LIBRARY BULLETIN | 29 May 2015 | Issue 3
Library
Bulletin
29 May 2015
Library News
Magna Carta celebrations at the Law Library of Victoria
The Law Library of Victoria is hosting an exhibition and ―LiberTea‖ event
to celebrate and reflect on the 800th anniversary of the sealing of the
Magna Carta.
The exhibition will be on display in the Supreme Court Library and will
include a timeline of events, reproduction of the Magna Carta and
relevant books from our collection.
The LiberTea event will be held on Monday 15 June, 5.00pm – 6.30pm,
and will be followed by a discussion on ―what happened then, and does
it matter now?‖, presented by Justice Maxwell, President of the Court of
Appeal and Professor Sarah Joseph from Monash University. There are no
public tickets left for the event, however there is still limited seating
available for judicial staff. Please contact Michelle Bendall if you would
like to attend this event, [email protected]
LEGAL LUMINARIES AND THEIR
BOOKS
Friday 24 July 1:00pm – 2:00pm
The Law Library of Victoria presents a panel
who will discuss their tales and passions of
book collecting.
Panellists:
The Honourable Justice Timothy Ginnane
Supreme Court of Victoria
Emeritus Professor Louis Waller
Monash University
Mr Jason Taliadoros
Deakin University
For more information and registration go to:
http://www.eventbrite.com.au/e/legalluminaries-and-their-books-tickets16589453502
MELBOURNE RARE BOOK WEEK
Melbourne Rare Book Week is on 16-26 July
2015.
Rare Book Week features a series of free
events and exhibitions, culminating in the
popular Rare Book Fair, held at the
Unviersity of Melbourne‘s Wilson Hall.
Programs and bookmarks are available in the
Supreme Court Library.
See the website for more information:
http://www.rarebookweek.com/
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LIBRARY BULLETIN | 29 May 2015 | Issue 3
Contents
New Books
3
Legislation
4
Victorian Bills
Proclamations
4
4
High Court Cases
5
Victorian Supreme Court Cases
6
Court of Appeal
Commercial Court
Commercial and Equity Division
Common Law Division
Criminal Division
Article
Administrative Law
Alternative Dispute Resolution
Constitutional Law
Contract Law
Courts
Criminal Law and Procedure
Equity
Legal Education
Practice and Procedure
Trusts
6
15
17
18
20
21
21
21
21
21
21
21
22
22
22
22
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LIBRARY BULLETIN | 29 May 2015 | Issue 3
New Books
There have been no new books received by the Library since the last Bulletin.
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LIBRARY BULLETIN | 29 May 2015 | Issue 3
Legislation
Victorian Bills
The following Bills have received a 2nd reading:
Alcoa (Portland Aluminium Smelter) (Amendment) Act
Amendment Bill 2015
Children, Youth and Families Amendment (Restrictions on
the Making of Protection Orders) Bill 2015
Court Services Victoria and Other Acts Amendment Bill 2015
Crimes Amendment (Repeal of Section 19A) Bill 2015
Delivering Victorian Infrastructure (Port of Melbourne Lease
Transaction) Bill 2015
Judicial Entitlements Bill 2015
Planning and Environment (Recognising Objectors) Bill 2015
Victoria Police Amendment (Validation) Bill 2015
Proclamations
PENALTY INTEREST
RATE CHANGE
Victoria
Victorian Civil and Administrative Tribunal (Amendment No.
12) Rules 2015 No. 37/2015 (VGG S114 20.05.2015)
Credit (Commonwealth Powers) Act 2010 No. 11/2010
o Division 15 of Part 3 of the Act comes into operation
on 1 June 2015 (VGG S122 26.05.2015)
The
Penalty
interest
rate
(applying to debts arising from a
civil judgment debt or court
order) has been reduced from
10.5 percent per annum to 9.5
percent per annum effective 1
June 2015.
(VGG G18 07.05.2015).
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LIBRARY BULLETIN | 29 May 2015 | Issue 3
High Court Cases
There have been no High Court cases since the last Bulletin.
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LIBRARY BULLETIN | 29 May 2015 | Issue 3
Victorian Supreme Court Cases
Court of Appeal
ADMINISTRATIVE LAW – Application for leave to appeal a decision of the Vice President of
the Victorian Civil and Administrative Tribunal dismissing an application to reconstitute
the Tribunal pursuant to s 108 of the Victorian Civil and Administrative Tribunal Act 1998 –
Whether Tribunal erred in failing to order a reconstitution of the Tribunal on the basis of
a reasonable apprehension of bias or denial of procedural fairness – Whether an
application for leave to appeal under s148 of the 1998 Act is ‗an application for leave to
appeal under section 14A‘ of the Supreme Court Act 1986 – Whether ‗real prospect of
success‘ test under s14C of the 1986 Act applies to an application for leave to appeal
under s148 of the 1998 Act – Leave to appeal granted and appeal allowed – Reconstitution
of Tribunal ordered.
Ikosidekas, Peter v Karkanis, Kathy, Ikosidekas, George, Tzouzidis, Janoula
Mandia JA and Kyrou JA
[2015] VSCA 121
27/05/2015
APPEAL – JUDICIAL REVIEW – Application for extension of time to commence judicial
review proceedings – Special circumstances must be established if time to be extended –
Strength of case for judicial review to be taken into account in determining if special
circumstances made out – Non-publication direction made under Major Crime
(Investigative Powers) Act 2004 – Direction rescinded to enable coercively obtained
evidence to be used in prosecution of alleged co-offender – Coercive powers order expired
at time of rescission – Whether non-publication direction can be revoked after expiry of
coercive powers order – Instrument of delegation ―in respect of‖ coercive powers order –
Whether delegate empowered to rescind non-publication direction – Major Crime
(Investigative Powers) Act 2004 s4, s43 – Supreme Court (General Civil Procedure) Rules
2005 r56.02 – The Chief Examiner v Mary Brown (a pseudonym) [2013] VSCA 167, AJH v
Chief Examiner (2011) A Crim R 370, Balmer and Associates v VLA [2012] VSC 536.
PRACTICE AND PROCEDURE – Appellate courts – Discretion – Point not argued before
associate judge nor in appeal before judge in Trial Division – Whether merits of case
outweigh need for finality in litigation – Civil Procedure Act 2010 ss7–9.
PRACTICE AND PROCEDURE – Leave to appeal – Real prospect of success but merits of case
weak and point not argued before judge in Trial Division – Discretion exercised to refuse
leave – Supreme Court Act 1986 s14C, Kennedy v Shire of Campaspe [2015] VSCA 47.
Glass, David (A Pseudonym) v The Chief Examiner & Ors
Santamaria JA, Ferguson JA, and McLeish JA
[2015] VSCA 127
29/05/2015
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LIBRARY BULLETIN | 29 May 2015 | Issue 3
COSTS – Leave to appeal against costs order – Trial below split into two stages – Whether
trial judge erred in not awarding costs of the first hearing in favour of parties successful in
the first hearing who failed overall – Whether issues dominant or separable – Effect of
reversal of such findings on appeal – Calderbank offers – Whether any error in exercise of
judge‘s discretion in awarding indemnity costs – Leave to appeal refused.
Protec Pacific P/L (ACN 009 534 552) v Steuler Services GmbH & Co KG [No 2]; BHP
Billiton Olympic Dam Corporation Ltd (ACN 007 835 761) v Steuler Services GmbH &
Co KG [No 2]
Tate JA, Santamaria JA, and Kyrou JA
[2015] VSCA 123
28/05/2015
COSTS – Unsuccessful application for probate of will – Appeal from trial division dismissed
– Appellants‘ costs of the trial division proceeding paid out of the estate – Costs of the
trial not disturbed – Whether appellants entitled to costs of appeal to be paid from the
estate – Effect of costs order on beneficiary of estate not party to the proceeding.
Veall, Arthur Rowland and Veall, Alexis Jane Roche v Veall, Kim Louise
Santamaria JA, Beach JA, and Kyrou JA
[2015] VSCA 122
29 May 2015
CRIME – Sentence – Manifest inadequacy – Intentionally causing serious injury – Offender
stabbed unarmed victim 27 times in victim‘s own home – Offending unexplained –
Offender suffers post-traumatic stress disorder, major depressive disorder and an acquired
brain injury – Not insignificant risk of re-offending – Offender sentenced to 2 years‘
imprisonment with 15 month non-parole period and 18 month community correction order
– Sentence low having regard to the nature of offence and the seriousness of this
offending – R v Verdins (2007) 16 VR 269 applicable but mental abnormalities had
countervailing effect due to offender‘s treatment resistance and risk of re-offending –
Offender re-sentenced to 6 years‘ imprisonment with 3 years and 6 months non-parole
period.
Director of Public Prosecutions v Kemp, Jonathan
Whelan JA, Santamaria JA, and Beach JA
[2015] VSCA 108
19/05/2015
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LIBRARY BULLETIN | 29 May 2015 | Issue 3
CRIMINAL LAW – Appeal – Conviction – Joint trial – Four accused (D1, D2, D3, D4) – Armed
robbery, aggravated burglary, intentionally cause serious injury – Joint criminal enterprise
– Application for separate trials refused – Victim (J) identified each accused as having
participated – Additional evidence admissible only against D2 and D3 respectively –
Whether additional evidence impermissibly enhanced credibility of J in case against D1 –
Jury invited by prosecutor to view J‘s credibility as enhanced – Jury invited by prosecutor
to reason from acceptance of evidence not admissible against D1 to finding of guilty
against him – Judge endorsed invitation – Whether breach of separate consideration
requirement – Whether misuse of inadmissible evidence – Conviction of D1 quashed –
Retrial ordered – Whether conviction of D2 unsafe and unsatisfactory – Conviction of D2
affirmed.
CRIMINAL LAW – Appeal – Sentence – Armed robbery, aggravated burglary, intentionally
cause serious injury – Total effective sentence 8 years‘ imprisonment with non-parole
period of 5 years – Delay of 5 years between offending and sentencing – Whether sentence
manifestly excessive – Sentence within range – Leave to appeal refused.
Tangaloa, Taniora v The Queen; Destanovic, Jasmin v The Queen
Maxwell P, Weinberg JA, and Beach JA
[2015] VSCA 113
21/05/2015
CRIMINAL LAW – Appeal – Conviction – Trafficking a commercial quantity of a drug of
dependence (cocaine) and knowingly dealing with the proceeds of crime – Whether the
prosecution changed the nature of its case – Whether the prosecutor‘s improper address
occasioned a substantial miscarriage of justice.
Basic, Kresmir v The Queen
Ashley JA, Redlich JA, and Priest JA
[2015] VSCA 109
22/05/2015
CRIMINAL LAW – Conviction – Appeal – Sexual offending against child complainant Whether substantial miscarriage of justice because of admission of ‗previous
representation‘ made by alleged victim – Whether ‗previous representation‘ concerned
events ‗fresh in the memory of the person‘ – Previous representation made 12 years after
the events – Hearsay rule applicable – Section 66 of the Evidence Act 2008 – Failure to
object to evidence – No substantial miscarriage of justice.
CRIMINAL LAW – Conviction – Appeal – Sexual offending against child complainant – Events
occurring in 1998 – Whether forensic disadvantage direction adequate – Section 61 of the
Crimes Act 1958 and s165B of the Evidence Act 2008 – Obligation of counsel to press
exception — Appeal allowed – Convictions quashed – New trial ordered.
Pate, Bryan (A Pseudonym) v The Queen
Weinberg JA, Priest JA and Dixon AJA
[2015] VSCA 110
20/05/2015
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LIBRARY BULLETIN | 29 May 2015 | Issue 3
CRIMINAL LAW – Conviction – Cultivation of a commercial quantity of cannabis – Total of 94
cannabis plants (36.42 kilograms) found at applicant‘s home – Applicant admitted to
growing cannabis for personal use, but denied having known or believed it would come to
commercial quantity – Only issue at trial was whether applicant intended to grow cannabis
in at least commercial quantity – Applicant had previously pleaded guilty to attempting to
traffic in commercial quantity of cannabis – Whether admission of evidence of prior
conviction resulted in substantial miscarriage of justice – Crown sought to lead evidence
as coincidence evidence under s98 of Evidence Act 2008 – Evidence did not constitute
coincidence evidence – Trial judge correct in ruling evidence relevant to accused‘s state
of mind and admissible on that basis – Not reasonably arguable that admission of evidence
resulted in substantial miscarriage of justice in any event – Leave to appeal refused.
CRIMINAL LAW – Conviction – During record of interview police indicated to applicant that
cannabis seized from home amounted to a trafficable quantity rather than commercial
quantity – Whether trial judge erred by directing jury to disregard relevant portion of the
record of interview on basis that it was not relevant – Evidence of what police may have
mistakenly believed regarding quantity of drugs not relevant to issues at trial – Ground not
reasonably arguable – Leave to appeal refused.
CRIMINAL LAW – Sentence – Applicant sentenced to 18 months‘ imprisonment with 2 year
CCO (300 hours community service) – Whether sentence manifestly excessive – Evidence
that drugs grown for personal use – Ground reasonably arguable – Leave to appeal granted.
Application for Leave to Appeal Against Sentence (Determined by a Single Judge
Pursuant to s315 of the Criminal Procedure Act 2009)
Ivanoff, Jason Uri v The Queen
Weinberg JA
[2015] VSCA 116
21/05/2015
CRIMINAL LAW – Interlocutory Appeal – Sexual penetration of a child aged under 10 years
or between 10 and 16 years – Whether evidence coincidence evidence – Whether evidence
has significant probative value – Whether the probative value of the evidence substantially
outweighs any prejudicial effect it may have on the accused – Evidence Act 2008, s98(1)
and s101(2) – Leave to appeal granted and appeal allowed.
Harris, Ramon (A Pseudonym) v The Queen
Priest JA, Kaye JA, and Croucher AJA
[2015] VSCA 112
22/05/2015
CRIMINAL LAW – Sentence appeal – ‗White collar‘ offender – Relevance of reasoning in DPP
v Bulfin [1998] 4 VR 114 to community correction orders in light of Boulton v The Queen
[2014] VSCA 342 – Reasoning in DPP v Bulfin continues to be relevant – Appeal dismissed.
Dyason, Carol Maree v The Queen
Whelan JA, Santamaria JA, and Beach JA
[2015] VSCA 120
26/05/2015
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LIBRARY BULLETIN | 29 May 2015 | Issue 3
CRIMINAL LAW – Sentence – Appeal against sentence – Charges of burglary and armed
robbery – Different sentences – Parity – Whether there was a disparity between the
appellant's sentence and the sentence of a co-accused – Whether disparity gave rise to
justifiable sense of grievance – Co-accused sentenced in respect of more offences – Coaccused pleaded guilty earlier, offered to give evidence against appellant, gave evidence
against appellant, and sentenced as a young offender – No disparity giving rise to
justifiable sense of grievance – Appeal dismissed.
Collins, Christopher v The Queen
Whelan JA, Santamaria JA, and Beach JA
[2015] VSCA 106
18/05/2015
CRIMINAL LAW – Sentence - Appeal against sentence – Multiple offences – Armed robbery –
Aggravated burglary – Burglary – Intentionally causing serious injury – Theft – Pleas of
guilty – Appellant suffering from mental impairment – No prior convictions – Very serious
offending – Principles referred to in R v Verdins (2007) 16 VR 269 engaged – Totality –
Whether individual sentences, orders for cumulation or total effective sentence of nine
years with non-parole period of seven years manifestly excessive – Sentences and orders
not manifestly excessive – Appeal dismissed.
Mahat, Redzhuan Bin v The Queen
Whelan JA, Santamaria JA, and Beach JA
[2015] VSCA 111
19/05/2015
CRIMINAL LAW – Sentence – Appellant convicted of one count of attempted armed robbery
and two counts of armed robbery – Total effective sentence of 6 years‘ imprisonment with
non-parole period of 3 years and 5 months – Co-offender who pleaded guilty received total
effective sentence of 5 years and 6 months‘ imprisonment with non-parole period of 3
years – Whether disparity gives rise to justifiable sense of grievance – Appellant had been
victim of rape three months prior to offending – Victim impact statement in relation to
that incident tendered as fresh evidence on appeal – Modest reduction in sentence
warranted in light of that evidence – Re-sentenced to same sentence as co-offender.
McLean, Lisa (A Pseudonym) v The Queen
Weinberg JA and Kyrou JA
[2015] VSCA 104
18/05/2015
CRIMINAL LAW – Sentence – Community Correction Order – Whether period of operation of
order manifestly excessive – Applicant sentenced on four charges of obtaining property by
deception – Co-offender sentenced on one charge of theft – Whether judge erred by
refusing to apply parity principle – Application of principle in circumstances of case –
Leave to appeal granted – Appeal dismissed.
Hamoud, Mohamed Hishem v The Queen
Ashley JA and Priest JA
[2015] VSCA 114
20/05/2015
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LIBRARY BULLETIN | 29 May 2015 | Issue 3
CRIMINAL LAW – Sentence – Crown appeal – Recklessly causing serious injury – ‗Glassing‘ –
Unprovoked attack with bottle – Alcohol-fuelled violence – Prior convictions for violence –
Breach of suspended sentence – Sentence of 18 months‘ imprisonment for glassing
manifestly inadequate – Appeal allowed – Resentenced to 3 years and 6 months‘
imprisonment – Winch v The Queen (2010) 27 VR 658 applied.
Director of Public Prosecutions v Dix, Warren
Maxwell P, Weinberg JA, and Beach JA
[2015] VSCA 118
25/05/2015
CRIMINAL LAW – Sentence – Director‘s appeal – Murder – Whether sentence of 18 years
with non-parole period of 13 years and 6 months manifestly inadequate – Principles to be
applied in Director‘s appeals – Comparable cases – Use of ‗like‘ cases – Relevance of
likelihood of deportation at conclusion of sentence – Sentence manifestly inadequate –
Residual discretion – Onus of proof – CMB v Attorney-General (NSW) (2015) 317 ALR 308
considered – Appeal allowed – Respondent resentenced to 22 years with non-parole period
of 17 years – s289, s290 Criminal Procedure Act 2009.
Director of Public Prosecutions v Zhuang, Huajiao
Redlich, JA, Priest JA, and Beach JA
[2015] VSCA 96
13/05/2015
CRIMINAL LAW — Sentence — Guilty plea to offences of recklessly causing serious injury
and affray— Young offender — Stomped on victim‘s head while he was on the ground
unable to defend himself — Victim suffered brain damage — Prior offence for intentionally
causing serious injury — Aggregate sentence of 3 years‘ and 8 months‘ imprisonment —
Whether manifestly excessive — Appeal dismissed.
Raveche, Miguel v The Queen
Redlich JA and Kyrou JA
[2015] VSCA 99
15/05/2015
CRIMINAL LAW — Sentence — Indictable offences of trafficking and possession of drugs and
summary offences of dealing with property suspected to be the proceeds of crime and
possession of prohibited weapon — Appellant sentenced to 5 years‘ and 3 months‘
imprisonment with 3 years‘ non-parole period — Judge pronounced an erroneous sentence
on one charge with an order for cumulation — Error corrected and head sentence reduced
but no adjustment was made to the non-parole period.
CRIMINAL LAW — Current sentencing practice — Summary offences of dealing with
property suspected to be the proceeds of crime, Crimes Act 1958 s195 — Summary offence
of possessing prohibited weapon, Control of Weapons Act 1990 s5AA — Individual
sentences and orders for cumulation for summary offences significantly above dispositions
in similar cases — Total effective sentence manifestly excessive — Appeal allowed —
Appellant resentenced to 4 years‘ and 9 months‘ imprisonment with 2 years‘ and 7
months‘ non-parole period.
Barwick, Shane v The Queen
Redlich JA and Kyrou JA
[2015] VSCA 100
15/05/2015
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LIBRARY BULLETIN | 29 May 2015 | Issue 3
CRIMINAL LAW – Sentence – Leave to appeal – Appeal – Armed robbery – Sentence of two
years‘ imprisonment with one year non-parole period – Whether manifestly excessive –
Whether specific error – Assumption by judge that appellant would be granted parole –
Sentence not manifestly excessive – Specific error established – Leave to appeal granted
only with respect to specific error – Appeal allowed – Appellant re-sentenced to nine
month‘s imprisonment and to community correction order of three years‘ duration after
release, with mandatory and additional conditions.
Mackay, Troy v The Queen
[2015] VSCA 125
27/05/2015
CRIMINAL LAW – Sentence – One charge of dangerous driving causing serious injury and one
charge of reckless conduct endangering serious injury – Applicant sentenced to 3 years‘
imprisonment – Offending gave rise to breach of suspended sentence of 6 months‘
imprisonment imposed some years earlier for false imprisonment – Sentencing judge
restored entirety of suspended sentence and ordered that it be served cumulatively upon
sentence imposed for driving offences – Sentencing Act 1991 s 83AR(3)(b) provided that a
restored suspended sentence is presumed to be served cumulatively upon any sentence of
imprisonment ‗previously imposed‘ – Meaning of ‗previously imposed‘ considered – At
sentencing hearing judge pronounced restoration of suspended sentence prior to imposing
sentences for driving offences – Whether as a result of order in which sentences
pronounced presumption of cumulation applicable – Ground not reasonably arguable –
Whether sentences manifestly excessive – Sentences clearly within range – Leave to
appeal refused.
Application for Leave to Appeal Against Sentence
Yehia, Mustafa v The Queen
Weinberg JA and Blue AJA
[2015] VSCA 119
21/05/2015
CRIMINAL LAW – Sentence – Reckless conduct endangering serious injury and recklessly
causing injury – Sentence of five months‘ imprisonment with community correction order
of 18 months‘ duration – Whether sentence manifestly excessive – Leave to appeal
refused.
Hutchinson, Andrew v The Queen
Ashley JA and Priest JA
[2015] VSCA 115
20/05/2015
CRIMINAL LAW – Sentence – Trafficking in a drug of dependence – Confession – Disclosure
of new information about a known trafficking offence which elevated it to an offence of
more serious gravity – Giretti charge – Application of the principle in Ellis [1986] 6 NSWLR
603 and Doran [2005] VSCA 271 – Failure to provide an appropriate demonstrable discount
– Guilty plea – Rehabilitation – Appeal allowed – Total effective sentence of six years and
six months‘ imprisonment reduced to five years‘ imprisonment with non-parole period of
two years and nine months.
Latina, Rosario v The Queen
Redlich JA and Kyrou JA
[2015] VSCA 102
15/05/2015
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LIBRARY BULLETIN | 29 May 2015 | Issue 3
CORPORATIONS – Deed of indemnity between company and its officer for legal costs and
expenses in defending criminal proceedings – Whether present entitlement to be
indemnified during proceedings and before verdict, or whether indemnity arises only at
the conclusion of proceedings if no finding of guilt – Effect of obligation to refund where
officer found guilty – Whether obligation under deed in breach of prohibition in
s199A(3)(b) of the Corporations Act 2001 (Cth) – Rickus v Motor Trades Association of
Australia Superannuation Fund Pty Ltd (2010) 265 ALR 112 applied – Leave to appeal
granted – Appeal dismissed.
Note Printing Australia Ltd (ACN 082 630 671) v Leckenby, John
Tate JA, Whelan JA, and Ferguson JA
[2015] VSCA 105
20/05/2015
DEFAMATION – Complaint concerning first respondent by applicant to Australian Press
Council – Respondents invited to respond to complaints – Email by first respondent to
second respondent – Email forwarded to Council – Defamatory imputations conceded –
Qualified Privilege – Whether trial judge erred in concluding that applicant had/failed to
establish malice – Triviality defence – Meaning of ‗harm‘ – Whether includes distress and
hurt feelings – Jones v Sutton (2004) 61 NSWLR 614 discussed – Application for leave to
appeal dismissed – Defamation Act 2005 s33.
Barrow, David Charles v Bolt, Andrew and The Herald Weekly Times P/L (ACN 004
113 973)
Ashley JA, Kaye JA and McLeish JA
[2015] VSCA 107
21/05/2015
REAL PROPERTY – Caveat – Application to remove caveat under Transfer of Land Act 1958,
s 90(3) – Caveat protected applicant‘s interest as purchaser of land – Applicant said to
have breached essential term of contract of sale of land by failing to settle purchase –
Where respondent entered into contract to sell property to third party after purporting to
rescind contract with applicant – Whether in ordering removal of caveat trial judge
correctly applied Transfer of Land Act 1958, s 90(3) – Piroshenko v Grojsman (2010) 27 VR
489, considered – Whether balance of convenience favoured removal of caveat – Leave to
appeal granted – Appeal dismissed.
CONTRACT – Contract for sale of land where time provided to be of the essence –
Applicant said to have failed to settle on time – Where respondent agreed to indefinite
extension of time – Where respondent said to have made time once again of the essence
by subsequent service of notice of default and rescission – Whether trial judge erred in
finding it likely that contract validly terminated following service of notice – Estate Agents
(Contracts) Regulations 2008, Form 2, General Conditions 27, 28, considered – Mehmet v
Benson (1965) 113 CLR 295; Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286;
Thornton v Bassett [1975] VR 407, applied.
Carbon Black Lab P/L (ACN 140 192 730) v Launer, Darryl
Santamaria JA, Ferguson JA, and McLeish JA
[2015] VSCA 126
29/05/2015
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RESTITUTION — Money paid under mistake of fact — Whether order for restitution would
be unjust — Change of position on faith of receipt — Whether recipient acted in good faith
on assumption entitled to deal with payment — Where third party forged respondent‘s
signature on loan and mortgage documentation —Where appellant money lender advanced
funds to third party in mistaken belief respondent had given security —Third party used
lent funds to pay deposit under contract of sale for other land without respondent‘s
knowledge — Respondent nominated as purchaser and used land as security for mortgage
— Where respondent would not have entered mortgage without belief third party paid
deposit with own funds — Mortgage entered on faith of receipt — Whether recipient would
be in worse position if ordered to make restitution than if funds never received — Where
land subsequently sold and respondent retained no proceeds of sale — Unjust to order
restitution — David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR
353 — Australian Financial Services and Leasing Pty Limited v Hills Industries Limited
(2014) 307 ALR 512
Southage P/L (ACN 050 240 965) v Vescovi, Lisa Angela
Warren CJ, Santamaria JA, and Ginnane AJA
[2015] VSCA 117
22/05/2015
TRUSTS – Transfer of land by husband to wife without monetary consideration – Where
husband used wife‘s name in fraudulent design to obtain finance on land in excess of its
true value – Whether natural love and affection constitutes valuable consideration –
Whether presumption of resulting trust arose – Whether presumption of advancement
rebutted – House v Caffyn [1922] VLR 67; Wirth v Wirth (1956) 98 CLR 228; Director of
Public Prosecutions (Vic) v Le (2007) 232 CLR 562, considered – Leave to appeal refused.
Ying, Xiao Hui v Perpetual Trustees Victoria Ltd (ACN 004 027 258)
Beach JA, Mcleish JA, and Dixon JA
[2015] VSCA 124
27/05/2015
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LIBRARY BULLETIN | 29 May 2015 | Issue 3
Commercial Court
EVIDENCE – Standard of proof – Civil proceedings – Whether signatures were forged –
Strength of evidence required to meet standard – Briginshaw v Briginshaw (1938) 60 CLR
336 applied.
EVIDENCE – Credibility and weight – Party‘s failure to adduce evidence on fact in issue –
Adverse inference – Application of Jones v Dunkel (1959) 101 CLR 298.
PRINCIPAL AND AGENT – Whether finance broker agent of lender – Whether broker acting
for borrower or lender – Sub-agent.
REAL PROPERTY – Torrens system – Registration – Indefeasibility of title – Exception in case
of fraud – Forged signature – Transfer of Land Act 1958 s42 – Followed Perpetual Trustees
Victoria Ltd v Xiao and anor [2015] VSC 21 – Fraud not imputed to lender – Russo v Bendigo
Bank Ltd [1999] 3 VR 376, Macquarie Bank Ltd v Sixty Fourth Throne Pty Ltd [1998] 3 VR
133, Pyramid Building Society (in liq) v Scorpion Holdings Pty Ltd [1998] 1 VR 188, Beatty v
Australian and New Zealand Banking Group Ltd [1995] 2 VR 301 and Australian Guarantee
Corporation Ltd v De Jager [1984] VR 483 considered.
REAL PROPERTY – Torrens system land – Whether registered mortgage secures amount
owing under forged loan agreement – Perpetual Trustees Victoria Ltd v Xiao and anor
[2015] VSC 21 followed and applied – Solak v Bank of Western Australia Ltd [2009] VSC 82
not followed.
SUBROGATION – Whether third party payer of an extinguished debt entitled to the benefit
of all contractual rights of previous lender – Equitable remedy – Held: not entitled to
interest at rate of previous lender.
PRACTICE AND PROCEDURE – Interest – Penalty Interest Rates Act 1983 (Vic) s2 – Supreme
Court Act 1986 (Vic) s58 – Whether ‗good cause to the contrary‘ for not awarding interest
on the statutory basis – Whether rate of interest should be calculated on a simple or
compounding basis – Talacko v Talacko [2009] VSC 579 applied.
CONTRACT – Default Interest Clause – Penalty – Robophone Facilities Ltd v Blank [1996]
1 WLR 1428 applied.
REAL PROPERTY – Claim under s110 of Transfer of Land Act 1958 (Vic) – Joint tenants –
Registration of mortgage – Signature of one mortgagor forged – Whether loss crystallises
before severance of joint tenancy.
Titles Strata Management P/L (ABN 32 001 119 331) v Nirta, Frank & Ors (according
to the schedule attached)
Daly AsJ
[2015] VSC 187
15/05/2015
INJUNCTION – Discharge of interlocutory injunction – Change of circumstances – Balance of
convenience – Possible obligations arising out of distribution agreement – Difficulty of
court supervising compliance – Lower risk of injustice if order ‗wrong‘.
Orora Ltd v Lindsay Australia Ltd
Riordan J
[2015] VSC 215
21/05/2015
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LIBRARY BULLETIN | 29 May 2015 | Issue 3
PRACTICE AND PROCEDURE – Subpoena to former solicitors of defendant – Claim for client
legal privilege – Whether privilege established – Whether privilege waived – Relevance to
issue – No relevance.
ABL Nominees P/L (ACN 106 756 521) (in its capacity as Trustee of the Lighthouse
Warehouse Trust No 8 (Environinvest Finance) & Ors (according to the attached
Schedule) v Pescott, Euan and Pescott, Euan (Plaintiff by Countercliam) v ABL
Nominees P/L (ACN 106 756 521) (in its capacity as Trustee of the Lighthouse
Warehouse Trust No 8 (Environinvest Finance) & ors (according to the attached
Schedule)
Derham AsJ
[2015] VSC 206
15/05/2015
PRACTICE AND PROCEDURE – application to amend statement of claim – whether a
company can be directly liable for a wrongful share transfer – claims arising from a
liquidation based on alleged breach of trust by the holding company of a shareholder –
insufficient and inconsistent pleading in multiple respects - leave to amend refused.
Rozenblit, Boris v Vainer, Michael and Vainer, Alexander
Lansdowne AsJ
[2015] VSC 234
28/05/2015
SOLICITORS – Receivers appointed to the practice of the defendant under the Legal
Profession Act 2004 – Proceeding by receivers to recover moneys paid from clients‘ trust
accounts to the solicitor‘s office account under s5.5.14 of the Act. Under s5.5.14 the
receivers were entitled to recover in defined circumstances payments made from the
trust account to a transferee that were unlawful or improper.
PRACTICE AND PROCEDURE – Whether defendant estopped from raising issues in defence
that had been decided adversely to him in the application by the Legal Services Board to
appoint receivers to the solicitor‘s practice and appeals from the decision to appoint
receivers to the solicitor‘s practice.
SOLICITORS – Receivers alleged that solicitor paid moneys from the trust accounts held on
behalf of clients to the solicitor‘s office account for disbursements incurred on behalf of
the clients that had already been paid from the clients‘ trust accounts – Whether the
payments from the trust accounts were unlawful or improper – Held the solicitor was
estopped from disputing that the payments were unlawful – Whether because of the
payments the solicitor became indebted or otherwise liable to the practice or the clients –
Held the solicitor was the practice and accordingly not indebted or otherwise liable to
himself - Held solicitor did not become indebted or otherwise liable to the clients as the
payments were for less than the amount of other outstanding fees due from the clients to
the solicitor – Claim dismissed.
SOLICITORS – Receivers alleged that solicitor paid moneys from the trust account held on
behalf of clients to the solicitor‘s office account for legal fees where the solicitor had not
entered into a costs agreement with the clients – Held claim not established.
SOLICITORS – Receivers alleged that solicitor had agreed to charge clients professional
fees on scale but failed to calculate the fee charged on scale – Whether term of costs
agreement that fees charged would be calculated on scale – Whether payments of moneys
from the trust account held on behalf of clients to the solicitor‘s office account to meet
legal fees charged to the clients were unlawful or improper – Held payments neither
unlawful nor improper – Whether if unlawful or improper the solicitor knew or believed
that the payments were unlawful or improper – Held solicitor not liable to pay to the
receivers all the moneys paid to meet the legal fees.
Page | 16
LIBRARY BULLETIN | 29 May 2015 | Issue 3
STATUTORY CONSTRUCTION – Meaning of knew or believed in s5.5.14 of the Act – Whether
knowledge encompasses constructive knowledge under principles of Barnes v Addy.
SOLICITORS – Receivers alleged, in the alternative, that the Court should find that the
solicitor recovered more in legal professional fees than he would if the legal professional
fees had been charged on scale – Held that receivers had failed to establish that on the
balance of probabilities the solicitor had done so.
PRACTICE AND PROCEDURE – Consideration of power of the Court to order accounts and
enquiries under O 52 of the Supreme Court (Civil Procedure) Rules 2005 to ascertain the
amounts by which the solicitor may have recovered more than he was entitled to charge
according to scale – Held no obligation on the solicitor to account to the receivers in the
circumstances – Held that the taking of accounts would not have been ordered.
SOLICITORS – Consideration of s3.3.20 of the Act and the circumstances in which a
solicitor may withdraw trust moneys held on behalf of the client for legal costs owing by
the client.
SOLICITORS – Consideration of the entitlement of a solicitor to exercise a lien over the
fruits of litigation – Whether the solicitor may recover fees for legal services under the
lien without a court order or otherwise complying with one or other of the procedures
provided for in s3.3.21(1)(b) of the Act.
SOLICITORS – Consideration of whether a solicitor may correct an entry or error in the
solicitor‘s office accounts and the consequences on any alleged breach of trust occasioned
by the entry.
SOLICITORS – Consideration of the distinction between a statutory deficiency under the
Act and an accounting deficiency.
SOLICITORS – Consideration of whether costing on scale likely to produce a lesser sum than
on time based costing.
RECEIVERS – Consideration of duty of receivers to inform the Court of all the relevant
circumstances relating to the claims they made against the solicitor.
Batrouney, Noel and Lyle, Andrew (in their capacity as receivers of the law practice
known as Hollows Lawyers ABN 32 840 058 016) v Forster, David Brian
Robson J
[2015] VSC 230
27/05/2015
Commercial and Equity Division
CONTEMPT – Disobedience of injunction – Date of service of order – Supreme Court
(General Civil Procedure) Rules 2005 r75.05, r75.11(1).
PRACTICE – Real property – Warrant of possession – Execution of previous warrants of
possession – Defendant re-entering property – Further warrant issued – Supreme Court
(General Civil Procedure) Rules 2005 r1.15, r69.03.
Equity-One Mortgage Fund Ltd (ACN 106 720 941) v Pepe, Luca Anthony Pepe (Also
Known as Pepe, Luca Anthony) and L.A.P Transport Services P/L in its Own Right and
as Trustee for the Luca Pepe Family Trust (ACN 088 384 570)
Ginnane J
[2015] VSC 161
21/05/2015
Page | 17
LIBRARY BULLETIN | 29 May 2015 | Issue 3
PRACTICE AND PROCEDURE — Application by the plaintiffs to use documents discovered by
the defendants in other proceedings brought by the plaintiffs relating to or arising out of
the winding up of the second plaintiff — Whether Court approval is required where the
party giving discovery consents to the application — Application granted — s27(b) of the
Civil Procedure Act 2010.
In the Matter of Bill Express Ltd (In Liquidation) (ACN 090 059 564)
Crosbie, Craig David and Carson, Ian Menzies (in their capacity as joint and several
liquidators of Bill Express Ltd (In Liquidation) ACN 090 059 564)) and Another as set
out in the Schedule of Parties v Prepaid Services P/L (ACN 094 689 219) and others as
set out in the Schedule of Parties
Robson J
[2015] VSC 225
16/04/2015
Common Law Division
ADMINISTRATIVE LAW – Extension of time to apply for leave to appeal VCAT decision –
Leave to appeal – Whether adequate explanation for the delay in applying – Whether
questions of law – Challenges to findings of fact – Whether findings of fact open on the
evidence – Whether real or significant argument that VCAT fell into error – Explanation
for the delay in applying for leave to appeal not adequate – No real or significant
argument that VCAT fell into error in a way significant to the ultimate finding – Leave to
appeal out of time refused – Victorian Civil and Administrative Tribunal Act 1998, s148(1)
and s148(5).
In the Matter of Section 148 of the Victorian Civil and Administrative Tribunal Act
1998
Between Advaland P/L (ACN 144 477 994) v Bitcon, Spencer John and Gaskell, Alan
Richard
Derham AsJ
[2015] VSC 235
29/05/2015
ADMINISTRATIVE LAW - Judicial review – Question referred to medical panel under s28LWE
of Wrongs Act 1958 – Panel giving determination outside the time prescribed by
s28LZG(3)(a) – whether determination valid.
Holloway, Kym v Department of Human Services (And others according to the
schedule attached)
McDonald J
[2015] VSC 184
14/05/2015
COSTS — Appropriateness of costs order where parties have each enjoyed some success
and some failure — No order as to costs save for costs reserved in respect of successful
adjournment application.
Burbank Australia P/L (ACN 007 099 8720) v Owners Corporation PS 447493 (No 2)
McDonald J
[2015] VSC 200
18/05/2015
Page | 18
LIBRARY BULLETIN | 29 May 2015 | Issue 3
JUDICIAL REVIEW – Conviction and fines for exceeding speed limit contrary to r 20 of the
Road Safety Rules 2009 – Adequacy of reasons – Road Safety Act 1986 s79, s81, s83, s83A.
Agar, Carl Paul v Senior Constable Petrov, David and County Court of Victoria
McDonald J
[2015] VSC 168
29/05/2015
PRACTICE AND PROCEDURE – Application for approval of settlement of group proceeding –
Supreme Court Act 1986 (Vic) Part 4A –Whether terms of settlement fair and reasonable –
Whether settlement distribution scheme fair and reasonable – Whether claim for legal fees
and disbursements reasonable – ‗Murrindindi class action‘– Settlement approved.
Rowe, Katherine v Ausnet Electricity Services (ACN 064 651 118) & Ors (according to
the attached Schedule) and Ausnet Electricity Services (ACN 064 651 118) & Ors
(according to the attached Schedule) (Plaintiff by Counterclaim) v ACN 060 674 580
P/L (ACN 060 674 580) & Ors according to the attached Schedule)
Emerton J
[2015] VSC 232
27/05/2015
PRACTICE AND PROCEDURE — Application to vary a freezing order over property of the
defendant — Freezing order had been given over proceeds of sale of a property at which
the defendant formerly conducted his legal practice — Defendant faced several legal
proceedings relating to the conduct of his practice — Evidence of substantial legal
expenses to defend those proceedings and other living expenses — Defendant a member of
a superannuation fund that holds a substantial share portfolio — Evidence that defendant
had been accessing assets of the superannuation fund — Defendant had not disclosed his
benefits in the fund in the application — Held onus on defendant to establish that he did
not have means to meet the expenses he would incur in defending the proceedings — Held
that defendant had not established that onus — Application dismissed.
Legal Services Board v Forster, David Brian
Robson J
[2015] VSC 136
01/04/2015
PRACTICE AND PROCEDURE – Discovery obligations – Effect of non-compliance with
discovery obligations – Application to set aside decision of Magistrates‘ Court on the basis
of the principles in Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 –
Inherent jurisdiction to set aside perfected judgment – Supervisory powers of the Supreme
Court.
North West Supermarkets P/L and Blake, Brendan Edward v The Leasing Centre (Aust)
P/L and the Magistrates’ Court of Victoria
Riordan J
[2015] VSC 212
21/05/2015
Page | 19
LIBRARY BULLETIN | 29 May 2015 | Issue 3
PRACTICE AND PROCEDURE – Vexatious litigant – General litigation restraint order –
Application for leave to commence legal proceedings – s55 Vexatious Proceedings Act 2014
– Whether there are reasonable grounds for the proposed proceeding.
ADMINISTRATIVE LAW – Application for order of certiorari quashing defendant‘s decision
not to allow the sale and use of e-cigarettes in Victorian prisons – Failure to take into
account relevant considerations – s20, s21, s112 Corrections Act 1986 – Duties relating to
security and welfare – Power to make regulations for the management, good order and
security of prisons.
Knight, Julian v Minister for Corrections
Zammit J
[2015] VSC 213
20/05/2015
TAXATION – Possession of land – Lessee and purchaser – Purchaser on credit or deferred
payment – Land Tax Act 2005 s13, s14, s15(1), s16(1) – Sale of Land Act 1962 s9AD – Yule v
Commissioner of Taxes [1918] NZLR 890 – Highlands Ltd v Deputy Commissioner of Taxes
(SA) (1931) 47 CLR 191 – HC Sleigh Ltd v Commissioner for Land Tax [1961] NSWR 1132 –
Cam & Sons Pty Ltd v Commissioner of Land Tax (1965) 112 CLR 139 – E Long & Co Pty Ltd
v Commissioner of Land Tax [1968] 2 NSWR 143 – Commissioner of State Revenue v Oakbee
Pty Ltd [2013] VSC 672 (11 December 2013).
Commissioner of State Revenue v Kameel P/L (ACN 006 636 442)
Croft J
[2015] VSC 229
28/05/2015
Criminal Division
CRIMINAL LAW – Bail – Multiple charges, including cultivating a commercial quantity of
cannabis – Exceptional circumstances – Nature and strength of crown case – Delay –
Welfare of applicant‘s young son – Risks of flight and re-offending not unacceptable – Bail
granted on conditions
In the Matter of an Application for bail under the Bail Act 1997
Cao, Hang v The Director of Public Prosecutions
Hollingworth J
[2015] VSC 198
19/05/2015
CRIMINAL LAW – Sentence – Two charges of arson causing death – Plea of Guilty – Fire lit as
an act of ―pay-back‖ and revenge – Residential area - One victim the estranged wife of
the accused - Remorse – Difficult and disadvantaged background - Prospects of
rehabilitation - Whether history of domestic violence an aggravating factor – Serious arson
offender – Sentencing Act Part 2A – No disproportionate sentence sought or imposed.
The Queen v Campbell, David John
Lasry J
[2015] VSC 181
01/05/2015
HEARSAY RULE – Section 59 Evidence Act 2008 – Exceptions to the hearsay rule – Whether
unfair prejudice outweighs probative value of representations - s65(2)(b), s65(2)(c),s66A
and s137 of the Evidence Act 2008.
The Queen v Lual, Bona
T Forrest J
[2015] VSC 201
08/05/2015
Page | 20
LIBRARY BULLETIN | 29 May 2015 | Issue 3
Article
Administrative Law
Contract Law
Judicial control of administrative actions Transparency - Administrative Procedure
Act (USA) – USA
Simon, W. “The organisational premises
of administrative law.” (2015) 78(1&2) L
& C P 61-100.
Commercial transactions – Intention –
Clarity - Mediation - Subject to contract –
Masters v Cameron - GR Securities v
Baulkham Hills Private Hospital - Australia
Spencer, D. “Landing in the right class of
subject to contract agreements.” (2015)
26(2) ADRJ 75-85
Judicial review - Proportionality –
Reasonableness
–
Wednesbury
unreasonableness - Bill of Rights - High
Court - Minister for Immigration and
Citizenship v Li
– Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth) UK – Canada - Australia
Boughey, J. “The reasonableness of
proportionality
in
the
Australian
administrative law context.” (2015) 43(1)
Fed L Rev 59-90.
Alternative Dispute Resolution
Court mediation - Parties – Nonparticipation - Australia
Buth, R. “Zombie mediations.”(2015)
26(2) 104-110.
Constitutional Law
Judicial politics - Judicial activism
Judicial review - Legalism – Historical
institutionalism - High Court - Legal history
– Research study - Galligan – Sir Anthony
Mason – Sir Owen Dixon - Engineers case Amalgamated Society of Engineers v
Adelaide Steamships Co Ltd - Australia
Roux, T. “Reinterpreting „The Mason
Court
Revolution‟:
a
historical
institutionalist account of a Judge-driven
constitutional
transformation
in
Australia.” (2015) 43(1) Fed L Rev 1-25.
Consumer credit - Regulation - Payday
lending - Short-term loans - Vulnerable
consumers - Debt – National Consumer
Credit Protection Act 2009 (Cth) - Australia
Serpell, A. “Protecting the desperate: the
regulation of payday lending.” (2015)
43(1) Fed L Rev 147-176
Courts
Appointments - Judiciary – Judicial
independence - Separation of powers –
Executive powers – Vice-regal roles – Public
confidence - Wainohu v New South Wales Commonwealth Constitution - Australia
Ananian-Welsh, R, and Williams, G.
“Judges in Vice-Regal roles.” (2015) 43(1)
Fed L Rev 120- 146
Criminal Law and Procedure
Sentencing
–
Supervision
orders
–
Rehabilitation - Criminal Justice Act 2003
(UK) - Offender Rehabilitation Act 2014
(UK) – UK
Clough J. “Criminal Legislation Update.”
(2015) 79(2) J Crim L 76-80
Loss of control – Anger trigger – Fear trigger
- Self-restraint - Coroners and Justice Act
2009 (UK) - UK
Parsons, S. “The loss of control defence –
fit for purpose?” (2015) 79(2) J Crim L
94-101
Page | 21
LIBRARY BULLETIN | 29 May 2015 | Issue 3
Criminal responsibility - Defences Diminished responsibility - Mens rea Involuntary intoxication – UK
Brooks, T. “Involuntary intoxication: new
six-step procedure.” (2015) 79(2) J Crim
L 138-146
Quistclose – Income – Capital - Barclays
Bank Ltd v Quistclose Investments Ltd Rochefoucauld v Boustead - UK
Liew, Y. “The wider gambit of the
Quistclose doctrine.” (2015) 9(1) J Eq 6693
Domestic violence – Victims – Victim
autonomy - Privacy - Domestic Violence
Protection Notices - Domestic Violence
Protection Orders - European Convention on
Human Rights - Human Rights Act 1998, Art.
8 - UK
Bessant, C. “Protecting victims of
domestic violence - have we got the
balance right?” (2015) 79(2) J Crim L
102-121
Equity
Unconscionable conduct – Conscience Unconscionability – Definitions – Reasoning Judicial method - UK - Australia
Havelock,
R.
“Conscience
and
unconscionability in modern equity.”
(2015) 9(1) J Eq 1-29
Legal Education
Curriculum - Arbitration – Access to Justice
– Priestley 11 - Australia
Collins, P. “Resistance to the teaching of
ADR in the legal academy.” (2015) 26(2)
ADRJ 64-74
Practice and Procedure
Anonymity orders – Vulnerable – Infants –
Settlements - Personal injuries – JX MX v
Dartford & Gravesham NHS Trust - UK
O‟Sullivan, K. “Under cover.” (2015)
165(7651) NLJ 13
Trusts
Perpetuities - Statutory perpetuities Charitable trusts - Accumulation – Vesting Common law – Comparative analysis - SA –
NT –Tasmania – Australia
Murray, I. “Accumulation in charitable
trusts:
Australian
common
law
perpetuities rules.” (2015) 9(1) J Eq 3065
Page | 22