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Bulletin no KB Supreme Court of Victoria

VIEWS: 30 PAGES: 14

									                                SUPREME COURT OF VICTORIA

                               RECENT JUDGMENTS BULLETIN
                                     ISSUE NO. 17/2012


Below is a list of Victorian Supreme Court unreported judgments received in the Library
since 27 August 2012. Catchwords are included when provided on the cover sheet of the
unreported judgment. Hypertext links to AustLII are inserted at the time of producing of this
page. However, there may be a two week delay before the unreported judgment is actually
loaded onto AustLII.

Enquires regarding unreported judgments can be forwarded to the Supreme Court Library at:
sclib@supremecourt.vic.gov.au or telephone (03) 9603 6282.



                                         TABLE OF CONTENTS

  Court of Appeal..........................................................................................................1
  Commercial & Equity Division .................................................................................6
  Commercial & Equity Division. Commercial Court .................................................8
  Common Law Division..............................................................................................9
  Criminal Division.....................................................................................................13




COURT OF APPEAL
ACCIDENT COMPENSATION - Appeal - Consent orders proposed allowing appeal
and remitting matter for re-hearing - Whether proposed orders appropriate - Consent
orders made - Newton v Geelong Ethnic Communities Council Inc [2011] VSCA 59
applied
Hennes, Suzan v Hobsons Bay City Council
Harper JA, Beach AJA, and Davies AJA
[2012] VSCA 215
07/09/2012

CONTRACT - Personal guarantee and indemnity by director for debts and monetary
liabilities of company - Whether guarantee and indemnity was obtained under
illegitimate pressure amounting to economic duress - Crescendo Management Pty Ltd
v Westpac Banking Corporation (1988) 19 NSWLR 40 - Unconscionable conduct -
Whether exercise of contractual rights was in contravention of implied obligation of
good faith - Whether pressure analogous to knowing assistance in a breach of a
fiduciary duty - Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 -
Meaning of 'debts and monetary liabilities which are or may become payable' -
Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 - Whether price payable
calculated at time of delivery or time of order - Whether debtor failed to mitigate loss
- Appeal dismissed
Beerens, Thomas v Bluescope Distribution P/L (ACN 096 380 068)
Nettle JA, Redlich JA, and Tate JA
[2012] VSCA 209
05/09/2012




Supreme Court of Victoria – Recent Judgments Bulletin No. 17/2012                                             Page - 1 -
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
CONTRACT - Tender process agreement - Alleged breach - Whether tenders
assessed in accordance with the tender process agreement - Whether implied
obligation to deal fairly and in good faith complied with - Whether misleading and
deceptive conduct
Ipex ITG P/L (ACN 007 433 623) (In liquidation) (Receivers appointed) &
        Takapana Investments P/L v State of Victoria
Warren CJ, Mandie JA, and Cavanough AJA
[2012] VSCA 201
29/08/2012

CORPORATIONS - Liquidation - Liquidator of lessor disclaims lease agreement
under s 568(1) of Corporations Act 2001 (Commonwealth ) - Whether disclaimer
extinguishes leasehold interest - Whether leasehold interest survives termination of
the lease agreement - Progressive Mailing House Proprietary Limited v Tabali
Proprietary Limited (1985) 157 CLR 17 - Apriaden Pty Ltd v Seacrest Pty Ltd (2005)
12 VR 319.
CORPORATIONS - Liquidation - Consequence and extent of disclaimer on 'other
person's rights' - Necessary to extinguish lessees' tenure to release the company and its
property from liability - Whether implied covenant for quiet enjoyment constitutes a
liability - Corporations Act 2001 (Commonwealth ) s477, s511, s568, s568D - Appeal
allowed
Re Willmott Forests Ltd (recs & mgrs apptd) (in liq) (ACN 063 263 650)
Warren CJ, Redlich JA, and Sifris AJA
[2012] VSCA 202
29/08/2012

CRIMINAL LAW - Appeal against conviction - Appellant convicted of murder of de
facto partner - Post-offence conduct - Jury directions - Crown alleged that appellant
had stabbed his partner with murderous intent -Appellant stated that deceased had
stabbed herself in his presence - Crown asserted that appellant's version of events was
a lie - Whether trial judge erred in permitting the jury to use appellant's claim that
deceased had taken her own life as evidence of consciousness of guilt (if they found it
to be a lie) - Trial judge limited jury's use of lie to question of intent - Whether trial
judge erred in failing to warn jury as to need for care in deciding whether lie evinced
consciousness of guilt of murder as opposed to manslaughter - Lie to be considered in
context of totality of evidence - Lie not intractably neutral as to murder or
manslaughter - Appeal dismissed - R v Ciantar (2006) 16 VR 26, applied
Brooks, Matthew Wayne v The Queen
Weinberg JA, Bongiorno JA, and T Forrest AJA
[2012] VSCA 197
28/08/2012

CRIMINAL LAW - Appeal against conviction - Applicant convicted of abduction of
a child under the age of 16, three counts of indecent acts with a child under 16 and
two counts of rape - Whether trial judge misdirected jury in relation to belief in
consent - Consideration of the effect of R v Getachew (2012) 286 ALR 196 and R v
Worsnop (2010) 28 VR 187 - Whether a miscarriage of justice resulted from the
admission into evidence of an inaccurate translation of the record of interview -
Where the meaning of alleged admission of penetration relied upon by the Crown was
materially affected by mistranslation - Mode of presentation of evidence - Mutual
mistake by the defence and the Crown concerning accuracy of the translation - Appeal
allowed
NT v The Queen
Nettle JA, Redlich JA, and Osborn JA
[2012] VSCA 213
06/09/2012



Supreme Court of Victoria – Recent Judgments Bulletin No. 17/2012               Page - 2 -
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
CRIMINAL LAW - Appeal against sentence - Appellant pleaded guilty to multiple
charges arising from fatal 'hit and run' incident and subsequent conduct - Total
effective sentence of five years and three months' imprisonment with non-parole
period of three years - Sentences of three years and six months' imprisonment
imposed on both charge 1 (dangerous driving causing death) and charge 2 (failure to
render assistance) - 12 months' of sentence imposed on charge 2 ordered to be served
cumulatively upon sentence imposed on count 1 - Whether sentence imposed on
charge 2 manifestly excessive - Serious example of failing to render assistance -
Principles in R v Verdins (2009) 16 VR 269 applicable to charge 2 - Sentence
imposed on that charge outside the range - No error in degree of cumulation ordered -
Appeal allowed - Appellant resentenced to same total effective sentence and non-
parole period - No point of principle
Veerman, Daniel v The Queen
Weinberg JA, Harper JA, and T Forrest AJA
[2012] VSCA 194
24/08/2012

CRIMINAL LAW - Appeal - Conviction - Murder - Applicant found guilty of
murdering his wife - Evidence adduced at trial of representations made by deceased to
effect that applicant had physically and emotionally abused her - Crown sought to use
evidence as tendency evidence - Whether evidence fell within exceptions to hearsay
rule provided for in s65(2)(b) & (c) of Evidence Act 2008 - Whether evidence could
be used as tendency evidence - Whether Crown's failure to call as witnesses
interpreters who interpreted conversations in which representations were said to have
been made by deceased gave rise to miscarriage of justice - Whether directions given
by trial judge tended to reverse onus of proof - Appeal allowed - Evidence Act 2008
s65, s66A, s67(1), s97(1), s101(2), s135 & s137 - Conway v The Queen (2000) 98
FCR 204 - R v Mankotia [1998] NSWSC 295 - Williams v The Queen (2000) 119 A
Crim R 490 - R v Ambrosoli (2002) 55 NSWLR 603 - Gaio v The Queen (1960) 104
CLR 419 - Director of Public Prosecutions (Vic) v BB [2010] 29 VR 110 - R v LRG
(2006) 16 VR 89 - Murray v The Queen (2002) 211 CLR 193 - Liberato v The Queen
(1985) 159 CLR 507
Azizi, Soltan Ahmad v The Queen
Buchanan JA, Bongiorno JA, and Hollingworth AJA
[2012] VSCA 205
30/08/2012
CRIMINAL LAW - Appeal - Conviction - Sexual offences - Whether 16-year-old
victim was under appellant's 'care, supervision or authority' - Whether appellant was
victim's 'employer' - Informal ad hoc arrangement for modelling photography -
Whether appellant assumed care or supervision of victim - Reliance on deeming
provision unnecessary - Care element established - Inconsistent verdicts - Whether
verdict of guilty on indecent act charge inconsistent with acquittal on sexual
penetration charge - Appeal dismissed - Crimes Act 1958 s48(4), s49(4) - R v Howes
(2000) 2 VR 141 - Mackenzie v The Queen (1996) 190 CLR 348
King, Andrew v The Queen
Maxwell P, Bongiorno JA, and Coghlan AJA
[2012] VSCA 206
31/08/2012




Supreme Court of Victoria – Recent Judgments Bulletin No. 17/2012            Page - 3 -
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
CRIMINAL LAW - Appeal - Sentence - Recklessly cause serious injury, armed
robbery, false imprisonment, threat to kill - Total effective sentence 5y 9m, non-
parole period 3y 9m - Offences committed on parole - Parole cancelled - Full parole
sentence served - Totality - Whether judge took into account service of parole
sentence - Whether sentence manifestly excessive - R v Renzella [1997] 2 VR 88
distinguished, DPP v Dickson [2011] VSCA 222 applied - Leave to appeal refused
CA v The Queen
Maxwell P and Mandie JA
[2012] VSCA 199
10/08/2012

CRIMINAL LAW - Application for leave to appeal against sentence - Multiple
charges of armed robbery, robbery, recklessly causing serious injury, criminal damage
and attempted robbery committed over short period - Total effective sentence of five
years and 10 months' imprisonment, with non-parole period of three years and four
months imposed - Whether sentence manifestly excessive - Youthful offender - Post-
traumatic stress disorder - Whether sentencing judge erred by finding that type of
offending was prevalent - Application for leave to appeal allowed - Appeal dismissed
- No point of principle
Chol, Ring v The Queen
Neave JA and Weinberg JA
[2012] VSCA 204
31/08/2012

CRIMINAL LAW - Conviction - Aggravated burglary, recklessly causing serious
injury and three counts of armed robbery - Evidence - Whether trial miscarried as
result of Prosecutor cross-examining appellant as to appellant's failure to adduce
corroborative evidence - Prejudice - Movements of appellant following being placed
on remand - Whether cross-examination placed appellant in an impossible position
before jury - Dyers v The Queen (2002) 210 CLR 285, Jones v Dunkel (1959) 101
CLR 298 referred to - Appeal dismissed.
CRIMINAL LAW - Sentence - Evidence - Whether appellant demonstrated efforts to
address drug addiction - Parity - Whether judge gave sufficient weight to parity
principle - No error demonstrated - Appeal refused
Ahmed, Gulet v The Queen
Nettle JA, Redlich JA, and Osborn JA
[2012] VSCA 200
27/08/2012




Supreme Court of Victoria – Recent Judgments Bulletin No. 17/2012           Page - 4 -
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
CRIMINAL LAW - Revocation of non-custodial supervision orders under Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997 - Quasi-inquisitorial nature
of proceedings - Role of Attorney-General - Role of Secretary of the Department of
Health - Appeal from a discretionary decision - Application of principles in House v
The King (1939) 55 CLR 499.
CRIMINAL LAW - Interaction between s39 & s40(1) - Weight to be given to factors
in s40(1)(c) & (d) - Meaning of 'endanger' - Assessment of probability of risk of harm
to community or appellant - Evaluation of the likelihood of risk materialising rather
than gravity of harm if risk eventuated - Degree of restrictions on appellant's
autonomy - Whether restrictions the minimum necessary for avoidance of risk - When
liberty of individual to be optimised - Appellant at low risk of re-offending.
CRIMINAL LAW - Burden of proof - Rules of evidence inapplicable - Section 38 -
No legal or evidential onus on any party - Common sense approach to evidence -
Standard of proof - Whether principle of Briginshaw (1938) CLR 336 applied to
determination of future risk - Evidence Act 2008 (Vic) s140 - Whether applicable to
such proceedings - Statutory standard of proof - Actual persuasion on the part of fact-
finder - Section 140(2) Evidence Act and principle in Briginshaw. Crimes (Mental
Impairment and Unfitness to be Tried) Act 1997 s33, s35, s38, s39, s40 - Uniform
Evidence Act s8, s140 - RDM v DPP & Ors [1999] 2 VR 270; Dr Butler v Fourth
Medical Services Review Tribunal (1997) 47 ALD 647; McDonald v Director-
General of Social Security (1984) 1 FCR 354 applied. In Re SKD [2009] VSC 363
discussed. In the matter of LN [1999] VSC 144, In the matter of TDD [2001] VSC
389 overruled in part
NOM v Director of Public Prosecutions; Attorney-General for the State of Victoria
        & Secretary to the Department of Health
Redlich JA, Harper JA, and Curtain AJA
[2012] VSCA 198
24/08/2012

CRIMINAL LAW - Sentencing - DPP appeal against sentence - Rape - Sentence of 7
years - Whether manifestly inadequate - Sentence within range reasonably available -
Ground effectively abandoned - Appeal dismissed - Crimes Act 1958 (Vic) s567A.
CRIMINAL LAW - Sentencing - Current sentencing practices - Rape - DPP
contending current sentencing practices inadequate - No live issue between parties -
Consideration of circumstances in which appeal court will interfere with the exercise
of a sentencing discretion - Consideration of circumstances in which appeal court may
express view about adequacy of current sentencing practices - Consideration of
circumstances in which an appeal against sentence can be brought by DPP - Appeal
dismissed - Sentencing Act 1991 (Vic) s5(2)
Director of Public Prosecutions [DPP] v Werry, Jason
Warren CJ, Maxwell P, Buchanan JA, Weinberg JA, and Bongiorno JA
[2012] VSCA 208
05/09/2012




Supreme Court of Victoria – Recent Judgments Bulletin No. 17/2012             Page - 5 -
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
CRIMINAL LAW - Sentencing - Theft and deception - Crown appeal - Respondent
pleaded guilty to eight charges of theft, two charges of false accounting and nine
charges of obtaining financial advantage by deception - Respondent an accountant and
company secretary of company which conducted financing business -Company
defrauded of just over $3 million - Respondent forwarded stolen sums to friend and
close associate - Moneys lost in high risk ventures - Respondent's offences committed
over lengthy period - Substantial breach of trust - Respondent concealed offending by
stating that sums stolen were in fact loans made in course of financing business -
Total effective sentence of six years' imprisonment with non-parole period of four
years - Whether sentence manifestly inadequate - Plea conducted on erroneous basis
that sum defrauded exceeded $7 million - Powerful evidence of good character -
Unusual case in that respondent gained no personal financial benefit from offending -
Current sentencing practices of limited utility - Sentence imposed merciful but within
range - Appeal dismissed
Director of Public Prosecutions [DPP] v Penny, Bruce Richard
Weinberg JA, Harper JA, and T Forrest AJA
[2012] VSCA 203
05/09/2012

EVIDENCE - Client legal privilege - Loss of client legal privilege - Joint clients -
Joint privilege - Jointly retained - Multiple parties - Disclosure requirement -
Evidence Act 2008, s124 & s131A
Great Southern Managers Australia Ltd (recs & mgrs apptd) (in liq) (ACN 083 825
        405) v Clarke, Peter as trustee of the Clarke Family Trust & Ors according
        to the attached schedule of parties
Buchanan JA, Osborn JA, and Beach AJA
[2012] VSCA 207
05/09/2012


COMMERCIAL & EQUITY DIVISION

Huynh, Thong v Hanna, (Her Honour Judge) & Pettis, Russell
Daly AsJ
[2012] VSC 368
05/09/2012

CIVIL PROCEDURE - Security for costs - Appeals from Associate Judge - Foreign
plaintiffs - Proceeds of sale of secured assets held in escrow accounts - Appeals
allowed
Oswal, Radhika Pankaj v Australia & New Zealand Banking Group Ltd (ACN 005
        357 522) & Ors
Oswal, Pankaj v Carson, Ian Menzies & Ors
Whelan J
[2012] VSC 356
24/08/2012

COSTS - Application by plaintiff for costs - Exercise of discretion as to costs -
Plaintiff successful in establishing one of multiple claims - Effect of Calderbank offer
- Whether plaintiff entitled to indemnity costs
Jeffrey-Potts, Brenda Eileen Zoay v Garel, Warren Leigh (Costs Ruling)
J Forrest J
[2012] VSC 367
29/08/2012




Supreme Court of Victoria – Recent Judgments Bulletin No. 17/2012              Page - 6 -
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
PRACTICE & PROCEDURE - Amendment of pleadings - Application for leave to
amend amended counterclaim - Identification of proper plaintiffs, clarification of
terms of agreement in relation to refrigeration capacity and reliance on express term
as well as implied term in relation to excessive noise - Whether leave should be given
– Supreme Court (General Civil Procedure) Rules 2005 (Vic) r36.01
Tri Tech Refrigeration Contracting & Engineering P/L (ACN 099 904 668) v
        Radevski, Peter & Ors (No. 2)
Bell J
[2012] VSC 403
06/09/2012

PRACTICE & PROCEDURE - Discontinuing counterclaim after trial and prior to
entry of judgment - Whether set-off affected - Costs - Calderbank offer - Bankruptcy
Act 1966 (Commonwealth), s60 - Supreme Court (General Civil Procedure) Rules
2005, r13.14, r25.02(2)(b)
Elberg, Alex v Fraval, Sachlan (No 2)
Fraval, Sachlan v Elberg, Alex (No 2)
Habersberger J
[2012] VSC 371 (1st Revision 30/08/2012)
29/08/2012

REMEDIES - Declarations sought in relation to the beneficial ownership of the
property - Principles relating to the granting of declaratory relief - Russian
Commercial and Industrial Bank v British Bank of Foreign Trade [1921] All E.R. Rep
329; Aussie Airlines v Australian Airlines (1996) 68 FCR 406 - A real and not a
theoretical question - Swift Australian Co. Pty Limited v South British Insurance Co.
Limited [1970] VR 368 - Applicant's status - Applicant's interest - Proper contradictor
- In the Matter of Pilchowski (Unreported, Supreme Court of Queensland, Cullinane J,
29 August 1997).
PRACTICE & PROCEDURE - Objection by the State Revenue Office on the basis
that the declarations sought usurp the powers of the State Revenue Office - Discretion
of the Court - Forster v Jododex Aust. Pty Ltd (1972) 127 CLR 421 - Cuming
Campbell Investments Pty Ltd v Collector of Imposts (Vict) (1938) 60 CLR 741 -
McGarrigle v Public Service Board [1979] 1 NSWLR 292
Annacott P/L (ACN 126 101 955) v Konann P/L (ACN 084 100 149)
McMillan J
[2012] VSC 398
06/09/2012




Supreme Court of Victoria – Recent Judgments Bulletin No. 17/2012            Page - 7 -
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
TORTS - Negligence - Failure of coating applied to the trusses and handrails of a
footbridge - Whether the failure of the coating was caused or contributed to by poor
application practice by the second defendant or other contractors - Whether the failure
of the coating was caused or contributed to by defective product manufactured by the
third defendant.
EVIDENCE - Opinion - Expert evidence - Whether an expert can adopt the reasoning
and conclusions of subordinates in writing an expert report.
DAMAGES - Goods and services tax (GST) - Whether an award of damages should
include GST paid by the plaintiff to third parties as a consequence of rectifying the
property damage - Whether damages awarded for loss arising from property damage
constitute supply for the purposes of GST - Where the plaintiff is registered for GST
purposes and entitled to receive an input tax credit.
DAMAGES - Economic loss in tort and contract from failure to take reasonable care -
Concurrent wrongdoers - Proportionate liability - Wrongs Act 1958 (Vic) Pt IVAA,
s24AH
Fulton Hogan Construction P/L v Grenadier Manufacturing P/L (in liquidation) &
        Ors
Almond J
[2012] VSC 358
23082012


COMMERCIAL & EQUITY DIVISION. COMMERCIAL COURT

CORPORATIONS - Application for directions by Responsible Entity - Whether
Responsible Entity justified in lodging with ASIC a copy of the amendments to
constitution of a managed investment scheme - Whether Responsible Entity justified
in indemnifying itself for the costs involved in making applications - Order that
lodging and indemnification both justified - Corporations Act 2001 (Cth), s601GC(2)
Re Elders Forestry Management Ltd: Elders Forestry Management Ltd v Seels,
        Christopher Arthur
Robson J
[2012] VSC 373
13/07/2012

CORPORATIONS LAW - Construction and interpretation of debenture charge -
Secured assets - Whether Preference Units and associated right to redeem are located
solely in Victoria
Australian Public Trustees Ltd (ACN 095 572 482) (receivers appointed) (in its
         capacity as trustee and/or responsible entity of the Government Property
         Trust No 5 (ARSN 112 705 629) v Australian Public Trustees Ltd (ACN 095
         572 482) (receivers appointed) (in its capacity as trustee of the Government
         Property Trust No 3 (and also known as GPT Vicroads Class C Trust) (ABN
         51 025 743 733)
Sifris J
[2012] VSC 364
28/08/2012




Supreme Court of Victoria – Recent Judgments Bulletin No. 17/2012             Page - 8 -
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
CORPORATIONS - Practice and procedure - Application for a stay of proceedings on
the grounds that the Court is an inappropriate forum - Proceedings instituted by the
defendant against the plaintiff in the New Zealand Employment Relations Authority -
Defendant alleges wages and entitlements owed by the plaintiff - In this Court, the
plaintiff alleges breach of contract of employment with defendant and claims damages
under the Corporations Act 2001 and in contract - Authority has exclusive jurisdiction
in New Zealand to hear employment disputes - Authority considering whether it has
jurisdiction over the substance of the issues in dispute between the parties - Local
proceedings found to be oppressive and vexatious - Application for a temporary stay
of proceedings granted
Re Point of Pay P/L v Roots, Darryl
Robson J
[2012] VSC 380 (1st revision 05/09/12)
04/09/2012

PRACTICE & PROCEDURE - Further submissions after judgment - Trial judge
referred to case not cited by any party - Whether parties should be given the
opportunity to make submissions.
COSTS - Each party succeeded on discrete issue - Whether each party should be
liable for the costs of the issue that it lost - Appropriate orders
APN Funds Management Limited ACN 080 674 479 (Acting in its capacity as the
         responsible entity for the APN Property For Income Fund No. 2 ARSN 113
         296 110) v Australian Property Investment Strategic Pty Ltd (ACN 009 110
         463) (formerly known as Macarthur Cook Ltd) & Macarthur Cook Real
         Estate Funds Ltd (ACN 126 766 167) (in its capacity as responsible entity of
         the Macarthur Cook Office Property Trust ARSN 114 263 688)
Sifris J
[2012] VSC 365
28/08/2012

TRUSTS & TRUSTEES - Application by Trustee for approval of compromise -
Supreme Court (General Civil Procedure Rules 2005 (Vic) r16.02 & r54.02
Morrison, Ian Redvers Maclaine (who sues in the capacity of trustee of the Norman
         Russo Family Trust) v Russo, John Joseph; Russo, Nancy & Kendall Tower
         P/L
Sifris J
[2012] VSC 372
31/08/2012


COMMON LAW DIVISION

APPEAL - Appeal pursuant to s272(1) of the Criminal Procedure Act 2009 (Vic) -
Preliminary breath test - Appeal from decision by the Magistrates' Court - Magistrate
dismissed charges pursuant to s49(1)(e) of the Road Safety Act 1986 (Vic) that driver
refused a requirement to accompany police to police station for breath analysis -
Whether inference consistent with innocence was reasonably open on the accepted
facts - Appeal allowed
Director of Public Prosecutions (on behalf of Savin, James) v Blango, Frank
Macaulay J
[2012] VSC 384
05/09/2012




Supreme Court of Victoria – Recent Judgments Bulletin No. 17/2012           Page - 9 -
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
CRIME - Appellant found guilty of intentionally destroying an electric fence the
property of his neighbour - Appeal from magistrate on question of law - Prosecution
unable to prove the land on which the fence erected was not owned by the Appellant -
Defence raised that the fence was a fixture on the land - Whether magistrate erred into
not finding that the prosecution bore onus of proving that the fence was not a fixture -
Appeal allowed - Order quashed - Crimes Act 1958, s197 and s201 - Criminal
Procedure Act 2009, s272
Powell, Anthony Francis v Olsen, Scott
Robson J
[2012] VSC 381
05/09/2012

CRIMINAL LAW - Driving offence - Alleged refusal of requirement to allow a blood
sample to be taken - Whether necessary to refer to temporal limitation on power to
make requirements, when making requirement to allow blood sample to be taken -
Whether necessary to refer to the three hour period during which a person may be
required to remain for the purposes of allowing blood sample to be taken when
making requirement to allow blood sample to be taken - Whether necessary to refer to
registered medical practitioner or authorised health professional when making
requirement to allow blood sample to be taken - Road Safety Act 1986 s49(1)(e),
s49(1A), s55(1), s55(9A)
Director of Public Prosecutions (on behalf of Smith, Jeffrey Charles) v Novakovic,
Ricky
Williams J
[2012] VSC 397
07/09/2012

CRIMINAL LAW - Summary offence - Essential elements of an offence under
s171(2) of the Road Safety Act 1986 - Being the consignor of goods on a vehicle
whose mass exceeded its mass limit - Charge specified erroneous mass limit and
erroneous statutory provision - Amendment of charge after expiration of 12 month
limitation period.
CRIMINAL LAW - Appeal against findings of guilt by Magistrate - s272(1) of the
Criminal Procedure Act 2009 - Error established - Appeal allowed.
CRIMINAL LAW - Reasonable steps defence under s179 of the Road Safety Act
1986 - Magistrate rejected defence - Error not established
Contract Control Services P/L (ACN 007 453 965) v Brown, Wayne
Kyrou J
[2012] VSC 369
29/08/2012

DEFAMATION - Practice and procedure - Pleadings - Defence - Ambit of
publication - Polly Peck imputations - Permissible variants - Qualified privilege -
Extent of publication - Whether internet publications are necessarily to the world at
large - Mass media publications distinguished - Particulars
Cripps, Robert Raymond & Redleg Museum Services P/L v Vakras, Demetrios &
        Reymond, Lee-Anne
Beach J
[2012] VSC 400
07/09/2012




Supreme Court of Victoria – Recent Judgments Bulletin No. 17/2012            Page - 10 -
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
EMPLOYMENT - Identification of employer - Whether there was transfer of
employees from pre-restructure entity to post-restructure entity - Existence of a formal
contract of employment between employees and pre-restructure entity - Victorian
WorkCover Authority - Entitlement to indemnity - Accident Compensation Act 1995
(Vic) s138 - Employment not transferred from pre-restructure entity to post-
restructure entity
Silcar P/L v Victorian WorkCover Authority
Pagone J
[2012] VSC 357
24/08/2012

JUDICIAL REVIEW - Review of ruling of magistrate holding that notes made
between lawyers for a party and a witness were subject to legal professional privilege
- Notes produced before hearing for judicial review - Issue in question moot - Relief
sought in respect of magistrate's ruling not granted - Further application to amend
originating motion to seek order prohibiting the hearing of the Magistrates' Court
prosecution until assurances made by prosecutor of compliance with duty of
disclosure - Relief sought not within Court's supervisory jurisdiction - Application to
amend dismissed
Wilson, Richard & Wilson, Jennine v Harrison, Alan & Magistrates' Court of
        Victoria at Heidelberg
Macaulay J
[2012] VSC 404
07/09/2012

LEGAL PRACTITIONERS - Appeal from Victorian Civil and Administrative
Tribunal - Barrister - Non-payment of tax over 10 years - Conviction for tax offences
- Guilty plea to charge of professional misconduct - Application to Tribunal for orders
under Division 4 of Part 4.4 of the Legal Profession Act 2004 (Vic) - Whether the
Tribunal applied the correct principles in imposing a sanction on the respondent -
Whether the Tribunal's discretion miscarried in imposing a sanction - Legal
Profession Act 2004 (Vic) Part 4.4 - Victorian Civil and Administrative Tribunal Act
1998 (Vic) s117, s148 - Proceeding remitted to Tribunal for determination according
to law.
ADMINISTRATIVE LAW - Misconceiving nature and extent of jurisdiction - Failure
to take into account relevant considerations - Tribunal's duty to give reasons under
s117 of Victorian Civil and Administrative Tribunal Act 1998 (Vic)
Legal Services Commissioner (Michael McGarvie) v Turner, Nigel
Emerton J
[2012] VSC 394
05/09/2012

OWNERS CORPORATION - Statutory requirement for a proxy to act honestly and
in good faith - Whether vicarious liability attaches to a principal for the conduct of its
proxies for the purposes of the Owners Corporations Act 2006 (Vic) - Whether
liability is defeated by statutory immunity - A proxy properly appointed is an agent -
Owners Corporations Act 2006 (Vic) s117, s118 - Owners Corporations Regulations
2007 (Vic) Sch 1.
JUDICIAL REVIEW - VCAT failed to consider further submissions sent by the
appellant - Registrar referred to the Tribunal as being functus officio - Appellant had
not been accorded procedural fairness
Noonan, John v Renaissance Assets P/L (ACN 074 521 010)
Pagone J
[2012] VSC 370
30/08/2012




Supreme Court of Victoria – Recent Judgments Bulletin No. 17/2012               Page - 11 -
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
PLANNING & ENVIRONMENT - Application for leave to appeal from the Victorian
Civil and Administrative Tribunal - Planning permit to allow for the installation of 19
gaming machines in a tavern - Natural justice - Social and economic impact - Whether
Tribunal failed to accord natural justice by indicating to counsel that it did not need to
hear evidence from an expert - Expert's evidence went to subject matter that was
central to the Tribunal's decision - Collection House Limited v Taylor [2004] VSC 49
- Vegco Pty Ltd v Gibbons [2008] VSC 363 - Victorian Civil and Administrative
Tribunal Act 1998 (Vic) s148
SJ Beaumont Investments P/L (ACN 082 308 576) v Warrnambool City Council
Emerton J
[2012] VSC 378
31/08/2012

PRACTICE & PROCEDURE - Application to set aside freezing order against
property of second defendant - Income tax recovery proceeding - Second defendant
partially succeeded before single judge in Federal Court - Appeal filed by
Commissioner - Whether sufficient alteration of circumstances underlying freezing
order - Whether property of second defendant may stand in aid of judgment against
first defendant - Trade World Enterprise Pty Ltd v Deputy Commissioner of Taxation
[2006] VSCA 191 considered - Supreme Court (General Civil Procedure) Rules 2005,
Order 37A - Taxation Administration Act 1953 (Cth), s14ZZQ
Deputy Commissioner of Taxation v Gashi, Rasim & Gashi, Manuela
Warren CJ
[2012] VSC 401
06/09/2012

PRACTICE & PROCEDURE - Discovery - Whether Whistleblowers Protection Act
2001 (Vic) prohibited production in proceedings brought by whistleblower of files
maintained by Victoria Police - Whether responding to discovery request a function of
the Chief Commissioner of Police under the legislation - Whistleblowers Protection
Act 2001 (Vic) s19(1), s22(1)
Smith, Martin John v Victoria Police (State of Victoria)
Ferguson J
[2012] VSC 374
30/08/2012
PRACTICE & PROCEDURE - Expert witnesses - Composition of conclaves -
Appointment of an Associate Justice as supervisor - Use of moderator and scribe -
Use of video links between experts
Matthews, Carol Ann v SPI Electricity (ACN 064 651 118) & Ors
SPI Electricity P/L (ACN 064 651 118) v Utility Services Corporation Ltd (ACN 060
       674 580) & Ors (Ruling No 10)
J Forrest J
[2012] VSC 379
04/09/2012

PRACTICE & PROCEDURE - Special leave sought by defendants to rely on further
affidavit material and expert report not before the Associate Judge - Criteria to
consider in grant of special leave - Whether adequate explanation given as to why
material sought to be relied upon was not adduced before the Associate Judge -
Whether there had been a denial of procedural fairness - Civil Procedure Act 2010
(Vic) s63 - Supreme Court (General Civil Procedure) Rules 2005 (Vic) r44.03(1)(b),
r77.06(7)
Portbury Development Co P/L v Ottedin Investments P/L & Ors (according to the
        schedule attached)
Pagone J
[2012] VSC 362
27/08/2012

Supreme Court of Victoria – Recent Judgments Bulletin No. 17/2012              Page - 12 -
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
REAL PROPERTY - Sale of land - Contract - Whether vendor had validly extended
time for period of registration of plan of sub-division - Whether contract validly
rescinded by purchasers - Clifford & Anor v Solid Investments Australia Pty Ltd
[2009] VSC 223; Solid Investments Australia Pty Ltd v Clifford & Anor [2010] 27
VR 41 considered - Sale of Land Act 1962 (Vic), s9AE(2)
Allen, Ann Marie; Stepcic, Emmalene Jane & Stepcic, Enrico v Harofam P/L
       (ACN 006 205 901)
Scherman, Richelle Yvonne v Harofam P/L (ACN 006 205 901)
Warren CJ
[2012] VSC 402
06/09/2012




CRIMINAL DIVISION

CRIMINAL LAW - Bail application - Accused charged with aggravated burglary -
Whether applicant required to show cause - Bail denied - Bail Act 1977, s4(4)
Re: Metekingi, Dean [Bail application]
Robson J
[2012] VSC 366
23/08/2012

CRIMINAL LAW - Bail application - Suspended sentence restored - Application for
bail pending appeal - Bail opposed on the ground of unacceptable risk of committing
an offence whilst on bail - Short period between application and the hearing of the
appeal - Finding of risk of offending but not an unacceptable risk - Bail granted - Bail
Act 1977, s4(2)(d) - Sentencing Act 1991, s83AR
Re: Hapeta, Casey Lee [Bail application]
Robson J
[2012] VSC 387
22/08/2012

CRIMINAL LAW - Intentionally cause injury - Theft - Circumstances of Offending -
Effects of schizophrenia capable of reducing moral culpability - Lack of suitability for
a restricted involuntary treatment order
The Queen v D'Zilva, James
Coghlan J
[2012] VSC 383
31/08/2012

CRIMINAL LAW - Sentence after jury verdict - Intentionally Causing Serious Injury
- Serious offending - Sustained attack on the victim - Prospects of rehabilitation
reasonable - Sentence of 8 years imprisonment - minimum term of 5 years
The Queen v Hare, Justin
Lasry J
[2012] VSC 386
04/09/2012




Supreme Court of Victoria – Recent Judgments Bulletin No. 17/2012             Page - 13 -
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
CRIMINAL LAW - Sentencing - Murder - Early guilty plea - Vulnerable victim shot
three times before being stabbed - Disposal of body in remote location - Drug affected
offender - Offence committed whilst on bail - Reasonably good prospects of
rehabilitation
Director of Public Prosecutions v Gibson, Aaron Anthony
Williams J
[2012] VSC 363
24/08/2012




Supreme Court of Victoria – Recent Judgments Bulletin No. 17/2012          Page - 14 -
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]

								
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