SUPREME COURT OF VICTORIA
RECENT JUDGMENTS BULLETIN
ISSUE NO. 4/2015
Below is a list of Victorian Supreme Court unreported judgments received in the Library from
8 to 20 March 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 .......................................................................................... 3
COMMERCIAL & EQUITY DIVISION .................................................................. 4
COMMON LAW DIVISION .................................................................................... 5
CRIMINAL DIVISION ............................................................................................. 8
PRACTICE COURT .................................................................................................. 9
COURT OF APPEAL
APPEAL PROCEDURE - Sole ground of appeal that judgment procured by fraud Issue of fraud contested - Respondent to give evidence on the issue and adduce
medical evidence - Not appropriate for Court of Appeal to determine issues involving
oral evidence and cross-examination - Appeal allowed to the extent that issue of fraud
referred back to trial court - Appeal otherwise dismissed without adjudication on the
merits - Noble v Owens [2010] 3 All ER 830 followed
Gann, Jason William v Hosny, Joseph
Whelan JA and Ferguson JA
[2015] VSCA 43
16/03/2015
ARBITRATION - Enforcement of a foreign arbitral award - Whether court should
have refused to enforce award - Whether terms of award uncertain - Whether terms of
award so uncertain that court should refuse to enforce - Whether enforcement of
award would be contrary to public policy - Natural justice - Whether there was a
breach of the rules of natural justice in connection with the making of the award Futility - Whether enforcement of award would be futile - International Arbitration
Act 1974 (Cth), s2D, s8 and s39
Sauber Motorsport AG v Van Der Garde BV, Giedo and Van Der Garde, Giedo and
Ericsson, Marcus and Nasr, Luiz Felipe De Oliveira (third parties)
Whelan JA, Beach JA, and Ferguson JA
[2015] VSCA 37
12/03/2015
Supreme Court of Victoria – Recent Judgments Bulletin No. 4/2015
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
Page - 1 -
CRIMINAL LAW - Conviction - One count of importation and one count of
possession of commercial quantity of a border controlled drug - Following conviction
trial judge referred to earlier importation for which a different individual had been
convicted - Various similarities between circumstances of earlier importation and
allegations against accused - Whether prosecution was obliged to disclose information
relating to earlier importation - Mallard v The Queen (2005) 224 CLR 125 discussed Whether substantial miscarriage of justice - Information incapable of being put to
legitimate significant forensic use - Conviction inevitable - Leave to appeal refused
Kev, Chhodaphea v The Queen
Weinberg JA and Santamaria JA
[2015] VSCA 36
10/03/2015
CRIMINAL LAW - Sentence - Applicant pleaded guilty to burglary, theft and
possession of a drug of dependence - TES 3 years with NPP 2 years - Substantial
criminal history including prior convictions for theft and burglary - Whether sentence
manifestly excessive - Whether one-third reduction on basis of guilty plea inadequate
in circumstances where sentencing judge had foreshadowed that 'substantial discount'
for guilty plea would be allowed - Sentence not manifestly excessive - Leave to
appeal refused
Walsh, Simon v The Queen
Weinberg JA and Beach JA
[2015] VSCA 41
16/03/2015
CRIMINAL LAW - Sentence - Application for leave to appeal against sentence out of
time - Multiple charges - Whether sentencing judge gave any or any proper
consideration to relative youth of applicant - Manifest excess - Whether sentencing
judge failed to give any or any proper consideration to relevant features of prohibited
imports - Differential maximum penalties imposed by Parliament in respect of
importation and possession
Ludwig, Samuel Ryan v The Queen
Weinberg JA and Santamaria JA
[2015] VSCA 35
10/03/2015
CRIMINAL LAW - Sentence - Whether sentencing reasons affected by specific error
- Whether sentence manifestly excessive - Appeal dismissed - No point of principle
Director of Public Prosecutions (Cth) v Golic, Andrea Clare: Director of Public
Prosecutions (Cth) v Golic, Andrea Clare
Neave JA, Whelan JA, and Beach JA
[2014] VSCA 355
08/12/2014
JURY VERDICT - Appeal - Applicant struck by unidentified vehicle while crossing
the road - Whether jury verdict that there was no negligence on the part of the driver
which was a cause of the plaintiff suffering injury, loss and damage was against the
weight of the evidence - Evidence of negligence dependent upon acceptance of
plaintiff's account - Whether jury's verdict was reasonably open to it - Whether jury
correctly directed as to onus of proof - Relevance of appellant's credit and reliability
in discharge of onus of proof - Appeal dismissed
Casey, Scott Charles v Transport Accident Commission
Tate JA, Osborn JA, and Kyrou JA
[2015] VSCA 38
18/03/2015
Supreme Court of Victoria – Recent Judgments Bulletin No. 4/2015
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
Page - 2 -
CRIMINAL LAW - Offences - Attempt - Interlocutory appeal - Application for
permanent stay - Attempt to import a border controlled drug - Applicant ingested and
imported pellets containing antihistamine - Antihistamine not a border controlled drug
- Crown case that applicant believed he was importing a border controlled drug - No
evidence as to which drug applicant believed it was - Proof of offence of attempt Criminal intent - More than preparatory conduct - Whether open to jury to convict of
attempting to import - Whether necessary for prosecution to identify particular drug Stay application refused - Britten v Alpogut [1987] VR 929 applied - Criminal Code
Act 1995 (Cth) s11.1, s307.3
Nelson, Sean (a pseudonym) v Director of Public Prosecutions (Cth)
Maxwell P, Redlich JA, and Priest JA
[2014] VSCA 217
11/09/2014
PLANNING - Heritage policy - Heritage considerations - Interpretation of planning
schemes - Statutory framework of the Planning and Environment Act 1987 (Vic) Demolition of heritage place - Application for permit under multiple permit controls Whether need to obtain permit under each control - Planning and Environment Act
1987 (Vic) s4(1), s4(2), s6(1), s7(1)-(4), s12(1), s12B, s29, s35, s47(1), s55, s60(1),
s61(1A) and s84B(1)-(2) - Boroondara Planning Scheme cl10.02, cl10.03, cl10.04,
cl15.03, cl20.01, cl20.02, cl21, cl21.07, cl22.05, cl43.01 and cl65 - National Trust of
Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society
Ltd [1976] VR 592 considered - Sweetvale Pty Ltd v Victorian Civil and
Administrative Tribunal (2001) 18 VAR 411 considered - Minister for Aboriginal
Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 and Sean Investments Pty Ltd v
MacKellar (1981) 38 ALR 363 applied - Application for leave to appeal allowed Appeal dismissed
Boroondara City Council v 1045 Burke Road P/L & Ors
Warren CJ, Santamaria JA, and Garde AJA
[2015] VSCA 27
10/03/2015
COMMERCIAL COURT
CONTRACT - Whether oral agreement between brothers as to ownership of theatre
restaurant business - Agreement for refurbishment of business and payment of
moneys in exchange for a 50 per cent interest in the business - Refurbishment
undertaken and monies paid - Concluded contract - Exclusion from business without
payment for interest in business - Contract breached.
DAMAGES - Assessment of contractual damages - Damages assessed as 50 per cent
of the value of business as at the date of breach of contract - Court ordered
independent business valuation report did not take into account unrecorded cash
takings - Evidence of significant unrecorded cash takings - Little evidence of quantum
of cash takings - Assessment of value of business made doing the best that could be
done with evidence - Court appointed valuer's opinion of value of business adjusted to
take into account unrecorded cash takings
Termine, Jorge Daniel & Ors v Witches in Britches P/L (ACN 123 679 694) & Ors
Ferguson JA
[2015] VSC 66
05/03/2015
Supreme Court of Victoria – Recent Judgments Bulletin No. 4/2015
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
Page - 3 -
CORPORATIONS - Application by liquidators managed investment schemes for
directions pursuant to s511 of the Corporations Act 2001 (Cth) - Liquidators
remuneration, costs and expenses - Directions sought under s50 of the Evidence Act
2008 - Whether remuneration, costs and expenses reasonable and proportionate to
services undertaken
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 Schedules 1 and 2: Bryant, Daniel Matthew,
Carson, Ian Menzies and Crosbie, Craig David (in their capacity as joint and
several Liquidators of Gunns Plantations Ltd (In liquidation) (Receivers &
Managers Appointed) (ACN 091 232 209) and 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 Schedules 1
and 2
Gardiner AsJ
[2015] VSC 102
20/03/2015
LIQUIDATION - Approval of liquidator's remuneration and expenses - Corporations
Act 2001 (Cth) s473(3)(b)(ii).
LIQUIDATION - Surplus of funds available for distribution - Rules fail to provide for
distribution of surplus as required by the Co-Operatives Act 1996 (Vic) - Surplus
funds distributed to RMIT University for the purpose of providing scholarships Power of the Court under Corporations Act 2001 (Cth) s479(3), s488
In the matter of Melbourne Co-operative Book Shop Ltd ABN 49 377 238 672 (in
liquidation) v Melbourne Co-operative Book Shop Ltd ABN 49 377 238 672 (in
liquidation)
Sifris J
[2015] VSC 69
06/03/2015
ARBITRATION - Enforcement of a foreign arbitral award - Whether arbitration dealt
with a difference not contemplated or falling outside submission to arbitration Arbitrability - Public policy - Natural justice - Comandate Marine Corp v Pan
Australia Shipping Pty Ltd (2006) 157 FCR 45 - TCL Air Conditioner (Zhongshan)
Co Ltd v Castel Electronics Pty Ltd (2014) 311 ALR 387 - International Arbitration
Act 1974 (Cth), s8(5)(d), s8(7)(a), s8(7)(b), s8(7A)(a), s8(7A)(b)
Van Der Garde BV, Giedo and Van Der Garde, Giedo Gijsbertus Gerrit v Sauber
Motorsport AG
Croft J
[2015] VSC 80
11/03/2015
COMMERCIAL & EQUITY DIVISION
COSTS - Whether order for indemnity costs appropriate - Claim by first plaintiff
hopeless and abandoned at commencement of trial - Claim by second plaintiff
unsuccessful because of late amendment by defendant - Offer of compromise Unreasonable time within which to accept offer
Between Tahiri, Bejtulla and Regreen Asset Holdings Australia P/L v Castricum
Brothers Australia P/L
Sifris J
[2015] VSC 67
06/03/2015
Supreme Court of Victoria – Recent Judgments Bulletin No. 4/2015
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
Page - 4 -
TAX - Land tax - Taxpayer alleged that assessment of duplicate property led to
overpayment of land tax - Overpayment discovered outside prescribed statutory
period for recovery - Taxpayer alleged moneys were paid under a mistake of law Whether taxpayer entitled to bring a common law restitutionary claim in
circumstances where statutory objection and other recovery procedures not utilised Whether mandamus available to compel Commissioner to exercise discretion to
amend land tax assessments and refund alleged overpayment - Land Tax Act 1958
(Vic) s19, s24A(1), s90AA, s92A.
LIMITATION OF ACTIONS - Whether common law action for recovery barred Whether action for mandamus barred - Whether 'reasonable diligence' in discovering
mistake - Limitation of Actions Act 1958 (Vic) s5(1)(a), s20A(1)(a), s27 - Land Tax
Act 1958 (Vic) s90AA(3), s90AA(4) and s90AA(8).
INTEREST - Whether compound interest available on overpaid moneys as part of
restitutionary relief - Whether simple interest available in the court's equitable or
statutory jurisdiction - Supreme Court Act 1986 (Vic) s58, s60
ACN 005 057 349 P/L (ACN 005 057 349) v Commissioner of State Revenue and:
ACN 005 057 349 P/L (ACN 005 057 349) v Commissioner of State Revenue
Sloss J
[2015] VSC 76
06/03/2015
COMMON LAW DIVISION
ADMINISTRATIVE LAW - Determination of panel of Building Appeals Board Panel member becoming unavailable before all matters before it decided - Whether
matters so far decided must be reconsidered by new panel - Whether second defendant
an adjoining owner - Whether Board had jurisdiction - Whether reasons adequate Whether failed to take into account a relevant consideration
Between Supple, Steven Jeffrey and Supple, Katarzyna v Buildings Appeals Board,
Coutts, Gerard, Maybin, Robert, Athanasiou, John
Kaye AJA
[2015] VSC 83
12/03/2015
ADMINISTRATIVE LAW - Judicial review - Order 56 Supreme Court (General
Civil Procedure) Rule 2005 - Medical panel - Whether the medical panel's reasons for
decision were adequate - Accident Compensation Act 1985 s65, s68 - Application
refused
McIntyre, Glenys Yvonne v Dr Fish, David & Ors
Zammit J
[2015] VSC 82
11/03/2015
Supreme Court of Victoria – Recent Judgments Bulletin No. 4/2015
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
Page - 5 -
CIVIL PROCEDURE - Foreign judgments - Application to enforce a judgment of the
United States District Court - Enforcement of foreign judgments at common law Whether default judgment is final and conclusive - Where judgment allegedly
procured by fraud - Divergence in English and Australian authority on whether fraud
provides a basis not to enforce a foreign judgment - Whether the foreign judgment is a
penal order - Whether punitive or exemplary damages constitute a penal sanction Whether compensatory and punitive or exemplary damages may be severed - Abuse
of process - Whether a claim of abuse of process may be invoked to prevent attempts
to re-litigate that which has, or should have been, litigated in earlier proceedings Summary judgment application - Civil Procedure Act 2010 (Vic) s61 and s63 Summary judgment granted
Doe, Jane v Howard, Linda and Howard, Russell
J Forrest J
[2015] VSC 75
06/03/2015
CONTRACTS - Set-off - Appeal from decision of Victorian Civil and Administrative
Tribunal - Fixed price contract for painting work - Cost of rectification exceeding
contract price - Tribunal member awarding painter difference between cost of
rectification and fair and reasonable contract price - Error of law
Havaylar, Hakan v Cagilgan, Huseyin Aveni
Kaye JA
[2015] VSC 91
17/03/2015
COSTS - Application by plaintiffs for leave to discontinue Part IV proceedings Application not opposed by defendants - Defendants seek costs of the proceeding on
an indemnity basis - Whether defendants' costs should be on a standard or indemnity
basis - Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 - Sidameneo (No 456) Pty
Ltd v Ward & Magarey [2011] VSC 559.
CALDERBANK OFFER - Rejection by plaintiffs of defendants' offer to settle
proceeding - Whether rejection was unreasonable in the circumstances - Supreme
Court (General Civil Procedure) Rules 2005, r26.08(4)(b) - Hazeldene's Chicken
Farm Pty Ltd (A.C.N 004 381 346) v Victorian Workcover Authority (No. 2) [2005]
VSCA 298
In the matter of Part IV of the Administration and Probate Act 1958: In the matter
of the will and estate of Mandie, David, deceased: Mandie, Ian Robert and Mandie,
Stephen Wayne v Danos, Evelyn and others (in their capacity as executor of the will
of Mandie, David, deceased)
[2015] VSC 55
10/03/2015
COSTS - Trial of proceedings - Supreme Court (General Civil Procedure) Rules 2005
Order 26 - Offer of compromise by plaintiff - Judgment for plaintiff more favourable
than offer - Whether plaintiff entitled to indemnity costs - Plaintiff not succeed on all
issues at trial - Whether disentitled to costs
Victorian Workcover Authority v The Australian Steel Company (Operations) P/L
Kaye JA
[2015] VSC 81
13/03/2015
Supreme Court of Victoria – Recent Judgments Bulletin No. 4/2015
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
Page - 6 -
EXECUTORS AND ADMINISTRATORS - Application by a co-executor pursuant to
r54.02 of the Supreme Court (General Civil Procedure) Rules 2005 - Costs Application successful in part - Entitlement of trustees to indemnification of property
for legal costs incurred in pursuing and defending legal proceedings - Relevance of
Civil Procedure Act 2010 (Vic) - Application of overarching obligations to trustees'
right to indemnify from trust property for legal costs - Relevance of offers of
compromise - Whether plaintiff had acted unreasonably in rejecting offers of
compromise
In the matter of Will and Estate of Peers, Peter Robert Nelson PETER, deceased:
Gillard, Beverley Joan (in her capacity as an Executor of the Will and Trustee of
the Estate of Peers, Peter Robert Nelson, deceased) v Mahons with Yuncken &
Yuncken (in its capacity as solicitors for the Executors of the Will and Trustee of
the Estate of Peers, Peter Robert Nelson, deceased) & Ors (according to the
schedule attached)
Daly AsJ
[2015] VSC 68
05/03/2015
JUDGMENTS, ORDERS AND DECLARATIONS - Finality of order - Subsequent
discovery by moving party that order sought and obtained was contrary to express
statutory provision - Reasons not capable of being rectified as an accidental slip or
omission - Necessity to have order rescinded - Applicability of slip rule - Exercise of
inherent jurisdiction of the Court - Order rescinded
Vinton, Ross (an infant who sues by his litigation guardian Vinton, Rosemary) v
Sim, Malcolm, Flower, Teresa Carson, James and State of Victoria (No 2)
Mukhtar AsJ
[2015] VSC 79
06/03/2015
LEASES - 99 year lease at nominal rent - Lease included option to purchase for
nominal consideration - Option to be exercised at any time within lease term - Breach
of lease - Whether lessee repudiated the lease - Whether breach sufficiently serious to
justify termination - Held: no repudiation and no right to terminate - Lessor's relief
limited to damages for breach - Progressive Mailing House Pty Ltd v Tabali Pty Ltd
(1985) 157 CLR 17; Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd
(1989) 166 CLR 623; Koompahtoo Local Aboriginal Land Council & Anor v Sanpine
Pty Ltd & Anor (2007) 233 CLR 115; Apriaden Pty Ltd v Seacrest Pty Ltd & Anor
(2005) 12 VR 319
Braham, Michael and Braham, Charis Quincey v Stephan, Anthony and Register of
Titles
Hargrave J
[2015] VSC 87
13/03/2015
MAGISTRATES' COURT - Appeal - Applicable principles - Magistrates' Court Act
1989, s109.
PRACTICE AND PROCEDURE - Supreme Court (General Procedure) Rules 2005,
Rule 58.10(8) - Appeal from decision of a Magistrate on a question of law - No
arguable case on appeal.
COSTS - Indemnity costs - Hopeless appeal
Romas, Melpomeni v Green, Michelle
Derham AsJ
[2015] VSC 95
19/03/2015
Supreme Court of Victoria – Recent Judgments Bulletin No. 4/2015
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
Page - 7 -
SUCCESSION, WILLS AND PROBATE - Costs of caveator - Where caveator
alleges lack of testamentary capacity, knowledge and approval and undue influence of
deceased - Where caveat withdrawn after first directions hearing - Where caveator
seeks costs to be paid by the estate of the deceased - Application refused
In the matter of the Will of Veca, Vincenza, deceased: Application by Veca, Anna
Maria and Michielin, Luisa
McMillan J
[2015] VSC 74
06/03/2015
TESTATORS FAMILY MAINTENANCE - Further provision awarded to plaintiff Where order for provision expressly provided where burden of plaintiff's provision
was to be borne - Where trustees sought to apportion estimated liabilities of the estate
against plaintiff's provision - Trustee's claim to rateable apportionment against
plaintiff's further provision rejected
In the Matter of Part IV of the Administration and Probate Act 1958
In the Matter of the estate of Thompson, Christina Maguire, deceased
Thompson, Lorraine Dawn, Thompson, Kenneth James, Thompson, Dianne Janine
v MacDonald, Malcolm Bruce (who is sued as executor of the will of the deceased),
MacDonald, Linda (who is sued as executrix of the will of the deceased), Pabst,
Suzanne Joy
McMillan J
[2015] VSC 93
17/03/2015
WILLS AND ESTATES - Charitable trust established by will - Special purpose trust
for establishing, equipping and maintaining a hospital to be known by a specific name
- Subsequent re-location of hospital established under the will to new hospital
buildings - Renaming of hospital buildings - Whether trust moneys able to be applied
toward new hospital under the terms of the will - Whether cy pres application
necessary
In the matter of the Will and Estate of Spatt, Albert deceased: In the matter of
section 2 of the Charities Act 1978: Equity Trustees Limited v Attorney General for
the State of Victoria and Jewish Care (Victoria) Inc
Hargrave J
[2015] VSC 73
10/03/2015
CRIMINAL DIVISION
CRIMINAL LAW - Bail - Exceptional circumstances - Not an unacceptable risk Terminally ill applicant - Charged with murder - Bail granted - Bail Act 1977 (Vic)
In the matter of the Bail Act 1977: In the matter of an application for bail by
Domotor, Steven
Beale J
[2015] VSC 100
19/03/2015
Supreme Court of Victoria – Recent Judgments Bulletin No. 4/2015
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
Page - 8 -
CRIMINAL LAW - Sentencing - Insider trading - Abuse of public office - Dealing in
identification information using carriage service - Dealing in proceeds of crime
A$100,000 or more - Very serious instances of some offences - Guilty pleas - General
deterrence and denunciation
The Commonwealth Director of Public Prosecutions v Hill, Christopher Russell
and Kamay, Lukas James
Hollingworth J
[2015] VSC 86
17/03/2015
PRACTICE COURT
ADMINISTRATIVE LAW - Mental Health - Revocation of Community Treatment
Order made under Mental Health Act 2014 (Vic) - Whether revocation order valid Validity of subsequent Inpatient Assessment Order and Inpatient Temporary
Treatment Order - Existence of changed circumstances - Improper purpose Irrelevant consideration - Unreasonableness - Incompatibility with human rights Mental Health Act 2014 (Vic) s11(1)(a), s11(2), s30, s46, s61; Charter of Human
Rights and Responsibilities Act 2006 (Vic) s21
TC v UD and UE and Monash Health
Ginnane J
[2015] VSC 92
13/03/2015
CRIMINAL LAW - Restraining order - Property - Application to vary order for
payment of legal and living expenses - Whether variation order could be made
enabling payment of legal expenses - Confiscation Act 1997 s14, s20, s21, s22, s22A,
s26, s27, s143
In the matter of an application by the Director of Public Prosecutions for a
restraining order and In the matter of an application for a variation of the
restraining order: Siddique, Mohamed Amanulal and Siddique, Irshad Begum v
Director of Public Prosecutions [DPP] for Victoria
Ginnane J
[2015] VSC 99
05/03/2015
LEGAL PROFESSION AND PRACTICE - Roll of barristers and solicitors admitted
to practice - Motion for removal of name of solicitor from roll - Application for
removal by such solicitors - Power of single judge to make order under Legal
Profession Act 2004 (Vic)
Bektas, Sammy v McGarvie, Michael (in his capacity as Legal Services
Commissioner)
Kaye JA
[2015] VSC 78
27/02/2015
Supreme Court of Victoria – Recent Judgments Bulletin No. 4/2015
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
Page - 9 -