INSURANCE - Application for leave to appeal - Claim for damages against respondent plumbers for defective plumbing works - Applicant sought joinder of insurers as respondents to make direct claim against them - Interpretation of Licensed Plumbers General Insurance Order 2002 made under the Building Act 1993 - Ministerial Order requires plumbers to take out insurance cover in specified categories and amounts to be eligible to be licensed under Part 12A of the Building Act 1993 - Respondent plumbers did not refuse to make a claim against insurers - Conditions governing entitlement to bring a direct claim against insurers not satisfied - Insurance policies not 'junk insurance' - Insurers' liability conditional upon establishment of liability against the insured - No liability for loss and damage as a result of defective plumbing works yet established - No error in refusal to join insurers - No real prospect of success on any proposed ground - Application for leave to appeal dismissed.
INSURANCE - Application for leave to appeal - Claim for damages against respondent plumbers for defective plumbing works - Applicant sought joinder of insurers as respondents to make direct claim against them - Interpretation of Licensed Plumbers General Insurance Order 2002 made under the Building Act 1993 - Ministerial Order requires plumbers to take out insurance cover in specified categories and amounts to be eligible to be licensed under Part 12A of the Building Act 1993 - Respondent plumbers did not refuse to make a claim against insurers - Conditions governing entitlement to bring a direct claim against insurers not satisfied - Insurance policies not 'junk insurance' - Insurers' liability conditional upon establishment of liability against the insured - No liability for loss and damage as a result of defective plumbing works yet established - No error in refusal to join insurers - No real prospect of success on any proposed ground - Application for leave to appeal dismissed.
Building Act 1993, ss 221ZQ and 221ZT, Pt 12A; Insurance Contracts Act 1984 (Cth); Licensed Plumbers General Insurance Order 2002.
Commercial and General Insurance Co Ltd v Government Insurance Office (NSW) (1973) 129 CLR 374; Etna v Arif [1999] 2 VR 353.
INDUSTRIAL LAW - Portable long service leave scheme in construction industry provided by Construction Industry Long Service Leave Fund - Employer liable to pay long service leave charge in respect of a worker employed to perform construction work in the construction industry - Meaning of 'construction work' and 'construction industry' as defined in the Rules of the Fund - Whether 'substantial character' test to be applied to determine whether applicant employer is 'in the construction industry' - Determination to be made by reference to the definitions of 'construction work' and 'construction industry' in the Rules - Applicant in the construction industry - Exception for 'construction work' comprising 'maintenance or repairs of a routine or minor nature' for an employer not engaged substantially in the construction industry - Applicant substantially engaged in the construction industry - Meaning of maintenance or repairs 'of a routine or minor nature' - Maintenance or repair work undertaken for applicant not routine or minor - Application for leave to appeal granted - Appeal dismissed.
INDUSTRIAL LAW - Portable long service leave scheme in construction industry provided by Construction Industry Long Service Leave Fund - Employer liable to pay long service leave charge in respect of a worker employed to perform construction work in the construction industry - Meaning of 'construction work' and 'construction industry' as defined in the Rules of the Fund - Whether 'substantial character' test to be applied to determine whether applicant employer is 'in the construction industry' - Determination to be made by reference to the definitions of 'construction work' and 'construction industry' in the Rules - Applicant in the construction industry - Exception for 'construction work' comprising 'maintenance or repairs of a routine or minor nature' for an employer not engaged substantially in the construction industry - Applicant substantially engaged in the construction industry - Meaning of maintenance or repairs 'of a routine or minor nature' - Maintenance or repair work undertaken for applicant not routine or minor - Application for leave to appeal granted - Appeal dismissed.
WORDS AND PHRASES - 'construction industry' - 'construction work' - 'in the construction industry' - 'routine or minor nature'.
Construction Industry Long Service Leave Act 1997, ss 3(1), 4(1), 6.
R v Hibble; Ex parte Broken Hill Proprietary Co Ltd (1921) 29 CLR 290; R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123; R v Moore; Ex parte Australian Workers' Union (1976) 11 ALR 449; R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470; R v Isaac; Ex parte Transport Workers Union of Australia (1985) 159 CLR 323;* Aust-Amec Pty Ltd v Construction Industry Long Service Leave Payments Board* (1995) 15 WAR 150; Coal Mining Industry (Long Service Leave Funding) Corporation v Hitachi Construction Machinery (Aust) Pty Ltd (2023) 322 IR 129; Orica Australia Pty Ltd v Coal Mining Industry (Long Service Leave Funding) Corporation [2023] FCA 1515, considered.
CRIMINAL LAW - Election to renew application for leave to appeal sentence and application for extension of time - Plea of guilty to aggravated burglary, conduct endangering persons, sexual assault, attempted rape and unlawful assault - Single judge of Court of Appeal previously refused extension of time on basis that proposed grounds of appeal had no merit - Where applicant unable to identify any significant matter overlooked or misunderstood by single judge - Considerable weight to be given to detailed reasons of single judge - Very serious offending - Proposed grounds of appeal without merit - Application for extension of time refused.
CRIMINAL LAW - Election to renew application for leave to appeal sentence and application for extension of time - Plea of guilty to aggravated burglary, conduct endangering persons, sexual assault, attempted rape and unlawful assault - Single judge of Court of Appeal previously refused extension of time on basis that proposed grounds of appeal had no merit - Where applicant unable to identify any significant matter overlooked or misunderstood by single judge - Considerable weight to be given to detailed reasons of single judge - Very serious offending - Proposed grounds of appeal without merit - Application for extension of time refused.
Criminal Procedure Act 2009, s 315(2).
Lord v The Queen [2018] VSCA 52; Ayol v The Queen [2014] VSCA 151, applied.
CRIMINAL LAW - Sentence - Application for extension of time in which to file a notice of appeal - Applicant pleaded guilty to aggravated burglary, theft and possession of drug of dependence - Total effective sentence of 5 years and six months' imprisonment - Whether sentence manifestly excessive - Applicant was involved in a plan, with two others, to steal money from a hotel by staging an 'armed robbery' - Applicant played the role of the armed robber - Co-offenders posed as a fake victim and assisted applicant to gain entry to hotel after hours - Total of $321,990 stolen and $27,000 ultimately recovered - Applicant submitted he was not involved in planning to a significant degree - Whether sufficient weight given to guilty plea - Whether Verdins limbs 5 and 6 correctly applied given applicant's deterioration in custody - Whether sentence for theft outside of the available range - Proposed ground of appeal has no real prospect of success - Application refused.
CRIMINAL LAW - Sentence - Application for extension of time in which to file a notice of appeal - Applicant pleaded guilty to aggravated burglary, theft and possession of drug of dependence - Total effective sentence of 5 years and six months' imprisonment - Whether sentence manifestly excessive - Applicant was involved in a plan, with two others, to steal money from a hotel by staging an 'armed robbery' - Applicant played the role of the armed robber - Co-offenders posed as a fake victim and assisted applicant to gain entry to hotel after hours - Total of $321,990 stolen and $27,000 ultimately recovered - Applicant submitted he was not involved in planning to a significant degree - Whether sufficient weight given to guilty plea - Whether Verdins limbs 5 and 6 correctly applied given applicant's deterioration in custody - Whether sentence for theft outside of the available range - Proposed ground of appeal has no real prospect of success - Application refused.
Crimes Act 1958, ss 77, 74(1); Drugs, Poisons and Controlled Substances Act 1981, s 73(1); Road Safety Act 1986, s 30(1).
Saab v The Queen [2012] VSCA 165; DPP v Ede [2021] VCC 191; DPP v Kachami [2020] VCC 1849; Tufue v The King [2024] VSCA 22; Saab v The Queen [2012] VSCA 165; Director of Public Prosecutions (Vic) v Dalgliesh (2017) 262 CLR 428; Hili v The Queen (2010) 242 CLR 520, discussed.
Madafferi v The Queen [2017] VSCA 302; Clarkson v The Queen (2011) 32 VR 361; Osman v The Queen [2021] VSCA 176, applied.
CRIMINAL LAW - Application for leave to appeal against 2011 convictions for obtaining financial advantage by deception (3 charges) and attempting to obtain financial advantage by deception (1 charge) - Application for leave to appeal filed in 2017 - Application containing 23 proposed grounds of appeal - Extension of time granted in respect of proposed ground of appeal relating to Lawyer X, but refused in respect of remaining 22 proposed grounds - Applicant failing to comply with orders requiring filing and service of amended written case.
CRIMINAL LAW - Application for leave to appeal against 2011 convictions for obtaining financial advantage by deception (3 charges) and attempting to obtain financial advantage by deception (1 charge) - Application for leave to appeal filed in 2017 - Application containing 23 proposed grounds of appeal - Extension of time granted in respect of proposed ground of appeal relating to Lawyer X, but refused in respect of remaining 22 proposed grounds - Applicant failing to comply with orders requiring filing and service of amended written case.
PRACTICE AND PROCEDURE - Application by respondent for dismissal of application for leave to appeal for want of prosecution - Delay explained in part by applicant pursuing applications under s 317 of Criminal Procedure Act 2009 for disclosure of material relevant to proposed ground of appeal relating to Lawyer X - Proposed ground of appeal relating to Lawyer X of sufficient public importance to justify applicant being permitted to pursue that ground on terms - Application for dismissal for want of prosecution not granted at this stage - Timetabling orders made in respect of applicant's only remaining proposed ground of appeal.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Plea of guilty to three charges of negligently causing serious injury by driving - Whether individual sentences, orders for cumulation and non-parole period manifestly inadequate - Respondent driving under influence of alcohol and cocaine - Respondent sped, ran a red light, failed to ensure that passengers were wearing seat belts - Three passengers suffered serious injury - Serious example of offending - Where respondent otherwise of good character - Where respondent had deep and profound remorse and excellent prospects of rehabilitation - Where sentencing judge considered degree of mercy appropriate - Verdins limbs 5 and 6 enlivened - General deterrence and denunciation most important considerations in light of nature and gravity of offending - Wide range of sentences available for negligently causing serious injury by driving - Base sentence of 3 years and 3 months very lenient but not wholly outside range - Individual sentences of 2 years 1 month and 1 year 6 months manifestly inadequate - Appeal allowed - No exercise of residual discretion - Sentences on charges 2 and 3 set aside - Applicant resentenced on charges 2 and 3 to 3 years and 2 years 9 months respectively - Resentenced to total effective sentence of 5 years with 2 years 6 months non-parole.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Plea of guilty to three charges of negligently causing serious injury by driving - Whether individual sentences, orders for cumulation and non-parole period manifestly inadequate - Respondent driving under influence of alcohol and cocaine - Respondent sped, ran a red light, failed to ensure that passengers were wearing seat belts - Three passengers suffered serious injury - Serious example of offending - Where respondent otherwise of good character - Where respondent had deep and profound remorse and excellent prospects of rehabilitation - Where sentencing judge considered degree of mercy appropriate - Verdins limbs 5 and 6 enlivened - General deterrence and denunciation most important considerations in light of nature and gravity of offending - Wide range of sentences available for negligently causing serious injury by driving - Base sentence of 3 years and 3 months very lenient but not wholly outside range - Individual sentences of 2 years 1 month and 1 year 6 months manifestly inadequate - Appeal allowed - No exercise of residual discretion - Sentences on charges 2 and 3 set aside - Applicant resentenced on charges 2 and 3 to 3 years and 2 years 9 months respectively - Resentenced to total effective sentence of 5 years with 2 years 6 months non-parole.
Criminal Procedure Act 2009, ss 207, 209, 289(1).
DPP v Jones (2013) 40 VR 267; R v Pham (2015) 256 CLR 550; DPP v Pualic [2025] VSCA 178; DPP v Karazisis (2010) 31 VR 634; Liddell v The King [2024] VSCA 18; Green v The Queen (2011) 244 CLR 462; Nguyen v The Queen (2016) 256 CLR 656, applied.
Harrison v The Queen (2015) 49 VR 619; Byast v The Queen (2021) 98 MVR 266; Cook v The Queen (2021) 98 MVR 23; Mashayamombe v The King (2023) 103 MVR 427, considered.
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to charges of recklessly exposing emergency worker to risk by driving, possession of drug of dependence, and related summary offences - Sentenced to 2 years and 6 months' imprisonment with 18 months' cumulation on existing sentence for unrelated offending - Applicant struck police officer with car door while reversing car - Police officer dragged under car door for several metres - Applicant failed to render assistance to police officer - Whether Judge failed to give appropriate weight to principle of totality when sentencing applicant - Objectively serious offending - Extensive criminal history - Applicant on bail at time of offending - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to charges of recklessly exposing emergency worker to risk by driving, possession of drug of dependence, and related summary offences - Sentenced to 2 years and 6 months' imprisonment with 18 months' cumulation on existing sentence for unrelated offending - Applicant struck police officer with car door while reversing car - Police officer dragged under car door for several metres - Applicant failed to render assistance to police officer - Whether Judge failed to give appropriate weight to principle of totality when sentencing applicant - Objectively serious offending - Extensive criminal history - Applicant on bail at time of offending - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Application for extension of time to appeal against sentence - Applicant pleaded guilty to charges of false imprisonment and common assault - Sentenced to 2 years and 5 months' imprisonment - Applicant together with co-accused detained victim in hotel room for several weeks for purpose of extortion - Plea hearing - Prosecution disavowed reliance on allegation that applicant threatened victim with handgun in course of offending - Judge referred to allegation in sentencing remarks - Whether Judge relied on allegation when sentencing applicant - Ground of appeal not reasonably arguable - Application for extension of time refused.
Crimes Act 1958, s 317AE; Sentencing Act 1991, ss 5, 16(3C) and 16(3D); Criminal Procedure Act 2009, s 280(1).
R v Kane [1974] VR 759; R v McCormack & Ors [1981] VR 104; DPP v Arvanitidis [2008] VSCA 189; DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; Hutchinson v The Queen (2021) 64 VR 450; Kehayias v The Queen (2021) 97 MVR 364; Jaeger v The Queen (2020) 92 MVR 95; R v Verdins (2007) 16 VR 269, considered.
CRIMINAL LAW - Appeal - Sentence - Application for leave to appeal against sentence - Applicant pleaded guilty to trafficking drug of dependence in commercial quantity, possessing firearm, possessing drug of dependence, knowingly dealing with proceeds of crime, and related summary offending - Sentenced to 13 years and 6 months' imprisonment with non-parole period of 10 years and 6 months - Police seized significant quantity of drugs, firearm and related paraphernalia from applicant's residence - Principle of totality - Total effective sentence wholly outside available range - Application for leave to appeal granted - Appeal allowed - Applicant re-sentenced.
CRIMINAL LAW - Appeal - Sentence - Application for leave to appeal against sentence - Applicant pleaded guilty to trafficking drug of dependence in commercial quantity, possessing firearm, possessing drug of dependence, knowingly dealing with proceeds of crime, and related summary offending - Sentenced to 13 years and 6 months' imprisonment with non-parole period of 10 years and 6 months - Police seized significant quantity of drugs, firearm and related paraphernalia from applicant's residence - Principle of totality - Total effective sentence wholly outside available range - Application for leave to appeal granted - Appeal allowed - Applicant re-sentenced.
Criminal Procedure Act 2009, s 315; Firearms Act 1996, ss 112B, 112D; Drugs, Poisons and Controlled Substances Act 1981, ss 71AA, 73; Crimes Act 1958, s 194.
Gregory (a pseudonym) v The Queen [2017] VSCA 151; DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; Quah v The Queen [2021] VSCA 164; Lieu v The Queen (2016) 263 A Crim R 173; Acciarito v The Queen [2019] VSCA 264; Mill v The Queen (1988) 166 CLR 59, considered.
CRIMINAL LAW - Appeal - Sentence - Application for leave to appeal against sentence - Applicant pleaded guilty to charges of aggravated burglary, threat to inflict serious injury, theft, damaging property and related summary offending - Aggregate sentence - Applicant sentenced to 12 months' imprisonment and community correction order of 24 months - Whether judge erred in imposing aggregate sentence - Offending occurred within short period of time - Offending connected with theft of property - Open to judge to impose aggregate sentence in circumstances - Application for leave to appeal granted - Appeal dismissed.
CRIMINAL LAW - Appeal - Sentence - Application for leave to appeal against sentence - Applicant pleaded guilty to charges of aggravated burglary, threat to inflict serious injury, theft, damaging property and related summary offending - Aggregate sentence - Applicant sentenced to 12 months' imprisonment and community correction order of 24 months - Whether judge erred in imposing aggregate sentence - Offending occurred within short period of time - Offending connected with theft of property - Open to judge to impose aggregate sentence in circumstances - Application for leave to appeal granted - Appeal dismissed.
Sentencing Act 1991, ss 9, 18; Criminal Procedure Act 2009, s 280.
R v Renzella [1997] 2 VR 88; Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269; Hogarth v The Queen (2012) 37 VR 658; DPP v Myers (2014) 44 VR 486; DPP v Frewstal Pty Ltd (2015) 47 VR 600; R v Grossi [2008] VSCA 51; Hassall v The King [2024] VSCA 163, referred to.
CRIMINAL LAW - Interlocutory appeal - Review of refusal to certify - Applicant charged with eight counts of rape, one count of false imprisonment, one count of common assault, one count of sexual assault and one count of sexual assault by compelling sexual touching - Judge granted application to cross-examine complainant on sexual activities under s 342 of Criminal Procedure Act 2009 but not to show related photos or videos to complainant - Judge ruled showing photos and videos to complainant unduly humiliating under s 41 of Evidence Act 2008 - Photos and videos ruled inadmissible - Judge stated parties not free to agree description of photo and videos - Judge refused to certify interlocutory decision under s 295(3)(b) of Criminal Procedure Act 2009 - Whether judge erred in refusing to certify - Whether one or three interlocutory decisions - Whether decision concerning admissibility of evidence - Hameed (a pseudonym) v The King [2026] VSCA 48 - Application for review of refusal to certify dismissed.
CRIMINAL LAW - Interlocutory appeal - Review of refusal to certify - Applicant charged with eight counts of rape, one count of false imprisonment, one count of common assault, one count of sexual assault and one count of sexual assault by compelling sexual touching - Judge granted application to cross-examine complainant on sexual activities under s 342 of Criminal Procedure Act 2009 but not to show related photos or videos to complainant - Judge ruled showing photos and videos to complainant unduly humiliating under s 41 of Evidence Act 2008 - Photos and videos ruled inadmissible - Judge stated parties not free to agree description of photo and videos - Judge refused to certify interlocutory decision under s 295(3)(b) of Criminal Procedure Act 2009 - Whether judge erred in refusing to certify - Whether one or three interlocutory decisions - Whether decision concerning admissibility of evidence - Hameed (a pseudonym) v The King [2026] VSCA 48 - Application for review of refusal to certify dismissed.
Criminal Procedure Act 2009, ss 295-7, 342, 349; Evidence Act 2008, s 41.
Hameed (a pseudonym) v The King [2026] VSCA 48, applied.
CRIMINAL LAW - Sentence - Application for leave to appeal - Historical offending - Charges of kidnapping, aggravated rape, and gross indecency with person under 16 - Applicant sentenced to 13 years and 6 months' imprisonment - Non-parole period of 8 years and 2 months - Whether sentences and non-parole period manifestly excessive - Imposition of sentence of present magnitude unlikely around the time of offending - Risk of double punishment - Leave to appeal granted - Appeal allowed - Applicant resentenced.
CRIMINAL LAW - Sentence - Application for leave to appeal - Historical offending - Charges of kidnapping, aggravated rape, and gross indecency with person under 16 - Applicant sentenced to 13 years and 6 months' imprisonment - Non-parole period of 8 years and 2 months - Whether sentences and non-parole period manifestly excessive - Imposition of sentence of present magnitude unlikely around the time of offending - Risk of double punishment - Leave to appeal granted - Appeal allowed - Applicant resentenced.
Clarkson v The Queen (2011) 32 VR 361; Stalio v The Queen (2012) 46 VR 426; Nguyen v The Queen (2012) 272 FLR 58, referred to.
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to rape, common law assault and persistent FVIO contravention - Where rape occurred with honest but unreasonable belief in consent - Imprisonment sentence of 8 years on rape charge - Total effective sentence of 9 years and 3 months - Non-parole period of 5 years and 6 months - Whether judged failed to properly assess objective seriousness and moral culpability of rape - Whether sentence manifestly excessive - Rape objectively less serious where honest albeit unreasonable belief in consent - Lower moral culpability - Lower than middle range seriousness - Crown concession - Early guilty plea - Lack of prior sexual offending - Positive steps towards rehabilitation - Leave to appeal granted - Appeal allowed - Resentenced to 5 years and 6 months on rape charge - Total effective sentence of 6 years and 9 months.
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to rape, common law assault and persistent FVIO contravention - Where rape occurred with honest but unreasonable belief in consent - Imprisonment sentence of 8 years on rape charge - Total effective sentence of 9 years and 3 months - Non-parole period of 5 years and 6 months - Whether judged failed to properly assess objective seriousness and moral culpability of rape - Whether sentence manifestly excessive - Rape objectively less serious where honest albeit unreasonable belief in consent - Lower moral culpability - Lower than middle range seriousness - Crown concession - Early guilty plea - Lack of prior sexual offending - Positive steps towards rehabilitation - Leave to appeal granted - Appeal allowed - Resentenced to 5 years and 6 months on rape charge - Total effective sentence of 6 years and 9 months.
Crimes Act 1958, s 38(3); Sentencing Act 1991, ss 5A(1)(b), 5A(3)(b).
Skeates (a pseudonym) v The Queen [2023] VSCA 226; DPP v Jarrett (a pseudonym) [2023] VCC 752; Bakshi v The Queen [2018] VSCA 83; Ludeman v The Queen (2010) 31 VR 606, considered.
ADMINISTRATIVE LAW - Judicial Review - Medical Panel - Jurisdictional error - Determination by a Medical Panel of a medical question referred under Part VBA of the Wrongs Act 1958 - Medical Panel's determination that claimant's degree of impairment satisfied threshold level for 'significant injury' - Whether Medical Panel's determination 'in accordance with' the American Medical Association's Guides to the Evaluation of Permanent Impairment - Whether Section 3.2 of the Guides permitted impairments assessed under Sections 3.2d and 3.2k to be combined - Application for leave to appeal refused.
ADMINISTRATIVE LAW - Judicial Review - Medical Panel - Jurisdictional error - Determination by a Medical Panel of a medical question referred under Part VBA of the Wrongs Act 1958 - Medical Panel's determination that claimant's degree of impairment satisfied threshold level for 'significant injury' - Whether Medical Panel's determination 'in accordance with' the American Medical Association's Guides to the Evaluation of Permanent Impairment - Whether Section 3.2 of the Guides permitted impairments assessed under Sections 3.2d and 3.2k to be combined - Application for leave to appeal refused.
Wrongs Act 1958 ss 28LB, 28LE, 28LF.
Vicinity Centres PM Pty Ltd v Arik [2023] VSCA 295; H J Heinz Company Australia Pty Ltd v Kotzman (2009) 31 VAR 206; Amcor PLC v Scardamaglia [2023] VSCA 290, considered.
CONTRACT - Alleged contract pursuant to which first defendant agreed to act as first plaintiff's agent and invest USD $12,979,155.10 in Australia on his behalf and would, subject to any profits being made, be paid a yearly salary out of such profits - Alleged contract partly oral and partly to be implied - Parties to alleged contract in an intimate relationship - Contract not proved.
CONTRACT - Alleged contract pursuant to which first defendant agreed to act as first plaintiff's agent and invest USD $12,979,155.10 in Australia on his behalf and would, subject to any profits being made, be paid a yearly salary out of such profits - Alleged contract partly oral and partly to be implied - Parties to alleged contract in an intimate relationship - Contract not proved.
CONTRACT - Positive allegation in defence - Alleged contract pursuant to which first defendant agreed to invest RMB 66 million in Australia on behalf of her father and his business partner - Alleged contract partly in writing, partly oral, partly to be inferred and partly implied - Contract not proved.
TRUST - USD $12,979,155.10 transferred to Australia from Hong Kong bank account - Whether real property and other investments acquired with funds transferred were held on trust for first plaintiff - Claim to recover part of funds transferred pleaded but not pursued by second plaintiff - Whether RMB 66 million of funds transferred belonged to father of first defendant and his business partner and was transferred out of China by first plaintiff acting as a conduit.
EVIDENCE - Dispute as to whose money was in Hong Kong bank account when USD $12,979,155.10 was transferred - Conflicting oral evidence given predominantly via an interpreter - Sparse documentary evidence only relevant to competing claims - Disputes as to reliability of certain documents - No bank statements in evidence for any relevant bank accounts including Hong Kong bank account from which funds were transferred - Claim and positive allegations in defence as to ownership of transferred funds not proved - Evidence Act 2008 (Vic) s 140, Watson v Foxman (1995) 49 NSWLR 315, John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451, Turner v Richards [2025] NSWCA 83, Tjiong v Chang [2025] NSWCA 25, applied.
COSTS - Indemnity costs - Apportionment of costs on issue-by-issue basis - Where plaintiff Liquidator breached paramount duty and overarching obligations under *Civil Procedure Act *2010 - Where Calderbank offer made - Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 46 FCR 225, 232-234 - Yarra Australia Ltd v Oswal (2013) 41 VR 302, [20]-[21], applied- Actrol Parts Pty Ltd v Coppi (No 3) (2015) 49 VR 573, [111]-[112], applied - Gadsden v Mackinnon (Liquidator), in the matter of Allibi Pty Ltd (in liq) (No 2) [2023] FCA 706 - Supreme Court Act 1986, s 24 - Supreme Court (General Civil Procedure) Rules 2025, ord 63 - Indemnity costs ordered as to whole proceeding - No apportionment of costs.
COSTS - Indemnity costs - Apportionment of costs on issue-by-issue basis - Where plaintiff Liquidator breached paramount duty and overarching obligations under *Civil Procedure Act *2010 - Where Calderbank offer made - Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 46 FCR 225, 232-234 - Yarra Australia Ltd v Oswal (2013) 41 VR 302, [20]-[21], applied- Actrol Parts Pty Ltd v Coppi (No 3) (2015) 49 VR 573, [111]-[112], applied - Gadsden v Mackinnon (Liquidator), in the matter of Allibi Pty Ltd (in liq) (No 2) [2023] FCA 706 - Supreme Court Act 1986, s 24 - Supreme Court (General Civil Procedure) Rules 2025, ord 63 - Indemnity costs ordered as to whole proceeding - No apportionment of costs.
COSTS - Non-party costs - Where Commonwealth acted as litigation funder - Where Commonwealth advanced money under *Fair Entitlements Guarantee Act *2012 (Cth) - Where distinction between public and commercial interest - Where plaintiff Liquidator is a man of straw - Knight v FP Special Assets Ltd (1992) 174 CLR 178, 192-3, applied - FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340 - PM Works Pty Ltd v Management Services Australia Pty Ltd [2018] NSWCA 168 - Declined to make non-party costs order.
APPEAL - Appeal from decision of an Associate Judge to disentitle a trustee from relying on any right of indemnity against trust assets for payment or recoupment of costs ordered to be paid to successful beneficiaries or for its own costs - Plaintiffs were beneficiaries of a unit trust obtained orders following trial for production to them of specified trust documents - Plaintiffs obtained costs order in their favour upon succeeding at trial - Plaintiffs applied for orders that the trustee be deprived of recourse to the indemnity - Trial judge granted that application - Appeal proceeds by way of rehearing - Decision under appeal does not involve an exercise of discretion - Proper test is whether the expenses were properly incurred in the administration of the trust - Properly incurred means reasonably and honestly incurred - Relevant error established to enliven appellate power - Trustee did not act unreasonably in defending the plaintiffs' application for production of trust documents - Appeal granted - Re Beddoe; Downes v Cottam [1893] 1 Ch 547 - Adsett v Berlouis (1992) 37 FCR 201 - Re Howden; Howden v Rackstraw [2020] VSC 315 - Wadren Pty Ltd v AIG Australia Limited [2024] VSC 807 - Rangelea Holdings Pty Ltd v Adnyamathanha Traditional Lands Association [2025] SASCA 32 - Supreme Court (General Civil Procedure) Rules 2025 (Vic), r 77.06.
APPEAL - Appeal from decision of an Associate Judge to disentitle a trustee from relying on any right of indemnity against trust assets for payment or recoupment of costs ordered to be paid to successful beneficiaries or for its own costs - Plaintiffs were beneficiaries of a unit trust obtained orders following trial for production to them of specified trust documents - Plaintiffs obtained costs order in their favour upon succeeding at trial - Plaintiffs applied for orders that the trustee be deprived of recourse to the indemnity - Trial judge granted that application - Appeal proceeds by way of rehearing - Decision under appeal does not involve an exercise of discretion - Proper test is whether the expenses were properly incurred in the administration of the trust - Properly incurred means reasonably and honestly incurred - Relevant error established to enliven appellate power - Trustee did not act unreasonably in defending the plaintiffs' application for production of trust documents - Appeal granted - Re Beddoe; Downes v Cottam [1893] 1 Ch 547 - Adsett v Berlouis (1992) 37 FCR 201 - Re Howden; Howden v Rackstraw [2020] VSC 315 - Wadren Pty Ltd v AIG Australia Limited [2024] VSC 807 - Rangelea Holdings Pty Ltd v Adnyamathanha Traditional Lands Association [2025] SASCA 32 - Supreme Court (General Civil Procedure) Rules 2025 (Vic), r 77.06.
GUARANTEE - Personal guarantee - Borrower in liquidation - Guarantor's liability for shortfall - Guarantor does not dispute execution of guarantee or existence of shortfall - Sole defence based on oral representations alleged to have been made by lender's principal that lender would not pursue guarantor personally - Representations found not to have been made - Judgment entered for lender.
GUARANTEE - Personal guarantee - Borrower in liquidation - Guarantor's liability for shortfall - Guarantor does not dispute execution of guarantee or existence of shortfall - Sole defence based on oral representations alleged to have been made by lender's principal that lender would not pursue guarantor personally - Representations found not to have been made - Judgment entered for lender.
EVIDENCE - Assessment of credibility and reliability of witnesses - Fallibility of human memory in relation to conversations - Risk of unconscious reconstruction of recollection to align with litigation interests - Weight to be accorded to contemporaneous documentary record over oral testimony - Demeanour alone insufficient guide to credibility.
ESTOPPEL - Promissory estoppel - Whether alleged representations clear and unambiguous so as to induce assumption that promisor would not be free to withdraw - Distinction between statement of present intention and promise as to future conduct - Statement that it is not promisor's intention to enforce guarantee does not constitute promise that guarantee will never be enforced - S.T.Y. (Afforestation) Pty Ltd v Atkinson [2006] VSCA 283 applied.
MISLEADING OR DECEPTIVE CONDUCT - Section 18 of the Australian Consumer Law - Section 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) - Representations as to future matter - Section 4 of the Australian Consumer Law - Evidential burden where representations as to future matter alleged - Statement of present intention distinguished from representations as to future conduct - Statement of present intention not rendered misleading merely by subsequent change of mind.
DAMAGES AND LOSS - Reliance and loss - Alleged loss being forgone opportunity to sell property to third party - Third party offer not a genuine commercial proposition capable of completion as at date of alleged representations -Assessment of viability of alternative confined to information available at relevant date - Offer accepted above independent market valuation - Accepted offer avoided risk of lower mortgagee sale price - No reliance or loss established.
DECLARATORY RELIEF - Jurisdiction to grant declaratory relief - Section 36 of the Supreme Court Act 1986 (Vic) - Discretionary nature of power - Requirement for real interest in relief and real controversy - Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 applied - Practical utility of declaration - Declaration as to operation of Victorian-law-governed contracts - Contractual obligation to provide security over foreign land upon request.
ABUSE OF PROCESS - Parallel proceedings in foreign jurisdiction - Whether maintenance of domestic claim amounts to abuse of process - Domestic proceeding commenced before foreign proceeding instituted - Foreign proceeding limited to preservation of status quo - Different issues in domestic and foreign proceedings - Domestic proceeding concerned construction of Victorian contracts - Foreign proceedings concerned preservation of land pending determination of rights- Onus on party asserting abuse of process not discharged - CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 applied - Henry v Henry (1996) 185 CLR 571 applied - Sapphire Group Pty Ltd v Luxotico HK Ltd [2021] NSWSC 589 considered.
FREEZING ORDERS - Freezing orders general principles - Supreme Court (General Civil Procedure) Rules 2025 (Vic) Ord 37A - Ancillary orders general principles - Exceptions and carve-outs to freezing orders - Application for discharge or variation of freezing orders - Application for variation of freezing orders to allow for legal expenses and purchase of real property for a residence - Application to cross-examine - Principles regarding cross-examination on disclosure affidavits - Relevance of alternative source of funds - Freezing orders.
FREEZING ORDERS - Freezing orders general principles - Supreme Court (General Civil Procedure) Rules 2025 (Vic) Ord 37A - Ancillary orders general principles - Exceptions and carve-outs to freezing orders - Application for discharge or variation of freezing orders - Application for variation of freezing orders to allow for legal expenses and purchase of real property for a residence - Application to cross-examine - Principles regarding cross-examination on disclosure affidavits - Relevance of alternative source of funds - Freezing orders.
CORPORATIONS - Winding up - Proof of debt - Appeal against liquidator's rejection of proof of debt - Urgent interlocutory application for an injunction restraining the liquidator from convening a creditor's meeting pending the determination of the appeal - Corporations Act 2001 (Cth) - Schedule 2 (Insolvency Practice Schedule (Corporations)) to the Corporations Act 2001 (Cth) - Corporations Regulations 2001 (Cth) - Insolvency Practice Rules (Corporations) 2016 - ABC v O'Neill (2006) 227 CLR 57 - Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332 - Metal Manufactures Pty Ltd v Morton (2023) 275 CLR 100 - Selim v McGrath (2003) 177 FLR 85 - Re Eliana Construction and Developing Group Pty Ltd [2023] VSC 639 - Bradto Pty Ltd v State of Victoria (2006) 15 VR 65 - El-Saafin & Anor v Franke & Ors (No 3) [2019] VSC 155 - Ilhan v Cvitanovic [2009] NSWSC 479 - Serious question to be tried, damages would not be an adequate remedy, and the balance of convenience favours the plaintiff - No prejudice to body of creditors - Injunction granted.
CORPORATIONS - Winding up - Proof of debt - Appeal against liquidator's rejection of proof of debt - Urgent interlocutory application for an injunction restraining the liquidator from convening a creditor's meeting pending the determination of the appeal - Corporations Act 2001 (Cth) - Schedule 2 (Insolvency Practice Schedule (Corporations)) to the Corporations Act 2001 (Cth) - Corporations Regulations 2001 (Cth) - Insolvency Practice Rules (Corporations) 2016 - ABC v O'Neill (2006) 227 CLR 57 - Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332 - Metal Manufactures Pty Ltd v Morton (2023) 275 CLR 100 - Selim v McGrath (2003) 177 FLR 85 - Re Eliana Construction and Developing Group Pty Ltd [2023] VSC 639 - Bradto Pty Ltd v State of Victoria (2006) 15 VR 65 - El-Saafin & Anor v Franke & Ors (No 3) [2019] VSC 155 - Ilhan v Cvitanovic [2009] NSWSC 479 - Serious question to be tried, damages would not be an adequate remedy, and the balance of convenience favours the plaintiff - No prejudice to body of creditors - Injunction granted.
CORPORATIONS - Application for extension of time - Application for orders to fix date of director's cessation from company - Corporations Act 2001 (Cth), s 203AA - Where liquidator neither consents to nor opposes application - Whether time for making of application should be extended - Found just and equitable in circumstances to extend time - Relief as sought, granted.
CORPORATIONS - Application for extension of time - Application for orders to fix date of director's cessation from company - Corporations Act 2001 (Cth), s 203AA - Where liquidator neither consents to nor opposes application - Whether time for making of application should be extended - Found just and equitable in circumstances to extend time - Relief as sought, granted.
PRACTICE AND PROCEDURE - Summary judgment - Plaintiff seeks summary judgment against defendants - Whether defendants have real prospect of success on their defence and counterclaim - Plaintiff's cause of action made out - Defendants' defence and counterclaim has no real prospect of success - Civil Procedure Act (2010) (Vic), ss 61 and 63 - Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27.
PRACTICE AND PROCEDURE - Summary judgment - Plaintiff seeks summary judgment against defendants - Whether defendants have real prospect of success on their defence and counterclaim - Plaintiff's cause of action made out - Defendants' defence and counterclaim has no real prospect of success - Civil Procedure Act (2010) (Vic), ss 61 and 63 - Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27.
CONTRACT - Proceeding by bank to enforce loan agreement and mortgage - Whether memorandum of common provisions produced to the defendants.
EQUITY - Alleged unconscionable conduct, special disability, duress, undue influence - Estoppel - Allegation of bank's unconscionable exploitation of borrower's special disability due to lack of knowledge of English proficiency - Whether defendants have real prospect of success on their defence and counterclaim.
PRACTICE AND PROCEDURE - Civil Procedure Act 2010 (Vic) ss 7-10, 23-25, 28 and 29 - Obligations upon the Court, parties, and practitioners in context of applications for summary judgment - Multiple tranches of material - Abandoned affidavits and submissions - Costs consequences.
PRACTICE AND PROCEDURE - Abuse of process - Whether the claim in this proceeding is substantially the same in subject matter as earlier claim discontinued in another jurisdiction - Where discontinuance was during trial and conditional on payment of costs which remain unpaid - Whether this proceeding was begun for the improper collateral purpose of avoiding bankruptcy - Proceeding is an abuse of process - Whether permanent stay or temporary stay conditional on payment of unpaid costs is appropriate remedy - Permanent stay granted - UBS AG v Tyne as Trustee of the Argot Trust (2018) 265 CLR 77, applied - Abdou v Trowsdale [2026] VSC 82, considered.
PRACTICE AND PROCEDURE - Abuse of process - Whether the claim in this proceeding is substantially the same in subject matter as earlier claim discontinued in another jurisdiction - Where discontinuance was during trial and conditional on payment of costs which remain unpaid - Whether this proceeding was begun for the improper collateral purpose of avoiding bankruptcy - Proceeding is an abuse of process - Whether permanent stay or temporary stay conditional on payment of unpaid costs is appropriate remedy - Permanent stay granted - UBS AG v Tyne as Trustee of the Argot Trust (2018) 265 CLR 77, applied - Abdou v Trowsdale [2026] VSC 82, considered.
PRACTICE AND PROCEDURE - Freezing and ancillary order - Whether plaintiffs have a good arguable case against first defendant - History of alienation of property by the first defendant in favour of his wife, the third defendant - Good arguable case that the third defendant is acting in accordance with the first defendant's requests and instructions and as the nominee, trustee or agent of the first defendant - No evidence that the third defendant has any relevant qualifications or experience in land development, non-bank financing or acting as the sole director of a corporate trustee - First defendant's continuing powers under the family trust deed - Good arguable case that the non-party may be obliged to disgorge assets or contribute to satisfying a judgment or prospective judgment - Supreme Court (General Civil Procedure) Rules 2025 r 37A.05(b) - Australian Securities and Investments Commission v Carey (No 6) (2006) 153 FCR 509 - Federal Commissioner of Taxation v Vasiliades [2014] FCA 1250 - Keystone Asset Management Ltd v Filippini (No 2) [2025] FCA 1138 - Suzhou Haishun Investment Management Co Ltd v Zhao (No 2) [2018] VSC 176 - Fyfe Mining Pty Ltd v Prosperitas Equity Investments Pty Ltd [2026] VSC 52.
PRACTICE AND PROCEDURE - Freezing and ancillary order - Whether plaintiffs have a good arguable case against first defendant - History of alienation of property by the first defendant in favour of his wife, the third defendant - Good arguable case that the third defendant is acting in accordance with the first defendant's requests and instructions and as the nominee, trustee or agent of the first defendant - No evidence that the third defendant has any relevant qualifications or experience in land development, non-bank financing or acting as the sole director of a corporate trustee - First defendant's continuing powers under the family trust deed - Good arguable case that the non-party may be obliged to disgorge assets or contribute to satisfying a judgment or prospective judgment - Supreme Court (General Civil Procedure) Rules 2025 r 37A.05(b) - Australian Securities and Investments Commission v Carey (No 6) (2006) 153 FCR 509 - Federal Commissioner of Taxation v Vasiliades [2014] FCA 1250 - Keystone Asset Management Ltd v Filippini (No 2) [2025] FCA 1138 - Suzhou Haishun Investment Management Co Ltd v Zhao (No 2) [2018] VSC 176 - Fyfe Mining Pty Ltd v Prosperitas Equity Investments Pty Ltd [2026] VSC 52.
PRACTICE AND PROCEDURE - Application for leave to file an amended statement of claim pursuant to r 36.04(1)(b) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Principles relevant to an application to amend - Application to amend to include claims of misfeasance in public office and unlawful interference with trade - Where pleading liable to be struck out, leave to amend not to be granted - Application refused.
PRACTICE AND PROCEDURE - Application for leave to file an amended statement of claim pursuant to r 36.04(1)(b) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Principles relevant to an application to amend - Application to amend to include claims of misfeasance in public office and unlawful interference with trade - Where pleading liable to be struck out, leave to amend not to be granted - Application refused.
PRACTICE AND PROCEDURE - Allegations of knowledge, intention and recklessness - Use of systems liability for attribution - Productivity Partners v Australian Competition and Consumer Commission (2024) 281 CLR 338, considered.
TORTS - Misfeasance in public office - Elements of cause of action - Attribution of intention and knowledge - Northern Territory of Australia v Mengel (1995) 185 CLR 307, Farah Custodians Pty Limited v Commissioner of Taxation [2018] FCA 1185, Palmer v Shipton [2025] FCA 273, applied.
TORTS - Unlawful interference in trade - Elements of cause of action - Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) (2011) 203 FCR 293, OBG Ltd v Allan [2008] 1 AC 1, applied.
LEASES AND TENANCIES - Retail leases - Fire at Premises - Whether the Retail Leases Act 2003 applies - Ultimate consumer test - Retail Leases Act 2003, ss 4, 89, 94 - IMCC Group (Australia) Pty Ltd v CB Cold Storage Pty Ltd [2017] VSCA 178 - Access Solutions International Pty Ltd v Gamet Pty Ltd [2017] VCC 1563 - Fitzroy Dental Pty Ltd v Metropole Management Pty Ltd [2013] VSC 344 - Cambridge Co-ordinates Pty Ltd v Viking Press Pty Ltd (1992) V ConvR 58-553.
LEASES AND TENANCIES - Retail leases - Fire at Premises - Whether the Retail Leases Act 2003 applies - Ultimate consumer test - Retail Leases Act 2003, ss 4, 89, 94 - IMCC Group (Australia) Pty Ltd v CB Cold Storage Pty Ltd [2017] VSCA 178 - Access Solutions International Pty Ltd v Gamet Pty Ltd [2017] VCC 1563 - Fitzroy Dental Pty Ltd v Metropole Management Pty Ltd [2013] VSC 344 - Cambridge Co-ordinates Pty Ltd v Viking Press Pty Ltd (1992) V ConvR 58-553.
LEASES AND TENANCIES - Retail leases - Whether tenant breached terms of permitted use provision - Whether tenant acted negligently - Whether landlord contributed to alleged negligence - Whether by operation of the RLA landlord is entitled to rely on indemnities - *Property Law Act *1958, s 146.
LEASES AND TENANCIES - Retail leases - Abatement of rent and outgoings - Whether tenant was entitled to cease payment of rent and outgoings and terminate lease where Premises was not reinstated - Restitution of payment of land tax and estimated future outgoings following purported termination - Where damage to Premises - Retail Leases Act 2003, ss 26, 46, 50 - Richmond Football Club v Verraty Pty Ltd [2019] VSC 597 - Phillips v Abel [2019] VCAT 1031 - Ovidio Carrideo Nominees Pty Ltd v The Dog Depot Pty Ltd (2006) V ConvR 54-713 - David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353.
LEASES AND TENANCIES - Retail leases - Whether landlord responsible for installation of essential safety measures and repairs - Retail Leases Act 2003, ss 52, 57 - Small Business Commissioner: reference for advisory opinion (Building and Property) [2015] VCAT 478 - Caltex Oil (Australia) Pty Ltd v Best (1990) 170 CLR 516.
STATUTORY INTERPRETATION - Whether CFMEU v Personnel Contracting Pty Ltd (2022) 275 CLR 175 and ZG Operations Australia Pty Ltd v Jamsek (2022) 275 CLR 254 to be applied in context of Retail Leases Act 2003 - Prior decision on another statute only persuasive if connection to statute in earlier decision - CFMEU v Personnel Contracting Pty Ltd (2022) 275 CLR 175 and ZG Operations Australia Pty Ltd v Jamsek (2022) 275 CLR 254 do not apply - Carter v Bradbeer [1975] 1 WLR 1204.
EVIDENCE - Hearsay - Expert opinion evidence - Whether annexure to expert report prepared by another author is admissible as expert opinion evidence - Author of annexure to expert report not available for cross-examination - Author of expert report does not have specialised knowledge based on training, study or experience to adopt conclusions reached in annexure to the expert report - Annexure to expert report not admissible - Evidence Act 2008, ss 60, 79 - Netdeen Pty Ltd t/as GJ Gardner Homes v Lindfield NSW Pty Ltd [2025] NSWCA 196.
NEGLIGENCE - Contributory negligence - Wrongs Act 1958, ss 25, 26 - Ealwin Pty Ltd & Anor v Master Builders Association of NSW [2020] VCC 561 - Willmott Growers Group Inc v Willmott Forests Ltd (Receivers and Managers Appointed) (in liq) (2013) 251 CLR 592 - Kondis v State Transport Authority (1984) 154 CLR 672 - Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313.
EQUITY - Estoppel - Landlord estopped from claiming breach of permitted use provision - Landlord regularly attended premises - Landlord knew of tenant's activities at Premises - Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387.
EQUITY - Maxim of 'clean hands' - Whether tenant comes to Court without clean hands - Tenant possessing insurance payment as set off to claims in proceeding - Dow Securities Pty Ltd v Manufacturing Investments Ltd (1981) 5 ACLR 501 - Moody v Cox & Hatt [1917] 2 Ch 71; Meyers v Casey (1913) 17 CLR 90.
EQUITY - Laches - Acquiescence - Delay - Whether tenant delayed in bringing claim under Retail Leases Act 2003 - J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane's Equity Doctrines and Remedies (LexisNexis Butterworths, 5th ed, 2014).
INJUNCTION - Whether defendant ought to be compelled to provide manager appointed to law practice under Legal Profession Uniform Law with access to law practice email addresses - Where one email account is used for professional and personal purposes - Where manager and staff propose undertakings to keep confidential any emails that do not relate the law practice's affairs or regulated property - Appropriate to compel defendant to provide manager access - Uniform Law ss 336, 362, 447.
INJUNCTION - Whether defendant ought to be compelled to provide manager appointed to law practice under Legal Profession Uniform Law with access to law practice email addresses - Where one email account is used for professional and personal purposes - Where manager and staff propose undertakings to keep confidential any emails that do not relate the law practice's affairs or regulated property - Appropriate to compel defendant to provide manager access - Uniform Law ss 336, 362, 447.
INJUNCTION - Application to vary order compelling the defendant to provide manager with bank statements, ledgers and invoices used or retained by law practice - Where alleged order made on the basis of incomplete evidence that did not disclose the manager's prior receipt of certain bank statements pursuant to s 361 notice - Appropriate to grant application in part and relieve defendant of obligation to produce bank statements already received by manager - Uniform Law ss 461, 447.
APPEAL - Residential tenancies - Appeal against VCAT orders for possession following notices to vacate - Where applicant tenant contends possession order is frustrated by subtenants - Where no notice to vacate was served on subtenants - Where Tribunal delivered oral decision and later provided written reasons - Whether Tribunal erred in making possession order against tenant where there are subtenants - Whether Tribunal erred in providing written reasons after date possession order required applicant to give up possession - Residential Tenancies Act 1997 (Vic), ss 91B, 91R, 91ZZB, 91ZZJ, 322, 331, 334, 335.
APPEAL - Residential tenancies - Appeal against VCAT orders for possession following notices to vacate - Where applicant tenant contends possession order is frustrated by subtenants - Where no notice to vacate was served on subtenants - Where Tribunal delivered oral decision and later provided written reasons - Whether Tribunal erred in making possession order against tenant where there are subtenants - Whether Tribunal erred in providing written reasons after date possession order required applicant to give up possession - Residential Tenancies Act 1997 (Vic), ss 91B, 91R, 91ZZB, 91ZZJ, 322, 331, 334, 335.
CORPORATIONS - Whistleblower protections - Claim for relief under Pt 9.4AAA of the Corporations Act (Cth) - First defendant engaged in conduct that was a 'detriment' within meaning of s 1317ADA - Whether the first defendant had the requisite suspicion or belief under s 1317AD(1) - First defendant did not believe or suspect that the plaintiff had or might make a qualifying disclosure under Part 9.4AAA - Plaintiff's claim for compensation under s 1317AE fails - Proceeding dismissed.
CORPORATIONS - Whistleblower protections - Claim for relief under Pt 9.4AAA of the Corporations Act (Cth) - First defendant engaged in conduct that was a 'detriment' within meaning of s 1317ADA - Whether the first defendant had the requisite suspicion or belief under s 1317AD(1) - First defendant did not believe or suspect that the plaintiff had or might make a qualifying disclosure under Part 9.4AAA - Plaintiff's claim for compensation under s 1317AE fails - Proceeding dismissed.
CIVIL PROCEDURE - Application for particular discovery - Application for non-party discovery - Requirement for grounds for a belief that documents may be or have been in the possession of a party - Requirement for documents to relate to a question in the proceeding - Orders made for majority of categories of documents sought - Language and temporal range of certain categories of documents refined to limit unnecessary generality - Supreme Court (General Civil Procedure) Rules 2025 (Vic) rr 29.08, 29.11, and 32.07.
CIVIL PROCEDURE - Application for particular discovery - Application for non-party discovery - Requirement for grounds for a belief that documents may be or have been in the possession of a party - Requirement for documents to relate to a question in the proceeding - Orders made for majority of categories of documents sought - Language and temporal range of certain categories of documents refined to limit unnecessary generality - Supreme Court (General Civil Procedure) Rules 2025 (Vic) rr 29.08, 29.11, and 32.07.
EMPLOYMENT AND INDUSTRIAL LAW - Declaratory relief - Pecuniary penalties - Admitted contraventions of civil penalty provisions - Determination of appropriate penalties - Declaratory relief granted - Pecuniary penalties imposed - Labour Hire Licensing Act 2018, ss 13, 14, 93, 95 - Labour Hire Licensing Authority v Cameron Workforce Pty Ltd [2025] VSC 185 - Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 - ACCC v Yellow Page Marketing (No 2) (2011) 195 FCR 1 - Forster v Jododex Pty Ltd (1972) 127 CLR 421 - Australian Building and Construction Commissioner v Pattinson (2022) 399 ALR 599 - Tax Practitioners Board v Van Dyke [2024] GCA 899.
EMPLOYMENT AND INDUSTRIAL LAW - Declaratory relief - Pecuniary penalties - Admitted contraventions of civil penalty provisions - Determination of appropriate penalties - Declaratory relief granted - Pecuniary penalties imposed - Labour Hire Licensing Act 2018, ss 13, 14, 93, 95 - Labour Hire Licensing Authority v Cameron Workforce Pty Ltd [2025] VSC 185 - Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 - ACCC v Yellow Page Marketing (No 2) (2011) 195 FCR 1 - Forster v Jododex Pty Ltd (1972) 127 CLR 421 - Australian Building and Construction Commissioner v Pattinson (2022) 399 ALR 599 - Tax Practitioners Board v Van Dyke [2024] GCA 899.
PRACTICE AND PROCEDURE - Judgment in default of appearance - Allegations contained in the statement of claim treated as admissions - Whether relief sought in the statement of claim can be granted - Foris GFS Australia Pty Ltd v Manivel [2022] VSC 482 - Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 21.04.
MAGISTRATES' COURT - Criminal law - Drug Division - Drug and Alcohol Treatment Order - Cancellation of order - Appeal on questions of law - Inadequate reasons - Failure to consider options other than imprisonment - Misapplication of statutory provisions - Denial of procedural fairness - Sentencing Act 1991 s 18ZP(1)(c),(d),(e), Criminal Procedure Act 2009 s 272.
MAGISTRATES' COURT - Criminal law - Drug Division - Drug and Alcohol Treatment Order - Cancellation of order - Appeal on questions of law - Inadequate reasons - Failure to consider options other than imprisonment - Misapplication of statutory provisions - Denial of procedural fairness - Sentencing Act 1991 s 18ZP(1)(c),(d),(e), Criminal Procedure Act 2009 s 272.
APPEALS - Appeal from Victorian Civil and Administrative Tribunal - Application for leave granted - Relevant material from Tribunal proceedings not put before Court on application for leave - Application in Tribunal dismissed for non-appearance - Application for review also dismissed for non-appearance - Second application lodged in Tribunal - Application dismissed summarily by Tribunal - Whether the second proceeding involved the same claim as the first - Whether abuse of process or vexatious - Procedural fairness - Whether applicant had an opportunity to be heard - Whether Tribunal's very brief reasons sufficient - Appeal dismissed - Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 75, 117, 120, 148(7).
APPEALS - Appeal from Victorian Civil and Administrative Tribunal - Application for leave granted - Relevant material from Tribunal proceedings not put before Court on application for leave - Application in Tribunal dismissed for non-appearance - Application for review also dismissed for non-appearance - Second application lodged in Tribunal - Application dismissed summarily by Tribunal - Whether the second proceeding involved the same claim as the first - Whether abuse of process or vexatious - Procedural fairness - Whether applicant had an opportunity to be heard - Whether Tribunal's very brief reasons sufficient - Appeal dismissed - Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 75, 117, 120, 148(7).
ENVIRONMENTAL LAW - Landfill levy payable on 'waste' deposited on to land on scheduled premises - Defendant licensed under the Environment Protection Act 1970 (Vic) to operate landfill on scheduled premises - Where defendant acquired non-descript crushed rock (NDCR) from a third party quarry adjacent to the landfill premises - NDCR used by landfill operator for 'daily cover' on waste in landfill cells, in accordance with licence condition- landfill operator did not pay landfill levy on the NDCR used for daily cover - Environment Protection Authority determined NDCR was 'waste' and issued invoice for payment of landfill levy for NDCR under Environment Protection Act 1970 (Vic) - Whether NDCR is 'waste' as defined in s 4(1) of the Environment Protection Act 1970 (Vic) and subject to landfill levy - Environment Protection Authority claim for debt due for unpaid landfill levy - Licensed landfill operator's defence that NDCR is not 'waste' - Whether defence involves collateral attack - Whether non-compliance by Environment Protection Authority with procedural requirements of statute with respect to issuing invoice - Environment Protection Act 1970 (Vic), Part IX, Division 3, ss 4(1), 20, 27(2), 50S, 50SB, 50SAB, 50SB, 50V, 50XA - Dasma Environmental Pty Ltd v Environment Protection Authority [2022] VSCA 248.
ENVIRONMENTAL LAW - Landfill levy payable on 'waste' deposited on to land on scheduled premises - Defendant licensed under the Environment Protection Act 1970 (Vic) to operate landfill on scheduled premises - Where defendant acquired non-descript crushed rock (NDCR) from a third party quarry adjacent to the landfill premises - NDCR used by landfill operator for 'daily cover' on waste in landfill cells, in accordance with licence condition- landfill operator did not pay landfill levy on the NDCR used for daily cover - Environment Protection Authority determined NDCR was 'waste' and issued invoice for payment of landfill levy for NDCR under Environment Protection Act 1970 (Vic) - Whether NDCR is 'waste' as defined in s 4(1) of the Environment Protection Act 1970 (Vic) and subject to landfill levy - Environment Protection Authority claim for debt due for unpaid landfill levy - Licensed landfill operator's defence that NDCR is not 'waste' - Whether defence involves collateral attack - Whether non-compliance by Environment Protection Authority with procedural requirements of statute with respect to issuing invoice - Environment Protection Act 1970 (Vic), Part IX, Division 3, ss 4(1), 20, 27(2), 50S, 50SB, 50SAB, 50SB, 50V, 50XA - Dasma Environmental Pty Ltd v Environment Protection Authority [2022] VSCA 248.
ADMINISTRATIVE LAW - Judicial review and appeals - Application for firearms licence - Application refused - Application for leave to appeal from decision of Victorian Civil and Administrative Tribunal ('VCAT') - Where VCAT found that conduct demonstrated a lack of self-control - Whether appeal had real prospect of success - Whether utility in appeal - Whether any error material - Whether VCAT erred - Whether breach of procedural fairness - Where appeal had no real prospect of success - Where any error immaterial - Proceeding dismissed - Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 - Firearms Act 1996 (Vic) s 17.
ADMINISTRATIVE LAW - Judicial review and appeals - Application for firearms licence - Application refused - Application for leave to appeal from decision of Victorian Civil and Administrative Tribunal ('VCAT') - Where VCAT found that conduct demonstrated a lack of self-control - Whether appeal had real prospect of success - Whether utility in appeal - Whether any error material - Whether VCAT erred - Whether breach of procedural fairness - Where appeal had no real prospect of success - Where any error immaterial - Proceeding dismissed - Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 - Firearms Act 1996 (Vic) s 17.
ADMINISTRATIVE LAW - Judicial review - Application for firearms licence - Application refused - Review of decision of Chief Commissioner of Police - Where Chief Commissioner of Police raised concerns as to mental illness - Whether Chief Commissioner of Police erred - Adequacy of reasons - Whether breach of procedural fairness - Whether any error material - Where any error immaterial - Proceeding dismissed - Firearms Act 1996 (Vic) s 17 - Administrative Law Act 1978 (Vic) ss 3-10 - Sherlock v Lloyd (2010) 27 VR 434.
ADMINISTRATIVE LAW - Judicial review - Plaintiff guilty of criminal charges under ss 63(1) and 289(1)(a) of Water Act 1989 (Vic) - County Court found charges proven - Where plaintiff seeks order in the nature of certiorari quashing orders of the County Court - Whether County Court erred in construction of Water Act 1989 (Vic) s 6A - Whether County Court erred in construction of the Order Declaring Water Systems in Northern Victoria 2007 - Whether County Court failed to consider question of fact in alleged breach of s 63(1) of Water Act 1989 (Vic) - Where plaintiff sought to advance new argument in application for judicial review - No exceptional circumstances to allow new argument and prejudice to defendant - No jurisdictional errors or errors of law established - Water Act 1989 (Vic) ss 6A, 33E, 63, 289(1)(a)(i), sch 15 - Criminal Procedure Act 2009 (Vic) s 72.
ADMINISTRATIVE LAW - Judicial review - Plaintiff guilty of criminal charges under ss 63(1) and 289(1)(a) of Water Act 1989 (Vic) - County Court found charges proven - Where plaintiff seeks order in the nature of certiorari quashing orders of the County Court - Whether County Court erred in construction of Water Act 1989 (Vic) s 6A - Whether County Court erred in construction of the Order Declaring Water Systems in Northern Victoria 2007 - Whether County Court failed to consider question of fact in alleged breach of s 63(1) of Water Act 1989 (Vic) - Where plaintiff sought to advance new argument in application for judicial review - No exceptional circumstances to allow new argument and prejudice to defendant - No jurisdictional errors or errors of law established - Water Act 1989 (Vic) ss 6A, 33E, 63, 289(1)(a)(i), sch 15 - Criminal Procedure Act 2009 (Vic) s 72.
STATUTES - Interpretation - Legislative history of Water Act 1989 (Vic) - Where 'water system' not defined in Water Act 1989 (Vic) - Statutory context - Where interrelated subordinate instruments part of same regulatory package requiring harmonious construction - Appropriate use of extrinsic materials - Where distinction between geographical area and water system - Proper construction of 'Goulburn water system' - Whether Lake Meran 'in' a 'declared' or 'non-declared' water system' - Disorganized Developments Pty Ltd v South Australia (2023) 280 CLR 515 - Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101 - Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1 - Order Declaring Water Systems in Northern Victoria 2007 - Trading Rules for Regulated Water Systems in Northern Victoria.
ADMINISTRATIVE LAW - Application for judicial review of Tribunal's decision to refuse summary judgment - Where respondent refused permit to use arsenic-contaminated waste to construct a landform - Where respondent applied for merits review at Tribunal - Where respondent sought permit be approved subject to conditions - Whether in substance Tribunal would be reviewing original decision - Whether Tribunal construed decision at correct level of abstraction - Scope of Tribunal's merits review jurisdiction - Appeal allowed - Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 40, 51, 75 - Environment Protection Act 2017 (Vic) ch 4, s 430 - Secretary, Department of Environment, Energy and Climate Action v Hanson Construction Materials Pty Ltd (2023) 71 VR 137 and Addicoat v Fox (No 2) [1979] VR 347 applied.
ADMINISTRATIVE LAW - Application for judicial review of Tribunal's decision to refuse summary judgment - Where respondent refused permit to use arsenic-contaminated waste to construct a landform - Where respondent applied for merits review at Tribunal - Where respondent sought permit be approved subject to conditions - Whether in substance Tribunal would be reviewing original decision - Whether Tribunal construed decision at correct level of abstraction - Scope of Tribunal's merits review jurisdiction - Appeal allowed - Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 40, 51, 75 - Environment Protection Act 2017 (Vic) ch 4, s 430 - Secretary, Department of Environment, Energy and Climate Action v Hanson Construction Materials Pty Ltd (2023) 71 VR 137 and Addicoat v Fox (No 2) [1979] VR 347 applied.
PRACTICE AND PROCEDURE - Extension of time for application for leave to appeal - Where delay in filing was one day - Where delay was result of unintentional error - Where respondent did not identify prejudice in granting extension of time - Application granted - Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 - Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic) r 4.05.
PRACTICE AND PROCEDURE - Costs orders - Where plaintiff made unsuccessful application for judgment - Where third defendant took no steps in the proceedings for significant period of time - Where third defendant repeatedly failed to follow court directions and orders - Whether third defendant should be ordered to pay indemnity costs - Whether there are exceptional circumstances - Whether there are special or unusual circumstances - Exceptional, and special or unusual circumstances established - Indemnity costs awarded to the plaintiff against the third defendant.
PRACTICE AND PROCEDURE - Costs orders - Where plaintiff made unsuccessful application for judgment - Where third defendant took no steps in the proceedings for significant period of time - Where third defendant repeatedly failed to follow court directions and orders - Whether third defendant should be ordered to pay indemnity costs - Whether there are exceptional circumstances - Whether there are special or unusual circumstances - Exceptional, and special or unusual circumstances established - Indemnity costs awarded to the plaintiff against the third defendant.
LIMITATION OF ACTIONS - Limitation of Actions Act 1958 (Vic), ss 27QD and 27QE - Application to set aside prior settlement deed - Whether just and reasonable to set aside prior settlement deed - Whether Ellis defence impacted plaintiff's decision to settle - Whether death of key witness is prejudicial to defendant - Other factors impacting plaintiff's decision to settle - Whether deed should be set aside in whole or in part.
LIMITATION OF ACTIONS - Limitation of Actions Act 1958 (Vic), ss 27QD and 27QE - Application to set aside prior settlement deed - Whether just and reasonable to set aside prior settlement deed - Whether Ellis defence impacted plaintiff's decision to settle - Whether death of key witness is prejudicial to defendant - Other factors impacting plaintiff's decision to settle - Whether deed should be set aside in whole or in part.
STATUTORY INTERPRETATION - Application for the proceeding to be struck out - Proceeding commenced without complying with s 421 of the Workers Compensation and Injury Management Act 2023 (WA) ('Workers Compensation Act') - Workers Compensation Act ss 421(1), 422 - Whether s 422(1) exhaustively defines the circumstances in which a worker 'has a terminal disease' for the purpose of s 422(2) - Whether a report from a medical practitioner who does not specialise in respiratory medicine satisfies the requirements of s 422(1) - Whether a report obtained after the commencement of proceedings satisfies the requirements of s 422(1).
STATUTORY INTERPRETATION - Application for the proceeding to be struck out - Proceeding commenced without complying with s 421 of the Workers Compensation and Injury Management Act 2023 (WA) ('Workers Compensation Act') - Workers Compensation Act ss 421(1), 422 - Whether s 422(1) exhaustively defines the circumstances in which a worker 'has a terminal disease' for the purpose of s 422(2) - Whether a report from a medical practitioner who does not specialise in respiratory medicine satisfies the requirements of s 422(1) - Whether a report obtained after the commencement of proceedings satisfies the requirements of s 422(1).
COMMON LAW - Cross-vesting legislation - Historical sexual abuse - Application for proceeding to be transferred to the Supreme Court of South Australia - Interests of justice - Impact of transfer on plaintiff's psychiatric health - Valceski v Valceski (2007) 70 NSWLR 36 - Hughes v Whittens Group Pty Ltd [2017] NSWSC 329 - BHP Billiton Ltd v Schultz (2004) 221 CLR 400 - Ewins v BHP Billiton Ltd [2005] VSC 4 - Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), s 5(2)(b)(iii).
COMMON LAW - Cross-vesting legislation - Historical sexual abuse - Application for proceeding to be transferred to the Supreme Court of South Australia - Interests of justice - Impact of transfer on plaintiff's psychiatric health - Valceski v Valceski (2007) 70 NSWLR 36 - Hughes v Whittens Group Pty Ltd [2017] NSWSC 329 - BHP Billiton Ltd v Schultz (2004) 221 CLR 400 - Ewins v BHP Billiton Ltd [2005] VSC 4 - Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), s 5(2)(b)(iii).
TRUSTS - Dispute involving several family trusts - Whether appropriate to restrain trustee's use of trust funds in one trust pending the determination of the proceeding.
TRUSTS - Dispute involving several family trusts - Whether appropriate to restrain trustee's use of trust funds in one trust pending the determination of the proceeding.
TRUSTS - Removal of trustee - Whether current trustee should be removed and a new, independent trustee appointed - Where current trustee has repeatedly failed to furnish trust documents to co-guardian, appointor and beneficiary of trust - Where trustee in breach of order to furnish documents - Court lacks confidence in current trustee to properly administer trust and the interests of the beneficiaries require the removal of the trustee - Trustee removed and new, independent trustees appointed - Trustee Act 1958, ss 48, 51, 52, 58 - Owies v JJ Nominees Pty Ltd [2022] VSCA 142, applied.
TRUSTS - Removal of trustee - Whether current trustee should be removed and a new, independent trustee appointed - Where current trustee has repeatedly failed to furnish trust documents to co-guardian, appointor and beneficiary of trust - Where trustee in breach of order to furnish documents - Court lacks confidence in current trustee to properly administer trust and the interests of the beneficiaries require the removal of the trustee - Trustee removed and new, independent trustees appointed - Trustee Act 1958, ss 48, 51, 52, 58 - Owies v JJ Nominees Pty Ltd [2022] VSCA 142, applied.
CRIMINAL LAW - Appeal - Appeal on questions of law from Magistrates' Court - Appellant found guilty of intentionally cause injury - Whether magistrate properly applied criminal standard of proof - Whether magistrate failed to direct himself in accordance with Liberato - Whether, in finding guilt, magistrate had merely preferred evidence of complainant to that of appellant - Whether magistrate considered open to acquit appellant even if his account was disbelieved - Appeal allowed - Applicant's case remitted to Magistrates' Court for rehearing.
CRIMINAL LAW - Appeal - Appeal on questions of law from Magistrates' Court - Appellant found guilty of intentionally cause injury - Whether magistrate properly applied criminal standard of proof - Whether magistrate failed to direct himself in accordance with Liberato - Whether, in finding guilt, magistrate had merely preferred evidence of complainant to that of appellant - Whether magistrate considered open to acquit appellant even if his account was disbelieved - Appeal allowed - Applicant's case remitted to Magistrates' Court for rehearing.
Criminal Procedure Act 2009 (Vic), s 272; Jury Directions Act 2015 (Vic), ss 3, 4A, 5, 6, 12, 31, 32, 63, 64.
Liberato v The Queen (1985) 159 CLR 507; R v WG (2010) 199 A Crim R 218; R v Dookheea (2017) 262 CLR 402; DL v The Queen (2018) 266 CLR 1; De Silva v The Queen (2019) 268 CLR 57; R v KDY (2008) 185 A Crim R 270; Murray v The Queen (2002) 211 CLR 193; Douglass v The Queen (2012) 86 ALJR 1086; Dadashy v Scholte [2021] VSC 246; Makeham v Shepard [2020] VSCA 242.
CRIMINAL LAW - Bail - Applicant charged with aggravated burglary - Whether exceptional circumstances exist justifying the grant of bail - Whether unacceptable risk - Exceptional circumstances established - Risk of further offending acceptable by the imposition of conditions - Bail granted - Bail Act 1977 (Vic) ss 3, 3AAA, 4, 4AA(2), 4A, 4D, 4E.
CRIMINAL LAW - Bail - Applicant charged with aggravated burglary - Whether exceptional circumstances exist justifying the grant of bail - Whether unacceptable risk - Exceptional circumstances established - Risk of further offending acceptable by the imposition of conditions - Bail granted - Bail Act 1977 (Vic) ss 3, 3AAA, 4, 4AA(2), 4A, 4D, 4E.
CRIMINAL LAW - Application for bail - 17 year old child - Aggravated burglary - Arson - Schedule 1 offence - Requirement to show exceptional circumstances - Nature and seriousness of alleged offending - Strength of prosecution case - No criminal history - Personal circumstances - Special vulnerability - Stable accommodation - Family support - Education - Bail support service - Exceptional circumstances established - Applicant not an unacceptable risk - Bail granted - Bail Act 1977 (Vic), ss 1B, 3, 3AAA, 3B, 4AA, 4A, 4D, 4E, 5AAA, 12, Schedule 1, item 3A - Bail Amendment Act 2025 (Vic), s 4 - Children, Youth and Families Act 2005 (Vic), ss 3, 346, 534(1)(a)(ii) - Youth Justice Act 2024 (Vic), s 2.
CRIMINAL LAW - Application for bail - 17 year old child - Aggravated burglary - Arson - Schedule 1 offence - Requirement to show exceptional circumstances - Nature and seriousness of alleged offending - Strength of prosecution case - No criminal history - Personal circumstances - Special vulnerability - Stable accommodation - Family support - Education - Bail support service - Exceptional circumstances established - Applicant not an unacceptable risk - Bail granted - Bail Act 1977 (Vic), ss 1B, 3, 3AAA, 3B, 4AA, 4A, 4D, 4E, 5AAA, 12, Schedule 1, item 3A - Bail Amendment Act 2025 (Vic), s 4 - Children, Youth and Families Act 2005 (Vic), ss 3, 346, 534(1)(a)(ii) - Youth Justice Act 2024 (Vic), s 2.
CRIMINAL LAW - Sentence - Murder - Aboriginal offender - Vulnerable victim assaulted in his own home - Plea of guilty - Significant childhood trauma and abuse - Good prospects of rehabilitation - Bugmy and Verdins principles engaged - Sentenced to 21 years' imprisonment with a non-parole period of 15 years - Crimes Act 1958 s 3 - Sentencing Act 1991 ss 5, 5A, 5B, 6AAA, 11, 11A, 18 - Bugmy v The Queen (2013) 249 CLR 571 - R v Verdins (2007) 16 VR 269 - DPP v Herrmann (2021) 290 A Crim R 110 - DPP v Rotumah [2022] VCC 1532 - DPP v Tirris [2022] VCC 1575 - Honeysett v The Queen (2018) 56 VR 375- R v Morgan (2010) 24 VR 230 - R v Gemmill (2004) 8 VR 242 - DPP v Snow [2020] VSCA 67.
CRIMINAL LAW - Sentence - Murder - Aboriginal offender - Vulnerable victim assaulted in his own home - Plea of guilty - Significant childhood trauma and abuse - Good prospects of rehabilitation - Bugmy and Verdins principles engaged - Sentenced to 21 years' imprisonment with a non-parole period of 15 years - Crimes Act 1958 s 3 - Sentencing Act 1991 ss 5, 5A, 5B, 6AAA, 11, 11A, 18 - Bugmy v The Queen (2013) 249 CLR 571 - R v Verdins (2007) 16 VR 269 - DPP v Herrmann (2021) 290 A Crim R 110 - DPP v Rotumah [2022] VCC 1532 - DPP v Tirris [2022] VCC 1575 - Honeysett v The Queen (2018) 56 VR 375- R v Morgan (2010) 24 VR 230 - R v Gemmill (2004) 8 VR 242 - DPP v Snow [2020] VSCA 67.
CRIMINAL LAW - Sentence - Manslaughter by unlawful and dangerous act - Deliberate driving of car at pedestrian - 17-year-old Aboriginal child - Childhood disadvantage - Diagnoses of ADHD, cPTSD and learning disorder - Reasonably good prospects of rehabilitation - Youth Justice Centre Order - Sentencing Act 1991 (Vic) s 32.
CRIMINAL LAW - Sentence - Manslaughter by unlawful and dangerous act - Deliberate driving of car at pedestrian - 17-year-old Aboriginal child - Childhood disadvantage - Diagnoses of ADHD, cPTSD and learning disorder - Reasonably good prospects of rehabilitation - Youth Justice Centre Order - Sentencing Act 1991 (Vic) s 32.
CRIMINAL LAW - Sentence - Murder - Standard sentence offence - Multiple strikes to the head with a hammer - Victim assaulted in his own home - Plea of guilty - Childhood sexual abuse - Significant mental health issues - Schizophrenia - Verdins limb 5 engaged - Verdins limbs 1, 3 and 4 not engaged - No causal link between mental impairment and offending - Limited and dated criminal history - Ill physical health - Age of offender - Good prospects of rehabilitation - Sentenced to 22 years' imprisonment - Non-parole period of 16 years - Sentencing Act 1991 (Vic), ss 3, 5(2G).
CRIMINAL LAW - Sentence - Murder - Standard sentence offence - Multiple strikes to the head with a hammer - Victim assaulted in his own home - Plea of guilty - Childhood sexual abuse - Significant mental health issues - Schizophrenia - Verdins limb 5 engaged - Verdins limbs 1, 3 and 4 not engaged - No causal link between mental impairment and offending - Limited and dated criminal history - Ill physical health - Age of offender - Good prospects of rehabilitation - Sentenced to 22 years' imprisonment - Non-parole period of 16 years - Sentencing Act 1991 (Vic), ss 3, 5(2G).
CRIMINAL LAW - Murder - Pre-trial rulings - Question whether Crown should be permitted to lead evidence of a witness via audiovisual link ('AVL') - Applications by three accused to conduct preparatory cross-examination of prosecution witnesses - AVL permitted - 198B applications granted - Criminal Procedure Act 2009, s 198B; Evidence (Miscellaneous Provisions) Act 1958, s 42E.
CRIMINAL LAW - Murder - Pre-trial rulings - Question whether Crown should be permitted to lead evidence of a witness via audiovisual link ('AVL') - Applications by three accused to conduct preparatory cross-examination of prosecution witnesses - AVL permitted - 198B applications granted - Criminal Procedure Act 2009, s 198B; Evidence (Miscellaneous Provisions) Act 1958, s 42E.
CRIMINAL LAW - Sentence - Murder - Offender stabbed victim multiple times in offender's bedroom - Victim was trying to prevent offender self-harming - Where offender suffers neurological condition and illicitly used 2-fluoro-2-oxo-PCE as analgesic prior to stabbing - Where offender was in drug-induced altered state of consciousness - Plea of not guilty, but trial run on limited basis - Prior good character - Relationship between self-induced intoxication and moral culpability where impaired ability to tell right from wrong - Good prospects of rehabilitation - Greater burden of imprisonment for offender with complex medical needs - Offender remorseful - Standard sentence offence - 19 years imprisonment with non-parole period of 14 years imposed - R v Redenbach (1991) 52 A Crim R 95 - R v Eckersley [2020] VSC 22 - R v Kidd [2024] VSC 458.
CRIMINAL LAW - Sentence - Murder - Offender stabbed victim multiple times in offender's bedroom - Victim was trying to prevent offender self-harming - Where offender suffers neurological condition and illicitly used 2-fluoro-2-oxo-PCE as analgesic prior to stabbing - Where offender was in drug-induced altered state of consciousness - Plea of not guilty, but trial run on limited basis - Prior good character - Relationship between self-induced intoxication and moral culpability where impaired ability to tell right from wrong - Good prospects of rehabilitation - Greater burden of imprisonment for offender with complex medical needs - Offender remorseful - Standard sentence offence - 19 years imprisonment with non-parole period of 14 years imposed - R v Redenbach (1991) 52 A Crim R 95 - R v Eckersley [2020] VSC 22 - R v Kidd [2024] VSC 458.
CONTRACTS - EQUITY - Money exchange agreement - Exchange of RMB funds for AUD funds - Whether term of money exchange agreement that repayment to be made as soon as possible - Agency - Whether director entered into money exchange agreement as agent for company - Trust property - Whether funds misappropriated - Whether constructive trust arose upon misappropriation of funds - Whether company received trust property - Whether company knew it received trust property - Whether company a volunteer - Breach of trust - Whether company holds money on constructive trust - Tracing - Whether company liable to the plaintiff in the amount of the traceable proceeds - Whether monies had and received - Repayment agreement - Debt acknowledgment document - Construction or interpretation of debt acknowledgement document - Parties to the repayment agreement - whether money exchange agreement was varied by repayment agreement.
CONTRACTS - EQUITY - Money exchange agreement - Exchange of RMB funds for AUD funds - Whether term of money exchange agreement that repayment to be made as soon as possible - Agency - Whether director entered into money exchange agreement as agent for company - Trust property - Whether funds misappropriated - Whether constructive trust arose upon misappropriation of funds - Whether company received trust property - Whether company knew it received trust property - Whether company a volunteer - Breach of trust - Whether company holds money on constructive trust - Tracing - Whether company liable to the plaintiff in the amount of the traceable proceeds - Whether monies had and received - Repayment agreement - Debt acknowledgment document - Construction or interpretation of debt acknowledgement document - Parties to the repayment agreement - whether money exchange agreement was varied by repayment agreement.