SUPREME COURT OF VICTORIA
RECENT JUDGMENTS BULLETIN
ISSUE NO. 17/2015
Below is a list of Victorian Supreme Court unreported judgments received in the Library from
7 to 18 September 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 ........................................................................................ 10
COMMERCIAL & EQUITY DIVISION ................................................................ 12
COMMON LAW DIVISION .................................................................................. 13
CRIMINAL DIVISION ........................................................................................... 17
COURT OF APPEAL
CRIMINAL LAW - Appeal - Conviction - Rape, attempted rape, indecent assault Character evidence - Applicant had no prior convictions - Defence counsel did not
lead good character evidence - Whether rational forensic decision - Whether evidence
might have affected outcome - Whether verdicts unsafe and unsatisfactory - Strong
Crown case - Complainant's evidence independently supported - Leave to appeal
refused.
CRIMINAL LAW - Appeal - Sentence - Rape, attempted rape, indecent assault Sentence 5y, non-parole period 3y - Whether manifestly excessive - Violent offending
- Breach of trust - Leave to appeal refused.
Hajar, Ghassan v The Queen
Maxwell P, Priest JA, and Kaye JA
[2015] VSCA 233
08/09/2015
CRIMINAL LAW - Appeal - Sentence - Arson (2 charges) - Sentence 4y 6m, nonparole period 2y - Offender set fire to own house - Financial hardship - Severe
psychiatric difficulties - General deterrence inapplicable - Sentence manifestly
excessive - Crown concession - Appeal allowed - Resentenced to time served.
Martin, Jennifer Gayle v The Queen
Maxwell P and Beach JA
[2015] VSCA 248
14/09/2015
Supreme Court of Victoria – Recent Judgments Bulletin No. 17/2015
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CRIMINAL LAW - Appeal - Sentence - Crown appeal - Drug trafficking (three
charges) - High-end marketable quantities - Offender 'near the top' of syndicates High culpability - Sentence 11 years' imprisonment, non-parole period of 7 years Whether manifestly inadequate - Comparable cases - Importance of quantitative
comparisons - Offender also admitted importation offences - Whether adequately
taken into account - Totality - General deterrence - Residual discretion - Sentence
manifestly inadequate - Resentenced (14 years' imprisonment, non-parole period of 11
years) - Crimes Act 1914 (Cth) s16BA, Criminal Code (Cth) s302.3, s307.2, Criminal
Code Regulations 2002 (Cth) sch 3.
CRIMINAL LAW - Sentence - Sentencing principles - Totality - Multiple offences Judge applied ‘moderate and cumulate’ approach - Orthodox approach requires fixing
of appropriate sentences for individual offences - Orthodox approach to be followed
except in special circumstances - No justification for departure in present case Johnson v The Queen (2004) 78 ALJR 616 followed.
CRIMINAL LAW - Sentence - Sentencing principles - Parity - Sentencing relativities
- Comparison with low sentence for unrelated offences - Whether 'understandable
sense of grievance' - No parity issue - Language of 'grievance' to be avoided Objective test - Whether sentencing differential reasonably open - Teng v The Queen
(2009) 22 VR 706 followed.
PRACTICE AND PROCEDURE - Appeal - Sentence - Crown appeal - Time limits Extension of time - Appellant's solicitor sought advice on time limit from Registry
officer - Erroneous advice provided and relied on - No disregard of time limit - Bona
fide attempt to comply - Extension granted - Criminal Procedure Act 2009 s288(1),
s313.
Director of Public Prosecutions (Cth) v KMD
Maxwell P, Weinberg JA, and Beach JA
[2015] VSCA 255
17/09/2015
CRIMINAL LAW - Appeal - Sentence - Dangerous driving causing death, failure to
stop after accident, failure to render assistance - Sentence of 4y for failure to stop Total effective sentence 5y, non-parole period 3y 6m - Whether manifestly excessive Victim elderly pedestrian - Knocked down when applicant reversed - Applicant drove
off - Attempt to conceal involvement - High culpability - Verdins propositions 5 and 6
- Moderate mitigation only - Sentence within range - Appeal dismissed - Wassef v
The Queen [2011] VSCA 30 followed.
Sarikaya, Remo v The Queen
Maxwell P and Kaye JA
[2015] VSCA 236
11/09/2015
Supreme Court of Victoria – Recent Judgments Bulletin No. 17/2015
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CRIMINAL LAW – Appeal – Sentence – Domestic violence – Assault (five charges),
false imprisonment, intentionally cause injury, threat to inflict serious injury –
Sentence three years six months, non-parole period two years six months – Whether
manifestly excessive – Prolonged, brutal offending – Whether judge took into account
withdrawn allegation of sexual penetration – Totality – Loss of opportunity to apply
for parole under earlier sentence – Appeal dismissed.
Mercer, Scott (A Pseudonym) v The Queen
Maxwell P and Beach JA
[2015] VSCA 257
17/09/2015
CRIMINAL LAW - Appeal - Sentence - Intentionally causing serious injury - Murder
- Sentence of 19y 6m for murder - Sentence of 12 months for intentionally causing
serious injury - Total effective sentence 20y, non-parole period 16y 6m - Whether
sentence for murder manifestly excessive - Grave circumstances of offending Whether mitigating factors given sufficient weight - Substantial mitigating factors Applicant suffered from personality disorder - Applicant from disadvantaged
background - Bugmy v R (2013) 249 CLR 571 followed - Sentence within range Application for leave to appeal granted - Appeal dismissed.
Morrison, Samuel v The Queen
Priest JA, Kaye JA, and Robson AJA
[2015] VSCA 249
15/09/2015
CRIMINAL LAW - Appeal - Sentence - Occupational health and safety - Failure to
provide and maintain a working environment that was safe and without risks to health
- Two charges - Permitting employees to use unguarded machinery - Safety features
knowingly overridden despite previous WorkSafe intervention and prior injuries Permitting workers to use machinery in unsafe manner - Three employees injured in
separate incidents - Appellant fined a total of $375,000 - Appellant's culpability very
high - Specific deterrence - General deterrence - Sentence not manifestly excessive Appeal dismissed - Occupational Health and Safety Act 2004 (Vic) s21(1).
Dotmar Epp P/L v The Queen
Maxwell P, Priest JA, and Kaye JA
[2015] VSCA 241
09/09/2015
CRIMINAL LAW – Appeal – Sentence – Previous convictions – Appellant sentenced
to 18 months’ imprisonment with Community Correction Order for 2 years and 300
hours unpaid community work – Cultivation of cannabis in a commercial quantity –
Cannabis intended for personal use – Appellant suffering depression due to stress at
time of offending and of sentence – Appellant finding prison difficult at time of
sentence – Appeal allowed.
Ivanoff, Jason Uri v The Queen
Beach JA and Kaye JA
[2015] VSCA 262
17/09/2015
Supreme Court of Victoria – Recent Judgments Bulletin No. 17/2015
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
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CRIMINAL LAW - Appeal - Sentence - Trafficking drug of dependence (3 charges) Sentence 5 years 1 month, non-parole period 3 years 6 months - Whether manifestly
excessive - Persistent offending over 4 years - Profit motive - Substantial profits
derived - Applicant was victim of drug related home-invasion - Whether 'extra-curial
punishment' - Leave to appeal refused.
Milk, Sarah v The Queen
Maxwell P and Priest JA
[2015] VSCA 237
07/09/2015
CRIMINAL LAW - Appeal - Totality - Appellant sentenced in 2002 for kidnapping
and rape of one victim - Sentence completed - Appellant sentenced in 2015 for
kidnapping and rape of two other victims which were part of a series - Sentenced to
13 years' imprisonment with non-parole period of 11 years and 6 months - Appeal
allowed - Appellant resentenced to a total effective sentence of 11 years with a nonparole period of 9 years.
Newall, Dennis William v The Queen
Priest JA and Beach JA
[2015] VSCA 250
16/09/2015
CRIMINAL LAW - Appeals - Conviction - Appellant convicted of sexual offending
occurring in the 1980s - Two indictments involving two complainants - Separate trials
- On first indictment whether the judge erred in refusing to give unreliable witness
warning pursuant to s165 of the Evidence Act 2008 - Whether the jury's verdict is
unsafe and unsatisfactory - On second indictment whether the judge erred by
admitting evidence previous representations pursuant to s66 of the Evidence Act 2008
- Whether occurrence of asserted fact 'fresh in the memory' when previous
representations made - Whether the evidence of previous representations should have
been excluded under s137 of the Evidence Act 2008 - Appeals allowed.
CRIMINAL LAW - Appeal - Convictions quashed - Whether re-trial or acquittal
appropriate - New trial ordered on one indictment, acquittal on the other
Boyer, Gary (a pseudonym) v The Queen
Priest JA, Kyrou JA, and Kaye JA
[2015] VSCA 242
11/09/2015
CRIMINAL LAW - Application for leave to appeal - Sentence - Dishonesty offences
- Ponzi scheme involving over $4.7million - Offending occurred over a period of
almost 7 years - Breach of trust involving many victims - Offending perpetrated under
cloak of legitimacy and authority offered by the applicant being a law clerk in a law
firm - Whether total effective sentence of 8y 6m with non-parole period of 5y 6m is
manifestly excessive - Whether the judge erred by sentencing the applicant as a
continuing criminal enterprise offender on one charge - Amendment to Record of
Orders - Application for leave to appeal refused.
Porcaro, Giuseppe v The Queen
Priest JA and Kaye JA
[2015] VSCA 244
09/09/2015
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CRIMINAL LAW – Conviction – Application for leave to appeal against conviction –
Sexual offending against two children – Whether a substantial miscarriage of justice
occurred as a result of the way the accused’s character developed at trial – Reference
in opening address to irrelevant facts – Defence counsel inadvertently adduced
potentially prejudicial evidence – Failure of defence counsel to object to potentially
objectionable opinion evidence – Failure of defence counsel to call good character
evidence – Whether defence counsel’s conduct was explicable as a rational forensic
decision – TKWJ v The Queen (2002) 212 CLR 124 considered – All complaints
explicable forensic decisions in the context of the trial – Application refused.
Smith, William Albert v The Queen
Osborn JA, Priest JA, and McLeish JA
[2015] VSCA 256
17/09/2015
CRIMINAL LAW - Evidence - Admissibility - Culpable driving and dangerous
driving causing death - Collision between truck driven by applicant and another
vehicle - Whether evidence of applicant’s driving immediately prior to collision
admissible - Whether stay of proceedings warranted - Application refused - Criminal
Procedure Act 2009 s295(3), s296 - Evidence Act 2008 s55 - R v Smith [1995] 1 VR
10; ZL v The Queen (2010) VSCA 345 applied
Burgess, Alan Owen v The Queen
Buchanan JA
[2011] VSCA 452
24/03/2011
CRIMINAL LAW - Murder - Application for leave to appeal against conviction Single ground of 'unsafe or unsatisfactory verdict' - Whether verdict open on the
evidence - Whether jury must have had a reasonable doubt - Relationship evidence Differing accounts of events from accused - Expert medical evidence - Conviction
open on the whole of the evidence - Application dismissed.
EVIDENCE - Reliability - Evidence of confession while in custody - Reliability of
evidence of unreliable witnesses - Evidence capable of rational use by a jury properly
instructed.
Ta-Vuong, Paul v The Queen
Osborn JA, Priest JA, and Croucher AJA
[2015] VSCA 238 1st Revision, 10 September 2015, page 30 para [107] [Redacted
version]
09/09/2015
CRIMINAL LAW - Plea - Interlocutory application - Attempt to pervert the course of
justice, and trafficking in drug of dependence - Apprehended bias - Whether
expression of provisional views during plea indicated bias - Application refused Criminal Procedure Act 2009 s295(3).
E G v The Queen
Buchanan JA
[2011] VSCA 453
06/07/2011
Supreme Court of Victoria – Recent Judgments Bulletin No. 17/2015
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CRIMINAL LAW - Sentence - Appeal - Attempting to traffick in a commercial
quantity of a drug of dependence - Trafficking in a commercial quantity of a drug of
dependence - Total effective sentence of 9 years' imprisonment with non-parole
period of 6 years and 6 months - Significant mitigatory factors - Whether sentence
manifestly excessive - Sentence outside the permissible range - Appellant resentenced
to a total effective sentence of 6 years' imprisonment with a non-parole period of 4
years.
Chen, Guang v The Queen
Priest JA and Beach JA
[2015] VSCA 253
16/09/2015
CRIMINAL LAW - Sentence - Appeal - Drug offences - Applicant already serving
sentence for other offences ('the first offence') - Applicant sentenced on basis of
further term of 2 years 6 months' imprisonment cumulated on first sentence - Less
single non-parole period set pursuant to s14(1) of Sentencing Act 1991 ('the second
sentence') - Appeal against first sentence allowed and first sentence reduced Applications for leave to appeal out of time against second sentence - Leave granted Single non-parole period reduced.
Bass, Samuel (a pseudonym) v The Queen (No. 2)
Maxwell P, Beach JA, and Kaye JA
[2015] VSCA 252
15/09/2015
CRIMINAL LAW - Sentence - Application for leave to appeal - Incest (2 charges) Common assault - Make threat to kill (2 charges) - Total effective sentence of 8 years'
imprisonment with non-parole period of 5 years and 6 months - Whether sentence
manifestly excessive - Totality - Not reasonably arguable that sentence manifestly
excessive - Not reasonably arguable that principle of totality infringed - Application
for leave to appeal refused.
Harris, Richard (a pseudonym) v The Queen
Priest JA and Beach JA
[2015] VSCA 247
11/09/2015
Supreme Court of Victoria – Recent Judgments Bulletin No. 17/2015
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HABEAS CORPUS – Appellant sentenced to death by Supreme Court of Western
Australia – Sentence commuted to life imprisonment by executive pardon –
Transferred to Victoria under Prisoners (Interstate Transfer) Act 1983 – Released on
parole for period of natural life by Victorian Governor under Sentencing Act 1991
s107(1)(b) – Whether parole order valid and of continuing effect – Whether parole
conditions valid – Whether parole order matured into full pardon.
PRACTICE AND PROCEDURE – Habeas corpus – Application to Supreme Court of
Victoria for writ of habeas corpus refused – Second application to Supreme Court for
writ of habeas corpus – Whether abuse of process – Whether application made on
same grounds – Supreme Court (General Civil Procedure) Rules 2005 r57.04.
Censori, Eris v Adult Parole Board of Victoria and His Excellency The Honourable
Alex Chernov AC QC and Attorney-General for the State of Victoria
Warren CJ, Ferguson JA, and McLeish JA
[2015] VSCA 254
17/09/2015
INSURANCE - Insurance policy - Policy of life insurance - Total disability - Duty of
disclosure - Misrepresentation - Whether insured breached duty of disclosure Whether breach of duty of disclosure was fraudulent - Whether misrepresentation was
fraudulent - Whether insurer would have entered into the policy if no breach of duty
of disclosure and no misrepresentation - Insurance Contracts Act 1984 (Cth), s21 and
s29.
INSURANCE - Evidence - Advantage enjoyed by trial judge - Standard of proof Whether judge erred in respect of standard of proof - Briginshaw v Briginshaw (1938)
60 CLR 336 referred to - Evidence Act 2008, s140.
Westpac Life Insurance Services (ACN 003 149 157) v Guirgis, Thereze
Hansen JA, Beach JA, and Kaye JA
[2015] VSCA 239
09/09/2015
LEGAL PRACTITIONERS - Solicitors - Application by applicant's solicitor for leave
to file and serve a notice of ceasing to act - Relationship of solicitor and client
irretrievably broken - Application granted - Supreme Court (General Civil Procedure)
Rules 2005, r20.03, r64.15, r64.27 and r64.40.
Finch, Jo-anne v Thomas, Arnold & Becker P/L
Beach JA
[2015] VSCA 246
10/09/2015
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NEGLIGENCE - Appeal - Workplace psychiatric injury - Whether applicant should
have been aware of risk of further injury to respondent arising from difficult
relationship with supervisor - Whether applicant's response to risk of psychiatric
injury reasonable - Whether breach of duty of care caused respondent's psychiatric
injury - Whether damages for pecuniary loss, and pain and suffering manifestly
excessive - Leave to appeal refused.
NEGLIGENCE - Cross-application - Whether error in assessment of damages - 80
percent discount in damages - Cross-applicant likely to have been in same condition
in two years' time - Cross-applicant likely to have ceased work in two years - Fragile
psychological state - No demonstrated error in discount - Leave to cross-appeal
refused.
Box Hill Institute of TAFE v Johnson, Robert
Warren CJ, Hansen JA, and Kaye JA
[2015] VSCA 245
10/09/2015
PRACTICE AND PROCEDURE – Stay – Abuse of process – First application for
stay refused – Second application for stay made after new appellate authority –
Second application for stay granted – Whether second application for stay an abuse of
process – Whether order refusing stay final or interlocutory – Order refusing stay
interlocutory – Second application for stay not an abuse of process – Application for
leave to appeal refused – Permanent stay granted.
PRACTICE AND PROCEDURE – Stay – Abuse of process – Group proceeding –
Respondent company initiated proceeding – Respondent is lead plaintiff – Proceeding
commenced for predominant purpose of generating legal fees for respondent's
solicitor – Whether proper purpose – Whether proper use of processes of court –
Application for leave to appeal refused – Permanent stay granted
Melbourne City Investments P/L (ACN 161 046 304) v Leighton Holdings Ltd
Tate JA, Beach JA, and Robson AJA
[2015] VSCA 235
07/09/2015
TORT - Negligence - Negligent destruction of herd of cattle - Damages - Measure of
damages - Assessment of damages - Damages for loss of anticipated profits - Time at
which damages assessed - Discounted cash flows - Discount rate to be applied Difficulties in assessing damages - Difficulties in estimating loss not permitted to
defeat only remedy available - Application for leave to appeal refused.
DAMAGES - Assessment of damages - Application for leave to appeal - Appeal Advantages enjoyed by the trial judge - Long trial - Complex interlocking questions
of fact - Value judgments - Questions of fact and degree - Discretionary judgments Witnesses - Judge not bound to accept particular witness - Judge entitled to reject
evidence of particular witness - Time at which damages to be assessed - Discounted
cash flows - Discount rate to be applied - Difficulties in assessing damages Difficulties in estimating loss not permitted to defeat only remedy available - No real
prospect of appeal succeeding - Application for leave to appeal refused.
The Royal Society for the Prevention of Cruelty to Animals (Victoria) v Holdsworth,
James and Ellison, Heather Munro
Warren CJ, Hansen JA, and Beach JA
[2015] VSCA 243
10/09/2015
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COMMERCIAL COURT
CONTRACT - Application to enforce terms of settlement - Whether a representation
was made regarding the costs of the proceeding during the course of settlement
negotiations - Onus of proof borne by the party asserting the making of a
representation - Currie v Dempsey [1967] 2 NSWLR 532 followed - Play Australia
Pty Ltd v Papadimtriou [2014] VSC 608 considered - No representation made - The
legal effect of the representation if made - Whether representation made 'in trade or
commerce' - Liability for breach of collateral warranty and misleading and deceptive
conduct - Orders made enforcing terms of settlement.
Camil Holdings P/L (ACN 101 887 174) v McCarthy, Jane Catherine
Daly AsJ
[2015] VSC 430
04/09/2015
CORPORATIONS – Managed Investment Scheme – Debt recovery proceeding by
scheme lender – Defendants alleged equitable assignment of debt by the plaintiff to a
bank – Allegation by defendant that assignment must be pleaded and assignee joined
as a party Application by defendants for stay – Application by plaintiff to strike out
pleading – Plaintiff competent to commence and maintain proceeding – Pleading
struck out.
PRACTICE AND PROCEDURE – Application to strike out pleading – Equitable
assignment alleged by defendants – Whether assignment must be pleaded and
assignee joined as a party – Competency of assignor as plaintiff – Pleading struck out.
Timbercorp Finance Pty Ltd (In Liquidation) v FTM Nominees Pty Ltd & Anor
Judd J
[2015] VSC 498
17/09/2015
CORPORATIONS – Managed Investment Scheme – Group proceeding under Part 4A
of the Supreme Court Act 1986 – Court approved compromise – Group member
borrowers obliged to repay scheme loans – Recovery proceeding against defaulting
borrower – Plaintiff a party to Deed of Settlement but not all relevant group
proceedings – Entitlement of non-party to a group proceeding to enter judgment under
Deed of Settlement of group proceedings.
Javelin Asset Management v Byrne, Gerard Laurence
Judd J
[2015] VSC 491
17/09/2015
CORPORATIONS - Section 459G of the Corporations Act 2001 (Cth) - Setting aside
statutory demand
In the Matter of Access Solutions International P/L (ACN 144 796 556) v Taglieri,
Angelo Gabriel
Randall AsJ
[2015] VSC 494
11/09/2015
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INTERLOCUTORY INJUNCTION - Existing freezing order - Injunction over life
insurance proceeds - Access given to life insurance proceeds - Further order sought by
defendants preventing future tracing of life insurance proceeds paid to defendants'
lawyers.
Distinctive FX P/L (ACN 075 098 609) & Ors v Wright, Kylie and Vince, Peter (as
trustees of the Estate of Van Der Slot, Andrew Jason Pursuant to Part XI of the
Bankruptcy Act 1966 (Cth)) & Ors (No 3)
Elliott J
[2015] VSC 482
11/09/2015
INTERLOCUTORY INJUNCTION - Existing freezing order - Injunction over life
insurance proceeds - Application for variation to prevent access to life insurance
proceeds - Reasonableness of living expenses and legal costs - Access to alleged trust
monies where no significant other assets - Balance of convenience and discretion.
Distinctive FX P/L (ACN 075 098 609) & Ors v Wright, Kylie and Vince, Peter (As
Trustees of the Estate of Van Der Slot, Jason Andrew Pursuant to Part XI of the
Bankruptcy Act 1966 (Cth)) & Ors (No 2)
Elliott J
[2015] VSC 454
31/08/2015
SECURITY FOR COSTS - Corporate plaintiffs resident outside the jurisdiction with
no assets in the jurisdiction - Agreement to provide security in tranches but
disagreement as to form and, in respect of one group of defendants, quantum Whether security may be provided by means of a deed of indemnity from AmTrust
Europe Limited - Held that not appropriate on the current evidence - Security to be
provided by guarantee from an Australian bank or authorised deposit taking institution
- Determination as to quantum of security for certain defendants.
Between DIF III Global Co-Investment Fund, L.P. (formerly [Babcock & Brown
DIF III Global Co-Investment Fund, L.P.]) and DIF III GP Ltd v BBLP LLC
(formerly [Babcock & Brown LP]) and Ors (according to the schedule attached)
and between:BBLP LLC (formerly [Babcock & Brown LP]) and Ors (according to
the schedule attached) (Plaintiffs by Counterclaim) v DIF III Global Co-Investment
Fund, L.P. (formerly [Babcock & Brown DIF III Global Co-Investment Fund,
L.P.]) and DIF III GP Ltd (Defendants by Counterclaim)
Lansdowne AsJ
[2015] VSC 484
11/09/2015
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COMMERCIAL & EQUITY DIVISION
CONTEMPT - Freezing order - Breach by withdrawals from bank account Exceptions to order - Onus of proof of exceptions - Whether increase in indebtedness
breaches order - Whether bank account an asset of director of company - Whether
charges should be dismissed in exercise of discretion - Supreme Court (General Civil
Procedure) Rules 2005 r75.06
CC Containers P/L and others (according to the attached schedule) v Desmond
Ming Lee and others (according to the attached schedule) (No 7)
Ginnane J
[2015] VSC 477
09/09/2015
CONTEMPT - Freezing order - Breach by withdrawals or transfers from bank or
gaming accounts - Exceptions to order - Direct debits - Ordinary living expenses Onus of proof of exceptions - Whether exceptions proved to apply to withdrawals Lack of proof of who made withdrawal in respect of one charge - Supreme Court
(General Civil Procedure) Rules 2005 r75.6
CC Containers P/L and others (according to the attached schedule) v Desmond
Ming Lee and others (according to the attached schedule) (No 8)
Ginnane J
[2015] VSC 478
09/09/2015
PRACTICE AND PROCEDURE — Application to reopen – Incorrect assumption of
legal position – New evidence – Risk of inconsistent judgments – Application refused.
COURTS — Abuse of process – Second proceeding with near identical allegations of
fact – Same person controlled both proceedings – Second proceeding brought for an
ulterior purpose – Risk of inconsistent judgments – Second proceeding unfairly
prejudicial to defendants – Administration of justice – Stay granted.
Break Fast Investments v Gravity Ventures & Ors (No 1)
Judd J
[2015] VSC 497
17/09/2015
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COMMON LAW DIVISION
ACCCIDENT COMPENSATION - Workers compensation - Serious injury Preconditions for bringing proceeding - Non-compliance with preconditions - Failure
to issue proceeding within prescribed time - Condition precedent to the valid
institution of proceedings - Consent to issue proceeding out of time - Implied consent
- Extinguishment of cause of action - Accident Compensation Act 1985 s134AB(12),
s134AB(20A), s138A.
Quinlan, Lynda Joy v Catholic Regional College Sydenham - Association of
Canonical Administrators - Rev. FR. J. O’Reilly - Chair, Rev. FR. B. Glasheen,
Rev. FR. F. Smith, Rev. FR. M. Tran, Rev. FR. N. Brady, Rev. FR. F. Cavara, Rev.
FR. C. Portelli, Rev. FR. Tollan, REV. FR. F. Reddy
Zammit J
[2015] VSC 463
09/09/2015
ADMINISTRATIVE LAW - Appeal from order made by the Victorian Civil and
Administrative Tribunal - Alteration of lot liability on a plan of subdivision - Whether
Tribunal correctly construed s32 and s33 of the Subdivision Act 1988 - Whether
s33(1) creates a right to apply to Registrar of Titles for a change in lot entitlement and
lot liability independent of right to do so under s32(k) - Meaning of 'just and
equitable' in s33(3) - Relevant considerations - s3, s32, s32AE, s33, s34D(1)(a),
s34(2), s34(D)(3), of the Subdivision Act 1988 considered. PROPERTY LAW - Plan
of subdivision - Owners Corporation - Alteration of lot liability on a plan of
subdivision - Whether s33(1) creates a right to apply to Registrar of Titles for a
change in lot entitlement and lot liability independent of right to do so under s32(k) Meaning of 'just and equitable' in s33(3) - Relevant considerations - s3, s32, s32AE,
s33, s34D(1)(a), s34(2), s34(D)(3), of the Subdivision Act 1988 considered.
STATUTES - Interpretation - s32 and s33 of the Subdivision Act 1988 - Context and
purpose considered - Words and phrases - 'change to lot liability', 'just and equitable',
'administrative and general expenses of the owner's corporation.'
The Concept Developer P/L (ACN 007 364 712) v Conroy, Christine Lenore & Ors
John Dixon J
[2015] VSC 464
14/09/2015
CIVIL PROCEDURE - Summary dismissal sought by defendant - Plaintiff's claim
having no real prospects of success - Police impoundment of motor car for road traffic
offence - Allegation of police discourtesy and rudeness - Allegation that
impoundment unlawful - Allegation that Road Safety Act invalid - Need to show
recognisable civil cause of action - No grounds for amendment to save claim Proceeding dismissed.
Vats, Praveen v Allen, Mick & Ors
Mukhtar AsJ
[2015] VSC 501
17/09/2015
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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) & Ors
(According to the schedule attached) v Talacko, Jan Emil & Ors (According to the
schedule attached)
McDonald J
[2015] VSC 287
07/08/2015
EVIDENCE - Admissibility - Hearsay evidence and relevance of evidence - Business
record exemption under s69 of the Evidence Act 2008 (Vic) ('Act') - Representation
was hearsay evidence in business record - Definition of 'business' in the dictionary of
the Act - Council established under the Local Government Act 1989 a 'business' for
the purposes of s69 - Identification of representation in documents relied upon Sections 170 and 171 of the Act not an exclusive means of proving the matters under
s69 - Representations excluded under s56(2) of the Act on ground of lack of relevance
- As to another representation, not established that the author or authors had, or might
reasonably be supposed to have had, personal knowledge of the asserted fact or facts
comprising the representation for the purposes of s69(2)(a) or under s69(2)(b) of the
Act - Evidence of the representation not admissible under s59 of the Act - Evidence
further excluded pursuant to s135 of the Act - Probative value of the evidence
substantially outweighed by s135 factors - Evidence Act 2008 (Vic) s56, s59, s69,
s135, s170, s171
1165 Stud Road P/L (ACN 104 794 461) v Power, Robert James & Ors (According
to the Schedule of Parties)
Vickery J
[2015] VSC 476
03/09/2015
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NEGLIGENCE - Claim for psychiatric injury sustained as a result of the sexual abuse
of the plaintiff by the first defendant - Nature of the duty of care - Direct and vicarious
liability - Whether the second defendant breached the duty of care owed to the
plaintiff - Causation of damage - Extent that plaintiff's injury is attributable to the
period when the plaintiff attended the premises of the second defendant as a student Nationwide News Pty Ltd v Naidu & Anor; ISS Security Pty Ltd v Naidu & Anor
(2007) 71 NSWLR 471 - Tesco Supermarkets Ltd v Nattrass [1972] AC 153 Christian Youth Camps Ltd v Cobraw Community Health Services Ltd (2014) 308
ALR 615 - Meridian Global Funds Management Asia Ltd v Securities Commission
[1995] 1 AC 500 - Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC
705 - Director of Public Prosecutions Reference No. 1 of 1996 [1998] 3 VR 352 Hawkins v Clayton (1986) 5 NSWLR 109 - Beach Petroleum NL v Johnson (1993)
115 ALR 411 - State of New South Wales v Lepore [2003] 212 CLR 511 - Sprod v
Public Relations Orientated Security Pty Ltd [2007] NSWCA 319 - Blake v JR Perry
Nominees Pty Ltd (2012) 38 VR 123 - Withyman v State of New South Wales and
Blackburn [2013] NSWCA 10 - A, DC v Prince Alfred College Incorporated [2015]
SASC 12.
DAMAGES - Damages awarded for pain and suffering, loss of enjoyment of life,
economic loss and medical expenses - Claim for aggravated and exemplary damages Exemplary damages awarded against the first and second defendant - Carter & Anor v
Walker & Anor [2010] VSCA 340 - Backwell v AAA [1997] 1 VR 182 - Downes v
Amaca Pty Ltd (2010) 78 NSWLR 451.
Erlich, Hadassa v Leifer, Malka, Adass Israel School Inc
Rush J
[2015] VSC 499
16/09/2015
PRACTICE AND PROCEDURE - Appeal from Associate Judge relating to further
discovery - Principles relevant for appeal of an Associate Judge's decision Distinction between r29.08 and r29.01.1(3) of the Supreme Court (General Civil
Procedure) Rules 2005 (Vic) ('the Rules') discussed - Open for Associate Judge to
conclude documents relevant and should be discovered - Whether Associate Judge’s
reasons were adequate - Appeal dismissed - r29.08, r29.01.1 and r77.06 of the Rules.
Braham, Simon v ACN 101 482 580 PTY LTD (ACN 101 482 580) (and others
according to the schedule attached) and between Poon, Eric v ACN 101 482 580
PTY LTD (ACN 101 482 580) (and others according to the schedule attached) (No
2)
Macaulay J
[2015] VSC 492
14/09/2015
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PRACTICE AND PROCEDURE - Proceeding for assessment of damages after entry
of judgment in default of defence - Plaintiff's application further to amend particulars
of damage - Trial in ninth day - Whether in interests of justice to grant leave Whether prejudice to defendant remediable.
APPEAL - Refusal of leave to issue subpoenas - In light of leave being granted
further to amend particulars of damage, whether leave to issue subpoenas should be
granted - Supreme Court (General Civil Procedure) Rules 2008 (Vic).
Boral Resources (Vic) P/L (ACN 004 620 731) & Ors v Construction, Foresty,
Mining and Energy Union (Ruling No 4)
Bell J
[2015] VSC 473
04/09/2015
PRACTICE AND PROCEDURE - Freezing order - Application for variation of
freezing order to enable third defendant to increase allowance to pay legal fees Application by a non-party to be removed from operation of freezing order - Deputy
Commissioner of Taxation v Karas & Ors [2012] VSC 68 - Deputy Commissioner v
Bollands [2012] FCA 1050 - Supreme Court (General Civil Procedure) Rules 2005, O
37A.
Australia's Residential Builder P/L (ACN 136 733 732) (in liquidation) and Rohrt,
Richard Trygve in his capacity as joint and several liquidator of Australia's
Residential Builder P/L (ACN 136 733 732) (in liquidation) v Wiederstein, Robert
and De Weerd, Raymond Francis and Wiederstein, Bronwyn (No 2)
McMillan J
[2015] VSC 471
07/09/2015
SALE OF LAND - Contract not expressed to be subject to finance - Pre-contractual
disclosure by purchaser of a dependence on funds overseas - No negotiation or
agreement of a protective condition - Execution of contract by purchaser with
knowledge of any such condition - Default - Assertion of implied term of being
subject to finance - Failure to file defence - Default judgment - No basis for an
implied term or rectification or cognate defences - Judgment not set aside.
PRACTICE AND PROCEDURE - Application to set aside default judgment Discretionary approach - Requirement to show defence on merits - No real factual
controversy - Demonstration of legal unsustainability - No real question for trial
O'Toole, Kerri Louise v Kent, Michelle Esterhuyse and Kent, Ashley
Mukhtar AsJ
[2015] VSC 470
04/09/2015
WILLS AND ESTATES - Where applicants seek determination of issues arising from
settlement deed - Supreme Court (General Civil Procedure) Rules 2005, O 54
Di Benedetto, Salvatore Di (in his capacity as executor and trustee of the will and
estate of Luigi Di Benedetto) and Kilton Grange P/L (ACN 007 263 176) (in its
capacity as trustee of the Green Gable Family Trust settled by deed on 15 May
1995) v Kobor, Susi
McMillan J
[2015] VSC 472
07/09/2015
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WILLS AND ESTATES - Whether deceased knew and approved of her will Whether the circumstances of the making of the deceased's will were suspicious Deceased's proficiency in English - Whether solicitors for the deceased acted
independently of the plaintiff - Nock v Austin (1918) 25 CLR 519 - Tobin v Ezekiel
[2012] NSWCA 285 - Veall v Veall [2015] VSCA 60
Barbon, Harry v Tessari, Lucia
McMillan J
[2015] VSC 490
31/08/2015
CRIMINAL DIVISION
CRIMINAL LAW - Bail - Applicant charged with extortion and other offences Applicant required to show cause why his detention in custody not justified - Whether
applicant an unacceptable risk - Bail Act 1977, s4(4), s4(2)(d)(i) - Robinson v The
Queen [2015] VSCA 161 - Application refused.
In the Matter of an Application for Bail by Barden, Timothy
Priest JA
[2015] VSC 493
11/09/2015
CRIMINAL LAW - Bail - Murder - Whether the applicant has exceptional
circumstances why detention not justified - Bail Act 1977, s13(2) - Exceptional
circumstances not established.
In the Matter of an Application for Bail by Sheen, Mark
Priest JA
[2015] VSC 486
10/09/2015
CRIMINAL LAW - Sentence - Murder - Common assault - Plea of guilty - Traumatic
childhood - Post-traumatic stress disorder - Cognitive impairment - Reduced moral
culpability.
The Queen v Issa, Fatah
Beale J
[2015] VSC 469
04/09/2015
CRIMINAL LAW - Severance - Application for theft charge to be severed from
reckless endangerment charges - Unfair prejudice - Application granted - Criminal
Procedure Act 2009 (Vic) s193
The Queen v El-Chakik, Ishan (Ruling No 1)
Beale J
[2014] VSC 506
10/10/2014
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