SUPREME COURT OF VICTORIA
RECENT JUDGMENTS BULLETIN
ISSUE NO. 15/2014
Below is a list of Victorian Supreme Court unreported judgments received in the Library
since 25 July 2014. 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 & Equity Division ................................................................................. 8
Common Law Division ............................................................................................ 11
Criminal Division..................................................................................................... 13
COURT OF APPEAL
ACCIDENT COMPENSATION - Appeal - Serious injury - Alleged impairment of
function of cervical spine - Alleged permanent severe mental or permanent severe
behavioural disturbance or disorder - Need to disentangle physical and psychiatric
injuries and consequences - Credit of the worker - Reasons - Whether consequences
of psychiatric injury severe - Whether consequences of psychiatric injury may be
fairly described as being more than serious to the extent of being severe - Assessment
by the judge on the whole of the evidence - Accident Compensation Act 1985,
s134AB(37) and s134AB(38)(c), s134AB(38)(d), s134AB(38)(h) and s134AB(38)(i)
Papamanos, Elefteria v Commonwealth Bank of Australia
Hansen JA, Beach JA, and Garde AJA
[2014] VSCA 167
07/08/2014
ACCIDENT COMPENSATION - Successful claim for weekly compensation - Costs
- Whether proceeding heard and determined in the Country Court could have been
heard and determined in Magistrates' Court - Whether proceeding was 'brought on a
judgment of the ... County Court', thus excluding jurisdiction of Magistrates' Court Accident Compensation Act 1985 (Vic), s39, s43 and s50(3); Magistrates' Court Act
1989 (Vic), s100(2)(c)
John Lewis Foods Services Pty Ltd v Reynolds, Mervyn
Ashley JA and Whelan JA
[2014] VSCA 162
16/07/2014
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APPEAL - Leave to appeal - Extension of time within which to seek leave to appeal Whether appeal would be incompetent - Whether leave to appeal required - Whether
orders final or interlocutory - Whether leave to appeal should be granted - Whether
reasons for decision adequate - Whether decision attended by sufficient doubt to
warrant reconsideration - Whether substantial injustice if leave to appeal not granted Whether particular order should be stayed pending hearing and determination of
appeal - Leave to appeal granted, order stayed
Assad, Sinot Samy v Eliana Construction and Developing Group Pty Ltd (ACN 132
817 362)
Ashley JA and Whelan JA
[2014] VSCA 152
18/07/2014
ARBITRATION - Appeal against decision refusing to stay third party proceeding on
the basis of arbitration agreement - Claimant in third party proceeding not a party to
arbitration agreement - Whether claiming 'through or under a party' to the arbitration
agreement - Whether matter capable of resolution by arbitration - Appeal allowed Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332 considered International Arbitration Act 1974 (Cth), s7
Flint Ink NZ Limited v Huhtamaki Australia Pty Ltd (ACN 003 122 843) and LionDairy and Drinks Pty Ltd (ACN 004 486 631)
Warren CJ, Nettle JA, and Mandie JA
[2014] VSCA 166
06/08/2014
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CONTRACT - Building contract - Owner - Building surveyor - Building surveyor
appointed by builder - Whether Building Act 1993 (Vic) creates contract between
owner and building surveyor - No consensus ad idem - Building Act 1993 (Vic), s17,
s24, s70, s78 - Building Regulations 1994 (Vic), r2.6 - Premier Building and
Consulting Pty Ltd (rec apptd) v Spotless Group Ltd [2007] VSC 377 - Oceanic Sun
Line Special Shipping Company Inc v Fay (1988) 165 CLR 197.
CONTRACT - Building contract - Contract between owner and building surveyor Issue of building permits by building surveyor under Building Act 1993 (Vic) Whether validity of building permit depends upon existence of planning permit Implied terms in building contract - Whether building surveyor under an obligation to
inform owner that planning permit has expired - BP Refinery (Westernport) Pty Ltd v
Shire of Hastings (1977) 180 CLR 266.
LIMITATION OF ACTIONS - Building Act 1993 (Vic) - Interpretation of legislation
- Building actions - Limitation of actions - Whether 'long-stop' or 'absolute cap' Building Act 1993 (Vic) s129, s130, s134 - Limitation of Actions Act 1958 (Vic) s5,
s33 - Accident Compensation Act 1985 (Vic), s135AC - Wrongs and Limitation of
Actions Act (Insurance Reform) Act 2003 (Vic) - Moorabool Shire Council v
Taitapanui (2006) 14 VR 55.
NEGLIGENCE - Duty of care - Economic loss - Vulnerability - Building surveyor
and owner - Delay in completion of commercial project - Loss in the form of financial
loss - Liability of building surveyor to owner - Whether assumption of responsibility
by building surveyor - Perre v Apand Pty Ltd (1999) 198 CLR 180 - Woolcock Street
Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515.
PRACTICE AND PROCEDURE - Pleadings - Amendment - Amendment after close
of evidence - Whether amendment relates back to date of writ - Abolition - Whether
court has a discretion to order that amendment operate from date of amendment - Rule
in Weldon v Neal (1887) 19 QBD 394 - Limitation of Actions Act 1958 (Vic), s34 Supreme Court (General Civil Procedure) Rules 2005 (Vic), r36.01(6) - Agtrack (NT)
Pty Ltd v Hatfield (2003) 7 VR 63
Brirek Industries Pty Ltd (ACN 005 807 090) v McKenzie Group Consulting (Vic)
Pty Ltd (ACN 093 211 977)
Redlich JA, Whelan JA, and Santamaria JA
[2014] VSCA 165
06/08/2014
CRIMINAL LAW - Appeal - Sentence - Prohibited person in possession of an
unregistered firearm - Finding that firearm had 'recently' been fired - Crown
concession of factual error - Error immaterial - Separate errors as to maximum
penalties for offences of possessing drug of dependence - Appeal allowed - Applicant
re-resentenced on drug charges - Total effective sentence reduced by one month Non-parole period unchanged
Wagner, Kurt Richard v The Queen
Maxwell P, Redlich JA, and Osborn JA
[2014] VSCA 157
21/07/2014
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CRIMINAL LAW - Conviction - Application for leave to appeal - Applicant pleaded
guilty to threatening to inflict serious injury - Whether, notwithstanding plea of guilty,
phrase 'I will fuck you up', as texted to victim, so imprecise as to fall short of
satisfying actus reus of offence - When viewed in light of surrounding circumstances
(stalking and aggravated burglary), elements of offence established - Application
refused.
CRIMINAL LAW - Sentence - Application for leave to appeal - Applicant pleaded
guilty to stalking (two counts), aggravated burglary and threatening to inflict serious
injury - Applicant used GPS and listening devices to track estranged ex-wife and her
partner - Broke into ex-wife's home armed with cattle prod and verbally abused
occupants before fleeing - Sent text message shortly thereafter with phrase 'fuck with
me or my family I will fuck you up' - Sentenced to four years and six months'
imprisonment with non-parole period of two years and six months - Sentences
imposed on stalking charges (18 months and nine months respectively) and charge of
making threat to inflict serious injury (12 months) manifestly excessive - Sentence
imposed on aggravated burglary within range - Leave granted - Appeal allowed Resentenced accordingly
Gale, Peter John v The Queen
Weinberg JA, Whelan JA, and Beach JA
[2014] VSCA 168
07/08/2014
CRIMINAL LAW - Conviction - Election to renew application for leave Application for leave to appeal dismissed
Farah, Abdiraham Mohamed v The Queen
Whelan JA and Garde AJA
[2014] VSCA 163
31/07/2014
CRIMINAL LAW - Conviction - Murder - Appellant convicted of the murder of defacto - Body dumped in bushland - Cause of death not able to be ascertained - Appeal
allowed - Murder conviction quashed - Lies and post offence conduct considered Manslaughter conviction substituted.
CRIMINAL LAW - Sentence - Manslaughter - Sentenced to 11 years imprisonment
with non-parole period of 8 years set
Mocenigo, Adam Emilio v The Queen
Buchanan JA, Neave JA, and Priest JA
[2013] VSCA 231
30/08/2013
CRIMINAL LAW - Culpable driving causing death - Application for leave to appeal
against sentence - Young offender of good character - Absence of usual features of
culpable driving - Sentence of 4 years 3 months with non-parole period of 2 years 3
months not manifestly excessive - Leave to appeal refused
Leddin, Eamonn Frances v The Queen
Weinberg JA, Whelan JA, and Beach JA
[2014] VSCA 155
22/07/2014
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CRIMINAL LAW - Election to renew application for leave to appeal against
conviction pursuant to Criminal Procedure Act 2009 (Vic), s315(2) - Applicant
convicted of rape and common assault and acquitted of two further counts of rape Whether inconsistency between convictions and acquittals - Significant differences
between evidence led in support of charges upon which applicant convicted and
charges upon which he was acquitted - Where leave to appeal earlier refused, Court
hesitant to grant leave to appeal unless by reference to judge's reasoning on initial
application it is shown that there would be error if the conclusion was left to stand Leave refused.
CRIMINAL LAW - Appeal against sentence - Appellant sentenced to four years and
11 months' imprisonment with non-parole period of three years - Whether sentence
manifestly excessive - Manifest excess requires something to have gone obviously,
plainly or badly wrong in exercising sentencing discretion - Violent rape - Serious
example of offence of this type - Nothing to suggest sentence outside range - Appeal
dismissed - Clarkson v The Queen (2011) 32 VR 361 followed
Ayol, Deng v The Queen
Maxwell P, Redlich JA, and Weinberg JA
[2014] VSCA 151
15/07/2014
CRIMINAL LAW - Election to renew application for leave to appeal - Applicant, by
reference to reasons of single judge, must demonstrate error if conclusion left to stand
- Sentence - Applicant convicted of one charge each of intentionally cause injury,
common assault and theft - Total effective sentence 23 months' imprisonment wholly
suspended for 24 months - Whether sentence is manifestly excessive - Application for
leave to appeal is refused
Mifsud, Aaron v The Queen
Redlich JA and Priest JA
[2014] VSCA 160
24/07/2014
CRIMINAL LAW - Sentence - Dangerous driving causing serious injury contrary to
Crimes Act 1958 (Vic), s319(1A) - Manifest excess - Application of Verdins principle
5 - Reliability of psychological material tendered on plea - Applicant 'moderately
deceptive' according to Paulhus Deception Scales - O'Connor v The Queen [2014]
VSCA 108, R v Zander [2009] VSCA 10 applied - Applicant's driving history Whether reduction in mitigatory effect of youth and prospects of rehabilitation - Error
not material - Failure to stop contrary to Road Safety Act 1986 (Vic), s61(3) Objective seriousness of failure to stop informed by a reasonable person's perception
of the extent of the injuries caused - Applicant saw motorcyclist thrown from his
motorcycle and land in the road - Not reasonably arguable that a sentence of 30
months' imprisonment manifestly excessive - Wassef v The Queen [2011] VSCA 30,
R v Harding (2008) 50 MVR 413 cited - Leave to appeal refused
Tokay, Baris v The Queen
Redlich JA
[2014] VSCA 172
01/08/2014
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CRIMINAL LAW - Sentence - Manifest excess - Spousal murder with substantial
mitigating factors and absence of aggravating factors - Felicite v The Queen (2011)
211 A Crim R 266, discussed - Sentence of 20 years' imprisonment with a non-parole
period of 16 years - Question whether the sentence was 'reasonably open' 'Reasonable judge' test, disapproved - Director of Public Prosecutions (Vic) v
Karazisis (2010) 206 A Crim R 14, discussed - Offence not only fell within the lowest
category of seriousness of the offence of murder, but also at the lower end of that
category - Re-sentence to 18 years' imprisonment with a non-parole period of 13 years
- Leave to appeal granted and appeal allowed
McPhee, Stephen v The Queen
Redlich JA and Priest JA
[2014] VSCA 156
24/07/2014
CRIMINAL LAW - Sentence - Murder - Sentence of 20 years' imprisonment with
non-parole period of 16 years - Whether manifestly excessive - Applicant broke into
victim's home and killed her in context of domestic custody dispute with victim's son Intention to kill formed at point of entry into house - Applicant made taunting phone
call to victim's son in aftermath of murder - Limited weight to be given to remorse Offending at upper end of lowest category of seriousness for the offence - Leave to
appeal refused
Stensholt, Leah Marie v The Queen
Redlich JA
[2014] VSCA 171
01/08/2014
CRIMINAL LAW - Sentencing - Appeal - Trafficking in a drug of dependence
(methylamphetamine) in not less than a commercial quantity - Fresh evidence Forfeiture offence - Forfeiture application determined after sentence - Re-opening
sentencing discretion - Evidence of conditions of imprisonment since original
sentence - Head sentence and non-parole period reduced
Mileto, Vincent v The Queen
Whelan JA and Priest JA
[2014] VSCA 161
31/07/2014
CRIMINAL LAW - Whether co-offender's bare plea of guilty admissible - Whether
direction required as to use of the bare plea of guilty - Andelman v The Queen [2013]
VSCA 25; Bou-Elias v The Queen (No 1) [2012] VSCA 61, considered.
EVIDENCE - Unfavourable witness - Evidence Act 2008 (Vic), s38 - Leave to crossexamine generally - Evidence affecting witness credibility - Prior inconsistent
statements - Evidence of facts asserted - Evidence Act 2008 (Vic), s43, s60 - Adam v
The Queen (2001) 207 CLR 98; R v Le (2002) 54 NSWLR 474, considered.
CRIMINAL LAW - Evidence - Plea of guilty by co-offender and prosecutor's
summary of facts - Whether a course of conduct on plea constitutes an implied
representation as to facts in summary - Whether prior inconsistent statement Evidence of accused's guilt - Direction not required - Forensic decision not to seek
direction - No substantial miscarriage of justice.
EVIDENCE - Whether evidence of co-offender's plea of guilty an 'admission' Evidence Act 2008 (Vic), s60(3), s83
Power, Michael Arthur v The Queen
Redlich JA, Priest JA, and Robson AJA
[2014] VSCA 146
04/07/2014
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DAMAGES - Contractual damages - Contract for sale of hotel business - Condition
precedent that within nine months the purchaser enter lease with the freehold owner of
hotel - Contract repudiated by vendor - Whether purchaser lost opportunity to sell the
contract to the highest bidder - General principles as to the assessment of damages
discussed and applied.
Nicholson, John David v Nicholson v Hilldove Pty Ltd (ACN 114 760 771) and
Others
Osborn JA, Whelan JA, and Santamaria JA
[2014] VSCA 158
30/07/2014
EVIDENCE - Application to adduce fresh evidence on appeal - Principles in Sunland
Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237 restated Application granted.
MORTGAGES AND SECURITIES - Possession proceedings - Deed of settlement Appellant failed to comply with obligation under the deed to provide a conditional
letter of approval for finance on terms acceptable to the respondent for specified sum Attempted performance by appellant of obligation to pay respondent the specified
sum did not overcome failure to comply with obligation to provide a conditional letter
of approval - Respondent entitled to continue with proceedings as provided under
deed of settlement.
MORTGAGES AND SECURITIES - Unconscionability of conduct of the respondent
with respect to deed of settlement under the Australian Consumer Law, s21 Attorney-General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557 and
Director of Consumer Affairs Victoria v Scully (2013) 96 ACSR 455 applied Respondent's conduct not unconscionable as did no more than rely on entitlement
under deed of settlement.
MORTGAGES AND SECURITIES - Request by appellant for statement of pay out
figure for loan under National Credit Code, s83 - Respondent did not contravene s83 In any case, compliance with s83 is not a condition precedent to the institution of
proceedings for possession - Monas v Perpetual Trustees Victoria Ltd (2011) 80
NSWLR 739 applied - Observation on 'determinations' under National Credit Code,
s84
Sgargetta, Elliot Daniel v National Australia Bank Ltd (ACN 004 044 937)
Whelan JA and Santamaria JA
[2014] VSCA 159
30/07/2014
LEGAL PRACTITIONERS - Solicitors - Entitlement to engage in legal practice Unqualified person - Cost consultant - Work performed on several files - Work
performed under supervision of solicitor - Whether engaged in legal practice - Appeal
from Magistrates' Court - Whether Magistrate erred in holding that Court could not be
satisfied that respondent engaging in legal practice - Sufficiency of evidence before
Magistrate - Legal Profession Act 2004 (Vic), s2.2.2 - Cornall v Nagle [1995] 2 VR
188
Defteros, George v Scott, Justin
Neave JA and Santamaria JA
[2014] VSCA 154
24/07/2014
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PRACTICE AND PROCEDURE - Appeal - Whether appeal should be dismissed for
want of prosecution - Whether appeal deemed abandoned should be reinstated - Long
delay in context of appellate proceeding - No explanation for delay - Real risk, at
least, of prejudice to prospective defendants - Appeal dismissed
IMO of an application by Velissaris, George
Ashley JA and Whelan JA
[2014] VSCA 153
18/07/2014
COMMERCIAL & EQUITY DIVISION
APPEAL - Judgment of Associate Justice - Whether Court should receive further
evidence - Supreme Court (General Civil Procedure) Rules 2005 (Vic), O77, r6.9(3).
MORTGAGE - Summary judgment application - Denial that defendant signed
mortgage - Whether defence has real prospects of success - Whether matter should
proceed to trial - Civil Procedure Act 2010 (Vic), s63 and s64
Australia and New Zealand Banking Group Limited (ACN 005 357 522) v Loftus,
Michael David
Ginnane J
[2014] VSC 342
29/07/2014
CONSTITUTIONAL LAW (Cth) - Privative clauses - Validity of grant of jurisdiction
to the Victorian Civil and Administrative Tribunal (VCAT) - Jurisdiction of VCAT Domestic Building Contracts Act 1995 (Vic), s57 - Chapter III of the Constitution Domestic building disputes - Decision of the High Court of Australia in Kirk v
Industrial Court (NSW) (2010) 239 CLR 531 - System of inferior courts before and
since federation - Consumer legislation - Section 57 upheld as valid
Simpson, Philip and Simpson, Mandy v Andrew Maynard Architects Pty Ltd (ACN
117 480 636) and Profield Pty Ltd (ACN 007 221 856)
Garde J
[2014] VSC 365
05/08/2014
CORPORATIONS - External administration - Application by former administrators
for determination of remuneration pursuant to Corporations Act 2001 (Cth),
s449E(1)(c) - Application for determination of remuneration after the administration
had concluded for work done at request of liquidators to assist in transition from
administration to winding up - Order made pursuant to s447A determining
remuneration for such work - Remuneration sought for work done by administrators
and their staff in connection with preparation of application for determination of
remuneration
In the matter of McEvoy, David and Longley, Stephen and Owen, Michael in their
capacity as joint and several administrators of P.P.I. Corporation Pty Ltd
(Administrators appointed) (ACN 010 656 005) (and others according to the
attached schedule)
Gardiner AsJ
[2014] VSC 366
05/08/2014
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CORPORATIONS - Oppression - Interlocutory orders - Whether serious question to
be tried that the conduct of the company's affairs by majority shareholders
contravened Corporations Act 2001 (Cth), s232 - Whether independent person should
be appointed to manage a project to fit-out manufacturing plant for short term pending
trial - Balance of convenience - Adequacy of undertaking as to damages Corporations Act 2001 (Cth) s232, s233, s1324
Dimopoulos, Nick and Topshield Unafood (Australia) Holdings Pte Ltd v Unafood
Australia Proprietary Limited (ACN 140643429) and Others
Macaulay J
[2014] VSC 327
11/07/2014
CORPORATIONS - Oppression - Sole director and secretary - Equal shareholders Affairs being conducted to exclusion of other shareholder - Conflict of interest Breach of director's duties - Removal of director - Corporations Act 2001 (Cth), s53,
s181, s182, s185, s232, s233, s247A and s290 - Civil Procedure Act 2010 (Vic), s8
and s26
Solanki, Josephine Shaesta and Another v Cufari, Bruno and Others
Elliott J
[2014] VSC 345
22/07/2014
INJUNCTIONS - Ex parte interlocutory injunction - Obligations under commercial
contract - Non-disclosure of material facts - De novo application for new interlocutory
injunction - More limited interlocutory injunction granted - Disputed sum to be paid
into court
United Airport Parking Pty Ltd (ACN 050 237 593) v TMA Tech Pty Ltd (ACN 151
272 463)
Ginnane J
[2014] VSC 343
21/07/2014
LAND - Summary recovery - Appeal from decision of Associate Justice - Aboriginal
Trust - Defendants occupying property - Whether licence, consent or permission of
committee of management - Views of Aboriginal Elders - Related oppression
proceedings concerning the committee of management - Whether error in Associate
Justice's order dismissing application for summary order for recovery of land - Appeal
dismissed - Aboriginal Lands Act 1970 (Vic), s16, s23, Supreme Court (General Civil
Procedure) Rules 2005 (Vic), O53
Framlingham Aboriginal Trust v McGuiness, Billy Joe and Chatfield, Jaymee-Lee
Ginnane J
[2014] VSC 354
31/07/2014
LEGAL PRACTITIONERS - Order for removal of local lawyer from roll of
practitioners - Recommendation by the Victorian Civil and Administrative Tribunal Application by Legal Services Commissioner - Acts of dishonesty over extended
period of time - applications for employment - Falsifying academic results - False
statutory declarations - Misleading statements to Law Institute of Victoria and Legal
Services Commissioner - Defendant not a fit and proper person - Mental illness Court's inherent jurisdiction - Legal Profession Act 2004 (Vic), s4.4.3(1), s4.4.3(2),
s4.4.4, s4.4.6
Legal Services Commissioner v PFM (A pseudonym)
Elliott J
[2014] VSC 341
23/07/2014
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PRACTICE AND PROCEDURE - Application by the defendants to determine a
preliminary question - Principles for exercise of discretion - Application refused Supreme Court (General Civil Procedure) Rules 2005 (Vic), r47.04
Shot One Pty Ltd (In liquidation) (ACN 096 104 808) and Yeo, Andrew Reginald as
liquidator of Shot One Pty Ltd (In liquidation) (ACN 096 104 808) v Day, Richard
Leonard and Rising Rocket Pty Ltd (ACN 102 373 633)
Robson J
[2014] VSC 355
02/05/2014
PRACTICE AND PROCEDURE - Application for leave to file a second amended
counter claim - Whether pleading discloses a reasonable cause of action - Whether
sufficient particulars provided of alleged knowledge of defendants - Application to
add further defendants to counterclaim - Applications granted - Supreme Court
(General Civil Procedure) Rules 2005 (Vic), r13.10(3)(b)
Annesley Plant Hire Pty Ltd (ACN 006 702 601) and Annesley, Paul v Wilson,
William and Wilson, Peter and Wilsands Pty Ltd (ACN 104 974 772) and Line in
the Sand Pty Ltd (ACN 133 913 587) and P J Wilson Properties Pty Ltd (ACN 149
441 056) (No 2); Wilson, William and Wilson, Peter and Moshel, Barry v Annesley,
Paul and Pioneer Road Holdings Pty Ltd (ACN 139 147 523)(in liquidation) and
Fleurie Pty Ltd (ACN 060 643 156) and Collins, Wayne and Registrar of Titles
Robson J
[2014] VSC 350
28/07/2014
PRACTICE AND PROCEDURE - Application to strike out Statement of Claim Plaintiff commenced proceedings on its own behalf and on behalf of a group Whether group definition is properly pleaded - Whether material facts are adequately
pleaded - Whether the Plaintiff was required to plead reliance and specific
representations regarding claims of misleading or deceptive conduct and breach of
obligations of disclosure under the Corporations Act 2001 (Cth) - Where the Plaintiff
proposes to amend the group definition in the Statement of Claim - Where the
Plaintiff's formulation cannot be seen as plainly hopeless - Application for strike out
dismissed - Leave to amend Statement of Claim granted - Supreme Court Rules 2005
(Vic), r23.02 - Supreme Court Act 1986 (Vic), s33ZF.
CORPORATIONS - Whether breach of obligations of continuous disclosure under
Corporations Act 2001 (Cth), s674(2)B - Whether misleading or deceptive conduct
pursuant to Corporations Act 2001 (Cth), s1041H - Whether reliance required for
causation - Where causation requirements under s674(2) are unclear and not
appropriate to determine in a strike out application - Corporations Act 2001 (Cth),
s674, s1041H, s1041I, s1317HA, s1325(1) - ASX Listing Rules (Cth), r3.1
Camping Warehouse Australia Pty Limited (Formerly Mountain Buggy Australia
Pty Limited) (ACN 097 355 578) v Downer EDI Limited (ACN 003 872 848)
Sifris J
[2014] VSC 357 Second Revision: 6 August 2014
01/08/2014
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TRUSTS - Beneficial ownership of monies paid into bank account - Whether
necessary for funds advanced to be by way of loan to establish Quistclose trust Whether demonstration of actual or presumed intention to create trust sufficient or
whether additionally necessary to establish that funds paid for purpose as pleaded Whether presumption of resulting trust applicable - Extent to which evidence of a
possible improper motive for the establishment of a trust affects the grant of equitable
relief
Stamford Aus-Trade and Press Pty Ltd (ACN 089 202 853) v Aloysius David Pty Ltd
(ACN 085 471 236) and Melbourne Orthopaedic Group Pty Ltd (ACN 005 057 269)
Daly AsJ
[2014] VSC 324
24/07/2014
WILLS AND TRUSTS - Gifts to charitable institutions - Whether charitable
institutions still in existence - Cy-pres scheme - Supreme Court (General Civil
Procedure) Rules 2005 (Vic), r54.02
Re Coulson, Christine
McMillan J
[2014] VSC 353
01/08/2014
PRACTICE AND PROCEDURE - Unrepresented litigant - Refusal by Prothonotary
to seal document as originating process - Proposed plaintiff seeking direction to
Prothonotary to accept document - Document irregular in form - Application refused No direction given to Prothonotary to seal document - Supreme Court (General Civil
Procedure) Rules 2005 (Vic), r27.06
Klement, Jiri v Randles, Peter James
Almond J
[2014] VSC 364
04/08/2014
COMMON LAW DIVISION
Brandwill Holdings Pty Ltd (ACN 106 063 432) v Jonson, Peter and Others
(according to the attached Schedule)
Emerton J
[2014] VSC 356
30/06/2014
ADMINISTRATIVE LAW - Appeal against decision of a Magistrate on a question of
law - Whether Magistrate made finding on basis of no evidence - Whether denial of
procedural fairness - Whether payer entitled to restitution - Change of position
defence - Appeal dismissed - Magistrates Court Act 1989 (Vic), s109
Bernstone, Terry v Almack-Kelly, Philippa
McMillan J
[2014] VSC 358
06/08/2014
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ADMINISTRATIVE LAW - Certiorari - Medical panel - Jurisdictional error - Failure
to give sufficient reasons - Significant injury - Threshold level - AMA Guides Section 8.3 - Assessment of pre-existing impairment - Alcoa Holdings Ltd v Lowthian
[2011] VSC 245; Chua v Lowthian [2011] VSC 468; and Hatswell v Victoria [2013]
VSC 262 followed - Colquhoun v Capital Radiology Pty Ltd [2013] VSCA 58 and
Sherlock v Lloyd (2010) 27 VR 434 applied - Wingfoot Australia Partners Pty Ltd v
Kocak (2013) 303 ALR 64 considered - Wrongs Act 1958 (Vic), s28LB, s28LE,
s28LF, s28LG, s28LH, s28LN, s28 LNA, s28 LL, s28LWE, s28LZ, s28LZA and
s28LZG - Administrative Law Act 1978 (Vic), s8(4) - Originating motion dismissed
Kowal, Lionel v O'Day, Justin and Others (according to the attached Schedule)
Garde J
[2014] VSC 347
05/08/2014
COSTS - Defamation and contract proceedings heard together - Plaintiffs in
defamation proceeding successful in that proceeding but unsuccessful in contract
proceeding - Whether costs order in favour of those plaintiffs should be on standard or
indemnity basis - Quantum of allowance for those plaintiffs' lack of success in
contract proceeding - Three preconditions for award of indemnity costs under
Defamation Act 2005 (Vic), s40(2)(a) - Costs awarded on indemnity basis with
allowance of 20 per cent.
INTEREST - Interest of three per cent payable on damages awards
Cripps, Robert Raymond and Another v Vakras, Demetrios and Another [No 2];
Vakras, Demetrios and Another v Cripps, Robert Raymond and Another
Kyrou J
[2014] VSC 352
28/07/2014
JUDICIAL REVIEW - Prison disciplinary hearings - Applicant prisoner charged
breaches of Corrections Act 1986 (Vic), s50(1)(e) and s50(1)(f) - Whether the
applicant entered a plea of guilty in respect of the charge under s50(1)(f) - Whether
denial of procedural fairness in finding the applicant guilty under s50(1)(e) - Whether
entitlement to particulars - Whether entitlement to preview evidence - Whether
entitlement to call additional witnesses - Whether entitlement to have evidence
adduced by video link - Corrections Act 1986 (Vic) - Corrections Regulations 2009
(Vic)
Brazel, Gregory John v Westin, Melissa and White, Kevin
Osborn JA
[2014] VSC 344
25/07/2014
PRACTICE AND PROCEDURE - Interrogatories - Case management conference Major class action arising out of Black Saturday bushfires- Whether leave to
interrogate should be granted - Interrogatories directed to corporation - Whether
interrogatories to be answered by an officer or authorised person of the corporation Discretion to direct that another person answer interrogatories - whether present and
former employees and contractors should be directed to answer interrogatories
directed to a corporate defendant - Considerations influencing discretion - Supreme
Court (General Civil Procedure) Rules 2005 (Vic), r30.05, r30.08
Liesfield, Roderic v SPI Electricity Pty Ltd (ACN 064 651 118) and Others
(According to the attached schedule) (Ruling No 3)
Dixon J
[2014] VSC 346
24/07/2014
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PRACTICE AND PROCEDURE - Summons for production for inspection of
documents - Whether documents are the subject of client legal privilege - Dominant
purpose test - Evidence Act 2008 (Vic), s45, s75, s118, s119 and s131A
Liesfield, Roderic v SPI Electricity Pty Ltd (ACN 064 651 118) and Others
(According to the schedule of parties); ACN 060 674 580 Pty Ltd and Others
(According to the schedule of parties)
Derham AsJ
[2014] VSC 348
25/07/2014
CRIMINAL DIVISION
BAIL - Show cause - Whether unacceptable risk that applicant would fail to answer
bail or reoffend if admitted to bail - Bail refused - Bail Act 1977 (Vic), s4
Re Bir, Jang James [Bail application]
Dixon J
[2014] VSC 160
14/04/2014
CRIMINAL LAW - Bail - Applicant at risk of reoffending - Show cause situation Nature of offending - Applicant a juvenile - Possible sentence if convicted would be
significantly shorter than period on remand - Bail granted - Conditions - Bail Act
1977 (Vic), s4(2), s4(4)(a)
Re RL [Bail application]
Elliott J
[2014] VSC 336
18/07/2014
CRIMINAL LAW - Bail - Show cause application - Indictable offences alleged - Bail
Act 1977 (Vic), s4(4)
Re Hill, Jarrod Ward [Bail application]
McMillan J
[2014] VSC 288
19/06/2014
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