Library Bulletin

From the Director

Victorian Court of Appeal

Criminal law

Jenkins (a pseudonym) v The King [2026] VSCA 250 (Opens in a new tab/window)

Orr P and Kaye JA
23 October 2026
Catchwords

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.

Stevens v The King [2026] VSCA 249 (Opens in a new tab/window)

Taylor and Donaghue JJA and Gorton AJA
22 October 2026
Catchwords

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.

Practice and procedure

Bensons Funds Managements Pty Ltd v Zhai [2026] VSCA 251 (Opens in a new tab/window)

Lyons and Richards and Kaye JJA
23 October 2026
Catchwords

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.

Ultra Tune Australia Pty Ltd v Cole [2026] VSCA 252 (Opens in a new tab/window)

Niall CJ and Lyons and Nichols JJA
28 October 2026
Catchwords

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.

Costs

Australian Grand Prix Corporation v World Touring Melbourne [2026] VSCA 248 (Opens in a new tab/window)

Orr P and Lyons JA and J Forrest AJA
21 October 2026
Catchwords

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.

Clifford (a pseudonym) v The Corporation of the Society of the Missionaries of the Sacred Heart [2026] VSCA 247 (Opens in a new tab/window)

Lyons and Nichols JJA
16 October 2026
Catchwords

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.

Supreme Court of Victoria Commercial Court

Cross-vesting

Smarter Enterprises Pty Ltd v Pepper Construction Pty Ltd [2026] VSC 674 (Opens in a new tab/window)

Connock J
16 October 2026
Catchwords

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.

Corporations

Re Buzztech Phone Repair Pty Ltd (in liq) (No 2) [2026] VSC 701 (Opens in a new tab/window)

Hetyey AsJ
26 August 2026
Catchwords

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

KADS Warehousing & Logistics Pty Ltd v Tarantino Investments Pty Ltd [2026] VSC 676 (Opens in a new tab/window)

Craig J
21 October 2026
Catchwords

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.

Legal practitioners

GI 451 Pty Ltd v Collins [No 3] [2026] VSC 679 (Opens in a new tab/window)

Goulden AsJ
20 October 2026
Catchwords

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

Gawler v FleetPartners Group Ltd (No 2) [2026] VSC 698 (Opens in a new tab/window)

Craig J
15 September 2026
Catchwords

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

City Edge South Melbourne Holdings Pty Ltd v Dehou Capital Pty Ltd atf the Leong Investment Unit Trust [2026] VSC 671 (Opens in a new tab/window)

M Osborne J
16 October 2026
Catchwords

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.

Thornhill Park Developments Pty Ltd v Commissioner of State Revenue [2026] VSC 689 (Opens in a new tab/window)

Sloss J
23 October 2026
Catchwords

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.

Supreme Court of Victoria Common Law Division

Workers compensation

Victorian WorkCover Authority v Granted Access Pty Ltd & Anor (Form of Orders and Interest) [2026] VSC 366 (Opens in a new tab/window)

Gorton J
11 June 2026
Catchwords

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.

Vexatious litigant

The Secretary of the Department of Justice and Community Safety & Anor v Rich [2026] VSC 680 (Opens in a new tab/window)

Gray J
20 October 2026
Catchwords

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.

Real property

Moohebati v Moohebati [2026] VSC 685 (Opens in a new tab/window)

Ginnane J
21 October 2026
Catchwords

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.

Appeals

Matysik ATF Webmoves Incentive Trust v Matta [2026] VSC 695 (Opens in a new tab/window)

Harris J
23 October 2026
Catchwords

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

Lennon v The Herald and Weekly Times Pty Ltd & Ors [2026] VSC 553 (Opens in a new tab/window)

Gorton J
26 August 2026
Catchwords

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.

Costs

Lamont v The Royal Women's Hospital (No 4) [2026] VSC 687 (Opens in a new tab/window)

K Judd J
23 October 2026
Catchwords

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.

White v Poynton [No 4] [2026] VSC 702 (Opens in a new tab/window)

Gray J
28 October 2026
Catchwords

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

Howitt v Maxim Built Pty Ltd [2026] VSC 650 (Opens in a new tab/window)

Hannon J
20 October 2026
Catchwords

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.

Caveat

Green (a pseudonym) v Elvin Lawyers Pty Ltd [2026] VSC 675 (Opens in a new tab/window)

Fary AsJ
16 October 2026
Catchwords

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

Giurina v Greater Geelong City Council [No 3] [2026] VSC 704 (Opens in a new tab/window)

Gray J
28 October 2026
Catchwords

PRACTICE AND PROCEDURE - Abuse of process - Submissions inviting Court to revisit final judgment following dismissal of proceeding.

Hunt v Stephan (No 1) [2026] VSC 677 (Opens in a new tab/window)

Harris J
15 October 2026
Catchwords

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.

Mohammad v DPP & Ors [2026] VSC 469 (Opens in a new tab/window)

Hetyey AsJ
24 July 2026
Catchwords

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.

Schweitzer v Vallance (Estate of Maria Schweitzer) [2026] VSC 672 (Opens in a new tab/window)

Gray J
15 October 2026
Catchwords

PRACTICE AND PROCEDURE - Dismissal for want of prosecution.

Judicial review

Davies v Cardinia Shire Council [2026] VSC 682 (Opens in a new tab/window)

Gray J
20 October 2026
Catchwords

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.

McKechnie v Secretary to the Department of Justice and Community Safety (No 2) [2026] VSC 699 (Opens in a new tab/window)

Harris J
26 October 2026
Catchwords

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).

Administrative law

Barresi v Cross Yarra Partnerships [2026] VSC 666 (Opens in a new tab/window)

Clements J
19 October 2026
Catchwords

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.

Kirby v Secretary, Department of Premier and Cabinet [2026] VSC 673 (Opens in a new tab/window)

Goulden AsJ
16 October 2026
Catchwords

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.

Representative proceedings

5 Boroughs NY Pty Ltd v State of Victoria & Ors (No 9) [2026] VSC 683 (Opens in a new tab/window)

Watson J
21 October 2026
Catchwords

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.

Supreme Court of Victoria Criminal Division

Bail

Re Lynn [No 2] (Bail) [2026] VSC 696 (Opens in a new tab/window)

Niall CJ
27 October 2026
Catchwords

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

Director of Public Prosecutions v Birchall (No 4) [2026] VSC 612 (Opens in a new tab/window)

Elliott J
17 June 2026
Catchwords

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.

Criminal law

AZ v Chief Commissioner of Police [2026] VSC 681 (Opens in a new tab/window)

M Osborne J
19 October 2026
Catchwords

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

Director of Public Prosecutions v Birchall (No 5) [2026] VSC 613 (Opens in a new tab/window)

Elliott J
07 July 2026
Catchwords

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.

Director of Public Prosecutions v Birchall (No 6) [2026] VSC 614 (Opens in a new tab/window)

Elliott J
15 July 2026
Catchwords

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).

Director of Public Prosecutions v Dipacce [2026] VSC 694 (Opens in a new tab/window)

Elliott J
27 October 2026
Catchwords

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.

DPP v DM & KA [2026] VSC 686 (Opens in a new tab/window)

Fox J
23 October 2026
Catchwords

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.

DPP v Kheyali [2026] VSC 645 (Opens in a new tab/window)

McCann JR
22 October 2026
Catchwords

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.

DPP v Telenta (Ruling No 1) [2026] VSC 9 (Opens in a new tab/window)

Fox J
23 January 2026
Catchwords

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.

RB v Chief Commissioner of Victoria Police [2026] VSC 684 (Opens in a new tab/window)

Clements J
20 October 2026
Catchwords

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.

County Court of Victoria

Practice and procedure

Elleway & Ors v Boyer [2026] VCC 1676 (Opens in a new tab/window)

Judge Gostencnik
14 October 2026
Catchwords

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.

Garnett v Lehmann & Ors (Ruling) [2026] VCC 1649 (Opens in a new tab/window)

Judge Gostencnik
12 October 2026
Catchwords

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.

Sykes v Australian Leisure and Hospitality Group Pty Ltd & Anor (Ruling) [2026] VCC 1715 (Opens in a new tab/window)

Judge Gostencnik
20 October 2026
Catchwords

PRACTICE AND PROCEDURE - Strike out application - Pleadings - Subpoena for Victoria Police to produce records of registration and licenses.

Criminal law

DPP (Cth) v Kassidas [2026] VCC 1333 (Opens in a new tab/window)

Judge Morrish
28 July 2026
Catchwords

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.

Legislation

Articles

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