Victorian Reports (Volumes 50, 51, 52)


Here’s our table of contents for the Victorian Reports, with Links to the Cases:

 

Accident compensation

Ashley, Osborn and Kaye JJA – 17 Jun 2016 – 42 pages

Accident compensation – ‘No current work capacity’ – ‘Current work capacity’ – ‘Suitable employment’ – Accident Compensation Act 1985 (Vic) ss 5, 93C.

Sednaoui v Amac Corrosion Protection Pty Ltd (2017) 52 VR 247

Priest and Beach JJA and Cameron AJA – 29 Mar 2017 – 20 pages

Accident compensation – Serious injury application – Whether injury occurred in compensable circumstances – Payment of statutory benefits by insurer – Whether admission against interest by employer – Nature and significance of admission – Worker’s credibility in issue – Accident Compensation Act 1985 (Vic) s 134AB.

Administration and probate

Kyrou and McLeish JJA – 30 Jun 2017 – 24 pages

Administration and probate – Partial intestacy – Assets in Victoria and China – Whether intestacy provisions of Victorian law or Chinese law apply – Effect of order of Supreme Court of Victoria granting letters of administration for a will disposing of only part of deceased’s personal estate in Victoria.

Administrative law

Warren CJ, Beach and Ferguson JJA – 09 Dec 2016 – 27 pages

Administrative law – Ombudsman – Jurisdiction – Investigatory powers – Investigation of matter referred by Legislative Council – Absent referral, matter not within Ombudsman’s jurisdiction – Whether matter referred by Legislative Council in Ombudsman’s jurisdiction – Ombudsman Act 1973 (Vic) s 16.

John Dixon J – 10 Apr 2017 – 167 pages

Administrative law – Judicial review – Habeas corpus – Jurisdictional error – Validity of Orders in Council – Jurisdictional fact – Power to establish centres for detention of young persons – Children, Youth and Families Act 2005 (Vic), ss 1, 3, 8, 9, 10, 11, 478, 482, 484, 487, 488.

Administrative law – Judicial review – Habeas corpus – Certiorari – Validity of Orders in Council – Improper or extraneous purpose – Failure to take into account relevant considerations – Power to establish centres for detention of young persons – Use of power to establish remand centre and youth justice centre within adult jail for the purpose of ‘emergency accommodation’ – Children, Youth and Families Act 2005 (Vic) ss 478, 482, 484.

Santamaria, Ferguson and McLeish JJA – 29 May 2015 – 23 pages

Administrative law – Coercive powers order for examination under Major Crime (Investigative Powers) Act 2004 – Non-publication direction made by delegate – Direction later rescinded – Instrument of delegation ‘in respect of’ coercive powers order – Whether delegation extended to revocation of non-publication direction – Interpretation of Legislation Act 1984 (Vic) s 41A – Major Crime (Investigative Powers) Act 2004 (Vic) ss 4, 43, 65(4).

Warren CJ, Maxwell P and Weinberg JA – 29 Dec 2016 – 27 pages

Administrative law – Judicial review – Jurisdictional error – Power to establish centres for detention of young persons – Failure to take into account relevant considerations – Whether power exercised for improper purpose – Children, Youth and Families Act 2005 (Vic) ss 362, 478, 482.1.

Ashley, Osborn and Kaye JJA – 17 Jun 2016 – 42 pages

Administrative law – Judicial review – Reasons – Adequacy – Statutory obligation – Path of reasoning – Medical panel opinion – Accident Compensation Act 1985 (Vic) s 68.

Appeal
Santamaria, Ferguson and McLeish JJA – 29 May 2015 – 23 pages

Appeal – Judicial review – Application for extension of time to commence – Special circumstances – Factors – Strength of merits – Assessment by associate judge – Supreme Court (General Civil Procedure) Rules 2005 (Vic)ch I, r 56.02(3).

Tate, Whelan and Ferguson JJA – 20 May 2015 – 30 pages

Appeal – Leave to appeal – `Real prospect of success’ – Supreme Court Act 1986 (Vic) ss 14A, 14C.

Derham AsJ – 11 Dec 2015 – 36 pages

Appeal – Appeal from Victorian Civil and Administrative Tribunal – Application for leave to appeal on a question of law – Summary dismissal power – Whether summary dismissal available at conclusion of applicant’s case – Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 75, 148.

Zammit J – 14 Apr 2016 – 11 pages

Appeal – Appeal from order of an Associate Judge refusing leave to appeal from Victorian Civil and Administrative Tribunal – Supreme Court Act 1986 (Vic) s 17(3).

Arbitration

Arbitration – Subpoena – Domestic arbitration – Application for subpoena to non-party to attend for examination before an arbitral tribunal – Whether reasonable grounds required for the issue of subpoena – Commercial Arbitration Act 2011 (Vic), ss 27, 27A.

Arbitration – Arbitration award – Award failing to determine all issues – Whether a final award – Whether arbitrator’s mandate terminated – Whether award may be set aside – Commercial Arbitration Act 2011 (Vic) ss 32, 34(2)(a)(iii).

Associations and clubs
Maxwell ACJ, Hansen and Osborn JJA – 21 Sep 2016 – 11 pages

Associations and clubs – Horse racing – Rules of racing – Interpretation of rules – Licensed horse trainer bound by rules by agreement – Prohibitions on performance enhancing substances – Substance prohibited unless present at or below specified concentration – Limit expressed to one decimal place – Accredited laboratory reported substance present at above specified concentration – Reading ‘rounded up’ to nearest single decimal place – Rounding up in accordance with scientific conventions – Readings previously rounded down to take account of possibility of error – Change in scientific opinion as to whether rounding down necessary for that purpose.

Bankruptcy and insolvency
John Dixon J – 10 Feb 2016 – 26 pages

Bankruptcy and insolvency – Property of bankrupt – Claims for malicious prosecution and misfeasance in public office – Plaintiff bankrupt when initiating proceedings – Whether claims statutorily assigned to the Official Trustee – Whether claims in relation to ‘personal injury or wrong’ – Bankruptcy Act 1966 (Cth) ss 5, 58, 60(4), 116(1), (2)(c) , (2)(g).

Companies
Randall AsJ – 02 Jun 2016 – 39 pages

Companies – Winding up – Cross-border insolvency – Registered foreign company – Application for recognition of foreign external administration proceeding – Application seeking court to act in aid of or auxiliary to foreign proceeding – Centre of main interests – Foreign company managed in Australia – No establishment in foreign jurisdiction – UNCITRAL Model Law on Cross-Border Insolvency – Corporations Act 2001 (Cth) ss 471A, 481, 581, 583 – Cross-Border Insolvency Act 2008 (Cth).

Whelan, Beach and Ferguson JJA – 30 Jun 2016 – 15 pages

Companies – Winding up – Cross-border insolvency – Registered foreign company – Concurrent external administration proceeding in foreign country – Application for recognition of foreign external administration proceeding – Application seeking court to act in aid of or auxiliary to foreign proceeding – Differences between United States ch 11 proceeding and winding up – Whether winding up order precluded – Whether winding up order should be made – Corporations Act 2001 (Cth) ss 471A, 481, 581, 583 – Cross-Border Insolvency Act 2008 (Cth).

Maxwell P, Whelan and Santamaria JJA – 12 Dec 2016 – 34 pages

Companies – Winding up – Liquidator – Costs and expenses of ‘care, preservation and realisation’ of assets – Equitable lien – Whether lien dependent on realisation of assets or creation of fund.

Cameron J – 24 Mar 2016 – 71 pages

Companies – Voluntary administration – Administrators seeking directions from the Court in relation to disposing of property of the company and dealing with sale proceeds.

Randall AsJ – 04 Apr 2017 – 21 pages

Companies – Winding up – Creditor’s statutory demand – Application to set aside demand – When demand served – Service by post – Address unattended during holidays – Corporations Act 2001 (Cth) ss 109X, 459G – Evidence Act 1995 (Cth) s 195.

Constitutional law
John Dixon J – 21 Sep 2016 – 20 pages

Constitutional law – State Parliament – Casual vacancy in Legislative Council – Legislative Assembly declined proposal of Legislative Council for joint sitting to fill vacancy – Application for mandamus to compel Premier to advise Governor to convene joint sitting – Internal proceedings of Parliament – Whether justiciable – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 47.04.

Cavanough J – 08 Feb 2017 – 63 pages

Constitutional law – Commonwealth Constitution – Inconsistency between Commonwealth and State legislation – Detention provisions in Commonwealth migration legislation – Child protection provisions in State legislation – Whether ‘covering the field inconsistency’ or ‘direct inconsistency’ – Whether ‘operational inconsistency’ – Commonwealth Constitution s 109 – Migration Act 1958 (Cth) ss 4AA, 13, 14, 189, 196, 197AA, 197AB, 197AC, 197AD, 197AE, 197AF, 197AG – Children, Youth and Families Act 2005 (Vic) ss 1, 4, 5, 240, 241, 243, 262, 263, 264, 266, 267, 268, 274, 275, 280, 281, 282, 533.

Contempt
Warren CJ, Weinberg and Kaye JJA – 23 Jun 2017 – 7 pages

Contempt – Sub judice rule – Comments by Commonwealth Ministers regarding proceedings pending before Court of Appeal – Whether Ministers and those involved in publication of comments ought to be referred for prosecution for contempt – Role of newspaper – Whether contempts purged by apologies.

Contract
Cameron J – 24 Mar 2016 – 71 pages

Contract – Competing contracts – Conditions as to formation and performance.

Croft J – 09 Nov 2016 – 54 pages

Contract – Formation – Offer and acceptance – Whether agreement to give personal guarantee.

Contribution between tortfeasors
John Dixon J – 10 Mar 2016 – 89 pages

Contribution between tortfeasors – Test to be applied – Wrongs Act 1958 (Vic) ss 24AF, 24AH, 24AI.

Corporations
Tate, Whelan and Ferguson JJA – 20 May 2015 – 30 pages

Corporations – Directors and officers – Company officer indemnified for legal costs and expenses – Whether indemnity arises before verdict or only at conclusion of proceedings – Effect of obligation to refund if officer found guilty – Whether indemnity for costs and expenses of criminal proceedings breaches statutory prohibition – Corporations Act 2001 (Cth) s 199A(3).

Corporations law
Sifris J – 07 Jun 2016 – 24 pages

Corporations law – Derivative action by shareholder – Application for leave to bring proceeding in Japan on behalf of company – Criteria to be proved – Whether plaintiff acting in good faith – Whether in best interests of company for plaintiff to be granted leave to bring proceeding – Whether proceeding involves serious question to be tried – Corporations Act 2001 (Cth), s 237(1), (2).

Randall AsJ – 25 May 2016 – 11 pages

Corporations law – Statutory demand – Application to set aside demand – Registry of Supreme Court of Victoria closed on Tuesday after Easter – Easter Tuesday not a public holiday – Application filed on next day – Whether filed one day late – Whether Acts Interpretation Act 1901 (Cth) extended time for making application to set aside a statutory demand – Corporations Act 2001 (Cth) s 259G – Acts Interpretation Act 1901 (Cth) ss 36(2), 36(3).

Corporations law – Winding up – Voluntary winding up – Appointment of special purpose liquidator – Circumstances justifying appointment – Whether special purpose liquidators within definition of ‘auditor’ and precluded from appointment – Corporations Act 2011 (Cth) s 472.

Costs

Costs – Jurisdiction – Foreign state immunity – Claim under Fair Work Act 2009 (Cth) – Whether immune foreign State a ‘party’ to Fair Work proceedings – Supreme Court Act 1986 (Vic) ss 3, 24 – Fair Work Act 2009 (Cth) s 570 – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 11.04(1).

Elliott J – 14 Nov 2014 – 4 pages

Costs – Discretion – Defendant represented by senior counsel appearing alone – Application for order certifying senior counsel’s appearance fees at above scale rate.

McDonald J – 03 May 2016 – 12 pages

Costs – Third party payer – Information sought from solicitors for purposes of determining whether to apply for costs review – Solicitors providing invoices redacting items subject to claims for client professional privilege – Whether `sufficient information’ provided to enable third party payer to decide whether to apply for costs review – Jurisdiction to grant declaratory relief – Legal Profession Practice Act 2004 (Vic), ss 3.4.2A(1), 3.4.38(7), 3.4.45 – Supreme Court Act 1986 (Vic) s 36.

Criminal law
Redlich, Priest and Beach JJA – 20 Apr 2016 – 30 pages

Criminal law – Sentencing – Crown appeal – Commonwealth and State offences – Child pornography offences – Accessing child pornography – Knowingly possessing child pornography – Manifest inadequacy of sentence – Gravity of child pornography offences – Classification of child pornography material – Whether community correction order manifestly inadequate – Cumulation between federal and State offences – Residual discretion not to interfere – Criminal Code 1995 (Cth) s 474.19(1) – Crimes Act 1958 (Vic) s 70(1).

Warren CJ, Weinberg and Kaye JJA – 07 Jul 2017 – 19 pages

Criminal law – Sentencing – Terrorism offences – Doing acts in preparation for, or planning, a terrorist act – Re-sentencing following successful Crown appeal – Protection of the community – Whether potential application of continuing detention order regime relevant upon re-sentencing – Criminal Code (Cth) div 105A.

Warren CJ, Weinberg and Kaye JJA – 23 Jun 2017 – 24 pages

Criminal law – Sentencing – Crown appeal against sentence – Terrorism offences – Doing acts in preparation for, or planning, a terrorist act – Young offender – Gravity of terrorism offences – Relevance of nature and extent of contemplated act – General deterrence – Protection of the community and incapacitation of offender – Mitigating factors of personal nature – Prospects of rehabilitation – Whether less than standard weight to be allowed to mitigating factors than in other forms of offending – Criminal Code (Cth) s 101.6.

Maxwell ACJ, Redlich and Whelan JJA – 01 Jul 2016 – 40 pages

Criminal law – Sentencing – Statutory murder – Killing in the course or furtherance of a crime of violence – Whether statutory murder inherently less serious than common law murder – Whether sentencing court entitled or obliged to consider whether act causing death done with intent to cause death or really serious injury – Current sentencing practices for statutory murder – Need for sentencing standards to change to reflect gravity of offence – Whether sentencing judge entitled to depart from agreed facts – Crimes Act 1958 (Vic) s 3A.

Bell J – 28 Feb 2017 – 61 pages

Criminal law – Judicial review – Applications before County Court for orders reinstating struck out appeals from sentences of Magistrates’ Court of Victoria – Self-represented litigants – Whether Judge ensured fair trial – Criminal Procedure Act 2009 (Vic), s 267(3).

Weinberg and Priest JJA – 11 Jul 2016 – 5 pages

Criminal law – Sentencing – Obtaining financial advantage by deception – `Course of conduct’ charge involving more than one incident of the offence – Whether orthodox sentencing principles applicable to sentencing on course of conduct charge – Relevance of maximum penalty for the offence – Criminal Procedure Act 2009 (Vic) sch 1 cl 4A – Sentencing Act 1991 (Vic) s 5(2F).

Jane Dixon J – 17 Feb 2017 – 4 pages

Criminal law – Bail – Whether applicant required to show cause – Contravention of family violence intervention order – No physical force or threats or menaces – ‘Violence’ – Bail Act 1977 (Vic) s 4(4)(ba).

Tate and Ferguson JJA and Cavanough AJA – 18 Nov 2016 – 17 pages

Criminal law – Search warrants – Execution of warrant – Seized items – Seizure during execution of items not named or described in warrant – Power of Magistrates’ Court to order return of items – Common law extension of search and seizure under a search warrant – Whether items were seized ‘under a search warrant’ – Crimes Act 1958 (Vic) s 465 – Magistrates’ Court Act 1989 (Vic) ss 75, 76, 78.

Redlich, Santamaria, Beach JJA – 30 May 2016 – 12 pages

Criminal law – Sentencing – Dangerous driving causing death – Offender’s culpability and degree of responsibility for the offence – Whether offender’s moral culpability was ‘very high’ – Sentencing Act 1991 (Vic) s 5(2)(d).

Redlich and McLeish JJA and Beale AJA – 18 Dec 2015 – 52 pages

Criminal law – Practice and procedure – Jury – Empanelment – Peremptory challenge – Infringement of right – Accused entitled to have adequate time to view prospective juror’s face – Waiver of objection to procedure – Juries Act 2000 (Vic) ss 36, 39.

Crown immunity
Keogh J – 23 Jan 2017 – 15 pages

Crown immunity – Tort – Whether Crown personally liable in tort – Whether Crown only vicariously liable for servants, agents or independent contractors of Crown – Crown Proceedings Act 1958 (Vic) ss 23(1)(b), 25.

Discrimination
Maxwell P, Neave and Redlich JJA – 16 Apr 2014 – 153 pages

Discrimination – Services – Accommodation – Refusal – Attribute – Sexual orientation – Camping facility – Proposed use by same sex attracted young persons – Religious opposition to homosexual sexual activity – Corporation – Conduct on behalf of corporation – Liability – Direct – Vicarious – Equal Opportunity Act 1995 (Vic) ss 49(a), 102.

Equity
Vickery J – 07 Jun 2016 – 27 pages

Equity – Confidential information – Customer list – Whether information in public domain – Disaggregation of categories of information.

Maxwell P, Whelan and Santamaria JJA – 12 Dec 2016 – 34 pages

Equity – Equitable lien – Liquidator – Costs and expenses of care, preservation and realisation of assets – Whether lien dependent on realisation of assets or creation of fund.

Hargrave J – 15 Mar 2017 – 121 pages

Equity – Constructive trust – Volunteer receiving stolen money – Black v S Freedman & Co trust – Knowledge of circumstances indicating the theft to an honest and reasonable person.

Evidence
McDonald J – 02 Mar 2017 – 20 pages

Evidence – Admissibility – Vexatious litigant – General litigation restraint order – Application for restraint – Whether judgments and orders in earlier proceedings admissible – Whether a finding as to the nature of a proceeding is a ‘finding of fact’ – Evidence Act 2008 (Vic) s 91(1) – Vexatious Proceedings Act 2014 (Vic) ss 3, 29.

Elliott J – 28 Aug 2017 – 9 pages

Evidence – Privilege – Self-incrimination – Whether witness may claim privilege in respect of evidence in chief – Whether plaintiff ’objects’ – Evidence Act 2008 (Vic) s 128(1).

John Dixon J – 08 Jun 2016 – 50 pages

Evidence – Public interest immunity – Cross-examination of deponent of affidavit in support of public interest immunity claim – Whether permissible.

Macaulay J – 01 Aug 2016 – 46 pages

Evidence – Public interest immunity – Class claim – Cross-examination of deponent of affidavit in support of public interest immunity claim.

Macaulay J – 19 Aug 2016 – 71 pages

Evidence – Public interest immunity – Foreign relations documents – International organisations – Whether ‘real risk’ or a ‘probability’ of harm to the national interest required.

Riordan J – 17 Mar 2016 – 7 pages

Evidence – Admissibility – Hearsay – Chinese company search – Whether `public document’ – Whether `business record’ – Admissibility as to truth of contents – Discretion to exclude from evidence – Evidence Act 2008 (Vic)ss 48(1)(f), 69, 136, 156.

Lansdowne AsJ – 08 Sep 2016 – 16 pages

Evidence – Privilege – Settlement negotiation privilege – Party in later unprivileged letter repeats communications occurring at without prejudice meeting – Whether that party had thereby waived its privilege – Whether that party had thereby consented to disclosure of communications at meeting – Whether other parties could later consent thereby allowing evidence of the meeting to be given – Discussion of the difference between ‘disclosure’ and ‘adducing evidence’ – Evidence Act 2008 (Vic) s 131.

Gaming
Hargrave J – 15 Mar 2017 – 121 pages

Gaming – Receipt of stolen or embezzled funds – Strict liability – Territorial scope of application – Whether bets placed in or governed by the laws of Victoria – Gambling Regulation Act 2003 (Vic) s 2.6.3.

Guarantees
Croft J – 09 Nov 2016 – 54 pages

Guarantees – Gross misconduct or fraud of the mortgagee – Impairment of security – Absolute discharge of guarantor – Discharge not prevented by terms of guarantee.

Human rights
John Dixon J – 10 Apr 2017 – 167 pages

Human rights – Charter of Human Rights and Responsibilities – Children – Protection of child in their best interests – Humane treatment when deprived of liberty – Public authorities – Obligation to act compatibly with human rights – Obligation to give proper consideration to human rights – Effect of failure to act compatibly with human rights or give proper consideration to human rights – Declarations – Injunctions – Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 10(b), 17(1), 17(2), 22(1), 38(1), 39(1).

Human rights – Charter of Human Rights and Responsibilities – Children – Protection from cruel, inhuman or degrading treatment – Protection of child in their best interests – Humane treatment when deprived of liberty – Public authorities – Obligation to give proper consideration to human rights – Effect of failure to give proper consideration – Declarations – Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 10(b), 17(1), (2), 22(1), 38(1).

Maxwell P, Neave and Redlich JJA – 16 Apr 2014 – 153 pages

Human rights – Statutory interpretation – Religious freedom – Discrimination – Services – Accommodation – Refusal – Sexual orientation – Whether special rule of interpretation applicable – International human rights jurisprudence – Charter of Human Rights and Responsibilities Act 2006 (Vic), s 32.

Bell J – 28 Feb 2017 – 61 pages

Human rights – Charter of Human Rights and Responsibilities – Right to equality – Right to fair hearing – Self-represented litigants – Procedural requirements of right to equality – ‘Equality of arms’ – Charter of Human Rights and Responsibilities.

Ierodiaconou AsJ – 05 Aug 2016 – 14 pages

Human rights – Right to privacy – Unlawful or arbitrary interference – Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 28(2) – Health Records Act 2001 (Vic) ss 3(1), 7, 21(1), sch 1 Health Privacy Principle 2.1, 2.2 – Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 6, 7, 13, 32.

Land tax
Warren CJ, Tate and Whelan JJA – 02 May 2016 – 53 pages

Land tax – Assessment – Owner – Possession – Purchaser in possession – Whether purchaser under a contract of sale of land is in possession of the land for the purposes of assessing land tax – Meaning of ‘possession’ – Land Tax Act 2005 (Vic) s 15.

Landlord and tenant
Croft J – 10 Jun 2016 – 32 pages

Landlord and tenant – Prohibition of sub-letting without landlord’s consent – Entire apartment listed on Airbnb – Whether lease or licence – Terms of advertisement – Whether guests had exclusive possession during stay – Whether characterization of apartment as tenant’s principal place of residence relevant – Whether tenant’s ability to make guest who overstays leave the apartment relevant – Residential Tenancies Act 1997 (Vic) s 253(1).

Legal practice
McMillan J – 30 Nov 2016 – 12 pages

Legal practice – Trust accounts – Manager appointed to legal practice – Shortfall in funds held in legal practice’s trust accounts – Directions – Distribution of remaining funds to clients – Appropriate method of distributing trust funds.

Mortgages
Croft J – 09 Nov 2016 – 54 pages

Mortgages – Mortgagee’s duties on sale – Advertising and marketing of sale – Obtaining contemporaneous valuation – Covert sale to a co-surety.

Negligence
John Dixon J – 10 Mar 2016 – 89 pages

Negligence – Duty of care – Loss – Factual causation – Solicitor – Failure to advise company and directors on effect of statutory demand lapsing – Failure to attend at hearing of winding up application – Whether solicitor’s conduct caused plaintiff’s loss – Multiple causes of loss – Wrongs Act 1958 (Vic) ss 51(1)(a), (2).

J Forrest J – 28 Jun 2016 – 20 pages

Negligence – Duty of care – Psychiatric injury – Whether deceased negligent driver owed duty of care to mother to avoid psychiatric injury to her – Duty to avoid injury to oneself.

Personal property
Cameron J – 24 Mar 2016 – 71 pages

Personal property – Securities – Defendants registered their interests on the Personal Property Securities Register – Whether security interests perfected by registration – Whether registrations in time – Personal Property Securities Act 2009 (Cth) s 267.

Practice and procedure
McDonald J – 02 Mar 2017 – 20 pages

Practice and procedure – Vexatious litigant – General litigation restraint order – Defendant persistently and without reasonable grounds commenced and conducted ‘vexatious proceedings’ – Whether defendant’s bankruptcy a discretionary factor weighing against the making of a general litigation restraint order – Vexatious Proceedings Act 2014 (Vic) ss 3, 29(2).

Practice and procedure – Proceeds of crime – Examination notice – State court exercising federal jurisdiction – Service – Manner of service – Postal service of examination notice under Proceeds of Crimes Act 2002 (Cth) – Whether Judiciary Act 1903 (Cth) s 79(1) picks up State rules of court – Acts Interpretation Act 1901 (Cth)ss 2(2),28A(1), (2) – Judiciary Act 1903 (Cth) s 79(1) – Proceed of Crimes Act 2002 (Cth) ss 180, 183 – Supreme Court (Criminal Procedure) Rules 2008 (Vic)r 6.04(3).

Hollingworth J – 27 Mar 2015 – 13 pages

Practice and procedure – Criminal law – Record of interview – Application by news media for access to audiovisual record of interview – Open justice – Relevant factors – Crimes Act 1958 (Vic) ss 464JA, 464JB.

Whelan, Priest and Kyrou JJA – 15 Dec 2016 – 33 pages

Practice and procedure – Costs – Wasted costs jurisdiction – Application for costs against lawyers for opposing party – Alleged breach of overarching obligations under Civil Procedure Act 2010 – Delay in application for costs – Adequacy of explanation for delay – Appropriate test for order – Factors relevant to the exercise of discretion under r 63.23 of the Supreme Court (General Civil Procedure) Rules 2005 – Civil Procedure Act 2010 (Vic) ss 7, 8, 9(1)(f), 18, 25, 29(1)(e), 29(1)(f), 30, 63 – Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 63.23.

John Dixon J – 08 Jun 2016 – 50 pages

Practice and procedure – Discovery – Public interest immunity – Contents claim – Whether legitimate forensic purpose demonstrated by plaintiff – Whether basis for secrecy or confidentiality demonstrated – Whether balancing exercise called for – Documents concerning screening of incoming passengers by Australian Border Force – Completed incoming passenger cards, training materials, identification of officers and CCTV footage – Evidence Act 2008 (Vic), ss 130, 131A.

Macaulay J – 01 Aug 2016 – 46 pages

Practice and procedure – Discovery – Public interest immunity – Class claim – Documents characterised as Cabinet documents – Precursor documents – Sufficiency of evidence to support claim for public interest immunity – Whether cross-examination appropriate – Whether public interest immunity applies – Evidence Act 2008 (Vic) ss 130, 131A.

Macaulay J – 19 Aug 2016 – 71 pages

Practice and procedure – Discovery – Public interest immunity – Contents claim – Foreign relations documents – Sample documents – Whether public interest immunity applies – Evidence Act 2008 (Vic) ss 130, 131A – International organisations (Privileges and Immunities) (International Committee of the Red Cross) Regulation 2013 (Cth) reg 6.

John Dixon J – 09 Dec 2015 – 50 pages

Practice and procedure – Evidence – Journalist privilege – Relevant considerations for declaring a journalist compellable to disclose confidential sources – Nature of public interest in disclosure – Nature of public interest in investigative journalism – Whether adverse consequences likely from disclosure – Balancing of interests – Evidence Act 2008 (Vic), ss 126J,126K, 131A.

Mandie and Beach JJA and John Dixon AJA – 08 May 2015 – 22 pages

Practice and procedure – Service of originating process outside Australia without leave – Application by defendant to set aside writ or stay proceeding – Relevant test – Whether plaintiff required to show `strongly arguable case’ – Supreme Court (General Civil Procedure) Rules 2005 (Vic) rr 7.01, 7.05.

Bell J – 28 Feb 2017 – 61 pages

Practice and procedure – Self-represented litigants – Duty of Court to provide assistance.

Practice and procedure – Special Referee – Report – Discovery – Electronic or technology-assisted review of documents – Management of large volume of potentially discoverable material.

Tate, Ferguson and McLeish JJA – 14 Apr 2016 – 14 pages

Practice and procedure – Appeal – Appeal from County Court – Judgment or order – Ruling and observations made by judge in exchange with counsel – County Court Act 1958 (Vic) s 74 – Supreme Court Act 1986 (Vic) s 10(1)(c).

Ierodiaconou AsJ – 05 Aug 2016 – 14 pages

Practice and procedure – Subpoena – Production of documents – Medical records – Privilege – Doctor and patient – Disclosure of patients’ names – Information necessary to prescribe or act for patient – Statutory interpretation.

Practice and procedure – Arbitration – Staying court proceeding – Application for a temporary stay of proceeding pending determination of arbitration involving parallel or substantially overlapping issues – Principles governing grant of temporary stay of proceeding pending outcome of concurrent arbitration – Whether temporary stay should be ordered.

Ierodiaconou AsJ – 10 Oct 2016 – 25 pages

Practice and procedure – Discovery of documents – Production for inspection of discovered documents – Power of Court to limit inspection of discovered documents – Overarching purpose – Resolving real issues in dispute – Utility of inspection – Cost of discovery and inspection – Applicability of related previous judicial discovery ruling in proceeding – Discretion of Court – Civil Procedure Act 2010 (Vic) s 55.

Zammit J – 14 Apr 2016 – 11 pages

Practice and procedure – Appeal to Judge from order of Associate Judge refusing leave to appeal – Scope and nature of appeal – Whether an appeal can be heard if there is no error.

Prerogative writs
T Forrest J – 02 Apr 2015 – 17 pages

Prerogative writs – Habeas corpus – Justification for detention – Person on parole arrested and detained on suspicion of involvement in drug trafficking – Person not charged with criminal offence – Adult Parole Board ordered detention and then cancelled parole following arrest – Precondition of state of satisfaction of Board – Whether suspicion of offence sufficient – Corrections Act 1986 (Vic) ss 78C(1)(a), (3).

Private international law
Kyrou and McLeish JJA – 30 Jun 2017 – 24 pages

Private international law – Choice of law – Wills and codicils – Deceased Australian citizen domiciled in China – Testamentary note made in China – Note disposed of part of Victorian personal estate – Whether will – Whether validity of note as a will governed by Victorian law or Chinese law – Whether Victoria appropriate forum – Proof of foreign law – Evidence Act 2008 (Vic) s 174 – Wills Act 1997 (Vic) s 17.

Professions
Kyrou and Ferguson JJA – 09 Mar 2017 – 22 pages

Professions – Discipline – Education – Misconduct – Investigation by school principal of complaint by student against teacher – Whether misconduct by principal in relation to the investigation and communication with parents – Meaning of ’misconduct’ – Education and Training Reform Act 2006 (Vic) s 2.6.1.

Public international law

Public international law – Foreign state immunity – Immunity from jurisdiction – Third party proceedings against Republic of Nauru – Claim for indemnity under Nauruan statute – ‘Commercial transaction’ – Foreign States Immunities Act 1985 (Cth) ss 9, 11.

Real property
Lansdowne AsJ – 05 Aug 2016 – 13 pages

Real property – Recovery of land – Application for summary judgment – Whether necessary for the plaintiff to plead and prove that the plaintiff gave notice of default and that the defendant failed to remedy the default – Transfer of Land Act 1958 (Vic), s 78(1).

Sifris J – 24 May 2016 – 14 pages

Real property – Joint tenancy – Severance of joint tenancy – Representation as to future – Whether intention to sever joint tenancy.

Riordan J – 22 Jul 2016 – 61 pages

Real property – Strata title – Owners corporation – Special resolution adopting rule prohibiting residential lot owners from conducting trade – Validity of rule – Powers of owners corporation to prohibit short-term subletting – Subdivision Act 1988 (Vic) ss 27(2C),29(2) – Subdivision (Body Corporate) Regulations 2001 (Vic) regs 201,202,219, 220 – Owners Corporation Act 2006 (Vic) ss 4, 6, 138, 139, 140(2)(b), sch 1, cll 1, 4, 5, 7, sch 2, cl 5 – Transfer of Land Act 1958 (Vic), ss 4, 40,88(3).

Hargrave J – 15 Mar 2017 – 121 pages

Real property – Indefeasibility of title – Fraud exception – Fraud of agent acting within scope of authority – In personam exception.

Restitution
Hargrave J – 15 Mar 2017 – 121 pages

Restitution – Money had and received – Indirect receipt – Stolen funds – Change of position defence – Whether defendants acted in good faith – Failure to make enquiries that an honest and reasonable person would make.

Statutes
Warren CJ, Beach and Ferguson JJA – 09 Dec 2016 – 27 pages

Statutes – Interpretation – Ordinary meaning of ‘any matter’ – Legislative intent, purpose and objects – Ombudsman Act 1973 (Vic) s 16.

Statutory interpretation

Statutory interpretation – Extrinsic materials – Explanatory Memorandum – ‘affects operation’ – ‘otherwise than as provided’ – Judiciary Act 1903 (Cth)s 79(1) – Proceeds of Crime Act 2002 (Cth)s 183 – Acts Interpretation Act 1901 (Cth) s 28A(2) – Supreme Court (Criminal Procedure) Rules 2008 (Vic) r 6.04(3).

Testator’s family maintenance
McMILLAN J – 08 Apr 2016 – 24 pages

Testator’s family maintenance – No provision for adult daughter – Moral duty to the applicant conceded – Where quantum in dispute – Administration and Probate Act 1958 (Vic) Part IV – Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic) s 5.

Tort
Osborn and Beach JJA, J Forrest AJA – 21 Dec 2016 – 16 pages

Tort – Psychiatric injury – Significant injury threshold level – Amendment of legislation – Psychiatric injury impairment of 10 per cent or more – Certificate of determination issued prior to amendment – Application of new threshold level to proceedings on foot at the time of amendment – Transitional provision – Whether amendment had retrospective application – Wrongs Act 1958 (Vic) ss 28LB, 28LE, 28LF, 28LZH, 28LZS – Interpretation of Legislation Act 1984 (Vic) s 14(2).

Trade practices
John Dixon J – 10 Mar 2016 – 89 pages

Trade practices – Misleading or deceptive conduct – Whether conduct by solicitor ‘in trade or commerce’ – Australian Consumer Law s 18.

Vickery J – 10 Nov 2016 – 15 pages

Trade practices – Consumer protection – Misleading or deceptive conduct – Misrepresentations – Contractual documents – Whether misrepresentations incorporated in contractual documents capable of constituting misleading or deceptive conduct – Whether capable of constituting misleading or deceptive conduct towards person not party to contract – Trade Practices Act 1974 (Cth) s 52 – Australian Consumer Law s 18.

Trusts
Hargrave J – 20 May 2016 – 22 pages

Trusts – Trust accounts – Trust documents – Court-appointed trustee of deadlocked trusts – Fixed and discretionary trusts – Discretionary powers effectively removed by court order – Application by beneficiary for production of trust accounts and other trust documents – Whether ‘proprietary approach’ or ‘discretionary approach’ to be applied.

McMillan J – 30 Nov 2016 – 12 pages

Trusts – Trust accounts – Shortfall in funds – Appropriate method of distributing funds among persons entitled.

Wills and estates
Derham AsJ – 01 Dec 2016 – 14 pages

Wills and estates – Practice and procedure – Debtor died intestate – No administrator of estate yet appointed – Proceedings against the estate of the deceased by creditor – Mortgagee seeking possession of property of the deceased and payment of debt – Administration and Probate Act 1958 (Vic) s 19 – Supreme Court (General Civil Procedure Rules) 2015 (Vic), rr 6.10, 9.08(1), 9.08(5)(a)(i), 16.03(1)(a), 16.03(1)(b).

McMillan J – 09 Dec 2016 – 20 pages

Wills and estates – Administration proceeding – Account – Failure to provide timely and adequate financial information to beneficiaries – Costs – Beneficiaries seek costs against the executor in his personal capacity – Executor seeks costs against beneficiaries – Supreme Court Act 1986 (Vic) s 24 – Supreme Court (General Civil Procedure) Rules 2015 (Vic)r 63.07.

McMillan J – 28 Oct 2016 – 7 pages

Wills and estates – Probate – Small estate – Deemed grant of probate – Later discovery that estate exceeded the maximum monetary value for small estate provisions – Where grant of probate now required to distribute real property of estate – Whether revocation of deemed grant required before application for grant of representation – Administration and Probate Act 1958 (Vic)ss 71, 79.

Words and phrases
Sifris J – 07 Jun 2016 – 24 pages

Words and phrases – ‘good faith’ – ‘best interests of company’ – ‘serious question to be tried’.

Randall AsJ – 02 Jun 2016 – 39 pages

Words and phrases – ‘Centre of main interests’ – ‘Establishment’ – ‘Foreign main proceeding’ – ‘Foreign non-main proceeding’ – ‘Foreign proceeding’ – ‘Public policy’.

Osborn and Beach JJA, J Forrest AJA – 21 Dec 2016 – 16 pages

Words and phrases – ‘unless the contrary intention expressly appears’ – ‘expressly.’.

John Dixon J – 21 Sep 2016 – 20 pages

Words and phrases – ‘Justiciable controversy’ – ‘exclusive cognisance’.

Randall AsJ – 25 May 2016 – 11 pages

Words and phrases – `holiday’, `and’.

Keogh J – 23 Jan 2017 – 15 pages

Words and phrases – ‘Liability of the Crown’ – ‘Rights of parties.’.

Ierodiaconou AsJ – 10 Oct 2016 – 25 pages

Words and phrases – ‘No utility’.

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