SUPREME COURT OF VICTORIA RECENT JUDGMENTS BULLETIN ISSUE ...

SUPREME COURT OF VICTORIA

RECENT JUDGMENTS BULLETIN
ISSUE NO. 22/2015

Below is a list of Victorian Supreme Court unreported judgments received in the Library from
16-27 November 2015. Catchwords are included when provided on the cover sheet of the
unreported judgment. Enquires regarding unreported judgments can be forwarded to the
Supreme Court Library at: [email protected] or telephone (03) 9603 6282.

TABLE OF CONTENTS

COURT OF APPEAL................................................................................................1
COMMERCIAL & EQUITY DIVISION. COMMERCIAL COURT ....... ERROR!
BOOKMARK NOT DEFINED.
COMMERCIAL COURT.....................ERROR! BOOKMARK NOT DEFINED.
COMMON LAW DIVISION ...............ERROR! BOOKMARK NOT DEFINED.
COSTS COURT....................................ERROR! BOOKMARK NOT DEFINED.
CRIMINAL DIVISION ........................ERROR! BOOKMARK NOT DEFINED.

COURT OF APPEAL
ACCIDENT COMPENSATION - Appeal - Application for leave to appeal - Jury trial
- Transport accident - Damages - Pain and suffering damages - Whether jury's
assessment of pain and suffering damages manifestly inadequate - Causation -
Whether jury bound to find that accident was a cause of one of the injuries for which
claim was made - Jury not bound to accept applicant's case on causation - Damages
not manifestly inadequate - Application for leave to appeal refused.
Vella, Marcelle v Cardona, David
Beach JA, Kyrou JA, and Cavanough AJA
[2015] VSCA 306
17/11/2015

Supreme Court of Victoria – Recent Judgments Bulletin No. 22/2015 Page - 1 -
[Produced by Supreme Court Library [email protected]]

ADMINISTRATIVE LAW - Judicial review - Adjudication determination under
Building and Construction Industry Security of Payment Act 2002 - Reference date as
a jurisdictional fact - Whether adjudication determination reviewable for jurisdictional
error - Judicial review of matters not confined to straightforward calculation of time
or where determination is arbitrary, capricious or otherwise irrational - Chase Oyster
Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393 applied; Sugar
Australia Pty Ltd v Southern Ocean Pty Ltd [2013] VSC 535 applied - Adjudicator
fixed wrong reference date.
CONTRACT - Building contract - Adjudication determination under Building and
Construction Industry Security of Payment Act 2002 - Scope of works under the
contract - Pre-contractual negotiations - Source of the construction contract - Whether
payment claim served out of time - Adjudication determination invalid.
PRACTICE AND PROCEDURE - Application to adduce further evidence - Evidence
available and in applicant’s possession before trial - Unclear that adducing evidence
would produce different result - Refaat v Barry [2015] VSCA 218; Clark v Stingel
[2007] VSCA 292, considered.
Saville, Gregory Paul (trading as China Sourcing Service) v Hallmarc Construction
P/L (ACN 071 149 758)
Warren CJ, Tate JA, and Kaye JA
[2015] VSCA 318
27/11/2015

CRIMINAL LAW - Appeal - Conviction - Identification evidence - Intentionally
causing serious injury and making a threat to kill - Identification from photoboard -
Whether evidence visual identification evidence - Whether failure to comply with
s114 of the Evidence Act 2008 - Whether risk of displacement effect - Whether
identification evidence unreliable - Whether probative value of identification evidence
outweighed by risk of unfair prejudice - Evidence Act 2008 s114 and s137 considered
- Appeal allowed.
CRIMINAL LAW - Appeal - Conviction - Admissibility of audio and video record of
search - Voice identification evidence - Whether search conducted in contravention of
South Australian law - Whether audio record of search obtained unfairly or in breach
of law - Whether audio record of search admissible for purposes of voice
identification - Evidence Act 2008 s118; Summary Offences Act 1953 (SA); Criminal
Investigation (Extraterritorial Offences Act) 1984 (SA); Haddara v The Queen [2014]
VSCA 100 considered.
CRIMINAL LAW - Appeal - Conviction - Whether verdict unsafe and unsatisfactory.
Dickman, Glyn v The Queen
Whelan JA, Priest JA, and Croucher AJA
[2015] VSCA 311
23/11/2015

Supreme Court of Victoria – Recent Judgments Bulletin No. 22/2015 Page - 2 -
[Produced by Supreme Court Library [email protected]]

CRIMINAL LAW - Appeal - Conviction - Indecent act with child under 16 (4
charges) - Tendency evidence - Admission - Whether significant probative value -
Danger of unfair prejudice - Prejudice because of lapse of time - Whether judge
applied statutory test - Cross-examination of victim about hostility to accused -
Whether answers gave rise to unfair prejudice - Whether directions adequate -
Whether defence deprived of reasonable opportunity to cross-examine prosecution
witness - Application refused - Evidence Act 2008 s97, s101, s137.
Clark, Matthew (A Pseudonym) v The Queen
Maxwell P, Priest JA, and Kaye JA
[2015] VSCA 297
17/11/2015

CRIMINAL LAW - Appeal - Conviction - Sexual offending against daughter in
1970s - Fresh evidence - Whether complainant gave an inconsistent account of
offending post-verdict - Cross-examination of complainant - Whether defence counsel
prevented from relying on inconsistencies in complainant's accounts - Previous
representations - Whether 'fresh in the memory' - Behaviour of victims of sexual
offending - Police evidence concerning - Whether admissible - Delay in complaint -
Jury direction - Trial judge's comments concerning victims of sexual offending -
Whether judge's charge unbalanced - Leave to appeal against conviction granted -
Appeal dismissed - AC v The Queen (2014) 42 VR 278, R v MM [2007] EWCA Crim
1558 considered.
CRIMINAL LAW - Appeal - Sentence - Total effective sentence of 9 years'
imprisonment with non-parole period of 6 years - Applicant aged 77 years - Poor
health - Delay - Prospects of rehabilitation - Whether sentence manifestly excessive -
Appeal allowed - Total effective sentence of 7 years' imprisonment with non-parole
period of 4 years and 6 months substituted.
Hermanus, Martin (A Pseudonym) v The Queen
Osborn JA, Priest JA, and McLeish JA
[2015] VSCA 304
17/11/2015

CRIMINAL LAW - Appeal - Conviction - Sexual penetration of a child under 16 -
Indecent act with a child under 16 - Whether directions adequate - No evidence of
recent complaint - Credibility of complainant - Re trial - Counsel sought directions
given in previous trial - Whether application under s61(1)(b)(ii) - Failure to request
direction under s11 of Jury Directions Act 2013 - Kilby v The Queen (1973) 129 CLR
460; R v Taylor [No 2] (2008) 18 VR 613 considered; Worsnop v The Queen (2010)
28 VR 187 followed - Whether complainant's evidence inconsistent with witness's
evidence - Whether prosecutor's questions improper - Accused's habit of nudity -
Whether conviction unsafe and unsatisfactory - Application refused - Jury Directions
Act 2013 s11, s15 - Crimes Act 1958 s61(1)(b)(ii).
CRIMINAL LAW - Appeal - Sentence - Whether sentence and non-parole period
manifestly excessive - Sentenced to six years, non-parole period four years - Violation
of relationship between siblings - Application refused.
Horton, Felix (a pseudonym) v The Queen
Redlich JA, Kaye JA, and Beale AJA
[2015] VSCA 319
26/11/2015

Supreme Court of Victoria – Recent Judgments Bulletin No. 22/2015 Page - 3 -
[Produced by Supreme Court Library [email protected]]

CRIMINAL LAW - Appeal - Sentence - Aggravated burglary - Confrontational
aggravated burglary - Forced entry with intent to commit assault - Four years'
imprisonment - Expert report - Diagnosis of acquired brain injury - Depression and
anxiety - Whether cognitive and psychological factors contributed to offending -
Offender consumed bottle of vodka beforehand - Judge attributed offending to
intoxication - Whether bound to accept expert opinion - Whether bound to warn
counsel that opinion might not be accepted - Whether sentence manifestly excessive -
Appeal dismissed - Hogarth v The Queen (2012) 37 VR 658 applied.
CRIMINAL LAW - Evidence - Expert evidence - Procedural fairness - Psychologist's
report - Unchallenged opinion evidence - Whether judge obliged to accept expert
opinion - Opinion based on facts reported by offender - Whether independent proof of
facts required - Whether judge obliged to inform counsel that proof required - Failure
to give notice - No inherent risk of rejection of report - Breach of natural justice -
Breach immaterial - Humphries v The Queen [2010] VSCA 161 applied.
Ross, Adam Alexis v The Queen
Maxwell P and Beach JA
[2015] VSCA 302
16/11/2015

CRIMINAL LAW - Appeal - Sentence - Crown appeal - Baseline sentencing - Incest
- Median sentence - Median as statistical product of series of numbers - Parliament's
intention that future median sentence be 10 years' imprisonment - Statistical period
not specified - Absence of legislative mechanism for achievement of intended median
- Gap in legislation - Whether court can fill gap - Non-judicial function - Whether
necessary implication - Provisions incapable of practical operation - No sentencing
error - Appeal dismissed - Sentencing Act 1991 s5A.
STATUTORY INTERPRETATION - Legislative intention - Sentencing - Baseline
sentencing - Median sentence - Median as statistical product of series of numbers -
Parliament's intention that future median sentence be 10 years' imprisonment -
Statistical period not specified - Absence of legislative mechanism for achievement of
intended median - Gap in legislation - Whether court can fill gap - Non-judicial
function - Whether necessary implication - Function of explanatory note - Extrinsic
materials - Whether statements in second reading speech can fill gap in legislation -
Presumptions - Presumption against overturning common law doctrines - Provisions
incapable of practical operation - Sentencing Act 1991 s5A.
WORDS AND PHRASES - 'median', 'median sentence'.
Director of Public Prosecutions v Walters, Daniel (A Pseudonym)
Maxwell P, Redlich JA, Whelan JA, and Priest JA
[2015] VSCA 303
17/11/2015

Supreme Court of Victoria – Recent Judgments Bulletin No. 22/2015 Page - 4 -
[Produced by Supreme Court Library [email protected]]

CRIMINAL LAW - Appeal - Sentence - Manslaughter - Unlawful and dangerous act -
Aiding and abetting - Sentenced to 8y 6m, non-parole period 6y - Complicity - Pre-
planning - Victim lured to house and assaulted - Death by strangulation - Appellant
encouraged principal offender by presence - Participated in pre-planning and luring
victim to house - Whether judge mischaracterised role - Culpability - Acquiescence -
Whether appellant less blameworthy - Whether sentence manifestly excessive -
Appeal dismissed - R v Lam (2008) 185 A Crim R applied.
CRIMINAL LAW - Appeal - Sentence - Mitigating factors - Offer to plead guilty -
Discussions between counsel - Whether unconditional indication of intention to plead
guilty - Judge did not take into account - No error - Sentencing Act 1991 s5(2)(e).
Ramjutton, Kamna v The Queen
Maxwell P, Redlich JA, and Croucher AJA
[2015] VSCA 309
23/11/2015

CRIMINAL LAW - Appeal - Sentence - Rape - Sentence of 5 years' imprisonment -
Appellant aged 13 years at time of offending and 21 at time of sentence - Youth -
Totality - Whether sentence manifestly excessive - Appeal dismissed.
Galuak, Jal v The Queen
Whelan JA and Priest JA
[2015] VSCA 300
16/11/2015

CRIMINAL LAW - Appeal - Sentence - Robbery - Parity - Applicant sentenced to
substantially longer term of imprisonment than co-offender - Whether judge erred in
application of the parity principle - Distinguishing features between co-offender and
applicant - Applicant played more serious role in offending - Applicant did not
demonstrate immediate remorse - Applicant had more significant list of prior
convictions - Whether sentence manifestly excessive - Significant mitigating factors -
Applicant suffered from mental impairment - Applicant had experienced trauma -
Whether judge gave excessive weight to general and specific deterrence - Serious
offending - Application for leave to appeal granted - Appeal dismissed.
Osman, Mohamed v The Queen
Beach JA and Kaye JA
[2015] VSCA 308
18/11/2015

Supreme Court of Victoria – Recent Judgments Bulletin No. 22/2015 Page - 5 -
[Produced by Supreme Court Library [email protected]]

CRIMINAL LAW - Crown appeals against sentence - TB (in company with brother
GB) entered home of wife EB, from whom estranged, and gravely assaulted her and
her partner BK with jemmy bar, causing serious injuries - TB previously violent to
wife and only just released from prison for assaulting her and breaching intervention
order - Pleas of guilty to aggravated burglary and intentionally causing serious injury
to both victims - TB sentenced to total effective sentence of six years' imprisonment
with three-year non-parole period - GB also holding a jemmy bar when he entered
house with TB - At trial, GB convicted of aggravated burglary, intentionally causing
serious injury to BK and recklessly causing serious injury to EB - GB did not strike
any blows but convicted on basis of complicity in TB's acts - GB sentenced to total
effective sentence of three-and-a-half years' imprisonment with 12-month non-parole
period - Whether individual sentences, total effective sentences and non-parole
periods manifestly inadequate - Appeal concerning GB dismissed - Sentences lenient
but not manifestly inadequate - Appeal concerning TB allowed - All aspects of
sentence (except directions for cumulation) manifestly inadequate - TB re-sentenced
to total effective sentence of eight years' imprisonment with non-parole period of five
years - Consideration of parity with GB's (undisturbed) sentence and exercise of
residual discretion to decline to intervene on Crown appeal - Green v The Queen
(2011) 244 CLR 462.
Director of Public Prosecutions v Barnes, Trevor and Barnes, Glenn
Redlich JA, Kyrou JA, and Croucher AJA
[2015] VSCA 293
12/11/2015

CRIMINAL LAW - Culpable driving - Negligently causing serious injury - Causation
- Applicant's vehicle stopped in left lane of busy highway to make telephone calls -
Victim's vehicle blocked behind applicant's vehicle - Co-accused's vehicle collided
with rear of victim's vehicle - Co-accused convicted of dangerous driving causing
death and dangerous driving causing serious injury - Whether open to jury to be
satisfied beyond reasonable doubt that applicant's driving was a substantial and
operative cause of accident.
Dunkley-Price, Travis v The Queen
Redlich JA, Kaye JA, and Ginnane AJA
[2015] VSCA 310
23/11/2015

CRIMINAL LAW - Sentence - Admissibility of fresh evidence on appeal - Whether
psychotic episode after sentence revealed diagnosis of schizophrenia rather than drug-
induced psychosis at time of offending - Nguyen v The Queen [2006] VSCA 184
applied - Fresh evidence did not throw 'significant new light' on pre-existing analysis
or demonstrate material before sentencing judge did not reveal 'the true significance'
of applicant's psychiatric condition - Evidence not admissible - Different sentence
would not have been imposed - Application for leave to appeal refused.
Darmos, Jason v The Queen
Redlich JA and Whelan JA
[2015] VSCA 312
23/11/2015

Supreme Court of Victoria – Recent Judgments Bulletin No. 22/2015 Page - 6 -
[Produced by Supreme Court Library [email protected]]

CRIMINAL LAW - Sentence - Combined term of 2 years' imprisonment and
community correction order - No non-parole period set - Circumstances referred to in
s11(1)(b) Sentencing Act 1991 not considered - Specific error - Appeal allowed -
Appellant re-sentenced.
Baldwin, Adam v The Queen
Whelan JA and Priest JA
[2015] VSCA 299
18/11/2015

CRIMINAL LAW - Sentence - Crown appeal - Respondent sentenced to 3 years'
imprisonment for reckless conduct endangering life, 2 years and 6 months'
imprisonment with cumulation of 6 months for blackmail, and 6 months'
imprisonment with cumulation of 6 months for attempting to pervert the course of
justice - Total effective sentence of 4 years' imprisonment with a non-parole period of
2 years - Whether sentence for attempting to pervert the course of justice and total
effective sentence manifestly inadequate.
CRIMINAL LAW - Sentence - Crown appeal - Residual discretion not to intervene -
Factors relevant to exercise of discretion, including totality and parity principles and
fault on the part of the Crown - Green v The Queen (2011) 244 CLR 462, DPP v
Karazisis (2010) 31 VR 634 applied - Appeal allowed - Respondent resentenced to 4
years' imprisonment for attempting to pervert the course of justice producing new
total effective sentence of 5 years and 6 months' imprisonment with non-parole period
of 3 years and 6 months.
CRIMINAL LAW - Sentence - Crown appeal - Court's power to adjust a manifestly
inadequate individual sentence if the total effective sentence unaffected - DPP v
Hudson (2010) 30 VR 610 applied; Green v The Queen (2011) 244 CLR 462
considered.
CRIMINAL LAW - Sentence - Crown appeal - Totality principle and s 16(3B), (3C)
of the Sentencing Act 1991 - Current offences committed on parole - Sentence for
cancelled parole completed at time of sentence for current offences - Morgan v The
Queen (2013) 40 VR 32 applied, Koumis v The Queen [2013] VSCA 47 considered.
Director of Public Prosecutions v Oksuz, Serkan
Redlich JA, Kyrou JA, and Croucher JA
[2015] VSCA 316
25/11/2015

CRIMINAL LAW - Sentence - Multiple drug offences under Criminal Code (Cth) -
Total effective sentence of 7 years 6 months with non-parole period of 6 years
imposed on Appellant Hui - Non-parole period 80% of total effective sentence -
Whether manifestly excessive - Kumova v The Queen [2012] VSCA 212 applied -
Appeal allowed - New non-parole period fixed of 5 years 6 months for Appellant Hui.
CRIMINAL LAW - Sentence - Multiple drug offences under Criminal Code (Cth) -
Role of Appellant Lin in co-offending - Whether head sentences manifestly excessive
- Saxon v The Queen [2014] VSCA 296 applied - Sentencing judge's reasons read as a
whole do not mischaracterise appellant's role in offending - Appeal dismissed.
Hui, Chi Hang v The Queen; Lin, Tsan-Lung v The Queen
Whelan JA and Priest JA
[2015] VSCA 314
25/11/2015

Supreme Court of Victoria – Recent Judgments Bulletin No. 22/2015 Page - 7 -
[Produced by Supreme Court Library [email protected]]

CRIMINAL LAW - Sentence - Offence of cultivation of commercial quantity of
cannabis L - Whether error in assessing gravity of offending and appellant's
culpability - Applicant's disadvantaged background - Relevance of squandered
opportunity as refugee - Whether manifestly excessive - Statistics and comparable
cases considered - Application refused/Appeal dismissed.
Bui, Binh v The Queen
Redlich JA and Whelan JA
[2015] VSCA 313
25/11/2015

PRACTICE AND PROCEDURE - Application for security for costs - Weight to be
given to impecuniosity of respondent - Genuinely arguable question of law of
considerable public importance - Application refused
Faðcade Treatment Engineering P/L (In Liquidation) (ACN 147 328 443) v
Brookfield Multiplex Constructions P/L (ACN 107 007 527)
Tate JA and McLeish JA
[2015] VSCA 169
19/06/2015

PRACTICE AND PROCEDURE - Application to adduce further evidence - Further
evidence not shown to assist with constitutional issues sought to be raised on appeal -
Exceptional circumstances not shown - Application refused.
Faðcade Treatment Engineering P/L (In Liquidation) (ACN 147 328 443) v
Brookfield Multiplex Constructions P/L (ACN 107 007 527)
Tate JA and McLeish JA
2015] VSCA 170
19/06/2015

PRACTICE AND PROCEDURE - Costs - Gross costs order - Complex litigation -
Whether appropriate to make a gross costs order - Appropriate court to consider
question is Costs Court - Supreme Court (General Civil Procedure) Rules 2005,
r63.07(2)(d).
PRACTICE AND PROCEDURE - Application for leave to intervene by parties
against whom non-party costs order might be sought - Leave to intervene granted -
Application for a stay of the determination of costs questions, pending the
determination or resolution of non-party costs issue - Application for stay refused.
Wieland, David Charles v Texxcon P/L (ACN 120 272 880); Nominexx P/L (ACN
121 396 503) and Anor v Wieland, David Charles & Ors
Beach JA
[2015] VSCA 305
16/11/2015

Supreme Court of Victoria – Recent Judgments Bulletin No. 22/2015 Page - 8 -
[Produced by Supreme Court Library [email protected]]

PRACTICE AND PROCEDURE - Criminal Proceeding - Interlocutory Appeal -
Appeal against trial judge’s decision to set aside subpoenas - Application by witness
the subject of subpoena to join as respondent to appeal - Discussion of proper parties
to an interlocutory appeal under the Criminal Procedure Act 2009 - Not a proper party
to the appeal - Leave to intervene granted.
Watkins, Ted (a pseudonym) and Mann, Vincent (a pseudonym) v Commissioner of
the Australian Federal Police (Named as) First Respondent, Director of Public
Prosecutions (Vic) (Named as) Second Respondent
Osborn JA and Priest JA
[2015] VSCA 321
27/11/2015

COMMERCIAL & EQUITY DIVISION

BUILDING CONTRACTS - Building and Construction Industry Security of Payment
Act 2002 (Vic) (the "Act") - Whether a contractual provision in the relevant
construction contract that mandates attendance of the parties at mediation is a
"method of resolving disputes" for the purposes of s10A(3)(d)(ii) of the Act - Whether
adjudicator valued work in accordance with the Act - Valuation task of adjudicator
under the Act considered - Whether terms of construction contract void under s48 of
the Act for inconsistency with the Act.
ADMINISTRATIVE LAW - Judicial review - Determination of an adjudicator
appointed under the Building and Construction Industry Security of Payment Act
2002 (Vic) (the "Act") - Whether error of law amounting to jurisdictional error -
Robust approach to be taken to review of adjudicator's valuation - Standard of
adjudicator's reasons towards the lower end of the scale - Certiorari to quash the
decision allowed in part.
STATUTORY INTERPRETATION - Contemporary maxim "Laws must not
command the impossible".
SSC Plenty Road P/L (ACN 124 197 128) v Construction Engineering (Aust) P/L
(ACN 392 781 199) & Anor
Vickery J
[2015] VSC 631 (1st Revision: 17 November 2015)
13/11/2015

PRACTICE AND PROCEDURE - Where trustee seeks removal of litigation guardian
of infant plaintiffs - Whether removal of litigation guardian in the best interests of
infant plaintiffs - Slaveski v Victoria (2009) 25 VR 160 - In re Taylor's Application
(1972) 2 QB 369 - Supreme Court (General Civil Procedure) Rules 2005, r15.03(4).
Rockman, Zachary and Rockman, Rachel (who sue by their litigation guardian,
Rockman, Lynette Anne) v I.P.R. Nominees P/L (which is sued as the trustee of The
1965 Irvin Peter Rockman Trust), Rockman, Matthew Myer and Rockman, Edward
Jacob
McMillan J
[2015] VSC 623
13/11/2015

Supreme Court of Victoria – Recent Judgments Bulletin No. 22/2015 Page - 9 -
[Produced by Supreme Court Library [email protected]]

COMMERCIAL & EQUITY DIVISION. COMMERCIAL COURT

CONSUMER LAW - Misleading or deceptive conduct - False or misleading
representations - Advertisement and promotional material on website - Whether
representations made - Whether representations likely to mislead or deceive -
Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, s18,
s29(1) - Australian Consumer Law and Fair Trading Act 2012 (Vic) s12.
IDP Education Ltd & Anor v Lejburg P/L & Anor
Judd J
[2015] VSC 650
24/11/2015

CONTRACT - Guarantee - Whether director personally liable - Loan agreement
requires director's guarantee - No separate guarantee executed by director - Execution
clause in Loan Agreement includes director in his capacity as guarantor - Director
personally liable - Harris v Burrell and Family Pty Ltd [2010] SASCFC 12.
WM Financial Trading Systems P/L ACN 075 786 195 v Zamac Property Holdings
P/L ACN 125 774 870 & ORS
Sifris J
[2015] VSC 639
20/11/2015

COSTS - Where plaintiffs alleged fraud in their original statement of claim - Where
plaintiffs sought leave to amend statement of claim - Where plaintiffs sought multiple
amendments to statement of claim - Where agreement that plaintiffs pay costs for
directions hearing and application to amend - Whether costs ought be taxed on a
standard or indemnity basis - Whether costs should be taxed immediately or when
proceeding has ended - Supreme Court (General Civil Procedure) Rules 2005, r63.17,
r63.20 - Yara Australia Pty Ltd v Oswal (2013) 41 VR 302 - Colgate-Palmolive Co v
Cussons Pty Ltd (1993) 46 FCR 225.
Mandie, Edward Nicholas v Memart Nominees P/L ACN 005 024 617 (as trustee
for the David Mandie Family Trust) (No 2)
McMillan J
[2015] VSC 622
13/11/2015

Supreme Court of Victoria – Recent Judgments Bulletin No. 22/2015 Page - 10 -
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PRACTICE - Tender of hearsay evidence under Part 3.2 of the Evidence Act 2008 -
Whether evidence constituted a previous representation by a person with personal
knowledge of an asserted fact - Whether the personal knowledge was or might
reasonably be supposed to have been, based on something that the person saw, heard
or otherwise perceived within the meaning of s62 of the Act - Ruled hearsay evidence
admissible in part - Part 3.2 Evidence Act 2008.
PRACTICE - Whether discretion to refuse to admit hearsay evidence under s135 of
the Act enlivened - Consideration of whether evidence unfairly prejudicial to a party -
Consideration of probative value of evidence sought to be tendered - Ruled s135 not
enlivened - Evidence Act 2008 s135.
In the Matter of AWB LIMITED (ACN 081 890 459): Australian Securities and
Investments Commission (ASIC) v Flugge, Trevor James; Australian Securities and
Investments Commission (ASIC) v Geary, Peter Anthony (Ruling No 3)
Robson J
[2015] VSC 656
05/11/2015

COMMERCIAL COURT

CONTRACT - Restructuring of property holdings and suite of agreements -
Interpretation of commercial agreements - Electricity Generation Corp v Woodside
Energy Ltd (2014) 251 CLR 640.
LEASES AND TENANCIES - Concurrent leases - Nature and effect - Waterhouse v
Waugh [2003] NSWCA 139 - Kirsch v Auhl [1949] VLR 324.
Eureka Operations P/L (ACN 104 811 216) v Viva Energy Australia Ltd (ACN 004
610 459)
Croft J
[2015] VSC 648
27/11/2015

CORPORATIONS - Corporations Act 2001 (Cth) - Application by liquidator
pursuant to s1324 of the Corporations Act for delivery up of assets of the company -
Preliminary question as to ownership of assets - Turns on facts.
In the Matter of Nautical Finance Group P/L (In Liq) (ACN 007 164 285):
Abeyratne, Jeremy Robert (As Liquidator of Nautical Financial Group P/L (In
Liq)) (ACN 007 164 285)) and Nautical Financial Group P/L (In Liq) (ACN 007
164 285) v Guy, Robert John; Lotus Securities Ltd (ACN 121 418 317) and Nautical
Financial Group P/L (In Liq) (ACN 007 164 285) and Guy, Robert John
Randall AsJ
[2015] VSC 633
12/11/2015

Supreme Court of Victoria – Recent Judgments Bulletin No. 22/2015 Page - 11 -
[Produced by Supreme Court Library [email protected]]

CORPORATIONS - Section 459G of the Corporations Act 2001 (Cth) - Setting aside
statutory demand - Graywinter affidavit - Defect in affidavit accompanying statutory
demand - Genuine dispute.
In the Matter of Core Toughened P/L (ACN 129 348 670): Core Toughened P/L v
Lisec Australia P/L
Randall AsJ
[2015] VSC 534
01/10/2015

CORPORATIONS LAW - Standing - Whether someone whose name is not on the
register, but alleges he is a member, falls within the definition of member for the
purposes of the oppression provisions of the Corporations Act 2001 (Cth) in
circumstances where such membership is disputed.
CORPORATIONS LAW - Oppression proceedings generally not available or
desirable where membership disputed - Membership is a jurisdictional requirement.
PRACTICE AND PROCEDURE - Nature of relief - Whether proceeding should
continue in present form - Whether standing should be dealt with as a preliminary
issue.
In the Matter of Lifestyle Loans Vic P/L ACN 005 563 100: Rodda, Timothy John v
Lifestyle Loans Vic P/L ACN 005 563 100 and Sauro, Francesco
Sifris J
[2015] VSC 628
16/11/2015

PRACTICE AND PROCEDURE - Interlocutory application for various injunctions -
Requirement that respondents disclose information by way of affidavit - Claim of
common law privilege against self-incrimination - Evidence Act 2008, s128 and
s128A
In the Matter of Carpenter International P/L (in liq) (ACN 165 690 657)
Donnelly, Matthew James, Hodgson, David Mark, and Hewitt, Andrew Steward
Reed in their capacities as Joint and Several Administrators of Carpenter
International P/L (in liquidation) (ACN 165 690 657) and Carpenter Intenational
P/L (in liquidation) (ACN 165 690 657)
Digby J
[2015] VSC 667
23/11/2015

Supreme Court of Victoria – Recent Judgments Bulletin No. 22/2015 Page - 12 -
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TRUSTS AND TRUSTEES - Judicial advice - Trustee's right to indemnification from
trust assets - Three plaintiffs and four defendant beneficiaries of trust - Claim against
trustee for knowing receipt of trust property contingent upon Court upholding
allegations of breach of fiduciary duties against three defendants - Claims of breach of
fiduciary duty actively defended - Trustee having to borrow funds from director to
fund its defence - Not in interests of beneficiaries of trust for trustee to access trust
funds to fund defence. Supreme Court (General Civil Procedure) Rules 2005 O 54;
Corporations Act 2001 s181, s182 and s197; Transfer of Land Act 1958 s42.
In the Matter of an application by Olrey Pty Ltd (ACN 140 494 319) for judicial
advice and directions under rule 54.02 of the Supreme Court (General Civil
Procedure Rules) 2005; Olrey P/L (ACN 140 494 319) (as trustee of the FRG
Investments Trust)
McDonald J
[2015] VSC 643
17/11/2015

COMMON LAW DIVISION

ADMINISTRATIVE LAW - Judicial review of a decision by the Children's Court of
Victoria - Commonwealth terrorism offences alleged against a minor - Wednesbury
unreasonableness - Li unreasonableness - Review of decision to uplift matter to
Supreme Court - Exceptional circumstances - Children, Youth and Families Act 2005
(Vic) - Application dismissed.
K v Children's Court of Victoria and Federal Agent Court, Matthew
T Forrest J
[2015] VSC 645
18/11/2015

COSTS - Following unsuccessful application for orders in the nature of certiorari and
mandamus under Order 56 of the Supreme Court (General Civil Procedure) Rules
2005 (see Agar v McCabe (No 3) [2015] VSC 542) - Plaintiff charged with one count
of exceeding the speed limit - Plaintiff failed in previous judicial review of decision to
refuse an application for release of subpoenaed documents, but succeeded in relation
to an associated costs order (see Agar v The Magistrates' Court of Victoria [2014]
VSC 309) - Costs application remitted and heard by different Magistrate but costs
awarded same as originally ordered - Whether costs should be proportionate to the
seriousness of the alleged offending - Relevance of the fact that application for
judicial review is a civil proceeding - Application of principles of consistency and
proportionality to a civil proceeding.
Agar, Carl Paul v Leading Senior Constable McCabe, Kathleen (21804) of Traffic
Camera Office and the Magistrates' Court of Victoria (No 4)
Derhan AsJ
[2015] VSC 654
20/11/2015

Supreme Court of Victoria – Recent Judgments Bulletin No. 22/2015 Page - 13 -
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DEFAMATION - Publication - Defendant a proprietor of an internet search engine -
Whether defendant intended to publish alleged defamatory material - Whether search
engine proprietor should have immunity from liability.
PRACTICE AND PROCEDURE - Application to set aside service of writ out of
jurisdiction - Applicable test - Whether plaintiff has real prospect of success at trial -
Application dismissed.
Civil Procedure Act 2010 s63; Defamation Act 2005 Div 2
Supreme Court (General Civil Procedure) Rules 2005 r8.09.
Trkulja, Milorad v Google Inc
McDonald J
[2015] VSC 635
17/11/2015

DISCOVERY - Pre action discovery of documents - Purpose of rule - Limits to
entitlement - Active involvement of legal practitioners in request for documents -
Volunteering of documents by prospective defendants - Disavowal of possession of
other documents - Whether affidavit required from litigant to verify proper searches
and absence of particular documents as sought - Common documents sought against
two parties - Whether necessary to require discovery of same documents - Basis for
differentiation - Remaining categories too wide - Limited order made - Supreme
Court (General Civil Procedure Rules) 2015, r32.05.
Hunter, Hal v Australian Football League and Essendon Football Club
Mukhtar AsJ
[2015] VSC 666
26/11/2015

LEGAL PRACTITIONERS - Appeal - Orders of Victorian Civil and Administrative
Tribunal suspending practising certificate and imposing penalty conditions - Whether
leave to appeal should be granted - Whether error of law - Finding that practitioner
had knowingly made statutory declaration containing false statements - Whether open
on the evidence - Application of principle that findings must be supported by 'some'
evidence and be 'reasonably' open - Professional misconduct at common law -
Whether extends to conduct of practitioner in that capacity but outside the course of
legal work - Whether charge of knowingly making a statutory declaration with false
contents was a charge of criminal perjury - Whether VCAT had jurisdiction to
determine that charge - Whether dishonesty is an essential element thereof or
knowledge of falsity is sufficient - Whether VCAT's reasons for decision were
adequate - Whether every matter in issue had to be addressed - Whether procedural
fairness breached - Whether penalty disproportionate to findings and contrary to
parity principle - 'Professional misconduct' - Victorian Civil and Administrative Act
1998 (Vic) s148(1), Legal Profession Act 2004 (Vic) s4.4.3(1), s4.4.16, s4.4.17.
Pham, Quan v Legal Services Commissioner
Bell J
[2015] VSC 671
27/11/2015

Supreme Court of Victoria – Recent Judgments Bulletin No. 22/2015 Page - 14 -
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LOCAL GOVERNMENT - Meaning of 'public drain' - Principles of construction -
Alienation of private property - Vesting of public drains in municipal councils -
Management and control of drain - Local Government Act 1989 (Vic) sub-ss198(1)-
(2).
WATER LAW - Public drainage - Private drains - Ownership of main drain - Free
flow principle - Effect of privatisation of State Electricity Commission of Victoria -
Mining property - Water Act 1989 (Vic) s16, s20.
PRIVATISATION - Allocation statements - Vesting of land and property - Effect of
Electricity Industry Act 1993 (Vic).
MINING - Mining licences - Licence conditions - Work Plan - Mine rehabilitation -
Batter stability - Mineral Resources (Sustainable Development) Act 1990 (Vic).
EQUITABLE RELIEF - Declarations - Injunctions - Flooding - Damage to property -
Risk to persons - Relief would be refused.
Hazelwood Power Partnership v La Trobe City Council
Garde J
[2015] VSC 638
19/11/2015

PRACTICE AND PROCEDURE - Appeal to judge of trial division from associate
judge - Application for leave to extend time to commence Order 56 proceeding
dismissed by order of associate judge - Proceeding would have sought judicial review
of appellant's conviction by a magistrate under s16(1) of the Building Act 1993 -
Appellant earlier refused leave by the County Court to appeal out of time pursuant to
s263 of the Criminal Procedure Act 2009, which was refused - Whether proceeding
futile - Whether appellant precluded from judicial review by election to pursue county
court appeal - Appellant failed to establish special circumstances before the associate
judge - No error by the associate judge demonstrated - Whether order worked an
injustice and appealable without specific error shown - Appeal dismissed - Order 56
and r77.06 of the Supreme Court (General Civil Procedure) Rules 2005 considered.
Wilson, Russell v Building Commission of Victoria
John Dixon J
[2015] VSC 629 (Revised: 23 November 2015)
16/11/2015

PRACTICE AND PROCEDURE - Application to adjourn interlocutory application -
No sufficient ground for adjournment demonstrated - Civil Procedure Act 2010 s5, s6,
s7.
PRACTICE AND PROCEDURE - Application for leave to file and serve a further
amended statement of claim - P leading manifestly defective both in substance and
form - No point of principle - Leave refused.
PRACTICE AND PROCEDURE - Application for summary judgement - Want of
prosecution of claims by plaintiff - Plaintiff unable to formulate a proper pleading -
Civil Procedure Act 2010 s63, Supreme Court (Civil Procedure Rules) 2005 r23.02.
Sheehan, Marshall v Young, Michael Brett & Ors (No 2)
John Dixon J
[2015] VSC 651
15/10/2015

Supreme Court of Victoria – Recent Judgments Bulletin No. 22/2015 Page - 15 -
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PRACTICE AND PROCEDURE - Injunction - Interlocutory injunction - Application
to restrain publication of material about the plaintiff pending the hearing and
determination of plaintiff's proceeding - Serious question to be tried - Balance of
convenience.
DEFAMATION - Interlocutory injunction - Principles for grant - Defendants
proposing to justify - Freedom of speech.
CONFIDENTIAL INFORMATION - Whether information has the necessary quality
of confidence - Whether information was imparted in circumstances importing an
obligation of confidence - Identification of confidential information - Whether status
quo should be preserved pending trial.
COURTS - Orders - Enforcement of orders - Whether defendant should be enjoined
from breaching order previously made - Order made under Family Violence
Protection Act 2008 - Family Violence Protection Act 2008.
Duthie, Kimberley Louise v Nixon, Ricky Lee and Toot Toot Productions P/L
Beach JA
[2015] VSC 672
27/11/2015

PRACTICE AND PROCEEDURE - Pleadings - Proposed amendment to statement of
claim - Expansion of claims alleged - Objections - Principles relevant to application to
amend - Test for determining whether amendment futile - Some evidence capable of
supporting the allegations in the proposed amended pleading - Amendments allowed -
Supreme Court (General Civil Procedure) Rules 2005 r36.01.
Williams, Steven Elliot v Ausnet Electricity P/L, Hume City Council, Active Tree
Services (Ruling No 1)
T Forrest J
[2015] VSC 659
18/11/2015

PRACTICE AND PROCEDURE - Stay of civil proceedings pending determination of
criminal proceedings - Two proceedings are brought by children of the deceased
under Part IV of the Administration and Probate Act 1958 - One child accusing the
other of sexual assault (incest) - Criminal prosecution commenced against the alleged
assailant - Risk of early cross-examination of the alleged victim in these civil
proceedings giving rise to alleged prejudice - Whether Civil proceedings should be
stayed pending committal proceedings - Consideration of applicable principles - Stay
refused with liberty to apply.
In the Matter of the Administration and Probate Act 1958 and In the Matter of the
Estate of the late Meeuwissen, Peter Raymond (deceased)
Meeuwissen, Robert George (Plaintiff in proceeding 00707) and Louise Jane
(Plaintiff in proceeding 04319) v Meeuwissen, Louise Jane and Fittall, Audrey
(who are sued in their capacity as the executrices of the Will of the deceased,
Meeuwissen, Peter Raymond) (Defendants in proceeding 00707), Fittall Audrey
(who is sued in her capacity as the executrix of the Will of the deceased,
Meeuwissen, Peter Raymond) (Sole Defendant in proceeding 04391)
Derham AsJ
[2015] VSC 669
27/11/2015

Supreme Court of Victoria – Recent Judgments Bulletin No. 22/2015 Page - 16 -
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PRACTICE AND PROCEDURE - Where executors sought to propound informal
will, alternatively, a formal will - Where informal will contested by residuary
beneficiary under formal will - Where the parties executed deed purporting to
distribute estate prior to trial - Power of administrators under a limited grant of
administration to enter into deed of settlement prior to determination of which
testamentary document should be admitted to probate - Trustee Act 1958, s19(1)(f) -
Dowling v St Vincent de Paul Society Victoria Inc [2003] VSC 454.
Robinson, James William (in his capacity as executor of the will and estate of
Andrews, Bruce Desmond, deceased) and Raleigh, Simon John (in his capacity as
executor of the will and estate of Andrews, Bruce Desmond, deceased) v Jones,
Jennifer Lee and Victorian Animal Aid Trust (No 3)
McMillan J
[2015] VSC 508
20/11/2015

Serious Sex Offenders (Detention and Supervision) Act 2009 - Application by
Secretary for continuation of a supervision order - Relevant conditions - Supervision
order not revoked.
In the Matter of the Serious Sex Offenders (Detention and Supervision) Act 2009
and In the Matter of an application under s65 of the Act for Review of a
Supervision Order and Secretary to the Department of Justice and Regulation (No
2): Applicant v Fletcher, Robin Angus
Priest JA
[2015] VSC 664
24/11/2015

TRUSTS - Discretionary Trusts - Construction of Trust Deeds - Lost trust deeds -
Deeds of Confirmation - Effect of Deeds - Whether vesting and transfer of real estate
valid - Third party joint guardians - Whether consent of each third party guardian
required - Whether guardian in office.
In the Matter of the Will and Estate of Moszkowicz, Jacob, deceased: In the Matter
of the Moszkowicz Family Trust No 2 and the Moszkowicz Family Trust No 3: In
the Matter of an an application pursuant to Rule 54.02 of the Supreme Court
(General Civil Procedure) Rules 2005 for the determination of questions arising in
the administration of the said estate and the said trusts: Orlanski, Henry Joseph
(who sues as the Executor of the Will and Estate of Moszkowicz, Jacob, deceased)
and others (according to the attached schedule) v Spiegel, Dina & Ors (according to
the attached schedule)
Ginnane J
[2015] VSC 662
25/11/2015
Criminal Division

CRIMINAL LAW - Bail - Applicant in show cause position - Bail refused.
In the Matter of the Bail Act 1977 ; In the Matter of an Application for bail by
Bolton, Patrick
Coghlan JA
[2015] VSC 626
28/10/2015

Supreme Court of Victoria – Recent Judgments Bulletin No. 22/2015 Page - 17 -
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CRIMINAL PROCEDURE - Interlocutory appeal - Application for certification
following interlocutory ruling - Whether interlocutory decision is of sufficient
importance to warrant expedited review - Criminal Procedure Act 2009 (Vic)
s295(3)(a).
R v Karabegovic, Adnan (Ruling No 4)
John Dixon J
[2015] VSC 661
23/11/2015

PRACTICE COURT

PROPERTY LAW - Application to remove caveat - Whether or not an abuse of
processes - Whether or not substantiation of caveat a component of another
proceeding - No proprietary interest claimed in other proceedings - No prima facie
case to justify maintenance of caveat - Balance of convenience in favour of the
plaintiff - Damages an adequate remedy - Caveat removed - Transfer of Land Act
1958 s89, s89A, s90.
Yuksels Nominees P/L (ACN 006 261 810) v Nguyen, Joanne Thu and Registrar of
Titles
T Forrest J
[2015] VSC 663
23/11/2015

PROPERTY LAW - Contract of sale - Special condition - Deposit - Sale of land prior
to approval of plan - Certification of plan of subdivision - Property Law Act 1958
s49(1) - Subdivision Act 1988 - Sale of Land Act 1962 s9AA.
Bisognin, Gino Andrew; Bisognin, Leah Joan v Hera Project P/L (ACN 163 685
041)
Cameron J
[2015] VSC 647
25/08/2015

Supreme Court of Victoria – Recent Judgments Bulletin No. 22/2015 Page - 18 -
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