COURTS - Judges - Bias - Reasonable apprehension of bias - Where proceedings for contraventions of civil penalty provisions of National Consumer Credit Protection Act 2009 (Cth) bifurcated into liability and penalty stages - Where primary judge made adverse credit findings at liability stage - Where contraventions established - Where primary judge recused himself from hearing penalty stage - Whether recusal justified on basis of reasonable apprehension of bias - Whether findings at liability stage revealed animus or prejudgment.
COURTS - Judges - Bias - Reasonable apprehension of bias - Where proceedings for contraventions of civil penalty provisions of National Consumer Credit Protection Act 2009 (Cth) bifurcated into liability and penalty stages - Where primary judge made adverse credit findings at liability stage - Where contraventions established - Where primary judge recused himself from hearing penalty stage - Whether recusal justified on basis of reasonable apprehension of bias - Whether findings at liability stage revealed animus or prejudgment.
WORDS AND PHRASES - "adverse credibility findings", "adverse credit findings", "animosity", "animus", "bifurcated hearing", "civil penalty proceedings", "double might test", "fair-minded lay observer", "finality of judicial decisions", "impartial mind", "logical connection", "ordinary judicial practice", "prejudgment", "reasonable apprehension of bias", "recusal".
Federal Court of Australia Act 1976 (Cth), ss 37P, 59.
National Consumer Credit Protection Act 2009 (Cth), ss 166, 167, Sch 1.
Federal Court Rules 2011 (Cth), rr 30.01, 30.02.
CONSTITUTIONAL LAW (Cth) - Judicial power of Commonwealth - Where cl 070.612A(1) of Sch 2 to Migration Regulations 1994 (Cth) provided that Minister must impose certain conditions on holder of Bridging R (Class WR) Subclass 070 (Bridging (Removal Pending)) visa ("BVR") if both "satisfied on the balance of probabilities that the holder poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence" and "satisfied on the balance of probabilities that the imposition of the condition ... is ... reasonably necessary ... and ... reasonably appropriate and adapted ... for the purpose of protecting any part of the Australian community from serious harm by addressing that substantial risk" - Where condition 8621 requires BVR holder to wear continuous electronic monitoring device at all times ("monitoring condition") - Where condition 8620 requires BVR holder to remain at notified address between hours of 10.00pm and 6.00am each day ("curfew condition") - Where rules of natural justice do not apply to decision of Minister to grant BVR subject to monitoring condition or curfew condition - Where monitoring condition and curfew condition remain in force for period of 12 months from date of grant - Where non-compliance with monitoring condition or curfew condition an offence punishable by term of imprisonment of between one and five years - Where plaintiff granted BVR subject to monitoring condition and curfew condition - Whether cl 070.612A(1) of Sch 2 to Migration Regulations invalid to extent it authorised and required Minister to impose monitoring condition and curfew condition because it exceeded regulation-making power conferred by s 504 of Migration Act 1958 (Cth) when power construed subject to Ch III of Constitution.
CONSTITUTIONAL LAW (Cth) - Judicial power of Commonwealth - Where cl 070.612A(1) of Sch 2 to Migration Regulations 1994 (Cth) provided that Minister must impose certain conditions on holder of Bridging R (Class WR) Subclass 070 (Bridging (Removal Pending)) visa ("BVR") if both "satisfied on the balance of probabilities that the holder poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence" and "satisfied on the balance of probabilities that the imposition of the condition ... is ... reasonably necessary ... and ... reasonably appropriate and adapted ... for the purpose of protecting any part of the Australian community from serious harm by addressing that substantial risk" - Where condition 8621 requires BVR holder to wear continuous electronic monitoring device at all times ("monitoring condition") - Where condition 8620 requires BVR holder to remain at notified address between hours of 10.00pm and 6.00am each day ("curfew condition") - Where rules of natural justice do not apply to decision of Minister to grant BVR subject to monitoring condition or curfew condition - Where monitoring condition and curfew condition remain in force for period of 12 months from date of grant - Where non-compliance with monitoring condition or curfew condition an offence punishable by term of imprisonment of between one and five years - Where plaintiff granted BVR subject to monitoring condition and curfew condition - Whether cl 070.612A(1) of Sch 2 to Migration Regulations invalid to extent it authorised and required Minister to impose monitoring condition and curfew condition because it exceeded regulation-making power conferred by s 504 of Migration Act 1958 (Cth) when power construed subject to Ch III of Constitution.
WORDS AND PHRASES - "adjudgment and punishment of criminal guilt", "bodily integrity", "Boilermakers principle", "constitutional paradigm", "constitutionally prescribed system of government", "curfew condition", "detriment", "exclusively judicial", "fundamental freedoms", "judicial power", "Kable principle", "legitimate and non-punitive purpose", "liberty", "Lim principle", "monitoring condition", "nature and severity", "NZYQ affected person", "penal or punitive", "prima facie punitive", "procedural fairness", "proportionality", "protective punishment", "punishment", "punitive purpose", "reasonably appropriate and adapted", "reasonably capable of being seen as necessary", "reasonably necessary", "separation of powers", "substantial risk of serious harm".
Constitution, Ch III.
Criminal Code (Cth), Div 395.
Migration Act 1958 (Cth), ss 72, 73, 76C, 76D, 76DA, 76E, 504.
Migration Regulations 1994 (Cth), regs 2.20, 2.25AD, 2.25AE, Sch 2, cll 070.111, 070.612A, Sch 8, cll 8620, 8621.
JURISDICTION OF COURTS - Refusal of Prothonotary to accept documents for filing - Judge refusing to direct Prothonotary to accept documents for filing under Supreme Court (General Civil Procedure) Rules 2015, r 28A.04(5) - Applications for leave to appeal - Jurisdiction of Court of Appeal - Whether decision of judge a 'determination of the Trial Division constituted by a Judge of the Court' within Supreme Court Act 1986, s 17(2) - Decision involving no controversy over a right, duty, liability or finalisation of any 'matter' - Decision involving exercise of administrative not judicial power - Decision not a 'determination of the Trial Division' - No jurisdiction in Court of Appeal - Applications for leave to appeal dismissed.
JURISDICTION OF COURTS - Refusal of Prothonotary to accept documents for filing - Judge refusing to direct Prothonotary to accept documents for filing under Supreme Court (General Civil Procedure) Rules 2015, r 28A.04(5) - Applications for leave to appeal - Jurisdiction of Court of Appeal - Whether decision of judge a 'determination of the Trial Division constituted by a Judge of the Court' within Supreme Court Act 1986, s 17(2) - Decision involving no controversy over a right, duty, liability or finalisation of any 'matter' - Decision involving exercise of administrative not judicial power - Decision not a 'determination of the Trial Division' - No jurisdiction in Court of Appeal - Applications for leave to appeal dismissed.
PRACTICE AND PROCEDURE - Applications for leave to appeal - Applications referred for determination by single judge under Supreme Court (General Civil Procedure) Rules 2025, r 64.15(1) - Applications dismissed for lack of jurisdiction - Whether applications 'totally without merit' under Supreme Court Act 1986, s 14D(3) - Whether clearly no prospect of success - Whether oral hearing before enlarged bench could reach opposite conclusion - Applications totally without merit.
WORDS AND PHRASES - 'determination of the Trial Division' - 'matters' - 'totally without merit'.
Supreme Court (General Civil Procedure) Rules 2025, r 64.15(1), Supreme Court (General Civil Procedure) Rules 2015, r 28A.04; Supreme Court Act 1986, ss 10, 14D(3), 17; Constitution Act 1975, s 75A; County Court Act 1958, s 74; County Court Civil Procedure Rules 2018, r 27.06; Federal Court of Australia Act 1976 (Cth), s 24.
O'Bryan v Lindholm (2024) 74 VR 496, City of Camberwell v Camberwell Shopping Centre Pty Ltd [1994] 1 VR 163, applied; Bowman v Transport Accident Commission [2021] VSCA 196; Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353; Manolakis v District Registrar of the Federal Court of Australia (SA) (2008) 170 FCR 426, referred to.
FAMILY PROVISION AND MAINTENANCE - Deceased's will divided estate equally between her seven children - Family home main asset of estate - Applicant living in family home since 2004 - Applicant sought family provision order of a life interest in family home and substantial lump sum - Trial judge made family provision order in favour of applicant not including life interest in family home - No error in exercise of judge's discretion - Proposed grounds have no real prospect of success - Application for leave to appeal refused.
FAMILY PROVISION AND MAINTENANCE - Deceased's will divided estate equally between her seven children - Family home main asset of estate - Applicant living in family home since 2004 - Applicant sought family provision order of a life interest in family home and substantial lump sum - Trial judge made family provision order in favour of applicant not including life interest in family home - No error in exercise of judge's discretion - Proposed grounds have no real prospect of success - Application for leave to appeal refused.
Administration and Probate Act 1958, pt IV.
Worladge v Doddridge (1957) 97 CLR 1; Gash v Ruzicka (2023) 23 ASTLR 52; Davison v Kempson (2018) 17 ASTLR 244; Barns v Barns (2003) 214 CLR 169; Alexander v Jansson (2010) 6 ASTLR 432, considered.
EVIDENCE - Hearsay and admissions - Conviction appeal - Applicant convicted of rape, common assault and making threat to kill - Applicant was in an intimate relationship with complainant - Prosecution adduced evidence that applicant told electoral officer he felt he was entitled to have sex without his partner's consent (the 'statements') - Electoral officer's evidence of the statements was admitted over applicant's objection that it was hearsay or should be excluded pursuant to s 137 of the Evidence Act 2008 - At trial parties agreed the statements were not admissions - Judge ruled the statements were admissible for a non-hearsay purpose pursuant to ss 60 and 66 - In Court of Appeal respondent conceded neither ss 60 nor 66 provided a basis to admit the statements, however parties agreed the statements were admissible as admissions under s 81 - Whether trial judge misdirected jury as to use of the evidence - Where applicant could have objected to the statements under s 90 on basis of mental health issues - Whether substantial miscarriage of justice occurred - Trial proceeded on an incorrect legal basis - Leave to appeal granted - Appeal allowed - Retrial ordered.
EVIDENCE - Hearsay and admissions - Conviction appeal - Applicant convicted of rape, common assault and making threat to kill - Applicant was in an intimate relationship with complainant - Prosecution adduced evidence that applicant told electoral officer he felt he was entitled to have sex without his partner's consent (the 'statements') - Electoral officer's evidence of the statements was admitted over applicant's objection that it was hearsay or should be excluded pursuant to s 137 of the Evidence Act 2008 - At trial parties agreed the statements were not admissions - Judge ruled the statements were admissible for a non-hearsay purpose pursuant to ss 60 and 66 - In Court of Appeal respondent conceded neither ss 60 nor 66 provided a basis to admit the statements, however parties agreed the statements were admissible as admissions under s 81 - Whether trial judge misdirected jury as to use of the evidence - Where applicant could have objected to the statements under s 90 on basis of mental health issues - Whether substantial miscarriage of justice occurred - Trial proceeded on an incorrect legal basis - Leave to appeal granted - Appeal allowed - Retrial ordered.
Evidence Act 2008, ss 60, 66, 81, 90, 97, 137; Jury Directions Act 2015, s 32.
Burns v R (1975) 132 CLR 258; R v Rudd (2009) 23 VR 444; Nguyen v The Queen (2020) 269 CLR 299; Mule v R (2005) 79 ALJR 1573, considered.
Em v The Queen (2007) 232 CLR 67; DPP v Myles (2021) 293 A Crim R 166; Headland (a pseudonym) v The King [2023] VSCA 174; Mallard v The Queen (2005) 224 CLR 125; Elomar v R (2014) 300 FLR 323, discussed.
FAMILY PROVISION - Appeal - Respondent sole living child of testator - Testator's Will made inadequate provision for respondent - Family provision order made in favour of respondent - Whether judge's decision was unreasonable or unjust - Whether judge considered irrelevant considerations - Whether judge's reasons were inadequate - Testator's moral duty to her daughter higher than any duty to her grandsons - Executors wholly failed to exercise discretion - Open to the judge to conclude flexible life interest less appropriate than provision of funds to purchase home - Respondent deserved security in her own right - No error in judge's reasoning - Careful and considered reasons - No reasonable prospects of success - Leave to appeal refused.
FAMILY PROVISION - Appeal - Respondent sole living child of testator - Testator's Will made inadequate provision for respondent - Family provision order made in favour of respondent - Whether judge's decision was unreasonable or unjust - Whether judge considered irrelevant considerations - Whether judge's reasons were inadequate - Testator's moral duty to her daughter higher than any duty to her grandsons - Executors wholly failed to exercise discretion - Open to the judge to conclude flexible life interest less appropriate than provision of funds to purchase home - Respondent deserved security in her own right - No error in judge's reasoning - Careful and considered reasons - No reasonable prospects of success - Leave to appeal refused.
Administration and Probate Act 1958, ss 91, 95 and 99.
Singer v Berghouse (1994) 181 CLR 201; Milillo v Konnecke (2009) 2 ASTLR 235; Crisp v Burns Philp Trustee Company Ltd (Supreme Court of New South Wales, Holland J, 18 December 1979); Smith v Barker [2005] NSWSC 14; Moore v Moore [2005] VSC 95, considered.
Downing v Downing [2003] VSC 28, discussed.
Vigolo v Bostin (2005) 221 CLR 191; Richard v AXA Trustees Ltd [2000] VSC 341; Grey v Harrison [1997] 2 VR 359, referred to.
PERSONAL INJURIES - Plaintiff pregnant with first child and accepted into 'Mamta' program at Bendigo Health - Antenatal consultations - Written birth plan in which the plaintiff declined all vaginal examinations unless there is an urgent medical reason - Plaintiff attended antenatal consultation with a 'Mamta midwife' after early contractions and when four days overdue - Plaintiff and husband manage further early labour at home - Membranes ruptured at 5:45pm - Pattern of contractions recorded - Husband called the hospital for the third or fourth time at 10:30pm - Plaintiff and husband attended the hospital at about 11:05pm - Examination and assessment by 'hospital midwife' - Plaintiff refused multiple requests for vaginal examination - Hospital policies - Plaintiff not admitted to hospital, given pain medication or Mamta midwife called unless vaginal examination performed - No urgent medical reason - Hospital midwife escalated issue to supervising midwife and directed to apply policy - Vaginal examination performed by ward midwife shortly after 1:10am - Plaintiff admitted to hospital, 'Mamta midwife' called and pain relief medication administered - 'Mamta midwife' attended at about 2am - Subsequent further vaginal examinations - Baby born at 6:38am - Later home visit by 'Mamta midwife' - Plaintiff's 'feedback' by email to hospital - Hospital's responses - Plaintiff claims in negligence and battery - Whether breach of duty of care - Whether consent given freely and voluntarily - Plaintiff did not 'actually consent' - Aspects of the negligence claim also made out - Causation - Liability established - Assessment of damages - Psychiatric injury - Aggravated damages claimed - No aggravated damages awarded - Secretary, Department of Health and Community Services v JMB [Marion's case] (1992) 175 CLR 218; Rogers v Whitaker (1992) 175 CLR 479; Latter v Braddell (1881) 50 LJQB 448; Norberg v Wynrib [1992] 2 SCR 226; Carter v Walker (2010) 32 VR 1; Young, Is there any law of consent with respect to assault? (2011) 85 ALJ 23; Moon v Whitehead (2015) 10 ACTLR 309; Gorman v McKnight [2020] NSWCA 20 considered and discussed - Wrongs Act 1958 (Vic), ss 59 and 60 - Judgment for the plaintiff for damages assessed.
PERSONAL INJURIES - Plaintiff pregnant with first child and accepted into 'Mamta' program at Bendigo Health - Antenatal consultations - Written birth plan in which the plaintiff declined all vaginal examinations unless there is an urgent medical reason - Plaintiff attended antenatal consultation with a 'Mamta midwife' after early contractions and when four days overdue - Plaintiff and husband manage further early labour at home - Membranes ruptured at 5:45pm - Pattern of contractions recorded - Husband called the hospital for the third or fourth time at 10:30pm - Plaintiff and husband attended the hospital at about 11:05pm - Examination and assessment by 'hospital midwife' - Plaintiff refused multiple requests for vaginal examination - Hospital policies - Plaintiff not admitted to hospital, given pain medication or Mamta midwife called unless vaginal examination performed - No urgent medical reason - Hospital midwife escalated issue to supervising midwife and directed to apply policy - Vaginal examination performed by ward midwife shortly after 1:10am - Plaintiff admitted to hospital, 'Mamta midwife' called and pain relief medication administered - 'Mamta midwife' attended at about 2am - Subsequent further vaginal examinations - Baby born at 6:38am - Later home visit by 'Mamta midwife' - Plaintiff's 'feedback' by email to hospital - Hospital's responses - Plaintiff claims in negligence and battery - Whether breach of duty of care - Whether consent given freely and voluntarily - Plaintiff did not 'actually consent' - Aspects of the negligence claim also made out - Causation - Liability established - Assessment of damages - Psychiatric injury - Aggravated damages claimed - No aggravated damages awarded - Secretary, Department of Health and Community Services v JMB [Marion's case] (1992) 175 CLR 218; Rogers v Whitaker (1992) 175 CLR 479; Latter v Braddell (1881) 50 LJQB 448; Norberg v Wynrib [1992] 2 SCR 226; Carter v Walker (2010) 32 VR 1; Young, Is there any law of consent with respect to assault? (2011) 85 ALJ 23; Moon v Whitehead (2015) 10 ACTLR 309; Gorman v McKnight [2020] NSWCA 20 considered and discussed - Wrongs Act 1958 (Vic), ss 59 and 60 - Judgment for the plaintiff for damages assessed.
TAXATION - Land tax - Appeal - Primary production exemption - Whether relevant person normally engaged in a 'substantially full-time capacity' in the relevant business of primary production - Where relevant person spent average of 24 hours per week working in relevant primary production business - 'Substantially full-time capacity' does not import reference to 'requirements' of relevant business - Primary production exemption not made out - Application for leave to appeal refused.
TAXATION - Land tax - Appeal - Primary production exemption - Whether relevant person normally engaged in a 'substantially full-time capacity' in the relevant business of primary production - Where relevant person spent average of 24 hours per week working in relevant primary production business - 'Substantially full-time capacity' does not import reference to 'requirements' of relevant business - Primary production exemption not made out - Application for leave to appeal refused.
WORDS AND PHRASES - 'Primary production' - 'Business of primary production' - 'Engaged in a substantially full-time capacity'.
Land Tax Act 2005, ss 7, 8, 36(1), 64(1)(b), 67(1), 67B(2).
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; Baini v The Queen (2012) 246 CLR 469; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; Fleming v The Queen (1998) 197 CLR 250; SAS Trustee Corporation v Miles (2018) 265 CLR 137, applied. Annat Pty Ltd v Commissioner of State Revenue (Vic) [2020] VSC 108; Damon v Commissioner of Land Tax (Vic) (1985) 17 ATR 278; Lotus Oaks Pty Ltd v Commissioner of State Revenue (Vic) (2021) 113 ATR 379, referred to.
CRIMINAL LAW - Application for leave to appeal against conviction - Applicant seeks documents from Chief Commissioner of Victoria Police - Application for non-disclosure of materials pursuant to s 416A of Criminal Procedure Act 2009 (Vic) - Application for exclusion of evidence of matters of state pursuant to s 130 of the Evidence Act 2008 (Vic) - Application for non-disclosure and exclusion of evidence pursuant to the inherent jurisdiction of the Court - Where Court found public interest in favour of non-disclosure.
CRIMINAL LAW - Application for leave to appeal against conviction - Applicant seeks documents from Chief Commissioner of Victoria Police - Application for non-disclosure of materials pursuant to s 416A of Criminal Procedure Act 2009 (Vic) - Application for exclusion of evidence of matters of state pursuant to s 130 of the Evidence Act 2008 (Vic) - Application for non-disclosure and exclusion of evidence pursuant to the inherent jurisdiction of the Court - Where Court found public interest in favour of non-disclosure.
Criminal Procedure Act 2009 (Vic), ss 274, 319A, 326A, 416A, 111; Evidence Act 2008 (Vic), ss 130, 131A.
D'Aloia v The King [2022] VSCA 265; Roberts v The Queen [2020] 60 VR 431; Chief Commissioner of Police v Crupi (2024) 98 ALJR 1131; R v Debono (2012) 225 A Crim R 585; R v Cox (No 3) [2005] VSC 249; Sankey v Whitlam (1978) 142 CLR 1; Alister v The Queen (1984) 154 CLR 404; Commonwealth v Northern Land Council (1993) 176 CLR 604; Jarvie v Magistrates' Court of Victoria [1995] 1 VR 84; [Redacted]; R v D'Aloia [2005] VCC 237; Mokbel v The King [2024] VSC 725; Mokbel v The Queen [2022] VSCA 83; [Redacted].
CRIMINAL LAW - Orders under Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 consequent upon jury findings that sexual offences committed - Tendency evidence founded on uncharged acts relied upon - Trial judge refused to exclude under s 101(2) of the Evidence Act 2008 - Disparity between uncharged tendency conduct and charged conduct - Disparity not such as to risk jury being overwhelmed - Probative value substantially outweighed prejudicial effect - Tendency evidence rightly not excluded.
CRIMINAL LAW - Orders under Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 consequent upon jury findings that sexual offences committed - Tendency evidence founded on uncharged acts relied upon - Trial judge refused to exclude under s 101(2) of the Evidence Act 2008 - Disparity between uncharged tendency conduct and charged conduct - Disparity not such as to risk jury being overwhelmed - Probative value substantially outweighed prejudicial effect - Tendency evidence rightly not excluded.
Evidence Act 2008, s 101(2).
DPP v Pearson (a pseudonym) [2021] VSCA 336; Franklin (a pseudonym) v The King [2024] VSCA 213; Jacobs (a pseudonym) v The King [2024] VSCA 309; Chee Loh (a pseudonym) v The King [2025] VSCA 175; R v Clarke [2023] NSWCCA 123, considered.
CRIMINAL LAW - Appeal - Statutory interpretation - Construction of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - Finding of permanent unfitness - Consequences of non-compliance with the three month time limit to hold a special hearing - Whether permanent stay justified - Leave to appeal the interlocutory decision is refused.
CRIMINAL LAW - Appeal - Statutory interpretation - Construction of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - Finding of permanent unfitness - Consequences of non-compliance with the three month time limit to hold a special hearing - Whether permanent stay justified - Leave to appeal the interlocutory decision is refused.
Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, ss 3, 7-9, 12, 14D, 14F, 14H, 15-18, 26-27, 40.
Awad v The Queen (2022) 275 CLR 421; Canning (a pseudonym) v The King [2025] VSCA 215; Carson v The Queen (2020) 284 A Crim R 289; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; SM v The Queen [2013] VSCA 342; Subramaniam v The Queen (2004) 79 ALJR 116.
CRIMINAL LAW - Interlocutory appeal - Review of refusal to certify - Applicant charged with sexual offences - Applicant refused leave to adduce evidence of complainant's sexual activities - Trial judge refused to certify interlocutory decision under s 295(3)(b) of Criminal Procedure Act 2009 - Whether decision to refuse leave to adduce evidence of complainant's sexual activities a decision that 'concerns the admissibility of evidence' so that certification should have been assessed under s 295(3)(a) of Criminal Procedure Act 2009 - Whether Hurst (a pseudonym) v The Queen [2021] VSCA 3 plainly wrong - Whether Court of Appeal permitted to consider leave to appeal interlocutory decision if trial judge did not err in refusing to certify - Whether trial judge erred in refusing to certify - Application for review of refusal to certify refused - Application for leave to appeal interlocutory decision dismissed as incompetent.
CRIMINAL LAW - Interlocutory appeal - Review of refusal to certify - Applicant charged with sexual offences - Applicant refused leave to adduce evidence of complainant's sexual activities - Trial judge refused to certify interlocutory decision under s 295(3)(b) of Criminal Procedure Act 2009 - Whether decision to refuse leave to adduce evidence of complainant's sexual activities a decision that 'concerns the admissibility of evidence' so that certification should have been assessed under s 295(3)(a) of Criminal Procedure Act 2009 - Whether Hurst (a pseudonym) v The Queen [2021] VSCA 3 plainly wrong - Whether Court of Appeal permitted to consider leave to appeal interlocutory decision if trial judge did not err in refusing to certify - Whether trial judge erred in refusing to certify - Application for review of refusal to certify refused - Application for leave to appeal interlocutory decision dismissed as incompetent.
Criminal Procedure Act 2009, ss 295, 296, 297, 342, 349.
Moore (a pseudonym) v The King (2024) 419 ALR 169; Hurst (a pseudonym) v The Queen [2021] VSCA 3; Australian Competition and Consumer Commission v PT Garuda Indonesia Ltd (2010) 269 ALR 98; Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Shimshon v MLC Nominees Pty Ltd (2021) 66 VR 277; KJM v The Queen [No 2] (2011) 33 VR 11; Peterson (a pseudonym) v The Queen (2019) 57 VR 521; Harris (a pseudonym) v The Queen [2017] VSCA 316; CGL v DPP [No 2] (2010) 24 VR 482; DPP v Pace (a pseudonym) (2015) 45 VR 276; Lewis (a pseudonym) v The Queen [2018] VSCA 40; Frazier (a pseudonym) v The Queen [2017] VSCA 370; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (NSW) (2011) 245 CLR 446; DPP v Heritage Care Pty Ltd [2025] VSCA 19; Canning (a pseudonym) v The King [2025] VSCA 215.
CRIMINAL LAW - Application for leave to appeal conviction - Offences of sexual penetration of a child - Applicant contends verdict unreasonable - Evidence of lack of opportunity - Imprecision in complainant's evidence - Leave granted - Appeal dismissed.
CRIMINAL LAW - Application for leave to appeal conviction - Offences of sexual penetration of a child - Applicant contends verdict unreasonable - Evidence of lack of opportunity - Imprecision in complainant's evidence - Leave granted - Appeal dismissed.
Criminal Procedure Act 2009, s 276(1)(a).
M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123; Cookson (a pseudonym) v The King [2024] VSCA 289 applied.
CRIMINAL LAW - DPP appeal on sentence - Very grave offending against young boy - Offender intellectually impaired - Serious sexual offender provisions apply - Inadequate cumulation - Appeal allowed - Offender resentenced.
Sentencing Act 1991, ss 6B, 6D, 6E, 6F; Criminal Procedure Act 2009, s 289(1).
Muldrock v The Queen (2011) 244 CLR 120; R v Verdins (2007) 16 VR 269; DPP v Karazisis (2010) 31 VR 634; DPP v Dillon (a pseudonym) [2025] VSCA 266; Dyer v The King [2025] VSCA 314; considered.
CRIMINAL LAW - Appeal - Sentence - Intentionally cause serious injury in circumstances of gross violence - Verdins taken into account to reduce moral culpability - Whether effect of provocation by the victim was taken into account as a mitigatory factor - Specific error established and ground 1 must succeed - Whether applicant's remorse was taken into account in sentencing - Limited and qualified remorse considered by judge - No substance to ground 2 - Sentence set aside and resentenced to 7 years' imprisonment with a non-parole period of 4 years and 4 months' imprisonment.
CRIMINAL LAW - Appeal - Sentence - Intentionally cause serious injury in circumstances of gross violence - Verdins taken into account to reduce moral culpability - Whether effect of provocation by the victim was taken into account as a mitigatory factor - Specific error established and ground 1 must succeed - Whether applicant's remorse was taken into account in sentencing - Limited and qualified remorse considered by judge - No substance to ground 2 - Sentence set aside and resentenced to 7 years' imprisonment with a non-parole period of 4 years and 4 months' imprisonment.
Sentencing Act 1991, ss 3, 5(2G), 10(1).
Karam v The Queen [2025] VSCA 194; Va v The Queen (2011) 37 VR 452; Felicite v The Queen (2011) 37 VR 329, applied.
CRIMINAL LAW - Interlocutory appeal from refusal to grant permanent stay - Applicant facing retrial on 12 charges of sexual offences against daughters committed with their father as primary offender - Two previous trials - Whether fair trial possible - Whether continuation of proceedings unjustifiably and unfairly oppressive - Applicant has mild intellectual disability - Significant history of abuse of applicant by co-offender - Applicant diagnosed with post-traumatic stress disorder - Delay - Joint charges against co-offender discontinued - Diminished public interest in bringing charges to trial - Fair trial possible - Continuation of proceedings against applicant unfairly and unjustifiably oppressive and an abuse of process - Leave to appeal granted and appeal allowed - Permanent stay ordered.
CRIMINAL LAW - Interlocutory appeal from refusal to grant permanent stay - Applicant facing retrial on 12 charges of sexual offences against daughters committed with their father as primary offender - Two previous trials - Whether fair trial possible - Whether continuation of proceedings unjustifiably and unfairly oppressive - Applicant has mild intellectual disability - Significant history of abuse of applicant by co-offender - Applicant diagnosed with post-traumatic stress disorder - Delay - Joint charges against co-offender discontinued - Diminished public interest in bringing charges to trial - Fair trial possible - Continuation of proceedings against applicant unfairly and unjustifiably oppressive and an abuse of process - Leave to appeal granted and appeal allowed - Permanent stay ordered.
CRIMINAL LAW - Interlocutory appeal - Hearsay evidence - Opinion evidence of psychologist - Factual basis for opinions in dispute - Hearsay representations in psychologist's reports admissible for non-hearsay purpose under Evidence Act 2008, s 60 - Whether hearsay representations should be excluded under Evidence Act 2008, s 135 - Danger that use of hearsay representations to prove truth of facts asserted would be unfairly prejudicial to prosecution - Appeal allowed on limited basis that some representations conceded not to create unfairness.
Criminal Procedure Act 2009, pt 8.2, div 7, ss 295(3), 297, 370; Crimes Act 1958, ss 44(1), 47(1); Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, ss 6, 11; Evidence Act 2008, ss 32, 59, 60, 65, 76, 79, 81, 82.
Clark v The Queen (2016) 258 A Crim R 511; Ballard (a pseudonym) v The King [2024] VSCA 26; Porter (a pseudonym) v The King [2024] VSCA 127; GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2023) 280 CLR 442; Joud v The Queen (2011) 32 VR 400; Gilbert v The Queen (2000) 201 CLR 414; R v Verdins (2007) 16 VR 269; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Lang v The Queen (2023) 278 CLR 323; Lederer Group Pty Ltd v Hodson [2024] NSWCA 303; R v Welsh (1996) 90 A Crim R 364, considered.
CRIMINAL LAW - Appeal - Sentence - Parity - Two incidents of offending - Appellant pleaded guilty to all charges - Sentenced for first incident to 7 years 6 months' imprisonment for intentionally causing serious injury - Sentenced for second incident to 5 years 4 months' imprisonment for recklessly causing serious injury, recklessly causing injury and common assault (of which 2 years cumulative on first sentence) - Total effective sentence of 9 years 6 months' imprisonment with non-parole period of 7 years - Co-offenders in each incident pleaded guilty to lesser offences and received lesser sentences than appellant - Whether primary judge erred by excluding operation of parity principle - Not open to judge to exclude operation of parity principle merely because neither co-offender pleaded guilty to same offences as appellant - Appeal allowed - Appellant resentenced.
CRIMINAL LAW - Appeal - Sentence - Parity - Two incidents of offending - Appellant pleaded guilty to all charges - Sentenced for first incident to 7 years 6 months' imprisonment for intentionally causing serious injury - Sentenced for second incident to 5 years 4 months' imprisonment for recklessly causing serious injury, recklessly causing injury and common assault (of which 2 years cumulative on first sentence) - Total effective sentence of 9 years 6 months' imprisonment with non-parole period of 7 years - Co-offenders in each incident pleaded guilty to lesser offences and received lesser sentences than appellant - Whether primary judge erred by excluding operation of parity principle - Not open to judge to exclude operation of parity principle merely because neither co-offender pleaded guilty to same offences as appellant - Appeal allowed - Appellant resentenced.
Green v The Queen (2011) 244 CLR 462, applied; Fletcher v The Queen [2011] VSCA 4; Idrizi v The King [2025] VSCA 286; Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295, referred to.
APPEAL - Application for extension of time for leave to appeal - Property dispute - Proposed appeal from judgment concerning disputes between co-owners and related orders - Extensive delay - Absence of adequate explanation for delay - Proposed grounds without merit - Application for extension of time refused.
APPEAL - Application for extension of time for leave to appeal - Property dispute - Proposed appeal from judgment concerning disputes between co-owners and related orders - Extensive delay - Absence of adequate explanation for delay - Proposed grounds without merit - Application for extension of time refused.
APPEAL - Application for leave to appeal - Orders made refusing recusal and refusing to add parties - Applicants' contentions without foundation - Application refused.
PRACTICE AND PROCEDURE - Appeal - Application for leave to appeal from County Court - Judgment or order - Where judge delivered ruling, but no order drawn up or authenticated - Ruling not finally disposing of rights - Application for leave to appeal premature - Application for leave to appeal refused.
PRACTICE AND PROCEDURE - Appeal - Application for leave to appeal from County Court - Judgment or order - Where judge delivered ruling, but no order drawn up or authenticated - Ruling not finally disposing of rights - Application for leave to appeal premature - Application for leave to appeal refused.
PRACTICE AND PROCEDURE - Discovery of documents - Application for further discovery - Whether judge erred in not applying test set out in r 29.01.1(3) of County Court Civil Procedure Rules 2018 - Whether judge erred in requiring documents to be admissible in order to be discoverable - Proposed appeal lacking real prospect of success - No substantial injustice in leaving decision unreversed - Application for leave to appeal refused.
PRACTICE AND PROCEDURE - Application other than for leave to appeal - Application for interim injunction restraining the respondents' legal representatives - Where primary judge ruled against restraint application below - Significant overlap with matters raised in application for leave to appeal - Respondents entitled to benefit of ruling below until overturned - Balance of convenience found not to favour grant of injunction - Application dismissed.
PRACTICE AND PROCEDURE - Application other than for leave to appeal - Application for interim injunction restraining the respondents' legal representatives - Where primary judge ruled against restraint application below - Significant overlap with matters raised in application for leave to appeal - Respondents entitled to benefit of ruling below until overturned - Balance of convenience found not to favour grant of injunction - Application dismissed.
CONTRACT - Novation of employment contract - Previous employment contract extinguished and new contract of employment with new corporate vehicle substituted in its place - Novation inferred from conduct of parties - Applicant employed in same role and on same terms as previous contract - Leave to appeal refused - ALH Group Property Holdings Pty Ltd v Commissioner of State Revenue (NSW) (2012) 245 CLR 338; McMahon v National Foods Milk Ltd (2009) 25 VR 251; Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473, applied; Aussie Home Loans v X Inc Services (2005) ATPR 42-060, distinguished.
CONTRACT - Novation of employment contract - Previous employment contract extinguished and new contract of employment with new corporate vehicle substituted in its place - Novation inferred from conduct of parties - Applicant employed in same role and on same terms as previous contract - Leave to appeal refused - ALH Group Property Holdings Pty Ltd v Commissioner of State Revenue (NSW) (2012) 245 CLR 338; McMahon v National Foods Milk Ltd (2009) 25 VR 251; Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473, applied; Aussie Home Loans v X Inc Services (2005) ATPR 42-060, distinguished.
APPEALS - Adverse reliability findings - Trial judge's findings of fact affected by assessment of credibility and reliability of witnesses - Findings not glaringly improbable nor contrary to compelling inferences - Challenge to reliability findings rejected - Fox v Percy (2003) 214 CLR 118; Lee v Lee (2019) 266 CLR 129, applied.
PRACTICE AND PROCEDURE - Application for leave to amend proposed grounds of appeal made during hearing - Delay in applying for leave to amend unexplained - Civil Procedure Act 2010, s 7 - Overarching purpose to facilitate just, efficient, timely and cost-effective resolution of real issues in dispute - Leave to amend refused - Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, applied.
CRYPTOCURRENCY - Cryptocurrency mining - Loss and use of cryptocurrency mining machines - Forecasting the generation of cryptocurrency and also the forecasting of cryptocurrency prices - Use of cryptocurrency mining pools and wallets.
CRYPTOCURRENCY - Cryptocurrency mining - Loss and use of cryptocurrency mining machines - Forecasting the generation of cryptocurrency and also the forecasting of cryptocurrency prices - Use of cryptocurrency mining pools and wallets.
EVIDENCE - Standard of proof - Allegations of criminal conduct - Briginshaw v Briginshaw (1938) 60 CLR 336, applied.
EVIDENCE - Burden of proof - Unexplained failure to give evidence - Rules in Blatch v Archer (1774) 1 Cowp 63 and Jones v Dunkel (1959) 101 CLR 298, applied.
PLEADINGS - Where some claims were made but not pleaded - Where Court informed the parties that the case would be decided on the pleadings - Where no amendment sought to make new claims - Where no fair notice of some new claims.
PERSONAL PROPERTY - Possession of goods - Direct or indirect control of goods - Relevance of possession of land to possession of goods on land - Proof of control - Relevance of third party access to goods.
BAILMENT - Whether bailment formed upon defendant taking possession of goods by an intentional act or dealing that is inconsistent with, repugnant to and an infringement of the rights of the plaintiff, the owner of the goods - Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220, applied.
DETINUE - Whether unequivocal refusal of demand for return of goods - Whether wrongful failure to return goods on demand.
CONVERSION - Whether goods converted - Where defendant took possession of goods by an intentional act or dealing that is inconsistent with, repugnant to and an infringement of the rights of the plaintiff - Where goods used by defendant - Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420, applied.
TRESPASS TO GOODS - Whether plaintiff with immediate right to possession of goods entitled to sue defendant in trespass - Where defendant in possession of goods at the time of alleged trespasses - Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204, applied.
DIRECTORS' LIABILITY IN TORT - Whether director defendant directed or procured conversion of goods - O'Brien v Dawson (1942) 66 CLR 18; Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd (2003) 9 VR 171; Anchorage Capital Master Offshore Ltd v Sparkes (2023) 111 NSWLR 304, applied.
AGENCY - Whether a company was the agent of another company and or a person - Where no express agency - Where plaintiff relied upon control - Where plaintiff abandoned pleaded case and sought to make a new case - ACN 007 528 207 Pty Ltd (in liq) v Bird Cameron (2005) 91 SASR 570; James Hardie & Co Pty Ltd v Hall (1998) 43 NSWLR 554; Premier Building & Consulting Pty Ltd v Spotless Group Ltd (2007) 64 ACSR 114, applied.
RESTITUTION - Unjust enrichment - Whether defendants unjustly enriched by retaining possession of goods - Opportunity to use goods - Whether there was 'no juristic reason' for defendant to retain possession of goods - Goods retained by defendant without plaintiff's consent - Value of benefit received - Whether 'reasonable hiring fee' appropriate - Redland City Council v Kozik (2024) 281 CLR 202; Carpenter v Morris (2023) 111 NSWLR 603, applied.
TRUSTS - Constructive trust - Misappropriation of goods - Whether constructive trust (institutional) arose over the goods - Principle in Black v S Freedman & Co (1910) 12 CLR 105 - Whether constructive trust (remedial) also arose over property obtained as a result of breaches of the constructive trust - Grimaldi v Chameleon Mining NL [No 2] (2012) 200 FCR 296, applied.
TRUSTS - Knowing receipt of trust property - Whether the cryptocurrency was trust property at the time of receipt by recipient - Whether person knowingly received trust property - Barnes v Addy (1874) LR 9 Ch App 244; GP Building Holdings Pty Ltd v Voitin (2022) 69 VR 299, applied.
DAMAGES - Proof of common law damages - Compensatory principle - Proper approach to assessment of damages - Where several alternative bases for assessment of damages proposed - Whether plaintiff's basis for assessment is an appropriate assessment - Where plaintiff's preferred basis for assessment is appropriate, but there is a lack of reliable evidence - Nominal damages awarded - JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237; Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd (2007) 157 FCR 564, applied.
DAMAGES - Loss of commercial opportunity - Lost opportunity to make a profit from the operation of a cryptocurrency mining business - Where evidence of the value of lost opportunity to make a profit is inadequate and unreliable - Where the evidence was available to the plaintiff - Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, MA & J Tripodi Pty Ltd v Swan Hill Chemicals Pty Ltd [2019] VSCA 46, applied.
DAMAGES - Exemplary damages - Where not pleaded on bailment - Where no material facts pleaded for other claims, including detinue, conversion and trespass to goods - Where plaintiff provided material facts in closing submissions - Supreme Court (General Civil Procedure) Rules r 13.07(3), applied.
EQUITABLE COMPENSATION - Loss of commercial opportunity - Approach to assessing equitable compensation based upon a loss of commercial opportunity - Where evidence of the value of lost opportunity to make a profit is inadequate and unreliable - Where the evidence was available to the plaintiff - No compensation awarded - Ramsay v BigTinCan Pty Ltd (2014) 101 ACSR 415, applied.
ACCOUNT OF PROFITS - Where defendant alleged to have knowingly received trust property - Where the trust property is alleged to be cryptocurrency.
TRUSTS - Trustees - Where plaintiff pleaded the defendant acted in its 'capacity' as a trustee - Where not relevant to pleaded causes of action - Where issue only relevant to enforcement of any judgment - Where no remedy sought for enforcement by, for example, a right of subrogation to any indemnity of the trustee - Elders Trustee and Executor Co Ltd v EG Reeves Pty Ltd (1987) 78 ALR 193; Nolan v Collie (2003) 7 VR 287, applied.
INSURANCE - Construction of claims made and notified design and construction professional indemnity policy - Insuring Clause - Whether director of Insured building company also an insured - What constitutes a Claim - Whether civil liability incurred in conduct of Professional Business - Third-party claim dismissed.
INSURANCE - Construction of claims made and notified design and construction professional indemnity policy - Insuring Clause - Whether director of Insured building company also an insured - What constitutes a Claim - Whether civil liability incurred in conduct of Professional Business - Third-party claim dismissed.
REPRESENTATIVE PROCEEDINGS - Part 4A group proceeding - Application for approval of settlement - Whether settlement is fair and reasonable as between the parties and as between group members - Shareholder class action - Alleged breach of continuous disclosure obligations - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, ss 33V, 33ZF - Botsman v Bolitho (No 1) (2018) 57 VR 68, Darwalla Milling Co Pty Ltd v F Hoffman- La Roche Ltd (No 2) (2006) 236 ALR 322, Kelly v Willmott Forests Ltd (in liq) (No 4) (2016) 335 ALR 439, applied.
REPRESENTATIVE PROCEEDINGS - Part 4A group proceeding - Application for approval of settlement - Whether settlement is fair and reasonable as between the parties and as between group members - Shareholder class action - Alleged breach of continuous disclosure obligations - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, ss 33V, 33ZF - Botsman v Bolitho (No 1) (2018) 57 VR 68, Darwalla Milling Co Pty Ltd v F Hoffman- La Roche Ltd (No 2) (2006) 236 ALR 322, Kelly v Willmott Forests Ltd (in liq) (No 4) (2016) 335 ALR 439, 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 - Applications for late claims from already registered group members to be included in the settlement - Some applications approved - Lendlease Corporation Limited v Pallas (2025) 99 ALJR 834, discussed.
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, s 33ZDA - Fox v Westpac Banking Corporation (2021) 69 VR 487, Allen & Anor v G8 Education Ltd (No 4) [2024] VSC 487, applied - Fuller & Anor v Allianz Australia Insurance Ltd & Anor (Settlement Approval) [2025] VSC 160, McCoy v Hino Motors Ltd (No 2) [2025] VSC 553, discussed.
PRACTICE AND PROCEDURE - Part 4A group proceeding - Appointment of Scheme Administrator - Approval for payment of costs of administering settlement distribution scheme.
EVIDENCE - Objection to giving evidence - Self-incrimination - Evidence Act 2008 (Vic), s 128 - Witness a party to proceeding - Objection taken in advance of cross-examination - Reasonable grounds for objection - Whether interests of justice require witness to give evidence - Significance of evidence to central issues in proceeding - Documents prepared in course of Australian Taxation Office audit and investigation - Whether representations made to Australian Taxation Office accurate - Witness only person able to give direct evidence of circumstances in which documents created and amended - Witness not subject to criminal proceedings - Questions not going solely to credit - Protection afforded by certificate not absolute - Interests of justice require evidence to be given - Certificate granted - Taxation Administration Act 1953 (Cth), ss 8K, 8L, 8N - Criminal Code Act 1995 (Cth), ss 11.2, 11.2A, 134.2, 135.1, 135.2, 135.4 - Timeless Sunrise Pty Ltd v BigJ Enterprises Pty Ltd [No 7] [2022] VSC 549 applied.
EVIDENCE - Objection to giving evidence - Self-incrimination - Evidence Act 2008 (Vic), s 128 - Witness a party to proceeding - Objection taken in advance of cross-examination - Reasonable grounds for objection - Whether interests of justice require witness to give evidence - Significance of evidence to central issues in proceeding - Documents prepared in course of Australian Taxation Office audit and investigation - Whether representations made to Australian Taxation Office accurate - Witness only person able to give direct evidence of circumstances in which documents created and amended - Witness not subject to criminal proceedings - Questions not going solely to credit - Protection afforded by certificate not absolute - Interests of justice require evidence to be given - Certificate granted - Taxation Administration Act 1953 (Cth), ss 8K, 8L, 8N - Criminal Code Act 1995 (Cth), ss 11.2, 11.2A, 134.2, 135.1, 135.2, 135.4 - Timeless Sunrise Pty Ltd v BigJ Enterprises Pty Ltd [No 7] [2022] VSC 549 applied.
COMPANIES - Shares - Redeemable preference shares - Where first defendant purports to redeem plaintiff's A class share - Whether A class share is a redeemable preference share - Construction of a company constitution - Whether provision of constitution providing for a general power for redemption of shares on happening of a particular event is determinative of character as a redeemable preference share - A class share not redeemable.
COMPANIES - Shares - Redeemable preference shares - Where first defendant purports to redeem plaintiff's A class share - Whether A class share is a redeemable preference share - Construction of a company constitution - Whether provision of constitution providing for a general power for redemption of shares on happening of a particular event is determinative of character as a redeemable preference share - A class share not redeemable.
COMPANIES - Reduction of share capital not otherwise authorised by law - Statutory interpretation - Consequences of a failure to comply with s 256B(1) of the Corporations Act 2001 (Cth) - Whether s 256D of the Corporations Act 2001 (Cth) only preserves validity where failure to comply is 'procedural irregularity' - Section 256D preserves all non-compliance with s 256B(1).
Corporations Act 2001 (Cth) ss 254A, 256B, 256C, 256D.
Winpar v Goldfields (2001) 166 FLR 144 applied; Beck v Weinstock (2013) 251 CLR 425; GTW Investments (Aust) Pty Ltd v Pacreef Investments Pty Ltd (2023) 74 VR 290; Re Capel Finance Ltd (2005) 52 ACSR 601 considered.
RP Austin and AJ Black, Austin & Black's Annotations to the Corporations Act (LexisNexis) [2J.256D].
INTERIM INJUNCTION - Where plaintiff seeks to enjoin parties from proceeding with sale of units in a trust and shares in a corporate trustee - Where plaintiff seeks proper administration of the trust and alleges failure in process concerning trustee's proposed sale of trust assets - Whether prima facie case or serious issue to be tried is demonstrated to justify preservation of the status quo - Where entire undertaking of trust would be liquidated if sale is completed - Where balance of convenience favours the grant of injunctive relief sought and appears to carry the lower risk of injustice - Where undertaking given by plaintiff is framed in terms broader than the usual undertaking as to damages and encompasses any person (whether or not a party) affected by the operation of the order - Injunction granted - Supreme Court Act 1986 (Vic) s 37.
INTERIM INJUNCTION - Where plaintiff seeks to enjoin parties from proceeding with sale of units in a trust and shares in a corporate trustee - Where plaintiff seeks proper administration of the trust and alleges failure in process concerning trustee's proposed sale of trust assets - Whether prima facie case or serious issue to be tried is demonstrated to justify preservation of the status quo - Where entire undertaking of trust would be liquidated if sale is completed - Where balance of convenience favours the grant of injunctive relief sought and appears to carry the lower risk of injustice - Where undertaking given by plaintiff is framed in terms broader than the usual undertaking as to damages and encompasses any person (whether or not a party) affected by the operation of the order - Injunction granted - Supreme Court Act 1986 (Vic) s 37.
PRACTICE AND PROCEDURE - Calculation of interest on a debt - Supreme Court Act 1986 (Vic) s 58(1) - No good cause to the contrary shown - Interest awarded at the statutory penalty rate.
PRACTICE AND PROCEDURE - Calculation of interest on a debt - Supreme Court Act 1986 (Vic) s 58(1) - No good cause to the contrary shown - Interest awarded at the statutory penalty rate.
PRACTICE AND PROCEDURE - Costs - Standard costs ordered.
PRACTICE AND PROCEDURE - Security for costs - Application against an individual - Inherent jurisdiction of the Court - Plaintiff not asserted to be unable to pay costs orders, but asserted to be likely to be unwilling - Prior delay in complying with costs order - Whether order may be made where plaintiff not impecunious - Plaintiff resident within jurisdiction - Whether order necessary in the interests of justice - No appropriate case for security - Application dismissed - Charwood Industries Pty Ltd v Cubitt IR [1995] FCA 126 - Knight v Beyond Properties Pty Ltd [2005] FCA 764 - Commissioner of Taxation v Fasiliades [2016] FCAFC 170 - Von Marburg v Aldred [No 3] [2017] VSC 146 - Troiano v Voci (2019) 61 VR 51 - Briar v Wilson [2020] VSCA 338 - Stuart v Said (2021) 65 VR 50.
PRACTICE AND PROCEDURE - Security for costs - Application against an individual - Inherent jurisdiction of the Court - Plaintiff not asserted to be unable to pay costs orders, but asserted to be likely to be unwilling - Prior delay in complying with costs order - Whether order may be made where plaintiff not impecunious - Plaintiff resident within jurisdiction - Whether order necessary in the interests of justice - No appropriate case for security - Application dismissed - Charwood Industries Pty Ltd v Cubitt IR [1995] FCA 126 - Knight v Beyond Properties Pty Ltd [2005] FCA 764 - Commissioner of Taxation v Fasiliades [2016] FCAFC 170 - Von Marburg v Aldred [No 3] [2017] VSC 146 - Troiano v Voci (2019) 61 VR 51 - Briar v Wilson [2020] VSCA 338 - Stuart v Said (2021) 65 VR 50.
PRACTICE AND PROCEDURE - Application for amendment of pleadings and for adjournment of trial date - Consideration of defendants' current pleadings and proposed amended defence - Principles of amendments and adjournments - Extent of wasted costs - Case management concerns - Defendants' application to file further amended defence allowed in part and dismissed elsewhere - Application to adjourn trial date dismissed.
PRACTICE AND PROCEDURE - Application for amendment of pleadings and for adjournment of trial date - Consideration of defendants' current pleadings and proposed amended defence - Principles of amendments and adjournments - Extent of wasted costs - Case management concerns - Defendants' application to file further amended defence allowed in part and dismissed elsewhere - Application to adjourn trial date dismissed.
PRACTICE AND PROCEDURE - Discovery - Summons - Defendants' seeking discovery of plaintiff's share transfer documents - Civil Procedure Act 2010 (Vic) - s 26 - Overarching obligations - Whether discretion to grant relief enlivened - Corporations Act 2001 (Cth), ss 232 and 233 - Whether orders are necessarily for meaningful mediation - Power to order discovery relevant to issues in dispute - Orders for discovery made.
PRACTICE AND PROCEDURE - Discovery - Summons - Defendants' seeking discovery of plaintiff's share transfer documents - Civil Procedure Act 2010 (Vic) - s 26 - Overarching obligations - Whether discretion to grant relief enlivened - Corporations Act 2001 (Cth), ss 232 and 233 - Whether orders are necessarily for meaningful mediation - Power to order discovery relevant to issues in dispute - Orders for discovery made.
COSTS - Costs of proceeding following judgment in favour of plaintiff - Plaintiff has contractual entitlements to costs on an indemnity basis for the costs of enforcing loan agreement and mortgage - Court will generally award indemnity costs in such circumstances - Court still retains its discretion as to costs orders - Costs ordered on indemnity basis save for costs of a summary judgment application which enjoyed only partial success - Chen v Kevin McNamara & Son Pty Ltd (No 2) [2012] VSCA 229 applied.
COSTS - Costs of proceeding following judgment in favour of plaintiff - Plaintiff has contractual entitlements to costs on an indemnity basis for the costs of enforcing loan agreement and mortgage - Court will generally award indemnity costs in such circumstances - Court still retains its discretion as to costs orders - Costs ordered on indemnity basis save for costs of a summary judgment application which enjoyed only partial success - Chen v Kevin McNamara & Son Pty Ltd (No 2) [2012] VSCA 229 applied.
COURTS AND JUDGES - Recusal - Whether a reasonable apprehension of bias - Application that trial judge recuse herself from determining costs - Trial judge had previously presided at an interlocutory hearing in an unrelated proceeding in which defendant's husband was a party - Application refused - Charisteas v Charisteas (2021) 273 CLR 289; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 applied.
CORPORATIONS - Application for derivative leave - s 237(2) Corporations Act 2001 (Cth) factors considered - Whether good faith, best interests and serious question requirements met - Adequacy of undertakings offered - Application refused.
CORPORATIONS - Application for derivative leave - s 237(2) Corporations Act 2001 (Cth) factors considered - Whether good faith, best interests and serious question requirements met - Adequacy of undertakings offered - Application refused.
CORPORATIONS - Corporations Act 2001 (Cth) - Pt 5.4 - Insolvency - Statutory demand - Application to set aside demand served on firm of solicitors for work performed by counsel - s 459G - Whether application made within mandatory 21-day statutory period - Statutory demand sent by email - Technology neutral sending of documents - Div 2 of Pt 1.2AA - ss 110D(2) - Whether at time document sent reasonable to expect document would be readily accessible so as to be useable for subsequent reference - s 110D(6) - Whether demand sent to 'nominated electronic address' - s 105A(4) - When demand deemed to be received at addressee's 'nominated electronic address' - Whether effective informal service - Whether Div 2 of Pt 1.2AA displaces or qualifies effective informal service rule - Application filed outside 21-day period - Application dismissed for want of jurisdiction - Indemnity costs awarded against plaintiff - Liberty to apply for non-party costs order against principal solicitor and sole director of plaintiff.
CORPORATIONS - Corporations Act 2001 (Cth) - Pt 5.4 - Insolvency - Statutory demand - Application to set aside demand served on firm of solicitors for work performed by counsel - s 459G - Whether application made within mandatory 21-day statutory period - Statutory demand sent by email - Technology neutral sending of documents - Div 2 of Pt 1.2AA - ss 110D(2) - Whether at time document sent reasonable to expect document would be readily accessible so as to be useable for subsequent reference - s 110D(6) - Whether demand sent to 'nominated electronic address' - s 105A(4) - When demand deemed to be received at addressee's 'nominated electronic address' - Whether effective informal service - Whether Div 2 of Pt 1.2AA displaces or qualifies effective informal service rule - Application filed outside 21-day period - Application dismissed for want of jurisdiction - Indemnity costs awarded against plaintiff - Liberty to apply for non-party costs order against principal solicitor and sole director of plaintiff.
PRACTICE AND PROCEDURE - Non-compliance with timetabling orders - Refusal of plaintiff's application to rely on late evidence concerning timing of service of demand - Refusal of plaintiff's application to withdraw admissions made in s 459G affidavit regarding timing of service of demand.
CORPORATIONS - Winding up order made - Application by director of company to set aside winding up order - Corporations Act 2001 (Cth) s 198G - Leave granted for application to be made in company's name pursuant to s 198G(3)(b) - Demonstrated and arguable that company is solvent - Application granted - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 46.08 - Appropriate to make orders setting aside winding up order.
CORPORATIONS - Winding up order made - Application by director of company to set aside winding up order - Corporations Act 2001 (Cth) s 198G - Leave granted for application to be made in company's name pursuant to s 198G(3)(b) - Demonstrated and arguable that company is solvent - Application granted - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 46.08 - Appropriate to make orders setting aside winding up order.
CORPORATIONS - Corporations Act 2001 (Cth), s 459H, s 459J(1)(b) - Statutory demand - Application to set aside on grounds of genuine dispute - Whether there is sufficient evidence to support a genuine dispute that the amounts advanced were not loans but equity investments, gifts, loans not yet due and payable, or have led to property being held on resulting trust - Admissibility of financial statements as prima facie evidence - Corporations Act 2001 (Cth), s 1305 - Whether demand should be set aside for some other reason due to abuse of process or because the Administrator of the deceased estate issued the demands on behalf of the estate without the consent of the Executor of the estate - Application dismissed.
CORPORATIONS - Corporations Act 2001 (Cth), s 459H, s 459J(1)(b) - Statutory demand - Application to set aside on grounds of genuine dispute - Whether there is sufficient evidence to support a genuine dispute that the amounts advanced were not loans but equity investments, gifts, loans not yet due and payable, or have led to property being held on resulting trust - Admissibility of financial statements as prima facie evidence - Corporations Act 2001 (Cth), s 1305 - Whether demand should be set aside for some other reason due to abuse of process or because the Administrator of the deceased estate issued the demands on behalf of the estate without the consent of the Executor of the estate - Application dismissed.
CORPORATIONS - Application for leave to commence a derivative action - Corporations Act 2001 (Cth) - s 237 - Relevant matters considered - Good faith of applicant seeking to bring claims on behalf of company - Best interests of the company - Substance of proposed proceeding - Serious question to be tried - Whether notice given or otherwise appropriate to grant leave - Leave granted subject to undertakings.
CORPORATIONS - Application for leave to commence a derivative action - Corporations Act 2001 (Cth) - s 237 - Relevant matters considered - Good faith of applicant seeking to bring claims on behalf of company - Best interests of the company - Substance of proposed proceeding - Serious question to be tried - Whether notice given or otherwise appropriate to grant leave - Leave granted subject to undertakings.
CORPORATIONS - Application seeking conferral of power to allow company to facilitate realisation of Trust assets and to wind up Trust - Consideration of financial positions of company and Trust - Satisfied company acted as bare trustee - Satisfied conferral of powers under Trustee Act 1958 (Vic) s 63 is preferrable to the appointment of liquidator as receiver of Trust assets - Course chosen given efficiencies and cost savings - Orders as to remuneration, costs and expenses of liquidator and for ancillary orders.
CORPORATIONS - Application seeking conferral of power to allow company to facilitate realisation of Trust assets and to wind up Trust - Consideration of financial positions of company and Trust - Satisfied company acted as bare trustee - Satisfied conferral of powers under Trustee Act 1958 (Vic) s 63 is preferrable to the appointment of liquidator as receiver of Trust assets - Course chosen given efficiencies and cost savings - Orders as to remuneration, costs and expenses of liquidator and for ancillary orders.
POLICE TORTS - Execution of warrant of possession by Sheriff's Office of Victoria - Police officers in attendance - Claim the execution of the warrant was unlawful as the plaintiffs were under a residential tenancy agreement - First plaintiff obtained an interim order from the Victorian Civil and Administrative Tribunal - Claim of unlawful trespass to land, trespass to goods, detinue and conversion - Both plaintiffs arrested - Claim of battery, assault, unlawful arrest, false imprisonment, malicious prosecution - Execution of warrant was lawful - Plaintiffs failed to establish unlawful trespass to land, trespass to goods, detinue and conversion - Police had power and grounds to arrest - Reasonable use of force - Plaintiffs failed to establish battery, assault, unlawful arrest, false imprisonment, malicious prosecution.
POLICE TORTS - Execution of warrant of possession by Sheriff's Office of Victoria - Police officers in attendance - Claim the execution of the warrant was unlawful as the plaintiffs were under a residential tenancy agreement - First plaintiff obtained an interim order from the Victorian Civil and Administrative Tribunal - Claim of unlawful trespass to land, trespass to goods, detinue and conversion - Both plaintiffs arrested - Claim of battery, assault, unlawful arrest, false imprisonment, malicious prosecution - Execution of warrant was lawful - Plaintiffs failed to establish unlawful trespass to land, trespass to goods, detinue and conversion - Police had power and grounds to arrest - Reasonable use of force - Plaintiffs failed to establish battery, assault, unlawful arrest, false imprisonment, malicious prosecution.
POLICE TORTS - Execution of search and seizure warrant against first plaintiff in respect of goods removed from storage facility - Claim by first plaintiff of trespass to land, trespass to goods, conversion, and detinue - First plaintiff failed to establish unlawful trespass to land, trespass to goods, conversion and detinue.
POLICE TORTS - Further execution of warrant of possession by Sheriff's Office of Victoria - Police officers in attendance - During stand-off, first plaintiff operated a demolition saw - First plaintiff subsequently arrested - Claim by first plaintiff of battery, assault, trespass to land, trespass to goods, unlawful arrest and false imprisonment - Police had power and grounds to arrest - Reasonable use of force - First plaintiff failed to establish battery, assault, trespass to land, trespass to goods, unlawful arrest and false imprisonment.
Crimes Act 1958 (Vic) ss 323(1), 324(1), 324C, 458(1), 459(1) 462A, Residential Tenancies Act 2013 (Vic) ss 5(1), 6(1), 452(1), 472(1) - Slaveski v State of Victoria [2010] VSC 441, Brown v State of Victoria (No 3) [2025] VSC 765, Barker v The Queen 153 CLR 338, Halliday v Nevill (1984) 155 CLR 1, ACN 087 528 774 Pty Ltd v Chetcuti (2008) 21 VR 559.
COSTS COURT - Appeal from orders of an Associate Judge reinstating an order of a Costs Registrar under s 17I of the Supreme Court Act 1986 - Effect of slip rule utilised in Magistrates' Court of Victoria proceeding - Appeal dismissed.
COSTS COURT - Appeal from orders of an Associate Judge reinstating an order of a Costs Registrar under s 17I of the Supreme Court Act 1986 - Effect of slip rule utilised in Magistrates' Court of Victoria proceeding - Appeal dismissed.
COURTS - Cross-vesting - Application to transfer proceeding to Supreme Court of New South Wales - Alleged tort in New South Wales - Interests of justice - Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) sub-s 5(2)(b)(iii) - Proceeding should be transferred.
COURTS - Cross-vesting - Application to transfer proceeding to Supreme Court of New South Wales - Alleged tort in New South Wales - Interests of justice - Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) sub-s 5(2)(b)(iii) - Proceeding should be transferred.
PRACTICE AND PROCEDURE - Costs - Group proceeding - Security for costs - Delay by defendant in bringing application - Risk proceeding will be stultified if order granted - Application dismissed.
PRACTICE AND PROCEDURE - Costs - Group proceeding - Security for costs - Delay by defendant in bringing application - Risk proceeding will be stultified if order granted - Application dismissed.
PRACTICE AND PROCEDURE - Application for summary judgment - Whether no real prospect of success - Where applicant identified no legal error - Where grant of primary relief would be futile - Application granted - Civil Procedure Act 2010 (Vic) ss 63, 64.
PRACTICE AND PROCEDURE - Application for summary judgment - Whether no real prospect of success - Where applicant identified no legal error - Where grant of primary relief would be futile - Application granted - Civil Procedure Act 2010 (Vic) ss 63, 64.
ADMINISTRATIVE LAW - Judicial review - Applicant sought to review suspension of driver licence - Where licence suspended where applicant found to be medically unfit to drive - Where applicant required to provide medical report of their fitness to drive - Where applicant failed to provide medical report to satisfy Secretary of their fitness to drive - Where applicant identified no error in Secretary's decision - Where suspension of applicant's driver licence already rescinded - Where applicant seeks pre-emptive and anticipatory orders in the nature of prohibition - Where an order in the nature of certiorari would be futile - Application dismissed - Road Safety Act 1986 (Vic) s 24 - Road Safety (Drivers) Regulations 2019 (Vic) regs 80, 82 - FUD18 v Minister for Home Affairs (2021) 285 FCR 505 and Transport Workers' Union of New South Wales v Australian Industrial Relations Commission (2008) 166 FCR 108 applied.
PRACTICE AND PROCEDURE - Application for summary judgment - Whether no real prospect of success - Where plaintiff identified no legal error - Where plaintiff seeks merits review beyond Court's jurisdiction - Application granted - Civil Procedure Act 2010 (Vic) ss 63, 64.
PRACTICE AND PROCEDURE - Application for summary judgment - Whether no real prospect of success - Where plaintiff identified no legal error - Where plaintiff seeks merits review beyond Court's jurisdiction - Application granted - Civil Procedure Act 2010 (Vic) ss 63, 64.
ADMINISTRATIVE LAW - Judicial review - Where Magistrate refused to allow rehearing of application for a family violence intervention order - Where Magistrate heard submissions from parties not party to original application - Whether Magistrate erred in not finding there were exceptional circumstances - Where relief seeks merits review - Proceeding dismissed - Family Violence Protection Act 2008 (Vic) s 122.
REAL PROPERTY - Plaintiff's application to remove caveat claiming interest as chargee - Defendant's application to amend interest claimed in caveat - Whether leave to amend should be granted - Strength of caveator's claim on proposed amended ground - Whether Amadio-type unconscionability supports proprietary interest - Removal of caveat - Section 90(3) of the Transfer of Land Act 1958 (Vic) - Held: Application to amend refused - No serious question to be tried - Caveat to be removed.
REAL PROPERTY - Plaintiff's application to remove caveat claiming interest as chargee - Defendant's application to amend interest claimed in caveat - Whether leave to amend should be granted - Strength of caveator's claim on proposed amended ground - Whether Amadio-type unconscionability supports proprietary interest - Removal of caveat - Section 90(3) of the Transfer of Land Act 1958 (Vic) - Held: Application to amend refused - No serious question to be tried - Caveat to be removed.
INSTITUTIONAL LIABILITY - Preliminary questions - Construction of prior deeds of release - Applicable principles - Whether res judicata, estoppel or abuse of process - Litigation history - Application by the plaintiff seeking that deeds be set aside entirely - Application heard by Associate Justice - Deeds set aside entirely - Unnecessary to determine point raised in respect of construction of the deeds - Defendant sought leave to appeal - No notice of cross-appeal or notice of contention filed - Court of Appeal allowed the appeal and set aside deeds in part only, permitting the plaintiff to bring a claim 'for loss and damage excluding any economic loss' - Plaintiff obtained grant of special leave to appeal to the High Court - High Court dismissed appeal leaving orders of the Court of Appeal undisturbed - Undetermined construction point not raised by the plaintiff in either appeal - Point subsequently raised for determination - Principles of abuse of process - Limitation of Actions Act 1958 (Vic), ss 27QA, 27QD and 27QE; Supreme Court (General Civil Procedure) Rules 2025 (Vic), rr 23.01(1) and 23.02(d) considered - Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112; Rogers v The Queen (1994) 181 CLR 251; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; Doggett v Commonwealth Bank of Australia (2015) 47 VR 302; DZY v Trustees of the Christian Brothers [2023] VSC 124; Trustees of the Christian Brothers v DZY (a pseudonym) (2024) 78 VR 1; DZY v Trustees of the Christian Brothers (2025) 99 ALJR 806 considered - Preliminary questions answered.
INSTITUTIONAL LIABILITY - Preliminary questions - Construction of prior deeds of release - Applicable principles - Whether res judicata, estoppel or abuse of process - Litigation history - Application by the plaintiff seeking that deeds be set aside entirely - Application heard by Associate Justice - Deeds set aside entirely - Unnecessary to determine point raised in respect of construction of the deeds - Defendant sought leave to appeal - No notice of cross-appeal or notice of contention filed - Court of Appeal allowed the appeal and set aside deeds in part only, permitting the plaintiff to bring a claim 'for loss and damage excluding any economic loss' - Plaintiff obtained grant of special leave to appeal to the High Court - High Court dismissed appeal leaving orders of the Court of Appeal undisturbed - Undetermined construction point not raised by the plaintiff in either appeal - Point subsequently raised for determination - Principles of abuse of process - Limitation of Actions Act 1958 (Vic), ss 27QA, 27QD and 27QE; Supreme Court (General Civil Procedure) Rules 2025 (Vic), rr 23.01(1) and 23.02(d) considered - Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112; Rogers v The Queen (1994) 181 CLR 251; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; Doggett v Commonwealth Bank of Australia (2015) 47 VR 302; DZY v Trustees of the Christian Brothers [2023] VSC 124; Trustees of the Christian Brothers v DZY (a pseudonym) (2024) 78 VR 1; DZY v Trustees of the Christian Brothers (2025) 99 ALJR 806 considered - Preliminary questions answered.
JUDICIAL REVIEW - Statutory interpretation - Registration exemption order made under s 11B of Sexual Offenders Registration Act 2004 (Vic) (SORA) - Whether offence of sexual assault pursuant to s 40(1) of Crimes Act 1958 (Vic) is a 'specified offence' when victim is a child - Meaning of Schedule 5, Item 7 of SORA - 'An offence an element of which is an intention to commit an offence of a kind referred to in this Schedule' - Jurisdictional error established - Registration exemption order quashed - Sexual Offenders Registration Act 2004 (Vic) ss 7, 11A, 11B, 11C, 11D, 11F, 50, 54, Schedule 2, Schedule 5 - Crimes Act 1958 (Vic) ss 37A, 37B, 40, 49D - Interpretation of Legislation Act 1984 (Vic) ss 35, 36.
JUDICIAL REVIEW - Statutory interpretation - Registration exemption order made under s 11B of Sexual Offenders Registration Act 2004 (Vic) (SORA) - Whether offence of sexual assault pursuant to s 40(1) of Crimes Act 1958 (Vic) is a 'specified offence' when victim is a child - Meaning of Schedule 5, Item 7 of SORA - 'An offence an element of which is an intention to commit an offence of a kind referred to in this Schedule' - Jurisdictional error established - Registration exemption order quashed - Sexual Offenders Registration Act 2004 (Vic) ss 7, 11A, 11B, 11C, 11D, 11F, 50, 54, Schedule 2, Schedule 5 - Crimes Act 1958 (Vic) ss 37A, 37B, 40, 49D - Interpretation of Legislation Act 1984 (Vic) ss 35, 36.
ADMINISTRATIVE LAW - Whether application for exemption order commenced prior to notification of reporting obligations to offender under s 50(5) or s 54 of the SORA was invalid - No invalidity - No jurisdictional error established.
ADMINISTRATIVE LAW - Whether Chief Commissioner of Police denied procedural fairness - No notice of application for exemption order given to Commissioner- Commissioner a mandatory party under s 11F of SORA - No opportunity to make submissions on application - Jurisdictional error established.
ADMINISTRATIVE LAW - Whether primary Judge failed to consider question of 'risk to the sexual safety of one or more persons in the community' under s 11B of the SORA - No jurisdictional error established.
JUDICIAL REVIEW - Application for extension of time for judicial review under r 56.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Originating motion filed 1,254 days out of time - What constitutes 'special conditions' - Length of delay - Reason for delay - Merits of the case - Justice to the parties - Public interest in finality of litigation - Held: Application to extend time refused - Lengthy delay, no reason for delay and no merits to the plaintiff's case.
JUDICIAL REVIEW - Application for extension of time for judicial review under r 56.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Originating motion filed 1,254 days out of time - What constitutes 'special conditions' - Length of delay - Reason for delay - Merits of the case - Justice to the parties - Public interest in finality of litigation - Held: Application to extend time refused - Lengthy delay, no reason for delay and no merits to the plaintiff's case.
TRUSTS - Restraint by Court order of operation of clause of trust deed relating to change of appointor of trust for the purpose of maintaining status quo during proceedings - Whether appropriate to discontinue the restraint.
TRUSTS - Restraint by Court order of operation of clause of trust deed relating to change of appointor of trust for the purpose of maintaining status quo during proceedings - Whether appropriate to discontinue the restraint.
PRACTICE AND PROCEDURE - Pleadings - Withdrawal of admissions in defence without leave or consent - Whether leave should be granted - Prejudice to plaintiff - Case management considerations.
LAND VALUATION AND COMPENSATION - Part of applicant's land reserved for a public purpose for the Outer Metropolitan Ring - Application for planning permit for residential subdivision refused - Applicant claimed compensation for financial loss as the natural, direct and reasonable consequence of the land being reserved for a public purpose, under Part 5 of the Planning and Environment Act 1987 (Vic) - Assessment of quantum of loss - Valuation in the 'before' or 'unaffected' by the reservation and 'after' or 'affected' scenarios - Whether in 'before' scenario subject land was ready for development having regard to the need for an approved Aboriginal cultural heritage management plan prior to subdivision - Significance of past approved cultural heritage management plan over that part of the subject land not subject to a reservation - Effect of expert planning evidence - Causation of financial loss - Planning and Environment Act 1987 (Vic) Part 5, ss 4, 47, 61, 98, 99, 101, 104, 104A, 105, 106, 108 - Land Acquisition and Compensation Act 1986 (Vic) ss 37, 41, 43, Pt 10 - Valuation of Land Act 1960 (Vic) s 5A - Kajag Pty Ltd v Head, Transport for Victoria [2023] VSC 392.
LAND VALUATION AND COMPENSATION - Part of applicant's land reserved for a public purpose for the Outer Metropolitan Ring - Application for planning permit for residential subdivision refused - Applicant claimed compensation for financial loss as the natural, direct and reasonable consequence of the land being reserved for a public purpose, under Part 5 of the Planning and Environment Act 1987 (Vic) - Assessment of quantum of loss - Valuation in the 'before' or 'unaffected' by the reservation and 'after' or 'affected' scenarios - Whether in 'before' scenario subject land was ready for development having regard to the need for an approved Aboriginal cultural heritage management plan prior to subdivision - Significance of past approved cultural heritage management plan over that part of the subject land not subject to a reservation - Effect of expert planning evidence - Causation of financial loss - Planning and Environment Act 1987 (Vic) Part 5, ss 4, 47, 61, 98, 99, 101, 104, 104A, 105, 106, 108 - Land Acquisition and Compensation Act 1986 (Vic) ss 37, 41, 43, Pt 10 - Valuation of Land Act 1960 (Vic) s 5A - Kajag Pty Ltd v Head, Transport for Victoria [2023] VSC 392.
PLANNING AND ENVIRONMENT - Aboriginal cultural heritage - Requirement of a cultural heritage management plan prior to development - Where cultural heritage management plan was obtained over most of subject land after reservation and prior to permit application, and did not extend into the area reserved under the public acquisition overlay - Significance of existing cultural heritage management plan in assessing readiness for development in valuation process - Whether failure to apply for a further cultural heritage management plan that extended over the whole of the subject land broke the chain of causation of financial loss - Whether claimant required to obtain cultural heritage management plan for hypothetical development in area subject to the reservation for valuation purposes - Aboriginal Heritage Act 2006 (Vic) ss 42, 43, 46, 52, 53, 54, 61, 63 - Aboriginal Heritage Regulations 2007 (Vic) regs 7, 25, 26, 49.
ONUS OF PROOF- Legal and evidentiary of proof in establishing right to compensation - Whether any legal or evidentiary burden for matters going to determination of quantum - Approach to proof in compensation proceeding.
CRIMINAL LAW - Bail - Applicant charged with aggravated home invasion and associated offences - Whether exceptional circumstances exist justifying the grant of bail - Whether unacceptable risk - Exceptional circumstances established - Unacceptable risk of further offending - Bail refused - Bail Act 1977, s 3, 3AAA, s 4, s 4AA, s 4C, s 4E.
CRIMINAL LAW - Bail - Applicant charged with aggravated home invasion and associated offences - Whether exceptional circumstances exist justifying the grant of bail - Whether unacceptable risk - Exceptional circumstances established - Unacceptable risk of further offending - Bail refused - Bail Act 1977, s 3, 3AAA, s 4, s 4AA, s 4C, s 4E.
CRIMINAL LAW - Bail - Charges of theft, attempted aggravated burglary, aggravated burglary - No prior convictions - Aboriginal person - Cultural Pathways Plan - Time on remand exceeding potential sentence - Schedule 1 offences - Exceptional circumstances found - Appropriate bail conditions ameliorating risk - Bail granted - Bail Act 1977 (Vic) ss 1B, 3AAA(1), 3A, 4, 4A, 4E.
CRIMINAL LAW - Bail - Charges of theft, attempted aggravated burglary, aggravated burglary - No prior convictions - Aboriginal person - Cultural Pathways Plan - Time on remand exceeding potential sentence - Schedule 1 offences - Exceptional circumstances found - Appropriate bail conditions ameliorating risk - Bail granted - Bail Act 1977 (Vic) ss 1B, 3AAA(1), 3A, 4, 4A, 4E.
INJUNCTION - Application for takedown order - Applications to prohibit publication of material disparaging of accused - Application to enjoin publication of, and to take down, material having a tendency to prejudice the due administration of justice - Sub judice contempt - Jurisdiction of court to prevent sub judice contempt - Requirement that orders be necessary to protect the administration of justice - Whether order necessary.
INJUNCTION - Application for takedown order - Applications to prohibit publication of material disparaging of accused - Application to enjoin publication of, and to take down, material having a tendency to prejudice the due administration of justice - Sub judice contempt - Jurisdiction of court to prevent sub judice contempt - Requirement that orders be necessary to protect the administration of justice - Whether order necessary.
COURTS AND JUSTICE - Open justice - Open Courts Act 2013, s 18(1)(a).
CRIMINAL LAW- Evidence - Manslaughter re-trial - Admissibility - Accused's record of police interview - Limited evidence of accused's intoxication admissible - Evidence of erroneous belief held by accused inadmissible - Evidence Act 2008 (Vic), ss 55, 97.
CRIMINAL LAW- Evidence - Manslaughter re-trial - Admissibility - Accused's record of police interview - Limited evidence of accused's intoxication admissible - Evidence of erroneous belief held by accused inadmissible - Evidence Act 2008 (Vic), ss 55, 97.
CRIMINAL LAW - Evidence - Manslaughter re-trial - Expert evidence - Admissibility of evidence of medical notes sought to be adduced in re-examination - Business records exception - Evidence not an opinion - Evidence not demonstrated to be based on specialised knowledge - No personal knowledge of evidence - Evidence not to be adduced - Evidence Act 2008 (Vic), ss 59, 69, 76, 79, 137.
CRIMINAL LAW - Evidence - Manslaughter re-trial - Expert evidence - Admissibility of evidence of medical notes sought to be adduced in re-examination - Business records exception - Evidence not an opinion - Evidence not demonstrated to be based on specialised knowledge - No personal knowledge of evidence - Evidence not to be adduced - Evidence Act 2008 (Vic), ss 59, 69, 76, 79, 137.
CRIMINAL LAW - Evidence - Manslaughter re-trial - Unreliability direction sought by defence - Medical evidence adduced - Doctor not told she would be giving evidence until approximately 4 years after the relevant events - Mistakes made based on incorrect recollection - Mistakes corrected as part of doctor's evidence - Direction not given - Jury Directions Act 2015 (Vic), ss 12, 14, 32, 39.
CRIMINAL LAW - Evidence - Manslaughter re-trial - Unreliability direction sought by defence - Medical evidence adduced - Doctor not told she would be giving evidence until approximately 4 years after the relevant events - Mistakes made based on incorrect recollection - Mistakes corrected as part of doctor's evidence - Direction not given - Jury Directions Act 2015 (Vic), ss 12, 14, 32, 39.
CRIMINAL LAW - Sentencing - Manslaughter - Unlawful and dangerous act - Accused struck deceased once to the face in a 'backhander' motion - Low-level seriousness - Plea of guilty in circumstances where conviction not inevitable - Relevant criminal history - Background of disadvantage - Borderline personality disorder - Guarded prospects of rehabilitation - Sentence of six years and six months' imprisonment with non-parole period of four years.
CRIMINAL LAW - Sentencing - Manslaughter - Unlawful and dangerous act - Accused struck deceased once to the face in a 'backhander' motion - Low-level seriousness - Plea of guilty in circumstances where conviction not inevitable - Relevant criminal history - Background of disadvantage - Borderline personality disorder - Guarded prospects of rehabilitation - Sentence of six years and six months' imprisonment with non-parole period of four years.
CRIMINAL LAW - Sentence - Murder - Accused stabbed wife multiple times in front of children - Accused wrongly believed wife was having affair with his brother - Accused morbidly jealous - History of family violence - Where accused suffered from intellectual disability and major depressive disorder with psychotic features - Where accused at trial conceded causing wife's death, but disputed having murderous intent - Genuine remorse for killing - No prior criminal record - Prospect of deportation - Total effective sentence of 24 years' imprisonment - Corman v The King [2025] VSCA 302 - Pasinis v The Queen [2014] VSCA 97 - R v Verdins (2007) 16 VR 269 - Skeates (a pseudonym) v The King [2023] VSCA 226 - Sentencing Act 1991 (Vic) ss 5, 5A, 5B, 6A, 6D.
CRIMINAL LAW - Sentence - Murder - Accused stabbed wife multiple times in front of children - Accused wrongly believed wife was having affair with his brother - Accused morbidly jealous - History of family violence - Where accused suffered from intellectual disability and major depressive disorder with psychotic features - Where accused at trial conceded causing wife's death, but disputed having murderous intent - Genuine remorse for killing - No prior criminal record - Prospect of deportation - Total effective sentence of 24 years' imprisonment - Corman v The King [2025] VSCA 302 - Pasinis v The Queen [2014] VSCA 97 - R v Verdins (2007) 16 VR 269 - Skeates (a pseudonym) v The King [2023] VSCA 226 - Sentencing Act 1991 (Vic) ss 5, 5A, 5B, 6A, 6D.
CRIMINAL LAW - Application to suspend registrable offender's lifelong reporting obligations - Offender convicted in 2009 - Six charges of sexual penetration of a child under the age of 16 - Respondent did not oppose application - Whether in public interest to suspend - Application granted - Sex Offenders Registration Act 2004 (Vic), ss 39, 40 - Crimes Act 1958 (Vic), s 45(1) - Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 12, 13, 16, 21 - Open Courts Act 2013 (Vic), ss 17, 18.
CRIMINAL LAW - Application to suspend registrable offender's lifelong reporting obligations - Offender convicted in 2009 - Six charges of sexual penetration of a child under the age of 16 - Respondent did not oppose application - Whether in public interest to suspend - Application granted - Sex Offenders Registration Act 2004 (Vic), ss 39, 40 - Crimes Act 1958 (Vic), s 45(1) - Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 12, 13, 16, 21 - Open Courts Act 2013 (Vic), ss 17, 18.
CRIMINAL LAW - Mental impairment - Custodial supervision order made 15 June 1998 - Second review of custodial supervision order - Major review - Evidence uncontested - Reviewee, Secretary of the Department of Health and Attorney-General all consent to determination on the papers - Safety of Reviewee and members of the public would be seriously endangered if order varied to a non-custodial supervision order - Custodial supervision order confirmed - Further major review ordered in 3 years' time - Suppression order extended - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 35, 38C, 39, 40, 42 and 75.
CRIMINAL LAW - Mental impairment - Custodial supervision order made 15 June 1998 - Second review of custodial supervision order - Major review - Evidence uncontested - Reviewee, Secretary of the Department of Health and Attorney-General all consent to determination on the papers - Safety of Reviewee and members of the public would be seriously endangered if order varied to a non-custodial supervision order - Custodial supervision order confirmed - Further major review ordered in 3 years' time - Suppression order extended - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 35, 38C, 39, 40, 42 and 75.
CRIMINAL LAW - Application under Sex Offenders Registration Act 2004 to have reporting obligations of sex offending suspended - Applicant convicted in 2008 of sexual offences against minors - Low risk to the sexual safety of one or more persons or the community - In public interest to grant application - Compliance with reporting since release from custody save for one inadvertent failure - Exemplary rehabilitation efforts - Application not opposed by Chief Commissioner of Police - Sex Offenders Registration Act 2004 ss 39, 40.
CRIMINAL LAW - Application under Sex Offenders Registration Act 2004 to have reporting obligations of sex offending suspended - Applicant convicted in 2008 of sexual offences against minors - Low risk to the sexual safety of one or more persons or the community - In public interest to grant application - Compliance with reporting since release from custody save for one inadvertent failure - Exemplary rehabilitation efforts - Application not opposed by Chief Commissioner of Police - Sex Offenders Registration Act 2004 ss 39, 40.
APPLICATION TO DISMISS PROCEEDING - Civil procedure - Application to dismiss proceeding for want of prosecution - Inordinate and inexcusable delay - Failure to comply with court orders - Prejudice to the defendant - Whether proceeding should be dismissed in the Court's inherent jurisdiction.
APPLICATION TO DISMISS PROCEEDING - Civil procedure - Application to dismiss proceeding for want of prosecution - Inordinate and inexcusable delay - Failure to comply with court orders - Prejudice to the defendant - Whether proceeding should be dismissed in the Court's inherent jurisdiction.
CO-OWNERSHIP OF LAND - Sale of co-owned land - Jurisdiction of County Court pursuant to Victorian Civil and Administrative Tribunal and Other Acts Amendment (Federal Jurisdiction and Other Matters) Act 2021 (Vic), Part 3A and Property Law Act 1958 (Vic), Part IV - Compensation or reimbursement from proceeds of sale pursuant to Property Law Act 1958 (Vic), s233(1)(A) - Form of order.
CO-OWNERSHIP OF LAND - Sale of co-owned land - Jurisdiction of County Court pursuant to Victorian Civil and Administrative Tribunal and Other Acts Amendment (Federal Jurisdiction and Other Matters) Act 2021 (Vic), Part 3A and Property Law Act 1958 (Vic), Part IV - Compensation or reimbursement from proceeds of sale pursuant to Property Law Act 1958 (Vic), s233(1)(A) - Form of order.
TESTATOR'S FAMILY MAINTENANCE - Application for further provision - Adult daughter - Significant physical disabilities - Whether adequate provision made for proper maintenance and support.
TESTATOR'S FAMILY MAINTENANCE - Application for further provision - Adult daughter - Significant physical disabilities - Whether adequate provision made for proper maintenance and support.
INJURIOUS OR MALICIOUS FALSEHOOD - MISLEADING OR DECEPTIVE CONDUCT - Alleged malicious or injurious falsehood - Whether defendants made statements implicating plaintiff supplier of Halal certification services for Australian meat exports with the support of Islamic extremism or investigations as to such matters - Whether such allegations can constitute the tort of injurious or malicious falsehood - Proper standard of proof for such matters - Whether falsehood attended by "malice" for the purposes of the cause of action.
INJURIOUS OR MALICIOUS FALSEHOOD - MISLEADING OR DECEPTIVE CONDUCT - Alleged malicious or injurious falsehood - Whether defendants made statements implicating plaintiff supplier of Halal certification services for Australian meat exports with the support of Islamic extremism or investigations as to such matters - Whether such allegations can constitute the tort of injurious or malicious falsehood - Proper standard of proof for such matters - Whether falsehood attended by "malice" for the purposes of the cause of action.
MISLEADING OR DECEPTIVE CONDUCT - Whether the same matters alleged relative to the common law tort could be regarded as "in trade or commerce" - Conduct was in trade or commerce when in context of competition between plaintiff and corporate defendant for business in the market for providing Halal certification services.
PRACTICE AND PROCEDURE - STANDING - STAY ON EXECUTION OF WARRANT FOR POSSESSION - Application for stay on execution of warrant for possession of property - Where judgment previously entered against mortgagor defendant - Application made by interested party - Applicant purportedly making application on behalf of her adult children - Applicant claims her children have adverse possessory interest in the property - Applicant undischarged bankrupt - No standing to bring application - Inconsistencies in evidence adduced by the applicant - Untenable claim of adverse possession.
PRACTICE AND PROCEDURE - STANDING - STAY ON EXECUTION OF WARRANT FOR POSSESSION - Application for stay on execution of warrant for possession of property - Where judgment previously entered against mortgagor defendant - Application made by interested party - Applicant purportedly making application on behalf of her adult children - Applicant claims her children have adverse possessory interest in the property - Applicant undischarged bankrupt - No standing to bring application - Inconsistencies in evidence adduced by the applicant - Untenable claim of adverse possession.
PRACTICE AND PROCEDURE - SECURITY FOR COSTS - Plaintiff's case particularly strong - Claim for principal and interest under a loan agreement - Defendant previously claimed he owed the interest, in previous court proceedings, but defends the plaintiff's claim in part on the basis that representations were made to the defendant that he did not have to pay interest - Defendant's previous conduct amounts to an admission that interest is payable under the loan agreement - Relevant to discretion as to whether to order security for costs - No security ordered.
PRACTICE AND PROCEDURE - SECURITY FOR COSTS - Plaintiff's case particularly strong - Claim for principal and interest under a loan agreement - Defendant previously claimed he owed the interest, in previous court proceedings, but defends the plaintiff's claim in part on the basis that representations were made to the defendant that he did not have to pay interest - Defendant's previous conduct amounts to an admission that interest is payable under the loan agreement - Relevant to discretion as to whether to order security for costs - No security ordered.
PRACTICE AND PROCEDURE - SECURITY FOR COSTS - SET-OFF - County Court Civil Procedure Rules 2018 Rule 13.14 - The defendant's defence includes a set-off claim for more than $300,000 - Set-off arises out of different facts to plaintiff's claim - Set-off is in the nature of a separate claim - Relevant to discretion as to whether to order security for costs - No security ordered.
Morag Atwell v Dennis Anthony Turner & Ors [2017] VSC 212 - Sir Lindsay Parkinson & Co Ltd v Triplan Ltd [1973] 1 QB 609 - Grace Christian Capital v Canaan Holdings Pty Ltd (Security for Costs) [2019] VSC 5 - Australian Mud Co Pty Ltd v Coretell Pty Ltd (No 6) [2013] FCA 1025 - Pathik v Bata [2025] VCC 43 - Pathik v Bata (No.2) [2025] VCC 333.
PRACTICE AND PROCEDURE - COSTS - Mixed success on claim - Whether costs should be apportioned or there be no order as to costs - Whether retention of senior counsel warranted - Calculation of interest payable.
PRACTICE AND PROCEDURE - COSTS - Mixed success on claim - Whether costs should be apportioned or there be no order as to costs - Whether retention of senior counsel warranted - Calculation of interest payable.