CRIMINAL LAW - Conspiracy - Common law offence of conspiracy to commit misconduct in public office - Where accused charged on indictment with single count of conspiring together that one of them would wilfully commit misconduct in public office - Where prosecution did not allege agreement to do particular acts that amounted to misconduct in public office - Where prosecution case was that agreement to undertake acts fell within cumulative elements of charge - Whether prosecution put case at trial capable at law of amounting to conspiracy to commit misconduct in public office.
CRIMINAL LAW - Conspiracy - Common law offence of conspiracy to commit misconduct in public office - Where accused charged on indictment with single count of conspiring together that one of them would wilfully commit misconduct in public office - Where prosecution did not allege agreement to do particular acts that amounted to misconduct in public office - Where prosecution case was that agreement to undertake acts fell within cumulative elements of charge - Whether prosecution put case at trial capable at law of amounting to conspiracy to commit misconduct in public office.
WORDS AND PHRASES - "but for", "conspiracy", "conspiracy to commit misconduct in public office", "conspirator", "conspiratorial agreement", "elements of conspiracy", "elements of misconduct in public office", "improper purpose", "misconduct", "misconduct in public office", "overt acts", "predicate offence", "public official", "serious and meriting criminal punishment", "wilfully misconduct".
Mining Act 1992 (NSW), Pt 5.
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.
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.
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.
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 - Evidence - Interlocutory appeal - Applicants charged with dishonest use of position contrary to s 184 of Corporations Act 2001 - Applicants directors and officers of mortgage broking company - Applicants alleged to have made false representations to 12 potential customers that company would provide interest free mortgage within 12-months upon payment of deposit of $10,000 and would refund deposit in full if unable to secure mortgage - Whether respondent can rely on evidence relating to non-witness depositors to demonstrate business practice by applicants to make false representations to clients of company - Whether evidence of alleged business practice necessarily dependent on proof of tendency by applicants to make alleged misrepresentations - Evidence of non-witness depositors not relevant for non-tendency purpose - Leave to appeal granted - Interlocutory decision set aside.
CRIMINAL LAW - Evidence - Interlocutory appeal - Applicants charged with dishonest use of position contrary to s 184 of Corporations Act 2001 - Applicants directors and officers of mortgage broking company - Applicants alleged to have made false representations to 12 potential customers that company would provide interest free mortgage within 12-months upon payment of deposit of $10,000 and would refund deposit in full if unable to secure mortgage - Whether respondent can rely on evidence relating to non-witness depositors to demonstrate business practice by applicants to make false representations to clients of company - Whether evidence of alleged business practice necessarily dependent on proof of tendency by applicants to make alleged misrepresentations - Evidence of non-witness depositors not relevant for non-tendency purpose - Leave to appeal granted - Interlocutory decision set aside.
Evidence Act 2008, ss 55, 97, and 137, considered - Criminal Procedure Act 2009, s 295; Corporations Act 2001, s 184, referred to.
Jacara Pty Ltd & Ors v Perpetual Trustees WA Ltd (2000) 106 FCR 51; Di Paulo v The Queen [2019] VSCA 194; Anthony v Morton [2018] NSWSC 1884; Higgins v The Queen [2016] VSCA 47, considered.
NEGLIGENCE - Jury trial - Duty of care owed by retailer to consumer - Role of judge - Role of jury - Conflation of issues of duty and breach - Jury directions - Judge required to direct jury as to existence and scope of duty - Issues of breach and causation for jury - Judge failing to direct jury as to existence and scope of duty of care owed by defendant - Appeal allowed.
NEGLIGENCE - Jury trial - Duty of care owed by retailer to consumer - Role of judge - Role of jury - Conflation of issues of duty and breach - Jury directions - Judge required to direct jury as to existence and scope of duty - Issues of breach and causation for jury - Judge failing to direct jury as to existence and scope of duty of care owed by defendant - Appeal allowed.
PRACTICE AND PROCEDURE - Consent orders allowing appeal and remitting proceeding for rehearing - Disposition having resource implications for administration of justice - Need to identify error - Need to ensure error made in first trial not replicated in retrial - Consent orders made - Matter remitted for rehearing.
CORPORATIONS - Corporations Act 2001 (Cth) ss 1337H, 1337H(2), 1337L, 1337M, 1337G - Transfer of civil matters arising under the corporations legislation - General principles regarding transfer - Bogan v Estate of Smedley [2025] HCA 7; (2025) 422 ALR 94 - Court's power to transfer a proceeding on its own motion - Section 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) not applicable - Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) not applicable - Interests of justice - Court's discretion under s 1337H(2) of the Corporations Act 2001 (Cth) - Requirement to take into account factors referred to in s 1337L of the Corporations Act 2001 (Cth) - Relevant factors to take into account - Common issues in proceedings - Risk of inconsistent findings between courts - Absence of any prejudice - Efficiency considerations - Court resourcing considerations - Urgency required given pending application in the Federal Court of Australia - Transfers under the Corporations Act 2001 (Cth) are different to transfers under the cross-vesting legislation.
CORPORATIONS - Corporations Act 2001 (Cth) ss 1337H, 1337H(2), 1337L, 1337M, 1337G - Transfer of civil matters arising under the corporations legislation - General principles regarding transfer - Bogan v Estate of Smedley [2025] HCA 7; (2025) 422 ALR 94 - Court's power to transfer a proceeding on its own motion - Section 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) not applicable - Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) not applicable - Interests of justice - Court's discretion under s 1337H(2) of the Corporations Act 2001 (Cth) - Requirement to take into account factors referred to in s 1337L of the Corporations Act 2001 (Cth) - Relevant factors to take into account - Common issues in proceedings - Risk of inconsistent findings between courts - Absence of any prejudice - Efficiency considerations - Court resourcing considerations - Urgency required given pending application in the Federal Court of Australia - Transfers under the Corporations Act 2001 (Cth) are different to transfers under the cross-vesting legislation.
PRACTICE AND PROCEDURE - Corporations Act 2001 (Cth) ss 1337H, 1337H(2), 1337L, 1337M, 1337G - Transfer of civil matters arising under the corporations legislation - General principles regarding transfer - Bogan v Estate of Smedley [2025] HCA 7; (2025) 422 ALR 94 - Court's power to transfer a proceeding on its own motion - Section 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) not applicable - Interests of justice - Court's discretion under s 1337H(2) of the Corporations Act 2001 (Cth) - Requirement to take into account factors referred to in s 1337L of the Corporations Act 2001 (Cth) - Relevant factors to take into account - Common issues in proceedings - Risk of inconsistent findings between courts - Absence of any prejudice - Efficiency considerations - Court resourcing considerations - Urgency required given pending application in the Federal Court of Australia - Transfers under the Corporations Act 2001 (Cth) are different to transfers under the cross-vesting legislation.
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.
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.
PRACTICE AND PROCEDURE - Application for judgment for breach of settlement deed to resolve a proceeding - Court retains general power outside of Civil Procedure Act 2010 (Vic) ss 61-64 - Doug Pascoe Investments Pty Ltd v Urban Cube Pty Ltd (No 2) [2025] VSC 809 followed - Roberts v Gippsland Agricultural & Earth Moving Contracting Co Pty Ltd [1956] VLR 555, Seachange Management Pty Ltd v Pital Business Pty Ltd (2009) 23 VR 396, Re RM Road Services Pty Ltd (in liq) (No 2) [2025] VSC 382 referred to.
PRACTICE AND PROCEDURE - Application for judgment for breach of settlement deed to resolve a proceeding - Court retains general power outside of Civil Procedure Act 2010 (Vic) ss 61-64 - Doug Pascoe Investments Pty Ltd v Urban Cube Pty Ltd (No 2) [2025] VSC 809 followed - Roberts v Gippsland Agricultural & Earth Moving Contracting Co Pty Ltd [1956] VLR 555, Seachange Management Pty Ltd v Pital Business Pty Ltd (2009) 23 VR 396, Re RM Road Services Pty Ltd (in liq) (No 2) [2025] VSC 382 referred to.
PRACTICE AND PROCEDURE - Deed governed by laws of South Australia and Commonwealth - Whether asserted defects in execution of deed provide basis to refuse application for judgment - Whether evidence external to deed establishes intention to be bound - Law of Property Act 1936 (SA) s 41(4) - Ferngrove Pharmaceuticals Pty Ltd v Betterway Healthcare International Group Pty Ltd (2022) 140 SASR 358 applied - Application for judgment allowed.
PRACTICE AND PROCEDURE - Asserted defect in service of writ - Whether prescribed notice attached to writ - Notice and writ handed through window of motor vehicle - Meaning of 'attached' - Service and Execution of Process Act 1992 (Cth) s 16 - Curtis v Singtel Optus Pty Ltd (2014) 225 FCR 458, Bosaid v Andry [1963] VR 465 followed - Notice 'attached'.
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.
LIMITATIONS 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 prospect of a permanent stay due to historical nature of allegations impacted plaintiff's decision to settle - Whether prospects of success of claim impacted plaintiff's decision to settle - Whether deed should be set aside in whole or in part - Other factors.
LIMITATIONS 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 prospect of a permanent stay due to historical nature of allegations impacted plaintiff's decision to settle - Whether prospects of success of claim impacted plaintiff's decision to settle - Whether deed should be set aside in whole or in part - Other factors.
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 - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under Residential Tenancies Act 1997 (Vic) - Application for extension of time - Extension of time granted - Where residential rental provider gave renter a notice of proposed rent increase under s 44(1) - Where renter believed notice to be invalid and asked VCAT to set it aside - Where renter's application included a request for compensation which was not maintained at the hearing - Where VCAT dismissed the application on the basis of having no jurisdiction to make the order sought - Whether VCAT had jurisdiction to hear an application for an ancillary order in the absence of an application for a substantive order - Where no jurisdiction to make such an order - Leave to appeal allowed - Appeal dismissed.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under Residential Tenancies Act 1997 (Vic) - Application for extension of time - Extension of time granted - Where residential rental provider gave renter a notice of proposed rent increase under s 44(1) - Where renter believed notice to be invalid and asked VCAT to set it aside - Where renter's application included a request for compensation which was not maintained at the hearing - Where VCAT dismissed the application on the basis of having no jurisdiction to make the order sought - Whether VCAT had jurisdiction to hear an application for an ancillary order in the absence of an application for a substantive order - Where no jurisdiction to make such an order - Leave to appeal allowed - Appeal dismissed.
Residential Tenancies Act 1997 (Vic), ss 44, 45, 46, 452, 472; Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 124, 148; Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic), r 4.08.
Victoria v Bradto [2006] VCAT 1864; Xiao v Perpetual Trustee Company Ltd [2009] V ConvR 54-756; [2008] VSC 412; Kracke v Mental Health Review Board [2009] VCAT 646; Casa Di Iorio Investments Pty Ltd v Guirguis [2017] VSC 266; Rosewarne v Lim [2022] VCAT 1015.
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 - Interlocutory injunction - Application by deceased's long term domestic partner to utilise the deceased's superannuation to discharge mortgage on property - Deceased allegedly purchased property for domestic partner with representations made to discharge the mortgage upon his retirement - Deceased's wife is executor of the estate and recipient of superannuation pursuant to binding death nomination made by the deceased - Lacking strong serious question - Order sought tantamount to final relief - Undertaking as to damages frail - Application refused.
PRACTICE AND PROCEDURE - Interlocutory injunction - Application by deceased's long term domestic partner to utilise the deceased's superannuation to discharge mortgage on property - Deceased allegedly purchased property for domestic partner with representations made to discharge the mortgage upon his retirement - Deceased's wife is executor of the estate and recipient of superannuation pursuant to binding death nomination made by the deceased - Lacking strong serious question - Order sought tantamount to final relief - Undertaking as to damages frail - 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 - Costs - Executor's application for costs from the estate of the deceased in circumstances where the application for executor's commission under s 65 of the Administration and Probate Act 1958 (Vic) was refused - Rule 10.10 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) - Rules 63.01 and 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application refused - Second plaintiff to bear own cost and to pay costs of the first plaintiff's costs of the second plaintiff's application for executor's commission on a standard basis without indemnity from the deceased's estate.
PRACTICE AND PROCEDURE - Costs - Executor's application for costs from the estate of the deceased in circumstances where the application for executor's commission under s 65 of the Administration and Probate Act 1958 (Vic) was refused - Rule 10.10 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) - Rules 63.01 and 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application refused - Second plaintiff to bear own cost and to pay costs of the first plaintiff's costs of the second plaintiff's application for executor's commission on a standard basis without indemnity from the deceased's estate.
PRACTICE AND PROCEDURE - Application 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 - Bail pending appeal - Custodial portion of sentence will have been served before appeal heard - Family violence - Exceptional circumstances - Unacceptable risk - Re Zoudi (2006) 14 VR 580.
CRIMINAL LAW - Bail pending appeal - Custodial portion of sentence will have been served before appeal heard - Family violence - Exceptional circumstances - Unacceptable risk - Re Zoudi (2006) 14 VR 580.
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.