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.
PRACTICE AND PROCEDURE - Pleadings - Late application to file a second further amended statement of claim - Application for amendment under r 36.01(1) of the* Supreme Court (General Civil Procedure) Rules 2025* (Vic) - Amendment application general principles - Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 -Application made near beginning of trial - Civil Procedure Act 2010 (Vic), ss 7, 8, 9 - Delay - Explanation for delay - Claimed prejudice - Overarching purpose - Public resource and case management considerations - Application allowed in part.
PRACTICE AND PROCEDURE - Pleadings - Late application to file a second further amended statement of claim - Application for amendment under r 36.01(1) of the* Supreme Court (General Civil Procedure) Rules 2025* (Vic) - Amendment application general principles - Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 -Application made near beginning of trial - Civil Procedure Act 2010 (Vic), ss 7, 8, 9 - Delay - Explanation for delay - Claimed prejudice - Overarching purpose - Public resource and case management considerations - Application allowed in part.
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.
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 - Pleadings - Parties entered into deed that included call option for Navadiya Group to purchase property from Dreamland - Navadiya Group purported to exercise call option on 1 March 2022 - Navadiya Group again purported to exercise call option on 17 March 2022 - Dreamland alleged in pleading that Navadiya Group had validly exercised call option 'on or about 1 March 2022' - At trial Dreamland contended that Navadiya Group exercised call option on 17 March 2022 without seeking to amend pleading - Navadiya Group objected to departure from pleaded case - Judge considered whether Navadiya Group validly exercised the option on 1 March 2022 or 17 March 2022 - Judge found that neither exercise was valid - Whether, in light of pleadings, judge ought to have declined to determine whether Navadiya Group exercised call option on 17 March 2022 - Leave to appeal refused.
PRACTICE AND PROCEDURE - Pleadings - Parties entered into deed that included call option for Navadiya Group to purchase property from Dreamland - Navadiya Group purported to exercise call option on 1 March 2022 - Navadiya Group again purported to exercise call option on 17 March 2022 - Dreamland alleged in pleading that Navadiya Group had validly exercised call option 'on or about 1 March 2022' - At trial Dreamland contended that Navadiya Group exercised call option on 17 March 2022 without seeking to amend pleading - Navadiya Group objected to departure from pleaded case - Judge considered whether Navadiya Group validly exercised the option on 1 March 2022 or 17 March 2022 - Judge found that neither exercise was valid - Whether, in light of pleadings, judge ought to have declined to determine whether Navadiya Group exercised call option on 17 March 2022 - Leave to appeal refused.
CONTRACT - Breach - Deed for loan of money from Navadiya Group to Dreamland - Navadiya Group alleged Dreamland was in default under the deed and sought repayment of loan - Judge found Dreamland was in default under the deed - Whether judge erred in construction of contractual obligations - Whether default notice invalid - Leave to appeal refused.
Dare v Pulham (1982) 148 CLR 658; Gould v Mount Oxide Mines Ltd (In Liq) (1916) 22 CLR 490; Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; Betfair Pty Ltd v Racing New South Wales (2010) 189 FCR 356; United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2018] VSC 347; considered.
Civil Procedure Act 2010, s 7.
CRIMINAL LAW - Appeal - Conviction - Accused convicted of murder after trial - Jury separated following conclusion of judge's charge without taking separation oath - Jurors returned to court and took separation oath after they had been separated for over an hour - Jury indicated the following day that they had not commenced deliberations prior to taking separation oath - Whether separation was contrary to s 50 of the Juries Act 2000 - Meaning of phrase 'retired to consider its verdict' in s 50 - Jury had separated after retiring to consider its verdict in circumstances that were contrary to s 50 - Fundamental irregularity occasioning a substantial miscarriage of justice - Appeal against conviction allowed - New trial ordered.
CRIMINAL LAW - Appeal - Conviction - Accused convicted of murder after trial - Jury separated following conclusion of judge's charge without taking separation oath - Jurors returned to court and took separation oath after they had been separated for over an hour - Jury indicated the following day that they had not commenced deliberations prior to taking separation oath - Whether separation was contrary to s 50 of the Juries Act 2000 - Meaning of phrase 'retired to consider its verdict' in s 50 - Jury had separated after retiring to consider its verdict in circumstances that were contrary to s 50 - Fundamental irregularity occasioning a substantial miscarriage of justice - Appeal against conviction allowed - New trial ordered.
Juries Act 2000, ss 49, 50, schs 4, 5.
Juries Act 1967, s 51A.
Bechaud v The King [2025] VSCA 306; Brownlee v The Queen (2001) 207 CLR 278; Jomaring Pty Ltd v Head, Transport for Victoria [2025] VSCA 128; R v Appleby (1996) 88 A Crim R 456; R v Chaouk [1986] VR 707; R v Clarke (2002) 5 VR 480; Youssef (a pseudonym) v The Queen [2019] VSCA 240, considered.
CRIMINAL LAW - Appeal - Application for leave to appeal against conviction - Applicant convicted of murder - Applicant killed mother with shotgun - Mental impairment - Applicant suffered from delusional disorder at time of offence - Sole question at trial whether mental impairment had effect that applicant did not know conduct was wrong when committing offence - Jury checklist - Judge provided jury with checklist of elements of defence of mental impairment - Checklist included words 'to such an extent' when describing threshold to establish effect of mental impairment - Whether impugned words impermissibly raised standard of proof of mental impairment - Application for leave to appeal against conviction refused.
CRIMINAL LAW - Appeal - Application for leave to appeal against conviction - Applicant convicted of murder - Applicant killed mother with shotgun - Mental impairment - Applicant suffered from delusional disorder at time of offence - Sole question at trial whether mental impairment had effect that applicant did not know conduct was wrong when committing offence - Jury checklist - Judge provided jury with checklist of elements of defence of mental impairment - Checklist included words 'to such an extent' when describing threshold to establish effect of mental impairment - Whether impugned words impermissibly raised standard of proof of mental impairment - Application for leave to appeal against conviction refused.
CRIMINAL LAW - Appeal - Application for leave to appeal against sentence - Applicant convicted of murder - Sentenced to 30 years' imprisonment with non-parole period of 23 years - Applicant motivated by anger toward mother and brother stemming from business venture - Applicant's anger toward mother and brother strongly linked with delusional disorder - Whether sentence manifestly excessive - Reduced moral culpability - Applicant aged 65 years at time of offending - No previous offending - Application for leave to appeal against sentence granted - Appeal allowed - Applicant resentenced.
Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, s 20; Jury Directions Act 2015, s 5.
R v Porter (1933) 55 CLR 182; M'Naghten's Case (1843) 8 ER 718; Kosian v The Queen (2013) 40 VR 335; Sodeman v The King (1936) 55 CLR 192; Stapleton v The Queen (1952) 86 CLR 358; Verdins v The Queen (2007) 16 VR 269; Bednar v The King [2024] VSCA 180; DPP v Lee [2023] VSC 437; DPP v Anderson [2024] VSC 565; DPP v Cross (No 2) [2023] VSC 40, considered.
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 - 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 - Appeal - Sentence - Attempted and actual sexual penetration of child under 12 years - Two sexual assault charges of child under 16 years - Sexual assault and two rape charges against adult - Total effective sentence of 6 years and 6 months - Non-parole period of 3 years and 4 months - Whether sentence manifestly excessive - Applicant intellectually disabled - Early guilty plea - Child offender for four offences - Vulnerability in prison - Repeated offending against same victims - Particularly vulnerable victims - Community protection - Sentence within range and appropriate - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Attempted and actual sexual penetration of child under 12 years - Two sexual assault charges of child under 16 years - Sexual assault and two rape charges against adult - Total effective sentence of 6 years and 6 months - Non-parole period of 3 years and 4 months - Whether sentence manifestly excessive - Applicant intellectually disabled - Early guilty plea - Child offender for four offences - Vulnerability in prison - Repeated offending against same victims - Particularly vulnerable victims - Community protection - Sentence within range and appropriate - Leave to appeal refused.
Clarkson v The Queen (2011) 32 VR 361; Young v The Queen [2016] VSCA 149, considered.
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 - Application for leave to appeal - Applicant committed two aggravated burglaries and associated offences whilst intoxicated - Applicant struck sleeping occupant of house to head with broom handle - Applicant aged 20 years at time of offending and 21 years at sentence - Whether judge gave appropriate weight to applicant's youth - Whether sentence for first aggravated burglary charge and total effective sentence manifestly excessive - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Application for leave to appeal - Applicant committed two aggravated burglaries and associated offences whilst intoxicated - Applicant struck sleeping occupant of house to head with broom handle - Applicant aged 20 years at time of offending and 21 years at sentence - Whether judge gave appropriate weight to applicant's youth - Whether sentence for first aggravated burglary charge and total effective sentence manifestly excessive - Leave to appeal refused.
Clarkson v The Queen (2011) 32 VR 361, followed.
Azzopardi v The Queen (2011) 35 VR 43; R v Mills [1998] 4 VR 235; DPP v Lawrence (2004) 10 VR 125; DPP v Meyers (2014) 44 VR 486, referred to.
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.
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.
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.
COSTS - Offer of compromise - Calderbank offer - Calderbank v Calderbank [1975] All ER 333 - Cargill Australia Ltd v Viterra Malt Pty Ltd [2023] VSCA 301, [36]-[40] (Sifris, Walker and Whelan JJA) - Hazeldene's Chicken Farm Pty Ltd v Workcover Authority (Vic) (No 2) (2005) 13 VR 435, 441 [21]-[25] (Warren CJ, Maxwell P, Harper AJA) - Supreme Court Act 1986, s 24 - Supreme Court (General Civil Procedure) Rules 2015, ords 26, 63.
COSTS - Offer of compromise - Calderbank offer - Calderbank v Calderbank [1975] All ER 333 - Cargill Australia Ltd v Viterra Malt Pty Ltd [2023] VSCA 301, [36]-[40] (Sifris, Walker and Whelan JJA) - Hazeldene's Chicken Farm Pty Ltd v Workcover Authority (Vic) (No 2) (2005) 13 VR 435, 441 [21]-[25] (Warren CJ, Maxwell P, Harper AJA) - Supreme Court Act 1986, s 24 - Supreme Court (General Civil Procedure) Rules 2015, ords 26, 63.
JUDICIAL REVIEW - Applications for leave to appeal from decisions of the Victorian Civil and Administrative Tribunal - Serviced apartment lease - Landlord's statutory liability for repairs - Whether option to renew exercisable by tenant - Whether tenant in breach of lease - Whether tenant has persistently defaulted under the lease throughout its term - Retail Leases Act 2003 (Vic) ss 27, 52, 64 - Property Law Act 1958 (Vic) s 146.
JUDICIAL REVIEW - Applications for leave to appeal from decisions of the Victorian Civil and Administrative Tribunal - Serviced apartment lease - Landlord's statutory liability for repairs - Whether option to renew exercisable by tenant - Whether tenant in breach of lease - Whether tenant has persistently defaulted under the lease throughout its term - Retail Leases Act 2003 (Vic) ss 27, 52, 64 - Property Law Act 1958 (Vic) s 146.
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].
INTERLOCUTORY INJUNCTION - Application for urgent injunctive relief by a director and shareholder and alleged creditor of a company in liquidation - Application to restrain the sale of property, owned by the company, by a mortgagee in possession - Potential derivative action - No dispute about: the validity of the mortgage; that the mortgagee is in possession; the power of sale is exercisable and the mortgagee is owed the amount it claims - Claims concern the manner in which the mortgagee is currently exercising its power of sale - There are serious questions to be tried but the claim for derivative leave is weak - Damages are an adequate remedy - No payment into Court - Undertaking as to damages has no value - Injunction refused - Duggal v Bellrock Cleaning Services Pty Ltd (Recs and mgrs apptd) [2023] VSC 166; ABCD Corporation Pty Ltd v Sampson [2017] NSWCA 117; Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161; Bayblu Holdings Pty Ltd v Capital Finance Australia Ltd (2011) 279 ALR 166; Welldog Pty Ltd v Prox Pty Ltd [2017] WASCA 62; Glendore Pty Ltd v Elders Finance & Investment Co Ltd (1984) 4 FCR 130; Town & Country Resorts (Holdings) Pty Ltd v Partnership Pacific Ltd (1988) 20 FCR 540 ? s 420A of the Corporations Act 2001 (Cth) ? s 77 of the Transfer of Land Act 1958 (Vic), applied.
INTERLOCUTORY INJUNCTION - Application for urgent injunctive relief by a director and shareholder and alleged creditor of a company in liquidation - Application to restrain the sale of property, owned by the company, by a mortgagee in possession - Potential derivative action - No dispute about: the validity of the mortgage; that the mortgagee is in possession; the power of sale is exercisable and the mortgagee is owed the amount it claims - Claims concern the manner in which the mortgagee is currently exercising its power of sale - There are serious questions to be tried but the claim for derivative leave is weak - Damages are an adequate remedy - No payment into Court - Undertaking as to damages has no value - Injunction refused - Duggal v Bellrock Cleaning Services Pty Ltd (Recs and mgrs apptd) [2023] VSC 166; ABCD Corporation Pty Ltd v Sampson [2017] NSWCA 117; Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161; Bayblu Holdings Pty Ltd v Capital Finance Australia Ltd (2011) 279 ALR 166; Welldog Pty Ltd v Prox Pty Ltd [2017] WASCA 62; Glendore Pty Ltd v Elders Finance & Investment Co Ltd (1984) 4 FCR 130; Town & Country Resorts (Holdings) Pty Ltd v Partnership Pacific Ltd (1988) 20 FCR 540 ? s 420A of the Corporations Act 2001 (Cth) ? s 77 of the Transfer of Land Act 1958 (Vic), applied.
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 to set aside judgment entered in default of appearance - Supreme Court (General Civil Procedure) Rules 2025 (Vic), r 21.07 - No adequate explanation for default in consequence of which the judgment was obtained - No reasonably arguable defence - Reasons for delay - Not satisfied defendants have established a prima facie case of breach of duty by plaintiffs with respect to sale of properties - Application dismissed.
PRACTICE AND PROCEDURE - Application to set aside judgment entered in default of appearance - Supreme Court (General Civil Procedure) Rules 2025 (Vic), r 21.07 - No adequate explanation for default in consequence of which the judgment was obtained - No reasonably arguable defence - Reasons for delay - Not satisfied defendants have established a prima facie case of breach of duty by plaintiffs with respect to sale of properties - Application 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 - 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 security for costs - Principles to be applied - Multiple requests to provide evidence as to financial position - Application made shortly prior to trial - Exercise of Court's broad discretion - Party seeking security bears onus of establishing 'reason to believe' - Onus not discharged - Significant delay - Application of Civil Procedure Act 2010 (Vic) - Late filing of application - Case management principles - Re Tarrawarra Yarra Valley Holding Pty Ltd [2025] VSC 293, applied - Application refused.
PRACTICE AND PROCEDURE - Application for security for costs - Principles to be applied - Multiple requests to provide evidence as to financial position - Application made shortly prior to trial - Exercise of Court's broad discretion - Party seeking security bears onus of establishing 'reason to believe' - Onus not discharged - Significant delay - Application of Civil Procedure Act 2010 (Vic) - Late filing of application - Case management principles - Re Tarrawarra Yarra Valley Holding Pty Ltd [2025] VSC 293, applied - Application refused.
EQUITY - Fiduciary Duties - Duty to avoid conflict of duty and interest - Duty to avoid deriving an unauthorised profit from fiduciary position - Scope and content of fiduciary duties - First defendant was director and company secretary of first plaintiff - First plaintiff's undertaking was the development and management of retirement villages - First defendant participated in consortiums which pursued the acquisition and development of residential properties - Whether first defendant breached the 'no conflict' and 'no profit' rules in doing so - No breach of fiduciary duty in pursuing and failing to disclose those opportunities.
EQUITY - Fiduciary Duties - Duty to avoid conflict of duty and interest - Duty to avoid deriving an unauthorised profit from fiduciary position - Scope and content of fiduciary duties - First defendant was director and company secretary of first plaintiff - First plaintiff's undertaking was the development and management of retirement villages - First defendant participated in consortiums which pursued the acquisition and development of residential properties - Whether first defendant breached the 'no conflict' and 'no profit' rules in doing so - No breach of fiduciary duty in pursuing and failing to disclose those opportunities.
EQUITY - Fiduciary Duties - Duty to avoid conflict of duty and interest - Duty to avoid deriving an unauthorised profit from fiduciary position - Scope and content of fiduciary duties - First defendant was company secretary of second plaintiff - Second plaintiff was a special purpose vehicle undertaking a residential development - First defendant participated in a consortium which pursued the acquisition and development of a residential site across the road - Whether first defendant breached the 'no conflict' and 'no profit' rules in doing so - Having regard to scope of fiduciary duty no breach of fiduciary duty in pursuing and failing to disclose that competing opportunity - Links Golf v Tasmania Links Golf Tasmania Pty Ltd v Sattler and Anor (2012) 213 FCR 1, applied; Bell v Lever Bros Ltd [1932] AC 161, applied.
EQUITY - Fiduciary Duties - First defendant misused software for the purpose assessing feasibility of one opportunity - Whether misuse caused the first defendant obtain a benefit or gain for which he should account - Application of 'but for' or 'significant extent' test - Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd (2018) 265 CLR 1, applied; Rukhadze & Ors v Recovery Partners GP Ltd & Anor [2025] UKSC 10, considered - Causation not established to requisite standard applying 'but for' and 'significant extent' test to the facts.
EQUITY - Fiduciary Duties - First defendant used second plaintiff's confidential pricing information for the purpose of setting prices at competing development - Information of de minimis value and effect in light of publicly available information - No benefit or gain established from the misuse.
EQUITY - Fiduciary Duties - First defendant used software for the purpose of residential development competing with the second plaintiff - No breach of fiduciary duty claimed by first plaintiff - No actionable breach of fiduciary duty by the second plaintiff for the misuse of property of another.
EQUITY - Accessorial liability - Whether second to ninth defendants liable as knowing recipients pursuant to first limb of Barnes v Addy (1874) LR 9 Ch App 244 - Alleged opportunities and information are not 'trust property' for the purposes of knowing recipient liability - Farah Constructions v Say- Dee P/L (2007) 230 CLR 89, applied; Murdoch v Mudgee Dolomite & Lime Pty Ltd (in liq) (2022) 398 ALR 658, applied.
EQUITY - Accessorial liability - Whether second to ninth defendants liable as knowing participants pursuant to second limb of Barnes v Addy (1874) LR 9 Ch App 244 - Knowing assistance of 'dishonest and fraudulent design' not established Murdoch v Mudgee Dolomite & Lime Pty Ltd (in liq) (2022) 398 ALR 658; Farah Constructions v Say- Dee P/L (2007) 230 CLR 89, applied; Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609, applied; Harstedt Pty Ltd v Tomanek (2018) 55 VR 158, applied.
EQUITY - Limitations and laches - Whether second plaintiff's claim barred by operation of s 1317K of the Corporations Act 2001 (Cth) by analogy or by laches - Claim barred by analogy and by operation of laches insofar as based on conduct in 2015 and 2016 - Gerace & Ors v Auzhair Supplies Pty Ltd (in liq) & Anor (2014) 87 NSWLR 435, applied; Streeter v Western Areas Exploration Pty Ltd (No 2) (2011) 278 ALR 291, applied.
CONTRACT - Offer and acceptance - First defendant an employee of first plaintiff - First plaintiff alleges employee subject to written terms of employment - First defendant denied so bound - First plaintiff failed to establish first defendant agreed to be bound.
CORPORATIONS - Directors' and officers' duties - Whether pursuit of commercial residential development opportunities by first defendant a breach of duty - No breach of duties - Corporations Act 2001 (Cth), ss 180, 181, 182 and 183.
CORPORATIONS - Directors' and officers' duties - Whether misuse of software by first defendant a breach of duty - No breach of duty to second plaintiff - Breach of duty owed to first plaintiff pursuant to ss 182 and 183 - No recoverable compensation 'resulted from' the contravention - Corporations Act 2001 (Cth), ss 180, 181, 182, 183 and 1317H.
CORPORATIONS - Directors' and officers' duties - Whether misuse of pricing information by first defendant a breach of duty - Breach of Corporations Act 2001 (Cth), ss 182 and 183 - No recoverable compensation 'resulted from' the contravention - Corporations Act 2001 (Cth), ss 180, 181, 182, 183 and 1317H.
FUNDS IN COURT - Surplus funds from sale of real property paid into court pursuant to s 77(3) of the Transfer of Land Act 1958 (Vic) - Property was the subject of a joint venture for development and subdivision of the land, with contributors acquiring a right to purchase a lot after payment towards development costs and cost equating to the lot - Contributors had no secured interest - Joint venture failed and property sold by a first mortgagee - Payment out of funds pursuant to r 79.02(2) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Asserted interest in the funds claimed by person involved in managing the joint venture - Contributor interests under deeds of joint ventures - Quistclose trust - Equitable interest in surplus funds.
FUNDS IN COURT - Surplus funds from sale of real property paid into court pursuant to s 77(3) of the Transfer of Land Act 1958 (Vic) - Property was the subject of a joint venture for development and subdivision of the land, with contributors acquiring a right to purchase a lot after payment towards development costs and cost equating to the lot - Contributors had no secured interest - Joint venture failed and property sold by a first mortgagee - Payment out of funds pursuant to r 79.02(2) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Asserted interest in the funds claimed by person involved in managing the joint venture - Contributor interests under deeds of joint ventures - Quistclose trust - Equitable interest in surplus funds.
PROCEDURE - Civil Procedure Act 2010 (Vic) ss 7, 8, 24 - Uniform Civil Procedure Rules 2005 (NSW) r 55.11(1).
EQUITY - Joint endeavour constructive trust - Whether there was a joint endeavour between the plaintiff son and the defendant mother - No joint endeavour established - Alternatively, any joint endeavour ended with attributable blame.
EQUITY - Joint endeavour constructive trust - Whether there was a joint endeavour between the plaintiff son and the defendant mother - No joint endeavour established - Alternatively, any joint endeavour ended with attributable blame.
EQUITY - Common intention constructive trust - Whether there was an implied common intention to give the plaintiff a beneficial interest in the property - No common intention established - Alternatively, not an equitable fraud to deny the plaintiff any such interest.
EQUITY - Proprietary estoppel - Whether promise by encouragement or acquiescence - Any beneficial interest in the property since amortised - Alternatively, plaintiff does not come to equity with clean hands.
Muschinski v Dodds (1985) 160 CLR 583, Baumgartner v Baumgartner (1987) 164 CLR 137, Bennett v Horgan (Supreme Court of New South Wales, Bryson J, 3 June 1994), Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc [2018] VSC 413, Kramer v Stone (2024) 160 CLR 583, Giumelli v Giumelli (1999) 196 CLR 101, Sidhu v Van Dyke (2014) 251 CLR 505.
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.
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.
ADMINISTRATION AND PROBATE - Application by beneficiary for removal of executor, administrator and trustee - Administration and Probate Act 1958 (Vic) s 34 - Trustee Act 1958 (Vic) s 48 - Licensed trustee company administering related deceased estates - Predecessor licensed trustee company administered estates for many years - Whether defendant unfit to continue to act - Whether conduct of defendant and predecessor justified removal - Whether one beneficiary given preferential treatment - Whether serious and reconcilable conflicts of interest and duty had arisen - Whether unjustified delays in finalisation of administration - Alleged failures to account or delays in responding to beneficiaries' requests for information - Differences in opinion between beneficiaries about disposition of estate properties - Uncertainty about fees and commissions the defendant proposed to charge - Paramount consideration of the welfare of beneficiaries as a whole - Positions of other beneficiaries - Relatively late stage of administration - Beneficiaries' interests in swift finalisation of administration - Whether alternative means available for addressing grievances against the administrator - Strong potential claims of waste of estate assets against defendant due to excessive remuneration paid to one beneficiary to look after estate properties and failure to ensure estate earned agistment income - Reasonable perception of partiality in favour of interests of one beneficiary over two other beneficiaries - Strong argument for reduction of commission by exclusion of any potential double-levying of capital commission and exclusion of litigation fee/surcharge - Weighing and balancing of relevant considerations - Removal ordered - Judicial advice and directions to new administrator foreshadowed - Administration and Probate Act 1958 (Vic) s 65A - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 54.02.
ADMINISTRATION AND PROBATE - Application by beneficiary for removal of executor, administrator and trustee - Administration and Probate Act 1958 (Vic) s 34 - Trustee Act 1958 (Vic) s 48 - Licensed trustee company administering related deceased estates - Predecessor licensed trustee company administered estates for many years - Whether defendant unfit to continue to act - Whether conduct of defendant and predecessor justified removal - Whether one beneficiary given preferential treatment - Whether serious and reconcilable conflicts of interest and duty had arisen - Whether unjustified delays in finalisation of administration - Alleged failures to account or delays in responding to beneficiaries' requests for information - Differences in opinion between beneficiaries about disposition of estate properties - Uncertainty about fees and commissions the defendant proposed to charge - Paramount consideration of the welfare of beneficiaries as a whole - Positions of other beneficiaries - Relatively late stage of administration - Beneficiaries' interests in swift finalisation of administration - Whether alternative means available for addressing grievances against the administrator - Strong potential claims of waste of estate assets against defendant due to excessive remuneration paid to one beneficiary to look after estate properties and failure to ensure estate earned agistment income - Reasonable perception of partiality in favour of interests of one beneficiary over two other beneficiaries - Strong argument for reduction of commission by exclusion of any potential double-levying of capital commission and exclusion of litigation fee/surcharge - Weighing and balancing of relevant considerations - Removal ordered - Judicial advice and directions to new administrator foreshadowed - Administration and Probate Act 1958 (Vic) s 65A - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 54.02.
ADMINISTRATION AND PROBATE - Application to remove executor and trustee of deceased's estate - Administration and Probate Act 1958, s 34 - Trustee Act 1958, s 48 - Whether executor unfit to remain in office - Application for indemnity costs against defendant.
ADMINISTRATION AND PROBATE - Application to remove executor and trustee of deceased's estate - Administration and Probate Act 1958, s 34 - Trustee Act 1958, s 48 - Whether executor unfit to remain in office - Application for indemnity costs against defendant.
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.
PRACTICE AND PROCEDURE - Vexatious proceedings - Whether to make litigation restraint order on Court's own motion - Long history of unsuccessful proceedings - Persistence - Proceedings an abuse of process, pursued without reasonable grounds, or conducted so as to harass or annoy, or cause delay or detriment - Discretion to make litigation restraint order - No reason to believe plaintiff will cease pattern of vexatious litigation - Whether Court should make a general or extended litigation restraint order - General litigation restraint order made for an indefinite period - Vexatious Proceedings Act 2014 (Vic), ss 1, 3, 17, 20, 29, 30, 33, 45.
PRACTICE AND PROCEDURE - Vexatious proceedings - Whether to make litigation restraint order on Court's own motion - Long history of unsuccessful proceedings - Persistence - Proceedings an abuse of process, pursued without reasonable grounds, or conducted so as to harass or annoy, or cause delay or detriment - Discretion to make litigation restraint order - No reason to believe plaintiff will cease pattern of vexatious litigation - Whether Court should make a general or extended litigation restraint order - General litigation restraint order made for an indefinite period - Vexatious Proceedings Act 2014 (Vic), ss 1, 3, 17, 20, 29, 30, 33, 45.
PRACTICE AND PROCEDURE - Hearing of preliminary questions - Judgment reserved - No reference to listed trial date - Email to the Court to prompt delivery of judgment prior to listed trial date - Matter listed for judgment - Application made, by consent, to vacate the listed trial date - Elements of vexation - Unusual and perhaps unique circumstances - Grimmett v Rivdale (Trading as Angela Sdrinis Legal) [2025] VSC 122; Gaskin v The Geelong Revival Centre Pty Ltd [2025] VSCA 225 considered - Trial date vacated and re-listed.
PRACTICE AND PROCEDURE - Hearing of preliminary questions - Judgment reserved - No reference to listed trial date - Email to the Court to prompt delivery of judgment prior to listed trial date - Matter listed for judgment - Application made, by consent, to vacate the listed trial date - Elements of vexation - Unusual and perhaps unique circumstances - Grimmett v Rivdale (Trading as Angela Sdrinis Legal) [2025] VSC 122; Gaskin v The Geelong Revival Centre Pty Ltd [2025] VSCA 225 considered - Trial date vacated and re-listed.
PRACTICE AND PROCEDURE - Evidence - Penalty privilege - VCAT referral proceedings conducted under Part 8 of the Health Practitioner Regulation National Law - Whether penalty privilege available in non-curial proceedings - Statutory interpretation - Whether statutory basis for application of penalty privilege - Scope of penalty privilege.
PRACTICE AND PROCEDURE - Evidence - Penalty privilege - VCAT referral proceedings conducted under Part 8 of the Health Practitioner Regulation National Law - Whether penalty privilege available in non-curial proceedings - Statutory interpretation - Whether statutory basis for application of penalty privilege - Scope of penalty privilege.
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 - Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 - Towie v Medical Practitioners' Board (Vic) (2008) 29 VAR 252 - Migration Agents Registration Authority v Frugtniet (2018) 351 ALR 650 - Australian Securities and Investments Commission v Mining Projects Group (2007) 164 FCR 32 - Medical Board of Australia v Kemp (2018) 56 VR 51 - Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 80(3), 105, 106, 148 - Health Practitioner Regulation National Law, Part 8.
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.
PRACTICE AND PROCEDURE - Subpoena objections - Order 42A - Whether subpoenas issued for a legitimate forensic purpose - Whether documents produced may be redacted for confidentiality - Whether parties are trade rivals - Uplift and inspection ordered.
PRACTICE AND PROCEDURE - Subpoena objections - Order 42A - Whether subpoenas issued for a legitimate forensic purpose - Whether documents produced may be redacted for confidentiality - Whether parties are trade rivals - Uplift and inspection ordered.
CIVIL PROCEDURE - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 36.04 - Application by plaintiffs to amend statement of claim after the decision of the High Court in Hunt Leather Pty Ltd v Transport for NSW (2025) 426 ALR 621 - Application to amend made two months before trial - Leave granted - Minimal delay in making application and the amended pleading clarifies the claim rather than recasting the case, heightening the probability of a just and efficient resolution.
CIVIL PROCEDURE - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 36.04 - Application by plaintiffs to amend statement of claim after the decision of the High Court in Hunt Leather Pty Ltd v Transport for NSW (2025) 426 ALR 621 - Application to amend made two months before trial - Leave granted - Minimal delay in making application and the amended pleading clarifies the claim rather than recasting the case, heightening the probability of a just and efficient resolution.
CIVIL PROCEDURE - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 29.08 - Plaintiffs sought an order for particular discovery - Partially successful - Precision of the categories and the late stage of the application primary considerations in granting and refusing leave respectively.
CRIMINAL LAW - Bail - Applicant charged with trafficking drug of dependence and related offences - Whether exceptional circumstances exist justifying the grant of bail - Whether unacceptable risk - Exceptional circumstances not established - Unacceptable risk of further offending - Bail refused - Bail Act 1977, s 3, 3AAA, s 4, s 4AA(2), s 4C, s 4E.
CRIMINAL LAW - Bail - Applicant charged with trafficking drug of dependence and related offences - Whether exceptional circumstances exist justifying the grant of bail - Whether unacceptable risk - Exceptional circumstances not established - Unacceptable risk of further offending - Bail refused - Bail Act 1977, s 3, 3AAA, s 4, s 4AA(2), 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 - Evidence - Accused charged with manslaughter - Admissions - Acquired Brain Injury - Caution - Whether truth of admissions adversely affected by circumstances - Whether circumstances made use of admissions unfair to applicant - Whether probative value of evidence is outweighed by the danger of unfair prejudice - Evidence Act 2008 (Vic) ss 85(2) and 137.
CRIMINAL LAW - Evidence - Accused charged with manslaughter - Admissions - Acquired Brain Injury - Caution - Whether truth of admissions adversely affected by circumstances - Whether circumstances made use of admissions unfair to applicant - Whether probative value of evidence is outweighed by the danger of unfair prejudice - Evidence Act 2008 (Vic) ss 85(2) and 137.
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.