CONSTITUTIONAL LAW - Implied freedom of political communication - Executive power to take 'immediate action' against registered health practitioner under Health Practitioner Regulation National Law s 156(1)(a) and (e) - Condition on registration of medical practitioner that limited political communication on the topic of vaccinations for COVID-19 - Constitutional analysis complete at the level of the statute if a law is valid across the range of potential outcomes - Combined effect of statutory constraints on s 156(1)(a) ensured that any burden resulting from exercise of power would be reasonably appropriate and adapted to the law's legitimate purpose - Section 156(1)(a) compatible with the implied freedom of political communication across the range of potential outcomes - Unnecessary to consider validity of s 156(1)(e) - No administrative law challenge to the decision to take immediate action - Leave to appeal granted - Appeal dismissed.
CONSTITUTIONAL LAW - Implied freedom of political communication - Executive power to take 'immediate action' against registered health practitioner under Health Practitioner Regulation National Law s 156(1)(a) and (e) - Condition on registration of medical practitioner that limited political communication on the topic of vaccinations for COVID-19 - Constitutional analysis complete at the level of the statute if a law is valid across the range of potential outcomes - Combined effect of statutory constraints on s 156(1)(a) ensured that any burden resulting from exercise of power would be reasonably appropriate and adapted to the law's legitimate purpose - Section 156(1)(a) compatible with the implied freedom of political communication across the range of potential outcomes - Unnecessary to consider validity of s 156(1)(e) - No administrative law challenge to the decision to take immediate action - Leave to appeal granted - Appeal dismissed.
PRACTICE AND PROCEDURE - Costs of appeal - Costs ordinarily follow the event - No reason to depart from ordinary position - Leave to appeal refused.
Health Practitioner Regulation National Law Act 2009 (Qld) sch ss 3, 3A, 113, 155, 156, 157.
Health Practitioner Regulation National Law (Victoria) Act 2009, ss 1, 4.
Acts Interpretation Act 1901 (Cth) s 15A.
Commonwealth v AJL20 (2021) 273 CLR 43; Comcare v Banerji (2019) 267 CLR 373; Palmer v Western Australia (2021) 272 CLR 505; Wotton v Queensland (2012) 246 CLR; Ravbar v Commonwealth (2025) 99 ALJR 1000; Cotterill v Romanes (2023) 413 ALR 360, discussed and followed.
Prior v Mole (2017) 261 CLR 265; Hogan v Australian Crime Commission (2010) 240 CLR 651; Vella v Commissioner of Police (NSW) (2019) 269 CLR 219; Mineralogy Pty Ltd v Western Australia (2021) 274 CLR 219, discussed.
Northern Territory v Sangare (2019) 265 CLR 164; Valerie Peers v Medical Board of Australia [2026] VSCA 36, followed.
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.
PRACTICE AND PROCEDURE - Interlocutory appeal - Allegations of negligence and vicarious liability against Diocese for historical sexual abuse by parish priest - Application for leave to issue subpoena to applicant's treating psychotherapist under Evidence (Miscellaneous Provisions) Act 1958 s 32C - Psychotherapist's records contain confidential communications - Whether judge erred in granting leave - Whether judge erred in finding the records contained evidence of substantial probative value to a fact in issue - Leave to appeal granted - Appeal allowed - Interlocutory decision set aside.
PRACTICE AND PROCEDURE - Interlocutory appeal - Allegations of negligence and vicarious liability against Diocese for historical sexual abuse by parish priest - Application for leave to issue subpoena to applicant's treating psychotherapist under Evidence (Miscellaneous Provisions) Act 1958 s 32C - Psychotherapist's records contain confidential communications - Whether judge erred in granting leave - Whether judge erred in finding the records contained evidence of substantial probative value to a fact in issue - Leave to appeal granted - Appeal allowed - Interlocutory decision set aside.
Evidence (Miscellaneous Provisions) Act 1958, ss 32AB, 32C, 32CF, 32D.
KR (a pseudonym) v BR (a pseudonym) [2018] VSCA 159; Baker (a pseudonym) v The Queen [2015] VSCA 323; JK v The King [2025] NSWCCA 44; Lanzer v Lombardo [2025] VSCA 229.
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.
ACCIDENT COMPENSATION - Transport accident - Serious injury - Application for leave to commence common law proceeding - Spinal injury - Whether judge erred in concluding applicant's evidence as to spinal injury and impairment consequences was wholly unreliable - Whether judge erred in failing to consider the whole of the evidence - Whether judge erred in failing to consider evidence of applicant's psychiatric/psychological response to her injury - Leave to appeal refused.
ACCIDENT COMPENSATION - Transport accident - Serious injury - Application for leave to commence common law proceeding - Spinal injury - Whether judge erred in concluding applicant's evidence as to spinal injury and impairment consequences was wholly unreliable - Whether judge erred in failing to consider the whole of the evidence - Whether judge erred in failing to consider evidence of applicant's psychiatric/psychological response to her injury - Leave to appeal refused.
Transport Accident Act 1986, s 93.
Lee v Lee (2019) 266 CLR 129; Fox v Percy (2003) 214 CLR 118; Connelly v Transport Accident Commission (2024) 73 VR 257; Mobilio v Balliotis [1998] 3 VR 833; Veljanovska v Verduci (2014) 42 VR 222; Rowe v Transport Accident Commission (2017) 83 MVR 195; Lovrenovich v Transport Accident Commission (2025) 110 MVR 70; Richards v Wylie (2000) 1 VR 79.
CRIMINAL LAW - Sentence - Application for leave to appeal against sentence - Theft (4 charges), aggravated burglary (1 charge), attempted aggravated burglary (4 charges), home invasion (1 charge), attempted burglary (1 charge), dangerous driving while being pursued by police (1 charge), drive while disqualified (1 charge) - TES of 3 years and 1 month, with NPP of 2 years - Whether judge failed to appropriately mitigate sentence given applicant's participation in Koori Court sentencing conversation - Whether sentence of 22 months for home invasion manifestly excessive - Proposed grounds of appeal not reasonably arguable - Application for leave to appeal refused.
CRIMINAL LAW - Sentence - Application for leave to appeal against sentence - Theft (4 charges), aggravated burglary (1 charge), attempted aggravated burglary (4 charges), home invasion (1 charge), attempted burglary (1 charge), dangerous driving while being pursued by police (1 charge), drive while disqualified (1 charge) - TES of 3 years and 1 month, with NPP of 2 years - Whether judge failed to appropriately mitigate sentence given applicant's participation in Koori Court sentencing conversation - Whether sentence of 22 months for home invasion manifestly excessive - Proposed grounds of appeal not reasonably arguable - Application for leave to appeal refused.
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 - 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 - Multiple offences including carjacking, causing injury intentionally, possessing drug of dependence and unlicenced driving - Total effective sentence of 2 years and 9 months - Non-parole period of 22 months - Whether sentence manifestly excessive - Applicant's remand time was in management unit - No evidence of reason for applicant being in management unit - Some weight attached to period of confinement in sentencing synthesis - Proposed ground does not allege specific error - Extensive and relevant criminal history - Two serious offences - Aggressive and thuggish conduct - Moderate sentences in the circumstances - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Multiple offences including carjacking, causing injury intentionally, possessing drug of dependence and unlicenced driving - Total effective sentence of 2 years and 9 months - Non-parole period of 22 months - Whether sentence manifestly excessive - Applicant's remand time was in management unit - No evidence of reason for applicant being in management unit - Some weight attached to period of confinement in sentencing synthesis - Proposed ground does not allege specific error - Extensive and relevant criminal history - Two serious offences - Aggressive and thuggish conduct - Moderate sentences in the circumstances - Leave to appeal refused.
Clarkson v The Queen (2011) 32 VR 361; Young v The Queen [2016] VSCA 149, applied.
R v Males [2007] VSCA 302; R v Stevens [2009] VSCA 81; Yat v The King [2024] VSCA 93, 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 - Sentence - Application for leave to appeal against sentence - Parity - Where sentencing judge made findings more favourable in relation to applicant than in relation to co-accused - Whether unreasonable lack of disparity between sentences imposed on applicant and co-accused - Parity complaints not reasonably arguable - Application for leave to appeal refused.
CRIMINAL LAW - Sentence - Application for leave to appeal against sentence - Parity - Where sentencing judge made findings more favourable in relation to applicant than in relation to co-accused - Whether unreasonable lack of disparity between sentences imposed on applicant and co-accused - Parity complaints not reasonably arguable - Application for leave to appeal refused.
CRIMINAL LAW - Sentence - Appeal - Sexual penetration of a child or lineal descendant (2 charges), attempted sexual penetration of a child or lineal descendant (1 charge), sexual assault of a child under 16 (3 charges), producing child abuse material (1 charge), possessing child pornography (1 charge), common assault (3 charges) - TES of 21 years, with NPP of 15 years - Pleas of guilty - High utilitarian value of pleas - Manifest excess - Whether individual sentences or TES manifestly excessive - TES manifestly excessive - Sentencing discretion reopened - Appeal allowed - Applicant resentenced to TES of 18 years, with NPP of 14 years.
CRIMINAL LAW - Sentence - Appeal - Sexual penetration of a child or lineal descendant (2 charges), attempted sexual penetration of a child or lineal descendant (1 charge), sexual assault of a child under 16 (3 charges), producing child abuse material (1 charge), possessing child pornography (1 charge), common assault (3 charges) - TES of 21 years, with NPP of 15 years - Pleas of guilty - High utilitarian value of pleas - Manifest excess - Whether individual sentences or TES manifestly excessive - TES manifestly excessive - Sentencing discretion reopened - Appeal allowed - Applicant resentenced to TES of 18 years, with NPP of 14 years.
CRIMINAL LAW - Sentence - Reasons for sentence - Adequacy of reasons for sentence - Necessary content of reasons for sentence - Reasons for sentence not explicitly referring to relevant sentencing principles - Whether reasons for sentence inadequate - Reasons for sentence less than optimal.
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.
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.
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 by supporting creditor to be substituted as plaintiff - Application for winding up in insolvency - Whether genuine dispute about debt - Whether genuine offsetting claim - Corporations Act 2001 (Cth), s 465B - Tokich Holdings v Shearton Constructions (2004) 185 FLR 130 - Re C2C Investments Pty Ltd [2012] NSWSC 1443 - In2Ply Pty Ltd v Amerind Pty Ltd (in liq) (recs and mgrs apptd) [2014] VSC 603 - Exercise of discretion - Application for substitution refused.
CORPORATIONS - Application by supporting creditor to be substituted as plaintiff - Application for winding up in insolvency - Whether genuine dispute about debt - Whether genuine offsetting claim - Corporations Act 2001 (Cth), s 465B - Tokich Holdings v Shearton Constructions (2004) 185 FLR 130 - Re C2C Investments Pty Ltd [2012] NSWSC 1443 - In2Ply Pty Ltd v Amerind Pty Ltd (in liq) (recs and mgrs apptd) [2014] VSC 603 - Exercise of discretion - Application for substitution refused.
PRACTICE AND PROCEDURE - Court to consider arguments dispositive of application - Civil Procedure Act 2010 (Vic), ss 19, 23, 25 - Late filing of material - Application to cross-examine - Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd [2007] VSCA 121, applied - Application for cross-examination refused.
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 - Standing - Bankruptcy Act 1962 (Cth) ss 58, 116 -Bankruptcy Act 1962 (Cth) s 116(2)(a) not applicable as former bankrupt claimant did not hold real property on trust for another - Most of the former bankrupt claimant's claims were essentially referable to alleged damage to property and financial rights - Most claims were not claims to recover damages or compensation for personal injury or wrong - Bankruptcy Act 1962 (Cth) s 116(2)(g) not applicable - Chose in action vested in the claimant's trustee in bankruptcy - No automatic revesting of chose in action in the claimant after discharge from bankruptcy - No assignment of chose in action or consent from the trustee in bankruptcy - Claimant held to lack standing to pursue most claims.
PRACTICE AND PROCEDURE - Standing - Bankruptcy Act 1962 (Cth) ss 58, 116 -Bankruptcy Act 1962 (Cth) s 116(2)(a) not applicable as former bankrupt claimant did not hold real property on trust for another - Most of the former bankrupt claimant's claims were essentially referable to alleged damage to property and financial rights - Most claims were not claims to recover damages or compensation for personal injury or wrong - Bankruptcy Act 1962 (Cth) s 116(2)(g) not applicable - Chose in action vested in the claimant's trustee in bankruptcy - No automatic revesting of chose in action in the claimant after discharge from bankruptcy - No assignment of chose in action or consent from the trustee in bankruptcy - Claimant held to lack standing to pursue most claims.
PRACTICE AND PROCEDURE - Standing - Privity of contract - Where claimant seeks to enforce a deed to which they are not party - Where claimant seeks damages for alleged breach of a deed to which they are not party - Claimant held to lack standing.
PRACTICE AND PROCEDURE - Standing - Where a third party claimant alleges mortgagee breached its duties to mortgagee - Claimant held to lack standing.
TRUSTS - Where ex-wife alleged to hold matrimonial home on resulting trust or constructive trust for the benefit of ex-husband - Where ex-husband alleged to have made all mortgage repayments - Insufficient evidence of intention to negative presumption of advancement - Insufficient evidence of common intention alleged - No trust arose under s 79 of the Family Law Act 1975 (Cth) where no orders were yet made under s 79.
CONTRACT - Settlement deed - Release clause - Principles of construction - Claimant held to have released respondent from claims.
PRACTICE AND PROCEDURE - Pleadings - Strike out application - Stay application - Parallel proceedings - Whether District Court of New South Wales a 'court of competent jurisdiction' - Whether abuse of process to prosecute both proceedings - Exercise of discretion - Prima facie position of abuse of process displaced on the facts - Mozambique rule, considered - Indication provided by plaintiff as to transfer of proceedings - Jurisdiction of Courts (Cross- Vesting) Act 1987 (NSW) - Application dismissed.
PRACTICE AND PROCEDURE - Pleadings - Strike out application - Stay application - Parallel proceedings - Whether District Court of New South Wales a 'court of competent jurisdiction' - Whether abuse of process to prosecute both proceedings - Exercise of discretion - Prima facie position of abuse of process displaced on the facts - Mozambique rule, considered - Indication provided by plaintiff as to transfer of proceedings - Jurisdiction of Courts (Cross- Vesting) Act 1987 (NSW) - Application dismissed.
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.
COSTS - Whether indemnity costs should be ordered when an abuse of process has been found - Whether costs should be assessed as a gross sum or taxed - Whether costs should be taxable immediately - Costs ordered on an indemnity basis, taxable immediately - Supreme Court Act 1986 (Vic) s 24(1) - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 63.20.1 - Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151 applied - Wilson v Bauer Media Pty Ltd (Costs) [2018] VSC 161 applied - Setka v Abbott (No 2) [2013] VSCA 376 applied.
COSTS - Whether indemnity costs should be ordered when an abuse of process has been found - Whether costs should be assessed as a gross sum or taxed - Whether costs should be taxable immediately - Costs ordered on an indemnity basis, taxable immediately - Supreme Court Act 1986 (Vic) s 24(1) - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 63.20.1 - Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151 applied - Wilson v Bauer Media Pty Ltd (Costs) [2018] VSC 161 applied - Setka v Abbott (No 2) [2013] VSCA 376 applied.
TESTATORS FAMILY MAINTENANCE - Application by two elderly adult sons for provision from mother's estate - Alleged failure by deceased to make adequate provision for plaintiffs' proper maintenance and support - Where plaintiffs worked on family farm without payment of wages for many years - Where one plaintiff received no provision under the Will and the other received land - Where deceased made promises to plaintiffs in return for not challenging their father's Will - Where deceased's Will provides explanation for exclusion and limitation of provision - Moral duty owed by deceased to provide for both plaintiffs - Lack of evidence of circumstances of need of one plaintiff at time of deceased's death - Where deceased breached moral duty to one plaintiff but not other - Pecuniary legacy to be paid to successful plaintiff - Blair v Blair (2004) 10 VR 69 - Grey v Harrison [1997] 2 VR 359 - Collicoat v McMillan [1999] 3 VR 803 - Pontifical Society for Propagation of Faith v Scales (1962) 107 CLR 9 - Davison v Kempson [2018] VSCA 51 - Vukic v Grbin [2006] NSWSC 41 - Jones v Smith (2016) 15 ASTLR 402 - Administration and Probate Act 1958 (Vic) s 91.
TESTATORS FAMILY MAINTENANCE - Application by two elderly adult sons for provision from mother's estate - Alleged failure by deceased to make adequate provision for plaintiffs' proper maintenance and support - Where plaintiffs worked on family farm without payment of wages for many years - Where one plaintiff received no provision under the Will and the other received land - Where deceased made promises to plaintiffs in return for not challenging their father's Will - Where deceased's Will provides explanation for exclusion and limitation of provision - Moral duty owed by deceased to provide for both plaintiffs - Lack of evidence of circumstances of need of one plaintiff at time of deceased's death - Where deceased breached moral duty to one plaintiff but not other - Pecuniary legacy to be paid to successful plaintiff - Blair v Blair (2004) 10 VR 69 - Grey v Harrison [1997] 2 VR 359 - Collicoat v McMillan [1999] 3 VR 803 - Pontifical Society for Propagation of Faith v Scales (1962) 107 CLR 9 - Davison v Kempson [2018] VSCA 51 - Vukic v Grbin [2006] NSWSC 41 - Jones v Smith (2016) 15 ASTLR 402 - Administration and Probate Act 1958 (Vic) s 91.
PRACTICE AND PROCEDURE - Proceedings - Protracted history of litigation and related proceedings - Where intervening event of bankruptcy caused stay of proceedings - Where outcome of proceedings dependent on determination of related proceedings - Bankruptcy Act 1966 (Cth).
INTERLOCUTORY APPLICATION
INTERLOCUTORY APPLICATION
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 - 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.
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.
APPLICATION FOR ADJOURNMENT - SELF-REPRESENTED LITIGANT - Retrial on single charge of manslaughter - Application made to obtain legal advice - Application made on the basis of medical grounds - Applicant refused lawyers engaged prior - Applicant made prior representation to the Court of intention to represent himself - Applicant provided no evidence as to medical condition - Application denied.
APPLICATION FOR ADJOURNMENT - SELF-REPRESENTED LITIGANT - Retrial on single charge of manslaughter - Application made to obtain legal advice - Application made on the basis of medical grounds - Applicant refused lawyers engaged prior - Applicant made prior representation to the Court of intention to represent himself - Applicant provided no evidence as to medical condition - Application denied.
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 - 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.
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.
SUMMARY JUDGMENT - Mortgages - Recovery of possession of property - Default under home loan - Failure to remedy default - Enforcement of guarantee - Whether loan was properly terminated - Whether event of default actually occurred - Treatment of irregular documents not constituting evidence - Self-represented litigants.
SUMMARY JUDGMENT - Mortgages - Recovery of possession of property - Default under home loan - Failure to remedy default - Enforcement of guarantee - Whether loan was properly terminated - Whether event of default actually occurred - Treatment of irregular documents not constituting evidence - Self-represented litigants.