TORT - Negligence - Duty of care - Non-delegable duty of care - Historic child sexual abuse - Where priest sexually abused appellant - Where appellant was child - Whether respondent liable to appellant for harm suffered - Whether respondent owed appellant duty of care - Whether respondent owed appellant non-delegable duty of care - Whether non-delegable duty of care owed in respect of harm caused by intentional conduct - Whether New South Wales v Lepore (2003) 212 CLR 511 should be re-opened and overruled - Whether sexual abuse by priest breached non-delegable duty causing harm - Whether limitations on damages by Civil Liability Act 2002 (NSW) applied.
TORT - Negligence - Duty of care - Non-delegable duty of care - Historic child sexual abuse - Where priest sexually abused appellant - Where appellant was child - Whether respondent liable to appellant for harm suffered - Whether respondent owed appellant duty of care - Whether respondent owed appellant non-delegable duty of care - Whether non-delegable duty of care owed in respect of harm caused by intentional conduct - Whether New South Wales v Lepore (2003) 212 CLR 511 should be re-opened and overruled - Whether sexual abuse by priest breached non-delegable duty causing harm - Whether limitations on damages by Civil Liability Act 2002 (NSW) applied.
WORDS AND PHRASES - "assumed duties", "assumpsit duties", "assumption of responsibility", "attribution", "breach", "care, supervision or control", "causation", "common element", "common law duty of care", "control", "damages", "delegate", "duty-holder", "duty of care", "duty to ensure that reasonable care is taken", "factual findings", "imposed duties", "intentional conduct", "intentional criminal act", "liability", "negligence", "non-delegable duty of care", "personal injury", "presbytery", "priest", "re-opened and overruled", "re-opened and overturned", "reasonable care", "reasonably foreseeable", "sexual abuse", "sexual assault", "special dependence or vulnerability", "special relations", "sufficient relationship of proximity", "undertaking", "vulnerability".
Civil Liability Act 2002 (NSW), ss 3B, 3C, 5Q, 6F, Pts 1A, 1B, 2.
WILLS AND ESTATES - Testamentary capacity - Deceased executed new will prior to death - Whether primary judge erred in assessment of evidence of capacity - Where conflicting medical evidence - Whether evidence of deceased's reasons for changing will should have led to conclusion of incapacity - No error in primary judge's approach to evidence - No error in primary judge's assessment of reliability of witnesses - Deceased's reasons for changing will not evidence of incapacity - No real prospects of success - Application for leave to appeal refused.
WILLS AND ESTATES - Testamentary capacity - Deceased executed new will prior to death - Whether primary judge erred in assessment of evidence of capacity - Where conflicting medical evidence - Whether evidence of deceased's reasons for changing will should have led to conclusion of incapacity - No error in primary judge's approach to evidence - No error in primary judge's assessment of reliability of witnesses - Deceased's reasons for changing will not evidence of incapacity - No real prospects of success - Application for leave to appeal refused.
Banks v Goodfellow (1870) LR 5 QB 549; Norris v Tuppen [1999] VSC 228, considered.
COMMERCIAL ARBITRATION - Jurisdiction of arbitral tribunal - Applicant entitled to royalty in respect of gross value of hydrocarbons produced and recovered within designated area - Disputes as to amount of royalty payable resulted in settlement agreement providing methodology for calculation of royalty amount - Settlement agreement providing that aspects of methodology not capable of modification by arbitration - Agreement providing that terms to be interpreted and applied in accordance with New York law - Agreement providing that disputes to be determined by arbitration in accordance with Commercial Arbitration Act 1984 - Further dispute arising concerning calculation of royalty amount - Applicant instituted proceeding seeking declaration that dispute not capable of arbitration - Judge granted stay sought by respondents on basis that issues as to scope of arbitration agreement a matter within jurisdiction of arbitral tribunal - Whether judge erred in holding court can grant stay without determining whether arbitral proceedings involve determination of matter falling within scope of arbitration agreement - In determining whether dispute fell within scope of arbitration agreement judge correctly applied 'light touch' approach contemplated by authorities involving formation of 'general view' on question - Arbitrators empowered to apply competence (Kompetenz-Kompetenz) principle to determine authority to arbitrate - No error in judge's approach.
COMMERCIAL ARBITRATION - Jurisdiction of arbitral tribunal - Applicant entitled to royalty in respect of gross value of hydrocarbons produced and recovered within designated area - Disputes as to amount of royalty payable resulted in settlement agreement providing methodology for calculation of royalty amount - Settlement agreement providing that aspects of methodology not capable of modification by arbitration - Agreement providing that terms to be interpreted and applied in accordance with New York law - Agreement providing that disputes to be determined by arbitration in accordance with Commercial Arbitration Act 1984 - Further dispute arising concerning calculation of royalty amount - Applicant instituted proceeding seeking declaration that dispute not capable of arbitration - Judge granted stay sought by respondents on basis that issues as to scope of arbitration agreement a matter within jurisdiction of arbitral tribunal - Whether judge erred in holding court can grant stay without determining whether arbitral proceedings involve determination of matter falling within scope of arbitration agreement - In determining whether dispute fell within scope of arbitration agreement judge correctly applied 'light touch' approach contemplated by authorities involving formation of 'general view' on question - Arbitrators empowered to apply competence (Kompetenz-Kompetenz) principle to determine authority to arbitrate - No error in judge's approach.
COMMERCIAL ARBITRATION - Jurisdiction of arbitral tribunal - Whether dispute about scope of arbitration agreement capable of settlement by arbitration where parties having agreed such disputes to be determined by court - International Arbitration Act 1974 (Cth) s 7(2), sch 2 art 16 - UNCITRAL Model Law on International Commercial Arbitration - Scope dispute not a 'matter' in sense contemplated by s 7(2) - Competence principle having force of law in Australia as result of International Arbitration Act ss 16, 21; Model Law, art 16 - International Arbitration Act not allowing parties to opt out of application of competence principle - Notwithstanding agreement for court to determine scope of arbitrators' jurisdiction arbitrators retain power to determine scope themselves pursuant to competence principle embedded by statute - No error in judge's approach.
COMMERCIAL ARBITRATION - Whether settlement agreement adopts law of New York in respect of authority of arbitrators to decide scope of own jurisdiction - Settlement agreement applying New York law to interpretation and application of agreement 'except as otherwise required' by Australian law - Australian law requiring application of Model Law including competence principle in art 16 - Clause in settlement agreement making Melbourne seat of arbitration confirms curial law applicable to arbitral proceeding is Australian law - No error in judge's approach.
COMMERCIAL ARBITRATION - Whether application of New York law in settlement agreement had effect of requiring court to determine question of scope of arbitration agreement - Applicant advanced expert evidence of position under New York law that parties to arbitration agreement presumed to agree that court to decide questions of scope absent clear and unmistakeable evidence to contrary - Application of New York law by settlement agreement confined to interpretation and application of agreement - Competence principle applying by force of statute - No question of interpretation or application of settlement agreement arising - No error in judge's approach.
COMMERCIAL ARBITRATION - Whether agreement inoperative within International Arbitration Act s 7(5) - Dispute as to engagement of s 7(5) a dispute within scope of art 16 that may be resolved by arbitral tribunal - While court may determine question under s 7(5) in appropriate case legal and factual complexity attending present question justify determination by arbitral tribunal - No error in judge's approach.
COSTS - Indemnity costs - Judge found applicant's opposition to stay application had no reasonable prospects of success because submissions of applicant at odds with authority and terms of settlement agreement - Arguments raised in opposition to stay application complex and novel - Not reasonably open to find no real prospects of success - Application for leave to appeal granted - Appeal dismissed except as to costs.
International Arbitration Act 1974 (Cth) ss 7, 16, 21, 39; UNCITRAL Model Law on International Commercial Arbitration, art 16.
Hancock Prospecting Pty Ltd v Rinehart (2017) 257 FCR 442; Comandate Marine Corp v Pan Australia shipping Pty Ltd (2006) 157 FCR 45; Greater Union Pty Ltd v Sportsgirl Pty Ltd [2021] VSCA 299; Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332, applied.
Casaceli v Natuzzi SpA (2012) 292 ALR 143; [2012] FCA 691; Freedom Foods Pty Ltd v Blue Diamond Growers [2021] FCA 172; Recyclers of Australia Pty Ltd v Hettinga Equipment Inc (2000) 100 FCR 420; Robotunits Pty Ltd v Mennel (2015) 49 VR 323; Transurban WGT Co Pty Ltd v CPB Contractors Pty Ltd [2020] VSC 476; Tianqi Lithium Kwinana Pty Ltd v MSP Engineering Pty Ltd [No 2] (2020) 56 WAR 169; Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd (2012) 43 WAR 91; TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533; Tesseract International Pty Ltd v Pascale Construction Pty Ltd (2024) 98 ALJR 880; [2024] HCA 24; Rinehart v Hancock Prospecting Pty Ltd (2019) 267 CLR 514, referred to.
JUDICIAL REVIEW - Application for leave to appeal from decision of trial judge on judicial review of decision of Building Appeals Board to affirm building order issued by first respondent - Applicant reconstructed raised deck attached to dwelling without building permit - Council advised applicant that permit not required - Building order issued requiring demolition of deck on basis deck reconstructed and extended without permit and lacked screening to prevent overlooking adjoining property - Whether judge erred in concluding respondents not estopped by Council advice - Whether judge erred in concluding building permit required - Whether judge erred in concluding screening required to prevent overlooking adjoining property - Whether judge erred in concluding Building Appeals Board did not deny plaintiff procedural fairness - Whether trial judge's decision showed prejudice against applicant and denied him a fair trial - Leave to appeal refused.
JUDICIAL REVIEW - Application for leave to appeal from decision of trial judge on judicial review of decision of Building Appeals Board to affirm building order issued by first respondent - Applicant reconstructed raised deck attached to dwelling without building permit - Council advised applicant that permit not required - Building order issued requiring demolition of deck on basis deck reconstructed and extended without permit and lacked screening to prevent overlooking adjoining property - Whether judge erred in concluding respondents not estopped by Council advice - Whether judge erred in concluding building permit required - Whether judge erred in concluding screening required to prevent overlooking adjoining property - Whether judge erred in concluding Building Appeals Board did not deny plaintiff procedural fairness - Whether trial judge's decision showed prejudice against applicant and denied him a fair trial - Leave to appeal refused.
Building Act 1993, ss 3, 16, 37, 37A, 106, 111, 118A.
Building Regulations 2018, regs 23, 84, 233, sch 3.
DEFAMATION - Appeal - Application for extension of time - Application for leave to rely on further evidence - Documents provided to applicant in response to FOI request to local council made after judgment not discovered by respondent during proceeding - Relevant considerations where evidence unavailable to unsuccessful party by reason of misconduct of successful party such as failure to discover relevant documents - Respondent's degree of culpability low - Applicant less than diligent in respect of discovery - No realistic possibility of different result - Interests of justice not served by granting new trial - 15-month delay in filing application for leave to appeal - Application for extension of time dismissed - Application for leave to rely on further material dismissed.
DEFAMATION - Appeal - Application for extension of time - Application for leave to rely on further evidence - Documents provided to applicant in response to FOI request to local council made after judgment not discovered by respondent during proceeding - Relevant considerations where evidence unavailable to unsuccessful party by reason of misconduct of successful party such as failure to discover relevant documents - Respondent's degree of culpability low - Applicant less than diligent in respect of discovery - No realistic possibility of different result - Interests of justice not served by granting new trial - 15-month delay in filing application for leave to appeal - Application for extension of time dismissed - Application for leave to rely on further material dismissed.
Supreme Court (General Civil Procedure) Rules 2025, rr 64.05(1)(a), 64.13(2), 64.36(3); Civil Procedure Act 2010, ss 7, 8(1), 9(1).
Commonwealth Bank of Australia v Quade (1991) 178 CLR 134; Clark v Stingel [2007] VSCA 292; Roberts-Smith v Fairfax Publications Pty Limited (Reopening Application) (2025) 310 FCR 141.
SUCCESSION - Appointment of personal representative for legal proceedings - Third respondent died during the proceeding - First respondent appointed sole executor under third respondent's will - First respondent did not seek probate - Estate would not have assets in Victoria unless found to have an interest in the Trust the subject of the proceeding - Second respondent reserved her position in relation to validity of the will but had not challenged it - Primary judge appointed second respondent as representative of estate pursuant to r 16.03 of the Supreme Court (General Civil Procedure) Rules 2015 - Applicants sought to have appointment set aside - Whether r 16.03 available, or whether r 9.09 ought to have been used to appoint representative - Whether third respondent's interest or liability devolved upon first respondent as executor for purposes of r 9.09 - At common law personal estate vests in an executor upon date of death rather than upon grant of probate - Common law rule not altered by the Administration and Probate Act 1958 - Rule 16.03 not available where an estate has a personal representative - No evidence regarding whether first respondent has accepted office of executor - Power to appoint administrator ad litem noted - Leave to appeal granted - Appeal allowed - Issue remitted to primary judge for redetermination.
SUCCESSION - Appointment of personal representative for legal proceedings - Third respondent died during the proceeding - First respondent appointed sole executor under third respondent's will - First respondent did not seek probate - Estate would not have assets in Victoria unless found to have an interest in the Trust the subject of the proceeding - Second respondent reserved her position in relation to validity of the will but had not challenged it - Primary judge appointed second respondent as representative of estate pursuant to r 16.03 of the Supreme Court (General Civil Procedure) Rules 2015 - Applicants sought to have appointment set aside - Whether r 16.03 available, or whether r 9.09 ought to have been used to appoint representative - Whether third respondent's interest or liability devolved upon first respondent as executor for purposes of r 9.09 - At common law personal estate vests in an executor upon date of death rather than upon grant of probate - Common law rule not altered by the Administration and Probate Act 1958 - Rule 16.03 not available where an estate has a personal representative - No evidence regarding whether first respondent has accepted office of executor - Power to appoint administrator ad litem noted - Leave to appeal granted - Appeal allowed - Issue remitted to primary judge for redetermination.
Supreme Court (General Civil Procedure) Rules 2015, rr 9.09, 9.10, 16.03; Administration and Probate Act 1958, ss 13, 15, 22, 29.
Fifteenth Eestin Nominees Pty Ltd v Rosenberg (No 2) (2009) 24 VR 155; Ryan v Davies Bros Limited (1921) 29 CLR 527, applied; Culve Engineering Pty Ltd v Apollo General Engineering (Aust) Pty Ltd (2017) 53 VR 219 considered; Bolitho v Banksia Securities Ltd (No 15) [2020] VSC 725; Sorbara v Prochilo (No 2) [2022] VSC 225, disapproved.
PRACTICE AND PROCEDURE - Interlocutory appeal - First respondent commenced proceedings seeking appointment of new trustee and declarations regarding property held by a family trust - Primary judge declared trust had failed for uncertainty and assets were held on resulting trust for contributors - Question of contributions to trust remains on foot and matter has not proceeded to trial - Applicants challenged interlocutory decisions - Whether judge erred in failing to strike out first respondent's fifth further amended statement of claim - Whether judge erred in relieving first to third respondents of Hearne obligations - Applicant argued first and second respondents' counsel breached their professional duties by continuing to act after breaching Hearne obligation, resulting in miscarriage of justice - Applicants argued abuse of process resulted from 'deception' regarding third respondent's legal capacity prior to his death - Leave to appeal refused.
Moore (a pseudonym) v The King (2024) 98 ALJR 1119; Kajula Pty Ltd v Downer EDI Ltd (2024) 76 VR 75; Coulton v Holcombe (1986) 162 CLR 1; Sambucco v Sambucco (2023) 72 VR 121; O'Brien v Komesaroff (1982) 150 CLR 310, applied; Hearne v Street (2008) 235 CLR 125; Slea Pty Ltd v Connective Services Pty Ltd (2017) 53 VR 161; Veall v Veall (2015) 46 VR 123; Kantor v Vosahlo [2004] VSCA 235; Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283; Clarey v Permanent Trustee Co Limited [2005] VSCA 128, considered.
Legal Profession Uniform Conduct (Barristers) Rules 2015, rr 101, 102; Civil Procedure Act 2010, ss 7, 9, 27, 41.
PRACTICE AND PROCEDURE - Application for leave to appeal interlocutory orders - Scheduling orders - Inspection of court file - Whether orders made in error - Whether miscarriage of case management discretion - Whether failure to take relevant considerations into account when awarding costs - Leave to appeal refused.
PRACTICE AND PROCEDURE - Application for leave to appeal interlocutory orders - Scheduling orders - Inspection of court file - Whether orders made in error - Whether miscarriage of case management discretion - Whether failure to take relevant considerations into account when awarding costs - Leave to appeal refused.
Supreme Court Act 1986 ss 24, 62; Open Courts Act 2013 ss 1, 4, 18; Civil Procedure Act 2010 s 7; Supreme Court (General Civil Procedure) Rules 2025, r 25.08, 64.15.
He v Monash University [2025] VSC 737; House v The King (1936) 55 CLR 499; Re the Will of F.B. Gilbert (Deceased)(1946) 46 SR (NSW) 318; VM Romano Construction Group Pty Ltd v BCG (Aust) Pty Ltd [2023] VSCA 312; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Towercom Pty Ltd v Fahour (No 4) [2013] VSC 585.
GUARDIANSHIP AND ADMINISTRATION - Application for leave to appeal from VCAT decision finding second applicant mother lacked decision-making capacity and consequential orders including appointment of first applicant son as administrator pursuant to Guardianship and Administration Act 2019 ('GA Act') - Powers of attorney - VCAT orders significantly limited exercise of first applicant's powers as administrator under GA Act - Whether open to Vice President to conclude second applicant lacked capacity to make power of attorney - Whether Vice President entitled to accept opinion of neuropsychologist regarding second applicant's mental acuity - Whether Vice President should have appointed first applicant as administrator under the GA Act to manage second applicant's affairs - Whether Vice President applied relevant provisions of the Charter of Human Rights and Responsibilities Act 2006 in determining to appoint an administrator - Leave to appeal refused.
GUARDIANSHIP AND ADMINISTRATION - Application for leave to appeal from VCAT decision finding second applicant mother lacked decision-making capacity and consequential orders including appointment of first applicant son as administrator pursuant to Guardianship and Administration Act 2019 ('GA Act') - Powers of attorney - VCAT orders significantly limited exercise of first applicant's powers as administrator under GA Act - Whether open to Vice President to conclude second applicant lacked capacity to make power of attorney - Whether Vice President entitled to accept opinion of neuropsychologist regarding second applicant's mental acuity - Whether Vice President should have appointed first applicant as administrator under the GA Act to manage second applicant's affairs - Whether Vice President applied relevant provisions of the Charter of Human Rights and Responsibilities Act 2006 in determining to appoint an administrator - Leave to appeal refused.
Guardianship and Administration Act 2019, ss 5, 6, 8, 30, 32, pt 7.
Powers of Attorney Act 2014, s 33.
Charter of Human Rights and Responsibilities Act 2006, ss 4, 7, 8, 12, 20, 24, 32, 38.
Thompson v Minogue (2021) 67 VR 301; PJB v Melbourne Health (Patrick's case) (2011) 39 VR 373; Castles v Secretary, Department of Justice (2010) 28 VR 141, followed.
LG v Melbourne Health [2019] VSC 183, considered.
CORPORATIONS - Appeal - Statutory demand - Application to set aside demand pursuant to Corporations Act 2001 (Cth) s 459H(1)(b) - Offsetting claim based on alleged breach of s 601FC(1)(d) - Whether evidence relied on by respondent satisfied threshold for offsetting claim - Whether applicant required to negate existence of offsetting claim and/or to address duty which may have been breached - No copy of constitution or product disclosure statement in evidence - No evidence of unfairness between class members in contravention of s 601FC(1)(d) - Evidence only established that respondent suffered loss on investment - Insufficient evidence to meet threshold for establishing offsetting claim - Leave to appeal granted - Appeal allowed.
CORPORATIONS - Appeal - Statutory demand - Application to set aside demand pursuant to Corporations Act 2001 (Cth) s 459H(1)(b) - Offsetting claim based on alleged breach of s 601FC(1)(d) - Whether evidence relied on by respondent satisfied threshold for offsetting claim - Whether applicant required to negate existence of offsetting claim and/or to address duty which may have been breached - No copy of constitution or product disclosure statement in evidence - No evidence of unfairness between class members in contravention of s 601FC(1)(d) - Evidence only established that respondent suffered loss on investment - Insufficient evidence to meet threshold for establishing offsetting claim - Leave to appeal granted - Appeal allowed.
Corporations Act 2001 (Cth) ss 459H(1)(b), 459G, 601GA, 601GB, 601FC.
TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd (2008) 66 ACSR 67; Re Libdy Developments Pty Ltd [2023] NSWSC 647; Snelgrove v Great Southern Managers Australia Ltd (in liq) [2011] WASC 103; Westfield Management Ltd v AMP Capital Property Nominees (2012) 247 CLR 129; MacarthurCook Fund Management Ltd v TFML Ltd (2014) 254 CLR 168, considered.
CONTRACT - Contract to pay 'service fee' to applicant for each financial year in term of agreement in exchange for provision of property development services to respondent - For final financial year of agreement 'termination adjustment' to be made to determine 'final service fee' - Termination adjustment requiring profit figure to be reduced or increased by amount equal to unrealised capital gains or losses - Whether unrealised capital gains or losses only referring to amounts recorded on capital account not revenue account.
CONTRACT - Contract to pay 'service fee' to applicant for each financial year in term of agreement in exchange for provision of property development services to respondent - For final financial year of agreement 'termination adjustment' to be made to determine 'final service fee' - Termination adjustment requiring profit figure to be reduced or increased by amount equal to unrealised capital gains or losses - Whether unrealised capital gains or losses only referring to amounts recorded on capital account not revenue account.
CONTRACT - Contract to pay 'service fee' to applicant for each financial year in term of agreement in exchange for provision of property development services to respondent - For final financial year of agreement 'termination adjustment' to be made by reference to unrealised capital gains or losses - Commission payable after termination in respect of projects 'introduced' by applicant - Double counting of gains or losses - Construction of agreement to address prospect of double counting.
PRACTICE AND PROCEDURE - Costs - Offers of compromise in respect of individual claims - Whether claims can be aggregated - Whether accompanying letter attracts Calderbank principles.
WORDS AND PHRASES - 'unrealised capital gain' - 'capital gain'.
Supreme Court (General Civil Procedure) Rules 2015, r 26.08.
CRIMINAL LAW - Application for leave to appeal against conviction - Applicant seeks documents from Chief Commissioner of Victoria Police - Application pursuant to s 317 of the Criminal Procedure Act 2009 (Vic) - Where the respondent to production submits orders have already been made - Where the respondent to production submits that they have been unable to locate documents that are responsive to the orders or the application - Where orders for production are in the interests of justice - Where the applicant has identified legitimate forensic purpose.
CRIMINAL LAW - Application for leave to appeal against conviction - Applicant seeks documents from Chief Commissioner of Victoria Police - Application pursuant to s 317 of the Criminal Procedure Act 2009 (Vic) - Where the respondent to production submits orders have already been made - Where the respondent to production submits that they have been unable to locate documents that are responsive to the orders or the application - Where orders for production are in the interests of justice - Where the applicant has identified legitimate forensic purpose.
Criminal Procedure Act 2009 (Vic) ss 274, 326A and 317.
Arico v The Queen (2021) 294 A Crim R 20; Commissioner for Railways v Small [1938] NSWStRp 29; Polimeni v The Queen [2022] VSCA 20; Arico v The Queen [2022] VSCA 35; Madafferi v The Queen [2021] VSCA 1; 287 A Crim R 380.
CRIMINAL LAW - Appeal - Conviction - Applicant convicted by jury - Whether verdicts of guilty on charges were unreasonable - Identity fundamental issue in dispute - Voice recognition evidence supported by other evidence - Applicant's presence and opportunity to offend - Defence hypotheses excluded - Evidence in totality supports conviction - Application for an extension of time to file notice of application for leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Applicant convicted by jury - Whether verdicts of guilty on charges were unreasonable - Identity fundamental issue in dispute - Voice recognition evidence supported by other evidence - Applicant's presence and opportunity to offend - Defence hypotheses excluded - Evidence in totality supports conviction - Application for an extension of time to file notice of application for leave to appeal refused.
Evidence Act 2008, s 38; Criminal Procedure Act 2009, ss 274 and 276(1)(a).
Lynn v The King [2025] VSCA 315; M v The Queen (1994) 181 CLR 487; Nudd v The Queen (2006) 162 A Crim R 301; Pell v The Queen (2020) 268 CLR 123, considered.
CRIMINAL LAW - Appeal - Sentence - Total effective sentence of 1 year 8 months and non-parole period of 1 year and 1 month - Sexual assault of a child under 16 - Encouraging a child under 16 to engage in or be involved in sexual activity - Grave offending - Whether sentence manifestly excessive - Sentences very modest - No substance to application - Application for an extension of time to file notice of application for leave to appeal refused.
Criminal Procedure Act 2009, s 278.
Clarkson v The Queen (2011) 32 VR 361; Evans v R [2025] VSCA 248, considered.
CRIMINAL LAW - Application for leave to appeal against sentence - Applicant pleaded guilty to two charges of sexual assault of a child under 16 years, two charges of sexual penetration of a child under 16 years, and grooming for sexual conduct with a child under 16 years - Sentenced to total effective sentence of 3 years and 6 months' imprisonment with non-parole period of 23 months - Applicant and complainant worked together at bistro - Applicant sexually assaulted complainant in car after applicant and complainant finished shift together - Applicant diagnosed with Borderline Personality Disorder and Adjustment Disorder - Whether judge failed to take into account limb 2 of R v Verdins principles - Leave to appeal refused.
CRIMINAL LAW - Application for leave to appeal against sentence - Applicant pleaded guilty to two charges of sexual assault of a child under 16 years, two charges of sexual penetration of a child under 16 years, and grooming for sexual conduct with a child under 16 years - Sentenced to total effective sentence of 3 years and 6 months' imprisonment with non-parole period of 23 months - Applicant and complainant worked together at bistro - Applicant sexually assaulted complainant in car after applicant and complainant finished shift together - Applicant diagnosed with Borderline Personality Disorder and Adjustment Disorder - Whether judge failed to take into account limb 2 of R v Verdins principles - Leave to appeal refused.
CRIMINAL LAW - Application for leave to appeal against sentence - Whether total effective sentence and non-parole period manifestly excessive - Early pleas of guilty - Significant utilitarian value - Applicant had undertaken significant post-offence rehabilitation - Previous good character - No prior convictions - Ground of appeal sufficiently arguable - Leave to appeal granted.
Sentencing Act 1991, s 6B.
R v Verdins (2007) 16 VR 269; Clarkson v The Queen (2011) 32 VR 361; Bugmy v The Queen (2013) 249 CLR 571; Northe v The King [2024] VSCA 145 referred to.
CRIMINAL LAW - Appeal - Conviction - Applicant convicted by jury of rape and false imprisonment - Whether judge failed to properly direct jury on complainant's prior inconsistent statements for hearsay purpose - Whether judge should have given unreliable witness direction as to complainant's evidence - Whether jury verdicts of guilt unsafe and unsatisfactory - Hearsay evidence was not sought to be relied upon as proof of asserted facts - Applicant failed to seek unreliable witness direction - Complainant's credit exhaustively questioned before jury - Purported inconsistencies explicable or inconsequential - Complainant gave consistent evidence that she had said 'no' and 'stop' to penile penetration - Complainant's credit and reliability remained intact - Evidence in totality supports conviction - Compelling reasons not established - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Applicant convicted by jury of rape and false imprisonment - Whether judge failed to properly direct jury on complainant's prior inconsistent statements for hearsay purpose - Whether judge should have given unreliable witness direction as to complainant's evidence - Whether jury verdicts of guilt unsafe and unsatisfactory - Hearsay evidence was not sought to be relied upon as proof of asserted facts - Applicant failed to seek unreliable witness direction - Complainant's credit exhaustively questioned before jury - Purported inconsistencies explicable or inconsequential - Complainant gave consistent evidence that she had said 'no' and 'stop' to penile penetration - Complainant's credit and reliability remained intact - Evidence in totality supports conviction - Compelling reasons not established - Leave to appeal refused.
Evidence Act 2008, ss 59 and 60; Jury Directions Act 2015, ss 11, 12, 15, 16 and 32.
M v The Queen (1994) 181 CLR 487; R v ZT (2025) 281 CLR 137; R v Baden-Clay (2016) 258 CLR 308; Pell v The Queen (2020) 268 CLR 123, applied.
CRIMINAL LAW - Appeal - Sentence - Total effective sentence of 8 years and 6 months - Head sentence of 8 years' imprisonment for rape - Whether sentence manifestly excessive - Significant mitigation factors - No prior or subsequent convictions - Tertiary qualified and gainful employment - Very positive prospects of rehabilitation - Real prospect of deportation upon release - Substantial procedural delay - Leave to appeal allowed - Appeal granted - Resentenced to total effective sentence of 6 years and 3 months' imprisonment with non-parole period of 3 years and 9 months.
Crimes Act 1958, s 38(3); Sentencing Act 1991, ss 5(2)(ab) and 5A(1)(b).
Guden v The Queen (2010) 28 VR 288, considered.
CRIMINAL LAW - Appeal - Conviction - Applicant convicted of rape, intentionally causing injury, common assault (two charges), false imprisonment and burglary - Applicant sentenced to 12 years and 6 months' imprisonment - Juror communications - Juror asked tipstaff if jurors could attend applicant's sentencing hearing - Communication occurred shortly after applicant entered pleas of not guilty and judge had given summary of prosecution case to jury panel - Communication not disclosed to parties - Whether irregularity of trial process occurred by reason of parties not being informed of juror communication - Reasonable apprehension juror did not bring impartial mind - Serious departure from prescribed processes for trial - Substantial miscarriage of justice - Leave to appeal granted - Appeal allowed - Retrial ordered.
CRIMINAL LAW - Appeal - Conviction - Applicant convicted of rape, intentionally causing injury, common assault (two charges), false imprisonment and burglary - Applicant sentenced to 12 years and 6 months' imprisonment - Juror communications - Juror asked tipstaff if jurors could attend applicant's sentencing hearing - Communication occurred shortly after applicant entered pleas of not guilty and judge had given summary of prosecution case to jury panel - Communication not disclosed to parties - Whether irregularity of trial process occurred by reason of parties not being informed of juror communication - Reasonable apprehension juror did not bring impartial mind - Serious departure from prescribed processes for trial - Substantial miscarriage of justice - Leave to appeal granted - Appeal allowed - Retrial ordered.
Criminal Procedure Act 2009 (Vic), s 276; Jury Act 1995 (Qld), s 70; Juries Act 2000, s 32.
Farha v The Queen [2018] VSCA 310; R v Black (2007) 15 VR 551; Carson (a pseudonym) v The Queen [2019] VSCA 317; R v Gorman [1987] 1 WLR 545; Baini v The Queen (2012) 246 CLR 469; Awad v The Queen (2022) 275 CLR 421; HCF v The Queen (2023) 280 CLR 596, considered.
TAXATION - Land Tax - Whether land held by one trustee for two discretionary trusts be assessed on aggregate basis - Operation of land tax legislative regime and trust provisions - Whether land tax to be assessed on the whole of the land subject to the trust as if the land were only land owned by the trustee - Purported unit trust scheme - Purported fixed trust - Purported joint owners - Land Tax Act 2005, ss 3, 7-10, 18, 36, 38, 46A, 46C, 46F, 46G, 46J, sch 1 - CPT Custodian v Commissioner of State Revenue (2005) 224 CLR 98.
TAXATION - Land Tax - Whether land held by one trustee for two discretionary trusts be assessed on aggregate basis - Operation of land tax legislative regime and trust provisions - Whether land tax to be assessed on the whole of the land subject to the trust as if the land were only land owned by the trustee - Purported unit trust scheme - Purported fixed trust - Purported joint owners - Land Tax Act 2005, ss 3, 7-10, 18, 36, 38, 46A, 46C, 46F, 46G, 46J, sch 1 - CPT Custodian v Commissioner of State Revenue (2005) 224 CLR 98.
EQUITY - Trusts - Statutory construction and general law - Characterisation of legal and beneficial ownership of land held - Certainty of intention to create trust - Requirement for express trust - Person purported being trustee for themselves - Doctrine of merger - Creation of third trust - DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) (1982) 149 CLR 431 - Bankstown City Council v Alamdo Holdings Pty Ltd - Byrnes v Kendle (2011) 243 CLR 253 - Re Schebsman [1944] Ch 83 - Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62 - Federal Commissioner of Taxation v Linter Textiles Australia Ltd (in liq) (2005) 220 CLR 592 - Li v Ye [2025] NSWCA 227.
BANK GUARANTEE - Nature of bank guarantee - Ability to procure release of security for contract performance in form of bank guarantee in exchange for cash - Daewoo Shipbuilding & Marine Engineering Co Ltd v INPEX Operations Australia Pty Ltd (2022) 404 ALR 503 applied.
BANK GUARANTEE - Nature of bank guarantee - Ability to procure release of security for contract performance in form of bank guarantee in exchange for cash - Daewoo Shipbuilding & Marine Engineering Co Ltd v INPEX Operations Australia Pty Ltd (2022) 404 ALR 503 applied.
IMPLIED TERM - Issuer of bank guarantee may pay amount of guarantee to principal at any time whereupon its liability shall cease - No contractual restriction on contractor requesting or requiring issuer of bank guarantee to pay out guarantee to principal - Implied term that contractor permitted to pay principal amount of security in cash - Feeney v Southstar Homes Pty Ltd [2024] VSCA 153, BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 and Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 applied.
ARBITRATION - Arbitration agreement - Construction - Hybrid arbitration clause providing for arbitration to be 'conducted by the Resolution Institute in accordance with the ICC Rules of Arbitration' - Courts to endeavour to give effect to parties' intention to arbitrate - Workability of hybrid arbitration clauses - Hybrid arbitration presents practical difficulties - Discussion of hybrid arbitration clauses - Consideration of case law on hybrid arbitration clauses - Turns on own facts.
ARBITRATION - Arbitration agreement - Construction - Hybrid arbitration clause providing for arbitration to be 'conducted by the Resolution Institute in accordance with the ICC Rules of Arbitration' - Courts to endeavour to give effect to parties' intention to arbitrate - Workability of hybrid arbitration clauses - Hybrid arbitration presents practical difficulties - Discussion of hybrid arbitration clauses - Consideration of case law on hybrid arbitration clauses - Turns on own facts.
ARBITRATION - Jurisdiction of arbitral tribunal - Arbitrator tribunal entitled to apply Kompetenz-Kompetenz principle to determine their authority to arbitrate - Inappropriate for Court to determine issues properly before arbitral tribunal - Discussion of indicia of 'place of business' for purposes of s 1(3)(a) of the Commercial Arbitration Act 2011 (Vic) - Registration as foreign company for purposes of s 601CD of the Corporations Act 2001 (Cth) not indication per se that company has its place of business in Australia.
CONTRACT - Proceeding by bank to enforce loan agreement and mortgage - Whether defendant signed loan agreement or whether her signature was the product of forgery - Whether bank acted unconscionably in granting the loan - Held that defendant signed the loan agreement and bank did not act unconscionably - Loan agreement and mortgage able to be enforced.
CONTRACT - Proceeding by bank to enforce loan agreement and mortgage - Whether defendant signed loan agreement or whether her signature was the product of forgery - Whether bank acted unconscionably in granting the loan - Held that defendant signed the loan agreement and bank did not act unconscionably - Loan agreement and mortgage able to be enforced.
CONTRACT - Parties entered into deed to settle a dispute without there being litigation on foot - Defendants defaulted in performance of the deed - Whether plaintiffs are entitled to judgment in accordance with the terms of the deed - Whether court should imply a term into the deed in respect of payments allegedly already made being deducted from judgment amount - Held no basis for alleged implied term in this instance - BP Refinery v Hastings (1977) 180 CLR 266; Adaz Nominees Pty Ltd v Castleway Pty Ltd [2020] VSCA 201, applied.
CONTRACT - Parties entered into deed to settle a dispute without there being litigation on foot - Defendants defaulted in performance of the deed - Whether plaintiffs are entitled to judgment in accordance with the terms of the deed - Whether court should imply a term into the deed in respect of payments allegedly already made being deducted from judgment amount - Held no basis for alleged implied term in this instance - BP Refinery v Hastings (1977) 180 CLR 266; Adaz Nominees Pty Ltd v Castleway Pty Ltd [2020] VSCA 201, applied.
INTEREST - Whether Supreme Court Act 1983 (Vic), s 58(1) applies.
PRACTICE AND PROCEDURE - Whether fair to allow defendants to claim against second plaintiff where claim not previously articulated sufficiently to put second plaintiff on notice.
COSTS COURT - Costs orders against applicant - Applicant objected to respondent's bill of costs - Applicant objected to Cost Registrar's notice of estimate - Respondent's costs taxed - Judicial Registrar dismissed application for review of Cost Registrar's determination - Application for review of Judicial Registrar determination - Costs Judge dismissed application for review - Appeal of Costs Judge decision - Appeal dismissed.
COSTS COURT - Costs orders against applicant - Applicant objected to respondent's bill of costs - Applicant objected to Cost Registrar's notice of estimate - Respondent's costs taxed - Judicial Registrar dismissed application for review of Cost Registrar's determination - Application for review of Judicial Registrar determination - Costs Judge dismissed application for review - Appeal of Costs Judge decision - Appeal dismissed.
WILLS AND ESTATES - Application by plaintiff for grant of probate - Caveat filed to oppose grant - Sole ground of objection to grant asserted lack of testamentary capacity - Plaintiff's application for prima facie case hearing - No prima facie case to support caveat demonstrated - Caveat struck out.
WILLS AND ESTATES - Application by plaintiff for grant of probate - Caveat filed to oppose grant - Sole ground of objection to grant asserted lack of testamentary capacity - Plaintiff's application for prima facie case hearing - No prima facie case to support caveat demonstrated - Caveat struck out.
COSTS - FAMILY PROVISION APPLICATION - Indemnity costs against self-represented non-party - Plaintiff and daughter the only two beneficiaries of mother's estate - Defendant in both proceedings and executor obtained probate in 2023 - Plaintiff and daughter each applied for further provision under Part IV of Administration and Probate Act - Daughter's application dismissed for repeated non-compliance with orders - Shortly before plaintiff's trial, daughter filed application for revocation of probate - Trial date vacated - Plaintiff and defendant seek orders that daughter pay costs thrown away on indemnity basis - Consideration of principles applicable to indemnity costs order against non-party in Part IV applications - Lennan v Chao (No 2) [2025] VSC 513 - Macedon Ranges Shire Council v Thompson [2009] VSCA 209; (2009) 170 LGERA 41 - MC Wholesaling Pty Ltd v Zheng [2024] VSCA 248 - Held: Real and direct connection between daughter and proceeding - Material connection between daughter and costs thrown away - No reason to depart from usual rule that costs follow the event - Circumstances warrant order that daughter pay plaintiff's and defendant's costs thrown away on indemnity basis.
COSTS - FAMILY PROVISION APPLICATION - Indemnity costs against self-represented non-party - Plaintiff and daughter the only two beneficiaries of mother's estate - Defendant in both proceedings and executor obtained probate in 2023 - Plaintiff and daughter each applied for further provision under Part IV of Administration and Probate Act - Daughter's application dismissed for repeated non-compliance with orders - Shortly before plaintiff's trial, daughter filed application for revocation of probate - Trial date vacated - Plaintiff and defendant seek orders that daughter pay costs thrown away on indemnity basis - Consideration of principles applicable to indemnity costs order against non-party in Part IV applications - Lennan v Chao (No 2) [2025] VSC 513 - Macedon Ranges Shire Council v Thompson [2009] VSCA 209; (2009) 170 LGERA 41 - MC Wholesaling Pty Ltd v Zheng [2024] VSCA 248 - Held: Real and direct connection between daughter and proceeding - Material connection between daughter and costs thrown away - No reason to depart from usual rule that costs follow the event - Circumstances warrant order that daughter pay plaintiff's and defendant's costs thrown away on indemnity basis.
COSTS - ADMINISTRATION AND PROBATE - Costs dispute between children of deceased following determinations of application for judicial advice by limited administrator of estate and of application for recovery of possession of estate property - Litigation in substance an adversarial dispute between potential beneficiaries - Costs follow the event - Indemnity costs - No issue of principle.
COSTS - ADMINISTRATION AND PROBATE - Costs dispute between children of deceased following determinations of application for judicial advice by limited administrator of estate and of application for recovery of possession of estate property - Litigation in substance an adversarial dispute between potential beneficiaries - Costs follow the event - Indemnity costs - No issue of principle.
APPEAL - ADMINISTRATIVE LAW - Appeal on question of law - Whether magistrate's reasons for finding appellant guilty of knowing possession of child pornography met the legal standard of adequacy - Crimes Act 1958 s 70(1) - Criminal Procedure Act 2009 s 272.
APPEAL - ADMINISTRATIVE LAW - Appeal on question of law - Whether magistrate's reasons for finding appellant guilty of knowing possession of child pornography met the legal standard of adequacy - Crimes Act 1958 s 70(1) - Criminal Procedure Act 2009 s 272.
ADMINISTRATIVE LAW - Judicial review - Determination by a medical panel of a medical question - Whether medical panel failed to consider a mandatory relevant consideration - Whether merits review - Whether reasons of a medical panel may assist a court to determine whether a relevant consideration was taken into account - Edwards v Victoria [2021] VSC 423 - Victorian Workcover Authority v Putrus [2023] VSCA 28 - Victorian Workcover Authority v Jamali [2023] VSCA 240 - Wrongs Act 1958 (Vic), Part VBA.
ADMINISTRATIVE LAW - Judicial review - Determination by a medical panel of a medical question - Whether medical panel failed to consider a mandatory relevant consideration - Whether merits review - Whether reasons of a medical panel may assist a court to determine whether a relevant consideration was taken into account - Edwards v Victoria [2021] VSC 423 - Victorian Workcover Authority v Putrus [2023] VSCA 28 - Victorian Workcover Authority v Jamali [2023] VSCA 240 - Wrongs Act 1958 (Vic), Part VBA.
ADMINISTRATIVE LAW - Judicial review - Determination of a referred medical question by a medical panel - Assessment of degree on impairment under Part VBA of the Wrongs Act 1958 (Vic) (the 'Act') - Where the determination was the degree of impairment did not satisfy the 'threshold level' for a 'significant' injury' under Part VBA of the Act - Medical negligence - Where allegation that wrongful surgery was the relevant 'injury' - Jurisdictional error - Whether failure to identify correct injury - Consequential error in the application of the AMA Guides - Relevant considerations - Whether material error - Medical Panel failed to discharge statutory function - Certiorari - Remittal to differently constituted medical panel.
ADMINISTRATIVE LAW - Judicial review - Determination of a referred medical question by a medical panel - Assessment of degree on impairment under Part VBA of the Wrongs Act 1958 (Vic) (the 'Act') - Where the determination was the degree of impairment did not satisfy the 'threshold level' for a 'significant' injury' under Part VBA of the Act - Medical negligence - Where allegation that wrongful surgery was the relevant 'injury' - Jurisdictional error - Whether failure to identify correct injury - Consequential error in the application of the AMA Guides - Relevant considerations - Whether material error - Medical Panel failed to discharge statutory function - Certiorari - Remittal to differently constituted medical panel.
Wrongs Act 1958 (Vic) ss 28LB, 28LE, 28LH, 28LN, 28LWE, 28LZG(1), 28LZG(2) - Chua v Lowthian [2011] VSC 468, Chang v Neill [2019] VSCA 151, Latchford v Gibbons [2021] VSC 229, Summers v Director of Housing & Ors [2012] VSC 395, Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, Victorian WorkCover Authority v Putrus [2023] VSCA 28 referred to.
EVIDENCE - Expert evidence - Hearsay - Admissibility of defendant's expert valuation report tendered by plaintiff without examination of expert - Application by plaintiff to limit scope or use of report under s 136 of the Evidence Act 2008 (Vic) - Discretion not exercised - Report admitted without limitation.
EVIDENCE - Expert evidence - Hearsay - Admissibility of defendant's expert valuation report tendered by plaintiff without examination of expert - Application by plaintiff to limit scope or use of report under s 136 of the Evidence Act 2008 (Vic) - Discretion not exercised - Report admitted without limitation.
DISCOVERY - Privilege - Whether pleading defence on the basis of Deed of Release as bar to current proceeding amounts to waiver of client legal privilege - Application of principles of discovery and client legal privilege - DZY (a pseudonym) v Trustees of the Christian Brothers (2025) 422 ALR 372 - Foley v The Roman Catholic Trusts Corporation for the Diocese of Sale (unreported ruling delivered 17 June 2022) - Civil Procedure Act 2010 (Vic) s 55 - Supreme Court (General Civil Procedure) Rules 2025 (Vic) Order 29 - Evidence Act 2008 (Vic) ss 119, 122 - Limitation of Actions Act 1958 (Vic) ss 27QD and QE.
DISCOVERY - Privilege - Whether pleading defence on the basis of Deed of Release as bar to current proceeding amounts to waiver of client legal privilege - Application of principles of discovery and client legal privilege - DZY (a pseudonym) v Trustees of the Christian Brothers (2025) 422 ALR 372 - Foley v The Roman Catholic Trusts Corporation for the Diocese of Sale (unreported ruling delivered 17 June 2022) - Civil Procedure Act 2010 (Vic) s 55 - Supreme Court (General Civil Procedure) Rules 2025 (Vic) Order 29 - Evidence Act 2008 (Vic) ss 119, 122 - Limitation of Actions Act 1958 (Vic) ss 27QD and QE.
PRACTICE AND PROCEDURE - Application to vacate trial date - Unavailability of trial counsel - Right to a fair trial and procedural fairness - Case management considerations, including judicial and administrative resources - Civil Procedure Act 2010 ss 7, 8, 9, 16-26.
PRACTICE AND PROCEDURE - Application to vacate trial date - Unavailability of trial counsel - Right to a fair trial and procedural fairness - Case management considerations, including judicial and administrative resources - Civil Procedure Act 2010 ss 7, 8, 9, 16-26.
PRACTICE AND PROCEDURE - Court's inherent jurisdiction to restrain its officers from acting in a proceeding - Where single firm represents both defendants - Whether a reasonably informed member of the public would conclude that solicitors should be prevented from acting for both defendants - Whether a real and immediate risk to the integrity of the judicial process and administration of justice - Where plaintiff advances a claim of negligence and a claim of conspiracy by unlawful means between the defendants - Where an assessment of whether the defendants have engaged in a fraudulent common enterprise is required - Where allegations raise the influence of the mother-daughter relationship between the defendants - Allegations of a quasi-criminal nature - Risk to integrity of evidence - Solicitors continuing to act for both defendants poses a real risk to the integrity of the judicial process and the administration of justice - Solicitors restrained from acting - Kallinicos v Hunt [2005] 64 NSWLR 561 - Miller v Martin [2019] VSCA 86 - R v Pham [2017] QCA 43 - Summary Offences Act 1966, s 53.
PRACTICE AND PROCEDURE - Court's inherent jurisdiction to restrain its officers from acting in a proceeding - Where single firm represents both defendants - Whether a reasonably informed member of the public would conclude that solicitors should be prevented from acting for both defendants - Whether a real and immediate risk to the integrity of the judicial process and administration of justice - Where plaintiff advances a claim of negligence and a claim of conspiracy by unlawful means between the defendants - Where an assessment of whether the defendants have engaged in a fraudulent common enterprise is required - Where allegations raise the influence of the mother-daughter relationship between the defendants - Allegations of a quasi-criminal nature - Risk to integrity of evidence - Solicitors continuing to act for both defendants poses a real risk to the integrity of the judicial process and the administration of justice - Solicitors restrained from acting - Kallinicos v Hunt [2005] 64 NSWLR 561 - Miller v Martin [2019] VSCA 86 - R v Pham [2017] QCA 43 - Summary Offences Act 1966, s 53.
PRACTICE AND PROCEDURE - Application to adjourn to join new defendants on the eve of trial - Application would necessitate adjournment - Explanation for late strategic change not adequate - Civil Procedure Act 2010 (Vic) - Broadhead v Reliable Discount Movers Pty Ltd [2026] VSC 43.
PRACTICE AND PROCEDURE - Application to adjourn to join new defendants on the eve of trial - Application would necessitate adjournment - Explanation for late strategic change not adequate - Civil Procedure Act 2010 (Vic) - Broadhead v Reliable Discount Movers Pty Ltd [2026] VSC 43.
PRACTICE AND PROCEDURE - Summary judgment - Application under s 63 of the Civil Procedure Act 2010 (Vic) - Whether no real prospect of success - Where applicant identified no legal error - Where applicant's claim was misconceived - Application granted.
PRACTICE AND PROCEDURE - Summary judgment - Application under s 63 of the Civil Procedure Act 2010 (Vic) - Whether no real prospect of success - Where applicant identified no legal error - Where applicant's claim was misconceived - Application granted.
PRACTICE AND PROCEDURE - Extended litigation restraint orders - Application under s 17 of the Vexatious Proceedings Act 2014 (Vic) - Where leave to apply not sought under s 16 - Granting application constituting extreme remedy - Whether the applicant's commencement of proceedings is habitual and persistent - Number of proceedings commenced not rising to required level of frequency - Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 and LL v MM [2019] VSC 174 considered - Application refused.
PRACTICE AND PROCEDURE - Application to recognise informal service out of Australia under r 6.11 and for dispensation of requirement to serve Form 7AAA notice under r 7.05 - Where no attempt to effect service under Order 80 and the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters - Where documents sent by post and Form 7AAA not provided - Whether r 6.11 applies to service out of Australia - Where foreign party informally served has not appeared - Evidence insufficient to show the foreign party had notice of this proceeding or documents to be served under foreign law - Application refused - Supreme Court (General Civil Procedure) Rules 2025 (Vic), rr 6.11, 7.02, 7.05, 7.09.
PRACTICE AND PROCEDURE - Application to recognise informal service out of Australia under r 6.11 and for dispensation of requirement to serve Form 7AAA notice under r 7.05 - Where no attempt to effect service under Order 80 and the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters - Where documents sent by post and Form 7AAA not provided - Whether r 6.11 applies to service out of Australia - Where foreign party informally served has not appeared - Evidence insufficient to show the foreign party had notice of this proceeding or documents to be served under foreign law - Application refused - Supreme Court (General Civil Procedure) Rules 2025 (Vic), rr 6.11, 7.02, 7.05, 7.09.
PRACTICE AND PROCEDURE - Application by defendants to amend defence and adjourn trial date.
PRACTICE AND PROCEDURE - Application by defendants to amend defence and adjourn trial date.
POLICE - Terrorism - Statute empowering Supreme Court to authorise exercise of special powers to ensure the safety of persons attending event - Whether authorisation reasonably necessary to ensure the safety of persons attending the event - Terrorism (Community Protection) Act 2003 (Vic) ss 4, 21B, 2N, 21O, 21P, 21Q, 21R, 21T, 21U, 21V.
POLICE - Terrorism - Statute empowering Supreme Court to authorise exercise of special powers to ensure the safety of persons attending event - Whether authorisation reasonably necessary to ensure the safety of persons attending the event - Terrorism (Community Protection) Act 2003 (Vic) ss 4, 21B, 2N, 21O, 21P, 21Q, 21R, 21T, 21U, 21V.
HUMAN RIGHTS - Terrorism - Authorisation of special powers to ensure safety of persons attending event - Limitation of human rights - Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 7(2), 8, 9, 10, 12, 13, 15, 16, 17, 21, 22.
Application by the Chief Commissioner of Victoria Police under s 21B of Part 3A of the Terrorism (Community Protection) Act 2003 [2024] VSC 815; Application by the Chief Commissioner of Victoria Police under s 21B of Part 3A of the Terrorism (Community Protection) Act 2003 [2025] VSC 832.
COSTS - Foreign lawyers retained by a party and non-party to provide legal services in respect of defamation proceedings by and against the party in Victoria - Local lawyers also retained as solicitors on the record - Foreign lawyers' fees claimed as disbursement in local lawyers' bill of costs - Whether foreign lawyers' fees are recoverable as a disbursement in bill of costs - Whether indemnity principle applies - Whether party liable for foreign lawyers' fees - Whether non-party is a 'real party' in the proceedings - Dyktynski v BHP Titanium Minerals Pty Ltd (2004) 60 NSWLR 203 considered and applied - Whether foreign lawyers' fees are for 'legal services' - Cornall v Nagle [1995] 2 VR 188 - Whether foreign lawyers' fees are unrecoverable under ss 10 and 69 of the Legal Profession Uniform Law 2014 ('LPUL') - Santos Lt v Delhi Petroleum Ltd (2005) 240 LSJS 366 considered. Held: Foreign lawyers were principals, not agents - Party not liable under terms of retainer for foreign lawyers' fees - Foreign lawyers' fees not recoverable under indemnity principle or as a 'real party' - Foreign lawyers' fees not otherwise recoverable by reason of provisions of the LPUL except to the extent that they come within statutory exceptions.
COSTS - Foreign lawyers retained by a party and non-party to provide legal services in respect of defamation proceedings by and against the party in Victoria - Local lawyers also retained as solicitors on the record - Foreign lawyers' fees claimed as disbursement in local lawyers' bill of costs - Whether foreign lawyers' fees are recoverable as a disbursement in bill of costs - Whether indemnity principle applies - Whether party liable for foreign lawyers' fees - Whether non-party is a 'real party' in the proceedings - Dyktynski v BHP Titanium Minerals Pty Ltd (2004) 60 NSWLR 203 considered and applied - Whether foreign lawyers' fees are for 'legal services' - Cornall v Nagle [1995] 2 VR 188 - Whether foreign lawyers' fees are unrecoverable under ss 10 and 69 of the Legal Profession Uniform Law 2014 ('LPUL') - Santos Lt v Delhi Petroleum Ltd (2005) 240 LSJS 366 considered. Held: Foreign lawyers were principals, not agents - Party not liable under terms of retainer for foreign lawyers' fees - Foreign lawyers' fees not recoverable under indemnity principle or as a 'real party' - Foreign lawyers' fees not otherwise recoverable by reason of provisions of the LPUL except to the extent that they come within statutory exceptions.
CRIMINAL LAW - Sentencing following jury verdicts - Kidnapping - Murder - Manslaughter - Arson - At trial, Crown alleged that, by agreement, DD, KS and DC kidnapped CG, murdered him, then burned vehicle with his body inside it, destroying both - DD gave evidence mostly exculpating himself and implicating DC and KS - DC gave evidence mostly exculpating himself (and KS, in part) and implicating DD (and KS, in part) - Jury found DD guilty of kidnapping, murder and arson; KS not guilty of murder and arson, but guilty of kidnapping and manslaughter; and DC not guilty of murder, manslaughter and arson, but guilty of kidnapping - Jury's verdicts, and sentencing facts found, consistent with rejection of DD's evidence, acceptance of (or failure to reject) DC's evidence, and acceptance of parts of Crown's circumstantial case and rejection of (or failure to accept) other parts.
CRIMINAL LAW - Sentencing following jury verdicts - Kidnapping - Murder - Manslaughter - Arson - At trial, Crown alleged that, by agreement, DD, KS and DC kidnapped CG, murdered him, then burned vehicle with his body inside it, destroying both - DD gave evidence mostly exculpating himself and implicating DC and KS - DC gave evidence mostly exculpating himself (and KS, in part) and implicating DD (and KS, in part) - Jury found DD guilty of kidnapping, murder and arson; KS not guilty of murder and arson, but guilty of kidnapping and manslaughter; and DC not guilty of murder, manslaughter and arson, but guilty of kidnapping - Jury's verdicts, and sentencing facts found, consistent with rejection of DD's evidence, acceptance of (or failure to reject) DC's evidence, and acceptance of parts of Crown's circumstantial case and rejection of (or failure to accept) other parts.
SENTENCE (DD) - As planned with KS, DD kidnapped and assaulted CG as retribution for informing police on KS's friend TM - But DD went beyond plan and murdered CG - Unclear precisely how, when or where DD murdered CG, but jury must have found CG died from physical assault by him - Not satisfied DD stabbed CG or intended or expected to kill him; but satisfied intended to cause really serious injury with retributive motive - Arson aggravated by destruction of CG's body and motive to destroy evidence - Serious instances of kidnapping and murder; very serious arson - DD relatively young (24) at time; 28 now - No prior convictions - Positive character traits - Low risk of recidivism - Prison likely to weigh more heavily on DD than others - Particular hardship of custodial conditions - Very good prospects of rehabilitation - Bugmy considerations - Importance of general deterrence, just punishment, denunciation, and rehabilitation - Less weight to specific deterrence and community protection - Parity - Totality - Sentenced to prison for six years on kidnapping, 22 years on murder, and seven years on arson - With cumulation, total effective sentence ("TES") of 26 years' imprisonment - Non-parole period ("NPP") of 17 years (~65% of TES) - Given DD's age, lack of priors, and very good prospects of rehabilitation, in interests of justice to impose NPP of less than 70% of TES - Crimes Act 1958 (Vic), ss 3, 197 & 320; Sentencing Act 1991 (Vic), ss 5, 5A, 5B, 11, 11A & 18.
SENTENCE (KS) - As planned with DD, KS involved in kidnapping and assault of CG as retribution for informing police on TM - Manslaughter by KS limited to agreement that DD would assault CG by unlawful and dangerous act with retributive motive - KS told DD to "pull up" when he was assaulting CG - Serious instances of kidnapping and manslaughter - KS aged 37 at time; 40 now - Relatively modest criminal history (no priors for violence) - Offered to plead guilty to manslaughter before trial - Conceded to jury guilty of kidnapping - Remorse - Prison likely to weigh more heavily on KS than others because of mental conditions - Particular hardship of custodial conditions - Extra-curial punishment in having murder and burning CG's body and Territory hanging over head until verdicts - Good prospects of rehabilitation - Importance of general deterrence, just punishment, denunciation and rehabilitation - Less weight to specific deterrence and community protection - Parity - Totality - Mercy - Sentenced to imprisonment for five years on kidnapping and nine years on manslaughter - With cumulation, TES of ten years' imprisonment - NPP of six years - Crimes Act 1958 (Vic), ss 5 & 320; Sentencing Act 1991 (Vic), ss 5, 11 & 18.
SENTENCE (DC) - DC sentenced last year, prior to co-accused, because eligible to apply for parole forthwith - Imprisoned for three years on kidnapping and two years on plea of guilty to unrelated arson - With cumulation, TES of four years' imprisonment - NPP of two years and four months - See R v Clarke [2025] VSC 794.
CONTRACTS - AUTHORITY - Contract for sale of land - Company as registered proprietor - Significant lapse of time with no settlement - Where contract of sale executed by unlawfully appointed director - Whether that person had implied actual authority or ostensible authority - Conduct of true director - Whether true director otherwise acquiesced - Whether relief of specific performance is impossible - Doctrine of laches - Whether alternative claim for damages is time-barred.
CONTRACTS - AUTHORITY - Contract for sale of land - Company as registered proprietor - Significant lapse of time with no settlement - Where contract of sale executed by unlawfully appointed director - Whether that person had implied actual authority or ostensible authority - Conduct of true director - Whether true director otherwise acquiesced - Whether relief of specific performance is impossible - Doctrine of laches - Whether alternative claim for damages is time-barred.
MEDICAL NEGLIGENCE - Total hip replacement - Post-operative physiotherapy - Services provided by seventh defendant - Payment for services by private health insurer disputed by plaintiff - Summary dismissal.
MEDICAL NEGLIGENCE - Total hip replacement - Post-operative physiotherapy - Services provided by seventh defendant - Payment for services by private health insurer disputed by plaintiff - Summary dismissal.
TESTATOR'S FAMILY MAINTENANCE - Application for further provision from estate - Terms of settlement entered - Final orders made by consent - Default - Reinstatement of proceeding.
TESTATOR'S FAMILY MAINTENANCE - Application for further provision from estate - Terms of settlement entered - Final orders made by consent - Default - Reinstatement of proceeding.
WORKERS COMPENSATION - Truck-driver injured in Victoria - Whether employment connected with State of Victoria - Whether entitlement to compensation - Workplace Injury Rehabilitation and Compensation Act 2013 (VIC), ss 37, 314.
WORKERS COMPENSATION - Truck-driver injured in Victoria - Whether employment connected with State of Victoria - Whether entitlement to compensation - Workplace Injury Rehabilitation and Compensation Act 2013 (VIC), ss 37, 314.