PRACTICE AND PROCEDURE - Application for leave to appeal interlocutory rulings - Application other than for leave to appeal - Application to restrain respondents' legal representatives - Applicant sought to adjourn concurrent hearing of the 64A and 64B applications and list directions hearing - No justification for adjournment - Matters raised by the applicant capable of being addressed in the course of hearing the applications - Allegations regarding conduct of respondents' counsel not appropriate or relevant - In the interests of justice to hear and determine 64A and 64B applications together given substantial overlap - No denial of procedural fairness by determining interim restraint application on the papers - Proposed adjournment would delay administration of justice - Directions hearing not necessary to facilitate the just, efficient, timely and cost effective resolution of the 64A and 64B applications - Adjournment refused.
PRACTICE AND PROCEDURE - Application for leave to appeal interlocutory rulings - Application other than for leave to appeal - Application to restrain respondents' legal representatives - Applicant sought to adjourn concurrent hearing of the 64A and 64B applications and list directions hearing - No justification for adjournment - Matters raised by the applicant capable of being addressed in the course of hearing the applications - Allegations regarding conduct of respondents' counsel not appropriate or relevant - In the interests of justice to hear and determine 64A and 64B applications together given substantial overlap - No denial of procedural fairness by determining interim restraint application on the papers - Proposed adjournment would delay administration of justice - Directions hearing not necessary to facilitate the just, efficient, timely and cost effective resolution of the 64A and 64B applications - Adjournment refused.
PRACTICE AND PROCEDURE - Application for leave to appeal interlocutory rulings and costs order - Where interlocutory rulings largely on matters of practice and procedure - Whether primary judge erred in dismissing application to strike out amended defence or enter summary judgment - No error in judge's conclusion that pleaded non-admission or denial not specifically addressing a pleaded material fact does not constitute an implied admission - Permissible for amended defence to make broad denial of omnibus allegations - Specific issues and allegations subject of pleadings a matter for resolution at trial - Amended defence sufficiently put plaintiffs on notice - No error in refusing the strike out or summary judgment applications.
PRACTICE AND PROCEDURE - Application other than for leave to appeal seeking to restrain respondents' legal representatives - Application to join respondents' legal representatives to appeal - Whether primary judge erred in refusing restraint application in primary proceeding - Where applicant contends respondents' legal representatives are conflicted and not impartial because of involvement in decision subject of dispute below - Where applicant alleges breaches of procedural fairness and various errors in primary judge's approach to restraint application - Fact that legal advice is impugned or may prove to be incorrect no justification for restraint - No evidence of any conflict - No error in primary judge's decision to refuse restraint application - Application to restrain and/or join respondents' legal representatives refused.
PRACTICE AND PROCEDURE - Oral recusal application in primary proceeding refused - Whether primary judge exhibited bias in determination of interlocutory applications and recusal - Where applicant contends judge denied her opportunity to make submissions, failed to properly consider submissions, misapplied law and misguided her - Judge heard and considered applicant's submissions and correctly applied legal principles - No requirement that primary judge make timetabling orders to hear any further recusal application - No basis for recusal on ground of apprehended or actual bias - Recusal application without merit.
COSTS - Applicant ordered to pay costs of the interlocutory applications in the primary proceeding - Applicant contended costs order made without providing opportunity to make submissions - Transcript discloses that applicant made submissions on costs - Usual rule that costs follow the event - No merit in challenge to costs order.
Civil Procedure Act 2010, ss 18, 23, 28-30, 60 and 63; Supreme Court (General Civil Procedure) Rules 2025, rr 13.12, 23.02.
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Wheelahan v City of Casey (No 12) [2013] VSC 316; Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580; Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27; Miller v Martin [2019] VSCA 86; Grimwade v Meagher [1995] 1 VR 446; Gangemi Pty Ltd v Luppino Pty Ltd [2012] VSC 168; Kallinicos v Hunt (2005) 64 NSWLR 561; Garde-Wilson v Corrs Chambers Westgarth (2007) 27 VAR 271; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Minister for Immigration and Multicultural Affairs v Legeng (2001) 205 CLR 507, applied.
MISLEADING OR DECEPTIVE CONDUCT - Accessorial liability - Share sale agreement - Representations by vendor as to financial position of company in sale documents in contravention of Australian Consumer Law s 18 - Whether basis of one of the representations was pleaded at trial - Whether judge misidentified certain conduct as basis for another contravention - Whether judge erred in finding that vendor's accountant had knowledge of essential facts and participated in the contraventions so as to be 'involved in' the contraventions - No error in judge's finding that accessorial liability established.
MISLEADING OR DECEPTIVE CONDUCT - Accessorial liability - Share sale agreement - Representations by vendor as to financial position of company in sale documents in contravention of Australian Consumer Law s 18 - Whether basis of one of the representations was pleaded at trial - Whether judge misidentified certain conduct as basis for another contravention - Whether judge erred in finding that vendor's accountant had knowledge of essential facts and participated in the contraventions so as to be 'involved in' the contraventions - No error in judge's finding that accessorial liability established.
Yorke v Lucas (1985) 158 CLR 661; Giorgianni v The Queen (1985) 156 CLR 473; Productivity Partners Pty Ltd v Australian Competition and Consumer Commission (2024) 281 CLR 338; Care A2 Plus Pty Ltd v Pichardo [2024] NSWCA 35.
Competition and Consumer Law Act 2010 (Cth) sch 2 ('Australian Consumer Law') ss 2, 18.
DAMAGES - Misleading or deceptive conduct - Damages under Australian Consumer Law s 236 - Contract executed because of misleading conduct - Misled party entitled to recover sum representing prejudice or disadvantage suffered as consequence of altering its position 'because of' relevant contravention - No single prescribed approach to assessing damages - Need for contravention to have materially contributed to loss suffered despite other factors playing more significant role - Additional consequential losses recoverable if rationally regarded as flowing from contravention and not from independent or supervening cause - Need to avoid double-counting of losses - Loss suffered at time of acquisition under contract assessed in accordance with Potts v Miller (1940) 64 CLR 282 - Some consequential loss rationally flowed from contravention - Error of judge in awarding damages for one category of consequential loss and in quantifying other category of consequential loss - Appeal allowed in part.
Potts v Miller (1940) 64 CLR 282; Henville v Walker (2001) 206 CLR 459; Viterra Malt Pty Ltd v Cargill Australia Ltd (2023) 74 VR 1; Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165.
DAMAGES - Proportionate liability - Competition and Consumer Act 2010 (Cth) pt VIA - Court obliged to consider pt VIA if party relies on that part - Concurrent wrongdoers in respect of loss awarded - Error in failing to apply pt VIA and to apportion damages - Appeal allowed.
DAMAGES - Proportionate liability - Competition and Consumer Act 2010 (Cth) pt VIA - Whether applicant an 'excluded concurrent wrongdoer' pursuant to Competition and Consumer Act 2010 (Cth) s 87CC - Need to establish intention to cause loss or damage that is subject of claim - Need to give alleged excluded concurrent wrongdoer opportunity to defend allegation at trial - No such opportunity given - In any event relevant intention not established.
Competition and Consumer Law Act 2010 (Cth) pt VIA ss 87CB, 87CC, 87CD, 87CF, 87CG, 87CI; Australian Consumer Law s 236.
Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; Bank Ltd v Quinerts Pty Ltd (2009) 25 VR 666; Williams v Pisano (2015) 90 NSWLR 342; Dickson v Northern Lakes Rugby League Sport and Recreational Club Inc (2020) 103 NSWLR 658.
COSTS - Non-party costs order - Where respondent insolvent - Whether 'something more' present - Respondent was proper party to the litigation - Nothing improper in the way litigation was conducted - Application refused.
COSTS - Non-party costs order - Where respondent insolvent - Whether 'something more' present - Respondent was proper party to the litigation - Nothing improper in the way litigation was conducted - Application refused.
Supreme Court Act 1986, s 24(1).
Knight v FP Special Assets Ltd (1992) 174 CLR 178; Gdanski v Palms Court Management Pty Ltd [2017] VSCA 348; JAB Nominees (Aust) Pty Ltd v Auswild [2020] VSC 731, applied.
APPEAL - Costs - No basis to depart from usual proposition that costs follow the event.
APPEAL - Costs - No basis to depart from usual proposition that costs follow the event.
CRIMINAL LAW - Election to renew application for leave to appeal sentence and application for extension of time - Plea of guilty to aggravated burglary, conduct endangering persons, sexual assault, attempted rape and unlawful assault - Single judge of Court of Appeal previously refused extension of time on basis that proposed grounds of appeal had no merit - Where applicant unable to identify any significant matter overlooked or misunderstood by single judge - Considerable weight to be given to detailed reasons of single judge - Very serious offending - Proposed grounds of appeal without merit - Application for extension of time refused.
CRIMINAL LAW - Election to renew application for leave to appeal sentence and application for extension of time - Plea of guilty to aggravated burglary, conduct endangering persons, sexual assault, attempted rape and unlawful assault - Single judge of Court of Appeal previously refused extension of time on basis that proposed grounds of appeal had no merit - Where applicant unable to identify any significant matter overlooked or misunderstood by single judge - Considerable weight to be given to detailed reasons of single judge - Very serious offending - Proposed grounds of appeal without merit - Application for extension of time refused.
Criminal Procedure Act 2009, s 315(2).
Lord v The Queen [2018] VSCA 52; Ayol v The Queen [2014] VSCA 151, applied.
CRIMINAL LAW - Sentence - Application for extension of time in which to file a notice of appeal - Applicant pleaded guilty to aggravated burglary, theft and possession of drug of dependence - Total effective sentence of 5 years and six months' imprisonment - Whether sentence manifestly excessive - Applicant was involved in a plan, with two others, to steal money from a hotel by staging an 'armed robbery' - Applicant played the role of the armed robber - Co-offenders posed as a fake victim and assisted applicant to gain entry to hotel after hours - Total of $321,990 stolen and $27,000 ultimately recovered - Applicant submitted he was not involved in planning to a significant degree - Whether sufficient weight given to guilty plea - Whether Verdins limbs 5 and 6 correctly applied given applicant's deterioration in custody - Whether sentence for theft outside of the available range - Proposed ground of appeal has no real prospect of success - Application refused.
CRIMINAL LAW - Sentence - Application for extension of time in which to file a notice of appeal - Applicant pleaded guilty to aggravated burglary, theft and possession of drug of dependence - Total effective sentence of 5 years and six months' imprisonment - Whether sentence manifestly excessive - Applicant was involved in a plan, with two others, to steal money from a hotel by staging an 'armed robbery' - Applicant played the role of the armed robber - Co-offenders posed as a fake victim and assisted applicant to gain entry to hotel after hours - Total of $321,990 stolen and $27,000 ultimately recovered - Applicant submitted he was not involved in planning to a significant degree - Whether sufficient weight given to guilty plea - Whether Verdins limbs 5 and 6 correctly applied given applicant's deterioration in custody - Whether sentence for theft outside of the available range - Proposed ground of appeal has no real prospect of success - Application refused.
Crimes Act 1958, ss 77, 74(1); Drugs, Poisons and Controlled Substances Act 1981, s 73(1); Road Safety Act 1986, s 30(1).
Saab v The Queen [2012] VSCA 165; DPP v Ede [2021] VCC 191; DPP v Kachami [2020] VCC 1849; Tufue v The King [2024] VSCA 22; Director of Public Prosecutions (Vic) v Dalgliesh (2017) 262 CLR 428; Hili v The Queen (2010) 242 CLR 520, discussed.
Madafferi v The Queen [2017] VSCA 302; Clarkson v The Queen (2011) 32 VR 361; Osman v The Queen [2021] VSCA 176, applied.
CRIMINAL LAW - Application for leave to appeal against 2011 convictions for obtaining financial advantage by deception (3 charges) and attempting to obtain financial advantage by deception (1 charge) - Application for leave to appeal filed in 2017 - Application containing 23 proposed grounds of appeal - Extension of time granted in respect of proposed ground of appeal relating to Lawyer X, but refused in respect of remaining 22 proposed grounds - Applicant failing to comply with orders requiring filing and service of amended written case.
CRIMINAL LAW - Application for leave to appeal against 2011 convictions for obtaining financial advantage by deception (3 charges) and attempting to obtain financial advantage by deception (1 charge) - Application for leave to appeal filed in 2017 - Application containing 23 proposed grounds of appeal - Extension of time granted in respect of proposed ground of appeal relating to Lawyer X, but refused in respect of remaining 22 proposed grounds - Applicant failing to comply with orders requiring filing and service of amended written case.
PRACTICE AND PROCEDURE - Application by respondent for dismissal of application for leave to appeal for want of prosecution - Delay explained in part by applicant pursuing applications under s 317 of Criminal Procedure Act 2009 for disclosure of material relevant to proposed ground of appeal relating to Lawyer X - Proposed ground of appeal relating to Lawyer X of sufficient public importance to justify applicant being permitted to pursue that ground on terms - Application for dismissal for want of prosecution not granted at this stage - Timetabling orders made in respect of applicant's only remaining proposed ground of appeal.
CRIMINAL LAW - Appeal - Sentence - False imprisonment contrary to common law - Common assault - Applicant sentenced to 2 years 9 months' imprisonment with 15 months to be served cumulatively on existing uncompleted sentence - Judge erred in making finding of some planning and pre-agreement - Purpose of s 280(1)(b) Criminal Procedure Act 2009 - Direction as to amount of new sentence to be served cumulatively on existing sentence falls within definition of 'total effective sentence' - No reasonable prospect Court of Appeal would reduce order for cumulation on existing sentence to less than 15 months - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - False imprisonment contrary to common law - Common assault - Applicant sentenced to 2 years 9 months' imprisonment with 15 months to be served cumulatively on existing uncompleted sentence - Judge erred in making finding of some planning and pre-agreement - Purpose of s 280(1)(b) Criminal Procedure Act 2009 - Direction as to amount of new sentence to be served cumulatively on existing sentence falls within definition of 'total effective sentence' - No reasonable prospect Court of Appeal would reduce order for cumulation on existing sentence to less than 15 months - Leave to appeal refused.
Criminal Procedure Act 2009, ss 3, 280(1)(b), 280(3)(a); Sentencing Act 1991, s 16(1).
Ludeman v The Queen (2010) 31 VR 606; Johns v The Queen (2020) 92 MVR 160; DPP v Tawdros [2026] VSCA 74, considered.
Butcher v The King [2024] VSCA 322; Ale v The King [2025] VSCA 92; Russo (a pseudonym) v The King [2024] VSCA 40, discussed.
CRIMINAL LAW - Appeal - Sentence - Application for leave to appeal against sentence - Applicant pleaded guilty to trafficking drug of dependence in commercial quantity, possessing firearm, possessing drug of dependence, knowingly dealing with proceeds of crime, and related summary offending - Sentenced to 13 years and 6 months' imprisonment with non-parole period of 10 years and 6 months - Police seized significant quantity of drugs, firearm and related paraphernalia from applicant's residence - Principle of totality - Total effective sentence wholly outside available range - Application for leave to appeal granted - Appeal allowed - Applicant re-sentenced.
CRIMINAL LAW - Appeal - Sentence - Application for leave to appeal against sentence - Applicant pleaded guilty to trafficking drug of dependence in commercial quantity, possessing firearm, possessing drug of dependence, knowingly dealing with proceeds of crime, and related summary offending - Sentenced to 13 years and 6 months' imprisonment with non-parole period of 10 years and 6 months - Police seized significant quantity of drugs, firearm and related paraphernalia from applicant's residence - Principle of totality - Total effective sentence wholly outside available range - Application for leave to appeal granted - Appeal allowed - Applicant re-sentenced.
Criminal Procedure Act 2009, s 315; Firearms Act 1996, ss 112B, 112D; Drugs, Poisons and Controlled Substances Act 1981, ss 71AA, 73; Crimes Act 1958, s 194.
Gregory (a pseudonym) v The Queen [2017] VSCA 151; DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; Quah v The Queen [2021] VSCA 164; Lieu v The Queen (2016) 263 A Crim R 173; Acciarito v The Queen [2019] VSCA 264; Mill v The Queen (1988) 166 CLR 59, considered.
CRIMINAL LAW - Appeal - Sentence - Application for leave to appeal against sentence - Applicant pleaded guilty to charges of aggravated burglary, threat to inflict serious injury, theft, damaging property and related summary offending - Aggregate sentence - Applicant sentenced to 12 months' imprisonment and community correction order of 24 months - Whether judge erred in imposing aggregate sentence - Offending occurred within short period of time - Offending connected with theft of property - Open to judge to impose aggregate sentence in circumstances - Application for leave to appeal granted - Appeal dismissed.
CRIMINAL LAW - Appeal - Sentence - Application for leave to appeal against sentence - Applicant pleaded guilty to charges of aggravated burglary, threat to inflict serious injury, theft, damaging property and related summary offending - Aggregate sentence - Applicant sentenced to 12 months' imprisonment and community correction order of 24 months - Whether judge erred in imposing aggregate sentence - Offending occurred within short period of time - Offending connected with theft of property - Open to judge to impose aggregate sentence in circumstances - Application for leave to appeal granted - Appeal dismissed.
Sentencing Act 1991, ss 9, 18; Criminal Procedure Act 2009, s 280.
R v Renzella [1997] 2 VR 88; Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269; Hogarth v The Queen (2012) 37 VR 658; DPP v Myers (2014) 44 VR 486; DPP v Frewstal Pty Ltd (2015) 47 VR 600; R v Grossi [2008] VSCA 51; Hassall v The King [2024] VSCA 163, referred to.
CRIMINAL LAW - Sentence - Application for leave to appeal - Aggravated burglary - Recklessly causing injury - Aggregate sentence of 198 days with CCO for 3 years - 198 days declared as pre-sentence detention - Whether sentencing judge erred by finding Verdins limb 6 not satisfied - Whether an error to categorise offending as 'serious' - Whether sentence manifestly excessive - Verdins limb 6 not enlivened as sentence imposed did not require return of applicant to prison - High objective gravity of offending - Sentence within range - Application refused.
CRIMINAL LAW - Sentence - Application for leave to appeal - Aggravated burglary - Recklessly causing injury - Aggregate sentence of 198 days with CCO for 3 years - 198 days declared as pre-sentence detention - Whether sentencing judge erred by finding Verdins limb 6 not satisfied - Whether an error to categorise offending as 'serious' - Whether sentence manifestly excessive - Verdins limb 6 not enlivened as sentence imposed did not require return of applicant to prison - High objective gravity of offending - Sentence within range - Application refused.
Alexander (a pseudonym) v The Queen [2021] VSCA 217; R v Verdins (2007) 16 VR 269, discussed. R v Smith (1987) 44 SASR 587; DPP v O'Neill (2015) VR 395; Clarkson v The Queen (2011) 32 VR 361; R v Engert (1995) 84 A Crim R 67, referred to.
CRIMINAL LAW - Appeal - Sentence - Dangerous driving causing serious injury - Distraction by phone use - Victim suffered serious injury - Early plea of guilty - Where applicant of good character - Where genuine remorse and excellent prospects of rehabilitation - Need for general deterrence and denunciation - Whether sentencing judge failed to consider sentencing statistics - Whether sentence manifestly excessive - Whether non-parole period imposed reasonably open to sentencing judge - Sentence not manifestly excessive - No requirement for sentencing judge to give specific reasons for non-parole period - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Dangerous driving causing serious injury - Distraction by phone use - Victim suffered serious injury - Early plea of guilty - Where applicant of good character - Where genuine remorse and excellent prospects of rehabilitation - Need for general deterrence and denunciation - Whether sentencing judge failed to consider sentencing statistics - Whether sentence manifestly excessive - Whether non-parole period imposed reasonably open to sentencing judge - Sentence not manifestly excessive - No requirement for sentencing judge to give specific reasons for non-parole period - Application for leave to appeal refused.
Sentencing Act 1991, s 11(3).
DPP v Hall (2025) 107 MVR 497; Karam v The King [2025] VSCA 194; Samarakoon v The Queen [2018] VSCA 119; Cutri Fruit Pty Ltd [2025] VSCA 173; Bosa v The Queen [2018] VSCA 97, applied.
CRIMINAL LAW - Interlocutory appeal - Review of refusal to certify - Applicant charged with eight counts of rape, one count of false imprisonment, one count of common assault, one count of sexual assault and one count of sexual assault by compelling sexual touching - Judge granted application to cross-examine complainant on sexual activities under s 342 of Criminal Procedure Act 2009 but not to show related photos or videos to complainant - Judge ruled showing photos and videos to complainant unduly humiliating under s 41 of Evidence Act 2008 - Photos and videos ruled inadmissible - Judge stated parties not free to agree description of photo and videos - Judge refused to certify interlocutory decision under s 295(3)(b) of Criminal Procedure Act 2009 - Whether judge erred in refusing to certify - Whether one or three interlocutory decisions - Whether decision concerning admissibility of evidence - Hameed (a pseudonym) v The King [2026] VSCA 48 - Application for review of refusal to certify dismissed.
CRIMINAL LAW - Interlocutory appeal - Review of refusal to certify - Applicant charged with eight counts of rape, one count of false imprisonment, one count of common assault, one count of sexual assault and one count of sexual assault by compelling sexual touching - Judge granted application to cross-examine complainant on sexual activities under s 342 of Criminal Procedure Act 2009 but not to show related photos or videos to complainant - Judge ruled showing photos and videos to complainant unduly humiliating under s 41 of Evidence Act 2008 - Photos and videos ruled inadmissible - Judge stated parties not free to agree description of photo and videos - Judge refused to certify interlocutory decision under s 295(3)(b) of Criminal Procedure Act 2009 - Whether judge erred in refusing to certify - Whether one or three interlocutory decisions - Whether decision concerning admissibility of evidence - Hameed (a pseudonym) v The King [2026] VSCA 48 - Application for review of refusal to certify dismissed.
Criminal Procedure Act 2009, ss 295-7, 342, 349; Evidence Act 2008, s 41.
Hameed (a pseudonym) v The King [2026] VSCA 48, applied.
CRIMINAL LAW - Appeal against conviction - Admissibility of admissions - Evidence of admissions given by witness in prior court proceedings - Witness unavailable at trial - Admissions admissible by a combination of s 65(3) and (6) and ss 81 and 82 of the Evidence Act - Whether the VARE evidence-in-chief procedure under s 368 of the Criminal Procedure Act applied - Section 368 did not apply - Leave to appeal granted on ground 1 - Appeal dismissed.
CRIMINAL LAW - Appeal against conviction - Admissibility of admissions - Evidence of admissions given by witness in prior court proceedings - Witness unavailable at trial - Admissions admissible by a combination of s 65(3) and (6) and ss 81 and 82 of the Evidence Act - Whether the VARE evidence-in-chief procedure under s 368 of the Criminal Procedure Act applied - Section 368 did not apply - Leave to appeal granted on ground 1 - Appeal dismissed.
CRIMINAL LAW - Appeal against conviction - Whether substantial miscarriage of justice occurred by reason of failure to order separate trials - No substantial miscarriage of justice - Leave to appeal refused on ground 2.
CRIMINAL LAW - Appeal against sentence - Life sentence imposed for murder - Total effective sentence of life imprisonment with non-parole period of 32 years - Whether individual sentences and non-parole period manifestly excessive - Sentences and non-parole period not manifestly excessive - Leave to appeal refused.
Criminal Procedure Act 2009, ss 193, 198B, 210, 232, 280, 366, 367, 368; Evidence Act 2008, ss 59, 62, 65, 81, 82, 83, considered.
Doble v The Queen [2015] VSCA 265; DPP v Price and Brown (Ruling No 1) [2023] VSC 149; Glowacki v R [2023] VSCA 176; Papakosmas v The Queen (1999) 196 CLR 297; R v Bagster [2022] NSWDC 300; R v Demirok [1976] VR 244; R v Dillon (No 3) [2019] NSWSC 1537; R v Gibb & McKenzie [1983] 2 VR 155; R v Jones (1991) 55 A Crim R 159; R v Kilic (2016) 259 CLR 256; R v Ngo (2001) 122 A Crim R 467; Vickers v The Queen (2006) 160 A Crim R 195, considered.
CRIMINAL LAW - Sentence - Application for leave to appeal - Applicant pleaded guilty to causing injury intentionally, common assault, rape and persistent contravention of family violence intervention order - Victim audio recorded incident of rape - Recording captured applicant stating he would rape victim - Recording captured explicit denial of consent by victim - Whether conduct establishing element of offence was considered a circumstance of aggravation - No specific error - Leave to appeal refused.
CRIMINAL LAW - Sentence - Application for leave to appeal - Applicant pleaded guilty to causing injury intentionally, common assault, rape and persistent contravention of family violence intervention order - Victim audio recorded incident of rape - Recording captured applicant stating he would rape victim - Recording captured explicit denial of consent by victim - Whether conduct establishing element of offence was considered a circumstance of aggravation - No specific error - Leave to appeal refused.
Jurj v The Queen [2016] VSCA 57; Berry v The King [2024] VSCA 274, discussed.
CRIMINAL LAW - Sentence - Application for leave to appeal - Historical offending - Charges of kidnapping, aggravated rape, and gross indecency with person under 16 - Applicant sentenced to 13 years and 6 months' imprisonment - Non-parole period of 8 years and 2 months - Whether sentences and non-parole period manifestly excessive - Imposition of sentence of present magnitude unlikely around the time of offending - Risk of double punishment - Leave to appeal granted - Appeal allowed - Applicant resentenced.
CRIMINAL LAW - Sentence - Application for leave to appeal - Historical offending - Charges of kidnapping, aggravated rape, and gross indecency with person under 16 - Applicant sentenced to 13 years and 6 months' imprisonment - Non-parole period of 8 years and 2 months - Whether sentences and non-parole period manifestly excessive - Imposition of sentence of present magnitude unlikely around the time of offending - Risk of double punishment - Leave to appeal granted - Appeal allowed - Applicant resentenced.
Clarkson v The Queen (2011) 32 VR 361; Stalio v The Queen (2012) 46 VR 426; Nguyen v The Queen (2012) 272 FLR 58, referred to.
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to rape, common law assault and persistent FVIO contravention - Where rape occurred with honest but unreasonable belief in consent - Imprisonment sentence of 8 years on rape charge - Total effective sentence of 9 years and 3 months - Non-parole period of 5 years and 6 months - Whether judged failed to properly assess objective seriousness and moral culpability of rape - Whether sentence manifestly excessive - Rape objectively less serious where honest albeit unreasonable belief in consent - Lower moral culpability - Lower than middle range seriousness - Crown concession - Early guilty plea - Lack of prior sexual offending - Positive steps towards rehabilitation - Leave to appeal granted - Appeal allowed - Resentenced to 5 years and 6 months on rape charge - Total effective sentence of 6 years and 9 months.
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to rape, common law assault and persistent FVIO contravention - Where rape occurred with honest but unreasonable belief in consent - Imprisonment sentence of 8 years on rape charge - Total effective sentence of 9 years and 3 months - Non-parole period of 5 years and 6 months - Whether judged failed to properly assess objective seriousness and moral culpability of rape - Whether sentence manifestly excessive - Rape objectively less serious where honest albeit unreasonable belief in consent - Lower moral culpability - Lower than middle range seriousness - Crown concession - Early guilty plea - Lack of prior sexual offending - Positive steps towards rehabilitation - Leave to appeal granted - Appeal allowed - Resentenced to 5 years and 6 months on rape charge - Total effective sentence of 6 years and 9 months.
Crimes Act 1958, s 38(3); Sentencing Act 1991, ss 5A(1)(b), 5A(3)(b).
Skeates (a pseudonym) v The Queen [2023] VSCA 226; DPP v Jarrett (a pseudonym) [2023] VCC 752; Bakshi v The Queen [2018] VSCA 83; Ludeman v The Queen (2010) 31 VR 606, considered.
EMPLOYMENT - Breach of contract - Breach of fiduciary obligations - Judgment in default of defence - Affidavit evidence admissible where relevant to discretion whether to grant relief - Whether s 18 of the Australian Consumer Law applies - Assessment of damages - Availability of equitable compensation - Availability of account of profits or monies received.
EMPLOYMENT - Breach of contract - Breach of fiduciary obligations - Judgment in default of defence - Affidavit evidence admissible where relevant to discretion whether to grant relief - Whether s 18 of the Australian Consumer Law applies - Assessment of damages - Availability of equitable compensation - Availability of account of profits or monies received.
COURTS AND JUDGES - ADMINISTRATIVE LAW - APPEAL - Judicial review - Decision of judge of County Court dismissing appeal from personal safety intervention order imposed by Magistrates' Court - Whether judge denied plaintiff procedural fairness or constructively failed to exercise jurisdiction - Joint memorandum by plaintiff and the second defendant seeking orders by consent to quash judge's dismissal of the appeal and mandamus - Appointment of amicus curiae - Whether judge failed to discharge duty to provide fair hearing to self-represented person with limited ability in English - Whether judge failed to elicit and elucidate arguments - Whether judge failed to consider and determine substantive arguments clearly made by the plaintiff or raised squarely by the case - Whether any failures material to outcome - Approach to jurisdictional error claims against court orders - Personal Safety Intervention Orders Act 2010 ss 61, 91, 96, 97.
COURTS AND JUDGES - ADMINISTRATIVE LAW - APPEAL - Judicial review - Decision of judge of County Court dismissing appeal from personal safety intervention order imposed by Magistrates' Court - Whether judge denied plaintiff procedural fairness or constructively failed to exercise jurisdiction - Joint memorandum by plaintiff and the second defendant seeking orders by consent to quash judge's dismissal of the appeal and mandamus - Appointment of amicus curiae - Whether judge failed to discharge duty to provide fair hearing to self-represented person with limited ability in English - Whether judge failed to elicit and elucidate arguments - Whether judge failed to consider and determine substantive arguments clearly made by the plaintiff or raised squarely by the case - Whether any failures material to outcome - Approach to jurisdictional error claims against court orders - Personal Safety Intervention Orders Act 2010 ss 61, 91, 96, 97.
COURTS AND JUDICIAL SYSTEM - Parens patriae jurisdiction - Treatment recommended for a child suffering leukaemia, in remission - Hospital recommend treatment for life saving reasons - Mother refused consent - Mother's religious beliefs - Child angry at the hospital - Assessment of whether the child has Gillick capacity - Child does not have capacity - Best interests of the child justify the treatment being authorised - Liberty to apply.
COURTS AND JUDICIAL SYSTEM - Parens patriae jurisdiction - Treatment recommended for a child suffering leukaemia, in remission - Hospital recommend treatment for life saving reasons - Mother refused consent - Mother's religious beliefs - Child angry at the hospital - Assessment of whether the child has Gillick capacity - Child does not have capacity - Best interests of the child justify the treatment being authorised - Liberty to apply.
PRACTICE AND PROCEDURE - Execution of judgment debt - Application to stay or set aside a warrant of seizure and sale - Whether errors in documents underlying warrant could justify a stay - Whether any appeal from underlying judgment of tribunal - Whether amount owing on warrant not clearly reconciled or verified with source documents - Disproportionality of amount owing and value of property to be sold under warrant - Warrant amended to correct minor error and account for offsetting amount from costs order in favour of defendant - Temporary stay granted to allow defendant time to pay confirmed judgment amount - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 66.16 - Anderson v Liddell (1968) 117 CLR 36, considered.
PRACTICE AND PROCEDURE - Execution of judgment debt - Application to stay or set aside a warrant of seizure and sale - Whether errors in documents underlying warrant could justify a stay - Whether any appeal from underlying judgment of tribunal - Whether amount owing on warrant not clearly reconciled or verified with source documents - Disproportionality of amount owing and value of property to be sold under warrant - Warrant amended to correct minor error and account for offsetting amount from costs order in favour of defendant - Temporary stay granted to allow defendant time to pay confirmed judgment amount - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 66.16 - Anderson v Liddell (1968) 117 CLR 36, considered.
APPEAL - Appeal of judgment by Associate Judge - Whether Associate Judge had power to hear and determine trial without referral order - Supreme Court Act 1986 s 17(1A) - Supreme Court (General Civil Procedure) Rules 2015 ord 77 - Goodenough v State of Victoria [2016] VSC 733 - Haque v State of Victoria [2024] VSC 57- Leave to appeal granted - Appeal allowed.
APPEAL - Appeal of judgment by Associate Judge - Whether Associate Judge had power to hear and determine trial without referral order - Supreme Court Act 1986 s 17(1A) - Supreme Court (General Civil Procedure) Rules 2015 ord 77 - Goodenough v State of Victoria [2016] VSC 733 - Haque v State of Victoria [2024] VSC 57- Leave to appeal granted - Appeal allowed.
ADMINISTRATIVE LAW - Appeal from the Victorian Civil and Administrative Tribunal against costs orders - Domestic building dispute - Applicants successful in substantive proceeding at Tribunal against builder - Claims against other associated parties struck out - Retirement of Tribunal Member who heard substantive proceeding - Costs application determined by differently constituted Tribunal - Caution to be exercised by appellate jurisdiction in favour of correctness in an appeal against primary decision-maker's exercise of discretion - Unusual or exceptional circumstances - Whether statutory factors properly considered by Tribunal - Where findings of the substantive decision-maker were misconstrued - Failure to take into account a material consideration - Costs decision plainly unjust in all the circumstances - Extension of time appropriate - Leave to appeal granted - Appeal allowed - Tribunal order set aside - No remittal justified.
ADMINISTRATIVE LAW - Appeal from the Victorian Civil and Administrative Tribunal against costs orders - Domestic building dispute - Applicants successful in substantive proceeding at Tribunal against builder - Claims against other associated parties struck out - Retirement of Tribunal Member who heard substantive proceeding - Costs application determined by differently constituted Tribunal - Caution to be exercised by appellate jurisdiction in favour of correctness in an appeal against primary decision-maker's exercise of discretion - Unusual or exceptional circumstances - Whether statutory factors properly considered by Tribunal - Where findings of the substantive decision-maker were misconstrued - Failure to take into account a material consideration - Costs decision plainly unjust in all the circumstances - Extension of time appropriate - Leave to appeal granted - Appeal allowed - Tribunal order set aside - No remittal justified.
Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 109, 148; Civil Procedure Act 2010 (Vic) pt 2.1; Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27; Vero Insurance Ltd v Gombac Group Pty Ltd [2007] VSC 117; Martin v Fasham Johnson Pty Ltd [2007] VSC 54; Muto v Shepparton City Council [2018] VSCA 73; Cargill Australia Ltd v Viterra Malt Pty Ltd [2023] VSCA 301; Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621; Secretary to the Department of Justice v Yee [2012] VSC 447; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; House v The King (1936) 55 CLR 499; Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; Leeda Projects Pty Ltd v Zeng (2020) 61 VR 384; Concrete Construction Systems Pty Ltd v Inglese (No 2) [2024] VSC 335, referred to.
APPEAL - Appeal from Associate Justice's decision for an extension of time to seek leave to appeal - Whether relevant factors to be considered cumulatively or sequentially in the exercise of discretion - Delay - Adequacy of reasons for delay - Whether good prospect of success on merits of the appeal - Purpose of extension of time discretion to enable the Court to do justice between the parties - No error identified - Extension of time appropriate.
Supreme Court (General Civil Procedure) Rules 2025 (Vic) ord 77; Huang v Frankston City Council [2024] VSCA 38; Kuek v Devflan Pty Ltd [2021] VSC 571; Cargill Australia Ltd v Viterra Malt Pty Ltd [2023] VSCA 301; Francis v Wilson [2023] VSC 410; Gallo v Dawson (1990) 64 ALJR 458; House v The King (1936) 55 CLR 499, referred to.
MAGISTRATES' COURT - Criminal law - Drug Division - Drug and Alcohol Treatment Order - Cancellation of order - Appeal on questions of law - Inadequate reasons - Failure to consider options other than imprisonment - Misapplication of statutory provisions - Denial of procedural fairness - Sentencing Act 1991 s 18ZP(1)(c),(d),(e), Criminal Procedure Act 2009 s 272.
MAGISTRATES' COURT - Criminal law - Drug Division - Drug and Alcohol Treatment Order - Cancellation of order - Appeal on questions of law - Inadequate reasons - Failure to consider options other than imprisonment - Misapplication of statutory provisions - Denial of procedural fairness - Sentencing Act 1991 s 18ZP(1)(c),(d),(e), Criminal Procedure Act 2009 s 272.
APPEALS - Appeal from Victorian Civil and Administrative Tribunal - Application for leave granted - Relevant material from Tribunal proceedings not put before Court on application for leave - Application in Tribunal dismissed for non-appearance - Application for review also dismissed for non-appearance - Second application lodged in Tribunal - Application dismissed summarily by Tribunal - Whether the second proceeding involved the same claim as the first - Whether abuse of process or vexatious - Procedural fairness - Whether applicant had an opportunity to be heard - Whether Tribunal's very brief reasons sufficient - Appeal dismissed - Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 75, 117, 120, 148(7).
APPEALS - Appeal from Victorian Civil and Administrative Tribunal - Application for leave granted - Relevant material from Tribunal proceedings not put before Court on application for leave - Application in Tribunal dismissed for non-appearance - Application for review also dismissed for non-appearance - Second application lodged in Tribunal - Application dismissed summarily by Tribunal - Whether the second proceeding involved the same claim as the first - Whether abuse of process or vexatious - Procedural fairness - Whether applicant had an opportunity to be heard - Whether Tribunal's very brief reasons sufficient - Appeal dismissed - Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 75, 117, 120, 148(7).
ENVIRONMENTAL LAW - Landfill levy payable on 'waste' deposited on to land on scheduled premises - Defendant licensed under the Environment Protection Act 1970 (Vic) to operate landfill on scheduled premises - Where defendant acquired non-descript crushed rock (NDCR) from a third party quarry adjacent to the landfill premises - NDCR used by landfill operator for 'daily cover' on waste in landfill cells, in accordance with licence condition - Landfill operator did not pay landfill levy on the NDCR used for daily cover - Environment Protection Authority determined NDCR was 'waste' and issued invoice for payment of landfill levy for NDCR under Environment Protection Act 1970 (Vic) - Whether NDCR is 'waste' as defined in s 4(1) of the Environment Protection Act 1970 (Vic) and subject to landfill levy - Environment Protection Authority claim for debt due for unpaid landfill levy - Licensed landfill operator's defence that NDCR is not 'waste' - Whether defence involves collateral attack - Whether non-compliance by Environment Protection Authority with procedural requirements of statute with respect to issuing invoice - Environment Protection Act 1970 (Vic), Part IX, Division 3, ss 4(1), 20, 27(2), 50S, 50SB, 50SAB, 50SB, 50V, 50XA - Dasma Environmental Pty Ltd v Environment Protection Authority [2022] VSCA 248.
ENVIRONMENTAL LAW - Landfill levy payable on 'waste' deposited on to land on scheduled premises - Defendant licensed under the Environment Protection Act 1970 (Vic) to operate landfill on scheduled premises - Where defendant acquired non-descript crushed rock (NDCR) from a third party quarry adjacent to the landfill premises - NDCR used by landfill operator for 'daily cover' on waste in landfill cells, in accordance with licence condition - Landfill operator did not pay landfill levy on the NDCR used for daily cover - Environment Protection Authority determined NDCR was 'waste' and issued invoice for payment of landfill levy for NDCR under Environment Protection Act 1970 (Vic) - Whether NDCR is 'waste' as defined in s 4(1) of the Environment Protection Act 1970 (Vic) and subject to landfill levy - Environment Protection Authority claim for debt due for unpaid landfill levy - Licensed landfill operator's defence that NDCR is not 'waste' - Whether defence involves collateral attack - Whether non-compliance by Environment Protection Authority with procedural requirements of statute with respect to issuing invoice - Environment Protection Act 1970 (Vic), Part IX, Division 3, ss 4(1), 20, 27(2), 50S, 50SB, 50SAB, 50SB, 50V, 50XA - Dasma Environmental Pty Ltd v Environment Protection Authority [2022] VSCA 248.
LIMITATION OF ACTIONS - Historical sexual abuse - Settlement deed - Application to set aside settlement deed - Defendant does not oppose setting aside deed insofar as it relates to a claim for general damages and/or medical expenses, but opposes setting aside deed insofar as it relates to a claim for economic loss - Whether just and reasonable in all the circumstances to set aside deed in whole or in part - Consideration of all relevant circumstances - Limitation of Actions Act 1958 (Vic), ss 27QD and 27QE; Evidence Act 2008 (Vic), s 91 - DZY (a pseudonym) v Trustees of the Christian Brothers (2025) 282 CLR 495; Trustees of the Marist Brothers v Barclay [2025] VSCA 297; Pearce v Missionaries of the Sacred Heart [2022] VSC 697; Pearce v Waller Legal [2025] VSC 324; Warrick (a pseudonym) v Trustees of the Christian Brothers [2025] VSC 520; Mooney v Trustees of the Christian Brothers [2025] VSC 602 considered - Deed set aside.
LIMITATION OF ACTIONS - Historical sexual abuse - Settlement deed - Application to set aside settlement deed - Defendant does not oppose setting aside deed insofar as it relates to a claim for general damages and/or medical expenses, but opposes setting aside deed insofar as it relates to a claim for economic loss - Whether just and reasonable in all the circumstances to set aside deed in whole or in part - Consideration of all relevant circumstances - Limitation of Actions Act 1958 (Vic), ss 27QD and 27QE; Evidence Act 2008 (Vic), s 91 - DZY (a pseudonym) v Trustees of the Christian Brothers (2025) 282 CLR 495; Trustees of the Marist Brothers v Barclay [2025] VSCA 297; Pearce v Missionaries of the Sacred Heart [2022] VSC 697; Pearce v Waller Legal [2025] VSC 324; Warrick (a pseudonym) v Trustees of the Christian Brothers [2025] VSC 520; Mooney v Trustees of the Christian Brothers [2025] VSC 602 considered - Deed set aside.
STATUTORY INTERPRETATION - Application for the proceeding to be struck out - Proceeding commenced without complying with s 421 of the Workers Compensation and Injury Management Act 2023 (WA) ('Workers Compensation Act') - Workers Compensation Act ss 421(1), 422 - Whether s 422(1) exhaustively defines the circumstances in which a worker 'has a terminal disease' for the purpose of s 422(2) - Whether a report from a medical practitioner who does not specialise in respiratory medicine satisfies the requirements of s 422(1) - Whether a report obtained after the commencement of proceedings satisfies the requirements of s 422(1).
STATUTORY INTERPRETATION - Application for the proceeding to be struck out - Proceeding commenced without complying with s 421 of the Workers Compensation and Injury Management Act 2023 (WA) ('Workers Compensation Act') - Workers Compensation Act ss 421(1), 422 - Whether s 422(1) exhaustively defines the circumstances in which a worker 'has a terminal disease' for the purpose of s 422(2) - Whether a report from a medical practitioner who does not specialise in respiratory medicine satisfies the requirements of s 422(1) - Whether a report obtained after the commencement of proceedings satisfies the requirements of s 422(1).
COMMON LAW - Cross-vesting legislation - Historical sexual abuse - Application for proceeding to be transferred to the Supreme Court of South Australia - Interests of justice - Impact of transfer on plaintiff's psychiatric health - Valceski v Valceski (2007) 70 NSWLR 36 - Hughes v Whittens Group Pty Ltd [2017] NSWSC 329 - BHP Billiton Ltd v Schultz (2004) 221 CLR 400 - Ewins v BHP Billiton Ltd [2005] VSC 4 - Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), s 5(2)(b)(iii).
COMMON LAW - Cross-vesting legislation - Historical sexual abuse - Application for proceeding to be transferred to the Supreme Court of South Australia - Interests of justice - Impact of transfer on plaintiff's psychiatric health - Valceski v Valceski (2007) 70 NSWLR 36 - Hughes v Whittens Group Pty Ltd [2017] NSWSC 329 - BHP Billiton Ltd v Schultz (2004) 221 CLR 400 - Ewins v BHP Billiton Ltd [2005] VSC 4 - Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), s 5(2)(b)(iii).
LOAN - EVIDENCE - BURDEN OF PROOF - IMPLIED TERMS - Whether there was a loan agreement between the plaintiff and the defendants (or one or more of them) - Whether the true loan agreement was between the plaintiff's brother and the first defendant's brother - When the loan was to be repaid - Whether there was an implied term for time for repayment - Whether the loan was repayable on demand.
LOAN - EVIDENCE - BURDEN OF PROOF - IMPLIED TERMS - Whether there was a loan agreement between the plaintiff and the defendants (or one or more of them) - Whether the true loan agreement was between the plaintiff's brother and the first defendant's brother - When the loan was to be repaid - Whether there was an implied term for time for repayment - Whether the loan was repayable on demand.
INSURANCE CONTRACT - Insurance contract - Aviation insurance - Whether insurance limited to aircraft owned and/or operated by insured - Blimp - Correct construction of insurance contract.
INSURANCE CONTRACT - Insurance contract - Aviation insurance - Whether insurance limited to aircraft owned and/or operated by insured - Blimp - Correct construction of insurance contract.
CONTRACTS - GUARANTEES - Lease of property - Construction of terms and variations - Whether covenants (particularly those of guarantors) provided to prior landlord pass with the land to new registered proprietor - Whether guarantors discharged from obligations under covenants by reason of variations - Variations instigated by guarantors - Whether terms of settlement conditional - Whether loss of bargain damages can be claimed - Basis for calculating monies owed pursuant to lease and under guarantees.
CONTRACTS - GUARANTEES - Lease of property - Construction of terms and variations - Whether covenants (particularly those of guarantors) provided to prior landlord pass with the land to new registered proprietor - Whether guarantors discharged from obligations under covenants by reason of variations - Variations instigated by guarantors - Whether terms of settlement conditional - Whether loss of bargain damages can be claimed - Basis for calculating monies owed pursuant to lease and under guarantees.