SUPREME COURT OF VICTORIA
RECENT JUDGMENTS BULLETIN
ISSUE NO. 17/2014
Below is a list of Victorian Supreme Court unreported judgments received in the Library
since 25 August 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 ................................................................................. 7
Common Law Division ............................................................................................ 10
Criminal Division..................................................................................................... 13
COURT OF APPEAL
ACCIDENT COMPENSATION - Workplace injury - Jury Trial - Finding of
contributory negligence - Whether finding open upon the evidence - Open to conclude
appellant failed to keep a proper look out - Appeal dismissed
Wood, Barbara v John Danks Pty Ltd (ACN 004 037 049)
Ashley JA, Whelan JA, and Santamaria JA
[2014] VSCA 196
04/09/2014
ADMINISTRATIVE LAW - Appeal against suspension and cancellation of Wildlife
Demonstrator Licence held by the applicant under Wildlife Act 1975 - Whether
Tribunal erred in exercising its discretion to affirm the respondent's suspension and
cancellation decisions - Failure to take into account the gravity of the applicant's
breaches of licence conditions - Public snake demonstrations - Whether barriers use
complied with licence conditions - Expertise of applicant - Safety of applicant's
devonomised snakes - Effect of licence cancellation on applicant's livelihood - Appeal
allowed
Hoser, Raymond v Department of Sustainability and Environment
Redlich JA, Tate JA, and Santamaria JA
[2014] VSCA 206
05/09/2014
APPEAL - Leave - Amendment to statement of claim - No defence yet filed - Facts
and context not yet known - Disputed issue of construction of Corporations Act 2001
(Cth), s729(1) - Group proceeding - Managed by judge - Leave refused
RSD Chartered Accountants v Bolitho, Laurence John
Nettle JA, Ashley JA, and Hansen JA
[2014] VSCA 186
21/08/2014
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APPEALS - Application for leave to appeal against decision of Victorian Civil and
Administrative Tribunal - Whether grounds arguable - Whether grounds raise issues
of general importance - Specific errors of law with respect to adequacy of Tribunal's
reasons conceded by respondent - Whether concession properly made - Matter
remitted for rehearing
Tuari, Adrian v Transport Accident Commission
Osborn JA, Beach JA, and Garde AJA
[2014] VSCA 203
03/09/2014
CONTRACT and ADMINISTRATIVE LAW - Appeal against decision refusing
application for review of decision of First Respondent - Where mandatory dispute
resolution scheme established by Corporations Act 2001 (Cth), s912A - Appropriate
standard of review of a decision to exclude - Construction of Terms of Reference for
mandatory dispute resolution scheme - Whether decision not to exercise power to
exclude Wednesbury unreasonable - Australian Football League v Carlton Football
Club Ltd [1998] 2 VR 546 and Mickovski v Financial Ombudsmen Services Ltd
(2012) 36 VR 456 applied
Cromwell Property Securities Limited (ACN 079 147 809) (As responsible entity of
the Cromwell Property Fund) v Financial Ombudsman Service Limited (ACN 131
124 448), Radford, Peter and Radford, Robyn
Warren CJ, Tate JA, and Osborn JA
[2014] VSCA 179
28/08/2014
CRIMINAL LAW - Appeal against conviction - Offence of omitting or authorising
the omission of a matter without which a document lodged with ASIC is known to be
misleading in a material respect, contrary to Corporations Act 2001 (Cth), s1308(2) Whether verdict was unreasonable or could not be supported having regard to the
evidence - Evidence was sufficient to enable the jury to find beyond reasonable doubt
that the appellant had committed the criminal act with the requisite criminal intention
- Hypotheses consistent with innocence upon which the appellant relied were so farfetched that the jury was entitled to reject them altogether - Appeal dismissed
Lewis, James Stephen v The Queen
Maxwell P, Weinberg JA, and Kyrou JA
[2014] VSCA 188
26/08/2014
CRIMINAL LAW - Appeal - Conviction - Kidnapping, false imprisonment and
intentionally causing injury - Jury directions - Whether directions about 'background'
or 'context' invited propensity or tendency reasoning by jurors - No substantial
miscarriage of justice - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Leave to appeal - Jury - Apprehended bias
- Whether juror overheard accused at cafe - Whether judge investigated adequately Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Kidnapping, false imprisonment and
intentionally causing injury - Total effective sentence nine years and six months'
imprisonment, non-parole period seven years - Whether manifestly excessive - Parity
- Whether identical sentences adequately reflected youth and rehabilitation of younger
applicants - Procedural fairness - Psychologist's report - Judge's assessment of
applicant more favourable than report - Whether finding reasonably anticipated Younger applicants re-sentenced - Eight years' imprisonment, non-parole period five
years and six months
Hanna, Mike v The Queen; Mohamed, Mohamed v The Queen; Mohamed, Ahmed
v The Queen
Maxwell P, Neave JA, and Priest JA
[2014] VSCA 187
26/08/2014
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CRIMINAL LAW - Appeal - Conviction - Rape - Consent - Free agreement Accused's awareness that the complainant was not, or might not, be consenting Incriminating conduct - Lies as incriminating conduct - Whether accused's statements
relied upon were merely a denial of the Crown case - Jury directions - Whether jury
had to be unanimous as to whether they were satisfied beyond reasonable doubt either
that the complainant did not consent, or that the complainant was so affected by
alcohol or another drug as to be incapable of freely agreeing - Whether substantial
miscarriage of justice - Jury Directions Act 2013 (Vic), s22 and s23 - Crimes Act
1958 (Vic), s36 and s37AA
Rana, Nitin Singh v The Queen
Ashley JA and Beach JA
[2014] VSCA 198
04/09/2014
CRIMINAL LAW - Appeal - Conviction - Sexual penetration of child, gross
indecency and indecent assault - Adequacy of judge's charge - Trial judge's
responsibility to identify real issues and summarise relevant evidence - Whether
defence case and evidence adequately summarised - Central issue was reliability of
complainants - Jury charge sufficient - R v AJS (2005) 12 VR 563 applied - Whether
verdict unsafe and unsatisfactory - Reasonable jury not bound to have doubt - R v
Klamo (2008) 18 VR 644, Greensill v The Queen (2012) 37 VR 257 applied Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Sexual penetration of child, gross
indecency and indecent assault - Limits on cross-examination - Judge's obligation to
manage proceeding - Collateral evidence rule - Issues going to complainant's
credibility - Whether defence unfairly constrained - Limits appropriate - No
unfairness - Papazoglou v The Queen (2010) 28 VR 644 applied.
CRIMINAL LAW - Appeal - Conviction - Trial - Witnesses - Prosecutor's obligation
to call - Applicant's sons said to have been present when offences committed Substantial time between offending and trial - Younger son had no recollection - Elder
son had given evidence at earlier trial - No relevant recollection - Prosecution elected
not to call either son - Both witnesses called by defence - Whether prosecution's
decision led to miscarriage of justice - No misuse by prosecution of opportunity to
cross-examine - No miscarriage of justice.
CRIMINAL LAW - Appeal - Conviction - Evidence - Tendency evidence - Two
complainants - Whether evidence cross-admissible - Whether significant probative
value - Whether collusion reasonably possible - No evidence of collusion - No
miscarriage of justice - Evidence Act 2008 s97, s101.
CRIMINAL LAW - Appeal - Conviction - Jury - Requirements of jury trial - Juror's
oath - Sufficiency of jury deliberations - Majority verdicts - Perseverance direction Scope of 'exclusionary rule' - Note from jury to judge - One juror said not to be
participating in deliberations - Whether individual juror required to participate in
collective deliberation - Jury resumed deliberation after direction - No miscarriage of
justice - Smith v Western Australia (2014) 250 CLR 473, Black v The Queen (1993)
179 CLR 44 applied - Juries Act 2000 s 46(2) and sch 3
Papazoglou, Athanasios v The Queen
Maxwell P, Weinberg JA, and Priest JA
[2014] VSCA 194
02/09/2014
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CRIMINAL LAW - Appeal - Sentence - Drug offences - Cultivation - Applicants
pleaded guilty - Co-offender sentenced by different judge - Whether unjustified
disparity between sentences - parity principle - Whether trial judge erred by failing to
adequately take factors into consideration when sentencing - Whether trial judge had a
basis to infer expectation of reward for criminal conduct of the applicants - Whether
sentences are manifestly excessive - Whether a co-offender's lenient sentence is a
relevant factor in assessing an applicant's sentence - Cultivation simpliciter Cultivation commercial - Range of sentences - Application for leave to appeal granted
- Appeal allowed - Appellants re-sentenced
Bernath, Aaron v The Queen; Gauci, Darren v The Queen; Brown, Callan v The
Queen
Neave JA, Priest JA, and Beach JA
[2014] VSCA 195
03/09/2014
CRIMINAL LAW - Appeal - Sentence - Drug offences - Importation of marketable
quantity of border controlled drug - Appellant was courier - Plea of guilty - Prior
convictions but limited relevance - Sentence of 8 years 6 months, non-parole period of
6 years - Whether manifestly excessive - Available sentencing range informed by
current sentencing practices - Comparable cases - Quantity-based sentencing regime Whether quantity imported significant indicator of offence seriousness - Basis of
quantitative comparison - Interstate sentences markedly heavier - Sentence
inconsistent with Victorian sentencing practices - Appeal allowed - Resentenced to 6
years with non-parole period of 4 years - Criminal Code Act 1995 (Cth) s 307.2(1)
Pham, Vu Lang v The Queen
Maxwell P, Osborn JA, and Kyrou JA
[2014] VSCA 204
05/09/2014
CRIMINAL LAW - Application for leave to appeal against sentence - Appeal Totality - Cumulation of sentences - Appellant sentenced as serious offender under
Sentencing Act 1991 (Vic), s6E - Manifest excess - Appellant resentenced - Form of
sentence - Date of commencement of sentence - Sentencing Act 1991 (Vic), s6E - R v
Jennings [1999] 1 VR 352
Barbat, Brett v The Queen
Ashley JA and Beach JA
[2014] VSCA 202
04/09/2014
CRIMINAL LAW - Application for leave to appeal - Appeal - Intentionally causing
serious injury - Domestic violence - One charge embracing repeated assaults over ten
hour period - Evidence of assaults preceding charged offence admitted for contextual
purposes - 24 year delay between offending and sentence - Delay in part attributable
to victim's fear and trauma and in part attributable to delay in course of investigation Offender's rehabilitation in interim - Plea of guilty - Remorse - Maximum penalty at
time of offending, 15 years' imprisonment - Sentence of five years' imprisonment with
two and a half years' non-parole period - Agreed summary of the facts referable to
offending - Whether judge went beyond summary in sentencing offender - Whether
judge erred in holding that general deterrence was of importance as a sentencing
consideration - Whether sentence manifestly excessive - Leave to appeal granted, but
appeal dismissed - R v Schwabegger [1998] 4 VR 649, R v Toomey [2006] VSCA 90
considered
Curypko, David Mark v The Queen
Ashley JA and Neave JA
[2014] VSCA 192
29/08/2014
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CRIMINAL LAW - Conviction - Evidence - Opinion evidence - Lay opinion - Expert
evidence - Ad hoc expert - Specialised knowledge based on training, study or
experience Basis rule - Identification - Identification evidence - Voice identification Jury directions - Conduct of trial - Application for leave to appeal against conviction
refused - Evidence Act 2008 (Vic), s76, s78 and s79.
CRIMINAL LAW - Sentence - Blackmail - Aggravated burglary - Armed robbery Recklessly causing injury - Whether sentences manifestly excessive - Totality Whether orders for cumulation excessive - Application for leave to appeal against
sentence refused
Kheir, Ali v The Queen
Maxwell P, Redlich JA, and Beach JA
[2014] VSCA 200
05/09/2014
CRIMINAL LAW - Sentence - Application for leave to appeal - Applicant pleaded
guilty to attempting to pervert the course of justice - Forged medical report and
character reference provided to sentencing Magistrate - Whether sentence of 14
months' imprisonment manifestly excessive - Application granted - Appeal allowed Applicant re-sentenced
Saleem, Asif v The Queen
Redlich JA and Priest JA
[2014] VSCA 190
26/08/2014
CRIMINAL LAW - Sentence - Totality - Applicant sentenced to 23 years and six
months with a non-parole period of 19 years for multiple charges including rape,
abduction, stalking, false imprisonment, aggravated burglary, causing injury
intentionally, theft of motor vehicles, possession of child pornography and possession
of explosive substances - Whether individual sentences manifestly excessive Whether individual sentences and orders for cumulation and concurrency infringe
principle of totality - Total effective sentence manifestly excessive - Infringes
principle of totality - Postiglione v The Queen (1997) 189 CLR 295; Azzopardi v The
Queen (2011) 35 VR 43 considered - Appeal allowed - Re-sentenced to 18 years'
imprisonment with a non-parole period of 14 years
Pilgrim, Michael Allen v The Queen
Nettle JA, Redlich JA, and Almond AJA
[2014] VSCA 191
28/08/2014
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PRACTICE AND PROCEDURE - Pleadings - Discovery - Appeal from order for
delivery of defence and for giving discovery in insolvent trading claim - Appellants
were directors of company in liquidation - Appellants did not claim use immunity
against self-incrimination or exposure to penalty during public examinations by
liquidator - Statement of Claim based on answers given during public examinations Whether appellants relieved from delivering substantive defences and making
discovery - Whether common law privileges abrogated in present proceeding - Effect
of answers given in public examination upon common law privileges - Appellants not
relieved from delivering defences and making discovery to extent of answers
previously given - No waiver of privileges, but no increased jeopardy - Appellants not
disentitled from claiming privileges with respect to potential self incrimination or
exposure to penalty travelling beyond that resulting from answers given (and
incorporated documents) at public examination - Corporations Act 2001 (Cth),
s597(12), s597(12A) and s597(14) - Microsoft Corporation v CX Computer Pty Ltd
(2002) 116 FCR 372 applied
Gemmell, William and Conlon, Sean v Le Roi Homestyle Cookies Pty Ltd (In
liquidation) (ACN 102 590 483) and Ross, David Anthony and Albarran, Richard
and Pleash, Blair Alexander (As liquidators of Le Roi Homestyle Cookies Pty Ltd
(In liquidation)) (ACN 102 590 483)
Ashley JA, Neave JA, and Almond AJA
[2014] VSCA 182
22/08/2014
PROCEDURAL FAIRNESS - Self-represented defendants - Where prima facie proof
of claim - Where invitation by judge to defendants to rely on submissions - Where no
explanation of possible reasoning by reference to Jones v Dunkel (1959) 101 CLR
298 - Where affidavit used for purposes other than that for which it was admitted Obligations of trial judge - Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82
applied
Downes, John Desmond and Another v Maxwell Richard Rhys and Co Pty Ltd (In
liq) (ACN 068 897 558)
Osborn JA, Whelan JA, and Beach JA
[2014] VSCA 193
29/08/2014
STAY - Application for stay of order for possession of land pending determination of
application for special leave to High Court - Principles applicable - Asserted grounds
of special circumstance not established - No realistic prospect of special leave Ongoing prejudice to mortgagee - Stay refused
Sgargetta, Elliot Daniel v National Australia Bank Ltd (ACN 004 044 937)
Osborn JA and Beach JA
[2014] VSCA 189
22/08/2014
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TORTS - Workplace injury - Premises - Two occupiers - Owner - Operator of
premises pursuant to contract with owner - Claim for damages by employee of
operator against owner and operator - Judgment for employee against both defendants
- Operator's contractual duty to have public liability insurance in name of itself and
owner - Breach of contractual duty - Owner's claim to be indemnified by operator in
respect of judgment amount against it - Whether operator's breach of contract
causative of loss to owner - Policy in approved form not in evidence - Whether
inference favourable to owner could be drawn as to terms of approved form of policy
- Inference not available on balance of probabilities.
TORTS - Tortfeasors - Contribution between tortfeasors - Occupier's liability Whether owner's duty of care to injured employee relevantly delegable - Whether
judge's ruling that duty non-delegable affected decision with respect to contribution Decision successfully impugned - Wrongs Act 1958, Part II.
ACCIDENT COMPENSATION - Recovery proceeding against third party - Effect of
successful appeal in respect of contribution proceeding between defendants
Victorian YMCA Community Programming Pty Ltd (ACN 092 818 445) v
Nillumbik Shire Council and Victorian Workcover Authority
Nettle JA, Ashley JA, and Hansen JA
[2014] VSCA 197
01/09/2014
TRADE PRACTICES - Misleading or deceptive conduct - Representations - Whether
representation that funds in capitalised interest facility could be drawn down to fund
repayment of the loan made - Alleged oral representations - Construction of funding
document - Reliance - Causation - Trade Practices Act 1974 (Cth), s52 - Fair Trading
Act 1999 (Vic), s9.
TRADE PRACTICES - Misleading or deceptive conduct - Accessorial liability Trade Practices Act 1974 (Cth), s75B - Fair Trading Act 1999 (Vic), s159.
CORPORATIONS - Directors' duties - Whether directors breached duties - No breach
of duty.
AGENCY - Joint venture - Whether nominee company merely agent for joint venture
parties.
DAMAGES - Pleadings - Case not run at trial - Octavo Investments Pty Ltd v Knight
(1979) 144 CLR 360.
APPORTIONMENT - Apportionable claim - Concurrent wrongdoers - Trade
Practices Act 1974 (Cth), s87CB and s87CC
Wieland, David Charles and Another v Texxcon Pty Ltd (ACN 120 272 880); Porz,
Geoffrey Gordon and Another v Texxcon Pty Ltd (ACN 120 272 880); Nominexx
Pty Ltd (ACN 121 396 503) and Another v Wieland, David Charles and Others
Nettle JA, Hansen JA, and Beach JA
[2014] VSCA 199
05/09/2014
COMMERCIAL & EQUITY DIVISION
CORPORATIONS - Compromise required company to acquire shares in itself Compromise subject to Court approval - Court approval granted under Corporations
Act 2001 (Cth), s259A(c) - No prejudice to creditors or shareholders as a whole
U & D Coal Ltd (ACN 165 894 806) v Australian Kunqian International Energy Co
Pty Ltd (ACN 153 835 440)
Sifris J
[2014] VSC 386
22/08/2014
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CORPORATIONS - External administration - Application for leave to commence
proceedings pursuant to Corporations Act 2001 (Cth), s471B in respect of proprietary
claim - Application granted
VAG Taxis Pty Ltd (As Trustee of the VAG Taxis Unit Trust) (ACN 076 423 062) v
Delrich Tower Pty Ltd (In Liquidation) (ACN 073 294 836)
Gardiner AsJ
[2014] VSC 164
14/04/2014
CORPORATIONS - Managed Investment Scheme - Application made under
Corporations Act 2001 (Cth), s511 for direction that liquidators are justified in
terminating grower rights - Joint sale process agreed with receivers - Ex ante
agreement for the allocation of proceeds between liquidators and receivers - Attempt
by growers to review and impugn allocation agreement - Allegation that liquidators
had breached duty under Corporations Act 2001 (Cth), s601FC(1) and 601FD(1) Nature of proceeding - Breach not established
Re Bryant, Daniel Mathew and Carson, Ian Menzies and Crosbie, Craig David (In
their capacities as joint and several liquidators of Gunns Plantations Limited (In
liquidation) (Receiver and managers appointed) (ACN 091 232 209)) and Gunns
Plantations Limited (In liquidation) (Receiver and managers appointed) (ACN 091
232 209) (No 4)
Judd J
[2014] VSC 369
11/08/2014
EQUITY - Powers and duties of trustees - Power and duty of trustee to compromise a
claim - Power and duty of trustee to compromise a Part IV claim - Whether third party
liable to repay trust funds - Whether trustee entitled to be indemnified from the estate
- Trustee Act 1958 (Vic), s19(1)(f), s67 - In re Earl of Strafford, dec'd [1980] 1 Ch 28
considered - Re Irismay Holdings Pty Ltd [1996] 1 Qd R 171 considered - Dowling v
St Vincent De Paul Society Victoria Inc [2003] VSC 454 (20 November 2003)
considered
Hodge, Norina v Pasquale, Rosa De (who is sued in her capacity as the executor of
the will of the abovenamed deceased) and Pasquale, Pia De (in the will of the
deceased known as Principia De Pasquale)
McMillan J
[2014] VSC 413
29/08/2014
LEGAL PRACTITIONERS - Claim by plaintiff under Administration and Probate
Act 1958 (Vic), Pt IV - Plaintiff's solicitor drew prior will of deceased - Possible
misuse of confidential information - Solicitor-client privilege - Duty of loyalty Restraining solicitor as officer of the court from acting for the plaintiff
O'Loughlin, Annette v Arnott, Kate Michelle and Arnott, Matthew Geoffrey (who
are sued as the executors of the Will)
Sifris J
[2014] VSC 416
03/09/2014
MORTGAGES OF LAND - Statutory construction - Republic of Vanuatu Land
Leases Act 1989, s56(2) - Section permits charging of higher interest upon payments
of interest due under the mortgage at a higher rate than the "appointed rate", but at a
rate no higher than 3 per cent greater than the appointed rate - Applicability of s56(2)
to rates charged upon unpaid principal outstanding at the end of the loan term
Parker, Harvey v Hammer, David and Karpati, Eva (also known as Karparty, Eva)
Daly AsJ
[2014] VSC 387
22/08/2014
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PRACTICE AND PROCEDURE - Appeal against summary judgment - Judgment for
1st defendant on some of claims made - Claims time barred - Constructive trust
alleged - No institutional constructive trust - Time limits applicable to claims for an
account - Fraudulent concealment - Elements of cause of action known to claimant
from approximately mid 1990s - No postponement of limitation periods beyond this
time - Supreme Court (General Civil Procedure) Rules 2005 (Vic), r77.06 - Limitation
of Actions Act 1958 (Vic), s5(2) and s5(8), s21(1)(b), s27 - Civil Procedure Act 2010
(Vic), s63, s64
Feiglin, Esther Celia v Ainsworth, David Sargon (No. 2)
Elliott J
[2014] VSC 376
20/08/2014
PRACTICE AND PROCEDURE - Security for costs - Application by defendant to
counterclaim against plaintiffs by counterclaim - Plaintiffs by counterclaim are a
corporation and a natural person - Reason to believe Corporation will not be able to
pay costs of defendant to counterclaim if successful - Application made 4 years after
commencement of Counterclaim - Whether security should be ordered against
corporation where a natural person is also a plaintiff - Whether security should be
ordered against the natural person - Whether delay inordinate - Security for costs not
ordered - Supreme Court (General Civil Procedure) Rules 2005 (Vic), r62.02(1) Corporations Act 2001 (Cth), s1335(1) - Inherent jurisdiction
Opes Prime Group Limited (in liquidation) (Scheme administrators appointed)
(ACN 120 372 223) and Opes Prime Global Securities Pty Ltd (In liquidation)
(ACN 127 245 354) v Niako Investments Pty Ltd (ACN 091 529 341) and Another;
Niako Investments Pty Ltd (ACN 091 529 341) and Another (according to the
attached schedule) v Opes Prime Group Limited (in liquidation) (Scheme
administrators appointed) (ACN 120 372 223) and Others (according to the
attached schedule)
Derham AsJ
[2014] VSC 414
03/09/2014
REAL PROPERTY - Removal of caveat - Whether serious question to be tried that
the first defendant had a caveatable interest in property the subject of contract of sale Where interest claimed a constructive trust resulting from unjust enrichment of the
plaintiff - No serious question to be tried - Balance of convenience favourable to the
removal of caveat - Transfer of Land Act 1958 (Vic), s90(3)
Lombardo, Michael v Bahnan, Samir and The Registrar of Titles
Warren CJ
[2014] VSC 410
28/08/2014
TESTATOR'S FAMILY MAINTENANCE - Application under Administration and
Probate Act 1958 (Vic), Pt IV - Deceased survived by adult son and four adult
grandchildren - Estate divided equally between the son and four grandchildren Estate comprised principally of deceased's home - Claim by the son of the deceased Whether the deceased had a responsibility to make further provision for the son - Son
sought further provision of the whole of the estate, alternatively, ninety per cent of the
estate - Competing claims against the estate of the deceased - Son's claim dismissed
Briggs, Garry George v Mantz, Sharlene (who is sued as the executor of the will of
the abovenamed deceased)
McMillan J
[2014] VSC 281
22/08/2014
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TESTATOR'S FAMILY MAINTENANCE - Application under Administration and
Probate Act 1958 (Vic), Pt IV - Deceased survived by three adult sons, three
grandchildren and one stepgrandchild - Claim by adult son of the deceased - Whether
the deceased had a responsibility to make further provision for the son - Further
provision ordered
Baxter, Donald Allen v Baxter, William Robert and Baxter, Stewart Alexander (who
are sued as the Executors named in the last Will of the abovenamed deceased)
McMillan J
[2014] VSC 377
22/08/2014
TRUSTS - Charitable Trusts - Application for income from trust fund to be applied
cy-pres - Relevant principles - Application by descendant of testator to become trustee
- Trustee Act 1958 (Vic), s41, s48
The Trust Company (Australia) Limited (As Trustee of the Estate of Martin
Michael Healy, Deceased) v Edwards, Susan (as representing herself and all of the
other next of kin of Martin Michael Healy, Deceased) and the Attorney General for
the State of Victoria; Edwards, Susan v The Trust Company (Australia) Limited (As
Trustee of the Estate of Martin Michael Healy, Deceased)
Daly AsJ
[2014] VSC 257
21/08/2014
WILLS AND ESTATES - Principal beneficiary under will convicted of defensive
homicide of the deceased - Whether forfeiture rule applies - Whether discretion not to
apply forfeiture rule - Whether constructive trust should be imposed - Whether gift
over saved by the rule in Jones v Westcomb (1711) Prec Ch 316; 24 ER 149 Supreme Court (General Civil Procedure) Rules 2005 (Vic), r54.02
State Trustees Limited (ACN 064 593 148) v Edwards, Megan and Day, Elizabeth
and Peter MacCallum Cancer Institute and Edwards, Jemma Elizabeth
McMillan J
[2014] VSC 392
22/08/2014
COMMON LAW DIVISION
ADMINISTRATIVE LAW - Appeal from Victorian Civil and Administrative
Tribunal - Fair Trading Act 1999 (Vic) - Tribunal's jurisdiction under that Act Whether s159 is subject to pt 9 - Whether Tribunal erred in finding it lacked
jurisdiction - Whether Tribunal erred in finding plaintiffs had not proved their case.
ADMINISTRATIVE LAW - Natural justice - Plaintiffs bound by their pleaded case
and the manner in which their counsel conducted it - Tribunal not obliged to find in
favour of plaintiffs on the basis of a case they did not conduct - Tribunal's use of the
word 'Yes' during counsel's submissions did not signify that Tribunal accepted the
submissions but only that Tribunal heard them - Factual errors did not vitiate
Tribunal's decision - Tribunal's reasons not inadequate - Victorian Civil and
Administrative Tribunal Act 1998 (Vic), s97, s98, s102, s117
Thomas, Gordon and Thomas, Douglas and Thomas, Kathleen v Panourakis,
Emmanuel ("Manny")
Kyrou JA
[2014] VSC 398
26/08/2014
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ADMINISTRATIVE LAW - Judicial review - Error of law - Administrative Law Act
1978 - Crown Land (Reserves) Act 1978 - Public Administration Act 2004
Nolan, David v Executive Director, Land Management Policy, Department of
Environment and Primary Industries
McMillan J
[2014] VSC 412
29/08/2014
ADMINISTRATIVE LAW - Judicial review - Medical Panel determination of
medical questions under Accident Compensation Act 1985 (Vic), s45(1)(b) - Orders
in nature of certiorari and mandamus - Alleged jurisdictional error or denial of
procedural fairness by failure to address submissions - Relevant considerations Whether conclusions open on evidence - Adequacy of reasons
Hallam Manufacturing Pty Ltd v Owczarek, Jack (Dr)
Williams J
[2014] VSC 402
29/08/2014
ADMINISTRATIVE LAW - Judicial review - Supreme Court (General Civil
Procedure) Rules 2005, (Vic), O56 - Decision of Judicial Registrar in Magistrates'
Court - Decision set aside - Order in nature of certiorari inutile - Re-hearing of
charges - Order in the nature of mandamus unavailable - Adjournment application
refused
Kyriazis, Vasilios v The Magistrates' Court of Victoria at Heidelberg and Mele, Lee
Williams J
[2014] VSC 411
29/08/2014
APPEAL - Appeal on question of law from Magistrates' Court - Claim in conversion Summary dismissal of claim - Plaintiff's Statement of Affairs containing statements
about ownership of property - No evidence by plaintiff about his ownership of the
goods the subject of his claim - Application to rely on further evidence refused - Open
to Magistrate to decide that claim had no real prospect of success - Civil Procedure
Act 2010 (Vic), s63, s64
Taylor, Wesley Raymond v Schaub, Mark and Schaub, Gayle Brenda
Ginnane J
[2014] VSC 415
21/08/2014
CORPORATIONS - Setting aside of statutory demand - Company failed to pay the
creditor the second month rent guarantee under the contract of sale of real estate Amount was payable pursuant to a special condition entered into between signing the
contract and settlement - Applicable law requires identification of a genuine dispute
without resolving the same - Construction of the special condition not appropriate Whether the Company waived compliance with special condition by earlier payment
Joulia Apartments Pty Ltd (ACN 140 072 420) v Melvest Property Ltd (ACN 162
243 263)
Randall AsJ
[2014] VSC 182 (Revised on 28 April 2014 )
19/03/2014
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CRIMINAL LAW - Appeal to County Court against conviction and sentence imposed
by Magistrates' Court - Whether appellant required to attend the hearing of appeal Whether appearance by counsel sufficient - Personal attendance not required Criminal Procedure Act 2009 (Vic), s254, s255, s256, s267, s268, 328, 329, 330 and
definitions of 'appear' and 'attend' in s3 - County Court Criminal Procedure Rules
2009 (Vic), r3.02, Form 3A.
ADMINISTRATIVE LAW - Application for judicial review - Order of judge of
County Court striking out appeal against conviction and sentence imposed by
Magistrates' Court - Absence of power to make order - No discretionary
considerations warrant dismissal of application - Application granted
Hamilton, Scott v Pickering, Dean and the County Court of Victoria
Kyrou JA
[2014] VSC 399
26/08/2014
DEFAMATION - Action for defamation by one candidate against opponent in
municipal election - Four separate publications - News broadcast - News interview Court document - Provision of court document to journalist - Statement to lawyer Meaning of defamatory imputations - Defences to defamation - Justification - Fair
comment - Honest opinion - Malice - Defamation Act 2005 (Vic), s25, s30, s31
Williams, Timothy Charles v Katis, John Nicholas
J Forrest J
[2014] VSC 405
29/08/2014
PRACTICE AND PROCEDURE - Appeal from the Magistrates Court - Appeal
dismissed - Costs - Whether appeal succeeded - Magistrates Court Act 1989 (Vic),
s109 - Appeal Costs Act 1998 (Vic), s4 - No point of principle
Bernstone, Terry v Almack-Kelly, Philippa (No 2)
McMillan J
[2014] VSC 388
21/08/2014
PRACTICE AND PROCEDURE - Case management conference - Major class action
arising out of Black Saturday bushfires - Assessment of critical path for trial
preparation - Completion of discovery - Preparation of expert evidence for concurrent
evidence at trial - Disclosure of lay evidence - Alternative dispute resolution Whether allocated trial date to be maintained - Postponement of allocated trial date Implementation of the purposes of the Civil Procedure Act 2010 (Vic) - Civil
Procedure Act 2010 (Vic), s7, s8, s9, s47, s48, s49 and s50
Liesfield, Roderic v SPI Electricity Pty Ltd (ACN 064 651 118) and Others
(According to the attached schedule) (Ruling No 2)
Dixon J
[2014] VSC 98
20/03/2014
PRACTICE AND PROCEDURE - Cross-vesting - Claim for damages for personal
injuries - Application to transfer proceedings to Supreme Court of Queensland Whether Queensland is the more appropriate forum - Jurisdiction of Courts (CrossVesting) Act 1987 (Vic), s5(2)(b)(iii) - Expedited trial date already fixed in Victoria
for case involving a seriously ill plaintiff - Application dismissed
Thompson, James Barrie (by his litigation guardian Wynefred Jeanette Thompson)
v Amaca Pty Ltd (under NSW administered winding up) and Seltsam Pty Ltd
Macaulay J
[2014] VSC 169
15/04/2014
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PRACTICE AND PROCEDURE - Summary judgment application by defendants Civil Procedure Act 2010 (Vic), s63 - Only outstanding issue is costs. COSTS - Offer
of compromise by plaintiff not accepted by defendants - Defendants agreed to entry of
judgment for sum greater than offer made by the plaintiff in the offer of compromise Supreme Court (General Civil Procedure) Rules 2005 (Vic), r26.08(3) - Special
circumstances warranting departure from the usual order set out in r26.08(3) Relevance of amendment of pleading to bring a fresh claim
Davis, David Paul v Robek Australia Pty Ltd (ACN 006 308 961) and Another;
Robek Australia Pty Ltd (ACN 006 308 961) and Another v Davis, David Paul
Daly AsJ
[2014] VSC 360
07/08/2014
REAL PROPERTY - Appeal from Victorian Civil and Administrative Tribunal - Coowned property - Application for sale of property - Adjustment to interests of parties
by Tribunal according to contributions to purchase price and mortgage repayments Whether Property Law Act 1958 (Vic), Pt IV as amended by Property (CoOwnership) Act 2005 (Vic) applies to property acquired before commencement of
amending Act - Whether error of law in adjusting parties' respective interests in
property
Tien, Debra Xiem v Pho, Phuong
Kaye J
[2014] VSC 391
21/08/2014
REAL PROPERTY - Restrictive covenant - Discharge or modification - Prohibition
of more than one dwelling on lot - Whether covenant ought to be deemed obsolete Whether discharge or modification would cause substantial injury to covenantee Modification of covenant to avoid injury - Property Law Act 1958 (Vic), s84(1)
Re Djurovic
Mukhtar AsJ
[2010] VSC 348
17/08/2010
CRIMINAL DIVISION
CRIMINAL LAW - Bail - Show cause situation - Drug offences - Threatening serious
injury - Bail Act 1977 (Vic), s4(4)
Re Cayli, Huvasi [Bail application]
Kaye J
[2014] VSC 397
18/08/2014
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CRIMINAL LAW - Murder - Tendency evidence - Single incident occurring
subsequent to the murder - Tendency relevant to the issue of the identity of the killer Whether any tendency established - Whether evidence has significant probative value
- Whether probative value substantially outweighs prejudicial effect to accused Evidence Act 2008 (Vic), s97, s101.
EVIDENCE - Tendency evidence - Single incident occurring subsequent to the
murder - Tendency relevant to the issue of the identity of the killer in a murder trial Whether any tendency established - Whether evidence has significant probative value
- Whether probative value substantially outweighs prejudicial effect to the accused Evidence Act, 2008 (Vic), s97, s101
R v Farrugia, Kevin
Dixon J
[2014] VSC 212
14/05/2014
CRIMINAL LAW - Sentence - Attempting to possess a commercial quantity of an
unlawfully imported border controlled drug - Substances containing 161.5 kilograms
of methamphetamine concealed in tyres of tractor truck imported from China Accused's father used his own importing business to facilitate offence - Accused
assisted father in moving vehicle from docks and in unloading and redistributing
drugs - Accused aged 30 with no prior convictions - Early plea of guilty - Remorse Excellent prospects of rehabilitation - Parity - Sentence of ten years' gaol with nonparole period of six years - But for plea of guilty, sentence of 14 years' gaol with a
non-parole period of ten years
R v Cini, Rhys
Croucher J
[2014] VSC 409
29/08/2014
CRIMINAL LAW - Sentence - Manslaughter - Unpremeditated stabbing - Accused
charged with murder - Found guilty of unlawful and dangerous act manslaughter Early offers to plead guilty to manslaughter - Genuine remorse - Intellectual
impairment - Post-traumatic stress disorder - Verdins considerations - Alcohol and
drug abuse - Sentenced to 7 years' imprisonment with a non-parole period of 4
1/2years
Director of Public Prosecutions v Kerr, Tracey
Hollingworth J
[2014] VSC 374
21/08/2014
CRIMINAL LAW - Show cause situation - Unacceptable risk that not answer bail and
that offend if released - Application refused
Re Abdou, Mouhamed [Bail application]
Kaye J
[2014] VSC 406
25/08/2014
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