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Judgments Bulletin no KB Supreme Court of

VIEWS: 44 PAGES: 15

									                                SUPREME COURT OF VICTORIA

                               RECENT JUDGMENTS BULLETIN
                                     ISSUE NO. 13/2012


Below is a list of Victorian Supreme Court unreported judgments received in the Library
since 18 June 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 .................................................................................7
  Commercial & Equity Division. Commercial Court ...............................................11
  Common Law Division............................................................................................12
  Criminal Division.....................................................................................................15



COURT OF APPEAL
ACCIDENT COMPENSATION - Appeal from refusal of leave to bring proceedings
pursuant to Accident Compensation Act 1985, s134AB(16)(b) - Application for two
year adjournment of hearing of appeal to allow appellant to undergo spinal fusion
surgery and to place evidence of results of surgery before court on hearing of appeal -
Application allowed
Merhi, Ghassan v Ford Motor Company of Australia Ltd
Nettle JA
[2012] VSCA 147
25/05/2012

ADMINISTRATIVE LAW - Occupational licensing - Working with children checks -
Category 1 application - Where applicants convicted of sexual offences against
children - Public interest - Whether Tribunal improperly restricted its view of the
public interest - Whether Tribunal bound in considering public interest to have regard
to public confidence in the working with children check system - Working with
Children Act 2005 s 26
Secretary, Department of Justice v LMB
Secretary, Department of Justice v PMY
Warren CJ, Osborn JA, and Cavanough AJA
[2012] VSCA 143
29/06/2012




Supreme Court of Victoria – Recent Judgments Bulletin No. 13/2012                                             Page - 1 -
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
CONTRACT - Joint venture - Failure and termination of joint venture - Valuation of
joint venture real estate - Whether judge erred in assessing the parties' financial
contributions to be repaid - Whether judge erred in assessing the parties' proportionate
entitlements to the balance after repayment of contributions
Kocalidis, Andrew (aka Kay, Andrew) v Andrews, John
Maxwell P, Mandie JA, and Cavanough AJA
[2012] VSCA 127
20/06/2012

CONTRACTS - Management agreement in respect of a retirement village -
Entitlement to serve a notice to terminate - Principles of construction - Whether trial
judge erred in having regard to evidence of surrounding circumstances - Whether
findings contrary to the contractual context contained in the management agreement
and other related contracts and in the legislative framework governing retirement
villages - Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149
CLR 337; Royal Botanic Gardens and Domain Trust v South Sydney City Council
(2002) 240 CLR 45; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 164
and Western Export Services Inc & Ors v Jireh International Pty Ltd [2011] HCA 45
applied - Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council
[2010] NSWCA 64 referred to - Entire contract clause - Gordon v Macgregor (1909)
8 CLR 316 and Hope v RCA Photophone of Australia Pty Ltd (1937) CLR 348
applied - Estoppel by convention - Johnson Matthey v AC Rochester Overseas Corp
(1990) 23 NSWLR 190 applied - Appeal allowed
Retirement Services Australia (RSA) P/L (ACN 078 532 402) v 3143 Victoria St
        Doncaster P/L (ACN 091 532 320)
Warren CJ, Harper JA, and Robson AJA
[2012] VSCA 134
22/06/2012

COSTS - Special case stated at behest of both parties - Whether costs follow the event
- Where judgment favours defendant in case stated - Benefits to both parties in
requesting special case - Relevance of Appeal Costs Act 1998 (Vic) s19 - County
Court Act 1958 (Vic) s76
Tuohey, Patrick v Freemasons Hospital (No. 2)
Redlich J, Mandie JA, and Kyrou AJA
[2012] VSCA 123
14/06/2012

CRIMINAL LAW - Appeal against sentence - Manifest excess - Whether insufficient
weight given to cooperation and undertaking to assist the authorities - Appeal refused
- No point of principle
NCH v The Queen
Buchanan JA and Osborn JA
[2012] VSCA 129
13/06/2012

CRIMINAL LAW - Appeal against sentence - Trafficking in a commercial quantity
of a drug of dependence - Appellant found to have acquired brain injury - R v Verdins
(2007) 16 VR 269 - Relevance of premeditation, planning and implementation - Need
for cogent evidence of causal relationship between offending and mental condition -
Appeal dismissed
Sikaloski, Robert v The Queen
Weinberg JA and Cavanough AJA
[2012] VSCA 130
22/06/2012




Supreme Court of Victoria – Recent Judgments Bulletin No. 13/2012             Page - 2 -
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
CRIMINAL LAW - Appeal against sentence - Two charges of dangerous driving
causing serious injury - Four summary driving charges - Plea of guilty - Total
effective sentence of six years and six months' imprisonment, with non-parole period
of four years and six months - Whether judge erred in imposing sentence of
imprisonment for summary offence - Whether order for cumulation made on sentence
for exceeding prescribed concentration of alcohol amounted to double punishment - R
v Audino (2007) 180 A Crim R 371 considered - Whether sentence manifestly
excessive - Whether sentence offended principle of totality - Appeal allowed -
Appellant re-sentenced to five years and three months' imprisonment, with non-parole
period of three years
Gangur, John Andrew v The Queen
Buchanan JA, Neave JA, and Redlich JA
[2012] VSCA 139
27/06/2012

CRIMINAL LAW - Appeal - Conviction - Criminal damage - Arson - Intent -
Offenders intentionally set fire to milk crates inside factory - Factory destroyed by fire
- No intent to destroy factory - No knowledge or belief that conduct likely to result in
destruction of factory - Offenders pleaded guilty to intentional destruction of factory -
Could not in law have been convicted of that offence - Indictment amended -
Intentional destruction of milk crates - Crimes Act 1958 s197 - Criminal Procedure
Act 2009 s165.
CRIMINAL LAW - Appeal - Sentence - Criminal damage - Arson - Offenders
intentionally set fire to milk crates inside factory - Factory destroyed by fire - No
intent to destroy factory - No knowledge or belief that conduct likely to result in
destruction of factory - Offenders pleaded guilty to intentional destruction of factory -
Sentenced to 2y 4m detention in Youth Justice Centre - Could not in law have been
convicted of that offence - Indictment amended - Intentional destruction of milk crates
- Low culpability offence - Unintended consequences - Whether reasonably
foreseeable - Whether victim impact provisions modify common law - Custodial
penalty not warranted - Four months already served - Offenders discharged - Crimes
Act 1958 s197 - Sentencing Act 1991 (Vic) s3(1), s5(2)(daa), s5(2)(db), s73
Eade, Benjamin Edward v The Queen
Vanstone, Brent Michael James v The Queen
Maxwell P, Neave JA, and Lasry AJA
[2012] VSCA 142
27/06/2012

CRIMINAL LAW - Appeal - Conviction - Failure to comply with condition of
Extended Supervision Order ('ESO') - Failure consisting of commission of sexual
offence - Whether double punishment to enter conviction of offence of failure to
comply with ESO as well as of sexual offence - Pearce v The Queen (1998) 194 CLR
610, applied - Loader v The Queen [2011] VSCA 292 followed - Serious Sex
Offenders Monitoring Act 2005 (Victoria), s40(1).
CRIMINAL LAW - Appeal - Sentence - Possession of child pornography - Failure to
comply with condition of Extended Supervision Order ('ESO') - Whether double
punishment to impose individual sentence on offence of failure to comply with ESO
as well as on child pornography offence - Serious Sex Offenders Monitoring Act 2005
(Victoria), s40(1) - Crimes Act 1958 (Victoria) s70(1) - Interpretation of Legislation
Act 1984 (Victoria) s51(1)
Lecornu, Dean Alan v The Queen & The Secretary To The Department Of Justice
Maxwell P, Hollingworth AJA, and Cavanough AJA
[2012] VSCA 137
26/06/2012




Supreme Court of Victoria – Recent Judgments Bulletin No. 13/2012               Page - 3 -
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
CRIMINAL LAW - Appeal - Sentence - Applicant convicted of sexual offences
against five female victims - Offending occurred over period of almost 30 years -
Applicant sentenced to total effective sentence of 27 years' imprisonment with non-
parole period of 20 years - Crown conceded on appeal that prosecutor had led trial
judge into error - Prosecutor had submitted that trial judge could 'step outside' current
sentencing practices in sentencing applicant - Applicant re-sentenced to total effective
sentence of 21 years' imprisonment with non-parole period of 17 years - No point of
principle
Bavage, Jeffrey Peter v The Queen
Neave JA, Bongiorno JA, and Bell AJA
[2012] VSCA 149
29/06/2012

CRIMINAL LAW - Appeal - Sentence - Crown appeal - Occupational health and
safety - Failure to provide and maintain safe working environment - Failure to provide
and maintain safe system of work - Failure to provide necessary information,
instruction, training and supervision - Whether 'rolled-up count' - Management aware
of non-compliance with safety procedures - Company aware of risks associated with
non-compliance - No action taken to enforce compliance - Judge found 'disregard of
safety of workers' - Relevance of prior enforcement action and prior convictions -
Specific deterrence - General deterrence - Company's culpability very high - Appeal
allowed - Fine increased from $250,000 to $500,000 - Occupational Health and Safety
Act 2004 (Vic) s21(1), s21(2)(a) & s21(2)(e), s33, s144
Director of Public Prosecutions v Coates Hire Operations P/L (ACN 074 126 971)
Maxwell P, Weinberg JA, and Hollingworth AJA
[2012] VSCA 131
25/06/2012

CRIMINAL LAW - Appeal - Sentence - Cultivation of narcotic plants and theft of
electricity - Acquired brain injury and depressive illness - Reliance only on Verdins 5
and 6 on plea - No reliance on Verdins 1 or 3 despite evidentiary foundation -
Whether causal connection between offending and mental condition required to
mitigate general deterrence or moral culpability - Whether Verdins altered by
Muldrock v The Queen (2011) 244 CLR 120 - No inconsistency between Verdins and
Muldrock - Principles unaltered - Leave to appeal granted but appeal dismissed
Tran, Chien Trong v The Queen
Maxwell P and Neave JA
[2012] VSCA 110
22/05/2012

CRIMINAL LAW - Appeal - Sentence - Manufacturing and trafficking of MDMA,
methylamphetamine and cocaine - Counts of trafficking in large commercial quantity
and commercial quantity - Possess drug of dependence - Possess pill press - Handle
stolen goods - Co-offenders - Two offender appeals - Whether sentences manifestly
excessive - Two Crown appeals - Whether sentences manifestly inadequate -
Objective gravity - General deterrence - Trafficking sentences 'extraordinarily lenient'
- Parity - Constraints imposed on resentencing by unappealed sentence - Procedural
fairness - Verdins principles applicable - Appeals allowed - Offenders resentenced -
Drugs, Poisons and Controlled Substances Act 1981 (Vic) s71, s71AA, s71AC, s71A,
s71C, s73(1)
Wilson, Scott William v The Queen
Director of Public Prosecutions v Sassine, Raymond
Director of Public Prosecutions v Kalakias, Stellios
Wilson, Viki v The Queen
Maxwell P, Weinberg JA, and Coghlan AJA
[2012] VSCA 141
29/06/2012


Supreme Court of Victoria – Recent Judgments Bulletin No. 13/2012              Page - 4 -
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
CRIMINAL LAW - Appeal - Sentence - Trafficking cocaine, trafficking large
commercial quantity of MDMA, possess methylamphetamine - TES 8 y 6 m, NPP 5 y
9 m - Whether non-parole period manifestly excessive - Whether accorded with
judge's stated intention - No 'usual' non-parole period - Objective gravity of offending
substantial - Appeal dismissed
Kneifati, Walid v The Queen
Taha, Youssef v The Queen
Maxwell P, Buchanan JA, and Hansen JA
[2012] VSCA 124
18/06/2012

CRIMINAL LAW - Crown appeal against sentence - Respondent convicted of two
charges of culpable driving causing death, one charge of reckless conduct
endangering life and two charges of reckless conduct placing persons in danger of
serious injury - Sentence of three years in a youth justice centre - Whether sentence
manifestly inadequate - Whether judge erred in failing to cumulate sentences imposed
on each culpable driving charge - Appeal allowed - Respondent re-sentenced
Director of Public Prosecutions v Hill, Patrick Thomas
Neave JA, Osborn JA, and King AJA
[2012] VSCA 144
29/06/2012

CRIMINAL LAW - Interlocutory appeal - Admissibility of photo board identification
evidence - Whether trial judge erred in finding that probative value of evidence
outweighed by unfair prejudice - Evidence Act 2008 s137 - Leave to appeal granted -
Appeal allowed
Director of Public Prosecutions v DJC
Neave JA and Bongiorno JA
[2012] VSCA 132
20/06/2012

CRIMINAL LAW - Practice and procedure - Jury empanelment - Murder - Failure of
judge to inform members of the jury panel of the name of the deceased and the date
and place of death not a breach of s32 of the Juries Act 2000 - Failure to arraign the
accused before members of the jury panel not a breach of the rules of natural justice -
No point of principle
Caruso, Peter v The Queen
Buchanan JA, Neave JA, and Redlich JA
[2012] VSCA 138
27/06/2012




Supreme Court of Victoria – Recent Judgments Bulletin No. 13/2012              Page - 5 -
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
CRIMINAL LAW - Sentence - Appellants severely assaulted 43-year-old male victim
- Appellants each pleaded guilty to one charge of intentionally causing serious injury -
Smith sentenced to nine years' imprisonment with non-parole period of seven years -
Droste initially sentenced to nine years' imprisonment with non-parole period of seven
years and six months but re-sentenced upon sentencing judge being informed that
offending had resulted in cancellation of his parole - Droste's non-parole period
reduced to seven years - Whether sentences were manifestly excessive - Whether
sentencing judge erred in only reducing Droste's non-parole period when re-exercising
sentencing discretion - Whether sentencing judge erroneously reduced weight given to
appellants' pleas of guilty due to strength of Crown case - Whether lack of disparity
between sentences imposed on appellants infringed principle of parity - Appeal
allowed - Smith re-sentenced to seven years' imprisonment with non-parole period of
five years - Droste re-sentenced to six years and six months' imprisonment with non-
parole period of four years and six months - R v Pajic (2009) 23 VR 527 - Scerri v
The Queen (2010) 206 A Crim R 1 - Sentencing Act 1991 s6AAA.
CRIMINAL LAW - Sentence - Addendum - Court informed subsequent to judgment
being delivered that Droste had been sentenced in Magistrates' Court on 4 February
2011 - Magistrate had fixed new single non-parole period pursuant to s14 of
Sentencing Act 1991 - Non-parole period related to Droste's County Court sentence
and sentence imposed on him by Magistrate - Whether s14 operated to require this
Court to fix new single non-parole period - Whether sentence imposed by this Court
following successful appeal was 'further term of imprisonment' for purposes of
s14(1)(b) - Orders made on 10 November 2011 confirmed - Criminal Procedure Act
2009 s282 - Sentencing Act 1991 s14
Smith, Damien v The Queen
Droste, David v The Queen
Bongiorno JA, Ross AJA, and Curtain AJA
[2012] VSCA 133
21/06/2012

CRIMINAL LAW - Sentence - Cultivation of and trafficking in cannabis - Cannabis
used for pain relief of the terminally ill - Confiscation of valuable property - Sentence
of 27 months' imprisonment with a minimum term of 15 months' imprisonment
manifestly excessive - No point of principle
Dowdell, Justin v The Queen
Buchanan JA and Osborn JA
[2012] VSCA 125
13/06/2012

CRIMINAL LAW - Sentence - Guilty plea to murder - Weight to be attributed to
guilty plea - Analysis of relation between discount for guilty plea and utilitarian
benefit of plea - Whether strength of Crown case impacts on objective dimensions of
guilty plea - Relevance of remorse and other subjective considerations to guilty plea -
Objective and subjective dimensions of guilty plea distinguished - When strength of
Crown case may impact on subjective dimensions of guilty plea - Relevance of length
and complexity of potential trial to evaluation of mitigating effect of guilty plea -
Appellant sentenced to total effective sentence of 23 years' imprisonment and non-
parole period of 19 years - Manifest excess - No different sentence imposed despite
specific error - Appeal dismissed - R v Pajic (2009) 23 VR 527 considered; R v
Thomson; R v Houlton (2000) 49 NSWLR 383 and R v Donnelly [1998] 1 VR 645
and other case law referred to; R v Hall (1994) A Crim R 454 distinguished; Sherna v
R [2011] VSCA 242 discussed - Sentencing Act 1991 s5(2)(e) and s6AAA considered
Phillips, Christopher Edward v The Queen
Maxwell P, Nettle JA, Redlich JA, Harper JA, and Curtain AJA
[2012] VSCA 140
29/06/2012



Supreme Court of Victoria – Recent Judgments Bulletin No. 13/2012               Page - 6 -
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
CRIMINAL LAW - Sentence - Multiple counts of incest and indecent assaults
committed against daughter over period of 28 years - Worst category of offending -
Guilty plea - Total effective sentence of 22 years and 5 months' imprisonment with
non-parole period of 18 years not manifestly excessive - Judge's findings correct as to
limited mitigatory relevance of appellant's age, health and mental impairment -
Appeal dismissed
RSJ v The Queen
Warren CJ, Redlich JA, and Hansen JA
[2012] VSCA 148
29/06/2012

LEGAL PRACTITIONERS - Solicitor - Breach of retainer - Negligence - Proceeding
by former client against solicitor - Alleged failure to advise adequately about exercise
of option to purchase land - Breach of retainer and negligence established - Nominal
damages awarded - Whether trial judge erred in finding that breach did not cause loss
- Whether trial judge erred in assessment of damages - Appeal dismissed
Simply Irresistible P/L (ACN 007 139 451) v Couper, Samuel B & Ors
Buchanan JA, Neave JA, and Hollingworth AJA
[2012] VSCA 128
22/06/2012


COMMERCIAL & EQUITY DIVISION

ADMINISTRATION & PROBATE - Application under s99 of the Administration
and Probate Act 1958 for extension of time to commence application under s91 of the
Administration of Probate Act 1958 - Delay - Merits of the claim - Prejudice to any
beneficiaries
Vogdanos, Stamatios v Kriaris, Anastasios (who is sued as the executor of the Will
       of Constantinos Vogdanos, deceased)
McMillan J
[2012] VSC 248
19/06/2012

ASSOCIATIONS & CLUBS - Expulsion - Finding that expulsion invalid.
CONTRACT - Construction of express terms - No breach on the evidence -
Declaration that contract not terminated.
EQUITY - Availability of equitable remedy - Sufficient protection to plaintiff through
grant of injunction restraining action being taken upon, or effect being given to,
invalid expulsion
Humphries, Christopher Charles v Southern Cross Ski Club (ACN 005 151 931)
Judd J
[2012] VSC 232
25/06/2012




Supreme Court of Victoria – Recent Judgments Bulletin No. 13/2012              Page - 7 -
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
CONTRACT - Construction and interpretation of Deed - Exercise of put option by
delivery of Exercise Notice -Valid exercise of put option by service of Exercise
Notice - General clause deeming time for receipt of notices under Deed - Deeming
provision not applicable when specific clauses relate to the Exercise Notice.
CONTRACT - Requirement to produce unit certificates at completion - No unit
certificates issued - Previous settlements without unit certificates - Estoppel - Waltons
Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 - Whether holding statements are
unit certificates.
TRUST - Alleged invalidity of original issue where units issued at below $1.00 -
remedial action taken by responsible entity - Adjustment of units - No consideration
provided.
TRUST - Alleged breach of trust - Whether issue of units to third party at below $1.00
per unit was in breach of trust - Liability of responsible entity - No liability on part of
innocent third party - Adjustment set aside
APN Funds Management Limited ACN 080 674 479 (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 MacarthurCook Limited) & MacarthurCook Real
         Estate Funds Limited (ACN 126 766 167) (in its capacity as responsible
         entity of the MacarthurCook Office Property Trust ARSN 114 263 688)
Sifris J
[2012] VSC 262
22/06/2012

CONTRACT - Construction contract - Extension of time claim - Whether disputed
claims to be referred to an independent expert or to arbitration for determination -
Interpretation and construction of the dispute resolution regime - Intention of parties -
Nature of dispute and construction issues - Appropriateness of determination by
independent expert - Badgin Nominees Pty Ltd v Oneida Ltd [1998] VSC 188 - The
Heart Research Institute Ltd v Psiron Ltd [2002] NSWSC 646. ARBITRATION -
Clause permitting resolution of extension of time dispute by arbitration - Whether
binding arbitration agreement - Manningham City Council v Dura (Australia)
Constructions Pty Ltd (1999) 3 VR 13 (CA) - Commercial Arbitration Act (Vic)
1984, sub-s53(1).
WORDS AND PHRASES - Interpretation of the word 'may' in dispute resolution
clauses - Oakton Services Pty Ltd v Tenix Solutions IMES Pty Ltd [2010] VSC 176
Biosciences Research Centre P/L v Plenary Research P/L
Croft J
[2012] VSC 249
19/06/2012




Supreme Court of Victoria – Recent Judgments Bulletin No. 13/2012                Page - 8 -
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
CONTRACT - Existence of interest-free loan agreements - Limited documentary
evidence - Note recording a loan agreement signed by both parties - Whether loan
agreement was incomplete or uncertain - Repayments of loans made irregularly -
Burden of persuasion on defendant.
TRUSTS - Existence of an express trust - Intention to create a trust.
EQUITY & TRUSTS - Resulting trust - Contributions to purchase price - Calverley v
Green (1984) 155 CLR 242.
EQUITY & TRUSTS - Common intention constructive trust - Property acquired in
course of mother/surrogate son type relationship - Property held in the name of one
party - No common intention to create trust.
EQUITY & TRUSTS - Remedial constructive trust - Existence of joint endeavour -
Muschinski v Dodds (1985) 160 CLR 583 and Baumgartner v Baumgartner (1987)
164 CLR 137 - Provision of funds for the purchase of the properties by both parties -
Non-financial contributions made by both parties - Pooling of funds for payment of
properties - Whether unconscionable to allow one party to assert sole title -
Quantification of contributions of parties - Adjustments to be made.
EQUITY & TRUSTS - Applicability of the doctrine of laches.
PROPERTY - Lodging of caveats - whether reasonable cause to lodge caveats
existed.
PRACTICE & PROCEDURE - Admissibility of evidence after conclusion of trial
Jeffrey-Potts, Brenda Eileen Zoay v Garel, Warren Leigh
J Forrest J
[2012] VSC 237
22/06/2012

CONTRACT - Preliminary questions - Agreement to build a recycling waste
recycling plant - Dispute as to terms - Determination of contractual terms - Whether
implied terms of merchantable quality in respect of machinery manufactured to the
purchaser's design - Determination of alleged misleading representations.
QUANTUM MERUIT - Claim where contract also pleaded - Whether open to make
quantum meruit claim
Industrial Conveying (Aust) P/L (ACN 006 490 544) v SKM Recycling P/L (ACN
        086 098 660)
SKM Recycling P/L (ACN 086 098 660) v Industrial Conveying (Aust) P/L (ACN
        006 490 544) & Erskine, Donald James
Robson J
[2012] VSC 278
28/06/2012

CONTRACT - Varied from time to time - Terms - Whether bank obliged to provide
further funds - Whether bank in breach - No breach made out.
TRADE PRACTICES ACT - Misleading or deceptive conduct - Whether
representations made by bank in relation to funding - Whether representations relied
on by borrower - Whether representations untrue - Whether representations caused
loss - Trade Practices Act 1974, s52.
GUARANTEE AND INDEMNITY - Terms - Whether guarantors liable
Bank of Western Australia Ltd (ACN 050 494 454) v Floreani, Enzo Alido & Ors
Sifris J
[2012] VSC 261
21/06/2012




Supreme Court of Victoria – Recent Judgments Bulletin No. 13/2012            Page - 9 -
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
CONTRACT - Whether contract for services validly terminated - Contract for
services as managing director - Provisions in constitution and in Corporations Act for
removal of director concurrent and alternative - Director removed from office under s
203D Corporations Act - Valid termination under contractual right where managing
director 'vacated office' by ceasing to be a director under the Corporations Act 2001.
CONTRACT - Contractual entitlement to "earn a contract bonus" - Whether terms of
bonus orally agreed - No oral agreement - No authority to contract.
CONTRACT - Contractual obligation to grant share options - Whether implied term
that the obligation to grant options was subject to shareholders' approval - No breach
of contract for failure to grant options - No damages resulting
Dalkeith Resources P/L (ACN 061 721 453) v Regis Resources Ltd (ACN 009 174
761)
Macaulay J
[2012] VSC 288
29/06/2012

CORPORATIONS - Application to set aside a statutory demand pursuant to
Corporations Act 2001, s459 - Demand for rental under lease - Landlord in
receivership and tenant pays rental to receiver as required by notice served on tenant
by receiver - Defendant through its director maintain demand - Demand set aside and
order made for indemnity costs
Wilson Pateras P/L (ACN 138 213 046) v Richmond Commercial P/L (Controller
       Appointed)(Receiver & manager Appointed) (ACN 082 257 761)
Gardiner AsJ
[2012] VSC 259 (1st revision 22/05/12)
17/05/2012

EVIDENCE - Privilege- Joint privilege - Material disclosed subject to joint privilege -
Whether jointly privileged material able to be tendered in inter partes proceedings -
Whether privilege waived or lost - Question determined prior to trial - Evidence Act
2008 (VIC) s124 and s131A - Whether proceedings relate to same matter as material -
Whether joint privilege arose out of joint retainer - Loss of joint privilege at common
law when parties in litigation - Whether joint privilege able to be lost through party
possessing material - Calcraft v Guest [1898] 1 QB 759.
Clarke, Peter (as trustee of the Clarke Family Trust) & Ors v Great Southern
         Finance P/L (recs & mgrs apptd) (in liq) (ACN 009 235 143) & Ors
Sifris J
[2012] VSC 260
29/05/2012

REAL PROPERTY - Caveat - Whether caveat fatally defective - Power to amend -
Application to remove - s90(3) Transfer of Land Act 1958 - Serious question to be
tried - Balance of convenience - Indemnity costs
Ren, Zhen v Shi, Lixin
McMillan J
[2012] VSC 271
21/06/2012

PRACTICE & PROCEDURE - Cross-vesting legislation - Application by defendant
to transfer proceedings to the Supreme Court of South Australia - Plaintiff alleged that
injured in Adelaide store due to defendant's negligence - South Australian law
applicable - Location of witnesses and parties - Plaintiff's health and financial
circumstances - "Interests of justice" - Application refused - Jurisdiction of Courts
(Cross-vesting) Act 1987 s5(2)(b)(iii)
Taylor, Suzanne Joy v Woolworths Ltd
Hollingworth J
[2012] VSC 286
27/06/2012

Supreme Court of Victoria – Recent Judgments Bulletin No. 13/2012            Page - 10 -
[Produced by Supreme Court Library sclib@supremecourt.vic.gov.au]
COMMERCIAL & EQUITY DIVISION. COMMERCIAL COURT

CORPORATIONS - Application for directions by Responsible Entity - Whether
Responsible Entity justified in amending constitution of a managed investment
scheme under s601GC(1)(b) of the Corporations Act 2001 - Amendment to permit
sale of standing timber of a forestry scheme - Existing constitution provided for trees
to be harvested and proceeds of harvest distributed to growers - Whether rights of
growers would be adversely affected by the amendment - Order that amendment
justified - Re ING Funds Management Ltd (2009) 228 FLR 444 followed and applied.
CORPORATIONS - Application for directions - Whether Responsible Entity justified
in calling a meeting of Grower members of Managed Investment Schemes to consider
resolutions to amend constitution of schemes - Order that calling of meetings justified
Re: Elders Forestry Management Ltd (ACN 081 643 147)
Elders Forestry Management Ltd (081 643 147) v Seels, Christopher Arthur
Robson J
[2012] VSC 287
28/06/2012

CORPORATIONS - Application to terminate winding-up pursuant to s482 of the
Corporations Act 2001 (Cth) - Appeal from decision of associate judge - Company
now solvent - Relevance of misconduct - Application of principle of 'commercial
morality' where company is alter ego of director - Liquidation terminated
Re: Kitchen Dimensions P/L (in liq) (ACN 064 819 450)
Giudice, Mario v Craig Bolwell (as liquidator of Kitchen Dimensions P/L) (in liq) &
       Kitchen Dimensions P/L (ACN 064 819 450) (in liq)
Judd J
[2012] VSC 280
26/06/2012

CORPORATIONS - Winding up on just and equitable ground - Family trustee
company - Deadlock between shareholders and beneficiaries of trust - Acrimonious
relationship between two branches of family over 30 years - No ongoing business -
Valuable land an asset but not generating income - Overdraft near limit - Corporations
Act 2001 (Cth), s461(1)(k)
In The Matter Of Inon Nominees P/L (ACN 005 076 317)
Giacobbe, Michele; Giacobbe, Joseph v Giacobbe, Anthony & Inon Nominees P/L
Ferguson J
[2012] VSC 285
28/06/2012

PRACTICE & PROCEDURE - Client legal privilege - Loss of privilege - 'Issue
waiver' - Mediation - Validity of deed of settlement challenged - Evidence Act 2008
(Vic), s118, s122, s131 & s131A
Gippsreal Ltd (ACN 005 443 292) v Action Cycles P/L (ACN 076 779 630) & Ors
Judd J
[2012] VSC 279
27/06/2012




Supreme Court of Victoria – Recent Judgments Bulletin No. 13/2012           Page - 11 -
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PRACTICE & PROCEDURE - Costs - Orders agreed without adjudication on the
merits - Relevant principles for an award of costs in a compromised proceeding -
Costs order made - Corporations Act 2001 (Cth), s601ND
Hoddinott, Mark James & Ors v Willmott Forests Limited (Receivers and
        Liquidators Appointed) (In Liquidation)
Davies J
[2012] VSC 282
27/06/2012

TRUSTS - Application for judicial advice - Whether trust governed by an amendment
deed - Application to extend vesting date - Court's jurisdiction - Trustee Act 1958
(Victoria), s5, s63A - Supreme Court (General Civil Procedure) Rules 2005
(Victoria), Order 54.02 - Perpetuities and Accumulations Act 1968 (Victoria), s5
Re: Plator Nominees P/L (ACN 004 937 222)
Davies J
[2012] VSC 284
27/06/2012


COMMON LAW DIVISION

ACCIDENT COMPENSATION - Transport accident - Settlement of minor's claim -
Weekly payments of compensation for loss of earning capacity under s49 Transport
Accident Act 1986 - Meaning of s49(5A) of Transport Accident Act 1986
Kelly, William v Transport Accident Commission
Williams J
[2012] VSC 252
15/06/2012

APPEAL - Appeal from Tribunal - Domestic building case - Building owner relying
on building expert's report - Builder sought adjournment at hearing to obtain expert
opinion in response - Adjournment refused - Case decided in favour of owner based
wholly on owners' expert report - Whether refusal was a denial of procedural fairness
- Appeal allowed
Furman Constructions (Vic) P/L v Raju, Rohesh & Lay, Eng
Mukhtar AsJ
[2012] VSC 269
22/06/2012

APPEAL ON A QUESTION OF LAW FROM A CRIMINAL PROCEEDING IN
THE MAGISTRATES COURT-whether or not the Supreme Court (Criminal
Procedure) Rules 2008 apply-whether an Associate Judge has jurisdiction under those
Rules to hear the trial of such appeal-whether the jurisdiction to hear the trial can be
referred under r77.05 of the Supreme Court (General Civil Procedure) Rules 2005
Contract Control Services P/L v Brown, Wayne (Vic Roads)
Lasdowne AsJ
[2012] VSC 289
29/06/2012




Supreme Court of Victoria – Recent Judgments Bulletin No. 13/2012             Page - 12 -
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CAPACITY - Funds in court - Person under disability - Plaintiff suffered brain injury
in vehicle accident in 1999 - Compensation paid into court in 2004 - Application in
2010 to Senior Master for funds in court to be released to the applicant - Whether
applicant no longer a person under disability - Whether capacity to manage own
affairs - Test to be applied - Supreme Court (General Civil Procedure) Rules 2005
r77.01, r79.02 - Guardianship and Administration Act 1986, s66.
PRACTICE & PROCEDURE - Funds in court - application for return of funds and
property - Appeal from associate justice - De novo rehearing - Proper procedure
considered - Supreme Court (General Civil Procedure) Rules 2005 r1.15, r77.01,
r77.06 - Civil Procedure Act 2010 (Victoria) s47(1).
PRACTICE & PROCEDURE - Inherent jurisdiction - Parens patriae - Application for
return of funds and property in court - Whether capacity to manage own affairs
Erdogan, Cemal v Ekici, Necati
Dixon J
[2012] VSC 256
27/06/2012

CONTRACT - Oral agreement - Whether agreement legally enforceable - Variation
of agreement - Whether loss caused by breach
Toogood, Julianne & Jezabeel P/L v Simpson, Paul George & Simson Contracting
       P/L
McMillan J
[2012] VSC 258
22/06/2012

DEFAMATION - Letter by defendant concerning an affidavit of the plaintiff -
Investigation of facts in affidavit - Letter concerning judicial proceedings - Whether
pleaded imputations conveyed - Other defamatory imputation conveyed - Whether
other defamatory imputations are permissible variants of pleaded imputations -
Absolute privilege - Letter published on an occasion properly incidental to judicial
proceedings and necessary for them - Qualified privilege - Malice - No malice
established - Defence of triviality - Defamation Act 2005, s27, s30 and s33
Cunliffe, Ian George v Woods, Patrick
Beach J
[2012] VSC 254
18/06/2012
LAND ACQUISITION AND COMPENSATION - Leased land - Notice of
compulsory acquisition published in Government Gazette - Construction of notice -
Principles - What interest(s) acquired - What interest(s) divested - Whether tenant's
leasehold interest acquired or divested - Surrounding circumstances - Whether
extrinsic material can be considered - Whether private correspondence from acquiring
authority can be considered - Held: Leasehold interest divested and tenant entitled to
compensation accordingly - Land Acquisition and Compensation Act 1986 Parts I and
II and s30 and s81; Land Acquisition and Compensation Regulations 1998 - Transfer
of Land Act 1958 s53, s54; Interpretation of Legislation Act 1984 s35, s38, s53;
Victorian Urban Development Authority Act 2003, s42.
ESTOPPEL - Whether tenant estopped from enforcing statutory right to compensation
- No relevant reliance by acquiring authority - No detriment - Estoppel not established
Obeid, Samir v Victorian Urban Development Authority
Cavanough J
[2012] VSC 251 (1st revision 18/06/12)
18/06/2012




Supreme Court of Victoria – Recent Judgments Bulletin No. 13/2012            Page - 13 -
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NEGLIGENCE - Appeal from the Magistrates' Court on questions of law - Motor
vehicle accident - Whether Magistrate biased - Whether Magistrate erred in admitting
evidence of insurance assessors - Magistrate's conclusion open on the facts -
Magistrates' Court Act 1989 s109 - Appeal dismissed
Velissaris, Constantinos v Yang, Chris
McMillan J
[2012] VSC 257
19/06/2012

PRACTICE & PROCEDURE - Appeal - Appeal from the Magistrates' Court to the
Supreme Court on question of law - Nature of the appeal - What constitutes a question
of law - Importance of framing a question of law - Whether question of law raised-
Magistrates' Court Act 1989, s109 - Supreme Court (General Civil Procedure) Rules
2005 (Victoria), Rule 58.08.
DAMAGES - Motor vehicle property damage - Application of principles for
measuring damages
Zogiannis, Billy v Stevens, John
Davies J
[2012] VSC 264
19/06/2012

PRACTICE & PROCEDURE - Pleadings - Statement of Claim - Failure to plead
material facts - Failure to properly particularise material facts - failing to plead or
particularise fraud properly - Pleading embarrassing - Pleading likely to delay the fair
trial of the proceeding - Pleading manifestly defective - Supreme Court (General Civil
Procedure) Rules 2005, r23.02.
PRACTICE & PROCEDURE - Application for summary judgment - Whether
proceeding has no real prospects of success - Whether proceeding has no real
prospects of success against particular defendants - Supreme Court (General Civil
Procedure) Rules 2005, r23.01 and r23.03 - Civil Procedure Act 2010, s62 and s63.
PRACTICE & PROCEDURE - Amendment - Application to join additional plaintiff -
Application to join company as additional defendant - Company not represented by a
lawyer - Worldwide Enterprises Pty Ltd v Silberman & Anor (2010) 26 VR 595
applied
Knorr, Andrew Karl v Commonwealth Scientific And Industrial Research
         Organisation (CSIRO); Forest And Wood Products Research And
         Development Corporation; Commonwealth Of Australia, Boral Timber
         (Boral Ltd) (ACN 008 421 761) and Allen Taylor & Co Ltd (ACN 000 003
         056); University Of Tasmania (ARBN 055 647 848); Mallesons Stephen
         Jaques; Forest and Wood Products Australia Ltd (ACN 127 114 185);
         MBAC Consulting Group P/L (ACN 126 232 746) & State of Victoria (No.
         2)
Beach J
[2012] VSC 268
20/06/2012

TORTS - Negligence - Medical practitioners - Common law standard of care for
professionals - Rogers v Whitaker - Statutory prescribed standard of peer professional
opinion - Construction of statute - Wrongs Act 1958 (Vic), s59 - Whether s59
supersedes common law standard - Whether s59 creates a statutory defence to
common law negligence - Whether s59 imposes evidentiary burden or legal burden on
defendant - Civil Liability Act 2002 (New South Wales), s5O
Brakoulias, Toula v Karunaharan, Chitra (Dr.) (Ruling)
Macaulay J
[2012] VSC 272
20/06/2012



Supreme Court of Victoria – Recent Judgments Bulletin No. 13/2012            Page - 14 -
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CRIMINAL DIVISION

CRIMINAL LAW - Evidence - Attempted murder - Tape recording made by principal
prosecution witness tendered in evidence - Witness claiming tape was of
circumstances of alleged shooting - Cross-examination as to time recording made -
Cross-examination based on telephone device records in depositions - Prosecution
giving notice of additional witness to explain time of recording made - Whether unfair
prejudice to accused - Procedural unfairness held to outweigh probative value of new
evidence - Evidence not admitted - Evidence Act 2008 (Victoria) 2008 s137
Director of Public Prosecutions v Haddara, Waleed (Ruling No 2)
Kaye J
[2012] VSC 277
15/06/2012

CRIMINAL LAW - Evidence - Attempted murder - Tape recording of conversation at
time of shooting - Comparison with recording of interview of accused by police -
Whether recording of interview admissible - Accused suffering from intellectual
impairment - Whether accused had adequate capacity to exercise right to silence -
Evidence Act 2008 (Victoria) s90, s137
Director of Public Prosecutions v Haddara, Waleed
Kaye J
[2012] VSC 276
05/06/2012

CRIMINAL LAW - No case to answer application - Murder - R v Cengiz [1998] 3
VR 720 applied - Whether the jury could rationally exclude the innocent
manslaughter hypothesis - Application refused
The Queen v Bond, Shane (Ruling No 15)
T Forrest J
[2012] VSC 119
02/04/2012

CRIMINAL LAW - Plea of Guilty - Manslaughter - Walking into path of motorcycle
- Delay - Remorse - TES: 5 years' imprisonment with a non parole period of 3 years
The Queen v Nicholson, Nigel Willoughby
Curtain J
[2012] VSC 263
15/06/2012

CRIMINAL LAW - Sentence - Defensive homicide - 8 years imprisonment with
minimum non-parole period of 5 years 3 months
The Queen v Talatonu, Iafeta
T Forrest J
[2012] VSC 270
22/06/2012

EVIDENCE - Hearsay - Police information report - Business records exception -
Evidence Act 2008, s69
The Queen v Bond, Shane (Ruling No 14)
T Forrest J
[2012] VSC 92
15/03/2012




Supreme Court of Victoria – Recent Judgments Bulletin No. 13/2012          Page - 15 -
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