TORTS - False imprisonment - Applicant arrested three times during protest gathering - Applicant claimed all three arrests unlawful - First and third arrests held unlawful, second arrest found to be lawful - Proposed appeal raised new arguments in respect of lawfulness of second arrest - Whether arguments could have been met by evidence or submission at trial - Whether in the interests of justice to permit arguments to be raised for the first time on appeal - Whether judge correct to find, in respect of second arrest, there existed a belief on reasonable grounds that an offence was being committed.
TORTS - False imprisonment - Applicant arrested three times during protest gathering - Applicant claimed all three arrests unlawful - First and third arrests held unlawful, second arrest found to be lawful - Proposed appeal raised new arguments in respect of lawfulness of second arrest - Whether arguments could have been met by evidence or submission at trial - Whether in the interests of justice to permit arguments to be raised for the first time on appeal - Whether judge correct to find, in respect of second arrest, there existed a belief on reasonable grounds that an offence was being committed.
DAMAGES - Damages assessed at $4,000 - Whether judge misapprehended the facts in assessing damages - Whether assessment of damages inordinately low.
COSTS - Offer of compromise - Respondent made offer of compromise before trial and plaintiff obtained judgment not more favourable than terms of offer - Applicant ordered to pay 70 per cent of State's costs from date of offer - Whether proceeding public interest litigation - Whether discretion to 'otherwise order' costs miscarried.
Crimes Act 1958, s 458; Public Health and Wellbeing Act 2008, ss 198, 200, 203; Civil Procedure Act 2010, ss 7-9; County Court Civil Procedure Rules 2018, r 26.08(3).
Coulton v Holcombe (1986) 162 CLR 1; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679; Wilson v Peisley (1975) 7 ALR 571, applied.
Myers Stores Ltd v Soo [1991] 2 VR 597; Oshlack v Richmond River Council (1998) 193 CLR 72, discussed.
CONTRACT - Implied terms of cooperation - Implied obligation not to hinder or prevent the fulfilment of the purpose of express promise in agreement - Implied obligation to cooperate to allow contracting parties to have benefit of agreement - Contract for option to acquire shares and provision of draft shareholders' agreement - Whether judge erred in finding no breach of cooperation terms because shareholders' agreement inconsistent with express promise in contract subject to negotiation - Shareholders' agreement in final form when provided - No subsequent conduct evincing intention to comply with express promises in contract - Breach of cooperation terms established.
CONTRACT - Implied terms of cooperation - Implied obligation not to hinder or prevent the fulfilment of the purpose of express promise in agreement - Implied obligation to cooperate to allow contracting parties to have benefit of agreement - Contract for option to acquire shares and provision of draft shareholders' agreement - Whether judge erred in finding no breach of cooperation terms because shareholders' agreement inconsistent with express promise in contract subject to negotiation - Shareholders' agreement in final form when provided - No subsequent conduct evincing intention to comply with express promises in contract - Breach of cooperation terms established.
DAMAGES - Damages for breach of contract - Onus on plaintiff to prove loss resulted from breach - Causation a question of fact not law - 'But for' test as a negative criterion of causation - Counterfactual whether plaintiff would have entered into shareholders' agreement which was not inconsistent with contract - Caution in accepting evidence of plaintiff's belief as to what plaintiff would have done in hypothetical counterfactual - Objective facts more important - Judge correct to find causation not established - Leave to appeal granted - Appeal dismissed.
Bensons Property Group Pty Ltd v Key Infrastructure Australia Pty Ltd [2021] VSCA 69; Reg Glass Pty Ltd v Rivers Locking Systems Pty Ltd (1968) 120 CLR 516; [1969] HCA 64; Bennett v Minister for Community Welfare (1992) 176 CLR 408; [1992] HCA 27; Mulcahy & Co Accounting Services Pty Ltd v Porter [2025] VSCA 261; Hoyts Pty Ltd v Burns (2003) 201 ALR 470; [2003] HCA 61; Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55, applied.
WILLS AND ESTATES - Application for leave to appeal - Applicant and first respondent were beneficiaries of their father's estate - Will appointed applicant executor - Will required non-monetary assets be called in and converted into money - Applicant proposed to transfer late father's house into her and first respondent's names jointly - First respondent commenced proceedings for sale of property and removal of executor - Parties entered deed of settlement - Property sold pursuant to settlement deed but $100,000 remained in trust - Trial judge removed applicant as executor and made consequential orders - Applicant alleged judge was affected by bias and failed to take into account evidence - Application totally without merit - Leave to appeal refused.
WILLS AND ESTATES - Application for leave to appeal - Applicant and first respondent were beneficiaries of their father's estate - Will appointed applicant executor - Will required non-monetary assets be called in and converted into money - Applicant proposed to transfer late father's house into her and first respondent's names jointly - First respondent commenced proceedings for sale of property and removal of executor - Parties entered deed of settlement - Property sold pursuant to settlement deed but $100,000 remained in trust - Trial judge removed applicant as executor and made consequential orders - Applicant alleged judge was affected by bias and failed to take into account evidence - Application totally without merit - Leave to appeal refused.
PRACTICE AND PROCEDURE - Application for leave to appeal - Overarching obligations - Applicant sought orders pursuant to s 29 of the Civil Procedure Act 2010 for compensation and summary dismissal of proceeding - Whether judge erred in applying the Act - Application totally without merit - Leave to appeal refused.
Administration and Probate Act 1958, s 34(1)(c); Property Law Act 1958, s 53; Civil Procedure Act 2010, ss 17, 21, 29; Supreme Court (General Civil Procedure) Rules 2025, rr 2.01, 45.45.
Kennedy v Shire of Campaspe [2015] VSCA 47; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, applied; South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16; Davies v The Queen [2019] VSCA 66; Bolitho v Banksia Securities Ltd [No 18] (Remitter) (2021) 69 VR 28, discussed.
COURTS - Abuse of process - Application for permanent stay of child abuse proceeding - Historical child sexual abuse allegations - Application for permanent stay on grounds of prejudice by reason of loss of evidence due to passage of time - Plaintiff unable to identify alleged perpetrators - Whether inability to identify perpetrators an exceptional circumstance justifying stay - Relevance of institutional setting - Whether defendant has access to sufficient evidentiary material to defend action - Associate judge refused permanent stay - Leave granted for appeal to be considered by Court of Appeal - Appeal dismissed.
COURTS - Abuse of process - Application for permanent stay of child abuse proceeding - Historical child sexual abuse allegations - Application for permanent stay on grounds of prejudice by reason of loss of evidence due to passage of time - Plaintiff unable to identify alleged perpetrators - Whether inability to identify perpetrators an exceptional circumstance justifying stay - Relevance of institutional setting - Whether defendant has access to sufficient evidentiary material to defend action - Associate judge refused permanent stay - Leave granted for appeal to be considered by Court of Appeal - Appeal dismissed.
Limitation of Actions Act 1958, ss 27O, 27P, 27R; Supreme Court Act 1986, ss 17, 17B; Evidence Act 2008, s 140.
GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442, applied; RC v Salvation Army (WA) Property Trust (2024) 419 ALR 677; Willmot v State of Queensland (2024) 41 ALR 623; Weiden v YZ (a pseudonym) [2023] VSCA 294; Trustees of the Christian Brothers v Colbert (a pseudonym) [2025] VSCA 122, referred to.
PRACTICE AND PROCEDURE - Pleadings - Oppression proceeding - Where plaintiff sought to raise new issue affecting share valuation and/or adjustment if oppression established - No application made to amend - Defendant objected - Judge ruled new issue relevant on ground of credit but indicated any other use would need to be established by further submissions - Plaintiff relied upon new issue in final submissions as relevant to significant adjustment to buy-out price - Defendant objected based on pleadings and that further evidence would have been called if new issue raised in timely way - Judge exercised discretion to limit use of evidence on new issue to credit as otherwise unfairly prejudicial to defendant - In doing so judge exercised powers under Evidence Act 2008, s 136 - No error - Leave to appeal refused.
PRACTICE AND PROCEDURE - Pleadings - Oppression proceeding - Where plaintiff sought to raise new issue affecting share valuation and/or adjustment if oppression established - No application made to amend - Defendant objected - Judge ruled new issue relevant on ground of credit but indicated any other use would need to be established by further submissions - Plaintiff relied upon new issue in final submissions as relevant to significant adjustment to buy-out price - Defendant objected based on pleadings and that further evidence would have been called if new issue raised in timely way - Judge exercised discretion to limit use of evidence on new issue to credit as otherwise unfairly prejudicial to defendant - In doing so judge exercised powers under Evidence Act 2008, s 136 - No error - Leave to appeal refused.
Corporations Act 2001 (Cth), ss 232, 233; Evidence Act 2008, s 136.
Dreamland Development Pty Ltd v Navadiya Group Pty Ltd [2025] VSCA 58, considered.
Wain v Drapac (No 2) [2013] VSC 381, distinguished.
PRACTICE AND PROCEDURE - Appeal - Application for stay and related orders pending determination of special leave application - Applicants' submissions directed to allegations concerning their liability (or lack of liability) for first respondent's costs - No substantial prospect that special leave to appeal will be granted - Application refused.
PRACTICE AND PROCEDURE - Appeal - Application for stay and related orders pending determination of special leave application - Applicants' submissions directed to allegations concerning their liability (or lack of liability) for first respondent's costs - No substantial prospect that special leave to appeal will be granted - Application refused.
Supreme Court (General Civil Procedure) Rules 2025, rr 64.39, 66.16; Judiciary Act 1903 (Cth) s 35A.
Mann v Paterson Constructions Pty Ltd [2018] VSCA 313; Klein v Mochkin [No 2] [2024] VSCA 223, applied; Palmer v Permanent Custodians Limited [2009] VSCA 164, considered.
PRACTICE AND PROCEDURE - Application for leave to appeal against interlocutory decision - Applicant was defendant below in a wills and estates proceeding - First respondent objected to competency and timing of application to this Court - Applicant sought orders pursuant to s 29 of the Civil Procedure Act 2010 for compensation and summary dismissal of proceeding - Court allowed respondent (who was plaintiff below) to amend originating motion - Court postponed determination of s 29 application until proceeding finally determined - Underlying proceeding and s 29 application later dismissed and applicant made separate application for leave to appeal in relation to final decision - Present application would serve no useful purpose - Application totally without merit - Leave to appeal refused.
PRACTICE AND PROCEDURE - Application for leave to appeal against interlocutory decision - Applicant was defendant below in a wills and estates proceeding - First respondent objected to competency and timing of application to this Court - Applicant sought orders pursuant to s 29 of the Civil Procedure Act 2010 for compensation and summary dismissal of proceeding - Court allowed respondent (who was plaintiff below) to amend originating motion - Court postponed determination of s 29 application until proceeding finally determined - Underlying proceeding and s 29 application later dismissed and applicant made separate application for leave to appeal in relation to final decision - Present application would serve no useful purpose - Application totally without merit - Leave to appeal refused.
Civil Procedure Act 2010, s 29; Supreme Court (General Civil Procedure) Rules 2015, r 77.05.
Molonglo Group (Australia) Pty Ltd v Cahill [2018] VSCA 147; Lanzer v Lombardo [2025] VSCA 229; Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260, discussed.
Fidge v Medical Board of Australia [2023] VSCA 272; Re Olrey Pty Ltd [2016] VSCA 8; Zhong v Attorney- General (Vic) [2025] VSCA 1; Peers v Medical Board of Australia [2026] VSCA 3, applied.
CRIMINAL LAW - Sentence - Appeal - Application for extension of time within which to seek leave to appeal - Application to adduce fresh evidence - Substantial sentences imposed on applicant for serious drug offending - Applicant released on bail pending hearing of applications for leave to appeal against conviction and sentences based on fresh evidence that Lawyer X was an undisclosed police source - Applications for leave to appeal against conviction and sentence subsequently abandoned, and applicant returned to custody to serve balance of sentences - Whether circumstances relied upon by applicant constitute fresh evidence reopening sentencing discretion - Evidence relied on by applicant not demonstrating true significance of facts existing at time of sentence - Application for leave to appeal not reasonably arguable - Futile to grant extension of time application - Application for extension of time within which to seek leave to appeal refused.
CRIMINAL LAW - Sentence - Appeal - Application for extension of time within which to seek leave to appeal - Application to adduce fresh evidence - Substantial sentences imposed on applicant for serious drug offending - Applicant released on bail pending hearing of applications for leave to appeal against conviction and sentences based on fresh evidence that Lawyer X was an undisclosed police source - Applications for leave to appeal against conviction and sentence subsequently abandoned, and applicant returned to custody to serve balance of sentences - Whether circumstances relied upon by applicant constitute fresh evidence reopening sentencing discretion - Evidence relied on by applicant not demonstrating true significance of facts existing at time of sentence - Application for leave to appeal not reasonably arguable - Futile to grant extension of time application - Application for extension of time within which to seek leave to appeal refused.
Nguyen v The Queen [2006] VSCA 184, applied.
United Mexican States v Cabal (2001) 209 CLR 165; Re Zoudi (2006) 14 VR 580, referred to.
CRIMINAL LAW - Appeal - Sentence - Culpable driving causing death - Refuse preliminary breath test - Whether individual sentences, orders for cumulation, total effective sentence and non-parole period manifestly excessive - Driving under influence of alcohol and methylamphetamine - Driving at excessive speeds across multiple lanes of traffic - Collision with another vehicle - Failure to stop - Driving through multiple red lights - Collision with another vehicle - Passenger in other vehicle killed - Sentence of 13 years highest in Victoria for culpable driving causing death - Standard sentence scheme - Current sentencing practices - General deterrence - Leave to appeal granted - Appeal dismissed.
CRIMINAL LAW - Appeal - Sentence - Culpable driving causing death - Refuse preliminary breath test - Whether individual sentences, orders for cumulation, total effective sentence and non-parole period manifestly excessive - Driving under influence of alcohol and methylamphetamine - Driving at excessive speeds across multiple lanes of traffic - Collision with another vehicle - Failure to stop - Driving through multiple red lights - Collision with another vehicle - Passenger in other vehicle killed - Sentence of 13 years highest in Victoria for culpable driving causing death - Standard sentence scheme - Current sentencing practices - General deterrence - Leave to appeal granted - Appeal dismissed.
CRIMINAL LAW - Appeal - Non-parole period - Sentencing judge incorrectly informed non-parole period to be at least 70 per cent of total effective sentence - Sentencing Act 1991, s 11A(4) - Material error in sentence - Sentencing discretion re-opened - Appeal allowed - Reduced non-parole period fixed.
Crimes Act 1958, s 318(1); Criminal Procedure Act 2009, ss 280(1)(a), 281(1), 282(1); Road Safety Act 1986, s 49(1)(c); Sentencing Act 1991, ss 5B(2), 11A(4)-(5).
Hennessey v The King (2024) 106 MVR 220; [2024] VSCA 2; Singh v The Queen (2022) 301 A Crim R 265; Cayzer v The King [2025] VSCA 293; R v Kilic (2016) 259 CLR 256, discussed; R v Whyte (2002) 55 NSWLR 252; Director of Public Prosecutions v Neethling (2009) 22 VR 466; R v Beary (2004) 11 VR 151; Pasznyk v The Queen (2014) 43 VR 169, referred to.
CRIMINAL LAW - Conviction - Appeal - Rape - Evidence - Evidence of historical injuries inflicted by applicant on complainant - Evidence admitted without objection - Whether admission of evidence resulted in substantial miscarriage of justice - Whether reliance on, or use of, evidence as tendency evidence resulted in substantial miscarriage of justice - No objection by defence counsel to use of evidence as tendency evidence - Rational basis for not objecting to admission of evidence to use as tendency evidence - Proposed appeal against conviction not reasonably arguable - Application for leave to appeal against conviction refused.
CRIMINAL LAW - Conviction - Appeal - Rape - Evidence - Evidence of historical injuries inflicted by applicant on complainant - Evidence admitted without objection - Whether admission of evidence resulted in substantial miscarriage of justice - Whether reliance on, or use of, evidence as tendency evidence resulted in substantial miscarriage of justice - No objection by defence counsel to use of evidence as tendency evidence - Rational basis for not objecting to admission of evidence to use as tendency evidence - Proposed appeal against conviction not reasonably arguable - Application for leave to appeal against conviction refused.
CRIMINAL LAW - Sentence - Appeal - Rape, recklessly causing serious injury, intentionally causing injury, recklessly causing injury, stalking, theft (2 charges) and common assault (3 charges) - Sentence of 9 years for rape - TES of 12 years and 1 month, with NPP of 8 years and 4 months - Manifest excess - Whether rape sentence manifestly excessive - Whether TES or NPP manifestly excessive - Complaints of manifest excess not reasonably arguable - Application for leave to appeal against sentence refused.
CRIMINAL LAW - Conviction - Appeal - Application for leave to bring second appeal - Applicant convicted of murdering his mother - New evidence alleged to support hypothesis that prosecution witness murdered deceased and engaged in elaborate scheme to frame applicant - Requirement for new evidence to be fresh and compelling - New evidence not fresh and compelling - Applicant's hypotheses about prosecution witness fanciful - Application for leave to appeal refused.
CRIMINAL LAW - Conviction - Appeal - Application for leave to bring second appeal - Applicant convicted of murdering his mother - New evidence alleged to support hypothesis that prosecution witness murdered deceased and engaged in elaborate scheme to frame applicant - Requirement for new evidence to be fresh and compelling - New evidence not fresh and compelling - Applicant's hypotheses about prosecution witness fanciful - Application for leave to appeal refused.
Criminal Procedure Act 2009, ss 326A and 326C.
Roberts v The Queen (2020) 60 VR 431, applied.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Two charges of manslaughter by unlawful and dangerous act - Guilty plea - Respondent killed two sex workers within space of 24 hours - Total effective sentence of 14 years with non-parole period of 9 years - Whether sentence manifestly inadequate - Whether Court should exercise residual discretion to dismiss appeal - Sentence manifestly inadequate - Appeal allowed - Respondent resentenced to total effective sentence of 18 years with non-parole period of 14 years.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Two charges of manslaughter by unlawful and dangerous act - Guilty plea - Respondent killed two sex workers within space of 24 hours - Total effective sentence of 14 years with non-parole period of 9 years - Whether sentence manifestly inadequate - Whether Court should exercise residual discretion to dismiss appeal - Sentence manifestly inadequate - Appeal allowed - Respondent resentenced to total effective sentence of 18 years with non-parole period of 14 years.
Criminal Procedure Act 2009, ss 287, 289-290; Sentencing Act 1991, ss 5, 6AAA.
DPP v Tiumalu [2024] VSCA 192; DPP v Wang (No 2) [2020] VSC 884; Smith v The Queen [2020] VSCA 159; DPP v Ristevski [2019] VSCA 287; Rickerby v The King [2025] VSCA 252; Romero v R (2011) 32 VR 486; Wong v The Queen (2001) 207 CLR 584; DPP v Karazisis (2010) 31 VR 634; House v R (1936) 55 CLR 499; CMB v Attorney-General for New South Wales (2015) 256 CLR 346; R v VZ (1998) 7 VR 693, referred to.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
CRIMINAL LAW - Sentence - Application for leave to appeal - Intentionally causing injury - Trafficking and possessing drugs of dependence - Knowingly dealing with proceeds of crime - Total effective sentence of 3 years and 3 months' imprisonment - Non-parole period of 1 year and 10 months - Whether sentences, cumulation, and non-parole period manifestly excessive - Serious instances of offending on charges 1 and 2 - Some positive signs of rehabilitation - Principle of totality not infringed - Sentences and non-parole period within range - Application refused.
Leimonitis v The Queen [2018] VSCA 198; DPP v Terrick (2009) 24 VR 457; Mill v The Queen (1988) 166 CLR 59, discussed.
CRIMINAL LAW - Sentence - Application for leave to appeal - Apprehended bias - Applicant pleaded guilty to attempting to pervert the course of justice and persistently breaching a family violence intervention order ('FVIO') - Total effective sentence of 1 year, 8 months' imprisonment with a non-parole period of 10 months - Sentencing judge had prosecuted applicant for unrelated serious offences in 2014 but did not recall this at the time of sentence - Whether judge's previous role as prosecutor gave rise to apprehended bias - Not necessary to form a view on grounds of appeal because applicant did not satisfy Court that a lesser sentence should be imposed - Leave to appeal granted - Appeal dismissed.
CRIMINAL LAW - Sentence - Application for leave to appeal - Apprehended bias - Applicant pleaded guilty to attempting to pervert the course of justice and persistently breaching a family violence intervention order ('FVIO') - Total effective sentence of 1 year, 8 months' imprisonment with a non-parole period of 10 months - Sentencing judge had prosecuted applicant for unrelated serious offences in 2014 but did not recall this at the time of sentence - Whether judge's previous role as prosecutor gave rise to apprehended bias - Not necessary to form a view on grounds of appeal because applicant did not satisfy Court that a lesser sentence should be imposed - Leave to appeal granted - Appeal dismissed.
Family Violence Protection Act 2008, s 125A; Summary Offences Act 1996, s 52A; Criminal Procedure Act 2009, ss 280(1)(b), 281(1)(b).
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; St Mart v The King [2026] VSCA 51; Green v The Queen (2011) 244 CLR 462; R v Verdins (2007) 16 VR 269, considered.
Tak Fat Wong v The Queen (2001) 207 CLR 584; Hili v The Queen (2010) 242 CLR 520; R v Pham (2015) 256 CLR 550, applied.
CRIMINAL LAW - Sentence - Dangerous driving causing serious injury - Driving vehicle whilst exceeding the prescribed concentration of drugs in blood - Applicant travelling in excess of speed limit distracted by mobile phone - Utility vehicle hit and seriously injured victim - Plea of guilty - Genuine remorse - Excellent prospects of rehabilitation - Whether sentence of four months' imprisonment with a two year Community Corrections Order manifestly excessive - No manifest excess given need for general deterrence and denunciation - Leave to appeal refused.
CRIMINAL LAW - Sentence - Dangerous driving causing serious injury - Driving vehicle whilst exceeding the prescribed concentration of drugs in blood - Applicant travelling in excess of speed limit distracted by mobile phone - Utility vehicle hit and seriously injured victim - Plea of guilty - Genuine remorse - Excellent prospects of rehabilitation - Whether sentence of four months' imprisonment with a two year Community Corrections Order manifestly excessive - No manifest excess given need for general deterrence and denunciation - Leave to appeal refused.
Crimes Act 1958, s 319(1A).
Road Safety Act 1986, s 49(1)(bb).
CRIMINAL LAW - Conviction - Application for leave to bring second appeal - Sexual penetration of child under 16 - Indecent act with child under 16 - Leave to appeal conviction refused on first appeal - New evidence - Whether evidence fresh and compelling - Evidence not fresh and compelling - Application for extension of time to bring second appeal refused.
CRIMINAL LAW - Conviction - Application for leave to bring second appeal - Sexual penetration of child under 16 - Indecent act with child under 16 - Leave to appeal conviction refused on first appeal - New evidence - Whether evidence fresh and compelling - Evidence not fresh and compelling - Application for extension of time to bring second appeal refused.
CRIMINAL LAW - Application for leave to appeal against conviction - Applicant seeks documents from Chief Commissioner of Victoria Police - Application pursuant to s 317 of the Criminal Procedure Act 2009 - Where the respondent to production application submits that there is no legitimate forensic purpose - Where the respondent to production application submits the application amounts to a fishing expedition - Where the applicant has identified limited forensic purpose.
CRIMINAL LAW - Application for leave to appeal against conviction - Applicant seeks documents from Chief Commissioner of Victoria Police - Application pursuant to s 317 of the Criminal Procedure Act 2009 - Where the respondent to production application submits that there is no legitimate forensic purpose - Where the respondent to production application submits the application amounts to a fishing expedition - Where the applicant has identified limited forensic purpose.
Criminal Procedure Act 2009, ss 317, 319A.
Zirilli v The Queen [2021] VSCA 174; Polimeni v The Queen [2022] VSCA 20; Madafferi v The Queen [2021] VSCA 1; Binse v The King [2025] VSCA 158.
CRIMINAL LAW - Appeal - Application for leave to appeal - Applicant convicted of sexual offending against 14 year old step-daughter - Messages between applicant and step-daughter used to prove element of certain charges and as evidence of sexual interest - Messages refer to 'ur video' - Step-daughter denied knowledge of video - Whether prosecutor alleged uncharged act in address - Whether evidence of applicant masturbating in common areas admissible as tendency evidence - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Application for leave to appeal - Applicant convicted of sexual offending against 14 year old step-daughter - Messages between applicant and step-daughter used to prove element of certain charges and as evidence of sexual interest - Messages refer to 'ur video' - Step-daughter denied knowledge of video - Whether prosecutor alleged uncharged act in address - Whether evidence of applicant masturbating in common areas admissible as tendency evidence - Application for leave to appeal refused.
Stubley v Western Australia (2011) 242 CLR 374, distinguished.
CRIMINAL LAW - Sentence - Application to renew application for leave to appeal following refusal by single judge - Applicant and co-offender pleaded guilty to offences including conduct endangering persons, theft and discharge firearm at a vehicle with reckless disregard for safety - Charges arose out of high speed car chase in which offenders pursued and fired shots at another car - Applicant and co-offender both on bail at time of offending - Applicant sentenced to 5 years and 2 months' imprisonment with a non-parole period of 3 years and 6 months - Whether double punishment - Whether sentencing judge erred in taking into account as aggravating factor that offences committed on bail while also imposing wholly cumulative sentence for offence of committing indictable offence whilst on bail - Parity - Whether sentencing judge erred by failing to distinguish between applicant and co-offender's moral culpability in respective sentences on the conduct endangering persons charge - Leave to appeal refused.
CRIMINAL LAW - Sentence - Application to renew application for leave to appeal following refusal by single judge - Applicant and co-offender pleaded guilty to offences including conduct endangering persons, theft and discharge firearm at a vehicle with reckless disregard for safety - Charges arose out of high speed car chase in which offenders pursued and fired shots at another car - Applicant and co-offender both on bail at time of offending - Applicant sentenced to 5 years and 2 months' imprisonment with a non-parole period of 3 years and 6 months - Whether double punishment - Whether sentencing judge erred in taking into account as aggravating factor that offences committed on bail while also imposing wholly cumulative sentence for offence of committing indictable offence whilst on bail - Parity - Whether sentencing judge erred by failing to distinguish between applicant and co-offender's moral culpability in respective sentences on the conduct endangering persons charge - Leave to appeal refused.
Crimes Act 1958, ss 23, 74(1); Firearms Act 1996, s 131A(1); Road Safety Act 1986, ss 61(4), 18(1)(a); Bail Act 1977, s 30B.
Pearce v The Queen (1998) 194 CLR 610; Loader v The Queen (2011) 33 VR 86; LeCornu v The Queen (2012) 36 VR 382; Zarghami v The Queen [2020] VSCA 74, followed.
CRIMINAL LAW - Appeal - Bail application refused - 17-year-old child - Appellant charged with aggravated home invasion - Schedule 1 offence - Standard of appellate review in relation to bail decisions - House v The King error must be shown - Unacceptable risk - Whether judge erred in assessment of Youth Justice supervised bail - Error established - Re-exercising discretion - Exceptional circumstances demonstrated - Appellant not an unacceptable risk if subject to strict conditions - Appeal allowed - Bail granted subject to conditions and bail monitoring.
CRIMINAL LAW - Appeal - Bail application refused - 17-year-old child - Appellant charged with aggravated home invasion - Schedule 1 offence - Standard of appellate review in relation to bail decisions - House v The King error must be shown - Unacceptable risk - Whether judge erred in assessment of Youth Justice supervised bail - Error established - Re-exercising discretion - Exceptional circumstances demonstrated - Appellant not an unacceptable risk if subject to strict conditions - Appeal allowed - Bail granted subject to conditions and bail monitoring.
Bail Act 1977, ss 1B, 3, 3AAA, 3B, 4, 4AA, 4A, 4D, 4E, 12, sch 1, item 4 - Bail Amendment Act 2025, s 4 - Children, Youth and Families Act 2005, ss 346, 534(1) - Crimes Act 1958, s 77B - Youth Justice Act 2024, s 4.
FT v The King [2024] VSCA 90; House v The King (1936) 55 CLR 499.
JUDGMENT - Whether plaintiff required to elect between remedies - Alternative and inconsistent remedies - Plaintiff required to elect - Ikosidekas v Glenis [2023] VSCA 134 - Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 applied.
JUDGMENT - Whether plaintiff required to elect between remedies - Alternative and inconsistent remedies - Plaintiff required to elect - Ikosidekas v Glenis [2023] VSCA 134 - Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 applied.
JUDGMENT - Whether plaintiff entitled to interest pursuant to s 58 of the Supreme Court Act 1986 - Whether a demand for payment was made - No entitlement to interest pursuant to s 58 of the Supreme Court Act 1986 as no demand for payment - Interest awarded pursuant to s 60 of the Supreme Court Act 1986 - Ikosidekas v Glenis [2023] VSCA 134 applied.
COSTS - Where plaintiff had limited success against one defendant - Whether plaintiff entitled to indemnity costs - Whether plaintiff is entitled to only a portion of costs - Where plaintiff also obtained judgment against a defendant for nominal damages - KSG Investments Pty Ltd v Open Markets Group Ltd (No 2) [2021] VSC 359 - Chen v Chan [2009] VSCA 233 - Rogers v Kabriel (No 2) [1999] NSWSC 474 - Currabubula Holdings Pty Ltd v State Bank of New South Wales [2000] NSWSC 232 - James v Royal Bank of Scotland (No 2) [2015] NSWSC 970 - Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 - MacFadyen v Bank of Queensland Ltd [2015] VSC 20 - Ritter v Godfrey [1920] 2 KB 47 - MA & J Tripodi Pty Ltd v Swan Hill Chemicals Pty Ltd [2019] VSCA 46 - Oshlack v Richmond River Council (1998) 193 CLR 72 - Re Ciantar (No 2) [2022] VSC 267 - Smith v Gould (No 2) [2012] VSC 541 - Lollis v Loulatzis (No 2) [2008] VSC 35 - Knight v Clifton [1971] Ch 700 - Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] 1 VR 129 - Schere v Counting Instruments Ltd [1986] 1 WLR 615 - Section 24 of the Supreme Court Act 1986 - Civil Procedure Act 2010 (Vic).
COSTS - Where plaintiff sought disclosure of documents in relation to potential application for non-party costs order - Limited order made in relation to identity and quantum of funding - Kyne v Gerard Brandrick & Associates Pty Ltd [2025] VSCA 17 - Proude v Visic [2012] SASC 184 - GTW Investments (Aust) Pty Ltd v Pacreef Investments Pty Ltd (in liq) [2026] VSCA 90 - Singh v Observer Ltd [1989] 2 All ER 751 - Friends of Elliston - Environment & Conservation Inc v State of South Australia & Ors (No 2) [2007] SASC 325 considered and applied.
PRACTICE AND PROCEDURE - Where the plaintiff sought referral of the judgment to the Office of Public Prosecutions - Where matter for the trial judge and not for application by a party - Matter to be referred - In the Matter of Kornucopia Pty Ltd (No 4) [2020] VSC 7 applied.
CONTEMPT - Where plaintiff applied to direct the Prothonotary to apply by summons or originating motion for punishment of contempt - Where separate proceeding for other alleged contempt already commenced - No direction made - Supreme Court (General Civil Procedure) Rules 2025 (Vic) s 75.07.
GROUP PROCEEDINGS - Costs - Application for a group costs order - Whether necessary or appropriate to make order - Appropriate percentage rate for order - Relevant considerations - Supreme Court Act 1986 (Vic), s 33ZDA.
GROUP PROCEEDINGS - Costs - Application for a group costs order - Whether necessary or appropriate to make order - Appropriate percentage rate for order - Relevant considerations - Supreme Court Act 1986 (Vic), s 33ZDA.
PRACTICE AND PROCEDURE - Claims to confidentiality over material filed in support of application for group costs order - Confidentiality orders - Open Courts Act 2013 (Vic), ss 17, 18 - Supreme Court (General Civil Procedure) Rules 2025 (Vic), rr 28.03.3, 28.05(4).
CORPORATIONS - Insolvency - Application for investigation into liquidation - Review of liquidator's conduct - No basis for complaints - No jurisdiction to order an inquiry - Not an appropriate case for an inquiry - Plaintiff seeking to vindicate private rights - Investigation not in the public interest - Corporations Act 2001 (Cth), ss 533, 545, sch 2, ss 90-10, 90-15, 90-20 - Australian Securities and Investments Commission v Wily [2019] NSWSC 521 - Jenkins v Jonkay [2007] FCA 858 - Djordjevich v Rohrt [2021] VSC 178 - Djordjevich v Rohrt (2022) 67 VR 161 - Application refused.
CORPORATIONS - Insolvency - Application for investigation into liquidation - Review of liquidator's conduct - No basis for complaints - No jurisdiction to order an inquiry - Not an appropriate case for an inquiry - Plaintiff seeking to vindicate private rights - Investigation not in the public interest - Corporations Act 2001 (Cth), ss 533, 545, sch 2, ss 90-10, 90-15, 90-20 - Australian Securities and Investments Commission v Wily [2019] NSWSC 521 - Jenkins v Jonkay [2007] FCA 858 - Djordjevich v Rohrt [2021] VSC 178 - Djordjevich v Rohrt (2022) 67 VR 161 - Application refused.
PRACTICE AND PROCEDURE - Plaintiff self-represented - Affording plaintiff appropriate latitude in application for inquiry into liquidator's conduct - Allegations of fraud and perjury against directors - Alleged statutory breaches against liquidator - Allegations against liquidator unfounded.
CORPORATIONS - Winding up - Conduct of liquidation - Application for directions - Distribution of assets - Application for judicial advice - Corporations Act 2001 (Cth), sch 2, s 90-15 - Rule 54.02 Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Court's exercise of discretion in relation to contemplated conduct - Appropriate to give directions and advice.
CORPORATIONS - Winding up - Conduct of liquidation - Application for directions - Distribution of assets - Application for judicial advice - Corporations Act 2001 (Cth), sch 2, s 90-15 - Rule 54.02 Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Court's exercise of discretion in relation to contemplated conduct - Appropriate to give directions and advice.
MISLEADING AND DECEPTIVE CONDUCT - Where plaintiff was a private investor participating in a syndicated mortgage lending arrangement - Where mortgage broker arranged short-term property development loan secured by first registered mortgage over property - Where loan participants advanced funds totalling $4.25 million, including $1.5 million contributed by plaintiff in reliance on valuation - Where key investment material prepared by registered valuer represented land as worth $10 million and characterised loan as 'low-risk' - Where borrower defaulted and property was sold following appointment of receivers - Where substantial shortfall suffered by plaintiff - Whether valuer prepared a defective valuation - Whether representations made by mortgage broker and its officer were misleading or deceptive under the Australian Consumer Law (ACL) and related provisions - Damages recoverable against valuer for negligent valuation - Claim against mortgage broker and second defendant dismissed.
MISLEADING AND DECEPTIVE CONDUCT - Where plaintiff was a private investor participating in a syndicated mortgage lending arrangement - Where mortgage broker arranged short-term property development loan secured by first registered mortgage over property - Where loan participants advanced funds totalling $4.25 million, including $1.5 million contributed by plaintiff in reliance on valuation - Where key investment material prepared by registered valuer represented land as worth $10 million and characterised loan as 'low-risk' - Where borrower defaulted and property was sold following appointment of receivers - Where substantial shortfall suffered by plaintiff - Whether valuer prepared a defective valuation - Whether representations made by mortgage broker and its officer were misleading or deceptive under the Australian Consumer Law (ACL) and related provisions - Damages recoverable against valuer for negligent valuation - Claim against mortgage broker and second defendant dismissed.
HELD - The valuer was liable for loss arising from negligent valuation methodology, with judgment entered and damages assessed at $1,104,578.71 plus interest - The mortgage broker and its officer did not contravene the misleading or deceptive conduct provisions, as they did not adopt or endorse the valuation but merely communicated as a third-party expert opinion - That claim was accordingly dismissed - Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 - Yorke v Lucas (1985) 158 CLR 661 - Campbell v Backoffice Investments Pty Ltd 238 CLR 304 - MGICA v Kenny & Good Pty Ltd (1996) 140 ALR 313 - Medical Device Technologies Pty Ltd v Health Administration Corporation [2024] NSWCA 142 - John G Glass Real Estate Pty Ltd v Karawi Constructions Pty Ltd (1993) ATPR 41-249 - The Saints Gallery Pty Ltd v Plummer (1988) 80 ALR 525.
CONTRACT - Alleged loan agreement and mortgages - Alleged failure to pay loan advance and interest - Alleged sham agreement between the parties - Alleged common intention that loan agreement not be binding - Loan rollovers and refinancing - Whether loan documents reflected parties' agreement - Sham agreements - General principles - Solicitor's certificates - Borrower's declarations and acknowledgements.
CONTRACT - Alleged loan agreement and mortgages - Alleged failure to pay loan advance and interest - Alleged sham agreement between the parties - Alleged common intention that loan agreement not be binding - Loan rollovers and refinancing - Whether loan documents reflected parties' agreement - Sham agreements - General principles - Solicitor's certificates - Borrower's declarations and acknowledgements.
MORTGAGES - Application for discharge or removal of mortgages - Discharge of mortgages - Registered mortgages securing loan obligations - Discharge and registration of replacement mortgages - Relief under s 74 of the Transfer of Land Act 1958 (Vic) - Section 87A of the Transfer of Land Act 1958 (Vic).
EVIDENCE - Contested oral evidence regarding alleged discussions and representations - Evaluating oral evidence - Significance of contemporaneous documents - Oral evidence inconsistent with signed documents, correspondence and financial records - Solicitors not called - Blatch v Archer (1774) 98 ER 969 - Jones v Dunkel (1959) 101 CLR 298.
UNCONSCIONABLE CONDUCT - Plaintiff alleged to have engaged in unconscionable conduct in the context of loan agreement - Statutory unconscionability - Australian Consumer Law - Equitable unconscionability - Alleged asset-based lending - Emotional attachment to secured properties - Independent legal advice - Unconscionable conduct general principles.
MISLEADING OR DECEPTIVE CONDUCT - Alleged misleading or deceptive conduct and representations in connection with loan agreement - Alleged oral representations concerning repayment of principal and interest - Whether vague assurances capable of constituting misleading or deceptive conduct - Future matters - Reliance and causation - Remedies under ss 236 and 237 of the Australian Consumer Law - General principles.
ESTOPPEL - Promissory estoppel - General principles - Alleged representations - Alleged assumption that loan documents would not be enforced according to their terms - Effect of executed written agreements inconsistent with alleged assumption - Requirement for clear and unambiguous representation - Reliance and detriment.
PRACTICE AND PROCEDURE - Pleadings - Departure from pleadings - Unpleaded allegations - Dreamland Development Pty Ltd v Navadiya Group Pty Ltd [2026] VSCA 58.
TRUSTS - Removal and replacement of trustee - Voluntary retirement of outgoing trustee - Court to appoint incoming trustee pursuant to s 48 of the Trustee Act 1958 (Vic) - Where plaintiffs propose trustee company owned and directed by beneficiaries - Where defendant proposes independent professional trustee - Insufficient evidence to prove defendant's proposed trustee is independent or can administer the trust - Plaintiffs' proposed trustee appointed.
TRUSTS - Removal and replacement of trustee - Voluntary retirement of outgoing trustee - Court to appoint incoming trustee pursuant to s 48 of the Trustee Act 1958 (Vic) - Where plaintiffs propose trustee company owned and directed by beneficiaries - Where defendant proposes independent professional trustee - Insufficient evidence to prove defendant's proposed trustee is independent or can administer the trust - Plaintiffs' proposed trustee appointed.
INSURANCE - Property insurance - Insurance agents and brokers - Claims generally - Property damage caused by fire - Negligence - Causation - Counterfactuals and hypothetical analysis - Admitted negligence - Whether broker's negligence caused the loss - Failure to accept offer of insurance - Failure to advise - Whether hypothetical insurer would have been liable to indemnify - Onus of proof in establishing loss - Whether there was a change in use - Act of some other person - Whether third party tenant constituted some other person - Whether relevant act was failure to notify - Change in tenancy - Timing of change in use - By reason of act after contract entered into - Commencement date of policy - Whether insurance policy which plaintiff would have obtained but for the breach of duty would have responded to a claim for damage to property by fire - Insurance Contracts Act 1984 (Cth) ss 54, 55, 60 - Wrongs Act 1958 (Vic) s 52 - Flanagan v Bernasconi [2023] NSWCA 150 - Strong v Woolworths [2012] HCA 5 - Gibbs Holdings Pty Ltd v Mercantile Mutual Insurance (Australia) Ltd [2002] 1 Qd R 17 - Ferrcom Pty Ltd v Commercial Union Assurance Co of Australia Pty Ltd (1993) 176 CLR 332 - Swiss Re International Se v LCA Marrickville Pty Ltd [2021] FCA 1206 - Antico v Heath Fielding Australia Pty Ltd (1997) 188 CLR 652 - Hypothetical insurer liable to indemnify.
INSURANCE - Property insurance - Insurance agents and brokers - Claims generally - Property damage caused by fire - Negligence - Causation - Counterfactuals and hypothetical analysis - Admitted negligence - Whether broker's negligence caused the loss - Failure to accept offer of insurance - Failure to advise - Whether hypothetical insurer would have been liable to indemnify - Onus of proof in establishing loss - Whether there was a change in use - Act of some other person - Whether third party tenant constituted some other person - Whether relevant act was failure to notify - Change in tenancy - Timing of change in use - By reason of act after contract entered into - Commencement date of policy - Whether insurance policy which plaintiff would have obtained but for the breach of duty would have responded to a claim for damage to property by fire - Insurance Contracts Act 1984 (Cth) ss 54, 55, 60 - Wrongs Act 1958 (Vic) s 52 - Flanagan v Bernasconi [2023] NSWCA 150 - Strong v Woolworths [2012] HCA 5 - Gibbs Holdings Pty Ltd v Mercantile Mutual Insurance (Australia) Ltd [2002] 1 Qd R 17 - Ferrcom Pty Ltd v Commercial Union Assurance Co of Australia Pty Ltd (1993) 176 CLR 332 - Swiss Re International Se v LCA Marrickville Pty Ltd [2021] FCA 1206 - Antico v Heath Fielding Australia Pty Ltd (1997) 188 CLR 652 - Hypothetical insurer liable to indemnify.
INSURANCE - Misrepresentations - Duty of disclosure - Matters known to the insured - Facts relevant to counterfactual analysis - Whether hypothetical insurer can rely upon misrepresentations to reduce liability to nil - Whether there was a reasonable basis for the representations - Pre-contractual representations - Certain statements not misrepresentations - Relevant failure - Position of the hypothetical insurer but for the relevant failure - Insurance Contracts Act 1984 (Cth), ss 21, 26, 28 and 33 - Drake Insurance plc v Provident Insurance plc [2004] QB 601 - Bank Leumi le Israel BM v British National Insurance Co Ltd [1988] 1 Lloyd's Rep 71 - McGrath, Re; Pan Pharmaceuticals Ltd (in liq) v Australian Naturalcare Products Pty Ltd (2008) 165 FCR 230 - City of Botany Bay Council v Jazabas Pty Ltd [2001] NSWCA 94 - Manchester Unity Total Care Building Society v MGICA Ltd (1991) 6 ANZ Cas 61-062 - No misrepresentations.
INSURANCE - General negligence - Failure to advise as to disclosure obligations - Failure to advise further enquiries into use of property - Whether the conduct of the broker was reasonable - Standard of care - Peer professional opinion - Whether conduct is widely accepted in Australia by a significant number of respected practitioners in the field - Wrongs Act 1958 (Vic) s 59 - Sellars v Adelaide Petroleum NL; Poseidon Ltd v Adelaide Petroleum NL (1994) 179 CLR 332 - Mal Owen Consulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163 - No negligence.
INSURANCE - Industrial special risks and consequential loss of profits policy - Property loss and damage - Whether removal and disposal of stock by government authority during a clean-up of premises is 'confiscation' - Whether property loss and damage is excluded by operation of exclusion clauses and endorsements in insurance policy.
INSURANCE - Industrial special risks and consequential loss of profits policy - Property loss and damage - Whether removal and disposal of stock by government authority during a clean-up of premises is 'confiscation' - Whether property loss and damage is excluded by operation of exclusion clauses and endorsements in insurance policy.
INSURANCE - Interpretation - Meaning of 'sound property' - Meaning of 'occasioned by or happening through' - Meaning of 'by or under the order of' any government or authority - Meaning of 'contamination' - Meaning of proximate cause and application where more than one proximate cause - AerCap Ireland Ltd v AIG Europe S.A. [2025] EWHC 1430 (Comm); [2025] WLR (D) 315 - Wayne Tank & Pump Co Ltd v Employers Liability Assurance Corporation Ltd [1974] QB 57 - McCarthy v St Paul International Insurance Co Ltd [2007] FCAFC 28 - Gunns Forest Products Ltd v North Insurances Pty Ltd [2006] VSCA 105.
INSURANCE - Causation - Whether government authority caused damage to insured property - Application of exclusions - Whether causal link between insured property loss/damage and business interruption loss established - Allstate Exploration NL v QBE Insurance (Australia) Ltd (2008) 15 ANZ Insurance Cases 61-773.
COSTS - Whether indemnity costs should be ordered after the rejection of a suite of Calderbank offers - Whether indemnity costs should be granted following the rejection of an open offer made in respect of claims concerning one of three disputed properties - Costs ordered on an indemnity basis in respect of the claims concerning one of the disputed properties following the rejection of the open offer - Supreme Court Act 1986 (Vic) s 24(1) - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 63.31 - Calderbank v Calderbank [1976] Fam 93; [1975] 3 All ER 333 applied; Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2); (2005) 13 VR 435; [2005] VSCA 298 applied.
COSTS - Whether indemnity costs should be ordered after the rejection of a suite of Calderbank offers - Whether indemnity costs should be granted following the rejection of an open offer made in respect of claims concerning one of three disputed properties - Costs ordered on an indemnity basis in respect of the claims concerning one of the disputed properties following the rejection of the open offer - Supreme Court Act 1986 (Vic) s 24(1) - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 63.31 - Calderbank v Calderbank [1976] Fam 93; [1975] 3 All ER 333 applied; Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2); (2005) 13 VR 435; [2005] VSCA 298 applied.
PRACTICE AND PROCEDURE - Stay application - Whether a stay pending appeal should be granted - Stay refused - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 66.16 - Cross Country Realty Victoria Pty Ltd v Ubertas 350 William Street Pty Ltd [2015] VSCA 347 applied; Euromark Ltd v Smash Enterprises Pty Ltd & Ors (No 2) [2021] VSC 393 applied.
COSTS - Costs follow the event - Jurisdiction of Court to award costs where finding of lack of jurisdiction - Vexatious conduct of proceeding unnecessarily disadvantaging other party - Standard costs awarded (referable to powers applying in both the Court and VCAT) - Chen v Chan [2009] VSCA 233 - In re Crittendon; Ex parte The Law Institute of Victoria [1958] VR 101 - Kinex Exploration Pty Ltd v Tasco Pty Ltd [1995] 2 VR 318 - Cabot v City of Keilor [1994] 1 VR 220 - State of Victoria v Bradto Pty Ltd (Palace Entertainment Complex) and Tymbook Pty Ltd [2006] VCAT 1813 - Supreme Court Act 1986 s 24 - Retail Leases Act 2003 s 92 - Victorian Civil and Administrative Tribunal Act 1998 s 109 - Civil Procedure Act 2010 Part 2.3.
COSTS - Costs follow the event - Jurisdiction of Court to award costs where finding of lack of jurisdiction - Vexatious conduct of proceeding unnecessarily disadvantaging other party - Standard costs awarded (referable to powers applying in both the Court and VCAT) - Chen v Chan [2009] VSCA 233 - In re Crittendon; Ex parte The Law Institute of Victoria [1958] VR 101 - Kinex Exploration Pty Ltd v Tasco Pty Ltd [1995] 2 VR 318 - Cabot v City of Keilor [1994] 1 VR 220 - State of Victoria v Bradto Pty Ltd (Palace Entertainment Complex) and Tymbook Pty Ltd [2006] VCAT 1813 - Supreme Court Act 1986 s 24 - Retail Leases Act 2003 s 92 - Victorian Civil and Administrative Tribunal Act 1998 s 109 - Civil Procedure Act 2010 Part 2.3.
APPEALS - INTERSTATE SERVICE OF INITIATING PROCESS - Appeal from a decision of a Judicial Registrar dismissing the defendants' application concerning alleged deficiency in interstate service of a writ - Whether service of writ effected on defendants in accordance with s 16 of the Service and Execution of Process Act 1992 (Cth) - Document attached to writ did not strictly comply with form of notice prescribed by r 6 of the Service and Execution of Process Regulations 2018 (Cth) - Held service was ineffective as document attached to writ did not substantially comply with prescribed form - Appeal allowed - Energy Conservation Systems Pty Ltd v Downer EDI Engineering Electrical Pty Ltd (2008) 221 FLR 393, Carron Investments Pty Ltd v Lang [2016] VSCA 287 and MZAIC v Minister for Immigration and Border Protection (2016) 237 FCR 156, applied - Adams v Lambert (2006) 228 CLR 409, distinguished.
APPEALS - INTERSTATE SERVICE OF INITIATING PROCESS - Appeal from a decision of a Judicial Registrar dismissing the defendants' application concerning alleged deficiency in interstate service of a writ - Whether service of writ effected on defendants in accordance with s 16 of the Service and Execution of Process Act 1992 (Cth) - Document attached to writ did not strictly comply with form of notice prescribed by r 6 of the Service and Execution of Process Regulations 2018 (Cth) - Held service was ineffective as document attached to writ did not substantially comply with prescribed form - Appeal allowed - Energy Conservation Systems Pty Ltd v Downer EDI Engineering Electrical Pty Ltd (2008) 221 FLR 393, Carron Investments Pty Ltd v Lang [2016] VSCA 287 and MZAIC v Minister for Immigration and Border Protection (2016) 237 FCR 156, applied - Adams v Lambert (2006) 228 CLR 409, distinguished.
STATUTORY INTERPRETATION - Acts Interpretation Act 1901 (Cth) s 25C - Meaning of 'form' - Where Service and Execution of Process Regulations 2018 (Cth) did not evince contrary intention to the application of s 25C - Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 and QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, applied.
PRACTICE AND PROCEDURE - Application by a lender for summary judgment against guarantor pursuant to s 63 Civil Procedure Act 2010 (Vic) - Order sought for possession of properties of guarantor provided by way of security - Plaintiff did not establish that Defendant had no real prospect of success - Application refused.
PRACTICE AND PROCEDURE - Application by a lender for summary judgment against guarantor pursuant to s 63 Civil Procedure Act 2010 (Vic) - Order sought for possession of properties of guarantor provided by way of security - Plaintiff did not establish that Defendant had no real prospect of success - Application refused.
COSTS - Application by guarantor for an injunction against the lender charging default interest on the facility - Application by guarantor for possession of properties provided by of security - Applications abandoned - At the time of issuing summons prospects of succeeding were negligible - Plaintiff entitled to indemnity costs pursuant to the terms of the loan agreement - Indemnity costs awarded.
PRACTICE AND PROCEDURE - Summary judgment - Plaintiff seeks summary judgment against defendants - Civil Procedure Act 2010 (Vic), ss 61, 63 - Where grounds of defence hold no real prospects of success - No other defence apparent on the materials - Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, applied - Summary judgment, granted.
PRACTICE AND PROCEDURE - Summary judgment - Plaintiff seeks summary judgment against defendants - Civil Procedure Act 2010 (Vic), ss 61, 63 - Where grounds of defence hold no real prospects of success - No other defence apparent on the materials - Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, applied - Summary judgment, granted.
PRACTICE AND PROCEDURE - Reference of all questions in the dispute to a special referee - Supreme Court (General Civil Procedure) Rules 2025 (Vic) Order 50 - Whether Court should adopt special referee's report under r 50.04 - Report adopted.
PRACTICE AND PROCEDURE - Reference of all questions in the dispute to a special referee - Supreme Court (General Civil Procedure) Rules 2025 (Vic) Order 50 - Whether Court should adopt special referee's report under r 50.04 - Report adopted.
BUILDING CONTRACTS - Termination - Repudiation - Building and Construction Industry Security of Payment Act 2002 (Vic) - Suspension of work or supply of related goods and services - Where respondent failed to pay claimed amount - Whether claimant entitled to suspend under s 29 where claimed amount included an excluded amount - Where respondent purported to terminate construction contract on the basis of claimant's suspension - Claimant held to be entitled to suspend - Respondent's termination ineffective in any event due to non-compliance with notice requirements under the contract - Respondent held to have repudiated the contract - Claimant accepted respondent's repudiation and terminated the contract.
BUILDING CONTRACTS - Damages - Breach of contract - Where contract partly performed at the time of termination - Assessment of damages - Claimant's damages assessed by reference to the contract price and the percentage of contract work completed at the time of termination less sums paid and deductions for defects.
BUILDING CONTRACTS - Variations - Waiver - Where the parties agreed procedures regarding variations contrary to procedures set out in the contract and the Building and Construction Industry Security of Payment Act 2002 (Vic) - Where contract contained "no oral waivers clause" requiring waivers to be in writing and signed - "No oral waivers" clause held to have been waived - Variations clause in the contract held to have been waived notwithstanding lack of signed written waiver - Claimant entitled to claim payment for variation work done notwithstanding non-compliance with variations clause in the contract.
BUILDING CONTRACTS - Variations - Building and Construction Industry Security of Payment Act 2002 (Vic) s 47(3) - Whether respondent entitled to recoupment or reassessment of amounts paid for variation work - Respondent failed to establish legal basis for recoupment or reassessment.
PRACTICE AND PROCEDURE - Security for costs - Application by plaintiff for release from obligation to provide security - Where plaintiff has succeeded in the proceeding - Application granted.
PRACTICE AND PROCEDURE - Security for costs - Application by plaintiff for release from obligation to provide security - Where plaintiff has succeeded in the proceeding - Application granted.
PRACTICE AND PROCEDURE - Application for summary judgment pursuant to s 63 Civil Procedure Act 2010 (Vic) - Allegations of existence and breach of joint venture agreement - Defendants did not establish no real prospect of success - Alternative application to strike out the amended statement of claim - Pleading struck out in part - Leave to replead granted.
PRACTICE AND PROCEDURE - Application for summary judgment pursuant to s 63 Civil Procedure Act 2010 (Vic) - Allegations of existence and breach of joint venture agreement - Defendants did not establish no real prospect of success - Alternative application to strike out the amended statement of claim - Pleading struck out in part - Leave to replead granted.
PRACTICE AND PROCEDURE - Statutory Will - Court authorised wills - Application by daughter - Application opposed by professional administrator - Whether plaintiff entitled to production of documents or discovery - Whether documents relate to question in proceeding - Proceeding by originating motion - Whether special circumstances exist - Inquisitorial role - Wills Act 1997 pt 1 div 2 - Supreme Court (General Civil Procedure) Rules 2025 rr 29.07(2)-(3), 29.08 - Civil Procedure Act 2010 ss 7, 8, 9 - Reed v Reed [2001] VSC 54 - Blair v Blair [2002] VSC 131 - Harris v Bennett (No 3) (2004) VR 425 - Grege v Grege [2024] VSC 475.
PRACTICE AND PROCEDURE - Statutory Will - Court authorised wills - Application by daughter - Application opposed by professional administrator - Whether plaintiff entitled to production of documents or discovery - Whether documents relate to question in proceeding - Proceeding by originating motion - Whether special circumstances exist - Inquisitorial role - Wills Act 1997 pt 1 div 2 - Supreme Court (General Civil Procedure) Rules 2025 rr 29.07(2)-(3), 29.08 - Civil Procedure Act 2010 ss 7, 8, 9 - Reed v Reed [2001] VSC 54 - Blair v Blair [2002] VSC 131 - Harris v Bennett (No 3) (2004) VR 425 - Grege v Grege [2024] VSC 475.
ADMINISTRATION AND PROBATE - Letters of administration - Presumption of death - Where person missing for 36 years - Where all due enquiries made to locate missing person - No evidence to suggest missing person is alive - Axon v Axon (1937) 59 CLR 395 - Chard v Chard [1956] P 259 - Administration and Probate Act 1958 (Vic) s 7.
ADMINISTRATION AND PROBATE - Letters of administration - Presumption of death - Where person missing for 36 years - Where all due enquiries made to locate missing person - No evidence to suggest missing person is alive - Axon v Axon (1937) 59 CLR 395 - Chard v Chard [1956] P 259 - Administration and Probate Act 1958 (Vic) s 7.
CONTRACT - Settlement - Whether binding agreement to settle made by sending unsigned deed via email - Where plaintiffs executed draft deed - Where parties reached in-principle agreement at mediation - Where defendants resiled from deed after provision to plaintiffs - Reasonable observer would have concluded that parties intended to be bound by sending unsigned deed via email - Masters v Cameron (1954) 91 CLR 353 and Sully v Englisch [2022] VSCA 184 applied - Pavlovic v Universal Music Australia Pty Ltd (2015) 90 NSWLR 605 distinguished.
CONTRACT - Settlement - Whether binding agreement to settle made by sending unsigned deed via email - Where plaintiffs executed draft deed - Where parties reached in-principle agreement at mediation - Where defendants resiled from deed after provision to plaintiffs - Reasonable observer would have concluded that parties intended to be bound by sending unsigned deed via email - Masters v Cameron (1954) 91 CLR 353 and Sully v Englisch [2022] VSCA 184 applied - Pavlovic v Universal Music Australia Pty Ltd (2015) 90 NSWLR 605 distinguished.
COMMON LAW - Application for summary dismissal - Application for strike out of pleadings in the alternative - Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Whether the claim is unmeritorious - Whether the plaintiff ought to be afforded a further opportunity to re-plead its claim - Self-represented litigant.
COMMON LAW - Application for summary dismissal - Application for strike out of pleadings in the alternative - Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Whether the claim is unmeritorious - Whether the plaintiff ought to be afforded a further opportunity to re-plead its claim - Self-represented litigant.
COMPULSORY ACQUISITION - Practice and procedure - Application for summary judgment - Where it is alleged that claims do not have any real prospect of success - Where it is alleged that claims are scandalous, frivolous, vexatious or an abuse of the process of the Court - High bar for establishing a claim for summary judgment - Appropriateness of recourse to summary judgment in compulsory land acquisition proceedings - Deficient pleadings can be rectified by timetabling orders - Summary judgment application dismissed - No order as to costs on the summary dismissal application - Costs of the directions hearing reserved.
COMPULSORY ACQUISITION - Practice and procedure - Application for summary judgment - Where it is alleged that claims do not have any real prospect of success - Where it is alleged that claims are scandalous, frivolous, vexatious or an abuse of the process of the Court - High bar for establishing a claim for summary judgment - Appropriateness of recourse to summary judgment in compulsory land acquisition proceedings - Deficient pleadings can be rectified by timetabling orders - Summary judgment application dismissed - No order as to costs on the summary dismissal application - Costs of the directions hearing reserved.
Land Acquisition and Compensation Act 1986 (Vic), s 41(1)(d); Civil Procedure Act 2010 (Vic), ss 16-21, 23-25, 61-63; Supreme Court (General Civil Procedure) Rules 2025 (Vic), rr 23.01, 23.02.
PERSONAL INJURIES - Trial practice - Leave reserved to the defendant to move non obstante veredicto - Verdict of a civil jury - Whether no evidence upon which a reasonable jury, properly directed, could have returned a verdict for the plaintiff - Jury verdict plainly explicable with reference to the evidence received at trial - King v Amaca Pty Ltd [2011] VSC 422 considered and applied - Application dismissed.
PERSONAL INJURIES - Trial practice - Leave reserved to the defendant to move non obstante veredicto - Verdict of a civil jury - Whether no evidence upon which a reasonable jury, properly directed, could have returned a verdict for the plaintiff - Jury verdict plainly explicable with reference to the evidence received at trial - King v Amaca Pty Ltd [2011] VSC 422 considered and applied - Application dismissed.
BIAS - Whether judge biased - Apprehended bias - Recusal application refused.
BIAS - Whether judge biased - Apprehended bias - Recusal application refused.
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 - Richmond River Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1992) 34 FCR 385 - Clyne v Bar Association (NSW) (1960) 104 CLR 186 - Davies v The Queen [2019] VSCA 66 - Legal Profession Uniform Conduct (Barristers) Rules 2015, r 65 - Civil Procedure Act 2010 (Vic), ss 7(1), 8(1), 9(1)(c)-(d).
ADMINISTRATIVE LAW - Appeal from Victorian Civil and Administrative Tribunal against costs orders - Oral reasons - Subsequent request for written reasons - Whether Tribunal used correct legal test to determine costs - Whether there was any evidence to support factual finding - Whether finding that the case had been 'made more complex' satisfied the statutory criteria to award costs - Adequacy of reasons - Whether use by Tribunal of AI-generated transcript demonstrated error - Relevance of oral reasons after written reasons - Whether appeal on costs needs to demonstrate exceptionality - Leave to appeal on novel ground - Appeal dismissed.
ADMINISTRATIVE LAW - Appeal from Victorian Civil and Administrative Tribunal against costs orders - Oral reasons - Subsequent request for written reasons - Whether Tribunal used correct legal test to determine costs - Whether there was any evidence to support factual finding - Whether finding that the case had been 'made more complex' satisfied the statutory criteria to award costs - Adequacy of reasons - Whether use by Tribunal of AI-generated transcript demonstrated error - Relevance of oral reasons after written reasons - Whether appeal on costs needs to demonstrate exceptionality - Leave to appeal on novel ground - Appeal dismissed.
Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 109, 112, 117, 148; Frontlink Pty Ltd v Commissioner of State Revenue [2023] VSC 521; Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSC 201; WEQ (a pseudonym) v Medical Board of Australia [2025] VSC 767; Chopra v Department of Education and Training [2019] VSC 488; Cargill Australia v Viterra Malt Pty Ltd [2023] VSCA 301; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Secretary to the Department of Justice v Yee [2012] VSC 447; Negri v Secretary, Department of Social Services (2016) 246 FCR 1; Bar- Mordecai v Rotman [2000] NSWCA 123; Vero Insurance Ltd v The Gombac Group Pty Ltd [2007] VSC 117; Fletcher Construction Australia Ltd v Lines McFarlane & Marshall Pty Ltd (2001) 4 VR 28; House v The King (1936) 55 CLR 499; Gombac Group Pty Ltd v Vero Insurance Ltd [2005] VSC 442, referred to.
ADMINISTRATIVE LAW - Judicial review - Workplace injury - Opinion of Medical Panel - Adequacy of Medical Panel's reasons - Relief refused - Devaney v Crown Melbourne Ltd [2021] VSCA 168, Wingfoot Australia Partners v Kocak (2013) 252 CLR 480, Richter v Driscoll (2016) 51 VR 95, A & L Windows Pty Ltd v Yildirim [2022] VSCA 46, Sidiqi v Kotsios [2021] VSCA 187, Vangelovski v Calco Timbers Pty Ltd [2022] VSC 508 - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss 274, 304(a), 304(b), 313(4), 313(3).
ADMINISTRATIVE LAW - Judicial review - Workplace injury - Opinion of Medical Panel - Adequacy of Medical Panel's reasons - Relief refused - Devaney v Crown Melbourne Ltd [2021] VSCA 168, Wingfoot Australia Partners v Kocak (2013) 252 CLR 480, Richter v Driscoll (2016) 51 VR 95, A & L Windows Pty Ltd v Yildirim [2022] VSCA 46, Sidiqi v Kotsios [2021] VSCA 187, Vangelovski v Calco Timbers Pty Ltd [2022] VSC 508 - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss 274, 304(a), 304(b), 313(4), 313(3).
ADMINISTRATIVE LAW - Appeal from Victorian Civil and Administrative Tribunal - Self-represented litigant - Residential tenancy - Rental provider's intention to sell with vacant possession - Refusal to vacate - Bona fides of the notice to vacate in issue before the Tribunal - Possession order made - Whether denial of procedural fairness in hearing - Whether fair opportunity to respond to documents referred to during hearing - Whether refusal of adjournment procedurally unfair - Whether 'reasonable and proportionate' to make the possession order in the circumstances - Whether Tribunal properly considered considerations relevant under section 330A of the Residential Tenancies Act 1997 (Vic) - Whether legally sufficient evidence for material findings made - Adequacy of reasons - Leave to appeal - Leave to appeal partially granted - Appeal dismissed.
ADMINISTRATIVE LAW - Appeal from Victorian Civil and Administrative Tribunal - Self-represented litigant - Residential tenancy - Rental provider's intention to sell with vacant possession - Refusal to vacate - Bona fides of the notice to vacate in issue before the Tribunal - Possession order made - Whether denial of procedural fairness in hearing - Whether fair opportunity to respond to documents referred to during hearing - Whether refusal of adjournment procedurally unfair - Whether 'reasonable and proportionate' to make the possession order in the circumstances - Whether Tribunal properly considered considerations relevant under section 330A of the Residential Tenancies Act 1997 (Vic) - Whether legally sufficient evidence for material findings made - Adequacy of reasons - Leave to appeal - Leave to appeal partially granted - Appeal dismissed.
Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 98, 117, 119, 148; Residential Tenancies Act 1997 (Vic) ss 75, 77, 91ZZB, 330A; Civil Procedure Act 2010 (Vic) pt 2.1; Roberts v Harkness (2018) 57 VR 334; Bell Corp Victoria Pty Ltd v Stephenson (2003) 20 VAR 280; Psychology Board of Australia v Mair [2010] VSC 628; Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24; Maleckas ('LKQ') v Secretary, Department of Justice (2011) 34 VR 23; House v the King (1936) 55 CLR 499; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; Secretary to the Department of Justice v Yee [2012] VSC 447; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Dudas v Monash City Council; Tarawa- Shearer v Darebin City Council [2012] VSC 578, referred to.
APPEAL - Appeal from order of the Victorian Civil and Administrative Tribunal refusing application for stay - Refusal to renew solicitor's practicing certificate - Whether Senior Member erred in dismissing stay application - Jurisdictional error - Unreasonableness - Identification of public interest - Victorian Civil and Administrative Tribunal Act 1998 s 50(3) - Legal Profession Uniform Law Application Act 2014 s 45 - Leave to appeal allowed - Application refused.
APPEAL - Appeal from order of the Victorian Civil and Administrative Tribunal refusing application for stay - Refusal to renew solicitor's practicing certificate - Whether Senior Member erred in dismissing stay application - Jurisdictional error - Unreasonableness - Identification of public interest - Victorian Civil and Administrative Tribunal Act 1998 s 50(3) - Legal Profession Uniform Law Application Act 2014 s 45 - Leave to appeal allowed - Application refused.
APPEAL - PLANNING AND ENVIRONMENT - Application for leave to appeal from decision and orders of the Victorian Civil and Administrative Tribunal - Planning permit for development of land by construction and/or putting up for display of 'major promotion signs' - Permit referred to permission for the 'installation and display' of major promotion signs - Permit included a condition stating permit would expire 15 years after issue - Permit did not otherwise include a condition requiring completion of construction by a particular time - Completion of construction of signs took longer than two years from issue of permit - Responsible authority asserted that permit had expired - Permit holder applied for declaration by VCAT - VCAT refused to make declaration that permit had not expired - Whether s 68(1)(b) of the Planning and Environment Act 1987 caused permit to expire - Whether permit specified a time for completion of the development displacing default expiry under s 68(1)(b) - Principles guiding interpretation of planning permit - On its proper interpretation taking into account all its elements the permit specified a time of 15 years for completion of development - VCAT erred in refusing to make declaration that the permit had not expired - Victorian Civil and Administrative Tribunal Act 1998 s 148 - Planning and Environment Act 1987 ss 62(1), 68(1)(b) - Monash Planning Scheme cl 52.05.
APPEAL - PLANNING AND ENVIRONMENT - Application for leave to appeal from decision and orders of the Victorian Civil and Administrative Tribunal - Planning permit for development of land by construction and/or putting up for display of 'major promotion signs' - Permit referred to permission for the 'installation and display' of major promotion signs - Permit included a condition stating permit would expire 15 years after issue - Permit did not otherwise include a condition requiring completion of construction by a particular time - Completion of construction of signs took longer than two years from issue of permit - Responsible authority asserted that permit had expired - Permit holder applied for declaration by VCAT - VCAT refused to make declaration that permit had not expired - Whether s 68(1)(b) of the Planning and Environment Act 1987 caused permit to expire - Whether permit specified a time for completion of the development displacing default expiry under s 68(1)(b) - Principles guiding interpretation of planning permit - On its proper interpretation taking into account all its elements the permit specified a time of 15 years for completion of development - VCAT erred in refusing to make declaration that the permit had not expired - Victorian Civil and Administrative Tribunal Act 1998 s 148 - Planning and Environment Act 1987 ss 62(1), 68(1)(b) - Monash Planning Scheme cl 52.05.
JUDICIAL REVIEW - Application for leave to appeal the Victorian Civil and Administrative Tribunal costs order - Applicant applied for costs following withdrawal of disciplinary proceedings - Costs could only be awarded against Victorian Legal Services Commissioner if 'special circumstances' existed - Whether the Tribunal erred in finding no 'special circumstances' existed to justify a costs order - Whether the Tribunal denied procedural fairness - No merit in any of the grounds of the application for leave - Leave to appeal refused - Victorian Civil and Administrative Tribunal Act 1998 (Vic) cl 46D of sch 1.
JUDICIAL REVIEW - Application for leave to appeal the Victorian Civil and Administrative Tribunal costs order - Applicant applied for costs following withdrawal of disciplinary proceedings - Costs could only be awarded against Victorian Legal Services Commissioner if 'special circumstances' existed - Whether the Tribunal erred in finding no 'special circumstances' existed to justify a costs order - Whether the Tribunal denied procedural fairness - No merit in any of the grounds of the application for leave - Leave to appeal refused - Victorian Civil and Administrative Tribunal Act 1998 (Vic) cl 46D of sch 1.
JUDICIAL REVIEW - Application by a worker under s 328 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) to bring proceedings for damages for an injury - Where an injury is deemed to be a serious injury under s 335(1) - Whether Authority required to advise worker that injury was deemed to be a serious injury - Whether response provided pursuant to s 330(1)(a) amenable to judicial review - Response subject to judicial review - Authority required to advise that worker was deemed to have a serious injury - Gievski v Victorian WorkCover Authority [2017] VSC 598 distinguished.
JUDICIAL REVIEW - Application by a worker under s 328 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) to bring proceedings for damages for an injury - Where an injury is deemed to be a serious injury under s 335(1) - Whether Authority required to advise worker that injury was deemed to be a serious injury - Whether response provided pursuant to s 330(1)(a) amenable to judicial review - Response subject to judicial review - Authority required to advise that worker was deemed to have a serious injury - Gievski v Victorian WorkCover Authority [2017] VSC 598 distinguished.
JUDICIAL REVIEW - Whether a Judge of the Supreme Court can grant judicial review remedies in respect of a Judicial Registrar's case transfer determination - Judicial Registrar was a judicial officer of the Court - Whether determination was judicial or administrative - Constitution Act 1975, s 75(2).
JUDICIAL REVIEW - Whether a Judge of the Supreme Court can grant judicial review remedies in respect of a Judicial Registrar's case transfer determination - Judicial Registrar was a judicial officer of the Court - Whether determination was judicial or administrative - Constitution Act 1975, s 75(2).
CIVIL PROCEDURE - Discovery - Appropriateness of general discovery or discovery by categories in a group proceeding - Interaction between statutory privacy obligations and principles of discovery - Restrictions on disclosure of protected information under the Aged Care Act 1997 (Cth) - Disclosure of group members' personal or medical information in connection with the initial trial of a group proceeding - Relevance to real issues in dispute defined by pleadings - Scope of categories narrowed by amending language and temporal ranges - Supreme Court (General Civil Procedure) Rules 2025 (Vic) rr 29.01.1, 29.05, 29.05.1, 29.07, and 29.08.
CIVIL PROCEDURE - Discovery - Appropriateness of general discovery or discovery by categories in a group proceeding - Interaction between statutory privacy obligations and principles of discovery - Restrictions on disclosure of protected information under the Aged Care Act 1997 (Cth) - Disclosure of group members' personal or medical information in connection with the initial trial of a group proceeding - Relevance to real issues in dispute defined by pleadings - Scope of categories narrowed by amending language and temporal ranges - Supreme Court (General Civil Procedure) Rules 2025 (Vic) rr 29.01.1, 29.05, 29.05.1, 29.07, and 29.08.
CIVIL PROCEDURE - Obligation not to use documents produced under compulsion in a proceeding other than for the purposes of that proceeding - Prohibition in s 27 of the Civil Procedure Act 2010 (Vic) on use of documents disclosed in compliance with s 26 for a purpose other than in connection with the civil proceeding - Application for release from the implied undertaking and release from obligations in s 27 of the Civil Procedure Act 2010 (Vic) - Retrospective or nunc pro tunc relief - Appropriate procedure for application - Civil Procedure Act 2010 (Vic) ss 26, 27.
CIVIL PROCEDURE - Obligation not to use documents produced under compulsion in a proceeding other than for the purposes of that proceeding - Prohibition in s 27 of the Civil Procedure Act 2010 (Vic) on use of documents disclosed in compliance with s 26 for a purpose other than in connection with the civil proceeding - Application for release from the implied undertaking and release from obligations in s 27 of the Civil Procedure Act 2010 (Vic) - Retrospective or nunc pro tunc relief - Appropriate procedure for application - Civil Procedure Act 2010 (Vic) ss 26, 27.
CIVIL PROCEDURE - Application for summary judgement - Application to strike-out pleading - High threshold of 'no real prospect of success' - Self-represented plaintiff - Statement of claim drafted in an unclear manner - Material facts not stated - Elements of negligence not adequately addressed on the pleadings - Existence of a relevant duty of care undetermined - Fact-sensitive nature of distinguishing between government policy and operational conduct - Statement of claim struck out - Summary judgment application adjourned until plaintiff has repleaded - Civil Procedure Act 2010 (Vic) ss 62 and 63 - Supreme Court (General Civil Procedure) Rules 2025 r 23.02.
CIVIL PROCEDURE - Application for summary judgement - Application to strike-out pleading - High threshold of 'no real prospect of success' - Self-represented plaintiff - Statement of claim drafted in an unclear manner - Material facts not stated - Elements of negligence not adequately addressed on the pleadings - Existence of a relevant duty of care undetermined - Fact-sensitive nature of distinguishing between government policy and operational conduct - Statement of claim struck out - Summary judgment application adjourned until plaintiff has repleaded - Civil Procedure Act 2010 (Vic) ss 62 and 63 - Supreme Court (General Civil Procedure) Rules 2025 r 23.02.
BAIL - Applicant for bail an Aboriginal person - Accused also subject to Treatment Order under the Mental Health and Wellbeing Act 2022 (Vic) - Compelling reasons test met - Risk not unacceptable while Inpatient Treatment Order in force - Bail granted - Bail Act 1977 (Vic) ss 3A, 4E.
BAIL - Applicant for bail an Aboriginal person - Accused also subject to Treatment Order under the Mental Health and Wellbeing Act 2022 (Vic) - Compelling reasons test met - Risk not unacceptable while Inpatient Treatment Order in force - Bail granted - Bail Act 1977 (Vic) ss 3A, 4E.
CRIMINAL LAW - APPLICATION FOR BAIL - Compelling reasons test under section (4AA)(4A) of the Bail Act 1977 - Opposed on the basis of an unacceptable risk of failing to surrender into custody in accordance with the bail undertaking - High risk of failing to answer to bail - Conditions cannot make risk acceptable - Bail refused - Bail Act 1977 (Vic) s 4AA(4A), s 4E(1)(a)(iv) - Re Boland [2024] VSC 85.
CRIMINAL LAW - APPLICATION FOR BAIL - Compelling reasons test under section (4AA)(4A) of the Bail Act 1977 - Opposed on the basis of an unacceptable risk of failing to surrender into custody in accordance with the bail undertaking - High risk of failing to answer to bail - Conditions cannot make risk acceptable - Bail refused - Bail Act 1977 (Vic) s 4AA(4A), s 4E(1)(a)(iv) - Re Boland [2024] VSC 85.
CRIMINAL LAW - Sentencing - Manslaughter by criminal negligence - Offender accidentally injected her partner with heroin - Attempted to revive him by injecting him with methylamphetamine, which was his usual drug - Delayed calling an ambulance but ultimately called '000' - Performed CPR and remained at scene - Full and frank admissions to police - But for admissions, offender would not have been prosecuted - Guilty plea - Substantial mitigation - Mental health issues - Doran discount - Low level example of this type of manslaughter - Category 2 offence pursuant to the Sentencing Act - Section 5(2H) exceptions not established - Sentenced to 3 years' imprisonment, with a non-parole period of 15 months - Sentencing Act 1991 (Vic) ss 5(2H)(c)(ii), 5(2H)(e) - R v Doran [2005] VSCA 271; R v Verdins (2007) 16 VR 269; Peers v The Queen [2021] VSCA 264; DPP v Lombardo (2022) 302 A Crim R 329.
CRIMINAL LAW - Sentencing - Manslaughter by criminal negligence - Offender accidentally injected her partner with heroin - Attempted to revive him by injecting him with methylamphetamine, which was his usual drug - Delayed calling an ambulance but ultimately called '000' - Performed CPR and remained at scene - Full and frank admissions to police - But for admissions, offender would not have been prosecuted - Guilty plea - Substantial mitigation - Mental health issues - Doran discount - Low level example of this type of manslaughter - Category 2 offence pursuant to the Sentencing Act - Section 5(2H) exceptions not established - Sentenced to 3 years' imprisonment, with a non-parole period of 15 months - Sentencing Act 1991 (Vic) ss 5(2H)(c)(ii), 5(2H)(e) - R v Doran [2005] VSCA 271; R v Verdins (2007) 16 VR 269; Peers v The Queen [2021] VSCA 264; DPP v Lombardo (2022) 302 A Crim R 329.
CRIMINAL LAW - Change of venue application - Pre-trial ruling - Aboriginal accused - Significant mental health considerations - Application granted - Criminal Procedure Act 2009 s 192 - DPP v Bennett (2004) VSC 148; R v Iaria and Panozzo (2004) 9 VR 425.
CRIMINAL LAW - Change of venue application - Pre-trial ruling - Aboriginal accused - Significant mental health considerations - Application granted - Criminal Procedure Act 2009 s 192 - DPP v Bennett (2004) VSC 148; R v Iaria and Panozzo (2004) 9 VR 425.
CRIMINAL LAW - Murder - Joint trial of co-accused - Separate trial application - Whether the evidence of a witness who allegedly received a confession from Clarke is impermissibly bolstered by Hill's out-of-court statements - Whether risk of substantial prejudice - Whether amenable to judicial directions - Application refused - Criminal Procedure Act 2009 ss 170(2), 193(2), 193(3) - R v Demirok [1976] VR 244 - R v Gibb and McKenzie [1983] 2 VR 155 - R v Jones & Waghorn (1991) 55 A Crim R 159 - R v Iaria and Panozzo (separate trial) [2004] VSC 110 - R v Vollmer (1996) 1 VR 95 - Young v R [2015] VSCA 265 - R v Mwamba [2015] VSCA 338 - Feeney v The Queen [2022] VSCA 113 - DPP v Bottom & Ors (Ruling No 2) [2022] VSC 401 - R v Kannan & Anor (Ruling No 12) [2021] VSC 39.
CRIMINAL LAW - Murder - Joint trial of co-accused - Separate trial application - Whether the evidence of a witness who allegedly received a confession from Clarke is impermissibly bolstered by Hill's out-of-court statements - Whether risk of substantial prejudice - Whether amenable to judicial directions - Application refused - Criminal Procedure Act 2009 ss 170(2), 193(2), 193(3) - R v Demirok [1976] VR 244 - R v Gibb and McKenzie [1983] 2 VR 155 - R v Jones & Waghorn (1991) 55 A Crim R 159 - R v Iaria and Panozzo (separate trial) [2004] VSC 110 - R v Vollmer (1996) 1 VR 95 - Young v R [2015] VSCA 265 - R v Mwamba [2015] VSCA 338 - Feeney v The Queen [2022] VSCA 113 - DPP v Bottom & Ors (Ruling No 2) [2022] VSC 401 - R v Kannan & Anor (Ruling No 12) [2021] VSC 39.
CRIMINAL LAW - Murder - Pre-trial ruling - Evidence - Admissibility of alleged admissions to [relative] of accused - Evidence admissible - Evidence Act 2008 ss 90, 137, 138 and residual common law ('Haddara') discretion - Ridley v The King [2024] VSCA 308 - Haddara v R (2014) 43 VR 53.
CRIMINAL LAW - Murder - Pre-trial ruling - Evidence - Admissibility of alleged admissions to [relative] of accused - Evidence admissible - Evidence Act 2008 ss 90, 137, 138 and residual common law ('Haddara') discretion - Ridley v The King [2024] VSCA 308 - Haddara v R (2014) 43 VR 53.
CRIMINAL APPEAL - Factual questions referred to the trial division for determination pursuant to s 319A of the Criminal Procedure Act 2009 (Vic) - Application for a pseudonym order - Where an individual is alleged to be a police informer - Open Courts Act 2013 (Vic) - Where there is a public interest in protecting police informers - Where Victoria Police are required to be seen to maintain confidence in ability to protect informers - Where public interest is sufficient to warrant the making of an order.
CRIMINAL APPEAL - Factual questions referred to the trial division for determination pursuant to s 319A of the Criminal Procedure Act 2009 (Vic) - Application for a pseudonym order - Where an individual is alleged to be a police informer - Open Courts Act 2013 (Vic) - Where there is a public interest in protecting police informers - Where Victoria Police are required to be seen to maintain confidence in ability to protect informers - Where public interest is sufficient to warrant the making of an order.
CONTRACT - TRUSTS - CONSUMER LAW - CAVEATS - Joint venture to develop a metal detection system - Whether the parties entered into a binding oral contract - Effect of subsequent written memorandum of understanding - Breakdown of joint venture - Whether funds invested by the plaintiff in the joint venture subject to a remedial constructive trust or resulting trust - Alleged misleading and deceptive conduct regarding valuation of the joint venture - Counterclaim for removal of caveat lodged by the plaintiff over joint venture property.
CONTRACT - TRUSTS - CONSUMER LAW - CAVEATS - Joint venture to develop a metal detection system - Whether the parties entered into a binding oral contract - Effect of subsequent written memorandum of understanding - Breakdown of joint venture - Whether funds invested by the plaintiff in the joint venture subject to a remedial constructive trust or resulting trust - Alleged misleading and deceptive conduct regarding valuation of the joint venture - Counterclaim for removal of caveat lodged by the plaintiff over joint venture property.
PRACTICE AND PROCEDURE - Application for leave to continue proceedings by a person subject to a general litigation restraint order under the Vexatious Proceedings Act 2014 - Vexatious proceeding - Abuse of process.
PRACTICE AND PROCEDURE - Application for leave to continue proceedings by a person subject to a general litigation restraint order under the Vexatious Proceedings Act 2014 - Vexatious proceeding - Abuse of process.
PRACTICE AND PROCEDURE - Application for leave to continue proceedings - Whether proposed proceeding is vexatious - Whether there are reasonable grounds for proposed proceeding.
PRACTICE AND PROCEDURE - Application for leave to continue proceedings - Whether proposed proceeding is vexatious - Whether there are reasonable grounds for proposed proceeding.
PRACTICE AND PROCEDURE - Application by plaintiffs seeking review pursuant to r 84.03(3) of the County Court Civil Procedure Rules 2018 (Vic) of decision of the Court constituted by judicial registrar dismissing plaintiffs' applications.
PRACTICE AND PROCEDURE - Application by plaintiffs seeking review pursuant to r 84.03(3) of the County Court Civil Procedure Rules 2018 (Vic) of decision of the Court constituted by judicial registrar dismissing plaintiffs' applications.