CONSTITUTIONAL LAW (Cth) - Implied freedom of communication about government or political matters - Where certain provisions of Pt 12 of Electoral Act 2002 (Vic) imposed general cap on political donations from a single donor within election period with exception for gifts between registered political party and nominated entity of registered political party ("nominated entity exception") - Where s 222F of Electoral Act permitted registered political party to appoint nominated entity on two alternative sets of eligibility criteria - Where second set of eligibility criteria only available if first appointment of entity as nominated entity made before 1 July 2020 ("time limitation in s 222F(3)") - Where only major parties appointed entities as nominated entities before 1 July 2020 - Where nominated entities of major parties well-capitalised prior to operation of general cap - Where assets of nominated entities of major parties significantly exceed what could lawfully be raised by individual candidate or uncapitalised nominated entity subject to general cap - Where defendant conceded time limitation in s 222F(3) invalid - Whether Pt 12 in operation with nominated entity exception invalid - Whether aspects of Pt 12 severable.
CONSTITUTIONAL LAW (Cth) - Implied freedom of communication about government or political matters - Where certain provisions of Pt 12 of Electoral Act 2002 (Vic) imposed general cap on political donations from a single donor within election period with exception for gifts between registered political party and nominated entity of registered political party ("nominated entity exception") - Where s 222F of Electoral Act permitted registered political party to appoint nominated entity on two alternative sets of eligibility criteria - Where second set of eligibility criteria only available if first appointment of entity as nominated entity made before 1 July 2020 ("time limitation in s 222F(3)") - Where only major parties appointed entities as nominated entities before 1 July 2020 - Where nominated entities of major parties well-capitalised prior to operation of general cap - Where assets of nominated entities of major parties significantly exceed what could lawfully be raised by individual candidate or uncapitalised nominated entity subject to general cap - Where defendant conceded time limitation in s 222F(3) invalid - Whether Pt 12 in operation with nominated entity exception invalid - Whether aspects of Pt 12 severable.
WORDS AND PHRASES - "candidate", "constitutionally prescribed system of representative and responsible government", "differential burden", "effective burden", "effective constraint", "election", "eligibility criteria", "general cap", "gift", "illegitimate purpose", "implied freedom of political communication", "impugned law", "impugned provisions", "indirect burden", "inextricable connection", "justified", "law", "legacy parties", "legal rule", "legislative purpose", "legitimate purpose", "level of generality", "major parties", "nominated entity", "nominated entity exception", "political donation", "political expenditure", "proper objective", "proportionality", "provision", "reasonably appropriate and adapted", "registered political party", "regulated person or entity", "risk of corruption and undue influence", "severance".
Electoral Act 2002 (Vic), ss 3, 45(2)(c), 50(1)(a)(ii), 69A, Pt 4, Pt 12.
Electoral Legislation Amendment Act 2018 (Vic), s 1(a)(ii).
Interpretation of Legislation Act 1984 (Vic), ss 4(1)(a), 6(1), 38.
Corporations Act 2001 (Cth), s 50AA.
COMPENSATION - Employees of licensed corporation - Injury - Whether injury sustained in course of employment - Whether s 44(1) of Safety, Rehabilitation and Compensation Act 1988 (Cth) prevents applicant from maintaining proceeding for damages - Where injury claimed to have been suffered after applicant ceased performing work duties - Whether primary judge correct to summarily dismiss applicant's proceeding - Proposed appeal having no real prospect of success - Application for leave to appeal refused.
COMPENSATION - Employees of licensed corporation - Injury - Whether injury sustained in course of employment - Whether s 44(1) of Safety, Rehabilitation and Compensation Act 1988 (Cth) prevents applicant from maintaining proceeding for damages - Where injury claimed to have been suffered after applicant ceased performing work duties - Whether primary judge correct to summarily dismiss applicant's proceeding - Proposed appeal having no real prospect of success - Application for leave to appeal refused.
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A(1), 44(1).
Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22; Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281; Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626; Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; Mills v Australian Postal Commission (1994) 32 ALD 489; Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; Comcare v PVYW (2013) 250 CLR 246; Waters v Commonwealth (2013) 274 FLR 338, referred to.
CONSTITUTIONAL LAW - Implied freedom of political communication - Executive power to take 'immediate action' against registered health practitioner under Health Practitioner Regulation National Law s 156(1)(a) and (e) - Condition on registration of medical practitioner that limited political communication on the topic of vaccinations for COVID-19 - Constitutional analysis complete at the level of the statute if a law is valid across the range of potential outcomes - Combined effect of statutory constraints on s 156(1)(a) ensured that any burden resulting from exercise of power would be reasonably appropriate and adapted to the law's legitimate purpose - Section 156(1)(a) compatible with the implied freedom of political communication across the range of potential outcomes - Unnecessary to consider validity of s 156(1)(e) - No administrative law challenge to the decision to take immediate action - Leave to appeal granted - Appeal dismissed.
CONSTITUTIONAL LAW - Implied freedom of political communication - Executive power to take 'immediate action' against registered health practitioner under Health Practitioner Regulation National Law s 156(1)(a) and (e) - Condition on registration of medical practitioner that limited political communication on the topic of vaccinations for COVID-19 - Constitutional analysis complete at the level of the statute if a law is valid across the range of potential outcomes - Combined effect of statutory constraints on s 156(1)(a) ensured that any burden resulting from exercise of power would be reasonably appropriate and adapted to the law's legitimate purpose - Section 156(1)(a) compatible with the implied freedom of political communication across the range of potential outcomes - Unnecessary to consider validity of s 156(1)(e) - No administrative law challenge to the decision to take immediate action - Leave to appeal granted - Appeal dismissed.
PRACTICE AND PROCEDURE - Costs of appeal - Costs ordinarily follow the event - No reason to depart from ordinary position - Leave to appeal refused.
Health Practitioner Regulation National Law Act 2009 (Qld) sch ss 3, 3A, 113, 155, 156, 157.
Health Practitioner Regulation National Law (Victoria) Act 2009, ss 1, 4.
Acts Interpretation Act 1901 (Cth) s 15A.
Commonwealth v AJL20 (2021) 273 CLR 43; Comcare v Banerji (2019) 267 CLR 373; Palmer v Western Australia (2021) 272 CLR 505; Wotton v Queensland (2012) 246 CLR; Ravbar v Commonwealth (2025) 99 ALJR 1000; Cotterill v Romanes (2023) 413 ALR 360, discussed and followed.
Prior v Mole (2017) 261 CLR 265; Hogan v Australian Crime Commission (2010) 240 CLR 651; Vella v Commissioner of Police (NSW) (2019) 269 CLR 219; Mineralogy Pty Ltd v Western Australia (2021) 274 CLR 219, discussed.
Northern Territory v Sangare (2019) 265 CLR 164; Valerie Peers v Medical Board of Australia [2026] VSCA 36, followed.
CRIMINAL LAW - Appeal - Sentence - Intentionally cause serious injury - Make threat to kill - Assault emergency worker on duty - Guilty plea following sentence indication of 10 years' imprisonment - Applicant sentenced to 10 years' imprisonment with non-parole period of 7 years and 3 months - Additional material in mitigation tendered on plea - Whether judge failed to give proper weight to additional material - Whether sentences manifestly excessive - Sentence indication not to be approached as starting point to be reduced in light of additional material - Community protection important in light of very serious nature of offending - Severe impact on victim - Guarded prospects of rehabilitation - Manifest excess not made out - Neither proposed ground has any prospect of success - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Intentionally cause serious injury - Make threat to kill - Assault emergency worker on duty - Guilty plea following sentence indication of 10 years' imprisonment - Applicant sentenced to 10 years' imprisonment with non-parole period of 7 years and 3 months - Additional material in mitigation tendered on plea - Whether judge failed to give proper weight to additional material - Whether sentences manifestly excessive - Sentence indication not to be approached as starting point to be reduced in light of additional material - Community protection important in light of very serious nature of offending - Severe impact on victim - Guarded prospects of rehabilitation - Manifest excess not made out - Neither proposed ground has any prospect of success - Application for leave to appeal refused.
Karam v The King [2024] VSCA 164; Greenaway (a pseudonym) v The King [2025] VSCA 280; Clarkson v The Queen (2011) 32 VR 361; Young v The Queen [2016] VSCA 149, applied.
DPP v Blake (a pseudonym) [2020] VCC 262; Ranger v The Queen [2018] VSCA 271; DPP v Gilbert [2019] VCC 330, considered.
CRIMINAL LAW - Appeal - Sentence - Multiple offences including carjacking, causing injury intentionally, possessing drug of dependence and unlicenced driving - Total effective sentence of 2 years and 9 months - Non-parole period of 22 months - Whether sentence manifestly excessive - Applicant's remand time was in management unit - No evidence of reason for applicant being in management unit - Some weight attached to period of confinement in sentencing synthesis - Proposed ground does not allege specific error - Extensive and relevant criminal history - Two serious offences - Aggressive and thuggish conduct - Moderate sentences in the circumstances - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Multiple offences including carjacking, causing injury intentionally, possessing drug of dependence and unlicenced driving - Total effective sentence of 2 years and 9 months - Non-parole period of 22 months - Whether sentence manifestly excessive - Applicant's remand time was in management unit - No evidence of reason for applicant being in management unit - Some weight attached to period of confinement in sentencing synthesis - Proposed ground does not allege specific error - Extensive and relevant criminal history - Two serious offences - Aggressive and thuggish conduct - Moderate sentences in the circumstances - Leave to appeal refused.
Clarkson v The Queen (2011) 32 VR 361; Young v The Queen [2016] VSCA 149, applied.
R v Males [2007] VSCA 302; R v Stevens [2009] VSCA 81; Yat v The King [2024] VSCA 93, considered.
CRIMINAL LAW - Sentence - Application for leave to appeal against sentence - Parity - Where sentencing judge made findings more favourable in relation to applicant than in relation to co-accused - Whether unreasonable lack of disparity between sentences imposed on applicant and co-accused - Parity complaints not reasonably arguable - Application for leave to appeal refused.
CRIMINAL LAW - Sentence - Application for leave to appeal against sentence - Parity - Where sentencing judge made findings more favourable in relation to applicant than in relation to co-accused - Whether unreasonable lack of disparity between sentences imposed on applicant and co-accused - Parity complaints not reasonably arguable - Application for leave to appeal refused.
ADMINISTRATIVE LAW - Application for leave to appeal on a question of law from order of Victorian Civil and Administrative Tribunal - Scope of Tribunal's review jurisdiction - Tribunal on review must address same question original decision-maker was required to consider - Tribunal's jurisdiction does not extend to reviewing prior conduct which framed the decision under review - No error in Tribunal's conclusions regarding scope of review jurisdiction - No error in Tribunal's conclusions regarding penalty - Proposed grounds of appeal based on fundamental misconception about Tribunal's function and review jurisdiction - No real prospect of success on any proposed ground - No substantial injustice - Application for leave to appeal dismissed.
ADMINISTRATIVE LAW - Application for leave to appeal on a question of law from order of Victorian Civil and Administrative Tribunal - Scope of Tribunal's review jurisdiction - Tribunal on review must address same question original decision-maker was required to consider - Tribunal's jurisdiction does not extend to reviewing prior conduct which framed the decision under review - No error in Tribunal's conclusions regarding scope of review jurisdiction - No error in Tribunal's conclusions regarding penalty - Proposed grounds of appeal based on fundamental misconception about Tribunal's function and review jurisdiction - No real prospect of success on any proposed ground - No substantial injustice - Application for leave to appeal dismissed.
Building Act 1993 Version 102 as at 1 July 2014, ss 178, 179, 180, 182A, 183; Victorian Civil and Administrative Tribunal Act 1998, ss 48, 49, 51, 57, 148.
Shi v Migration Agents Registration Authority (2008) 235 CLR 286; Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250, considered.
PRACTICE AND PROCEDURE - Interlocutory appeal - Allegations of negligence and vicarious liability against Diocese for historical sexual abuse by parish priest - Application for leave to issue subpoena to applicant's treating psychotherapist under Evidence (Miscellaneous Provisions) Act 1958 s 32C - Psychotherapist's records contain confidential communications - Whether judge erred in granting leave - Whether judge erred in finding the records contained evidence of substantial probative value to a fact in issue - Leave to appeal granted - Appeal allowed - Interlocutory decision set aside.
PRACTICE AND PROCEDURE - Interlocutory appeal - Allegations of negligence and vicarious liability against Diocese for historical sexual abuse by parish priest - Application for leave to issue subpoena to applicant's treating psychotherapist under Evidence (Miscellaneous Provisions) Act 1958 s 32C - Psychotherapist's records contain confidential communications - Whether judge erred in granting leave - Whether judge erred in finding the records contained evidence of substantial probative value to a fact in issue - Leave to appeal granted - Appeal allowed - Interlocutory decision set aside.
Evidence (Miscellaneous Provisions) Act 1958, ss 32AB, 32C, 32CF, 32D.
KR (a pseudonym) v BR (a pseudonym) [2018] VSCA 159; Baker (a pseudonym) v The Queen [2015] VSCA 323; JK v The King [2025] NSWCCA 44; Lanzer v Lombardo [2025] VSCA 229.
ACCIDENT COMPENSATION - Transport accident - Serious injury - Application for leave to commence common law proceeding - Spinal injury - Whether judge erred in concluding applicant's evidence as to spinal injury and impairment consequences was wholly unreliable - Whether judge erred in failing to consider the whole of the evidence - Whether judge erred in failing to consider evidence of applicant's psychiatric/psychological response to her injury - Leave to appeal refused.
ACCIDENT COMPENSATION - Transport accident - Serious injury - Application for leave to commence common law proceeding - Spinal injury - Whether judge erred in concluding applicant's evidence as to spinal injury and impairment consequences was wholly unreliable - Whether judge erred in failing to consider the whole of the evidence - Whether judge erred in failing to consider evidence of applicant's psychiatric/psychological response to her injury - Leave to appeal refused.
Transport Accident Act 1986, s 93.
Lee v Lee (2019) 266 CLR 129; Fox v Percy (2003) 214 CLR 118; Connelly v Transport Accident Commission (2024) 73 VR 257; Mobilio v Balliotis [1998] 3 VR 833; Veljanovska v Verduci (2014) 42 VR 222; Rowe v Transport Accident Commission (2017) 83 MVR 195; Lovrenovich v Transport Accident Commission (2025) 110 MVR 70; Richards v Wylie (2000) 1 VR 79.
CORPORATIONS - External administration - Liquidation of ten companies forming corporate group - Where most companies in group are corporate trustees holding real property - Where shallow pool of creditors - Where liquidators already appointed as receivers and managers of trust assets - Omnibus application by liquidators and receivers for various directions and orders to enable finalisation of liquidations and receiverships - Corporations Act 2001 (Cth) ('Corporations Act') - Sch 2, Insolvency Practice Schedule (Corporations)) ('IPS'), s 90-15 - Supreme Court (General Civil Procedure) Rules 2025 (Vic) ('Rules'), r 39.09(1) - Inherent equitable power of Court - Whether liquidators and receivers justified and acting reasonably in not taking further steps to recover loans recorded as assets in books of companies - Where absence of documentation - Whether loans statute-barred - Whether liquidators justified in admitting to proof inter-company loan debts - Direction that liquidators and receivers justified and acting reasonably in apportioning costs of omnibus application across corporate group.
CORPORATIONS - External administration - Liquidation of ten companies forming corporate group - Where most companies in group are corporate trustees holding real property - Where shallow pool of creditors - Where liquidators already appointed as receivers and managers of trust assets - Omnibus application by liquidators and receivers for various directions and orders to enable finalisation of liquidations and receiverships - Corporations Act 2001 (Cth) ('Corporations Act') - Sch 2, Insolvency Practice Schedule (Corporations)) ('IPS'), s 90-15 - Supreme Court (General Civil Procedure) Rules 2025 (Vic) ('Rules'), r 39.09(1) - Inherent equitable power of Court - Whether liquidators and receivers justified and acting reasonably in not taking further steps to recover loans recorded as assets in books of companies - Where absence of documentation - Whether loans statute-barred - Whether liquidators justified in admitting to proof inter-company loan debts - Direction that liquidators and receivers justified and acting reasonably in apportioning costs of omnibus application across corporate group.
CORPORATIONS - Corporations Act, s 488(2) - Application for special leave to distribute surplus funds to shareholders - Rule 39.09(1) of Rules - Inherent power of Court - Corresponding orders sought for distribution of funds to beneficiaries of trust - Where all assets of companies and trusts have been realised - Where all creditors of companies in which surplus expected have been ascertained and will be paid - Where payment of surplus contingent on treatment of inter-company loans - Where detailed methodology proposed for distribution of surplus - Application granted - Whether liquidators and receivers justified and acting reasonably in making interim distributions of surplus while tasks in liquidations and receiverships remain outstanding - Dispensation from publication requirements under r 7.9(2) of Supreme Court (Corporations) Rules 2023 (Vic) ('Corporations Rules') and annexure and notice requirements in regs 5.6.71(1) and 5.6.71(2) of Corporations Regulations 2001 (Cth).
CORPORATIONS - External administration - Application by liquidators for approval of remuneration during periods when acting as liquidators of companies and as receivers and managers of trust assets - Rule 39.06 of Rules - Inherent equitable power of Court - Consideration of factors set out under s 425(8) of Corporations Act and s 60-12 of IPS - Part of remuneration claim for one company made against fund held in liquidation of separate company for work caring for, preserving and realising property - Re Universal Distributing Co Ltd (in liq) (1933) 48 CLR 171 applied - Remuneration claim for past work approved with slight discount - Prospective remuneration claim - Discussion of relevant principles - Prospective remuneration claim approved for capped amount - Dispensation from notice requirements in r 9.2 of Corporations Rules.
CORPORATIONS - Winding up - Insolvency - Statutory demand - Application to set aside - Corporations Act 2001 (Cth), s 459G - Where default judgment obtained against company - Defendant alleges deed of settlement entered into for release of judgment debt executed under duress, undue influence or unconscionable conduct - Not satisfied claims made out - No purpose served by application in circumstances where company in liquidation - Application dismissed.
CORPORATIONS - Winding up - Insolvency - Statutory demand - Application to set aside - Corporations Act 2001 (Cth), s 459G - Where default judgment obtained against company - Defendant alleges deed of settlement entered into for release of judgment debt executed under duress, undue influence or unconscionable conduct - Not satisfied claims made out - No purpose served by application in circumstances where company in liquidation - Application dismissed.
CORPORATIONS - Winding up - Insolvency - Application to stay liquidation and terminate winding up - Corporations Act 2001 (Cth), s 482 - Defendants' claim disputed and subject to deed of settlement - Consideration of defendants' standing as creditor - Sections 445D(2), 462, 482(1A) - Not satisfied standing established - Where settlement sum paid in full - Not satisfied deed liable to be set aside - Application dismissed.
CORPORATIONS - Application by supporting creditor to be substituted as plaintiff - Application for winding up in insolvency - Whether genuine dispute about debt - Whether genuine offsetting claim - Corporations Act 2001 (Cth), s 465B - Tokich Holdings v Shearton Constructions (2004) 185 FLR 130 - Re C2C Investments Pty Ltd [2012] NSWSC 1443 - In2Ply Pty Ltd v Amerind Pty Ltd (in liq) (recs and mgrs apptd) [2014] VSC 603 - Exercise of discretion - Application for substitution refused.
CORPORATIONS - Application by supporting creditor to be substituted as plaintiff - Application for winding up in insolvency - Whether genuine dispute about debt - Whether genuine offsetting claim - Corporations Act 2001 (Cth), s 465B - Tokich Holdings v Shearton Constructions (2004) 185 FLR 130 - Re C2C Investments Pty Ltd [2012] NSWSC 1443 - In2Ply Pty Ltd v Amerind Pty Ltd (in liq) (recs and mgrs apptd) [2014] VSC 603 - Exercise of discretion - Application for substitution refused.
PRACTICE AND PROCEDURE - Court to consider arguments dispositive of application - Civil Procedure Act 2010 (Vic), ss 19, 23, 25 - Late filing of material - Application to cross-examine - Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd [2007] VSCA 121, applied - Application for cross-examination refused.
CORPORATIONS - Application for reinstatement of deregistered company's registration and for appointment of liquidators - Standing - Whether reinstatement just - Residual discretion applied - Corporations Act 2001 (Cth), ss 601AH(2), 473A(1)(a) - Liquidator appointed - Appropriate to make orders reinstating registration.
CORPORATIONS - Application for reinstatement of deregistered company's registration and for appointment of liquidators - Standing - Whether reinstatement just - Residual discretion applied - Corporations Act 2001 (Cth), ss 601AH(2), 473A(1)(a) - Liquidator appointed - Appropriate to make orders reinstating registration.
CORPORATIONS - Winding up - Statutory demand - Application to set aside on ground of offsetting claim - Corporations Act 2001 (Cth), ss 459G, 459H - Demand seeks payment comprising GST on invoices issued to company - Whether offsetting claim genuine - Whether to vary demand pursuant to s 459H(4) - Demand varied in respect of legal costs and liquidated damages - Not satisfied claim otherwise established.
CORPORATIONS - Winding up - Statutory demand - Application to set aside on ground of offsetting claim - Corporations Act 2001 (Cth), ss 459G, 459H - Demand seeks payment comprising GST on invoices issued to company - Whether offsetting claim genuine - Whether to vary demand pursuant to s 459H(4) - Demand varied in respect of legal costs and liquidated damages - Not satisfied claim otherwise established.
EQUITY - Equitable remedies - Equity of redemption - Where mortgagor proposes to pay judgment sum but not further amounts claimed by the mortgagee - Whether mortgagor entitled to order that the mortgagee execute a discharge of mortgage - Application refused.
EQUITY - Equitable remedies - Equity of redemption - Where mortgagor proposes to pay judgment sum but not further amounts claimed by the mortgagee - Whether mortgagor entitled to order that the mortgagee execute a discharge of mortgage - Application refused.
PRACTICE AND PROCEDURE - Application for stay of execution of judgment for possession and judgment debt pending refinance - Where refinance conditional upon discharge of mortgage - Application refused - Supreme Court (General Civil Procedure) Rules 2025, r 66.16.
EQUITY - Equitable remedies - Interlocutory injunction - Debanking - No serious question to be tried regarding alleged breach of contract - Balance of convenience does not favour granting interlocutory injunction - Merciful Group Incorporated v Norfina Limited t/as Suncorp Bank [2025] NSWSC 841, applied - Human Appeal International Australia v Beyond Bank Australia Ltd (No 2) [2023] NSWSC 1161, considered - In the matter of Cryptai Pty Ltd (No 2) [2025] VSC 217, applied.
EQUITY - Equitable remedies - Interlocutory injunction - Debanking - No serious question to be tried regarding alleged breach of contract - Balance of convenience does not favour granting interlocutory injunction - Merciful Group Incorporated v Norfina Limited t/as Suncorp Bank [2025] NSWSC 841, applied - Human Appeal International Australia v Beyond Bank Australia Ltd (No 2) [2023] NSWSC 1161, considered - In the matter of Cryptai Pty Ltd (No 2) [2025] VSC 217, applied.
BANKING AND FINANCE - CONTRACT - Banker and customer relationship - Where the written terms and conditions (conditions) permit the defendant bank to close the customer's account without notice to comply with the bank's regulatory and compliance obligations or to manage associated risk - Where the conditions require the bank to act fairly and reasonably towards the customer and to act fairly and reasonably in accordance with its legitimate business interests in exercising its rights and discretions under the conditions - Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).
PRACTICE AND PROCEDURE - Application for leave to amend pleadings under r 36.01(1) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Civil Procedure Act 2010 (Vic), s 63 - Mandie v Memart Nominees Pty Ltd [2016] VSCA 4 - Commonwealth v Verwayen (1990) 170 CLR 394 - Fabfloor (Vic) Pty Ltd & Ors v BNY Trust Company of Australia Limited & Ors [2016] VSC 99 - Zonia Holdings Pty Ltd v Commonwealth Bank of Australia Ltd [2025] FCAFC 63 - Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580 - Viterra Malt Pty Ltd v Cargill Australia Ltd (2023) 74 VR 1 - Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 - Leave to amend pleadings in the present form is refused, but the plaintiffs will have leave to file a further pleading.
PRACTICE AND PROCEDURE - Application for leave to amend pleadings under r 36.01(1) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Civil Procedure Act 2010 (Vic), s 63 - Mandie v Memart Nominees Pty Ltd [2016] VSCA 4 - Commonwealth v Verwayen (1990) 170 CLR 394 - Fabfloor (Vic) Pty Ltd & Ors v BNY Trust Company of Australia Limited & Ors [2016] VSC 99 - Zonia Holdings Pty Ltd v Commonwealth Bank of Australia Ltd [2025] FCAFC 63 - Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580 - Viterra Malt Pty Ltd v Cargill Australia Ltd (2023) 74 VR 1 - Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 - Leave to amend pleadings in the present form is refused, but the plaintiffs will have leave to file a further pleading.
PRACTICE AND PROCEDURE - Standing - Bankruptcy Act 1962 (Cth) ss 58, 116 -Bankruptcy Act 1962 (Cth) s 116(2)(a) not applicable as former bankrupt claimant did not hold real property on trust for another - Most of the former bankrupt claimant's claims were essentially referable to alleged damage to property and financial rights - Most claims were not claims to recover damages or compensation for personal injury or wrong - Bankruptcy Act 1962 (Cth) s 116(2)(g) not applicable - Chose in action vested in the claimant's trustee in bankruptcy - No automatic revesting of chose in action in the claimant after discharge from bankruptcy - No assignment of chose in action or consent from the trustee in bankruptcy - Claimant held to lack standing to pursue most claims.
PRACTICE AND PROCEDURE - Standing - Bankruptcy Act 1962 (Cth) ss 58, 116 -Bankruptcy Act 1962 (Cth) s 116(2)(a) not applicable as former bankrupt claimant did not hold real property on trust for another - Most of the former bankrupt claimant's claims were essentially referable to alleged damage to property and financial rights - Most claims were not claims to recover damages or compensation for personal injury or wrong - Bankruptcy Act 1962 (Cth) s 116(2)(g) not applicable - Chose in action vested in the claimant's trustee in bankruptcy - No automatic revesting of chose in action in the claimant after discharge from bankruptcy - No assignment of chose in action or consent from the trustee in bankruptcy - Claimant held to lack standing to pursue most claims.
PRACTICE AND PROCEDURE - Standing - Privity of contract - Where claimant seeks to enforce a deed to which they are not party - Where claimant seeks damages for alleged breach of a deed to which they are not party - Claimant held to lack standing.
PRACTICE AND PROCEDURE - Standing - Where a third party claimant alleges mortgagee breached its duties to mortgagee - Claimant held to lack standing.
TRUSTS - Where ex-wife alleged to hold matrimonial home on resulting trust or constructive trust for the benefit of ex-husband - Where ex-husband alleged to have made all mortgage repayments- Insufficient evidence of intention to negative presumption of advancement - Insufficient evidence of common intention alleged - No trust arose under s 79 of the Family Law Act 1975 (Cth) where no orders were yet made under s 79.
CONTRACT - Settlement deed - Release clause - Principles of construction - Claimant held to have released respondent from claims.
PRACTICE AND PROCEDURE - Pleadings - Strike out application - Stay application - Parallel proceedings - Whether District Court of New South Wales a 'court of competent jurisdiction' - Whether abuse of process to prosecute both proceedings - Exercise of discretion - Prima facie position of abuse of process displaced on the facts - Mozambique rule, considered - Indication provided by plaintiff as to transfer of proceedings - Jurisdiction of Courts (Cross- Vesting) Act 1987 (NSW) - Application dismissed.
PRACTICE AND PROCEDURE - Pleadings - Strike out application - Stay application - Parallel proceedings - Whether District Court of New South Wales a 'court of competent jurisdiction' - Whether abuse of process to prosecute both proceedings - Exercise of discretion - Prima facie position of abuse of process displaced on the facts - Mozambique rule, considered - Indication provided by plaintiff as to transfer of proceedings - Jurisdiction of Courts (Cross- Vesting) Act 1987 (NSW) - Application dismissed.
INTERLOCUTORY INJUNCTION - Performance guarantee - Bank guarantee - Asserted breach of contract - Risk allocation device - Serious question to be tried - Whether claim to recourse is not seriously arguable - Whether breach of subsequent deed is also a breach of contract - Balance of convenience - Preservation of status quo - Irreparable harm - Adequacy of damages - Strength of prima facie case - ABC v O'Neill (2006) 227 CLR 57 - Bradto Pty Ltd v State of Victoria (2006) 15 VR 6 - Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 - FMT Aircraft Gate Support Systems v Sydney Ports Corporation [2010] NSWSC 1108.
INTERLOCUTORY INJUNCTION - Performance guarantee - Bank guarantee - Asserted breach of contract - Risk allocation device - Serious question to be tried - Whether claim to recourse is not seriously arguable - Whether breach of subsequent deed is also a breach of contract - Balance of convenience - Preservation of status quo - Irreparable harm - Adequacy of damages - Strength of prima facie case - ABC v O'Neill (2006) 227 CLR 57 - Bradto Pty Ltd v State of Victoria (2006) 15 VR 6 - Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 - FMT Aircraft Gate Support Systems v Sydney Ports Corporation [2010] NSWSC 1108.
COSTS - Whether indemnity costs should be ordered when an abuse of process has been found - Whether costs should be assessed as a gross sum or taxed - Whether costs should be taxable immediately - Costs ordered on an indemnity basis, taxable immediately - Supreme Court Act 1986 (Vic) s 24(1) - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 63.20.1 - Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151 applied - Wilson v Bauer Media Pty Ltd (Costs) [2018] VSC 161 applied - Setka v Abbott (No 2) [2013] VSCA 376 applied.
COSTS - Whether indemnity costs should be ordered when an abuse of process has been found - Whether costs should be assessed as a gross sum or taxed - Whether costs should be taxable immediately - Costs ordered on an indemnity basis, taxable immediately - Supreme Court Act 1986 (Vic) s 24(1) - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 63.20.1 - Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151 applied - Wilson v Bauer Media Pty Ltd (Costs) [2018] VSC 161 applied - Setka v Abbott (No 2) [2013] VSCA 376 applied.
NEGLIGENCE - Adult plaintiff fell while jumping boundary fence between oval and nets at cricket training and suffered serious injuries - Where no pedestrian gate installed in fence adjacent to nets when nets installed but pedestrian gates present at other locations - Where Cricket Club raised need for gate with Council but not explicitly as safety concern - Whether Council negligent by failing to install gate in boundary fence adjacent to nets - Whether Club negligent by not sufficiently raising need for gate or by not directing plaintiff not to jump fence - Council and Club both occupiers of premises - Where Council knew or ought to have known that people would climb or jump fence adjacent to nets if gate not installed - Council acting reasonably would have installed new gate when installed nets - Club did not fail to act reasonably in raising need for gate or by failing to direct plaintiff not to jump boundary fence - Whether plaintiff voluntarily assumed risk of injury - Plaintiff did not freely and voluntarily accept risk of injury - Council liable to pay damages to Plaintiff - Where quantum agreed - Whether plaintiff contributorily negligent - Plaintiff contributorily negligent by running at and attempting vault over fence - Damages reduced by 20% - Smith v Baker & Sons [1891] AC 325 - Letang v Ottawa Electric Railway Company [1926] AC 725 - Nagle v Rottnest Island Authority (1993) 177 CLR 423 - Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 - Swain v Waverley Municipal Council (2005) 220 CLR 517 - Vairy v Wyong Shire Council (2005) 223 CLR 422 - Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 - Wrongs Act 1958 (Vic) ss 14B, 26, 48, 51, 53, 54.
NEGLIGENCE - Adult plaintiff fell while jumping boundary fence between oval and nets at cricket training and suffered serious injuries - Where no pedestrian gate installed in fence adjacent to nets when nets installed but pedestrian gates present at other locations - Where Cricket Club raised need for gate with Council but not explicitly as safety concern - Whether Council negligent by failing to install gate in boundary fence adjacent to nets - Whether Club negligent by not sufficiently raising need for gate or by not directing plaintiff not to jump fence - Council and Club both occupiers of premises - Where Council knew or ought to have known that people would climb or jump fence adjacent to nets if gate not installed - Council acting reasonably would have installed new gate when installed nets - Club did not fail to act reasonably in raising need for gate or by failing to direct plaintiff not to jump boundary fence - Whether plaintiff voluntarily assumed risk of injury - Plaintiff did not freely and voluntarily accept risk of injury - Council liable to pay damages to Plaintiff - Where quantum agreed - Whether plaintiff contributorily negligent - Plaintiff contributorily negligent by running at and attempting vault over fence - Damages reduced by 20% - Smith v Baker & Sons [1891] AC 325 - Letang v Ottawa Electric Railway Company [1926] AC 725 - Nagle v Rottnest Island Authority (1993) 177 CLR 423 - Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 - Swain v Waverley Municipal Council (2005) 220 CLR 517 - Vairy v Wyong Shire Council (2005) 223 CLR 422 - Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 - Wrongs Act 1958 (Vic) ss 14B, 26, 48, 51, 53, 54.
COSTS - Proceeding dismissed consequent on late application to amend defence to raise an issue that the proceeding was invalidly commenced - Costs where Workcover Authority previously admitted plaintiff entitled to bring proceeding - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 37 - Wadley v Ron Finemore Bulk Haulage Pty Ltd (Ruling) [2013] VSC 102 - Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5 - Northern Territory of Australia v Sangare [2019] HCA 25.
COSTS - Proceeding dismissed consequent on late application to amend defence to raise an issue that the proceeding was invalidly commenced - Costs where Workcover Authority previously admitted plaintiff entitled to bring proceeding - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 37 - Wadley v Ron Finemore Bulk Haulage Pty Ltd (Ruling) [2013] VSC 102 - Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5 - Northern Territory of Australia v Sangare [2019] HCA 25.
TESTATORS FAMILY MAINTENANCE - Application by two elderly adult sons for provision from mother's estate - Alleged failure by deceased to make adequate provision for plaintiffs' proper maintenance and support - Where plaintiffs worked on family farm without payment of wages for many years - Where one plaintiff received no provision under the Will and the other received land - Where deceased made promises to plaintiffs in return for not challenging their father's Will - Where deceased's Will provides explanation for exclusion and limitation of provision - Moral duty owed by deceased to provide for both plaintiffs - Lack of evidence of circumstances of need of one plaintiff at time of deceased's death - Where deceased breached moral duty to one plaintiff but not other - Pecuniary legacy to be paid to successful plaintiff - Blair v Blair (2004) 10 VR 69 - Grey v Harrison [1997] 2 VR 359 - Collicoat v McMillan [1999] 3 VR 803 - Pontifical Society for Propagation of Faith v Scales (1962) 107 CLR 9 - Davison v Kempson [2018] VSCA 51 - Vukic v Grbin [2006] NSWSC 41 - Jones v Smith (2016) 15 ASTLR 402 - Administration and Probate Act 1958 (Vic) s 91.
TESTATORS FAMILY MAINTENANCE - Application by two elderly adult sons for provision from mother's estate - Alleged failure by deceased to make adequate provision for plaintiffs' proper maintenance and support - Where plaintiffs worked on family farm without payment of wages for many years - Where one plaintiff received no provision under the Will and the other received land - Where deceased made promises to plaintiffs in return for not challenging their father's Will - Where deceased's Will provides explanation for exclusion and limitation of provision - Moral duty owed by deceased to provide for both plaintiffs - Lack of evidence of circumstances of need of one plaintiff at time of deceased's death - Where deceased breached moral duty to one plaintiff but not other - Pecuniary legacy to be paid to successful plaintiff - Blair v Blair (2004) 10 VR 69 - Grey v Harrison [1997] 2 VR 359 - Collicoat v McMillan [1999] 3 VR 803 - Pontifical Society for Propagation of Faith v Scales (1962) 107 CLR 9 - Davison v Kempson [2018] VSCA 51 - Vukic v Grbin [2006] NSWSC 41 - Jones v Smith (2016) 15 ASTLR 402 - Administration and Probate Act 1958 (Vic) s 91.
PRACTICE AND PROCEDURE - Proceedings - Protracted history of litigation and related proceedings - Where intervening event of bankruptcy caused stay of proceedings - Where outcome of proceedings dependent on determination of related proceedings - Bankruptcy Act 1966 (Cth).
INTERLOCUTORY APPLICATION
INTERLOCUTORY APPLICATION
PRACTICE AND PROCEDURE - Disclosure - Plaintiff seeking targeted disclosure of documents held by defendants - Civil Procedure Act 2010 (Vic) s 26 - Insufficient identification of decision(s) the subject of judicial review proceeding - Difficulty in determining documents critical to resolution of issues in dispute - Where defendants have undertaken to disclose limited available footage to plaintiff - Not satisfied that disclosure to the extent sought by plaintiff necessary at this stage of proceeding - No disclosure ordered.
PRACTICE AND PROCEDURE - Disclosure - Plaintiff seeking targeted disclosure of documents held by defendants - Civil Procedure Act 2010 (Vic) s 26 - Insufficient identification of decision(s) the subject of judicial review proceeding - Difficulty in determining documents critical to resolution of issues in dispute - Where defendants have undertaken to disclose limited available footage to plaintiff - Not satisfied that disclosure to the extent sought by plaintiff necessary at this stage of proceeding - No disclosure ordered.
PRACTICE AND PROCEDURE - Application to amend defence to withdraw admission that defendant was employer alternatively to file third party notice - Where plaintiff injured on property in New South Wales - Where defendant based in Victoria - Where defendant accepted claim for compensation and paid compensation under Victorian legislation - Where plaintiff obtained leave to commence proceedings for damages in accordance with Victorian legislation - Where defendant admitted it was employer of plaintiff in New South Wales in common law proceedings - Where parties had proceeded on basis that employment connected with Victoria and thus Victorian law applied - Where related company of defendant prosecuted in New South Wales and admitted employing plaintiff - Where defendant's solicitor in possession of documents relating to prosecution since October 2024 and March 2025 - Application to withdraw admission made on eve of trial - Where allowing amendment would occasion substantial delay and potential prejudice - Application to withdraw admission refused - Application to file third party notice granted - Collie v Merlaw Nominees Pty Ltd & Anor (2001) 37 ACSR 361 - Gregorich v Khouri [2020] VSC 5 - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 36.01.
PRACTICE AND PROCEDURE - Application to amend defence to withdraw admission that defendant was employer alternatively to file third party notice - Where plaintiff injured on property in New South Wales - Where defendant based in Victoria - Where defendant accepted claim for compensation and paid compensation under Victorian legislation - Where plaintiff obtained leave to commence proceedings for damages in accordance with Victorian legislation - Where defendant admitted it was employer of plaintiff in New South Wales in common law proceedings - Where parties had proceeded on basis that employment connected with Victoria and thus Victorian law applied - Where related company of defendant prosecuted in New South Wales and admitted employing plaintiff - Where defendant's solicitor in possession of documents relating to prosecution since October 2024 and March 2025 - Application to withdraw admission made on eve of trial - Where allowing amendment would occasion substantial delay and potential prejudice - Application to withdraw admission refused - Application to file third party notice granted - Collie v Merlaw Nominees Pty Ltd & Anor (2001) 37 ACSR 361 - Gregorich v Khouri [2020] VSC 5 - Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 36.01.
PRACTICE AND PROCEDURE - Summary dismissal application - Application to summarily determine extension of time application and for declarations - Extension of time for leave to appeal decision four years out of time - Victorian Civil and Administrative Tribunal Act 1998, s 148(5) - Exercise of discretion - Referral orders made.
PRACTICE AND PROCEDURE - Summary dismissal application - Application to summarily determine extension of time application and for declarations - Extension of time for leave to appeal decision four years out of time - Victorian Civil and Administrative Tribunal Act 1998, s 148(5) - Exercise of discretion - Referral orders made.
PRACTICE AND PROCEDURE - Referral application - Application for matter to be heard and determined by Court of Appeal - Supreme Court Act 1986 (Vic), s 17B(2) - Where related matter pending determination by Court of Appeal - Interests of justice to direct that extension of time application be referred - Application allowed.
ORDERS - Preliminary questions determined - Construction issue and abuse of process - Consequential order made.
ORDERS - Preliminary questions determined - Construction issue and abuse of process - Consequential order made.
COSTS - Costs in respect of hearing of preliminary questions - Earlier order in respect of costs - Discrete issues - Whether special circumstances - Supreme Court (General Civil Procedure) Rules 2025 (Vic), r 63.20; Macedon Ranges Shire Council v Thompson [2009] VSCA 209; Chen v Chan (No 2) [2009] VSCA 233 considered - Order for costs made on a standard basis.
CRIMINAL LAW - Bail - Applicant charged with trafficking in a commercial quantity of a drug of dependence - Schedule 1 offence - Requirement to show exceptional circumstances - Criminal history but no history of offending while on bail - Unacceptable risk alleged but not established - Substantial surety available - Prosecution case not strong - Exceptional circumstances established by a combination of factors - Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E & Sch 1.
CRIMINAL LAW - Bail - Applicant charged with trafficking in a commercial quantity of a drug of dependence - Schedule 1 offence - Requirement to show exceptional circumstances - Criminal history but no history of offending while on bail - Unacceptable risk alleged but not established - Substantial surety available - Prosecution case not strong - Exceptional circumstances established by a combination of factors - Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E & Sch 1.
CRIMINAL LAW - Application for bail - Schedule 1 offence - Requirement to show exceptional circumstances - Nature and seriousness of alleged offending - Strength of prosecution case - Significant delay - Personal circumstances - Availability of addiction counselling - Availability of employment - Substantial bail guarantee - Exceptional circumstances established - Whether applicant an unacceptable risk - Risk not shown to be unacceptable if bail granted on strict conditions - Bail granted - Bail Act 1977 (Vic), ss 1B , 3AAA, 4, 4AA, 4A, 4D, 4E, 5AAA, sch 2, item 6(a).
CRIMINAL LAW - Application for bail - Schedule 1 offence - Requirement to show exceptional circumstances - Nature and seriousness of alleged offending - Strength of prosecution case - Significant delay - Personal circumstances - Availability of addiction counselling - Availability of employment - Substantial bail guarantee - Exceptional circumstances established - Whether applicant an unacceptable risk - Risk not shown to be unacceptable if bail granted on strict conditions - Bail granted - Bail Act 1977 (Vic), ss 1B , 3AAA, 4, 4AA, 4A, 4D, 4E, 5AAA, sch 2, item 6(a).
CRIMINAL LAW - Bail - Applicant charged with affray, possess drug of dependence and possess controlled weapon - Applicant is Aboriginal - Whether compelling reasons exists justifying the grant of bail - Whether unacceptable risk - Compelling reason established - Unacceptable risk ameliorated by conditions - Bail granted - Bail Act 1977 (Vic), ss 3, 3AAA, 3A, 4, 4AA(2), 4C, 4E.
CRIMINAL LAW - Bail - Applicant charged with affray, possess drug of dependence and possess controlled weapon - Applicant is Aboriginal - Whether compelling reasons exists justifying the grant of bail - Whether unacceptable risk - Compelling reason established - Unacceptable risk ameliorated by conditions - Bail granted - Bail Act 1977 (Vic), ss 3, 3AAA, 3A, 4, 4AA(2), 4C, 4E.
APPLICATION FOR ADJOURNMENT - SELF-REPRESENTED LITIGANT - Retrial on single charge of manslaughter - Application made to obtain legal advice - Application made on the basis of medical grounds - Applicant refused lawyers engaged prior - Applicant made prior representation to the Court of intention to represent himself - Applicant provided no evidence as to medical condition - Application denied.
APPLICATION FOR ADJOURNMENT - SELF-REPRESENTED LITIGANT - Retrial on single charge of manslaughter - Application made to obtain legal advice - Application made on the basis of medical grounds - Applicant refused lawyers engaged prior - Applicant made prior representation to the Court of intention to represent himself - Applicant provided no evidence as to medical condition - Application denied.
CRIMINAL LAW - Sentence - Manslaughter by unlawful and dangerous act - Headlock during wrestle - Guilty verdict - Gravity below mid-range - Acquired Brain Injury - Extensive criminal history - Guarded prospects of rehabilitation - Sentence of eight years and six months' imprisonment with non-parole period of five years and six months.
CRIMINAL LAW - Sentence - Manslaughter by unlawful and dangerous act - Headlock during wrestle - Guilty verdict - Gravity below mid-range - Acquired Brain Injury - Extensive criminal history - Guarded prospects of rehabilitation - Sentence of eight years and six months' imprisonment with non-parole period of five years and six months.
CRIMINAL LAW - Murder - Special hearing - Verdict of not guilty by reason of mental impairment - Accused declared liable for supervision - Accused placed on custodial supervision order - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 20, 21, 24, 39, 40, 41, 47.
CRIMINAL LAW - Murder - Special hearing - Verdict of not guilty by reason of mental impairment - Accused declared liable for supervision - Accused placed on custodial supervision order - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 20, 21, 24, 39, 40, 41, 47.
CRIMINAL LAW - Murder - Consent mental impairment hearing - Diagnosis of schizophrenia - Verdict of not guilty by reason of metal impairment - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 20 & 21.
CRIMINAL LAW - Murder - Consent mental impairment hearing - Diagnosis of schizophrenia - Verdict of not guilty by reason of metal impairment - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 20 & 21.
SUMMARY JUDGMENT - Mortgages - Recovery of possession of property - Default under home loan - Failure to remedy default - Enforcement of guarantee - Whether loan was properly terminated - Whether event of default actually occurred - Treatment of irregular documents not constituting evidence - Self-represented litigants.
SUMMARY JUDGMENT - Mortgages - Recovery of possession of property - Default under home loan - Failure to remedy default - Enforcement of guarantee - Whether loan was properly terminated - Whether event of default actually occurred - Treatment of irregular documents not constituting evidence - Self-represented litigants.