Recent Victorian Reports (VR)


The latest from the team

Victorian Reports – Recently published (as at December 2019)

Administrative law
Garde J – 08 Feb 2019 – 11 pages

Administrative law – Judicial review – Domestic bodies – Registered Housing Association – Decision to give notice to vacate for no reason – Decision to restrict tenant’s contact with landlord’s staff – Whether decisions amenable to judicial review – Application of Datafin principle – Housing Act 1983 (Vic) – Residential Tenancies Act 1997 (Vic).

Maxwell P, McLeish JA and Almond AJA – 18 Dec 2018 – 15 pages

Administrative law – Sex offenders registration – Possession of child pornography – Possession by applicant as child continued as adult – Whether registrable offender – Particulars of charge included date of possession as adult – Whether guilty plea an admission to date in particulars – Whether offence durative – Sex Offenders Registration Act 2004 (Vic) s 6(3)(a).

Maxwell P, Beach and Niall JJA – 29 Aug 2018 – 26 pages

Administrative law – Procedural fairness – Practical content of fairness – Unrepresented litigant in person – Respondent charged on summons with road traffic offences – Respondent filed written objections to jurisdiction of Magistrates’ Court – Magistrate dismissed jurisdictional objection without hearing oral submissions from respondent – Whether respondent denied procedural fairness – Magistrates’ Court Act 1989 (Vic) s 1 – Magistrates’ Court Criminal Procedure Rules 2009 (Vic) r 5 – Charter of Human Rights and Responsibilities Act 2006 (Vic) s 24(1).

Ierodiaconou AsJ – 20 Dec 2018 – 19 pages

Administrative law – Judicial review – Domestic body – Professional association created by Royal Charter – Refusal of readmission to membership – Whether decision amenable to judicial review – Whether Datafin principle applicable in Victoria – Civil Procedure Act 2010 (Vic) ss 62, 63, 64.

Arbitration
Croft J – 10 May 2018 – 19 pages

Arbitration – Jurisdiction – Competence – Review of arbitrator’s ruling on jurisdiction – Whether rehearing de novo or judicial review of arbitrator’s ruling – Commercial Arbitration Act 2011 (Vic) ss 16(9), 16(11).

Associations and clubs
Ierodiaconou AsJ – 20 Dec 2018 – 19 pages

Associations and clubs – Membership – Professional association of accountants created by Royal Charter – Refusal of readmission application – Whether decision amenable to judicial review.

Banks and banking
McLeish, Niall and Ashley JJA – 05 Sep 2018 – 25 pages

Banks and banking – Bank and customer – Loan secured by mortgage – Preservation of mortgaged property – Costs and expenses – Bank paid customer’s unpaid owners corporation fees owing on mortgaged property – Bank debited customer’s loan account in those amounts – Customer ceased to make loan repayments – Whether bank required to make demand for payment before debiting account – Whether debit caused customer’s failure to make loan repayments.

Building contracts

Building contracts – Major domestic building contract – ‘No fault’ termination by owner – Builder’s entitlement to reasonable value of work performed – Liquidated damages – Owner’s claim for liquidated damages in respect of delay – Application by builder for extension of time in respect of delay – Whether owner could recover liquidated damages for delay where building contract terminated under ‘no fault’ regime – Whether liquidated damages claim defeated by builder’s extension application – Domestic Building Contracts Act 1995 (Vic) ss 41(5), 41(6).

Croft J – 10 May 2018 – 19 pages

Building contracts – Contract for plastering work – Dispute resolution – Whether arbitration prohibited – Whether domestic building work – Domestic Building Contracts Act 1995 (Vic), ss 3, 5, 6(2), 14, 54(1)(b) – Domestic Building Contracts Regulations 2017 (Vic), regs 7(e), (g).

Carriers and carriage of goods
Keogh J – 24 Aug 2018 – 12 pages

Carriers and carriage of goods – Aviation – Carriage of passengers – Federal jurisdiction – Personal injury claim under Civil Aviation (Carriers’ Liability) Act 1959 (Cth) – Operation of s 79 of the Judiciary Act 1903 (Cth) – Whether pt VBA of the Wrongs Act 1958 (Vic) applied – Whether Commonwealth law ‘otherwise provided’ – Wrongs Act 1958 (Vic) ss 28LB, 28LC, 28LE – Judiciary Act 1903 (Cth) s 79 – Civil Aviation (Carriers’ Liability) Act 1959 (Cth) ss 9B, 9E, sch 1A, arts 17(1), 21, 29.

Companies

Companies – Winding-up – Liquidator’s power of sale of company property – Company’s claim of misleading or deceptive conduct – Whether liquidator empowered to sell non-assignable cause of action – Corporations Act 2001 (Cth), s 477(2)(c).

Whelan, McLeish and Hargrave JJA – 20 Mar 2019 – 11 pages

Companies – Liquidation – Costs of appeal by liquidators – Liquidators’ right of indemnity against company – Whether costs properly incurred – Risk of exhausting assets of company through appeals – Onus on liquidators to establish costs of appeal honestly and reasonably incurred.

Sloss J – 16 Nov 2018 – 61 pages

Companies – Winding up – Liquidators – Control of liquidators – Court’s statutory jurisdiction to inquire into conduct of liquidators – Application by creditor for inquiry into conduct of liquidators – Corporations Act 2001 (Cth) s 541(1)(b).

Costs
Tate, Whelan and Niall JJA – 17 Dec 2018 – 6 pages

Costs – Costs of appeal – Group proceeding – Appeal by group member – First respondent representative plaintiff in group proceeding – Where appellant achieved substantial success – Whether first respondent was proper party to appeal – Whether appellant’s costs should be paid out of settlement sum – Supreme Court Act 1986 (Vic) s 33ZC.

Costs – Self-represented litigant – Barrister representing self – Member of the Victorian Bar – Whether entitled to costs for work as counsel – Whether entitled to reasonable disbursements – Supreme Court Act 1986 (Vic) ss 3(1), 24(1).

Macaulay J – 21 Nov 2018 – 13 pages

Costs – Wasted costs – Application for personal costs orders against plaintiff’s legal advisers and expert accounting witnesses – Plaintiff awarded only nominal damages at trial – Jurisdiction to award personal costs orders – Allegations of serious impropriety – Notice requirement.

Whelan, McLeish and Hargrave JJA – 20 Mar 2019 – 11 pages

Costs – Liquidation – Liquidators’ application for directions and approval of compromise – Application refused – Appeal dismissed – Whether costs ordered against liquidator personally or from assets of company – Different position regarding costs at first instance and on appeal.

Courts
Maxwell P, McLeish JA and Almond AJA – 18 Dec 2018 – 15 pages

Courts – Anonymisation – Applicant sought to have name anonymised in published reasons – Pseudonym used in trial reasons – Legislative policy to restrict disclosure of register – Risk of chilling effect on review of registration – Sex Offenders Registration Act 2004 (Vic) s 63.

Criminal law
Kyrou and Weinberg JJA – 22 Feb 2019 – 14 pages

Criminal law – Sentencing – Delay – Lengthy interval between offending and sentence – Relevance of delay.

Maxwell ACJ, Priest and Kyrou JJA – 07 Jun 2018 – 49 pages

Criminal law – Charge – Sufficiency of particulars – Joint commission – Preparatory offences – Foreign incursion – Offence of engaging in conduct preparatory to entering foreign country with intention of engaging in hostile activity – Whether particulars provided reasonable information as to the nature of the charge – Criminal Procedure Act 2009 (Vic) s 159(3)(c), sch 1 – Criminal Code (Cth) ss 11.2A, 117.1(1), 119.1(1), 119.4(1).

Maxwell P and Taylor AJA – 07 Feb 2019 – 5 pages

Criminal law – Interlocutory appeal – Evidence – Tendency evidence – Admissibility – Function of certification for interlocutory appeal – Criminal Procedure Act 2009 (Vic) ss 295 and 296.

Weinberg JA – 07 Dec 2018 – 5 pages

Criminal law – Bail – Exceptional circumstances – Applicant subject to adjourned undertaking to be of good behavior – Whether undertaking to be of good behavior constituted ‘otherwise serving a sentence’ – Bail Act 1977 (Vic)s 4AA(2)(c)(v) – Sentencing Act 1991 (Vic) s 75.

Equity
Kyrou, McLeish and Hargrave JJA – 27 Nov 2018 – 38 pages

Equity – Estoppel – Equitable estoppel – Deed of release – Representations that all claims against respondents were compromised – Effect of release – Whether applicant’s lack of full knowledge of circumstances of breach of trust rendered release of equitable claims unenforceable – Clean hands.

Equity – Fiduciary duties – Partnership – Duty to avoid conflict of interest – Duty to avoid deriving unauthorised profits – Duty to disclose and offer commercial opportunity to fellow partners – Whether breach of duties – Accessorial liability – Whether knowing inducement or procurement of breach – Whether receipt of property derived from another person’s breach – Application of terms of partnership deed – Partnership Act 1958 (Vic) ss 32, 33(1).

Evidence
Priest JA – 20 Dec 2018 – 8 pages

Evidence – Admissibility – Hearsay – Witness deceased – Protected witness – Prosecution seeking to rely on statements and video-recorded re-enactments by deceased protected witness as exceptions to hearsay in criminal trials – Disclosure of information regarding protected witness – Considerations informing order for disclosure – Witness Protection Act 1991 (Vic) ss 1, 3AAA, 3AA, 10(1)(c) – Evidence Act 2008 (Vic), s 65(2).

Priest, Beach and Niall JJA – 23 Feb 2018 – 30 pages

Evidence – Admissibility – Reasons of medical panel – Members of medical panel not compellable as witnesses – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 272 – Evidence Act 2008 (Vic) ss 55, 79.

Human rights
Taylor J – 02 Nov 2018 – 25 pages

Human rights – Right to freedom of movement – Limitations – Loitering without reasonable excuse – Whether constructional choice as to meaning – Whether limitation reasonable and demonstrably justifiable – Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7, 12, 25(1), 32(1).

Interest
Tate and Emerton JJA and Almond AJA – 13 Feb 2019 – 25 pages

Interest – Land compensation claim – Agreed quantum of debt on some heads of claim, with contested issues determined by Court after trial – Whether interest claimable on agreed quantum – Whether interest ‘on any sum for which judgment is entered or given by consent’ – Supreme Court Act 1986 (Vic) s 60(2)(d).

Legal practitioners
Keogh J – 23 Jan 2019 – 19 pages

Legal practitioners – Fees – Costs disclosure – Contract for legal services – Variation of engagement – Counsel retained by solicitor – Client to be responsible for counsel’s fee – Whether oral variation of engangement permitted – Whether costs disclosure made – Legal Profession Uniform Law cls 174, 175, 178, 180, 184, 185.

Tate, Kaye and Emerton JJA – 13 Feb 2019 – 52 pages

Legal practitioners – Unsatisfactory professional conduct – Dealings between practitioners – Requirement to take all reasonable care to maintain integrity and reputation of legal profession – Ensuring courteous communications – Avoidance of offensive or provocative language or conduct – Exception for communication made for legitimate pursuit of client interests and on reasonable basis – Whether exception applied – Charter of Human Rights and Responsibilities Act 2006 (Vic) s 15(2) – Legal Profession Act 2004 (Vic) s 4.4.4(a) – Professional Conduct and Practice Rules 2005 (Vic) r 21.

Negligence
John Dixon J – 06 Feb 2019 – 62 pages

Negligence – Duty of care – Statutory duties – Common law duty – Nuisance – Power supply company – Bushfire ignited after tree fell onto power conductor – Alleged statutory duty to maintain supply network to minimise risk to persons and property and to minimise risk of bushfire – Alleged common law duty to operate powerlines safely – Whether duties required clearance of non-hazardous vegetation outside of defined minimum clearance space – Electrical Safety Act 1998 (Vic) ss 84, 85, 86, 89, 98, 151 – Electricity Safety (Electric Line Clearance) Regulations 2015 (Vic) – Code of Practice for Electric Line Clearance cls 2, 3, 7, 8, 10 – Civil Procedure Act 2010 (Vic) ss 62, 63, 64 – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 23.01.

Partnership and partners

Partnership and partners – Formation – Partnership deed – Person signing partnership deed in capacity of director of corporate partner – Whether director personally bound – Whether director of partner a partner of partnership.

Police
Daly AsJ – 26 Nov 2018 – 42 pages

Police – Motor vehicles – Offence – Failure of driver to give information to police officer acting in the execution of duty – Proper construction of ‘execution of duty’ – Whether power of a police officer to request information restricted to circumstances where officer was investigating possible offences under the Act – Road Safety Act 1986 (Vic) s 60(1).

Practice and procedure
McLeish, Niall and Ashley JJA – 05 Sep 2018 – 25 pages

Practice and procedure – Leave to appeal – Points in proposed grounds of appeal not raised before trial judge – Where success on proposed grounds would not impugn orders made by trial judge.

Tate, Whelan and Niall JJA – 01 Nov 2018 – 80 pages

Practice and procedure – Group proceeding – Settlement – Approval – Appeal by group member against approval of settlement – Separate proceeding brought by special purpose receivers – Settlement of two proceedings – Single sum to be paid in settlement of both proceedings – Whether settlement sum fair and reasonable – Group proceeding funded by litigation funder – Proposed distributions from settlement sum for litigation funder’s commission and legal costs – Overlap between issues raised in two proceedings – Whether judge had adequate regard to contribution of special purpose receivers’ proceeding in approving commission to funder of group proceeding – Whether judge erred in ordering confidentiality over expert costs report, affidavits and legal advices and submissions – Whether judge erred in failing to appoint contradictor – Whether open to Court to approve settlement but not approve proposed distributions for commission and legal costs – Supreme Court Act 1986 (Vic) ss 33V, 33ZC(5), 33ZF.

Macaulay J – 21 Nov 2018 – 13 pages

Practice and procedure – Overarching obligations – Legal professionals – Expert witnesses – Whether plaintiff’s legal advisers and expert accounting witnesses contravened overarching obligations by continuing to act once it became reasonably clear that subject property development would return a substantial loss – Civil Procedure Act 2010 (Vic) ss 17, 19, 21(b), 22, 23, 24 and 29.

Practice and procedure – Parties – Substitution of party – Assignment of cause of action – Claim of misleading or deceptive conduct – Whether assignable – Whether valid assignment made – Whether determination of valid assignment a necessary pre-condition to substitution of party – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 9.09(2)(a).

McMillan J – 26 Mar 2019 – 22 pages

Practice and procedure – Interest – Interest on sum recovered in proceeding – ‘Debt or sum certain’ – Sum paid into Court by way of compromise – Order recording compromise – Whether sum ‘recovered’ – Whether judgment for the sum required – Good cause why interest should not be allowed – Supreme Court Act 1986 (Vic), s 58(1).

Derham AsJ – 13 Feb 2019 – 34 pages

Practice and procedure – Freezing order – Undertaking as to damages – Whether Director of Consumer Affairs required to give undertaking as to damages – Circumstances in which the Crown or a statutory authority may be required to give an undertaking as to damages.

Stamp duty
Croft J – 29 Nov 2018 – 21 pages

Stamp duty – Exemptions – Charitable purpose – Other purposes beneficial to community – Service club – Whether purpose of raising ethical standards in business and the professions is charitable – Whether purpose of club directed to members or the community generally – Duties Act 2000 (Vic), s 45.

Summary offences
Taylor J – 02 Nov 2018 – 25 pages

Summary offences – Loitering without reasonable excuse – Elements of offence – Whether ‘loitering’ required proof of lack of purpose or unlawful purpose – Crimes Act 1958 (Vic) s 60B(2) – Criminal Procedure Act 2009 (Vic), s 272(1).

Tort
Maxwell P, Hargrave and Ashley JJA – 20 Dec 2018 – 27 pages

Tort – Conversion – Bailment – Unauthorised pledge of chattels by bailee – Chattels returned by pledgee to bailee – Whether pledgee liable in conversion – Elements of cause of action – Whether dealing with or exercise of acts of ownership over chattels required – Whether unauthorised possession sufficient – Whether conversion a strict or absolute liability tort – Possible need for law reform.

Town planning
Tate and Emerton JJA and Almond AJA – 13 Feb 2019 – 25 pages

Town planning – Valuation and compensation – Land reserved for public purpose – Compensation under pt 5 of Planning and Environment Act 1987 (Vic) – Claim for loss on sale, expenses and intangible non-financial disadvantage referred to Court – Interest on compensation – Quantum of compensation for loss on sale and expenses agreed before trial – Whether statute barred award of interest on agreed loss on sale and expenses – Planning and Environment Act 1987 (Vic), ss 98, 99, 100, 101, 105 and 106 – Land Acquisition and Compensation Act 1986 (Vic), pts 10 and 11 and s 37 – Supreme Court Act 1986 (Vic), s 60(2)(d).

Trusts
McMillan J – 26 Mar 2019 – 22 pages

Trusts – Discretionary trust – Resolutions recording allocation of income to beneficiary – Accounts of trust – Whether acknowledgement of debt – Whether beneficiary a creditor of the trustee.

Trusts and trustees
Kyrou, McLeish and Hargrave JJA – 27 Nov 2018 – 38 pages

Trusts and trustees – Trustee’s duties – Breach of trust – Unit trust established for property development – Discounted units issued to some investors in breach of trust – Deed of release – Effect of release – Whether applicant’s lack of full knowledge of circumstances of breach of trust rendered release of equitable claims unenforceable.

Unconscionable conduct
McLeish, Niall and Ashley JJA – 05 Sep 2018 – 25 pages

Unconscionable conduct – Bank and customer – Bank paid unpaid owners corporation fees due on mortgaged property and debited customer without notice to customer – Whether breach of Code of Banking Practice 2013 – Whether bank acted unfairly in proceedings for debt and possession – Australian Securities and Investments Commission Act 2001 (Cth) s 12CB.

Words and phrases
John Dixon J – 06 Feb 2019 – 62 pages

Words and phrases – ‘Maintain’ – ‘Hazard’.

Keogh J – 24 Aug 2018 – 12 pages

Words and phrases – ‘claim’ – ‘claimant’.

Tate and Emerton JJA and Almond AJA – 13 Feb 2019 – 25 pages

Words and phrases – ‘sum’.

Workers compensation
Priest, Beach and Niall JJA – 23 Feb 2018 – 30 pages

Workers compensation – Serious injury application – Economic loss – ‘Pecuniary loss damages’ – Whether worker suffered a permanent loss of earning capacity of 40% or more – Relevance and admissibility of medical panel reasons – Accident Compensation Act 1985 (Vic) ss 135AB(37), 135AB(38)(e).



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Published by Editor-in-Chief

editor@jade.barnet.com.au

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