CONTRACT - Causation - Where retainers for accountant to provide advisory services in relation to purchase of a business - Where accountant found to have breached retainers - Where breach of one of the retainers (the 'Porter retainer') limited to misuse of confidential information after termination of retainer - Scope of breach - Breach constituted by misuse of form and contents of earlier conditional offer - Where judge unable to say that earlier offer provided to accountant prior to making successful unconditional 'cash' offer - Where further information available from other sources included more recent conditional offer and highly attractive valuation - Causation not established - Leave to appeal granted - Appeal allowed - Alexander v Cambridge Credit Co Ltd (1987) 9 NSWLR 310; Amaca Pty Ltd v Booth (2011) 246 CLR 36; Young v Chief Executive Officer (Housing) (2023) 278 CLR 208; Lewis v Australian Capital Territory (2020) 271 CLR 208, discussed.
CONTRACT - Causation - Where retainers for accountant to provide advisory services in relation to purchase of a business - Where accountant found to have breached retainers - Where breach of one of the retainers (the 'Porter retainer') limited to misuse of confidential information after termination of retainer - Scope of breach - Breach constituted by misuse of form and contents of earlier conditional offer - Where judge unable to say that earlier offer provided to accountant prior to making successful unconditional 'cash' offer - Where further information available from other sources included more recent conditional offer and highly attractive valuation - Causation not established - Leave to appeal granted - Appeal allowed - Alexander v Cambridge Credit Co Ltd (1987) 9 NSWLR 310; Amaca Pty Ltd v Booth (2011) 246 CLR 36; Young v Chief Executive Officer (Housing) (2023) 278 CLR 208; Lewis v Australian Capital Territory (2020) 271 CLR 208, discussed.
CONTRACT - Construction - Whether implied obligation of good faith or obligation not to improperly use position as advisor survived termination of Porter retainer - Not reasonable or necessary for terms to survive termination - Notice of contention rejected.
PRACTICE AND PROCEDURE - Incompetency - Application for proposed ground of appeal to be struck out as incompetent - Where proposed ground seeks to set aside 'findings' in judge's reasons as to accountant acting dishonestly and fraudulently in breach of procedural fairness - Whether findings constituted 'determination[s]' within the meaning of s 17(2) of the Supreme Court Act 1986 - Concept of 'determination' in s 17(2) does not extend to findings made - Proposed ground of appeal incompetent - Accountant had adequate notice in any event - O'Bryan v Lindholm (2024) 74 VR 496, applied; Barnes v Addy (1874) LR 9 Ch App 244; Nadinic v Drinkwater (2017) 94 NSWLR 518; Grimaldi v Chameleon Mining NL [No 2] (2012) 200 FCR 296, discussed.
EVIDENCE - Fresh evidence - Application to adduce further evidence pursuant to r 64.13(1) of the Supreme Court (General Civil Procedure) Rules 2025 - Where judge found that account of profits capable of doing full justice and refused constructive trust remedy - Whether parties shared 'common assumptions' that corporate trustee defendant would not be insolvent - Whether 'common assumptions' falsified by subsequent liquidation - No evidence that parties shared common assumptions - Assumptions misconceived and not 'falsified' in any event - Application refused in exercise of discretion - Foody v Horewood (2007) 62 ACSR 576; Apostolidis v Kalenik (2011) 35 VR 563, considered.
EQUITY - Fiduciary duty - Whether fiduciary relationship in addition to contractual relationship - Lack of necessary undertaking and vulnerability - No fiduciary duty owed - Applications for leave to cross-appeal refused - Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; Grimaldi v Chameleon Mining NL [No 2] (2012) 200 FCR 296; ABN AMRO Bank NV v Bathurst Regional Council (2014) 224 FCR 1, discussed.
PRACTICE AND PROCEDURE - Applications for leave to intervene in proceeding - Applicants are barristers whose conduct of the proceeding below is impugned - Procedural fairness requires opportunity to be heard - No objection to intervention - Applications for leave to intervene granted.
PRACTICE AND PROCEDURE - Applications for leave to intervene in proceeding - Applicants are barristers whose conduct of the proceeding below is impugned - Procedural fairness requires opportunity to be heard - No objection to intervention - Applications for leave to intervene granted.
Supreme Court (General Civil Procedure) Rules 2025, r 64.10.
PRACTICE AND PROCEDURE - Application to restrain barristers from acting for first to third respondents in application for leave to appeal and any appeal - Barristers stated to Court that they regard themselves as unable to act until application for leave to appeal and any appeal is decided - Order restraining barristers not necessary.
PRACTICE AND PROCEDURE - Appeal - Companies - Requirement to be represented by solicitor - Whether judge erred in exercising discretion - Whether judge erred in applying Silberman - Whether judge erred in costs determination - County Court judge bound by County Court's Act and Rules - No error - No evidence of applicant's inability to afford to engage solicitor - Proposed grounds totally without merit - Leave to appeal refused.
PRACTICE AND PROCEDURE - Appeal - Companies - Requirement to be represented by solicitor - Whether judge erred in exercising discretion - Whether judge erred in applying Silberman - Whether judge erred in costs determination - County Court judge bound by County Court's Act and Rules - No error - No evidence of applicant's inability to afford to engage solicitor - Proposed grounds totally without merit - Leave to appeal refused.
Civil Procedure Act 2010, s 47; Commonwealth Constitution, ss 75-77; County Court Act 1958, s 78A; County Court Civil Procedure Rules 2018, rr 1.17(1), 2.04; Judiciary Act 1903 (Cth) s 39(2); Supreme Court Act 1986, ss 14C, 14D; Victorian Civil and Administrative Tribunal Act 1998, ss 62(3), 77(3).
Thurin v Krongold Constructions (Aust) Pty Ltd (2022) 73 VR 403; Worldwide Enterprises Pty Ltd v Silberman (2010) 26 VR 595, discussed; Kajula Pty Ltd v Downer EDI Limited (2024) 76 VR 75; Milfoil Pty Ltd v Commonwealth Bank of Australia Ltd [2020] VSCA 223; Molonglo Group (Australia) Pty Ltd v Cahill [2018] VSCA 147; Oshlack v Richmond River Council (1998) 193 CLR, considered.
APPEAL - Judicial review - Permanent care order granted - Whether failure to consider mandatory principles - Whether failure to consider need to give widest possible protection to parent/child relationship - Whether misapplication of relevant principle - Removal of child from parent where unacceptable risk of harm established - Construction of 'parent' - No error of law established - Leave to appeal granted - Appeal allowed.
APPEAL - Judicial review - Permanent care order granted - Whether failure to consider mandatory principles - Whether failure to consider need to give widest possible protection to parent/child relationship - Whether misapplication of relevant principle - Removal of child from parent where unacceptable risk of harm established - Construction of 'parent' - No error of law established - Leave to appeal granted - Appeal allowed.
Children, Youth and Families Act 2005, ss 3, 8, 9, 10, 319.
Department of Human Services v DR [2013] VSC 579; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; Mia Harris (a pseudonym) and Adam Jackson (a pseudonym) v Secretary to the Department of Families, Fairness and Housing [2023] VSC 228; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
CRIMINAL LAW - Interlocutory appeal - Application for Leave - Trafficking a drug of dependence in a quantity not less than a commercial quantity - Possession of a drug of dependence - Negligently dealing with proceeds of crime - Application to exclude evidence pursuant to s 137 Evidence Act 2008 - Whether trial judge erred in conclusions concerning probative value of the evidence - Whether trial judge erred in conclusions concerning prejudice to the accused - Consideration of circumstantial evidence as a whole - Evidence supporting inference that the applicant had drugs in his possession for the purpose of sale - Evidence that cash constituted proceeds of crime of which the applicant dealt - Measures available at trial to address potential prejudice - Leave to appeal refused.
CRIMINAL LAW - Interlocutory appeal - Application for Leave - Trafficking a drug of dependence in a quantity not less than a commercial quantity - Possession of a drug of dependence - Negligently dealing with proceeds of crime - Application to exclude evidence pursuant to s 137 Evidence Act 2008 - Whether trial judge erred in conclusions concerning probative value of the evidence - Whether trial judge erred in conclusions concerning prejudice to the accused - Consideration of circumstantial evidence as a whole - Evidence supporting inference that the applicant had drugs in his possession for the purpose of sale - Evidence that cash constituted proceeds of crime of which the applicant dealt - Measures available at trial to address potential prejudice - Leave to appeal refused.
Drugs Poisons and Controlled Substances Act 1981; Criminal Procedure Act 2009; Crimes Act 1958; Evidence Act 2008.
Momcilovic v The Queen (2011) 245 CLR 1; He Kaw Teh v The Queen (1985) 157 CLR 523 applied; Williams v The Queen (1978) 140 CLR 591, referred to.
CRIMINAL LAW - Appeal - Interlocutory appeal - Prosecution of aged care home operator in relation to Covid-19 outbreak - Alleged offence under s 26 of Occupational Health and Safety Act 2004 - Where judge ruled evidence of number of deaths at aged care home inadmissible - Where judge refused to certify decision under s 295 of Criminal Procedure Act 2009 - Judge erred in refusing to certify - Exclusion of evidence would substantially weaken prosecution case for purposes of s 295(3)(a) - Court satisfied that in 'interests of justice' to grant leave to appeal for purposes of s 297 - Application for leave to appeal against interlocutory decision granted.
CRIMINAL LAW - Appeal - Interlocutory appeal - Prosecution of aged care home operator in relation to Covid-19 outbreak - Alleged offence under s 26 of Occupational Health and Safety Act 2004 - Where judge ruled evidence of number of deaths at aged care home inadmissible - Where judge refused to certify decision under s 295 of Criminal Procedure Act 2009 - Judge erred in refusing to certify - Exclusion of evidence would substantially weaken prosecution case for purposes of s 295(3)(a) - Court satisfied that in 'interests of justice' to grant leave to appeal for purposes of s 297 - Application for leave to appeal against interlocutory decision granted.
CRIMINAL LAW - Appeal - Interlocutory appeal - Whether evidence of number of deaths irrelevant because existence of risk admitted - Evidence of number of deaths relevant to assessment of 'degree of harm that would result if hazard or risk eventuated' under s 20(2)(b) of Occupational Health and Safety Act 2004 - 'Degree of harm' encompasses both nature and extent of consequences of risk eventuating - Admission goes only to nature of consequences - Impugned evidence goes to extent of consequences - Appeal allowed.
CRIMINAL LAW - Appeal - Interlocutory appeal - Whether evidence irrelevant because matter of 'common knowledge' within meaning of s 144 of Evidence Act 2008 - Section 144 removes requirement for proof of certain matters but does not go to relevance - Evidence in question not a matter of 'common knowledge' or 'knowledge that is not reasonably open to question'.
CRIMINAL LAW - Appeal - Interlocutory appeal - Whether evidence of number of deaths inadmissible pursuant to s 137 of Evidence Act 2008 - Probative value of evidence high because goes to extent of consequences of risk eventuating - Risk of unfair prejudice to defendant low because evidence is bare number - Risk of unfair prejudice can be ameliorated by directions to jury - Evidence admissible - Appeal allowed.
Occupational Health and Safety Act 2004, ss 20, 26; Criminal Procedure Act 2009, ss 295, 296, 297; Evidence Act 2008, ss 55, 137, 144.
R v Vibro- Pile (Aust) Pty Ltd (2016) 49 VR 676; Moore (a pseudonym) v The King (2024) 98 ALJR 1119; Kane (a pseudonym) v The King (2023) 383 FLR 387; R v Paulino (2017) 54 VR 109, considered.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Home invasion - Armed robbery - Theft - First respondent subject to two-year community correction order at time of offending - Low intellectual capacity and autism spectrum disorder - Whether judge erred in finding first respondent's impaired mental functioning satisfied requirements of s 5(2H)(c)(ii) of the Sentencing Act 1991 - Whether judge ought to have imposed custodial sentence otherwise than in combination with community correction order for category 2 offending - Burden of imprisonment materially greater by reason of first respondent's impaired mental capacity - First respondent at greater risk of ongoing institutionalisation - Statutory discretion existed to impose combination sentence - No error.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Home invasion - Armed robbery - Theft - First respondent subject to two-year community correction order at time of offending - Low intellectual capacity and autism spectrum disorder - Whether judge erred in finding first respondent's impaired mental functioning satisfied requirements of s 5(2H)(c)(ii) of the Sentencing Act 1991 - Whether judge ought to have imposed custodial sentence otherwise than in combination with community correction order for category 2 offending - Burden of imprisonment materially greater by reason of first respondent's impaired mental capacity - First respondent at greater risk of ongoing institutionalisation - Statutory discretion existed to impose combination sentence - No error.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Whether sentence manifestly inadequate - First respondent assessed as unsuitable for community correction order - Expert evidence given in respect of earlier offending that first respondent at high risk of future violence - Whether judge failed to give due weight to need for denunciation and general deterrence - Personal circumstances upon which judge placed significant weight do not justify leniency of sentences - Sentence manifestly inadequate - Appeal allowed - First respondent's moral culpability reduced to some degree on account of relative youth, intellectual disability, autism spectrum disorder and history of childhood deprivation - First respondent substantially served custodial element of sentence - First respondent resentenced to total effective sentence of 5 years and 6 months' imprisonment - Exercise of residual discretion cannot be justified.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Home invasion - Armed robbery - Theft - Judge found offending was not so serious as to entirely displace principles that apply to sentencing of young offenders - Whether judge erred in finding combination of mitigating factors including youth, intellectual disability and childhood deprivation constituted substantial and compelling reasons that are exceptional and rare pursuant to s 5(2H)(e) of the Sentencing Act 1991 - Whether judge ought to have imposed custodial sentence otherwise than in combination with community correction order for category 2 offending - Offending is of a kind commonly perpetrated by young offenders including persons of low intelligence who have suffered some childhood deprivation - Not open to judge to regard mitigating factors as giving rise to rare and exceptional circumstances - Sentence imposed beyond power - Appeal allowed.
Azzopardi v The Queen (2011) 35 VR 43; Veen v The Queen (No 2) (1998) 164 CLR 465; DPP v Lombardo (2022) 302 A Crim R 329, applied.
Bugmy v The Queen (2013) 249 CLR 571; Muldrock v The Queen (2011) 244 CLR 120, considered.
Sentencing Act 1991, ss 5(2H)(c)(ii), 5(2H)(e).
CRIMINAL LAW - Appeal - Conviction - Applicant convicted of one charge of burglary, three charges of theft and five related summary charges - Applicant pleaded guilty before jury at commencement of trial to additional charge of theft (charge 1) - Evidence relevant only to charge 1 referred to in prosecution opening and adduced in trial - Prejudicial evidence with no probative value - Prosecutor referred to evidence of incriminating conduct in opening address - Incriminating conduct evidence not relevant to remaining charges on indictment - Risk that jury influenced by inadmissible evidence - Risk that jury engaged in impermissible propensity reasoning - Jury directions - Prosecution case that applicant acted alone - Judge gave erroneous directions as to liability of applicant as involved party - Substantial miscarriage of justice - Application for leave to appeal granted - Appeal allowed - Re-trial ordered.
CRIMINAL LAW - Appeal - Conviction - Applicant convicted of one charge of burglary, three charges of theft and five related summary charges - Applicant pleaded guilty before jury at commencement of trial to additional charge of theft (charge 1) - Evidence relevant only to charge 1 referred to in prosecution opening and adduced in trial - Prejudicial evidence with no probative value - Prosecutor referred to evidence of incriminating conduct in opening address - Incriminating conduct evidence not relevant to remaining charges on indictment - Risk that jury influenced by inadmissible evidence - Risk that jury engaged in impermissible propensity reasoning - Jury directions - Prosecution case that applicant acted alone - Judge gave erroneous directions as to liability of applicant as involved party - Substantial miscarriage of justice - Application for leave to appeal granted - Appeal allowed - Re-trial ordered.
Richardson v The Queen (1974) 131 CLR 116; R v Bazley (1986) 21 A Crim R 19; Cannon v Tahche (2002) 5 VR 317; Paulino v The Queen [2018] VSCA 306; King v The Queen (1986) 161 CLR 423; R v GAS [1998] 3 VR 862; R v Caine (1990) 48 A Crim R 464, referred to.
FREEZING ORDERS - Post-judgment application - Whether risk of dissipation of assets established - Relevance of existing undertakings to the Court - Relevance of financial agreement entered into between defendant and wife pursuant to s 90C of the Family Law Act 1975 (Cth) - Whether agreement intended to defeat creditors - Allegations of sham separation - No evidence of dishonesty sufficient to support freezing order - Mere insolvency not determinative - Sufficiency of undertakings to safeguard property assets - Freezing order a drastic remedy - Applicable principles - Discretionary factors - Application dismissed - Zhen v Mo [2008] VSC 300 - Rozenblit v Vainer [2019] VSCA 164 - Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319.
FREEZING ORDERS - Post-judgment application - Whether risk of dissipation of assets established - Relevance of existing undertakings to the Court - Relevance of financial agreement entered into between defendant and wife pursuant to s 90C of the Family Law Act 1975 (Cth) - Whether agreement intended to defeat creditors - Allegations of sham separation - No evidence of dishonesty sufficient to support freezing order - Mere insolvency not determinative - Sufficiency of undertakings to safeguard property assets - Freezing order a drastic remedy - Applicable principles - Discretionary factors - Application dismissed - Zhen v Mo [2008] VSC 300 - Rozenblit v Vainer [2019] VSCA 164 - Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319.
INJUNCTIONS - Application for interlocutory injunction - Where plaintiff seeks to restrain first and second defendants from putting a resolution to a company board concerning payment of moneys - Principles relevant to granting interlocutory injunctions - No serious questions to be tried - Balance of convenience weighs against granting of interlocutory injunction - Damages likely an adequate remedy - Application dismissed.
INJUNCTIONS - Application for interlocutory injunction - Where plaintiff seeks to restrain first and second defendants from putting a resolution to a company board concerning payment of moneys - Principles relevant to granting interlocutory injunctions - No serious questions to be tried - Balance of convenience weighs against granting of interlocutory injunction - Damages likely an adequate remedy - Application dismissed.
PRIVATE INTERNATIONAL LAW - Stay application - General principles - Fragmentation of litigation - Forum non conveniens - Supreme Court of Victoria not an inappropriate forum - Foreign law - Presumption that foreign law is the same as the law of the forum - Displacing the presumption - Clearly inappropriate forum test - No obligation on plaintiff to allege foreign law - Regie Nationale Des Usines Renault SA v Zhang (2002) 210 CLR 491; Palmer v Turnbull [2019] 1 Qd R 286; Damberg v Damberg (2001) 52 NSWLR 492; Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331; Benson v Rational Entertainment Enterprises Ltd (2018) 97 NSWLR 798; Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235.
PRIVATE INTERNATIONAL LAW - Stay application - General principles - Fragmentation of litigation - Forum non conveniens - Supreme Court of Victoria not an inappropriate forum - Foreign law - Presumption that foreign law is the same as the law of the forum - Displacing the presumption - Clearly inappropriate forum test - No obligation on plaintiff to allege foreign law - Regie Nationale Des Usines Renault SA v Zhang (2002) 210 CLR 491; Palmer v Turnbull [2019] 1 Qd R 286; Damberg v Damberg (2001) 52 NSWLR 492; Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331; Benson v Rational Entertainment Enterprises Ltd (2018) 97 NSWLR 798; Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235.
PRACTICE AND PROCEDURE - Service of originating process - Whether basis for service out of Australia under r 7.02 - Whether basis for service out of Australia under r 7.02(h)(i) - Failure to serve a notice pursuant to r 7.05 - Failure to serve a person out of Australia with a notice in Form 7AAA - Whether second defendant a necessary or proper party within the meaning of r 7.02(h)(i) - Meaning of proper party - Meaning of proper party under r 7.02(h)(i) - Rules 9.02 and 9.06(b) - Permissive joinder of parties under r 9.02 and r 7.02(h)(i) - Maclaine Watson & Co Private Ltd v Bing Chen [1983] 1 NSWLR 163 - Beamer Pty Ltd v Star Lodge Supported Residential Services Pty Ltd (No 1) [2004] VSC 390 - Colosseum Investment Holdings Pty Ltd and Anor v Vanguard Logistics Services Pty Ltd and Ors [2005] NSWSC 803 - Sapphire Group Pty Ltd v Luxotico HK Ltd [2021] NSWSC 589 - Horizon Capital Fund v Insurance Australia Ltd; Horizon Capital Fund v Tokio Marine & Nichido Fire Insurance Co. Ltd [2023] NSWSC 389; Harpur v Levy [2007] 16 VR 587; Madden International Ltd v Lew Footwear Holdings Pty Ltd [2015] VSCA 90; (2015) 50 VR 22; Schib Packaging Srl v Emrich Industries Pty Ltd [2005] VSCA 236; (2005) 12 VR 268; Chickabo Pty Ltd & Ors v Zphere Pty Ltd & Ors (No 2) [2019] VSC 580.
PRACTICE AND PROCEDURE - Application for originating process to be set aside pursuant to r 7.04 - Whether Supreme Court of Victoria an inappropriate forum - Forum non conveniens general principles - Meaning of 'inappropriate forum' in r 7.04(2)(b) - Whether 'inappropriate forum' means 'clearly inappropriate forum' - Whether claim against overseas defendant has insufficient prospects of success to warrant putting the defendant served out of Australia to the time, expense and trouble of defending the claim - Rule 7.04(2)(c) - Applicable test for determining whether a claim has 'insufficient prospects of success' within the meaning of r 7.04(2)(c) -Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; Regie Nationale Des Usines Renault SA v Zhang (2002) 210 CLR 491; Republica Democratica de Timor Leste v Lighthouse Corp Ltd [2019] VSCA 290; Incitec Ltd v Alkimos Shipping Corporation & Anor (2004) 138 FCR 496; Agar v Hyde (2000) 201 CLR 552; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; Rowe v Grunenthal GmbH [2011] VSC 657; Bendigo and Adelaide Bank Limited v Quine (2018) 55 VR 701; Azzi v Fox Fire Security System L.L.C. [2020] NSWSC 331; Shenzhen Xinhe Hongshi Investment and Consultancy Co Ltd v Shandong Ruyi Technology Group Co Ltd [2025] FCA 860.
CONTRACT - Breach of contract - General principles for the tort of inducing breach of contract.
BUILDING CONTRACTS - Recourse to unconditional bank guarantees - Security for the purpose of ensuring the due and proper performance of the contract - Interlocutory application by contractor seeking injunctive relief pursuant to ss 232 and 234 of the ACL to restrain principal from taking steps (or further steps) to have recourse to security - Where contractor alleges that principal engaged in misleading and deceptive conduct in contravention of s 18 and (statutory) unconscionable conduct in contravention of s 21 of the ACL - Construction of security clause, recourse clause and restraint clause in building contract - Where terms of the contract provides that principal may convert all or part of the security into cash at any time subject to providing 3 days' prior written notice of its intention to have recourse to the security (recourse clause) - Where contractor restrained by terms of the contract from taking steps to injunct or otherwise restrain the principal from having recourse to the security (restraint clause) - Whether plaintiff has properly articulated a serious question to be tried in this application - Whether plaintiff has articulated the discrimen alleged to render the conduct of defendant unconscionable conduct in the relevant contravening sense - Whether balance of convenience favours granting of injunctive relief - Plaintiff's claim for injunctive relief not granted; ss 21, 22 Australian Consumer Law, Schedule 2 to the Competition and Consumer Act 2010 (Cth).
BUILDING CONTRACTS - Recourse to unconditional bank guarantees - Security for the purpose of ensuring the due and proper performance of the contract - Interlocutory application by contractor seeking injunctive relief pursuant to ss 232 and 234 of the ACL to restrain principal from taking steps (or further steps) to have recourse to security - Where contractor alleges that principal engaged in misleading and deceptive conduct in contravention of s 18 and (statutory) unconscionable conduct in contravention of s 21 of the ACL - Construction of security clause, recourse clause and restraint clause in building contract - Where terms of the contract provides that principal may convert all or part of the security into cash at any time subject to providing 3 days' prior written notice of its intention to have recourse to the security (recourse clause) - Where contractor restrained by terms of the contract from taking steps to injunct or otherwise restrain the principal from having recourse to the security (restraint clause) - Whether plaintiff has properly articulated a serious question to be tried in this application - Whether plaintiff has articulated the discrimen alleged to render the conduct of defendant unconscionable conduct in the relevant contravening sense - Whether balance of convenience favours granting of injunctive relief - Plaintiff's claim for injunctive relief not granted; ss 21, 22 Australian Consumer Law, Schedule 2 to the Competition and Consumer Act 2010 (Cth).
BUILDING CONTRACTS - Recourse to unconditional bank guarantees - Security for the purpose of ensuring the due and proper performance of the contract - Interlocutory application by contractor seeking orders to require principal to return 50% of the security it held - Where contract provides for reduction and release of security subject to principal's rights under recourse clause - Where the 'reduction and release' clause pertaining to 50% of the security is expressly subject to the principal's rights in relation to the security, including rights to convert all or part of the security into cash at any time subject to providing 3 days' prior written notice of its intention to have recourse to the security - On proper construction of cl 5.4 (reduction and release clause) and 5.2 (recourse clause), where notice of intention to have recourse to the security having been given, principal's entitlement has vested (subject to any order of the Court to the contrary) - Plaintiff's claims for return of 50% of the security dismissed.
CORPORATIONS - Liquidation of trustee company - Company operated in capacity as trustee - Liquidator's application for appointment as receiver of trust assets, relief under Corporations Act 2001 (Cth) s 1318 and remuneration from trust assets - Relief granted - Insolvency Practice Schedule (Corporations) s 90-15 - Re Cremin (in his capacity as liquidator of Brimson Pty Ltd (in liq) [2019] FCA 1023 - Re Amerind Pty Ltd (receivers and managers apptd) (in liq) (2017) 320 FLR 118 - Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth (2019) 268 CLR 524.
CORPORATIONS - Liquidation of trustee company - Company operated in capacity as trustee - Liquidator's application for appointment as receiver of trust assets, relief under Corporations Act 2001 (Cth) s 1318 and remuneration from trust assets - Relief granted - Insolvency Practice Schedule (Corporations) s 90-15 - Re Cremin (in his capacity as liquidator of Brimson Pty Ltd (in liq) [2019] FCA 1023 - Re Amerind Pty Ltd (receivers and managers apptd) (in liq) (2017) 320 FLR 118 - Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth (2019) 268 CLR 524.
CORPORATIONS - Liquidation of trustee company - Company operated exclusively in its capacity as trustee - Whether liquidator justified and acting reasonably in so concluding - Whether to appoint liquidator as receiver and manager pursuant to s 37(1) of the Supreme Court Act 1986 (Vic) or make orders pursuant to s 63 of Trustee Act 1958 (Vic) - Liquidator appointed as receiver and manager - Re Waratah Group Pty Ltd (in liq) [2020] VSC 523, applied; Re Amerind Pty Ltd (receivers and managers apptd) (in liq) (2017) 320 FLR 118, applied.
CORPORATIONS - Liquidation of trustee company - Company operated exclusively in its capacity as trustee - Whether liquidator justified and acting reasonably in so concluding - Whether to appoint liquidator as receiver and manager pursuant to s 37(1) of the Supreme Court Act 1986 (Vic) or make orders pursuant to s 63 of Trustee Act 1958 (Vic) - Liquidator appointed as receiver and manager - Re Waratah Group Pty Ltd (in liq) [2020] VSC 523, applied; Re Amerind Pty Ltd (receivers and managers apptd) (in liq) (2017) 320 FLR 118, applied.
CORPORATIONS - Company that carried on business as trustee of a trading trust - Trustee company now in liquidation - Company removed as trustee by reason of 'ipso facto' clause in trust deed - Application by liquidator for an order pursuant to s 63 of the Trustee Act 1958 (Vic) - Application for relief from liability pursuant to s 1318 of the Corporations Act 2001 (Cth) - Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677 - Jones v Matrix Partners Pty Ltd; Re Killarnee Silver & Concrete Contractors Pty Ltd (in liq) (2018) 260 FCR 310 - Cremin, in re Brimson Pty Ltd (in liq) (2019) 136 ACSR 649 - Pitard Consortium Pty Ltd atf the Pitard Trust v Les Denny Pty Ltd (2019) 58 VR 524 - In the matter of Urban Property Pty Ltd [2021] VSC 847.
CORPORATIONS - Company that carried on business as trustee of a trading trust - Trustee company now in liquidation - Company removed as trustee by reason of 'ipso facto' clause in trust deed - Application by liquidator for an order pursuant to s 63 of the Trustee Act 1958 (Vic) - Application for relief from liability pursuant to s 1318 of the Corporations Act 2001 (Cth) - Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677 - Jones v Matrix Partners Pty Ltd; Re Killarnee Silver & Concrete Contractors Pty Ltd (in liq) (2018) 260 FCR 310 - Cremin, in re Brimson Pty Ltd (in liq) (2019) 136 ACSR 649 - Pitard Consortium Pty Ltd atf the Pitard Trust v Les Denny Pty Ltd (2019) 58 VR 524 - In the matter of Urban Property Pty Ltd [2021] VSC 847.
CORPORATIONS - Corporations Act 2001 (Cth) - s 461(1)(k) - Winding up on just and equitable ground - Company established as Indigenous joint venture - Failure of main object of company - Irretrievable breakdown in relationship of trust and confidence between shareholders - Lack of confidence in conduct and management of affairs of company - Deadlock - Dysfunction of board of directors - Financial position of company - Where company reliant on ongoing financial assistance from minority shareholder and applicant for winding up - s 467(4) - Whether other remedy available - Relative justice of winding up remedy.
CORPORATIONS - Corporations Act 2001 (Cth) - s 461(1)(k) - Winding up on just and equitable ground - Company established as Indigenous joint venture - Failure of main object of company - Irretrievable breakdown in relationship of trust and confidence between shareholders - Lack of confidence in conduct and management of affairs of company - Deadlock - Dysfunction of board of directors - Financial position of company - Where company reliant on ongoing financial assistance from minority shareholder and applicant for winding up - s 467(4) - Whether other remedy available - Relative justice of winding up remedy.
PRACTICE AND PROCEDURE - Group proceedings - 'Soft class closure' orders - Whether appropriate or necessary to ensure that justice is done - Lack of available contact information for approximately 60 percent of group members - No satisfactory proposal for communicating notice of class closure to those persons - Class closure unlikely to assist parties to resolve proceedings - Supreme Court Act 1986 (Vic), ss 33V, 33X, 33Y, 33ZF, 33ZG - Lendlease Corporation Ltd v Pallas (2025) 423 ALR 23; [2025] HCA 19; Fox v Westpac; O'Brien v ANZ; Nathan v Macquarie [2023] VSC 414; Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (2017) 252 FCR 1, applied; Anderson- Vaughan v AAI Limited [2024] VSC 65, referred to.
PRACTICE AND PROCEDURE - Group proceedings - 'Soft class closure' orders - Whether appropriate or necessary to ensure that justice is done - Lack of available contact information for approximately 60 percent of group members - No satisfactory proposal for communicating notice of class closure to those persons - Class closure unlikely to assist parties to resolve proceedings - Supreme Court Act 1986 (Vic), ss 33V, 33X, 33Y, 33ZF, 33ZG - Lendlease Corporation Ltd v Pallas (2025) 423 ALR 23; [2025] HCA 19; Fox v Westpac; O'Brien v ANZ; Nathan v Macquarie [2023] VSC 414; Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (2017) 252 FCR 1, applied; Anderson- Vaughan v AAI Limited [2024] VSC 65, referred to.
PRACTICE AND PROCEDURE - Application to adjourn trial - Application brought on the first day of trial by unrepresented defendants - Where application sought an adjournment for a month - Where trial date previously vacated and re-listed from September to October 2025, and then adjourned for two days on the first day of re-listed trial - Where defendants failed to pay solicitor and solicitor ceased to act in the week leading up to the re-listed trial - Where defendants seek a month adjournment in order to prepare for trial as self-represented litigants - No adequate explanation for lack of preparedness for trial - Prejudice to plaintiff and case management would result from adjournment for a month - Application refused, but adjournment granted for one week - Dawn v Carlisle Homes Pty Ltd [2025] VSCA 58, applied.
PRACTICE AND PROCEDURE - Application to adjourn trial - Application brought on the first day of trial by unrepresented defendants - Where application sought an adjournment for a month - Where trial date previously vacated and re-listed from September to October 2025, and then adjourned for two days on the first day of re-listed trial - Where defendants failed to pay solicitor and solicitor ceased to act in the week leading up to the re-listed trial - Where defendants seek a month adjournment in order to prepare for trial as self-represented litigants - No adequate explanation for lack of preparedness for trial - Prejudice to plaintiff and case management would result from adjournment for a month - Application refused, but adjournment granted for one week - Dawn v Carlisle Homes Pty Ltd [2025] VSCA 58, applied.
PRACTICE AND PROCEDURE - Group proceeding - Application for approval of settlement - Whether confidentiality orders should be made - Whether settlement distribution scheme is fair and reasonable - Settlement distribution between classes of group members - Deductions from the settlement fund - Whether group costs order should be varied - No variation to group costs order - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, ss 33V, 33ZDA.
PRACTICE AND PROCEDURE - Group proceeding - Application for approval of settlement - Whether confidentiality orders should be made - Whether settlement distribution scheme is fair and reasonable - Settlement distribution between classes of group members - Deductions from the settlement fund - Whether group costs order should be varied - No variation to group costs order - Settlement approved - Supreme Court Act 1986 (Vic) Part 4A, ss 33V, 33ZDA.
PRACTICE AND PROCEDURE - Group proceedings - Multiplicity of proceedings - Competing carriage applications - Applications for group costs order and stay of proceedings - Principles applied - Which arrangement is in the best interests of the group members - Experience of legal teams - Funding and available resources - Importance of transparency in funding arrangements - Importance of realistic litigation budgets - Group costs order appropriate - Supreme Court Act 1986 (Vic) s 33ZDA.
PRACTICE AND PROCEDURE - Group proceedings - Multiplicity of proceedings - Competing carriage applications - Applications for group costs order and stay of proceedings - Principles applied - Which arrangement is in the best interests of the group members - Experience of legal teams - Funding and available resources - Importance of transparency in funding arrangements - Importance of realistic litigation budgets - Group costs order appropriate - Supreme Court Act 1986 (Vic) s 33ZDA.
COSTS - Application by defendant for costs regarding plaintiff's further amendment of its statement of claim - Meaning of 'costs of and occasioned by the amendment' - Plaintiff ordered to pay defendant's costs thrown away by reason of the amendment - Supreme Court (General Civil Procedure) Rules 2023, r 63.17 - Edelman v Badower [2010] VSC 427, Burke v Ash Sounds Pty Ltd (No 2) [2019] VSC 290, not followed - JC Jarol Pty Ltd & Anor v Novamex International LLC (Costs ruling) [2023] VSC 378, discussed.
COSTS - Application by defendant for costs regarding plaintiff's further amendment of its statement of claim - Meaning of 'costs of and occasioned by the amendment' - Plaintiff ordered to pay defendant's costs thrown away by reason of the amendment - Supreme Court (General Civil Procedure) Rules 2023, r 63.17 - Edelman v Badower [2010] VSC 427, Burke v Ash Sounds Pty Ltd (No 2) [2019] VSC 290, not followed - JC Jarol Pty Ltd & Anor v Novamex International LLC (Costs ruling) [2023] VSC 378, discussed.
CROSS-VESTING - Plaintiff commenced proceeding alleging liability of defendants for historical physical and sexual abuse in Queensland - Application seeking transfer of the proceeding to the Supreme Court of Queensland - Whether Supreme Court of Queensland is the more appropriate forum - Interests of justice - Consideration of connecting factors - Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), s 5(2) - BHP Billiton Ltd v Schultz (2004) 221 CLR 400; Irwin v State of Queensland [2011] VSC 291 considered - Interests of justice do not require transfer.
CROSS-VESTING - Plaintiff commenced proceeding alleging liability of defendants for historical physical and sexual abuse in Queensland - Application seeking transfer of the proceeding to the Supreme Court of Queensland - Whether Supreme Court of Queensland is the more appropriate forum - Interests of justice - Consideration of connecting factors - Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), s 5(2) - BHP Billiton Ltd v Schultz (2004) 221 CLR 400; Irwin v State of Queensland [2011] VSC 291 considered - Interests of justice do not require transfer.
JURISDICTION - Whether Supreme Court has federal jurisdiction - Right to proceed - Whether exercise of jurisdiction restricted or curtailed - Whether 'seriously considered' obiter dicta that must be followed - Australian Constitution, ss 75(iv), 77(iii) and 78; Judiciary Act 1903 (Cth), ss 39(2), 56 and 58 - Breavington v Godleman (1988) 169 CLR 41; Commonwealth v Mewett (1997) 191 CLR 471; British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30; Hill v Zuda Pty Ltd (2022) 275 CLR 24 considered and discussed - Application for the Court to decline to exercise jurisdiction refused.
PRACTICE AND PROCEDURE - Conditional appearance - Summons filed by first defendant within 14 days - No jurisdictional objection then identified - Steps beyond 14 day period - Jurisdictional objection discovered and introduced months later in submissions in reply - Whether objection abandoned earlier by conduct - Whether submission to jurisdiction - Whether Court should 'otherwise order' - Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 8.08 - Rein v Stein (1892) 66 LT 469; Lindgran v Lindgran [1956] VLR 215; Breavington v Godleman (1988) 169 CLR 41; Robinson v Kuwait Liaison Office (1997) 145 ALR 68 considered and discussed - Court should not otherwise order.
COSTS - Administrative law - Appeal from VCAT dismissed - Where leave to appeal refused on contested grounds - Exercise of discretion to award costs - Whether usual order for costs appropriate in the circumstances - Claim for indemnity costs by the Respondent - Calderbank offer - Whether the matter was a public interest matter - Whether parties should bear their own costs for public interest matters - Enlargement of the issues as a factor relevant to exercise of discretion - Parties' obligation under section 23 of Civil Procedure Act 2010 (Vic) to narrow the issues in dispute - Unreasonable and disproportionate legal resources expended by the Applicant - Applicant ordered to pay part of the Respondent's costs on an indemnity basis.
COSTS - Administrative law - Appeal from VCAT dismissed - Where leave to appeal refused on contested grounds - Exercise of discretion to award costs - Whether usual order for costs appropriate in the circumstances - Claim for indemnity costs by the Respondent - Calderbank offer - Whether the matter was a public interest matter - Whether parties should bear their own costs for public interest matters - Enlargement of the issues as a factor relevant to exercise of discretion - Parties' obligation under section 23 of Civil Procedure Act 2010 (Vic) to narrow the issues in dispute - Unreasonable and disproportionate legal resources expended by the Applicant - Applicant ordered to pay part of the Respondent's costs on an indemnity basis.
Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 76, 148; Supreme Court Act 1986 (Vic) s 24; Civil Procedure Act 2010 (Vic) ss 22-24, 28; Calderbank v Calderbank [1975] 3 All ER 333; Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; Northern Territory v Sangare (2019) 265 CLR 164; Sea Shepherd Australia Ltd v The State of Western Australia (2014) 313 ALR 208; Ruddock v Vadarlis (No 2) (2001) 115 FCR 229; Oshlack v Richmond River Council (1998) 193 CLR 72, considered.
PRACTICE AND PROCEDURE - Civil Procedure Act 2010 (Vic), ss 62, 63 and 64 - Whether claim enjoys a real prospect of success - Proceeding dismissed.
PRACTICE AND PROCEDURE - Civil Procedure Act 2010 (Vic), ss 62, 63 and 64 - Whether claim enjoys a real prospect of success - Proceeding dismissed.
PART IV OF THE ADMINISTRATION AND PROBATE ACT 1958 (VIC) - Claim for further provision made out of time - Time for assessing adequacy of provision - Summary judgment where failure to establish jurisdiction where provision adequate - Application to extend time under s 99.
PRACTICE AND PROCEDURE - Costs - Executor's application for costs from the estate of the deceased in circumstances where the application for executor's commission under s 65 of the Administration and Probate Act 1958 (Vic) was refused - Rule 10.10 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) - Rules 63.01 and 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application refused - Second plaintiff to bear own cost and to pay costs of the first plaintiff's costs of the second plaintiff's application for executor's commission on a standard basis without indemnity from the deceased's estate.
PRACTICE AND PROCEDURE - Costs - Executor's application for costs from the estate of the deceased in circumstances where the application for executor's commission under s 65 of the Administration and Probate Act 1958 (Vic) was refused - Rule 10.10 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) - Rules 63.01 and 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application refused - Second plaintiff to bear own cost and to pay costs of the first plaintiff's costs of the second plaintiff's application for executor's commission on a standard basis without indemnity from the deceased's estate.
PRACTICE AND PROCEDURE - Application for summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (Vic) - Whether the plaintiff's claims have a real prospect of success - Failure to disclose a proper or reasonable cause of action - Whether proceeding vexatious or an abuse of process - Alternative applications pursuant to rr 23.01 and 23.02 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) to permanently stay or strike out the proceeding - Proceeding summarily dismissed.
PRACTICE AND PROCEDURE - Application for summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (Vic) - Whether the plaintiff's claims have a real prospect of success - Failure to disclose a proper or reasonable cause of action - Whether proceeding vexatious or an abuse of process - Alternative applications pursuant to rr 23.01 and 23.02 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) to permanently stay or strike out the proceeding - Proceeding summarily dismissed.
PRACTICE COURT - INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION - Application to restrain publication of information derived from or contained in a draft report - Claim for breach of confidence - Serious issue to be tried - Balance of convenience - Interlocutory injunction granted - Independent Broad-based Anti-corruption Commission Act 2011 (Vic) ss 162, 166.
PRACTICE COURT - INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION - Application to restrain publication of information derived from or contained in a draft report - Claim for breach of confidence - Serious issue to be tried - Balance of convenience - Interlocutory injunction granted - Independent Broad-based Anti-corruption Commission Act 2011 (Vic) ss 162, 166.
JUDICIAL REVIEW - Appeal of decision of Associate Justice - Rehearing - Application for summary dismissal - Whether Associate Justice erred in dismissing application for summary dismissal - No error established - Application dismissed - Civil Procedure Act 2010 (Vic) ss 62, 63, 64; Evidence Act 2008 (Vic) ss 62(1), 63(2), 75; Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 22.04(3), 77.06 - McBride v Sandland [No 1] (1918) 25 CLR 69; House v King (1936) 55 CLR 499; Westpoint Management Pty Ltd v Goakes [2002] WASCA 317; Stoney v A & S Boesley Pty Ltd [2014] VSCA 237; Pipikos v Trayans (2018) 265 CLR 522.
JUDICIAL REVIEW - Appeal of decision of Associate Justice - Rehearing - Application for summary dismissal - Whether Associate Justice erred in dismissing application for summary dismissal - No error established - Application dismissed - Civil Procedure Act 2010 (Vic) ss 62, 63, 64; Evidence Act 2008 (Vic) ss 62(1), 63(2), 75; Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 22.04(3), 77.06 - McBride v Sandland [No 1] (1918) 25 CLR 69; House v King (1936) 55 CLR 499; Westpoint Management Pty Ltd v Goakes [2002] WASCA 317; Stoney v A & S Boesley Pty Ltd [2014] VSCA 237; Pipikos v Trayans (2018) 265 CLR 522.
ADMINISTRATIVE LAW - Appeal from VCAT pursuant to s 148 of Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Plaintiff seeking to alter plan of subdivision - Valid ballot conducted in accordance with Owners Corporation Act 2006 (Vic) - Several members failed to return ballot - Application to VCAT under s 34D(3)(b) of Subdivision Act 1988 (Vic) to provide consent on behalf of members due to impracticability of obtaining vote - VCAT refused application on basis that insufficient notice given to members, and need for further information campaign - Whether VCAT erred - HELD: Appeal allowed.
ADMINISTRATIVE LAW - Appeal from VCAT pursuant to s 148 of Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Plaintiff seeking to alter plan of subdivision - Valid ballot conducted in accordance with Owners Corporation Act 2006 (Vic) - Several members failed to return ballot - Application to VCAT under s 34D(3)(b) of Subdivision Act 1988 (Vic) to provide consent on behalf of members due to impracticability of obtaining vote - VCAT refused application on basis that insufficient notice given to members, and need for further information campaign - Whether VCAT erred - HELD: Appeal allowed.
CRIMINAL LAW - Bail - Charges of using a carriage service to publish violent extremist material, possessing and controlling such material, threatening to use force and violence against a group distinguished by religion and using a carriage service to make a threat to kill - Child applicant - Applicant assessed as unsuitable by Youth Justice for bail service - Failure to abide by bail conditions on previous grants of bail - Longstanding fixation with terrorist organisation and ideology - Acquisition of weapons that are unaccounted for - Whether exceptional circumstances made out - Whether unacceptable risk of endangering the safety or welfare of any person, or committing an offence while on bail - Exceptional circumstances made out - Unacceptable risk - Bail refused - Crimes Act 1914 (Cth) s 15AA; Bail Act 1977 (Vic) ss 1B, 3AAA, 3B and 4E.
CRIMINAL LAW - Bail - Charges of using a carriage service to publish violent extremist material, possessing and controlling such material, threatening to use force and violence against a group distinguished by religion and using a carriage service to make a threat to kill - Child applicant - Applicant assessed as unsuitable by Youth Justice for bail service - Failure to abide by bail conditions on previous grants of bail - Longstanding fixation with terrorist organisation and ideology - Acquisition of weapons that are unaccounted for - Whether exceptional circumstances made out - Whether unacceptable risk of endangering the safety or welfare of any person, or committing an offence while on bail - Exceptional circumstances made out - Unacceptable risk - Bail refused - Crimes Act 1914 (Cth) s 15AA; Bail Act 1977 (Vic) ss 1B, 3AAA, 3B and 4E.
CRIMINAL LAW - Bail - Applicant charged with trafficking in drug of dependence and other charges - Applicant accused of a Schedule 2 offence while subject to a summons to answer to a charge of another Schedule 2 offence - Requirement to show exceptional circumstances - Whether exceptional circumstances made out - Whether applicant an unacceptable risk - Bail granted - Bail Act 1977, ss 1B, 3AAA, 4AA, 4A, 4D and 4E.
CRIMINAL LAW - Bail - Applicant charged with trafficking in drug of dependence and other charges - Applicant accused of a Schedule 2 offence while subject to a summons to answer to a charge of another Schedule 2 offence - Requirement to show exceptional circumstances - Whether exceptional circumstances made out - Whether applicant an unacceptable risk - Bail granted - Bail Act 1977, ss 1B, 3AAA, 4AA, 4A, 4D and 4E.
CRIMINAL LAW - Procedure - Appeal by Director against a sentence imposed by the President of the Children's Court - Whether general deterrence applies to the sentencing of children for federal offences in the Children's Court - Application by Director to reserve questions of law for determination by the Court of Appeal pursuant to s 430VA of the Children, Youth and Families Act 2005 (Vic) - Whether questions should be reserved - Application refused - Children, Youth and Families Act 2005 (Vic) ss 360, 361, 362, 430VA; Judiciary Act 1903 (Cth) ss 68, 79(1); Crimes Act 1914 (Cth) ss 16A(2)(ja), 19B(1)(b), 20C; Chief Commissioner of Police v Crupi (2023) 72 VR 280; [2023] VSCA 245; LS v CDPP [2020] VSC 484; CNK v The Queen (2011) 32 VR 641; [2011] VSCA 228; Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23; Solomons v District Court (NSW) (2002) 211 CLR 119; [2002] HCA 47; Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8; Newman v A (a Child) (1992) 9 WAR 14; Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161; [2003] HCA 49; Commissioner of Taxation v Baffsky (2001) 164 FLR 375; [2001] NSWCCA 332.
CRIMINAL LAW - Procedure - Appeal by Director against a sentence imposed by the President of the Children's Court - Whether general deterrence applies to the sentencing of children for federal offences in the Children's Court - Application by Director to reserve questions of law for determination by the Court of Appeal pursuant to s 430VA of the Children, Youth and Families Act 2005 (Vic) - Whether questions should be reserved - Application refused - Children, Youth and Families Act 2005 (Vic) ss 360, 361, 362, 430VA; Judiciary Act 1903 (Cth) ss 68, 79(1); Crimes Act 1914 (Cth) ss 16A(2)(ja), 19B(1)(b), 20C; Chief Commissioner of Police v Crupi (2023) 72 VR 280; [2023] VSCA 245; LS v CDPP [2020] VSC 484; CNK v The Queen (2011) 32 VR 641; [2011] VSCA 228; Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23; Solomons v District Court (NSW) (2002) 211 CLR 119; [2002] HCA 47; Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8; Newman v A (a Child) (1992) 9 WAR 14; Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161; [2003] HCA 49; Commissioner of Taxation v Baffsky (2001) 164 FLR 375; [2001] NSWCCA 332.
CRIMINAL LAW - Sentence - Murder of primary victim - Intentionally causing injury ('ICI') to secondary victim - Accused stabbed primary victim once to the abdomen during the course of a disagreement caused by the conduct of the accused - Secondary victim slashed twice to the neck, causing minor injury - Plea of guilty to manslaughter ('MS') and ICI in presence of jury - Jury returned verdict of guilty of murder - Significance of plea of guilty to MS upon arraignment - Remorse - Bugmy - Whether or not Bugmy principles enlivened, moral culpability reduced to a moderate extent - General principle in Bugmy enlivened - Moral culpability reduced to moderate extent, but remains high - Serious offender legislation - Sentence of 24 years' imprisonment for murder - Sentence of 3 years' imprisonment for ICI - 1 year cumulation - Total effective sentence of 25 years' imprisonment - Non-parole period of 19 years' imprisonment - Sentenced as serious violent offender on charge 1.
CRIMINAL LAW - Sentence - Murder of primary victim - Intentionally causing injury ('ICI') to secondary victim - Accused stabbed primary victim once to the abdomen during the course of a disagreement caused by the conduct of the accused - Secondary victim slashed twice to the neck, causing minor injury - Plea of guilty to manslaughter ('MS') and ICI in presence of jury - Jury returned verdict of guilty of murder - Significance of plea of guilty to MS upon arraignment - Remorse - Bugmy - Whether or not Bugmy principles enlivened, moral culpability reduced to a moderate extent - General principle in Bugmy enlivened - Moral culpability reduced to moderate extent, but remains high - Serious offender legislation - Sentence of 24 years' imprisonment for murder - Sentence of 3 years' imprisonment for ICI - 1 year cumulation - Total effective sentence of 25 years' imprisonment - Non-parole period of 19 years' imprisonment - Sentenced as serious violent offender on charge 1.
CRIMINAL LAW - Sentence - Murder - 35 year old accused struck father repeatedly to the head with a baseball bat, causing severe skull fractures and brain damage - Reason for killing unclear - Account by accused in trial of having acted in self-defence rejected by jury - No material to indicate attack was provoked - Attack of marked savagery - No remorse - Defence contention that accused's prospects of rehabilitation are good not accepted - Protection of the community an important sentencing purpose - Just punishment, denunciation and general and specific deterrence also important - Sentence of imprisonment for 28 years with a non-parole period of 23 years.
CRIMINAL LAW - Sentence - Murder - 35 year old accused struck father repeatedly to the head with a baseball bat, causing severe skull fractures and brain damage - Reason for killing unclear - Account by accused in trial of having acted in self-defence rejected by jury - No material to indicate attack was provoked - Attack of marked savagery - No remorse - Defence contention that accused's prospects of rehabilitation are good not accepted - Protection of the community an important sentencing purpose - Just punishment, denunciation and general and specific deterrence also important - Sentence of imprisonment for 28 years with a non-parole period of 23 years.
CRIMINAL LAW - Sentence - Possessing an unregistered general category handgun - Loaded, shortened .22 rifle - Previously kept by accused in unsecured state in the bedroom of his house - Possession not in connection with ongoing criminal activity - Plea of guilty - Limited criminal history - Long period on remand for charges which ultimately resulted in verdicts of not guilty by jury - Good prospects of rehabilitation - Concession by defence that term of imprisonment appropriate - Sentence of imprisonment for 10 months.
CRIMINAL LAW - Sentence - Possessing an unregistered general category handgun - Loaded, shortened .22 rifle - Previously kept by accused in unsecured state in the bedroom of his house - Possession not in connection with ongoing criminal activity - Plea of guilty - Limited criminal history - Long period on remand for charges which ultimately resulted in verdicts of not guilty by jury - Good prospects of rehabilitation - Concession by defence that term of imprisonment appropriate - Sentence of imprisonment for 10 months.
White Proceeding: LIMITATION PERIOD - Whether irremediable harm caused by failure to plead limitation defence - Whether leave should be granted to amend defence - Whether extension of time can be granted.
White Proceeding: LIMITATION PERIOD - Whether irremediable harm caused by failure to plead limitation defence - Whether leave should be granted to amend defence - Whether extension of time can be granted.
Whether plaintiff identified - Extrinsic facts - Whether all imputations conveyed attach to plaintiff - Whether imputations conveyed are true - Qualified privilege reply to attack.
Dalas Proceeding: SERIOUS HARM - Whether plaintiff can rely on multiple publications of same defamatory matter to establish serious harm - Whether serious harm needs to be established for each imputation - Whether imputations were expression of honest opinion - Qualified privilege reply to attack - Where defendant was attacker - Assessment of damages - Aggravated damages where defendant relied on truth defence after receiving information that the allegation was not true - Where defendant motivated by malice - Injunction where defendant has demonstrated unwillingness to comply with terms of intervention order - Where defendant has published over seventy posts about plaintiff.
CONTRACT - Plaintiff claiming breach of asset purchase agreement - Whether defendant liable under agreement - Whether plaintiff had warranty claim - Whether plant and equipment in good working order and fit for purpose - Whether plaintiff gave notice of warranty claims - Whether defendant disclosed faults - Whether defendant liable under Australian Consumer Law - Whether directors of defendant companies liable.
CONTRACT - Plaintiff claiming breach of asset purchase agreement - Whether defendant liable under agreement - Whether plaintiff had warranty claim - Whether plant and equipment in good working order and fit for purpose - Whether plaintiff gave notice of warranty claims - Whether defendant disclosed faults - Whether defendant liable under Australian Consumer Law - Whether directors of defendant companies liable.