable of pro rata division - No basis for remedy in excess of capital sum - No error in judge rejecting tracing claim.
APPEAL - New point on appeal - Claim for equitable compensation or constructive trust arising from various breaches not advanced at trial - Resolution of claim requiring consideration of factual issues and expert evidence - Not expedient in interests of justice to permit claim to be raised on appeal.
COSTS - Order for costs to be paid out of estate - Whether error in judge's order - Probate rule justifying costs out of estate where testator cause of litigation - Testator's conduct may be relevant to costs discretion in non-probate cases - Open for judge to treat controversy as other than ordinary adversarial litigation between beneficiaries - Relevant to consider whether defendants acted reasonably in conducting litigation - Relevant to consider size of estate - No error in judge's approach.
APPEALS - Costs - Leave to appeal - Exceptional to grant leave to appeal costs orders - Matters of general principle - Specific kind of costs order - Leave appropriate unless no real prospect of success - Leave to appeal granted.
Birmingham v Renfrew (1937) 57 CLR 666; Fox v Percy (2003) 214 CLR 118; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679; Lee v Lee (2019) 266 CLR 129; Mantovani v Vanta Pty Ltd [No 3] [2022] VSC 357, referred to; Re Goodchild, deceased [1997] 1 WLR 1216; Shovelar v Lane [2012] 1 WLR 637, explained; Foskett v McKeown [2001] 1 AC 102; Toksoz v Westpac Banking Corporation (2012) 289 ALR 577, distinguished; Re Buckton [1907] 2 Ch 406, considered; Sambucco v Sambucco (2023) 72 VR 121, applied.
EMPLOYMENT - Sale of dentistry practice - Director of corporate vendor retained as dentist and manager of dentistry practice under services agreement - Services agreement operated during period where dentistry practice required to meet annual earnings targets for vendor to receive final tranches of purchase price - Whether director of vendor was employee or independent contractor when managing dentistry practice during this period - Terms of services agreement did not establish an employment relationship - Commercial context and purpose of services agreement relevant - Leave to appeal granted - Appeal allowed.
EMPLOYMENT - Sale of dentistry practice - Director of corporate vendor retained as dentist and manager of dentistry practice under services agreement - Services agreement operated during period where dentistry practice required to meet annual earnings targets for vendor to receive final tranches of purchase price - Whether director of vendor was employee or independent contractor when managing dentistry practice during this period - Terms of services agreement did not establish an employment relationship - Commercial context and purpose of services agreement relevant - Leave to appeal granted - Appeal allowed.
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165; ZG Operations Australia Pty Ltd v Jamsek (2022) 275 CLR 254; Rinehart v Hancock Prospecting Pty Ltd (2019) 267 CLR 514; Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16.
CONTRACT - Sale of dentistry practice - Contract provided for purchase price to be paid by an upfront payment and two tranches, with each of the tranches dependent on dentistry practice meeting an annual earnings target - Expenses not arising in the ordinary course of business of the dentistry practice to be excluded in calculating earnings of practice for purpose of annual earnings target - Whether amount of money received in fees paid by patients at the practice but not banked by the practice was an expense arising in ordinary course of business of the practice - No error by judge in concluding that unbanked money was such an expense.
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104.
COSTS - No order as to costs - Consolidated proceeding - Consolidation of proceeding involving commercial dispute between two corporate entities and proceeding in which director of one corporate entity sought relief under the Fair Work Act 2009 (Cth) from other corporate entity - Trial judge applied s 570 of Fair Work Act 2009 (Cth) to consolidated proceeding - No error by trial judge in applying s 570 - Trial judge declined to order costs under s 570(2)(b) because refusal of offers of compromise was not unreasonable - No error by trial judge.
Fair Work Act 2009 (Cth), s 570.
Joseph v Parnell Corporate Services Pty Ltd (2021) 284 FCR 546; Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221; O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356.
PRACTICE AND PROCEDURE - Jurisdiction - Cross-vesting - Special federal matter - Whether special reasons exist to not transfer proceedings to Federal Court - Significant court time, public expense and delay constitute special reasons - Order made under s 6(3) of Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).
Fair Work Act 2009 (Cth), s 565; Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), ss 3, 6.
Palmer v Ayres (2017) 259 CLR 478; Re Wakim; Ex parte McNally (1999) 198 CLR 511; Fencott v Muller (1983) 152 CLR 570; Krongold Constructions (Aust) Pty Ltd v Thurin (2023) 414 ALR 1; Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174; NEC Information Systems Australia Pty Ltd v Lockhart (1992) 36 FCR 258; Huynh v Attorney- General (NSW) (2023) 112 NSWLR 149.
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 - 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 - 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.
CRIMINAL LAW - Appeal - Conviction - Applicant convicted of manslaughter - Death at cannabis factory in which applicant previously employed - Applicant pleaded guilty to cultivating commercial quantity of cannabis before jury panel - Deliberateness of stab wound causing death major issue in trial - Whether failure to seek a good character direction in a particular respect as to absence of convictions for violence was rational forensic decision - Whether failure to seek good character in a particular respect direction caused a substantial miscarriage of justice - Application for extension of time in which to seek leave to appeal granted - Leave to appeal granted - Appeal allowed - Retrial ordered.
CRIMINAL LAW - Appeal - Conviction - Applicant convicted of manslaughter - Death at cannabis factory in which applicant previously employed - Applicant pleaded guilty to cultivating commercial quantity of cannabis before jury panel - Deliberateness of stab wound causing death major issue in trial - Whether failure to seek a good character direction in a particular respect as to absence of convictions for violence was rational forensic decision - Whether failure to seek good character in a particular respect direction caused a substantial miscarriage of justice - Application for extension of time in which to seek leave to appeal granted - Leave to appeal granted - Appeal allowed - Retrial ordered.
Evidence Act 2008, s 110; Jury Directions Act 2015, ss 12, 14, 16.
Madafferi v The Queen [2017] VSCA 302; TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, followed.
Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319; Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32; Saw Wah v The Queen [2014] VSCA 7; (2014) 45 VR 440, discussed.
CRIMINAL LAW - Appeal - Sexual penetration of child under the age of 16 years - Whether guilty verdict unreasonable or cannot be supported having regard to evidence - Whether Crown proved absence of reasonable belief that complainant aged 16 years or older - Appeal allowed - Acquittal entered - Crimes Act 1958, s 45(4)(a).
CRIMINAL LAW - Appeal - Sexual penetration of child under the age of 16 years - Whether guilty verdict unreasonable or cannot be supported having regard to evidence - Whether Crown proved absence of reasonable belief that complainant aged 16 years or older - Appeal allowed - Acquittal entered - Crimes Act 1958, s 45(4)(a).
M v The Queen (1994) 181 CLR 487, applied.
CRIMINAL LAW - Application for leave to appeal sentence - Indecent act with a child under 16 - Incest and attempted incest - Whether error in application of principles for sentencing person who was a child at time of offending - Whether error in sentencing judge's assessment of remorse component of guilty plea - Whether undue weight given to victim impact statement - Whether sentences manifestly excessive - No error found - Leave to appeal refused.
CRIMINAL LAW - Application for leave to appeal sentence - Indecent act with a child under 16 - Incest and attempted incest - Whether error in application of principles for sentencing person who was a child at time of offending - Whether error in sentencing judge's assessment of remorse component of guilty plea - Whether undue weight given to victim impact statement - Whether sentences manifestly excessive - No error found - Leave to appeal refused.
Sentencing Act 1991, ss 5(2), 8K.
R v PJP (2007) 17 VR 300, discussed.
Barbaro v The Queen; Zirilli v The Queen (2012) 226 A Crim R 354; Gray (a pseudonym) v The Queen [2018] VSCA 163; Clarkson v The Queen (2011) 32 VR 361, applied.
CRIMINAL LAW - Sentence - Appeal - Trafficking - Possess drug of dependence - Handle stolen goods - Prohibited person possess firearm - Possess explosive substance without excuse - Knowingly deal with proceeds of crime - Total effective sentence 5 years - Non-parole period 3 years 4 months - Whether error in sentencing applicant on basis of a 'continuing business' of drug trafficking where sentenced to trafficking on a simpliciter basis confined to a single date - Whether sentence manifestly excessive - Where total cumulation did not reflect degree of overlap between factors relevant both to both trafficking and individual charges.
CRIMINAL LAW - Sentence - Appeal - Trafficking - Possess drug of dependence - Handle stolen goods - Prohibited person possess firearm - Possess explosive substance without excuse - Knowingly deal with proceeds of crime - Total effective sentence 5 years - Non-parole period 3 years 4 months - Whether error in sentencing applicant on basis of a 'continuing business' of drug trafficking where sentenced to trafficking on a simpliciter basis confined to a single date - Whether sentence manifestly excessive - Where total cumulation did not reflect degree of overlap between factors relevant both to both trafficking and individual charges.
R v Giretti (1986) 24 A Crim R 112; R v De Simoni (1981) 147 CLR 383; Lago v The Queen [2015] NSWCCA 296; Kelly v The Queen [2018] NSWCCA 44, considered.
CRIMINAL LAW - Appeal - Sentence - Import commercial quantity of border controlled drug - Post-sentence diagnosis of terminal cancer - Short life expectancy - Fresh evidence - Mercy - Leave to appeal granted - Appeal allowed - Non-parole period of 396 days fixed.
CRIMINAL LAW - Appeal - Sentence - Import commercial quantity of border controlled drug - Post-sentence diagnosis of terminal cancer - Short life expectancy - Fresh evidence - Mercy - Leave to appeal granted - Appeal allowed - Non-parole period of 396 days fixed.
Ale v The King [2025] VSCA 92; R v Nguyen [2006] VSCA 184; DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; R v Shrestha (1991) 173 CLR 48, considered.
Price (a pseudonym) v The Queen [2018] VSCA 54; Cavanagh v the Queen [2016] VSCA 305; Ridge v The Queen [2013] VSCA 203; Cardona v the Queen [2011] VSCA 58, followed.
CRIMINAL LAW - Appeal - Conviction - Rape - Five charges involving one complainant in the course of one incident - Jury convicted applicant on three charges and acquitted him of two - Whether verdicts inconsistent - Guilty verdicts capable of being reconciled with not guilty verdicts - Appeal dismissed.
CRIMINAL LAW - Appeal - Conviction - Rape - Five charges involving one complainant in the course of one incident - Jury convicted applicant on three charges and acquitted him of two - Whether verdicts inconsistent - Guilty verdicts capable of being reconciled with not guilty verdicts - Appeal dismissed.
CRIMINAL LAW - Appeal - Conviction - Rape - Whether guilty verdicts unreasonable or not able to be supported having regard to the evidence - Whether evidence of complainant contained so many untruths, discrepancies and inadequacies that no jury acting rationally could have been satisfied beyond reasonable doubt as to applicant's guilt - Open to jury to be satisfied beyond reasonable doubt - Appeal dismissed.
Pell v The Queen (2020) 268 CLR 123; M v The Queen (1994) 181 CLR 487; Pears v The King [2025] VSCA 35; MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; Booth v The King [2024] VSCA 318, applied.
CRIMINAL LAW - Conviction - Applicant convicted of three charges of resist emergency worker on duty - Applicant acquitted of assault emergency worker 'on duty' - Whether police 'on duty' - Police arrest of applicant - Whether arrest lawful - Whether police believed on reasonable grounds that applicant guilty of offence of assault - Whether jury directed sufficiently concerning lawfulness of applicant's arrest - Whether open to jury to find applicant's arrest lawful - Directions insufficient - Not open to jury to find arrest of applicant lawful - Appeal allowed - Applicant acquitted.
CRIMINAL LAW - Conviction - Applicant convicted of three charges of resist emergency worker on duty - Applicant acquitted of assault emergency worker 'on duty' - Whether police 'on duty' - Police arrest of applicant - Whether arrest lawful - Whether police believed on reasonable grounds that applicant guilty of offence of assault - Whether jury directed sufficiently concerning lawfulness of applicant's arrest - Whether open to jury to find applicant's arrest lawful - Directions insufficient - Not open to jury to find arrest of applicant lawful - Appeal allowed - Applicant acquitted.
Crimes Act 1958, ss 31(1)(b) & (2), 458, 462, 462A, 459; Jury Directions Act 2015, ss 11(b)(i), 12, 13, 14 & 15; Road Safety Act 1986, s 16.
M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123, applied.
CRIMINAL LAW - Appeal - Conviction - Sexual offences against child under 16 - Victim applicant's stepdaughter - Evidence of good character - Whether failure by defence counsel to adduce evidence of applicant's lack of prior and subsequent sexual offending capable of explanation as rational forensic decision - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Sexual offences against child under 16 - Victim applicant's stepdaughter - Evidence of good character - Whether failure by defence counsel to adduce evidence of applicant's lack of prior and subsequent sexual offending capable of explanation as rational forensic decision - Leave to appeal refused.
Evidence Act 2008, s 110.
Baker (a pseudonym) v The King [2024] VSCA 87; Parsons (a pseudonym) v The Queen [2016] VSCA 17; Schmidt v The King [2024] VSCA 256.
CRIMINAL LAW - Appeal - Conviction - Evidence of incriminating conduct - Whether prosecutor impermissibly relied on evidence of incriminating conduct - Leave to appeal granted - Appeal allowed.
Jury Directions Act 2015, ss 18, 19, 20, 21, 22.
Hussain v The King [2024] VSCA 288; Director of Public Prosecutions v Lynn [2024] VSCA 62; Pompei v The King [2023] VSCA 71.
CRIMINAL LAW - Appeal - Conviction - Proof beyond reasonable doubt - Direction that reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility - Whether direction inconsistent with Criminal Code (Cth) and Constitution - Farshchi v The King [2024] VSCA 235 applied - Leave to appeal refused.
Jury Directions Act 2015, s 64; Criminal Code (Cth), s 13.2; Constitution, s 80.
Farshchi v The King [2024] VSCA 235.
CRIMINAL LAW - Conviction - Appeal - Substantial miscarriage of justice - Applicant made admission to police prior to being cautioned - Whether trial counsel should have objected to admission being used in evidence - Whether applicant bound by conduct of trial counsel - Whether Liberato direction should have been given to jury - Leave to appeal granted - Appeal dismissed.
CRIMINAL LAW - Conviction - Appeal - Substantial miscarriage of justice - Applicant made admission to police prior to being cautioned - Whether trial counsel should have objected to admission being used in evidence - Whether applicant bound by conduct of trial counsel - Whether Liberato direction should have been given to jury - Leave to appeal granted - Appeal dismissed.
Saricayir v The Queen [2018] VSCA 319; Frendo v The Queen [2024] VSCA 319; Liberato v The Queen (1985) 159 CLR 507; De Silva v The Queen (2019) 268 CLR 57, applied.
Jury Directions Act 2015, ss 15, 16.
EVIDENCE - Admissions - Appeal - Police told applicant to get on the ground and asked whether he stabbed the complainant before cautioning - Police formally arrested applicant after applicant made admission - Whether applicant in company of investigating official for purpose of being questioned under s 139(5) of the Evidence Act 2008 - Whether applicant in custody suspected of having committed an offence under s 464A of the Crimes Act 1958 - Leave to appeal granted - Appeal dismissed.
R v Naa (2009) 76 NSWLR 271; George v Rockett (1990) 170 CLR 104 applied; Severino v The Queen [2017] NSWCCA 80 distinguished.
Evidence Act 2008, ss 138(1)(a), 139(1), 139(5).
Crimes Act 1958, ss 458, 459, 464(1), 464A(2), (3).
CRIMINAL LAW - Appeal - Conviction - Multiple offences of burglary and theft - Whether prosecution could prove applicant's involvement in any of the offending - Use of coincidence evidence - Whether judge erred in finding coincidence evidence was significantly probative - Whether use of coincidence evidence occasioned unfair prejudice - No error established - Application for extension of time in which to seek leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Multiple offences of burglary and theft - Whether prosecution could prove applicant's involvement in any of the offending - Use of coincidence evidence - Whether judge erred in finding coincidence evidence was significantly probative - Whether use of coincidence evidence occasioned unfair prejudice - No error established - Application for extension of time in which to seek leave to appeal refused.
Evidence Act 2008, ss 98, 101.
CGL v DPP (2010) 24 VR 486, followed.
PG v The Queen [2010] VSCA 289; CW v The Queen [2010] VSCA 288; R v Dupas (No 2) (2005) 12 VR 601; Pfennig v The Queen (1995) 182 CLR 461, referred to.
CRIMINAL LAW - Appeal - Sentence - Whether 3 years and 9 months' sentence for attempted aggravated burglary manifestly excessive - Extensive and relevant prior criminal history - On bail at time of offence - Serious example of serious offence - Sentence not manifestly excessive - Application for extension of time in which to seek leave to appeal refused.
DPP v Meyers (2014) 44 VR 486; Clarkson v The Queen (2011) 32 VR 361, referred to.
COURTS AND JUDGES - Disqualification of judge - Reasonable apprehension of bias - Whether public comments made by judge prior to appointment warrant recusal - Whether past professional business association warrants recusal - Relevant principles considered - No reasonable apprehension of bias - Nonetheless prudent not to sit - Recusal of judge - Fuller v Fletcher Building Limited [2024] VSC 712; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; Gaudie v Local Court (NSW) (2013) 235 A Crim R 98; Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451; NTD8 v Australian Crime Commission (2008) 249 ALR 559; Smits v Roach (2006) 227 CLR 423 considered.
COURTS AND JUDGES - Disqualification of judge - Reasonable apprehension of bias - Whether public comments made by judge prior to appointment warrant recusal - Whether past professional business association warrants recusal - Relevant principles considered - No reasonable apprehension of bias - Nonetheless prudent not to sit - Recusal of judge - Fuller v Fletcher Building Limited [2024] VSC 712; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; Gaudie v Local Court (NSW) (2013) 235 A Crim R 98; Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451; NTD8 v Australian Crime Commission (2008) 249 ALR 559; Smits v Roach (2006) 227 CLR 423 considered.
REPRESENTATIVE PROCEEDINGS - Part 4A Group proceeding - Application for approval of settlement - Whether settlement fair and reasonable as between the parties and as between group members - Shareholder class action - Alleged breach of continuous disclosure obligations over a 5.5 year period - Two defendants - The company and its auditors - Defences raised proportionate liability issues - Cross claims and third party claims between defendants - Financial circumstances of the company - Settlement involves all parties - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, ss 33V, 33ZF - Botsman v Bolitho [2018] VSCA 278, applied.
REPRESENTATIVE PROCEEDINGS - Part 4A Group proceeding - Application for approval of settlement - Whether settlement fair and reasonable as between the parties and as between group members - Shareholder class action - Alleged breach of continuous disclosure obligations over a 5.5 year period - Two defendants - The company and its auditors - Defences raised proportionate liability issues - Cross claims and third party claims between defendants - Financial circumstances of the company - Settlement involves all parties - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, ss 33V, 33ZF - Botsman v Bolitho [2018] VSCA 278, applied.
PRACTICE AND PROCEDURE - Part 4A Group proceeding - Application for approval of settlement - Soft class closure order - Proceeding settled at mediation - Applications for late registration to permit participation in the settlement - Andrianakis v Uber Technologies Inc and Others (Settlement Approval) [2024] VSC 733, applied.
PRACTICE AND PROCEDURE - Part 4A Group proceeding - Appointment of Scheme Administrator - Approval for payment of costs of administering settlement distribution scheme.
PRACTICE AND PROCEDURE - Part 4A Group proceeding - Approval for payment of legal costs from settlement sum - No reason to vary group costs order - Supreme Court Act 1986 (Vic) Part 4A, 33ZDA - Allen v G8 Education Ltd (No 4) [2024] VSC 487, applied.
CORPORATIONS - Earlier declarations and orders for the payment of a pecuniary penalty in Federal Court proceedings between ASIC and the first defendant - Contravening conduct occurred during part of the claim period in this proceeding and in respect of the same subject matter - Plaintiffs in this proceeding intervened in their representative capacity in the Federal Court proceeding - Pecuniary penalty ordered to be paid into the Federal Court subject to further order - Statement of agreed facts in this proceeding as between the plaintiffs and first defendant mirrors facts agreed in the Federal Court proceeding between ASIC and the first defendant - Declarations and orders made in this proceeding on the basis of the agreed facts to facilitate the potential payment of compensation by the Federal Court to group members whose claims relate to the same period as the contravening conduct - Corporations Act 2001 (Cth) ss 674, 1317HA, 1317QF - ASIC v Noumi Limited (No 3) [2024] FCA 862 referred to.
CONTRACTS - Plaintiffs seek to enforce loan agreements and guarantees where no repayments had been made - Non-fulfilment of condition precedent - Whether condition is a condition precedent to formation or instead to performance - Waiver - Whether requirement for waiver to be in writing can itself be waived - Non-compliance with some procedural requirements - Whether payments made by plaintiffs were made pursuant to the loan agreements - Whether borrowers were in default at time plaintiffs sought repayment - If payments not made pursuant to loan agreements, whether restitution claim arises - Commonwealth v Verwayen (1990) 170 CLR 394 - Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2017] QSC 85 - Canberra Advance Bank Ltd v Benny (1991) 115 ALR 207 - Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537.
CONTRACTS - Plaintiffs seek to enforce loan agreements and guarantees where no repayments had been made - Non-fulfilment of condition precedent - Whether condition is a condition precedent to formation or instead to performance - Waiver - Whether requirement for waiver to be in writing can itself be waived - Non-compliance with some procedural requirements - Whether payments made by plaintiffs were made pursuant to the loan agreements - Whether borrowers were in default at time plaintiffs sought repayment - If payments not made pursuant to loan agreements, whether restitution claim arises - Commonwealth v Verwayen (1990) 170 CLR 394 - Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2017] QSC 85 - Canberra Advance Bank Ltd v Benny (1991) 115 ALR 207 - Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537.
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.
PRACTICE AND PROCEDURE - Application for summary enforcement of a settlement agreement to resolve an application for contempt of court in the proceeding - Roberts v Gippsland Agricultural & Earth Moving Contracting Co Pty Ltd [1956] VLR 555 applied - Court must be satisfied justice can be done via summary procedure - Seachange Management Pty Ltd v Pital Business Pty Ltd (2009) 23 VR 396 applied - Bell v Knight 34 Langdon Road Pty Ltd [2022] VSC 497 applied - Application granted.
PRACTICE AND PROCEDURE - Application for summary enforcement of a settlement agreement to resolve an application for contempt of court in the proceeding - Roberts v Gippsland Agricultural & Earth Moving Contracting Co Pty Ltd [1956] VLR 555 applied - Court must be satisfied justice can be done via summary procedure - Seachange Management Pty Ltd v Pital Business Pty Ltd (2009) 23 VR 396 applied - Bell v Knight 34 Langdon Road Pty Ltd [2022] VSC 497 applied - Application granted.
SETTLEMENT AGREEMENT - Whether term should be implied into settlement agreement to effect that payment of specified sum not required - BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 applied - Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337.
PRACTICE AND PROCEDURE - Application by plaintiff for leave to discontinue the proceeding - Proper test - Discontinuance has no unfair, unreasonable or adverse consequence for group members - Leave granted - Consequence of discontinuance for suspension of limitation periods - Requirement for notice to group members dispensed with - Supreme Court Act 1986 (Vic) ss 33X, 33V.
PRACTICE AND PROCEDURE - Application by plaintiff for leave to discontinue the proceeding - Proper test - Discontinuance has no unfair, unreasonable or adverse consequence for group members - Leave granted - Consequence of discontinuance for suspension of limitation periods - Requirement for notice to group members dispensed with - Supreme Court Act 1986 (Vic) ss 33X, 33V.
PRACTICE AND PROCEDURE - Group proceeding - Application for approval of settlement of group proceeding - Whether terms of settlement fair and reasonable - Whether settlement distribution scheme fair and reasonable - Whether claim for legal fees and disbursements fair and reasonable - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, ss 33V, 33ZF - Legal Profession Uniform Law s 182.
PRACTICE AND PROCEDURE - Group proceeding - Application for approval of settlement of group proceeding - Whether terms of settlement fair and reasonable - Whether settlement distribution scheme fair and reasonable - Whether claim for legal fees and disbursements fair and reasonable - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, ss 33V, 33ZF - Legal Profession Uniform Law s 182.
PRACTICE AND PROCEDURE - Application by eight unregistered group members for leave to participate in the settlement - Adequacy of reasons for failure to register claims by registration deadline - Two applications by unregistered group members granted.
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, 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 (No2) [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, 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 (No2) [2013] FCA 234.
CORPORATIONS - Winding up in insolvency - Six-month period for determination of application - Period expired before application determined - No winding up order made - Whether the period for determination of application is to be extended under slip rule - Hrycenko v Hrycenko (2022) 294 FCR 233 referred to - Donchiod Pt Ltd (In Liq) v Merrion B Pty Ltd (2024) 74 VR 430 applied - Corporations Act 2001 (Cth), s 459R - Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 36.07 - Finding that the period under s 459R is to be extended under slip rule.
CORPORATIONS - Winding up in insolvency - Six-month period for determination of application - Period expired before application determined - No winding up order made - Whether the period for determination of application is to be extended under slip rule - Hrycenko v Hrycenko (2022) 294 FCR 233 referred to - Donchiod Pt Ltd (In Liq) v Merrion B Pty Ltd (2024) 74 VR 430 applied - Corporations Act 2001 (Cth), s 459R - Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 36.07 - Finding that the period under s 459R is to be extended under slip rule.
CORPORATIONS - Section 459G of Corporations Act 2001 (Cth) - Application to set aside a statutory demand on ground that plaintiff had an offsetting claim - Defendant entered into an agreement to host a conference at plaintiff's hotel - Whether the agreement was subject to a condition precedent - Plaintiff's offsetting claim relied on establishing that it was arguable there was a valid binding agreement between the parties - Inappropriate to determine competing interpretations of the agreement in application to set aside a statutory demand - Plaintiff demonstrated plausible contention giving rise to an arguable offsetting claim - Statutory demand set aside.
CORPORATIONS - Section 459G of Corporations Act 2001 (Cth) - Application to set aside a statutory demand on ground that plaintiff had an offsetting claim - Defendant entered into an agreement to host a conference at plaintiff's hotel - Whether the agreement was subject to a condition precedent - Plaintiff's offsetting claim relied on establishing that it was arguable there was a valid binding agreement between the parties - Inappropriate to determine competing interpretations of the agreement in application to set aside a statutory demand - Plaintiff demonstrated plausible contention giving rise to an arguable offsetting claim - Statutory demand set aside.
CORPORATIONS - Oppressive conduct - Whether affairs of company conducted in an oppressive manner - Unilateral decision by defendant to acquire member's interest - Unlawful appropriation of shares - Refusal to reinstate member's status as registered shareholder - Exclusion of member from business operations - Denial of access to company records - Repeated failure to comply with court orders - Prior finding of contempt - Whether defendant's conduct was unfairly prejudicial to member - Commercial unfairness - Consideration of relevant principles - Oppression made out.
CORPORATIONS - Oppressive conduct - Whether affairs of company conducted in an oppressive manner - Unilateral decision by defendant to acquire member's interest - Unlawful appropriation of shares - Refusal to reinstate member's status as registered shareholder - Exclusion of member from business operations - Denial of access to company records - Repeated failure to comply with court orders - Prior finding of contempt - Whether defendant's conduct was unfairly prejudicial to member - Commercial unfairness - Consideration of relevant principles - Oppression made out.
CORPORATIONS - Oppression relief - Appropriate remedies - Whether defendant should be ordered to buy out member - Whether company should be wound up - Winding up as a remedy of last resort - Whether 'some other remedy' available that is less intrusive - Valuation of shares - Expert opinion - Compulsory buyout order - Corporations Act 2001 (Cth) ss 232(e), 233(1)(a) and (d), 461(1)(f)(g) and (k).
PRACTICE AND PROCEDURE - Costs - Discretion of the court - Whether indemnity costs order appropriate - Unmeritorious and improper conduct by defendant - Breach of court orders - Significant delay and costs - Indemnity costs awarded.
CORPORATIONS - Corporations Act 2001 (Cth) - Section 90-15 (Sch 2, Insolvency Practice Schedule (Corporations)) - Application by liquidator for directions from Court as to beneficial ownership of large semi-rural property - Where Court made various declarations, including that company holds property on trust for third defendant.
CORPORATIONS - Corporations Act 2001 (Cth) - Section 90-15 (Sch 2, Insolvency Practice Schedule (Corporations)) - Application by liquidator for directions from Court as to beneficial ownership of large semi-rural property - Where Court made various declarations, including that company holds property on trust for third defendant.
PRACTICE AND PROCEDURE - Costs - Trust dispute - Competing costs applications by defendants against each other - Whether sixth defendant acted as contradictor in proceeding for judicial advice about existence of trust and beneficial ownership of property - Whether adversarial inter partes proceeding - Whether ordinary rule that costs follow the event applies - Where third and fifth defendant did not succeed on all claims and third defendant abandoned adverse possession claim during trial - Whether rr 25.03, 25.05 and 63.15 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) apply to withdrawal of adverse possession claim - Apportionment of costs.
APPEAL - Application for an extension of time to appeal cost orders made by the Victorian Civil and Administrative Tribunal - Icbudak v Symmetric Homes Pty Ltd (Building and Property) (Costs) [2024] VCAT 595 (3 July 2024) - Applicants sought costs of rectifying alleged defects to their house - Icbudak v Symmetric Homes Pty Ltd (Building and Property) [2021] VCAT 1074 - Huang v Frankston City Council [2024] VSCA 38 - Explanation for delay - Whether any prejudice has been caused by the delay - Merits of the proposed appeal - Discretionary nature of cost decisions - Francis v Wilson [2023] VSC 410 - Real prospect of success - Extension of time to appeal granted.
APPEAL - Application for an extension of time to appeal cost orders made by the Victorian Civil and Administrative Tribunal - Icbudak v Symmetric Homes Pty Ltd (Building and Property) (Costs) [2024] VCAT 595 (3 July 2024) - Applicants sought costs of rectifying alleged defects to their house - Icbudak v Symmetric Homes Pty Ltd (Building and Property) [2021] VCAT 1074 - Huang v Frankston City Council [2024] VSCA 38 - Explanation for delay - Whether any prejudice has been caused by the delay - Merits of the proposed appeal - Discretionary nature of cost decisions - Francis v Wilson [2023] VSC 410 - Real prospect of success - Extension of time to appeal granted.
JUDICIAL REVIEW - Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Certiorari-Decision of Victoria Racing Tribunal - Double punishment - Whether Plaintiff punished twice for same act - Whether Rules of Racing are a subordinate instrument - Special circumstance - Reasonableness - Racing Act 1958 (Vic) - Rules of Racing Victoria - Interpretation of Legislation Act 1984 (Vic) - Pearce v The Queen (1998) 194 CLR 610 - McDonald v Racing New South Wales [2017] NSWSC 1511 - Greyhound Racing Victoria Stewards v Anderton [2018] VSC 64.
JUDICIAL REVIEW - Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Certiorari-Decision of Victoria Racing Tribunal - Double punishment - Whether Plaintiff punished twice for same act - Whether Rules of Racing are a subordinate instrument - Special circumstance - Reasonableness - Racing Act 1958 (Vic) - Rules of Racing Victoria - Interpretation of Legislation Act 1984 (Vic) - Pearce v The Queen (1998) 194 CLR 610 - McDonald v Racing New South Wales [2017] NSWSC 1511 - Greyhound Racing Victoria Stewards v Anderton [2018] VSC 64.
EQUITY - Judicial advice - Supreme Court (General Civil Procedure) Rules 2015 r 54.02 - Advice sought as to whether limited administrator is justified in compromising and paying certain debts from the deceased's estate - Advice sought as to whether limited administrator is justified in commencing proceedings seeking payment of debts - Uncontroversial that advice should be provided in relation to certain debts - Claims made against estate for certain water debts rest on contractual construction - Claims made against estate for certain council debts are strongly arguable - Advice provided.
EQUITY - Judicial advice - Supreme Court (General Civil Procedure) Rules 2015 r 54.02 - Advice sought as to whether limited administrator is justified in compromising and paying certain debts from the deceased's estate - Advice sought as to whether limited administrator is justified in commencing proceedings seeking payment of debts - Uncontroversial that advice should be provided in relation to certain debts - Claims made against estate for certain water debts rest on contractual construction - Claims made against estate for certain council debts are strongly arguable - Advice provided.
EQUITY - Judicial advice - Supreme Court (General Civil Procedure) Rules 2015 r 54.02 - Advice sought as to whether limited administrator is justified in taking steps to terminate licence and seek delivery up of possession of trust property - Advice provided.
PRACTICE AND PROCEDURE - Recovery of possession under Order 53 Supreme Court (General Civil Procedure) Rules 2015 - Not appropriate to finally determine Order 53 application at same time as giving judicial advice - Appropriate to schedule further steps leading to hearing of Order 53 application in the near future without need for summons or separate proceeding - Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66, 94 [74] - Civil Procedure Act 2010 ss 7-8.
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.
WILLS AND ESTATES - Application for executor's commission - Where executors seek a commission of 1.5 percent of the corpus and income of the estate - Administration and Probate Act 1958 (Vic), s 65 - Application opposed by four beneficiaries - Whether it is appropriate to award a commission - Whether the executors' conduct in managing the estate and dealing with the beneficiaries disentitles them to a commission - Re Buckingham (2016) 51 VR 453 referred to and distinguished - Executors awarded commission at a reduced rate.
WILLS AND ESTATES - Application for executor's commission - Where executors seek a commission of 1.5 percent of the corpus and income of the estate - Administration and Probate Act 1958 (Vic), s 65 - Application opposed by four beneficiaries - Whether it is appropriate to award a commission - Whether the executors' conduct in managing the estate and dealing with the beneficiaries disentitles them to a commission - Re Buckingham (2016) 51 VR 453 referred to and distinguished - Executors awarded commission at a reduced rate.
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.
PRACTICE AND PROCEDURE - Appeal from order of associate judge refusing leave to appeal under s 109 of the Magistrates' Court Act 1989 (Vic) - Whether associate judge erred in finding that appellant's failure to institute appeal within 30 days was not due to exceptional circumstances - Whether associate judge erred in finding no arguable case - Held failure to institute appeal within time due to exceptional circumstances - Held no arguable case on appeal - Appeal dismissed - Magistrates' Court Act 1989 (Vic) s 109 - Personal Safety Intervention Orders Act 2010 (Vic) ss 1, 4, pt 3 - Supreme Court Act 1986 (Vic) s 17(3) - Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 58.10(9), 77.06.1-9 - Austin v Dwyer [2024] VSC 435.
PRACTICE AND PROCEDURE - Appeal from order of associate judge refusing leave to appeal under s 109 of the Magistrates' Court Act 1989 (Vic) - Whether associate judge erred in finding that appellant's failure to institute appeal within 30 days was not due to exceptional circumstances - Whether associate judge erred in finding no arguable case - Held failure to institute appeal within time due to exceptional circumstances - Held no arguable case on appeal - Appeal dismissed - Magistrates' Court Act 1989 (Vic) s 109 - Personal Safety Intervention Orders Act 2010 (Vic) ss 1, 4, pt 3 - Supreme Court Act 1986 (Vic) s 17(3) - Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 58.10(9), 77.06.1-9 - Austin v Dwyer [2024] VSC 435.
PRACTICE AND PROCEDURE - Application for leave to appeal from costs order made by associate judge - Whether associate judge erred in exercising discretion to order appellant to pay respondent's costs of the proceeding - Leave to appeal refused - Magistrates' Court Act 1989 (Vic) s 109 - Supreme Court Act 1986 (Vic) s 17A(2) - Personal Safety Intervention Orders Act 2010 (Vic) ss 109, 111, 126(1).
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 s 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.
PROPERTY LAW - Real Property - Preliminary trial of questions under r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Whether plaintiffs' land has benefit of restrictive covenant burdening defendants' land - Whether subject land is part of a building scheme - Whether defendants were notified of building scheme in the absence of notice of scheme on certificate of title or any other registered instrument noted on certificate of title - Notice of building scheme, nature of restrictive covenant and identity of lands affected by building scheme must be present on certificate of title or instrument noted on certificate of title - Not permissible to rely on evidence extraneous to certificate of title and instruments referred in it to show knowledge of building scheme under Torrens principle.
PROPERTY LAW - Real Property - Preliminary trial of questions under r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Whether plaintiffs' land has benefit of restrictive covenant burdening defendants' land - Whether subject land is part of a building scheme - Whether defendants were notified of building scheme in the absence of notice of scheme on certificate of title or any other registered instrument noted on certificate of title - Notice of building scheme, nature of restrictive covenant and identity of lands affected by building scheme must be present on certificate of title or instrument noted on certificate of title - Not permissible to rely on evidence extraneous to certificate of title and instruments referred in it to show knowledge of building scheme under Torrens principle.
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, s 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, s 4E.
CRIMINAL LAW - Bail - 17 year old, intellectually disabled Aboriginal applicant - Aggravated burglary (x2) and other offences - Offences committed while applicant on seven grants of bail, and subject to seven summons - Exceptional circumstances test applicable - Respondent conceded open to Court to find exceptional circumstances - Exceptional circumstances made out - Whether unacceptable risk - Poor performance on previous grants of bail - Refusal of applicant to accept supervision and support of Youth Justice - Youth Justice no longer supportive of Supervised Bail - Whether recent determination of intellectual disability significant change - Nature of prior and current alleged offending points to risk of community being endangered - Significant risk applicant would not abide by conditions of bail - Recent changes to Bail Act 1977 making safety of the community of overarching importance - Unacceptable risk made out - Bail Act 1977 ss 1B, 3AAA, 3A, 3B, 4AA, 4A and 4E.
CRIMINAL LAW - Bail - 17 year old, intellectually disabled Aboriginal applicant - Aggravated burglary (x2) and other offences - Offences committed while applicant on seven grants of bail, and subject to seven summons - Exceptional circumstances test applicable - Respondent conceded open to Court to find exceptional circumstances - Exceptional circumstances made out - Whether unacceptable risk - Poor performance on previous grants of bail - Refusal of applicant to accept supervision and support of Youth Justice - Youth Justice no longer supportive of Supervised Bail - Whether recent determination of intellectual disability significant change - Nature of prior and current alleged offending points to risk of community being endangered - Significant risk applicant would not abide by conditions of bail - Recent changes to Bail Act 1977 making safety of the community of overarching importance - Unacceptable risk made out - Bail Act 1977 ss 1B, 3AAA, 3A, 3B, 4AA, 4A and 4E.
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 - Murder - Attempted murder - Conduct endangering life - Where accused has diagnosis of schizoaffective disorder and was experiencing psychosis and mania - Defence of mental impairment - Defence established - Where it is in the public interest to make a suppression order - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 20, 21, 23(a), 41, 47, 75.
CRIMINAL LAW - Murder - Attempted murder - Conduct endangering life - Where accused has diagnosis of schizoaffective disorder and was experiencing psychosis and mania - Defence of mental impairment - Defence established - Where it is in the public interest to make a suppression order - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 20, 21, 23(a), 41, 47, 75.
CRIMINAL LAW - Application under Sex Offender's Registration Act 2004 to suspend lifelong reporting obligations - Applicant convicted in 2007 of two charges of sexual penetration of child under 16 and placed on a community based order - No prior convictions - No subsequent convictions - Diligent compliance with reporting obligations over 18 year period - Low risk of reoffending - Whether in public interest to suspend reporting obligations - Application granted - Sex Offenders Registration Act 2004 (Vic) ss 39 & 40; Re GH [2024] VSC 216.
CRIMINAL LAW - Application under Sex Offender's Registration Act 2004 to suspend lifelong reporting obligations - Applicant convicted in 2007 of two charges of sexual penetration of child under 16 and placed on a community based order - No prior convictions - No subsequent convictions - Diligent compliance with reporting obligations over 18 year period - Low risk of reoffending - Whether in public interest to suspend reporting obligations - Application granted - Sex Offenders Registration Act 2004 (Vic) ss 39 & 40; Re GH [2024] VSC 216.
CRIMINAL LAW - Sentence - Where accused companies failed to ensure electrical work was only carried out by licensed electricians - Where work environment gave rise to risks that employees would suffer serious injury or death - Where accused companies' conduct came to light after apprentice electrician was electrocuted - Where accused companies to be sentenced for offences that are 'risk-based' not 'outcome-based' - Where accused companies pleaded guilty and are of good prior character - Where accused companies have common director making management decisions for both entities and employees performing work for the benefit of each company - Accused companies must be treated as separate legal entities - Whether need for specific deterrence reduced where accused companies' director is father of the deceased - Aggregate fines imposed - DPP v Vibro- Pile (Aust) Pty Ltd (2016) 49 VR 676 - Nash v Glennies Creek Coal Management Pty Ltd; Nash v Integra Coal Operations Pty Ltd (No 9) (2015) 91 NSWLR 368 - Occupational Health and Safety Act 2004 (Vic) ss 21(1), 21(2)(a), 21(2)(e), 23 - Electricity Safety Act 1998 (Vic) ss 30, 36(1), 37 - Electricity Safety (General) Regulations 2019 (Vic) rr 507(1), 509(1), 510(1), 511(1) - Sentencing Act 1991 (Vic) ss 51, 52.
CRIMINAL LAW - Sentence - Where accused companies failed to ensure electrical work was only carried out by licensed electricians - Where work environment gave rise to risks that employees would suffer serious injury or death - Where accused companies' conduct came to light after apprentice electrician was electrocuted - Where accused companies to be sentenced for offences that are 'risk-based' not 'outcome-based' - Where accused companies pleaded guilty and are of good prior character - Where accused companies have common director making management decisions for both entities and employees performing work for the benefit of each company - Accused companies must be treated as separate legal entities - Whether need for specific deterrence reduced where accused companies' director is father of the deceased - Aggregate fines imposed - DPP v Vibro- Pile (Aust) Pty Ltd (2016) 49 VR 676 - Nash v Glennies Creek Coal Management Pty Ltd; Nash v Integra Coal Operations Pty Ltd (No 9) (2015) 91 NSWLR 368 - Occupational Health and Safety Act 2004 (Vic) ss 21(1), 21(2)(a), 21(2)(e), 23 - Electricity Safety Act 1998 (Vic) ss 30, 36(1), 37 - Electricity Safety (General) Regulations 2019 (Vic) rr 507(1), 509(1), 510(1), 511(1) - Sentencing Act 1991 (Vic) ss 51, 52.
CRIMINAL LAW - Sentence - Murder - Standard sentence offence - Accused poured petrol over man working on property next door and set him alight, intending to cause really serious injury - Death resulted - Plea of guilty - Accused suffered from personality disorder of moderate severity - Realistic connection between personality disorder and offending - Moral culpability reduced, but still high - Actions motivated by anger, not by fear - No remorse - Poor prospects of rehabilitation - Importance of just punishment, denunciation, general and specific deterrence, and protection of the community - Offending towards upper end of range of seriousness - Head sentence of 35 years' imprisonment - Non-parole period of 27 years' imprisonment.
CRIMINAL LAW - Sentence - Murder - Standard sentence offence - Accused poured petrol over man working on property next door and set him alight, intending to cause really serious injury - Death resulted - Plea of guilty - Accused suffered from personality disorder of moderate severity - Realistic connection between personality disorder and offending - Moral culpability reduced, but still high - Actions motivated by anger, not by fear - No remorse - Poor prospects of rehabilitation - Importance of just punishment, denunciation, general and specific deterrence, and protection of the community - Offending towards upper end of range of seriousness - Head sentence of 35 years' imprisonment - Non-parole period of 27 years' imprisonment.
CONTRACT CLAIMS - Misleading and deceptive conduct claims - Turns on own facts.
CONTRACT CLAIMS - Misleading and deceptive conduct claims - Turns on own facts.
BUILDING - PRACTICE AND PROCEDURE - Whether building works undertaken by the defendants complied with an order granting specific performance of a deed of settlement entered into by the parties.
BUILDING - PRACTICE AND PROCEDURE - Whether building works undertaken by the defendants complied with an order granting specific performance of a deed of settlement entered into by the parties.
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.