WILLS AND ESTATES - Testamentary capacity - Deceased executed new will prior to death - Whether primary judge erred in assessment of evidence of capacity - Where conflicting medical evidence - Whether evidence of deceased's reasons for changing will should have led to conclusion of incapacity - No error in primary judge's approach to evidence - No error in primary judge's assessment of reliability of witnesses - Deceased's reasons for changing will not evidence of incapacity - No real prospects of success - Application for leave to appeal refused.
WILLS AND ESTATES - Testamentary capacity - Deceased executed new will prior to death - Whether primary judge erred in assessment of evidence of capacity - Where conflicting medical evidence - Whether evidence of deceased's reasons for changing will should have led to conclusion of incapacity - No error in primary judge's approach to evidence - No error in primary judge's assessment of reliability of witnesses - Deceased's reasons for changing will not evidence of incapacity - No real prospects of success - Application for leave to appeal refused.
Banks v Goodfellow (1870) LR 5 QB 549; Norris v Tuppen [1999] VSC 228, considered.
JUDICIAL REVIEW - Application for leave to appeal from decision of trial judge on judicial review of decision of Building Appeals Board to affirm building order issued by first respondent - Applicant reconstructed raised deck attached to dwelling without building permit - Council advised applicant that permit not required - Building order issued requiring demolition of deck on basis deck reconstructed and extended without permit and lacked screening to prevent overlooking adjoining property - Whether judge erred in concluding respondents not estopped by Council advice - Whether judge erred in concluding building permit required - Whether judge erred in concluding screening required to prevent overlooking adjoining property - Whether judge erred in concluding Building Appeals Board did not deny plaintiff procedural fairness - Whether trial judge's decision showed prejudice against applicant and denied him a fair trial - Leave to appeal refused.
JUDICIAL REVIEW - Application for leave to appeal from decision of trial judge on judicial review of decision of Building Appeals Board to affirm building order issued by first respondent - Applicant reconstructed raised deck attached to dwelling without building permit - Council advised applicant that permit not required - Building order issued requiring demolition of deck on basis deck reconstructed and extended without permit and lacked screening to prevent overlooking adjoining property - Whether judge erred in concluding respondents not estopped by Council advice - Whether judge erred in concluding building permit required - Whether judge erred in concluding screening required to prevent overlooking adjoining property - Whether judge erred in concluding Building Appeals Board did not deny plaintiff procedural fairness - Whether trial judge's decision showed prejudice against applicant and denied him a fair trial - Leave to appeal refused.
Building Act 1993, ss 3, 16, 37, 37A, 106, 111, 118A.
Building Regulations 2018, regs 23, 84, 233, sch 3.
DEFAMATION - Appeal - Application for extension of time - Application for leave to rely on further evidence - Documents provided to applicant in response to FOI request to local council made after judgment not discovered by respondent during proceeding - Relevant considerations where evidence unavailable to unsuccessful party by reason of misconduct of successful party such as failure to discover relevant documents - Respondent's degree of culpability low - Applicant less than diligent in respect of discovery - No realistic possibility of different result - Interests of justice not served by granting new trial - 15-month delay in filing application for leave to appeal - Application for extension of time dismissed - Application for leave to rely on further material dismissed.
DEFAMATION - Appeal - Application for extension of time - Application for leave to rely on further evidence - Documents provided to applicant in response to FOI request to local council made after judgment not discovered by respondent during proceeding - Relevant considerations where evidence unavailable to unsuccessful party by reason of misconduct of successful party such as failure to discover relevant documents - Respondent's degree of culpability low - Applicant less than diligent in respect of discovery - No realistic possibility of different result - Interests of justice not served by granting new trial - 15-month delay in filing application for leave to appeal - Application for extension of time dismissed - Application for leave to rely on further material dismissed.
Supreme Court (General Civil Procedure) Rules 2025, rr 64.05(1)(a), 64.13(2), 64.36(3); Civil Procedure Act 2010, ss 7, 8(1), 9(1).
Commonwealth Bank of Australia v Quade (1991) 178 CLR 134; Clark v Stingel [2007] VSCA 292; Roberts-Smith v Fairfax Publications Pty Limited (Reopening Application) (2025) 310 FCR 141.
INTERLOCUTORY INJUNCTION - Application to restrain service of notices to vacate on public housing residents - Whether injunctive relief necessary to preserve subject matter of litigation - Prospects of success of application for special leave - Balance of convenience - No undertaking as to damages - Exceptional circumstances - Application for injunctive relief granted.
INTERLOCUTORY INJUNCTION - Application to restrain service of notices to vacate on public housing residents - Whether injunctive relief necessary to preserve subject matter of litigation - Prospects of success of application for special leave - Balance of convenience - No undertaking as to damages - Exceptional circumstances - Application for injunctive relief granted.
Evidence Act 2008, s 135.
Housing Act 1983, s 15(1)(a).
Judiciary Act 1903 (Cth), s 35A.
Residential Tenancies Act 1997, s 91ZY.
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Rinehart v Welker (2012) 83 NSWLR 347; Australian Football League v Carlton Football Club (Victorian Court of Appeal, Tadgell, Hayne and Ashley JJA, 1 August 1997), applied.
CRIMINAL PROCEDURE - Appeal from decision of a Judicial Registrar - Client legal privilege claimed in respect of two documents ordered to be produced under s 317, Criminal Procedure Act 2009 - Whether documents privileged - Whether privilege waived when a redacted version of one document was discovered in civil proceeding - Admissibility of hearsay in affidavit - Whether proceeding is interlocutory or final - Appeal is an interlocutory proceeding - Client legal privilege established in respect of both documents - Client legal privilege waived with respect to second document - Appeal allowed in part.
CRIMINAL PROCEDURE - Appeal from decision of a Judicial Registrar - Client legal privilege claimed in respect of two documents ordered to be produced under s 317, Criminal Procedure Act 2009 - Whether documents privileged - Whether privilege waived when a redacted version of one document was discovered in civil proceeding - Admissibility of hearsay in affidavit - Whether proceeding is interlocutory or final - Appeal is an interlocutory proceeding - Client legal privilege established in respect of both documents - Client legal privilege waived with respect to second document - Appeal allowed in part.
Criminal Procedure Act 2009 (Vic), s 317; Evidence Act 2008 (Vic), ss 59, 75, 118, 119, 122, [*redacted], 131A.
Hamilton v New South Wales [2016] NSWSC 1213; Kennedy v Wallace (2004) 208 ALR 424; Kennedy v Wallace (2004) 142 FCR 185; Liesfield v SPI Electricity Pty Ltd [2014] VSC 348; Grant v Downs (1976) 135 CLR 674; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303, considered.
SUCCESSION - Appointment of personal representative for legal proceedings - Third respondent died during the proceeding - First respondent appointed sole executor under third respondent's will - First respondent did not seek probate - Estate would not have assets in Victoria unless found to have an interest in the Trust the subject of the proceeding - Second respondent reserved her position in relation to validity of the will but had not challenged it - Primary judge appointed second respondent as representative of estate pursuant to r 16.03 of the Supreme Court (General Civil Procedure) Rules 2015 - Applicants sought to have appointment set aside - Whether r 16.03 available, or whether r 9.09 ought to have been used to appoint representative - Whether third respondent's interest or liability devolved upon first respondent as executor for purposes of r 9.09 - At common law personal estate vests in an executor upon date of death rather than upon grant of probate - Common law rule not altered by the Administration and Probate Act 1958 - Rule 16.03 not available where an estate has a personal representative - No evidence regarding whether first respondent has accepted office of executor - Power to appoint administrator ad litem noted - Leave to appeal granted - Appeal allowed - Issue remitted to primary judge for redetermination.
SUCCESSION - Appointment of personal representative for legal proceedings - Third respondent died during the proceeding - First respondent appointed sole executor under third respondent's will - First respondent did not seek probate - Estate would not have assets in Victoria unless found to have an interest in the Trust the subject of the proceeding - Second respondent reserved her position in relation to validity of the will but had not challenged it - Primary judge appointed second respondent as representative of estate pursuant to r 16.03 of the Supreme Court (General Civil Procedure) Rules 2015 - Applicants sought to have appointment set aside - Whether r 16.03 available, or whether r 9.09 ought to have been used to appoint representative - Whether third respondent's interest or liability devolved upon first respondent as executor for purposes of r 9.09 - At common law personal estate vests in an executor upon date of death rather than upon grant of probate - Common law rule not altered by the Administration and Probate Act 1958 - Rule 16.03 not available where an estate has a personal representative - No evidence regarding whether first respondent has accepted office of executor - Power to appoint administrator ad litem noted - Leave to appeal granted - Appeal allowed - Issue remitted to primary judge for redetermination.
Supreme Court (General Civil Procedure) Rules 2015, rr 9.09, 9.10, 16.03; Administration and Probate Act 1958, ss 13, 15, 22, 29.
Fifteenth Eestin Nominees Pty Ltd v Rosenberg (No 2) (2009) 24 VR 155; Ryan v Davies Bros Limited (1921) 29 CLR 527, applied; Culve Engineering Pty Ltd v Apollo General Engineering (Aust) Pty Ltd (2017) 53 VR 219 considered; Bolitho v Banksia Securities Ltd (No 15) [2020] VSC 725; Sorbara v Prochilo (No 2) [2022] VSC 225, disapproved.
PRACTICE AND PROCEDURE - Interlocutory appeal - First respondent commenced proceedings seeking appointment of new trustee and declarations regarding property held by a family trust - Primary judge declared trust had failed for uncertainty and assets were held on resulting trust for contributors - Question of contributions to trust remains on foot and matter has not proceeded to trial - Applicants challenged interlocutory decisions - Whether judge erred in failing to strike out first respondent's fifth further amended statement of claim - Whether judge erred in relieving first to third respondents of Hearne obligations - Applicant argued first and second respondents' counsel breached their professional duties by continuing to act after breaching Hearne obligation, resulting in miscarriage of justice - Applicants argued abuse of process resulted from 'deception' regarding third respondent's legal capacity prior to his death - Leave to appeal refused.
Moore (a pseudonym) v The King (2024) 98 ALJR 1119; Kajula Pty Ltd v Downer EDI Ltd (2024) 76 VR 75; Coulton v Holcombe (1986) 162 CLR 1; Sambucco v Sambucco (2023) 72 VR 121; O'Brien v Komesaroff (1982) 150 CLR 310, applied; Hearne v Street (2008) 235 CLR 125; Slea Pty Ltd v Connective Services Pty Ltd (2017) 53 VR 161; Veall v Veall (2015) 46 VR 123; Kantor v Vosahlo [2004] VSCA 235; Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283; Clarey v Permanent Trustee Co Limited [2005] VSCA 128, considered.
Legal Profession Uniform Conduct (Barristers) Rules 2015, rr 101, 102; Civil Procedure Act 2010, ss 7, 9, 27, 41.
PRACTICE AND PROCEDURE - Application for leave to appeal interlocutory orders - Scheduling orders - Inspection of court file - Whether orders made in error - Whether miscarriage of case management discretion - Whether failure to take relevant considerations into account when awarding costs - Leave to appeal refused.
PRACTICE AND PROCEDURE - Application for leave to appeal interlocutory orders - Scheduling orders - Inspection of court file - Whether orders made in error - Whether miscarriage of case management discretion - Whether failure to take relevant considerations into account when awarding costs - Leave to appeal refused.
Supreme Court Act 1986 ss 24, 62; Open Courts Act 2013 ss 1, 4, 18; Civil Procedure Act 2010 s 7; Supreme Court (General Civil Procedure) Rules 2025, r 25.08, 64.15.
He v Monash University [2025] VSC 737; House v The King (1936) 55 CLR 499; Re the Will of F.B. Gilbert (Deceased)(1946) 46 SR (NSW) 318; VM Romano Construction Group Pty Ltd v BCG (Aust) Pty Ltd [2023] VSCA 312; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Towercom Pty Ltd v Fahour (No 4) [2013] VSC 585.
GUARDIANSHIP AND ADMINISTRATION - Application for leave to appeal from VCAT decision finding second applicant mother lacked decision-making capacity and consequential orders including appointment of first applicant son as administrator pursuant to Guardianship and Administration Act 2019 ('GA Act') - Powers of attorney - VCAT orders significantly limited exercise of first applicant's powers as administrator under GA Act - Whether open to Vice President to conclude second applicant lacked capacity to make power of attorney - Whether Vice President entitled to accept opinion of neuropsychologist regarding second applicant's mental acuity - Whether Vice President should have appointed first applicant as administrator under the GA Act to manage second applicant's affairs - Whether Vice President applied relevant provisions of the Charter of Human Rights and Responsibilities Act 2006 in determining to appoint an administrator - Leave to appeal refused.
GUARDIANSHIP AND ADMINISTRATION - Application for leave to appeal from VCAT decision finding second applicant mother lacked decision-making capacity and consequential orders including appointment of first applicant son as administrator pursuant to Guardianship and Administration Act 2019 ('GA Act') - Powers of attorney - VCAT orders significantly limited exercise of first applicant's powers as administrator under GA Act - Whether open to Vice President to conclude second applicant lacked capacity to make power of attorney - Whether Vice President entitled to accept opinion of neuropsychologist regarding second applicant's mental acuity - Whether Vice President should have appointed first applicant as administrator under the GA Act to manage second applicant's affairs - Whether Vice President applied relevant provisions of the Charter of Human Rights and Responsibilities Act 2006 in determining to appoint an administrator - Leave to appeal refused.
Guardianship and Administration Act 2019, ss 5, 6, 8, 30, 32, pt 7.
Powers of Attorney Act 2014, s 33.
Charter of Human Rights and Responsibilities Act 2006, ss 4, 7, 8, 12, 20, 24, 32, 38.
Thompson v Minogue (2021) 67 VR 301; PJB v Melbourne Health (Patrick's case) (2011) 39 VR 373; Castles v Secretary, Department of Justice (2010) 28 VR 141, followed.
LG v Melbourne Health [2019] VSC 183, considered.
ADMINISTRATIVE LAW - Judicial review - Appeal - Respondent (a police officer) participated in messages with other Victoria Police employees involving discriminatory remarks and sharing of sensitive information - Respondent charged with breach of discipline. - Officer authorised to inquire into and determine the charge (the 'DIO') amended the charge in the course of the inquiry - DIO found charge proven and determined Respondent should be dismissed from Victoria Police - Respondent applied to review the determination to the Police Registration and Services Board - Board affirmed DIO's decision - Respondent applied for judicial review of Board's decision - Primary judge found DIO's amendment of charge was invalid and that Board's decision contained an error of law on the face of the record in that it failed to find that the dismissal was 'unjust' - Appeal allowed - DIO had power to amend charge - Further, 'unjust' finding would not have inevitably followed from finding that amendment was invalid.
ADMINISTRATIVE LAW - Judicial review - Appeal - Respondent (a police officer) participated in messages with other Victoria Police employees involving discriminatory remarks and sharing of sensitive information - Respondent charged with breach of discipline. - Officer authorised to inquire into and determine the charge (the 'DIO') amended the charge in the course of the inquiry - DIO found charge proven and determined Respondent should be dismissed from Victoria Police - Respondent applied to review the determination to the Police Registration and Services Board - Board affirmed DIO's decision - Respondent applied for judicial review of Board's decision - Primary judge found DIO's amendment of charge was invalid and that Board's decision contained an error of law on the face of the record in that it failed to find that the dismissal was 'unjust' - Appeal allowed - DIO had power to amend charge - Further, 'unjust' finding would not have inevitably followed from finding that amendment was invalid.
Victoria Police Act 2013, ss 125(1)(j), 130, 152(2), (3), pt 8 div 2; Victoria Police Regulations 2014, reg 52; Interpretation of Legislation Act, s 41A.
Kirkham v Industrial Relations Commissioner & Anor (2015) 121 SASR 471; Byrne v Australian Airlines Ltd (1995) 185 CLR 410, applied; Chief Commissioner of Police v HDB [2024] VSC 465, not followed.
Collector of Customs v Agfa- Gevaert Ltd (1996) 186 CLR 389; SAS Trustee Corporation v Miles (2018) 265 CLR 137; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; R v Young (1999) 46 NSWLR 681, applied.
Attorney-General (NSW) v Quin (1990) 170 CLR 1; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, considered.
CONTRACT - Contract to pay 'service fee' to applicant for each financial year in term of agreement in exchange for provision of property development services to respondent - For final financial year of agreement 'termination adjustment' to be made to determine 'final service fee' - Termination adjustment requiring profit figure to be reduced or increased by amount equal to unrealised capital gains or losses - Whether unrealised capital gains or losses only referring to amounts recorded on capital account not revenue account.
CONTRACT - Contract to pay 'service fee' to applicant for each financial year in term of agreement in exchange for provision of property development services to respondent - For final financial year of agreement 'termination adjustment' to be made to determine 'final service fee' - Termination adjustment requiring profit figure to be reduced or increased by amount equal to unrealised capital gains or losses - Whether unrealised capital gains or losses only referring to amounts recorded on capital account not revenue account.
CONTRACT - Contract to pay 'service fee' to applicant for each financial year in term of agreement in exchange for provision of property development services to respondent - For final financial year of agreement 'termination adjustment' to be made by reference to unrealised capital gains or losses - Commission payable after termination in respect of projects 'introduced' by applicant - Double counting of gains or losses - Construction of agreement to address prospect of double counting.
PRACTICE AND PROCEDURE - Costs - Offers of compromise in respect of individual claims - Whether claims can be aggregated - Whether accompanying letter attracts Calderbank principles.
WORDS AND PHRASES - 'unrealised capital gain' - 'capital gain'.
Supreme Court (General Civil Procedure) Rules 2015, r 26.08.
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 (Vic) - Where the respondent to production submits orders have already been made - Where the respondent to production submits that they have been unable to locate documents that are responsive to the orders or the application - Where orders for production are in the interests of justice - Where the applicant has identified legitimate 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 (Vic) - Where the respondent to production submits orders have already been made - Where the respondent to production submits that they have been unable to locate documents that are responsive to the orders or the application - Where orders for production are in the interests of justice - Where the applicant has identified legitimate forensic purpose.
Criminal Procedure Act 2009 (Vic) ss 274, 326A and 317.
Arico v The Queen (2021) 294 A Crim R 20; Commissioner for Railways v Small [1938] NSWStRp 29; Polimeni v The Queen [2022] VSCA 20; Arico v The Queen [2022] VSCA 35; Madafferi v The Queen [2021] VSCA 1; 287 A Crim R 380.
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 (Vic) - Where the respondent to production submits that the application has no legitimate forensic purpose - Where the respondent to production submits that the applicant impermissibly seeks to relitigate matters - Where orders for production are in the interests of justice - Where the applicant has identified limited legitimate 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 (Vic) - Where the respondent to production submits that the application has no legitimate forensic purpose - Where the respondent to production submits that the applicant impermissibly seeks to relitigate matters - Where orders for production are in the interests of justice - Where the applicant has identified limited legitimate forensic purpose.
Criminal Procedure Act 2009 (Vic), ss 274, 326A and 317.
Zirilli v The Queen [2021] VSCA 174; Polimeni v The Queen [2022] VSCA 20; Ragg v Magistrates' Court of Victoria [2008] VSC 1; (2008) 18 VR 300; Zirilli v The Queen (2021) 287 A Crim R 407; [2021] VSCA 2; State of Victoria (Department of Justice) v Lane [2012] VSC 328; Holloway v State of Victoria (Department of Justice) (2015) 73 MVR 145; [2015] VSC 526; Binse v The King [2025] VSCA 158.
CRIMINAL LAW - Appeal - Conviction - Applicant convicted by jury - Whether verdicts of guilty on charges were unreasonable - Identity fundamental issue in dispute - Voice recognition evidence supported by other evidence - Applicant's presence and opportunity to offend - Defence hypotheses excluded - Evidence in totality supports conviction - Application for an extension of time to file notice of application for leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Applicant convicted by jury - Whether verdicts of guilty on charges were unreasonable - Identity fundamental issue in dispute - Voice recognition evidence supported by other evidence - Applicant's presence and opportunity to offend - Defence hypotheses excluded - Evidence in totality supports conviction - Application for an extension of time to file notice of application for leave to appeal refused.
Evidence Act 2008, s 38; Criminal Procedure Act 2009, ss 274 and 276(1)(a).
Lynn v The King [2025] VSCA 315; M v The Queen (1994) 181 CLR 487; Nudd v The Queen (2006) 162 A Crim R 301; Pell v The Queen (2020) 268 CLR 123, considered.
CRIMINAL LAW - Appeal - Sentence - Total effective sentence of 1 year 8 months and non-parole period of 1 year and 1 month - Sexual assault of a child under 16 - Encouraging a child under 16 to engage in or be involved in sexual activity - Grave offending - Whether sentence manifestly excessive - Sentences very modest - No substance to application - Application for an extension of time to file notice of application for leave to appeal refused.
Criminal Procedure Act 2009, s 278.
Clarkson v The Queen (2011) 32 VR 361; Evans v R [2025] VSCA 248, considered.
CRIMINAL LAW - Application for leave to appeal against sentence - Applicant pleaded guilty to two charges of sexual assault of a child under 16 years, two charges of sexual penetration of a child under 16 years, and grooming for sexual conduct with a child under 16 years - Sentenced to total effective sentence of 3 years and 6 months' imprisonment with non-parole period of 23 months - Applicant and complainant worked together at bistro - Applicant sexually assaulted complainant in car after applicant and complainant finished shift together - Applicant diagnosed with Borderline Personality Disorder and Adjustment Disorder - Whether judge failed to take into account limb 2 of R v Verdins principles - Leave to appeal refused.
CRIMINAL LAW - Application for leave to appeal against sentence - Applicant pleaded guilty to two charges of sexual assault of a child under 16 years, two charges of sexual penetration of a child under 16 years, and grooming for sexual conduct with a child under 16 years - Sentenced to total effective sentence of 3 years and 6 months' imprisonment with non-parole period of 23 months - Applicant and complainant worked together at bistro - Applicant sexually assaulted complainant in car after applicant and complainant finished shift together - Applicant diagnosed with Borderline Personality Disorder and Adjustment Disorder - Whether judge failed to take into account limb 2 of R v Verdins principles - Leave to appeal refused.
CRIMINAL LAW - Application for leave to appeal against sentence - Whether total effective sentence and non-parole period manifestly excessive - Early pleas of guilty - Significant utilitarian value - Applicant had undertaken significant post-offence rehabilitation - Previous good character - No prior convictions - Ground of appeal sufficiently arguable - Leave to appeal granted.
Sentencing Act 1991, s 6B.
R v Verdins (2007) 16 VR 269; Clarkson v The Queen (2011) 32 VR 361; Bugmy v The Queen (2013) 249 CLR 571; Northe v The King [2024] VSCA 145 referred to.
CRIMINAL LAW - Appeal - Conviction - Applicant convicted by jury of rape and false imprisonment - Whether judge failed to properly direct jury on complainant's prior inconsistent statements for hearsay purpose - Whether judge should have given unreliable witness direction as to complainant's evidence - Whether jury verdicts of guilt unsafe and unsatisfactory - Hearsay evidence was not sought to be relied upon as proof of asserted facts - Applicant failed to seek unreliable witness direction - Complainant's credit exhaustively questioned before jury - Purported inconsistencies explicable or inconsequential - Complainant gave consistent evidence that she had said 'no' and 'stop' to penile penetration - Complainant's credit and reliability remained intact - Evidence in totality supports conviction - Compelling reasons not established - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Applicant convicted by jury of rape and false imprisonment - Whether judge failed to properly direct jury on complainant's prior inconsistent statements for hearsay purpose - Whether judge should have given unreliable witness direction as to complainant's evidence - Whether jury verdicts of guilt unsafe and unsatisfactory - Hearsay evidence was not sought to be relied upon as proof of asserted facts - Applicant failed to seek unreliable witness direction - Complainant's credit exhaustively questioned before jury - Purported inconsistencies explicable or inconsequential - Complainant gave consistent evidence that she had said 'no' and 'stop' to penile penetration - Complainant's credit and reliability remained intact - Evidence in totality supports conviction - Compelling reasons not established - Leave to appeal refused.
Evidence Act 2008, ss 59 and 60; Jury Directions Act 2015, ss 11, 12, 15, 16 and 32.
M v The Queen (1994) 181 CLR 487; R v ZT (2025) 281 CLR 137; R v Baden-Clay (2016) 258 CLR 308; Pell v The Queen (2020) 268 CLR 123, applied.
CRIMINAL LAW - Appeal - Sentence - Total effective sentence of 8 years and 6 months - Head sentence of 8 years' imprisonment for rape - Whether sentence manifestly excessive - Significant mitigation factors - No prior or subsequent convictions - Tertiary qualified and gainful employment - Very positive prospects of rehabilitation - Real prospect of deportation upon release - Substantial procedural delay - Leave to appeal allowed - Appeal granted - Resentenced to total effective sentence of 6 years and 3 months' imprisonment with non-parole period of 3 years and 9 months.
Crimes Act 1958, s 38(3); Sentencing Act 1991, ss 5(2)(ab) and 5A(1)(b).
Guden v The Queen (2010) 28 VR 288, considered.
CRIMINAL LAW - Appeal - Conviction - Applicant convicted of rape, intentionally causing injury, common assault (two charges), false imprisonment and burglary - Applicant sentenced to 12 years and 6 months' imprisonment - Juror communications - Juror asked tipstaff if jurors could attend applicant's sentencing hearing - Communication occurred shortly after applicant entered pleas of not guilty and judge had given summary of prosecution case to jury panel - Communication not disclosed to parties - Whether irregularity of trial process occurred by reason of parties not being informed of juror communication - Reasonable apprehension juror did not bring impartial mind - Serious departure from prescribed processes for trial - Substantial miscarriage of justice - Leave to appeal granted - Appeal allowed - Retrial ordered.
CRIMINAL LAW - Appeal - Conviction - Applicant convicted of rape, intentionally causing injury, common assault (two charges), false imprisonment and burglary - Applicant sentenced to 12 years and 6 months' imprisonment - Juror communications - Juror asked tipstaff if jurors could attend applicant's sentencing hearing - Communication occurred shortly after applicant entered pleas of not guilty and judge had given summary of prosecution case to jury panel - Communication not disclosed to parties - Whether irregularity of trial process occurred by reason of parties not being informed of juror communication - Reasonable apprehension juror did not bring impartial mind - Serious departure from prescribed processes for trial - Substantial miscarriage of justice - Leave to appeal granted - Appeal allowed - Retrial ordered.
Criminal Procedure Act 2009 (Vic), s 276; Jury Act 1995 (Qld), s 70; Juries Act 2000, s 32.
Farha v The Queen [2018] VSCA 310; R v Black (2007) 15 VR 551; Carson (a pseudonym) v The Queen [2019] VSCA 317; R v Gorman [1987] 1 WLR 545; Baini v The Queen (2012) 246 CLR 469; Awad v The Queen (2022) 275 CLR 421; HCF v The Queen (2023) 280 CLR 596, considered.
TRUSTS - Judicial advice - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 54.02 - Uncertainty as to ownership of units in unit trusts - Where trial and subsequent appeal left question of ownership unresolved - Court-appointed trustees seek judicial advice as to whether they are justified in their determination as to ownership of units - Claims to ownership not proved at trial - Differences between task of trial judge and task of trustees when making a determination - Role of court when providing judicial advice - Trustees acted in good faith having informed themselves and made inquiries of persons in the best position to provide information - Trustees justified in determining ownership of units in manner proposed - Scott v National Trust for Places of Historic Interest or Natural Beauty [1998] 2 All ER 705, Owies v JJE Nominees Pty Ltd [2022] VSCA 142, Telstra Super Pty Ltd v Flegeltaub (2000) 2 VR 276, Re Application of NSW Trustee & Guardian [2014] NSWSC 423 applied, Mr Landlord Pty Ltd v BigJ Enterprises Pty Ltd [2025] VSCA 146, Timeless Sunrise Pty Ltd v BigJ Enterprises Pty Ltd (No 10) [2023] VSC 524 referred to.
TRUSTS - Judicial advice - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 54.02 - Uncertainty as to ownership of units in unit trusts - Where trial and subsequent appeal left question of ownership unresolved - Court-appointed trustees seek judicial advice as to whether they are justified in their determination as to ownership of units - Claims to ownership not proved at trial - Differences between task of trial judge and task of trustees when making a determination - Role of court when providing judicial advice - Trustees acted in good faith having informed themselves and made inquiries of persons in the best position to provide information - Trustees justified in determining ownership of units in manner proposed - Scott v National Trust for Places of Historic Interest or Natural Beauty [1998] 2 All ER 705, Owies v JJE Nominees Pty Ltd [2022] VSCA 142, Telstra Super Pty Ltd v Flegeltaub (2000) 2 VR 276, Re Application of NSW Trustee & Guardian [2014] NSWSC 423 applied, Mr Landlord Pty Ltd v BigJ Enterprises Pty Ltd [2025] VSCA 146, Timeless Sunrise Pty Ltd v BigJ Enterprises Pty Ltd (No 10) [2023] VSC 524 referred to.
CORPORATIONS - Insolvency - Corporations Act 2001 (Cth) - ss 459A and 459P - Application for costs by defendant following dismissal of winding up application by exercise of discretion under s 467(1)(a) despite finding of presumption of insolvency under s 459C(2)(b).
CORPORATIONS - Insolvency - Corporations Act 2001 (Cth) - ss 459A and 459P - Application for costs by defendant following dismissal of winding up application by exercise of discretion under s 467(1)(a) despite finding of presumption of insolvency under s 459C(2)(b).
PRACTICE AND PROCEDURE - COSTS - Application for indemnity costs against plaintiff - Rejection of Calderbank offer and plaintiff's conduct of application considered - Order made for indemnity costs - Application for costs against sole director of plaintiff for costs incurred by defendant in connection with deregistration of plaintiff during period of deregistration - Order made for indemnity costs against director - Supporting creditor filed application for substitution as plaintiff following deregistration of plaintiff but discontinued application upon reinstatement of plaintiff - Supreme Court (General Civil Procedure Rules) 2025 (Vic) - r 63.15 - Supporting creditor ordered to pay defendant's costs associated with discontinuance of application for substitution on standard basis.
TAXATION - Land Tax - Whether land held by one trustee for two discretionary trusts be assessed on aggregate basis - Operation of land tax legislative regime and trust provisions - Whether land tax to be assessed on the whole of the land subject to the trust as if the land were only land owned by the trustee - Purported unit trust scheme - Purported fixed trust - Purported joint owners - Land Tax Act 2005, ss 3, 7-10, 18, 36, 38, 46A, 46C, 46F, 46G, 46J, sch 1 - CPT Custodian v Commissioner of State Revenue (2005) 224 CLR 98.
TAXATION - Land Tax - Whether land held by one trustee for two discretionary trusts be assessed on aggregate basis - Operation of land tax legislative regime and trust provisions - Whether land tax to be assessed on the whole of the land subject to the trust as if the land were only land owned by the trustee - Purported unit trust scheme - Purported fixed trust - Purported joint owners - Land Tax Act 2005, ss 3, 7-10, 18, 36, 38, 46A, 46C, 46F, 46G, 46J, sch 1 - CPT Custodian v Commissioner of State Revenue (2005) 224 CLR 98.
EQUITY - Trusts - Statutory construction and general law - Characterisation of legal and beneficial ownership of land held - Certainty of intention to create trust - Requirement for express trust - Person purported being trustee for themselves - Doctrine of merger - Creation of third trust - DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) (1982) 149 CLR 431 - Bankstown City Council v Alamdo Holdings Pty Ltd - Byrnes v Kendle (2011) 243 CLR 253 - Re Schebsman [1944] Ch 83 - Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62 - Federal Commissioner of Taxation v Linter Textiles Australia Ltd (in liq) (2005) 220 CLR 592 - Li v Ye [2025] NSWCA 227.
SECURITY FOR COSTS - Application by plaintiff for security of costs - Solicitor fee estimates - Broad-brush approach - Professional costs and disbursements - Rule 62.02 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Section 1335 of the Corporations Act 2001 (Cth) - Additional security - Global discount.
SECURITY FOR COSTS - Application by plaintiff for security of costs - Solicitor fee estimates - Broad-brush approach - Professional costs and disbursements - Rule 62.02 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Section 1335 of the Corporations Act 2001 (Cth) - Additional security - Global discount.
BANK GUARANTEE - Nature of bank guarantee - Ability to procure release of security for contract performance in form of bank guarantee in exchange for cash - Daewoo Shipbuilding & Marine Engineering Co Ltd v INPEX Operations Australia Pty Ltd (2022) 404 ALR 503 applied.
BANK GUARANTEE - Nature of bank guarantee - Ability to procure release of security for contract performance in form of bank guarantee in exchange for cash - Daewoo Shipbuilding & Marine Engineering Co Ltd v INPEX Operations Australia Pty Ltd (2022) 404 ALR 503 applied.
IMPLIED TERM - Issuer of bank guarantee may pay amount of guarantee to principal at any time whereupon its liability shall cease - No contractual restriction on contractor requesting or requiring issuer of bank guarantee to pay out guarantee to principal - Implied term that contractor permitted to pay principal amount of security in cash - Feeney v Southstar Homes Pty Ltd [2024] VSCA 153, BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 and Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 applied.
ARBITRATION - Arbitration agreement - Construction - Hybrid arbitration clause providing for arbitration to be 'conducted by the Resolution Institute in accordance with the ICC Rules of Arbitration' - Courts to endeavour to give effect to parties' intention to arbitrate - Workability of hybrid arbitration clauses - Hybrid arbitration presents practical difficulties - Discussion of hybrid arbitration clauses - Consideration of case law on hybrid arbitration clauses - Turns on own facts.
ARBITRATION - Arbitration agreement - Construction - Hybrid arbitration clause providing for arbitration to be 'conducted by the Resolution Institute in accordance with the ICC Rules of Arbitration' - Courts to endeavour to give effect to parties' intention to arbitrate - Workability of hybrid arbitration clauses - Hybrid arbitration presents practical difficulties - Discussion of hybrid arbitration clauses - Consideration of case law on hybrid arbitration clauses - Turns on own facts.
ARBITRATION - Jurisdiction of arbitral tribunal - Arbitrator tribunal entitled to apply Kompetenz-Kompetenz principle to determine their authority to arbitrate - Inappropriate for Court to determine issues properly before arbitral tribunal - Discussion of indicia of 'place of business' for purposes of s 1(3)(a) of the Commercial Arbitration Act 2011 (Vic) - Registration as foreign company for purposes of s 601CD of the Corporations Act 2001 (Cth) not indication per se that company has its place of business in Australia.
PRACTICE AND PROCEDURE - Order 42A - Subpoena objections - Subpoenas issued prior to filing of defence - Whether subpoenas premature - Whether subpoenas issued for a legitimate forensic purpose - Wawryk v Mercedes-Benz Australia/Pacific Pty Ltd (Subpoena Ruling) [2024] VSC 120 - Universal Press Pty Limited v Provest Limited [1989] FCA 402 - Volunteer Fire Brigades Victoria v CFA (discovery ruling) [2016] VSC 573 - HungryPanda AU Pty Ltd v Fantuan Australia Pty Ltd [2022] VSC 448 - Whether inspection should be deferred - Subpoenas allowed - Inspection not deferred.
PRACTICE AND PROCEDURE - Order 42A - Subpoena objections - Subpoenas issued prior to filing of defence - Whether subpoenas premature - Whether subpoenas issued for a legitimate forensic purpose - Wawryk v Mercedes-Benz Australia/Pacific Pty Ltd (Subpoena Ruling) [2024] VSC 120 - Universal Press Pty Limited v Provest Limited [1989] FCA 402 - Volunteer Fire Brigades Victoria v CFA (discovery ruling) [2016] VSC 573 - HungryPanda AU Pty Ltd v Fantuan Australia Pty Ltd [2022] VSC 448 - Whether inspection should be deferred - Subpoenas allowed - Inspection not deferred.
PRACTICE AND PROCEDURE - Ex parte freezing order - Whether there is an arguable case - Whether there is a risk of dissipation of assets - Good arguable case of misappropriation of funds established - Evidence supporting the good arguable case provides for an inference of risk of dissipation of assets as serious dishonesty is an element of that case - Risk of dissipation of assets established - Freezing order also sought against a non-party - Evidence supports there being a good arguable case that the non-party may be obliged to disgorge assets or contribute towards satisfying a judgment or prospective judgment - Supreme Court (General Civil Procedure) Rules 2025, order 37A - Rozenblit v Vainer [2019] VSCA 164 - Rasia Group v Crawford [2025] VSCA 310 - Re Memon Bros Pty Ltd [2025] VSC 47 - Zhen v Mo [2008] VSC 300 - Application granted.
PRACTICE AND PROCEDURE - Ex parte freezing order - Whether there is an arguable case - Whether there is a risk of dissipation of assets - Good arguable case of misappropriation of funds established - Evidence supporting the good arguable case provides for an inference of risk of dissipation of assets as serious dishonesty is an element of that case - Risk of dissipation of assets established - Freezing order also sought against a non-party - Evidence supports there being a good arguable case that the non-party may be obliged to disgorge assets or contribute towards satisfying a judgment or prospective judgment - Supreme Court (General Civil Procedure) Rules 2025, order 37A - Rozenblit v Vainer [2019] VSCA 164 - Rasia Group v Crawford [2025] VSCA 310 - Re Memon Bros Pty Ltd [2025] VSC 47 - Zhen v Mo [2008] VSC 300 - Application granted.
PRACTICE AND PROCEDURE - Leave to discontinue and cost consequences - Where defendant seeks costs on indemnity basis or from plaintiff - Where defendant says plaintiff acted unreasonably in commencing separate litigation seeking inconsistent relief - Special circumstances found - Supreme Court (General Civil Procedure) Rules 2025 (Vic) rr 25.05 and 63.15.
PRACTICE AND PROCEDURE - Leave to discontinue and cost consequences - Where defendant seeks costs on indemnity basis or from plaintiff - Where defendant says plaintiff acted unreasonably in commencing separate litigation seeking inconsistent relief - Special circumstances found - Supreme Court (General Civil Procedure) Rules 2025 (Vic) rr 25.05 and 63.15.
CORPORATIONS - Corporations Act 2001 (Cth) - Part 5.4 - Ulterior or collateral purpose in commencing winding up application - Removal and replacement of corporate trustee - Forced sale of properties in liquidation scenario - Abuse of process.
CONTRACT - Proceeding by bank to enforce loan agreement and mortgage - Whether defendant signed loan agreement or whether her signature was the product of forgery - Whether bank acted unconscionably in granting the loan - Held that defendant signed the loan agreement and bank did not act unconscionably - Loan agreement and mortgage able to be enforced.
CONTRACT - Proceeding by bank to enforce loan agreement and mortgage - Whether defendant signed loan agreement or whether her signature was the product of forgery - Whether bank acted unconscionably in granting the loan - Held that defendant signed the loan agreement and bank did not act unconscionably - Loan agreement and mortgage able to be enforced.
CONTRACT - Parties entered into deed to settle a dispute without there being litigation on foot - Defendants defaulted in performance of the deed - Whether plaintiffs are entitled to judgment in accordance with the terms of the deed - Whether court should imply a term into the deed in respect of payments allegedly already made being deducted from judgment amount - Held no basis for alleged implied term in this instance - BP Refinery v Hastings (1977) 180 CLR 266; Adaz Nominees Pty Ltd v Castleway Pty Ltd [2020] VSCA 201, applied.
CONTRACT - Parties entered into deed to settle a dispute without there being litigation on foot - Defendants defaulted in performance of the deed - Whether plaintiffs are entitled to judgment in accordance with the terms of the deed - Whether court should imply a term into the deed in respect of payments allegedly already made being deducted from judgment amount - Held no basis for alleged implied term in this instance - BP Refinery v Hastings (1977) 180 CLR 266; Adaz Nominees Pty Ltd v Castleway Pty Ltd [2020] VSCA 201, applied.
INTEREST - Whether Supreme Court Act 1983 (Vic), s 58(1) applies.
PRACTICE AND PROCEDURE - Whether fair to allow defendants to claim against second plaintiff where claim not previously articulated sufficiently to put second plaintiff on notice.
COSTS COURT - Costs orders against applicant - Applicant objected to respondent's bill of costs - Applicant objected to Cost Registrar's notice of estimate - Respondent's costs taxed - Judicial Registrar dismissed application for review of Cost Registrar's determination - Application for review of Judicial Registrar determination - Costs Judge dismissed application for review - Appeal of Costs Judge decision - Appeal dismissed.
COSTS COURT - Costs orders against applicant - Applicant objected to respondent's bill of costs - Applicant objected to Cost Registrar's notice of estimate - Respondent's costs taxed - Judicial Registrar dismissed application for review of Cost Registrar's determination - Application for review of Judicial Registrar determination - Costs Judge dismissed application for review - Appeal of Costs Judge decision - Appeal dismissed.
NEGLIGENCE - Crown leases granted without compliance with statutory notice requirement - Leases reduced areas where commercial abalone fishers could fish - Any loss suffered by abalone fishers pure economic loss - Whether public servants involved in grant of leases owed plaintiffs a duty of care - Salient features considered - Duty of care owed - Public servants breached duty - Causation of loss established - Damages calculated.
NEGLIGENCE - Crown leases granted without compliance with statutory notice requirement - Leases reduced areas where commercial abalone fishers could fish - Any loss suffered by abalone fishers pure economic loss - Whether public servants involved in grant of leases owed plaintiffs a duty of care - Salient features considered - Duty of care owed - Public servants breached duty - Causation of loss established - Damages calculated.
ESTOPPEL - Issue estoppel - Whether defendant precluded from denying fact determined in earlier proceeding - Defendant alleges fact not an ultimate issue in earlier proceeding - Fact not an ultimate issue at first instance but central to appeal - Defendant estopped.
ABUSE OF PROCESS - Whether defendant precluded from denying fact determined in earlier proceeding vis-à-vis plaintiffs who were not parties or privies to earlier proceeding - Risk of inconsistent findings - Contrary to the timely and efficient administration of justice - Defendant precluded from denying fact determined in earlier proceedings.
ESTOPPEL - Anshun estoppel - Whether the plaintiffs precluded from bringing their claims by an Anshun estoppel - Not unreasonable for plaintiffs not to bring negligence claim in earlier proceedings - Plaintiffs not precluded from bringing their claims.
COSTS - ADMINISTRATION AND PROBATE - Costs dispute between children of deceased following determinations of application for judicial advice by limited administrator of estate and of application for recovery of possession of estate property - Litigation in substance an adversarial dispute between potential beneficiaries - Costs follow the event - Indemnity costs - No issue of principle.
COSTS - ADMINISTRATION AND PROBATE - Costs dispute between children of deceased following determinations of application for judicial advice by limited administrator of estate and of application for recovery of possession of estate property - Litigation in substance an adversarial dispute between potential beneficiaries - Costs follow the event - Indemnity costs - No issue of principle.
ADMINISTRATIVE LAW - Judicial review - Application for review of two decisions of Victorian Racing Tribunal (Tribunal) - Suspension of training license - Horse presented to race with prohibited substance detected - Whether Tribunal failed to afford procedural fairness in determining liability - No denial of procedural fairness or bias demonstrated - Alleged errors of law in construing and applying requirements of Racing Act 1958 (Vic) and Rules of Racing of Racing Victoria - Whether testing methods for therapeutic substance fit for purpose - Whether Tribunal failed to properly consider expert evidence - No error of law disclosed - Alleged failure of Tribunal to consider trainer's relative culpability in determining appropriate penalty - No error in exercise of Tribunal's discretion on penalty - Appeal dismissed.
ADMINISTRATIVE LAW - Judicial review - Application for review of two decisions of Victorian Racing Tribunal (Tribunal) - Suspension of training license - Horse presented to race with prohibited substance detected - Whether Tribunal failed to afford procedural fairness in determining liability - No denial of procedural fairness or bias demonstrated - Alleged errors of law in construing and applying requirements of Racing Act 1958 (Vic) and Rules of Racing of Racing Victoria - Whether testing methods for therapeutic substance fit for purpose - Whether Tribunal failed to properly consider expert evidence - No error of law disclosed - Alleged failure of Tribunal to consider trainer's relative culpability in determining appropriate penalty - No error in exercise of Tribunal's discretion on penalty - Appeal dismissed.
ADMINISTRATIVE LAW - Judicial review - Determination by a medical panel of a medical question - Whether medical panel failed to consider a mandatory relevant consideration - Whether merits review - Whether reasons of a medical panel may assist a court to determine whether a relevant consideration was taken into account - Edwards v Victoria [2021] VSC 423 - Victorian Workcover Authority v Putrus [2023] VSCA 28 - Victorian Workcover Authority v Jamali [2023] VSCA 240 - Wrongs Act 1958 (Vic), Part VBA.
ADMINISTRATIVE LAW - Judicial review - Determination by a medical panel of a medical question - Whether medical panel failed to consider a mandatory relevant consideration - Whether merits review - Whether reasons of a medical panel may assist a court to determine whether a relevant consideration was taken into account - Edwards v Victoria [2021] VSC 423 - Victorian Workcover Authority v Putrus [2023] VSCA 28 - Victorian Workcover Authority v Jamali [2023] VSCA 240 - Wrongs Act 1958 (Vic), Part VBA.
ADMINISTRATIVE LAW - Judicial review - Determination of a referred medical question by a medical panel - Assessment of degree on impairment under Part VBA of the Wrongs Act 1958 (Vic) (the 'Act') - Where the determination was the degree of impairment did not satisfy the 'threshold level' for a 'significant' injury' under Part VBA of the Act - Medical negligence - Where allegation that wrongful surgery was the relevant 'injury' - Jurisdictional error - Whether failure to identify correct injury - Consequential error in the application of the AMA Guides - Relevant considerations - Whether material error - Medical Panel failed to discharge statutory function - Certiorari - Remittal to differently constituted medical panel.
ADMINISTRATIVE LAW - Judicial review - Determination of a referred medical question by a medical panel - Assessment of degree on impairment under Part VBA of the Wrongs Act 1958 (Vic) (the 'Act') - Where the determination was the degree of impairment did not satisfy the 'threshold level' for a 'significant' injury' under Part VBA of the Act - Medical negligence - Where allegation that wrongful surgery was the relevant 'injury' - Jurisdictional error - Whether failure to identify correct injury - Consequential error in the application of the AMA Guides - Relevant considerations - Whether material error - Medical Panel failed to discharge statutory function - Certiorari - Remittal to differently constituted medical panel.
Wrongs Act 1958 (Vic) ss 28LB, 28LE, 28LH, 28LN, 28LWE, 28LZG(1), 28LZG(2) - Chua v Lowthian [2011] VSC 468, Chang v Neill [2019] VSCA 151, Latchford v Gibbons [2021] VSC 229, Summers v Director of Housing & Ors [2012] VSC 395, Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, Victorian WorkCover Authority v Putrus [2023] VSCA 28 referred to.
EVIDENCE - Expert evidence - Hearsay - Admissibility of defendant's expert valuation report tendered by plaintiff without examination of expert - Application by plaintiff to limit scope or use of report under s 136 of the Evidence Act 2008 (Vic) - Discretion not exercised - Report admitted without limitation.
EVIDENCE - Expert evidence - Hearsay - Admissibility of defendant's expert valuation report tendered by plaintiff without examination of expert - Application by plaintiff to limit scope or use of report under s 136 of the Evidence Act 2008 (Vic) - Discretion not exercised - Report admitted without limitation.
DISCOVERY - Privilege - Whether pleading defence on the basis of Deed of Release as bar to current proceeding amounts to waiver of client legal privilege - Application of principles of discovery and client legal privilege - DZY (a pseudonym) v Trustees of the Christian Brothers (2025) 422 ALR 372 - Foley v The Roman Catholic Trusts Corporation for the Diocese of Sale (unreported ruling delivered 17 June 2022) - Civil Procedure Act 2010 (Vic) s 55 - Supreme Court (General Civil Procedure) Rules 2025 (Vic) Order 29 - Evidence Act 2008 (Vic) ss 119, 122 - Limitation of Actions Act 1958 (Vic) ss 27QD and QE.
DISCOVERY - Privilege - Whether pleading defence on the basis of Deed of Release as bar to current proceeding amounts to waiver of client legal privilege - Application of principles of discovery and client legal privilege - DZY (a pseudonym) v Trustees of the Christian Brothers (2025) 422 ALR 372 - Foley v The Roman Catholic Trusts Corporation for the Diocese of Sale (unreported ruling delivered 17 June 2022) - Civil Procedure Act 2010 (Vic) s 55 - Supreme Court (General Civil Procedure) Rules 2025 (Vic) Order 29 - Evidence Act 2008 (Vic) ss 119, 122 - Limitation of Actions Act 1958 (Vic) ss 27QD and QE.
PRACTICE AND PROCEDURE - Security for costs - Whether there is a risk that the law practice may be unable to pay an adverse costs order - Whether law practice has sufficient assets in the jurisdiction - Law practice's assets to meet an adverse costs order located outside of the jurisdiction - Security for costs required to cover enforcement costs in other jurisdiction - PS Chellaram & Co Ltd v China Ocean Shipping Co (1991) 65 ALJR 642; Energy Drilling Inc v Petroz NL [1989] ATPR 40-954; Trailer Trash Franchise Systems Pty Ltd v GM Fascia & Gutter Pty Ltd [2017] VSCA 293; Nathan v Macquarie Leasing Pty Ltd [2024] VSC 794, considered.
PRACTICE AND PROCEDURE - Security for costs - Whether there is a risk that the law practice may be unable to pay an adverse costs order - Whether law practice has sufficient assets in the jurisdiction - Law practice's assets to meet an adverse costs order located outside of the jurisdiction - Security for costs required to cover enforcement costs in other jurisdiction - PS Chellaram & Co Ltd v China Ocean Shipping Co (1991) 65 ALJR 642; Energy Drilling Inc v Petroz NL [1989] ATPR 40-954; Trailer Trash Franchise Systems Pty Ltd v GM Fascia & Gutter Pty Ltd [2017] VSCA 293; Nathan v Macquarie Leasing Pty Ltd [2024] VSC 794, considered.
PRACTICE AND PROCEDURE - Application to vacate trial date - Unavailability of trial counsel - Right to a fair trial and procedural fairness - Case management considerations, including judicial and administrative resources - Civil Procedure Act 2010 ss 7, 8, 9, 16-26.
PRACTICE AND PROCEDURE - Application to vacate trial date - Unavailability of trial counsel - Right to a fair trial and procedural fairness - Case management considerations, including judicial and administrative resources - Civil Procedure Act 2010 ss 7, 8, 9, 16-26.
PRACTICE AND PROCEDURE - Application for judgment where no appearance under r 45.03 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) ('Rules') - Whether application for judgment in default of appearance under Order 21 of the Rules appropriate -Order 21 not appropriate where proceeding commenced by originating motion and continued as if commenced by writ under r 4.07 of the Rules - Loan agreements between plaintiff and multiple parties - Where proceedings settled between plaintiff and other parties except the first and third defendants - Where third defendant appeared in the proceeding - Where third defendant self-represented with limited knowledge of English - Where circumstances of the proceeding may have been misrepresented to third defendant - Where defendant alleges serious misconduct of other parties including a party previously a part of the proceeding - Where other parties denied opportunity to respond - Application dismissed.
PRACTICE AND PROCEDURE - Application for judgment where no appearance under r 45.03 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) ('Rules') - Whether application for judgment in default of appearance under Order 21 of the Rules appropriate -Order 21 not appropriate where proceeding commenced by originating motion and continued as if commenced by writ under r 4.07 of the Rules - Loan agreements between plaintiff and multiple parties - Where proceedings settled between plaintiff and other parties except the first and third defendants - Where third defendant appeared in the proceeding - Where third defendant self-represented with limited knowledge of English - Where circumstances of the proceeding may have been misrepresented to third defendant - Where defendant alleges serious misconduct of other parties including a party previously a part of the proceeding - Where other parties denied opportunity to respond - Application dismissed.
PRACTICE AND PROCEDURE - Application to set aside subpoenas - Where subpoenas issued to other parties including a former party in the proceeding - Abuse of process - Where evidence could be subject of future litigation - Subpoenas set aside.
PRACTICE AND PROCEDURE - Abuse of process - Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) ('Rules') - No validly appointed directors of the applicant company who could have caused it to commence this proceeding - Proceeding dismissed.
PRACTICE AND PROCEDURE - Abuse of process - Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) ('Rules') - No validly appointed directors of the applicant company who could have caused it to commence this proceeding - Proceeding dismissed.
CORPORATIONS - Bankruptcy of director - Corporations Act 2001 (Cth) ss 201M(1), 206B(3), 206A, 201B(2), 9AC(1)(b) - Bankruptcy Act 1966 (Cth) s 58.
PRACTICE AND PROCEDURE - Court's inherent jurisdiction to restrain its officers from acting in a proceeding - Where single firm represents both defendants - Whether a reasonably informed member of the public would conclude that solicitors should be prevented from acting for both defendants - Whether a real and immediate risk to the integrity of the judicial process and administration of justice - Where plaintiff advances a claim of negligence and a claim of conspiracy by unlawful means between the defendants - Where an assessment of whether the defendants have engaged in a fraudulent common enterprise is required - Where allegations raise the influence of the mother-daughter relationship between the defendants - Allegations of a quasi-criminal nature - Risk to integrity of evidence - Solicitors continuing to act for both defendants poses a real risk to the integrity of the judicial process and the administration of justice - Solicitors restrained from acting - Kallinicos v Hunt [2005] 64 NSWLR 561 - Miller v Martin [2019] VSCA 86 - R v Pham [2017] QCA 43 - Summary Offences Act 1966, s 53.
PRACTICE AND PROCEDURE - Court's inherent jurisdiction to restrain its officers from acting in a proceeding - Where single firm represents both defendants - Whether a reasonably informed member of the public would conclude that solicitors should be prevented from acting for both defendants - Whether a real and immediate risk to the integrity of the judicial process and administration of justice - Where plaintiff advances a claim of negligence and a claim of conspiracy by unlawful means between the defendants - Where an assessment of whether the defendants have engaged in a fraudulent common enterprise is required - Where allegations raise the influence of the mother-daughter relationship between the defendants - Allegations of a quasi-criminal nature - Risk to integrity of evidence - Solicitors continuing to act for both defendants poses a real risk to the integrity of the judicial process and the administration of justice - Solicitors restrained from acting - Kallinicos v Hunt [2005] 64 NSWLR 561 - Miller v Martin [2019] VSCA 86 - R v Pham [2017] QCA 43 - Summary Offences Act 1966, s 53.
PRACTICE AND PROCEDURE - Application to adjourn to join new defendants on the eve of trial - Application would necessitate adjournment - Explanation for late strategic change not adequate - Civil Procedure Act 2010 (Vic) - Broadhead v Reliable Discount Movers Pty Ltd [2026] VSC 43.
PRACTICE AND PROCEDURE - Application to adjourn to join new defendants on the eve of trial - Application would necessitate adjournment - Explanation for late strategic change not adequate - Civil Procedure Act 2010 (Vic) - Broadhead v Reliable Discount Movers Pty Ltd [2026] VSC 43.
PRACTICE AND PROCEDURE - Summary judgment - Application under s 63 of the Civil Procedure Act 2010 (Vic) - Whether no real prospect of success - Where applicant identified no legal error - Where applicant's claim was misconceived - Application granted.
PRACTICE AND PROCEDURE - Summary judgment - Application under s 63 of the Civil Procedure Act 2010 (Vic) - Whether no real prospect of success - Where applicant identified no legal error - Where applicant's claim was misconceived - Application granted.
PRACTICE AND PROCEDURE - Extended litigation restraint orders - Application under s 17 of the Vexatious Proceedings Act 2014 (Vic) - Where leave to apply not sought under s 16 - Granting application constituting extreme remedy - Whether the applicant's commencement of proceedings is habitual and persistent - Number of proceedings commenced not rising to required level of frequency - Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 and LL v MM [2019] VSC 174 considered - Application refused.
PRACTICE AND PROCEDURE - Application by defendants to amend defence and adjourn trial date.
PRACTICE AND PROCEDURE - Application by defendants to amend defence and adjourn trial date.
COSTS - Foreign lawyers retained by a party and non-party to provide legal services in respect of defamation proceedings by and against the party in Victoria - Local lawyers also retained as solicitors on the record - Foreign lawyers' fees claimed as disbursement in local lawyers' bill of costs - Whether foreign lawyers' fees are recoverable as a disbursement in bill of costs - Whether indemnity principle applies - Whether party liable for foreign lawyers' fees - Whether non-party is a 'real party' in the proceedings - Dyktynski v BHP Titanium Minerals Pty Ltd (2004) 60 NSWLR 203 considered and applied - Whether foreign lawyers' fees are for 'legal services' - Cornall v Nagle [1995] 2 VR 188 - Whether foreign lawyers' fees are unrecoverable under ss 10 and 69 of the Legal Profession Uniform Law 2014 ('LPUL') - Santos Lt v Delhi Petroleum Ltd (2005) 240 LSJS 366 considered. Held: Foreign lawyers were principals, not agents - Party not liable under terms of retainer for foreign lawyers' fees - Foreign lawyers' fees not recoverable under indemnity principle or as a 'real party' - Foreign lawyers' fees not otherwise recoverable by reason of provisions of the LPUL except to the extent that they come within statutory exceptions.
COSTS - Foreign lawyers retained by a party and non-party to provide legal services in respect of defamation proceedings by and against the party in Victoria - Local lawyers also retained as solicitors on the record - Foreign lawyers' fees claimed as disbursement in local lawyers' bill of costs - Whether foreign lawyers' fees are recoverable as a disbursement in bill of costs - Whether indemnity principle applies - Whether party liable for foreign lawyers' fees - Whether non-party is a 'real party' in the proceedings - Dyktynski v BHP Titanium Minerals Pty Ltd (2004) 60 NSWLR 203 considered and applied - Whether foreign lawyers' fees are for 'legal services' - Cornall v Nagle [1995] 2 VR 188 - Whether foreign lawyers' fees are unrecoverable under ss 10 and 69 of the Legal Profession Uniform Law 2014 ('LPUL') - Santos Lt v Delhi Petroleum Ltd (2005) 240 LSJS 366 considered. Held: Foreign lawyers were principals, not agents - Party not liable under terms of retainer for foreign lawyers' fees - Foreign lawyers' fees not recoverable under indemnity principle or as a 'real party' - Foreign lawyers' fees not otherwise recoverable by reason of provisions of the LPUL except to the extent that they come within statutory exceptions.
CRIMINAL LAW - Two accused (JK and TW) jointly charged with manslaughter of AA - Application for separate trial by JK - AA died as a result of blunt force trauma to head - On Crown case, both accused assaulted AA, causing death - Each accused alleged to be liable directly or in statutory complicity - In conversation with covert operative, TW exculpates himself but implicates JK in assaults on AA - TW's conversation admissible in his trial but inadmissible in trial of JK - Whether TW's conversation impermissibly tends to bolster evidence of key witnesses SS and KY as against JK - Whether weak case against JK - Whether jury directions capable of curing prejudice to JK's fair trial - Whether unacceptable risk jury directions unable to be followed or might not be properly applied by jury - Notwithstanding usual reasons favouring joint trial, risk of miscarriage of justice too great to maintain joint trial - Separate trial ordered - Criminal Procedure Act 2009 (Vic), s 193; R v Iaria [2004] VSC 110; Young & Ors v The Queen [2015] VSCA 265.
CRIMINAL LAW - Two accused (JK and TW) jointly charged with manslaughter of AA - Application for separate trial by JK - AA died as a result of blunt force trauma to head - On Crown case, both accused assaulted AA, causing death - Each accused alleged to be liable directly or in statutory complicity - In conversation with covert operative, TW exculpates himself but implicates JK in assaults on AA - TW's conversation admissible in his trial but inadmissible in trial of JK - Whether TW's conversation impermissibly tends to bolster evidence of key witnesses SS and KY as against JK - Whether weak case against JK - Whether jury directions capable of curing prejudice to JK's fair trial - Whether unacceptable risk jury directions unable to be followed or might not be properly applied by jury - Notwithstanding usual reasons favouring joint trial, risk of miscarriage of justice too great to maintain joint trial - Separate trial ordered - Criminal Procedure Act 2009 (Vic), s 193; R v Iaria [2004] VSC 110; Young & Ors v The Queen [2015] VSCA 265.
CRIMINAL LAW - Review of non-custodial supervision order ("NCSO") - Whether NSCO should be revoked - In 2016, KL, in grips of undiagnosed delusional disorder, stabbed and killed neighbour, GH - In 2017, at consent mental impairment hearing, KL found not guilty of murder because of mental impairment - KL placed on custodial supervision order ("CSO"), and committed to Thomas Embling Hospital - In April 2023 and again in March 2024, KL granted extended leave for 12 months - In October 2024, CSO varied to NCSO - Two psychiatrists recommend revocation of NCSO - KL's illness in remission for several years - KL presents only low risk to community - NCSO of little utility given KL's stable mental state, excellent insight, and low risk profile - If NCSO revoked, any deterioration in mental health could be managed adequately by family support, supervision of GP and psychologist, and, if necessary, under Mental Health Act 2022 (Vic) - Secretary to Department of Health and KL submit NCSO should be revoked - Attorney-General submits NCSO should be confirmed - GH's mother (implicitly) opposes revocation of NCSO - Statutory test satisfied on evidence - NCSO revoked - Non-publication order made - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 31, 33, 38C, 39, 40, 42, & 75.
CRIMINAL LAW - Review of non-custodial supervision order ("NCSO") - Whether NSCO should be revoked - In 2016, KL, in grips of undiagnosed delusional disorder, stabbed and killed neighbour, GH - In 2017, at consent mental impairment hearing, KL found not guilty of murder because of mental impairment - KL placed on custodial supervision order ("CSO"), and committed to Thomas Embling Hospital - In April 2023 and again in March 2024, KL granted extended leave for 12 months - In October 2024, CSO varied to NCSO - Two psychiatrists recommend revocation of NCSO - KL's illness in remission for several years - KL presents only low risk to community - NCSO of little utility given KL's stable mental state, excellent insight, and low risk profile - If NCSO revoked, any deterioration in mental health could be managed adequately by family support, supervision of GP and psychologist, and, if necessary, under Mental Health Act 2022 (Vic) - Secretary to Department of Health and KL submit NCSO should be revoked - Attorney-General submits NCSO should be confirmed - GH's mother (implicitly) opposes revocation of NCSO - Statutory test satisfied on evidence - NCSO revoked - Non-publication order made - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 31, 33, 38C, 39, 40, 42, & 75.
INSURANCE - DAMAGES - Whether amount offered by way of indemnity under a policy of insurance sufficient to cover repairs and associated losses caused by fire damage - Date from which it was unreasonable for insurer to have withheld payment on the claim - Application of Insurance Contracts Act 1984 (Cth), s57 - Whether consequential damages claimed for loss of hypothetical rent recoverable.
INSURANCE - DAMAGES - Whether amount offered by way of indemnity under a policy of insurance sufficient to cover repairs and associated losses caused by fire damage - Date from which it was unreasonable for insurer to have withheld payment on the claim - Application of Insurance Contracts Act 1984 (Cth), s57 - Whether consequential damages claimed for loss of hypothetical rent recoverable.
CONTRACTS - AUTHORITY - Contract for sale of land - Company as registered proprietor - Significant lapse of time with no settlement - Where contract of sale executed by unlawfully appointed director - Whether that person had implied actual authority or ostensible authority - Conduct of true director - Whether true director otherwise acquiesced - Whether relief of specific performance is impossible - Doctrine of laches - Whether alternative claim for damages is time-barred.
CONTRACTS - AUTHORITY - Contract for sale of land - Company as registered proprietor - Significant lapse of time with no settlement - Where contract of sale executed by unlawfully appointed director - Whether that person had implied actual authority or ostensible authority - Conduct of true director - Whether true director otherwise acquiesced - Whether relief of specific performance is impossible - Doctrine of laches - Whether alternative claim for damages is time-barred.
MEDICAL NEGLIGENCE - Total hip replacement - Post-operative physiotherapy - Services provided by seventh defendant - Payment for services by private health insurer disputed by plaintiff - Summary dismissal.
MEDICAL NEGLIGENCE - Total hip replacement - Post-operative physiotherapy - Services provided by seventh defendant - Payment for services by private health insurer disputed by plaintiff - Summary dismissal.
TESTATOR'S FAMILY MAINTENANCE - Application for further provision from estate - Terms of settlement entered - Final orders made by consent - Default - Reinstatement of proceeding.
TESTATOR'S FAMILY MAINTENANCE - Application for further provision from estate - Terms of settlement entered - Final orders made by consent - Default - Reinstatement of proceeding.
WORKERS COMPENSATION - Truck-driver injured in Victoria - Whether employment connected with State of Victoria - Whether entitlement to compensation - Workplace Injury Rehabilitation and Compensation Act 2013 (VIC), ss 37, 314.
WORKERS COMPENSATION - Truck-driver injured in Victoria - Whether employment connected with State of Victoria - Whether entitlement to compensation - Workplace Injury Rehabilitation and Compensation Act 2013 (VIC), ss 37, 314.