SUPREME COURT OF VICTORIA
RECENT JUDGMENTS BULLETIN
ISSUE NO. 3/2015
Below is a list of Victorian Supreme Court unreported judgments received in the Library from
23 February 2015 to 6 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 .................................................................. 5
COMMON LAW DIVISION .................................................................................... 6
CRIMINAL DIVISION ............................................................................................. 8
COURT OF APPEAL
APPEAL - PRACTICE AND PROCEDURE - Application by LS by summons for
extension of time and for leave to appeal against order declaring him to be a vexatious
litigant - Order at trial appointing SA to be litigation guardian of LS - Application by
LS in own name - No reference to SA - Having regard to order of appointment and
context, SA did not continue as litigation guardian of LS beyond trial - Appointment
of SA as litigation guardian in respect of appellate process not possible having regard
to state of material before Court - Summonses seeking to remedy procedural defects
dismissed - Counsel instructed only by SA - No appearance by or for LS - Application
by summons by LS dismissed without adjudication on merits. Supreme Court
(General Civil Procedure) Rules 2005 (Vic) r15.03(3). Kay v Attorney-General (Vic)
(2000) 2 VR 436
Slaveski, Ljupco v Attorney-General (Vic)
Warren CJ, Ashley JA, and Tate JA
[2015] VSCA 31
04/03/2015
COSTS - Application by unsuccessful appellant for costs - Application by
unsuccessful appellant for indemnity in relation to costs - Appellant unsuccessful on
appeal and respondent unsuccessful on notice of contention - Whether costs should
take into account success on separate issues - Whether proceeding akin to a derivative
proceeding - Discretion as to costs - Ordered that there be no order as to costs
Falkingham, William v Peninsula Kingswood Country Golf Club Ltd (ACN 004 208
075)
Warren CJ, Whelan JA, and Beach JA
[2015] VSCA 30
27/02/2015
Supreme Court of Victoria – Recent Judgments Bulletin No. 3/2015
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
Page - 1 -
CRIMINAL LAW - Criminal trial - Cross-examination of the accused - Limits upon
cross-examination of an accused - Evidence - Jury directions - No objection taken at
trial - Judge's role in conduct of trial - Role of counsel in conduct of trial - Substantial
miscarriage of justice - Concession by Crown - Appeal allowed - Convictions quashed
- Retrial ordered
Skinner, Daniel (a pseudonym) v The Queen
Weinberg JA, Priest JA, and Beach JA
[2015] VSCA 26
24/02/2015
CRIMINAL LAW - Evidence - Coincidence evidence - Sexual offences committed
against multiple complainants - Severance - Whether evidence of one complainant
cross-admissible with evidence of other complainants - Judge's charge on coincidence
evidence - Velkoski v The Queen [2014] VSCA 121, applied - Evidence Act 2008,
s98 and s101
Cox, Brian v The Queen
Weinberg JA, Priest JA, and Beach JA
[2015] VSCA 28
26/02/2015
CRIMINAL LAW - Sentence - Recklessly causing serious injury - Criminal damage Reckless conduct placing another person in danger of serious injury - Make threat to
kill - Assault police - Related summary offences - Appellant 45 years of age, married
with four children, employed and of previous good character - No prior convictions Whether sentence of imprisonment of 3 years and 3 months, with non-parole period of
2 years manifestly excessive - Sentence manifestly excessive in light of appellant's
previously unblemished record - Appeal allowed - Appellant resentenced to
imprisonment for 4 months and community correction order of 3 years duration
Marocchini, Sergio v The Queen
Ashley JA and Beach JA
[2015] VSCA 29
25/02/2015
CRIMINAL LAW - Sentence - Trafficking in a drug of dependence - Large
commercial quantity - Plea of guilty - Timing of plea of guilty - Remorse - Sentence
of 12 years with non-parole period of 9 years not manifestly excessive - Sentence of 8
years and 6 months with non-parole period of 5 years and 6 months not excessive Parity - Applications for leave to appeal refused
Pham, Thanh Hai v The Queen
Osborn JA, Priest JA, and Beach JA
[2015] VSCA 34
06/03/2015
CRIMINAL LAW - Sentence - Trafficking in a drug of dependence - Large
commercial quantity - Prior conviction for trafficking drug of dependence - Sentence
of 11 years and 6 months not excessive - Non-parole period of 8 years and 6 months
not excessive - Not reasonably arguable that a different sentence should have been
passed - Application for leave to appeal refused
Mong, Khai Sin v The Queen
Osborn JA, Priest JA, and Beach JA
[2015] VSCA 33
06/03/2015
Supreme Court of Victoria – Recent Judgments Bulletin No. 3/2015
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
Page - 2 -
COMMERCIAL COURT
ADMINISTRATION AND PROBATE - Part IV - Testators' Family Maintenance Application for provision for the proper maintenance and support where no grant of
probate of deceased's Will in Victoria - General grant of probate of deceased's Will in
United Kingdom - Principal asset of deceased's estate a right to due administration of
mother's Will in United Kingdom - Asset of mother's estate real property in United
Kingdom - Proceeds of administration of mother's Will (sale of real property) paid to
executrix's solicitors in United Kingdom and thence paid to executrix, who is also sole
beneficiary under deceased's Will - Whether jurisdiction available to commence
application under Part IV - whether proceeding a nullity - No jurisdiction without
grant of probate or reseal of United Kingdom probate - Administration and Probate
Act 1958 (Vic), s6, s90, s91, s93, s97, s99 & s99A.
PRACTICE AND PROCEDURE - Application to dismiss proceeding as disclosing no
cause of action - Application for summary judgment by defendant - Whether
appropriate for summary dismissal - Supreme court (General Civil Procedure) Rules
2005 (Vic), r23.01(1)(a) and r23.03; Civil Procedure Act 2010 (Vic), Part 4.4
In the matter of Part IV of the Administration and Probate Act 1958: In the matter
of the Will and Estate of Hall, George Nicholas Graham (deceased): O'Brien,
Lauren Frances v Hall, Olwen Mary
Derham AsJ
[2015] VSC 52
27/02/2015
BUILDING AND CONSTRUCTION LAW - Building and Construction Industry
Security of Payment Act 2002 (Vic) (the 'BCISP Act') - Payment claim - Whether
respondent's response a valid payment schedule under s15 of the BCISP Act Requirements of s15 of the BCISP Act - Claimant company seeks judgment under s16
of the BCISP Act - Judgment not entered where a valid payment schedule submitted
within time.
CONSTITUTIONAL LAW - Claimant company in liquidation - Respondent
company has potential cross-claims and set-off defences against claimant company s109 of the Constitution Act (Cth) - Inconsistency of State legislation (s16 of the
Building and Construction Industry Security of Payment Act 2002 (Vic)) with a law
of the Commonwealth (s 553C of the Corporations Act) - Commonwealth legislation
prevails - Entry of judgment pursuant to s16 of the Building and Construction
Industry Security of Payment Act 2002 (Vic) precluded.
CORPORATIONS LAW - Set-off provisions for insolvent companies under s553C Whether notice of insolvency precludes set-off under s553C(2) - Relevant time that
creditor must have such notice
Facade Treatment Engineering Ltd v Brookfield Multiplex Constructions P/L
Vickery J
[2015] VSC 41
24/02/2015
CONTRACT - Contract for expert determination - Provision for calculation of share
price - Dispute resolution provision - Alleged errors - Whether expert determination
complied with contract - Whether contract varied by letter of instruction to expert
Cox, Peter Miller and others according to the Schedule of Plaintiffs v Wettenhall,
Ronald and Sweett Group (Australia) P/L (ACN 130 025 204)
Judd J
[2015] VSC 38
23/02/2015
Supreme Court of Victoria – Recent Judgments Bulletin No. 3/2015
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
Page - 3 -
COSTS - Subpoenas - Subpoena issued to non-party - Objection to subpoena - Costs
on an indemnity basis - Breach of overarching obligations - Court power to sanction Sections 19, 20, 23, 24 and 29 Civil Procedure Act 2010 (Vic)
Naumovski, Vlado and Ors v Ugrinovski, Robert and Ors
Zammit J
[2015] VSC 49
25/02/2015
FREEZING ORDER - Concession by defendants that plaintiffs have good arguable
case for both claim in debt and relief under s172 of the Property Law Act 1958 arising
from transfer of land with intent to defraud creditors - Discretionary factors
considered - Delay by plaintiff in making application - Whether plaintiffs' undertaking
as to damages sufficiently secured - Freezing order made - Ancillary orders made to
ascertain information as to assets relevant to freezing order - Supreme Court (General
Civil Procedure) Rules 2005, O 37A - Deputy Commissioner of Taxation v AES
Services (Aust) Pty Ltd [2009] VSC 418 applied
Between Choice Planning P/L (ACN 103 233 343) & Anor (According to the
attached Schedule) v Mider @ Franklin Street P/L (ACN 135 155 234) & Ors
(According to the attached Schedule): Between Mider @ Franklin Street P/L (ACN
135 155 234) (Plaintiff by Counterclaim) v Choice Planning P/L (ACN 103 233
343) & Anor (According to the attached Schedule) (Defendants by Counterclaim)
Hargrave J
[2015] VSC 59
27/02/2015
PRACTICE AND PROCEDURE - Application to set aside judgment - Supreme Court
(General Civil Procedure) Rules 2005 (Vic) r49.02 - Defendants failed to attend trial Reasonable explanation - Assessment of merits - Civil Procedure Act 2010 (Vic) s7,
s9, ss47-53, s68 - Application refused - Assessment of damages and trial of
defendants claim for restitution under the Sale of Land Act 1962 (Vic)
Weerasinghe, Janaka Mandula (and another according to the Schedule) v Jamaly,
Nematulla (and others according to the attached Schedule)
Judd J
[2015] VSC 45
23/02/2015
PRACTICE AND PROCEDURE - Third party procedure - Default by third party application by defendant to enter judgment against third party following settlement of
principal proceeding with plaintiff - Plaintiff's judgment not satisfied - Leave required
- Factors influencing discretion considered - s7, s9 Civil Procedure Act 2010,
r11.11(1) Supreme Court (Civil Procedure Rules) 2005
Permanent Custodians Ltd v Petrovska, Mileva
Dixon J
[2015] VSC 42
20/02/2015
Supreme Court of Victoria – Recent Judgments Bulletin No. 3/2015
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
Page - 4 -
COMMERCIAL & EQUITY DIVISION
AMENDMENT OF PLEADING - Leave to file and serve amended writ and
statement of claim - Supreme Court (General Civil Procedure) Rules 2005 (Vic)
r36.04 - Estate agent claim for unpaid commission - Failure to comply with the
requirements for setting out commission in the agreement - Estate Agents Act 1980
(Vic) s49A - Application to amend pleading to claim rectification - Whether proposed
amended pleading is futile because all claims for commission are barred by Estate
Agents Act 1980 (Vic) s50 - Whether s50 of the Estate Agents Act precludes the court
from granting leave to plead rectification - Application for leave to file and serve
amended pleading granted
Oliver Hume (Australia) P/L (ACN 068 318 712) v Land Source Austraila P/L
(ACN 132 726 151)
Cameron J
[2015] VSC 77
06/03/2015
SECURITY FOR COSTS - Corporations Act 2001 (Cth) s1335(1) - Supreme Court
(General Civil Procedure) Rules 2005 (Vic) r62.02 - Security for costs already
awarded - Revisit and increase previous order for costs - Overlap between the current
application for security for costs and the previous order - Overlap between the
plaintiff's claim and defendant's counterclaim - Plaintiff's prospects of success Voluntary commercial relationship - Application for security for costs granted
EWC Payments P/L & Ors (according to the attached schedule) v Commonwealth
Bank of Australia (ACN 123 123 124)
Cameron J
[2015] VSC 53
03/03/2015
TESTATOR'S FAMILY MAINTENANCE - Application under Part IV of the
Administration and Probate Act 1958 - Deceased appointed his parents as trustees and
administrators of his Estate - Litigation guardian concerned that trustees would not
make distributions from the Estate - No evidentiary basis for litigation guardian's
concern.
LEGAL PRACTITIONERS - Whether plaintiffs' solicitors should be liable for costs
of proceeding - No proper legal or factual basis for commencing proceedings Administration and Probate Act 1958 s91 - Trustee Act 1958 s41, s48 - Overarching
obligations of practitioners - Duties of legal practitioners to court - Civil Procedure
Act 2010 s18, s24, s29
In the matter of Part IV of the Administration and Probate Act 1958: In the matter
of the Will and Estate of Gibb, Christopher Francis, deceased: Gibb, Darcy Ryder
and Gibb, Stella Rose (minors who bring this proceeding by their litigation
guardian, McAuliffe, Megan Jane) v Gibb, David Seth Hazelwood and Gibb,
Valerie Isabel (as executors of the will of Gibb, Christopher Francis, deceased)
McDonald J
[2015] VSC 35
23/02/2015
Supreme Court of Victoria – Recent Judgments Bulletin No. 3/2015
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
Page - 5 -
TRUSTS - Transfer of funds by plaintiff to first defendant contributing towards
purchase of a residential property - Nature of plaintiff’s interest in the property - First
defendant and second defendant registered on title - Plaintiff not registered on title Whether transfer of funds operated as a gift, a loan or a payment of money to be held
on trust to acquire a joint interest in the property - Whether the funds were repaid Whether the plaintiff's interest in the property was held on a resulting or constructive
trust - Plaintiff holds a 50% interest in the property as a tenant in common - Plaintiff's
interest held on resulting trust by the first defendant and the second defendant Calverley v Green (1984) 155 CLR 242 - Ong & Anor v Lottwo Pty Ltd (in liq)
(2013) 304 ALR 651 - Brown v New South Wales Trustee and Guardian [2012]
NSWCA 431 - Delehunt v Carmody (1986) 161 CLR 464.
REAL PROPERTY - Plaintiff and first defendant registered as joint proprietors of
subsequent property - Nature of plaintiff's interest in the property - Whether plaintiff
made financial contributions to the purchase and improvement of the property Whether plaintiff holds a beneficial interest in the property together with first
defendant in equal shares - Whether plaintiff holds interest subject to a resulting trust
in favour of the first defendant and second defendant - Whether plaintiff holds interest
as security for an obligation to repay gift or loan amount - Whether signed transfer of
land form is valid - Plaintiff holds interest in the property with the first defendant as a
tenant in common in equal shares of 50% - Plaintiff's interest not subject to any equity
in favour of the second defendant - Instruments Act 1958
CREDIBILITY - Issues concerning credibility of key witnesses
Kalam, Jawad v Kalam, Akhtar, Kalam, Shamsha, The Register of Titles and
Kalam, Akhtar (Plaintiff by First Counterclaim) Kalam, Shamsha (Plaintiffs by
Second Counterclaim) v Kalam, Jaward, The Register of Titles
Rush J
[2015] VSC 72
04/03/2015
COMMON LAW DIVISION
ACCIDENT COMPENSATION ACT - Section 138 indemnity proceeding - Section
138(3) Formula - Assessment of Factor A and of Factor X - Determination of liability
- Extent to which defendant liable - Break in the chain of causation - Intervening
events - forseeability
Wesfarmers Ltd v Linfox Australia P/L
J Forrest J
[2015] VSC 63
05/03/2015
ACCIDENT COMPENSATION - Injury to worker - Compensation paid by Authority
- Entitlement to indemnity from defendant - Whether compensation paid was in
respect of injury claimed against the defendant - Slipping accident on defendant's
premises - Further injury from performing work on defendant's premises - Whether
injury caused in circumstances creating liability in defendant - Assessment of
indemnity
Victorian Workcover Authority v The Australian Steel Company (Operations) P/L
(ACN 069 426 955)
Kaye JA
[2015] VSC 58
03/03/2015
Supreme Court of Victoria – Recent Judgments Bulletin No. 3/2015
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
Page - 6 -
ADMINISTRATIVE LAW - Burgess & Anor v Director of Housing & Anor [2014]
VSC 648 Ruling - Final orders and declarations - Whether to make declarations of
invalidity and unlawfulness in respect of the Director's notice to a tenant of residential
premises - Whether to make an order that the Director place a copy of orders on its
database - No remaining legal effect attached to notice to vacate - Whether
declarations sought necessary to protect first plaintiff's exposure to reputational
damage - Speculative reputational damage - Declaration carries risk of confusion Orders made without the relevant declarations
Burgess, Ebony and Godwin, Carlton v Director of Housing & The Victorian Civil
and Administrative Tribunal
Macaulay J
[2015] VSC 70
04/03/2015
COURT OF DISPUTED RETURNS - Petition disputing validity of election of a
member of the Legislative Assembly - Alleged production of misleading and
deceptive electoral material - Petitioner self-represented - Whether Respondent should
be granted leave to be represented by an Australian legal practitioner - Electoral Act
2002 (Vic), s126, s127, s128(1) - Civil Procedure Act 2010 (Vic), s7(1), Part 4.2
Fidge, Julian v McCurdy, Timothy
J Forrest J
[2015] VSC 43
20/02/2015
JUDICIAL REVIEW AND APPEALS - Procedural fairness - Appeal from order of
Associate Justice dismissing an application for judicial review of a decision of the
Magistrates' Court of Victoria - Whether an adjournment must be formally requested No point of principle - Supreme Court (General Civil Procedure) Rules 2005, r56.01
Hammill, Raymond v Campbell, Kym and Magistrates' Court of Victoria
McMillan J
[2015] VSC 54
27/02/2015
JUDICIAL REVIEW - Costs orders - Plaintiff's costs disallowed on basis that items
not recoverable under Scale G of Magistrates' Court Scale of Costs - Counsel's fees
disallowed or reduced because insufficient particulars provided to allow for
assessment of whether costs reasonably incurred - Denial of procedural fairness - No
issue raised in proceedings that costs would be disallowed for items not recoverable
under Scale G - No issue raised that counsel's fees not sufficiently particularised to
allow for assessment of whether amounts claimed reasonably incurred - Error on the
face of the record.
COSTS - Whether plaintiff's entitlement to costs should be reduced where the amount
in dispute remains largely unaffected by grounds of review upheld - Supreme Court
Act 1986 s24; Magistrates' Court Act 1989 s131
Kuek, Gabriel (Trading as ACCESS LAW) v Victoria Legal Aid and Magistrates'
Court of Victoria
McDonald J
[2015] VSC 48
03/03/2015
Supreme Court of Victoria – Recent Judgments Bulletin No. 3/2015
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
Page - 7 -
NEGLIGENCE - Workplace injury - Unloading from rear of a truck operated by third
party - Whether employer breached its duty of care - Whether third party breached its
duty of care - Apportionment between defendants - Contribution from another
tortfeasor - Whether employer's conduct after the injury was negligent and caused
further damage - Wrongs Act 1985 (Vic), Part IV
Zealley, Michelle v Liquorland (Australia) P/L and Linfox Australia P/L
J Forrest J
[2015] VSC 62
05/03/2015
PRACTICE AND PROCEDURE - Application for leave to inspect a divorce file
pursuant to Rule 28.05(2)(b) of the Supreme Court (General Civil Procedure) Rules
2005 (Vic).
In the matter of Proceeding No. 3159 of 1970: In the matter of an Application
Pursuant to Rule 28.05(2)(b) of the Supreme Court (General Civil Procedure) Rules
2005 (Vic)
J Forrest J
[2015] VSC 61
02/03/2015
PRACTICE AND PROCEDURE - Vexatious litigant - General litigation restraint
order - Whether leave to commence proceeding should be granted - Test to be applied
- Supreme Court Act 1986, s21 - Vexatious Proceedings Act 2014, s54-56, s63, s91.
ADMINISTRATIVE LAW - Application for a declaration that the decision made by
Corrections Victoria regarding the general prohibition on smoking in Victorian
prisons is ultra vires - Whether the decision was made for an improper purpose Scope of the power under s20(1), s21(1) and s112 of the Corrections Act 1986 Corrections Amendment (Smoke-Free Prisons) Act 2014
Knight, Julian v Minister for Corrections
McMillan J
[2015] VSC 56
05/03/2015
PROCEDURE - Adjournment of trial - Delay in issuing subpoenas - Foreign evidence
- Fair trial - Trial procedure - Civil Procedure Act 2010 (Vic)
Tamaresis, Paraskevi v CSR Limited
J Forrest J
[2015] VSC 47
23/02/2015
CRIMINAL DIVISION
CRIMINAL LAW - Sentencing - Defensive homicide (2 counts) - Causing serious
injury recklessly (1 count) - Stabbing - Plea of guilty
The Queen v Ball, Aaron Jamie
Curtain J
[2014] VSC 669
23/04/2014
Supreme Court of Victoria – Recent Judgments Bulletin No. 3/2015
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
Page - 8 -
PRACTICE AND PROCEDURE - Application for interlocutory injunction - Decision
by defendant to prevent first plaintiff's greyhound participating in race - Decision
based on retrospective rules introduced after greyhound’s nomination accepted Construction of rules - Whether first plaintiff denied procedural fairness
Bradley Canty & Ors v Greyhound Racing Victoria
Kaye JA
[2015] VSC 71
27/02/2015
Supreme Court of Victoria – Recent Judgments Bulletin No. 3/2015
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
Page - 9 -