ACCIDENT COMPENSATION - Serious injury - Applicant sustained injury to left shoulder, right shoulder and right elbow in course of employment with respondent - Applicant sought leave to commence proceedings for pecuniary loss damages in County Court pursuant to Workplace Injury Rehabilitation and Compensation Act 2013 - Applicant required to establish loss of earning capacity of 40 per cent or more on permanent basis - Applicant omitted full employment history and earnings from first affidavit - Applicant filed further affidavit disclosing full employment history and earnings - Judge found applicant not a credible or reliable witness as result of omission in first affidavit and found that second affidavit a 'construct' - Judge refused tender of further evidence relevant to applicant's credibility - Whether judge's findings on credibility and 'construct' erroneous - Whether rejection of further evidence erroneous - Leave to appeal granted - Appeal allowed.
Evidence Act 2008, ss 39, 108; Workplace Injury Rehabilitation and Compensation Act 2013, ss 325, 335; Supreme Court (General Civil Procedure) Rules 2015, r 64.37.
Connelly v Transport Accident Commission [2024] VSCA 20; Fox v Percy (2003) 214 CLR 118; GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; Humphries v Poljak [1992] 2 VR 129; Lee v Lee (2019) 266 CLR 129; Victorian WorkCover Authority v Perumal [2024] VSCA 107; Warren v Coombes (1979) 142 CLR 531.
PRACTICE AND PROCEDURE - Orders - Where trial judge had made referral to special referee - Changes required to directions to special referee following successful appeal.
PRACTICE AND PROCEDURE - Costs - Where appellants had only partial success on appeal - Whether respondents should pay all of appellants' costs - Respondents ordered to pay 80 per cent of appellants' costs.
PRACTICE AND PROCEDURE - Stay - Whether appropriate to order stay of execution of judgment pending application for special leave to appeal to High Court - Principles applicable to stay - No order for stay.
Nom de Plume Nominees Pty Ltd v Fingal Developments Pty Ltd [No 2] [2016] VSCA 233, applied; Mann v Paterson Constructions Pty Ltd [2018] VSCA 313, discussed.
PRACTICE AND PROCEDURE - Application for extension of time within which to seek leave to appeal against conviction - Application for leave to appeal against conviction - Applicant relying on interim/holding written case - Applicant currently not taking any step to finalise written case - Applicant's solicitors seeking leave to cease acting - Whether applications should be dismissed for want of prosecution - Premature to dismiss applications at this stage - Orders made requiring applicant to file and serve revised notice of application for leave to appeal against conviction and final written case in support.
STATUTORY CONSTRUCTION - Criminal Procedure Act 2009 ('CPA') ch 5, s 159(3), sch 1 cl 1(b) - Indictments - Dangerous driving causing death and dangerous driving causing injury - Whether charge in indictment failed to comply with CPA, sch 1 cl 1(b) - Whether charge contained 'particulars that are necessary to give reasonable information as to the nature of the charge' - Charge provided details of date, place and victim of dangerous driving - Whether judge correct to conclude charge did not comply and to order permanent stay - Charge complied with cl 1(b) sch 1 of CPA - Leave to appeal granted - Appeal allowed.
Crimes Act 1958, ss 319(1), 319(1A); Criminal Procedure Act 2009, ss 159, 182, 165, 224, sch 1.
Fox v Director of Public Prosecutions (Vic) (2022) 66 VR 223, applied; Baiada Poultry Pty Ltd v Glenister (2015) 257 IR 204, distinguished.
CRIMINAL LAW - Appeal - Sentence - Trafficking drug of dependence, possession of drug of dependence, knowingly dealing with proceeds of crime, handling stolen goods and related summary offences - Applicant sentenced to drug and alcohol treatment order - Custodial sentence activated on basis that applicant unwilling to comply with order - Whether judge gave adequate reasons - Reasons insufficient to expose path of reasoning - Leave to appeal granted - Appeal allowed - Sentence set aside.
Sentencing Act 1991, ss 18X-18ZS.
Chief Commissioner of Police v Crupi (2024) 98 ALJR 1131, considered.
CRIMINAL LAW - Interlocutory appeal - Defence seeks to lead evidence of good character - Whether prosecution permitted to lead evidence in rebuttal - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Applicant charged with using carriage service to access child abuse material and possession or control of child abuse material - Total effective sentence of 26 months' imprisonment - Plea of guilty - Applicant relied on diagnosis of post-traumatic stress disorder as mitigating factor at plea - Whether judge erred in failing to find exceptional circumstances - Whether sentence manifestly excessive - Application for leave to appeal refused.
R v Verdins (2007) 16 VR 269; Director of Public Prosecutions (Cth) v D'Alessandro (2010) 26 VR 477; R v De Leeuw [2015] NSWCCA 183; Worboyes v The Queen [2021] VSCA 169, considered.
Crimes Act 1914 (Cth), 20(1)(b), considered.
CRIMINAL LAW - Appeal - Conviction - Sexual offending against former intimate partner - Trial by jury - Judge discharged two jurors and continued trial with jury of 10 - Judge considered whether high degree of need to discharge whole jury but not whether positive or good reason existed to continue trial with only 10 jurors - Judge erred in failing to consider if positive or good reason to continue trial with reduced jury - Substantial miscarriage of justice - Application for leave to appeal granted - Appeal allowed - Convictions set aside and new trial ordered.
Juries Act 2000, ss 43, 44; Criminal Procedure Act 2009, s 276.
Wu v The Queen (1999) 199 CLR 99; Baini v The Queen (2012) 246 CLR 469; Kennedy v The King [2023] VSCA 86 applied.
CRIMINAL LAW - Appeal - Where judge found applicant unfit to stand trial following investigation under Part 2 Div 2 of Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - Whether judge erred - No error in judge's decision - Application for leave to appeal dismissed.
CRIMINAL LAW - Appeal - Where judge made order under s 16(2)(e) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and s 197(3) of the Criminal Procedure Act 2009 that Victoria Legal Aid provide legal representation to applicant - Where judge certified order under s 295(3) of the Criminal Procedure Act - Whether order amenable to interlocutory appeal under s 295 of Criminal Procedure Act - Order not amenable to appeal - Application for leave to appeal dismissed.
Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, ss 6, 7, 14D, 14E, 14I, 16(2)(e); Criminal Procedure Act 2009, ss 3, 197(3), 197(7), 295.
Cook v The Queen [2019] VSCA 87, followed.
PROCEEDS OF CRIME - Appeal - Applicant's husband purchased property with proceeds of crime - Respondent obtained forfeiture orders pursuant to ss 47 and 49 of the Proceeds of Crime Act 2002 (Cth) - Judge dismissed applicant's applications for exclusion from forfeiture, compensation, exclusion from restraining order, and relief from hardship - Judge found applicant did not have interest in property other than as tenant - Judge found applicant not a credible or reliable witness - Whether judge erred in failing to find that applicant had an equitable interest in property arising from remedial constructive trust - Remedial constructive trust not claimed at trial - Leave to appeal refused.
Muschinski v Dodds (1985) 160 CLR 583; Baumgartner v Baumgartner (1987) 164 CLR 137; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; Coulton & Ors v Holcombe & Ors (1986) 162 CLR 1; Water Board v Moustakas (1988) 180 CLR 491; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; Green v Green (1989) 17 NSWLR 343; NSW Trustee and Guardian v Togias (2022) 110 NSWLR 86, considered.
Criminal Code Act 1995 (Cth), s 400.5, 400.9; Proceeds of Crime Act 2002 (Cth), ss 5, 18, 19, 25, 72, 73, 77 and 78, referred to.
PROCEEDS OF CRIME - Application for relief from hardship - Whether judge applied correct test in determining whether applicant established requisite 'hardship' under s 72 of Proceeds of Crime Act 2002 (Cth) - Whether judge erred in concluding that the applicant had not established 'hardship' - Leave to appeal refused.
R v Lake (1989) 44 A Crim R 63; Director of Public Prosecutions v Ali (No 2) [2010] VSC 503, considered.
PROCEEDS OF CRIME - Appeal - Fresh evidence application - Application for relief from hardship - Applicant's daughter diagnosed with Autism Spectrum Disorder - Diagnosis could have been discovered before judgment by exercise of reasonable diligence - If evidence admitted it would not have produced opposite result - Leave to appeal refused.
Commonwealth Bank of Australia v Quade (1991) 178 CLR 141; Orr v Holmes (1948) 76 CLR 632; McDonald v McDonald (1965) 113 CLR 529, considered.
WITNESSES - Application to take evidence by video link from two witnesses in Lebanon - Requirement to make out a case for such an order to be made - What the interests of justice require in a particular case - Evidence (Miscellaneous Provisions) Act 1958 (Vic), s 42E - ASIC v Rich (2004) 49 ACSR 578 - Wilson v Bauer Media (Ruling No 3) [2017] VSC 311 - Kirby v Centro Properties (2012) 288 ALR 601 - Ghosn v Principle Focus Pty Ltd & Ors (Ruling) [2008] VSC 454 - Joyce v Sunland Waterfront (BVI) Ltd (2011) 195 FCR 213.
DISCOVERY - Whether defendants entitled to discovery concerning plaintiff's financial position in Part IV litigation - Whether special circumstances required to be shown - Court's independent power to ascertain full value of estates - Administration and Probate Act 1958, s 94 - Harris v Bennett (2004) 8 VR 425 - Re Thompson; Thompson v Chen [2022] VSC 400, [43] - Waters v Belza & Anor [2024] VSC 157.
APPLICATION FOR FREEZING ORDER - Application based on asserted allegations of serious dishonesty - Conduct complained of not within that description - Requisite risk of dissipation of assets not established - Assertion that unless restrained defendants would not preserve assets intact - Zhen v Mo [2008] VSC 300; Distinctive FX Pty Ltd v Wright [2015] VSC 299; Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319, applied.
PRACTICE AND PROCEDURE - Default judgment sought pursuant to r 21.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and r 2.07(1) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic) - Where no defence filed despite order - Application granted.
COSTS - Application by second defendant for leave to file defence and counterclaim on behalf of first defendant in this proceeding - Application dismissed - Applicable principles on costs - Exercise of discretion - Supreme Court Act 1986 (Vic) s 24.
COSTS - Application for immediate taxation - Where circumstances justify order that costs may be taxed immediately - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.20.1.
COSTS - Gross sum costs order - Whether appropriate in circumstances to fix gross sum or order taxation - Whether costs broadly reasonable - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.07.
COSTS - Applicable principles where liquidators appeared as intervener - Where intervention was necessary to protect the intervener's interests - City of Burnside v Attorney- General of South Australia (1994) 63 SASR 65 and Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878 considered.
PRACTICE AND PROCEDURE - Contempt of Court - Civil and criminal contempt - Whether defendant failed to comply with court orders by not correcting register of members of company and failing to provide financial records - Whether proven beyond reasonable doubt that defendant's conduct was defiant or contumacious - Consideration of relevant principles - Breach of orders - Contempt established - Declarations and orders for indemnity costs sufficient recognition of the Court's disapproval of the contemnor's conduct - Quantum of costs to be fixed - Corporations Act 2001 (Cth) ss 175, 233 and 247A.
CORPORATIONS - Application seeking conferral of power to sell or otherwise deal with the property of the company held on trust - Section 63 of the Trustee Act 1958 (Vic) - Power of the Court to appoint a receiver under the Supreme Court Act 1986 (Vic) and Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Whether the preferable course is to confer power under the Trustee Act 1958 (Vic) or to appoint a receiver - Re Amerind Pty Ltd (receivers and managers apptd) (in liq) (2017) 320 FLR 118 applied - Ipso facto provision of the Trust Deed - Company acting as bare trustee - Conferral of power under s 63 of Trustee Act 1958 (Vic) more cost efficient than appointing receiver - Orders under s 1318 of the Corporations Act 2001 (Cth) - Re Simpkiss Pty Ltd (in liq) [2018] FCA 2121 applied - Order as to remuneration, costs and expenses of liquidator.
JUDICIAL REVIEW - Sex Offenders Register - Application for order that an offender comply with the reporting obligations under the Sex Offenders Registration Act 2004 - Prosecutor applying for adjournment to obtain further supporting material - Adjournment refused and application struck out - Whether denial of procedural fairness - Magistrate's remarks about the offender in sentencing remarks - Whether remarks established apprehended bias by the Magistrate in deciding application - Risk that offender would not have legally aided representation on any adjourned date - Whether Magistrate applied incorrect statutory test to application - Whether informant could make a second application for same order - Error in order recording that the application was withdrawn when application struck out - Sex Offenders Registration Act 2004 s 11; Magistrates' Court Act 1989 s 136.
JOINDER - Rule 9.06 of the Supreme Court (General Civil Procedure) Rules 2015 - Discretion to join - Judicial review proceedings seeking mandamus or mandatory injunction against proposed defendant - Relevance of the nature of the relief sought against proposed defendant given nature of power sought to be compelled - No direct effect on the rights of the proposed defendant - No justiciable controversy between the plaintiffs and the proposed defendant - Proposed relief futile - Interests of justice do not favour the joinder.
DISCOVERY - Rule 29.07 of the Supreme Court (General Civil Procedure) Rules 2015 - General discovery in accordance with r 29.01.1 - Discovery in judicial review proceedings - Insufficient identification of issues in dispute in the proceeding - No evidence to ground a suspicion that the plaintiffs have a good case which will be assisted by discovery - Categories for discovery sought extremely broad - Discovery request speculative - No discovery ordered.
ADMINISTRATIVE LAW - Judicial review - Opinion of medical panel - Plaintiff claimed to have fallen at a shopping centre - Pre-existing and subsequent condition of left knee - Referral of medical question to a medical panel - Panel found soft tissue injury to left knee now resolved - Panel determined that degree of whole person impairment does not satisfy the 'threshold level' - Whether panel misconstrued and otherwise erred in respect of s 28LL(3) of the Wrongs Act 1958 (Vic) - Amendola v Coles Supermarkets Australia Pty Ltd [2008] VSC 36, Chua v Lowthian & Ors [2011] VSC 468, Mitchell v Malios [2013] VSC 480, Ingle v Australia Pacific Airports (Melbourne) Pty Ltd & Ors [2021] VSC 50, Vision Precast Pty Ltd & Ors v Ferguson & Ors [2021] VSC 808 and CD v Central Gippsland Health Service [2022] VSC 462 considered - No error - Proceeding dismissed.
BUILDING CONTRACT - Appeal from Victorian Civil and Administrative Tribunal - Domestic building contract dispute between owner and builder - Whether Tribunal denied procedural fairness to owner - Whether the Tribunal erred in finding owner was liable to make payment of Progress Payment Recommendation No 4 and 11 - Whether the Tribunal erred in finding that owner was liable to make payment for variations and prime cost sum adjustments - Leave to appeal granted - Appeal allowed - Domestic Building Contracts Act 1995 (Vic) ss 37, 38.
WILLS AND ESTATES - Rectification - Wills Act 1997 (Vic), s 31(1) - Whether the will carries out intentions of the testator - Whether a 'clerical error' - Whether the will does not give effect to the testator's instructions - Meaning of 'clerical error' - Re Estate of Prevost [2004] VSC 537 - Marley v Rawlings [2015] AC 129.
PRACTICE AND PROCEDURE - Group proceeding - Pleadings - Leave to amend statement of claim - Summary dismissal or strike out application in respect of claims under the Australian Consumer Law - Pleading deficiencies - Whether representations to a class of persons relevant where individual loss and damage claimed - Whether claims are for personal injury and precluded by s 137C of the Competition and Consumer Act 2010 (Cth) - Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 - Baltic Shipping Co v Dillon (1993) 176 CLR 344 - Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 - Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326 - Moore v Scenic Tours Pty Ltd (No 4) (2022) 409 ALR 259 - Karpik v Carnival plc [2023] FCA 1280.
PRACTICE AND PROCEDURE - Pleadings - Plaintiffs' application to amend statement of claim, joinder and particular discovery - Rule 9.06 and r 29.08 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Plaintiffs' claim that trust deed varied without acting in good faith, upon a real and genuine consideration; and in accordance with, and taking into account, the purpose for which the discretion to vary trust deed was conferred - Joinder of sole director and secretary of trust - Application granted in part.
PRACTICE AND PROCEDURE - Notice given by plaintiffs for jury trial - Application by defendant for trial to be heard by a judge alone - Claims in negligence against identified Victoria Police officers and of misfeasance in a public office connected with first plaintiff's use as police informer - Significant complexity - Publicity and notoriety of factual and legal issues - Potential for significant practical trial management issues if jury trial - Supreme Court (General Civil Procedure) Rules 2005 r 47.02 - Birti & Anor v SPI Electricity & Anor [2011] VSC 566 - Dupas v The Queen (2010) 241 CLR 237 - Kyriackou & Ors v Edwards (ruling on trial by jury) [2014] VSC 201 - Trial to proceed by judge alone - Application granted.
PRACTICE AND PROCEDURE - Application to vary orders granting administration of deceased estate - Whether parties should be passed over as executors in order to give effect to orders - Whether requirement for surety should be dispensed with - Whether court has inherent jurisdiction to vary orders disposing of proceeding - Application to pass over parties as executors granted.
PRACTICE AND PROCEDURE - Appeal from decision of an Associate Judge - Appeal to Judge of Trial Division - Whether error in dismissing summons seeking leave pursuant to s 135BB of the Accident Compensation Act 1985 (Vic) - Appeal granted.
ACCIDENT COMPENSATION - Construction - Section 135BB of the Accident Compensation Act 1985 (Vic) - Asbestos-related condition - When 'imminent risk of death' relevant - Perakis v Secretary to the Department of Transport, Planning and Local Infrastructure (2017) 55 VR 367.
CRIMINAL LAW - Murder - Convicted by jury - Continued denial of responsibility - Offender beat 77 year old victim to death in her own home with a weapon - Sentenced on basis that offender broke in intending to commit burglary and was disturbed by deceased - Post-offence conduct including pretending to find the deceased's body and lying to police - Delay - Significant period on remand - Standard sentence offence - Serious violent offender - Sentenced to 27 years' imprisonment with a non-parole period of 20 years' imprisonment - Sentencing Act 1991 (Vic) ss 5, 5A, 5B, 6B & 11A; Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269.
CRIMINAL LAW - Mental impairment - Court-ordered review of non-custodial supervision order - Continuation of order supported by treating experts, the Secretary and the Attorney-General - Non-custodial supervision order confirmed - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, ss 33, 39, 40, 75.
CRIMINAL LAW - Sentencing - Manslaughter - Unlawful and dangerous act - Stabbing - Group attack on deceased - Complicity - Youthful offenders - Guilty plea - Rehabilitation prospects - Exceptional circumstances for Youth Justice Centre Order - The Queen v Verdins (2007) 16 VR 269 - Sentencing Act 1991 (Vic) s 32(2C).
CRIMINAL LAW - Supervision Order - Unopposed application for Interim Supervision Order - Non-publication order sought by respondent and opposed by the applicant - Suitability of Corella Place on ongoing basis - Serious Offenders Act 2018 (Vic) ss 22, 47, 279.
CRIMINAL LAW - Sentence indication - Dangerous driving causing death - Charge of murder - Accused caused death by driving in dangerous manner - Accused accelerated and swerved onto the wrong side of the road - Aware that there were pedestrians in close vicinity of vehicle - Fled scene - Not satisfied that accused was aware that he had struck deceased man - Prior criminal history - General deterrence - Four and a half years' imprisonment - Criminal Procedure Act 2009 (Vic).
CRIMINAL LAW - Sentence - Manslaughter - Accused and deceased drug associates, argument surrounding debt, deceased hit over the head with a log - Serious example of manslaughter - Limited criminal history, no matters of violence - Guilty plea - Limited remorse - Sentence indication given - Disclosure after sentence indication of last known location of body - Body not located - Extensive efforts to conceal body - General deterrence, denunciation and just punishment important - Specific deterrence and community protection important - Crimes Act 1958 (Vic) - Sentencing Act 1991 (Vic).
CRIMINAL LAW - Bail - Application for revocation of bail - Applicant granted bail on conditions that he reside at fixed premises, that he not consume drugs or alcohol, and that he not drive a motor vehicle - Applicant not residing at fixed address - Applicant arrested on allegations of driving stolen vehicle while affected by drugs - Bail revoked.
Bail Act 1977 (Vic), ss 3A and 18AE.
CRIMINAL LAW - Bail application - Co-accused - Applicants facing multiple charges including home invasion, intentionally cause serious injury, reckless conduct endangering life, aggravated burglary with a firearm, armed robbery and common law assault - Delay and strength of prosecution case relevant to both applicants - First applicant had family support, stable accommodation and no criminal history - Second applicant had lengthy criminal history, limited supports available and no appropriate accommodation - Compelling reason and no unacceptable risk of reoffending in respect of first applicant - Bail granted in respect of first applicant - No compelling reason and unacceptable risk of reoffending in respect of second applicant - Bail refused in respect of second applicant.
PRACTICE AND PROCEDURE - Claim by builder against building surveyors in negligence for economic loss - Damages claimed were builder's potential liability to owner in earlier action - Building surveyors had been parties in first action until they settled with owner - Application of principles of Anshun estoppel - Alternatively whether commencement of second action an abuse of process - Pleading of negligence claim defective - Second action dismissed.