SUPREME COURT OF VICTORIA
RECENT JUDGMENTS BULLETIN
ISSUE NO. 15/2015
Below is a list of Victorian Supreme Court unreported judgments received in the Library from
10 to 21 August 2015. Catchwords are included when provided on the cover sheet of the
unreported judgment. 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 .......................................................................................... 5
COMMERCIAL & EQUITY DIVISION .................................................................. 7
COMMERCIAL & EQUITY DIVISION. COMMERCIAL COURT ...................... 8
COMMON LAW DIVISION .................................................................................... 9
CRIMINAL DIVISION ........................................................................................... 18
NO DIVISION LISTED .......................................................................................... 20
COURT OF APPEAL
ACCIDENT COMPENSATION - Transport accident - Serious injury application Dominant hand injury - Consequences of impairment - Consequences relating to
pecuniary disadvantage and pain and suffering - Application for leave to appeal from
order dismissing serious injury application - Application granted - Appeal allowed Transport Accident Act 1986, s93.
Abbas, Seerat v Transport Accident Commission
Beach JA and Garde AJA
[2015] VSCA 217
19/08/2015
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CONTRACT - Sale agreement - Claim for balance of purchase price - Termination
for breach of implied conditions - Where seller not party to proceedings - No basis for
ordering relief.
CONTRACT - Partnership agreement - Alleged implied agreement to repay
partnership contributions - No basis for ordering relief.
CONTRACT - Partnership agreement - Claim for partnership expenses - Whether
recovery barred by subsequent conduct or delay - Award of interest - Supreme Court
Act 1986 s58.
CONTRACT - Loan agreement - Identity of parties differed between agreements Estoppel argument not advanced at trial - No error.
CONTRACT - Loan agreement - Terms - Interest - Relevance of parties' subjective
intentions - Substantive appeal dismissed.
CONFIDENTIALITY - Alleged verbal agreement at outset of partnership agreement Insufficient evidence of agreement to restraints sought - Equitable obligation of
confidence.
COSTS - Offer of compromise - Calderbank offer - Award of indemnity costs against
plaintiff - Where defendant's counterclaim amended substantially during trial - Where
joinder of proper plaintiff impeded - Leave to appeal granted - Appeal allowed - New
costs order made.
PRACTICE AND PROCEDURE - Re-opening of issue after judgment - Fresh
evidence on appeal - No error in exercise of discretion to re-open issue and admit
evidence - Procedural fairness accorded.
Refaat, Sameh v Barry, Michael
Warren CJ, Ashley JA, and Tate JA
[2015] VSCA 218
20/08/2015
COSTS - Determination of success of respective parties on different issues Relevance of issue not being the subject of decision below - Relevance of success on
issue considered in obiter - No point of principle.
Angeleska, Snezana (Known as Slaveska) v State of Victoria & Ors
[2015] VSCA 213
13/08/2015
COSTS - Probate application - Caveat - Testamentary capacity - Undue influence Burden and standard of proof - Probate cases costs principles - Relevance of possible
application under Part IV of the Administration and Probate Act 1958 (Vic) - Leave
granted - Appeal allowed.
Giarrusso, Rosalba v Veca, Anna Maria and Michielin, Luisa (in their capacity as
executors of the will of Vincenza Veca deceased)
Beach JA and Garde AJA
[2015] VSCA 214
21/08/2015
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CRIME - Application for extension of time to elect to renew application for leave to
appeal - Out of time by a matter of days - Extension of time unopposed - Application
granted - No point of principle.
CRIME - Sentence - Traffick in a large commercial quantity - Seven years six months'
imprisonment - Sentence unremarkable - Application refused - No point of principle.
Lakkis, Imad v The Queen
Whelan JA and Beach JA
[2015] VSCA 208
07/08/2015
CRIME - Sentence - High speed car chase - Driver/offender crashed - Lifethreatening injuries to passenger - Offender fled - Multiple offences - Total effective
sentence of six years six months and non-parole period of four years three months'
imprisonment not manifestly excessive - Appeal dismissed - No point of principle.
Simpson, Andrew Dean v The Queen
Whelan JA and Beach JA
[2015] VSCA 210
12/08/2015
CRIME - Sentence - Multiple fraud offences - Specific error - Factual basis of
sentence on three of seven counts confused - Sentencing discretion re-opened in
respect of sentences for all counts - Appellant re-sentenced - No point of principle.
Dawn-Manuel, Chris v The Queen
Whelan JA and Beach JA
[2015] VSCA 212
12/08/2015
CRIMINAL LAW - Conviction application - Applicant found guilty of offences
against housemate, including rape by lingual-vaginal penetration - Complainant did
not allege lingual-vaginal penetration to complaint witnesses or medical examiner Multiple-source DNA profile consistent with DNA of applicant, complainant and
another found in swabs taken from complainant's face, neck and breast but applicant
excluded from single-source DNA profile found in swabs taken from complainant's
vulva and perineum - Whether verdict on rape unreasonable or cannot be supported
having regard to the evidence - M v The Queen (1994) 181 CLR 487 - Application
refused.
Saeidi, Adel v The Queen
Warren CJ, Redlich JA, and Croucher AJA
[2015] VSCA 219
21/08/2015
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CRIMINAL LAW - Conviction - Appellant convicted of one charge of armed robbery
and pleaded guilty to one charge of possession of small quantity (6 tablets) of a drug
of dependence (OxyContin) - Offender stole OxyContin from pharmacy - Appellant
taken into police custody following day - Whilst in police cells appellant observed
using syringe to inject himself with OxyContin solution made from broken down
tablet - Crown case relied upon recognition evidence from staff members at pharmacy
and fact of appellant having been subsequently found in possession of OxyContin Crown did not lead any evidence at trial as to appellant having used syringe to inject
himself with drug - Defence counsel referred to that fact in closing address - Whether
error by defence counsel led to substantial miscarriage of justice - Reference to use of
syringe highly prejudicial necessitating discharge of jury - Appeal allowed - New trial
ordered on charge of armed robbery.
CRIMINAL LAW - Conviction - Appellant pleaded guilty to possession charge and
not guilty to armed robbery charge in presence of jury panel - Jury returned verdict on
armed robbery charge only - Whether judge erred by failing to take a verdict from
jury on the possession charge and thereby failed to have the jury clear the indictment Whether conviction on possession charge should be quashed - Appeal against
conviction dismissed - Criminal Procedure Act s210, s215, s217, s241 and s253B
considered.
CRIMINAL LAW - Sentence - Judge sentenced appellant in mistaken belief that
maximum sentence for possession charge was 5 years' imprisonment - Applicable
maximum sentence was in fact 12 months - Material error - Sentence of 4 months'
imprisonment set aside - Appellant convicted and discharged.
Wilson, Michael David v The Queen
Weinberg JA, Kyrou JA, and Croucher AJA
[2015] VSCA 211
11/08/2015
CRIMINAL LAW - Sentence - Applications for leave to appeal - Applicants charged
with robbery and armed robbery respectively - Complainant an 18 year old school girl
waiting for her bus - Soft target - Applicants with prior criminal histories - General
deterrence - Specific deterrence - Application of Verdins principles in respect of one
applicant - Totality considerations in respect of other applicant - Not reasonably
arguable that robbery sentence of 18 months with non-parole period of 12 months was
excessive - Not reasonably arguable that armed robbery sentence of 4 years and 6
months with non-parole period of 3 years was excessive - Errors contended for by
applicants not reasonably arguable - Applications for leave to appeal refused.
Gerbing, Ashley v The Queen; Croughan, Bradley Robert v The Queen
Whelan JA and Beach JA
[2015] VSCA 209
12/08/2015
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NEGLIGENCE - Application for leave to appeal - Duty of care - Breach - Causation Whether proper findings of fact of trial judge on the evidence - Inferences available
and correct - No error shown - Leave refused.
CONTRIBUTORY NEGLIGENCE - Application for leave to appeal - Role of trial
judge - When Court of Appeal may intervene on rehearing on apportionment Decision of trial judge reasonably open on the evidence - Leave refused.
Roche, Joel v Kigetzis, Bill
Osborn JA, Kyrou JA, and Garde AJA
[2015] VSCA 207
06/08/2015
TORT - Road Management Act 2003, s39, s40, s102, s103, s105, s115 - Statutory
duty to inspect, maintain and repair a public road - Tripping incident on elevated lip
between pavers - Breach of statutory duty - Statutory defences - Standards specified
under road management plan - Intervention level for repair - Frequency of inspections
- Breach of maximum permissible duration between footpath inspections - Whether
later inspection cured breach - Whether road management authority had actual
knowledge of risk - Whether road management authority had policy distinct from plan
- Causation - Hamcor Pty Ltd v State of Queensland [2014] QSC 224, distinguished.
Kennedy, Irene v Shire of Campaspe
Tate JA, Osborn JA, and Dixon AJA
[2015] VSCA 215
20/08/2015
COMMERCIAL COURT
CORPORATIONS - Corporations Act 2001 (Cth) s459P winding up application Failure to serve s459G application within time - s459S application.
Sy Financial Services P/L (ACN 112 934 719) v Risk Business P/L (ACN 073 286
978)
Randall As J
[2015] VSC 421
14/08/2015
CORPORATIONS - Insolvency - Application by former administrators for
determination of their remuneration pursuant to s449E(1)(c) of the Corporations Act
2001 (Cth).
In the Matter of an application under section 449E(1)(c) of the Corporations Act
2001 (Cth): In the Matter of Asiapac Communications Group P/L (In Liquidation)
(ACN 165 203 574) and One Telecom P/L (In Liquidation) (Receivers and
Managers Appointed) (ACN 076 483 657) and Iboss International P/L (In
Liquidation) (Receivers and Managers Appointed) (ACN 161 565 573): McCallum,
Stewart and Lindholm, John in their capacity as former joint and several
administrators of Asiapac Communications Group P/L (In Liquidation) (Receivers
and Managers Appointed) (ACN 076 483 657) and Iboss International P/L (In
Liquidation) (Receivers and Managers Appointed) (ACN 161 565 573)
Gardiner AsJ
[2015] VSC 413
14/08/2015
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PRACTICE AND PROCEDURE - Client legal privilege - Waiver of privilege Paragon Finance plc v Freshfields (a firm) [1999] 1 WLR 1183 - Vic Hotel Pty Ltd v
DC Payments Australasia Pty Ltd [2015] VSCA 101 - Evidence Act 2008 (Vic) s55,
s122 - Supreme Court (General Civil Procedure) Rules 2005 r29.01.1 - Civil
Procedure Act 2010 (Vic) s26.
Dowling, James Anthony v Dowling, John Michael and others according to the
schedule attached
Ierodiaconou AsJ
[2015] VSC 412
12/08/2015
PRACTICE AND PROCEDURE - Discovery - Inspection - Statutory prohibitions
against disclosure - Whether Gambling Regulation Act 2003, s10.1.30 or s10.1.31
prohibit Court from ordering inspection or production of documents - Held:
s10.1.30(1) prohibits Court from ordering production by the State of documents
containing 'protected information' - Javorsky & Anor v Commissioner of Taxation
(2005) 189 FLR 228; Smith v Victoria Police (2012) 36 VR 97.
CONSTITUTIONAL LAW - Constitution Act 1975, s85(5) - Whether engaged by
Gambling Regulation Act 2003, s10.1.30 or S10.1.31 - Held: sections limited
power of Supreme Court concerning inspection and production of relevant
documents and were ineffective for want of compliance with S85(5) - The Broken
Hill Proprietary Co Ltd v Dagi & Ors [1996] 2 VR 117.
Intralot Australia P/L (ACN 114 435 531) v State of Victoria
Hargrave J
[2015] VSC 407
14/08/2015
PRACTICE AND PROCEDURE - Security for costs - Application by defendant for
security against plaintiff - Security in related proceeding - Issue of quantum - Whether
bank guarantee is adequate security - Costs in the proceeding - Corporations Act 2001
(Cth), S1335(1), Supreme Court (General Civil Procedure) Rules 2005 (Vic), r62.
Cleal Holdings P/L (ACN 131 952 746) v JG King Developments (ACN 149 538
241)
Ierodiaconou AsJ
[2015] VSC 414
13/08/2015
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COMMERCIAL & EQUITY DIVISION
ADMINISTRATION OF PROBATE - Testator's Family Maintenance - Deceased Claim by testator's son-in-law - No dispute on the claimant's evidence - Whether
claim for further provision has no real prospect of success - Whether appropriate for
summary dismissal - Administration and Probate Act 1958, s91 - Civil Procedure Act
2010 s63 and s64.
In the Matter of Part IV of the Administration and Probate Act 1958
In the Matter of the Will and Estate of William James Milburn (deceased)
Between Usher David v Harding Steven John (who is sued as executor of the Will
of William James Milburn, decease)
Zammit AsJ
[2015] VSC 229
20/05/2015
ADMINISTRATION OF PROBATE - Testator's Family Maintenance - Deceased Claim by testator's son-in-law - No dispute on the claimant's evidence - Whether
claim for further provision has no real prospect of success - Whether appropriate for
summary dismissal - Administration and Probate Act 1958, s91 - Civil Procedure Act
2010 s63 and s64.
In the Matter of Part IV of the Administration and Probate Act 1958 and In the
Matter of of the Will and Estate of Milburn, William (deceased): Between Usher,
David v Harding, Steven John (who is sued as executor of the Will of William
James Milburn, deceased)
Zammit AsJ
[2014] VSC 229
20/05/2014
BREACH OF CONTRACT - Misuse of confidential information - Breach of s183(1)
of the Corporations Act 2001 - Summary judgment - the Civil Procedure Act 2010
s63 and s64.
Just Group Ltd (ACN 096 911 410) v Dyk, Joseph Van and Pepkor South East Asia
P/L (ACN 081 408 791) and Best & Less P/L (ACN 003 724 696)
Zammit AsJ
[2014] VSC 228
20/04/2014
PRACTICE AND PROCEDURE - Costs - Appeals from VCAT - One appellant
(Cityrose) responsible for drafting of clause which led to initial dispute and
subsequent litigation - Provision eventually declared void for uncertainty - Findings of
misleading conduct by that appellant - That appellant ordered to pay costs of other
parties to both appeals.
Cityrose Trading P/L (ACN 077 934 671) v Booth, Noel and Kay & Burton P/L
(ACN 005 488 175); Kay & Burton P/L (ACN 005 488 175) v Booth, Noel and
Cityrose Trading P/L (ACN 077 934 671)
Whelan JA
[2014] VSC 46
20/05/2014
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COMMERCIAL & EQUITY DIVISION. COMMERCIAL COURT
CORPORATIONS - Managed Investment Scheme - Application for approval of
termination of grower rights to facilitate sale of scheme property - Application for
directions for allocation and distribution of sale proceeds - Applications made under
s511 of the Corporations Act 2001 (Cth) and r54.02 of the Supreme Court (General
Civil Procedure) Rules 2005 (Vic).
In the Matter of Gunns Plantations Ltd (In Liquidation) (Receivers & Managers
Appointed) (ACN 091 232 209) in its capacity as the responsible entity of the
managed investment schemes listed in Schedule 1: Bryant, Daniel Matthew,
Carson, Ian Menzies and Crosbie, Craig David (in their capacities as joint and
several Liquidators of Gunns Plantations Ltd (In Liquidation) (Receivers &
Managers Appointed) (ACN 091 232 209) and Gunns Plantation Ltd (In
Liquidation) (Receivers & Managers Appointed) (ACN 091 232 209) in its capacity
as the responsible entity of the managed investment schemes listed in Schedule 1
(No 5) (Tasmanian Forestry Estate)
Judd J
[2015] VSC 420
18/08/2015
CORPORATIONS - Managed Investment Scheme - Application for approval of
termination of grower rights to facilitate sale of scheme property - Application for
directions for allocation and distribution of sale proceeds - Applications made under
s511 of the Corporations Act 2001 (Cth) and r54.02 of the Supreme Court (General
Civil Procedure) Rules 2005 (Vic).
In the Matter of Gunns Plantations Ltd (In Liquidation) (Receivers & Managers
Appointed) (ACN 091 232 209) in its capacity as the responsible entity of the
managed investment schemes listed in Schedule 1: Bryant, Daniel Matthew,
Carson, Ian Menzies and Crosbie, Craig David (in their capacities as joint and
several Liquidators of Gunns Plantations Ltd (In Liquidation) (Receivers &
Managers Appointed) (ACN 091 232 209) and Gunns Plantation Ltd (In
Liquidation) (Receivers & Managers Appointed) (ACN 091 232 209) in its capacity
as the responsible entity of the managed investment schemes listed in Schedule 1
(No 6) (Tumbarumba Estate)
Judd J
[2015] VSC 425
18/08/2015
GROUP PROCEEDING - Application by group members to cease to be a member of
the group - Whether application competent - Group proceeding settled shortly prior to
delivery of judgment - Application to approve Deed of Compromise - Some group
members dissatisfied with terms of settlement - Res judicata - Anshun estoppel Applications under s33KA and s33ZF of Supreme Court Act 1986 - Applications
refused.
In the Matter of Great Southern Finance P/L (In Liquidation) (ACN 009 235 143):
Between Clarke, Peter as Trustee of the Clarke Family Trust & Ors v Great
Southern Finance P/L (In Liquidation (ACN 009 235 143) & Ors
Judd J
[2014] VSC 569
14/11/2014
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PRACTICE AND PROCEDURE - Application by directors of a company for leave to
file a Second Further Amended Statement of Claim - Where the original Plaintiff, a
company, is in liquidation and no longer party to the proceeding - Where the Second
Further Amended Statement of Claim inadequately pleads the claims and the nature
and extent of the loss with regard to the directors - Leave to file the Second Further
Amended Statement of Claim refused.
Between MacFellis P/L ACN 121 511 402 (Administrator Appointed) and
MacFadyen, Heath Allen and Ellis, Mark Andrews v Bank of Queensland Ltd
(ABN 32 009 656 740)
Sifris J
[2014] VSC 394
22/08/2014
COMMON LAW DIVISION
ADMINISTRATIVE LAW - Appeal from decision of the Coroners Court - Coroners
Act 2008, s52, s67, s82, s87, s87A - Question of law - Interests of justice - Discretion
to hold an inquest.
Appeal Pursuant to s82 of the Coroners Act 2008: Bourke, Sandra (On Behalf of
the Deceased, Steenvoorden, Johannes Jeroen) v Coroners Court of Victoria and
Barwon Health
Zammit J
[2015] VSC 418
17/08/2015
ADMINISTRATIVE LAW - Appeal from the Victorian Civil and Administrative
Tribunal - Domestic building dispute - Termination of contract by owner on failure of
builder to rectify defects specified in a default notice - Clause 20 of Victorian Master
Builders Association New Homes Contract (HC-6 addition 1-2007) - Tribunal found
purported contractual termination was ineffective - Whether Tribunal correctly
construed the term 'substantial breach' - Whether owner acted unreasonably when
terminating the contract after specifying a 14 day rectification period by the default
notice when remediation would take 6 weeks - Whether Tribunal failed to consider a
relevant consideration - Builder wrongly insisting on payment of a progress claim as a
condition of any further work - Meaning of term 'substantial breach' considered in
context of a breach of the obligation to carry out the works in a proper and
workmanlike manner under cl 10 of the contract - Appeal allowed - Proceeding
remitted to VCAT. CONTRACTS - Building, Engineering and related contracts Victorian Master Builders Association New Homes Contract (HC-6 addition 1-2007)
- Clauses 10 and 20 - Breach - Termination - Termination by owner on failure of
builder to rectify defects specified in a default notice - Meaning of term 'substantial
breach' considered - Whether owner acted unreasonably when terminating contract
after specifying a 14 day rectification period by the default notice when remediation
would take 6 weeks.
Stojanovski, Ilija & Anor v Australian Dream Homes P/L
John Dixon J
[2015] VSC 404
17/08/2015
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ADMINISTRATIVE LAW - Habeas corpus - Cancellation of parole - Reasons - No
point of principle - Corrections Act 1986, div 5
Marrogi, George v The Secretary to the Department of Justice
Bongiorno JA
[2015] VSC 429
23/07/2015
ADMINISTRATIVE LAW - Judicial review of a decision by the Police Regulation
and Services Board - Did the Board fail to take a relevant consideration into account?
- Public interest - Police Regulation Act 1958 (Vic) s80, s86AH, s86AL, s86AM,
s86AN, s86AR, s86AQ
Chief Commissioner of Police v Chen, Yong and Police Regulation and Services
Board
T Forrest J
[2015] VSC 380 First Revision: 17 August 2015; paragraph [3]
13/08/2015
ADMINISTRATIVE LAW - Judicial review of a decision by the Police Regulation
and Services Board - Did the Board fail to take a relevant consideration into account?
- Public interest - Police Regulation Act 1958 (Vic) s70, s71, s76, s86AH, s86AL,
s86AM, s86AN, s86AR, s86AQ.
Chief Commissioner of Police v McCann, Calum and Police Registration and
Services Board
T Forrest J
[2015] VSC 379 First Revision: 17 August 2015; paragraph [3]
13/08/2015
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CONSIPRACY TO INJURE - Defendants did not have sole or dominant purpose of
harming the plaintiffs - Defendants' primary motivation was self-interest to preserve
ownership of properties which had been restituted to the first defendant within first
defendant's immediate family.
UNLAWFUL MEANS CONSPIRACY - Transfer of assets from first defendant to
second and third defendants constituted an equitable fraud - First to fourth defendants
were parties to an agreement to injure the plaintiffs - Any loss as a result of agreement
to transfer properties from first defendant to second and third defendants contingent
upon outcome of ongoing legal proceedings in Czech Republic.
INDUCING BREACH OF CONTRACT - Second to fourth defendants provided
advice and encouragement to the first defendant prior to his breach of terms of
settlement - Conduct not actionable as inducing breach of contract.
TRUSTS - Barnes v Addy (1874) 9 Ch App 244 - No express or implied trust created
by terms of settlement. Section 172 Property Law Act 1958 (Vic) - Transfer of
property from first to fourth defendant shortly after commencement of legal
proceedings against first defendant - Transfer not for valuable consideration - Transfer
voidable; transfer of property from fifth defendant to sixth defendant - None of
plaintiffs' claims against fifth defendant successful - Plaintiffs not persons prejudiced
by transfer. Property Law Act 1958 (Vic) s172; Evidence (Miscellaneous Provisions)
Act 1958 s42E; Civil Procedure Act 2010 (Vic) s56; Supreme Court (General Civil
Procedure) Rules 2005 (Vic) r2.04(1), r7.02(1), r7.04, r9.09(2), r16.03, r66.10(3),
r77.06; Administration and Probate Act 1958 (Vic) s9; Foreign Judgments Act 1991
(Cth) s15; Bankruptcy Act 1966 (Cth) s58(3).
Talacko, Jan (As executor of the Estate of Helena Marie Talacko) AND ORS
(According to the schedule attached) v Talacko, Jan Emil & Ors (According to the
schedule attached)
McDonald J
[2015] VSC 287
07/08/2015
CONTEMPT - Six bank cheques sent to judges and CEO of court - No identification
of sender - No threats, demands or abuse contained with the cheques - Money owed to
court by respondent - Sending of cheques not a contempt - Tendency to interfere with
the due administration of justice Improper pressure on a party - Threats of violence to
judges, staff and legal practitioners - Threats of violence for the purpose of
intimidation of a party - Threats of violence for the purpose of intimidating judges Threats of violence for the purpose of improperly influencing the decision of judges Abuse of judges, staff and legal practitioners - Allegations of impropriety and
corruption for the purpose of intimidating judges - Allegations of impropriety and
corruption for the purpose of improperly influencing the decision of judges Attempting to undermine the authority of the court.
The Queen (on the application of the Attorney-General of the State of Victoria) v
Slaveski, Lupco
King J
[2015] VSC 400
12/08/2015
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COSTS - Jurisdiction of Costs Court - Application to set aside settlement agreement Whether relates to 'assessment, settling, taxation or review of costs' - Reference of
question to judge for direction - Scope of power of direction - 'Direction', 'question' Supreme Court Act 1986 (Vic) s17D, Supreme Court (General Civil Procedure) Rules
2005 (Vic) r63.51
Owerhall, Eerik Juhani v Bolton & Swan P/L (ACN 153 647 360)
Bell J
[2015] VSC 417
07/08/2015
CRIMINAL LAW - Appeal on a question of law from orders of the Magistrates'
Court - Accused charged with various driving offences - Three charges amended with
the effect of charging new charges more than twelve months after their commission Accused did not give written consent to amendments - Accused convicted and
sentenced on all charges, including the purportedly amended charges - Court erred in
amending the charges and that error was involved in the final orders for conviction
and sentence - Appeal allowed - Appropriate form of orders - Criminal Procedure Act
2009, s7, s8, s272.
Bchinnati, Omar v Connolly, Rhiannon and Shawyer Benjamin and Harris, Susan
T Forrest J
[2014] VSC 623
10/12/2014
CRIMINAL LAW - Application for compensation pursuant to s85B of the Sentencing
Act 1991 - Post Traumatic Stress Disorder as a result of the murder of a family
member - Application by all four members of victim's family - Nature and extent of
psychological injury - Direct result of offending - Aggravating circumstances Veracity and exaggeration - Assessment of damages.
Daou, Helen, Daou, Eli, Daou, Simon, Daou, Daniel v Johnston, Andrew,
Hargrave, Adam, Bui, Ngoc (Redacted Version)
King J
[2015] VSC 409
11/08/2015
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CRIMINAL LAW - Independent Broad-based Anti-corruption Commission Examination of persons - Where persons under investigation for criminal offences Whether legislation authorises examination of persons under investigation with
respect to matters the subject of the investigation - Whether the "companion
principle" applies to persons under investigation for criminal offences - Accusatorial
system of justice.
STATUTORY INTERPRETATION - Whether Independent Broad-based Anticorruption Commission Act 2011 (Vic) grants power to examine persons, under
investigation for criminal offence, publicly or at all - Principle of legality - Effect of
the abrogation of the privilege against self-incrimination - Independent Broad-based
Anti-corruption Commission Act 2011 (Vic) s117.
ADMINISTRATIVE LAW - Jurisdictional error - Whether Commissioner's opinion
that jurisdictional conditions satisfied was a reviewable error - Whether decision
affected by irrelevant considerations, a failure to take into account relevant
considerations or legal unreasonableness - Effect of an express statutory obligation of
reasonableness
R and M v Independent Broad-Based Anti-Corruption Commissioner
Riordan J
[2015] VSC 374
07/08/2015
DEFAMATION - Limitation of action - Extension of time application - Whether 'not
reasonable' in the circumstances for the plaintiff to have commenced proceedings
within one year from date of publication - Plaintiff unaware of identity of the
defendant - Limitation of Actions Act 1958 (Vic), s5(1AAA), s23B; Defamation Act
2005 (Vic).
McMahon, Luke v Watkinson, Amanda
Zammit AsJ
[2014] VSC 123
28/11/2014
JUDICIAL REVIEW - Application for relief in the nature of mandamus - The nature
of the obligation assumed by the Secretary of the Department of Health and Human
Services under s49 of the Disability Act 2006 after agreeing to a request for disability
services - Right of a person with a disability to complain to the Disability Services
Commissioner - The application of a liberal interpretation to legislation intended to
benefit people with disabilities.
Barnes, Philip v The State of Victoria and The Secretary to the Department of
Health and Human Services
Riordan J
[2015] VSC 340
14/08/2015
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JUDICIAL REVIEW - Conviction and fines for exceeding speed limit - Evidence to
the contrary - Evidence to the opposite effect - Evidence accepted by the tribunal of
fact as having some weight - Adequacy of Reasons - Standard of reasons - Clear path
of reasoning - Burden of proof - Certificate under s83 and s83A of the Road Safety
Act 1986 - Road Safety Act 1986 s66, s79, s81, s83, s83A - Road Safety Road Rules
2009 r20 - Road Safety (General) Regulations 2009 cl6, cl29, cl30.
Agar, Carl Paul v Leadings Senior Constable McCabe, Kathleen (21804) of Traffic
Camera Office and The Magistrates' Court of Victoria
Zammit J
[2015] VSC 378
11/08/2015
NEGLIGENCE - Psychological injury in the course of employment - Duty of care Whether the defendant acted with reasonable care and consideration in the
circumstances - Whether any such negligence of the defendant was a cause of injury
to the plaintiff - Psychiatric background and foreseeable risk of psychiatric injury of
the plaintiff - Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44 - Hegarty v
Queensland Ambulance Service [2007] QCA 366 - Taylor v Haileybury [2013] VSC
58.
Johnson, Gregory v Berry Street Victoria Incorporated
Rush J
[2015] VSC 428
20/08/2015
PRACTICE AND PROCEDURE - Application to add defendants - Plaintiff's claim
involving claim for breaches of duty to exercise reasonable care Addition of
defendants for the purposes of invoking the proportionate liability regime under Part
IVAA of the Wrongs Act 1958 (Vic) - Whether evidence necessary to establish
arguable case - Some evidence required to substantiate arguable claims - Whether
sufficient substantiation of arguable claims - Evidence insufficient - Application to
join defendants refused - Part IVAA of the Wrongs Act 1958 - Rule 9.06(b)(ii) of the
Supreme Court (General Civil Procedure) Rules 2005.
Fabloor (Vic) P/L (ACN 119 006 245) (and others according to the attached
Schedule); and Danfoss (Australia) P/L (ACN 004 385 997) (and others according
to the attached Schedule) v BNY Trust Company of Australia Ltd (ACN 050 294
052) (and others according to the attached Schedule)
Derham AsJ
[2015] VSC 434
21/08/2015
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PRACTICE AND PROCEDURE - Application by plaintiff by counterclaim to reopen the trial after judgment reserved to complete cross examination of opposing
parties' witnesses - Whether application ought properly have been brought under rule
49.02(2) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) Principles applicable to applications to re-open and applications under r49.02 - Rosing
v Ben Shemesh [1960] VR 173 considered - Xiao Hui Ying v Perpetual Trustees
Victoria Ltd [2012] VSCA 316 applied - Reason for failure to attend court - Delay Bona fide issue to be tried - Prejudice to the parties - AON Risk Services Pty Ltd v
Australian National University (2009) 239 CLR 175 considered - Relevance of Civil
Procedure Act 2010 (Vic) - Uncertain scope of issues to arise in resumed trial Importance of finality of litigation - Spotlight Pty Ltd v NCON Australia Ltd [2012]
VSCA 232 and CC Containers Pty Ltd v Lee (No 5) [2013] VSC 619 considered Application refused.
Between, Grech, Stephen Phillip and Grech, Jelvie v Deak-Fabrikant, Larissa and
Registrar of Titles; and Between Deak-Fabrikant, Larissa (Plaintiff by
Counterclaim) v Grech, Stephen Phillip (and others according to the attached
Schedule) (Defendants by Counterclaim) (No 2)
Daly AsJ
[2015] VSC 389
06/08/2015
PRACTICE AND PROCEDURE - Application for approval of settlement of group
proceeding - Settlement of proceeding after trial and while appeal pending - Whether
approval can be given by Judge of trial division - Whether terms of settlement fair and
reasonable - Whether claims for costs and disbursements reasonable - Abalone disease
case - Settlement approved - Constitution Act 1985 (Vic) s75, s75A; Supreme Court
Act 1986 (Vic) s33V.
Regent Holdings P/L (ACN 009 561 433) as Trustee for V.L. Halliday Investment
Trust v State of Victoria and Southern Ocean Mariculture P/L (ACN 072 939 210)
Ginnane J
[2015] VSC 422
18/08/2015
PRACTICE AND PROCEDURE - Joinder - Discretion of the Court to permit joinder
- Supreme Court (General Civil Procedure) Rules 2005 (Vic) r9.06
Talacko, Jan (as Executor of the Estate of HELENA MARIE TALACKO) and Ors
(according to the schedule attached) and Talacko, Jan Emil & Ors (according to
the schedule attached)
Zammit AsJ
[2014] VSC 470
24/09/2014
PRACTICE AND PROCEDURE - Stay of orders of Magistrates' Court granting
weekly payments of compensation pending hearing for appeal - J. Gadsden Pty Ltd &
Another v Macdonald [1999] VSC 127.
Francis, Debra Anne and Patrick Stevedores Holdings P/L v Farrell, Bruce
Frederick
Ierodiaconou AsJ
[2015] VSC 419
14/08/2015
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PROCEEDS OF CRIME - Application for forfeiture of property order - Application
for Exclusion from restraining order - Property subject to restraining order Respondents not convicted of an offence - Determination of order of proceedings Proceeds of Crime Act 2002 (Cth) s19, s29, s31, s45, s49, s59, s73, s74.
The Commissioner of the Australian Federal Police (Respondent by Cross
Application) v Zhang, Heng Jie (Applicant by Cross Application) and Shen, Ying
(Applicant by Cross Application) (Ruling No 1)
T Forrest J
[2015] VSC 390
04/08/2015
PRACTICE AND PROCEDURE - Appeal under s36J of the Accident Compensation
(WorkCover Insurance) Act 1993 - Dispute defined by claims for relief in an
originating motion and statements of case - Application to amend - Whether
application to extend time to seek judicial review under O 56 may be added.
Mallee Transport Logistics P/L, Menindee P/L, Swan Hill Accounting Services P/L
v The Victorian Workcover Authority
Dixon J
[2014] VSC 618
16/12/2014
REAL PROPERTY - Restrictive covenants - Single dwelling restrictions Applications for modification - Applicable legal principles - Objectors refusing to be
added as defendants - Whether appropriate to hear objectors concerns and
submissions - Objectors granted leave to express their concerns and to make
submissions - Whether modifications will not substantially injure the persons entitled
to the benefit of the covenants - Application granted - Property Law Act 1958,
s84(1)(c).
In the Matter of applications pursuant to section 84 of the Property Law Act 1958
for the modification of restrictive covenants: In the Matter of the Applications of:
PJLJ P/L (ACN 602 180 969), Reynolds, Richard Dunstan, Patphair Investments
P/L (ACN 601 789 066)
Derham AsJ
[2015] VSC 401
12/08/2015
SEARCH WARRANTS - Jurisdiction of Magistrates' Court of Victoria to order
return of seized property - Whether extended to property seized during execution, but
outside terms, of warrant - Whether separate civil proceeding necessary for recovery
of property - Judicial review - Whether magistrate misinterpreted scope of discretion
to return seized property - 'Under a search warrant' – Magistrates’ Court Act 1989
(Vic) s78(6).
Siddique, Muhammad v Martin, Michael and Magistrates' Court of Victoria
Bell J
[2015] VSC 423
17/08/2015
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SUCCESSION, WILLS AND PROBATE - Informal codicil - Whether deceased
intended informal document to be a codicil to his will - Whether informal document
rational on its face - Whether deceased knew and approved of informal codicil Whether deceased had testamentary capacity - Whether informal document was the
product of influence over the deceased - Wills Act 1997, s9 - Fast v Rockman [2013]
VSC 18 - Hatsatouris v Hatsatouris [2001] NSWCA 408 - Re Springfield (1991) 23
NSWLR 535
Between Jageurs, Michael David (who is sued as executor and trustee of the estate
of Jageurs, Daniel Joseph, deceased) and Downing, Patricia Margaret
McMillan J
[2015] VSC 432
21/08/2015
TESTATOR'S FAMILY MAINTENANCE - Application by adult daughter for
further provision - Where responsibility to provide for adult daughter conceded Where defendant alleged deceased's responsibility to adult daughter discharged Where promises made by deceased for plaintiff to receive an equal share of estate Where plaintiff sexually abused by father as a child - Where deceased knew of abuse
and failed to take sufficient steps to remedy abuse - Further provision ordered - Extent
of provision - Administration and Probate Act 1958, s91.
TESTATOR'S FAMILY MAINTENANCE - Application by adult grandchild for
provision - Whether deceased had responsibility to provide for adult grandchild Where grandchild sexually abused by grandfather as a child - Where deceased knew
of abuse and failed to take sufficient steps to remedy abuse - Provision ordered Extent of provision - Administration and Probate Act 1958, s91.
Smith, Constance and Smith, David v Jones, Edward (who is sued as the executor
of the will of ABIGAIL JONES, deceased)
2015
[2015] VSC 398
14/08/2015
VCAT - Application for leave to appeal and appeal - Application for reconstitution of
the Tribunal on the ground of bias determined by a presidential member against the
applicant - Hearing of the application described in the notice of hearing as a
'directions hearing' but treated by the Tribunal as the substantive hearing - Proceeding
over the objection of the applicant in these circumstances held to be a breach of
procedural fairness - Whether the Tribunal should have adjourned the hearing to allow
the applicant to obtain a transcript of the hearing said to show bias - Whether the
Tribunal showed actual or apprehended bias - Leave to appeal granted and appeal
allowed - Reconstitution application remitted to the Tribunal for rehearing by a
different presidential member.
Guastalegname, Michael v Chevros P/L (ACN 076 603 582)
Lansdowne AsJ
[2015] VSC 408
12/08/2015
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CRIMINAL DIVISION
CONTEMPT - 9 charges of Contempt of Court between August 2012 and March
2014 - Very serious contempt in the face of the court - Magistrates' Court - Threats
via telephone and emails to Justices, Associate Justices, Judges, Associates, solicitors,
staff in registry and their families - Violent, abusive, offensive, threatening language,
threats of physical and sexual harm - Attempts to obstruct the administration of justice
- Allegations of impropriety and corruption for the purpose of improperly influencing
the decision of the court - Mr Slaveski's mental health condition reduces the sentence
otherwise imposed - Fixed, rigid, biased viewpoint - No remorse. Sentence - 23
Months' imprisonment with a minimum of 15 months before becoming eligible for
parole.
The Queen v Slaveski, Lupco
King J
[2015] VSC 416
14/08/2015
CRIMINAL LAW - Application by media for copy of the audio video record of
interview - Application refused.
Application for access under s464JB of the Crimes Act 1958 (Vic), R v Hemming,
Thomas (Ruling No 1)
King J
[2015] VSC 351
12/08/2015
CRIMINAL LAW - Indictment containing charge of murder and charges of
aggravated burglary, attempted armed robbery, intentionally causing serious injury
and recklessly causing serious injury - Application for severance - Application
granted - Criminal Procedure Act 2009 (Vic) s193.
Director of Public Prosecutions v Preston, Gavin John (Ruling No 2)
Macaulay J
[2015] VSC 396 [REDACTED VERSION]
06/02/2015
CRIMINAL LAW - Murder – Evidence - Admissibility - Gunshot residue (GSR) and
text message evidence - Assessment of probative value - Assessment of prejudicial
effect - Common law discretion to exclude unfair evidence - GSR evidence refused Text message evidence allowed - Evidence Act 2008 (Vic) s137
Director of Public Prosecutions v Preston, Gavin John (Ruling No 3)
Macaulay J
[2015] VSC 397 [REDACTED VERSION]
14/05/2015
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CRIMINAL LAW - Sentence - Manslaughter - Criminal negligence - Earlier
altercation and pelting of motor vehicles - Victim struck by motor vehicle driven by
offender - Specific and general deterrence - Youthful offender - Prospects of
rehabilitation - Sentence of eight and a half years imprisonment with a non-parole
period of six years.
The Queen v Saleh, Mohammad
Almond J
[2012] VSC 120
02/04/2015
CRIMINAL LAW - Sentence - Murder - De facto wife - Plea of guilty to
manslaughter - Previous violence towards victim - Prior convictions involving
violence - Deprived background - Mental impairment - Borderline personality
disorder - General and specific deterrence - Remorse - Rehabilitation
The Queen v Cook, Steve Ray
Elliott J
[2015] VSC 406
19/08/2015
CRIMINAL LAW - Sentences - Defensive homicide contrary to s9AD Crimes Act
1958 (Vic) and recklessly causing serious injury (RCSI) contrary to s17 Crimes Act
1958 (Vic) - Accused initially tried for murder before pleading guilty to defensive
homicide and separate charge of RCSI - Parity with sentence imposed on co-offender
for RCSI - Nature and gravity of offending - Factual premise for guilty plea to
defensive homicide markedly different from initial murder charge - Sentencing
judge's duty to form view of the facts - Status of agreed statement of facts - Some
prospects for rehabilitation - Conditions of protective custody - Crimes committed
whilst on bail - Totality and concurrency.
Director of Public Prosecutions v Preston, Gavin INDICTMENT D 10696692.4 &
D 10696692.5
Macaulay J
[2015] VSC 402
11/08/2015
CRIMINAL LAW - Two co-offenders - D1 pleaded guilty to two charges of culpable
driving causing death - D1 70 years old, suffers from emphysema with limited life
expectancy - No remorse - Total effective sentence of 8 years' imprisonment with
non-parole period of 5 years - D2 pleaded guilty to two charges of dangerous driving
causing death - Lesser role in offending and less culpable than D1 - Genuine remorse
- Total effective sentence of 5 years' imprisonment with non-parole period of 3 years.
The Queen v McPherson, Jamie William; The Queen v Sargent, Shayne William
Weinberg JA
[2015] VSC 403
10/08/2015
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MURDER - Incitement to murder - Total head sentence 30 years and six months.
Minimum of 26 years before being eligible for parole.
The Queen v Wilson, Darren
King J
[2015] VSC 394
17/07/2015
NO DIVISION LISTED
CORPORATIONS LAW - Company under deed of company arrangement - Meeting
of creditors called at request of high-value creditor - Regulation made requesting
person liable for costs of 'convening' meeting - Appeal from order of Magistrates'
Court of Victoria that requesting person liable for full costs of calling and holding
meeting - Whether error of law - Whether requesting person liable only for costs of
calling meeting - 'Convene', convening', 'summon', 'summoning' - Corporations Act
2001 (Cth) pt5.3A and pt5.4B, s445F and s479(2), Corporations Regulations 2001
(Cth) reg 5.6.15.
BH Apartments P/L (ACN 087 288 882) v Sutherland Nominees P/L (Subject to a
Deed of Company Arrangement) (ACN 009 559 684) and Burness, Paul Andrews
and Jess, Matthew James
Bell J
[2015] VSC 381
13/08/2015
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