CRIMINAL LAW - Appeal against sentence - Appellant pleaded guilty to sexual penetration of step-child (charges 2, 3, 4 and 5), procuring sexual act by threat (charge 1), and possession of cannabis (charge 6) - Total effective sentence of 11 years' imprisonment - Non-parole period of 7 years - Whether sentencing judge erred in considering non-use of condom during charge 4 offending as aggravating factor - Whether error materially affected sentence imposed on charge 4 - Whether different sentence should be imposed - Existence of other aggravating factors - Appeal dismissed.
CRIMINAL LAW - Appeal against sentence - Appellant pleaded guilty to sexual penetration of step-child (charges 2, 3, 4 and 5), procuring sexual act by threat (charge 1), and possession of cannabis (charge 6) - Total effective sentence of 11 years' imprisonment - Non-parole period of 7 years - Whether sentencing judge erred in considering non-use of condom during charge 4 offending as aggravating factor - Whether error materially affected sentence imposed on charge 4 - Whether different sentence should be imposed - Existence of other aggravating factors - Appeal dismissed.
Criminal Procedure Act 2009, ss 278, 281, 315(2).
Gillespie (a pseudonym) v The Queen [2018] VSCA 151; R v Fox [2003] VSCA 138, applied.
CRIMINAL LAW - Application for leave to appeal against conviction - Where applicant acquitted on one count of obtaining financial advantage by deception and convicted on 12 other counts of the same offence - Whether jury verdicts unreasonable or inconsistent - Rational path of reasoning open to jury - Verdicts not inconsistent - Leave to appeal refused.
CRIMINAL LAW - Application for leave to appeal against conviction - Where applicant acquitted on one count of obtaining financial advantage by deception and convicted on 12 other counts of the same offence - Whether jury verdicts unreasonable or inconsistent - Rational path of reasoning open to jury - Verdicts not inconsistent - Leave to appeal refused.
MacKenzie v The Queen (1996) 190 CLR 348, applied.
PRACTICE AND PROCEDURE - Interlocutory appeal - Second to fourth applicants joined as defendants in the proceeding - Respondent ordered to file and serve amended writ and second further amended statement of claim - Whether claims against second to fourth applicants were improperly pleaded - Respondent provided further particulars of knowledge - Any dispute about adequacy of particulars a matter for case management in Trial Division - No substantial injustice - Leave to appeal refused.
PRACTICE AND PROCEDURE - Interlocutory appeal - Second to fourth applicants joined as defendants in the proceeding - Respondent ordered to file and serve amended writ and second further amended statement of claim - Whether claims against second to fourth applicants were improperly pleaded - Respondent provided further particulars of knowledge - Any dispute about adequacy of particulars a matter for case management in Trial Division - No substantial injustice - Leave to appeal refused.
Supreme Court (General Civil Procedure) Rules 2025, r 13.10(3).
Fei v Hexin Pty Ltd (2024) 75 VR 581, applied.
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; Daebo Shipping Company Ltd v The Ship Go Star (2012) 207 FCR 220; Harstedt Pty Ltd v Tomanek (2018) 55 VR 158; Lin v Chu (2025) 312 FCR 1; Pittmore Pty Ltd v Chan (2020) 104 NSWLR 62; Ristevski v Kyriacou (Supreme Court of Victoria, Harper J, 5 August 1997); Re Annesley Plant Hire Pty Ltd (No 2) [2014] VSC 350; Selak v National Tiles Co Pty Ltd (No 4) [2024] VSC 438, considered.
PRACTICE AND PROCEDURE - Discovery - Appeal from interlocutory decision to refuse discovery - Whether documents sought to be discovered are relevant - Relevance for the purpose of discovery to be tested by reference to issues raised on the pleadings - Documents relevant only to credit not discoverable - Documents of peripheral relevance at best - Leave to appeal - Appellate restraint where interlocutory decision on matter of practice and procedure involving discretion - Whether refusal of discovery order would cause substantial injustice - Where prior opportunities to seek discovery or disclosure of same documents unsuccessful and no new circumstances - Where trial imminent - Leave to appeal refused.
PRACTICE AND PROCEDURE - Discovery - Appeal from interlocutory decision to refuse discovery - Whether documents sought to be discovered are relevant - Relevance for the purpose of discovery to be tested by reference to issues raised on the pleadings - Documents relevant only to credit not discoverable - Documents of peripheral relevance at best - Leave to appeal - Appellate restraint where interlocutory decision on matter of practice and procedure involving discretion - Whether refusal of discovery order would cause substantial injustice - Where prior opportunities to seek discovery or disclosure of same documents unsuccessful and no new circumstances - Where trial imminent - Leave to appeal refused.
House v The King (1936) 55 CLR 499; Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission (2007) 161 FCR 122; Qu v Wilks [2023] VSCA 198; Molonglo Group (Australia) Pty Ltd v Cahill [2018] VSCA 147, applied.
Agnello v Heritage Care Pty Ltd [No 2] (2023) 72 VR 143; Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (A Firm) [No 3] (2018) 357 ALR 695; Beecham Group Ltd v Bristol-Myers Co [1979] VR 273; Bashour v Australia and New Zealand Banking Group Pty Ltd [2022] VSC 252, discussed.
Supreme Court (General Civil Procedure) Rules 2025, rr 29.08, 29.11; Supreme Court Act 1986, s 14C; Civil Procedure Act 2010, ss 7, 8, 26; Evidence Act 2008, s 55(2)(a); Surveillance Devices Act 1999, s 11; Criminal Procedure Act 2009, s 7(1).
COSTS - Application for leave to appeal refused - Respondent sought indemnity costs based on Calderbank letter sent to applicant before hearing - Letter contained 'global' offer inclusive of judgment sum, interest and costs of trial and leave application - Whether respondent established applicant's refusal of offer unreasonable - Refusal not unreasonable as 'global' offer did not identify or allow identification of the relevant discount or compromise involved - Indemnity costs on basis of Calderbank letter refused.
COSTS - Application for leave to appeal refused - Respondent sought indemnity costs based on Calderbank letter sent to applicant before hearing - Letter contained 'global' offer inclusive of judgment sum, interest and costs of trial and leave application - Whether respondent established applicant's refusal of offer unreasonable - Refusal not unreasonable as 'global' offer did not identify or allow identification of the relevant discount or compromise involved - Indemnity costs on basis of Calderbank letter refused.
Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority [No 2] (2005) 13 VR 435; Marriner v Australian Super Developments Pty Ltd [2016] VSCA 141; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2006] NSWSC 583, applied.
COSTS - Application for leave to appeal refused - Respondent sought indemnity costs on basis that properly advised the applicant should have known the proposed grounds of appeal had no reasonable prospects of success - Proposed grounds raised arguments not made at trial and/or were contrary to the position adopted at trial - Well-established principle that issues cannot be raised for the first time on appeal save in exceptional circumstances - No exceptional circumstances asserted by applicant - Indemnity costs ordered from 7 days after respondent's written case filed.
Macedon Ranges Shire Council v Thompson (2009) 170 LGERA 41, applied.
COSTS - Costs of appeal - Application for leave to appeal challenging decision refusing appellant's claim - Leave granted to amend application to seek a new trial due to inadequate discovery at trial - Respondent opposed leave to appeal but conceded failure to make adequate discovery - Shortly before hearing, respondent conceded new trial should be ordered, offering to pay standard costs of appeal and that costs of first trial be reserved to remitter judge - Whether indemnity costs should be ordered for all or any part of the appeal - Whether respondent should have conceded to need for new trial earlier - Absence of explanation for not doing so - Admitted failure to make discovery and absence of explanation for not making discovery - Documents not discovered in this proceeding discovered by respondent in other proceedings - Respondent failed to consent to use of those documents in this proceeding without appellant issuing Harman applications - Indemnity costs order for part of the appeal.
COSTS - Costs of appeal - Application for leave to appeal challenging decision refusing appellant's claim - Leave granted to amend application to seek a new trial due to inadequate discovery at trial - Respondent opposed leave to appeal but conceded failure to make adequate discovery - Shortly before hearing, respondent conceded new trial should be ordered, offering to pay standard costs of appeal and that costs of first trial be reserved to remitter judge - Whether indemnity costs should be ordered for all or any part of the appeal - Whether respondent should have conceded to need for new trial earlier - Absence of explanation for not doing so - Admitted failure to make discovery and absence of explanation for not making discovery - Documents not discovered in this proceeding discovered by respondent in other proceedings - Respondent failed to consent to use of those documents in this proceeding without appellant issuing Harman applications - Indemnity costs order for part of the appeal.
COSTS - Costs of first trial in light of conceded need for new trial due to admitted and unexplained failure of discovery - Whether appellant entitled to costs of first trial on indemnity basis - Relevance of offer of compromise made before first trial - Indemnity costs ordered.
CROSS-VESTING - Jurisdiction - Application by plaintiff to remove a proceeding in the County Court of Victoria to the Supreme Court of Victoria and then to transfer a proceeding to the Supreme Court of Western Australia - Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) s 8 - Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) s 5(2) - Relevant factors - Connection with Western Australia - Interests of justice - Transfer order sought by consent of all parties - Location of witnesses - Choice of law clause in marketing agreement - Law covering the transaction - Place of business - Cost, expense and inconvenience - Cross-vesting general principles.
CROSS-VESTING - Jurisdiction - Application by plaintiff to remove a proceeding in the County Court of Victoria to the Supreme Court of Victoria and then to transfer a proceeding to the Supreme Court of Western Australia - Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) s 8 - Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) s 5(2) - Relevant factors - Connection with Western Australia - Interests of justice - Transfer order sought by consent of all parties - Location of witnesses - Choice of law clause in marketing agreement - Law covering the transaction - Place of business - Cost, expense and inconvenience - Cross-vesting general principles.
PRACTICE AND PROCEDURE - Jurisdiction - Application by plaintiff to remove a proceeding in the County Court of Victoria to the Supreme Court of Victoria and then to transfer a proceeding to the Supreme Court of Western Australia - Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) s 8 - Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) s 5(2) - Relevant factors - Connection with Western Australia - Interests of justice - Transfer order sought by consent of all parties - Location of witnesses - Choice of law clause in marketing agreement - Law covering the transaction - Place of business - Cost, expense and inconvenience - Cross-vesting general principles.
CORPORATIONS - Insolvency - Winding up - Corporations Act 2001 (Cth) - pt 5.4B - s 482 - Application by company's shareholder and director for order staying or terminating winding up - Where company balance sheet insolvent - Where company cash flow positive - Where company unable to pay historical outstanding debts as a precondition of any stay or termination - Court not satisfied state of affairs at time winding-up order made no longer exists - Proposal to pay liquidator's remuneration, costs and expenses after termination and following adjudication of disputed amounts - Proposal to pay plaintiffs' costs as petitioning creditors after termination - Proposal to pay creditors after termination and over time on basis of cash flow forecast prepared by director - Cash flow forecast doubtful - Limited evidence of attitude of creditors - 'Best endeavours' undertakings given by director in relation to future payments not clear and unambiguous - Consideration of commercial morality and public interest - Where director permitted loans to be made to himself and related entities instead of paying company's taxation debts - Where delay in provision of company books and records by director, despite requests by liquidator - Where director re-entered and took possession of company premises without authority of liquidator - Application dismissed.
CORPORATIONS - Insolvency - Winding up - Corporations Act 2001 (Cth) - pt 5.4B - s 482 - Application by company's shareholder and director for order staying or terminating winding up - Where company balance sheet insolvent - Where company cash flow positive - Where company unable to pay historical outstanding debts as a precondition of any stay or termination - Court not satisfied state of affairs at time winding-up order made no longer exists - Proposal to pay liquidator's remuneration, costs and expenses after termination and following adjudication of disputed amounts - Proposal to pay plaintiffs' costs as petitioning creditors after termination - Proposal to pay creditors after termination and over time on basis of cash flow forecast prepared by director - Cash flow forecast doubtful - Limited evidence of attitude of creditors - 'Best endeavours' undertakings given by director in relation to future payments not clear and unambiguous - Consideration of commercial morality and public interest - Where director permitted loans to be made to himself and related entities instead of paying company's taxation debts - Where delay in provision of company books and records by director, despite requests by liquidator - Where director re-entered and took possession of company premises without authority of liquidator - Application dismissed.
CONTRACT - Election by affirmation - Tenant breached the terms of a head lease and did not remedy - Whether a subsequent email and invoice issued on behalf of landlord for outgoings and future rent constituted affirmation of head lease - The specific rights and obligations in question were not mutually exclusive, or immediately inconsistent in the sense required to put the landlord to an election - Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2022) 277 CLR 445, applied; Croc's Franchising Pty Ltd v Alamdo Holdings Pty Ltd [2023] NSWCA 256, applied.
CONTRACT - Election by affirmation - Tenant breached the terms of a head lease and did not remedy - Whether a subsequent email and invoice issued on behalf of landlord for outgoings and future rent constituted affirmation of head lease - The specific rights and obligations in question were not mutually exclusive, or immediately inconsistent in the sense required to put the landlord to an election - Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2022) 277 CLR 445, applied; Croc's Franchising Pty Ltd v Alamdo Holdings Pty Ltd [2023] NSWCA 256, applied.
CONTRACT - Head lease and sub lease terminated upon re-entry by landlord - Whether on a proper construction, a contractual holding over was triggered by determination of the leases - On a proper construction of the head lease 'end of the term' did not mean 'end of the lease' - Contractual machinery was not enlivened - Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, applied.
REAL PROPERTY - Reasonable satisfaction for use and occupation - Subtenant remained in factual possession following re-entry and the changing of locks at the premises - Head lease subsequently re-instated or regranted to tenant - Whether the tenant could maintain an action for use and occupation against the sub-tenant - Tenant was not in possession and had no right to possession following re-entry until the head lease was re-instated - Tenant was only entitled to claim for use and occupation following the re-instatement of the head lease - Javad v Mohammed Aqil [1991] 1 WLR 1007, Kellow-Falkiner Motors Pty Ltd v Nimorakiotakis & Ors (2000) V ConVR 54-620, Ovidio Carrideo Nominees Pty Ltd v Dog Depot Pty Ltd (2006) V ConvR 54-713, A-G v Keyser's Royal Hotel Ltd [1920] AC 508, Phillips v Homfray [1866] 24 Ch D 439, applied.
TORTS - Trespass to Land - Mesne profits for trespass - Subtenant remained in factual possession following re-entry and the changing of locks at the premises - Tenant was not in possession and had no right to possession following re-entry until the head lease was re-instated - Tenant unable to maintain an action in trespass with respect to that period - Sydney Local Health District v Macquarie Int'l Health Clinic Pty Ltd (2020) 105 NSWLR 325, Mount Bischoff Tin Mining Co (Regd) v Mount Bischoll Extended Tin Mining Co (NL) (1913) 15 CLR 549, Brown v Tasmania (2017) 261 CLR 328, applied.
LEGAL PRACTITIONERS - Application by defendant to restrain firm from continuing to act for plaintiff - Actions of former employee of firm central to an issue in dispute in the proceeding - Inherent jurisdiction of the Court over its officers - Conflict between solicitor's duty to act in client's best interests and solicitor's own personal interest (financial, reputational or otherwise) - Legal Professional Uniform Law Australian Solicitors' Conduct Rules 2015, rr 12.1, 27.2 - Whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires the firm to be restrained from continuing to act for the plaintiff - Whether the conflict can be resolved by the plaintiff providing its fully informed consent to the firm continuing to act - Restraint ordered.
LEGAL PRACTITIONERS - Application by defendant to restrain firm from continuing to act for plaintiff - Actions of former employee of firm central to an issue in dispute in the proceeding - Inherent jurisdiction of the Court over its officers - Conflict between solicitor's duty to act in client's best interests and solicitor's own personal interest (financial, reputational or otherwise) - Legal Professional Uniform Law Australian Solicitors' Conduct Rules 2015, rr 12.1, 27.2 - Whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires the firm to be restrained from continuing to act for the plaintiff - Whether the conflict can be resolved by the plaintiff providing its fully informed consent to the firm continuing to act - Restraint ordered.
REPRESENTATIVE PROCEEDINGS - Part 4A group proceeding - Application for approval of settlement - Whether settlement is fair and reasonable as between the parties and as between group members - Shareholder class action - Alleged breach of continuous disclosure obligations and misleading or deceptive conduct - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, ss 33V, 33ZF - Botsman v Bolitho (No 1) (2018) 57 VR 68, Mumford v EML Payments Ltd [2026] VSC 143, Fowkes v Boston Scientific Corporation [2023] FCA 230, applied.
REPRESENTATIVE PROCEEDINGS - Part 4A group proceeding - Application for approval of settlement - Whether settlement is fair and reasonable as between the parties and as between group members - Shareholder class action - Alleged breach of continuous disclosure obligations and misleading or deceptive conduct - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, ss 33V, 33ZF - Botsman v Bolitho (No 1) (2018) 57 VR 68, Mumford v EML Payments Ltd [2026] VSC 143, Fowkes v Boston Scientific Corporation [2023] FCA 230, applied.
PRACTICE AND PROCEDURE - Part 4A group proceeding - Approval for payment of legal costs from settlement sum - No reason to vary group costs order - Requirement of law practice to provide internal rate of return and return on investment calculations - Appropriate cost base when performing calculations - Supreme Court Act 1986 (Vic) Part 4A, s 33ZDA - Fox v Westpac Banking Corporation (2021) 69 VR 487, Allen & Anor v G8 Education Ltd (No 4) [2024] VSC 487, applied - Fuller & Anor v Allianz Australia Insurance Ltd & Anor (Settlement Approval) [2025] VSC 160, McCoy v Hino Motors Ltd (No 2) [2025] VSC 553, discussed.
PRACTICE AND PROCEDURE - Part 4A group proceeding - Application for approval of settlement - Soft class closure order - Proceeding settled at mediation - Applications for late registration to permit participation in the settlement - Some applications approved - Andrianakis v Uber Technologies Inc (2024) 108 MVR 55, discussed.
PRACTICE AND PROCEDURE - Injunctions - Application for interlocutory and permanent injunctions - Application for injunctions to restrain landlord from terminating lease - Where tenant in arrears of rent - Where tenant alleges breaches by landlord of repair and maintenance obligations in lease - Where tenant requires landlord to consent to Deed of Consent and Right of Entry with bank to obtain finance to pay rent arrears - No prima facie case that any breaches by landlord disentitled landlord from exercising right of termination - Club Fogolar Furlan Melbourne v Paramount Investments Group Pty Ltd [2024] VSC 208 - No prima facie case that landlord obliged to consent to Deed - Application dismissed.
PRACTICE AND PROCEDURE - Injunctions - Application for interlocutory and permanent injunctions - Application for injunctions to restrain landlord from terminating lease - Where tenant in arrears of rent - Where tenant alleges breaches by landlord of repair and maintenance obligations in lease - Where tenant requires landlord to consent to Deed of Consent and Right of Entry with bank to obtain finance to pay rent arrears - No prima facie case that any breaches by landlord disentitled landlord from exercising right of termination - Club Fogolar Furlan Melbourne v Paramount Investments Group Pty Ltd [2024] VSC 208 - No prima facie case that landlord obliged to consent to Deed - Application dismissed.
PRACTICE AND PROCEDURE - Jurisdiction of Court - Where taxpayer commenced a proceeding by originating motion posing a 'Question to be Answered' by the Court and seeking declaratory relief concerning the functions of, and powers available to, the Victorian Civil and Administrative Tribunal (Tribunal) on an application for review under Part 10 of Tax Administration Act 1997 in respect of an assessment made by the Commissioner under Part 3 of that Act - Where Commissioner filed a conditional appearance and summons seeking orders that the proceeding be dismissed, or alternatively stayed on the basis that (1) in accordance with s 96(2) of the Tax Administration Act 1997, the Court has no jurisdiction to consider the question posed; and (2) the question the subject of the originating motion proceeding is also raised as a question before the Tribunal in an extant dispute between the taxpayer and the Commissioner - Where parties filed an 'Agreed Statement of Facts' before the Court - Where Commissioner contends the originating motion proceeding effectively requires the Court to entertain a question 'concerning an assessment' within the meaning of s 96(2) - Where Commissioner contends the originating motion proceeding constitutes a prima facie abuse of process and thus requires that the Court dismiss the proceeding - Whether Court has jurisdiction or power to grant the declaratory relief sought in circumstances where the question in this proceeding raises the same question as is raised before the Tribunal - Where s 96(2) of the TAA operates to alter or vary the Court's jurisdiction under s 85 of the Constitution Act 1975 and foreclose its jurisdiction or power to consider a question 'concerning' an assessment - Whether the question posed in the originating motion proceeding is relevantly one 'concerning an assessment' - Whether the originating motion proceeding is an abuse of process.
PRACTICE AND PROCEDURE - Jurisdiction of Court - Where taxpayer commenced a proceeding by originating motion posing a 'Question to be Answered' by the Court and seeking declaratory relief concerning the functions of, and powers available to, the Victorian Civil and Administrative Tribunal (Tribunal) on an application for review under Part 10 of Tax Administration Act 1997 in respect of an assessment made by the Commissioner under Part 3 of that Act - Where Commissioner filed a conditional appearance and summons seeking orders that the proceeding be dismissed, or alternatively stayed on the basis that (1) in accordance with s 96(2) of the Tax Administration Act 1997, the Court has no jurisdiction to consider the question posed; and (2) the question the subject of the originating motion proceeding is also raised as a question before the Tribunal in an extant dispute between the taxpayer and the Commissioner - Where parties filed an 'Agreed Statement of Facts' before the Court - Where Commissioner contends the originating motion proceeding effectively requires the Court to entertain a question 'concerning an assessment' within the meaning of s 96(2) - Where Commissioner contends the originating motion proceeding constitutes a prima facie abuse of process and thus requires that the Court dismiss the proceeding - Whether Court has jurisdiction or power to grant the declaratory relief sought in circumstances where the question in this proceeding raises the same question as is raised before the Tribunal - Where s 96(2) of the TAA operates to alter or vary the Court's jurisdiction under s 85 of the Constitution Act 1975 and foreclose its jurisdiction or power to consider a question 'concerning' an assessment - Whether the question posed in the originating motion proceeding is relevantly one 'concerning an assessment' - Whether the originating motion proceeding is an abuse of process.
TAXATION - Declaratory relief - Jurisdictional question - Statutory construction of s 96(2) of Taxation Administration Act 1997 - Where Parliament intended, by way of s 96(2) of the Taxation Administration Act 1997, to alter or vary the jurisdiction and powers of the Court as set out in s 85 of the Constitution Act 1975 - Section 96(2) precludes the Court from considering a question 'concerning' an assessment where it is raised in a proceeding commenced outside of Part 10 of the Taxation Administration Act 1997 - Where proceeding in this Court effectively raises the same issue as is raised in extant review proceeding before the Tribunal conducted between the same parties - Whether the commencement and continuation of the proceeding in the Court for declaratory relief is vexatious and an abuse of process in circumstances where the proceeding before the Tribunal effectively raises the same issue - Whether Court should exercise its discretion to make a declaration.
WORKERS COMPENSATION - RECOVERY ACTION - COSTS - Recovery proceeding under s 369 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) - Where claim established against first and second defendants and claim against third defendant previously settled on 'all in' basis - Where the plaintiff seeks order for payment of amount of compensation already paid together with interest only from first defendant and seeks only order for indemnity in respect of future payments from second defendant - Where first defendant would be entitled to contribution in equity from second defendant - Orders made as sought but with liberty to apply - Whether amount ordered to be paid should be reduced by reason of settlement from third defendant - Where no evidence as to apportionment or application of settlement sum - Where plaintiff not entitled to recover more than indemnity and costs - No reduction in amounts referred to in orders but liberty to apply - Albion Insurance Company Ltd v Government Insurance Office of New South Wales (1969) 121 CLR 342 - Friend v Brooker (2009) 239 CLR 129 - VWA v Crestwood Developments Pty Ltd (No. 2) [2014] VSC 513.
WORKERS COMPENSATION - RECOVERY ACTION - COSTS - Recovery proceeding under s 369 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) - Where claim established against first and second defendants and claim against third defendant previously settled on 'all in' basis - Where the plaintiff seeks order for payment of amount of compensation already paid together with interest only from first defendant and seeks only order for indemnity in respect of future payments from second defendant - Where first defendant would be entitled to contribution in equity from second defendant - Orders made as sought but with liberty to apply - Whether amount ordered to be paid should be reduced by reason of settlement from third defendant - Where no evidence as to apportionment or application of settlement sum - Where plaintiff not entitled to recover more than indemnity and costs - No reduction in amounts referred to in orders but liberty to apply - Albion Insurance Company Ltd v Government Insurance Office of New South Wales (1969) 121 CLR 342 - Friend v Brooker (2009) 239 CLR 129 - VWA v Crestwood Developments Pty Ltd (No. 2) [2014] VSC 513.
INTEREST - Where Authority commenced proceedings in County Court well prior to commencement of worker's proceeding - Where proceeding uplifted to Supreme Court following issue of worker's proceeding - Whether good cause shown not to award interest from date of issue - Interest ordered from date of issue in County Court against first defendant and from date of joinder against second defendant - Whether interest of less than full penalty rate should be ordered - Where reasonable not to impose full penalty interest prior to commencement of worker's proceeding - Interest at reduced rate of 7.5% ordered from date of issue to date of issue of worker's proceeding and thereafter at penalty rate - Marsh v Ruby [1975] VR 191 - Clarke v Foodland Stores [1993] 2 VR 382 - Supreme Court Act 1986 (Vic) s 60.
VEXATIOUS LITIGANT - Application for extended litigation restraint order - Proceedings frequently commenced or pursued without reasonable grounds over extended period - Discretion - Extended litigation restraint order made for indefinite period - Vexatious Proceedings Act 2014 ss 1, 3, 16, 17, 20, 25, 27.
VEXATIOUS LITIGANT - Application for extended litigation restraint order - Proceedings frequently commenced or pursued without reasonable grounds over extended period - Discretion - Extended litigation restraint order made for indefinite period - Vexatious Proceedings Act 2014 ss 1, 3, 16, 17, 20, 25, 27.
PRACTICE AND PROCEDURE - Recusal application refused - Adjournment refused.
REAL PROPERTY - Trusts - Family dispute about intended owner of property - Family member named because an Australian permanent resident - Family members who provided purchase price not Australian permanent residents - Effect of 'Gift Letter' written by father of family who had provided part of the purchase price - Effect of 'Letter of Pledge' signed by named purchaser and father stating named purchaser would hold the property on trust for him - Whether gift of property to named purchaser - Whether named purchaser held property on common intention constructive trust for family members who provided purchase price - Whether resulting trust - Whether named purchaser obliged to transfer property to family members who provided purchase price.
REAL PROPERTY - Trusts - Family dispute about intended owner of property - Family member named because an Australian permanent resident - Family members who provided purchase price not Australian permanent residents - Effect of 'Gift Letter' written by father of family who had provided part of the purchase price - Effect of 'Letter of Pledge' signed by named purchaser and father stating named purchaser would hold the property on trust for him - Whether gift of property to named purchaser - Whether named purchaser held property on common intention constructive trust for family members who provided purchase price - Whether resulting trust - Whether named purchaser obliged to transfer property to family members who provided purchase price.
UNDUE INFLUENCE - Whether Letter of Pledge obtained by exercise of undue influence - Position of dependency - Presumption of undue influence rebutted.
TRUSTEES - Trustee's duty to account for rent obtained from leasing trust property.
DUTIES - Whether Letter of Pledge a dutiable transaction - Whether unstamped document admissible in evidence - Duties Act 2000, s 272.
ESTOPPEL - Whether proprietary estoppel - Whether promises or assurances that first defendant would be made a gift of an interest in property - Whether reasonable reliance - Whether detriment - Whether unconscionability.
APPEALS - Appeal from Magistrates' Court of Victoria - Proceedings dismissed on the basis that the subject matter had been the subject of repeated prior proceedings and was res judicata - Whether principles of res judicata did apply having regard to prior proceedings - Whether proceeding an abuse of process - Whether mischaracterisation of proceeding as barred by principles of res judicata was material in circumstances where the Magistrate's findings supported conclusion of abuse of process.
APPEALS - Appeal from Magistrates' Court of Victoria - Proceedings dismissed on the basis that the subject matter had been the subject of repeated prior proceedings and was res judicata - Whether principles of res judicata did apply having regard to prior proceedings - Whether proceeding an abuse of process - Whether mischaracterisation of proceeding as barred by principles of res judicata was material in circumstances where the Magistrate's findings supported conclusion of abuse of process.
DEFAMATION - Appeal against orders of judicial registrar fixing a trial date prior to hearing of charges in the Magistrates' Court for crimes alleged to have been committed subsequent to publication and dismissing application to amend defence to plead in mitigation proved criminal conduct subsequent to publication and failing to order further discovery - Where appeal a hearing de novo - Whether subsequent criminal conduct if proved would damage the same sector of plaintiff's reputation as publication - Whether sector of alleged injured reputation confined by defendants' pleading of justification - Where subsequent criminal conduct if proved admissible in mitigation - Trial not to be fixed for hearing until after determination of criminal proceedings or further order - Leave to amend granted and further discovery ordered - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 84.05 - David Syme & Co Ltd v Hore- Lacey (2000) 1 VR 667.
DEFAMATION - Appeal against orders of judicial registrar fixing a trial date prior to hearing of charges in the Magistrates' Court for crimes alleged to have been committed subsequent to publication and dismissing application to amend defence to plead in mitigation proved criminal conduct subsequent to publication and failing to order further discovery - Where appeal a hearing de novo - Whether subsequent criminal conduct if proved would damage the same sector of plaintiff's reputation as publication - Whether sector of alleged injured reputation confined by defendants' pleading of justification - Where subsequent criminal conduct if proved admissible in mitigation - Trial not to be fixed for hearing until after determination of criminal proceedings or further order - Leave to amend granted and further discovery ordered - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 84.05 - David Syme & Co Ltd v Hore- Lacey (2000) 1 VR 667.
DISCOVERY - Application by defendants for order granting leave to cross-examine plaintiff on his discovery - Application in the alternative for order requiring affidavit deposing as to various documents - Where relevant documents previously in possession of plaintiff not discovered - Application for orders requiring plaintiff to provide answers to interrogatories - Whether affidavit material provided contains sufficient information to satisfy discovery obligations - Leave to cross-examine plaintiff refused - Application in alternative and other orders sought granted - Civil Procedure Act 2010 (Vic) ss 48, 55, 57 - Supreme Court (General Civil Procedure) Rules 2025 (Vic) ords 29, 30, 37.
COSTS - Application for costs against plaintiff's solicitors - Application to defer delivery of judgment - Overarching obligations - Whether abuse of process - Supreme Court Act 1986, s 24 - Civil Procedure Act 2010 - Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) (2014) 48 VR 1.
COSTS - Application for costs against plaintiff's solicitors - Application to defer delivery of judgment - Overarching obligations - Whether abuse of process - Supreme Court Act 1986, s 24 - Civil Procedure Act 2010 - Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) (2014) 48 VR 1.
COSTS - Indemnity costs - Unsuccessful statutory will application - Application was dependent on application for order regarding severance of joint tenancy resulting in tenancy in common and authorisation of new will - Proceeding against non-party would have been required - Application misconceived - Evidence of mother's statements of intention held unreliable in any event - Plaintiff's late application for production of documents caused trial to be delayed - Further attempt at application for production of similar documents was an abuse of process - Special circumstances justifying indemnity costs order.
COSTS - Indemnity costs - Unsuccessful statutory will application - Application was dependent on application for order regarding severance of joint tenancy resulting in tenancy in common and authorisation of new will - Proceeding against non-party would have been required - Application misconceived - Evidence of mother's statements of intention held unreliable in any event - Plaintiff's late application for production of documents caused trial to be delayed - Further attempt at application for production of similar documents was an abuse of process - Special circumstances justifying indemnity costs order.
REMOVAL OF CAVEAT - Application pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic) - Whether Barnes v Addy claim of accessorial liability, constructive trust and tracing gives rise to caveatable interest - Barnes v Addy claim is not a caveatable interest - Whether caveator had prima facie case for Barnes v Addy claim - Claim is tenuous prima facie - Whether balance of convenience favours removal of caveat - Balance of convenience favours removal - Application allowed.
REMOVAL OF CAVEAT - Application pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic) - Whether Barnes v Addy claim of accessorial liability, constructive trust and tracing gives rise to caveatable interest - Barnes v Addy claim is not a caveatable interest - Whether caveator had prima facie case for Barnes v Addy claim - Claim is tenuous prima facie - Whether balance of convenience favours removal of caveat - Balance of convenience favours removal - Application allowed.
Giumelli v Giumelli (1999) 196 CLR 101, McNab v Graham (2017) 53 VR 311, Super Jacobs Pty Ltd v Esera Faalogo [2019] VSC 778, Reindel v Confreight Pty Ltd (No 2) [2022] VSC 442 applied.
Piroshenko v Grojsman (2010) 27 VR 489, AE Brighton Holdings Pty Ltd v UDP Holdings Pty Ltd [2019] VSC 688, Mayrin DM Pty Ltd v Kaiyu Deng [2019] NSWSC 1552 considered.
Transfer of Land Act 1958 (Vic) s 90(3).
CAVEAT - Removal - Application - Caveatable interest - Caveat lodged on behalf of defendant claiming interest as chargee - Prima facie case test - Balance of convenience - Priority dispute between competing equitable interests - Removal ordered conditional on suitable undertaking - Transfer of Land Act 1958 (Vic), s 90(3).
CAVEAT - Removal - Application - Caveatable interest - Caveat lodged on behalf of defendant claiming interest as chargee - Prima facie case test - Balance of convenience - Priority dispute between competing equitable interests - Removal ordered conditional on suitable undertaking - Transfer of Land Act 1958 (Vic), s 90(3).
PRACTICE AND PROCEDURE - Abuse of process - Submissions inviting Court to revisit final judgment following dismissal of proceeding.
PRACTICE AND PROCEDURE - Abuse of process - Submissions inviting Court to revisit final judgment following dismissal of proceeding.
COSTS - Offer of compromise - Judgment less favourable than offer that was not accepted by plaintiff - Claims by plaintiff for aggravated and exemplary damages not established - Finding that plaintiff benefited from actions of defendant - Only nominal damages for trespass by defendant awarded - Court satisfied that it should make no order for the plaintiff's costs - Court satisfied that it should order plaintiff to pay defendant's costs - Supreme Court (General Civil Procedure) Rules 2025 r 26.08(3)(a) and (b).
PRACTICE AND PROCEDURE - Leave to cease to act as solicitor - Rule 20.03 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Notice filed after trial had commenced and was part heard during adjournment for the purpose of filing amended pleadings - Whether leave required notwithstanding that date for resumption of trial not yet fixed - Whether leave should be granted pursuant to r 20.03 - Whether there are special circumstances for solicitor to remain on the record - Where defendant had advised solicitor of an intention to bring proceedings against the solicitor arising out of solicitor's representation in unrelated matter - Special circumstances present but did not justify solicitor ceasing to act immediately - New solicitor identified but not on the record at time of application for leave - Leave granted from the time that the defendant's new legal representatives file and serve a notice of change of solicitor - Supreme Court (General Civil Procedure) Rules 2025 (Vic), rr 20.01, 20.03.
PRACTICE AND PROCEDURE - Leave to cease to act as solicitor - Rule 20.03 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Notice filed after trial had commenced and was part heard during adjournment for the purpose of filing amended pleadings - Whether leave required notwithstanding that date for resumption of trial not yet fixed - Whether leave should be granted pursuant to r 20.03 - Whether there are special circumstances for solicitor to remain on the record - Where defendant had advised solicitor of an intention to bring proceedings against the solicitor arising out of solicitor's representation in unrelated matter - Special circumstances present but did not justify solicitor ceasing to act immediately - New solicitor identified but not on the record at time of application for leave - Leave granted from the time that the defendant's new legal representatives file and serve a notice of change of solicitor - Supreme Court (General Civil Procedure) Rules 2025 (Vic), rr 20.01, 20.03.
PRACTICE AND PROCEDURE - Civil Procedure Act 2010 (Vic), ss 62, 63 - Summary judgment application by defendant in judicial review proceeding - Whether proceeding has reasonable prospects of success - Supreme Court (General Civil Procedure) Rules 2025 (Vic), r 23.01 - Summary dismissal - Whether proceeding vexatious or abuse of process.
PRACTICE AND PROCEDURE - Civil Procedure Act 2010 (Vic), ss 62, 63 - Summary judgment application by defendant in judicial review proceeding - Whether proceeding has reasonable prospects of success - Supreme Court (General Civil Procedure) Rules 2025 (Vic), r 23.01 - Summary dismissal - Whether proceeding vexatious or abuse of process.
ADMINISTRATIVE LAW - Judicial review - Supreme Court (General Civil Procedure) Rules 2025 (Vic), Ord 56 - Public Prosecutions Act 1994 (Vic), s 22(1)(b)(ii) - Where private prosecutions taken over by Director of Public Prosecutions and charges withdrawn - Where plaintiff seeks review of decision to withdraw charges - Extent of supervisory jurisdiction of Supreme Court - Prosecutorial discretion insusceptible to judicial review - Maxwell v The Queen (1996) 184 CLR 501 and Likiardopoulos v The Queen (2012) 247 CLR 265, followed - Where plaintiff seeks review of decision of Magistrate to strike out charges after withdrawn - Where no obligation to afford procedural fairness to a plaintiff as a non-party after private prosecution taken over by Director.
PRACTICE AND PROCEDURE - Dismissal for want of prosecution.
PRACTICE AND PROCEDURE - Dismissal for want of prosecution.
JUDICIAL REVIEW - Judicial review of decisions made by Cardinia Shire Council concerning process for naming a new suburb - Supreme Court (General Civil Procedure) Rules 2025 ord 56 - Former councillor sought certiorari, mandamus and declaration in relation to application by council to Registrar of Geographic Names Victoria to name a new suburb 'Honora Fields' and two antecedent resolutions of council the previous year - Staff member of council was a proponent of the proposal to name the suburb 'Honora Fields' and was from the family whose ancestor was named 'Honora' - Three months before trial of proceeding Registrar refused council's application to name the new suburb 'Honora Fields' because council's processes had not complied with public consultation and objection provisions of the Naming rules for places in Victoria 2022 but raising no issue about the merits of the name 'Honora Fields' - Six weeks before trial of this proceeding council passed a further resolution to commence a fresh public consultation process relating to the name 'Honora Fields' - Local Government Inspectorate determined that staff member was not involved in 'any decision making around the name' and the alleged conduct 'did not amount to a conflict of interest' - Court satisfied that proceeding lacked utility and ought be dismissed - Statutory requirements for naming roads, features and localities - Geographic Place Names Act 1998 ss 5, 7, 10 - Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 - Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319.
JUDICIAL REVIEW - Judicial review of decisions made by Cardinia Shire Council concerning process for naming a new suburb - Supreme Court (General Civil Procedure) Rules 2025 ord 56 - Former councillor sought certiorari, mandamus and declaration in relation to application by council to Registrar of Geographic Names Victoria to name a new suburb 'Honora Fields' and two antecedent resolutions of council the previous year - Staff member of council was a proponent of the proposal to name the suburb 'Honora Fields' and was from the family whose ancestor was named 'Honora' - Three months before trial of proceeding Registrar refused council's application to name the new suburb 'Honora Fields' because council's processes had not complied with public consultation and objection provisions of the Naming rules for places in Victoria 2022 but raising no issue about the merits of the name 'Honora Fields' - Six weeks before trial of this proceeding council passed a further resolution to commence a fresh public consultation process relating to the name 'Honora Fields' - Local Government Inspectorate determined that staff member was not involved in 'any decision making around the name' and the alleged conduct 'did not amount to a conflict of interest' - Court satisfied that proceeding lacked utility and ought be dismissed - Statutory requirements for naming roads, features and localities - Geographic Place Names Act 1998 ss 5, 7, 10 - Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 - Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319.
PRACTICE AND PROCEDURE - Whether Court should hear and determine the question of the utility of relief separately from the remaining subject matter of the proceeding - Supreme Court (General Civil Procedure) Rules 2025 r 47.04 - Civil Procedure Act 2010 ss 47, 49.
PRACTICE AND PROCEDURE - Plaintiff filed a further summons shortly before trial seeking discovery - Discovery application futile - Application dismissed.
COSTS - As successful party, defendant applied for its costs of and incidental to the proceeding as a whole - Whether usual rule that costs follow the event should be displaced in all the circumstances - Whether plaintiff should receive an order for her costs and there be no order as to costs - Where plaintiff relied on the public interest - Where the council relied on the inefficient conduct of the proceeding by the plaintiff - Where plaintiff relied on her personal circumstances and the requirement to provide reasonable accommodations and fair hearing - Whether plaintiff should only be ordered to pay the defendant's costs following the Registrar's refusal of the application to name the new suburb - Whether plaintiff should only be ordered to pay the defendant's costs following the council's reliance on an argument that the proceeding lacked utility following the Registrar's refusal of the application - Where plaintiff did not discontinue once these events had occurred - Whether plaintiff proposed appropriate concessions and sought compromise after these events had occurred - Where plaintiff relied on fact that she was self-represented and opposed to a well-resourced legal team - Where plaintiff contended that the relief was not futile and made no concessions - Where trial remained listed on all issues - Compensatory purpose of usual order as to costs - Court satisfied that the usual order should apply.
APPEAL - Informal application for extension of time in which to seek leave to appeal from costs orders of an Associate Judge - Notice of appeal filed without summons shortly after expiration of appeal period - Substance of application argued and dispensation from requirement for summons granted - Orders resulted from decision of plaintiff to abandon preceding form of originating motion and to seek leave to rely on materially different form of originating motion - Change in subject matter of proceeding - Abandonment of previous claims and addition of new ones in refined form - Defendant had applied for summary dismissal of proceeding based on previous form of originating motion - Plaintiff had applied for discovery based on previous form of originating motion - Leave to rely on new form of originating motion not opposed subject to costs - Associate Judge ordered plaintiff to pay costs thrown away by reason of amendment - Associate Judge specifically ordered plaintiff to pay costs of discontinued summary dismissal and discovery applications - Appeal from Associate Judge's costs orders futile (if default position under the Court's Rules were to apply) because of Court's decision to order plaintiff to pay defendant's costs of proceeding - In any event, no material error by Associate Judge established - Application for extension of time refused - Supreme Court Act 1986 ss 17(3), 17A - Supreme Court (General Civil Procedure) Rules 2025 rr 63.17, 63.20, 77.06, 77.06.02.
PRACTICE AND PROCEDURE - Without filing summons or notice of appeal, plaintiff sought extension of time in which to appeal from an order of a Judicial Registrar refusing the plaintiff leave to amend her originating motion and an order that the plaintiff pay the defendant's costs of that unsuccessful application - Final hearing on the substantive relief sought in the proceeding had already been conducted - Substantive reasons for judgment had already been delivered - Attempted application too late and not heard - Civil Procedure Act 2010 ss 7, 8.
JUDICIAL REVIEW - Judicial review application bought by a prisoner - Decision to prohibit Vegemite in Victorian prisons - Whether contravention of s 47(1)(b) of the Corrections Act 1986 (Vic) - Whether a food necessary for well-being of a prisoner - Duties of prison Governors and officers with respect to security and good order of the prison - Where Vegemite may interfere with passive alert detection dogs' identification of contraband in prisons - Where Vegemite may be used to brew alcohol - Corrections Act 1986 (Vic), ss 20, 21, 47(1)(b).
JUDICIAL REVIEW - Judicial review application bought by a prisoner - Decision to prohibit Vegemite in Victorian prisons - Whether contravention of s 47(1)(b) of the Corrections Act 1986 (Vic) - Whether a food necessary for well-being of a prisoner - Duties of prison Governors and officers with respect to security and good order of the prison - Where Vegemite may interfere with passive alert detection dogs' identification of contraband in prisons - Where Vegemite may be used to brew alcohol - Corrections Act 1986 (Vic), ss 20, 21, 47(1)(b).
HUMAN RIGHTS - Cultural rights under s 19(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) - Whether cultural rights extend to access to foods with cultural significance - Whether Vegemite an aspect of 'Australian culture' - Whether cultural rights limited by prohibition on Vegemite - Whether prohibition is demonstrably justified - Charter of Human Rights and Responsibilities Act 2006, ss 7(2), 19(1), 32, 38.
ADMINISTRATIVE LAW - Judicial review - Wrongs Act Medical Panel - Plaintiff referred to differently constituted Medical Panels at different times by different respondents - Second Panel determined plaintiff's degree of whole person impairment does not satisfy the threshold level whereas first Panel determined it did - Whether second Panel entitled to determine the same medical question as first Panel - Whether alleged misconstruction of s 28LZG(4) amounts to 'jurisdictional error' - Second Panel's determination alleged to be legally unreasonable - Whether second Panel obliged to engage with reasons of first Panel - Appeal dismissed.
ADMINISTRATIVE LAW - Judicial review - Wrongs Act Medical Panel - Plaintiff referred to differently constituted Medical Panels at different times by different respondents - Second Panel determined plaintiff's degree of whole person impairment does not satisfy the threshold level whereas first Panel determined it did - Whether second Panel entitled to determine the same medical question as first Panel - Whether alleged misconstruction of s 28LZG(4) amounts to 'jurisdictional error' - Second Panel's determination alleged to be legally unreasonable - Whether second Panel obliged to engage with reasons of first Panel - Appeal dismissed.
Hatswell v State of Victoria [2013] VSC 262; Colquhoun v Capitol Radiology Pty Ltd (2013) 39 VR 296; Ingle v Australia Pacific Airports (Melbourne) Pty Ltd [2021] VSC 50; Citywide Service Solutions Pty Ltd v Rosata (2023) 76 VR 499, followed.
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; Plaintiff M1/2021 v Minister For Home Affairs (2022) 275 CLR 582, discussed.
Wrongs Act 1958, pt VBA, ss 28LN, 28LWE, 28LZG.
ADMINISTRATIVE LAW - Application for review of decision made under s 65 of the Aboriginal Heritage Act 2006 (Vic) to approve a Cultural Heritage Management Plan - Where Secretary had obligation under s 65(3) to consult with any Aboriginal person or Aboriginal body that the Secretary considered relevant to application - Where Secretary did not consult after revisions made to the Cultural Heritage Management Plan for which approval was sought where revisions were material - Failure to consult was material to decision to approve - Decision affected by jurisdictional error - Approval decision quashed and application remitted for determination in accordance with law.
ADMINISTRATIVE LAW - Application for review of decision made under s 65 of the Aboriginal Heritage Act 2006 (Vic) to approve a Cultural Heritage Management Plan - Where Secretary had obligation under s 65(3) to consult with any Aboriginal person or Aboriginal body that the Secretary considered relevant to application - Where Secretary did not consult after revisions made to the Cultural Heritage Management Plan for which approval was sought where revisions were material - Failure to consult was material to decision to approve - Decision affected by jurisdictional error - Approval decision quashed and application remitted for determination in accordance with law.
Aboriginal Heritage Act 2006 (Vic), ss 4(1), 46(1)(a), 65(1)(a), (b)(i), 65(2), 65(3); Aboriginal Heritage Regulations 2018 (Vic), reg 5; Supreme Court (General Civil Procedure) Rules 2025 (Vic), r 63.34.2.
REPRESENTATIVE PROCEEDINGS - Part 4A group proceeding - Application for approval of settlement - Whether proposed settlement is fair and reasonable - Relevant considerations - Settlement approved - Settlement Distribution Scheme approved - Appointment of Scheme Administrator - Approval for payment of legal costs from settlement sum - Group Costs Order amended - Reimbursement payments - Supreme Court Act 1986 (Vic) Part 4A, s 33V, s 33ZDA.
REPRESENTATIVE PROCEEDINGS - Part 4A group proceeding - Application for approval of settlement - Whether proposed settlement is fair and reasonable - Relevant considerations - Settlement approved - Settlement Distribution Scheme approved - Appointment of Scheme Administrator - Approval for payment of legal costs from settlement sum - Group Costs Order amended - Reimbursement payments - Supreme Court Act 1986 (Vic) Part 4A, s 33V, s 33ZDA.
CRIMINAL LAW - Bail - Murder - Applicant convicted of one charge of murder and acquitted of another - Conviction set aside on appeal - Retrial ordered - Delay - Previous application for bail refused - Whether exceptional circumstances exist justifying grant of bail - Delay not exceptional - Application for bail refused.
CRIMINAL LAW - Bail - Murder - Applicant convicted of one charge of murder and acquitted of another - Conviction set aside on appeal - Retrial ordered - Delay - Previous application for bail refused - Whether exceptional circumstances exist justifying grant of bail - Delay not exceptional - Application for bail refused.
EVIDENCE - Criminal proceeding - Murder - Circumstantial case - Evidence of intellectual disability - Police interview without independent third person present - Whether record of interview improperly or illegally obtained - Non-compliance with Victoria Police manual - Admissions - Implied admissions - Whether unlikely truth of admissions adversely affected by non-compliance - Whether circumstances in which admissions made unfair - Whether probative value of evidence outweighed by danger of unfair prejudice - Whether desirability of admitting record of interview outweighs undesirability of admitting improperly obtained evidence - Impugned evidence admitted - Evidence Act 2008 (Vic), ss 85, 90, 137, 138.
EVIDENCE - Criminal proceeding - Murder - Circumstantial case - Evidence of intellectual disability - Police interview without independent third person present - Whether record of interview improperly or illegally obtained - Non-compliance with Victoria Police manual - Admissions - Implied admissions - Whether unlikely truth of admissions adversely affected by non-compliance - Whether circumstances in which admissions made unfair - Whether probative value of evidence outweighed by danger of unfair prejudice - Whether desirability of admitting record of interview outweighs undesirability of admitting improperly obtained evidence - Impugned evidence admitted - Evidence Act 2008 (Vic), ss 85, 90, 137, 138.
EVIDENCE - Criminal proceeding - Paramedic's evidence blood at scene was dry - Relevance - Admissibility - Whether evidence should be excluded due to danger of unfair prejudice outweighing probative value - Impugned evidence admitted - Evidence Act 2008 (Vic), ss 55, 135, 137.
CRIMINAL LAW - Application to suspend registrable offender's lifelong reporting obligations - Offender convicted in 2006 - Three charges of sexual penetration of a child under the age of 16 - Compliance with reporting save for one inadvertent failure - Respondent did not oppose application - Whether in public interest to suspend - Application granted - Sex Offenders Registration Act 2004 (Vic) ss 39, 40 - Open Courts Act 2013 (Vic) ss 17, 18
CRIMINAL LAW - Application to suspend registrable offender's lifelong reporting obligations - Offender convicted in 2006 - Three charges of sexual penetration of a child under the age of 16 - Compliance with reporting save for one inadvertent failure - Respondent did not oppose application - Whether in public interest to suspend - Application granted - Sex Offenders Registration Act 2004 (Vic) ss 39, 40 - Open Courts Act 2013 (Vic) ss 17, 18
CRIMINAL LAW - Evidence - Hearsay rule - Exceptions - Whether witness' recorded evidence in earlier trial admissible - Whether witness "unavailable" to give evidence at re-trial - Whether all reasonable steps taken to find witness and secure attendance - Failure to take all reasonable steps - Recorded evidence inadmissible - Leave refused - Evidence Act 2008 (Vic), s 65, Dictionary, Part 2, cl 4.
CRIMINAL LAW - Evidence - Hearsay rule - Exceptions - Whether witness' recorded evidence in earlier trial admissible - Whether witness "unavailable" to give evidence at re-trial - Whether all reasonable steps taken to find witness and secure attendance - Failure to take all reasonable steps - Recorded evidence inadmissible - Leave refused - Evidence Act 2008 (Vic), s 65, Dictionary, Part 2, cl 4.
CRIMINAL LAW - Procedure - Application by prosecution for leave to reopen case - Prosecution closing address misstated expert evidence concerning identification of accused's footprints - Prosecution closing address completed - Error raised by the court - Defence closing address well advanced - Prosecution seeking to adduce further evidence to address perceived gap in expert evidence - Leave refused - Criminal Procedure Act 2009 (Vic), s 233(3).
CRIMINAL LAW - Procedure - Application by prosecution for leave to reopen case - Prosecution closing address misstated expert evidence concerning identification of accused's footprints - Prosecution closing address completed - Error raised by the court - Defence closing address well advanced - Prosecution seeking to adduce further evidence to address perceived gap in expert evidence - Leave refused - Criminal Procedure Act 2009 (Vic), s 233(3).
CRIMINAL LAW - Sentence - Manslaughter by unlawful and dangerous act - Physical altercation between offender and victim - Offender and victim drug-affected - Excessive measures taken to restrain victim - Plea of guilty - Timing and circumstances of plea - Nature and gravity of the offence - Mitigating circumstances - Youth of offender - General deterrence - Denunciation - No criminal history - Prospects of rehabilitation - Current sentencing practices - Sentenced to 7 years and 6 months' imprisonment with a non-parole period of 5 years - Crimes Act 1958 (Vic), s 5 - Sentencing Act 1991 (Vic), ss 3, 5, 6AAA, 11, 18.
CRIMINAL LAW - Sentence - Manslaughter by unlawful and dangerous act - Physical altercation between offender and victim - Offender and victim drug-affected - Excessive measures taken to restrain victim - Plea of guilty - Timing and circumstances of plea - Nature and gravity of the offence - Mitigating circumstances - Youth of offender - General deterrence - Denunciation - No criminal history - Prospects of rehabilitation - Current sentencing practices - Sentenced to 7 years and 6 months' imprisonment with a non-parole period of 5 years - Crimes Act 1958 (Vic), s 5 - Sentencing Act 1991 (Vic), ss 3, 5, 6AAA, 11, 18.
CRIMINAL LAW - Sentence - Murder - DM convicted by a jury - KA pleaded guilty to murder - Third offender, AB, pleaded guilty to murder at an earlier stage and sentenced by a different judge - Random and brutal machete attack on 14 year old child in public street - Agreement to commit murder - DM deliberately struck victim with vehicle - KA and AB immediately attacked victim with machetes - All offenders aged 17 at time of offending - Parity - Sentencing Act 1991 (Vic) ss 5, 6AAA - Bugmy v The Queen (2013) 249 CLR 571 - The Queen v Verdins (2007) 16 VR 269 - DPP v AB [2025] VSC 213.
CRIMINAL LAW - Sentence - Murder - DM convicted by a jury - KA pleaded guilty to murder - Third offender, AB, pleaded guilty to murder at an earlier stage and sentenced by a different judge - Random and brutal machete attack on 14 year old child in public street - Agreement to commit murder - DM deliberately struck victim with vehicle - KA and AB immediately attacked victim with machetes - All offenders aged 17 at time of offending - Parity - Sentencing Act 1991 (Vic) ss 5, 6AAA - Bugmy v The Queen (2013) 249 CLR 571 - The Queen v Verdins (2007) 16 VR 269 - DPP v AB [2025] VSC 213.
CRIMINAL LAW - Where applications for preparatory cross-examination are opposed on the basis that the persons are not prosecution witnesses - What constitutes a witness for the purposes of preparatory cross-examination - Held that persons are not prosecution witnesses and are therefore ineligible for preparatory cross-examination - Application by the Chief Commissioner of Victoria Police for closed court - Where an order for closed court is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice and personal safety - Application by the Director of Public Prosecutions for remote evidence - Where an order for remote evidence is necessary to prevent a real and substantial risk to personal safety.
CRIMINAL LAW - Where applications for preparatory cross-examination are opposed on the basis that the persons are not prosecution witnesses - What constitutes a witness for the purposes of preparatory cross-examination - Held that persons are not prosecution witnesses and are therefore ineligible for preparatory cross-examination - Application by the Chief Commissioner of Victoria Police for closed court - Where an order for closed court is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice and personal safety - Application by the Director of Public Prosecutions for remote evidence - Where an order for remote evidence is necessary to prevent a real and substantial risk to personal safety.
Criminal Procedure Act 2009 (Vic); Open Courts Act 2013 (Vic); Evidence (Miscellaneous Provisions) Act 1958 (Vic).
Director of Public Prosecutions v Kheyali & Abdalla (PII and LPP Ruling) [2026] VSC 414; Director of Public Prosecutions v HR [2024] VSC 467; R v Cox (No 6) [2005] VSC 364; Jarvie v Magistrates' Court of Victoria [1995] 1 VR 84; R v Goldman [2004] VSC 165; Director of Public Prosecutions v Zheng (Ruling No 1) [2024] VSC 70.
CRIMINAL LAW - Evidence - Manslaughter by criminal negligence - Application by accused to exclude record of interview pursuant to ss 85, 90 and 138 of the Evidence Act 2008 - Accused questioned at scene and later made substantial admissions in a record of interview - Prosecution seek to lead record of interview only - Whether one period of questioning or two - Accused gave evidence on voir dire and said she told the truth during the interview - Whether accused introduced the issue of the admission's truth or untruth - Record of interview admissible - Evidence Act 2008 (Vic) ss 85, 90, 138, 189(3) - Crimes Act 1958 (Vic) ss 464A, 464C, 464G, 464H - Heatherington v The Queen (1994) 179 CLR 370; Pollard v The Queen (1992) 176 CLR 177; Em v The Queen (2007) 232 CLR 67; Ridley v The King [2024] VSCA 308.
CRIMINAL LAW - Evidence - Manslaughter by criminal negligence - Application by accused to exclude record of interview pursuant to ss 85, 90 and 138 of the Evidence Act 2008 - Accused questioned at scene and later made substantial admissions in a record of interview - Prosecution seek to lead record of interview only - Whether one period of questioning or two - Accused gave evidence on voir dire and said she told the truth during the interview - Whether accused introduced the issue of the admission's truth or untruth - Record of interview admissible - Evidence Act 2008 (Vic) ss 85, 90, 138, 189(3) - Crimes Act 1958 (Vic) ss 464A, 464C, 464G, 464H - Heatherington v The Queen (1994) 179 CLR 370; Pollard v The Queen (1992) 176 CLR 177; Em v The Queen (2007) 232 CLR 67; Ridley v The King [2024] VSCA 308.
CRIMINAL LAW - Application under Sex Offenders Registration Act 2004 to suspend lifelong reporting obligations - In 2009 applicant pleaded guilty to seven counts of indecent act with child under 16 - No prior convictions - No subsequent convictions - Low risk of sexual recidivism - Chief Commissioner does not oppose suspension - Suspension in public interest - Application granted.
CRIMINAL LAW - Application under Sex Offenders Registration Act 2004 to suspend lifelong reporting obligations - In 2009 applicant pleaded guilty to seven counts of indecent act with child under 16 - No prior convictions - No subsequent convictions - Low risk of sexual recidivism - Chief Commissioner does not oppose suspension - Suspension in public interest - Application granted.
MB v Chief Commissioner of Police [2025] VSC 684; GH v Chief Commissioner of Police [2024] VSC 216; AJ v Chief Commissioner of Victoria Police [2024] VSC 769 considered.
Sex Offenders Registration Act 2004, ss 39-40.
PRACTICE AND PROCEDURE - Interlocutory hearing - Part IV of the Administration and Probate Act 1958 - Joinder of the corporate trustee for the family trust - Whether the defendant's solicitors be restrained from continuing to act for the defendant - Application to issue subpoenas - Interlocutory restraint from dealing with the estate or trust property - Verified accounting of estate or trust assets.
PRACTICE AND PROCEDURE - Interlocutory hearing - Part IV of the Administration and Probate Act 1958 - Joinder of the corporate trustee for the family trust - Whether the defendant's solicitors be restrained from continuing to act for the defendant - Application to issue subpoenas - Interlocutory restraint from dealing with the estate or trust property - Verified accounting of estate or trust assets.
PRACTICE AND PROCEDURE - Application to file further amended defence - Proposed amendments relating to concerns notice and alleged removal of publications - Amendments relating to statutory defences.
PRACTICE AND PROCEDURE - Application to file further amended defence - Proposed amendments relating to concerns notice and alleged removal of publications - Amendments relating to statutory defences.
PRACTICE AND PROCEDURE - Strike out application - Pleadings - Subpoena for Victoria Police to produce records of registration and licenses.
PRACTICE AND PROCEDURE - Strike out application - Pleadings - Subpoena for Victoria Police to produce records of registration and licenses.
CRIMINAL LAW - BAIL PENDING SENTENCE - STATUTORY INTERPRETATION - Application for bail pending sentence - Applicant pleaded guilty to federal charge on arraignment - Applicant's bail extended to date fixed for hearing of plea in mitigation - Applicant failed to appear when matter called on the day of plea hearing - Warrant for applicant's arrest issued - Applicant arrested under warrant - Whether applicant's bail had expired at the time he was arrested - Applicant remanded into custody when brought before the court - Subsequent application for bail pending plea hearing and sentence - Whether Bail Act 1977 (Vic) applies to State or federal offender awaiting sentence - Whether "person accused of an offence" as appears in the Bail Act 1977 (Vic) applies to offender who has pleaded guilty to subject charge - Relevance of Judiciary Act 1903 (Cth) to bail for persons accused of federal offences - Whether s101(3) or (5) of the Sentencing Act 1991 (Vic) apply to this applicant - Whether repeal of prior s4(1)(c) of the Bail Act 1977 (Vic) has relevance to the interpretation of current s4 of the Bail Act 1977 (Vic) - Whether applications for bail pending sentence to be determined at common law.
CRIMINAL LAW - BAIL PENDING SENTENCE - STATUTORY INTERPRETATION - Application for bail pending sentence - Applicant pleaded guilty to federal charge on arraignment - Applicant's bail extended to date fixed for hearing of plea in mitigation - Applicant failed to appear when matter called on the day of plea hearing - Warrant for applicant's arrest issued - Applicant arrested under warrant - Whether applicant's bail had expired at the time he was arrested - Applicant remanded into custody when brought before the court - Subsequent application for bail pending plea hearing and sentence - Whether Bail Act 1977 (Vic) applies to State or federal offender awaiting sentence - Whether "person accused of an offence" as appears in the Bail Act 1977 (Vic) applies to offender who has pleaded guilty to subject charge - Relevance of Judiciary Act 1903 (Cth) to bail for persons accused of federal offences - Whether s101(3) or (5) of the Sentencing Act 1991 (Vic) apply to this applicant - Whether repeal of prior s4(1)(c) of the Bail Act 1977 (Vic) has relevance to the interpretation of current s4 of the Bail Act 1977 (Vic) - Whether applications for bail pending sentence to be determined at common law.