CRIMINAL PRACTICE - Trial - Tendency evidence - Directions to jury - Where respondent charged with child sexual offences against single complainant - Where charges arose out of three separate alleged incidents - Where Crown contended evidence in support of charged acts established a tendency on part of respondent - Where trial judge directed jury in determining whether tendency established to make findings in respect of charged acts to a lesser standard than criminal standard - Whether tendency direction likely to have deflected jury's attention from applying required standard of proof - Whether reliance on evidence of charged acts as basis for tendency inconsistent with nature of tendency evidence - Whether tendency direction required jury to engage in impermissible circular reasoning.
CRIMINAL PRACTICE - Trial - Tendency evidence - Directions to jury - Where respondent charged with child sexual offences against single complainant - Where charges arose out of three separate alleged incidents - Where Crown contended evidence in support of charged acts established a tendency on part of respondent - Where trial judge directed jury in determining whether tendency established to make findings in respect of charged acts to a lesser standard than criminal standard - Whether tendency direction likely to have deflected jury's attention from applying required standard of proof - Whether reliance on evidence of charged acts as basis for tendency inconsistent with nature of tendency evidence - Whether tendency direction required jury to engage in impermissible circular reasoning.
WORDS AND PHRASES - "beyond reasonable doubt", "charged acts", "child sexual offence", "circular reasoning", "circumstantial evidence", "deflected from applying the required standard of proof", "inconsistent with the nature of tendency evidence", "inferential reasoning", "intermediate conclusion", "intermediate fact", "jury direction", "lesser standard", "miscarriage of justice", "misdirection", "probability", "proof of the charges", "sexual offences", "significant probative value", "single-act tendency", "standard of proof", "summing up", "tendency", "tendency direction", "tendency evidence", "tendency notice", "tendency reasoning".
Crimes Act 1900 (NSW), ss 66C(1), 66DB(a).
Criminal Appeal Act 1912 (NSW), s 6(1).
Criminal Procedure Act 1986 (NSW), s 161A.
Evidence Act 1995 (NSW), ss 97, 97A, 101(2).
CONSTITUTIONAL LAW (Cth) - Implied freedom of communication about government or political matters - Where certain provisions of Pt 12 of Electoral Act 2002 (Vic) imposed general cap on political donations from a single donor within election period with exception for gifts between registered political party and nominated entity of registered political party ("nominated entity exception") - Where s 222F of Electoral Act permitted registered political party to appoint nominated entity on two alternative sets of eligibility criteria - Where second set of eligibility criteria only available if first appointment of entity as nominated entity made before 1 July 2020 ("time limitation in s 222F(3)") - Where only major parties appointed entities as nominated entities before 1 July 2020 - Where nominated entities of major parties well-capitalised prior to operation of general cap - Where assets of nominated entities of major parties significantly exceed what could lawfully be raised by individual candidate or uncapitalised nominated entity subject to general cap - Where defendant conceded time limitation in s 222F(3) invalid - Whether Pt 12 in operation with nominated entity exception invalid - Whether aspects of Pt 12 severable.
CONSTITUTIONAL LAW (Cth) - Implied freedom of communication about government or political matters - Where certain provisions of Pt 12 of Electoral Act 2002 (Vic) imposed general cap on political donations from a single donor within election period with exception for gifts between registered political party and nominated entity of registered political party ("nominated entity exception") - Where s 222F of Electoral Act permitted registered political party to appoint nominated entity on two alternative sets of eligibility criteria - Where second set of eligibility criteria only available if first appointment of entity as nominated entity made before 1 July 2020 ("time limitation in s 222F(3)") - Where only major parties appointed entities as nominated entities before 1 July 2020 - Where nominated entities of major parties well-capitalised prior to operation of general cap - Where assets of nominated entities of major parties significantly exceed what could lawfully be raised by individual candidate or uncapitalised nominated entity subject to general cap - Where defendant conceded time limitation in s 222F(3) invalid - Whether Pt 12 in operation with nominated entity exception invalid - Whether aspects of Pt 12 severable.
WORDS AND PHRASES - "candidate", "constitutionally prescribed system of representative and responsible government", "differential burden", "effective burden", "effective constraint", "election", "eligibility criteria", "general cap", "gift", "illegitimate purpose", "implied freedom of political communication", "impugned law", "impugned provisions", "indirect burden", "inextricable connection", "justified", "law", "legacy parties", "legal rule", "legislative purpose", "legitimate purpose", "level of generality", "major parties", "nominated entity", "nominated entity exception", "political donation", "political expenditure", "proper objective", "proportionality", "provision", "reasonably appropriate and adapted", "registered political party", "regulated person or entity", "risk of corruption and undue influence", "severance".
Electoral Act 2002 (Vic), ss 3, 45(2)(c), 50(1)(a)(ii), 69A, Pt 4, Pt 12.
Electoral Legislation Amendment Act 2018 (Vic), s 1(a)(ii).
Interpretation of Legislation Act 1984 (Vic), ss 4(1)(a), 6(1), 38.
Corporations Act 2001 (Cth), s 50AA.
PRIVATE INTERNATIONAL LAW - Foreign State immunity - Immunity from jurisdiction - Proceedings for recognition and enforcement of arbitral award - Where appellants assignees of investors who obtained arbitral award against respondent - Where appellants sought to have award recognised and enforced in Australia under Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) ("New York Convention") as implemented by Pt II of International Arbitration Act 1974 (Cth) - Whether respondent's ratification of New York Convention amounted to waiver of respondent's foreign State immunity from jurisdiction for recognition and enforcement of foreign arbitral award in courts of other State parties to New York Convention - Whether clear and unmistakeable intention that entry into New York Convention involves waiver of foreign State immunity - Whether text and context of New York Convention suggests State ratification intended to constitute waiver of foreign State immunity.
PRIVATE INTERNATIONAL LAW - Foreign State immunity - Immunity from jurisdiction - Proceedings for recognition and enforcement of arbitral award - Where appellants assignees of investors who obtained arbitral award against respondent - Where appellants sought to have award recognised and enforced in Australia under Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) ("New York Convention") as implemented by Pt II of International Arbitration Act 1974 (Cth) - Whether respondent's ratification of New York Convention amounted to waiver of respondent's foreign State immunity from jurisdiction for recognition and enforcement of foreign arbitral award in courts of other State parties to New York Convention - Whether clear and unmistakeable intention that entry into New York Convention involves waiver of foreign State immunity - Whether text and context of New York Convention suggests State ratification intended to constitute waiver of foreign State immunity.
WORDS AND PHRASES - "arbitral award", "arbitration", "clear and unmistakeable", "commercial or private law dispute", "commercial transaction", "common understanding", "enforcement", "express reservation", "foreign arbitral award", "foreign State immunity", "immunity from jurisdiction", "intention", "intention to preserve", "persons, whether physical or legal", "practical effect", "preservation", "presumption", "private party", "ratification", "reciprocity", "recognition", "reservation", "scope", "sovereign equality", "sovereign immunity", "State practice", "submission to jurisdiction", "subsequent practice", "waiver".
Foreign States Immunities Act 1985 (Cth), ss 9, 10, 11, 17.
International Arbitration Act 1974 (Cth), ss 8, 9, Sch 1.
Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), Arts I, II, III, IV, V, VI, VII, XI, XIII, XIV.
Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965), Arts 53, 54, 55.
Vienna Convention on the Law of Treaties (1969), Art 31.
COMPENSATION - Employees of licensed corporation - Injury - Whether injury sustained in course of employment - Whether s 44(1) of Safety, Rehabilitation and Compensation Act 1988 (Cth) prevents applicant from maintaining proceeding for damages - Where injury claimed to have been suffered after applicant ceased performing work duties - Whether primary judge correct to summarily dismiss applicant's proceeding - Proposed appeal having no real prospect of success - Application for leave to appeal refused.
COMPENSATION - Employees of licensed corporation - Injury - Whether injury sustained in course of employment - Whether s 44(1) of Safety, Rehabilitation and Compensation Act 1988 (Cth) prevents applicant from maintaining proceeding for damages - Where injury claimed to have been suffered after applicant ceased performing work duties - Whether primary judge correct to summarily dismiss applicant's proceeding - Proposed appeal having no real prospect of success - Application for leave to appeal refused.
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A(1), 44(1).
Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22; Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281; Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626; Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; Mills v Australian Postal Commission (1994) 32 ALD 489; Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; Comcare v PVYW (2013) 250 CLR 246; Waters v Commonwealth (2013) 274 FLR 338, referred to.
CRIMINAL LAW - Appeal - Sentence - Intentionally cause serious injury - Make threat to kill - Assault emergency worker on duty - Guilty plea following sentence indication of 10 years' imprisonment - Applicant sentenced to 10 years' imprisonment with non-parole period of 7 years and 3 months - Additional material in mitigation tendered on plea - Whether judge failed to give proper weight to additional material - Whether sentences manifestly excessive - Sentence indication not to be approached as starting point to be reduced in light of additional material - Community protection important in light of very serious nature of offending - Severe impact on victim - Guarded prospects of rehabilitation - Manifest excess not made out - Neither proposed ground has any prospect of success - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Intentionally cause serious injury - Make threat to kill - Assault emergency worker on duty - Guilty plea following sentence indication of 10 years' imprisonment - Applicant sentenced to 10 years' imprisonment with non-parole period of 7 years and 3 months - Additional material in mitigation tendered on plea - Whether judge failed to give proper weight to additional material - Whether sentences manifestly excessive - Sentence indication not to be approached as starting point to be reduced in light of additional material - Community protection important in light of very serious nature of offending - Severe impact on victim - Guarded prospects of rehabilitation - Manifest excess not made out - Neither proposed ground has any prospect of success - Application for leave to appeal refused.
Karam v The King [2024] VSCA 164; Greenaway (a pseudonym) v The King [2025] VSCA 280; Clarkson v The Queen (2011) 32 VR 361; Young v The Queen [2016] VSCA 149, applied.
DPP v Blake (a pseudonym) [2020] VCC 262; Ranger v The Queen [2018] VSCA 271; DPP v Gilbert [2019] VCC 330, considered.
ADMINISTRATIVE LAW - Application for leave to appeal on a question of law from order of Victorian Civil and Administrative Tribunal - Scope of Tribunal's review jurisdiction - Tribunal on review must address same question original decision-maker was required to consider - Tribunal's jurisdiction does not extend to reviewing prior conduct which framed the decision under review - No error in Tribunal's conclusions regarding scope of review jurisdiction - No error in Tribunal's conclusions regarding penalty - Proposed grounds of appeal based on fundamental misconception about Tribunal's function and review jurisdiction - No real prospect of success on any proposed ground - No substantial injustice - Application for leave to appeal dismissed.
ADMINISTRATIVE LAW - Application for leave to appeal on a question of law from order of Victorian Civil and Administrative Tribunal - Scope of Tribunal's review jurisdiction - Tribunal on review must address same question original decision-maker was required to consider - Tribunal's jurisdiction does not extend to reviewing prior conduct which framed the decision under review - No error in Tribunal's conclusions regarding scope of review jurisdiction - No error in Tribunal's conclusions regarding penalty - Proposed grounds of appeal based on fundamental misconception about Tribunal's function and review jurisdiction - No real prospect of success on any proposed ground - No substantial injustice - Application for leave to appeal dismissed.
Building Act 1993 Version 102 as at 1 July 2014, ss 178, 179, 180, 182A, 183; Victorian Civil and Administrative Tribunal Act 1998, ss 48, 49, 51, 57, 148.
Shi v Migration Agents Registration Authority (2008) 235 CLR 286; Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250, considered.
CORPORATIONS - External administration - Liquidation of ten companies forming corporate group - Where most companies in group are corporate trustees holding real property - Where shallow pool of creditors - Where liquidators already appointed as receivers and managers of trust assets - Omnibus application by liquidators and receivers for various directions and orders to enable finalisation of liquidations and receiverships - Corporations Act 2001 (Cth) ('Corporations Act') - Sch 2, Insolvency Practice Schedule (Corporations)) ('IPS'), s 90-15 - Supreme Court (General Civil Procedure) Rules 2025 (Vic) ('Rules'), r 39.09(1) - Inherent equitable power of Court - Whether liquidators and receivers justified and acting reasonably in not taking further steps to recover loans recorded as assets in books of companies - Where absence of documentation - Whether loans statute-barred - Whether liquidators justified in admitting to proof inter-company loan debts - Direction that liquidators and receivers justified and acting reasonably in apportioning costs of omnibus application across corporate group.
CORPORATIONS - External administration - Liquidation of ten companies forming corporate group - Where most companies in group are corporate trustees holding real property - Where shallow pool of creditors - Where liquidators already appointed as receivers and managers of trust assets - Omnibus application by liquidators and receivers for various directions and orders to enable finalisation of liquidations and receiverships - Corporations Act 2001 (Cth) ('Corporations Act') - Sch 2, Insolvency Practice Schedule (Corporations)) ('IPS'), s 90-15 - Supreme Court (General Civil Procedure) Rules 2025 (Vic) ('Rules'), r 39.09(1) - Inherent equitable power of Court - Whether liquidators and receivers justified and acting reasonably in not taking further steps to recover loans recorded as assets in books of companies - Where absence of documentation - Whether loans statute-barred - Whether liquidators justified in admitting to proof inter-company loan debts - Direction that liquidators and receivers justified and acting reasonably in apportioning costs of omnibus application across corporate group.
CORPORATIONS - Corporations Act, s 488(2) - Application for special leave to distribute surplus funds to shareholders - Rule 39.09(1) of Rules - Inherent power of Court - Corresponding orders sought for distribution of funds to beneficiaries of trust - Where all assets of companies and trusts have been realised - Where all creditors of companies in which surplus expected have been ascertained and will be paid - Where payment of surplus contingent on treatment of inter-company loans - Where detailed methodology proposed for distribution of surplus - Application granted - Whether liquidators and receivers justified and acting reasonably in making interim distributions of surplus while tasks in liquidations and receiverships remain outstanding - Dispensation from publication requirements under r 7.9(2) of Supreme Court (Corporations) Rules 2023 (Vic) ('Corporations Rules') and annexure and notice requirements in regs 5.6.71(1) and 5.6.71(2) of Corporations Regulations 2001 (Cth).
CORPORATIONS - External administration - Application by liquidators for approval of remuneration during periods when acting as liquidators of companies and as receivers and managers of trust assets - Rule 39.06 of Rules - Inherent equitable power of Court - Consideration of factors set out under s 425(8) of Corporations Act and s 60-12 of IPS - Part of remuneration claim for one company made against fund held in liquidation of separate company for work caring for, preserving and realising property - Re Universal Distributing Co Ltd (in liq) (1933) 48 CLR 171 applied - Remuneration claim for past work approved with slight discount - Prospective remuneration claim - Discussion of relevant principles - Prospective remuneration claim approved for capped amount - Dispensation from notice requirements in r 9.2 of Corporations Rules.
CORPORATIONS - Winding up - Insolvency - Statutory demand - Application to set aside - Corporations Act 2001 (Cth), s 459G - Where default judgment obtained against company - Defendant alleges deed of settlement entered into for release of judgment debt executed under duress, undue influence or unconscionable conduct - Not satisfied claims made out - No purpose served by application in circumstances where company in liquidation - Application dismissed.
CORPORATIONS - Winding up - Insolvency - Statutory demand - Application to set aside - Corporations Act 2001 (Cth), s 459G - Where default judgment obtained against company - Defendant alleges deed of settlement entered into for release of judgment debt executed under duress, undue influence or unconscionable conduct - Not satisfied claims made out - No purpose served by application in circumstances where company in liquidation - Application dismissed.
CORPORATIONS - Winding up - Insolvency - Application to stay liquidation and terminate winding up - Corporations Act 2001 (Cth), s 482 - Defendants' claim disputed and subject to deed of settlement - Consideration of defendants' standing as creditor - Sections 445D(2), 462, 482(1A) - Not satisfied standing established - Where settlement sum paid in full - Not satisfied deed liable to be set aside - Application dismissed.
CORPORATIONS - Application for reinstatement of deregistered company's registration and for appointment of liquidators - Standing - Whether reinstatement just - Residual discretion applied - Corporations Act 2001 (Cth), ss 601AH(2), 473A(1)(a) - Liquidator appointed - Appropriate to make orders reinstating registration.
CORPORATIONS - Application for reinstatement of deregistered company's registration and for appointment of liquidators - Standing - Whether reinstatement just - Residual discretion applied - Corporations Act 2001 (Cth), ss 601AH(2), 473A(1)(a) - Liquidator appointed - Appropriate to make orders reinstating registration.
CORPORATIONS - Winding up - Statutory demand - Application to set aside on ground of offsetting claim - Corporations Act 2001 (Cth), ss 459G, 459H - Demand seeks payment comprising GST on invoices issued to company - Whether offsetting claim genuine - Whether to vary demand pursuant to s 459H(4) - Demand varied in respect of legal costs and liquidated damages - Not satisfied claim otherwise established.
CORPORATIONS - Winding up - Statutory demand - Application to set aside on ground of offsetting claim - Corporations Act 2001 (Cth), ss 459G, 459H - Demand seeks payment comprising GST on invoices issued to company - Whether offsetting claim genuine - Whether to vary demand pursuant to s 459H(4) - Demand varied in respect of legal costs and liquidated damages - Not satisfied claim otherwise established.
EQUITY - Equitable remedies - Equity of redemption - Where mortgagor proposes to pay judgment sum but not further amounts claimed by the mortgagee - Whether mortgagor entitled to order that the mortgagee execute a discharge of mortgage - Application refused.
EQUITY - Equitable remedies - Equity of redemption - Where mortgagor proposes to pay judgment sum but not further amounts claimed by the mortgagee - Whether mortgagor entitled to order that the mortgagee execute a discharge of mortgage - Application refused.
PRACTICE AND PROCEDURE - Application for stay of execution of judgment for possession and judgment debt pending refinance - Where refinance conditional upon discharge of mortgage - Application refused - Supreme Court (General Civil Procedure) Rules 2025, r 66.16.
CONTRACT - Claim for recovery of debt under contract - Construction of commercial contract - Incorporation of contractual terms by reference - Whether terms of Mudaraba-style profit-sharing investment structure incorporated into signed loan agreement - No incorporation under terms of contract - Where terms alleged to have been incorporated fundamentally inconsistent with original contract - Terms of contract create loan - Debt due under loan agreement.
CONTRACT - Claim for recovery of debt under contract - Construction of commercial contract - Incorporation of contractual terms by reference - Whether terms of Mudaraba-style profit-sharing investment structure incorporated into signed loan agreement - No incorporation under terms of contract - Where terms alleged to have been incorporated fundamentally inconsistent with original contract - Terms of contract create loan - Debt due under loan agreement.
CONTRACT - Implied duty to cooperate - Duty to cooperate implied to ensure lender received the benefit of collateral - Breach of implied duty - Consent - No proof of loss and damage.
PRACTICE AND PROCEDURE - Application for leave to amend pleadings under r 36.01(1) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Civil Procedure Act 2010 (Vic), s 63 - Mandie v Memart Nominees Pty Ltd [2016] VSCA 4 - Commonwealth v Verwayen (1990) 170 CLR 394 - Fabfloor (Vic) Pty Ltd & Ors v BNY Trust Company of Australia Limited & Ors [2016] VSC 99 - Zonia Holdings Pty Ltd v Commonwealth Bank of Australia Ltd [2025] FCAFC 63 - Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580 - Viterra Malt Pty Ltd v Cargill Australia Ltd (2023) 74 VR 1 - Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 - Leave to amend pleadings in the present form is refused, but the plaintiffs will have leave to file a further pleading.
PRACTICE AND PROCEDURE - Application for leave to amend pleadings under r 36.01(1) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Civil Procedure Act 2010 (Vic), s 63 - Mandie v Memart Nominees Pty Ltd [2016] VSCA 4 - Commonwealth v Verwayen (1990) 170 CLR 394 - Fabfloor (Vic) Pty Ltd & Ors v BNY Trust Company of Australia Limited & Ors [2016] VSC 99 - Zonia Holdings Pty Ltd v Commonwealth Bank of Australia Ltd [2025] FCAFC 63 - Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580 - Viterra Malt Pty Ltd v Cargill Australia Ltd (2023) 74 VR 1 - Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 - Leave to amend pleadings in the present form is refused, but the plaintiffs will have leave to file a further pleading.
PRACTICE AND PROCEDURE - Group proceedings - Application by defendants for opt-out and group member registration notice - Proposed soft class closure - Whether orders appropriate or necessary to ensure that justice is done - Soft class closure and registration opposed by plaintiffs - Early-stage proceedings - Open class model - Material cost of registration regime - Participation rate and potential artificial suppression - Intra-class conflict and unfairness - Whether registration necessary to facilitate settlement - Soft class closure orders not appropriate in this case - Interests of group members as a whole - Group members' right to opt out preserved - Application refused - Supreme Court Act 1986 (Vic), ss 33ZF, 33ZG - Fox v Westpac; O'Brien v ANZ; Nathan v Macquarie [2023] VSC 414 - Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (2017) 252 FCR 1 - Preece v Aristocrat Leisure Limited [2025] FCA 742.
PRACTICE AND PROCEDURE - Group proceedings - Application by defendants for opt-out and group member registration notice - Proposed soft class closure - Whether orders appropriate or necessary to ensure that justice is done - Soft class closure and registration opposed by plaintiffs - Early-stage proceedings - Open class model - Material cost of registration regime - Participation rate and potential artificial suppression - Intra-class conflict and unfairness - Whether registration necessary to facilitate settlement - Soft class closure orders not appropriate in this case - Interests of group members as a whole - Group members' right to opt out preserved - Application refused - Supreme Court Act 1986 (Vic), ss 33ZF, 33ZG - Fox v Westpac; O'Brien v ANZ; Nathan v Macquarie [2023] VSC 414 - Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (2017) 252 FCR 1 - Preece v Aristocrat Leisure Limited [2025] FCA 742.
TRUSTS - Trustee powers - Application by Trustee for conferral of power to extend time under unit transfer provisions - Underlying dispute between unitholder and third party - Alleged invalid assignment and entitlement to trust distributions - Impracticability of complying with two-month period under Deed - Whether extension of time constitutes transaction in management or administration of trust property - Whether expedient in the interests of beneficiaries - Whether power sought absent from trust instrument - Court's power to grant additional powers - Conditions satisfied - Permission granted to extend time - Retrospective operation of order - Trustee Act 1958 (Vic), s 63.
TRUSTS - Trustee powers - Application by Trustee for conferral of power to extend time under unit transfer provisions - Underlying dispute between unitholder and third party - Alleged invalid assignment and entitlement to trust distributions - Impracticability of complying with two-month period under Deed - Whether extension of time constitutes transaction in management or administration of trust property - Whether expedient in the interests of beneficiaries - Whether power sought absent from trust instrument - Court's power to grant additional powers - Conditions satisfied - Permission granted to extend time - Retrospective operation of order - Trustee Act 1958 (Vic), s 63.
TRUSTS - Construction of Deed - Drafting errors - References to 'clause' instead of 'schedule' - 'Sub-paragraph' instead of 'rule' - Omission of reference to valuer - Whether Court may correct or supply words - Corrections necessary to give effect to operation of rules - Construction clarified.
PRACTICE AND PROCEDURE - Originating motion - Attempt to introduce inter partes dispute by counterclaim - Whether appropriate to convert proceeding to writ - Separate dispute concerning ownership of units and assignment - Potential prejudice to Trustee and other unitholders - Fresh proceeding required - Further orders refused.
REPRESENTATIVE PROCEEDINGS - Part 4A group proceeding - Inadvertent error in modelling relied on when order made varying original group costs order - Application for leave to reopen by law practice - Internal rate of return - Prompt disclosure by law practice - Whether percentage allowance for legal costs specified in variation order should be amended - Modelling corrected for error - Necessary or appropriate that group costs order be amended to reflect same internal rate of return as underpinned variation order but corrected for modelling error - Supreme Court Act 1986 pt 4A, ss 33ZDA(1) and 33ZDA(3) - Allen v G8 Education Ltd (No 4) [2024] VSC 487, Byrnes v Origin Energy Ltd (No 2) [2026] VSC 97, Fox v Westpac Banking Corporation [2025] VSC 643, McCoy v Hino Motors Ltd [2025] VSC 447 and McCoy v Hino Motors Ltd (No 2) [2025] VSC 553 referred to.
REPRESENTATIVE PROCEEDINGS - Part 4A group proceeding - Inadvertent error in modelling relied on when order made varying original group costs order - Application for leave to reopen by law practice - Internal rate of return - Prompt disclosure by law practice - Whether percentage allowance for legal costs specified in variation order should be amended - Modelling corrected for error - Necessary or appropriate that group costs order be amended to reflect same internal rate of return as underpinned variation order but corrected for modelling error - Supreme Court Act 1986 pt 4A, ss 33ZDA(1) and 33ZDA(3) - Allen v G8 Education Ltd (No 4) [2024] VSC 487, Byrnes v Origin Energy Ltd (No 2) [2026] VSC 97, Fox v Westpac Banking Corporation [2025] VSC 643, McCoy v Hino Motors Ltd [2025] VSC 447 and McCoy v Hino Motors Ltd (No 2) [2025] VSC 553 referred to.
INTERLOCUTORY INJUNCTION - Performance guarantee - Bank guarantee - Asserted breach of contract - Risk allocation device - Serious question to be tried - Whether claim to recourse is not seriously arguable - Whether breach of subsequent deed is also a breach of contract - Balance of convenience - Preservation of status quo - Irreparable harm - Adequacy of damages - Strength of prima facie case - ABC v O'Neill (2006) 227 CLR 57 - Bradto Pty Ltd v State of Victoria (2006) 15 VR 6 - Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 - FMT Aircraft Gate Support Systems v Sydney Ports Corporation [2010] NSWSC 1108.
INTERLOCUTORY INJUNCTION - Performance guarantee - Bank guarantee - Asserted breach of contract - Risk allocation device - Serious question to be tried - Whether claim to recourse is not seriously arguable - Whether breach of subsequent deed is also a breach of contract - Balance of convenience - Preservation of status quo - Irreparable harm - Adequacy of damages - Strength of prima facie case - ABC v O'Neill (2006) 227 CLR 57 - Bradto Pty Ltd v State of Victoria (2006) 15 VR 6 - Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 - FMT Aircraft Gate Support Systems v Sydney Ports Corporation [2010] NSWSC 1108.
NEGLIGENCE - Adult plaintiff fell while jumping boundary fence between oval and nets at cricket training and suffered serious injuries - Where no pedestrian gate installed in fence adjacent to nets when nets installed but pedestrian gates present at other locations - Where Cricket Club raised need for gate with Council but not explicitly as safety concern - Whether Council negligent by failing to install gate in boundary fence adjacent to nets - Whether Club negligent by not sufficiently raising need for gate or by not directing plaintiff not to jump fence - Council and Club both occupiers of premises - Where Council knew or ought to have known that people would climb or jump fence adjacent to nets if gate not installed - Council acting reasonably would have installed new gate when installed nets - Club did not fail to act reasonably in raising need for gate or by failing to direct plaintiff not to jump boundary fence - Whether plaintiff voluntarily assumed risk of injury - Plaintiff did not freely and voluntarily accept risk of injury - Council liable to pay damages to Plaintiff - Where quantum agreed - Whether plaintiff contributorily negligent - Plaintiff contributorily negligent by running at and attempting vault over fence - Damages reduced by 20% - Smith v Baker & Sons [1891] AC 325 - Letang v Ottawa Electric Railway Company [1926] AC 725 - Nagle v Rottnest Island Authority (1993) 177 CLR 423 - Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 - Swain v Waverley Municipal Council (2005) 220 CLR 517 - Vairy v Wyong Shire Council (2005) 223 CLR 422 - Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 - Wrongs Act 1958 (Vic) ss 14B, 26, 48, 51, 53, 54.
NEGLIGENCE - Adult plaintiff fell while jumping boundary fence between oval and nets at cricket training and suffered serious injuries - Where no pedestrian gate installed in fence adjacent to nets when nets installed but pedestrian gates present at other locations - Where Cricket Club raised need for gate with Council but not explicitly as safety concern - Whether Council negligent by failing to install gate in boundary fence adjacent to nets - Whether Club negligent by not sufficiently raising need for gate or by not directing plaintiff not to jump fence - Council and Club both occupiers of premises - Where Council knew or ought to have known that people would climb or jump fence adjacent to nets if gate not installed - Council acting reasonably would have installed new gate when installed nets - Club did not fail to act reasonably in raising need for gate or by failing to direct plaintiff not to jump boundary fence - Whether plaintiff voluntarily assumed risk of injury - Plaintiff did not freely and voluntarily accept risk of injury - Council liable to pay damages to Plaintiff - Where quantum agreed - Whether plaintiff contributorily negligent - Plaintiff contributorily negligent by running at and attempting vault over fence - Damages reduced by 20% - Smith v Baker & Sons [1891] AC 325 - Letang v Ottawa Electric Railway Company [1926] AC 725 - Nagle v Rottnest Island Authority (1993) 177 CLR 423 - Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 - Swain v Waverley Municipal Council (2005) 220 CLR 517 - Vairy v Wyong Shire Council (2005) 223 CLR 422 - Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 - Wrongs Act 1958 (Vic) ss 14B, 26, 48, 51, 53, 54.
ADMINISTRATION AND PROBATE - Application for removal of executor - Failure to administer estate - Conflict of interest - Inability to act due to ill health - Removal and vesting orders made - Administration and Probate Act 1958 (Vic) s 34(1)(b) - Trustee Act 1958 (Vic) ss 48, 51.
ADMINISTRATION AND PROBATE - Application for removal of executor - Failure to administer estate - Conflict of interest - Inability to act due to ill health - Removal and vesting orders made - Administration and Probate Act 1958 (Vic) s 34(1)(b) - Trustee Act 1958 (Vic) ss 48, 51.
TRUSTS - Application for removal of trustee - Conflict of interest - Inability to act due to ill health - Trustee Act 1958 (Vic) ss 48, 51.
ADMINISTRATIVE LAW - Application for leave to appeal from orders of Victorian Civil and Administrative Tribunal - Jurisdictional error - Procedural fairness - Bias - No merit in application for leave to appeal.
ADMINISTRATIVE LAW - Application for leave to appeal from orders of Victorian Civil and Administrative Tribunal - Jurisdictional error - Procedural fairness - Bias - No merit in application for leave to appeal.
COURTS AND JUDICIAL SYSTEM - Judges - Bias - Apprehended bias - Bias on an institutional basis - Summons to appoint an interstate judge - Leave sought to amend summons to declarations on appropriateness to appoint interstate judge to preserve the appearance of justice - Applicable test for the disqualification of a judge - No apprehended or actual bias - Application for leave to amend summons refused - Application for interstate judge refused.
COURTS AND JUDICIAL SYSTEM - Judges - Bias - Apprehended bias - Bias on an institutional basis - Summons to appoint an interstate judge - Leave sought to amend summons to declarations on appropriateness to appoint interstate judge to preserve the appearance of justice - Applicable test for the disqualification of a judge - No apprehended or actual bias - Application for leave to amend summons refused - Application for interstate judge refused.
Johnson v Johnson (2000) 201 CLR 488 - QYFM v The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148 - Ebner v Off¿cial Trustee in Bankruptcy (2000) 205 CLR 337 - Isbester v Knox City Council (2015) 255 CLR 135 - Rajski v Powell (1987) 11 NSWLR 522 - Vella v The State of Western Australia [2024] WASCA 48.
PRACTICE AND PROCEDURE - Application for leave to file further material denied - Application to strike out affidavit and documents as irrelevant and scandalous - Potential relevance of material deposed to in an affidavit sought to be filed in other proceedings - Admissibility - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 27.07.
PRACTICE AND PROCEDURE - Disclosure - Plaintiff seeking targeted disclosure of documents held by defendants - Civil Procedure Act 2010 (Vic) s 26 - Insufficient identification of decision(s) the subject of judicial review proceeding - Difficulty in determining documents critical to resolution of issues in dispute - Where defendants have undertaken to disclose limited available footage to plaintiff - Not satisfied that disclosure to the extent sought by plaintiff necessary at this stage of proceeding - No disclosure ordered.
PRACTICE AND PROCEDURE - Disclosure - Plaintiff seeking targeted disclosure of documents held by defendants - Civil Procedure Act 2010 (Vic) s 26 - Insufficient identification of decision(s) the subject of judicial review proceeding - Difficulty in determining documents critical to resolution of issues in dispute - Where defendants have undertaken to disclose limited available footage to plaintiff - Not satisfied that disclosure to the extent sought by plaintiff necessary at this stage of proceeding - No disclosure ordered.
PRACTICE AND PROCEDURE - Open justice principles - Application for proceeding suppression orders - Whether order necessary to prevent real and substantial risk of prejudice to proper administration of justice - Failure to establish orders as necessary to prevent real and substantial risk of prejudice to proper administration of justice - Other reasonable available means - Existing publication - Application refused - Application for restriction of court file and pseudonym orders - Open Courts Act 2013 (Vic), ss 17, 18(1)(a) - Supreme Court (General Civil Procedure) Rules 2025 (Vic), r 28.05(4).
PRACTICE AND PROCEDURE - Open justice principles - Application for proceeding suppression orders - Whether order necessary to prevent real and substantial risk of prejudice to proper administration of justice - Failure to establish orders as necessary to prevent real and substantial risk of prejudice to proper administration of justice - Other reasonable available means - Existing publication - Application refused - Application for restriction of court file and pseudonym orders - Open Courts Act 2013 (Vic), ss 17, 18(1)(a) - Supreme Court (General Civil Procedure) Rules 2025 (Vic), r 28.05(4).
PRACTICE AND PROCEDURE - Application to amend defence to withdraw admission that defendant was employer alternatively to file third party notice - Where plaintiff injured on property in New South Wales - Where defendant based in Victoria - Where defendant accepted claim for compensation and paid compensation under Victorian legislation - Where plaintiff obtained leave to commence proceedings for damages in accordance with Victorian legislation - Where defendant admitted it was employer of plaintiff in New South Wales in common law proceedings - Where parties had proceeded on basis that employment connected with Victoria and thus Victorian law applied - Where related company of defendant prosecuted in New South Wales and admitted employing plaintiff - Where defendant's solicitor in possession of documents relating to prosecution since October 2024 and March 2025 - Application to withdraw admission made on eve of trial - Where allowing amendment would occasion substantial delay and potential prejudice - Application to withdraw admission refused - Application to file third party notice granted - Collie v Merlaw Nominees Pty Ltd & Anor (2001) 37 ACSR 361 - Gregorich v Khouri [2020] VSC 5 - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 36.01.
PRACTICE AND PROCEDURE - Application to amend defence to withdraw admission that defendant was employer alternatively to file third party notice - Where plaintiff injured on property in New South Wales - Where defendant based in Victoria - Where defendant accepted claim for compensation and paid compensation under Victorian legislation - Where plaintiff obtained leave to commence proceedings for damages in accordance with Victorian legislation - Where defendant admitted it was employer of plaintiff in New South Wales in common law proceedings - Where parties had proceeded on basis that employment connected with Victoria and thus Victorian law applied - Where related company of defendant prosecuted in New South Wales and admitted employing plaintiff - Where defendant's solicitor in possession of documents relating to prosecution since October 2024 and March 2025 - Application to withdraw admission made on eve of trial - Where allowing amendment would occasion substantial delay and potential prejudice - Application to withdraw admission refused - Application to file third party notice granted - Collie v Merlaw Nominees Pty Ltd & Anor (2001) 37 ACSR 361 - Gregorich v Khouri [2020] VSC 5 - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 36.01.
PRACTICE AND PROCEDURE - Summary dismissal application - Application to summarily determine extension of time application and for declarations - Extension of time for leave to appeal decision four years out of time - Victorian Civil and Administrative Tribunal Act 1998, s 148(5) - Exercise of discretion - Referral orders made.
PRACTICE AND PROCEDURE - Summary dismissal application - Application to summarily determine extension of time application and for declarations - Extension of time for leave to appeal decision four years out of time - Victorian Civil and Administrative Tribunal Act 1998, s 148(5) - Exercise of discretion - Referral orders made.
PRACTICE AND PROCEDURE - Referral application - Application for matter to be heard and determined by Court of Appeal - Supreme Court Act 1986 (Vic), s 17B(2) - Where related matter pending determination by Court of Appeal - Interests of justice to direct that extension of time application be referred - Application allowed.
ORDERS - Preliminary questions determined - Construction issue and abuse of process - Consequential order made.
ORDERS - Preliminary questions determined - Construction issue and abuse of process - Consequential order made.
COSTS - Costs in respect of hearing of preliminary questions - Earlier order in respect of costs - Discrete issues - Whether special circumstances - Supreme Court (General Civil Procedure) Rules 2025 (Vic), r 63.20; Macedon Ranges Shire Council v Thompson [2009] VSCA 209; Chen v Chan (No 2) [2009] VSCA 233 considered - Order for costs made on a standard basis.
COSTS - Costs in proceeding involving claim for compensation under Planning and Environment Act 1987 (Vic) - Criteria under 91(1) of the Land Acquisition and Compensation Act 1986 (Vic) - Apportionment of costs based on success on individual issues.
COSTS - Costs in proceeding involving claim for compensation under Planning and Environment Act 1987 (Vic) - Criteria under 91(1) of the Land Acquisition and Compensation Act 1986 (Vic) - Apportionment of costs based on success on individual issues.
INTEREST - Interest on award of costs under s 60(1) of the Supreme Court Act 1986 (Vic) - 'Good cause' to not award interest - Interest on compensation sum where Authority made no offer of compensation until late in the proceeding - Suspension or disallowance of interest based on applicant's conduct - Applicant applied for leave to file further evidence causing adjournment - Trial date vacated and relisted months later - Interest disallowed for part of the period during which trial adjourned.
CRIMINAL LAW - Bail - Applicant charged with trafficking in a commercial quantity of a drug of dependence - Schedule 1 offence - Requirement to show exceptional circumstances - Criminal history but no history of offending while on bail - Unacceptable risk alleged but not established - Substantial surety available - Prosecution case not strong - Exceptional circumstances established by a combination of factors - Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E & Sch 1.
CRIMINAL LAW - Bail - Applicant charged with trafficking in a commercial quantity of a drug of dependence - Schedule 1 offence - Requirement to show exceptional circumstances - Criminal history but no history of offending while on bail - Unacceptable risk alleged but not established - Substantial surety available - Prosecution case not strong - Exceptional circumstances established by a combination of factors - Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E & Sch 1.
CRIMINAL LAW - Application for bail - Schedule 1 offence - Requirement to show exceptional circumstances - Nature and seriousness of alleged offending - Strength of prosecution case - Significant delay - Personal circumstances - Availability of addiction counselling - Availability of employment - Substantial bail guarantee - Exceptional circumstances established - Whether applicant an unacceptable risk - Risk not shown to be unacceptable if bail granted on strict conditions - Bail granted - Bail Act 1977 (Vic), ss 1B , 3AAA, 4, 4AA, 4A, 4D, 4E, 5AAA, sch 2, item 6(a).
CRIMINAL LAW - Application for bail - Schedule 1 offence - Requirement to show exceptional circumstances - Nature and seriousness of alleged offending - Strength of prosecution case - Significant delay - Personal circumstances - Availability of addiction counselling - Availability of employment - Substantial bail guarantee - Exceptional circumstances established - Whether applicant an unacceptable risk - Risk not shown to be unacceptable if bail granted on strict conditions - Bail granted - Bail Act 1977 (Vic), ss 1B , 3AAA, 4, 4AA, 4A, 4D, 4E, 5AAA, sch 2, item 6(a).
CRIMINAL LAW - Sentence - Manslaughter by unlawful and dangerous act - Headlock during wrestle - Guilty verdict - Gravity below mid-range - Acquired Brain Injury - Extensive criminal history - Guarded prospects of rehabilitation - Sentence of eight years and six months' imprisonment with non-parole period of five years and six months.
CRIMINAL LAW - Sentence - Manslaughter by unlawful and dangerous act - Headlock during wrestle - Guilty verdict - Gravity below mid-range - Acquired Brain Injury - Extensive criminal history - Guarded prospects of rehabilitation - Sentence of eight years and six months' imprisonment with non-parole period of five years and six months.
CRIMINAL LAW - Murder - Special hearing - Verdict of not guilty by reason of mental impairment - Accused declared liable for supervision - Accused placed on custodial supervision order - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 20, 21, 24, 39, 40, 41, 47.
CRIMINAL LAW - Murder - Special hearing - Verdict of not guilty by reason of mental impairment - Accused declared liable for supervision - Accused placed on custodial supervision order - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 20, 21, 24, 39, 40, 41, 47.
CRIMINAL LAW - Murder - Consent mental impairment hearing - Diagnosis of schizophrenia - Verdict of not guilty by reason of metal impairment - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 20 & 21.
CRIMINAL LAW - Murder - Consent mental impairment hearing - Diagnosis of schizophrenia - Verdict of not guilty by reason of metal impairment - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 20 & 21.