LIMITATION OF ACTIONS - Settlement agreement - Historical sexual abuse - Application to set aside settlement agreement under Limitation of Actions Act 1958, s 27QE - Primary judge set aside agreement in whole - Whether judge erred in finding just and reasonable to set aside settlement agreement in whole - Whether existence of Ellis defence relevant to plaintiff's decision not to make claim for economic loss - Whether plaintiff elected not to pursue claim for economic loss - No error made by primary judge - Application for leave to appeal refused.
LIMITATION OF ACTIONS - Settlement agreement - Historical sexual abuse - Application to set aside settlement agreement under Limitation of Actions Act 1958, s 27QE - Primary judge set aside agreement in whole - Whether judge erred in finding just and reasonable to set aside settlement agreement in whole - Whether existence of Ellis defence relevant to plaintiff's decision not to make claim for economic loss - Whether plaintiff elected not to pursue claim for economic loss - No error made by primary judge - Application for leave to appeal refused.
Limitation of Actions Act 1958, s 27QE.
DZY (a pseudonym) v Trustees of the Christian Brothers (2025) 99 ALJR 806, applied.
COURTS - Judges - Bias - Apprehended bias - Recusal application - Whether primary judge erred in failing to recuse himself from further hearing of proceeding due to apprehended bias - Primary judge having granted ex parte injunction - Primary judge having made procedural orders in favour of opposite party - Primary judge having refused applications made by moving party - Primary judge having made comments asserted to be unfavourable to moving party - Assertion that primary judge had conversation with judicial registrar who refused moving party's transfer application - Listing of recusal application at same time as other applications - Whether, in totality of circumstances, fair-minded lay observer might reasonably apprehend that primary judge might not bring impartial mind to resolution of remaining issues and trial - No substance in recusal application - Application for leave to appeal refused.
COURTS - Judges - Bias - Apprehended bias - Recusal application - Whether primary judge erred in failing to recuse himself from further hearing of proceeding due to apprehended bias - Primary judge having granted ex parte injunction - Primary judge having made procedural orders in favour of opposite party - Primary judge having refused applications made by moving party - Primary judge having made comments asserted to be unfavourable to moving party - Assertion that primary judge had conversation with judicial registrar who refused moving party's transfer application - Listing of recusal application at same time as other applications - Whether, in totality of circumstances, fair-minded lay observer might reasonably apprehend that primary judge might not bring impartial mind to resolution of remaining issues and trial - No substance in recusal application - Application for leave to appeal refused.
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148, applied.
Isbester v Knox City Council (2015) 255 CLR 135; Johnson v Johnson (2000) 201 CLR 488; R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546; Re JRL; Ex parte CJL (1986) 161 CLR 342, referred to.
CONTRACT - Contract of insurance covering loss 'resulting from' a 'claim' - Applicant made claim to recover loss arising from settlement of proceeding commenced by applicant against third party - Applicant sought specific performance of contract with third party for sale of land - Applicant spent $5,350,140 to construct gaming venue on land - Counterclaim sought to set aside contract of sale on grounds including breach of fiduciary duties - Counterclaim sought equitable compensation in alternative - Proceeding settled - Applicant agreed to purchase land from third party for increased price - Loss claimed by applicant $1,971,604 reflecting difference between purchase price in settlement agreement and previously agreed price - Definition of 'claim' included proceeding seeking 'compensation or other legal remedy' - Whether 'claim' extended to non-monetary claim - Judge found equitable compensation claim only component of counterclaim within definition of 'claim'.
CONTRACT - Contract of insurance covering loss 'resulting from' a 'claim' - Applicant made claim to recover loss arising from settlement of proceeding commenced by applicant against third party - Applicant sought specific performance of contract with third party for sale of land - Applicant spent $5,350,140 to construct gaming venue on land - Counterclaim sought to set aside contract of sale on grounds including breach of fiduciary duties - Counterclaim sought equitable compensation in alternative - Proceeding settled - Applicant agreed to purchase land from third party for increased price - Loss claimed by applicant $1,971,604 reflecting difference between purchase price in settlement agreement and previously agreed price - Definition of 'claim' included proceeding seeking 'compensation or other legal remedy' - Whether 'claim' extended to non-monetary claim - Judge found equitable compensation claim only component of counterclaim within definition of 'claim'.
INSURANCE - Contract of insurance covering 'loss' 'resulting from' a 'claim' - Judge found settlement amount reflected various commercial and legal benefits - Judge found settlement amount not attributable to counterclaim - Whether 'obligation to pay under settlement' constituted 'loss' - Whether 'loss' required establishment of underlying liability independent of settlement - Express reference to settlements in definition of 'loss'.
INSURANCE - Settlement - Reasonableness of settlement - Judge found settlement not reasonable because settlement amount attributable to larger commercial agreement - Legal advice of significant risk counterclaim would succeed - Counsel considered settlement amount within scope of potential liability if counterclaim successful - Settlement amount represented cost of settling counterclaim and avoiding risks posed by counterclaim to applicant's business - Settlement reasonable - Leave to appeal granted - Appeal allowed.
WORDS AND PHRASES - 'claim' - 'loss' - 'resulting from'.
National Australia Bank Ltd v Nautilus Insurance Pte Ltd [No 3] [2019] FCA 2139; AstraZeneca Insurance Company Ltd v XL Insurance (Bermuda) Ltd [2014] 2 All ER (Comm) 55; CIMIC Group Ltd v AIG Group Ltd [2022] NSWSC 999; Delta Pty Ltd v Team Rock Anchors Pty Ltd [2018] 1 Qd R 564, referred to; Weir Services Australia Pty Ltd v AXA Corporate Solutions Assurance (2018) 359 ALR 314, discussed.
ADMINISTRATIVE LAW - Judicial Review - Medical Panel - Procedural fairness -Where Panel tested applicant's grip strength - Where AMA Guides provided one may 'assume' the patient is not exerting 'full effort' if there is more than 20% variation in test results - Where Panel found results of grip strength testing were 'variable and unreliable' and did not represent 'maximal effort' - Whether Panel's finding went to credit - Whether Panel required to invite further submissions - Finding reflects outcome of testing and not credit - No failure to accord procedural fairness - Application for leave to appeal refused.
ADMINISTRATIVE LAW - Judicial Review - Medical Panel - Procedural fairness -Where Panel tested applicant's grip strength - Where AMA Guides provided one may 'assume' the patient is not exerting 'full effort' if there is more than 20% variation in test results - Where Panel found results of grip strength testing were 'variable and unreliable' and did not represent 'maximal effort' - Whether Panel's finding went to credit - Whether Panel required to invite further submissions - Finding reflects outcome of testing and not credit - No failure to accord procedural fairness - Application for leave to appeal refused.
PRACTICE AND PROCEDURE - Application to adduce further evidence - Medical literature not adduced at trial - Article sought to be adduced to assist in determining non-legal technical meaning of phrase 'maximal effort'- Article not admissible - No reason that article could not have been obtained with reasonable diligence for use before primary judge - Application refused - Supreme Court (General Civil Procedure) Rules 2025, r 64.13(1) - Victorian WorkCover Authority v Elsdon (2013) 42 VR 434, discussed.
Wrongs Act 1958, ss 28LE, 28LF, 28LWE.
Jankulovska v Hayman [2017] VSC 752; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; Wagstaff Cranbourne Pty Ltd v Hashimi [2020] VSCA 33; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, discussed.
PRACTICE AND PROCEDURE - Self-represented applicant made claim for damages against respondent builder for defective plumbing works - Applicant sent frequent and at times inflammatory communications to solicitors for respondent, its insurer and solicitors for its insurer - Trial judge made declaration that applicant breached overarching obligation in s 19 of the Civil Procedure Act 2010 as a result of communications and made orders that the applicant only be permitted to communicate with a specified solicitor acting on behalf of respondent and insurer - Whether sending correspondence was a 'step' in connection with a civil proceeding - Whether trial judge erred in finding that the applicant did not reasonably believe that sending the correspondence was necessary to facilitate the resolution or determination of the proceeding - Whether trial judge erred in holding that sending correspondence was a contravention of s 19 of the Civil Procedure Act 2010 - Whether trial judge failed to provide reasonable advice and assistance to applicant as unrepresented person - Whether trial judge breached rules of natural justice by not hearing applicant on question of costs - Application for leave to appeal granted - Appeal allowed.
PRACTICE AND PROCEDURE - Self-represented applicant made claim for damages against respondent builder for defective plumbing works - Applicant sent frequent and at times inflammatory communications to solicitors for respondent, its insurer and solicitors for its insurer - Trial judge made declaration that applicant breached overarching obligation in s 19 of the Civil Procedure Act 2010 as a result of communications and made orders that the applicant only be permitted to communicate with a specified solicitor acting on behalf of respondent and insurer - Whether sending correspondence was a 'step' in connection with a civil proceeding - Whether trial judge erred in finding that the applicant did not reasonably believe that sending the correspondence was necessary to facilitate the resolution or determination of the proceeding - Whether trial judge erred in holding that sending correspondence was a contravention of s 19 of the Civil Procedure Act 2010 - Whether trial judge failed to provide reasonable advice and assistance to applicant as unrepresented person - Whether trial judge breached rules of natural justice by not hearing applicant on question of costs - Application for leave to appeal granted - Appeal allowed.
Civil Procedure Act 2010, ss 19, 29.
Bolitho v Banksia Securities (No 18) (remitter) (2021) 69 VR 28, approved.
PRACTICE AND PROCEDURE - Appeal against dismissal of proceeding for want of prosecution - Long and protracted litigation history - Inordinate and inexcusable delay - Test for dismissal for want of prosecution - Whether test requires reconsideration in light of GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 - Test remains that dismissal will be ordered if justice so demands - Guidelines adopted in Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863 unaffected - Court now also obliged to have regard to the efficient conduct of its business, efficient use of its resources, minimising delay, and the timely determination of the proceeding.
PRACTICE AND PROCEDURE - Appeal against dismissal of proceeding for want of prosecution - Long and protracted litigation history - Inordinate and inexcusable delay - Test for dismissal for want of prosecution - Whether test requires reconsideration in light of GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 - Test remains that dismissal will be ordered if justice so demands - Guidelines adopted in Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863 unaffected - Court now also obliged to have regard to the efficient conduct of its business, efficient use of its resources, minimising delay, and the timely determination of the proceeding.
PRACTICE AND PROCEDURE - Appeal against dismissal of proceeding for want of prosecution - Whether judge applied correct test - Judge identified correct test but did not distinguish between prejudice to respondent due to applicants' inordinate and inexcusable delay and prejudice respondent would have suffered in any event - Dismissal application reconsidered - Further periods of inordinate and inexcusable delay found - Proceeding should be dismissed for want of prosecution.
Civil Procedure Act 2010 (Vic), ss 7, 8, 9; Supreme Court (General Civil Procedure) Rules 2025 (Vic), Order 24.
Department of Transport v Chris Smaller (Transport) Ltd [1989] AC 1197; Birkett v James [1978] AC 297; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863, considered.
LAND VALUATION - Assessment of capital improved value of land under Valuation of Land Act 1960- Where land Crown land and land vested in Victorian Plantations Corporation - Where land used for forestry plantation - Whether 'forest produce' forms part of land for the purpose of assessment - Whether Forests Act 1958 and Victorian Plantations Corporation Act 1993 separate ownership of land from forest produce - Whether plantation licence an 'other charge' for the purposes of assessment - Forests Act and Victorian Plantations Corporation Act do not apply to hypothetical fee simple estate - 'Other charge' refers to general burden on land and encompasses licence - Forest produce forms part of land to be valued - Application for leave to appeal refused.
LAND VALUATION - Assessment of capital improved value of land under Valuation of Land Act 1960- Where land Crown land and land vested in Victorian Plantations Corporation - Where land used for forestry plantation - Whether 'forest produce' forms part of land for the purpose of assessment - Whether Forests Act 1958 and Victorian Plantations Corporation Act 1993 separate ownership of land from forest produce - Whether plantation licence an 'other charge' for the purposes of assessment - Forests Act and Victorian Plantations Corporation Act do not apply to hypothetical fee simple estate - 'Other charge' refers to general burden on land and encompasses licence - Forest produce forms part of land to be valued - Application for leave to appeal refused.
Forests Act 1958, ss 3(1), 4, 7, 42, 50, 51, 52, 58, 80; Victorian Plantations Corporation Act 1993, pt 3 div 3, pt 3A, ss 3, 20(2), 22; Valuation of Land Act 1960, ss 2(1), 5A.
Royal Sydney Golf Club v Commissioner of Taxation (Cth) (1955) 91 CLR 610; Valuer-General v AWF Prop Co No 2 Pty Ltd (2021) 65 VR 327; Shell Co of Australia Ltd v City of Melbourne [1997] 2 VR 615, considered.
CONTRACTS - Expert determination - Agreement for lease - Practical completion of works by respondent owner condition precedent to commencement of lease - Applicant alleged works incomplete or defective - Agreement providing for architect to issue certificate of practical completion - Respondent procured certificate - Dispute whether incomplete or defective works prevented practical completion - Dispute referred for expert determination - Deed defining dispute whether respondent achieved practical completion 'in accordance with' agreement for lease - Expert found certificate issued in accordance with agreement for lease, without considering effect of incomplete or defective works on practical completion - Preliminary question whether expert failed to determine dispute as defined in deed - Whether dispute extended to question whether practical completion achieved - Whether expert could only determine whether certificate issued in good faith - Judge found expert properly and appropriately determined dispute - Notices of dispute reveal substance of dispute as whether practical completion not achieved in light of alleged defective or incomplete works - Use of recitals in construing contracts - Expert failed to determine dispute defined in deed - Leave to appeal granted - Appeal allowed.
CONTRACTS - Expert determination - Agreement for lease - Practical completion of works by respondent owner condition precedent to commencement of lease - Applicant alleged works incomplete or defective - Agreement providing for architect to issue certificate of practical completion - Respondent procured certificate - Dispute whether incomplete or defective works prevented practical completion - Dispute referred for expert determination - Deed defining dispute whether respondent achieved practical completion 'in accordance with' agreement for lease - Expert found certificate issued in accordance with agreement for lease, without considering effect of incomplete or defective works on practical completion - Preliminary question whether expert failed to determine dispute as defined in deed - Whether dispute extended to question whether practical completion achieved - Whether expert could only determine whether certificate issued in good faith - Judge found expert properly and appropriately determined dispute - Notices of dispute reveal substance of dispute as whether practical completion not achieved in light of alleged defective or incomplete works - Use of recitals in construing contracts - Expert failed to determine dispute defined in deed - Leave to appeal granted - Appeal allowed.
Adventure Golf Systems Australia Pty Ltd v Belgravia Health & Leisure Group Pty Ltd (2017) 54 VR 625; GTW Investments (Aust) Pty Ltd v Pacreef Investments Pty Ltd (2023) 74 VR 290; Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; S&C Nicola Pty Ltd v Peter Holmes Investment Pty Ltd (2022) 108 NSWLR 165; Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, referred to.
CRIMINAL LAW - Sentence - Appeal - Intentionally causing injury - Intimidating a law enforcement officer - Persistent and violent assault by applicant and co-offender - Judge found injury to ear of victim caused by knife - Whether conclusion open on the evidence - Whether error, if made, material - Co-offender sentenced by different judge for intentionally causing serious injury - Whether insufficient disparity between sentence imposed on applicant and sentence imposed on co-offender for offence with much higher maximum penalty - Whether sentence manifestly excessive - Leave to appeal refused.
CRIMINAL LAW - Sentence - Appeal - Intentionally causing injury - Intimidating a law enforcement officer - Persistent and violent assault by applicant and co-offender - Judge found injury to ear of victim caused by knife - Whether conclusion open on the evidence - Whether error, if made, material - Co-offender sentenced by different judge for intentionally causing serious injury - Whether insufficient disparity between sentence imposed on applicant and sentence imposed on co-offender for offence with much higher maximum penalty - Whether sentence manifestly excessive - Leave to appeal refused.
Bugmy v The Queen (2013) 249 CLR 571; R v Beary (2004) 11 VR 151; Gillespie (a pseudonym) v The Queen [2018] VSCA 15; Repac v The King [2023] VSCA 313; Anthony v The Queen [2016] VSCA 22; Worboyes v The Queen [2021] VSCA 169; Barbaro v The Queen (2012) 226 A Crim R 354; R v Morgan (2010) 24 VR 230; Honeysett v The Queen [2018] VSCA 214.
CRIMINAL LAW - Appeal - Sentence - Culpable driving causing death, recklessly causing injury and related offences - Driving at high speed to evade police - Driving under the influence of methylamphetamine to such an extent as to be incapable of having proper control of vehicle - Driving in wrong direction around roundabout - Collision with another vehicle causing fatal injuries to driver and injury to passenger - Whether total effective sentence of 11 years and 6 months' imprisonment with 7 years and 6 months manifestly excessive - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Culpable driving causing death, recklessly causing injury and related offences - Driving at high speed to evade police - Driving under the influence of methylamphetamine to such an extent as to be incapable of having proper control of vehicle - Driving in wrong direction around roundabout - Collision with another vehicle causing fatal injuries to driver and injury to passenger - Whether total effective sentence of 11 years and 6 months' imprisonment with 7 years and 6 months manifestly excessive - Leave to appeal refused.
CRIMINAL LAW - Sentence - Appeal - Obtaining financial advantage by deception (2 charges), using false document (2 charges) - TES of 12 years, with NPP of 8 years - Amount obtained by deception in excess of $38 million - Sentences not manifestly excessive - Sentences not infringing principles of totality - Whether judge failed to take into account increased burden of imprisonment resulting from family hardship - Whether judge required to take into account family hardship which was not exceptional - No error by judge in relation to treatment of family hardship - Appeal dismissed.
CRIMINAL LAW - Sentence - Appeal - Obtaining financial advantage by deception (2 charges), using false document (2 charges) - TES of 12 years, with NPP of 8 years - Amount obtained by deception in excess of $38 million - Sentences not manifestly excessive - Sentences not infringing principles of totality - Whether judge failed to take into account increased burden of imprisonment resulting from family hardship - Whether judge required to take into account family hardship which was not exceptional - No error by judge in relation to treatment of family hardship - Appeal dismissed.
Charter of Human Rights and Responsibilities Act 2006, ss 17 and 32; Sentencing Act 1991, ss 5(1)(a) and 5(2)(g); Crimes Act 1914 (Cth), s 16A(2)(p).
Markovic v The Queen (2010) 30 VR 589; Clarkson v The Queen (2011) 32 VR 361, applied.
Totaan v The Queen (2022) 108 NSWLR 17; R v Zerafa [2013] NSWCCA 222; Adams (a pseudonym) v The Queen (2022) 141 SASR 204, referred to.
CRIMINAL LAW - Appeal - Sentence - Application for extension of time to file application for leave to appeal against sentence - Applicant pleaded guilty to murder - Sentenced to 25 years' imprisonment with non-parole period of 20 years - Applicant stabbed former partner three times with kitchen knife - Fatal stab wound severely damaged victim's spinal cord - Applicant diagnosed with psychotic depression - Whether judge placed disproportionate emphasis on applicant's knowledge of wrongfulness of his conduct when considering moral culpability - Whether judge failed to give appropriate weight to applicant's psychological condition - Moral culpability high - Application for extension of time refused.
CRIMINAL LAW - Appeal - Sentence - Application for extension of time to file application for leave to appeal against sentence - Applicant pleaded guilty to murder - Sentenced to 25 years' imprisonment with non-parole period of 20 years - Applicant stabbed former partner three times with kitchen knife - Fatal stab wound severely damaged victim's spinal cord - Applicant diagnosed with psychotic depression - Whether judge placed disproportionate emphasis on applicant's knowledge of wrongfulness of his conduct when considering moral culpability - Whether judge failed to give appropriate weight to applicant's psychological condition - Moral culpability high - Application for extension of time refused.
R v Verdins (2007) 16 VR 269; DPP v O'Neill (2015) 47 VR 395; Njovu v The King [2025] VSCA 289, considered.
CRIMINAL LAW - Sentence - Crown appeal - Recklessly causing serious injury and possessing controlled weapon - Knife attack - Victim disembowelled - Total effective sentence of 2 years and 3 months' imprisonment with non-parole period of 15 months - Sentence manifestly inadequate - Resentenced to total effective sentence of 5 years and 6 months' imprisonment with a non-parole period of 3 years and 8 months.
CRIMINAL LAW - Sentence - Crown appeal - Recklessly causing serious injury and possessing controlled weapon - Knife attack - Victim disembowelled - Total effective sentence of 2 years and 3 months' imprisonment with non-parole period of 15 months - Sentence manifestly inadequate - Resentenced to total effective sentence of 5 years and 6 months' imprisonment with a non-parole period of 3 years and 8 months.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Aggravated burglary, intentionally causing injury and false imprisonment - Victim female domestic partner - Respondent suffering treatment-resistant schizophrenia - Total effective sentence 6 years' imprisonment with 4 years non-parole - Whether manifestly inadequate - Appeal dismissed.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Aggravated burglary, intentionally causing injury and false imprisonment - Victim female domestic partner - Respondent suffering treatment-resistant schizophrenia - Total effective sentence 6 years' imprisonment with 4 years non-parole - Whether manifestly inadequate - Appeal dismissed.
CRIMINAL LAW - Conviction - Appeal - Aggravated burglary and associated offences - Applicant pleaded guilty to seven charges on joint indictment - Whether factual basis of convictions for charge of making threat to inflict serious injury to one victim and charge of common assault against same victim were identical - Appeal allowed - Total effective sentence and non-parole period reduced.
CRIMINAL LAW - Conviction - Appeal - Aggravated burglary and associated offences - Applicant pleaded guilty to seven charges on joint indictment - Whether factual basis of convictions for charge of making threat to inflict serious injury to one victim and charge of common assault against same victim were identical - Appeal allowed - Total effective sentence and non-parole period reduced.
Mongan v The King [2024] VSCA 126.
CRIMINAL LAW - Appeal - Sentence - First applicant pleaded guilty to charges of affray, armed robbery, intentionally causing serious injury and related summary offences - Sentenced to total effective sentence of 2 years and 8 months' imprisonment with non-parole period of 18 months - First applicant together with second applicant and others used dating applications to lure men under pretence of sex to secluded areas in order to ambush and assault them - Offending occurred on multiple occasions - Whether judge failed to take into account first applicant's diagnoses of mental disorders as mitigating factors in sentencing synthesis - Whether sentence manifestly excessive - Insufficient evidence of nexus between mental disorders and offending - Circumstances not exceptional or rare to justify sentence other than imprisonment - Sentence not wholly outside range of sentencing options available - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - First applicant pleaded guilty to charges of affray, armed robbery, intentionally causing serious injury and related summary offences - Sentenced to total effective sentence of 2 years and 8 months' imprisonment with non-parole period of 18 months - First applicant together with second applicant and others used dating applications to lure men under pretence of sex to secluded areas in order to ambush and assault them - Offending occurred on multiple occasions - Whether judge failed to take into account first applicant's diagnoses of mental disorders as mitigating factors in sentencing synthesis - Whether sentence manifestly excessive - Insufficient evidence of nexus between mental disorders and offending - Circumstances not exceptional or rare to justify sentence other than imprisonment - Sentence not wholly outside range of sentencing options available - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Second applicant pleaded guilty to charges of common assault, affray, armed robbery, intentionally causing serious injury and related summary offence - Sentenced to total effective sentence of 3 years and 4 months' imprisonment with non-parole period of 22 months - Whether judge erred in concluding that roles of second applicant and co-accused were relatively equal - Whether sentence manifestly excessive - Second applicant sentenced to additional assault charge - Second applicant subject to community correction order at time of offending - Limited insight into offending compared to first applicant - No justifiable sense of grievance arising from disparity - Sentence not wholly outside range of sentencing options available - Application for extension of time to file leave to appeal refused.
Crimes Act 1958, ss 18, 75A, 195, 195H, 465AAA; Sentencing Act 1991, s 5(2H).
R v Verdins (2007) 16 VR 269; BBA v The Queen [2010] VSCA 174; DPP v O'Neill (2015) 47 VR 395; Farmer v The Queen [2020] VSCA 140; DPP v Terrick (2009) 24 VR 457; R v Bernath [1997] 1 VR 271; Bugmy v The Queen (2013) 249 CLR 571; Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295, referred to.
CRIMINAL LAW - Orders for production pursuant to s 317 of the Criminal Procedure Act 2009 - Objection to production on the basis of client legal privilege - Where claim of client legal privilege is challenged on the basis that evidence is inadmissible and/or insufficient to substantiate the claim - Where documents are said to be subject to the qualification expressed by Brennan CJ in Propend - Where privilege is asserted to have been waived - Where claim of client legal privilege upheld.
CRIMINAL LAW - Orders for production pursuant to s 317 of the Criminal Procedure Act 2009 - Objection to production on the basis of client legal privilege - Where claim of client legal privilege is challenged on the basis that evidence is inadmissible and/or insufficient to substantiate the claim - Where documents are said to be subject to the qualification expressed by Brennan CJ in Propend - Where privilege is asserted to have been waived - Where claim of client legal privilege upheld.
Criminal Procedure Act 2009 s 317; Evidence Act 2008, ss 118, 119 and 122(2).
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; Hancock v Rinehart (Privilege) [2016] NSWSC 12; Yong v Westpac Banking Corporation [2025] FCA 816; Grant v Downs (2004) 142 FCR 185; Cargill Aust Ltd v Viterra Malt Pty Ltd (No 8) [2018] VSC 193; Conlan v Walker [2011] FCA 347; Dalrymple Park Pty Ltd v Tabe & Lees Pty Ltd [1997] TASSC 149; Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (No 5) [2018] FCA 2066; Holt v Mitsubishi Motor Corporation [2025] FCA 191.
CRIMINAL LAW - Sentence - Appeal - Application to vary sentence - Trafficking not less than large commercial quantity of methylamphetamine - Sentence 20 years' imprisonment - Sentence took account of other convictions subsequently set aside - Parties agreeing sentence should be varied - Egregious offending - 5 years and 72 days 'dead time' - Appellant sustained serious head injury following assault in custody - Restrictive conditions of incarceration - Effect of pandemic - Delay - Appellant on bail - Quashed convictions meaning appellant no longer serious drug offender - Sentence varied to time served 13 years, 7 months and 15 days' imprisonment with non-parole period of 11 years.
CRIMINAL LAW - Sentence - Appeal - Application to vary sentence - Trafficking not less than large commercial quantity of methylamphetamine - Sentence 20 years' imprisonment - Sentence took account of other convictions subsequently set aside - Parties agreeing sentence should be varied - Egregious offending - 5 years and 72 days 'dead time' - Appellant sustained serious head injury following assault in custody - Restrictive conditions of incarceration - Effect of pandemic - Delay - Appellant on bail - Quashed convictions meaning appellant no longer serious drug offender - Sentence varied to time served 13 years, 7 months and 15 days' imprisonment with non-parole period of 11 years.
Criminal Procedure Act 2009, s 326E(3); Sentencing Act 1991, s 6D.
Mokbel v The King (2023) 375 FLR 290; R v Renzella [1997] 2 VR 88, referred to.
CRIMINAL LAW - Sentence - Application for leave to appeal - Trafficking in not less than a large commercial quantity - Additional charges of trafficking, possession and dealing with proceeds of crime and property suspected to be proceeds of crime - Whether reasonably arguable that sentence imposed on large commercial quantity charge, resulting total effective sentence and non-parole period manifestly excessive - Serious example of offending - Sentencing principles of general deterrence and denunciation highly relevant - Not reasonably arguable that sentences manifestly excessive - Application refused.
CRIMINAL LAW - Sentence - Application for leave to appeal - Trafficking in not less than a large commercial quantity - Additional charges of trafficking, possession and dealing with proceeds of crime and property suspected to be proceeds of crime - Whether reasonably arguable that sentence imposed on large commercial quantity charge, resulting total effective sentence and non-parole period manifestly excessive - Serious example of offending - Sentencing principles of general deterrence and denunciation highly relevant - Not reasonably arguable that sentences manifestly excessive - Application refused.
R v Pham (2015) 256 CLR 550; Quah v The Queen (2021) 290 A Crim R 136; Dimovski v The Queen [2022] VSCA 6, considered.
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to charges of criminal damage, intentionally causing serious injury, attempting to pervert course of justice, persistent contravention of family violence safety notice, and related summary offence - Sentenced to total effective sentence of 2 years and 9 months' imprisonment with non-parole period of 1 year and 10 months - Family violence - Applicant assaulted complainant and threatened complainant while brandishing hammer - Offending occurred on multiple occasions - Perverting course of justice - Applicant drafted and coerced complainant to sign statement of no complainant - Statement purported to denigrate complainant and exculpate applicant - Whether sentence manifestly excessive - Significant violent offending - Sentence not wholly outside range of sentencing options - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to charges of criminal damage, intentionally causing serious injury, attempting to pervert course of justice, persistent contravention of family violence safety notice, and related summary offence - Sentenced to total effective sentence of 2 years and 9 months' imprisonment with non-parole period of 1 year and 10 months - Family violence - Applicant assaulted complainant and threatened complainant while brandishing hammer - Offending occurred on multiple occasions - Perverting course of justice - Applicant drafted and coerced complainant to sign statement of no complainant - Statement purported to denigrate complainant and exculpate applicant - Whether sentence manifestly excessive - Significant violent offending - Sentence not wholly outside range of sentencing options - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - New evidence - Applicant sought leave to adduce evidence in support of amended grounds of appeal - Evidence comprised psychologist report and correspondence from Department of Home Affairs cancelling applicant's visa - Evidence not before sentencing judge - Whether fresh or new evidence - Psychologist report inadmissible - Evidence of applicant's visa status would not have materially affected sentence - Application refused.
Crimes Act 1958, ss 18, 197; Family Violence Protection Act 2008, s 125A; Sentencing Act 1991, s 5(2AA); Migration Act 1958 (Cth), s 501(3A).
Carter v The Queen [2020] VSCA 156*; DPP v Oksuz* (2015) 47 VR 731; Barnes v The Queen [2022] NSWCCA 140; Allouch v The Queen (2018) 276 A Crim R 1;* R v Nguyen* [2006] VSCA 184, referred to.
CRIMINAL LAW - Appeal - Murder - Evidence - Hearsay evidence - Whether evidence of previous representations to police witnesses first-hand hearsay - Whether evidence inadmissible because danger of unfair prejudice outweighed probative value - No substantial miscarriage of justice - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Murder - Evidence - Hearsay evidence - Whether evidence of previous representations to police witnesses first-hand hearsay - Whether evidence inadmissible because danger of unfair prejudice outweighed probative value - No substantial miscarriage of justice - Application for leave to appeal refused.
Evidence Act 2008, ss 62, 66.
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to one charge of dangerous driving causing death and one charge of dangerous driving causing serious injury - Applicant failed to stop at stop sign when entering intersection and collided with oncoming car - Applicant ignored multiple warnings immediately prior to entering intersection - Passenger in other car died from injuries sustained in collision and another passenger seriously injured - Applicant sentenced to total effective sentence of 3 years and 9 months' imprisonment with non-parole period of 2 years and 6 months - Whether judge failed to take into account applicant's mental health and relative youth as mitigating factors in sentencing synthesis - Whether sentence manifestly excessive - Evidence of applicant's psychological state insufficient to support finding that prison would weigh more heavily on applicant - Applicant 25 years old at time of sentence - Sentence not wholly outside range of sentencing options available - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to one charge of dangerous driving causing death and one charge of dangerous driving causing serious injury - Applicant failed to stop at stop sign when entering intersection and collided with oncoming car - Applicant ignored multiple warnings immediately prior to entering intersection - Passenger in other car died from injuries sustained in collision and another passenger seriously injured - Applicant sentenced to total effective sentence of 3 years and 9 months' imprisonment with non-parole period of 2 years and 6 months - Whether judge failed to take into account applicant's mental health and relative youth as mitigating factors in sentencing synthesis - Whether sentence manifestly excessive - Evidence of applicant's psychological state insufficient to support finding that prison would weigh more heavily on applicant - Applicant 25 years old at time of sentence - Sentence not wholly outside range of sentencing options available - Application for leave to appeal refused.
Crimes Act 1958, s 319.
R v Verdins (2007) 16 VR 269; DPP v O'Neill (2015) 47 VR 395; DPP v Neethling (2009) 22 VR 466, considered - R v De Montero (2009) 25 VR 694, referred to.
CRIMINAL LAW - Rape - Applicant sentenced to 4 years and 3 months' imprisonment with a non-parole period of 2 years and 3 months' imprisonment for oral penetration of complainant niece when complainant was teenager - Delayed complaint - Repressed/recovered memory - Memory recovered approximately 15 years after incident triggered by sexualised comment made by applicant about complainant's infant child triggering sense of déjà vu - Meaning of comment in Vietnamese ambiguous - Recovered memory one of two purportedly recovered as part of déjà vu following same trigger at same time in respect of applicant and friend of applicant - Friend of applicant gave unchallenged evidence denying offending by him at trial of applicant - Whether verdict unreasonable or unable to be supported by the evidence - Whether recovered memory reliable - Whether substantial miscarriage of justice resulted from prosecutor's invitation to jury to discount applicant's denials in record of interview because he was the accused - Appeal allowed - Applicant acquitted.
CRIMINAL LAW - Rape - Applicant sentenced to 4 years and 3 months' imprisonment with a non-parole period of 2 years and 3 months' imprisonment for oral penetration of complainant niece when complainant was teenager - Delayed complaint - Repressed/recovered memory - Memory recovered approximately 15 years after incident triggered by sexualised comment made by applicant about complainant's infant child triggering sense of déjà vu - Meaning of comment in Vietnamese ambiguous - Recovered memory one of two purportedly recovered as part of déjà vu following same trigger at same time in respect of applicant and friend of applicant - Friend of applicant gave unchallenged evidence denying offending by him at trial of applicant - Whether verdict unreasonable or unable to be supported by the evidence - Whether recovered memory reliable - Whether substantial miscarriage of justice resulted from prosecutor's invitation to jury to discount applicant's denials in record of interview because he was the accused - Appeal allowed - Applicant acquitted.
Jury Directions Act 2015, div 2 pt 5, div 3 pt 5, ss 51(1)(c), 52, 54D, 54H.
Evidence Act 2008, ss 79, 80.
M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123, Robinson v The Queen (1991) 180 CLR 531; Hargraves v The Queen (2011) 245 CLR 257; Awad v The Queen (2022) 275 CLR 421, applied.
R v E (1997) 96 A Crim R 489, referred to.
CRIMINAL LAW - Appeal - Sentence - Intentionally causing serious injury - Excessive self-defence - Two victims suffering severe injuries - Total effective sentence 12 months' imprisonment with 18 month community correction order - Whether judge's finding that applicant was carrying a knife denied procedural fairness - Whether sentence manifestly excessive - Leave to appeal against sentence refused.
CRIMINAL LAW - Appeal - Sentence - Intentionally causing serious injury - Excessive self-defence - Two victims suffering severe injuries - Total effective sentence 12 months' imprisonment with 18 month community correction order - Whether judge's finding that applicant was carrying a knife denied procedural fairness - Whether sentence manifestly excessive - Leave to appeal against sentence refused.
CRIMINAL LAW - Appeal - Conviction - Conspiracy to defraud - Recruitment of foreign nationals to contact persons in Australia under sham pretext designed to induce transfer of money - Victims threatened with deportation, criminal trial, imprisonment or violence - No dispute as to existence of conspiracy - Issue whether applicants parties to conspiracy - Elements of conspiracy to defraud - Intention to give effect to conspiracy - Judge directed jury that conviction required satisfaction as to conspiracy and that applicants were parties - Whether judge erred in not giving direction as to mental element of offence - No party sought direction as to mental element of offence - No need for direction given inherently dishonest nature of conspiracy - Parties implicitly intended to give effect to conspiracy - Issue of intention not arising on case run by applicants - Risk of confusing jury - No substantial or compelling reason to give direction.
CRIMINAL LAW - Appeal - Conviction - Conspiracy to defraud - Recruitment of foreign nationals to contact persons in Australia under sham pretext designed to induce transfer of money - Victims threatened with deportation, criminal trial, imprisonment or violence - No dispute as to existence of conspiracy - Issue whether applicants parties to conspiracy - Elements of conspiracy to defraud - Intention to give effect to conspiracy - Judge directed jury that conviction required satisfaction as to conspiracy and that applicants were parties - Whether judge erred in not giving direction as to mental element of offence - No party sought direction as to mental element of offence - No need for direction given inherently dishonest nature of conspiracy - Parties implicitly intended to give effect to conspiracy - Issue of intention not arising on case run by applicants - Risk of confusing jury - No substantial or compelling reason to give direction.
Jury Directions Act 2015, ss 11-12, 14-16; Crimes Act 1958, ss 321, 321D, 321F.
Peters v The Queen (1998) 192 CLR 493; Scott v Metropolitan Police Commissioner [1975] AC 819; Wai Yu-tsang v The Queen [1992] 1 AC 269; Trudgeon v The Queen (1988) 39 A Crim R 252; R v Anderson [1986] AC 27; Yip-Chiu-Cheung v The Queen [1995] AC 111, Griffiths v The Queen (1994) 69 ALJR 77; Guy v The Queen (1991) 57 A Crim R 21, referred to.
CRIMINAL LAW - Appeal - Conviction - Conspiracy to defraud - Defence accepting existence of conspiracy but denying being parties - Judge directing jury that defendants not contesting they intended to achieve inducement of others by dishonest means - Judge further directing as to defence submission addressed to applicant's 'knowledge to conspire' - No other directions as to mental element - Risk of jury not understanding legal principles - No exception taken by counsel - No sound forensic basis - Fundamental departures from proper trial process giving rise to substantial miscarriage of justice - Leave to appeal granted - Appeals allowed.
CRIMINAL LAW - Interlocutory appeal - Application for leave to appeal against interlocutory ruling - Charge of theft - Allegation that applicant dishonestly appropriated Bitcoin belonging to another - Whether Bitcoin property for the purposes of the Crimes Act 1958 - Whether Bitcoin mere information - Whether Bitcoin exhibits characteristics of property identified in National Provincial Bank Ltd v Ainsworth [1965] AC 1175 - Whether Bitcoin intangible property other than chose in action - Bitcoin is more than mere information - Bitcoin is intangible property - Bitcoin is capable of being stolen - Application for leave to appeal granted to resolve issue of law - Appeal against interlocutory decision dismissed.
CRIMINAL LAW - Interlocutory appeal - Application for leave to appeal against interlocutory ruling - Charge of theft - Allegation that applicant dishonestly appropriated Bitcoin belonging to another - Whether Bitcoin property for the purposes of the Crimes Act 1958 - Whether Bitcoin mere information - Whether Bitcoin exhibits characteristics of property identified in National Provincial Bank Ltd v Ainsworth [1965] AC 1175 - Whether Bitcoin intangible property other than chose in action - Bitcoin is more than mere information - Bitcoin is intangible property - Bitcoin is capable of being stolen - Application for leave to appeal granted to resolve issue of law - Appeal against interlocutory decision dismissed.
Crimes Act 1958, s 71-72.
National Provincial Bank Ltd v Ainsworth [1965] AC 1175; Oxford v Moss (1979) 68 Cr App R 183; Federal Commissioner of Taxation v United Aircraft Corporation (1943) 68 CLR 525, followed.
ByBit Fintech Ltd v Ho Kai Xin [2023] SGHC 199; D'Aloia v Persons Unknown [2024] EWHC 2342 (Ch); Dixon v R [2015] 1 NZLR 678; Moss v Hancock [1899] 2 QB 111; National Trustees Executors and Agency Co of Australasia Ltd v Federal Commissioner of Taxation (1954) 91 CLR 540; Poulton v Conrad [2025] TASFC 7; Re Blockchain Tech Pty Ltd (2024) 76 VR 578; Ruscoe v Cryptopia Ltd (in liq) (2020) 2 NZLR 809; Tulip Trading Limited Ltd v van der Laan [2023] EWCA Civ 83; Your Response Ltd v Datateam Business Media Ltd [2014] EWCA Civ 281, discussed.
JOINDER APPLICATION - Supreme Court (General Civil Procedure) Rules 2015 (Vic) reg 9.06(b)(ii) - Whether primary insurers should be added as a party to proceedings - Whether just and convenient - CGU Insurance Limited v Blakeley (2016) 259 CLR 339 - S Pirrie Equities Pty Ltd & Ors v Venetian Media Group Pty Ltd & Ors ('S Pirrie') [2023] VSC 253 - Whether there should be exercise of discretion - Owners-Strata Plan 62658 v Mestrez Pty Ltd (2012) NSWSC 1259 - No denial of liability by the insurers - Whether there is a bona fide dispute - Civil Procedure Act 2010 (Vic).
JOINDER APPLICATION - Supreme Court (General Civil Procedure) Rules 2015 (Vic) reg 9.06(b)(ii) - Whether primary insurers should be added as a party to proceedings - Whether just and convenient - CGU Insurance Limited v Blakeley (2016) 259 CLR 339 - S Pirrie Equities Pty Ltd & Ors v Venetian Media Group Pty Ltd & Ors ('S Pirrie') [2023] VSC 253 - Whether there should be exercise of discretion - Owners-Strata Plan 62658 v Mestrez Pty Ltd (2012) NSWSC 1259 - No denial of liability by the insurers - Whether there is a bona fide dispute - Civil Procedure Act 2010 (Vic).
CORPORATIONS - 'Perfection' of security interests under the Personal Property Securities Act 2009 (Cth) - Corporations Act 2001 (Cth) - S 588FL - Where lender initially registered security interests on Personal Property Securities Register within prescribed time but specified incorrect collateral class - Status and effect of initial registration - Where subsequent registration specified correct collateral class but made outside prescribed period - S 588FM - Application for extension of time for subsequent registration - Whether failure to register in timely way accidental or due to inadvertence - Whether just and equitable to grant relief - Whether discretion to fix later time should be exercised - Relief granted with liberty reserved to unsecured creditors and any liquidator or administrator to apply to set aside order in event of external administration of grantor company.
CORPORATIONS - 'Perfection' of security interests under the Personal Property Securities Act 2009 (Cth) - Corporations Act 2001 (Cth) - S 588FL - Where lender initially registered security interests on Personal Property Securities Register within prescribed time but specified incorrect collateral class - Status and effect of initial registration - Where subsequent registration specified correct collateral class but made outside prescribed period - S 588FM - Application for extension of time for subsequent registration - Whether failure to register in timely way accidental or due to inadvertence - Whether just and equitable to grant relief - Whether discretion to fix later time should be exercised - Relief granted with liberty reserved to unsecured creditors and any liquidator or administrator to apply to set aside order in event of external administration of grantor company.
CORPORATIONS - Liquidation of trustee company - Company operated exclusively in its capacity as trustee - Whether liquidator justified and acting reasonably in so concluding - Whether to appoint liquidator as receiver and manager pursuant to s 37(1) of the Supreme Court Act 1986 (Vic) or make orders conferring powers pursuant to s 63 of Trustee Act 1958 (Vic) - Liquidator conferred powers pursuant to s 63 of Trustee Act 1958 (Vic) - Re Amerind Pty Ltd (receivers and managers apptd) (in liq) (2017) 320 FLR 118, applied.
CORPORATIONS - Liquidation of trustee company - Company operated exclusively in its capacity as trustee - Whether liquidator justified and acting reasonably in so concluding - Whether to appoint liquidator as receiver and manager pursuant to s 37(1) of the Supreme Court Act 1986 (Vic) or make orders conferring powers pursuant to s 63 of Trustee Act 1958 (Vic) - Liquidator conferred powers pursuant to s 63 of Trustee Act 1958 (Vic) - Re Amerind Pty Ltd (receivers and managers apptd) (in liq) (2017) 320 FLR 118, applied.
CORPORATIONS - Application for leave to proceed against Company in liquidation - Company part of large, complex group structure under the control of common liquidators - Whether serious question to be tried - Whether proof of debt procedures adequate taking into account discretionary factors - Leave refused - Corporations Act 2001 (Cth), s 471B.
CORPORATIONS - Application for leave to proceed against Company in liquidation - Company part of large, complex group structure under the control of common liquidators - Whether serious question to be tried - Whether proof of debt procedures adequate taking into account discretionary factors - Leave refused - Corporations Act 2001 (Cth), s 471B.
EVIDENCE - Application for letter of request to be sent to Central Authority of China - Where defendant said to be unavailable due to inability to leave China - Section 42E(1) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) - Taking foreign evidence - Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters - Evidence by audio-visual link - Private international law - Obtaining evidence through diplomatic channels - Chinese law - Letter of request requirement - Terms of letter of request.
EVIDENCE - Application for letter of request to be sent to Central Authority of China - Where defendant said to be unavailable due to inability to leave China - Section 42E(1) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) - Taking foreign evidence - Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters - Evidence by audio-visual link - Private international law - Obtaining evidence through diplomatic channels - Chinese law - Letter of request requirement - Terms of letter of request.
PRACTICE AND PROCEDURE - Application - Rules 41A.02 and 41.01(b) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Form 41D - Delay - Letter of request procedure - Procedure for sending letter of request.
FREEZING ORDER - Application by plaintiff for freezing injunction over settlement proceeds from sale of land - Trustee - Trust - Controlled monies account - Interim undertakings - Vested and indefeasible entitlement - Whether beneficiaries would be prejudiced - Whether risk of dissipation - Danger of disposal and diminution - Whether order should be subject to carve outs - Onus in relation to carve outs - Supreme Court (General Civil Procedure) Rules 2025, ord 37A - Rozenblit v Vainer [2019] VSCA 164; Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (in liq) (2018) 53 WAR 201 - Plus Recruitment Pty Ltd v Phillips (No 2) [2019] VSC 611.
FREEZING ORDER - Application by plaintiff for freezing injunction over settlement proceeds from sale of land - Trustee - Trust - Controlled monies account - Interim undertakings - Vested and indefeasible entitlement - Whether beneficiaries would be prejudiced - Whether risk of dissipation - Danger of disposal and diminution - Whether order should be subject to carve outs - Onus in relation to carve outs - Supreme Court (General Civil Procedure) Rules 2025, ord 37A - Rozenblit v Vainer [2019] VSCA 164; Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (in liq) (2018) 53 WAR 201 - Plus Recruitment Pty Ltd v Phillips (No 2) [2019] VSC 611.
DETINUE - Tort of detinue - Defendant's right to elect whether to return goods or pay their assessed value - Section 78 of the Common Law Procedure Act 1854 (UK) - Elements of the tort of detinue - Entry of judgment in default of appearance for delivery up of goods or payment of their assessed value.
DETINUE - Tort of detinue - Defendant's right to elect whether to return goods or pay their assessed value - Section 78 of the Common Law Procedure Act 1854 (UK) - Elements of the tort of detinue - Entry of judgment in default of appearance for delivery up of goods or payment of their assessed value.
DEFAULT JUDGMENT - Judgment in default of appearance pursuant to r 21.03(1)(d)(i) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Entry of interlocutory judgment in default of appearance in respect of delivery of goods or their value to be assessed under r 21.03(1)(d)(i) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Rules 2.04, 21.03(1)(d)(i), 66.04, and Forms 60L and 68C of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Leave to seek to enter judgment in default of appearance - Rule 2.07(1) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic).
PRACTICE AND PROCEDURE - Civil Procedure Act 2010 (Vic) - Possible questions arising regarding compliance with Civil Procedure Act 2010 (Vic) where relatively small claims brought in the Supreme Court of Victoria when within the jurisdiction of the County Court of Victoria or the Magistrates' Court of Victoria - Default judgment - Judgment in default of appearance pursuant to r 21.03(1)(d)(i) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Entry of interlocutory judgment in default of appearance in respect of delivery of goods or their value to be assessed under r 21.03(1)(d)(i) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Rules 2.04, 21.03(1)(d)(i), 66.04, and Forms 60L and 68C of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Leave to seek to enter judgment in default of appearance - Rule 2.07(1) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic).
PRACTICE AND PROCEDURE - Unconditional appearance - Submission to jurisdiction - Withdrawal - Contractual choice of forum clause - Rule 25.01, Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Waiver - Acts constituting waiver - Proposed to commence application for permanent stay of proceeding - Civil Procedure Act 2010 (Vic) - Part 8, Commercial Court Practice Note.
PRACTICE AND PROCEDURE - Unconditional appearance - Submission to jurisdiction - Withdrawal - Contractual choice of forum clause - Rule 25.01, Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Waiver - Acts constituting waiver - Proposed to commence application for permanent stay of proceeding - Civil Procedure Act 2010 (Vic) - Part 8, Commercial Court Practice Note.
PRACTICE AND PROCEDURE - Freezing order over single asset - Application by third defendant for variation to allow for expenditure on ordinary living expenses and reasonable legal expenses from frozen property - Whether defendant satisfied evidential burden to establish that she does not have sufficient available assets to meet those costs - Burden not satisfied - Plus Recruitment Pty Ltd v Phillips (No 2) [2019] VSC 611 and Vasilaras v Laprese [2019] VSC 56 applied - Application refused.
PRACTICE AND PROCEDURE - Freezing order over single asset - Application by third defendant for variation to allow for expenditure on ordinary living expenses and reasonable legal expenses from frozen property - Whether defendant satisfied evidential burden to establish that she does not have sufficient available assets to meet those costs - Burden not satisfied - Plus Recruitment Pty Ltd v Phillips (No 2) [2019] VSC 611 and Vasilaras v Laprese [2019] VSC 56 applied - Application refused.
PRACTICE AND PROCEDURE - Discovery - Defendants' application for specific discovery - Rule 29.08 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Whether documents relevant to question or fact in issue on the pleadings - Order for discovery made.
PRACTICE AND PROCEDURE - Discovery - Defendants' application for specific discovery - Rule 29.08 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Whether documents relevant to question or fact in issue on the pleadings - Order for discovery made.
WILLS AND ESTATES - Contested application for grant of probate - Whether will duly executed - Whether deceased knew and approved contents of will - Where defendant husband given a life interest in estate property - Where attestation clause - Where will attracts the presumption of regularity - Where only evidence that one witness not present during execution given by defendant - Defendant's evidence not accepted - Propounder proved that will duly executed by testator with testamentary capacity and that testator knew and approved contents - Suspicious circumstances not established - Wright v Rogers (1869) LR 1 PD 678 - Re Bladen [1952] VLR 82 - Re Gramp [1952] SASR 12 - Thompson v Bella-Lewis [1997] 1 Qd R 429 - McKinnon v Voigt [1998] 3 VR 543 - Burnside v Mulgrew; Re Estate of Grabrovaz [2007] NSWSC 550 - Veall v Veall (2015) 46 VR 123 - Public Trustee v Nezmeskal [2018] WASC 394 - Weiss v Weiss [2020] NSWSC 1064 - Re Curtis [2022] VSC 621 - Wills Act 1997 (Vic) ss 7, 9.
WILLS AND ESTATES - Contested application for grant of probate - Whether will duly executed - Whether deceased knew and approved contents of will - Where defendant husband given a life interest in estate property - Where attestation clause - Where will attracts the presumption of regularity - Where only evidence that one witness not present during execution given by defendant - Defendant's evidence not accepted - Propounder proved that will duly executed by testator with testamentary capacity and that testator knew and approved contents - Suspicious circumstances not established - Wright v Rogers (1869) LR 1 PD 678 - Re Bladen [1952] VLR 82 - Re Gramp [1952] SASR 12 - Thompson v Bella-Lewis [1997] 1 Qd R 429 - McKinnon v Voigt [1998] 3 VR 543 - Burnside v Mulgrew; Re Estate of Grabrovaz [2007] NSWSC 550 - Veall v Veall (2015) 46 VR 123 - Public Trustee v Nezmeskal [2018] WASC 394 - Weiss v Weiss [2020] NSWSC 1064 - Re Curtis [2022] VSC 621 - Wills Act 1997 (Vic) ss 7, 9.
PRACTICE AND PROCEDURE - Use of artificial intelligence to prepare written submissions filed with the Court - Where reliance placed on non-existent or hallucinated case references - Non-compliance with Guidelines issued by the Court - Accuracy of citations not verified - Responsible use of artificial intelligence - Accuracy of submissions fundamental to due administration of justice - Failure to meet the standards of professional conduct expected of solicitors - Practitioner afforded opportunity make submissions as to why she should not be referred to the Victorian Legal Services Commissioner - Referral not made - Expedient that conduct be dealt with in the Court's inherent jurisdiction in relation to the supervision of legal practitioners - Reprimand imposed - Director of Public Prosecutions v GR [2025] VSC 490 - Re Zita (a solicitor) [2022] VSC 354 - Civil Procedure Act 2010- Administration and Probate Act 1958, s 34(1) - Legal Profession Uniform Australian Solicitors' Conduct Rules 2015, rr 5.1.2, 4.1.3.
APPEALS - Appeals from different orders of Associate Judge made on three separate occasions - Appeals from costs orders, from orders for summary judgment and summary dismissal of related proceedings under Civil Procedure Act 2010 (Vic) for persistent breaches of discovery orders, and also from refusal to exercise discretion to set aside orders made in absence of a party - Appeals brought pursuant to s 17 of the Supreme Court Act 1986 (Vic) and r 77.06 of the Supreme Court (General Civil Procedure Rules) 2015 - No application for extension of time where Notices of Appeal from some orders filed out of time and applicant self-represented - Applications for extension of time still considered but refused - Grounds of appeal concerning inter alia procedural fairness - No legal, factual or discretionary error in the Associate Judge's decision established - Appeals dismissed.
APPEALS - Appeals from different orders of Associate Judge made on three separate occasions - Appeals from costs orders, from orders for summary judgment and summary dismissal of related proceedings under Civil Procedure Act 2010 (Vic) for persistent breaches of discovery orders, and also from refusal to exercise discretion to set aside orders made in absence of a party - Appeals brought pursuant to s 17 of the Supreme Court Act 1986 (Vic) and r 77.06 of the Supreme Court (General Civil Procedure Rules) 2015 - No application for extension of time where Notices of Appeal from some orders filed out of time and applicant self-represented - Applications for extension of time still considered but refused - Grounds of appeal concerning inter alia procedural fairness - No legal, factual or discretionary error in the Associate Judge's decision established - Appeals dismissed.
APPLICATIONS -Application to refer respondent to the Director of Public Prosecutions for investigation for perjury pursuant to s 314 of the Crimes Act 1958 (Vic) -Further application seeking travel restraint orders against respondent - No legitimate grounds for making referral or restraint orders sought - Applications refused.
APPEALS - Appeal from orders of an Associate Justice dismissing proceeding for want of prosecution - First plaintiff solicitor's repeated non-compliance with pre-trial orders - Some unusual features - Pre-trial orders again made, but with first plaintiff required to show cause if further non-compliance - Further non-compliance - First defendant's summons - Subsequent events and affidavit advising of additional bases for relief sought - Affidavit and written submissions served - No appearance by first plaintiff at hearing before Associate Justice - Summons amended and proceeding dismissed - Appeal in the nature of rehearing - Whether any claimed errors established - Whether Court had jurisdiction - Whether first plaintiff's defaults were 'intentional and contumelious' - Whether finding of 'no life interest' - Whether material denial of procedural fairness - Whether error in ordering costs of the proceeding on an indemnity basis - Supreme Court Act 1986 (Vic), ss 17(1A) and 17(3) - Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 1.14(2), 2.01(1), 2.04(1), 24.01(c), 24.05, 36.01(1), 46.02(1), 46.05(1), 46.07(1), 77.01(1), 77.02 and 77.06 - Perpetual Corporate Trust Limited v Sambanis [2025] VSC 531 considered - Appeal dismissed.
APPEALS - Appeal from orders of an Associate Justice dismissing proceeding for want of prosecution - First plaintiff solicitor's repeated non-compliance with pre-trial orders - Some unusual features - Pre-trial orders again made, but with first plaintiff required to show cause if further non-compliance - Further non-compliance - First defendant's summons - Subsequent events and affidavit advising of additional bases for relief sought - Affidavit and written submissions served - No appearance by first plaintiff at hearing before Associate Justice - Summons amended and proceeding dismissed - Appeal in the nature of rehearing - Whether any claimed errors established - Whether Court had jurisdiction - Whether first plaintiff's defaults were 'intentional and contumelious' - Whether finding of 'no life interest' - Whether material denial of procedural fairness - Whether error in ordering costs of the proceeding on an indemnity basis - Supreme Court Act 1986 (Vic), ss 17(1A) and 17(3) - Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 1.14(2), 2.01(1), 2.04(1), 24.01(c), 24.05, 36.01(1), 46.02(1), 46.05(1), 46.07(1), 77.01(1), 77.02 and 77.06 - Perpetual Corporate Trust Limited v Sambanis [2025] VSC 531 considered - Appeal dismissed.
EQUITY - Equitable compensation - Deceased estate - Residual estate comprising or including family farming property - Executors and trustees did not make distribution of residual estate to residual beneficiaries under deceased's will upon death of life tenant - Executors and trustees relied on deed executed by beneficiaries assigning their remainder interests to company related to executors and trustees - Beneficiaries claimed order setting aside assignment deed and equitable compensation for period beneficiaries were held out of possession of land - Court decided to set aside assignment for breach of fair-dealing rule and decided that the beneficiaries were entitled to equitable compensation - Quantification of equitable compensation based on expert estimates of market rent for period beneficiaries were held out of possession of land - Entitlement to simple interest at broadly estimated average borrowing rate - Treatment of certain expenses in relation to relevant land that were claimed by executors and trustees as deductions against compensation amount - Presumption about relevant terms of standard farm leases relied upon for the purposes of estimating market rent - Consideration of whether costs claimed as deductions would have been borne by a lessee under standard farm lease terms.
EQUITY - Equitable compensation - Deceased estate - Residual estate comprising or including family farming property - Executors and trustees did not make distribution of residual estate to residual beneficiaries under deceased's will upon death of life tenant - Executors and trustees relied on deed executed by beneficiaries assigning their remainder interests to company related to executors and trustees - Beneficiaries claimed order setting aside assignment deed and equitable compensation for period beneficiaries were held out of possession of land - Court decided to set aside assignment for breach of fair-dealing rule and decided that the beneficiaries were entitled to equitable compensation - Quantification of equitable compensation based on expert estimates of market rent for period beneficiaries were held out of possession of land - Entitlement to simple interest at broadly estimated average borrowing rate - Treatment of certain expenses in relation to relevant land that were claimed by executors and trustees as deductions against compensation amount - Presumption about relevant terms of standard farm leases relied upon for the purposes of estimating market rent - Consideration of whether costs claimed as deductions would have been borne by a lessee under standard farm lease terms.
PROBATE - Residual estate comprising or including family farming property - Relief sought by plaintiffs included order for distribution in specie - Where executors and trustees sought alternative order that they pay the amount of a market valuation of the property - Where it was submitted that the executors and trustees proposed to exercise their duties and powers under the will to sell the family farming property and distribute the residual estate to the beneficiaries in cash - Judicial advice and direction in probate and trust matters - Orders for in specie distribution - Supreme Court (General Civil Procedure) Rules 2025, ord 54.
PRACTICE AND PROCEDURE - Further evidence and submissions as to final orders (save as to costs) following publication of primary reasons for judgment.
INTERIM INJUNCTION - Interim orders under Environment Protection Act 2017 (Vic) - Modification of principles to be applied in determining whether to grant interim injunctive relief - Whether prima facie case made out - Balance of convenience - Where no undertaking as to damages required by relevant legislation - Principles of environmental protection relevant to the exercise of power under sections 309 and 310 of the Environment Protection Act 2017 (Vic) - Exercise of discretion to make alternative orders - Orders requiring reporting made.
INTERIM INJUNCTION - Interim orders under Environment Protection Act 2017 (Vic) - Modification of principles to be applied in determining whether to grant interim injunctive relief - Whether prima facie case made out - Balance of convenience - Where no undertaking as to damages required by relevant legislation - Principles of environmental protection relevant to the exercise of power under sections 309 and 310 of the Environment Protection Act 2017 (Vic) - Exercise of discretion to make alternative orders - Orders requiring reporting made.
Environment Protection Act 2017 (Vic) ss 1, 11, 13-23, 25, 309-310; Tymbook Pty Ltd v State of Victoria; Bradto Pty Ltd v State of Victoria (2006) 15 VR 65;* Australian Competition and Consumer Commission v IVF Finance Pty Ltd (No 2)* [2021] FCA 1295, referred to.
APPEAL - Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Statutory interpretation - Whether Tribunal erred in its determination of the scope and exercise of an administrator's powers under the Owners Corporations Act 2006 (Vic) - Owners corporation in a deadlock necessitating an independent administrator - Whether Tribunal erred in finding that the administrator could enter into a loan agreement without a special resolution - Whether an administrator entering into a loan agreement was acting 'in trade or commerce' under the Australian Consumer Law - Whether Tribunal erred in failing to find that an administrator owes a duty to consider financial circumstances of lot owners - Statutory duty to maintain and repair premises - Duty of administrator to act honestly and in good faith - No real prospect of success - Appeal dismissed.
APPEAL - Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Statutory interpretation - Whether Tribunal erred in its determination of the scope and exercise of an administrator's powers under the Owners Corporations Act 2006 (Vic) - Owners corporation in a deadlock necessitating an independent administrator - Whether Tribunal erred in finding that the administrator could enter into a loan agreement without a special resolution - Whether an administrator entering into a loan agreement was acting 'in trade or commerce' under the Australian Consumer Law - Whether Tribunal erred in failing to find that an administrator owes a duty to consider financial circumstances of lot owners - Statutory duty to maintain and repair premises - Duty of administrator to act honestly and in good faith - No real prospect of success - Appeal dismissed.
Victorian Civil and Administrative Act 1998 (Vic) s 148; Owners Corporations Act 2006 (Vic) ss 24, 25, 173, 174, 176, 177; Competition and Consumer Act 2010 (Cth) sch 2; Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594, considered; Kondo v Owners Corporation 33218101 (Owners Corporations) [2016] VCAT 909 and Anthony Horden & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, distinguished; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, applied.
INTERLOCUTORY INJUNCTION - Freezing Order - Order sought to restrain insurance proceeds - Danger of unsatisfied judgment - Whether unjustified dissipation of funds - Whether freezing order should continue.
INTERLOCUTORY INJUNCTION - Freezing Order - Order sought to restrain insurance proceeds - Danger of unsatisfied judgment - Whether unjustified dissipation of funds - Whether freezing order should continue.
ADMINISTRATIVE LAW - Judicial review - Medical panel convened under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ('WIRC Act') - Asserted error of fact said to amount to jurisdictional error - Asserted legal unreasonableness due to illogicality or irrationality - Asserted failure to give adequate reasons amounting to error of law on the face of the record - Medical panel's reasons not to be construed minutely and finely with an eye for error.
ADMINISTRATIVE LAW - Judicial review - Medical panel convened under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ('WIRC Act') - Asserted error of fact said to amount to jurisdictional error - Asserted legal unreasonableness due to illogicality or irrationality - Asserted failure to give adequate reasons amounting to error of law on the face of the record - Medical panel's reasons not to be construed minutely and finely with an eye for error.
ADMINISTRATIVE LAW - Appeal on a question of law under s 109 of the Magistrates' Court Act 1989 (Vic) - Whether magistrate erred in refusing an application under s 42E of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) - Whether magistrate erred in refusing an application to adjourn to allow witness to testify - Grounds for appellate review of decisions on practice and procedure - Grounds for appellate review of decisions on evidence - Denial of opportunity to present further evidence - Denial of procedural fairness - Materiality where counter factual is non-binary - LPDT v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 and Stead v State Government Insurance Commission (1986) 161 CLR 141, considered - Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175 applied - Giovinazzo v Resource Capital Ltd [2025] VSCA 176 referred to - Appeal dismissed.
ADMINISTRATIVE LAW - Appeal on a question of law under s 109 of the Magistrates' Court Act 1989 (Vic) - Whether magistrate erred in refusing an application under s 42E of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) - Whether magistrate erred in refusing an application to adjourn to allow witness to testify - Grounds for appellate review of decisions on practice and procedure - Grounds for appellate review of decisions on evidence - Denial of opportunity to present further evidence - Denial of procedural fairness - Materiality where counter factual is non-binary - LPDT v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 and Stead v State Government Insurance Commission (1986) 161 CLR 141, considered - Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175 applied - Giovinazzo v Resource Capital Ltd [2025] VSCA 176 referred to - Appeal dismissed.
ADMINISTRATIVE LAW - Application under the Administrative Law Act 1978 (Vic) - Application for Order for Review - Section 4(2) of the Administrative Law Act 1978 (Vic) - Whether application made within time - Held, application made out of time - Court has no power to extend time to file an application for an order for review under the Administrative Law Act 1978 (Vic) - Application dismissed.
ADMINISTRATIVE LAW - Application under the Administrative Law Act 1978 (Vic) - Application for Order for Review - Section 4(2) of the Administrative Law Act 1978 (Vic) - Whether application made within time - Held, application made out of time - Court has no power to extend time to file an application for an order for review under the Administrative Law Act 1978 (Vic) - Application 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.
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 - Judicial review - Application for review of decision of the delegate to the Secretary to the Department of Justice and Community Safety not to grant emergency management days - Whether delegate's decision was unlawfully fettered by departmental policy - Whether decision maker failed to evaluate the material before her - Whether delegate's decision legally unreasonably - Proceeding dismissed - Corrections Act 1986 (Vic) s 58E.
ADMINISTRATIVE LAW - Judicial review - Application for review of decision of the delegate to the Secretary to the Department of Justice and Community Safety not to grant emergency management days - Whether delegate's decision was unlawfully fettered by departmental policy - Whether decision maker failed to evaluate the material before her - Whether delegate's decision legally unreasonably - Proceeding dismissed - Corrections Act 1986 (Vic) s 58E.
PRACTICE AND PROCEDURE - Standing - Claim for declaratory and injunctive relief to enforce the conditions of a licence to operate an abattoir - Plaintiff a charitable organisation concerned with animal welfare - Whether plaintiff has standing to bring claim in relation to breach of licence - Statutory context does not support or assist claim by plaintiff to standing - Plaintiff has not demonstrated a special interest in the subject matter of the proceeding - Proceeding dismissed - VicForests v Kinglake Friends of the Forest Inc (2021) 66 VR 143.
PRACTICE AND PROCEDURE - Standing - Claim for declaratory and injunctive relief to enforce the conditions of a licence to operate an abattoir - Plaintiff a charitable organisation concerned with animal welfare - Whether plaintiff has standing to bring claim in relation to breach of licence - Statutory context does not support or assist claim by plaintiff to standing - Plaintiff has not demonstrated a special interest in the subject matter of the proceeding - Proceeding dismissed - VicForests v Kinglake Friends of the Forest Inc (2021) 66 VR 143.
PRACTICE AND PROCEDURE - Summary dismissal - Whether relief sought amounts to declaration that the first defendant has committed criminal offences - Facts in issue and potential for extensive evidence to be led at trial - Whether claims for relief have a real prospect of success - Civil Procedure Act 2010 ss 63, 64.
STATUTORY INTERPRETATION - Whether Meat Industry Act 1993 concerned with animal welfare - Whether Meat Industry Act 1993 recognises an interest in animal welfare, imposes any public duties or creates a concomitant public right.
PRACTICE AND PROCEDURE - Mode and date of trial - Plaintiff's application to vacate trial date - Third defendant's application to dispense with jury - Insufficient explanation for lateness of adjournment application - Need for adjournment because of a revised estimate of time as a jury matter - Content of trial not beyond understanding of community members albeit a matter of complexity, but proceeding as a jury would involve waste of significant time and expenses on the eve of trial - Application to vacate rejected - Application to dispense with jury successful - Gaskin v The Geelong Revival Centre [2025] VSCA 225 - Trevor Roller Shutter Service Pty Ltd v Duane Alex Crowe [2011] VSCA 16 - Birti v SPI Electricity [2011] VSC 566 - McCullough v Footscray FC [2025] VSC 443 - Rule 47.02 of Supreme Court (General Civil Procedure) Rules 2025 (Vic).
PRACTICE AND PROCEDURE - Mode and date of trial - Plaintiff's application to vacate trial date - Third defendant's application to dispense with jury - Insufficient explanation for lateness of adjournment application - Need for adjournment because of a revised estimate of time as a jury matter - Content of trial not beyond understanding of community members albeit a matter of complexity, but proceeding as a jury would involve waste of significant time and expenses on the eve of trial - Application to vacate rejected - Application to dispense with jury successful - Gaskin v The Geelong Revival Centre [2025] VSCA 225 - Trevor Roller Shutter Service Pty Ltd v Duane Alex Crowe [2011] VSCA 16 - Birti v SPI Electricity [2011] VSC 566 - McCullough v Footscray FC [2025] VSC 443 - Rule 47.02 of Supreme Court (General Civil Procedure) Rules 2025 (Vic).
PRACTICE AND PROCEDURE - Plaintiff's application to extend time to serve interrogatories - Application to amend 'at large' - Application opposed by all defendants - Application permitted only to extent that second and fourth defendants prepared to answer - Leave otherwise not granted.
PRACTICE AND PROCEDURE - Third defendant's application to amend defence - Proposed amendment would not change the plaintiff's obligation to prove the duty or cause prejudice - Application to amend granted - Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 - Rule 36.01 of Supreme Court (General Civil Procedure) Rules 2025 (Vic)*.
PRACTICE AND PROCEDURE - Applicant solicitor - Disciplinary findings made by the Victorian Civil and Administrative Tribunal following a hearing held over several days in December 2023 and October 2024 - Findings of professional misconduct and unsatisfactory professional conduct, including a finding of seriously dishonest conduct in connection with the practice of law - Application for review sought to be brought by the applicant under s 4 of the Administrative Law Act 1978 (Vic) - Application determined by an associate justice to have been made out of time - Urgent hearing sought seeking the stay of a penalty hearing - Whether onus discharged - Whether special or exceptional circumstances shown - Supreme Court (General Civil Procedure) Rules 2025 (Vic), r 77.06.6 - Frugtniet v Law Institute of Victoria Limited [2011] VSCA 184; Quick v Lam-Ly Pty Ltd [2019] VSCA 111 considered - Application dismissed.
PRACTICE AND PROCEDURE - Applicant solicitor - Disciplinary findings made by the Victorian Civil and Administrative Tribunal following a hearing held over several days in December 2023 and October 2024 - Findings of professional misconduct and unsatisfactory professional conduct, including a finding of seriously dishonest conduct in connection with the practice of law - Application for review sought to be brought by the applicant under s 4 of the Administrative Law Act 1978 (Vic) - Application determined by an associate justice to have been made out of time - Urgent hearing sought seeking the stay of a penalty hearing - Whether onus discharged - Whether special or exceptional circumstances shown - Supreme Court (General Civil Procedure) Rules 2025 (Vic), r 77.06.6 - Frugtniet v Law Institute of Victoria Limited [2011] VSCA 184; Quick v Lam-Ly Pty Ltd [2019] VSCA 111 considered - Application dismissed.
PRACTICE AND PROCEDURE - Appeal from determination of judicial registrar - Scheduling orders - Inspection of court file - Supreme Court (General Civil Procedure) Rules 2025, r 28.05(4).
PRACTICE AND PROCEDURE - Appeal from determination of judicial registrar - Scheduling orders - Inspection of court file - Supreme Court (General Civil Procedure) Rules 2025, r 28.05(4).
PRACTICE AND PROCEDURE - Strike out application - Pleadings - Breach of Contract - Whether singular or multiple breaches alleged - Whether pleadings are ambiguous - Potential limitations defence unless pleadings clarified - Leave to file amended pleadings granted.
PRACTICE AND PROCEDURE - Strike out application - Pleadings - Breach of Contract - Whether singular or multiple breaches alleged - Whether pleadings are ambiguous - Potential limitations defence unless pleadings clarified - Leave to file amended pleadings granted.
Supreme Court (General Civil Procedure) Rules 2025 (Vic) rr 13.02(1)(a), 23.02 - Civil Procedure Act 2010 (Vic) ss 62-64 - Wheelahan & Anor v City of Casey & Ors (No 12) [2013] VSC 316, Uber Australia Pty Ltd & Anor v Andrianakis (2020) 61 VR 580, Larking v Great Western (Nepean) Gravel Ltd (in liq) (1940) 60 CLR 221, referred to.
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 - Representative proceeding - Negligence - Alternative claim for breach of duties under the Occupational Health and Safety Regulations - Application for summary judgment and strike out of pleadings - Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436 - Deal v Father Pius Kodakkathanath (2016) 258 CLR 281 - No cause of action disclosed by pleadings - Claim struck out with leave to replead.
PRACTICE AND PROCEDURE - Representative proceeding - Negligence - Alternative claim for breach of duties under the Occupational Health and Safety Regulations - Application for summary judgment and strike out of pleadings - Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436 - Deal v Father Pius Kodakkathanath (2016) 258 CLR 281 - No cause of action disclosed by pleadings - Claim struck out with leave to replead.
SALE OF LAND - PROCEEDING TO RECOVER DEPOSIT - Contract of sale of land REIV and Law Institute of Victoria standard form GC 20 - Plaintiff purchasers seeking to "end" contract pursuant to condition GC 20 - Land sold subject to purchasers obtaining loan - Whether purchasers "immediately applied for the loan" - Whether purchasers "did everything reasonably required to obtain approval of the loan ".
SALE OF LAND - PROCEEDING TO RECOVER DEPOSIT - Contract of sale of land REIV and Law Institute of Victoria standard form GC 20 - Plaintiff purchasers seeking to "end" contract pursuant to condition GC 20 - Land sold subject to purchasers obtaining loan - Whether purchasers "immediately applied for the loan" - Whether purchasers "did everything reasonably required to obtain approval of the loan ".