SUPREME COURT OF VICTORIA
RECENT JUDGMENTS BULLETIN
ISSUE NO. 11/2015
Below is a list of Victorian Supreme Court unreported judgments received in the Library from
15 – 26 June 2015. Catchwords are included when provided on the cover sheet of the
unreported judgment. Hypertext links to AustLII are inserted at the time of producing of this
page. However, there may be a two week delay before the unreported judgment is actually
loaded onto AustLII.
Enquires regarding unreported judgments can be forwarded to the Supreme Court Library at:
sclib@supremecourt.vic.gov.au or telephone (03) 9603 6282.
TABLE OF CONTENTS
COURT OF APPEAL ................................................................................................ 1
COMMERCIAL COURT .......................................................................................... 8
COMMERCIAL & EQUITY DIVISION ................................................................ 11
COMMON LAW DIVISION .................................................................................. 11
CRIMINAL DIVISION ........................................................................................... 14
PRACTICE COURT ................................................................................................ 16
NO DIVISION LISTED .......................................................................................... 16
COURT OF APPEAL
ACCIDENT COMPENSATION – Appeal – Workplace injury – Decisive issue –
Whether dominant manner of cutting plasterboard horizontal or vertical – Method of
work found not to be as plaintiff described – No error demonstrated – Appeal
dismissed.
APPEAL – Rehearing – Nature of rehearing – Review of findings of fact based on
trial judge’s assessment of credibility of witnesses – Whether findings of fact
glaringly improbable or contrary to compelling inferences – Fox v Percy (2003) 214
CLR 118 and Transport Accident Commission v Cuthbertson [2013] VSCA 29
considered.
COURTS AND JUDICIAL SYSTEM – Appeal – Whether new point or issue raised
on appeal which was not taken at trial – Consideration of conduct of trial to determine
whether new point raised on appeal – Whether new point taken on appeal could have
been met by further evidence at trial – Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
applied.
Housden, Paul Raymond v Boral Australian Gypsum Ltd (ACN 004 231 976) and
Boral Plaster Fixing P/L (ACN 004 111 479); Boral Australian Gypsum Ltd (ACN
004 231 976) and Boral Plaster Fixing P/L (ACN 004 111 479) v Victorian
Workcover Authority and Housden, Paul Raymond
Tate JA, Santamaria JA, and McLeish JA
[2015] VSCA 162
25/06/2015
Supreme Court of Victoria – Recent Judgments Bulletin No. 11/2015
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CRIMINAL LAW – Appeal against conviction and sentence for intentionally causing
serious injury – Whether applicant participated in assault – No solid obstacle to guilty
verdict – No error in directions to jury – No error in sentence – Principle of parity
engaged by reduction in co-offender’s sentence on appeal in separate proceeding –
Whether necessary to maintain relativity between co-offenders as fixed by sentencing
judge – Appeal allowed – Applicant re-sentenced to six years and six months
imprisonment with a non-parole period of four years and three months.
Tregenza, Jason v The Queen
Redlich JA, Weinberg JA, and Osborn JA
[2015] VSCA 163
25/06/2015
CRIMINAL LAW - Appeal - Conviction - Attempting to possess a marketable
quantity of a border controlled drug (heroin) - One offender aiding and abetting the
other - Claimed prejudice from joint trial - Refusal to order separate trial - Relevant
considerations - No error in refusing separate trial.
CRIMINAL LAW - Appeal - Conviction - Claimed failure to adhere to conditions of
search warrant - Whether evidence improperly or illegally obtained - Discretion to
admit evidence - Evidence Act 2008, s138.
CRIMINAL LAW - Appeal - Conviction - Continuity of drugs - Whether verdict
unsafe and unsatisfactory.
CRIMINAL LAW - Appeal - Sentence - Attempting to possess a marketable quantity
of a border controlled drug (heroin) - Individual sentences of 5 years and 9 months'
imprisonment - Parity - Totality - Findings as to roles of offenders - Whether failure
to apply Verdins principles - R v Verdins (2007) 16 VR 269 - Whether sentences
manifestly excessive.
Samuels-Orunmwense, Efe v The Queen; Osifo, John Omoruyi
Maxwell ACJ, Redlich JA, and Priest JA
[2015] VSCA 152
19/06/2015
CRIMINAL LAW – Appeal – Conviction – Murder – Circumstantial evidence –
Victim attacked in own home – Applicant former husband of victim – Dispute over
proposed relocation of victim and children to UK – Killing occurred shortly before
relocation – False alibi – Post-offence conduct – Whether reasonably open to jury to
exclude innocent explanation – Conviction not unsafe – Appeal dismissed – Jury
Directions Act 2013 s23(1).
EVIDENCE – Opinion evidence – Evidence regarding characteristics of brand of
work boot – Witness worked for boot manufacturer – Whether relevant – Whether
‘specialised knowledge’ – Whether opinions based on specialised knowledge –
Whether probative value outweighed by danger of unfair prejudice – Evidence
properly admitted – Evidence Act 2008 s55, s79(1), s137.
CRIMINAL LAW – Appeal – Sentence – Murder – Victim attacked in own home –
Applicant former husband of victim – Dispute over proposed relocation of victim and
children to UK – Plea of not guilty – Sentence of 23 years’ imprisonment with nonparole period of 19 years – Whether manifestly inadequate – Appeal dismissed.
Meade, Robert v The Queen; Director of Public Prosecutions v Meade, Robert
Maxwell P, Redlich JA, and Whelan JA
[2015] VSCA 171
26/06/2015
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CRIMINAL LAW - Appeal - Sentence - Intentionally cause serious injury - Assault
police - Sentence of 11 years and 6 months, non-parole period 8 years and 3 months Plea of guilty - Remorse - Multiple aggravating features - Intention to cause
maximum injury - Life-threatening injuries inflicted - Breach of suspended sentence Drug intoxication - Whether foreknowledge of likely effect of drugs - Whether
offending pre-planned - Natural justice - Whether notice given of risk of adverse
findings - Crown concessions - Appeal allowed - Resentenced to 10 years, non-parole
period of 7 years - Nash v The Queen (2013) 40 VR 134 applied.
Portelli, Sammy v The Queen
Maxwell ACJ, Redlich JA, and Kyrou JA
[2015] VSCA 159
22/06/2015
CRIMINAL LAW – Conviction – Conspiracy to possess over 15 million tablets
containing 1.4 tonnes of pure MDMA – Drugs seized by police before conspirators
could take possession of them – Multiple conspirators some of whom previously
convicted and sentenced – Two applicants (A1 and A2) tried together – A1’s
application – A1 self-represented – Whether verdict unsafe and unsatisfactory –
Whether trial judge erred in excluding certain defence evidence as hearsay – Whether
trial judge erred in admitting evidence of accused’s association with other
conspirators post-conspiracy period – Whether unfair prejudice as a result of failure to
order separate trial – Whether substantial miscarriage of justice as a result of conduct
of prosecutor and trial judge – Whether unfair prejudice as a result of non-disclosure
by Crown of particular listening device transcript – No substance to any of the
proposed grounds – Leave to appeal refused.
CRIMINAL LAW – Conviction – Applicants’ defence at trial was that they thought
contents of shipment was illicit tobacco not MDMA – A2’s application – Whether
trial judge erred in failing to direct jury that Crown must establish applicants knew
shipment contained a border controlled drug as opposed to some drug or drug related
substance – No error established – Leave to appeal refused.
CRIMINAL LAW – Sentence – A1 sentenced to 11 years with non-parole period of 8
years – Had completed lengthy term of imprisonment in New South Wales for
unrelated offending immediately prior to present sentence being imposed – Whether
insufficient weight given to prior New South Wales sentence – Whether sentencing
judge made impermissible use of A1’s prior convictions – Whether unjustifiable
disparity with sentence of 10 years previously imposed on a different co-conspirator –
Whether sentence manifestly excessive – Leave to appeal refused.
CRIMINAL LAW – Sentence – A2 sentenced to 23 years with non-parole period of
16 years – Whether sentence manifestly excessive – Whether unjustifiable disparity
with sentence of 20 years previously imposed on a different co-conspirator – Leave to
appeal refused.
Visser, Jan (John) v The Queen; Falanga, Carmelo v The Queen
Weinberg JA, Priest JA, and Beach JA
[2015] VSCA 168 1st Revision, 26 June 2015 paras [190] ff
26/06/2015
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CRIMINAL LAW - Conviction - Intentionally causing serious injury - Crown witness
(applicant's de facto partner) objected to giving evidence under s18 of Evidence Act
2008 - Crown sought to tender witness's statement to police pursuant to s65 - Whether
trial judge erred in allowing statement to be admitted - Whether witness 'not available'
to give evidence within meaning of s65 - Whether tendering statement amounted to
witness being 'required to give evidence' contrary to s18(6) - No error in admission of
statement - R v B O (No 2) (2012) 15 DCLR (NSW) 317 and Haddara v The Queen
[2014] VSCA 100 considered
Fletcher, Timothy Douglas v The Queen
Weinberg JA, Priest JA, and Dixon JA
[2015] VSCA 146
15/06/2015
CRIMINAL LAW – Indefinite sentence – Appeal against refusal to discharge
indefinite sentence pursuant to Sentencing Act 1991 s 18O – Nature of the appeal
right – Whether judge erred in refusing to make an order under s 18M – Whether
appellant is still a serious danger to the community – Appellant accepts that he would
be a serious danger to the community if released unsupervised – Whether s 5(2BD)
prevents the court reviewing an indefinite sentence having regard to the regime for
supervision and detention under the Serious Sex Offenders (Supervision and
Detention) Act 2009 – Construction which least impinges on offender’s liberty to be
preferred – Charter of Human Rights and Responsibilities Act 2006 – Whether the
existence of the SSODSA regime sufficient to conclude that the appellant would not
be a serious danger to the community if indefinite sentence discharged – Appeal
allowed – Indefinite sentence discharged and appellant made subject to a five year reintegration period.
Carolan, Anthony John v The Queen
Ashley JA, Redlich JA, and Priest JA
[2015] VSCA 167
26/06/2015
CRIMINAL LAW - Sentence - Appeal - Firearms charges - Error as to maximum
penalty - Appeal allowed.
Haddara, Rabieh v The Queen
Priest JA and Beach JA
[2015] VSCA 158
19/06/2015
CRIMINAL LAW - Sentence - Appeal - Rape - Indecent assault - Three complainants
- Manifest excess - Total effective sentence of 10 years and 6 months' imprisonment
with non-parole period of 8 years - Whether individual sentences, total effective
sentence and non-parole period are manifestly excessive - Totality - Whether total
effective sentence and non-parole period offends principle of totality - No relevant
prior convictions - Strong work history - Prospects of rehabilitation - Low IQ Appeal allowed - Appellant resentenced to total effective sentence of 8 years and 6
months' imprisonment with non-parole period of 6 years.
Byrnes, Robert v The Queen
Priest JA and Beach JA
[2015] VSCA 157
19/06/2015
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CRIMINAL LAW - Sentence - Application for extension of time within which to
make application for leave to appeal - Application for leave to appeal against sentence
- Firearms offence - False imprisonment - Total effective sentence of ten (10) years'
imprisonment with non-parole period of seven (7) years and six (6) months'
imprisonment - Whether judge erred by failing to take into account, in sentencing
applicant for firearms offence, pending reduction in maximum penalty - Whether
sentence manifestly excessive - Error established - Sentence manifestly excessive Whether sentence for false imprisonment manifestly excessive - Long period of
imprisonment - Uncharged acts - Incidental violence inflicted upon victims and
threats of violence made - Extortion attempts - Gross violence causing serious injury
inflicted by co-offenders when applicant not present and for which not charged Whether permissible for judge to treat incidental violence, threats of violence,
extortion attempts and gross violence causing serious injury as circumstances
aggravating seriousness of false imprisonment - Permissible for judge to have regard
to general milieu of violence attending false imprisonment and prospect of extortion
as aggravating circumstances - Impermissible for judge to have regard to gross
violence causing serious injury inflicted by co-offenders - Serious injury not 'direct
result' of false imprisonment - Sentencing Act 1991, s3, s5(2)(db) - Sentence
manifestly excessive - Applications for extension of time and for leave to appeal
granted - Appeal allowed - Appellant sentenced to total effective sentence of eight (8)
years and six (6) months' imprisonment, with non-parole period of six (6) years and
six (6) months.
Best, Daniel Lindsay v The Queen
Ashley JA, Redlich JA, and Priest JA
[2015] VSCA 151
19/06/2015
CRIMINAL LAW - Sentence - Application for leave to appeal against sentence Attempted armed robbery - Robbery - Recklessly causing injury - Reckless conduct
endangering serious injury - Serious mental illness - Applicant ceased taking
medication - Consequences of applicant ceasing medication - Application of R v
Verdins (2007) 16 VR 269 - Whether sentence was manifestly excessive - Whether
sentencing judge failed to give sufficient weight to s5(4C) of the Sentencing Act 1991
- Whether sentencing judge breached s5(2AA) of the Sentencing Act 1991 - Boulton v
The Queen [2014] VSCA 342 referred to - Sentencing Act 1991, s5(2AA) and s5(4C).
Manariti, Joseph v The Queen
Ashley JA, Whelan JA, and Beach JA
[2015] VSCA 160
23/06/2015
CRIMINAL LAW – Sentence – Armed robbery – Sentence of 22 months’
imprisonment together with CCO of 24 months – Whether term of imprisonment in
addition to CCO manifestly excessive – Whether tension between Sentencing Act
1991 s 5(4C) and current sentencing practices – Proof of offence derived from
admissions – Failure to apply Doran discount – Re-sentencing by reducing individual
sentence and making orders for cumulation – Total effective sentence unaltered.
Dawson, Andrew v The Queen; Stewart, Damien v The Queen
Redlich JA and Beach JA
[2015] VSCA 166
25/06/2015
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CRIMINAL LAW - Sentence - Crown appeal - Respondents (R1 & R2) broke into
victims' home and committed aggravated burglary, multiple counts of rape, armed
robbery, and other offences - Two victims were mother and daughter of Vietnamese
background - Evidence in respect of R2 that crime was racially motivated - R1
sentenced to TES 15 years with NPP 11 years - R2 sentenced to TES 16 years and 6
months with NPP 13 years - Whether sentences manifestly inadequate - Whether
orders for cumulation insufficient given that charges related to two different victims
and respondents fell to be sentenced as serious sex offenders on some charges Sentences not wholly outside the range - Appeal dismissed.
Director of Public Prosecutions v Morris, Andrew John; Director of Public
Prosecutions v Brooke, Matthew Ernest
Ashley JA, Weinberg JA, and Whelan JA
[2015] VSCA 155
18/06/2015
CRIMINAL LAW - Sentence - Persistent sexual abuse of a child under 16 (charge 1),
production of child pornography (charge 2), possession of child pornography (charge
3) - Sentenced to TES of 6 years and 9 months with NPP of 4 years and 6 months Whether sentence manifestly excessive - Appellant suffered from autism - Evidence
from psychologists that appellant essentially had mental age of a child and limited
insight into offending - Facts of case highly unusual - Sentences imposed on charges 1
and 2 manifestly excessive - Re-sentenced to TES of 5 years with NPP of 3 years.
Hladik, William v The Queen
Ashley JA, Redlich JA, and Weinberg JA
[2015] VSCA 149
15/06/2015
EVIDENCE - Admissibility - Opinion evidence - Expert forensic evidence - DNA
samples - Likelihood ratios - New statistical methodology utilised - Whether shown to
be reliable - Whether generally accepted - Whether appropriately validated - Whether
probative value outweighed by danger of unfair prejudice - Decision of trial judge
open - Appeal dismissed - Evidence Act 2008 s79(1), s137.
STATUTORY INTERPRETATION - Evidence - Admissibility - Opinion evidence Requirement of 'specialised knowledge' - Whether implied requirement of evidentiary
reliability - Whether field of knowledge must be accepted or established - Whether
opinion must be based on 'good grounds' - Honeysett v The Queen (2014) 88 ALJR
786 applied, Daubert v Merrell Dow Pharmaceuticals Inc (1993) 509 US 579
distinguished - Evidence Act 2008 s79(1).
WORDS AND PHRASES - 'Specialised knowledge', 'knowledge'
Tuite, Clinton v The Queen
Maxwell ACJ, Redlich JA, and Weinberg JA
[2015] VSCA 148
12/06/2015
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PRACTICE AND PROCEDURE - Application for leave to appeal against order
joining third party insurer as a defendant - Insurer of defendants joined on application
of plaintiffs - Declaratory relief sought against insurer by strangers to the insurance
policy - Whether court has jurisdiction to grant declaration at suit of stranger to
insurance policy - Multiplicity of proceedings - Proceeds of insurance - Discretionary
decision on question of practice and procedure - Whether discretion miscarried - Test
for leave to appeal - Whether appeal has real prospect of success - Residual discretion
- Application for leave to appeal granted - Appeal dismissed.
CGU Insurance Ltd v Blakeley, Ross, Ryan, Michael and Olde, Quentin as joint
and several liquidators of Akron Roads P/L (in liquidation) (ACN 004 769 895),
Akron Roads P/L (in liquidation) (ACN 004 769 895), Crewe, Trevor Paul, Sill,
Robert Mark, Sill, John Martin and Crewe Sharp P/L (in liquidation) (ACN 066
670 013)
Ashley JA, Beach JA, and McLeish JA
[2015] VSCA 153
19/06/2015
PRACTICE & PROCEDURE – Plaintiff subjected to involuntary treatment and
community treatment orders pursuant to provisions of the Mental Health Act 1986 –
Claim of negligent diagnosis of mental illness – Plaintiff self-represented – Failure by
plaintiff to call expert medical evidence – Failure by plaintiff to adduce evidence of
economic loss – Whether failure to permit plaintiff to make an opening statement –
Apprehended bias – Whether failure of judge to grant an adjournment – Whether
failure of judge to compel defendants to bring forward witnesses – Whether failure of
judge to compel expert witnesses – Whether failure to give plaintiff procedural
fairness – Duty of the Court to assist an unrepresented party – Intervention of judge –
Appeal dismissed.
Zhong, Yu Chun v Melbourne Health and St Vincent’s Hospital
Santamaria JA, McLeish JA, and Dixon JA
[2015] VSCA 165
25/06/2015
PUBLIC LAW - Appeal - Interim supervision order made under s53 of Serious Sex
Offenders (Detention and Supervision) Act 2009 - Whether appellant an 'eligible
offender' under s4 of the Act - Youth Parole Board had directed unexpired portion of
sentence of detention in youth justice centre for relevant offences be served in prison Whether a 'custodial sentence' as defined in s3 of the Act - Appeal dismissed.
Carroll, Maxwell v The Secretary to the Department of Justice
Redlich JA, Weinberg JA, and Whelan JA
[2015] VSCA 156
19/06/2015
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TRUSTS - Creation - Transfer of moneys into a bank account - Intention to create
trust - Onus of proof - Necessity for clarity - Whether parties had adduced evidence
from which the Court could find objective evidence of intention to create trust Evidence of parties' subjective intentions inadmissible.
EQUITY - Resulting trust - Transfer of moneys into a bank account - Intention of
parties - Whether presumption of resulting trust rebutted - Evidence that transfer
either repayment of a loan or the making of a loan - Presence of evidence effected
displacement of presumption.
EVIDENCE - Presumptions - Resulting trust - Advancement - Rebuttal Circumstantial evidence - Inferences - Proper approach in evaluating circumstantial
evidence - Necessity of proof - Inadmissibility of conjecture.
Melbourne Orthopaedic Group P/L v Stamford Aus-Trade & Press P/L and
Aloysius David P/L
Ashley JA, Santamaria JA, and Digby AJA
[2015] VSCA 150
18/06/2015
COMMERCIAL COURT
Australian Securities and Investments Commission v Planet Platinum Ltd (ACN
101 217 252)
Efthim AsJ
[2015] VSC 273
12/06/2015
PRACTICE AND PROCEDURE - The originating process seeking determination of
the remuneration of the liquidators was endorsed pursuant to r9.5(5)(d) of the
Supreme Court (Corporations) Rules 2013 (Vic) with a request that the application be
dealt with in the absence of the public and without any attendance by or on behalf of
the liquidators and the Court has determined that it is appropriate that the application
may be so dealt with.
In the Matter of J.M.B. Group Australia P/L (ACN 113 976 060) (In Liquidation)
Andrews, Gregory Stewart (as liquidator of J.M.B. Group Australia Pty Ltd (ACN
113 976 060) (In Liquidation)
Gardiner J
[2015] VSC 289
19/06/2015
ARBITRATION - Stay of proceedings and referral to arbitration - International
Arbitration Act 1974 (Cth) s7(2)(b) - Determination of a "matter" - Whether "matter"
for determination must be sustainable or have reasonable prospects of success - Scope
of arbitration agreement - Whether matters involving the Corporations Act 2001 (Cth)
are capable of settlement by arbitration - Channel Tunnel Group Ltd v Balfour Beatty
Construction Ltd [1993] AC 334 - Rinehart v Welker [2012] NSWCA 95 - Hancock v
Rinehart (2013) 96 ACSR 76 - ACD Tridon Inc v Tridon Australia Pty Ltd [2002]
NSWSC 896
Robotunits P/L (ACN 092 649 422) v Mennel, Juergen Karl
Croft J
[2015] VSC 268
22/06/2015
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CORPORATIONS ACT 2001 - Application to set aside statutory demand under
s459G - Whether genuine offsetting claim under s459H - Statutory demand based
upon judgment obtained pursuant to the Building and Construction Industry Security
of Payments Act 2002 (Vic) - Whether judgment debtor is entitled to raise a crossclaim under the same construction contract to which the judgment debt relates Diploma Constructions (WA) Pty Ltd v KPA Architects Pty Ltd [2014] WASCA 91
considered.
Scrohn P/L (ACN 119 777 507) v Newearth Constructions P/L (ACN 005 358 190)
Daly AsJ
[2015] VSC 254
12/06/2015
CORPORATIONS - Oppression - Corporations Act 2001 (Cth) s232, s233 Misappropriation of company's funds - Breach of fiduciary duties - Breach of
statutory duties. CORPORATIONS - Leave to bring proceeding - Corporations Act
2001 (Cth) s237 - Whether in the best interests of the company that leave be granted.
CONTRACT - Oral agreement for wages.
Wayne Ashley Cowling and Southern Phoenix P/L v Mekken, John and Mekken,
Elizabeth; Mekken, John v Wayne Ashley Cowling and Southern Phoenix P/L
Randall AsJ
[2015] VSC 196 Revised 12/05/2015
08/05/2015
CORPORATIONS - External administration - Examination conducted of director
under s596A of Corporations Act 2001 (Cth) - Examinee failed without reasonable
excuse to produce documents in response to summons issued under s596A or to
comply with orders made by the Court pursuant to s97(9) of the Act to produce
documents which related to examinable affairs of the company - Application on
behalf of liquidators of company that examinee pay the costs thrown away by reason
of such non-compliance - Application granted - Court declined to fix such costs
pursuant to r63.07(2) of the Supreme Court (General Civil Procedure) Rules 2005
(Vic).
In the Matter of Calder Park Promotions P/L (In Liquidation) (ACN 138 012 021):
Calder Park Promotions P/L (In Liquidation) (ACN 138 012 021) and Crisp, Glenn
Anthony and Kukulovski, Trajan John (in their capacity as Joint and Several
Liquidators of Calder Park Promotions P/L (In Liquidation) (ACN 138 012 021)
Gardiner AsJ
[2015] VSC 285
19/06/2015
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COURTS AND TRIBUNALS - Procedural fairness - Principles governing
apprehension of bias - Whether the test for apprehension bias differs in a court or
tribunal - Application of the rule in Jones v Dunkel where a party is unrepresented Duty of a court or tribunal to assist an unrepresented litigant - Application of the
Model Litigant Guidelines - AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236 - Re
Refugee Tribunal: Ex parte H (2001) 179 ALR 245 - Downes v Maxwell Richard
Rhys & Co Pty Ltd (in liq) (2014) 313 ALR 383 - Tomasevic v Traveglini (2007) 17
VR 100.
Comaz (Aust) P/L v Commissioner of State Revenue
Croft J
[2015] VSC 294
22/06/2015
REAL PROPERTY - Restrictive covenant - Application for discharge or modification
- Covenant restricting, amongst other things, the erection of more than one dwelling
on the land - Proposed development involving subdivision and construction of single
dwelling on one lot and 4 unit development on the other - Whether by reason of
changes in the character of the neighbourhood the restriction ought to be deemed
obsolete - Whether discharge or modification will not substantially injure the persons
entitled to the benefit - Application refused - Applicable legal principles - Property
Law Act 1958, s84(1)(a) & (c)
In the Matter of an application by Morrison, Robyn Mary for the discharge or
modification of covenants 0984695 and 1090117 pursuant to s84(1) of the Property
Law Act 1958 (Vic): Between Morrison, Robyn Mary v Neil, Arthur (and others
according to the attaches schedule)
Derham AsJ
[2015] VSC 269
17/06/2015
SALE OF LAND - Contract for the sale of land - Contract varied - Whether contract
became a terms contract - Whether contract voidable by purchaser - Australian
Horizons (Vic) Pty Ltd v Ryan Land Co Pty Ltd [1994] 2 VR 463 - Ottedin
Investments Pty Ltd v Portbury Developments Co Pty Ltd (2011) 35 VR 1 - Portbury
Development Co Pty Ltd v Ottedin Investments Pty Ltd [2014] VSC 57 - Sale of Land
Act 1962 s29A, s29M, s29N, s29O, s29P, s29S.
Landmark Proprety Enterprise P/L (ACN 143 478 844) v Monash Property
Developments P/L (ACN 134 577 067) & Ors; Monash Property Developments P/L
(ACN 134 577 067) (Plaintiff by Counterclaim) v Landmark Proprety Enterprise
P/L (ACN 143 478 844) (Defendants by Counterclaim)
Croft J
[2015] VSC 266
19/06/2015
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TAXATION – Duty – Appeal against assessments of duty by Commissioner of State
Revenue – Duties Act 2000 (Vic), s70, s71, s72, s74, s76, s78, s79, s88 – Whether
taxpayer ‘land rich’ – Whether taxpayer’s land holdings comprise 60 per cent or more
of unencumbered value of all its property – Value of land holdings considered on a
standalone and portfolio basis – Allocation of derived unencumbered value of all
property between land holdings and non-land holdings not required by s71(2)(b) –
Significant goodwill found to exist – Commissioner of Taxation of the
Commonwealth of Australia v Murry [1998] HCA 42; (1998) 193 CLR 605 –
Taxpayer not a ‘land rich’ landholder as at the relevant date – Appeals allowed –
Assessments set aside.
VALUATION – Discounted cash flow methodology – Methodology for determining
unencumbered value – Allowance for small company risk – Treatment of value of
expected synergies – Treatment of value of contract to purchase land on foot at the
relevant date but terminated after the relevant date – Whether accommodation bonds
are loans repayable on demand and property that is not counted for the purposes of
s71(3)
Regis Aged Care P/L (ACN 125 223 645) v Commissioner of State Revenue
Almond J
[2015] VSC 279
16/06/2015
COMMERCIAL & EQUITY DIVISION
CONTEMPT OF COURT - Breach of injunction - Order for possession of property Re-entering property after Sheriff took possession of property, in breach of injunction
- Sentencing considerations - Supreme Court (General Civil Procedure) Rules 2005
(Vic) r75.11
Equity-One Mortgage Fund Ltd v (ACN 106 720 941) v Pepe, Luca Anthony (Also
known as Pepe, Luke Anthony) and L.A.P. Transport Services P/L in its own rights
and as trustees for the Luca Pepe Family Trust) (ACN 088 384 570) (No 2)
Ginnane J
[2015] VSC 274
12/06/2015
COMMON LAW DIVISION
APPEAL UNDER S109 MAGISTRATES COURT ACT 1989 - Whether finding of
appellant applying for credit card was open on the evidence - Admissibility of
secondary evidence of contents of a contract - Adequacy of proof of applicable terms
of credit card - Adequacy of proof of interest and other charges - Whether Magistrate
ensured a fair trial for self-represented litigant - Appropriate relief - Order of
Magistrates' Court set aside and claim dismissed.
McGuinness, Sandra v ACM Group Ltd (ACN 127 181 097)
Riordan J
[2015] VSC 216
10/06/2015
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JUDICIAL REVIEW - Criminal law - Traffic offence - Entering intersection against
red traffic arrow - Appeal to County Court - Certificate prima facie proof of offence Photograph produced by traffic camera - Subpoenas for production of red light
camera manual and camera service records - Whether legitimate forensic purpose Whether judge made error of law on the face of the record - Failure to consider issues
and questions raised by party issuing subpoenas - Certiorari granted - Road Safety Act
1986 (Vic) s81, s83A - Road Safety Road Rules 2009 (Vic) r60 - Supreme Court
(General Civil Procedure) Rules 2005 (Vic) O56
Mr Cai, Jack v The County Court of Victoria and The Registrar of the County
Court of Victoria and Corbett, Michelle of the Traffic Camera Office
Ginnane J
[2015] VSC 267
12/06/2015
JURISDICTION OF COURTS (CROSS-VESTING) ACT (VIC) 1987 — Application
for transfer to the Supreme Court of Western Australia —Whether a nonexclusive
jurisdiction clause was incorporated into the agreement between the parties —
Whether defendant has waived its rights to apply for a transfer by issuing a
counterclaim in this proceeding –Relevant connecting factors – the ‘place of the
wrong’ – BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400, Spiliada
Maritime Corp v Cansulex Ltd [1987] 1 AC 460, Sedman & Associates Pty Ltd v
Morgan Stanley Wealth Management Australia Pty Ltd [2013] VSC 549 – Mutch v
BHP Billiton Ltd [2015] VSC 253 considered and applied: Steadmark Pty Limited v
Bogart Lingerie Limited [2013] VSC 402 distinguished
Andrew Kohn P/L v Mrs Mac's Pty Ltd
Daly AsJ
[2015] VSC 278
17/06/2015
LEGAL PRACTITIONERS – former solicitors of third defendant acting for plaintiff
in subsequent litigation – whether solicitors should be restrained from so acting –
whether risk of disclosure and misuse of confidential advice given – whether breach
of continuing duty of loyalty – whether threat to integrity of judicial process.
Break Fast Investments P/L v Rigby Cooke Lawyers (A Firm) and Herskope, Alan
and Liselm P/L (ACN 006 439 238)
Bell J
[2015] VSC 305
26/06/2015
PRACTICE AND PROCEDURE — Amendment of pleading — Plaintiff claimed
reputational damage and loss of business from conduct of defendants that was
misleading or deceptive — Statements posted on product review website by
defendants— Adequacy of particulars — Whether causation adequately pleaded —
Whether adequate causal nexus alleged between reliance and the type of loss pleaded
— s236(1)(a) of the Australian Consumer Law considered.
Harmonious Blend Building Corporation P/L (ACN 006 261 089) v Keene, Patina
& Anor (No. 2)
Dixon J
[2015] VSC 276
24/06/2015
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PRACTICE AND PROCEDURE - Application for leave to amend statement of claim
and to adjourn trial - Proceedings commenced in 2002 - No steps taken for eight years
- Proposal to plead cause of action of misfeasance in public office - Proposed pleading
with no prospect of success - No explanation for failure to have previously alleged
misfeasance in public office - Risk of significant prejudice to first defendant if
amendment allowed - Application for leave to amend refused - Order 36.01 Supreme
Court (General Civil Procedure) Rules 2005.
Love, Thomas James v The Honourable Thwaites, Johnstone William (In his
capacity as the former Minister for Planning for the State of Victoria) and The
Honourable Wynne, Richard (In his capacity as the former Minister for Planning
for the State of Victoria)
McDonald J
[2015] VSC 282
19/06/2015
PRACTICE AND PROCEDURE - Joinder - Defamation claims - Application by
plaintiff to join claim against defendants' instructing solicitor as complicit in
defendants' publications with claims against defendants - Whether proper basis for
joinder established - Delay - Whether estopped - s18, s23, s24 and s25 Civil
Procedure Act 2010 (Vic), r9.02 Supreme Court (General Civil Procedure Rules)
2005.
PRACTICE AND PROCEDURE - Application by defendants to restrain solicitor
from acting for plaintiff - Second application - Plaintiff a self-representing solicitor Whether plaintiff in breach of overarching obligations - Whether joinder application
made after unreasonable delay - Whether claim has a proper basis - Whether claim
expanded the issues in dispute - Whether the plaintiff was not acting promptly and
minimising delay or ensuring that costs are reasonable and proportionate - Whether
plaintiff made 'threats' to defendant's solicitor and to other parties to the proceeding Whether unreasonable refusal by plaintiff to permit communications between
defendants representatives and his retained counsel - Whether court empowered to
require the plaintiff not to take a further step in the proceeding otherwise than by an
independent solicitor - s18, s19, s20, s22, s23, s24, s25, and s29 Civil Procedure Act
2010 (Vic) considered.
DEFAMATION - Pleading - Objections to plaintiff's amended statement of claim.
Lee, Simon Spencer Reyner v Korean Society of Victoria Australia Inc (ACN
A0026816E) & Ors
Dixon J
[2015] VSC 262
19/06/2015
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PRACTICE AND PROCEDURE - Leave to appeal interlocutory decision of the
Victorian Civil and Administrative Tribunal involving the exercise of discretion Application to vary interlocutory injunction to require personal undertaking as to
damages - Victorian Civil and Administrative Tribunal Act 1998 s148(1) - Supreme
Court (Miscellaneous Civil Proceedings) Rules 2008 r4.06 - Environment East
Gippsland Inc v VicForests (No 2) [2009] VSC 421.
RETAIL LEASES - Redevelopment affecting leased premises - Cf Retail Leases Act
2003 s56 - Nature of injunctive relief.
Bensons Funds Management P/L (ACN 121 715 937) v Body In Balance
Chiropractic P/L (ACN 120 371 897)
Croft J
[2015] VSC 280
22/06/2015
PRACTICE AND PROCEDURE - Mediation - Defamation proceeding - Whether
judicial mediation should be ordered - Discretion - Relevant factors - Sufficiency of
basis for application - s66 Civil Procedure Act (2010), r50.07 Supreme Court
(General Civil Procedure) Rules 2005, Practice Note No 2 of 2012 Judicial Mediation
Guidelines.
Dank, Stephen v Herald and Weekly Times P/L (ACN 004 113 937)
Dixon J
[2015] VSC 270
12/06/2015
TORTS - Assault - False imprisonment - Plaintiff arrested without warrant by police
for breach of intervention order - Whether police had reasonable grounds to believe
plaintiff had breached order - Whether police used unnecessary or disproportionate
force to effect arrest - Whether police informed plaintiff of arrest and reason for arrest
- Whether plaintiff brought before bail justice within reasonable time of arrest.
Biddle, Bryan Leslie v State of Victoria, Dowell, Michelle Wendy, Hughes, Joel,
Trebilcock, John
Kaye JA
[2015] VSC 275
17/06/2015
CRIMINAL DIVISION
Application by accused Visser for King J to disqualify herself from presiding in this
trial on the basis of apprehended bias.
Commonwealth Director of Public Prosecutions v Visser, Jan and Falanga,
Carmelo Ruling No 2
King J
[2013] VSC 627
21/11/2013
Application by Both accused for separate trials.
Commonwealth Director of Public Prosecutions v Visser, Jan and Falanga,
Carmelo No 1
King J
[2013] VSC 618
21/11/2013
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COURTS AND JUDGES - Proceeding suppression order - Breach of suppression
order - Subsequent widespread publication of terms of order - Whether suppression
order should be confirmed or revoked - Open Courts Act 2013 s4, s10, s11, s14, s15,
s17, s18 and s19
Commonwealth Director of Public Prosecutions v Brady, Barry Thomas & Ors
Hollingworth J
[2015] VSC 246
16/05/2015
CRIMINAL LAW – Bail – Murder – Whether exceptional circumstances – Applicant
deaf, young and vulnerable – Bail granted.
In the Matter of an application for bail by Fields, Georgia
Kaye JA
[2015] VSC 309
24/06/2015
CRIMINAL LAW - Bail - Show cause situation - Applicant charges with indictable
offence alleged to have been committed while applicant at large awaiting trial for
another indictable offence - Prior convictions for committing indictable offence while
on bail, contravening a conduct condition of bail and failing to answer bail Unacceptable risk - Bail refused.
In the Matter of the Bail Act 1977; In the Matter of an Application for Bail by Tiba,
Omar
Beach JA
[2015] VSC 304
23/06/2015
CRIMINAL LAW - Evidence - Murder - Admissibility of record of interview Whether accused properly cautioned with respect to right to silence - Whether
accused informed of the circumstances of offence - Crimes Act 1958, s464A(2) Where caution not recorded - Crimes Act 1958, s464G - Where evidence obtained as
a result of impropriety - Whether evidence should be excluded - Evidence Act 2008,
s138 - Evidence Act 2008, s90.
The Queen v Willis, Jesse (Ruling No 1)
Osborn J
[2015] VSC 261
11/06/2015
CRIMINAL LAW - Sentence - Manslaughter - Unlawful and dangerous act - Victim
run down by car - Sentence of 11 years' imprisonment, with a non-parole period of 7
years - Licence cancelled and disqualified for 6 years.
The Queen v Drago, Joseph
Priest JA
[2015] VSC 291
18/06/2015
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PROCEDURE - Application for adjournment - Where accused brought into
courtroom handcuffed in view of jury pool - Where pre-trial publicity - Whether real
risk that jury would be unfairly prejudiced by media reports.
The Queen v Willis, Jesse (Ruling No 3)
Osborn J
[2015] VSC 272
12/06/2015
PRACTICE COURT
SUPREME COURT RULES - Plaintiff sought specific performance by ASIC of a
company's contractual obligations prior to deregistration - Execution of instrument by
order of Court under s22 of the Supreme Court Act 1986 (Vic) - Section 22 not
engaged because no existing entitlement to execution of documents by way of
judgment or order - Application dismissed.
JUDICIAL REVIEW - Discretion under s601AF of Corporations Act - Refusal to
exercise power an administrative decision by a Commonwealth authority - Crossvesting - Plaintiff did not seek relief in the nature of prerogative writs or on
administrative law grounds - Unnecessary for court to consider jurisdiction to hear
judicial review proceedings.
Australian and New Zealand Banking Group Ltd (ABN 11 005 357 522) v
Australian Securities and Investments Commission and Registrar of Titles
T Forrest J
[2014] VSC 672
19/12/2014
NO DIVISION LISTED
Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - Section 57 Application for extended leave – Homicide - Paranoid schizophrenic - Applicable
considerations -Extended leave granted
In the Matter of Section 57 of the Crimes (Mental Impairment and Unfitness to be
Tried) Act 1997, In the Matter of an Application by MP
Priest JA
[2015] VSC 265
12/06/2015
DISPUTE RESOLUTION - CONSTRUCTION OF CONTRACT - Financial
Ombudsman Service (FOS) - Dispute resolution scheme - Dispute lodged - Discretion
to exclude disputes - Review of Financial Ombudsman Service decision - Whether
decision reviewable - Final decision - Contract - Terms of Reference - Operational
Guidelines
Goldie Marketing P/L (ACN 099 897 202) & Ors (according to the attached
Schedule) v Financial Ombudsman Services Ltd (ACN 131 124 448), Australian
and New Zealand Banking Group Ltd (ACN 005 357 522)
Cameron J
[2015] VSC 292
19/06/2015
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