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Catchwords are the way in which we classify reports into a consistent taxonomy.

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Reports matching this catchword classification

O’REILLY v. EGAN1 VLR (Eq) 1

MOLESWORTH, J.·4 Mar 1875·Supreme Court of Victoria, In Equity3p·Vol 1 VLR (Eq) Pt 1

AdministrationCreditor's Suit — Motion to dismiss — Lis pendens — Costs.

DRYDEN v. DRYDEN1 VLR (Eq) 4

MOLESWORTH, J.·15 Mar 1875·Supreme Court of Victoria, In Equity3p·Vol 1 VLR (Eq) Pt 1

AdministrationNext of kin — Parties.

JOHNSON v. COLCLOUGH1 VLR (Eq) 31

MOLESWORTH, J.·8 Apr 1875·Supreme Court of Victoria, In Equity3p·Vol 1 VLR (Eq) Pt 1

Appeal to Privy CouncilSecurity — Receiver.

M’MILLAN v. THE QUEEN1 VLR (Eq) 253

MOLESWORTH, J.·14 Oct 1875·Supreme Court of Victoria, In Equity2p·Vol 1 VLR (Eq) Pt 1

AppealPrivy Council order giving costs — Motion to make judgment order of Supreme Court — Notice to respondent — Taxation of costs.

IN RE WOLFF1 VLR (IPM) 31

MR. JUSTICE MOLESWORTH made the order absolute, but without costs, as the order nisi did not ask for them; and granted administration, subject to an affidavit being filed that no further caveat had been entered up to the day of the grant.·27 May 1875·Supreme Court of Victoria, In its Insolvency, Probate, and Matrimonial Jurisdictions3p·Vol 1 VLR (IPM) Pt 1

AdministrationOrder nisi — Withdrawal of caveat — Costs.

IN THE WILL OF BROWN1 VLR (IPM) 41

MOLESWORTH, J.·13 Dec 1875·Supreme Court of Victoria, In its Insolvency, Probate, and Matrimonial Jurisdictions3p·Vol 1 VLR (IPM) Pt 1

"Administration Act 1872" (No. 427) s. 25Executor — Commission.

IN THE ESTATE OF HUSSEY1 VLR (IPM) 43

MOLESWORTH, J.·13 Dec 1875·Supreme Court of Victoria, In its Insolvency, Probate, and Matrimonial Jurisdictions2p·Vol 1 VLR (IPM) Pt 1

AdministrationNext-of-kin in England — Power of attorney — Substituted attorney.

IN RE MOULE1 VLR (L) 15

PER CURIAM·25 Mar 1875·Supreme Court of Victoria, at Law2p·Vol 1 VLR (L) Pt 1

AttorneyUndertaking to pay costs — Personal liability.

IN RE JONES1 VLR (L) 57

BARRY, J.·21 Jun 1875·Supreme Court of Victoria, at Law2p·Vol 1 VLR (L) Pt 1

Articled ClerkDeath of Master — Fresh articles not to relate back to such death.

REGINA v. O’FERRALL1 VLR (L) 81

BARRY, FELLOWS, and STEPHEN, JJ.·26 Jun 1875·Supreme Court of Victoria, at Law18p·Vol 1 VLR (L) Pt 1

"Audit Act" (22 Vic. No. 86), sec. 9"Criminal Law and Practice Statute 1864" (No. 233), sec. 141 — Embezzlement — Government servant — Collector of Imposts.

WELSHMAN v. ROBERTSON1 VLR (L) 124

BARRY, J.·6 Jul 1875·Supreme Court of Victoria, at Law7p·Vol 1 VLR (L) Pt 1

Apprenticeship indenturesDeed inartificially drawn — Amendment — Substituted agreement.

MIXNER v. BLAIR1 VLR (L) 191

BARRY, FELLOWS, and STEPHEN, JJ.·6 Sept 1875·Supreme Court of Victoria, at Law5p·Vol 1 VLR (L) Pt 1

ArbitrationMoney claims — Award — General balance.

IN RE MORRIS1 VLR (L) 262

BARRY, J.·30 Sept 1875·Supreme Court of Victoria, at Law2p·Vol 1 VLR (L) Pt 1

AttorneyAdmission — Examination — Sup. Ct. Rules — Rule 18 of Dec. 3, 1872.

PINNOCK v. HULL2 VLR (Eq) 18

MOLESWORTH, J.·24 Feb 1876·Supreme Court of Victoria, In Equity8p·Vol 2 VLR (Eq) Pt 1

Administration suitUnlimited company — Deceased shareholder — Distribution of assets — Liability of executors — "Statute of Trusts 1864" (No. 234), s. 60 — Advertisement.

NEWEY v. THE GARDEN GULLY CO.2 VLR (Eq) 26

MOLESWORTH, J.·13 Mar 1876·Supreme Court of Victoria, In Equity2p·Vol 2 VLR (Eq) Pt 1

Appeal to Privy CouncilSecurity — Costs of Application — Discretion of the Court.

MICHAELIS v. COONEY2 VLR (Eq) 63

MOLESWORTH, J.·8 Jun 1876·Supreme Court of Victoria, In Equity8p·Vol 2 VLR (Eq) Pt 1

AdministrationCreditor's suit — Decree — Second suit — Stay of proceedings.

DRYDEN v. DRYDEN2 VLR (Eq) 74

MOLESWORTH, J.·24 Jul 1876·Supreme Court of Victoria, In Equity12p·Vol 2 VLR (Eq) Pt 1

AdministrationDecree in ecclesiastical suit — Death in 1867 — Accounts of real and personal estate — Release — Statute of Limitations — Tasmanian law — Judicial notice.

DRYDEN v. DRYDEN2 VLR (Eq) 153

STAWELL, C.J.·29 Sept 1876·Supreme Court of Victoria, In Equity3p·Vol 2 VLR (Eq) Pt 1

AdministrationDecree in ecclesiastical suit — Accounts of real and personal estate — Release — Statute of Limitations — Inquiry in Master's office.

IN THE WILL OF THOM2 VLR (IPM) 19

MOLESWORTH, J.·23 Mar 1876·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions2p·Vol 2 VLR (IPM) Pt 1

Administration cum testamento annexo"Extracted copy of Will" — Affidavit in Scotland before Chief Magistrate — Commissioner of Supreme Court within reach.

ANDERSON v. STEWART2 VLR (L) 75

FELLOWS, J.·13 May 1876·Supreme Court of Victoria, at Law5p·Vol 2 VLR (L) Pt 1

AwardApparent inconsistency on its face — Bill of exchange given in pursuance thereof.

GARDINER v. M’CULLOCH2 VLR (L) 128

STAWELL, C.J.·4 Jul 1876·Supreme Court of Victoria, at Law2p·Vol 2 VLR (L) Pt 1

Appeal to Privy CouncilAppealable amount — Orders in Council.

EX PARTE DUFFY2 VLR (L) 142

STAWELL, C.J.·7 Jul 1876·Supreme Court of Victoria, at Law2p·Vol 2 VLR (L) Pt 1

AttorneyArticled clerk, member of Parliament during articles.

FLANNAGAN v. MATE2 VLR (L) 157

STAWELL, C.J.·1 Sept 1876·Supreme Court of Victoria, at Law4p·Vol 2 VLR (L) Pt 1

Architect's commissionPlans prepared on too expensive a scale.

CHAMBERS v. GREEN2 VLR (L) 194

STAWELL, C.J. STEPHEN and FELLOWS, JJ.·13 Sept 1876·Supreme Court of Victoria, at Law4p·Vol 2 VLR (L) Pt 1

AttorneyServices rendered in obtaining Parliamentary inquiry — No delivery of signed bill of costs — Insolvency pending the result of such services.

SMITH v. M’GANN2 VLR (L) 264

STAWELL, C.J. and FELLOWS, J.·7 Dec 1876·Supreme Court of Victoria, at Law3p·Vol 2 VLR (L) Pt 1

"Abattoirs Statute" (No. 356)Section 36 — Possession of skin with defaced brand — Surface brand on wool.

M’SWAIN v. M’MILLAN2 VLR (L) 271

STAWELL, C.J.·9 Dec 1876·Supreme Court of Victoria, at Law3p·Vol 2 VLR (L) Pt 1

Appeal to Privy CouncilAmount at issue — Interest on judgment.

IN RE KIRBY2 VLR (L) 285

STAWELL, C.J. and FELLOWS, J.·18 Dec 1876·Supreme Court of Victoria, at Law4p·Vol 2 VLR (L) Pt 1

Admission of attorneysRule 37 of 1865 — Certificate delivered before the time prescribed — Splitting examinations.

WEARNE v. FROGGATT2 VLR (Mining) 1

THE CHIEF JUDGE:·9 Mar 1876·Court of the Chief Judge of Court of Mines6p·Vol 2 VLR (Mining) Pt 1

AppealPlaint for trespass — Priority of claim — Issues settled.

MAHER v. O’SHEA3 VLR (Eq) 136

MOLESWORTH, J.·4 Sept 1877·Supreme Court of Victoria, In Equity3p·Vol 3 VLR (Eq) Pt 1

Administration suitAccounts — Practice — Costs.

IN RE ARMYTAGE3 VLR (IPM) 41

MOLESWORTH, J.·8 Mar 1877·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions3p·Vol 3 VLR (IPM) Pt 1

Appeal to Privy CouncilOrder for leave under 15 Vic., No. 10 — Security to satisfaction of Master — Second order.

IN THE ESTATE OF WOLFF3 VLR (IPM) 44

MOLESWORTH, J.·21 Mar 1877·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions6p·Vol 3 VLR (IPM) Pt 1

"Administration Act" (No. 427), sec. 17Supreme Court Rules, June 23, 1873, r. 16 — Administrator — Statement insufficient.

IN THE ESTATE OF ORR3 VLR (IPM) 51

MOLESWORTH, J.·8 May 1877·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions5p·Vol 3 VLR (IPM) Pt 1

AdministratorAccounts — Rule nisi complied with — Costs — Tender.

IN THE ESTATE OF NORTON3 VLR (IPM) 58

MOLESWORTH, J.·4 Jun 1877·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions2p·Vol 3 VLR (IPM) Pt 1

AdministrationReal estate — Heir-at-law.

IN RE AUSTIN3 VLR (IPM) 111

MOLESWORTH, J.·7 Nov 1877·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions3p·Vol 3 VLR (IPM) Pt 1

Administration de bonis non, durante minoritateNominee of sureties — Nominee of infants — Costs.

EX PARTE HOPKINS3 VLR (L) 115

Coram, STAWELL, C.J., and FELLOWS, J.·27 Jun 1877·Supreme Court of Victoria, at Law4p·Vol 3 VLR (L) Pt 1

AttorneyParliamentary agent — Bill of costs — Taxation — "Common Law Procedure Statute 1865" (No. 274), sec. 387.

LANGLEY v. HEPBURN3 VLR (L) 119

Coram, STAWELL, C.J., and FELLOWS, J.·28 Jun 1877·Supreme Court of Victoria, at Law7p·Vol 3 VLR (L) Pt 1

AttorneyLien for costs — Settlement between the parties.

M’MILLAN v. READ3 VLR (L) 284

Coram, STAWELL, C.J., and FELLOWS, J.·22 Nov 1877·Supreme Court of Victoria, at Law4p·Vol 3 VLR (L) Pt 1

AuctioneerDeposit to be paid to auctioneer as agent for vendor.

BOWMAN v. BOWMAN4 VLR (Eq) 114

MOLESWORTH, J.·11 Jul 1878·Supreme Court of Victoria, In Equity2p·Vol 4 VLR (Eq) Pt 1

AnswerEndorsement of name and address — Costs — Supreme Court Rules c. v., r. 32.

FORBES v. CLARTON4 VLR (Eq) 200

MOLESWORTH, J.·29 Jul 1878·Supreme Court of Victoria, In Equity2p·Vol 4 VLR (Eq) Pt 1

AttachmentNon-payment of costs — Power of attorney — Subpna.

DRYDEN v. DRYDEN4 VLR (Eq) 202

MOLESWORTH, J.·1 Aug 1878·Supreme Court of Victoria, In Equity6p·Vol 4 VLR (Eq) Pt 1

Administration suitForeign assets — Receiver pending taking of accounts — Costs.

IN RE AYRES’ TRUSTS4 VLR (Eq) 220

MOLESWORTH, J.·12 Sept 1878·Supreme Court of Victoria, In Equity3p·Vol 4 VLR (Eq) Pt 1

Appointment of new trusteesTrustee resident out of jurisdiction — Service.

SICHEL v. O’SHANASSY4 VLR (Eq) 250

MOLESWORTH, J.·26 Nov 1878·Supreme Court of Victoria, In Equity3p·Vol 4 VLR (Eq) Pt 1

Administration suitCosts — Interest on balances uninvested by trustee — Practice in Equity — Hearing on further directions — Evidence taken before Master.

BANK OF NEW SOUTH WALES v. JONES4 VLR (Eq) 253

MOLESWORTH, J.·9 Dec 1878·Supreme Court of Victoria, In Equity6p·Vol 4 VLR (Eq) Pt 1

Act No. 557, sec. 13Bill of sale — Affidavit of renewal — Manager of banking corporation — Inspector.

IN THE ESTATE OF CHAMBERS4 VLR (IPM) 21

MOLESWORTH, J.·14 Feb 1878·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions2p·Vol 4 VLR (IPM) Pt 1

AdministrationNext of kin — Out of jurisdiction — Married woman.

IN THE ESTATE OF TARRAWAY4 VLR (IPM) 53

MOLESWORTH, J.·7 Nov 1878·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions2p·Vol 4 VLR (IPM) Pt 1

Administration c. t. a.Attorney of administrator in England.

IN THE REAL ESTATE OF CROPLEY4 VLR (IPM) 61

MOLESWORTH, J.·21 Nov 1878·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions2p·Vol 4 VLR (IPM) Pt 1

AdministrationReal estate — Heir-at-law — Title — Conveyancing difficulties.

BLACKWOOD v. MAYOR, &c., OF ESSENDON AND FLEMINGTON4 VLR (L) 99

Coram, STAWELL, C.J., and BARRY, J. FELLOWS, J., was prevented from sitting upon the bench during this Term, by an illness which afterwards terminated fatally, on 8th April.·16 Apr 1878·Supreme Court of Victoria, at Law2p·Vol 4 VLR (L) Pt 1

Appeal to Privy CouncilCosts of transcript of appeal case — Jurisdiction of Supreme Court.

REGINA v. FREYER4 VLR (L) 131

Coram, STAWELL, C.J. AND BARRY, J.·27 Jun 1878·Supreme Court of Victoria, at Law2p·Vol 4 VLR (L) Pt 1

AttorneyAppearance for borough council — Mode of appointment — Double appointment.

IN RE ARMSTRONG AND CULLEY4 VLR (L) 178

Coram, STAWELL, C.J., and BARRY, J.·30 Jul 1878·Supreme Court of Victoria, at Law11p·Vol 4 VLR (L) Pt 1

ArbitrationReferring back award — Affidavit of some arbitrators that they were misled — Service — Appeal to Privy Council — Amount at issue.

CONNOR v. SPENCE4 VLR (L) 243

Coram, STAWELL, C.J. AND BARRY, J.·23 Jul 1878·Supreme Court of Victoria, at Law21p·Vol 4 VLR (L) Pt 1

Act of GodCarriage of goods by sea — Special contract — Obligation of shipowner, where ship not destroyed — Implied warranty of seaworthiness — Trover for goods sold by master without authority of shipper — Pleading — Breach of implied condition not previously set out — Practice — Plea held bad on demurrer after verdict for defendant upon it — Evidence — General average — Adjustment — Average stater.

URQUHART v. M’PHERSON4 VLR (L) 290

Coram, STAWELL, C.J., and BARRY, J.·13 Sept 1878·Supreme Court of Victoria, at Law2p·Vol 4 VLR (L) Pt 1

AppealPrivy Council — Application to make order of Privy Council an order of Supreme Court — Taxation of costs.

IN RE SANDILANDS4 VLR (L) 318

Coram, STAWELL, C.J., AND BARRY, J.·16 Sept 1878·Supreme Court of Victoria, at Law3p·Vol 4 VLR (L) Pt 1

Attachment for non-payment of costsImprisonment for debt abolition — Act No. 292, sec. 2.

RUTHERFORD v. POWELL4 VLR (L) 384

Coram, STAWELL, C.J., and BARRY, J.·17 Sept 1878·Supreme Court of Victoria, at Law6p·Vol 4 VLR (L) Pt 1

AttorneyLien for costs — Insolvency of client — Proof of debt — Set-off.

SMART v. O’CALLAGHAN4 VLR (L) 448

Coram, STAWELL, C. J., and BARRY, J.·29 Nov 1878·Supreme Court of Victoria, at Law3p·Vol 4 VLR (L) Pt 1

AppealPrivy Council — Lapse of appeal — Interest on judgment.

HENRY v. KIDD4 VLR (L) 466

Coram, STAWELL, C. J., and BARRY, J.·4 Dec 1878·Supreme Court of Victoria, at Law3p·Vol 4 VLR (L) Pt 1

AppealCounty Court — Alteration of appeal case by judge — Appeal before moving for nonsuit pursuant to leave reserved.

TIDYMAN v. COLLINS4 VLR (L) 478

Coram, STAWELL, C. J., and BARRY, J.·9 Dec 1878·Supreme Court of Victoria, at Law4p·Vol 4 VLR (L) Pt 1

Act No. 557, sec. 13Bill of sale — Affidavit of renewal — Independent covenant to pay.

DREDGE v. MATHESON5 VLR (Eq) 266

MOLESWORTH, J.·21 Oct 1879·Supreme Court of Victoria, In Equity4p·Vol 5 VLR (Eq) Pt 1

Administration suitAppointment of new trustees by executor of last acting trustee — Discretion — Interference by Court — Pleading — Parties — Executor not proving.

MARTIN v. KEANE5 VLR (Eq) 290

MOLESWORTH, J.·5 Nov 1878·Supreme Court of Victoria, In Equity2p·Vol 5 VLR (Eq) Pt 1

AdministrationPayment of balance in Master's hands to one creditor.

GRANT v. GRANT5 VLR (Eq) 314

MOLESWORTH, J.·2 Dec 1879·Supreme Court of Victoria, In Equity3p·Vol 5 VLR (Eq) Pt 1

Administration suitMaintenance — Discretion of trustees — Charities — Liberty to trustees to contribute to — Appointment of new trustee — Defendant — Abatement — Order of revivor.

IN THE ESTATE OF DUNOYER5 VLR (IPM) 73

MOLESWORTH, J.·5 Jun 1879·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions2p·Vol 5 VLR (IPM) Pt 1

AdministrationAttorney under power, of widow — Death of intestate in foreign country — Act of foreign court — Evidence of marriage.

IN RE SPURLING5 VLR (IPM) 86

MOLESWORTH, J.·23 Oct 1879·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions2p·Vol 5 VLR (IPM) Pt 1

AdministrationRule nisi for attachment — Omission to file accounts — Regularity of materials.

REGINA v. ALLEY5 VLR (L) 151

Coram, STAWELL, C.J., BARRY, J., and STEPHEN, J.·30 Jun 1879·Supreme Court of Victoria, at Law3p·Vol 5 VLR (L) Pt 1

AttorneyDebt — Set-off — Bill of costs — Signed bill.

BATCHELOR v. SMITH5 VLR (L) 176

Coram, STAWELL, C.J., BARRY, J., and STEPHEN, J.·15 Jul 1879·Supreme Court of Victoria, at Law4p·Vol 5 VLR (L) Pt 1

Accidental fireLiability for its spread to neighbour's land.

IN RE BACKHAUS5 VLR (L) 184

Coram, STAWELL, C.J., BARRY, J., and STEPHEN, J.·16 Jul 1879·Supreme Court of Victoria, at Law4p·Vol 5 VLR (L) Pt 1

ArbitrationProviso for reference, in lease — No appointment in writing of arbitrator.

THE CHRYSOLITE HILL Q.M. CO. REGD. v. THE SANDHURST AND ST. ARNAUD CHRYSOLITE TRIBUTE CO. LIMD.5 VLR (L) 242

Coram, STAWELL, C.J., BARRY, J., and STEPHEN, J.·30 Aug 1879·Supreme Court of Victoria, at Law6p·Vol 5 VLR (L) Pt 1

AwardFinding of two sums in the alternative, subject to question of law — Acceptance of smaller sum.

DAVIDSON v. BROWN5 VLR (L) 288

PER CURIAM STAWELL, C.J., BARRY and STEPHEN, JJ. .·2 Sept 1879·Supreme Court of Victoria, at Law2p·Vol 5 VLR (L) Pt 1

AppealCounty Court — Nonsuit in deference to opinion of judge.

IN RE FOWLER AND SINNOTT5 VLR (L) 320

STAWELL, C.J., and BARRY, J.·10 Sept 1879·Supreme Court of Victoria, at Law8p·Vol 5 VLR (L) Pt 1

ArbitrationMisconduct of umpire — Setting aside award — Communicating with witness in absence of opposite party — Affidavit of umpire as to what passed.

RE WAYTH5 VLR (L) 389

STAWELL, C.J., and BARRY, J.·22 Nov 1879·Supreme Court of Victoria, at Law2p·Vol 5 VLR (L) Pt 1

AttorneyUnlawful conveyancing — Agreement for sale of goodwill and lease of hotel — 11 Vict. (No. 33), sec. 13.

ROBERTSON v. MOHABEER5 VLR (L) 482

PER CURIAM.·9 Dec 1879·Supreme Court of Victoria, at Law3p·Vol 5 VLR (L) Pt 1

AttachmentNon-payment of costs under interlocutory order.

RE M’KINLEY AND WILLIAMS5 VLR (L) 569

Higinbotham moved the admission of Henry M’Kinley to practise as attorney, &c. The applicant had complied with the Rules in all respects, but he had not posted notice of his intention to apply for admission, at the office of the Prothonotary and at the Supreme Court, before the first day of this Term. There is nothing in the Rules, either of 23rd December, 1865, or of 3rd December, 1872, requiring this to be done; it appears to be merely a practice which probably has survived from the repealed Rules of 1854 on the subject. The applicant, as soon as he became aware of it, posted his notice early on the first day of Term; so that he was only a few hours late. The only portion of the Rules on which such a practice can be sustained is the concluding portion of Rule 24 (of 3rd December, 1872), which requires the applicant to "give notice by advertisement and otherwise, and in other respects comply with these Rules as required;" and in schedule H, he has to swear "that I have caused to be posted and published the notices required by the Rules of this Honourable Court, and otherwise in all respects complied therewith;" but there is nothing to show that this particular posting is required.·23 Dec 1879·Supreme Court of Victoria, at Law2p·Vol 5 VLR (L) Pt 1

AttorneyAdmission — Rules of 1872, r. 24 — Posting, at Prothonotary's office and at Supreme Court, of notice of intention to apply.

GIBBS v. GIBBS6 VLR (Eq) 30

MOLESWORTH, J.·20 Feb 1880·Supreme Court of Victoria, In Equity3p·Vol 6 VLR (Eq) Pt 1

Administration suitWill giving discretion to trustees to invest — Investment after decree.

HUTCHISON v. HUTCHISON6 VLR (Eq) 44

MOLESWORTH, J.·31 Mar 1880·Supreme Court of Victoria, In Equity4p·Vol 6 VLR (Eq) Pt 1

AdministrationHusband and wife — Loan by wife to husband — Separate estate.

WARREN v. PERREY6 VLR (Eq) 103

MOLESWORTH, J.·17 Jun 1880·Supreme Court of Victoria, In Equity4p·Vol 6 VLR (Eq) Pt 1

Appeal from County CourtDecree for specific performance — Right to set off mortgage against purchase-money — Substantive proceedings necessary.

FILLER v. STEPHENS6 VLR (Eq) 144

MOLESWORTH, J.·19 Aug 1880·Supreme Court of Victoria, In Equity2p·Vol 6 VLR (Eq) Pt 1

AttachmentNon-compliance with decree.

THE UNITED HAND-IN-HAND AND BAND OF HOPE COY. v. THE NATIONAL BANK OF AUSTRALASIA6 VLR (Eq) 198

BARRY, STEPHEN and MOLESWORTH, JJ.·25 Oct 1880·Supreme Court of Victoria, In Equity7p·Vol 6 VLR (Eq) Pt 1

AppealMortgage of mining lease — Forfeiture for non-payment of rent — Mortgagee in possession — Appeal to Privy Council — Statement of appealable amount — Interlocutory order.

DROOP v. THE COLONIAL BANK OF AUSTRALASIA6 VLR (Eq) 228

MOLESWORTH, J.·6 Dec 1880·Supreme Court of Victoria, In Equity9p·Vol 6 VLR (Eq) Pt 1

AdministratorMortgage of lands — Money expended in improvements — Redemption — Repayment of improved value — Bank — Mortgage — Illegality.

IN ESTATE OF SEVERNE6 VLR (IPM) 1

MOLESWORTH, J.·19 Feb 1880·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions2p·Vol 6 VLR (IPM) Pt 1

Administration c.t.a.Will — No appointment of executor — Conditional grant.

IN THE WILL OF LECERF6 VLR (IPM) 9

MOLESWORTH, J.·14 Apr 1880·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions8p·Vol 6 VLR (IPM) Pt 1

Application to revoke probateEvidence — Affidavits — Viv voce evidence — Incapacity of testator — Delusions.

IN THE ESTATE OF O’FLAHERTY6 VLR (IPM) 17

MOLESWORTH, J.·19 May 1880·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions2p·Vol 6 VLR (IPM) Pt 1

Administration de bonis nonExecutors of administratrix — Next-of-kin — Two administrators.

IN RE COTTON6 VLR (IPM) 24

MOLESWORTH, J.·4 Mar 1880·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions2p·Vol 6 VLR (IPM) Pt 1

AppealOrder transferring proceedings — Subsequent order directing no action to be taken thereon — Costs — Insolvency Statute 1871, sec. 10.

IN RE DWYER6 VLR (IPM) 29

MOLESWORTH, J.·24 Mar 1880·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions5p·Vol 6 VLR (IPM) Pt 1

AppealOrder refusing certificate — Dispensation with dividend of 7s. — Keeping reasonable accounts — Suspension of certificate.

IN THE ESTATE OF WYLD6 VLR (IPM) 83

MOLESWORTH, J.·8 Jul 1880·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions3p·Vol 6 VLR (IPM) Pt 1

Administration bondJustifying sureties.

IN ESTATE OF SEVERNE6 VLR (IPM) 86

MOLESWORTH, J.·19 Feb 1880·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions2p·Vol 6 VLR (IPM) Pt 1

Administration c.t.a.Will — No appointment of executor — Conditional grant.

IN THE ESTATE OF COADY6 VLR (IPM) 89

MOLESWORTH, J.·29 Jul 1880·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions2p·Vol 6 VLR (IPM) Pt 1

AdministrationForeign Court — Exemplification.

IN ESTATE OF SEVERNE6 VLR (IPM) 95

MOLESWORTH, J.·19 Feb 1880·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions2p·Vol 6 VLR (IPM) Pt 1

Administration c.t.a.Will — No appointment of executor — Conditional grant.

IN ESTATE OF SEVERNE6 VLR (IPM) 96

MOLESWORTH, J.·19 Feb 1880·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions2p·Vol 6 VLR (IPM) Pt 1

Administration c.t.a.Will — No appointment of executor — Conditional grant.

IN ESTATE OF SEVERNE6 VLR (IPM) 97

MOLESWORTH, J.·19 Feb 1880·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions2p·Vol 6 VLR (IPM) Pt 1

Administration c.t.a.Will — No appointment of executor — Conditional grant.

IN ESTATE OF SEVERNE6 VLR (IPM) 98

MOLESWORTH, J.·19 Feb 1880·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions2p·Vol 6 VLR (IPM) Pt 1

Administration c.t.a.Will — No appointment of executor — Conditional grant.

IN THE ESTATE OF STANTON6 VLR (IPM) 99

MOLESWORTH, J.·2 Dec 1880·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions2p·Vol 6 VLR (IPM) Pt 1

Administration de bonis nonExecutors of first administrator — Next of kin — Infants.

IN RE PHELPS6 VLR (L) 37

STAWELL, C.J., BARRY and STEPHEN, JJ.·1 Apr 1880·Supreme Court of Victoria, at Law10p·Vol 6 VLR (L) Pt 1

AttachmentHow sheriff to deal with prisoner when taken — Supreme Court Rules, chap. IX., 3, 18 — Order to pay money to attorney-under-power — Rule for attachment unless such sum and costs be paid to another person — Payment to first attorney-under-power.

IN RE WISEWOULD6 VLR (L) 60

PER CURIAM.·9 Apr 1880·Supreme Court of Victoria, at Law2p·Vol 6 VLR (L) Pt 1

AttorneyAdmission — Supreme Court Rules, 11th April, 1874 — Examinations at interval of one academic year.

WILSON v. LUTH6 VLR (L) 73

STAWELL, C.J., BARRY and STEPHEN, JJ.·16 Apr 1880·Supreme Court of Victoria, at Law8p·Vol 6 VLR (L) Pt 1

AdministratorPromise to pay debt of intestate on day certain — Personal liability.

HILL v. POWER6 VLR (L) 109

STAWELL, C.J., BARRY and STEPHEN, JJ.·22 Apr 1880·Supreme Court of Victoria, at Law9p·Vol 6 VLR (L) Pt 1

AttorneyAction brought on behalf of two plaintiffs — No authority from one — Inability of other to pay costs — Liability of attorney.

IN RE PHELPS6 VLR (L) 164

STAWELL, C.J. and BARRY, J.·21 Jun 1880·Supreme Court of Victoria, at Law2p·Vol 6 VLR (L) Pt 1

Attachment for contemptPractice — Heading of Rule — Costs of Rule not endorsed on writ.

ALLEN v. OWER6 VLR (L) 213

STAWELL, C.J., BARRY and STEPHEN, JJ.·10 Jul 1880·Supreme Court of Victoria, at Law4p·Vol 6 VLR (L) Pt 1

AppealCounty Court — Alteration of decision before it is recorded.

THE COFFEE TAVERN COY. LTD. v. DE YOUNG6 VLR (L) 289

STAWELL, C.J., BARRY and STEPHEN JJ.·1 Sept 1880·Supreme Court of Victoria, at Law3p·Vol 6 VLR (L) Pt 1

AttorneyLiability to pay costs — Unauthorised use of name of plaintiff.

IN RE PHELPS6 VLR (L) 344

STAWELL, C.J., BARRY and HIGINBOTHAM, JJ.·9 Oct 1880·Supreme Court of Victoria, at Law6p·Vol 6 VLR (L) Pt 1

AttorneyBill of costs — Taxation — Reservation of dispute as to retainer — Balance in favour of client — Abandonment of reservation — Review of taxation — Lapse of time.

IN RE PHELPS6 VLR (L) 417

STAWELL, C.J., STEPHEN and HIGINBOTHAM, JJ.·29 Nov 1880·Supreme Court of Victoria, at Law8p·Vol 6 VLR (L) Pt 1

AttorneyBills of costs — Taxation — Computation of one sixth struck off — Disputed retainer — Practice — Rule made absolute, pending judge's order for stay of proceedings.

CLARKE v. CAMERON6 VLR (L) 449

PER CURIAM.·10 Dec 1880·Supreme Court of Victoria, at Law2p·Vol 6 VLR (L) Pt 1

AppealCounty Court — Time for transmission — County Court Rules — Order V., r. 4.

BLACK v. ZEVENBOOM6 VLR (L) 473

STAWELL, C.J., STEPHEN and HIGINBOTHAM, JJ.·20 Dec 1880·Supreme Court of Victoria, at Law7p·Vol 6 VLR (L) Pt 1

Act No. 557, sec. 13Bill of sale — Annual affidavit — Error in statement of amount due — Trespass — Leave and License.

DROOP v. THE COLONIAL BANK7 VLR (Eq) 71

STEPHEN, and HIGINBOTHAM, JJ.·20 Jul 1881·Supreme Court of Victoria, In Equity9p·Vol 7 VLR (Eq) Pt 1

AdministratorTenant in common — Allowance for improvements — Power to mortgage — "Administration Act" (No. 427), sec. 7 — "Transfer of Land Statute," secs. 49 and 50, 19 Vic. — Voluntary settlement — 27 Eliz — Bank — Mortgage advance — Setting up defence by counsel.

DRYDEN v. DRYDEN7 VLR (Eq) 166

MOLESWORTH, J.·24 Nov 1881·Supreme Court of Victoria, In Equity4p·Vol 7 VLR (Eq) Pt 1

Administration suitCosts — Plaintiff and defendant, each partly successful — Non-filing of accounts by administrator.

M’VEA v. AITKEN7 VLR (Eq) 178

MOLESWORTH, J.·6 Dec 1881·Supreme Court of Victoria, In Equity6p·Vol 7 VLR (Eq) Pt 1

Administrator of personaltyRents of realty — Accounts — Mixing funds — Constructive trustee — Remedy at Law.

IN THE ESTATE OF HANNA7 VLR (IPM) 44

STEPHEN, J.·7 Jul 1881·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions3p·Vol 7 VLR (IPM) Pt 1

"Administration Act" (No. 427), sec. 20Curator of estates of deceased persons — Intestate — Waste — Power of sale.

THE ENGLISH, SCOTTISH, AND AUSTRALIAN CHARTERED BANK v. ADCOCK7 VLR (L) 157

STAWELL, C.J.·18 Jul 1881·Supreme Court of Victoria, at Law14p·Vol 7 VLR (L) Pt 1

AgencyPhilanthropic society — Liability of members of committee for overdraft on banker — Authority unrevoked.

IN RE HARDY7 VLR (L) 266

STAWELL, C.J., STEPHEN, and HIGINBOTHAM, JJ.·13 Jul 1881·Supreme Court of Victoria, at Law8p·Vol 7 VLR (L) Pt 1

Attorneys' bills of costs"Common Law Procedure Statute 1865" (No. 274), secs. 388, 396 — Separate suit.

WILSON v. THE RISING STAR Q.M. CO. (LIMITED)7 VLR (L) 274

STAWELL, C.J., STEPHEN, and HIGINBOTHAM, JJ.·18 Jul 1881·Supreme Court of Victoria, at Law7p·Vol 7 VLR (L) Pt 1

AgreementAuriferous sand — Construction — Measure of damages.

BRUNDELL v. WANE7 VLR (L) 319

HIGINBOTHAM, and WILLIAMS, JJ.·8 Sept 1881·Supreme Court of Victoria, at Law6p·Vol 7 VLR (L) Pt 1

AppealCounty Court — Question of fact — Negligent driving. — Evidence. — Statement of servant.

IN RE HARDY7 VLR (L) 450

PER CURIAM STAWELL, C.J., WILLIAMS and HOLROYD, JJ. .·1 Dec 1881·Supreme Court of Victoria, at Law3p·Vol 7 VLR (L) Pt 1

Attorney and clientTaxation — Costs.

IN RE HARDY7 VLR (L) 476

STAWELL, C.J., and HOLROYD, J.·14 Dec 1881·Supreme Court of Victoria, at Law7p·Vol 7 VLR (L) Pt 1

Attorney and clientBill of costs — Taxation — Break in suit.

DROOP v. COLONIAL BANK OF AUSTRALASIA8 VLR (Eq) 7

MOLESWORTH, J.·27 Feb 1882·Supreme Court of Victoria, In Equity7p·Vol 8 VLR (Eq) Pt 1

AdministratorMortgage — Notice — Improvements — Lien — Interest — Charge of fraud — Discovery — Costs.

CHUN GOON v. REFORM GOLD MINING CO.8 VLR (Eq) 128

STAWELL, C.J., HIGINBOTHAM, MOLESWORTH, and WILLIAMS, JJ.·23 May 1882·Supreme Court of Victoria, In Equity28p·Vol 8 VLR (Eq) Pt 1

Act No. 228No. 409, ss. 124, 131 — No. 446, sec. 7 — Mining company — Exclusive license — Tribute agreement — Authority of manager — Sanction of shareholders — Part performance — Statute of Frauds.

DRYDEN v. DRYDEN8 VLR (Eq) 177

HIGINBOTHAM, and WILLIAMS, JJ.·4 Sept 1882·Supreme Court of Victoria, In Equity6p·Vol 8 VLR (Eq) Pt 1

Appeal for costsCosts out of fund — Discretion — Administrator.

REGINA v. EDNEY8 VLR (L) 1

PER CURIAM STAWELL, C.J., HIGINBOTHAM and HOLROYD, JJ. .·22 Mar 1882·Supreme Court of Victoria, at Law2p·Vol 8 VLR (L) Pt 1

Act No. 571, s. 1Order to prohibit — Time for application.

HARDING v. LOCAL BOARD OF HEALTH OF GEELONG WEST8 VLR (L) 6

STAWELL, C.J., HIGINBOTHAM, J.·22 Mar 1882·Supreme Court of Victoria, at Law5p·Vol 8 VLR (L) Pt 1

Act No. 310, s. 47Board of Health — Formation of private streets — Apportionment of expense — Notice — Demand of payment.

REGINA v. PICKLES8 VLR (L) 126

PER CURIAM.·26 Jun 1882·Supreme Court of Victoria, at Law3p·Vol 8 VLR (L) Pt 1

Act No. 571, s. 4Justices of the Peace — Statutory order to quash — Determination under "The Master and Apprentice Statute 1864" (No. 193), s. 17.

REGINA v. EDNEY8 VLR (L) 140

PER CURIAM STAWELL, C.J., HIGINBOTHAM and HOLROYD, JJ. .·22 Mar 1882·Supreme Court of Victoria, at Law2p·Vol 8 VLR (L) Pt 1

Act No. 571, s. 1Order to prohibit — Time for application.

BROOKS v. M’PHERSON8 VLR (L) 154

PER CURIAM.·4 Jul 1882·Supreme Court of Victoria, at Law4p·Vol 8 VLR (L) Pt 1

ArbitrationDamages — Costs — Referring back award.

IN RE DUFFETT8 VLR (L) 160

HIGINBOTHAM, J.·5 Jul 1882·Supreme Court of Victoria, at Law5p·Vol 8 VLR (L) Pt 1

AttorneyBill of costs — Order to deliver several years after payment — Appeal to Privy Council — Practice at law — Summons under emergency clause — Right to begin.

IN RE KLINGENDER8 VLR (L) 164

PER CURIAM.·6 Jul 1882·Supreme Court of Victoria, at Law4p·Vol 8 VLR (L) Pt 1

AttorneyRight of town agent to lien on client's money to same extent as that of country attorney — Delay of client in settling accounts — Death of country attorney — Reference to prothonotary to take accounts.

REGINA v. EDNEY8 VLR (L) 197

PER CURIAM STAWELL, C.J., HIGINBOTHAM and HOLROYD, JJ. .·22 Mar 1882·Supreme Court of Victoria, at Law2p·Vol 8 VLR (L) Pt 1

Act No. 571, s. 1Order to prohibit — Time for application.

CUDMORE v. M’PHERSON8 VLR (L) 208

STAWELL, C.J., HIGINBOTHAM, and HOLROYD, JJ.·8 Sept 1882·Supreme Court of Victoria, at Law7p·Vol 8 VLR (L) Pt 1

AwardAmendment — Costs of first and second award — Reference of cause — Power of parties to vary terms of reference — Costs — Discretion of taxing officer — Costs of making order of reference a rule of Court — Attendance of counsel — Witnesses' travelling expenses.

REGINA v. EDNEY8 VLR (L) 316

PER CURIAM STAWELL, C.J., HIGINBOTHAM and HOLROYD, JJ. .·22 Mar 1882·Supreme Court of Victoria, at Law2p·Vol 8 VLR (L) Pt 1

Act No. 571, s. 1Order to prohibit — Time for application.

GREAT NORTHERN CO. v. BROWN8 VLR (Mining) 1

THE CHIEF JUDGE·20 Feb 1882·Court of the Chief Judge of Courts of Mines5p·Vol 8 VLR (Mining) Pt 1

Act No. 446, secs. 3, 4Leasing Regulations, 1871 — Deposit — Survey of interior lines — Default.

UNITED CLAIMS TRIBUTE CO. v. TAYLOR8 VLR (Mining) 19

THE CHIEF JUDGE·21 Aug 1882·Court of the Chief Judge of Courts of Mines4p·Vol 8 VLR (Mining) Pt 1

Amalgamated claimsRegistration — Trespass — Discretion of Warden — Appeal — Special case — Right to begin.

CAMERON v. M’NAMARA9 VLR (Eq) 17

MOLESWORTH, J.·8 Mar 1883·Supreme Court of Victoria, In Equity3p·Vol 9 VLR (Eq) Pt 1

AttachmentRefusal to execute conveyance — Order nisi — Time to be fixed.

BAILEY v. WRIGHT9 VLR (Eq) 67

MOLESWORTH, J.·6 Jun 1883·Supreme Court of Victoria, In Equity5p·Vol 9 VLR (Eq) Pt 1

AdministrationCreditor — Retainer of debt — Commission.

BUGGY v. BUGGY9 VLR (Eq) 134

MOLESWORTH, J.·15 Oct 1883·Supreme Court of Victoria, In Equity2p·Vol 9 VLR (Eq) Pt 1

AdministrationUndefended suit — Order for payment of balance due.

IN THE ESTATE OF STEPHENS9 VLR (IPM) 22

MOLESWORTH, J.·8 Mar 1883·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions2p·Vol 9 VLR (IPM) Pt 1

AdministrationBond — Surety resident out of jurisdiction.

IN THE WILL OF SUTHERLAND9 VLR (IPM) 29

MOLESWORTH, J.·12 Jul 1883·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions3p·Vol 9 VLR (IPM) Pt 1

AdministrationPower of attorney — Limited to personal estate.

IN THE WILL OF HOSKIN9 VLR (IPM) 38

HOLROYD, J.·30 Aug 1883·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions2p·Vol 9 VLR (IPM) Pt 1

AdministrationRemittances from abroad — Amount of bond.

IN THE ESTATE OF M’PHERSON9 VLR (IPM) 40

MOLESWORTH, J.·11 Oct 1883·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions3p·Vol 9 VLR (IPM) Pt 1

AdministrationMarried woman — Application by husband — Affidavit of separate estate.

IN THE WILL OF FARLEY9 VLR (IPM) 42

MOLESWORTH, J.·15 Oct 1883·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions2p·Vol 9 VLR (IPM) Pt 1

Administration to creditorDeceased debtor dying testate — Practice.

IN THE ESTATE OF HUDSON9 VLR (IPM) 45

MOLESWORTH, J.·12 Nov 1883·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions2p·Vol 9 VLR (IPM) Pt 1

AdministrationMarried woman — Statement of separate estate.

IN THE ESTATE OF M’INTOSH9 VLR (IPM) 48

MOLESWORTH, J.·15 Nov 1883·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions2p·Vol 9 VLR (IPM) Pt 1

AdministrationAdvertisement — Misspelling of name of deceased — Search.

BLISS v. WITHERS9 VLR (L) 32

PER CURIAM STAWELL, C.J., WILLIAMS and HOLROYD, JJ. .·3 Apr 1883·Supreme Court of Victoria, at Law2p·Vol 9 VLR (L) Pt 1

AuctioneerRight to commission — Sale effected by owner.

IN RE BAILEY9 VLR (L) 311

STAWELL, C.J., and WILLIAMS and HOLROYD, JJ.·9 Nov 1883·Supreme Court of Victoria, at Law20p·Vol 9 VLR (L) Pt 1

AwardBuilding contract — Costs — Amount severable — Umpire — Authority to appoint — Misconduct — Partiality — Refusal to state case on point of law.

ROSEL v. STEPHENS9 VLR (L) 379

STAWELL, C.J., HIGINBOTHAM and WILLIAMS, JJ.·7 Dec 1883·Supreme Court of Victoria, at Law5p·Vol 9 VLR (L) Pt 1

Act No. 557, sec. 15Bill of sale — Contract in writing of absolute sale — Contemporaneous parol understanding for redemption.

MOORE v. HALFEY9 VLR (L) 400

STAWELL, C.J., HIGINBOTHAM and WILLIAMS, JJ.·13 Dec 1883·Supreme Court of Victoria, at Law4p·Vol 9 VLR (L) Pt 1

A receipt given by an agent of a Fire Insurance Company for a renewal premium contained the following condition:"This temporary receipt has the full force of the company's policy (and is subject to its conditions) for fourteen days only from date of issue, but on expiry of that time none other than the head office receipt will be acknowledged by the company."

PFEIL v. THOROGOOD10 VLR (Eq) 117

MOLESWORTH, J.·9 Jun 1884·Supreme Court of Victoria, In Equity3p·Vol 10 VLR (Eq) Pt 1

Administration suitCosts — General rule — Exception.

BROWN v. ABBOTT10 VLR (Eq) 129

MOLESWORTH, J.·26 Jun 1884·Supreme Court of Victoria, In Equity3p·Vol 10 VLR (Eq) Pt 1

AdministrationAnnuity — Rabbit pest.

FRASER v. CAMERON10 VLR (Eq) 202

MOLESWORTH, J.·5 Sept 1884·Supreme Court of Victoria, In Equity3p·Vol 10 VLR (Eq) Pt 1

Administration suitCosts as between solicitor and client.

CARLYON v. CARLYON10 VLR (IPM) 51

HIGINBOTHAM, J.·22 Sept 1884·Supreme Court of Victoria, Insolvency, Probate, and Matrimonial Jurisdictions2p·Vol 10 VLR (IPM) Pt 1

Act of ParliamentConstruction — "Passing" of Act — Act No. 787, s. 25.

KING v. THE MAYOR &c. OF KEW10 VLR (L) 183

WILLIAMS, and Holroyd, JJ.·26 Aug 1884·Supreme Court of Victoria, at Law7p·Vol 10 VLR (L) Pt 1

Act of ParliamentPermissive words only — Authority to commit a nuisance — "Local Government Act 1874" (No. 506), s. 377.

BANNON v. BARKER10 VLR (L) 200

HIGINBOTHAM, and WILLIAMS, JJ.·2 Sept 1884·Supreme Court of Victoria, at Law3p·Vol 10 VLR (L) Pt 1

Act No. 630, sec. 2Regulation prohibiting processions — Decision of Justices on facts.

IN THE MATTER OF HUSBANDS AND HUSBANDS10 VLR (L) 208

PER CURIAM HIGINBOTHAM, WILLIAMS, and HOLROYD, JJ. .·4 Sept 1884·Supreme Court of Victoria, at Law6p·Vol 10 VLR (L) Pt 1

ArbitrationAward not dealing with all matters submitted — Practice — "The Judicature Act 1883" (No. 761), sec. 13 — Order 64, Rule 14 — 9 & 10 Will. III., c. 15, sec. 2 — Setting aside an award — Terms — Sittings of Full Court — Costs.

REGINA v. HOWITT10 VLR (L) 320

PER CURIAM HIGINBOTHAM, WILLIAMS, and HOLROYD, JJ. .·4 Dec 1884·Supreme Court of Victoria, at Law2p·Vol 10 VLR (L) Pt 1

Act No. 319, s. 2Affidavit "made and signed" — Form of jurat.

SENIOR v. KINGSTON11 VLR 1

MOLESWORTH, J.·3 Feb 1885·Supreme Court of Victoria7p·Vol 11 VLR Pt 1

AgreementWill — Doubtful points of law — Family compromise.

IN THE ESTATE OF CRAINE11 VLR 127

MOLESWORTH, J.·19 Mar 1885·Supreme Court of Victoria3p·Vol 11 VLR Pt 1

AdministrationNext-of-kin — Proof of Marriage of deceased.

SENIOR v. KINGSTON11 VLR 129

MOLESWORTH, J.·3 Feb 1885·Supreme Court of Victoria7p·Vol 11 VLR Pt 1

AgreementWill — Doubtful points of law — Family compromise.

M’LOUGHLIN v. CALL11 VLR 169

PER CURIAM HIGINBOTHAM, WILLIAMS, AND HOLROYD, JJ. .·4 May 1885·Supreme Court of Victoria (Full Court)3p·Vol 11 VLR Pt 1

Act No. 532, s. 1"Pretended game of chance."

GRIFFIN v. ROSS11 VLR 183

PER CURIAM HIGINBOTHAM, WILLIAMS, and HOLROYD, JJ. .·13 May 1885·Supreme Court of Victoria (Full Court)4p·Vol 11 VLR Pt 1

Appeal from County CourtJurisdiction of County Court to entertain counter-claim — "The Judicature Act 1883" (No. 761), ss. 56, 71.

NINNIS v. HEALES11 VLR 355

MOLESWORTH, J.·6 Aug 1885·Supreme Court of Victoria10p·Vol 11 VLR Pt 1

Act No.308Trust for A. or his "representatives" — Vested interest — Parties — Executor who has not proved.

SENIOR v. KINGSTON11 VLR 365

MOLESWORTH, J.·3 Feb 1885·Supreme Court of Victoria7p·Vol 11 VLR Pt 1

AgreementWill — Doubtful points of law — Family compromise.

MITCHELL v. M’DOUGAL11 VLR 487

MOLESWORTH, HIGINBOTHAM, WILLIAMS, and HOLROYD, JJ.·10 Sept 1885·Supreme Court of Victoria (Full Court)14p·Vol 11 VLR Pt 1

Act No. 627, ss. 8, 9, 17, 22Curator of felon's estate — Assignment of property after completion of sentence — Trust property — Practice — Want of parties.

REGINA v. PANTON11 VLR 503

HIGINBOTHAM, WILLIAMS, and HOLROYD, JJ.·15 Sept 1885·Supreme Court of Victoria (Full Court)6p·Vol 11 VLR Pt 1

Act No. 319, s. 3Order or conviction by justices — Drawing-up — Pronounced in party's presence — Service not necessary.

HUNTER v. PRESIDENT &c. OF HUNTLY SHIRE11 VLR 527

HIGINBOTHAM, WILLIAMS, and HOLROYD, JJ.·23 Sept 1885·Supreme Court of Victoria (Full Court)4p·Vol 11 VLR Pt 1

Appeal from JusticesMistake of fact involving mistaken application of principle.

KNIGHT v. KNIGHT11 VLR 659

MOLESWORTH, A.C.J.·15 Oct 1885·Supreme Court of Victoria3p·Vol 11 VLR Pt 1

AdministrationAllowance to executors — Tombstone — Accountant's fees.

SENIOR v. KINGSTON11 VLR 669

MOLESWORTH, J.·3 Feb 1885·Supreme Court of Victoria7p·Vol 11 VLR Pt 1

AgreementWill — Doubtful points of law — Family compromise.

IN RE JACK11 VLR 740

HIGINBOTHAM, J.·30 Nov 1885·Supreme Court of Victoria4p·Vol 11 VLR Pt 1

Act No. 284Imprisonment for debt — Intent to defeat a particular creditor — Insolvency of debtor.

MAY v. MARTIN12 VLR 115

HOLROYD, COPE and KERFERD, JJ.·22 Mar 1886·Supreme Court of Victoria (Full Court)13p·Vol 12 VLR Pt 1

AppealTo Privy Council — Application for leave to appeal — "Motion or petition" — Whether notice of motion necessary — Appealable amount a condition precedent — Questions reserved by judge for Full Court — Decision thereon — Subsequent declaratory Act to contrary effect — Appeal from entry of judgment by judge — Res judicata.

REGINA v. WHITE12 VLR 183

HIGINBOTHAM, COPE, and KERFERD, JJ.·13 Apr 1886·Supreme Court of Victoria (Full Court)5p·Vol 12 VLR Pt 1

Act No. 571Order to prohibit — Order to quash.

REGINA v. TAYLOR12 VLR 187

HIGINBOTHAM, COPE, and KERFERD, JJ.·13 Apr 1886·Supreme Court of Victoria (Full Court)3p·Vol 12 VLR Pt 1

Act No. 571Order to quash — Order to prohibit — Want of jurisdiction.

GROOM v. PATERSON12 VLR 230

HOLROYD, J.·6 Apr 1886·Supreme Court of Victoria11p·Vol 12 VLR Pt 1

Act No. 313, s. 6Stock mortgage — Stock subsequently brought on station.

IN THE WILL OF BRIDGER12 VLR 281

MOLESWORTH, A.C.J., HOLROYD, and COPE, JJ.·12 Mar 1886·Supreme Court of Victoria (Full Court)5p·Vol 12 VLR Pt 1

Act No. 842, s. 2Trustees &c. Company — Appointment by executor of company to apply for administration c.t.a. — Will before Act.

BROWNE v. THE QUEEN12 VLR 397

HIGINBOTHAM, WILLIAMS, and HOLROYD, JJ.·29 Jun 1886·Supreme Court of Victoria (Full Court)18p·Vol 12 VLR Pt 1

Act No. 160, s. 27"The Public Service Act 1883," ss. 2, 76 — Public Service Board — Power to dispense with service of officer appointed under Act No. 160 — "Rights and privileges."

RATCLIFFE v. ALLEN12 VLR 580

HOLROYD, J.·13 Aug 1886·Supreme Court of Victoria (Full Court)8p·Vol 12 VLR Pt 1

AppealFrom County Court — Administration of Justice Act 1885, s. 8 — County Court Statute 1869, s. 120 — Appeal on question of fact — Appeal under s. 8 — Materials necessary — Points of law raised at the trial.

GIBBS, BRIGHT, & CO. v. CLARKE12 VLR 618

HIGINBOTHAM, J.·3 Sept 1886·Supreme Court of Victoria (Full Court)5p·Vol 12 VLR Pt 1

Appeal from judge in ChambersMatters in discretion of judge — When appeal lies therefrom — Fresh materials.

IN RE MAYOR &C. OF SANDHURST12 VLR 682

PER CURIAM HIGINBOTHAM, C.J., WILLIAMS and KERFERD, JJ. .·14 Oct 1886·Supreme Court of Victoria (Full Court)10p·Vol 12 VLR Pt 1

ArbitrationDisqualification of arbitrator by reason of interest — Waiver of objection — Act 24 Vict., No. 102, ss. 28, 66, and 67 — "Terms and Conditions" — "Price."

REGINA v. CHOMLEY12 VLR 841

WILLIAMS, J.·16 Nov 1886·Supreme Court of Victoria (Full Court)5p·Vol 12 VLR Pt 1

AppealFrom justices — Act No. 565, ss. 25 and 26 — Notice of appeal — Verbal and written notices.

DE GROOT v. HAMMOND12 VLR 905

PER CURIAM.·13 Dec 1886·Supreme Court of Victoria (Full Court)3p·Vol 12 VLR Pt 1

Administration Act 1872, s. 6Liability of administrator — Administration of Justice Act 1885, s. 8 — Practice — Grounds of appeal.

M’CLUSKY v. FORSYTH13 VLR 146

HIGINBOTHAM, C.J., HOLROYD & KERFERD, JJ.·12 May 1887·Supreme Court of Victoria (Full Court)4p·Vol 13 VLR Pt 1

AppealCounty court — Nonsuit — Agent — Right to commission.

IN THE WILL OF JAMES13 VLR 214

WEBB, J.·5 May 1887·Supreme Court of Victoria2p·Vol 13 VLR Pt 1

AdministrationAct No. 842, ss. 5 and 6 — Consent of Court to appointment of Trustees &c. Coy. by administrator to perform the duties of administrator — Appointment of company by attorney-under-power of foreign administrator — Consent of foreign administrator.

JOHNSON v. WILLIAMS13 VLR 252

HIGINBOTHAM, C.J., WILLIAMS, and A’BECKETT, JJ.·7 Mar 1887·Supreme Court of Victoria (Full Court)4p·Vol 13 VLR Pt 1

AppealPrivy Council — Security for costs of appeal — Lapse of Order giving leave to appeal on expiration of three months without security being perfected — Order in Council of 9th June, 1860.

JONES v. EBSWORTH13 VLR 346

HIGINBOTHAM, C.J., WILLIAMS, and A’BECKETT, JJ.·8 Jul 1887·Supreme Court of Victoria (Full Court)6p·Vol 13 VLR Pt 1

AppealCounty Court — Administration of Justice Act 1885, s. 8 — Practice — Notice to produce — Reasonable notice — Interference with discretion of judge — Form of order for rehearing.

REGINA v. DRAKE13 VLR 498

HIGINBOTHAM, C.J., WILLIAMS, and A’BECKETT, JJ.·1 Sept 1887·Supreme Court of Victoria (Full Court)5p·Vol 13 VLR Pt 1

AbortionCriminal Law and Practice Statute 1864, sec. 56 — Supplying drugs with intent that they should be used to procure abortion — Pretence by persons seeking such drugs, as to existence of woman on whom they were to be used.

VAIL v. BLAIR13 VLR 704

HIGINBOTHAM, C.J., HOLROYD, and KERFERD, JJ.·13 Oct 1887·Supreme Court of Victoria (Full Court)3p·Vol 13 VLR Pt 1

AppealTo Privy Council — Orders in Council — Matters at issue, question of costs only — Vendor and purchaser — Whether unpaid vendor of land is in the position of mortgagee as to costs, in a suit by purchaser for accounts.

DWYER v. O’MULLEN13 VLR 933

HIGINBOTHAM, C.J., A’BECKETT, WILLIAMS, and KERFERD, JJ.·5 Dec 1887·Supreme Court of Victoria (Full Court)10p·Vol 13 VLR Pt 1

Action of ejectmentDefence simply of possession — Order XXI., r. 21 — Equitable defence of fraud or mistake — Order XXVIII., r. 1 — Amendment of defence — "Real question in controversy" — Discretion of judge.

BENNETT v. MORRIS14 VLR 9

HIGINBOTHAM, C.J., KERFERD and A’BECKETT, JJ.·1 Mar 1888·Supreme Court of Victoria (Full Court)13p·Vol 14 VLR Pt 1

Administration suitNext of kin out of jurisdiction of Court not bound by decree — Fresh administration suit — Leave of Court unnecessary where plaintiff not a party — Wilful default — New administration not granted unless plaintiff be prejudiced by reason of not being party to first suit.

SCOTT v. MURRAY14 VLR 187

WEBB, J.·19 Mar 1888·Supreme Court of Victoria4p·Vol 14 VLR Pt 1

Administration suitUnauthorised purchase by executrix — Mortgage of estate to provide purchase money — Non-filing of accounts — Costs — Costs of husband, co-defendant.

IN RE TOBIN14 VLR 208

WEBB, J.·23 Apr 1888·Supreme Court of Victoria3p·Vol 14 VLR Pt 1

AdministrationCreditor's application — Will — Undue delay by executors in proving will — Costs of creditor — Form of order.

THE VICTORIAN CABLE TRACTION CO. v. MELBOURNE TRAMWAY TRUST14 VLR 250

A’BECKETT, J.·30 May 1888·Supreme Court of Victoria3p·Vol 14 VLR Pt 1

Act No. 808, s. 17Order XIX., r. 27 — Order XXV., r. 4 — Patent — Insufficiency of particulars of objections.

IN RE VICTORIAN TROTTING CLUB14 VLR 271

HIGINBOTHAM, C.J., WILLIAMS and HOLROYD JJ.·5 Sept 1888·Supreme Court of Victoria (Full Court)12p·Vol 14 VLR Pt 1

Act No. 521, s. 8By-law, illegality of — Mode of testing — Lease of land to a club for the amusement and recreation of the public — Power of club to make charges upon the public — Regulations as to bookmakers.

COX v. O’CONNOR14 VLR 313

WEBB, J.·17 Apr 1888·Supreme Court of Victoria5p·Vol 14 VLR Pt 1

Appeal from County CourtCosts — Costs of rehearing — Further consideration — Specific performance — Discretion of Court.

REGINA v. STANLEY14 VLR 509

HIGINBOTHAM, C.J., KERFERD and A’BECKETT, JJ.·4 May 1888·Supreme Court of Victoria (Full Court)6p·Vol 14 VLR Pt 1

Act No. 502, s. 23Felony or misdemeanour — Trial upon the record of the Supreme Court — New trial — Amending judgment.

DUDLEY v. BROWN14 VLR 655

HOLROYD, KERFERD and A’BECKETT, JJ.·30 Nov 1888·Supreme Court of Victoria (Full Court)3p·Vol 14 VLR Pt 1

Action of ejectmentEstoppel — Right of defendant to impeach the title of person who put him in possession.

REGINA v. WHANNELL14 VLR 727

PER CURIAM.·6 Sept 1888·Supreme Court of Victoria (Full Court)2p·Vol 14 VLR Pt 1

Act No. 571, s. 4Justices of the Peace — Rule to quash decision of — Service of rule.

ANTHONESS v. THE MELBOURNE MALTING AND BREWING CO.14 VLR 916

HIGINBOTHAM, C.J., WILLIAMS, KERFERD and A’BECKETT, JJ.·19 Dec 1888·Supreme Court of Victoria (Full Court)18p·Vol 14 VLR Pt 1

AgentDel credere agency — Guarantee — Power of judge to vary or alter findings of referees.

IN RE ANNAND14 VLR 1009

HIGINBOTHAM, C.J.·14 Dec 1888·Supreme Court of Victoria (Full Court)12p·Vol 14 VLR Pt 1

Act 16 and 17 Vict., c. 70, ss. 125 and 147"Lunacy Statute" (No. 309), s. 166 — Lunatic resident in England — Lunatic's property in Australia — Order for sale — Approval of English Court — Foreign order — Construction.

MARKS v. PENGLASE15 VLR 1

A’BECKETT, J.·4 Feb 1889·Supreme Court of Victoria3p·Vol 15 VLR Pt 1

Act No. 557Instruments and Securities Statute (Bills of Sale 1876), ss. 15, 16 — Contract for letting and hiring — Signature of parties to the contract.

MARKS v. PENGLASE15 VLR 7

A’BECKETT, J.·4 Feb 1889·Supreme Court of Victoria3p·Vol 15 VLR Pt 1

Act No. 557Instruments and Securities Statute (Bills of Sale 1876), ss. 15, 16 — Contract for letting and hiring — Signature of parties to the contract.

IN RE JOHNSON15 VLR 8

HIGINBOTHAM, C.J., KERFERD, and A’BECKETT, JJ.·26 Mar 1889·Supreme Court of Victoria (Full Court)2p·Vol 15 VLR Pt 1

Articled clerkFiling of articles — Duty of solicitor.

NETTLETON v. MOLINEAUX15 VLR 13

HIGINBOTHAM, C.J., KERFERD, and A’BECKETT, JJ.·6 Mar 1889·Supreme Court of Victoria (Full Court)3p·Vol 15 VLR Pt 1

Action against executorDevise of land subject to payment of all debts.

MILLER v. FEDERAL COFFEE PALACE15 VLR 30

HIGINBOTHAM, C.J., KERFERD, and A’BECKETT, JJ.·12 Mar 1889·Supreme Court of Victoria (Full Court)5p·Vol 15 VLR Pt 1

Act No. 78, s. 1Innkeepers, liability of — Inn, definition of — Coffee Palace — Loss of goods — "Package or parcel."

WOOLCOCK v. THE CITY OF COLLINGWOOD15 VLR 81

A’BECKETT, J.·7 May 1889·Supreme Court of Victoria4p·Vol 15 VLR Pt 1

"Abattoirs Statute" (No. 356), s. 28Mandamus — Application for license for slaughter-house — Determination by municipal council.

MARKS v. PENGLASE15 VLR 273

A’BECKETT, J.·4 Feb 1889·Supreme Court of Victoria3p·Vol 15 VLR Pt 1

Act No. 557Instruments and Securities Statute (Bills of Sale 1876), ss. 15, 16 — Contract for letting and hiring — Signature of parties to the contract.

MARKS v. PENGLASE15 VLR 279

A’BECKETT, J.·4 Feb 1889·Supreme Court of Victoria3p·Vol 15 VLR Pt 1

Act No. 557Instruments and Securities Statute (Bills of Sale 1876), ss. 15, 16 — Contract for letting and hiring — Signature of parties to the contract.

MARKS v. PENGLASE15 VLR 286

A’BECKETT, J.·4 Feb 1889·Supreme Court of Victoria3p·Vol 15 VLR Pt 1

Act No. 557Instruments and Securities Statute (Bills of Sale 1876), ss. 15, 16 — Contract for letting and hiring — Signature of parties to the contract.

MARKS v. PENGLASE15 VLR 423

A’BECKETT, J.·4 Feb 1889·Supreme Court of Victoria3p·Vol 15 VLR Pt 1

Act No. 557Instruments and Securities Statute (Bills of Sale 1876), ss. 15, 16 — Contract for letting and hiring — Signature of parties to the contract.

MARKS v. PENGLASE15 VLR 509

A’BECKETT, J.·4 Feb 1889·Supreme Court of Victoria3p·Vol 15 VLR Pt 1

Act No. 557Instruments and Securities Statute (Bills of Sale 1876), ss. 15, 16 — Contract for letting and hiring — Signature of parties to the contract.

CLIFFORD v. BEGGS15 VLR 516

HIGINBOTHAM, C.J., HOLROYD, and KERFERD, JJ.·30 Sept 1889·Supreme Court of Victoria (Full Court)3p·Vol 15 VLR Pt 1

"Administration of Justice Act 1885" (No. 844), sec. 7 (sub-sec. 3), sec. 8"The County Court Statute 1869" (No. 345), ss. 35, 56, 67, 68 — Notice of defence by attorney who has not signed roll — Striking out case — Appearance.

MARKS v. PENGLASE15 VLR 712

A’BECKETT, J.·4 Feb 1889·Supreme Court of Victoria3p·Vol 15 VLR Pt 1

Act No. 557Instruments and Securities Statute (Bills of Sale 1876), ss. 15, 16 — Contract for letting and hiring — Signature of parties to the contract.

CHAMBERLAIN v. McWHINNIE16 VLR 1

HOOD, J.·7 Feb 1890·Supreme Court of Victoria2p·Vol 16 VLR Pt 1

Act No. 284, ss. 2, 3Debtor's summons — Second summons for same debt — Jurisdiction.

CHAMBERLAIN v. McWHINNIE16 VLR 8

HOOD, J.·7 Feb 1890·Supreme Court of Victoria2p·Vol 16 VLR Pt 1

Act No. 284, ss. 2, 3Debtor's summons — Second summons for same debt — Jurisdiction.

CHAMBERLAIN v. McWHINNIE16 VLR 164

HOOD, J.·7 Feb 1890·Supreme Court of Victoria2p·Vol 16 VLR Pt 1

Act No. 284, ss. 2, 3Debtor's summons — Second summons for same debt — Jurisdiction.

CHAMBERLAIN v. McWHINNIE16 VLR 171

HOOD, J.·7 Feb 1890·Supreme Court of Victoria2p·Vol 16 VLR Pt 1

Act No. 284, ss. 2, 3Debtor's summons — Second summons for same debt — Jurisdiction.

CHAMBERLAIN v. McWHINNIE16 VLR 270

HOOD, J.·7 Feb 1890·Supreme Court of Victoria2p·Vol 16 VLR Pt 1

Act No. 284, ss. 2, 3Debtor's summons — Second summons for same debt — Jurisdiction.

WERTHEIM v. VIRTUE16 VLR 369

HIGINBOTHAM, C.J., HOLROYD, and HOOD, JJ.·31 Mar 1890·Supreme Court of Victoria (Full Court)4p·Vol 16 VLR Pt 1

AgreementTime payment system — Vendor and purchaser — Letting and hiring — Property in goods sold on time payment.

BOYD v. SUCHETZKI16 VLR 457

HIGINBOTHAM, C.J.·25 Jul 1890·Supreme Court of Victoria3p·Vol 16 VLR Pt 1

Act No. 557, ss. 15, 16Contract of sale — Contract of letting and hiring — Consideration, inaccuracy in statement of — Interpleader.

FORAN v. THE QUEEN16 VLR 510

HIGINBOTHAM, C.J., HOLROYD, WILLIAMS, and HOOD, JJ.·17 Jul 1890·Supreme Court of Victoria (Full Court)15p·Vol 16 VLR Pt 1

Act No. 160"The Public Service Act 1883" (No. 773) — Act No. 149 — State school teacher, dismissal of — Public Service Board.

LEMME v. KRONE16 VLR 613

HIGINBOTHAM, C.J., WEBB, and HODGES, JJ.·12 Sept 1890·Supreme Court of Victoria (Full Court)6p·Vol 16 VLR Pt 1

Act No. 557, s. 14Production of affidavits — Practice in office of Registrar-General.

SLEE, OGILBY & COMPANY v. MURPHY16 VLR 636

HIGINBOTHAM, C.J.·12 Aug 1890·Supreme Court of Victoria2p·Vol 16 VLR Pt 1

Act No. 313, ss. 5, 6, 7Stock mortgage — Registration — "Station," description of.

TREEVE v. BARRY16 VLR 711

HIGINBOTHAM, C.J., WEBB and HODGES, JJ.·25 Sept 1890·Supreme Court of Victoria (Full Court)4p·Vol 16 VLR Pt 1

AppealSecurity for costs — Motion — Full Court — Jurisdiction — "The Judicature Act 1883" (No. 761), s. 69 — Order LVIII., r. 15 — Consideration of circumstances of case — Primary judge a member of Full Court.

SMITH v. PERROTT16 VLR 754

HODGES, J.·10 Oct 1890·Supreme Court of Victoria3p·Vol 16 VLR Pt 1

Administration actionCo-trustee — Deceased trustee — Accounts — Misapplication of trust estate.

RICKETSON v. BOURCHIER16 VLR 800

WILLIAMS, WEBB, and HODGES, JJ.·10 Dec 1890·Supreme Court of Victoria (Full Court)3p·Vol 16 VLR Pt 1

Appeal to Privy CouncilOrders in Council — Costs — Matters in issue.

CHAMBERLAIN v. McWHINNIE16 VLR 864

HOOD, J.·7 Feb 1890·Supreme Court of Victoria2p·Vol 16 VLR Pt 1

Act No. 284, ss. 2, 3Debtor's summons — Second summons for same debt — Jurisdiction.

JAMIESON v. RENWICK17 VLR 124

HIGINBOTHAM, C.J., HOOD, and MOLESWORTH, JJ.·3 Apr 1891·Supreme Court of Victoria (Full Court)5p·Vol 17 VLR Pt 1

AgreementPromise to pay an annuity — On certain conditions — Consideration.

RATTEN v. DENBIGH17 VLR 259

WEBB, J.·21 May 1891·Supreme Court of Victoria4p·Vol 17 VLR Pt 1

Administration actionWill construction — Costs — Fund out of which payable — Residuary devise.

VICARY v. FOLEY17 VLR 407

HODGES, J.·11 Sept 1891·Supreme Court of Victoria4p·Vol 17 VLR Pt 1

Action for non-delivery of scripMeasure of damages — Market value of shares — Time at which market value should be fixed.

BARKER v. BREMNER17 VLR 643

HIGINBOTHAM, C.J., A’BECKETT, and HOOD, JJ.·30 Nov 1891·Supreme Court of Victoria (Full Court)4p·Vol 17 VLR Pt 1

Attachment of moneys found upon prisoner before convictionMoney in possession of police — Garnishee.

GLENNY v. THE EGLINTON LAND CO. LIMITED17 VLR 676

HIGINBOTHAM, C.J., A’BECKETT, and MOLESWORTH, JJ.·11 Aug 1891·Supreme Court of Victoria (Full Court)4p·Vol 17 VLR Pt 1

ArbitrationAward made by two out of three arbitrators — Reception of affidavit made by barrister who acted as arbitrator.

ARMSTRONG v. NEWEY17 VLR 734

WEBB, J.·18 Sept 1891·Supreme Court of Victoria2p·Vol 17 VLR Pt 1

Administration actionOrder XVI., r. 33 — Parties — Action by one next-of-kin, others not joined — Foreign administration — Foreign estate — Administrator within jurisdiction.

IN RE DIXSON18 VLR 1

HOOD, J.·26 Feb 1892·Supreme Court of Victoria3p·Vol 18 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 23Application for a jury.

IN RE DIXSON18 VLR 65

HOOD, J.·26 Feb 1892·Supreme Court of Victoria3p·Vol 18 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 23Application for a jury.

IN RE DIXSON18 VLR 66

HOOD, J.·26 Feb 1892·Supreme Court of Victoria3p·Vol 18 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 23Application for a jury.

IN RE DIXSON18 VLR 70

HOOD, J.·26 Feb 1892·Supreme Court of Victoria3p·Vol 18 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 23Application for a jury.

CAFFYN v. W. HOWARD SMITH & SONS LIMITED18 VLR 245

HIGINBOTHAM, C.J., WILLIAMS, and HOOD, JJ.·29 Apr 1892·Supreme Court of Victoria (Full Court)4p·Vol 18 VLR Pt 1

Appeal from County CourtCounty Court Act 1890 (No. 1078), ss. 96, 133 — Appeal from order for new trial made by County Court judge.

SHERSON v. AGNEW18 VLR 288

HIGINBOTHAM, C.J., WILLIAMS, and HOOD, JJ.·13 Mar 1892·Supreme Court of Victoria (Full Court)5p·Vol 18 VLR Pt 1

Auction Sales Act 1890 (No. 1065), ss. 3, 21Order to review conviction for selling by auction after sunset — Sale by auction.

ESSENDON LAND, TRAMWAY, AND INVESTMENT CO. v. BROWN18 VLR 414

HIGINBOTHAM, C.J., HOLROYD, and HODGES, JJ.·21 Jun 1892·Supreme Court of Victoria (Full Court)4p·Vol 18 VLR Pt 1

Appeal from County CourtThe County Court Act 1890 (No. 1078), s. 134 — Appeal from decision in Chambers — Summons, irregularity in — Practice.

IN RE DIXSON18 VLR 490

HOOD, J.·26 Feb 1892·Supreme Court of Victoria3p·Vol 18 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 23Application for a jury.

IN RE DIXSON18 VLR 670

HOOD, J.·26 Feb 1892·Supreme Court of Victoria3p·Vol 18 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 23Application for a jury.

IN RE BISHOP18 VLR 759

HIGINBOTHAM, C.J., WILLIAMS, and HODGES, JJ.·20 Dec 1892·Supreme Court of Victoria (Full Court)8p·Vol 18 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), ss. 19, 40, 41, 42, 45Sealing foreign probates — Caveat — Time within which caveat may be lodged.

IN RE DIXSON18 VLR 792

HOOD, J.·26 Feb 1892·Supreme Court of Victoria3p·Vol 18 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 23Application for a jury.

GODFREY v. HENNELLY19 VLR 70

HOOD, J.·13 Feb 1893·Supreme Court of Victoria6p·Vol 19 VLR Pt 1

Administration actionClaim against estate — Proof of claim — Adjudication by Chief Clerk — Summons to take opinion of judge — Order 55, rr. 69-71 — "Judicature Act 1883" (No. 761), s. 49 — Promissory note — Indorsers — Sureties — Contribution — Notice of dishonour.

THE NATIONAL TRUSTEES EXECUTORS AND AGENCY CO. OF AUSTRALASIA LIMITED v. THE QUEEN19 VLR 132

WILLIAMS, A’BECKETT, and HODGES, JJ.·12 May 1893·Supreme Court of Victoria (Full Court)6p·Vol 19 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 112Marriage settlement — Trusts for children of former marriage — Liability of settlement to duty — Voluntary settlement.

BUCKLEY v. THE BOARD OF LAND AND WORKS19 VLR 522

HOLROYD, A’BECKETT and HOOD, JJ.·16 Nov 1893·Supreme Court of Victoria (Full Court)5p·Vol 19 VLR Pt 1

ArbitrationAward — Award a nullity — Admissibility of affidavits — Practice.

THE BURWOOD LAND, BUILDING, AND INVESTMENT CO. LIMITED v. BERRIDGE19 VLR 630

HOLROYD, J., MADDEN, C.J., HOLROYD and HODGES, JJ.·22 May 1893·Supreme Court of Victoria (Full Court)8p·Vol 19 VLR Pt 1

Assignment of chose in actionNotice of assignment — Supreme Court Act 1890 (No. 1142), s. 63, sub-sec. 6 — Companies Act 1890 (No. 1074), Part III., ss. 334, 338 and 361 — Company — Life assurance business — Registration of company — Sale of land — Condition effecting life assurance.

IN RE CROMIE20 VLR 131

HOOD, J.·29 May 1894·Supreme Court of Victoria4p·Vol 20 VLR Pt 1

Appeal to Privy CouncilPractice — The Supreme Court Act. 1890 (No. 1142), s. 231 — Order in Council — Final determination of merits of case.

FRASER v. FRASER20 VLR 156

HOLROYD, J.·4 Apr 1894·Supreme Court of Victoria3p·Vol 20 VLR Pt 1

Administration actionConsent judgment — Dismissal of action by consent after judgment — Stay of proceedings — Costs.

IN THE WILL OF CLEMENTS20 VLR 321

MADDEN, C.J., HOLROYD, J.·18 Sept 1894·Supreme Court of Victoria (Full Court)5p·Vol 20 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 26Commission to trustee — Summary procedure as to.

MULHOLLAND v. SMITH20 VLR 403

A’BECKETT, J.·16 Aug 1894·Supreme Court of Victoria5p·Vol 20 VLR Pt 1

Administration bondSurety — Duty of surety — Duty of next of kin — Notice to surety — Damages.

IN RE MECREDY20 VLR 431

A’BECKETT, J.·30 Jul 1894·Supreme Court of Victoria3p·Vol 20 VLR Pt 1

Attachment for nonpayment of costsInability to pay.

IN RE PEARSON20 VLR 484

WILLIAMS, A’BECKETT, and HODGES, J.·12 Nov 1894·Supreme Court of Victoria (Full Court)6p·Vol 20 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 97Estate of deceased person — Statement of estate filed by executor — Value of personal property — Property consisting of deposit receipts and shares in reconstructed banks — Estimation of value of such receipts and shares — Face value and market value of receipts and shares — "Debts," meaning of.

FALKINGHAM v. THE VICTORIAN RAILWAYS COMMISSIONERS21 VLR 9

HODGES, WILLIAMS, HOLROYD, and HOOD, JJ.·8 May 1895·Supreme Court of Victoria (Full Court)13p·Vol 21 VLR Pt 1

ArbitrationAward — Action upon award — Jurisdiction of arbitrators — Bulk sum award not severable — Award void for inclusion of non-referable item.

L. STEVENSON & SONS LIMITED v. BRIND21 VLR 109

HODGES, J.·15 Mar 1895·Supreme Court of Victoria5p·Vol 21 VLR Pt 1

Assignment for benefit of creditorsTrustees for benefit of creditors — Liability of trustees on unexpired lease — Assignment of lease by trustees to man of straw — Performance of covenants by trustees where beneficial interest has passed without legal assignment.

IN THE WILL OF VICKERMAN21 VLR 236

A’BECKETT, J.·24 Jul 1895·Supreme Court of Victoria2p·Vol 21 VLR Pt 1

Administration Act 1890 (No. 1060), s. 40Affixing seal of Court to exemplification of English probate — Seal and signature of notary public, judicial notice of — Evidence Act 1890 (No. 1088) — Power of attorney, execution of.

CROWLEY v. CRANE21 VLR 258

MADDEN, C.J., A’BECKETT and HOOD, JJ.·10 Sept 1895·Supreme Court of Victoria (Full Court)5p·Vol 21 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 26Commission to executors, administrators, or trustees on passing accounts — Allowance on income of investments of accumulated rents of real estate — Discretion of Chief Clerk — "Assets of deceased person."

IN RE BLACK21 VLR 277

HOOD, J.·22 Feb 1895·Supreme Court of Victoria2p·Vol 21 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 99Appeal from decision of Master in Equity — Practice.

SHAW AND MACKINNON v. THE QUEEN21 VLR 338

HOOD, J.·8 Oct 1895·Supreme Court of Victoria6p·Vol 21 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 97Statement of assets and liabilities — Probate duty — Promissory notes payable in Victoria.

FORD v. URQUHART21 VLR 688

HODGES, J.·7 May 1896·Supreme Court of Victoria3p·Vol 21 VLR Pt 1

AdulterationArticle of food or drug — Exemption of defendant — Written warranty — Health Act 1890 (No. 1098), ss. 43, 61, 71.

FORD v. URQUHART21 VLR 690

HODGES, J.·13 May 1896·Supreme Court of Victoria4p·Vol 21 VLR Pt 1

AdulterationArticle of food or drug — Analysis — Notification to Seller — Health Act 1890 (No. 1098), ss. 43, 61, 312 (6).

IN RE LUCAS22 VLR 113

MADDEN, C.J., WILLIAMS, and HODGES, JJ.·28 Apr 1896·Supreme Court of Victoria (Full Court)2p·Vol 22 VLR Pt 1

Articled clerk"Office" — Leave to act as executor during articles — "Rules of Supreme Court, 26th November, 1892" — English practice.

IN RE MILLEAR22 VLR 542

WILLIAMS, HOLROYD, and A’BECKETT, JJ.·17 Mar 1897·Supreme Court of Victoria (Full Court)7p·Vol 22 VLR Pt 1

Administration and Probate Act 1890Probate duty — Sale of land in New South Wales — Purchase money payable in Victoria — Vendor's lien — Victorian assets.

IN RE SYMINGTON22 VLR 610

HOOD, J.·1 Apr 1897·Supreme Court of Victoria2p·Vol 22 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), ss. 39, 40, 46Probate law — Letters of confirmation — Exemplification — Affixing seal of court to exemplification.

WYNNE v. McMULLAN22 VLR 623

HOLROYD, A’BECKETT, and HOOD, JJ.·18 Mar 1897·Supreme Court of Victoria (Full Court)7p·Vol 22 VLR Pt 1

Assignment for benefit of creditorsPrior execution — Sale by trustee — County Court register — Extract — Evidence Act 1890 (No. 1105), s. 23.

CHESTER v. VARTY23 VLR 28

MADDEN, C.J.·16 Mar 1897·Supreme Court of Victoria7p·Vol 23 VLR Pt 1

Arrest and bailPractice — Writ of capias — Setting aside — Irregularity — Affidavit — Description of defendant — Order — Supreme Court Act 1890 (No. 1142), ss. 110, 113 — "Rules of Supreme Court 1884" — Order XXXVIII., r. 10 — Order LII., r. 2 — Order LIV., r. 1 — Order LXX., r. 1.

IN THE WILL AND ESTATE KININMONTH23 VLR 134

MADDEN, C.J., HOLROYD, and HOOD, JJ.·17 Jul 1897·Supreme Court of Victoria (Full Court)10p·Vol 23 VLR Pt 1

Administration and Probate Acts 1890 (No. 1060), s. 97, 1892 (No. 1261)Probate duty — Value of estate — Antenuptial settlement — Debts due by testator — Annuity — Furniture — Capital value of annuity.

IN THE ESTATE OF THOMAS STEELE23 VLR 146

MADDEN, C.J., A’BECKETT, HODGES, and HOOD, JJ.·26 May 1897·Supreme Court of Victoria (Full Court)6p·Vol 23 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 17Administration — Surety — Bond — Assignment — Discretion of Court.

FALKINGHAM v. THE VICTORIAN RAILWAYS COMMISSIONERS23 VLR 408

MADDEN, C.J.·16 Nov 1897·Supreme Court of Victoria14p·Vol 23 VLR Pt 1

ArbitrationRailway contract — Action on award — Finding of arbitrators, conclusive in absence of fraud — Penalties, deduction of — Costs — Interest.

WATSON v. THE BOARD OF LAND AND WORKS23 VLR 421

HODGES, J.·2 Dec 1897·Supreme Court of Victoria8p·Vol 23 VLR Pt 1

ArbitrationBulk sum award — Non-referable items — Invalidity of award.

McKIE v. McKIE23 VLR 489

MADDEN, C.J., HOLROYD, and HODGES, JJ.·11 Mar 1898·Supreme Court of Victoria (Full Court)7p·Vol 23 VLR Pt 1

AdvancementPurchase of land by father in son's name — Rebuttal of presumption of advancement — Reservation of interest in land by purchaser.

BALLHAUSEN v. MITCHELL23 VLR 629

MADDEN, C.J., WILLIAMS, and HOLROYD, JJ.·25 Mar 1898·Supreme Court of Victoria (Full Court)7p·Vol 23 VLR Pt 1

Attachment of debt"Debt due or accruing" — Intestate — Creditor — Curator of estates of deceased persons — Receiver — Costs — Administration and Probate Act 1890 (No. 1060), Part IV. — Justices Act 1890 (No. 1104), Part V.

FALKINGHAM v. THE VICTORIAN RAILWAYS COMMISSIONERS24 VLR 4

WILLIAMS, HOLROYD, and HODGES, JJ.·31 Mar 1898·Supreme Court of Victoria (Full Court)8p·Vol 24 VLR Pt 1

ArbitrationRailway contract — Penalties for delay, deduction of — Action on award — Award bad in part — Non-referable items, consideration of by arbitrators.

THE QUEEN v. AUSTIN24 VLR 12

MADDEN, C.J.·15 Jun 1898·Supreme Court of Victoria9p·Vol 24 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 115Duty payable on property conveyed in evasion of Act — Parties chargeable with duty — Non-liability of executors for duties on property which never vested in them — Executors.

IN THE ESTATE OF KENNEDY24 VLR 185

MADDEN, C.J., WILLIAMS and HOOD, JJ.·24 Feb 1898·Supreme Court of Victoria5p·Vol 24 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 17Administration — Surety — Bond — Assignment — Discretion of Court.

THE QUEEN v. AUSTIN24 VLR 335

WILLIAMS, A’BECKETT and HODGES, JJ.·9 Sept 1898·Supreme Court of Victoria (Full Court)3p·Vol 24 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 115Probate duty — Transference of property in alleged evasion of duty — Parties chargeable with duty — Liability of executors — Parties.

IN THE ESTATE OF GIBNEY24 VLR 426

HODGES, J.·22 Sept 1898·Supreme Court of Victoria2p·Vol 24 VLR Pt 1

AdministrationRule to administer freehold land — Administration Act 1872 (No. 427) — 27 Vict., No. 230, s. 4.

IN THE WILL OF CROTTY24 VLR 517

A’BECKETT, J.·8 Nov 1898·Supreme Court of Victoria3p·Vol 24 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 99Duty on estate of deceased person — Assessment of duty — Appeal from determination of Master in Equity — Evidence on appeal — Practice.

IN RE McLEAN24 VLR 528

HODGES, J.·13 Oct 1898·Supreme Court of Victoria2p·Vol 24 VLR Pt 1

AdministrationRegul Generales, 23rd June 1873 — Rr. 6, 19 — Company applicant for letters of administration — Affidavit of search for will made by applicant's manager.

BIGGS v. FITZGIBBON24 VLR 548

HODGES, J.·19 Oct 1898·Practice Court3p·Vol 24 VLR Pt 1

Animals Protection Act 1890 (No. 1064), ss. 3, 9"Cruelly" — Overdriving.

McELROY v. AUSTRALIAN FORGE AND ENGINEERING COMPANY PROPRIETARY LIMITED24 VLR 953

WILLIAMS, J.·31 May 1899·Practice Court5p·Vol 24 VLR Pt 1

Employers and Employs Act 1891 (No. 1219), ss. 3, 5Meaning of employ — Workman working as independent contractor — Jurisdiction of justices.

A. agreed with B. to do certain work for B.to paint some trucks according to specification. B. accepted this offer.

CAYRON v. RUSSELL24 VLR 997

A’BECKETT, HODGES, and HOOD, JJ.·5 Jun 1899·Supreme Court of Victoria (Full Court)6p·Vol 24 VLR Pt 1

Appeal from order giving leave to appeal to Privy CouncilJurisdiction — Costs.

IN THE WILL OF CURRIE25 VLR 224

MADDEN, C.J., HOLROYD, and A’BECKETT, J.·24 Oct 1899·Supreme Court of Victoria (Full Court)17p·Vol 25 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), ss. 97, 98Statements of assets and liabilities — Probate duty — "Lex loci" as applied to the personal assets of a testator.

MELBOURNE TRAWMAY AND OMNIBUS CO. LIMITED v. MAYOR, ETC., OF THE CITY OF FITZROY25 VLR 447

MADDEN, C.J., HOLROYD, and HOOD, JJ.·9 Feb 1900·Supreme Court of Victoria (Full Court)8p·Vol 25 VLR Pt 1

Appeal to Privy CouncilPractice — Procedure — Leave to appeal to Her Majesty in Council — Order in Council 9th June 1860 — Security — "Given" — "Entered into" — Supreme Court — Discretion.

IN RE ARTHUR25 VLR 638

MADDEN, C.J.·20 Apr 1900·Supreme Court of Victoria2p·Vol 25 VLR Pt 1

Admission of barristers and solicitorsArticled clerk — Other employment during articles — Leave of Court — English practice — "Rules of Supreme Court," 26th November 1892, rr. 5, 18, Schedules A and B — 23 & 24 Vict., c. 127, s. 10; 37 & 38 Vict., c. 68, s. 4.

AUSTRALIAN GOLD RECOVERY CO. LTD. v. GRAY25 VLR 677

Upon a subsequent day the parties renewed the application asking for leave to amend the order giving leave to appeal.·15 May 1900·Practice Court3p·Vol 25 VLR Pt 1

Appeal to Privy CouncilSecurity ordered to be lodged — Payment of money into bank — Abandonment of appeal — Payment out — Practice.

EASTWOOD v. STRIBLING26 VLR 129

HOLROYD, A’BECKETT and HOOD, JJ.·6 Aug 1900·Supreme Court of Victoria (Full Court)10p·Vol 26 VLR Pt 1

Action for malicious prosecutionEvidence, admissibility of — Precious transactions, evidence of — Wrongful rejection of evidence.

IN RE O’FARRELL26 VLR 195

HOOD, J.·30 Jul 1900·Supreme Court of Victoria2p·Vol 26 VLR Pt 1

ArbitrationEnforcement of award — Submission made a rule of Court — Appointment of arbitrator.

IN RE PRIOR26 VLR 230

MADDEN, C.J.·14 Sept 1900·Supreme Court of Victoria6p·Vol 26 VLR Pt 1

ExecutorCommission — Passing accounts — Trustee company co-executor — Administration and Probate Act 1890 (No. 1060), s. 26.

A personal executor may be allowed commission on passing his accounts, his co-executora trustee company — having already received commission.

IN RE THE WILL AND ESTATE OF BRODIE26 VLR 562

A’BECKETT, HOOD, JJ., and MADDEN, C.J.·10 Dec 1900·Supreme Court of Victoria (Full Court)22p·Vol 26 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), Part V.Power of appointment by deed or will — Will operating as exercise of power of appointment — Direction to pay debts out of property subject to power of appointment — "Personal estate of or to which deceased was at his death possessed or entitled" — "Real estate comprised in such will" — Liability to probate duty — Nature of testator's interest in property in his lifetime — Intention of testator as to disposition of property subject to power of appointment — Wills Act 1890 (No. 1159), s. 25.

IN RE NEVITT26 VLR 822

MADDEN, C.J., WILLIAMS and HOOD, JJ.·27 May 1901·Supreme Court of Victoria (Full Court)3p·Vol 26 VLR Pt 1

Articled clerkService under articles — Continuous service — Supplementary articles — Legal Profession Practice Act 1891 (No. 1216), s. 15 (3).

PERRY v. SMITH27 VLR 66

WILLIAMS, HOLROYD, and A’BECKETT, JJ.·7 Jun 1901·Supreme Court of Victoria (Full Court)4p·Vol 27 VLR Pt 1

AppealsSpecial bar to appeal to the Full Court — Interlocutory order — Onus of proof — Conditions precedent to granting of special leave to appeal — Supreme Court Act 1900 (No. 1696), s. 2 (1) (6).

MAHER v. ORR27 VLR 329

WILLIAMS, J.·3 Oct 1901·Supreme Court of Victoria7p·Vol 27 VLR Pt 1

Appeal to General SessionsNon-appearance of respondent either by himself or counsel — Allowance of appeal — Quashing of conviction — Justices represented by counsel — Practice of Court of General Sessions — Justices Act 1890 (No. 1105), s. 128.

SKINNER v. THE TRUSTEES EXECUTORS AND AGENCY COMPANY LIMITED27 VLR 377

A’BECKETT, J.·25 Sept 1901·Supreme Court of Victoria4p·Vol 27 VLR Pt 1

Appeal to Privy CouncilOrder in Council — Appealable amount — Practice.

WARNOCK v. McCULLOCH28 VLR 117

MADDEN, C.J., WILLIAMS, and A’BECKETT, JJ.·10 Jun 1902·Supreme Court of Victoria (Full Court)2p·Vol 28 VLR Pt 1

Appeal from nonsuitGrant of new trial — Costs of former trial.

IN RE MacDONALD28 VLR 222

MADDEN, C.J., HOOD, WILLIAMS, HOLROYD, and A’BECKETT, JJ.·3 May 1902·Supreme Court of Victoria (Full Court)9p·Vol 28 VLR Pt 1

Articled clerkLeave to engage in other business during articles — "Rules of the Supreme Court for admission of Barristers and Solicitors," 26th November 1892, r. 18 — English Practice — 23 & 24 Vict., c. 127, s. 10-37 & 38 Vict., c. 68, s. 4 — Legal Profession Practice Act 1891 (No. 1216), s. 11 (3) — Legal Profession Practice Act 1895 (No. 1387), s. 5.

IN THE ESTATE OF STOREY28 VLR 336

HODGES, J.·16 Oct 1902·Supreme Court of Victoria3p·Vol 28 VLR Pt 1

Administration and Probate Act 1890 (No. 1060) ss. 15, 16Administration bond — Application to dispense with sureties — Consent of persons interested — Requirements by Court before granting application.

IN THE ESTATE CLARKE28 VLR 447

MADDEN, C.J., A’BECKETT, J., HOLROYD, J.·30 Oct 1902·Supreme Court of Victoria (Full Court)18p·Vol 28 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), Part V., ss.97, 98Probate duty — Bona notabilia — Locality of specialty debts — Specialty debts secured by mortgage of lands outside Victoria — Liability of to probate duty — Extent to which dutiable.

MAYOR, ETC., OF ESSENDON v. LAPISH28 VLR 549

HODGES, J.·17 Dec 1902·Supreme Court of Victoria5p·Vol 28 VLR Pt 1

Action for debt in Supreme Court which might have been brought in County CourtApplication to stay proceedings upon payment of debt — Action to establish charge on land in respect of unpaid rates — Jurisdiction — Costs against applicant — County Court Act (No. 1078), s. 49.

ROWE v. EQUITY TRUSTEES EXECUTORS AND AGENCY COMPANY28 VLR 645

MADDEN, C.J., A’BECKETT, and HOOD, JJ.·2 Mar 1903·Supreme Court of Victoria (Full Court)3p·Vol 28 VLR Pt 1

AppealsLeave to appeal — Ex parte application to the Full Court — Notice to other side, when given — Supreme Court Act 1900 (No. 1696), s. 2(1)(b), sub-s. (4) — Appeal Book, necessity for — Submission of Appeal Book to primary Judge — "Rules of the Supreme Court 1900" — Order LVIII., r. 7.

THE KING v. AUSTIN29 VLR 82

A’BECKETT, J.·18 Mar 1903·Supreme Court of Victoria8p·Vol 29 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 112Duty payable on voluntary settlement — Trusts or dispositions to take effect after death of settlor — Settlor divesting himself of all interest in settled property.

WHITING v. THOMPSON29 VLR 89

A’BECKETT, J.·1 Jan 1929·Supreme Court of Victoria3p·Vol 29 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 112Probate duty — Settlements.

IN RE PHILLIPS29 VLR 170

HODGES, J.·25 Jun 1903·Supreme Court of Victoria3p·Vol 29 VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 40Sealing probate in Victoria — "Executor and administrator therein named," meaning of.

KANNULUIK v. MAYOR, ETC., OF HAWTHORN29 VLR 433

HODGES, J.·30 Nov 1903·Practice Court5p·Vol 29 VLR Pt 1

Appeal to Privy CouncilOrder in Council — Judgment respecting property or civil right amounting to or of the value of 500l. — Costs of repair of drain, subject matter of dispute.

MARTELL v. VICTORIAN COAL MINERS’ ASSOCIATION29 VLR 475

MADDEN, C.J., A’BECKETT, HODGES, and HOOD, JJ.·10 Sept 1903·Supreme Court of Victoria (Full Court)50p·Vol 29 VLR Pt 1

Action, cause ofInterference with legal right — Intent to injure — Lawful excuse — Combination to further own interests — Trades union — Combination doing illegal act or using illegal means to effect its purpose — Illegal conspiracy — Interference with employment — Coercion of employer — Threat of illegal strike — Strike of workmen — Procuring breach of contract — Damage.

HERMAN v. THE MOUNT LYELL MINING AND RAILWAY COMPANY LIMITED29 VLR 550

HOLROYD, J.·16 Oct 1903·Supreme Court of Victoria9p·Vol 29 VLR Pt 1

Assignment of debtEquitable assignment — Letters — Promise by debtor of assignor to pay to assignee a future debt — Request by assignor to assignee to accept such promise against his debt to assignee — Book Debts Act 1896 (No. 1424), ss. 2, 3 — Applicability to foreign debts.

IN THE WILL OF ROFE29 VLR 681

A’BECKETT, J.·21 Apr 1904·Supreme Court of Victoria3p·Vol 29 VLR Pt 1

Administration and Probate Act 1890, ss. 39, 40Exemplification of probate — Probate granted in New South Wales to three executors — Application for re-sealing by one only.

SUTTONS PROPRIETARY LIMITED v. RICHARDS29 VLR 743

HOOD, J.·1 Jun 1904·Supreme Court of Victoria5p·Vol 29 VLR Pt 1

Agreement for purchase and hireHirer to pay monthly rent till total sum paid — Absolute contract to purchase — Arrears of instalments — Use and hire — Form of action — Jurisdiction of justices.

THE NATIONAL TRUSTEES EXECUTORS AND AGENCY COMPANY LIMITED v. O’HEA29 VLR 814

A’BECKETT, J.·26 Apr 1904·Supreme Court of Victoria16p·Vol 29 VLR Pt 1

Administration and Probate Acts, 1890 (No. 1060), Part V.; 1903 (No. 1815), ss. 3, 11Properties transferred by way of gift, etc., during life of donor — Probate duty — Whether payable by transferred properties or by estate — Effect of provision in will for payment of duty payable on estate — Donatio mortis caus — Gift by master to servant of goods in custody of servant — Promise of a gift to charity — Expenditure by others induced thereby — Whether promise enforceable against estate of promisor — Contract.

WEBSTER v. SHAWVLR 1

A’BECKETT, J.·29 Aug 1904·Supreme Court of Victoria3p·Vol [1905] VLR Pt 1

Appeal to Privy CouncilMotion for leave to appeal — Order in Council of 9th June 1860 — "Final judgment decree or order" — Decision of Full Court on a reference.

IN THE WILL OF MEARESVLR 4

MADDEN, C.J., HODGES and HOOD, JJ.·12 Sept 1904·Supreme Court of Victoria7p·Vol [1905] VLR Pt 1

Administration and Probate Act 1903 (No. 1815), s. 11Transfer in consideration of marriage — Gift — Covenant to transfer — Immediate gift.

WEBSTER v. SHAWVLR 200

MADDEN, C.J., HOLROYD and HOOD, JJ.·8 Feb 1905·Supreme Court of Victoria4p·Vol [1905] VLR Pt 1

Appeal to Privy CouncilOrder in Council 9th June 1860 — "Final judgment order or sentence of the Supreme Court" — Decision of Full Court on a reference by primary Judge — Costs of appeal — Practice.

SHARP v. SOUTHERNVLR 223

HODGES, J.·28 Feb 1905·Supreme Court of Victoria5p·Vol [1905] VLR Pt 1

Attorney and solicitorWork and labour done, right of solicitor to sue for — Justices, jurisdiction of in case of written agreement.

PERMEZEL v. HOLLINGWORTHVLR 321

MADDEN, C.J.·18 Apr 1905·Practice Court5p·Vol [1905] VLR Pt 1

Administration and Probate Act 1890 (No. 1060), ss. 8, 9, 40, 44Attorney under power of English administrator — Victorian assets, right of Victorian administrator to distribute.

HOLDEN v. BLACKVLR 326

A’BECKETT, J., Madden, C.J., Holroyd, J.·7 Apr 1905·Supreme Court of Victoria25p·Vol [1905] VLR Pt 1

Administration bondRights and liabilities of sureties — Right of sureties to relief against loss actually incurred — Covenant by administratrix to administer according to law and to indemnify sureties against loss — Breaches of duty by administratrix proving beneficial to estate — Right of sureties to damages for breach of covenant — Acceptance of nominal damages — Right of sureties to bring administration suit — Quia timet action — Right of sureties to injunction to prevent maladministration — Affirmative and negative covenants — Injunction or damages — Exercise of discretion — Party not appellant appearing on appeal — Costs.

MURPHY v. AINSLIEVLR 350

A’BECKETT, HODGES, and HOOD, JJ.·4 Apr 1905·Supreme Court of Victoria12p·Vol [1905] VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 103Apportionment of liability to duty as between beneficiaries — Liability to duty of annuity directed to be raised on land — Sum charged upon land — "Legacy or bequest."

IN RE THE INCOME TAX ACTSVLR 463

HODGES, J.·28 Mar 1905·Supreme Court of Victoria8p·Vol [1905] VLR Pt 1

Appeal to Privy CouncilIncome Tax Acts — Liability to tax of salary of Federal officer — Leave to appeal to the Privy Council from decision of State Court — Imperial Order in Council of 9th June 1860 — Power of Commonwealth Parliament to take away right of appeal — Commonwealth of Australia Constitution Act, 63 & 64 Vict., c. 12, ss. 73, 74, 77 — Commonwealth Judiciary Act 1903, ss. 30, 38, 39 — "Invested" — "Federal" jurisdiction of State Courts.

HEWARD v. THE KINGVLR 548

MADDEN, C.J., HOLROYD and HOOD, JJ.·4 Aug 1905·Supreme Court of Victoria7p·Vol [1905] VLR Pt 1

Administration and Probate Act 1903 (No. 1815), s. 11Property chargeable with duty — Probate — Duty — Gifts — "Part of the estate of donor."

IN RE WALLISVLR 671

A’BECKETT, J.·3 Aug 1905·Supreme Court of Victoria3p·Vol [1905] VLR Pt 1

Administration and Probate Act 1890 (No. 1060), ss. 15, 40, 43Supreme Court Act 1890 (No. 1142), s. 20 — Probate jurisdiction — Sealing letters of administration granted in another colony — Administration bond — Power of Court to dispense with bond.

BAYNE v. BLAKEVLR 112

MADDEN, C.J., HOLROYD, J., HODGES, J.·4 Dec 1905·Supreme Court of Victoria8p·Vol [1906] VLR Pt 1

Administration and Probate Act 1890 (No. 1060), ss. 15-17Bond — Sureties — Agreement by beneficiaries to release and indemnify sureties for loss arising from maladministration — Public policy.

IN THE WILL OF HOWELLVLR 223

HOLROYD, Acting C.J., A’BECKETT and HODGES, JJ.·7 Mar 1906·Supreme Court of Victoria2p·Vol [1906] VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 26Legacy to executors and trustees "as remuneration for acting as trustees" — Commission.

IN RE RALSTONVLR 689

CUSSEN, J.·5 Aug 1906·Supreme Court of Victoria15p·Vol [1906] VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 40Intestate Estates Act 1896 (No. 1419) — Intestate dying domiciled out of Victoria — Widow's charge of 1000l. — Mortgage debt, movable or immovable — Debts to be paid out of Victorian estate — Apportionment.

BAYNE v. BLAKEVLR 145

[Coram GRIFFITH, C.J., BARTON AND O’CONNOR, JJ.]·18 Sept 1906·In the High Court of Australia2p·Vol [1907] VLR Pt 1

Administration and Probate Act 1890 (No. 1060), ss. 15-17Bond — Sureties — Agreement by beneficiaries to release and indemnify sureties for loss arising from maladministration — Public policy — Solicitor and client — Fiduciary relation — Contract induced by fraud.

IN THE ESTATE OF GHILLMETEIVLR 657

HOOD, J.·12 Sept 1907·Supreme Court of Victoria3p·Vol [1907] VLR Pt 1

AdministrationStale application for — Sole asset an interest in remainder in land — Application after death of life tenant.

IN RE ALLENVLR 20

CUSSEN, J.·31 Oct 1907·Supreme Court of Victoria3p·Vol [1908] VLR Pt 1

Administration and Probate Act 1890 (No. 1060), ss. 15, 16Probate practice — Administration bond — Dispensing with bond — Jurisdiction.

ROBERTSON v. ROHSVLR 68

MADDEN, C.J.·28 Oct 1908·Supreme Court of Victoria8p·Vol [1909] VLR Pt 1

Artificial Manures Act 1904 (No. 1930), ss. 11, 16, 17Artificial manure taken and collected by chemist for analysis — "Place where manure is stored," meaning of.

RICHARDS v. JAGERVLR 140

MADDEN, C.J.·25 Feb 1909·Supreme Court of Victoria10p·Vol [1909] VLR Pt 1

Attachment of debtsTrust fund — Judgment debtor trustee — Right and duty of trustee to oppose attachment of trust fund — Justices Act 1890 (No. 1105), s. 117 — Decision of justices against uncontradicted evidence — Duty to give reasons.

IN RE COVERDALEVLR 248

CUSSEN, J.·7 May 1909·Supreme Court of Victoria3p·Vol [1909] VLR Pt 1

Administration and Probate Act 1907 (No. 2120), s. 5 (1)Executors — Discharge of one — Appointment of administrator in his place — Necessity of — Discretion of Judge.

WHITING v. McGINNISVLR 250

MADDEN, C.J., A’BECKETT, J., HODGES, J.·10 May 1909·Supreme Court of Victoria12p·Vol [1909] VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 112Administration and Probate Act 1903 (No. 1815), ss. 8 and 9 — Settlement — Duty — Trusts and dispositions to take effect after death — Repeal of exemptions — Retrospective effect of.

IN THE WILL OF BASSEVLR 313

MADDEN, C.J.·17 Jun 1909·Supreme Court of Victoria6p·Vol [1909] VLR Pt 1

Administration cum testamento annexoApplication by beneficiary — Notice to beneficiary with prior right — Right of Curator of Intestate Estates to appear on such application — Right of corporation aggregate to administration — Grant to syndics of corporation aggregate — Power of Court to take goods of deceased into its own hands.

IN THE WILL AND ESTATE OF KEYSVLR 325

MADDEN, C.J.·17 Jun 1909·Supreme Court of Victoria2p·Vol [1909] VLR Pt 1

AdministrationExecutor of executor — Right to renounce as to first testator's estate — Administration and Probate Act 1907 (No. 2120). s. 5.

IN RE FREEMAN v. KEMPSTERVLR 394

A’BECKETT, J.·30 Aug 1909·Supreme Court of Victoria4p·Vol [1909] VLR Pt 1

ArbitrationSubmission to — Bankruptcy of one of the parties — Revocation by other party of authority of arbitrator appointed by bankrupt — Necessity of obtaining leave of Court therefor — Incorporation of laws of Victoria in submission — Supreme Court Act 1890 (No. 1142), ss. 141, 160.

IN THE ESTATE OF MORRISVLR 425

A’BECKETT, HODGES, and HOOD, JJ.·3 Sept 1909·Supreme Court of Victoria5p·Vol [1909] VLR Pt 1

Administration and ProbateIntestate — Next of kin entitled to administration resident abroad — Authority to trustee company to obtain administration — Form of grant — The Perpetual Executors and Trustees Association Act (No. 840), s. 4.

IN THE WILL OF MITCHELLVLR 44

A’BECKETT, J.·13 Dec 1909·Supreme Court of Victoria2p·Vol [1910] VLR Pt 1

Administration practiceAdministration and Probate Act 1907 (No. 2120), s. 5 (1) (2) — Removal of executor — Parties to summons — Directions of Judge.

IN RE BENNETT BROTHERSVLR 51

MADDEN, C.J.·2 Feb 1910·Supreme Court of Victoria4p·Vol [1910] VLR Pt 1

ArbitrationAward — Discovery of material evidence after publication of award — Want of diligence on part of party in whose favour evidence is — Referring back award — Amendment of award.

ACKERLY v. PALMERVLR 339

CUSSEN, J.·29 Jun 1910·Supreme Court of Victoria9p·Vol [1910] VLR Pt 1

AdministrationSureties — Transfer of assets to sureties, validity of — Breach of trust — Parties.

IN THE ESTATE OF GREENWAYVLR 469

HOOD, J.·28 Sept 1910·Supreme Court of Victoria3p·Vol [1910] VLR Pt 1

AdministrationProbate and Administration Rules 1906, rr. 4, 15 — Grant of limited administration — "Peculiar circumstances" — Power to dispense with compliance with rules.

IN THE TRUSTS OF ROSENTHAL’S SETTLEMENTVLR 55

HODGES, J.·23 Aug 1910·Supreme Court of Victoria6p·Vol [1911] VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 112Administration and Probate Act 1903 (No. 1815) ss. 8, 9, Schedule II., Part II. — Settlement — Trusts or dispositions to take effect after the death of the settlor — Trusts to take effect upon death of survivor of settlor and wife — Death of settlor before wife — Settlement chargeable with duty — Trusts or dispositions which may take effect either before or after the death of settlor — Property withdrawn from settlement in pursuance of trusts before death of settlor — Only property subject to settlement at time of settlor's death chargeable with duty.

IN RE JOHNSONVLR 263

A’BECKETT, J.·10 May 1911·Supreme Court of Victoria5p·Vol [1911] VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 26Commission — Corpus — Time to apply.

BROOKES v. THE KINGVLR 371

A’BECKETT, J.·21 Aug 1911·Supreme Court of Victoria5p·Vol [1911] VLR Pt 1

Administration and Probate Act 1890 (No. 1060), s. 99Valuation of estate — Appointment of valuator by Commissioner — Valuation by Commissioner — Procedure by summons — Duties Collection Act 1910 (No. 2287), s. 2.

THE COMMISSIONER OF TAXES v. LANGVLR 459

A’BECKETT, J., HODGES, J. and HOOD, J.·6 Sept 1911·Supreme Court of Victoria6p·Vol [1911] VLR Pt 1

Administration and Probate Act 1903 (No. 1815), s. 11Probate duty — Immediate gift — Possession and enjoyment to exclusion of donor — Transfer subject to lease by donees to donor.

IN THE WILL OF SYNOTVLR 99

HOOD, J.·9 Mar 1912·Supreme Court of Victoria3p·Vol [1912] VLR Pt 1

Administration and Probate Act 1907 (No. 2120), s. 7Authority to trustee company — Revocation — Form of authority — Form of application.

BOND v. MORRISVLR 351

MADDEN, C.J., HODGES, J., and HOOD, J.·7 Aug 1912·Supreme Court of Victoria13p·Vol [1912] VLR Pt 1

Action, cause ofInducing employer not to engage workman — Interference — Just cause or excuse — Self-interest — Motive.

IN RE TIMMVLR 460

CUSSEN, J.·25 Oct 1912·Supreme Court of Victoria3p·Vol [1912] VLR Pt 1

Administration and Probate Act 1911 (No. 2342), ss. 3, 4Executor — "Claim against estate" — Intention of person to apply to revoke probate — Application to bar, or for leave to disregard, unprosecuted claim against estate.

IN RE LANGDONVLR 106

HODGES, J.·21 Feb 1913·Supreme Court of Victoria2p·Vol [1913] VLR Pt 1

AdministrationPractice — Person primarily entitled to administration out of the jurisdiction — Grant to trustee company nominated by only kin within the jurisdiction.

IN RE WATMOUGHVLR 435

MADDEN, C.J., HODGES and CUSSEN, JJ.·5 Sept 1913·Supreme Court of Victoria6p·Vol [1913] VLR Pt 1

Administration and ProbateAttorney under power of English executor — Sealing of exemplification of English probate by attorney — Devolution of office of executor — Executor of attorney, position of — Administration and Probate Act 1890 (No. 1060), ss. 40, 44.

IN THE WILL OF BETTSVLR 302

A’BECKETT, J.·4 Apr 1914·Supreme Court of Victoria4p·Vol [1914] VLR Pt 1

Administration and probateCodicil — Validity of — Execution — Writing other than signature not seen by witnesses — Wills Act 1890 (No. 1159), s. 7.

IN THE ESTATE OF WILLIAMSVLR 417

A’BECKETT, A.C.J.·23 Jul 1914·Supreme Court of Victoria3p·Vol [1914] VLR Pt 1

Administration and ProbateAdministration — Order to administer granted to Public Trustee in Tasmania — Deceased domiciled in Tasmania — Property in Victoria — Curator of Intestate Estates — Who entitled to administer — Administration and Probate Act 1890 (No. 1060), ss. 40, 44, 52, 55.

IN RE DICK’S SETTLEMENTVLR 540

A’BECKETT, A.C.J., HODGES, J. and HOOD, J.·14 Sept 1914·Supreme Court of Victoria5p·Vol [1914] VLR Pt 1

Administration and ProbateDuty — Administration and Probate Act 1890 (No. 1060), s. 112 — Administration and Probate Act 1903 (No. 1815), s. 8 — Settlement — Trusts and dispositions which may take effect upon the death of the settlor — No property subject to settlement at time of settlor's death — Settlement not chargeable with duty.

IN THE WILL OF ELFORDVLR 609

A’BECKETT, J.·12 Oct 1914·Supreme Court of Victoria3p·Vol [1914] VLR Pt 1

Administration and probateProbate duty — Statement for duty — Deductions — Debts due — Debt barred by Statute of Limitations — Administration and Probate Act 1890 (No. 1060), s. 97.

IN THE WILL OF RICHARDSVLR 39

A’BECKETT, A.C.J.·9 Nov 1914·Supreme Court of Victoria3p·Vol [1915] VLR Pt 1

Administration and probatePractice — Commission — Future commission — Executors and trustees — Passing accounts.

RE SHANNONVLR 64

A’BECKETT, A.C.J.·7 Dec 1914·Supreme Court of Victoria3p·Vol [1915] VLR Pt 1

Administration and probatePractice — Foreign will — Sealing exemplification — Power of attorney, sufficiency of — Administration and Probate Act 1890 (No. 1060), s. 40.

IN THE WILL OF WILKINSONVLR 77

HODGES, J.·18 Feb 1915·Supreme Court of Victoria4p·Vol [1915] VLR Pt 1

Administration and probateWill — Execution — Probate — Incorporation by reference of document not duly executed — Will leaving property "as per enclosed my last will and testament" — Writing entitled "Last will and testament" on back of will making disposition of property.

IN RE GIBBVLR 126

A’BECKETT, A.C.J., HODGES, J., HOOD, J.·2 Mar 1915·Supreme Court of Victoria16p·Vol [1915] VLR Pt 1

Administration and probateProbate duty — Immediate gift — Possession and enjoyment to the exclusion of the donor — Husband and wife — Money supplied by husband to pay for house intended to be bought by wife — Whether gift of money — Gift by husband to wife of house — House used as matrimonial domicil — Administration and Probate Act 1903 (No. 1815), s. 11 — Administration and Probate Act 1890 (No. 1060), s. 98 — Right of husband to live in wife's house.

IN RE GIBBVLR 279

[Coram GRIFFITH, C.J., ISAACS AND RICH, JJ.]·15 Jun 1915·In the High Court of Australia11p·Vol [1915] VLR Pt 1

Administration and probateProbate duty — Immediate gift — Possession and enjoyment to exclusion of donor — Husband and wife — Money supplied by husband to pay for house bought by wife — Gift of money or of house — House used as matrimonial domicil — Administration and Probate Act 1903 (No. 1815), s. 11.

IN THE WILL OF RAPHAELVLR 350

A’BECKETT, J.·24 May 1915·Supreme Court of Victoria6p·Vol [1915] VLR Pt 1

Administration and ProbateExecutor and trustee — Commission — Legacy to executors and trustees who shall act — Trustee acting as agent empowered to charge as such — Allowance of further commission — Administration and Probate Act 1890 (No. 1060), s. 26.

BROWN v. THE BANK OF AUSTRALASIAVLR 453

HOOD, J.·10 Aug 1915·Supreme Court of Victoria4p·Vol [1915] VLR Pt 1

AssignmentChose in action — Judgment debt, assignment of — "Express notice in writing," what amounts to — Deed of assignment shown to debtor — Execution issued by assignor — Validity of — Supreme Court Act 1890 (No. 1142), s. 63, sub-s. 6 — Rules of Supreme Court 1906 — Order XIV. A, r. 1.

IN THE WILL OF BAKERVLR 535

HOOD, J.·16 Sept 1915·Supreme Court of Victoria4p·Vol [1915] VLR Pt 1

Administration and probateProbate granted in United Kingdom — Sealing in Victoria — Application by attorney under power of executors — Power of attorney — Execution of — Verification — Evidence — Mode of proof — Imperial Statute — Oaths and Affirmations Act 1835 (5 & 6 Will IV., c. 62), s. 16 — Whether in force in Victoria — Administration and Probate Act 1890 (No. 1060), s. 40 — Rules of the Supreme Court 1906 — Order XXXVIII., r. 6 — Probate and Administration Rules of 1st February 1907, r. 11.

THE KING v. THE REGISTRAR OF TITLESVLR 622

CUSSEN, J.·11 Oct 1915·Supreme Court of Victoria7p·Vol [1915] VLR Pt 1

Administration and probateAdministration and Probate Act 1907 (No. 2120), s. 5 — Transfer of Land Act 1890 (No. 1149), s. 193 — Transfer of Land Act 1915 (No. 2740), s. 232 — Executor, removal of — Two executors — Executors of executor — Jurisdiction — Registration of continuing executor under Transfer of Land Act 1890 — Rules of Supreme Court 1909, chap. iii., r. 18a.

IN RE CURRIE’S SETTLEMENTSVLR 675

HOOD, J.·13 Oct 1915·Supreme Court of Victoria8p·Vol [1915] VLR Pt 1

Administration and ProbateAdministration and Probate Act 1890 (No. 1060), s. 112 — "Property" — Administration and Probate Act 1903 (No. 1815), s. 9 (2) — Settlement — Property comprised therein partly situate in Victoria, partly else-where — Duty payable in respect of what property — Property originally comprised in settlement — Property in Victoria at settlor's death — Procedure by originating summons.

IN THE WILL OF DUNCANVLR 1

A’BECKETT, J.·25 Nov 1915·Supreme Court of Victoria2p·Vol [1916] VLR Pt 1

Administration and probateWill, validity of — Will not executed in conformity with Wills Act — Later valid will — Subsequent codicil executed after later will on back of earlier informal will — Informal will, whether incorporated and validated by codicil — Intention — Probate granted of later will and codicil only.

IN RE CURRIE’S SETTLEMENTSVLR 139

[Coram GRIFFITH, C.J., ISAACS, DUFFY, AND RICH, JJ.]·24 Feb 1916·In the High Court of Australia10p·Vol [1916] VLR Pt 1

Administration and probateAdministration and Probate Act 1890 (No. 1060), s. 112 — Administration and Probate Act 1903 (No. 1815), s. 9 (2) — Settlement — Property comprised therein partly situate in Victoria, partly elsewhere — Duty payable in respect of what property — Property originally comprised in settlement — Property in Victoria at settlor's death.

IN THE WILL OF FINNVLR 165

HODGES, J.·3 Dec 1915·Supreme Court of Victoria4p·Vol [1916] VLR Pt 1

Administration and probatePractice — Probate — Caveat — Discovery — Discretion of Court to order general discovery — Rules of the Supreme Court 1906, c. 111 (Probate and Administration), r. 32.

STRAUSS v. WYKESVLR 200

MADDEN, C.J.·4 Mar 1916·Supreme Court of Victoria12p·Vol [1916] VLR Pt 1

Administration and probatePractice — Commission — Executors — Administrators — Trustees — Passing accounts — Future commission — Form of order — Application ex parte — Application in suit or by originating summons — Duty of trustees as to keeping and passing accounts — Costs — When allowable out of estate — Administration and Probate Act 1915 (No. 2611), s. 34; Supreme Court Act 1915 (No. 2733), s. 18.

IN RE NICKSONVLR 274

A’BECKETT, J.·24 Mar 1916·Supreme Court of Victoria12p·Vol [1916] VLR Pt 1

Administration and ProbateProbate — Will — Solicitor and client — Gift to solicitor of testatrix — Onus probandi — Independent advice.

IN RE SALMONVLR 288

A’BECKETT, J.·13 Apr 1916·Supreme Court of Victoria4p·Vol [1916] VLR Pt 1

Administration and ProbateAuthority to trustee company to apply for probate — Withdrawal of authority by consent — Rights of executor — Administration and Probate Act 1915 (No. 2611), s. 7 (1), 8.

IN THE WILL OF JOHNSONVLR 502

CUSSEN, J.·6 Jul 1916·Supreme Court of Victoria2p·Vol [1916] VLR Pt 1

Administration and probateAdministration bond — Sureties — Dispensing with — Public Trustee of South Australia — South Australian letters of administration sealed in Victoria — Administration and Probate Act 1915 (No. 2611), ss. 19, 51.

IN THE ESTATE OF HOWARDVLR 503

CUSSEN, J.·1 Aug 1916·Supreme Court of Victoria4p·Vol [1916] VLR Pt 1

Administration and probateAdministration — Application for — Trustee company — Authority — Next of kin — Person entitled to obtain administration — Person, to whom administration would be granted, of kin of intestate but not entitled to share in estate — Whether such person is one of "next of kin" who may authorize application — The Perpetual Executors and Trustees Association's Act (49 Vict., No. 840), s. 4; Administration and Probate Act 1915 (No. 2611), s. 7 (2).

CAMPBELL v. THE KINGVLR 673

A’BECKETT, J.·25 Oct 1916·Supreme Court of Victoria8p·Vol [1916] VLR Pt 1

Administration and probateSettlement containing trusts or dispositions to take effect after death — Duty — Person taking child of settlor — Half rate "if total value of whole of estate of deceased under 2000l." — "Whole estate of deceased" — Meaning of — Administration and Probate Act 1915 (No. 2611), s. 147, Tenth Schedule, Part III., Clause I. (Proviso).

IN RE McINNESVLR 173

HOOD, J.·16 Feb 1917·Supreme Court of Victoria2p·Vol [1917] VLR Pt 1

Administration and probateGrant of letters of administration — Sureties to bond — Secured creditors — Notice to — Dispensing with sureties — Practice — Administration and Probate Act 1915 (No. 2611), s. 18.

IN RE ELLIOTTVLR 322

HODGES, J.·5 Jun 1917·Supreme Court of Victoria2p·Vol [1917] VLR Pt 1

Administration and probateProbate — Soldier's will — Testator under twenty-one years of age — "Being in actual military service" — Wills Act 1915 (No. 2749), ss. 6, 10.

STONEHOUSE v. BONDVLR 467

HOOD, J.·22 Aug 1917·Supreme Court of Victoria5p·Vol [1917] VLR Pt 1

Attachment of debtGarnishors and garnishee — Priority of claims — Garnishee paying without going into Court — Another garnishor seeking to make absolute his order nisi — Position of — Justices Act 1915 (No. 2675), ss. 125 to 128, Second Schedule, Forms 70 and 71 — Rules of the Supreme Court 1916 — Order XLV., r. 1.

THE KING v. THE COMMISSIONER OF TAXESVLR 526

HODGES, J.·7 Sept 1917·Supreme Court of Victoria4p·Vol [1917] VLR Pt 1

Administration and probateExecutor's statement — Inclusion of debt or liability — Contingent amount — Request to Commissioner to state Special Case — Refusal — Discretion — Mandamus — Administration and Probate Act 1915 (No. 2611), s. 124.

IN RE THE WILL OF MOORHOUSEVLR 530

HODGES, J.·5 Sept 1917·Supreme Court of Victoria2p·Vol [1917] VLR Pt 1

Administration and probateEnglish probate — Attorney of English executors — Probate sealed in Victoria — Victorian assets — Application by Victorian executor for leave to pass accounts and for commission — No beneficiary in Victoria — Motion ex parte — Costs of applicant out of estate — Administration and Probate Act 1915 (No. 2611), s. 34.

IN RE HORSFALL’S SETTLEMENTSVLR 535

MADDEN, C.J., HODGES, J., and HOOD, J.·4 Sept 1917·Supreme Court of Victoria14p·Vol [1917] VLR Pt 1

Administration and probateSettlement — Duty — Gift to persons in being with limitations to persons who may not be in being at death of settlor — Whether gift inter vivos — Death of settlor within twelve months of settlement — Settlement of proceeds of contract for sale of land in New South Wales — Settlor domiciled and resident in Victoria — Purchaser domiciled and resident in New South Wales — Locality of debt irrelevant — Victorian assets — Administration and Probate Act 1915 (No. 2611), s. 143.

IN RE WARRENVLR 209

CUSSEN, J.·13 Mar 1918·Supreme Court of Victoria10p·Vol [1918] VLR Pt 1

Administration and probateAdministration — All assets believed to have been got in — Assets insufficient to pay creditors in full — Release by creditors — Subsequent discovery of fresh assets — Conflicting claims of creditors and next of kin — Effect of release — Statute of Limitations — Rights of creditors prejudiced by delay of administrator in disclosing discovery of fresh assets — Circumstances in which it would be inequitable to allow administrator to raise the statute or the analogous rule in Equity — Company — Dissolution — Bona vacantia — Rights of Crown — Companies Act 1915 (No. 2631), ss. 22 (2), 230 et seq. — Supreme Court Act 1915 (No. 2733), ss. 79 (1) (d), 85 (4).

IN RE HORSFALL’S SETTLEMENTSVLR 242

[Coram BARTON, GAVAN DUFFY, AND RICH, JJ.]·20 Mar 1918·In the High Court of Australia11p·Vol [1918] VLR Pt 1

Administration and probateSettlement — Duty — Gift to persons in being with limitations to persons who may not be in being at the death of the settlor — Whether gift inter vivos — Death of settlor within twelve months of settlement — Settlement of proceeds of contract for sale of land in New South Wales — Contract under seal — Contract not under seal — Settlor domiciled and resident in Victoria — Purchaser domiciled and resident in New South Wales — Interests in reversion and remainder — Choses in action — Locality of debt — Whether debt is Victorian asset — Bona notabilia — Administration and Probate Act 1915 (No. 2611), s. 143.

IN THE WILL OF HALFEYVLR 254

HODGES, J., HOOD, J., CUSSEN, J.·8 Apr 1918·Supreme Court of Victoria4p·Vol [1918] VLR Pt 1

Administration and probateLetters of administration cum testamento annexo — Sealing English letters of administration — Power of attorney — Verification and authentication — Declaration made before a provincial mayor in England — Sufficiency of such declaration — Practice — Administration and Probate Act 1915 (No. 2611), s. 51.

IN RE BALDERSONVLR 257

IRVINE, C.J.·11 Apr 1918·Supreme Court of Victoria3p·Vol [1918] VLR Pt 1

Administration and probatePractice — Letters of administration granted by High Court of Justice in England — Production for sealing with seal of Supreme Court — Power of attorney — Authentication — Attestation of execution by commissioner of Supreme Court for taking affidavits — Verification of commissioner's signature, whether necessary — Administration and Probate Act 1915 (No. 2611), Part III. — Evidence Act 1915 (No. 2647), s. 119.

IN THE WILL OF CAMERONVLR 346

HODGES, J., HOOD, J., CUSSEN, J.·8 Apr 1918·Supreme Court of Victoria4p·Vol [1918] VLR Pt 1

Administration and probatePractice — Executors and trustees — Administrators — Application to pass accounts and for commission — Application for commission only — Costs — When payable out of estate — Administration and Probate Act 1915 (No. 2611), s. 34 — Supreme Court Act 1915 (No. 2733), s. 18.

IN THE WILL AND CODICIL OF CALLOWVLR 406

CUSSEN, J.·20 Jun 1918·Supreme Court of Victoria4p·Vol [1918] VLR Pt 1

Administration and probateGrant of probate — Attestation in presence of testatrix — Witnesses signing in another room — No evidence that testatrix saw witnesses signing — Wills Act 1915 (No. 2749), s. 7.

IN THE WILL AND CODICILS OF McLEODVLR 456

HOOD, J.·19 Jul 1918·Supreme Court of Victoria4p·Vol [1918] VLR Pt 1

Administration and probateExecutor and trustee — Passing accounts — Commission — Order for passing accounts and obtaining commission in the future — Form of order — Costs — Administration and Probate Act 1915 (No. 2611), s. 34.

MATTER OF ARBITRATION BETWEEN BLAND BROS. AND COUNCIL OF BOROUGH OF INGLEWOODVLR 467

HOOD, J., HODGES, J., CUSSEN, J.·6 Jun 1918·Supreme Court of Victoria10p·Vol [1918] VLR Pt 1

ArbitrationAward — Jurisdiction — Injury to land — Flooding — Overflow of water channel — Statutory remedy — Acts — Omissions — Water Act 1915 (No. 2747), ss. 253, 259, 260, 263, 264, 265 — Water Act 1916 (No. 2852), s. 6 — Arbitration Act 1915 (No. 2614), ss. 12, 19.

BIGGS v. WALLACEVLR 502

HOOD, J.·23 Aug 1918·Supreme Court of Victoria4p·Vol [1918] VLR Pt 1

AttachmentContempt — Failure to obey order to pay costs — Prior sequestration of estate in insolvency, effect of — Conviction by justices — Order to review conviction — Whether a continuation of proceedings before justices — "Process against the person" — Debt provable in insolvency — Insolvency Act 1915 (No. 2671), ss. 173, 174, 175.

IN RE GRAHAMVLR 595

IRVINE, C.J.·10 Oct 1918·Supreme Court of Victoria13p·Vol [1918] VLR Pt 1

Administration and probateDuty — Settlement — General power of appointment — Loan by trustee of settlement on mortgage of land in New South Wales — Trustee and mortgagor domiciled in Victoria — Covenant in deed of extension — Deed in Victoria at death of appointor — Covenant to pay in Melbourne — Covenant "so as to bind lands now mortgaged but not so as to incur any liability otherwise" — Effect — Right of executor of appointor to call for payment in Victoria — Victorian property — Costs of Case stated — Jurisdiction — Administration and Probate Act 1915 (No. 2611), ss. 124, 145.

BALLARAT TRUSTEES EXECUTORS AND AGENCY CO. LTD. v. THE KINGVLR 687

CUSSEN, J., IRVINE, C.J., HOOD, J.·14 Nov 1918·Supreme Court of Victoria14p·Vol [1918] VLR Pt 1

Administration and probateDuty — Transfer of land by aged father to sons — Land subject to mortgage — Contract purporting to be sale — Agreement by sons to pay mortgage, sum of money, and annuity to transferor — Undervalue — Knowledge of — Annuity not made payable out of property transferred — Onus of proof — "Purporting to operate as an immediate gift inter vivos" — Meaning of — Duty on whole value of property transferred — Administration and Probate Act 1915 (No. 2611), s. 143.

IN THE WILL OF BREENVLR 124

HOOD, J.·13 Feb 1919·Supreme Court of Victoria2p·Vol [1919] VLR Pt 1

Administration and probateWill — Probate — Mutilation — Specific bequest cut out by testatrix — Signature and part of attestation clause removed in so doing — Inadvertence — No intention to revoke — Restoration.

IN THE WILL OF ROBERTSVLR 125

HOOD, J.·21 Feb 1919·Supreme Court of Victoria4p·Vol [1919] VLR Pt 1

Administration and probateWidows and young children — Maintenance — Application by widow — Husband and wife living apart under separation deed — Maintenance order by justices not fully enforced — Widow not provided for by will of husband — Discretion of Court — Will not unreasonable or capricious — Administration and Probate Act 1915 (No. 2611), ss. 109, 114.

IN THE WILL OF CARTLEDGEVLR 182

HOOD, J.·2 Apr 1919·Supreme Court of Victoria6p·Vol [1919] VLR Pt 1

Administration and probateWill — Probate — Devises to two sons of allotments described in general terms in written instructions executed as a will — Particulars of volume and folio numbers of certificates of title relating to devises afterwards supplied by testator — Allotments of equal area — Wrong numbers attached to respective devises in will and codicil prepared on instructions and particulars — Mistake — No power in Court of Probate to rectify.

IN THE WILL AND ESTATE OF WILSONVLR 298

HOOD, J.·29 Apr 1919·Supreme Court of Victoria6p·Vol [1919] VLR Pt 1

Administration and probatePractice — Grant of administration — When made — Grant by Registrar — Caveat before issue — Effect — Rights of applicant for administration de bonis non and of executrix of executrix — Administration and Probate Act 1915 (No. 2611), ss. 5, 6, 24, 51.

TROY v. WRIGGLESWORTHVLR 433

[Coram BARTON, ISAACS, HIGGINS, GAVAN DUFFY, AND RICH, JJ.]·18 Jun 1919·In the High Court of Australia11p·Vol [1919] VLR Pt 1

AppealHigh Court — Appellate jurisdiction — Court of Petty Sessions invested with Federal jurisdiction — Court not consisting of police magistrate — Matter involving interpretation of Constitution — Information — Offence against State Act — Commonwealth officer — The Constitution (63 & 64 Vict., c. 12), ss. 71, 73, 76, 77 — Judiciary Act 1903-1915 (No. 69 of 1903, No. 47 of 1915), ss. 30, 38, 38A, 39 — Justices Act 1915 (No. 2675), s. 63 — Motor-car Act 1915 (No. 2702), s. 10.

MALONE v. THE REGISTRAR OF TITLESVLR 484

IRVINE, C.J., CUSSEN, J., MANN, J.·1 Aug 1919·Supreme Court of Victoria3p·Vol [1919] VLR Pt 1

AppealPractice — Leave to appeal to Privy Council — Order in Council, 23rd January 1911, rules 2 (a) and 2 (b) — "Question . . . respecting property. . . of the value of 500l." — Discretionary leave — Question of great general or public importance.

IN RE IRONSIDEVLR 552

HOOD, J.·28 Jul 1919·Supreme Court of Victoria2p·Vol [1919] VLR Pt 1

Administration and probatePractice — Executors passing accounts — Order for commission — Beneficiary out of Commonwealth — Procedure by originating summons inapplicable — Ex parte application by executors — Costs.

IN RE EDGARVLR 683

HOOD, J.·30 Oct 1919·Supreme Court of Victoria7p·Vol [1919] VLR Pt 1

Administration and probateAdministration c.t.a. — Soldier's will — Notes or memoranda showing projected disposition of property — Whether intended to have testamentary effect — Wills Act 1915 (No. 2749), s. 10.

THE KING v. BALLARAT TRUSTEES, EXECUTORS AND AGENCY CO. LTD.VLR 104

[Coram ISAACS, GAVAN DUFFY, AND RICH, JJ.]·10 Dec 1919·In the High Court of Australia5p·Vol [1920] VLR Pt 1

Administration and probateDuty — Transfer of land by aged father to sons — Land subject to mortgage — Contract purporting to be sale — Agreement by sons to pay mortgage, sum of money, and annuity to transferor — Undervalue — Onus of proof — "Purporting to operate as an immediate gift inter vivos" — Administration and Probate Act 1915 (No. 2611), s. 143.

KIERNAN v. ALLENVLR 112

SCHUTT, J.·17 Mar 1920·Supreme Court of Victoria4p·Vol [1920] VLR Pt 1

AuctioneerPerson pretending to be an auctioneer — Offence to "cause to be placed any placard board matter or thing in the public view" — Construction — Inserting advertisement in public newspaper, whether included in above words — Ejusdem generis — Auction Sales Act 1915 (No. 2615), s. 31.

IN RE BUTCHERVLR 166

MANN, J.·25 Mar 1920·Supreme Court of Victoria4p·Vol [1920] VLR Pt 1

Administration and ProbateSoldier's will — Will lost or destroyed — Evidence of making will — Declaration by testator as to making and contents.

IN THE WILL OF CORNWALLVLR 360

IRVINE, C.J.·26 Aug 1920·Supreme Court of Victoria6p·Vol [1920] VLR Pt 1

Administration and probateProbate — Deceased domiciled in England — Property in Victoria — English will — Not proved in Victoria — Next of kin in Victoria — In possession of assets in — Liability to pay duty — Administration and Probate Act 1915 (No. 2611), s. 125.

IN THE WILL OF THOMPSONVLR 405

CUSSEN, J.·16 Sept 1920·Supreme Court of Victoria2p·Vol [1920] VLR Pt 1

Administration and probateAdministration — Administrator out of jurisdiction — Bond — Execution — Attorney under power — Administration and Probate Act 1915 (No. 2611), s. 18.

FERGUSON v. THE KINGVLR 451

IRVINE, C.J., CUSSEN AND MANN, JJ.·18 Oct 1920·Supreme Court of Victoria9p·Vol [1920] VLR Pt 1

Administration and probateProbate duty — Gift of property within 12 months before death of donor — Twelve assignments — Principle upon which duty calculated — Assignments to be valued separately — Assignment of foreign property — Sale — Receipt of proceeds in Victoria prior to donor's death — Whether taxable — Administration and Probate Act 1915 (No. 2611), s. 143.

IN RE KENNEDYVLR 513

MANN, J.·7 Sept 1920·Supreme Court of Victoria4p·Vol [1920] VLR Pt 1

Administration and probateMaintenance of widow of deceased person — Will — In favour of testator's sister — No provision for widow — Living apart from husband — Husband subject to mental derangement and cared for by sister — Renunciation of matrimonial obligations — Maintenance out of estate — Administration and Probate Act 1915 (No. 2611), ss. 109, 110.

IN THE WILL OF HILLVLR 140

IRVINE, C.J.·11 Mar 1921·Supreme Court of Victoria4p·Vol [1921] VLR Pt 1

Administration and probateProbate — Resealing foreign probate — Executor of deceased executrix — Not entitled to apply — Administration and Probate Act 1915 (No. 2611), s. 51.

IN THE WILL OF WORTHINGTONVLR 192

IRVINE, C.J.·17 Mar 1921·Supreme Court of Victoria3p·Vol [1921] VLR Pt 1

Administration and probatePractice — Probate — Executrix having possession of will neglecting to prove or renounce — Caveat lodged — Application by caveator to compel executrix to bring will into Court — Affidavit in support — Contents of — Probate Rules of 1854 — No caveat, provision for setting forth by affidavit — Whether ultra vires — Administration and Probate Act 1915 (No. 2611), ss. 17, 32.

LUNDGREN v. O’BRIENVLR 200

CUSSEN, J. and McARTHUR, J.·6 Apr 1921·Supreme Court of Victoria6p·Vol [1921] VLR Pt 1

ArrestMesne process — Defendant about to remove permanently from jurisdiction — Defendant having no assets within the jurisdiction — Probability of action being defeated unless defendant arrested — Test as to when order should be made — Supreme Court Act 1915 (No. 2733), ss. 147, 149.

IN THE WILL OF CRAWFORDVLR 259

IRVINE, C.J.·3 May 1921·Supreme Court of Victoria4p·Vol [1921] VLR Pt 1

Administration and probateExecutors — Commission — Individual executor appointed as co-executor with trustee company — Clause in will that individual executor should receive such rate of commission as Court or Chief Clerk shall think fit — Commission fixed by Court payable on same amounts as those upon which trustee company charges commission.

RE SANGALVLR 355

SCHUTT, J.·30 Jun 1921·Supreme Court of Victoria6p·Vol [1921] VLR Pt 1

Administration and probateAdministration — Statute of Distributions (22 & 23 Car. II., c. 10) — Intestacy — Murder — Death of intestate caused by intestate's wife — Whether curator of wife's property entitled to share in intestate's estate — Absolute statutory right — Whether qualified by consideration of public policy — Right of children to whole estate.

IN RE BOYLEVLR 394

SCHUTT, J.·16 Jun 1921·Supreme Court of Victoria6p·Vol [1921] VLR Pt 1

Administration and probateProbate — Payment of duty — Person absolutely entitled to interest in land — Voluntary transfer to another person on joint tenancy — Sale of land — Death of transferor — Beneficial interest passing by survivorship — "To the extent of such beneficial interest" — Meaning — How far unpaid proceeds of sale chargeable with duty — Administration and Probate Act 1915 (No. 2611), s. 144.

LOCKYER v. PEARMAINVLR 412

SCHUTT, J.·3 Aug 1921·Supreme Court of Victoria4p·Vol [1921] VLR Pt 1

AuctioneerWords painted on window "leading to the belief that such person is an auctioneer" — Meaning conveyed by words to average member of the public — Belief of informant — Whether relevant — Auction Sales Act 1915 (No. 2615), s. 31.

IN RE DONKINVLR 520

IRVINE, C.J.·4 Oct 1921·Supreme Court of Victoria3p·Vol [1921] VLR Pt 1

Administration and probateProbate — Foreign probate, exemplification of — Copy of foreign probate not contained — Whether necessary — Recital of grant of probate — Whether sufficient — Administration and Probate Act 1915 (No. 2611), ss. 50, 51.

IN RE McCARTHYVLR 526

IRVINE, C.J.·7 Oct 1921·Supreme Court of Victoria6p·Vol [1921] VLR Pt 1

Administration and probateProbate — Execution of will — Printed form — Incomplete sentence followed by testator's signature and attestation clause on first page — Sentence completed on third page of double sheet, which also contained other testamentary provisions — Third page unsigned — Whether will executed "at the foot or end thereof" — Wills Act 1915 (No. 2749), ss. 7, 8.

IN RE McMAHONVLR 549

IRVINE, C.J.·4 Oct 1921·Supreme Court of Victoria7p·Vol [1921] VLR Pt 1

Administration and probateAdministration — Priority — Crown debt — Estate of intestate insufficient to pay debts in full — Debt due to Government of Victoria in respect of purchases of wheat by intestate from Minister of Agriculture — Whether Crown debt — Practice — Costs — Representative defendant to originating summons — Costs disallowed — Order LXV., r. 14 (A) — Wheat Marketing Act 1915 (No. 2812) as amended by Wheat Marketing Act 1917 (No. 2917).

DALY v. THE STATE OF VICTORIAVLR 604

[Coram KNOX, C.J., HIGGINS AND STARKE, JJ.]·17 Oct 1921·In the High Court of Australia6p·Vol [1921] VLR Pt 1

Administration and probateProbate duty — Public charitable bequest — Assets of testator in New South Wales and Victoria — Gift to charities in Victoria — Whether duty deductible from Victorian assets — No direction in will to pay legacies out of Victorian assets — No circumstances requiring such payment — Administration and Probate Act 1915 (No. 2611), ss. 128, 130.

MATHESON v. G. STUCKEY & CO. PTY. LTD.VLR 637

CUSSEN, J.·11 Nov 1921·Supreme Court of Victoria7p·Vol [1921] VLR Pt 1

AnimalsStallion — Dangerous disposition — Scienter — Duty to take-reasonable care — Injury to mare — Negligence — Damages.

HARRISONS RAMSAY PTY. LTD. v. CRESPINVLR 643

SCHUTT, J.·3 Nov 1921·Supreme Court of Victoria5p·Vol [1921] VLR Pt 1

ArbitrationContract — Action on — Counterclaim based on prior contract — Arbitration clause — Application to stay counterclaim — Jurisdiction — Discretion — Arbitration Act 1915 (No. 2614), s. 5.

WELDON v. LENNONVLR 135

[Coram KNOX, C.J., HIGGINS AND STARKE, JJ.]·16 Nov 1921·In the High Court of Australia12p·Vol [1922] VLR Pt 1

Administration and probateProbate duty — Gift of property within twelve months before death of donor — Several gifts — Principle on which duty calculated — Gifts to be valued separately — Administration and Probate Act 1915, ss. 122, 128, 143.

IN RE McCARTHYVLR 216

CUSSEN, J., SCHUTT, J. and MANN, J.·14 Mar 1922·Supreme Court of Victoria22p·Vol [1922] VLR Pt 1

Administration and probateProbate — Execution of will — Printed form — Document partly printed and partly in testator's handwriting — Dispositive provisions ending in incomplete sentence followed by testimonium clause, testator's signature, and attestation clause on first page — Second page blank — Sentence completed on third page of double sheet, which also contained other dispositive provisions — Third page unsigned — What presumptions legitimate as to testamentary writing being on paper at time of signature — Whether will executed "at the foot or end thereof" — Wills Act 1915 (No. 2749), ss. 7, 8.

IN THE WILL OF TAYLORVLR 280

IRVINE, C.J.·10 Apr 1922·Supreme Court of Victoria6p·Vol [1922] VLR Pt 1

Administration and probatePractice — Probate — Caveat — Discovery — Application in regard to particular documents — Supported by affidavit — Application subsequent to return of order nisi — Jurisdiction to order discovery — Extent of order — Evidence Act 1915 (No. 2647), s. 89 — Rules of the Supreme Court 1916, Chapter I. (Civil Proceedings), Order XXXI., rr. 12, 19A (3); Chapter III. (Probate), rr. 32, 35.

THE PFALZVLR 286

CUSSEN, J.·28 Nov 1921·Supreme Court of Victoria29p·Vol [1922] VLR Pt 1

AdmiraltyPrize — Enemy ship in Victorian port at outbreak of war — Order for detention in lieu of confiscation — Subsequent motion for condemnation of ship — Power of Court to vary order — Right of ship to benefit of Sixth Hague Convention — Reciprocal obligations created by Sixth Hague Convention — Effect of Armistice terms and terms of Peace Treaty on rights created under Sixth Hague Convention — Liability of ship to condemnation by reason of Armistice terms and terms of Peace Treaty — Sixth Hague Convention (18th October 1907) — Articles 1, 2, 6 — Proclamation of the 6th October 1914 — Prize Court Rules (1914) — Order XXXVIII., r.], Appendix A, Form 53, II. and IV. — Article 30 of Armistice terms, 11th November 1918 — Convention prolonging Armistice with Germany, 16th January 1919 — Versailles Treaty of Peace (10th January 1920), Articles 236, 244, Annex III., Articles 297 (b), 439, 440.

IN THE WILL OF HARPERVLR 512

IRVINE, C.J., SCHUTT and MANN, JJ.·10 May 1922·Supreme Court of Victoria15p·Vol [1922] VLR Pt 1

Administration and probateAdministration — Estate duty — Property forming subject of gift inter vivos — Duty on — Liability of executor — Executor's right to recoup — Charge by Crown over property given — Subrogation of executor — Estate Duty Assessment Act 1914 (No. 22 of 1914), ss. 8 (1), 8 (4) (a), 34, 35 — Estate Duty Act 1914 (No. 25 of 1914), s. 3.

IN THE WILL OF BERGINVLR 686

IRVINE, C.J.·26 Jun 1922·Supreme Court of Victoria5p·Vol [1922] VLR Pt 1

Administration and probateAdministration — Emblements — Will — Growing crop at testator's death on land devised — Residuary gift — Share-farming agreement — Whether devisee or residuary beneficiaries entitled.

PAUL AND GRAY LTD. v. THE SHIP AMY TURNERVLR 740

MANN, J.·22 Sept 1922·Supreme Court of Victoria4p·Vol [1922] VLR Pt 1

AdmiraltyPractice — Procedure — Action in rem against ship for goods sold and moneys advanced on ship's credit — Default of appearance — Motion for judgment by default — Proof of claim, whether necessary — Leave to proceed ex parte — Appraisement and sale of ship ordered — Rules of Supreme Court 1916, Chapter IX. — Admiralty Rules, rr. 93 (b), 104, 129, 165 — English Rules of Court — Order XIII., r. 12A.

IN RE TURNERVLR 189

WEIGALL, A.-J.·9 Apr 1923·Supreme Court of Victoria4p·Vol [1923] VLR Pt 1

Administration and probateExecutor, removal of — Summary proceedings — "Unfit," meaning of — Executor's neglect or disregard of duty — Administration and Probate Act 1915 (No. 2611), s. 8 (1) (c) — Trusts Act 1915 (No. 2741), s. 14 (1).

IN THE WILL OF WAREVLR 573

MacFARLAN, J.·27 Aug 1923·Supreme Court of Victoria4p·Vol [1923] VLR Pt 1

Administration and probateProbate granted in England — Sealing probate in Victoria — Form and contents of exemplification — Copy of will — Special order where certified copy of will lodged in prior proceedings — Administration and Probate Act 1915 (No. 2611), s. 51.

IN RE AN ARBITRATION BETWEEN THE PRESIDENT, ETC., OF THE SHIRE OF WODONGA AND CARRVLR 56

SCHUTT, J.·3 Dec 1923·Supreme Court of Victoria9p·Vol [1924] VLR Pt 1

ArbitrationStatement of case by arbitrators — "Question of law arising in the course of the reference" — Arbitrators asked to state case before giving award — Refusal of arbitrators — Jurisdiction of Court to direct arbitrators to state case on question of law — Exercise of Court's discretion — Questions arising incidentally during the reference — Questions in dispute before the reference — Qualification of arbitrators — Form of questions to be asked in special case settled — Arbitration Act 1915 (No. 2614), s. 19.

IN RE HAIREVLR 65

WEIGALL, A.-J.·20 Dec 1923·Supreme Court of Victoria5p·Vol [1924] VLR Pt 1

Administration and probateRevocation of probate — Existing grant — Living executor — Right of Curator of Estates of Deceased Persons to apply for revocation and administration pendente lite — Administration and Probate Act 1915, ss. 65, 68, 69; Imperial Acts Application Act 1922 (No. 3270), ss. 18, 20.

IN RE BARBERVLR 123

CUSSEN, A.-C.J.·3 Mar 1924·Supreme Court of Victoria5p·Vol [1924] VLR Pt 1

Administration and probateAdministration — Distribution of assets — Proprietary claim to portion of assets — Whether claim "against the estate" — Extension of time — Discretion of Court to make order — Trusts Act 1915 (No. 2741), s. 31 (3).

IN RE CARLTONVLR 237

CUSSEN, A.C.-J., SCHUTT, J., and WEIGALL, A.-J.·2 Jun 1924·Supreme Court of Victoria7p·Vol [1924] VLR Pt 1

Administration and probateTestator leaving property in Victoria — Will not disposing of any property in Victoria — Probate, when Court will grant — Sealing exemplification of foreign probate — Whether Court has discretion — Administration and Probate Act 1915, ss. 5, 51.

CARR v. SHIRE OF WODONGAVLR 286

[Coram KNOX, C.J., ISAACS, RICH AND STARKE, JJ.]·29 May 1924·In the High Court of Australia8p·Vol [1924] VLR Pt 1

ArbitrationStatement of case by arbitrators — "Question of law arising in the course of the reference" — Arbitrators asked to state case before giving award — Refusal of arbitrators — Jurisdiction of Court to direct arbitrators to state case on question of law — Exercise of Court's discretion — Questions arising incidentally during the reference — Questions in dispute before the reference — Form of questions to be asked in special case settled — Arbitration Act 1915 (No. 2614), s. 19.

IN RE McPHEEVLR 394

SCHUTT, J.·24 Jul 1924·Supreme Court of Victoria4p·Vol [1924] VLR Pt 1

Administration and probateWill — Execution — Attestation — Will made by testator on printed form — Signed on first and second pages — Attestation only on first page, whether will sufficiently attested — Wills Act 1915 (No. 2749), s. 7.

EX PARTE HUTCHISONVLR 463

SCHUTT, J.·1 Oct 1924·Supreme Court of Victoria5p·Vol [1924] VLR Pt 1

ArchitectRegistration of — Qualifications for registration — Architect and builder — "Person who has for one year . . . been engaged . . . in the practice of the profession of an architect" — Applicant not practising exclusively as architect — Meaning of "one year" — Decision of Board not final — Architects Registration Act 1922 (No. 3207), s. 7.

IN RE BIRCHVLR 510

SCHUTT, J.·20 Nov 1924·Supreme Court of Victoria6p·Vol [1924] VLR Pt 1

Administration and probateAdministration — Executor and trustee — Commission — Provision in will — Rate of commission upon income fixed — Accompanied by declaration that a specified executor should be entitled to a specific sum as commission on corpus — Whether other executors entitled to commission on corpus — Administration and Probate Act 1915 (No. 2611), s. 34.

DRIVER v. THE WAR SERVICE HOMES COMMISSIONERVLR 515

CUSSEN, A.-C.J., McARTHUR J., and WEIGALL, A.-J.·26 Sept 1924·Supreme Court of Victoria20p·Vol [1924] VLR Pt 1

ArbitrationSpecial case — Application to Court to direct statement of — "Matter of law arising in the course of the reference," what is — Conflict of evidence — No evidence — Function of arbitrators — Arbitration Act 1915 (No. 2614), s. 19.

DRIVER v. THE WAR SERVICE HOMES COMMISSIONERVLR 535

CUSSEN, A.-C.J., McARTHUR, J., and WEIGALL, A.J.·26 Sept 1924·Supreme Court of Victoria20p·Vol [1924] VLR Pt 1

ArbitrationSpecial case stated — Three arbitrators, majority to decide — Facts stated found by two only — Contract — Supply of timber — Evidence — Construction of written document — Ambiguity — Extrinsic evidence, admissibility of — "Current market price" — Meaning of — Course of dealing where meaning of contract doubtful.

IN RE JAMESONVLR 7

SCHUTT, MANN and MacFARLAN, JJ.·5 Dec 1924·Supreme Court of Victoria6p·Vol [1925] VLR Pt 1

Administration and probateAdministration — Duties on deceased persons' estates — Interest of deceased in third person's estate — Subject to life annuity — Death of annuitant pending final assessment of value of interest — Valuation of interest, method of — Valuation of annuity — Whether fact of annuitant's death should form basis of assessment — Administration and Probate Act 1915 (No. 2611), ss. 122, 124.

HUTCHISON v. THE ARCHITECTS REGISTRATION BOARDVLR 195

[Coram KNOX, C.J., ISAACS, RICH AND STARKE, JJ.]·31 Mar 1925·In the High Court of Australia10p·Vol [1925] VLR Pt 1

ArchitectsRegister of — Qualifications for registration — Architect and builder — "Person who has for one year . . . been engaged . . . in the practice of the profession of an architect" — Non-continuous practice — Decision of Board, whether final — Architects Registration Act 1922 (No. 3207) s. 7.

IN RE JAMESONVLR 244

[Coram KNOX, C.J., ISAACS, HIGGINS, RICH AND STARKE, JJ.]·18 May 1925·In the High Court of Australia5p·Vol [1925] VLR Pt 1

Administration and probateAdministration — Duties on deceased persons' estates — Interest of deceased in third person's estate — Subject to life annuity — Death of annuitant pending final assessment of value of interest — Valuation of interest, method of — Valuation of annuity — Whether fact of annuitant's subsequent death pending final assessment of value of deceased's interest relevant to assessment — Administration and Probate Act 1915 (No. 2611), ss. 122, 124, 128.

IN RE HICKEYVLR 270

McARTHUR, J.·7 Apr 1925·Supreme Court of Victoria3p·Vol [1925] VLR Pt 1

Administration and probateAdministration — Will — Disappearance of legatee in testator's lifetime — Unmarried — No evidence of death — Lapse of over 40 years — Presumption of death unmarried in testator's lifetime — Facts raising presumption — Leave granted to distribute estate on that footing.

IN THE WILL OF McCRORYVLR 298

IRVINE, C.J.·12 Jun 1925·Supreme Court of Victoria3p·Vol [1925] VLR Pt 1

Administration and probateProvision for maintenance of widow out of estate, application for — Time fixed by Act — Summons "taken out" after six months from date of probate — Court has no jurisdiction to amend — "Actus curi neminem gravabit" — Administration and Probate Act 1915 (No. 2611), ss. 109, 110, 117.

IN RE GILBERTVLR 662

CUSSEN, J.·19 Nov 1925·Supreme Court of Victoria3p·Vol [1925] VLR Pt 1

Administration and probateWill — Execution — Attestation — Will made by testatrix on printed form — Signed on first and third pages — Second page blank — Attestation only on first page, whether sufficient — Wills Act 1915 (No. 2749), s. 7.

LATHAM v. FOSTER’S AUSTRALIAN FIBRES LTD.VLR 427

DIXON, A.-J.·15 Aug 1926·Supreme Court of Victoria8p·Vol [1926] VLR Pt 1

ArbitrationSubmission — Award — Findings of arbitrator — Findings unsupported by or against the weight of evidence — Acceptance without objection of evidence not upon oath — No ground for setting aside award — General reference of all matters arising out of contract — Interpretation of contract by arbitrator conclusive — Parol variation of submission in writing — Arbitration Act 1915 (No. 2614), s. 12 (2).

IN THE ESTATE OF ROSSVLR 568

McARTHUR, J.·25 Nov 1926·Supreme Court of Victoria2p·Vol [1926] VLR Pt 1

Administration and probateBond — Dispensing with sureties — Application for order — Consent of beneficiaries — Form of — Administration and Probate Act 1915 (No. 2611), s. 19.

IN RE HASLETTVLR 21

MANN, J.·7 Dec 1926·Supreme Court of Victoria2p·Vol [1927] VLR Pt 1

Administration and probatePractice — Costs — Executors and trustees — Passing accounts — Commission — Costs of proceedings before Chief Clerk — Costs of future applications — Liberty, in absence of objection, to Chief Clerk to allow and certify to costs of passing accounts.

IN RE FERREIRAVLR 90

MANN, J.·10 Mar 1927·Supreme Court of Victoria4p·Vol [1927] VLR Pt 1

Administration and probateWill — Execution — Signature by testator and two witnesses — No formal attestation clause — Presumption of due execution — Wills Act 1915 (No. 2749), s. 7.

IN RE BREENVLR 164

IRVINE, C.J.·16 Mar 1927·Supreme Court of Victoria7p·Vol [1927] VLR Pt 1

Administration and probateProbate — Validity of will — Will drawn by legatee — Capacity of alleged testator — Volition — Knowledge of contents — Uncorroborated evidence of legatee — Onus of proof, whether discharged — Absence of persons having claims on testator's bounty — Effect.

KEENEY v. THE SHIP ANEIURAVLR 387

LOWE, J.·18 Jul 1927·Supreme Court of Victoria4p·Vol [1927] VLR Pt 1

AdmiraltyPractice — Procedure — Action in rem by master and crew for wages — Ship under arrest — Master and seamen's maritime lien — Transferability — Volunteer prepared to advance money for sustenance of crew — Order allowing him lien on proceeds of sale of ship — Officer as deputy of Marshal.

THE BALLARAT TRUSTEES EXECUTORS AND AGENCY CO. LTD. v. THE KINGVLR 415

Cussen, J.·15 Aug 1927·Supreme Court of Victoria4p·Vol [1927] VLR Pt 1

Administration and probateProbate duty — Assessment — Gift inter vivos — Value of property given — Value at death of donor assessable — Administration and Probate Act 1915 (No. 2611), s. 143 — Administration and Probate Act 1921 (No. 3154), s. 2.

THE MELBOURNE HARBOUR TRUST COMMISSIONERS v. HANCOCKVLR 418

Knox, C.J., Isaacs, Gavan Duffy, Rich and Starke, JJ.·9 Jun 1927·In the High Court of Australia25p·Vol [1927] VLR Pt 1

ArbitrationAward — Construction of contract submitted to arbitrator — Question of law for his determination — Integral part of matter submitted — Finality of award — Motion to set aside award — Form of award — Reasons attached — No special case.

IN RE SPRECKLEYVLR 444

LOWE, J.·19 Aug 1927·Supreme Court of Victoria6p·Vol [1927] VLR Pt 1

Administration and prolateAdministration — Curator — Rule to administer — Subsequent purported grant of letters of administration by Registrar — Caveat by Curator before issue — Jurisdiction of Registrar to grant letters of administration — How far limited — Administration and Probate Act 1915 (No. 2611), ss. 6, 65, 68, 98, 99.

PracticeOrder nisi — By applicant for administration to remove caveat — Form of order — Counsel appearing to move and to show cause — Order of addresses.

LIVERPOOL & LONDON AND GLOBE INSURANCE CO. LTD. v. HARTLEY & FORDVLR 523

CUSSEN, J.·9 Sept 1927·Supreme Court of Victoria10p·Vol [1927] VLR Pt 1

AssignmentValidity — Priority — Written authority to pay — Consideration given — Fund not in existence — Whether valid equitable assignment — Assignment under seal — Whether invalid as equitable assignment, if given without consideration and if no fund then in existence — Written order to pay — Where no consideration given, effect of fund being then in existence.

StampsAssignment — Notice of assignment — Admissibility in evidence — When must be stamped.

IN THE WILL OF O’REILLYVLR 533

LOWE, J.·13 Oct 1927·Supreme Court of Victoria3p·Vol [1927] VLR Pt 1

Administration and probatePractice — Scandalous or defamatory words — Omission from probate.

IN RE RANDALLVLR 535

CUSSEN, J.·10 Oct 1927·Supreme Court of Victoria5p·Vol [1927] VLR Pt 1

Administration and probateFailure of executrix to prove or to renounce probate — Only assets land alienated by testator by assignment impeachable under 13 Eliz., c. 5 — Grant of administration c.t.a. to creditor — Creditor a corporation — Grant to syndic — Syndic an officer of creditor — Administration and Probate Act 1915 (No. 2611), s. 32.

R. v. WORTVLR 560

McARTHUR, J., IRVINE, C.J.·27 Oct 1927·Supreme Court of Victoria10p·Vol [1927] VLR Pt 1

Criminal lawLarceny by a trick — False pretences — Distinction — Accused falsely representing that he was proprietor of circus — Pretended engagement of informant to act as advance agent — Payment by informant of sum of money to accused as security to carry out employment — Informant not intending to part with property in money — Finding of jury — Conviction of larceny by a trick.

AppealDisallowance — Sentence — Application that time already served be deemed part of sentence — Arguable case — One of the circumstances only to be considered by Court — Practice — Refusal of application. Crimes Act (1915), No. 2637, s. 605 (3).

In the Will of FAIRERVLR 580

Irvine, C.J., McArthur, J.·27 Oct 1927·Supreme Court of Victoria5p·Vol [1927] VLR Pt 1

Administration and probatePractice — Foreign will — Sealing exemplification — Power of attorney — Terms of — Whether sufficient authority — Administration and Probate Act 1915 (No. 2611), ss. 51, 54, 55.

JONES v. JONESVLR 24

Irvine, C.J., Mann, J., Wasley, A.-J.·1 Dec 1927·Supreme Court of Victoria6p·Vol [1928] VLR Pt 1

AttachmentWrit of — Practice — Execution in Victoria of writ issued in New South Wales — Writ obtained ex parte — Notice to respondent necessary in Victoria — Discretion to grant leave to execute — Oppressiveness — Leave refused — Service and Execution of Process Act 1901-1924 (No. 11 of 1901, No. 26 of 1924), s. 19 (1) — Rules of Supreme Court 1916, Order XLIV., r. 2.

IN RE DYTRYCHVLR 144

McArthur, J., Macfarlan, J., Wasley, A.-J.·2 Feb 1928·Supreme Court of Victoria7p·Vol [1928] VLR Pt 1

Administration and ProbateWill — Execution — Position of signature — Signature indorsed on document — Whether at or opposite to end — Intention to give effect by signature to writing as will — Wills Act 1915 (No. 2749), ss. 7, 8.

IN THE WILL OF DENISVLR 266

McARTHUR, J.·20 Apr 1928·Supreme Court of Victoria2p·Vol [1928] VLR Pt 1

Administration and probatePractice — Contested will — Application by propounders for interrogatories — Jurisdiction to order — Rules of the Supreme Court, Order XXXI., r. 1 — Probate Rules 1916, rr. 32, 35.

SWANSON v. BOARD OF LAND AND WORKSVLR 283

Mann, J.·2 Apr 1928·Supreme Court of Victoria8p·Vol [1928] VLR Pt 1

ArbitrationBuilding contract — Disputes to be referred to architect employed by a party — No action to be brought unless award obtained — Award a condition precedent to action — Disqualification of arbitrator.

THE MILDURA CO-OPERATIVE FRUIT CO. LTD. v. NOYCEVLR 390

LOWE, J.·12 Jun 1928·Supreme Court of Victoria11p·Vol [1928] VLR Pt 1

AttachmentDebts — Payment due for fruit acquired for Crown under Dried Fruits Acts — Whether a debt subject to attachment — Dried Fruits Act 1924 (No. 3380), ss. 5, 8 (1) (2) (6), 12; Dried Fruits Act 1925 (No. 3418), s. 3 (6) — Rules of Supreme Court 1916, Order XLV., r. 1.

Book debtAssignment — Debt due or to become due on account of or in connection with trade or business — Right to payment for dried fruit acquired compulsorily for Crown — Instruments Act 1915 (No. 2672), Part IX., ss. 180, 181.

O’SHAUGHNESSY v. QUICK SERVICE STATIONS LTD.VLR 405

IRVINE, C.J.·28 Aug 1928·Supreme Court of Victoria7p·Vol [1928] VLR Pt 1

ArbitrationLease — Arbitration clause — Dispute or difference between lessor and lessee to be referred to arbitration — Assignment of lease — Consent of lessor to assignment withheld — Whether matters in dispute or difference should be referred to arbitration — Discretion of Judge — Stay of proceedings — Sufficient reason to the contrary — Lessor and lessee summons — Application for adjournment of — Whether a "step in the proceedings" — Arbitration Act 1915 (No. 2614), s. 5 — Conveyancing Act 1915 (No. 2633), ss. 24, 25.

IN RE GITSHAMVLR 305

LOWE, J.·15 Jul 1929·Supreme Court of Victoria12p·Vol [1929] VLR Pt 1

Administration and probateExecutor — Commission — Whether commission allowable in respect of land which remains unconverted until conveyed to beneficiary — Transfer of land to beneficiary — Executorial function — Death of executor — Duty of his executor — Administration and Probate Act 1915 (No. 2611), sec. 34.

PracticeProceedings before Chief Clerk — Application to take opinion of Judge on matter arising in the proceedings — Functions of Judge — Rules of Supreme Court 1916, Order LV., r. 69.

IN RE FARRELLVLR 101

Lowe, J.·14 Nov 1929·Supreme Court of Victoria11p·Vol [1930] VLR Pt 1

AdministrationIntestacy — Real estate — Nature of right of next of kin to estate — Act No. 230 (1864), sec. 4.

IN RE MURPHYVLR 127

McARTHUR, J.·4 Feb 1930·Supreme Court of Victoria3p·Vol [1930] VLR Pt 1

Administration and ProbateAdministration — Power of administrator to concur in a partition — Trustee Act 1928 (No. 3792), sec. 57.

IN RE LAYLANDVLR 300

McARTHUR, J.·31 Jul 1930·Supreme Court of Victoria3p·Vol [1930] VLR Pt 1

Administration and probateWill — Foreign company appointed executor — Grant of administration c.t.a. to syndic — Syndic not in Victoria — Administration and Probate Act 1928 (No. 3632), ss. 5, 51.

IN RE HALLVLR 309

LOWE, J.·21 Aug 1930·Supreme Court of Victoria2p·Vol [1930] VLR Pt 1

Administration and probateSealing of foreign probate — Revocation of foreign grant — Revocation of sealing — Administration and Probate Act 1928 (No. 3632), sec. 81.

IN RE SKELTONVLR 323

LOWE, J.·21 Aug 1930·Supreme Court of Victoria3p·Vol [1930] VLR Pt 1

Administration and probateWill — Execution — Acknowledgment — Wills Act 1928 (No. 3808), sec. 7.

IN THE WILL OF THOMAS FIELDVLR 37

McARTHUR J.·2 Dec 1930·Supreme Court of Victoria17p·Vol [1931] VLR Pt 1

Administration and ProbateExecutor propounding will — Caveat — Probate granted — Executor's costs of litigation — Appeal as to costs — Supreme Court Act 1928 (No. 3783), sec. 39 — Order LXV., r. 1.

IN RE JOHNSONVLR 60

LOWE J.·10 Dec 1930·Supreme Court of Victoria3p·Vol [1931] VLR Pt 1

Administration and ProbateLetters of administration — Infant next-of-kin — Grant of letters of administration to guardian during minority of infant and until he applies for and receives grant — Probate and Administration Rules, r. 14.

IN THE WILL OF MAYVLR 105

LOWE J.·19 Mar 1931·Supreme Court of Victoria3p·Vol [1931] VLR Pt 1

Administration and ProbateProbate practice — Caveat — Order nisi — Withdrawal of caveat after service of order nisi — Non-appearance of caveator to show cause — Costs — Administration and Probate Act 1928 (No. 3632), sec. 55.

IN RE MORGANVLR 191

Irvine C.J., Lowe J. and MacFarlan J.·19 May 1931·Supreme Court of Victoria7p·Vol [1931] VLR Pt 1

Administration and probateWill — Execution — Position of signature — Signature indorsed on document — Intention to give effect by signing to writing as will — Wills Act 1928 (No. 3803), secs. 7, 8.

IN RE AN ARBITRATION BETWEEN MODERN ROAD CONSTRUCTION COMPANY PTY. LTD.VLR 214

MANN J.·25 May 1931·Supreme Court of Victoria7p·Vol [1931] VLR Pt 1

ArbitrationArbitrator — Appointed arbitrator disqualified by interest — "Incapable of acting" — Application to Court for appointment of arbitrator — Disqualification negatived by contract — Arbitration Act 1928 (No. 3637), sec. 6 (b).

IN RE WILLIAMSVLR 231

IRVINE, C.J.·29 Jul 1929·Supreme Court of Victoria1p·Vol [1931] VLR Pt 1

Administration and probatePractice — Probate — Caveat — Order nisi for probate — Intervention by beneficiary.

IN RE REYNOLDSVLR 254

Lowe J., Mann J.·30 Jun 1931·Supreme Court of Victoria9p·Vol [1931] VLR Pt 1

Administration and ProbateDuties on deceased persons' estates — Settlement containing trusts and dispositions to take effect after death of settlor — Life insurance policy for benefit of wife — Administration and Probate Act 1915 (No. 2611), secs. 118 (2), 147.

Life insurancePolicy expressed to be for the benefit of the wife of the assured — Extent of wife's interest — Married Women's Property Act 1915 (No. 2692), sec. 14 (2).

MacARTHUR & MacLEOD PTY. LTD. v. CAREYVLR 269

Cussen A.-C.J.·10 Aug 1931·Supreme Court of Victoria5p·Vol [1931] VLR Pt 1

Principal and agentCommission — Sale of land — Contract of sale signed by vendor and purchaser — No proof that purchaser ready and able to carry out contract.

Appeal from non-suitNew trial ordered — Costs of former trial.

IN RE FAIRCHILDVLR 289

McARTHUR J.·6 Jul 1931·Supreme Court of Victoria4p·Vol [1931] VLR Pt 1

Administration and probateWill — Document containing no disposition of property and no appointment of an executor.

MODERN ROAD CONSTRUCTION CO. PTY. LTD. v. THE MELBOURNE HARBOR TRUST COMMISSIONERSVLR 275

Cussen A.C.J., Lowe J., Wasley A.J.·14 Apr 1932·Supreme Court of Victoria19p·Vol [1932] VLR Pt 1

ArbitrationContract — Arbitration clause — Reference to party's engineer — Breach of contract — Repudiation — Action — Stay of proceedings — Dispute involving examination of engineer — Arbitration Act 1928 (No. 3637), sec. 5.

IN RE BELFRAGEVLR 357

Cussen A.C.J., Mann J., MacFarlan J.·20 Jun 1932·Supreme Court of Victoria5p·Vol [1932] VLR Pt 1

Administration and probateWill — Execution — Signature at end of dispositive provisions and above appointment of executors — Wills Act 1928 (No. 3803), secs. 7, 8.

NATIONAL BANK OF AUSTRALASIA LTD v. NORRISVLR 485

LOWE J.·20 Sept 1932·Supreme Court of Victoria7p·Vol [1932] VLR Pt 1

Attachment of debtsJudgment against customer of bank — Banking company in liquidation — Declaration of dividend by liquidator — Companies Act 1928 (No. 3659), secs. 144, 210 — Justices Act 1928 (No. 3708), sec. 126.

IN RE McCANNVLR 515

MANN J.·14 Oct 1932·Supreme Court of Victoria3p·Vol [1932] VLR Pt 1

Administration and probateProbate — Sealing of foreign probate — Grant by Court in United Kingdom — Northern Ireland — Administration and Probate Act 1928 (No. 3632), sec. 81.

IN RE McCALLUMVLR 35

MANN J.·26 Oct 1932·Supreme Court of Victoria5p·Vol [1933] VLR Pt 1

AssignmentLegal assignment of chose in action — Disputed assignment — Payment into Court by debtor — Application for payment out — Practice — Costs — Property Law Act 1928 (No. 3754), sec. 134.

CHUBB v. EMERYVLR 125

LOWE J.·28 Feb 1933·Supreme Court of Victoria5p·Vol [1933] VLR Pt 1

Attachment of debtsMoneys deposited in State Savings Bank — Crown debt — Necessity for demand — Production of passbook and withdrawal form.

IN RE NEALVLR 222

CUSSEN A.C.J., Mann J.·19 May 1933·Supreme Court of Victoria7p·Vol [1933] VLR Pt 1

Administration and ProbateWill — Construction — Application of assets — Payment of legacies — Administration and Probate Act 1928 (No. 3632), Second Schedule, Part II., cl. 2.

IN RE FARLEYVLR 271

MANN A.C.J.·16 Jun 1933·Supreme Court of Victoria12p·Vol [1933] VLR Pt 1

Administration and probateInsolvent estate — Administration in bankruptcy — Policies of life assurance or endowment — Accident policy — Protection from creditors — Bankruptcy Act 1924-1932, sec. 91 (b) — Companies Act 1928 (No. 3659), sec. 476 (4).

IN RE HEITSCHVLR 338

LOWE J.·20 Jul 1933·Supreme Court of Victoria4p·Vol [1933] VLR Pt 1

Administration and probateWill — Execution — First page alone executed — Incorporation of other pages — Wills Act 1928 (No. 3803), sec. 7.

IN RE BREENVLR 455

MANN A.C.J.·30 Oct 1933·Supreme Court of Victoria4p·Vol [1933] VLR Pt 1

Administration and probateWidows and young children — Maintenance — Orders made — Jurisdiction to make further order — Administration and Probate Act 1928 (No. 3632), sec. 145.

WILLIS v. STEPHENSVLR 19

LOWE J.·14 Dec 1933·Supreme Court of Victoria4p·Vol [1934] VLR Pt 1

Administration and probateRemoval of executor — "Unfit" to act — Default in paying beneficiaries — Administration and Probate Act 1928 (No. 3632), sec. 29 (1).

IN RE LANSELLVLR 129

MANN A.C.J.·7 May 1934·Supreme Court of Victoria7p·Vol [1934] VLR Pt 1

Administration and ProbateDuty on deceased persons' estates — Settlement by joint owners — Administration and Probate Act 1928 (No. 3632), sec. 177.

IN RE SEYMOURVLR 136

MANN, A.C.J.·15 Feb 1934·Supreme Court of Victoria7p·Vol [1934] VLR Pt 1

Administration and probateGrant of probate — Caveat — Caveat lodged after grant but before issue of letters of administration — Procedure — Interest of caveator — Administration and Probate Act 1928 (No. 3632), secs. 7, 52.

IN RE MILLSVLR 158

MANN A.C.J.·12 Sept 1933·Supreme Court of Victoria9p·Vol [1934] VLR Pt 1

CharityGift by will to named institution — Institution closed — Remnant of assets held by trustees — Cy-prs — Lapse.

Administration and probateAdministration of assets — Partial intestacy — Lapse — Incidence of debts, legacies and testamentary expenses — Administration and Probate Act 1928 (No. 3632), sec. 33.

IN RE DEVINEVLR 170

MANN A.C.J.·21 May 1934·Supreme Court of Victoria3p·Vol [1934] VLR Pt 1

Administration and probateApplication for probate — Practice — Codicil not duly executed — Infant beneficiaries — Examination of attesting witnesses.

IN RE WATTSVLR 174

Macfarlan J., Lowe, J., Martin, J.·22 May 1934·Supreme Court of Victoria25p·Vol [1934] VLR Pt 1

Administration and probateProbate "granted" by Registrar — Caveat lodged subsequently, but before issue — Procedure — Administration and Probate Act 1928 (No. 3632), secs. 7, 52-55.

IN RE FINNEYVLR 256

MANN A.C.J.·23 Aug 1934·Supreme Court of Victoria3p·Vol [1934] VLR Pt 1

Administration and probateWill — Dependent relative revocation — Destruction by testatrix with intention to revive earlier will — Declaration of intention not contemporaneous — Wills Act 1928 [No. 3803], secs. 18 (4), 20.

IN RE DUNNEVLR 307

LOWE J.·9 Oct 1934·Supreme Court of Victoria4p·Vol [1934] VLR Pt 1

Administration and probateExecutors' commission — Legacy in lieu of — Failure of legacy — Allowance of commission — Special circumstances.

IN RE FERGUSONVLR 316

Irvine C.J., Mann J., Macfarlan J.·22 Oct 1934·Supreme Court of Victoria3p·Vol [1934] VLR Pt 1

Administration and probateDocument propounded as a will — No description of subject of disposition — No appointment of executor.

IN RE MALEVLR 318

LOWE J.·11 Oct 1934·Supreme Court of Victoria3p·Vol [1934] VLR Pt 1

Administration and probateWill — Execution — Signature — Part of an initial letter only — Wills Act 1928 (No. 3803), sec. 7.

IN RE WERTHEIMVLR 321

Mann A.C.J., Lowe J.·31 Aug 1934·Supreme Court of Victoria18p·Vol [1934] VLR Pt 1

Administration and probateAdministration of assets — Marshalling — Apportionment of debts — Mortgage of life policy and land — Second mortgage of land — Policy moneys not assets for payment of debts — Assets insufficient to pay unsecured creditors — Priority and incidence of funeral and testamentary expenses, duties and taxes — Companies Act 1928 (No. 3659), sec. 476 (3).

IN RE STOKESVLR 352

LOWE J.·30 Oct 1934·Supreme Court of Victoria6p·Vol [1934] VLR Pt 1

Administration and probateLetters of administration — Sealing of foreign letters — Grant by Court in United Kingdom — Irish Free State — Grant by Victorian Court — Administration and Probate Act 1928 (No. 3632), sec. 81 — Supreme Court Act 1928 (No. 3783), sec. 17.

ARBUTHNOT SAWMILLS PTY. LTD. v. THOMASVLR 1

LOWE J.·31 Oct 1934·Supreme Court of Victoria5p·Vol [1935] VLR Pt 1

ArbitrationSubmission — Stay of proceedings — Court of Petty Sessions — Arbitration Act 1928 (No. 3637), sec. 5.

IN RE LEARMONTHVLR 44

MANN J.·17 Dec 1934·Supreme Court of Victoria4p·Vol [1935] VLR Pt 1

Administration and ProbateAdministration of assets — Life assurance policy — Policy moneys not assets for payment of debts — Equitable obligations — Companies Act 1928 (No. 3659), sec. 476 (3).

IN RE E.VLR 87

MacFARLAN J.·13 Dec 1934·Supreme Court of Victoria3p·Vol [1935] VLR Pt 1

Administration and ProbateExecutor — Person appointed incapable of understanding or carrying out duties — Citation to take out probate — Service — Administration and Probate Act 1928 (No. 3632), sec. 12 (1) (b).

IN RE BODEYVLR 326

IRVINE C.J.·28 Aug 1935·Supreme Court of Victoria7p·Vol [1935] VLR Pt 1

Administration and ProbateExpenses of administering will — Share of residue to bear — State probate duty — Administration and Probate Act 1928 (No. 3632), secs. 162, 163.

H.P. BRADY PTY. LTD. v. KIRSCHVLR 44

MARTIN J.·28 Nov 1935·Supreme Court of Victoria4p·Vol [1936] VLR Pt 1

ArbitrationAction on building contract — Arbitration clause — Defendant unaware of clause when proceedings commenced — Application for stay — Arbitration Act 1928 (No. 3637), sec. 5.

IN RE O’DEAVLR 48

MARTIN J.·28 Nov 1935·Supreme Court of Victoria4p·Vol [1936] VLR Pt 1

Administration and probateApplication for grant — Application referred to Court — Grant of administration c.t.a. — Caveat lodged after grant but before issue — Administration and Probate Act 1928 (No. 3632), sec. 52.

IN RE FOWLESVLR 96

LOWE J.·21 Feb 1936·Supreme Court of Victoria4p·Vol [1936] VLR Pt 1

Administration and ProbateSummons to executor to file statement for duty — Service out of jurisdiction — Setting aside order made on summons — Administration and Probate Act 1928 (No. 3632), sec. 155 — Service and Execution of Process Act 1901-1931 (No. 11 of 1901 — No. 45 of 1931), sec. 11 (1).

CLUGSTON v. MONTAGUEVLR 172

MANN C.J.·1 Apr 1936·Supreme Court of Victoria13p·Vol [1936] VLR Pt 1

Local GovernmentElections — Petition for application thereto of Parliamentary election provisions as to voting by post — Scope and operation of petition — Order in Council laid before Parliament without disallowance — "Regulation" — Local Government Act 1928 (No. 3720), sec. 148(1) (4).

Act repealing and re-enacting provisions of former ActIntermediate legislative steps between two Acts — References in another Act or document to repealed provisions — "Contrary intention" — Electoral Act 1910 (No. 2288) — The Constitution Act Amendment Act 1928 (No. 3660) — Acts Interpretation Act 1928 (No. 3630), sec. 6.

IN RE EDMENTSVLR 272

GAVAN DUFFY J.·25 May 1936·Supreme Court of Victoria7p·Vol [1936] VLR Pt 1

Administration and probateExecutor's Commission — Trustee company carrying on testator's business — Whether commission chargeable on gross receipts, gross profits or net profits — Trustee Companies Act 1928 (No. 3793), sec. 17.

IN RE PEARSONVLR 355

MANN C.J.·7 Oct 1936·Supreme Court of Victoria5p·Vol [1936] VLR Pt 1

Administration and probateWill — Widow left without sufficient means of support — Application for provision out of testator's estate — Husband and wife living apart under separation deed — Covenant by wife not to make application — Discretion of Court — Administration and Probate Act 1928 (No. 3632), secs. 139, 143, 144 (1).

IN RE NOLANVLR 360

MANN C.J.·19 Oct 1936·Supreme Court of Victoria3p·Vol [1936] VLR Pt 1

Administration and ProbatePractice — Executor — Application for leave to pass accounts — Managing clerk of executor's solicitor acting as solicitor for beneficiaries — Costs.

IN RE FISHERVLR 363

MANN C.J.·19 Oct 1936·Supreme Court of Victoria3p·Vol [1936] VLR Pt 1

Administration and probateCaveat tendered after grant by Court but before issue — Registrar to reject — Procedure on failure to reject — Administration and Probate Act 1928 (No. 3632), sec. 52.

IN RE WHITFIELDVLR 17

MANN C.J.·30 Oct 1936·Supreme Court of Victoria5p·Vol [1937] VLR Pt 1

Administration and probateWill — Widow left without sufficient means of support — Application for provision out of testator's estate — Distressed circumstances of widow — Matters to be considered by Court — Costs of unsuccessful application — Administration and Probate Act 1928 (No. 3632), sec. 139.

MYER v. THE COMMISSIONER OF TAXESVLR 106

MARTIN J.·16 Dec 1936·Supreme Court of Victoria20p·Vol [1937] VLR Pt 1

Administration and ProbateDuties on deceased persons' estates — Shares in proprietary company — Restrictions on transfer — Powers of governing director — Valuation of shares — Administration and Probate Act 1928 (No. 3632), sec. 152.

IN RE ANDERSONVLR 130

MARTIN J.·24 Mar 1937·Supreme Court of Victoria6p·Vol [1937] VLR Pt 1

Administration and ProbateDuties on deceased persons' estates — Joint property — Acquired by purchase — Beneficial interest passing by survivorship — Liability to duty — Administration and Probate Act 1928 (No. 3632), sec. 174.

ANDERSON v. COMMISSIONER OF TAXESVLR 204

[Coram LATHAM C.J., RICH, DIXON AND McTIERNAN JJ.]·31 May 1937·In the High Court of Australia2p·Vol [1937] VLR Pt 1

Administration and ProbateDuties on deceased persons' estates — Joint property — Acquired by purchase — Beneficial interest passing by survivorship — Liability to duty — Administration and Probate Act 1928 (No. 3632), sec. 174.

IN RE WHITFIELDVLR 207

MacFARLAN J. LOWE J. and GAVAN DUFFY J.·27 May 1937·Supreme Court of Victoria5p·Vol [1937] VLR Pt 1

Administration and probateWill — Widow left without sufficient means of support — Application for provision out of testator's estate — Matters to be considered by Court — Refusal of application — Appellate Court's discretion — Administration and Probate Act 1928 (No. 3632), sec. 139.

IN RE GRICEVLR 356

MANN C.J., MacFARLAN J. and GAVAN DUFFY J.·29 Sept 1937·Supreme Court of Victoria13p·Vol [1937] VLR Pt 1

Administration and ProbateDuties on deceased persons' estates — "Gift of personal property" — Money — Whether identifiable on donor's death — Expenditure by donor — Dutiability — Administration and Probate Act 1928 (No. 3632), sec. 173.

IN RE FOWLESVLR 13

MANN C.J.·15 Oct 1937·Supreme Court of Victoria5p·Vol [1938] VLR Pt 1

Administration and ProbateStatement for duty — Summons to file — Directed to executor de son tort — Whether such an executor may be called upon — Administration and Probate Act 1928 (No. 3632), sec. 155.

NICHOLLS v. HEADLANDVLR 151

MACFARLAN J.·31 Mar 1938·Supreme Court of Victoria4p·Vol [1938] VLR Pt 1

ArbitrationInsurance policy containing arbitration clause — Condition in policy requiring notification of impending prosecution — Failure to give notice — Prejudice of insurer — Action for damages against insured — Insurer joined as third party — Application by insurer for stay of proceedings — Refusal of stay — Arbitration Act 1928 (No. 3637), sec. 5 — Instruments (Insurance Contracts) Act 1936 (No. 4464), sec. 3.

IN RE BLOOMFIELDVLR 1

LOWE J.·27 Oct 1938·Supreme Court of Victoria2p·Vol [1939] VLR Pt 1

Administration and probateNotice of intention to apply for letters of administration of deceased estate duly advertised — Application refused — Power of Court to grant probate of deceased's will without further advertisement — Rules of the Supreme Court 1916, Order LXX., r. 1; Probate Rules, rr. 4, 15, 35.

IN RE B.VLR 42

MARTIN J.·25 Nov 1938·Supreme Court of Victoria5p·Vol [1939] VLR Pt 1

Adoption of childrenIllegitimate child — Mother's consent — Whether consent should be dispensed with — Adoption of Children Act 1928 (No. 3605), sec. 4 (3).

IN RE MYERVLR 77

MARTIN, J.·20 Dec 1938·Supreme Court of Victoria12p·Vol [1939] VLR Pt 1

Administration and ProbateProbate and Estate duties on property the subject of a general power of appointment — Direction to pay out of residue "State and Federal duty payable upon the estates of deceased persons" — Duties directed to "be paid out of my estate in gross so as not to be specifically charged or apportioned against beneficiaries" — Whether appointed property should bear proportion of duties — Administration and Probate Act 1928 (No. 3632), secs. 163, 175 — Estate Duty Assessment Act 1914-1928 (No. 22 of 1914 — No. 47 of 1928), secs. 8 (3), 35, 35A.

IN RE CAINEVLR 103

MANN C.J.·9 Feb 1939·Supreme Court of Victoria2p·Vol [1939] VLR Pt 1

Administration and ProbateCaveat — Compromise of proceedings — Grant of probate — Executor desiring to be discharged — Appointment of trustee company as administrator c.t.a. upon terms and conditions — Administration and Probate Act 1928 (No. 3632), sec. 29.

IN RE DUNCANVLR 355

Lowe J., Gavan Duffy J., Martin J.·2 Aug 1939·Supreme Court of Victoria8p·Vol [1939] VLR Pt 1

Administration and ProbateFamily maintenance — Testamentary provision therefor — Adequacy for proper maintenance and support — Jurisdiction of Court to make provision out of testator's estate — Discretion — Principles of exercise — Administration and Probate Act 1928 (No. 3632), Part V. — Administration and Probate (Testator's Family Maintenance) Act 1937 (No. 4483), sec. 3.

IN RE AN ARBITRATION BETWEEN MITCHELL AND BRASSEYVLR 371

MANN C.J.·27 Jun 1939·Supreme Court of Victoria6p·Vol [1939] VLR Pt 1

ArbitrationBuilding contract — Certificate of practical completion — Dispute — Reference to arbitration — Whether arbitrators may determine whether works practically completed.

IN RE MORRISVLR 197

O’BRYAN J.·29 Feb 1940·Supreme Court of Victoria2p·Vol [1940] VLR Pt 1

Administration and ProbatePractice — Caveat — More than one lodged — Whether separate orders nisi should be granted — Administration and Probate Act 1928 (No. 3632), sec. 53.

IN RE MOLONEYVLR 384

LOWE J.·2 Aug 1940·Supreme Court of Victoria5p·Vol [1940] VLR Pt 1

Administration and probateDuties on deceased person's estates — Devise and bequest of residue subject to payment of debts, funeral and testamentary expenses and all State and Federal probate, succession, death and other duties — Whether estate duty payable solely out of residue — Estate Duty Assessment Act 1914-1928 (No. 22 of 1914 — No. 47 of 1928), sec. 35.

IN RE BARNETTVLR 389

O’BRYAN J.·19 Apr 1940·Supreme Court of Victoria6p·Vol [1940] VLR Pt 1

Administration and probateProbate of Will — Objections to probate — Particulars of objection — Testamentary incapacity as a result of delusions — Undue influence — Fraud — Person preparing will receiving benefit thereunder — Rules of Supreme Court 1938, Ch. III., rr. 31, 32.

IN RE McELROYVLR 445

LOWE J.·26 Jul 1940·Supreme Court of Victoria4p·Vol [1940] VLR Pt 1

Administration and ProbateFamily maintenance — Application by widower and grown-up son and daughter for provision out of testatrix's estate — Widower a war pensioner and invalid — Assisting testatrix to amass estate — Widower and daughter barely possessing means of subsistence — Son leaving employment to join Australian Imperial Force — Administration and Probate Act 1928 (No. 3632), Part V. — Administration and Probate (Testator's Family Maintenance) Act 1937 (No. 4483), sec. 3.

GOGOLL v. GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION LTD.VLR 455

O’BRYAN J.·13 Aug 1940·Supreme Court of Victoria6p·Vol [1940] VLR Pt 1

ArbitrationInsurance policy containing arbitration clause — Whether policy extended — Whether difference "arising out of policy" — Stay of proceedings — Arbitration Act 1928 (No. 3637), sec. 5.

RE RADBURNVLR 91

O’BRYAN J.·12 Dec 1940·Supreme Court of Victoria2p·Vol [1941] VLR Pt 1

Administration and probateTestator's family maintenance — Whether power to order life interest in real estate — Administration and Probate Act 1928 (No. 3632), Part V. — Administration and Probate (Testator's Family Maintenance) Act 1937 (No. 4483).

WOODMASON v. TRANSPORT & GENERAL INSURANCE CO. LTD.VLR 114

FULL COURT (Mann C.J., Lowe and Martin JJ.).·6 Mar 1941·Supreme Court of Victoria4p·Vol [1941] VLR Pt 1

ArbitrationInsurance policy containing arbitration clause — Whether policy renewed — Whether difference concerning "subsistence" of policy — Stay of proceedings — Arbitration Act 1928 (No. 3637), sec. 5.

AIKEN v. AIKENVLR 124

MANN C.J.·21 Feb 1941·Supreme Court of Victoria2p·Vol [1941] VLR Pt 1

ActionCompromise of action — Action struck out — Defendant failing to carry out terms of compromise — Reinstatement of action — Defendant directed to perform specifically terms of compromise — Supreme Court Act 1928 (No. 3783), sec. 61 (7).

TOWNSEND v. ARCHITECTS BOARDVLR 142

MANN C.J.·11 Mar 1941·Supreme Court of Victoria6p·Vol [1941] VLR Pt 1

ArchitectRegistration as — Whether applicant bon fide engaged in practice and entitled to registration — Matters to be considered — Procedure upon appeals to the Supreme Court — Architects Act 1939 (No. 4659), secs. 4, 6.

IN RE McCUTCHEONVLR 174

GAVAN DUFFY J.·11 Mar 1941·Supreme Court of Victoria5p·Vol [1941] VLR Pt 1

Administration and probateExecutors' commission — Will providing commission payable as provided by law in respect of trustee companies — Whether legacy of lump sum to executor — Whether commission payable only if work is actually done — Commission to substituted executors.

IN RE LYELLVLR 207

MARTIN J.·31 Jul 1941·Supreme Court of Victoria6p·Vol [1941] VLR Pt 1

Administration and probateEstate duty — Property forming subject of charitable gifts — Duty on — Upon what part of estate to be apportioned by executor — Estate Duty Assessment Act 1914-1928 (No. 22 of 1914 No. 47 of 1928), secs. 8, 16, 29, 32, 34-37.

IN RE YOUNGVLR 4

MARTIN J.·3 Oct 1941·Supreme Court of Victoria8p·Vol [1942] VLR Pt 1

Administration and probateEstate fully administered — Several beneficiaries entitled to residue in remainder — Whether any interest in individual assets forming part of estate — Mortgages on real estate — Whether movables.

WELLS v. MITCHELLVLR 55

FULL COURT (Mann C.J., Lowe and Gavan Duffy JJ.).·22 Oct 1941·Supreme Court of Victoria6p·Vol [1942] VLR Pt 1

Administration and probateAdministration of estate — Two hotels both subject to same mortgage debt — First hotel devised subject to payment of mortgage moneys — Second hotel part of residue — Specific devise of other property free from payment of any mortgages thereon — Whether first hotel charged with payment of the whole of the mortgage moneys thereon — Administration and Probate Act 1928 (No. 3632), sec. 35.

IN RE BURROWSVLR 121

LOWE J.·16 Apr 1942·Supreme Court of Victoria2p·Vol [1942] VLR Pt 1

Administration and probateSummons to executor to prove will — Power of Court on return of summons — Power to grant administration with the will annexed — Formal renunciation of probate by executor not filed in Court — Administration and Probate Act 1928 (No. 3632), sec. 11.

IN RE FINNVLR 125

LOWE J.·10 Apr 1942·Supreme Court of Victoria4p·Vol [1942] VLR Pt 1

Administration, and ProbateCaveat — Interest of caveator — Bankruptcy of caveator — Security for costs — Bankruptcy Act 1924-1933 (No. 37 of 1924-No. 66 of 1933), secs. 60, 91 — Administration and Probate Act 1928 (No. 3632), sec. 52.

IN RE STURTVLR 129

GAVAN DUFFY J.·20 Apr 1942·Supreme Court of Victoria2p·Vol [1942] VLR Pt 1

Administration and probateSummons to executor to prove will — Return of summons — Grant of administration with will annexed — Whether made by Court or Registrar of Probates — Administration and Probate Act 1928 (No. 3632), sec. 11.

IN RE PENDERVLR 135

O’BRYAN J.·14 May 1942·Supreme Court of Victoria2p·Vol [1942] VLR Pt 1

Administration and probateAdministration bond — Dispensing with surety — Interest of infants — Dispensation refused — Limitation of amount of surety.

IN RE ROBERTSONVLR 137

MacFARLAN J.·11 Dec 1941·Supreme Court of Victoria2p·Vol [1942] VLR Pt 1

Administration and probateWill naming particular individual as executor — Mistake of testator as to name — Intention to appoint some other person executor — Extrinsic evidence of intention inadmissible — Wills Act 1928 (No. 3803), sec. 7.

IN RE HOODVLR 144

O’BRYAN J.·13 May 1942·Supreme Court of Victoria5p·Vol [1942] VLR Pt 1

Administration and ProbateFamily maintenance — Testamentary provision therefor — Application by widow for provision out of testator's estate — Intestacy as to part of estate — Court to have regard to the whole estate in considering application and fixing amount of any provision made — Order made to be limited to assets disposed of by will — Administration and Probate Act 1928 (No. 3632), Part V. — Administration and Probate (Testator's Family Maintenance) Act 1937 (No. 4483), secs. 3, 7, Schedule.

IN RE SLOANVLR 63

MARTIN J.·29 Oct 1942·Supreme Court of Victoria4p·Vol [1943] VLR Pt 1

Administration and probateAbatement of assets — Specific devises and bequests becoming liable for payment of debts — Bequest of shares charged with payment of annuity — Valuation of bequest for purposes of abatement — Whether annuity charged on specifically bequeathed shares liable to abate with specific devises and bequests — Administration and Probate Act 1928 (No. 3632), Second Schedule.

IN RE McNAMARAVLR 17

O’BRYAN J.·24 Aug 1943·Supreme Court of Victoria6p·Vol [1944] VLR Pt 1

Administration and probateWill — Admission to probate — Duplicate copies of will — Testator signing both copies — Witnesses each signing separate copies — Both copies admitted to probate — Wills Act 1928 (No. 3803), secs. 7, 8.

IN RE BROWNVLR 24

LOWE J.·21 Oct 1943·Supreme Court of Victoria3p·Vol [1944] VLR Pt 1

Administration and probateProbate of will — Signature at foot or end of will — Printed form — Dispositive provisions contained on first page which was duly executed — Further provisions on unsigned second page — Whether whole document should be admitted to probate — Wills Act 1928 (No. 3803), sec. 7.

IN RE LESSERVLR 210

GAVAN DUFFY J.·24 Jul 1944·Supreme Court of Victoria6p·Vol [1944] VLR Pt 1

Administration and probateAdministration of assets — Alimony charged on "estate" — Whether life policy moneys subject to charge — Whether charge enforceable — Mode and priority of payment where estate insolvent — Administration and Probate Act 1928 (No. 3632), sec. 34(1); Second Schedule — Companies Act 1938 (No. 4602), sec. 554.

IN RE BULLOCKVLR 111

LOWE J.·24 Oct 1944·Supreme Court of Victoria2p·Vol [1945] VLR Pt 1

Administration and probateInquiries as to next of kin — Reference to chief clerk — Form of order where inquiries previously made.

IN RE EDMONDSVLR 126

O’BRYAN J.·13 Feb 1945·Supreme Court of Victoria3p·Vol [1945] VLR Pt 1

Administration and ProbateWill — Appointment of general executors — Testator a trustee of an estate — Separate appointment of executors of the trust estate — Form of grant of probate.

IN RE BARLOWVLR 193

MARTIN J.·26 Apr 1945·Supreme Court of Victoria2p·Vol [1945] VLR Pt 1

Administration and probatePractice — Executors seeking probate of earlier will — Later will allegedly invalid — Notice to beneficiary under later will — Directions for trial of issue of validity of such will.

IN RE DE LITTLEVLR 198

FULL COURT (Macfarlan, Lowe and Martin JJ.).·25 May 1945·Supreme Court of Victoria10p·Vol [1945] VLR Pt 1

Administration and ProbateExecutor's Commission — Trustee company's right to commission on income — Meaning of "income" — Trustee Companies Act 1928 (No. 3793), sec. 17.

DE LONGVILLE v. DE LONGVILLEVLR 243

GAVAN DUFFY J.·20 Dec 1944·Supreme Court of Victoria3p·Vol [1945] VLR Pt 1

Administration and probateMaintenance — Order for support of children — Arrears owing at death of defendant — Whether a debt or liability executor under a duty to pay.

IN RE MADDERVLR 250

GAVAN DUFFY J.·19 Jun 1945·Supreme Court of Victoria9p·Vol [1945] VLR Pt 1

Administration and probateWill — Beneficiary signing as witness — Share undisposed of — Closer settlement lease — Purchase money owing to establish freehold right — Whether testator's real estate or undisposed of part of testator's estate primarily liable for balance of purchase money — Intestacy — Division between widow and daughter — Whether daughter liable to bring share in testator's estate into hotchpot — Probate and Estate duty — Fund from which payable — Meaning of "residue" — Administration and Probate Act 1928 (No. 3632), secs. 34, 35, 47 (1)(f), 48 (a), 163 — Closer Settlement Act 1938 (No. 4597), secs. 22, 23, Second Schedule — Estate Duty Assessment Act 1914-1944, sec. 35 et seq.

IN RE GILPINVLR 65

HERRING C.J.·26 Oct 1945·Supreme Court of Victoria7p·Vol [1946] VLR Pt 1

Administration and probateWill — Annuity to widow — Surplus income "subject to annuity" disposed of to son — Insufficient income to pay annuity — Whether arrears of annuity payable out of future income.

IN RE EDWARDSVLR 71

LOWE J.·29 Nov 1945·Supreme Court of Victoria2p·Vol [1946] VLR Pt 1

Administration and probateWill appointing "the Salvation Army" as executor and bequest thereto — Grant of letters of administration with the will annexed to The Salvation Army (Victoria) Property Trust — Salvation Army (Victoria) Property Trust Act 1930 (No. 3896), sec. 18.

IN RE STEWARTVLR 205

LOWE J.·7 Mar 1946·Supreme Court of Victoria2p·Vol [1946] VLR Pt 1

Administration and probateAdministrator ad litem — Action in a County Court — Jurisdiction to appoint administrator to defend action — County Court Act 1928 (No. 3663), sec. 87 (6) — Rules of Supreme Court 1938, Order XVI., rule 46.

IN RE WAKELINGVLR 295

FULLAGAR J.·29 Mar 1946·Supreme Court of Victoria5p·Vol [1946] VLR Pt 1

Administration and probateWill of soldier in actual military service — Application for probate — Completed document in handwriting with testator's Christian name incorrect but identification proved — Unsigned and unattested — Death of testator and draughtsman — Wills Act 1928 (No. 3803), sec. 10; Wills (War Service) Act 1939 (No. 4684), sec. 2.

IN RE ISHERWOODVLR 312

O’BRYAN J.·16 Apr 1946·Supreme Court of Victoria4p·Vol [1946] VLR Pt 1

Administration and ProbateWill — Grant of administration c.t.a. — Testator's signature in attestation clause — Witnesses unable to remember signing by testator — Wills Act 1928 (No. 3803), sec. 7.

IN RE RUXTONVLR 334

FULLAGAR J.·28 Mar 1946·Supreme Court of Victoria4p·Vol [1946] VLR Pt 1

Administration and probateWidow's maintenance — Applicant's moral claim, on testator — Widowhood prim facie proof of such moral claim — Character or conduct of applicant — Burden of proof of lack of character or conduct on those resisting application — Administration and Probate Act 1928 (No. 3632), Part V.

IN RE GILPINVLR 417

HERRING C.J.·27 Jun 1946·Supreme Court of Victoria7p·Vol [1946] VLR Pt 1

Administration and probateAssets of testator difficult to realise — Postponement of conversion — Interest and other expenses incurred for preservation of property — Whether to be recouped from income from investments after conversion.

IN RE TARRVLR 448

O’BRYAN J.·5 Sept 1946·Supreme Court of Victoria5p·Vol [1946] VLR Pt 1

Administration and probateWill — Construction — Printed form — Marginal instructions — Admitted to probate as part of will — Executors — Alternative appointment — Whether void for uncertainty.

IN RE LORDVLR 468

HERRING C.J.·18 Jul 1946·Supreme Court of Victoria4p·Vol [1946] VLR Pt 1

Administration and probateWill — Representative of Australian Red Cross Society with the army — Will made in army hospital — Whether "being in actual military service" — Wills Act 1928 (No. 3803), sec. 10 — Wills (War Service) Act 1939 (No. 4684), sec. 2.

IN THE ESTATE OF McGOWNVLR 113

O’BRYAN J.·30 Sept 1946·Supreme Court of Victoria7p·Vol [1947] VLR Pt 1

Administration and probateLimited grant — To represent estate in contemplated action and to enforce indemnity — Supreme Court Act 1928 (No. 3783), sec. 17 — Administration and Probate Act 1928 (No. 3632), secs. 16, 66, 170 — Survival of Actions Act 1942 (No. 4918), sec. 3 — Motor Car (Third Party Insurance) Act 1939 (No. 4688), sec. 12.

IN RE H.VLR 170

HERRING C.J.·11 Dec 1946·Supreme Court of Victoria4p·Vol [1947] VLR Pt 1

Administration and probateIntestacy — Estate less than 1,000l. — Child of intestate adopted — Rights of intestate's widow — Bona vacantia — Adoption of Children Act 1928 (No. 3605), sec. 7 — Administration and Probate Act 1928 (No. 3632), secs. 45, 46, 47 — Statute Law Revision Act 1933 (No. 4191), sec. 2, Schedule.

IN RE GUSKETTVLR 212

HERRING C.J.·19 Dec 1946·Supreme Court of Victoria5p·Vol [1947] VLR Pt 1

Administration and probateWill — Testator's family maintenance — Application within six months of grant of probate — Application out of time — Onus on applicant to show circumstances justifying enlargement of time — Administration and Probate Act 1928 (No. 3632), Part V., sec. 147 — Administration and Probate (Testator's Family Maintenance) Act 1937 (No. 4483), sec. 6.

IN RE COMFORTVLR 237

HERRING C.J.·11 Feb 1947·Supreme Court of Victoria4p·Vol [1947] VLR Pt 1

Administration and probateWill — Originating summons — Deaths of two persons occurring about the same time — Evidence of survivorship — Presumption of survivorship — Property Law Act 1928 (No. 3754), sec. 184.

IN THE WILL OF BROOMHEADVLR 319

HERRING C.J.·14 Mar 1947·Supreme Court of Victoria6p·Vol [1947] VLR Pt 1

Administration and probateWill not forthcoming at date of death — Whether destroyed animo revocandi — Later document purporting to be will — Not executed in accordance with Wills Act — Dependent relative revocation.

IN RE BRADYVLR 347

FULL COURT (Herring C.J., Gavan Duffy and Fullagar JJ.).·3 Feb 1947·Supreme Court of Victoria16p·Vol [1947] VLR Pt 1

Administration and probateWill — Testator possessed of land settlement leases — Payments to be made thereunder to establish freehold right — Specific devises of testator's "estate and interest" in lands subject to leases — Liability to make payments falling due after testator's death — Whether to be borne by specific devisees or testator's general estate — Administration and Probate Act 1928 (No. 3632), sec. 35.

IN RE LESSERVLR 366

HERRING C.J.·14 Mar 1947·Supreme Court of Victoria3p·Vol [1947] VLR Pt 1

Administration and ProbateAdvancement of beneficiaries — Powers of trustee — Purchase of dwelling-house — Payment out of corpus — Trustee Act 1928 (No. 3792), secs. 32, 57.

IN THE ESTATE OF PHILLIPSVLR 379

HERRING C.J.·11 Apr 1947·Supreme Court of Victoria5p·Vol [1947] VLR Pt 1

Administration and probateLimited grant — To represent estate in contemplated action and to enforce indemnity — Supreme Court Act 1928 (No. 3783), sec. 17 — Administration and Probate Act 1928 (No. 3632), secs. 16, 66, 170 — Survival of Actions Act 1942 (No. 4918) — Motor Car (Third Party Insurance) Act 1939 (No. 4688), sec. 12.

IN RE TEULONVLR 409

FULLAGAR J.·9 Jun 1947·Supreme Court of Victoria2p·Vol [1947] VLR Pt 1

Administration and probateWill lost since death of testator — Application for probate — Whether notice to next-of-kin required.

IN THE WILL AND ESTATE OF THORNEVLR 415

MARTIN J.·24 Apr 1947·Supreme Court of Victoria11p·Vol [1947] VLR Pt 1

Administration and probateWill — Evidence — Statement in document written by testator — Admissible as tending to prove document propounded is not testator's will — Evidence Act 1946 (No. 5183), sec. 3.

PracticeCosts — Failure of propounder to prove document is will of testator — No power to order costs against person not a party to action — Rules of Supreme Court 1938, Order LXV, rr. 1, 14D.

IN THE WILL OF FISHERVLR 8

FULLAGAR J.·26 Aug 1947·Supreme Court of Victoria3p·Vol [1948] VLR Pt 1

Administration and probateWill — Intention of testator — Undischarged mortgage on land devised — Gift of residue subject to payment of "all my just debts" and "all other charges" — Charges to be paid primarily out of property charged — Whether contrary or other intention signified — Administration and Probate Act 1928 (No. 3632), sec. 35.

HANSEN v. MARCO ENGINEERINGVLR 198

FULLAGAR J.·5 Sept 1947·Supreme Court of Victoria15p·Vol [1948] VLR Pt 1

AgencyCompromise of action — Authority of Counsel — Ostensible authority — Client bound by settlement.

InsuranceMotor Vehicle — Claim against owner — Compromise by insurer — Claim not covered by policy — Estoppel — Insurer bound to indemnify owner — Motor Car (Third Party Insurance) Act, 1939 (No. 4688), secs. 10 (2), 19.

IN RE SINNOTTVLR 279

FULLAGAR J.·8 Mar 1948·Supreme Court of Victoria5p·Vol [1948] VLR Pt 1

Administration and ProbateTestator's family maintenance — No provision made by testator for adult daughter living apart from parents and supporting herself — Application by daughter for provision out of testator's estate — More consideration to be given to applicant in case of adult daughter than in case of adult son — Administration and Probate Act 1928 (No. 3632), Part V. — Administration and Probate (Testator's Family Maintenance) Act 1937 (No. 4483), sec. 3.

IN THE ESTATE OF MARTINVLR 376

GAVAN DUFFY J.·19 Dec 1947·Supreme Court of Victoria16p·Vol [1948] VLR Pt 1

Administration and probateMaintenance of child — Order for weekly payments contained in decree nisi for divorce — Arrears owing at death of father — Whether estate liable to pay — Supreme Court Act 1928 (No. 3783), sec. 173 — Administration and Probate Act 1928 (No. 3632), sec. 33 (2).

RAMAGE v. EVANSVLR 391

FULL COURT (Macfarlan, Gavan Duffy and O’Bryan JJ.).·14 May 1948·Supreme Court of Victoria9p·Vol [1948] VLR Pt 1

AnimalsDogs — Chasing cattle or sheep — Enclosed area — Dog found at large in enclosed area — Common law right to kill — Statutory right to kill — Dog Act 1928 (No. 3667), sec. 19.

IN RE BUTLERVLR 434

FULL COURT (Macfarlan, Lowe and Barry JJ.)·8 Sept 1948·Supreme Court of Victoria3p·Vol [1948] VLR Pt 1

Administration and ProbateTestator's family maintenance — Moral claim of applicant on testator — Declaration of testator — Discretion of primary Judge — Disparity between amount ordered and appellate Court's view as to amount which should be ordered — Review of discretion — Administration and Probate Act 1928 (No. 3632), Part V — Administration and Probate (Testator's Family Maintenance) Act 1937 (No. 4483), sec. 3.

IN RE LOWEVLR 169

FULLAGAR J.·6 Dec 1948·Supreme Court of Victoria5p·Vol [1949] VLR Pt 1

Administration and probateWill — Soldier — Killed on active service — Oral statements — Whether expression of final intention — Not necessary to show deceased knew he was making a will — Wills Act 1928 (No. 3803), sec. 10 — Statute Law Revision Act 1933 (No. 4191), sec. 2 — Wills (War Service) Act 1939 (No. 4684), sec. 2.

IN RE WARNE-SMITHVLR 174

HERRING C.J.·3 Nov 1948·Supreme Court of Victoria4p·Vol [1949] VLR Pt 1

Administration and probateTestator's family maintenance — "Children" — Retroactive operation of repeal of definition of "children" — Application by children more than six months after grant of letters of administration — Extension of time for making application — Power of Court — Administration and Probate Act 1928 (No. 3632), Part V, secs. 138, 139, 147 — Administration and Probate (Testator's Family Maintenance) Act 1937 (No. 4483), secs. 3, 6.

IN RE GILLARDVLR 378

BARRY J.·25 May 1949·Supreme Court of Victoria6p·Vol [1949] VLR Pt 1

Administration and probateRevocation of probate — Original grant obtained by fraud — Escheat to Crown — Application for revocation — Procedure.

IN RE PORTEOUSVLR 383

FULL COURT (HERRING C.J., O’BRYAN and FULLAGAR JJ.)·7 Aug 1949·Supreme Court of Victoria6p·Vol [1949] VLR Pt 1

Administration and probateTestator's family maintenance — Order made — Liberty to apply — Jurisdiction to make further order — Administration and Probate Act 1928 (No. 3632), sec. 145 — Administration and Probate (Testator's Family Maintenance) Act 1937 (No. 4483).

RE TAYLORVLR 8

HERRING C.J.·25 Oct 1949·Supreme Court of Victoria3p·Vol [1950] VLR Pt 1

Administration and probatePassing executor's accounts — Procedure by originating summons — Whether still available — Administration and Probate Act 1928 (No. 3632), sec. 59 — Administration and Probate (Amendment) Act 1948 (No. 5277), sec. 5.

IN RE SCOTTVLR 102

HERRING C.J.·19 Dec 1949·Supreme Court of Victoria6p·Vol [1950] VLR Pt 1

Administration and probateTestator's family maintenance — Husband's moral duty to make provision for widow — Character or conduct of applicant disentitling her to provision — Testator's suspicions as to widow's conduct unjustified — Duty of Court to determine whether such suspicions justified or not — Administration and Probate Act 1928 (No. 3632), Part V, secs. 139, 144 — Administration and Probate (Testator's Family Maintenance) Act 1937 (No. 4483), sec. 3.

RE N.VLR 139

SHOLL J.·27 Feb 1950·Supreme Court of Victoria10p·Vol [1950] VLR Pt 1

Administration and probateWill — Omission of words from probate copy — Jurisdiction — Deletion of scandalous words.

COLLECTOR FOR INTERSTATE DESTITUTE PERSONS v. OKNOVLR 173

FULL COURT (Herring C.J., O’Bryan and Dean JJ.).·16 Mar 1950·Supreme Court of Victoria5p·Vol [1950] VLR Pt 1

Administration and probateMaintenance of wife — Order made in another State made enforceable in Victoria — Arrears owing at death of deceased — Whether a debt or liability executor under a duty to pay out of deceased's Victorian estate — Maintenance Act 1928 (No. 3722), Part IV, Division 3.

EATON v. EATONVLR 233

SHOLL J.·27 Apr 1950·Supreme Court of Victoria9p·Vol [1950] VLR Pt 1

ArbitrationApplication for stay of proceedings — Whether dispute unsuitable for arbitrator to try — Onus of proving — Claim for dissolution of partnership — Claim for receiver — Arbitration Act 1928 (No. 3637), sec. 5.

IN RE THOMASVLR 289

SHOLL J.·27 Apr 1950·Supreme Court of Victoria5p·Vol [1950] VLR Pt 1

Administration and probateProbate "granted" by Registrar — Parchment not issued — Change of name of executor company — Powers — Practice — Administration and Probate Act 1928 (No. 3632), sec. 7 — Trustee Companies Act 1928 (No. 3793), sec. 3 — Companies Act 1938 (No. 4602), secs. 3, 19, 316.

IN THE WILL OF MORGANVLR 335

DEAN J.·1 May 1950·Supreme Court of Victoria6p·Vol [1950] VLR Pt 1

Administration and ProbateWill — Execution — Whether acknowledgment by testator of his signature "in the presence of" both witnesses required — Wills Act 1928 (No. 3803), sec. 7.

IN THE ESTATE OF SIMKINVLR 341

DEAN J.·22 Jun 1950·Supreme Court of Victoria2p·Vol [1950] VLR Pt 1

Administration and probateWill — Revocation — Unauthorised act of destruction — Possibility of ratification — Wills Act 1928 (No. 3803), sec. 18.

IN THE ESTATE OF O’CONNORVLR 343

SHOLL J.·13 Apr 1950·Supreme Court of Victoria3p·Vol [1950] VLR Pt 1

Administration and probateAppointment of administrator ad litem — To represent estate in contemplated action and to enforce indemnity — Necessity for notice of application — Supreme Court Act 1928 (No. 3783), sec. 17 — Probate and Administration Rules 1939, rules 3, 17, 38, 39.

IN RE PAULINVLR 462

SHOLL J.·5 Jun 1950·Supreme Court of Victoria14p·Vol [1950] VLR Pt 1

Administration and ProbateFamily maintenance — Application by widow — Value of testator's estate — Estate including immovable assets outside the jurisdiction — Determination of such assets — Evidence taken of testator's reasons for excluding applicant — Onus on opponent to negative moral claim — Matters taken into consideration for reducing provision — Administration and Probate (Testator's Family Maintenance) Act 1937 (No. 4483), secs. 3, 4, 5, 6 — Administration and Probate Act 1928 (No. 3632), Part V, secs. 139, 140 (2), 142, 143, 145.

McCLELLAND v. SYMONSVLR 157

SHOLL J. FULL COURT (Lowe A.-C.J., Gavan Duffy and Dean JJ.).·23 Oct 1950·Supreme Court of Victoria18p·Vol [1951] VLR Pt 1

AssaultAction for damages — Defendant's plea of justification — Allegation, in plaintiff's reply, of use of excessive force — Onus and standard of proof.

RE WHITEVLR 306

FULL COURT (Lowe A.-C.J., Dean and Smith JJ.).·10 Nov 1950·Supreme Court of Victoria10p·Vol [1951] VLR Pt 1

Administration and probateMaintenance — Order for support of wife and child — Arrears owing at death of defendant — Whether a debt or liability executor under a duty to pay.

IN RE SMITHVLR 368

SHOLL, J.·23 Oct 1950·Supreme Court of Victoria12p·Vol [1951] VLR Pt 1

Administration and probateWill — Caveat — Practice — Particulars of objection — Whether further particulars may be ordered — Rules of Supreme Court 1938, ch. III, rr. 31, 32.

IN RE RIDGWAYVLR 71

SMITH J.·28 Sept 1951·Supreme Court of Victoria6p·Vol [1952] VLR Pt 1

Administration and probateTestator's family maintenance — Application for — "No application shall be heard by the Court . . . unless application is made within six months after date of grant" — Meaning — Administration and Probate Act 1928 (No. 3632), Part V, sec. 147 — Administration and Probate Act 1937 (No. 4483), sec. 6.

PracticeTime — Within which to make application — Application to be made within six months after date of grant of probate — What constitutes making of application.

IN RE BLADENVLR 82

SHOLL J.·17 Sept 1951·Supreme Court of Victoria7p·Vol [1952] VLR Pt 1

Administration and probateWill — Execution — Signature by testator and two witnesses — Presumption of due execution — Conflict of testimony by witnesses to will — When presumption becomes operative — Wills Act 1928 (No. 3803), sec. 7.

RE BUCKLEYVLR 107

SHOLL J.·25 Jun 1951·Supreme Court of Victoria11p·Vol [1952] VLR Pt 1

Administration and probateWill — Codicil — Revocation — Second codicil conditional on beneficiary predeceasing testator but otherwise in identical terms with first codicil and confirming will — Whether first codicil revoked — Admission of will and second codicil to probate — Practice — Service of notice of motion for probate on interested beneficiaries likely to be affected by motion.

IN RE SELBYVLR 273

SMITH J.·22 Nov 1951·Supreme Court of Victoria10p·Vol [1952] VLR Pt 1

WillConstruction — Gift to four named nephews — No contingency annexed to gift — Whether beneficiaries take as individuals — Or as a class.

Administration and probateWill — Share of residue undisposed of — Whether pecuniary legacies to be paid thereout — Administration and Probate Act 1928 (No. 3632), secs. 33, 34.

IN RE DAVISVLR 517

HERRING C.J.·24 Jul 1952·Supreme Court of Victoria2p·Vol [1952] VLR Pt 1

Administration and probateTestator's family maintenance — Practice — Application for further provision out of estate — Procedure where problems of construction or administration arise — Application to be adjourned — Pending determination of problems in appropriate proceedings — Administration and Probate Act 1928 (No. 3632), Part V.

RE BISHOPVLR 543

HERRING C.J.·13 Jun 1952·Supreme Court of Victoria11p·Vol [1952] VLR Pt 1

Administration and probateTestator's family maintenance — Order made — Provisions in will supplanted not supplemented — Application to vary order — Who may apply — Variation to increase benefit under order — Jurisdiction — Administration and Probate Act 1928 (No. 3632), sec. 145 (6) — Administration and Probate (Testator's Family Maintenance) Act 1937 (No. 4483).

IN RE OLSENVLR 11

COPPEL, A., J. read the following judgment·11 Sept 1952·Supreme Court of Victoria3p·Vol [1953] VLR Pt 1

Administration and probateGrant of letters of administration obtained by fraud — Death of grantee — Application for revocation of grant and for fresh grant of administration — No administration of estate by original grantee — Whether Court should revoke original grant or make grant to fresh applicant — Letters of administration de bonis non granted.

IN RE LILLEYVLR 98

SMITH, J. read the following judgment·28 Jul 1952·Supreme Court of Victoria7p·Vol [1953] VLR Pt 1

EvidenceEx parte motion — Inadmissible evidence — Whether Judge should reject from his consideration such evidence if it is not irrelevant nor prohibited by any absolute rule of law.

Administration and probateAlleged revocation of earlier by later will — Later will missing — Proof of contents by testamentary drafts and statements by deceased's solicitor — Sufficiency of proof of contents and revocation.

IN RE BARROTVLR 308

SHOLL, J. read the following judgment·19 Dec 1952·Supreme Court of Victoria9p·Vol [1953] VLR Pt 1

Administration and probateTestator's family maintenance — Application to extend time within which to apply for further provision out of estate — So-called "manifest injustice" which would be incurred by applicant if extension not granted — Whether a proper matter for Court's consideration — Lapse of three and a half years from grant of probate before application for extension — Whether delay excusable.

IN RE BRIENVLR 585

O’BRYAN, J. read the following judgment·25 Feb 1953·Supreme Court of Victoria5p·Vol [1953] VLR Pt 1

Administration and probateTestator's Family Maintenance — Application for maintenance to be made "within six months after the date of the grant of probate" — Application made within six months of date of issue of probate to executors but more than six months after endorsement of "grant" on praecipe for probate by Registrar of Probates — Whether application made in time — Administration and Probate Act 1928 (No. 3632), sec. 147 — Administration and Probate (Testator's Family Maintenance) Act 1937 (No. 4483), sec. 6.

IN RE LEVYVLR 652

SHOLL, J. read the following judgment·17 Mar 1953·Supreme Court of Victoria10p·Vol [1953] VLR Pt 1

Administration and probatePractice — Proof of will in solemn form — After grant of probate — On application by executor.

Public TrusteeAdvice to — Addition to advice — Public Trustee Act 1939 (No. 4654), sec. 63.

R. v. McNAMARAVLR 137

FULL COURT (Martin, Dean and Smith JJ.).·7 Dec 1953·Supreme Court of Victoria3p·Vol [1954] VLR Pt 1

AssaultThreat of violence — Threat must create fear of violence — Jury to be so directed.

HENDRY v. FISHERVLR 539

HERRING C.J.·4 Jun 1954·Supreme Court of Victoria3p·Vol [1954] VLR Pt 1

JusticesAppeal to Court of General Sessions — Application to General Sessions to state case for Supreme Court — Made some days after appeal allowed but while same Chairman still sitting — Application not out of time — Justices Act 1929 (No. 3708), sec. 147.

AnimalsDogs — May be destroyed if found in field, paddock, yard or other place enclosed by a fence — In which sheep, cattle or poultry confined — Provision inapplicable where killing takes place in building — Dog Act 1928 (No. 3667), sec. 19.

IN RE BERRYVLR 557

DEAN, J. read the following judgment·29 Jul 1954·Supreme Court of Victoria10p·Vol [1954] VLR Pt 1

Administration and probatePayment of legacies and annuities — Where lapsed share of residue — Whether payment to be made out of lapsed share or general residuary estate — Intestacy arising only after death of life tenant — Administration and Probate Act 1928 (No. 3632), secs. 4, 33, 34.

R. v. BIGGINVLR 36

FULL COURT (Gavan Duffy, O’Bryan and Dean JJ.).·18 Jun 1954·Supreme Court of Victoria11p·Vol [1955] VLR Pt 1

Adoption of childrenConsent in writing to adoption by mother of child — Withdrawal of consent by mother — Whether withdrawal of consent communicated to proposed adopters or Court of Petty Sessions — Whether person employed to obtain mother's written consent to the adoption an agent of proposed adopters to receive notice of withdrawal of consent — Writ of certiorari — Consideration thereon of material to ascertain whether required consent had been given — Adoption of Children Act 1928 (No. 3605), secs. 4, 5, 10.

HARDY v. JUDSONVLR 274

LOWE, J.·18 Feb 1955·Supreme Court of Victoria2p·Vol [1955] VLR Pt 1

ArbitrationArbitration clause in contract — Application to stay proceedings — To be made before taking steps in proceedings — Filing affidavit in reply to summons for final judgment — And asking leave to defend — Constitutes taking a step — Arbitration Act 1928 (No. 3637), sec. 5.

IN THE ESTATE OF NICHOLASVLR 291

HERRING, C.J. read the following judgment·17 May 1955·Supreme Court of Victoria11p·Vol [1955] VLR Pt 1

Administration and probateProbate duty — "Gift inter vivos" — "Settlement" — Meanings thereof — Property forming part of deceased person's estate — Deed of settlement vesting assets in trustees — "Non-testamentary disposition of property" — Whether disposition creates beneficial interest — Whether "gift inter vivos" or "settlement" — Character of disposition — Whether to take effect on death — Ascertainable as soon as made — Administration and Probate Act 1928 (No. 3632), sec. 177; Administration and Probate (Estates) Act 1951 (No. 5590), secs. 2 (1), 4 (1) (d), (h), 11.

IN THE ESTATE OF RYANVLR 316

MARTIN, J. read the following judgment·6 Apr 1955·Supreme Court of Victoria4p·Vol [1955] VLR Pt 1

Administration and probateWill — Document consisting of two sheets of paper unattached — Dispositive clauses on one sheet signed by deceased — Second sheet of paper containing attestation clause and signatures of two witnesses — Whether both sheets of paper together constitute the will of the deceased — Whether probate should be granted.

A. v. C.-S.VLR 340

FULL COURT (Herring C.J., Martin and Sholl JJ.).·11 Mar 1955·Supreme Court of Victoria37p·Vol [1955] VLR Pt 1

Adoption of childrenDischarge of adoption order — Appeal against refusal to discharge order — Whether appeal should be heard in camer — Whether discretion of primary Judge exercised on erroneous grounds — Matters for consideration as to whether order for discharge should be made — Adoption of Children Act 1928 (No. 3605), secs. 3, 4, 5, 7, 10, 12, 13, 17.

A. v. C.-S.VLR 376

SMITH, J.·11 May 1955·Supreme Court of Victoria3p·Vol [1955] VLR Pt 1

Adoption of childrenApplication to set aside adoption order — Limits of discretion for trial Judge — Factors relevant to the exercise of the discretion — Adoption of Children Act 1928 (No. 3605), sec. 13.

VARLEY v. SPATTVLR 403

HERRING C.J. read the following judgment·25 May 1955·Supreme Court of Victoria10p·Vol [1955] VLR Pt 1

ArbitrationBuilding contract — Enforcement of award — Grounds for setting aside — Answers in award not final — Extraneous matters, not raised in questions submitted, dealt with in answers — Denial of justice — Evidence of material witness taken in absence and without knowledge of parties — Evidence part of basis for award made.

ContractBuilding contract — Alteration to plans — Prior consent in writing of surveyor not obtained — Illegality — Uniform Building Regulations.

IN RE HODGSONVLR 481

FULL COURT (Herring C.J., Martin and Sholl JJ.).·2 Mar 1955·Supreme Court of Victoria15p·Vol [1955] VLR Pt 1

Administration and probateTestator's family maintenance — Married daughter — Circumstances in which discretion will be exercised in her favour — Relevance of husband's means and ability to support her and their prospects in life — Whether date of death or date of application relevant time in considering needs of applicant — Whether trial judge exercising discretion — Administration and Probate Act 1928 (No. 3632), Part V, sec. 137 — Administration and Probate Act 1937 (No. 4483).

IN RE VERGERSVLR 94

MARTIN, J. read the following judgment·24 Oct 1955·Supreme Court of Victoria2p·Vol [1956] VLR Pt 1

Administration and probateWill — Document consisting of three sheets of paper unattached — First and second sheets of paper containing dispositive clauses signed by testator and two witnesses — Third sheet of paper containing only the date of the will, the attestation clause and signatures of the testator and the two witnesses — Whether the three sheets of paper together constituted the will of the deceased — Whether probate thereof should be granted.

IN RE SALLOWSVLR 223

SHOLL, J. read the following judgment·11 Nov 1955·Supreme Court of Victoria2p·Vol [1956] VLR Pt 1

Administration and probateDispensation of sureties to administration bond — Application for dispensation by Public Trustee of South Australia — Whether beneficiaries or next of kin should be notified of the application.

IN RE SEFERTHVLR 382

SMITH, J. read the following judgment·5 Dec 1955·Supreme Court of Victoria8p·Vol [1956] VLR Pt 1

Administration and probateWill — Document consisting of printed will form with additions in manuscript — Witnesses' signatures appear on first page of document at the foot of the attestation clause and on third page of the document — Document not signed by testator in the presence of the witnesses — Whether acknowledgment of testator's signature — Whether name of testator in attestation clause and on third page of the document was intended as a signature — Whether writing in the document written before or after witnesses signed their names — Whether probate should be granted — Wills Act 1928 (No. 3803), sec. 8.

IN RE DOLLINGVLR 535

HERRING, C.J. read the following judgment·19 Mar 1956·Supreme Court of Victoria7p·Vol [1956] VLR Pt 1

Administration and probateWill — Disappearance of legatee more than seven years before testator's death — Distribution of estate — Whether legatee survived testator — Onus of proof — Form of order.

MUMMERY v. IRVINGS PTY. LTD.VLR 659

FULL COURT (Lowe, Gavan Duffy and Dean JJ.).·16 Dec 1955·Supreme Court of Victoria19p·Vol [1956] VLR Pt 1

AppealPlaintiff injured by piece of wood flying from machine when entering defendant's premises — Defendant alleged to be liable because of breach of duty owed to invitee or alternatively because of breach of Factories and Shops Act 1928 (No. 3677), sec. 59 — Trial conducted accordingly and questions put to jury — Application by counsel for plaintiff after Judge's summing up for re-direction on question of res ipsa loquitur — Application refused because of course of trial and evidence adduced by plaintiff — Circumstances in which new trial may be granted ex gratia.

NegligenceLiability to invitee — Res ipsa loquitur — Breach of statutory duty — Factories and Shops Act 1928 (No. 3677), sec. 59.

IN RE DAVIS AND BROWN’S ARBITRATIONVLR 717

SHOLL J. read the following judgment·20 Aug 1956·Supreme Court of Victoria5p·Vol [1956] VLR Pt 1

ArbitrationReference by consent of parties out of Court — Award — Application to set aside or remit — Whether time limit therefor — Rules of the Supreme Court 1938, Order LIX, r. 2.

IN RE LISTON DECEASEDVR 50

LOWE, J·2 Oct 1956·4p·

Administration and probate - Testator's family maintenance - Large estate - Provision for child - Whether aliquot portion of estate or specified sum should be awarded - Administration and Probate Act 1928 (No. 3632), s139 - Administration and Probate (Testator's Family Maintenance) Act 1937 (No. 4482), s3.

In Re DAVIS AND BROWN'S ARBITRATION (No 2)VR 127

SHOLL, J·24 Sept 1956·12p·

Arbitration - Reference by consent out of Court - Award made - Agreement to re-open reference - Power in arbitration to make new or amended award - Time limit for making award - Waiver by conduct - Written agreement to refer future differences - Appointment and reference made by parol - Unnecessary to sign written submission - Arbitration Act 1928 (No. 3637), s3, s10, s13.

In re CURR deceased; SHEEHAN v CURRVR 269

LOWE, J·16 Nov 1956·6p·

Administration and probate - Probate duty - Gift duty - Gift inter vivos - For religious purposes - Exemption from duty - Administration and Probate Act 1928 (No. 3632), s160 - Administration and Probate Act 1948 (No. 5277), s8(1) - Administration and Probate (Estates) Act 1951 (No. 5590), s4(1), s10.

IN THE WILL OF PODGER DECEASEDVR 275

O'BRYAN, J·20 Nov 1956·4p·

Administration and probate - Will - Application for probate of copy - Original lost - Last in testator's possession, but not forthcoming at death - Whether inferred that destroyed animo revocandi - Effect of consent of next of kin to grant of probate.

IN RE TAIT DECEASEDVR 405

LOWE, MARTIN and SHOLL, JJ·19 Dec 1956·16p·

Administration and probate - Revocation of first will in belief that second will contained two clauses similar to those in the first will - Clauses omitted in error - Jurisdiction to admit to probate second will and two clauses of the first will with declarations that revocation clause in second will not to extend or apply to them - Admissibility of extrinsic evidence to show that second will executed conditionally.

RE MANDELL DECEASED; PERMANENT TRUSTEE COMPANY OF NEW SOUTH WALES LIMITED v BARTONVR 429

SHOLL, J·8 Jun 1956·10p·

Administration and probate - Will - Gifts made subject to provision that bequests should revert back to estate if beneficiary predeceased testator and residuary bequests made after legacies and "subject to the above" - Priority of payment of debts etc. - Incidence of Victoria probate duty, debts, funeral and testamentary expenses, pecuniary legacies, and a legacy on estate as between surviving residuary beneficiary's interest and that of next of kin - Residue - Administration and Probate Act 1928 (No. 3632), s33, s34, s162, s163, 2nd Schedule - Administration and Probate (Amendment) Act 1948 (No. 5277) - Administration and Probate (Estates) Act 1951 (No. 5590), s4(3).

RENDELL v ASSOCIATED FINANCE PTY LTDVR 604

LOWE , O'BRYAN , and BARRY , JJ·29 Jul 1957·10p·

Accession of title - Conversion - Accessories attached to motor vehicle - Whether property passes to owner of vehicle.

IN RE LEVY DECEASED (No 2)VR 662

SHOLL, J·12 Sept 1956·7p·

Administration and probate - Public Trustee - Probate of will in common form granted to Public Trustee - Parties compromising matters in issue - Whether propounder protected by order granting probate in solemn form against persons not represented at present hearing and not parties to the compromise - Duty of the propounder in proving the will in solemn form if opposition is withdrawn as a result of a compromise - No duty to call all available evidence for and against will - Whether the Court is under a duty to make its own investigation when an application is made to it for a grant of probate in solemn form.

HEYWOOD v EDDIEVR 118

PAPE, J·25 Nov 1957·4p·

Animals - Live stock - Sheep - Foot rot - Exhibiting sheep for sale apparently affected with foot rot - Circumstances under which an offence is committed - Sheep (Foot Rot) Act 1956 (No. 6007), s6.

In re WHITEHEAD, deceasedVR 143

HERRING CJ, O'BRYAN and DEAN , JJ·3 Dec 1957·4p·

Administration and probate - Executor's commission - No provision in will authorizing solicitor-executor to charge estate for professional services rendered - Whether court has jurisdiction to grant commission in respect of professional work rendered by solicitor-executor - Administration and Probate Act 1928 (No. 3632), s59 - Supreme Court Act 1928 (No. 3783), s18.

In re LEWIS CONSTRUCTION CO PTY LTD AND FEDERATION INSURANCE LTD's ARBITRATIONVR 162

HERRING, CJ·13 Aug 1957·3p·

Arbitration - Submission to two arbitrators - One refusing to act - No power in court to fill vacancy - Arbitration Act 1928 (No. 3637), s6(b).

BENJAMIN v CURRIEVR 259

HERRING CJ, O'BRYAN and DEAN , JJ·19 Dec 1957·8p·

Negligence - Lord Campbell's Act - Contributory negligence - Damages reduced - In same proportion as in action for personal injuries and damage to property - Wrongs Act 1928 (No. 3807), PtIII; Wrongs (Contributory Negligence) Act 1951 (No. 5594), s3.

Appeal - Practice - Point not taken below - Costs - Rules of the Supreme Court, O.LVIII, r4, r6.

In the Will and Estate of HASTIE, deceasedVR 335

O'BRYAN, J·14 Apr 1958·14p·

Administration and probate - Probate duties - Seat on Stock Exchange - Sold after testator's death - Proceeds of sale in hands of executors - Whether dutiable - "Property" - "Settlement" - Administration and Probate (Estates) Act 1951 (No. 5590), s2, s4(b)(ii), s4(d)(ii), s4(h)(i).

MUELLER v ARCHITECTS REGISTRATION BOARD OF VICTORIAVR 375

PAPE, J·18 Dec 1957·7p·

Architects - Application to the Architects Registration Board for registration - Foreign qualification - Non-recognition by the Board as "a recognized certificate" - Appeal - Board performing an administrative function which is not examinable on appeal - Architects Act 1928 (No. 3638), s8 - Architects Act 1939 (No. 4659), s6.

In the will of SPEARS, deceasedVR 430

ADAM, J·3 Apr 1959·3p·

Administration and probate - Will - Incorporation for probate of document, a contract of sale, referred to in will.

Re RMI, an InfantVR 475

HUDSON, J·25 May 1956·4p·

Adoption of children - Infants - Domicil - Jurisdiction of Supreme Court to make adoption order in respect of child not domiciled within jurisdiction - Adoption of Children Act 1928 (No. 3605) - Adoption of Children Act 1958 (No. 6192).

Re HINKSON, deceased; THE FARMERS AND CITIZENS TRUSTEES' AND EXECUTORS CO LTD v HINKSONVR 686

SMITH, J·18 Dec 1958·5p·

Administration and probate - Will - Construction - Substitutional gift "to his heirs" - Intestate succession - Whether heirs take as joint tenants - Administration and Probate Act 1928 (No. 3632), s50 - Administration and Probate Act 1958 (No. 6191), s56.

In the Will and Estate of HENLEY, deceasedVR 703

HUDSON, J·27 Nov 1958·8p·

Administration and probate - Option in partnership deed whereby deceased partner's interest purchased by surviving partner - Share in goodwill not shown as part of estate for duty purposes - Administration and Probate (Estates) Act 1951 (No. 5590), s4(1), s8(1) - Administration and Probate (Estates) Act 1955 (No. 5895), s6.

Re HOKINVR 711

O'BRYAN, J·24 Jun 1959·6p·

Administration and probate - Testator's family maintenance - Application by adult son - Adequate provision - PtV, Administration and Probate Act 1928 (No. 3632), s139 - PtIV, Administration and Probate Act 1958 (No. 6191), s91.

In the Estate of MURPHY, deceasedVR 717

HERRING, CJ·26 Oct 1956·3p·

Administration probate - Administrator ad litem appointed in relation to actions against deceased estate - Application to dispense with administration bond - Supreme Court Act 1928 (No. 3783), s17 - Supreme Court Act 1958 (No. 6387), s17 - Administration and Probate Act 1928 (No. 3632), s51 - Administration and Probate Act 1958 (No. 6191), s57.

In the WILL OF FULLER, deceasedVR 14

ADAM, J·6 Aug 1959·2p·

Administration and probate - Application for grant of probate - Caveat - Lodged after order signed by Registrar and sealed with seal of court before issue - Administration and Probate Act 1958 (No. 6191), s12.

In the Will of LYNDONVR 112

PAPE, J·21 Aug 1958·5p·

Administration and probate - Renunciation of probate by executor - Deed of renunciation - Intermeddling by executor in the estate - Infant beneficiaries - Beneficiaries - Creditors.

ACHILLEOS v HOUSING COMMISSIONVR 164

DEAN, J·26 Nov 1959·6p·

Appeal - Housing Commission - Direction to demolish house - Appeal to petty sessions - Decision to be "final and conclusive" - No appeal by way of order to review to Supreme Court - Housing Act 1958 (No. 6275), s56(6)(b) - Justices Act 1958 (No. 6282), s155.

In the Will and Estate of COOKES, deceasedVR 219

O'BRYAN, J·1 Jul 1959·11p·

Administration and probate - Inclusion of property in estate for purposes of duty - Non-testamentary disposition of personal property situated outside Victoria - "Property" - Taxing powers in statutes - Administration and Probate Act 1958 (No. 6191), s104(1)(d)-s104(1).

FANKHAUSER v MARK DYKES PTY LTDVR 376

LOWE , SHOLL and MONAHAN , JJ·29 May 1959·6p·

Appeal - Bailment - Contract for cool storage of peas - Damages for deterioration in peas - Negligence - Onus of proof - Comparison with onus in res ipsa loquitur cases - Onus of proof of negligence in contracts for work and labour collateral to bailments.

R v BVR 407

SHOLL J·26 Feb 1960·10p·

Adoption - Consent of mother not signed 'in duplicate' - Copy of consent not delivered to mother - Offer to mother to pay hospital account if consent signed - Reality of consent - Revocation of consent - Discretion of court on application for adoption - Adoption of Children Act 1958 (No. 6192), s3, s4, s5, s6 and s12 - Adoption of Children Rules 1957, r9, r10, r11 and r27.

WONDER HEAT PTY LTD v BISHOPVR 489

PAPE, J·25 Feb 1960·8p·

Action - Felony - Loss occasioned by felonious act of servant - Prosecution for felony pending - Stay of action for recovery of money allegedly feloniously obtained - Judgment summons adjourned - Rules of the Supreme Court, Order XIV.

BUILDING AND ENGINEERING CONSTRUCTIONS (AUST) LTD v PROPERTY SECURITIES No 1 PTY LTDVR 673

PAPE, J·29 Apr 1960·11p·

Arbitration - Summons for final judgment - Application for adjournment by defendant to give notice requiring submission to arbitration - Summons by defendant to stay proceedings pending submission to arbitration - Arbitration Act 1958 (No. 6200), s5 - Defendant entitled to ask for arbitration where he repudiates contract before action brought - Printed form of contract - Typewritten insertions - Contract - Construction.

Re X, an INFANTVR 733

DEAN, J·22 Sept 1960·5p·

Adoption of children - Infants - Domicil - Jurisdiction of Victorian courts to make adoption orders when applicants not domiciled within jurisdiction - Adoption of Children Act 1958 (No. 6192), s4.

RE SS, AN INFANTVR 3

HERRING, CJ·16 Sept 1960·6p·

Adoption of children - Child already adopted - Second adoption order sought - Notwithstanding adopter's refusal of consent - Extent of court's power to dispense with consent - Adoption of Children Act 1958 (No. 6192), s5(3).

Re SMITH AND ATHERTON'S ARBITRATIONVR 9

GAVAN DUFFY, J·23 Aug 1960·3p·

Arbitration - Reference by consent of parties out of court - Award - Application to set aside award - Whether time limit therefor - Jurisdiction to extend time to apply - Circumstances in which extension of time granted - Rules of the Supreme Court, O.LIX, r2.

BROWN v LEE MOORE v FIDELITY TRUSTEE COMPANY LIMITEDVR 147

O'BRYAN J·30 Nov 1960·10p·

Administration and probate - Survival of actions in tort - Proceedings against estate of deceased person - To be taken within six months of grant of probate - "Took out representation" - Administration and Probate Act 1958 (No. 6191), s5, s12, s29(3).

COFFEY v BENNETTVR 264

SHOLL, J·5 Oct 1960·7p·

Administration and probate - Testator's family maintenance - Extension of time for making application - Bankruptcy of applicant - Financial stringency - Applicant's right to apply does not vest in official receiver - Administration and Probate Act 1958 (No. 6191), PtIV, s99.

Re RIORDAN, DECEASEDVR 271

SHOLL, J·28 Nov 1960·14p·

Administration and probate - Will not forthcoming at death - Application to prove copy - Presumption of destruction animo revocandi - Presumption of law - Rebuttal - Dependent relative revocation.

BROWN v HOLTVR 435

PAPE, J·25 Oct 1960·9p·

Administration and probate - Testator's family maintenance - Application for extension of time - Oversight by solicitor - "Final distribution" of estate - Distribution of land under Transfer of Land Act - Major portion of estate distributed - Administration and Probate Act 1958 (No. 6191), s99.

TRETHOWAN v CAPRONVR 460

ADAM, J·13 Feb 1961·7p·

Animals - Dog - Complainant bitten - Whether trespasser - Liability of owner - Dog Act 1958 (No. 6236), s26.

Re BREENVR 522

SHOLL, J·16 Dec 1959·5p·

Administration - Application for probate - Doubts as to due execution of will - Application for administration by sole next of kin - Consent of executor.

Re TVR 527

SHOLL, J·3 Dec 1959·1p·

Adoption - Revocation of adoption order - Adoptee now an adult - To enable marriage to daughter of adopting parents - Adoption of Children Act 1958 (No. 6192), s14(1).

MITCHELL v WACHTERVR 537

GAVAN DUFFY , SHOLL and ADAM , JJ·5 May 1961·7p·

Appeal - New trial - Discretion of trial judge to order new trial - Appeal from trial judge's discretion - Verdict of jury against the weight of evidence - New trial ordered without jury - County Court Act 1958 (No. 6230), s67, s73(3).

Re WHELAN, deceasedVR 706

SHOLL, J·30 Mar 1961·15p·

Administration and probate - Will - General and specific legacies - Shares held at date of will later subject of take-over transaction - Effect of bequests - Meaning of words "or any successor thereto" - Inserting in will words evidently omitted by oversight - Executors' commission - Method of calculation where actual value of estate less than value passed for probate.

RESERVOIR HOTEL PTY LTD v E S CLEMENTSON (VICTORIA) PTY LTDVR 721

ADAM, J·23 May 1961·8p·

Arbitration - Building contract - Arbitration clause - Scott v Avery form - Dispute to be submitted to arbitration - Meaning of "dispute" - Judgment in default of defence - Setting aside judgment - Right to stay of action pending submission of dispute to arbitration as ground for setting aside judgment - Arbitration Act 1958 (No. 6200), s5.

MORTON v HAMPSONVR 364

HERRING CJ, SHOLL and LITTLE , JJ·28 Feb 1962·8p·

Appeal - County court - Notice to be given within 14 days - Calculation of 14 days - Notice out of time - County court judge no power to extend time - "Within" - County Court Act 1958 (No. 6230), s74(2)(a).

HOLE v INSURANCE COMMISSIONERVR 394

LOWE , SMITH and MONAHAN , JJ·24 Aug 1961·2p·

Appeal - Payment of judgment debt prior to appeal on understanding that it will not be refunded if appeal succeeds - No monetary contest between the parties.

Re BRUSH, deceased Re BAIRD, deceased LE GRAND v BRUSHVR 596

ADAM, J·20 Mar 1962·6p·

Administration and probate - Common disaster - Uncertainty as to order of deaths - Presumption younger survived elder - Property Law Act 1958 (No. 6344), s184.

In the Estate of DUNN, deceasedVR 165

HERRING, CJ·24 May 1962·3p·

Administration and probate - Administration completed - Appointment of new administrator - Trustee - Time when administrator becomes a trustee - Substitution of new trustee - Administration and Probate Act 1958 (No. 6191), s34(1) - Trustee Act 1958 (No. 6401), s48(1).

OGILVIE v LOWEVR 225

SHOLL, J·28 Mar 1963·4p·

Aborigine - Statute - Public policy - "Wife of an aborigine" - Whether feminine expression includes masculine - "Relative" - Aborigines Act 1958 (No. 6190), s7(1), s11 - Aborigines Regulations 1957, reg11, reg18 - Acts Interpretation Act 1958 (No. 6189), s17.

Re McLENNAN, deceasedVR 270

SHOLL, J·7 Mar 1961·6p·

Administration and probate - Will - "The remainder of my money" - "All my personal effects".

Re EGAN, deceasedVR 318

HERRING, CJ·5 Dec 1961·3p·

Administration and probate - Wills - Caveat - Grant of probate - Caveat lodged after grant - Caveat presented but not lodged - Caveat not accepted at probate office - Revocation of grant of probate - Administration and Probate Act 1958 (No. 6191), s12, s58.

IN the WILL OF STEWARD, deceasedVR 179

O'BRYAN , SMITH and PAPE , JJ·23 Oct 1963·14p·

Administration and probate - Will - Practice - Executor seeking probate of earlier will - Later will challenged - Validity of latest will should be determined first - Onus on caveator to prove revocation of will propounded - Administration and Probate Act 1958 (No.6191), s15 - Partnership Act 1958 (No. 6330), s37.

Re ROWE, deceasedVR 201

SHOLL, J·24 Feb 1964·3p·

Administration and probate - Administration ad litem - Previous limited grant for one purpose - Subsequent limited grant may be made for other purpose - Action commenced more than six months after grant is matter of defence - Administration and Probate Act 1958 (No. 6191), s29.

Re DE FEU, deceasedVR 420

SHOLL, J·24 Apr 1964·9p·

Administration and probate - Testator's family maintenance - Remarriage of testator's widow between testator's death and application - No breach of moral duty - Exercise of court's discretion - Plaintiff not showing present need - "Widow" - "Former wife" - Administration and Probate Act 1958 (No. 6191), s91 (as substituted by s5 of the Administration and Probate (Family Provision) Act 1962 (No. 6920)).

Re POLLOCK, deceasedVR 554

GILLARD, J·26 Mar 1964·9p·

Administration and probate - Whether pecuniary legacies a mere charge upon real estate or primarily payable from proceeds of real estate - Gift of residue to trustees - Trustee beneficiaries hold for next of kin - Legatees not paid within 15 years - Assets still held by trustees after 15 years - Action to recover legacy from trustee not statute barred - Claim for interest barred beyond six years - Limitation of Actions Act 1955 (No. 5914), s5(7), s20, s21, s22 (Limitation of Actions Act 1958 (No. 6295), s5(7), s20, s21, s22) - Trustees Act 1928 (No. 3792) s67 (Trustee Act 1953 (No. 5770), s79) - Property Law Act 1928 (No. 3754), s304.

MARONEY v CHRISTIEVR 806

HERRING CJ SHOLL and ADAM , JJ·18 Mar 1963·2p·

Appeal - Use to be made of actuarial tables showing present values of future weekly payments - Tables may be handed to jury when future loss of earnings involved in appropriate cases - Limitations upon use of such tables and proper directions to be given to jury discussed - No ground of misdirection in notice of appeal in regard to use made of table by trial judge.

RE BOWEN, DECEASEDVR 113

SMITH, J·18 Dec 1964·5p·

Administration and probate - Will - Bequest of "my life policy" - Testator holder of four similar life policies at date of death - Testator's mistake - Real intentions "my life insurance cover" or equivalent expression - Court's discretion to make substantial alteration in will if intention clear.

RE HORNER, DECEASEDVR 177

HUDSON, J·15 Aug 1963·5p·

Administration and probate - Two documents in form of wills executed on same day - One will later destroyed at deceased's request - Animus testandi - Animus testandi at time of execution - Wills Act 1958 (No. 6416), s7, s18(d).

HATHERLEY and HORSFALL PTY LTD v EASTERN STAR MERCANTILE PTY LTDVR 182

SHOLL, J·19 Aug 1964·5p·

Action - Fraudulent omission by defendant to account for money collected on behalf of plaintiff - Stay of civil action based on felony - Alleged felony by employee of defendant - Crimes Act 1958 (No. 6231), s148, s149.

ROBERTS v BOARD OF LAND AND WORKSVR 265

HUDSON, J·13 May 1963·10p·

Acquisition of land - Land resumed "for the purposes of the Education Act" - Certificate headed "Land for School Site" - Sufficiency of notice - Possession taken before compensation paid - Notice of resumption not served upon mortgagee - Board of Land and Works entitled to enter land before compensation paid - Sealing of plan of subdivision not necessary before acquisition - Land Act 1958 (No. 6284), s331, s332, s333 - Lands Compensation Act 1958 (No. 6286), s49, s50 - Local Government Act 1958 (No. 6299), s569.

ALBECK v ABY - CECIL MANUFACTURING CO PTY LTDVR 342

O'BRYAN, DEAN AND SMITH, JJ·24 Nov 1964·19p·

Arbitration - Dispute as to profit of business - submission to arbitration - Action to enforce award for umpire - Whether plaintiff entitled under original contract or award - Agreement not to prosecute any action based on award - Public policy - Attempt to oust jurisdiction of court - Re-appointment of umpire - Validity of appointment of umpire - Arbitration Act 1958 (No. 6200).

RE ALEKSEJEVS, DECEASEDVR 188

GILLARD, J·30 Sept 1965·3p·

Administration and probate - Intestate estate - Securities - Joint owners may compose one - The test - Administration and Probate Act 1958 (No. 6191), s57(1) - Rules of the Supreme Court, Chapter III, r24.

CHATZIPANTELIS v GRIMWADE CASTINGS PTY LTDVR 242

WINNEKE CJ, BARRY and GOWANS , JJ·21 Jun 1965·7p·

Appeal - Misdirection - Negligence - Employee's common law action for damages - Workers compensation as alternative remedy - Irrelevant to mention alternative remedy.

Re ZAPPULLO, deceasedVR 390

ADAM, J·25 Mar 1966·6p·

Administration and probate - Deaths of two brothers about the same time - Evidence upon the probabilities as to which person died first - Whether it was "uncertain" as to which of them survived so that by statute deaths presumed in order of seniority - Administration and Probate Act 1958 (No. 6191), s12(2)(b) - Property Law Act 1958 (No. 6344), s184.

AMOS v AMOSVR 442

LUSH, J·9 May 1966·5p·

Administration and probate - Testator's family maintenance - Application to extend time within which to apply for further provision out of estate - Lapse of 13 months after grant - Whether delay excusable - Negotiations extending beyond limitation period - Administration and Probate Act 1958 (No. 6191), s99.

GWJ BLACKMAN and CO SA v OLIVER DAVEY GLASS CO PTY LTD and NOEL SEARLE PTY LTDVR 570

WINNEKE, CJ, ADAM AND GILLARD, JJ·10 Jun 1966·13p·

Arbitration - Stay of proceedings - Third-party proceedings - Contract - Belgian law applicable to dispute between fourth and fifth parties - Court more suitable - Discretion to stay proceedings - Arbitration Act 1958 (No. 6200), s5.

Re BUCKLAND, deceased (No 2)VR 3

GILLARD, J·18 May 1966·4p·

Administration and probate - Testator's family maintenance - Application by adult son - Testator's estate very large - "Adequate provision for the proper maintenance and support" - Whether statements made by the testator during his lifetime concerning his relationship with the applicant are admissible in evidence - Administration and Probate Act 1958 (No. 6191), s91, s95, as amended by Administration and Probate (Family Provision) Act 1962 (No. 6920).

WENN v HOWARDVR 91

MCINERNEY, J·29 Mar 1966·5p·

Administration and probate - Testator's family maintenance - Character or conduct of applicant disentitling - Failure to practise or adhere to a particular religion - Administration and Probate Act 1958 (No. 6191), s96(1).

RE HARDIMAN, deceasedVR 577

MCINERNEY, J·29 Jun 1966·6p·

Administration and probate - Practice - Allegation of lack of testamentary capacity - Propounder's right to split case - No splitting of case on issue where propounder has led some evidence - Rebutting case commenced - May not split rebutting case - Discretion of court to allow splitting of case.

PAUL v WATTSVR 687

WINNEKE CJ, LITTLE and NEWTON , JJ·5 May 1967·6p·

Appeal - Verdict regularly obtained - Fresh evidence available - Availability and character of evidence - Reason for non-production at trial - Likelihood that opposite result would have been obtained - Lack of diligence in procuring evidence for trial.

CUMMINGS v MURPHYVR 865

BARRY , SMITH and GOWAN , JJ·21 Aug 1967·6p·

Appeal - New trial - Jury's assessment of damages - Inadequacy - Discretion of Full Court to order a new trial - Limited to damages - Imposing conditions - Apportionment - Wrongs Act 1958 (No. 6420), s26.

BURNS v GRIGGVR 871

BARRY, LITTLE and GOWANS, JJ·25 Aug 1967·4p·

Appeal - Miscarriage of justice - Evidence - Tender of regulation - Regulation amended and partially repealed at relevant time - Unamended regulation tendered - New trial - Discretion of Full Court - Amendment - Notice of appeal - Additional ground of appeal - Leave to amend refused where additional ground would fail.

Re ALBERT, deceasedVR 875

LUSH, J·6 Sept 1967·6p·

Administration and probate - Intestacy - Disappearance of next of kin more than seven years before intestate - Commorientes - Distribution of estate - Survivorship - Presumption of death - Whether s184 of the Property Law Act 1958 applies - Property Law Act 1958 (No. 6344), s184.

Re ADAMS, deceasedVR 881

LUSH, J·29 Aug 1967·9p·

Administration and probate - Testator's family maintenance - Application by adult son, divorced wife and widow - "Adequate provision for the proper maintenance and support" - Principles to be applied to a claim by an adult son - Prima facie able to support himself - Relationship of father and son at date of death - Father's duty at that time - Son had commenced university course with father's help and support - Provision for divorced wife - Provision for payment out of estate of duty on notional estate - Administration and Probate Act 1958 (No. 6191), s91, s95, as amended by Administration and Probate (Family Provision) Act 1962 (No. 6920).

Re WALKER, deceasedVR 890

LUSH, J·5 Sept 1967·4p·

Administration and probate - Testator's family maintenance - Application to extend time within which to apply for further provision out of estate - Lapse of two and a half years since applicant obtained his majority and before application for extension - Principles to be considered - Merits of proposed action to be considered.

ASHLEY v SCHONBERGERVR 22

WINNEKE CJ, LITTLE and GOWANS , JJ·24 Apr 1967·6p·

Appeal - Statutory negligence - Intersection - Obligation to "give way" to approaching vehicle - Failure to give way - Negligence - Road traffic regulation - Subjective element - Misdirection of law - New trial ordered where the jury may have been influenced by the misdirection - Road Traffic Regulations 1962, reg601, reg603(2)(a).

AMERICAN REAL ESTATE PTY LTD v ABBATANGELOVR 362

GOWANS, J·17 Feb 1965·2p·

Arbitration - Action arising from a building dispute - Parties willing to have matters in dispute referred for report by an architect - Appropriate form of order referring matter for report and giving directions - Arbitration Act 1958 (No. 6200), s14, s16.

Re ELMORE, deceasedVR 390

GOWANS, J·15 Mar 1968·6p·

Administration and probate - Purposive trust for the publication of a book - No indication of character or content of the work to be published - Purposive trust for the preparation and publication of the testator's own literary works - Trust not for the advancement of education or the public benefit.

Re WATKINS, deceased WATKINS v COMMISSIONER OF PROBATE DUTIESVR 486

PAPE, J·19 Feb 1968·18p·

Administration and probate - Estate of a deceased person - "Gift inter vivos" - "Settlement" - Disposition to "taking effect upon or after the death" of settlor - "Power which may affect the enjoyment" of gift - Administration and Probate Act 1958 (No. 6191), s100, s104 - Probate Duty Act 1962 (No. 6890), s19.

CARRACHER v COLONIAL MUTUAL LIFE INSURANCE SOCIETY LTDVR 605

GILLARD, J·26 Apr 1968·8p·

Arbitration - Stay of proceedings - Insurance contract - Operation of Commonwealth and State Acts - Insurance - Life insurance - Accident insurance - Life policy - Additional policy with further benefit upon accidental death - Continuous disability insurance contract - Arbitration clause - Life Insurance Act 1945-1961 (Com.) - Arbitration Act 1958 (No. 6200), s5 - Instruments Act 1958 (No. 6279), s28, s29.

RE WINGRAVE , deceasedVR 120

LUSH, J·8 May 1968·8p·

Administration and probate - Presumption of legitimacy - Presumption of paternity - Presumption of parenthood - No presumption of maternity - Maternity a question of fact.

RE GIGGINS, DECEASEDVR 208

GOWANS, J·21 Nov 1968·6p·

Administration and probate - Show cause why will should not be proved - Inter- meddling in estate - Application by executors for administration with the will annexed - Renunciation by executor of probate - Administration and Probate Act 1958 (No. 6191), s15, s16.

RE PEATLING, DECEASEDVR 214

MCINERNEY, J·29 Feb 1968·16p·

Administration and probate - Intestacy - Validity of deceased's marriage - Wife's status at time of marriage - Disappearance of first husband - Whether first husband should be presumed dead - Presumption of continuance - Presumption of innocence of crime of bigamy - Presumption of death of first husband - Presumption of validity of marriage - Children of the deceased born before marriage - Registration of Births, Deaths and Marriages Act 1958 (No. 6356), s30, s31.

RE CUTTS, DECEASEDVR 254

MCINERNEY, J·22 Jul 1968·5p·

Administration and probate - Testator's family maintenance - Application by divorced wife - "Adequate provision for proper maintenance and support" - Provision for divorced wife - Considerations relevant - Administration and Probate Act 1958 (No. 6191), s91, as amended by Administration and Probate (Family Provision) Act 1962 (No. 6920).

RE COLLINS, deceasedVR 499

GOWANS, J·3 Dec 1968·2p·

Administration and probate - Application for probate in solemn form of will and the contents of an envelope referred to therein - Whether application could be made by motion - Administration and Probate Act 1958 (No. 6191), s12(2)(b) - Administration and Probate Rules, r2, r17, r18, r41.

RE HEMBURROWVR 764

GILLARD, J·30 May 1969·3p·

Administration and probate - Omission of phrase from will - Jurisdiction to grant probate of will textually different from that signed by testatrix.

KEOGH v HOUSING COMMISSION OF VICTORIAVR 809

BARBER, J·2 May 1969·6p·

Acquisition of land - Claim for compensation against Housing Commission of Victoria - Claim by lessee for disturbance - Whether claimant "person displaced" - Whether inconsistency between provisions of the Lands Compensation Act 1958 and Housing Act 1958, s102 - Whether power to make ex gratia payments by Commission precludes claim for compensation pursuant to Lands Compensation Act - Valuation of Land Act 1960 (No. 6653) - Housing Act 1958 (No.6275), s99-s102 - Lands Compensation Act 1958 (No. 6286), s3, s59-s61.

BLACKALL v TROTTER (No 2)VR 946

WINNEKE CJ, LITTLE and MENHENNITT , JJ·8 Jul 1969·3p·

Appeal costs fund - Practice - Application to review a taxation of costs by the Taxing Master - Matter referred to the Full Court - Decision of Taxing Master set aside - Application by unsuccessful respondent for an indemnity certificate - Whether application could be granted - Whether such review constitutes an "appeal" from the decision of a "court" within the meaning of the Appeal Costs Fund Act 1964 - Rules of the Supreme Court, O.65, r27(39), r27(40), r27(41) Supreme Court Act 1958 (No. 6387) s7(4) - Appeal Costs Fund Act 1964 (No. 7117), s2, s13, s13(1).

R v CAMPBELL, GODFREY and MORANVR 120

WINNEKE CJ, GOWANS and NEWTON , JJ·6 May 1969·11p·

Criminal law - Shopbreaking - Tape recording of interview played to jury - Prejudicial material as to one accused - No objection by that accused - Sufficient evidence against that accused - Appeal - Crimes Act 1958 (No.6231), s568(1).

Appeal - Principles - Whether substantial irregularity in trial - Whether excessive interference by trial judge.

Sentence - Whether excessive - Minimum term to be disregarded when deciding.

PROSSER v TWISSVR 225

LUSH, J·8 Sept 1969·12p·

Administration and probate - Testator's family maintenance - Claim by adult daughter with adult children - Will making no provision for applicant but estate divided between applicant's children - Applicant the only child of testatrix - Applicant only herself to support and estranged from two of her three children - Provision made for applicant both by her father during his lifetime and under his will - Applicant divorced and living with another man for some time prior to the death of the testatrix - Document left by testatrix giving reasons for making no provision in will - Whether testatrix failed in her duty to the applicant - Administration and Probate Act 1958 (No. 6191), PtIV.

DOWNING v FEDERAL COMMISSIONER OF TAXATIONVR 795

ANDERSON, J·30 Apr 1970·7p·

Administration and probate - Estate of deceased - Estate duty - Gift in will for "the amelioration of the condition of the dependants...of Her Majesty's forces or the forces of the Commonwealth" - Whether charitable gift - Statutory exemption - For the relief of persons in necessitous circumstances in Australia - Whether gift falls within exemption - Whether gift confined to persons within Australia - Whether dutiable - Property Law Act 1958 (No. 6344), s131 - Estate Duty Assessment Act 1914-1966 (Com.), s8(5)(c)(ii).

WADSLEY v CITY MUTUAL LIFE ASSURANCE SOCIETY LTDVR 140

MENHENNITT, J·31 Jul 1970·7p·

Life assurance - Policy - Interpretation - Provision for reference to arbitration in the event of any dispute between company and "the assured" in relation to annexure - Meaning of "assured" considered - Policy to wife on the life of her husband - Policy referring to wife as the "member" and husband as the "assured" - Whether ordinary meaning of the word "assured" displaced - Whether arbitration clause applicable to claimant wife.

Arbitration - Stay of proceedings - Insurance contract - Life insurance - Annexure to policy providing for additional death by accident benefit - Scott v Avery arbitration clause contained in annexure - Whether arbitration condition excluded by s28 of the Instruments Act 1958 - Operation of Commonwealth and State Acts - Continuous disability insurance contract - Whether contract of more than one year's duration - Life Insurance Act 1945-1965 (Com.), s4, s8(1) - Instruments Act 1958 (No. 6279), s28, s29(3).

GIANFRIDDO v GARRA CONSTRUCTIONS PTY LTDVR 289

SMITH, J·25 Sept 1970·4p·

Arbitration - Error on face of award - Application to set aside award - Reference to contract in award - Incorporation in award - Principles applicable.

RE AYLMORE, DECEASEDVR 375

LUSH, J·4 Sept 1970·3p·

Administration and probate - Jurisdiction - Private international law - Motor car collision in Victoria with non-resident - Death of non-resident subsequently - Action in Victoria against foreign personal representative struck out - Application in Victoria by plaintiff for grant of letters of administration ad litem - Probate jurisdiction - Jurisdiction of Court to grant letters of administration ad litem - Whether any assets of deceased in Victoria - Comprehensive motor vehicle insurance policy - Right to indemnity thereunder - Local situation of chose in action is where obligor resides - Administration and Probate Act 1958 (No. 6191), s6, s29(3), s67 - Supreme Court Act 1958 (No. 6387), s17, s18 - Service and Execution of Process Act 1901-1963 (Com.), s11.

DE BEEVER v KOTSIRILOSVR 401

WINNEKE, CJ, SMITH AND GOWANS, JJ·17 Oct 1969·11p·

Damages - Personal injuries - Future economic loss - Jury's assessment - Appeal - Whether verdict excessive.

Appeal - Practice - Appeal as to negligence and damages - Appeal successful as to damages - Whether new trial on all issues - Power to order new trial - Power to impose conditions - Guidance to jury on damages.

RE MCPHAIL, DECEASEDVR 534

GOWANS J·30 Sept 1970·15p·

Administration and probate - Testator's family maintenance - Application to extend time for making application - Widow ignorant of rights for seven years after death of intestate husband - Whether a "final distribution of the estate" so that no provision could be made "out of the estate" - Whether assets held by the personal representative in character of trustee for the beneficiaries - Settlement purchase lease of farm under the Soldier Settlement Act held by administrator - Administrator not holding lease solely as trustee - No assent to vesting of beneficial interest in lease in next of kin - Administrator still performing its duties - Administration not completed - Soldier Settlement Act 1958 (No. 6373), s3, s43, s51, s56, s59, s60, s61, s64, s65, s66(1), s67A, s74, s76, s77 - Administration and Probate Act 1958 (No. 6191), s38, s41, s44, s50, s91, s99 - Property Law Act (No. 6344), s35.

RE ATKINSON DECEASEDVR 612

GILLARD, J·14 Dec 1970·8p·

Administration and probate - Will - Testator intending to benefit son and others from farm owned by him and wife as joint tenants - Legal estate in property vesting in surviving spouse - Whether testator still retained beneficial interest in property - Allegation by son that farm constituted partnership property - Evidence of partnership not conclusive - Duty of personal representative to take action against widow - Whether trustee company bound to use its own funds - Duty of personal representative to seek Court's advice - In the absence of indemnity from estate or personally trustee not bound to take proceedings - Equity of son to seek remedy on behalf of estate - Son able to seek a declaratory judgment against mother - Rules of the Supreme Court, O.25, r5.

RE HANCOCK, DECEASEDVR 620

MCINERNEY, J·30 Jul 1968·4p·

Administration and probate - Will - Execution - Whether attesting witnesses to will required to sign in the presence of each other - Whether testatrix should acknowledge her signature in the presence of both witnesses, both being present at the same time - Wills Act 1958 (No. 6416), s7 - Administration and Probate Act 1958 (No. 6191), s12(2)(b).

PUJICK v SAVIC, COX AND CUDGEWA DAIRY CO LTDVR 632

WINNEKE, CJ STARKE and ANDERSON , JJ·11 Oct 1970·5p·

Appeal - Verdict of jury - Finding of no negligence - Verdict against party bearing onus of proof - Verdict not against weight of evidence - Principles applicable.

SYMONS v YOUNGVR 611

WINNEKE, CJ SMITH and LUSH, JJ·25 Feb 1972·9p·

Appeal - New trial - Discovery of fresh evidence - Fresh evidence tending to prove fraud or subordination of witness - Evidence that testimony at trial of witness for plaintiff was perjury - Relevance of complicity in fraud of party successful at trial - Defendant and advisers reasonably diligent at trial - Evidence apparently credible - Likelihood that jury would have been influenced to return opposite result - Appeal allowed.

RE FENWICK, DECEASEDVR 646

MENHENNITT, J·11 Apr 1972·9p·

Administration and probate - Words included in will by mistake or inadvertence - Grant of probate omitting such words - Presumption upon due execution of will that testatrix knew and approved contents - Presumption rebuttable - Onus of rebuttal - Onus on those seeking probate with words omitted to show on balance of probabilities that words included by mistake - Onus then on those seeking probate with words retained to show will read by or to testatrix - Where will read by or to testatrix presumption only rebutted by clearest evidence.

AJZNER v CARTONLUX PTY LTDVR 919

PAPE, J·5 Jul 1972·16p·

Landlord and tenant - Lease for fixed term - Option for extension of term - Rent for extended period to be determined by arbitrator in default of agreement - Arbitrator to be appointed by secretary of Real Estate and Stock Institute - Submission by parties requesting appointment of valuer to determine rent - Valuer appointed and determines rent - Parties bound by determination of valuer.

Arbitration - Provision in lease for appointment of arbitrator to determine rent for extended term - Whether reference by parties to arbitrator or valuer - Whether to conduct judicial inquiry or determine according to his skill and experience - Whether necessary to conduct hearing and call evidence - Open reference - Arbitration Act 1958 (No.6200).

LA TROBE UNIVERSITY v ROBINSON AND POLAVR 682

SMITH, ACJ ADAM and NEWTON, JJ·20 Nov 1972·11p·

Contempt of court - Power of Court to make ex parte order for committal or attachment - Power of judge sitting in chambers to grant leave to issue writ of attachment - Motion for discharge of order giving leave to issue writ of attachment refused - Appeal to Full Court - Jurisdiction to set aside ex parte order considered - Order not a nullity and no right to have it set aside as of course - No power in single judge to exercise appellate jurisdiction in respect of another judge - Whether imprisonment under writ a "cruel and unusual punishment" and contrary to the Bill of Rights - Right to proceed by civil action instead of criminal information - Summary Offences Act 1966 (No. 7405), s9(1)(d) - Supreme Court Act 1958 (No. 6387), s43 - Rules of the Supreme Court, O.44, r2; O.52 r3, r4; O.55, r1(17); O.70.

Appeal - Contempt of court - Leave to issue writ of attachment - Refusal by another judge to set aside writ of attachment - Appeal to Full Court against refusal - Whether appeal lay because contempt was of criminal nature - Contempt committed in course of civil action - Appeal open to Full Court in "civil or mixed matters" - Supreme Court Act 1958 (No. 6387), s42.

RE RUTLEDGE DECEASEDVR 733

SMITH, PAPE AND ANDERSON, JJ·30 Apr 1973·16p·

Wills - Construction - Contingent bequest to children of adopted daughter - Children adopted by such daughter - Children adopted after making of testamentary disposition - Whether adopted children take as "children" under will - Adopted children not entitled under adoption legislation operating at date of death of testator - Whether subsequent amending legislation enables adopted children to take under will - Effect of amending legislation on accrued rights - Contingent as well as vested interests constituting accrued rights - Adoption of Children (Amendment) Act 1953 (No. 5666) - Adoption of Children Act 1958 (No. 6192), s8(1), s(6) - Adoption of Children (Property) Act 1962 (No. 6971).

Adoption of children - Will - Children adopted after making of testamentary disposition - Whether adopted children take as "children" under will - Adopted children not entitled under adoption legislation operating at date of death of testator - Whether subsequent amending legislation enables adopted children to take under will - Effect of amending legislation on accrued rights - Adoption of Children (Amendment) Act 1953 (No. 5666) - Adoption of Children Act 1958 (No. 6192), s8(1), s(6) - Adoption of Children (Property) Act 1962 (No. 6971).

Statutory construction - Amending Act - Presumption against altering accrued rights - Contingent as well as vested interests constituting accrued rights - Presumption not displaced - Adoption of Children Act 1958 (No. 6192) - Adoption of Children (Property) Act 1962 (No. 6971).

PRIDHAM HOLDINGS LIMITED v SMORGON CONSOLIDATED INDUSTRIES PTY LTDVR 231

MENHENNITT, J·20 Jun 1973·11p·

Arbitration - Ruling by arbitrator on question of law - Whether arbitrator to be directed to state special case for opinion of Court - Relevant considerations - Irreversible and prejudicial consequences to party applying if arbitrator follows proposed course and ruling erroneous - Whether party applying has exhausted courses open to prevent arbitrator following proposed course - Whether arbitrator can be so directed where question of law is whole reference - Arbitrator a lawyer of standing - Arbitration Act 1958 (No. 6200), s19.

R AND R v EVR 291

HARRIS, J·20 Nov 1973·11p·

Adoption of children - Application to dispense with consent of father - Application to County Court refused on ground that special circumstances made application more fit to be dealt with by Supreme Court - Application to Supreme Court - Whether existence of claim for access under Matrimonial Causes Act a bar to jurisdiction - Failure by father without reasonable cause to discharge the obligations of a parent - Other "special circumstances" making it proper to dispense with consent of father - Adoption of Children Act 1964 (No. 7147), s29(1) - Matrimonial Causes Act 1959-1966 (Com.), s8(2).

Matrimonial causes - Application after decree absolute by respondent for access to children - Application by petitioner for adoption order and for order dispensing with consent of respondent - Jurisdiction of Supreme Court in adoption application - Matrimonial Causes Act 1959-1966, s8(2).

LEWMARINE PTY LTD v THE SHIP KAPTAYANNIVR 465

PAPE, J·19 Dec 1973·10p·

Admiralty - Jurisdiction of Supreme Court in Admiralty - Equipping of ship - Supply of necessaries - Necessaries - Meaning of in admiralty law - Foreign ship - Ship under arrest at time of institution of cause - Colonial Courts of Admiralty Act 1890 (Imp.) - Admiralty Court Act 1840 s6 - Admiralty Court Act 1861, s4, s5 - Admiralty Rules 1916.

WC THOMAS and SONS PTY LTD v BUNGE (AUST) PTY LTDVR 615

STARKE, J·15 May 1974·5p·

Arbitration - Stay of proceedings - Third-party proceedings - Contract - Indian law applicable to dispute between defendant and third party - Discretion to stay proceedings - Victorian court more suitable - Arbitration Act 1958 (No. 6200), s5.

MARKS v PRESIDENT COUNCILLORS AND RATEPAYERS OF THE SHIRE OF SWAN HILLVR 896

NORRIS, J·31 Jul 1974·9p·

Administrative law - Exercise of discretion by public authority - Declaratory relief sought against public authority by private individual - Application to council for permission to desludge septic tank - Permission refused on ground of non-compliance with policy of council - Policy founded on considerations irrelevant to purpose for which discretion given to council - Septic Tank Regulations 1932.

RE S DECEASED; H v TVR 47

MENHENNITT, J·16 Dec 1970·11p·

Administration and probate - Testators family maintenance - Adopted child - Application for order that provision be made from estate of deceased for proper maintenance and support of married adopted daughter - Whether order may be made in favour of adopted child - Sole testamentary beneficiary an adopted son of deceased - Administration and Probate Act 1958 (No. 6191), s91 - Adoption of Children Act 1964 (No. 7147), s32(1).

RE G DECEASED G v DVR 58

MENHENNITT, J·28 May 1974·3p·

Administration and probate - Testators family maintenance - Application by illegitimate children of deceased - Whether such children "dependant on or supported by the deceased" - Dependency or support by provision of physical things - Administration and Probate Act 1958 (No. 6191), s91.

HAMMOND v WOLTVR 108

MENHENNITT, J·11 Oct 1974·12p·

Arbitration and awards - Application for stay of proceedings - Arbitration an inquiry of a judicial nature - Right of parties to be heard on arbitration - Whether right to call evidence an essential element of arbitration - Reliance by arbitrator on own expertise in reaching determination - Arbitration distinguished from assessment - Necessity for submission to be in existence at time of commencement of proceedings - Arbitration Act 1958 (No. 6200), s3, s5.

RE COHEN DECEASEDVR 187

GILLARD, J·11 Oct 1974·4p·

Administration and probate - Grant of administration ad colligenda bona - Application for such grant - Principles upon which such grant may be made - Protection of assets of estate where usual representation not obtainable promptly - Administration and Probate Act 1958 (No. 6191), s5, s6.

WC THOMAS and SONS PTY LTD v BUNCE (AUSTRALIA) PTY LTD; GENERAL PRODUCE COMPANY, THIRD PARTYVR 801

GILLARD, NEWTON and NORRIS, JJ·18 Apr 1975·8p·

Arbitration - Stay of proceedings - Contract - Third party proceedings - Indian law applicable in commercial dispute between plaintiff and defendant and between defendant and third party - Arbitration clause nominating Indian tribunal as arbitrator - Application for stay by third party - Relevant considerations - Arbitration Act 1958 (No. 6200) s5.

R v THE SMALL CLAIMS TRIBUNAL AND SYME EX PARTE BARWINER NOMINEES PTY LTDVR 831

GOWANS, J,·19 May 1975·12p·

Administrative law - Small Claims Tribunal - Certiorari - Declaration and injunction - Hearing of small claim - Order that "trader" refund purchase price of defective appliance to "consumer" - In determining claims principles of general law to be applied - Natural justice - Whether bias or failure to give a hearing - Tribunal not adverting to proper legal basis for allowing claim - Failure to make order conditional on return of goods - Whether want of jurisdiction rendering decision a nullity - Small Claims Tribunal Act 1973 (No.8486) s17, s18(2).

WALSH (REFEREE OF THE SMALL CLAIMS TRIBUNAL) v PALLADIUM CAR PARK PTY LTDVR 949

GOWANS, MENHENNITT and DUNN, JJ,·18 Aug 1975·12p·

Administrative law - Small Claims Tribunal - "Small claim" for damage to motor car whilst parked in respondent's car park - Claimant issued with ticket containing terms and conditions of parking - Whether claim within jurisdiction of tribunal - In determining a claim whole law of contract to be applied including terms and conditions of a contract - Meaning of "a contract for the provisions of services" - Whether comprises contract of bailment in the form of hire of custody - Claim for damages in tort - Arising out of contract for the Provision of services - Small Claims Tribunal Act 1973 (No. 8486), s2(1), s14, s17.

BOOTH v DILLON (No 1)VR 291

LUSH, J·8 Oct 1975·7p·

Administrative law - Ombudsman - Jurisdiction - Power "to investigate any administrative action in any Government Department" - "Administrative act" includes "any action relating to a matter of administration" - Complaint by prisoner in a gaol of assault on the prisoner by prison officer in presence of senior officials - Whether Ombudsman has jurisdiction to investigate complaint - Ombudsman Act 1973 (No. 8414) s2, s13, s14, s23, s27.

BERBETTE PTY LTD v HANSAVR 385

ANDERSON, J·14 Nov 1975·7p·

Arbitration - Costs - Right of successful party to costs - Arbitrator's discretion as to costs - Reasons must exist to justify departure from the general rule.

R v SMALL CLAIMS TRIBUNAL AND HOMEWOOD ; EX PARTE CAMERONVR 427

ANDERSON, J·24 Nov 1975·7p·

Administrative law - Small Claims Tribunal - Certiorari - Whether a denial of natural justice - Trader given notice of claim and attending at hearing to answer that claim - Tribunal hearing extending beyond the claim of which trader had notice - Claim amended at hearing without notice to trader - Party not notified of all issues and no opportunity to prepare case - Tribunal's order quashed - Small Claims Tribunals Act 1973 (No. 8486), s2, s9, s17, s22, s23, s28, s30, s31, s34.

BOOTH v DILLON (No 2)VR 434

DUNN, J·3 Feb 1976·7p·

Administrative law - Ombudsman - Jurisdiction to conduct investigation - Matter investigated must relate to administrative action not policy - Ombudsman Act 1973 (No.8414), s2, s13(1), s14(1), s14(3), s14(4), s14(5).

Practice and procedure - Unacceptable alteration to special case - Use to be made of such alteration - Rules of the Supreme Court O.78 r5.

BOOTH v DILLON (NO 3)VR 143

NELSON, J·4 Nov 1976·8p·

Administrative law - Ombudsman - Jurisdiction - Investigation of administrative action - Hearing and determination by governor of prison of charges against prisoner - Whether administrative action - Whether action by a court of law - Social Welfare Act 1970 (No. 8089), s131 - Ombudsman Act 1973 (No. 8414), s2, s13, s27.

GLENISTER v DILLON (NO 2)VR 151

NELSON, J·4 Nov 1976·3p·

Administrative law - Ombudsman - Jurisdiction - Investigation of administrative action - Public Solicitor - Representation of persons accused of crimes - Whether actions incidental to such representation are administrative actions - Such actions related to discharge of judicial function of government - Ombudsman Act 1973 (No. 8414), s2, s13, s27.

BRISBANE v CROSSVR 49

YOUNG, CJ MCINERNEY AND DUNN, JJ.·30 May 1977·18p·

Animals - Negligence - Highway - Collision between motorcyclist and steer on public road - Propensity of steer to stray - Occupier of land adjoining highway under no duty to fence or prevent cattle straying onto highway - Rule in Searle v Wallbank applicable in Victoria - Statutory provisions exposing owner of straying cattle to penalty - Breach of statutory provisions - Breach not conferring private right of action - Whether "special circumstances" imposing duty of care - Local Government Act 1958 (No.6299), 15th Sched. CL41 - Country Roads Act 1958(No.6229), s73(1), s73(3) - Summary Offences Act 1966(No.7405) s8(d).

GEO THOMPSON (AUST) PTY LTD v VITTADELLOVR 199

GILLARD, MENHENNITT AND MURRAY, JJ.·22 Aug 1977·28p·

Partnership - Implied authority - Bill of exchange addressed to firm - One partner accepted bill by signing her name - No signature of firm name or by other partner - Whether acceptance binding on other partner - No liability of other partner - Bills of Exchange Act 1909 (Com.), s92, s97.

Bills of Exchange - Bill accepted by one defendant - Assignment by drawer of its rights against the acceptor - Subsequent refusal by acceptor to pay - Relationship between drawer and acceptor - Bills of Exchange Act 1909 (Com.), s26, s52, s59,s62 and s64.

Assignment - Drawer of bill of exchange purporting to have assigned rights against the acceptor - Whether "debts" or "other choses of action" within meaning of s134 Property Law Act - Whether deed effective to assign the rights - Property Law Act 1958 (No. 6344), s134.

HUGHES v NATIONAL TRUSTEES EXECUTORS and AGENCY CO OF AUSTRALASIA LTDVR 257

MCINERNEY, J·17 Oct 1977·15p·

Administration and probate - Testator's family maintenance - Admissibility of deceased's statements as to relationship with applicant - Reasons of deceased for excluding adult son from will - Statements of deceased not to be used as evidence of truth of facts stated - Statements may be admitted to show testator's belief in facts so stated - Statements may be admitted to show state of testator's beliefs concerning applicant when instructions given for making of will - Credibility of applicant in issue - Application for provision for adult son refused - Whether time for appeal should be extended - Administration and Probate Act 1958 (No. 6191), s96.

Courts practice and procedure - Application to extend time for appealing - Claim for provision from estate of mother by son dismissed - Delay of about six months before extension of time for appealing sought - Principles to be applied considered - Possible injustice to all parties to be considered - Prospects of success of appeal to be considered - Costs - Whether security for costs should be ordered - Rules of the Supreme Court O.58, r1A(b), O.58 r16, O.64, r6.

Evidence - Testator's family maintenance - Evidence offered as to testatrix's statements concerning relationship with applicant - Hearsay - Statements not to be used as evidence of truth of facts stated - Extent of admissibility of such statements considered - Evidence relevant to show belief of testator - Evidence may be offered to show state of mind of testator when instructions given for will - Whether testator understood existence or strength of applicant's claim on bounty.

GAS and FUEL CORPORATION OF VICTORIA v WOOD HALL LTD and LEONARD PIPELINE CONTRACTORS LTDVR 385

MARKS, J·11 Apr 1978·29p·

Arbitration and awards - Arbitrator - Removal of - Misconduct of arbitrator in the course of arbitration - Conduct of proceedings by arbitrator - Principles of natural justice applicable - Effect of breach of principles of natural justice - Arbitration Act 1958 (No. 6200), s12(1).

JAMES v SWAN HILL SEWERAGE AUTHORITYVR 519

HARRIS, J·4 Apr 1978·12p·

Acquisition of land - Compensation - Principles applicable in assessing compensation - "Market value", solatium", "direct pecuniary loss" - Lands Compensation Act 1958 (No. 6286), s11B.

RE GREY SMITH, DECEASEDVR 596

MURPHY, J·7 Oct 1975·13p·

Administration and probate - Will and codicil - Practice where validity of codicil in doubt - Executor seeking probate of will alone - Onus of proof on executor - Onus of proof on person seeking to propound codicil - Consent of interested persons gives no jurisdiction to ignore testamentary document - Dependent relative revocation.

RE PENNINGTON DECEASED (NO2)VR 617

HARRIS, J·15 Dec 1977·16p·

Administration and probate - Whether children were entitled to share in estates - Such question depending on Legitimacy of children and proof of marriage of parents - Father of children living with mother as though they were married for nearly 50 years - No marriage certificate produced - "No. record" searches produced indicating that he had not married in Victoria, New South Wales or Queensland - Statement by father in two birth certificates of children that he had married in New South Wales - Death certificate indicating marriage in Queensland - Admissibility of these and other certificates considered - Letters and other evidence tendered to prove existence of marriage - Proof of marriage by cohabitation and repute - Declarations as to pedigree - Conflict in certificates and other evidence - Proof of existence of marriage and evidence which raised a presumption of marriage - Whether clear and cogent evidence both to rebut presumption and tell against acceptance of actual evidence - Evidence Act 1958 (No.6246), s66 - Registration of Births Deaths and Marriages Act 1959 (No.6564),, s53 - Rules of the Supreme Court O. 16, r9, r32(b).

Evidence - Presumption of marriage - Declarations as pedigree - Hearsay - Admissibility of particulars contained in birth and other certificates from various States of Australia and New Zealand - Admissibility of "no record" searches - Conflict in evidence and certificates produced - Whether proof that children were legitimate and entitled to share in estates - Parents living together as though they were married for nearly 50 years - No marriage certificate produced - Actual evidence of marriage and evidence of marriage and evidence which raised a presumption of marriage - Clear and cogent evidence both to rebut that presumption and tell against acceptance of actual evidence - Evidence Act 1958 (No.6246), s66 - Registration of Births Deaths and Marriages Act 1959 (No.6564), s53.

R v THE SMALL CLAIMS TRIBUNAL AND MUNRO ; EX PARTE ESCOR INDUSTRIES PTY LTD (NO 1)VR 503

MCINERNEY, J·29 Nov 1978·10p·

Administrative law - Small Claims Tribunal - Certiorari - Jurisdiction with regard to a "small claim"- Claim by ultimate purchaser from retailer of goods against manufacturer of goods to enforce manufacturer's warranty - Whether collateral contract between manufacturer and ultimate purchaser - Claim must arise out of contract for the supply of goods or provision of services between a "consumer" and a "trader" - Whether relation between manufacturer and ultimate purchaser that of "consumer" and "trader" - Whether purchaser's claim a "small claim" - Small Claims Tribunal Act 1973 (No 8486) s2(1).

REX TYRE and AUTO SERVICES (RICHMOND) PTY LTD v COUNTRY ROADS BOARDVR 608

GOBBO, J·5 Feb 1979·7p·

Acquisition of land - Application that claim for compensation be determined by Court rather than Land Valuation Board of Review - Whether questions of "unusual difficulty" or of "general importance" raised - Meanings of such phrases considered - Onus in relation to application - Assessment of compensation for unexpired term of a periodic tenancy - Whether any claim for loss of goodwill and business disturbance - Valuation of Land Act 1960 (No. 6653), s25(2)(c) - Lands Compensation Act 1958 (No. 6286), s11(B)(1), s61.

R v THE SMALL CLAIMS TRIBUNAL AND MUNRO; EX PARTE ESCOR INDUSTRIES PTY LTD (No. 2)VR 635

YOUNG, CJ, LUSH and BEACH, JJ·26 Jun 1979·6p·

Administrative law - Small Claims Tribunal - "Small claim" - Claim by ultimate purchaser seeking enforcement of a manufacturer's warranty - Whether contract constituted by warranty a contract for "the provision of services" - Whether the manufacturer a "trader" and ultimate purchaser a "consumer" - Small Claims Tribunals Act 1973 (No. 8486), s2(1).

AB v LEWISVR 151

FULLAGAR, J·21 Aug 1979·5p·

Administrative law - Solicitor - Secretary of Law Institute sending notice of intention to cancel practising certificate - Whether a "decision" - Administrative Law Act 1978 (No. 9234), s3.

Legal Practitioners - Solicitor - Secretary of Law Institute sending notice of intention to cancel practising certificate - Whether a "decision" - Administrative Law Act 1978 (No. 9234), s3.

D PHILLIPS CONSTRUCTIONS (VIC) PTY LTD v RF MULLAVEY AND JF ADAMSVR 171

MURRAY, J·14 Dec 1979·6p·

Arbitration - Motion to set aside award in relation to costs - Whether Court limited to considering what appears on the face of the award - Whether error must appear on the face of the award - Arbitrators's exercise of discretion.

FREEMAN v HARRISVR 267

STARKE, MURPHY and BROOKING, JJ·29 Nov 1979·23p·

Appeal - Case stated - "Facts" - Criminal law - Theft - Case stated from County Court to Supreme Court - Whether case may be stated where appeal against sentence only - Exercise of sentencing discretion by County Court - Exercise of discretion by Supreme Court - Magistrates' Courts Act 1971 (No. 8184), s85.

KELLER v DRAINAGE TRIBUNAL AND MONTAGUEVR 449

MURRAY, J·20 Feb 1980·10p·

Administrative Law - Drainage Tribunal - Decision of the Tribunal on a basis not raised by the parties - Whether denial of natural justice - Duty to act fairly - Statutory remedies and means of review - Administrative Law Act 1978 (No. 9234) - Drainage of Land Act 1975 (No. 8811).

ROBERT SALZER CONSTRUCTIONS PTY LTD v BARLIN-SCOTT AIR CONDITIONING PTY LTDVR 545

YOUNG, CJ MCINERNEY and FULLAGAR, JJ·26 Apr 1979·16p·

Arbitration - Arbitrators appointed by private agreement - Whether arbitrators so appointed empowered to award interest - Supreme Court Act 1958 (No. 6387), s78(1) - Arbitration Act 1958 (No. 6200), s14, s15 and s16.

R v CLASSIFICATION COMMITTEE ; EX PARTE FINNERTYVR 561

KAYE, J·22 Feb 1980·10p·

Prerogative writs - Prisoner serving sentences of imprisonment - Assessment of security rating and classification by prison Classification Committee - Whether legal right or legal status or legitimate expectation accrued from assessment and classification - Reclassification of prisoner by Classification Committee - Discharging administrative function for prison management - Rules of natural justice not applied by Classification Committee - No duty to observe natural justice - Gaols Act 1958 (No 6259), s49 - Community Welfare Services Act 1970 (No. 8089), s2(1), s2(2)(b), s125 - Social Welfare Regulations 1962, Div. III, as amended by SR No. 97 of 1974, reg107, reg108, reg109, reg110, reg111, reg112, reg218(a).

Administrative law - Prisons and prisoners - Classification of prisoner by Classification Committee - Status of prisoner - Whether legal right or legal status or legitimate expectation accrued from classification - Reclassification of prisoner by Committee - Administrative function - No duty to observe natural justice - Gaols Act 1958 (No. 6259), s49 - Community Welfare Services Act (No. 8089), s2(1), s2(2)(b), s125 - Social Welfare Regulations 1962, Div. III, as amended by SR No. 97 of 1974, reg107, reg108, reg109, reg110, reg111, reg112, reg218(a).

RE TRATT, DECEASEDVR 657

BROOKING, J·23 Mar 1979·7p·

Administration and probate - Application for grant of administration ad colligenda bona - Whether guarantee required as a condition of grant - Administration and Probate Act 1958 (as amended) (No. 6191), s57(1) - Administration and Probate Rules (as amended), r23(1).

RE EMANUEL DECEASEDVR 113

JENKINSON, J·29 May 1980·7p·

Administration and probate - Application that attesting witness be entitled under will - Statutory provisions considered - Persons on whom notice of application may be served - Whether entitlement known to and approved by testatrix and whether undue influence - Evidence and proof required - Will prepared by solicitors on instructions of witness formerly a member of that firm - Witnesses and testatrix closely related - Administration and Probate Act 1958 (No. 6191), s100, s101 - Wills Act 1958 (No. 6416), s13 - Wills (Interested Witnesses) Act 1977 (No. 9044), s5.

R v LEVINE EX PARTE DE JONGVR 131

MURRAY, J·4 Jun 1980·7p·

Administrative law - "Small claim" - Contract of sale of land with condition for rendering of services - Claim for faulty work - Collateral agreement continuing to have effect after conveyance - Tribunal's jurisdiction - "Claim that has arisen not more than two years previously" - Construction - Cause of action must arise within the period - Whether relief should be refused - Costs - Small Claims Tribunals Act 1973 (No. 8486), s2(1).

DAMPSKIBSSELSKABET TORM A/S v AUSTRALIAN WHEAT BOARDVR 145

LUSH, MURPHY and O'BRYAN, JJ·6 Jun 1980·10p·

Arbitration - Question of law arising - Reference to Court by way of case stated - Award made in conformity with decision of the Court - Power to set aside the award for error of law on its face if the decision of the Court incorrect.

Shipping - Charterparty - Construction - Exception - "Strike of workmen essential to berthing of vessel or to loading of cargo" - Storemen refusing to load vessel if it berthed unassisted during tug operators' strike - Whether charterer exempted from demurrage during strike of tug operators.

CONDON v MILLERVR 465

KING, J·10 Dec 1980·4p·

Administration and Probate - Executors' commission - Procedure where one executor does not wish to participate in claim for commission - Administration and Probate Act 1958 (No. 6191).

R v SMALL CLAIMS TRIBUNAL AND DEAN EX PARTE RACV GENERAL INSURANCE PTY LTDVR 602

GOBBO, J·15 Apr 1981·9p·

Administrative law - Small Claims Tribunal - Prohibition - Whether claim under insurance policy is a "small claim" - Whether a contract of insurance is a contract for the provision of services - Whether a claim under an insurance policy arises out of a contract for the provision of services - Whether writ of prohibition should lie against the Tribunal - Whether the Tribunal had jurisdiction to hear a claim arising from an insurance policy - Whether an adjournment should be permitted to enable application for order nisi for prohibition if Tribunal finds that it has jurisdiction - Constitution of Tribunal and role of Registrar - Small Claims Tribunal Act 1973 (No. 8486), s2(1), s17 and s23.

KARABOTSOS v PLASTEX INDUSTRIES PTY LTDVR 675

YOUNG, CJ, KAYE AND MCGARVIE, JJ·2 Oct 1980·16p·

Damages - Negligence - Mitigation of loss - Personal injuries - Refusal of plaintiff to undergo surgical treatment - Onus of proof that refusal to have an operation unreasonable - Whether test of reasonableness objective or subjective - Whether test requires consideration of matters personal to the plaintiff - Whether appeal court bound by trial Judge's findings of fact.

Practice and procedure - Notice given of appeal on question of damages - Costs taxed and judgment paid - Whether appeal precluded by "approbation and reprobation", "election" or estoppel.

Appeal - Whether appeal court bound by trial Judge's findings of fact - Rules of Supreme Court, O.58, r4.

CHARLTON v MEMBERS OF THE TEACHERS TRIBUNALVR 831

MCGARVIE, J·30 Mar 1981·25p·

Administrative Law - Teachers Tribunal - Regulations concerning teachers' salaries - Tribunal procedure - Approved teachers' associations - Parliamentary disallowance of Tribunal determination - Ministerial request for Tribunal to stay operation of determination - Review of Tribunal decision to make regulation - Purpose of regulation - Power to make regulations operating retrospectively - Tribunal powers similar to industrial arbitration powers - Power of Tribunal to make, rescind and to change operation of a regulation - Power of parliament to disallow a regulation - Natural justice - Whether fair opportunity of making representations afforded - Rules of natural justice apply to proceedings of Tribunal - Tribunal decision affecting rights - Arbitral role of Tribunal - "Person affected" - Discretion to quash regulation in the interests of justice - Administrative Law Act 1978 (No. 9234), s2, s3 - Acts Interpretation Act 1958 (No. 6189), s4(2), s7(2), s7(4)(a), s30(3) - Labour and Industry Act 1958 (No. 6283), s34(2), s45(2), s45B - Teaching Service Act 1958 (No. 6391), s3, s4, s4(2), s5, s5A, s15(5), s17, s18, s23, s28, s35, s43, s44, s45, s46(4), s48(6), s55C, s58(1)(i), s58(2), s58(3), s58(4) and Teaching Service (Teachers Tribunal) Regulations.

FREEDMAN v PETTY AND GREYHOUND RACING CONTROL BOARDVR 1001

MARKS, J·26 Jun 1980·33p·

Administrative law - Greyhound Racing Control Board - Board improperly constituted - Legal representation - Denial of natural justice - Board as prosecutor - Denial of fair hearing - Bias - Damages - Racing Act 1958 (No 6393) PtIII - Rules of Greyhound Racing Control Board (Revised 1973), r142.

R v HIS HONOUR JUDGE RENDIT EX PARTE THE HEALTH COMMISSION OF VICTORIAVR 279

STARKE, ACJ, CROCKETT and MACGARVIE, JJ·26 Jun 1981·16p·

Administrative law - Health Commission - Refusal by Health Commission to approve private hospital - Review of refusal by County Court judge - Nature and scope of Review - Whether review a rehearing de novo - Health Act 1958 (No. 6270), s182 and s387.

NICOL v ATTORNEY-GENERAL FOR THE STATE OF VICTORIAVR 353

STARKE, MURPHY and MARKS, JJ·24 Nov 1981·9p·

Administrative law - Natural justice - "Legitimate expectation" - Whether expiry of time limit for instituting prosecution without ministerial consent amounts to acquisition of legitimate expectation of not being prosecuted - Meaning of "decision" and "tribunal" - Administrative Law Act 1978 (No. 9234), s2 and s3 - Companies Act 1961 (No. 6839), s381(2).

Companies - Offences - Natural justice - Expiry of time limit for instituting prosecution without ministerial consent - Whether Minister to notify proposed defendant prior to consenting to bring action after expiry of time limit - Companies Act 1961 (No. 6839), s381(2).

LOPEZ v CITY OF BRIGHTONVR 369

FULLAGAR, J·2 Sept 1977·10p·

Administrative law - Locus standi - individuals including mayor, some councillors and ratepayers seeking to restrain municipality from allegedly ultra vires sale of land - Suit not maintainable unless Attorney-General joins.

DOBELL v VAN DAMMEVR 425

MCGARVIE, J·21 May 1981·4p·

Administration and Probate - Testator's family maintenance - Testator divorced - Question of maintenance for former wife reserved - Application by former wife - Whether former wife entitled to payments of maintenance - Meaning of "entitled" - Whether former wife a "widow" - Administration and Probate Act 1958 (No. 6191), s91.

RE ALLEN DECEASEDVR 429

MCGARVIE, J·27 Aug 1980·5p·

Administration and Probate - Will - Personal representative not a party to proceedings - Application for costs from the estate - Whether rules of natural justice apply - Audi alteram partem - Whether opportunity for contrary submissions - Practice - Whether power to order costs to be paid out of the estate - Administration and Probate Act 1958 (No 6191), s61; RSC Ch I, O 16, r8, O.65, r14D, Ch III, O.1, r40.

PULHAM v DAREVR 648

STARKE, MURPHY and BROOKING, JJ·29 Apr 1982·9p·

Practice and procedure - Action for damages for personal injuries - Particulars of loss of earning capacity - Action conducted on basis of particulars - Verdict in excess of particulars - Whether verdict sustainable - Rules of the Supreme Court, O 19, r5A.

Appeal - Action for damages for personal injuries - Particulars of loss of earning capacity - Action conducted on basis of particulars - Verdict in excess of particulars - Appeal against quantum of damages - Whether verdict sustainable - Whether appellant limited to particulars - Rules of the Supreme Court, O 19, r5A - Supreme Court Act 1958 (No 6387), s19A.

RE LAWRENCE DECEASEDVR 826

BROOKING, J·2 Jun 1982·7p·

Administration and Probate - Motion for leave to withdraw renunciation - Court's discretion - Whether retraction should be for the benefit of the estate or those interested under the will - Administration and Probate Act 1958 (No.6191), s16(2).

Practice and procedure - Administration and Probate - Execution and filing of retraction following grant of leave to withdraw renunciation of probate - Application for probate following filing of retraction - Contents of affidavit in support of application for probate - Memorandum of subsequent probate - Probate and Administration Rules, r17.

R v PHARMACY BOARD OF VICTORIA EX PARTE BROBERG1 VR 211

O'BRYAN J·21 Apr 1982·11p·

Administrative law - Prerogative writs - Professional disciplinary tribunals - Pharmacy Board - Disciplinary charges - Adequacy of notice of charges - Particulars of charges - Whether prohibition lies against Board - Pharmacists Act 1974 (No. 8593), s18.

R v LITTLE EX PARTE FONG1 VR 237

TADGELL J·4 Nov 1981·23p·

Administrative law - Public servant - Disciplinary charges - Suspension - Validity of charges - Prerequisites for valid charges - Public Service Act 1974 (No. 8656), s60.

Administrative law - Prerogative writs - Permanent head of Government department - Duty to act judicially when hearing charges preferred by him - Public Service Act 1974 (No. 8656), s63.

R v LIQUOR CONTROL COMMISSION Ex PARTE S E DICKENS PTY LTD R v LIQUOR CONTROL COMMISSION Ex PARTE AUSTRALIAN HOTELS ASSOCIATION1 VR 303

ANDERSON J·5 Nov 1982·11p·

Liquor licensing - Application for a transfer of retail bottled liquor licence - Determination by single member of Liquor Control Commission - Appeal to Full Commission - Whether appeal to be conducted as a hearing de novo - Right to be heard on appeal - Right to seek issue of summons to produce Appeal - Liquor Control Act 1968 (No. 7695), s10, s11, s13.

Administrative law - Prerogative writ - Mandamus - Discretion to refuse to issue.

AUSTRALIAN CONSERVATION FOUNDATION v ENVIRONMENT PROTECTION APPEAL BOARD1 VR 385

YOUNG CJ, MURRAY and MARKS JJ·28 Jul 1982·24p·

Administrative Law - Locus standi - "Person who feels aggrieved" - Objector to grant or amendment of licence - Environment Protection Act 1970 (No. 8056), s20, s20A, s32(5).

FOOTSCRAY FOOTBALL CLUB LTD v COMMISSIONER OF PAY-ROLL TAX HAYES v COMMISSIONER OF PAY-ROLL TAX1 VR 505

LUSH J·7 Oct 1982·9p·

Administrative law - Statutory order for review - Persons and bodies amenable - Duty to give reasons - "Tribunal" - Commissioner of Pay-roll Tax - Whether Commissioner bound to accord natural justice before making an assessment - Administrative Law Act 1978 (No 9234), s2, s8 - Pay-roll Tax Act (No. 8154), s18.

Administrative law - Natural justice - Duty to accord - Displacement of statutory scheme - Pay-roll Tax Act 1971 (No 8154), s18, s32, s33.

BORENSTEIN v COMMISSIONER OF BUSINESS FRANCHISES1 VR 634

KING J·24 Sept 1982·7p·

Administrative law - Revocation of licence - Curtailment of term of licence - Natural justice - Opportunity to be heard - Commissioner of Business Franchises - Business Franchise (Tobacco) Act 1974 (No 8597), s9(4).

Administrative law - "Tribunal" - Commissioner of Business Franchises - Administrative Law Act 1978 (No 9234), s2.

VICTORIAN RAILWAYS BOARD v SNOWBALL1 VR 689

MARKS J·30 Jun 1982·9p·

Animals - Cruelty to - Liability of statutory authorities - Victorian Railways Board - Immunity from prosecution - Acts of servants - Knowledge of Board - Protection of Animals Act 1966 (No 7432), s4.

Crown - Statutory authority - Victorian Railways Board - Whether acting as the Crown - Railways Act 1958 (No 6355), s4, s5, s71, s72, s75, s77, s79, s83, s100, s101, s119, s147, s179, s199, s200.

TREVOR BOILER ENGINEERING CO PTY LTD v MORLEY1 VR 716

STARKE J·23 Nov 1982·9p·

Administrative law - Statutory order for review - Persons and bodies amenable Workers Compensation Board - Whether "court of law" - Whether interim award is a "decision" - Administrative Law Act 1978 (No 9234), s2, s3.

Workers compensation - Weekly payments - Cessation by employer - "Actual return to work" - Voluntary activities - Worker's right to restoration of weekly payments - Workers Compensation Act 1958 (No 6419), s9, CL7(1)(a).

ESTATE AGENTS BOARD v NAKIC2 VR 570

STARKE, MURPHY and KING JJ·8 Aug 1983·9p·

Administrative law - Statutory tribunal - Estate Agents Board - Application for grant of an estate agent's licence - Eligibility to apply for a licence - "Hearing" - Whether eligibility should be determined at, or prior to, hearing of application for grant of a licence - Consideration by the Board - Matters proper to be taken into account - "Qualifications" - Estate Agents Act 1980 (No. 9428), s14, s21.

RE NASSIM (DEC'D)VR 51

NICHOLSON J·26 Jul 1983·7p·

Administration and Probate - Testator's Family Maintenance - Application by adult daughters for extension of time for making application - Lapse of over three years since grant of probate - Estate not finally distributed - Ignorance of size and extent of estate - Size and extent of testator's overseas assets deliberately concealed by executors - Principles to be applied in determining applications for extension of time - Administration and Probate Act 1958 (No. 6191), s99.

RE LAUER, DECEASEDVR 180

YOUNG CJ·28 Oct 1983·7p·

Administration and Probate - Testator's family maintenance - Application by adult daughter for extension of time for making application - Adequate provision for applicant at date of testator's death - Deterioration of applicant's financial circumstances - Increase in value of estate - Principles to be applied in determining application for extension of time - Administration and Probate Act 1958 (No. 6191), s99.

O'ROURKE v MILLERVR 277

STARKE, MURPHY and O'BRYAN JJ·4 Oct 1983·30p·

Administrative law - Natural justice - Police constable on probation - Nature of appointment - Termination - Power of Chief Commissioner to terminate appointment - Matters to be taken into account - Right of constable to be heard and to cross-examine informant - Police Regulation Act 1958 (No. 6338), s8 - Police Regulations 1979, reg212.

COMMISSIONER OF BUSINESS FRANCHISES v BORENSTEINVR 375

YOUNG CJ, MURRAY and O'BRYAN JJ·25 Oct 1983·8p·

Administrative Law - Commissioner of Business Franchises - Natural justice - Licence - Revocation of determination as to the term of licence - Right to be heard before revocation - Whether right to hearing negated by legislation - Business Franchise (Tobacco) Act 1974 (No. 8597), s9(2) and s9(4).

MONASH UNIVERSITY v BERGVR 383

STARKE , MURPHY and MARKS JJ·30 Nov 1983·8p·

Administrative law - Private arbitration - Whether award of arbitrator is a "decision of a tribunal" to which the Administrative Law Act 1978 applies - Whether reasons given pursuant to a request purportedly made under the Act form part of the award - Whether the Act enlarges the remedies available to persons affected by a "decision of a tribunal" - Administrative Law Act 1978 (No. 9234), s2, s3, s7, s8, s10.

Practice and procedure - Leave to appeal to Full Court from interlocutory orders - Principles to be applied - Supreme Court Act 1958 (No. 6387), s40(1)(b).

BERG v COUNCIL OF THE MUSEUM OF VICTORIAVR 613

NICHOLSON J·17 Apr 1984·6p·

Aborigines - Archaeological and Aboriginal relics - Portable Aboriginal relics - Required to be lodged in the National Museum of Victoria - Meaning of "lodged" - Whether relics can be removed from the Museum without a ministerial determination - Archaeological and Aboriginal Relics Preservation Act 1972 (No. 8273), s20A.

DOMINIK v EUTROPEVR 636

NATHAN J·30 Apr 1984·5p·

Administrative law - Application to review exercise of discretion by trustees of superannuation fund - Whether trustees' decision a "decision" within the Administrative Law Act - Whether the trustees a "tribunal" within the Administrative Law Act - Administrative Law Act 1978 (No. 9234), s3.

ROBBINS v HARNESS RACING BOARDVR 641

O'BRYAN J·27 Mar 1984·7p·

Administrative law - Harness racing - Decision of Harness Racing Board - Whether a "decision" reviewable under Administrative Law Act 1978 - Racing Act 1958 (No. 6353), s45, s49 - Administrative Law Act 1978 (No. 9234), s3.

Administrative law - Statutory disciplinary tribunals - Charge of improper or offensive behaviour - Particulars of charge - Whether behaviour in question amounted to improper or offensive behaviour - Meaning of "improper or offensive behaviour" - Administrative Law Act 1978 (No. 9234), s7.

RE LAGO, DECEASEDVR 706

BROOKING J·23 Aug 1984·7p·

Administration and probate - Family provision - Application for extension of time - "Final distribution" of estate - Transmission application and transfer in respect of sole asset of estate lodged at Titles Office but not registered - Whether estate finally distributed - Administration and Probate Act 1958 (No. 6191), s99, s99A.

R v JUDGE MULLALY; Ex parte THE ATTORNEY-GENERAL FOR THE COMMONWEALTHVR 745

BROOKING J·18 Oct 1983·6p·

Administrative law - Prerogative writs - Criminal trial - Whether writs available to review trial judge's ruling against reception of evidence.

CRIMES COMPENSATION TRIBUNAL v STRATTONVR 1015

CROCKETT, MURPHY and ORMISTON JJ·22 Aug 1984·4p·

Appeal - Appeal from County Court to Supreme Court - Appeal from decision of County Court given on appeal from Crimes Compensation Tribunal - Jurisdiction of Supreme Court to entertain appeal - "Action" - "Matter" - County Court Act 1958 (No. 6230), s3, s74 - Magistrates' Courts Act 1971 (No. 8184), PtIX - Criminal Injuries Compensation Act 1972 (No. 8359), s13.

ATHENA PERMANENT BUILDING SOCIETY v KILPATRICKVR 1041

NICHOLSON J·14 Mar 1984·8p·

Building society - Winding up of society by issue of certificate of Registrar - Duty of Registrar to hold inquiry before issuing certificate - Whether any person has right to appear and be heard at inquiry - Whether notice of inquiry required to be given to any person - Building Societies Act 1976 (No. 8966), s76, s105, s111.

Administrative law - Building society - Winding up of society by issue of certificate of Registrar - Duty of Registrar to hold inquiry before issuing certificate - Whether any person has right to appear and be hear at inquiry - Whether notice of inquiry is required to be given to any person - Building Societies Act 1976 (No. 8966), s76, s105, s111.

CHELFCO NINETY-FOUR PTY LTD v ROAD TRAFFIC AUTHORITYVR 1

MURPHY J·17 Aug 1984·28p·

Licensing - Passenger ferry licences - Determination of licensing authorities - "Authority" - "Appropriate authority" - Powers of licensing authorities - Delegation of powers - Transport Act 1983 (No. 9921), s2, s32, s86, s199, s201, s204.

Administrative law - Delegation - Dictation.

Administrative law - Locus standi - "Person affected" - Administrative Law Act 1978 (No. 9234), s2, s3.

Administrative law - Remedies - Discretion - Grounds for exercise.

VOWELL v STEELEVR 133

BEACH J·28 Aug 1984·6p·

Administrative law - Judicial review - Decision of Committee of Victoria Racing Club - Whether "decision" to which the Administrative Law Act 1978 applies - Administrative Law Act 1978 (No. 9234), s2, s3.

CLEMENTS v SEBOVR 241

BEACH J·28 Aug 1984·10p·

Administration and probate - Probate duty - Hardship Relief Board - Application for relief from duty - Power of Board to entertain application made after duty has been paid - Probate Duty Act 1962 (No. 6890), s38B.

Administrative law - Statutory tribunal - Hardship Relief Board - Natural justice - Form of "hearing" to which applicant is entitled before decision is made.

Administrative law - Statutory tribunal - Hardship Relief Board - Bias - Prejudgment - Expression of opinion by a tribunal member in advance of hearing.

BRINDS LTD v OFFSHORE OIL NLVR 277

STARKE, MURRAY and SOUTHWELL JJ·2 Feb 1984·4p·

Appeal - Privy Council - Appeal from Full Court - Appeal as of right - Leave to appeal - Petition for winding up - Whether subject matter exceeded 1000 pds or 500 pds - Supreme Court Act 1958 (No. 6387), s218 - Order in Council of 23 January 1911 (UK).

R v EQUAL OPPORTUNITY BOARD; Ex parte BURNSVR 317

NATHAN J·4 May 1984·10p·

Administrative law - Statutory tribunal - Equal Opportunity Board - Procedure - Natural justice - Duty to conciliate - Duty to inform respondent of allegations prior to hearing - Legal representation - Equal Opportunity Act 1977 (No. 9025), s35, s36.

Administrative law - Discrimination - Equal Opportunity Board - What constitutes "less favourable" treatment - Physical intrusions - What constitutes a benefit connected with employment - Right to quiet employment - Equal Opportunity Act 1977 (No. 9025), s16-s18.

STATE SUPERANNUATION BOARD OF VICTORIA v O'CONNORVR 380

YOUNG CJ , FULLAGAR and BEACH JJ·14 Nov 1984·5p·

Appeal - Appeal from County Court to Supreme Court - Freedom of information - Appeal from judgment of County Court on appeal from principal officer of agency - "Matter" - County Court Act 1958 (No. 6230), s3, s74 - Freedom of Information Act 1982 (No. 9859), s50.

WALLACE v HEALTH COMMISSION OF VICTORIAVR 403

STARKE , FULLAGAR and MARKS JJ·17 Dec 1984·6p·

Administrative law - Freedom of information - Right of access to documents - Requirement of request in writing - Conscious voluntary act of person requesting - Request by person lacking mental capacity - Freedom of Information Act 1982 (No. 9859), s13, s17.

ROSENTHAL v PHILLIPSVR 409

MARKS J·14 Dec 1984·8p·

Administrative law - Jurisdiction of Supreme Court - Documents seized pursuant to warrant issued under Commonwealth Act - Action for trespass and for declaration that warrants invalid - Whether Supreme Court has jurisdiction to grant relief - Administrative Decisions (Judicial Review) Act 1977 (No. 59) (Cth.), s9.

THORNE v DOUG WADE CONSULTANTS PTY LTDVR 433

O'BRYAN J , FULL COURT: KAYE , MCGARVIE AND MARKS JJ·21 May 1985·71p·

Town and country planning - Interim Development Order - Responsible authority - Planning permit - Notice of proposed works to other persons - Relevant considerations - Effect of regard to irrelevant considerations - Unreasonable exercise of discretionary power - Town and Country Planning Act 1961 (No. 6849), s18B. .

Town and country planning - Metropolitan Planning Scheme Ordinance - Responsible authority - Planning permit - Row houses - When permission required for building works - Building works involving increase to floor space - Metropolitan Planning Scheme Ordinance, CL7(1)(d)(iii). .

Administrative law - Locus standi - Declarations - Injunctions - Private rights _ Peculiar damage arising from interference with public rights - Whether s18B(1) of the Town and Country Planning Act 1961 creates private rights - Interests of neighbours in enforcing planning laws. .

Administrative law - Remedies - Declarations - Injunctions - Discretion - Considerations relevant to exercise. .

Costs - Appeal - Whether appeal as to costs may be entertained without leave of trial judge where appeal on merits fails - Supreme Court Act 1958 (No. 6387), s39 - Rules of the Supreme Court, O.65, r1. .

Costs - Discretion to award - Considerations relevant to exercise - Bullock orders Sanderson orders.

BELL GROUP LTD v HERALD and WEEKLY TIMES LTDVR 613

KAYE J·23 Apr 1985·9p·

Companies - Stock Exchange - Offer to sell securities on floor of exchange - Dispute as to identify of acceptor - Whether contract concluded - Whether contractual rights derived prior to resolution of dispute by committee of exchange.

Agency - Stock broker - Implied term in agency contract - Principal bound by Rules of Exchange - Broker authorized to contract in accordance with Rules of Exchange.

GIBBS v CLARK DALGETY FARMERS LTD v CHRYSTIEVR 778

MCGARVIE J·1 Mar 1985·9p·

Agency - Auction and auctioneer - Receiving sheep - Selling sheep - Passing over proceeds of sale - Auction Sales Act 1958 (No. 6202), s38.

Statutory interpretation - "Person" - "Auctioneer" - Whether includes corporation.

R v KELLY; Ex Parte VICTORIAN PUBLIC SERVICE BOARDVR 825

KAYE, BROOKING and SOUTHWELL JJ·27 Jun 1985·16p·

Administrative law - Freedom of information - Exempt documents - Certificate of Secretary of Department of Premier and Cabinet that document is exempt - Effect of certificate - Power of County Court on appeal from refusal to grant access to certified document - Power to determine whether document properly classified as exempt in certificate - Freedom of Information Act 1982 (No. 9859), s28(4), s50(5).

RYDER v BOOTH STATE SUPERANNUATION BOARD v O'CONNORVR 869

YOUNG CJ GRAY AND KING JJ·26 Jun 1985·19p·

Administrative law - Freedom of information - Exempt documents - Information communicated in confidence to agency - Document disclosing opinion or advice for deliberative purposes of agency - Whether disclosure contrary to public interest - Whether disclosure likely to impair ability to obtain similar information in future - Freedom of Information Act 1982 (No. 9859), s30(1), s35(1).

R v MARSHALL; Ex parte BARANOR NOMINEES PTY LTDVR 19

MURPHY, BROOKING and SOUTHWELL JJ·13 Jun 1985·18p·

Industrial law - Conciliation and Arbitration Boards - Industrial Relations Commission - Awards - Industrial matter - Appeals from Conciliation and Arbitration Boards - References to Commission in full session - Whether Commission has power to make awards with retrospective effect - Industrial Relations Act 1979 (No. 9365), s16, s38(2), s44.

Administrative law - Certiorari - Jurisdictional facts - Excess of jurisdiction - Powers of reviewing court - Burden of proof - Power to quash part of decision under review - Severance.

NATHAN v MJF CONSTRUCTIONSVR 75

NICHOLSON J·25 May 1985·15p·

Practice and procedure - Discovery and inspection of documents - Documents in possession of person not a party to action - Notes of arbitrators and tape recording of arbitration proceedings - Power of court to order discovery and inspection - Source of court's power - Matters to be considered in exercising power - Rules of the Supreme Court, O. 37, r7 - Evidence Act 1958 (No. 6246), s13.

Arbitration - Application to set aside award - Arbitrators' notes of proceedings - Court's power to compel production and inspection of arbitrators' notes - Whether notes protected by privilege.

VINEY v GEORGE'S JET GAS PTY LTDVR 141

TADGELL J·29 Aug 1985·7p·

Administrative law - Assessment under Business Franchise Acts - Validity - Whether validity of assessment examinable by court - Whether Acts disclose intention to exclude court's jurisdiction to investigate validity of assessment - Statutory interpretation - Business Franchise (Tobacco) Act 1974 (No. 8597), s16, s16A, s17 to s18C, s19A - Business Franchise (Petroleum Products) Act 1979 (No. 9272).

TROTTER v McSPADDENVR 329

GOBBO J·24 Sept 1985·4p·

Agency - Estate agent - Commission - Entitlement to commission accruing upon execution of legally binding contract of sale - Contract executed - Contract subject to condition subsequent - Whether agent's entitlement to commission accrued upon execution of contract or upon satisfaction of condition.

CURRIE v ROAD TRAFFIC AUTHORITYVR 401

SOUTHWELL J·21 Oct 1985·7p·

Administrative law - Road Traffic Authority - Power to cancel licence of driver disqualified from driving by reason of judgment made pursuant to law of another State - Whether Authority a "tribunal" for purposes of Administrative Law Act 1978 - Motor Car Act 1958 (No. 6235), s25(1)(e) - Administrative Law Act 1978 (No. 9234), s2, s3.

FAWKE v HOLLOWAYVR 411

BEACH J·17 Dec 1985·6p·

Administrative law - Small Claims Tribunal - Jurisdiction - Jurisdiction confined to claim against a "trader" - Conduct of business in "trade or commerce" - Claim against chiropractor - Whether chiropractor provides services in "trade or commerce" - Small Claims Tribunal Act 1973 (No. 8486), s2.

MAYOR, COUNCILLORS AND CITIZEN OF THE CITY OF BRIGHTON v SELPAM PTY LTDVR 54

VINCENT J·14 Aug 1986·11p·

Town and country planning - Planning Appeals Board - Procedure - Duty to accord natural justice - Party requesting to cross-examine author of letter submitted by another party - Whether refusal by Board constitutes denial of natural justice - Relevant considerations.

Administrative law - Statutory tribunal - Planning Appeals Board - Duty to accord natural justice - Party requesting to cross-examine author of letter submitted by another party - Whether refusal by Board constitutes denial of natural justice - Relevant considerations.

MONTANA HOTELS PTY LTD v FASSON PTY LTDVR 147

VINCENT J·17 Oct 1985·13p·

Nuisance - Adjoining premises - Rule in Rylands v Fletcher - Broken pipe - Escaping water - No knowledge of nuisance - Failure to repair - Scope of duty of care - Damage to adjoining premises - Drainage of Land Act 1975 (No. 8811), s4.

Administrative Law - Tribunals - Planning Appeals Board - Jurisdiction under Drainage of Land Act 1975 (No. 8811), s4.

Local government - Building control - Duty imposed by regulation - Extent of duty - Whether private right of action created - Uniform Building Regulations, reg301, reg1703.

SHIRE OF SHERBROOKE v FL BYRNE PTY LTDVR 353

SOUTHWELL J·19 Aug 1986·13p·

Town and country planning - Planning Appeals Board - "Preliminary determinations" on matters of law - Board constituted by member not holding legal qualifications - Reference of question of law to Chief Chairman - Chief Chairman's opinion on matter of law - Form of references and opinions - Right of parties to be heard by Chief Chairman before opinion given - Whether "preliminary determination" a determination of appeal - Planning Appeals Board Act 1980 (No. 9512), s3, s20, s66.

Town and country planning - Scheme requiring plan to be in existence before permit issued - Whether provision consistent with Town and Country Planning Act 1961 - Town and Country Planning Act 1961 (No. 6849), s9, Sch. 3.

Administrative Law - Judicial review - Whether "preliminary determination" of Planning Appeals Board is "decision" to which Administrative Law Act 1978 applies - Administrative Law Act 1978 (No. 9234), s2, s3.

Re LA TROBE UNIVERSITY; Ex parte WILDVR 447

VISITOR TO LA TROBE UNIVERSITY, HIS EXCELLENCY, THE GOVERNOR, THE REVEREND DOCTOR JD MCCAUGHEY·30 Apr 1986·13p·

La Trobe University - Petition seeking visitation and declaration by Visitor - Alleged plagiarism by professor - Whether plagiarism can constitute "gross misconduct" if resulting from carelessness or negligence - No moral culpability or intention to deceive - Form of charge - Whether necessary to state very element of charge in notice to professor - Statutes of La Trobe University, Statute 5.1.3 - La Trobe University Regulations, reg5.1(1).

Administrative Law - Natural justice - Disciplinary charge against professor - Form of charge - Whether necessary to state every element of charge in notice to professor - Statutes of La Trobe University, Statute 5.1.3 - La Trobe University Regulations, reg5.1(1).

UNIVERSITY OF MELBOURNE; Ex parte McGURKVR 586

VISITOR TO THE UNIVERSITY OF MELBOURNE, HIS EXCELLENCY, THE GOVERNOR, THE REVEREND DOCTOR JD MCCAUGHEY·22 Jul 1986·19p·

University of Melbourne - Petition seeking visitation and declaration by Visitor - Resolution of University Council that Statute be repealed - Whether adequate notice of proposal given to members of Council - Contents of notice - Statutes of the University of Melbourne, Statutes 2.1.4, 2.31. .

Administrative law - Natural justice - University Council - Resolution of Council that union board be abolished - Whether members of board given adequate hearing before abolition effected - Address by representative of board to Council - Circulation by board members of written submission before decision.

MUIRFIELD PROPERTIES PTY LTD v HANSEN and YUNCKEN PTY LTDVR 615

NATHAN J·11 Nov 1986·10p·

Arbitration - Building contract - Scott v Avery clause - Contract entered into and proceedings for its breach instituted prior to commencement of Commercial Arbitration Act 1984 - Dispute not referred to arbitration - Defence invoking Scott v Avery clause - Whether defence should be struck out - Commercial Arbitration Act 1984 (No. 10167), s3,s55.

Statute - Interpretation - Statute prohibiting invocation of Scott v Avery clause - Retrospective operation of statute - Whether party to contract containing Scott v Avery clause retrospectively divested of contractual right to rely on clause - Commercial Arbitration Act 1984 (No. 10167), s3, s55.

GILL v DEPARTMENT OF INDUSTRY, TECHNOLOGY AND RESOURCESVR 681

MURRAY, MCGARVIE and MARKS JJ·26 Nov 1986·8p·

Statute - Interpretation - Whether "or" should be read "and" - Freedom of Information Act 1982 (No. 9859), s34.

Administrative law - Freedom of information - Exempt documents - Documents disclosing information relating to trade secrets or matters of business, commercial or financial nature - Whether phrase "other matters of a business, commercial or financial nature" should be read restrictively - Documents relating to Portland aluminium smelter - Whether exemption extends to documents created before proclamation of enabling Act relating to other sites or to construction of different smelter - "Smelters" - "Smelter site" - Freedom of Information Act 1982 (No. 9859), s34 - Alcoa (Portland Aluminium Smelter) (Amendment) Act 1984 (No. 10115), s14.

WRIGHT v WEST AUSTRALIAN TRUSTEE AND AGENCY CO LTDVR 771

MURPHY, GRAY and KING JJ·24 Oct 1986·27p·

Damages - Assessment - Fatal accident - Action pursuant to PtIII of Wrongs Act 1958 - Pecuniary loss to widow and children - Date at which damages to be assessed - Effect of assessment at wrong date - Matters to be taken into account - Wrongs Act 1958 (No. 6420), PtIII, s17.

Interest - Award of damages - Fatal accident claim - Amount on which interest awarded - Supreme Court Act 1958 (No. 6387), s79A.

Appeal - Unsuccessful party seeking to argue question of law not originally argued - Party bound by conduct of case below.

AUSTRALIAN SHIPPING COMMISSION v KOORAGANG CEMENT PTY LTDVR 29

KAYE, MURPHY and TADGELL JJ·25 Feb 1987·10p·

Arbitration - Charterparty - Time bar - Limitation imposed by Hague Rules - Expiry of time limit - Order extending time - Whether cause of action revived - Exercise of discretion to extend time - Commercial Arbitration Act 1984 (No. 10167), s48.

BIRRELL v DEPARTMENT OF PREMIER AND CABINETVR 73

MURPHY , GRAY and PHILLIPS JJ·8 Sept 1987·4p·

Administrative law - Freedom of information - Right of access to documents - Exemptions - Document prepared by consultants under contract with Department - Whether "prepared by a Minister" - Freedom of Information Act 1982 (No. 9859), s28(1)(b).

FORD MOTOR COMPANY (AUST) LTD v KULICVR 152

KAYE J·16 Mar 1987·7p·

Appeal - From Master of County Court - Special leave - Considerations relevant for grant of leave - Rules of the Supreme Court, r5803.

Limitation of actions - Application for extension of time - Personal injury - Applicant unaware of right to commence proceedings - Delay in making application once rights known - Limitation of Actions Act 1958 (No. 6295), s23A.

PHILLIPS v ESTATE AGENTS BOARDVR 179

YOUNG CJ, MCGARVIE and NICHOLSON JJ·19 Mar 1987·4p·

Statute - Interpretation - "Commissioned to sell" - "Sell" - Whether authority should be conferred by contract - Estate Agents Act 1980 (No. 9428), s50, s55(3).

Administrative law - Estate agent - Appeal on question of law - Penalty imposed by Tribunal - Whether penalty manifestly excessive - Whether question of law raised - Administrative Appeals Tribunal Act 1984 (No. 10155), s52(1).

COSTAIN AUSTRALIA LTD v FREDERICK W NIELSEN PTY LTDVR 235

MURRAY , GOBBO and TADGELL JJ·26 Jun 1987·5p·

Arbitration - Award - Appeal - Leave to appeal to Supreme Court refused - Leave to appeal from refusal also refused - Jurisdiction of Full Court to entertain applications for leave to appeal - Commercial Arbitration Act 1984 (No. 10167), s38.

DEPARTMENT OF HEALTH v ARUMUGAMVR 319

FULLAGAR J·2 Jun 1987·18p·

Administrative law - Racial discrimination - Evidence required to prove discrimination - When inferences of discrimination can be drawn - Equal Opportunity Act 1984 (No. 10095), s17, s21, s45 and s46.

SELBY v McCROHANVR 460

YOUNG CJ ; MURRAY and FULLAGAR JJ·21 Sept 1987·6p·

Administrative law - Police - Police Complaints Authority - Authority informed that persons wished to complain about police conduct - Response by Authority - Public invitation to provide information about conduct of police - Whether invitation within power - Police Regulation Act 1958 (No. 6338). s86L, s86N.

CHARALAMBOUS v CARIDEOVR 604

FULLAGAR J·5 May 1987·10p·

Administrative law - Small Claims Tribunal - Jurisdiction - Claim in excess of jurisdictional limit - Reduction of claim - Proper course to be followed by referee - Natural justice - Determination to conduct "view" of premises - Duty of referee to explain purpose of view and consequences of failure to co-operate - Duty of referee to afford party opportunity of addressing Tribunal before making final order - Small Claims Tribunal Act 1973 (No. 8486), s32(2).

Practice and procedure - Administrative law - Order to review - Addressed to one only of two relevant parties - Whether curable under slip rule - Objection to validity of order - Proper time for taking objection - Whether objection can be taken on return of order - Administrative Law Act 1978 (No. 9234), s3.

KARENLEE NOMINEES PTY LTD v ROBERT SALZER CONSTRUCTIONS PTY LTDVR 614

CROCKETT J·19 May 1987·7p·

Arbitration - Award - Leave to appeal from arbitrator's award - Applicable principles - Commercial Arbitration Act 1984 (No. 10167), s38.

ENCYCLOPAEDIA BRITANNICA (AUSTRALIA) INC v DIRECTOR OF CONSUMER AFFAIRSVR 904

MURRAY, FULLAGAR and HAMPEL JJ·14 Dec 1987·16p·

Contract - Credit - Regulated loan contract - Credit provider - Failure to obtain licence - Application by credit provider for order that debtor's liability should be increased - Finding that failure ought reasonably to be excused as to part of period during which provider unlicensed - Powers of Small Claims Tribunal - Credit Act 1984 (No. 10097), s85(2)(a).

Appeal - Competence Small Claims Tribunal - Tribunal making orders in respect of many regulated loan contracts - Contracts involving amounts of less than $3000 but in aggregate involving $650,000 - Whether appeal competent - Credit (Administration) Act 1984 (No. 10091), s82 - Credit Act 1984 (No. 10097), s85, s86.

FEDERAL COMMISSIONER OF TAXATION v BIGA NOMINEES PTY LTDVR 1006

MURPHY, GOBBO and SOUTHWELL JJ·24 Mar 1988·11p·

Administrative law - Locus standi - Sales tax - Tax payable by vendor in last wholesale sale - Lessee of goods under potential obligation to pay amount equivalent to sales tax - Standing of lessee to seek declaration that goods exempt from sales tax.

COOK v BLACKBURNVR 35

FULLAGAR, GRAY and TADGELL JJ·26 May 1988·8p·

Appeal - Sufficiency of materials before appellate court - Duty of appellant - Consequence of failure of appellant to place sufficient evidence before court to support appeal.

Courts - Court from which appeal lies - Duty upon judge or magistrate adequately to record evidence.

MIDECO MANUFACTURING PTY LTD v TAITVR 50

GOBBO J·31 May 1988·9p·

Arbitration - Costs - Offer to compromise by letter - Whether offer of compromise under Rules - Whether O.26 applies to arbitrations - Application to Supreme Court on question of law - Leave to apply - Disputed question of costs - Whether leave should be granted - Whether letter before hearing otherwise admissible on costs - Commercial Arbitration Act 1984 (No. 10167), s34(5A), s38(4)(b), s38(5)(a), s39(1)(a), s39(2) - Rules of Supreme Court, O.26.

SHARP v ASSOCIATED PULP AND PAPER MILLS LTDVR 139

MURPHY, GOBBO and SOUTHWELL JJ·15 Mar 1988·10p·

Accident compensation - Worker - Injury in course of employment - Claim for damages against employer - Whether claim barred by Accident Compensation Act 1985 - Whether proceedings in respect of injury for which worker entitled to compensation under Act - Accident Compensation Act 1985 (No. 10191), s4, s135.

TRANSPORT ACCIDENT COMMISSION v HOFFMANVR 197

YOUNG CJ MCGARVIE and O'BRYAN JJ·26 May 1988·17p·

Administrative law - Appeal - Appeal on question of law - Decision of Administrative AppeAls Tribunal - Scope of appeal - Administrative Appeals Tribunal Act 1984 (No 10155), S52(1). Accident compensation - Motor vehicles - Compensation for injury - Whether injury caused by or arose out of use of motor vehicle - Motor Accidents Act 1973 (No 8429), s13(2).

CATLOW v ACCIDENT COMPENSATION COMMISSIONVR 214

FULLAGAR, GRAY and TADGELL JJ·11 Aug 1988·17p·

Accident compensation - Calculation of pre-injury earnings - Worker's ordinary time rate of pay for worker's normal number of hours per week - Single concept - Whether concept includes overtime - Effect of change in rate of pay during period - Accident Compensation Act 1985 (No 10191), s95(1).

Practice and procedure - Accident compensation - Appeal to Full Court - Notice of appeal in prescribed form required to be given - No notice prescribed - Whether notice in apprapriate form prerequisite to appeal - Accident Compensation Act 1985 (No 1019:1), s68.

STATE ELECTRICITY COMMISSION OF VICTORIA v EQUAL OPPORTUNITY BOARDVR 480

KAYE J·29 Sept 1988·5p·

Administrative law - Equal opportunity - Allegation that supervisor discriminated against fellow employee - Whether employer liable for that discrimination - Equal Opportunity Act 1984 (No 10095), s34(1).

VICTORIAN TAXI ASSOCIATION INC v ROAD TRAFFIC AUTHORITYVR 593

FULLAGAR J·13 Oct 1988·15p·

Administrative law - Taxi-cab licences - Power of Road Traffic Authority to attach conditions to licences - Whether authority has power to vary contractual arrangements between lessor-owners and lessee-drivers during currency of licence by varying attached conditions - Transport Act 1983 (No 9921), s144, s146.

ATTORNEY-GENERAL FOR THE STATE OF VICTORIA v THE MAYOR, COUNCILLORS AND CITIZENS OF THE CITY OF GEELONG; THE PRESIDENT, COUNCILLORS AND RATEPAYERS OF THE SHIRE OF CORIO v SIMMONDS; THE PRESIDENT, COUNCILLORS AND RATEPAYERS OF THE SHIRE OF KYNETON v SIMMONDSVR 641

O'BRYAN, KING and VINCENT JJ·26 Oct 1988·21p·

Local government - Resubdivision of municipal districts - Reduction in number of councillors - Orders by Governor in Council acting on recommendation of minister - Notice of proposal - Whether mandatory or directory - Reasonableness of content and timing of notice - Effect of failure to give reasonable notice - Local Government Act 1958 (No 6299), s24F.

Administrative law - Privative clauses - Order having like force and effect as if enacted in Act - Order not to be deemed invalid on account of non-compliance with preliminary matters - Whether clauses apt to validate order based on recommendation which is null and void - Local Government Act 1958 (No 6299), s28.

DEPARTMENT OF AGRICULTURE AND RURAL AFFAIRS v BINNIEVR 836

YOUNG CJ, MARKS and TEAGUE JJ·9 Dec 1988·10p·

Administrative law - Freedom of information - Exempt documents - Disclosure reasonably likely to endanger life or physical safety - "Reasonably likely" Freedom of Information Act 1982 (No 9859), s31(1)(e).

MAYNE NICKLESS LTD v MACKINTOSHVR 878

MURPHY, GOBBO and PHILLIPS JJ·17 Feb 1989·20p·

Accident compensation - Construction - Independent contractor - "Deemed worker" - "Deemed employer" - "Relevant contract" - Earnings - "Pre-injury average weekly earnings" - Ascertainment where "deemed" worker - "Partial incapacity" - Entitlement to compensation - Onus of proof - Accident Compensation Act 1985 (No 10191), s9, s94, s95, s113.

ACCIDENT COMPENSATION COMMISSION v DETARVR 931

YOUNG CJ, CROCKETT and GRAY JJ·14 Mar 1989·9p·

Accident compensation - Estoppel - Res judicata - Recommendation by conciliation division - Effect of recommendation - Whether party estopped per rem judicatam - Whether time limit for application for determination mandatory - Accident Compensation Act 1985 (No 10191), s52, s71, s71A, s82, s101, s103, s108, s109, s117.

MAY v TRANSPORT ACCIDENT COMMISSIONVR 981

FULLAGAR, MCGARVIE and MARKS JJ·22 Mar 1989·8p·

Accident compensation - Motor vehicles - Compensation for injury - Injury arising out of use of motor vehicle - Child placed in car in anticipation of and preparatory to departure - Car engine being adjusted by mechanics - Child suffering brain damage from inhalation of carbon monoxide - "Transport accident" - Transport Accident Act 1986 (No 111), s3.

HARMSWORTH v THE STATE CORONERVR 989

NATHAN J·9 Mar 1989·12p·

Coroners - Inquest - Powers of investigation, comment and recommendation - Extent of powers - Matters "connected with" death - Coroner's Act 1985 (No 10257), s17(1), s19(2), s21(2).

Administrative law - Remedies - Declaration - Prohibition - Whether State Coroner amenable.

ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY LTD v NEWTONS TRAVEL SERVICES PTY LTDVR 37

YOUNG CJ, MURPHY and HAMPEL JJ·13 Feb 1989·4p·

Appeal - Appeal by successful party - Regular judgment - Application by successful party to set aside judgment - Powers of court - When exercised - Injustice to successful party.

DEPARTMENT OF PREMIER AND CABINET v BIRRELL (No 2)VR 51

MURPHY, GOBBO and PHILLIPS JJ·17 Feb 1989·17p·

Administrative law - Freedom of information - Access to documents - Exemption - Cabinet documents - Enactment precluding disclosure of "Cabinet information" - Whether enactment applying to information of particular kind - Freedom of Information Act 1982 (No 9859), s28(1), s38 - Public Service (Unauthorised Disclosure) Regulations 1987, reg3.

Statute - Regulations - Validity - Severability - Public Service Act 1974 (No 8656), s73 - Interpretation of Legislation Act 1982 (No 10096), s22(1) - Public Service (Unauthorised Disclosure) Regulations 1987, reg3.

SAVAGE v CRIMES COMPENSATION TRIBUNALVR 96

MCGARVIE, BEACH AND HAMPELL JJ·30 Jun 1989·6p·

Criminal law - Compensation - Entitlement to - "Victim" - Policewoman injured whilst trying to find and arrest offender whom she had not seen - Criminal Injuries Compensation Act 1983 (No 9992), s3.

Administrative law - Administrative Appeals Tribunal - Appeals to Supreme Court - Question of law - Whether decision open to tribunal - Administrative Appeals Tribunal Act 1984 (No 10155), s52.

ACCIDENT COMPENSATION COMMISSION v FLETCHERVR 102

FULLAGER, MCGARVIE and MARKS JJ·16 Jun 1989·19p·

Accident compensation - Industrial deafness - Partial loss of hearing Attributable to exposure before and after appointed day - Whether whole of compensation assessable under s98 of Accident Compensation Act 1985 Accident Compensation Act 1985 (No 10191), s4, s5, s82, s88, s98 and s129.

ODCO PTY LTD v ACCIDENT COMPENSATION COMMISSIONVR 178

MURPHY, MARKS and BEACH JJ·16 Jun 1989·15p·

Accident compensation - Levy - Labour agency - Whether employer - Whether liable to pay levy - Accident Compensation Act 1985 (No 10191), s8, s9, s186, s187.

LEE v NAISMITHVR 235

SOUTHWELL J·26 May 1989·8p·

Administrative law - Pharmacy Board - Jurisdiction - Conduct discreditable to pharmacist - Alleged breaches of statute and regulations - Whether board may inquire when possibility of criminal proceedings - Pharmacists Act 1974 (No 8593), s18.

STATE INSURANCE OFFICE v JURA CONCRETE PUMPINGVR 331

MCGARVIE, BEACH and HAMPEL JJ·30 Jun 1989·4p·

Accident compensation - Motor vehicles - Compensation for injury - Mobile concrete pumping unit Whether - "motor car - "Whether used in a way incidental to its normal use - Whether injury caused by or arising out of use of motor car - Motor Car Act 1958 (No 6325), ss. 3,46(1).

SIMJASE PTY LTD v CITY OF MELBOURNEVR 350

MCGARVIE J·6 Jul 1989·5p·

Administrative law - Natural justice - Decision by municipal council to refuse to make application for order under s8(2) of the Shop Trading Act 1987 - Whether council bound to accord natural justice to party requesting that application be made - "Tribunal" - Administrative Law Act 1978 (No 9234), s2, s3.

EDUCATION DEPARTMENT v BRYDEN and OthersVR 519

MURPHY, MARKS and GOBBO JJ·29 Aug 1989·8p·

Accident compensation - Death - Prior recovery of damages at common law by deceased - Whether bar to application for compensation by dependants - Workers Compensation Act 1958 (No. 6419), s63(3), s64(c).

ANDERSON v TEBONERAS and AnotherVR 527

ORMISTON J·6 Jun 1989·19p·

Administration and probate - Family provision - Application by - adult ex nuptial son for further provision - Principles applicable - Nature of special need or claim - Paternity - Originating motion for declaration - Status of Children Act 1974 (No. 8602), s7, s10.

STANNARD v SPERWAY CONSTRUCTIONS PTY LTDVR 673

BROOKING J·2 Oct 1989·10p·

Arbitration - Removal of arbitrator - Misconduct - Arbitrator informed of offer of compromise during hearing - Refusal to disqualify - Whether refusal constituted misconduct, incompetence or unsuitability - Commercial Arbitration Act 1984 (No. 10167), s4, s44.

WELLBRIDGE v JACKSONVR 689

MURPHY, MARKS and GOBBO JJ·29 Aug 1989·13p·

Accident compensation - Damages - Personal injuries - Nonpecuniary loss Plaintiff injured when struck by motor vehicle on his way to work - Whether amount of damages restricted to $140,000 - Whether damages should be reduced by the amount of compensation paid under Accident Compensation Act 1985 - Construction of Act - Accident Compensation Act 1985 (No. 10191), s135.

KUDEWEH v T and J KELLEHER BUILDERS PTY LTDVR 701

ORMISTON J·9 Dec 1988·19p·

Arbitration - Notice of dispute - Service - Course of "ordinary mail" - Deemed receipt - Appointment of arbitrator by third party - Requisites of valid nomination - Assent of nominee - Notification to nominee and parties.

Re WHITCHURCHVR 719

YOUNG CJ·7 Sept 1989·4p·

Administration and probate - Removal of executor - Unfit or incapable - Executor unable to be found - Completed administration - Appointment of new trustees - Administration and Probate Act 1958 (No. 6191), s34(1) - Trustee Act 1958 (No. 6401), s48(1).

KORIN v McINNESVR 723

BROOKING J·10 Oct 1989·8p·

Arbitration - Removal of arbitrator - Incompetence - Unsuitability - Arbitrator indisposed during hearing - Request that arbitrator stand down - Refusal of request - Whether arbitrator incompetent - Commercial Arbitration Act 1984 (No. 10167), s4, s44(c).

PROUST v THE PRESIDENT OF THE EQUAL OPPORTUNITY BOARDVR 738

VINCENT J·4 Oct 1989·7p·

Administrative law - Equal opportunity - Equal Opportunity Board - Power to make interim orders - Complaints not before board - Failure of board to advert to relevant considerations when giving reasons - Whether exercise of discretion miscarried - Equal Opportunity Act 1984 (No 10095), s45A.

THE CITY OF ST KILDA v EVINDON PTY LTDVR 771

KAYE, MCGARVIE and ORMISTON JJ·3 Nov 1989·9p·

Administrative law - Administrative Appeals Tribunal - Natural justice - Bias - Private communication by counsel for one party to presiding member of tribunal without knowledge of other parties - Principles of procedural fairness applicable to statutory tribunals.

NESTLE AUSTRALIA LTD v THE PRESIDENT AND MEMBERS OF THE EQUAL OPPORTUNITY BOARDVR 805

VLNCENT J·6 Nov 1989·15p·

Administrative law - Equal opportunity - Employment - Discrimination on ground of lawful political belief or activity - Complaint - Jurisdiction of Equal Opportunity Board to entertain - Documents to which board may have resort to determine whether jurisdiction exists - "Political" - Equal Opportunity Act 1984 (No. 10095), s4, s21, s44, s46.

QUALITY PACKAGING SERVICE PTY LTD v THE CITY OF BRUNSWICKVR 829

BEACH J·28 Nov 1989·5p·

Administrative law - Order for review - Application to set aside - Whether statutory provisions mandatory - Whether orders for review a nullity for breach - Administrative Law Act 1978 (No. 9234), s3, s4 and s5.

ACCIDENT COMPENSATION COMMISSION v CITY OF HORSHAMVR 853

YOUNG CJ, FULLAGAR and NATHAN JJ·20 Oct 1989·6p·

Accident compensation - Levy payable by employer - Power of Accident Compensation Commission to reduce levy - Establishment continuously in operation since 1 September 1985 - Employer transferring same operations from one establishment to another after 1 September 1985 - Whether establishment continuously in operation - Accident Compensation Regulations 1985, reg31(3).

PULLICINO v OSBORNEVR 881

FULLAGAR J·13 Sept 1989·7p·

Administrative law - Harness racing stewards - Suspension of trainer's licence - Reasons for suspension - Whether stewards required to provide reasons for decision - "Tribunal" - "Decision" - Administrative Law Act 1978 (No 9234), s2, s8 - Racing Act 1958 (No 6353), s83NA.

MOORE v GUARDIANSHIP AND ADMINISTRATION BOARDVR 902

GOBBO J·19 Dec 1989·17p·

Administrative law - Statutory tribunal - Guardianship and Administration Board - Natural justice - Investigator's report provided to board - Report prejudicial to interests of party - Duty of board to make meaningful disclosure of report - Refusal to contact potential witness when requested to do so by party - Whether denial of natural justice.

Administrative law - Statutory tribunal - Guardianship and Administration Board - Evidence - Exemption - Board not bound by rules or practice as to evidence but may inform itself in such manner as it thinks fit - Whether exemption qualified by rules of natural justice - Guardianship and Administration Board Act 1986 (No 58), s10(3).

WATERS v RIZKALLA1 VR 12

CUMMINS J·24 Jan 1990·7p·

Administrative law - Equal opportunity - Discrimination - Decision to impose a condition or requirement - Decision not implemented - Whether decision can constitute "discrimination" - Equal Opportunity Act 1984 (No. 10095), s17.

DIRECTOR OF PUBLIC PROSECUTIONS v SMITH1 VR 63

KAYE , FULLAGAR and ORMISTON JJ·13 Dec 1989·17p·

Administrative law - Freedom of information - Request for access to documents - Exemptions from disclosure - Internal working documents - Documents which would be exempt from disclosure in legal proceedings on ground of legal professional privilege - Documents which would unreasonably disclose "personal affairs" - Power of Administrative Appeals Tribunal to order disclosure of exempt documents - "Public interest" - Freedom of Information Act 1982 (No. 9859), s30(1), s32, s33(1), s50(4).

THE HERALD AND WEEKLY TIMES LTD v THE ATTORNEY GENERAL1 VR 95

FULLAGAR J·24 Jan 1990·5p·

Administrative law - Judicial review - Decision of coroner to suppress publication of evidence - Whether decision operating in law to determine question affecting rights - Administrative Law Act 1978 (No. 9234), s2, s3 - Coroners Act 1985 No. 10257), s58.

METROPOLITAN TRANSIT AUTHORITY v WAVERLEY TRANSIT PTY LTD1 VR 181

MURPHY , MARKS and GOBBO JJ·8 Dec 1989·31p·

Administrative law - Commercial passenger licence - Cancellation - Whether licence relates to operation of vehicle as public commercial passenger vehicle under contract - Transport Act 1983 (No. 9921), s147, s148. Administrative law - Natural justice - Circumstances in which compliance with requirements of natural justice necessary - Tenders for contracts to operate bus service - Whether statutory authority obliged to accord natural justice to tenderer when determining whether to accept or reject competitive tenders - Tenderer operating service subject of tender. Contract-Termination-Notice-When notice of termination to be given. Equity - Promissory estoppel - When estoppel may be set up - Renewal of contract between statutory authority and bus proprietor to operate bus service - Purported termination of contract by authority in breach of expectations created by authority - Relief.

SHIRE OF BEECHWORTH v THE ATTORNEY-GENERAL1 VR 325

VINCENT J·7 Jun 1990·8p·

Administrative law - Nahual justice - Revocation of place for holding a Magistrates' Count - Whether legitimate expectation that appointment would not be revoked - Locus standi of local residents - Whether discretion to revoke fettered or unfettered - Whether decision reviewable - Magistrates' Courts Act 1971 (No. 8184), s5(1).

NEVILLE SMITH TIMBER Industries PTY LTD v ALEN2 VR 1

KAYE, MURPHY and BROOKING JJ·21 Jun 1990·10p·

Accident compensation - Damages - Whether statutory limit of $140,000 subject to indexation - Whether interest allowable on maximum damages of $140,000 - Accident Compensation Act 1985 (No 10191), ss100(1),135(3A).

KENNETT V ANASTASIOU2 VR 57

KAYE and BROOKING JJ·29 Jun 1990·6p·

Accident compensation - Worker - Injuries suffered in car accident during journey to work - Compensation payments received - Claim for damages at common law - Whether damages should be reduced by amount of compensation - Accident Compensation Act 1985 (No 10191), s135(4A).

Statutes - Interpretation - Retrospective operation - Context - Accident Compensation Act 1985 (No 10191), s 135(4A).

CPS MANAGEMENT PTY LTD v THE PRESIDENT AND MEMBERS OF THE EQUAL OPPORTUNITY BOARD2 VR 107

MARKS J·10 Aug 1990·10p·

Administrative law - Equal opportunity - Employment - Discrimination on ground of lawful political belief or activity - Complaint - Jurisdiction of Equal Opportunity Board to entertain - "Political" - Equal Opportunity Act 1984 (No 10095), ss4,21,44.

ABBOTT v TRANSPORT ACCIDENT COMMISSION2 VR 116

CROCKETT, MCGARVIE and SOUTHWELL JJ·29 Jun 1990·14p·

Accident compensation - Motor Vehicles - Compensation for injury - Whether injury caused by or arose out of use of motor vehicle - Transport Accident Act 1986 (No 111), s3.

BORG v SMITH2 VR 161

SOUTHWELL J·30 Apr 1990·7p·

Administrative law - "Tribunal" - Administrators of superannuation fund established by statutory authority - Whether administrators a "tribunal" - Whether decisions of administrators reviewable - Administrative Law Act 1978 (No. 9234), s2.

MELVILLE HOMES PTY LTD v PRIME CERAMICS SERVICES PTY LTD2 VR 211

SORTHWELL J·12 Jul 1990·3p·

Arbitration - Consolidation of two arbitrations - Application of "all the parties" - Commercial Arbitration Act 1984 (No. 10167), s. 26.

GC WOOD and SON (AUSTRALIA) PTY LTD v CULLEN2 VR 214

YOUNG CJ, O'BRYAN and VINCENT JJ·24 Sept 1990·13p·

Accident compensation - Accident Compensation- Tribunal - Power to declare rights as to future expenses - "Medical service" - "Attendant care" - "Rehabilitation" - "Curative appliance" - Workers Compensation Act 1958 (No. 6419), s26.

Statutes - Interpretation - Definition of term - Whether inclusive or exhaustive - "Medical service" - Workers Compensation Act (No. 6419), s26.

KEEFFE v McINNES2 VR 235

MARKS J·20 Aug 1990·18p·

Administrative law - Equal opportunity - Discrimination - Physical impairment - Sporting activity - Licence to compete in motor racing - Burden of proof - Standard of proof - Relevant considerations - Damages - Equal Opportunity Act 1984 (No. 10095), s17, s33(1), s33(3), s39(a), s39(da) and s46(2).

ACCIDENT COMPENSATION COMMISSION v McINTOSH2 VR 253

CROCKETT , MURPHY and CUMMINS JJ·14 Aug 1990·12p·

Accident compensation - "Injury" - Cerebral haemorrhage - Whether "physical injury" Accident Compensation Act 1985 (No. 10191), s5, s82(1), s83(2)(a)(ii).

VICTORIA POLICE PISTOL CLUB INC v KEOGH2 VR 277

CROCKETT , MURPHY and SOUTHWELL JJ·25 Jun 1990·8p·

Administrative law - Judicial review - Decision of Registrar of Firearms - Discretion to grant or withhold licence - Scope - Irrelevant considerations - Improper delegation - Firearms Act 1958 (No. 6251), s22(2), s50.

ACCIDENT COMPENSATION COMMISSION v TALARICO2 VR 295

MURPHY , FULLAGAR and HAMPEL JJ·17 Oct 1990·4p·

Accident compensation - Appeals to Supreme Court from Accident Compensation Tribunal - Jurisdiction - When determination made by tribunal - When notice of intention to appeal from determination must be given - Effect of failure to give notice within prescribed time after determination made - Accident Compensation Act 1985 (No 10191), s68, s72.

SHEPPARTON PETROLEUM CARRIERS PTY LTD v JOHNSTON and Another2 VR 299

O'BRYAN J·12 Jul 1990·12p·

Administrative law - Permit authorising commercial goods vehicle to operate in manner not permitted by its licence - Application to Roads Corporation for permit - Refusal - Whether irrelevant considerations taken into account - Determination of policy by minister - Whether failure to have regard to relevant considerations - Hardship occasioned to applicant by refusal - Period during which applicant had conducted business - Transport Act 1983 (No 9921), s189.

ACCIDENT COMPENSATION COMMISSION v CROOM2 VR 322

YOUNG CJ , O'BRYAN , VINCENT JJ·24 Sept 1990·11p·

Administrative law - Freedom of information - Request for access to documents - Exemptions from disclosure - Investigator's report - Medical report - Whether disclosure would prejudice proper administration of the law - Whether disclosure would disclose identities of confidential sources of information - Whether documents contained information of business, commercial or financial nature - "Disadvantage" - Freedom of Information Act 1982 (No 9859), s31(1)(a), s31(1)(c), s34(1), s34(4)(a).

ROBERTSON v ACCIDENT COMPENSATION COMMISSION2 VR 333

YOUNG CJ , CROCKETT and SOUTHWELL·17 May 1990·8p·

Accident compensation - Calculation of pre-injury earnings Worker's "ordinary time rate of pay" - Whether overtime and shift allowances included - Whether industrial award fixed ordinary time rate of pay - Accident Compensation Act 1985 (No 10191), s95.

AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD v HUNTER BNZ FINANCE LTD2 VR 407

MURPHY , FULLAGAR and VINCENT JJ·20 Nov 1990·10p·

Conversion - Cheque - Measure of damages - Subsequent payments to drawer - Whether payments should be taken into account to reduce damages.

Appeal - Arguments not advanced in court below - Whether appellate court should allow new contentions for conclusions of fact to be advanced.

NINKOVIC v PAJVANCEK2 VR 427

MARKS J·24 Oct 1990·4p·

Accident compensation - "Serious injury" - What constitutes "serious injury" - "Whiplash" - Transport Accident Act 1986 (No 111), s93(17).

STATE ELECTRICITY COMMISSION v COMMISSIONER FOR EQUAL OPPORTUNITY and Others1 VR 79

GOBBO J·30 Apr 1991·12p·

Administrative law - Equal opportunity - Commissioner for Equal Opportunity - Complaints of discrimination - Grant of extension of time within which to make complaint - Request for reasons for decision - Reasons prepared by successor of decision maker - Whether decision to extend time a "decision" for purposes of Administrative Law Act 1978 - Whether commissioner a "tribunal" - Whether successor can provide commissioner's reasons - Whether reasons provided adequate - Remedy for failure to provide reasons - Whether s8(4) of Administrative Law Act 1978 a code - Equal Opportunity Act 1984 (No. 10095), s44(6) - Administrative Law Act 1978 (No. 9234), s2, s3, s8.

PUBLIC TRANSPORT CORPORATION v WATERS and Others1 VR 151

J D PHILLIPS J·28 Aug 1990·38p·

Administrative law - Equal opportunity - Discrimination - Impairment - Introduction of scratch tickets and driver - only trams in public transport system - Whether discriminatory against disabled - Imposition of "requirement or condition" which was "not reasonable" - Matters relevant to reasonableness - Whether conduct necessary to comply with direction of minister and director-general - Orders of board - Whether void for uncertainty - Equal Opportunity Act 1984 (No 10095), s17(5), s29, s39(e)(ii) - Transport Act 1983 (No 9921), s31.

TRANSPORT ACCIDENT COMMISSION v TRELOAR and Others1 VR 447

MCGARVIE ; BROOKING ; GOBBO JJ·26 Apr 1991·21p·

Accident compensation - "Transport accident" - "Incident directly caused by or directly arising out of the driving of motor car" - "Driving" - Whether driving includes being in charge of motor car - Transport Accident Act 1986 (No 111), s3(1) - Transport Accident (Amendment) Act 1988 (No 32), s4(1)(c)(ii).

AMERICAN HOME ASSURANCE CO LTD v TRANSPORT ACCIDENT COMMISSION1 VR 481

MURPHY , FULLAGAR and O'BRYAN JJ·22 May 1991·4p·

Accident compensation - Motor accident - Payment of compensation by insurer - Claim for reimbursement by insurer - Amount payable - Workers Compensation Act 1958 (No. 6149), s8(2B), s8(2D).

Re KEITLEY1 VR 583

COLDREY J·9 Aug 1991·6p·

Administration and probate - Public policy - Manslaughter of testator by wife beneficiary - Whether wife's interest under testator's will forfeited.

ACCIDENT COMPENSATION COMMISSION v HAWKINS1 VR 589

MURPHY and MCGARVIE JJ·30 Apr 1991·7p·

Accident compensation - Assessment of injury to worker - Loss of mental powers - "Involving inability to work" - Whether necessary to show inability to perform work at all - Partial incapacity - Whether necessary to show total loss of mental powers - Inability to do usual work - Accident Compensation Act 1985 (No. 10191), s98.

McDONALD v COMMISSIONER OF BUSINESS FRANCHISES1 VR 611

MURPHY , FULLAGAR and O'BRYAN JJ·27 Aug 1991·11p·

Statute - Interpretation - Amending Act - Removal of prohibition on wholesale of tobacco by unlicensed persons - Power to recover licence fee for prohibition period after prohibition removed - Notice of assessment - Validity - Assessment challenged in proceedings other than appeal or review - Whether assessment duly made - Conclusiveness of assessment - Business Franchise (Tobacco) Act 1974 (No. 8597), s19A(1)(d), s19B, s19E(2) - Interpretation of Legislation Act 1984 (No. 10096), s14(2)(e).

Administrative law - Assessment under Business Franchise (Tobacco) Act 1974 - Power to make assessment - Validity - Conclusiveness of assessment - Business Franchise (Tobacco) Act 1974 (No. 8597), s19A(1)(d), s19B, s19E(2).

COMMISSIONER OF BUSINESS FRANCHISES v ALIBRANDI1 VR 622

MURPHY , FULLAGAR and O'BRYAN JJ·27 Aug 1991·9p·

Administrative law - Licence fee - Notice of assessment - Validity - Assessment challenged in proceedings other than appeal or review - Whether assessment dub made - Conclusiveness of assessment not under commissioner's hand - Business Franchise (Tobacco) Act 1974 (No. 8597), s19A(1)(d), s19B, s19E(2).

BUFALO v LEGAL AID COMMISSION OF VICTORIA and Others1 VR 631

MURPHY J·19 Aug 1991·6p·

Legal aid - Decision of Legal Aid Commission - Review - Legal aid review committee - Whether decision of committee final and conclusive - Legal Aid Commission Act 1978 (No. 9245), s35.

Administrative law - Legal aid review committee - Natural justice - Right to hearing - Whether oral hearing necessary - Legal Aid Commission Act 1978 (No. 9245), s35.

RUKAVINA v INCORPORATED NOMINAL DEFENDANT1 VR 677

CROCKETT and SOUTHWELL JJ·18 Oct 1991·14p·

Negligence - Contributory negligence - Whether contributory negligence involves breach of duty - Damages - Assessment - Apportionment of responsibility - Unreasonable verdict - Improper compromise by jury - Reduction of damages by amount of compensation paid - Accident Compensation Act 1985 (No. 10191), s135(4A).

Appeal - Misdirection - Consequences of misdirection - Risk of wrong verdict - Whether new trial to be ordered - Significance of failure of counsel to object.

ACCIDENT COMPENSATION COMMISSION v HAYNES1 VR 691

GOBBO J·18 Oct 1991·5p·

Accident compensation - Action by Accident Compensation Commission for indemnity - Nature of action - Whether action in tort or contract - Accident Compensation Act 1985 (No. 10191), s138 - Supreme Court Rules, r47.02.

ACCIDENT COMPENSATION COMMISSION v ZURICH AUSTRALIAN INSURANCE LTD2 VR 1

CROCKETT , SOUTHWELL and ASHLEY JJ·28 Jun 1991·45p·

Accident compensation - Worker - Contribution injury - Determination of liability of contributing insurer - Relevant date - Assessment - Whether entitlement to compensation extinguished by fully satisfied common law settlement - Workers Compensation Act 1958 (No 6419), s63(3), s64, s71(1), s72 - Accident Compensation Act 1985 (No 10191), s129B(6)(a)(iii), s135.

Accident compensation - Assessment by commission - Review by tribunal - Refund due in consequence of review - Whether and from when interest is payable - Accident Compensation Act 1985 (No 10191), s129G(11), s129G(12), s129G(13), s129G(14).

Statutes - Interpretation - Use of extraneous material as aid to interpretation - Interpretation of Legislation Act 1984 (No 10096), s35.

Practice and procedure - Appeal - Accident compensation - Order for refund - Application for stay pending appeal made by commission - Whether discretion to grant stay - Accident Compensation Act 1985 (No 10191), s61(7).

CHIARELLA v ACCIDENT COMPENSATION COMMISSION2 VR 103

MURPHY, FULLAGAR and O'BRYAN JJ·17 Sept 1991·6p·

Accident compensation - Statutory scheme - Application out of time - Amending Act giving discretion to extend time - Procedural amendment - Whether amendment applicable to claim - Accident Compensation Act 1985 (No 10191), s56(8), s117(6) - Accident Compensation (General Amendment) Act 1989 (No 64), s31(4), s32(1), s33(1).

Statutes - Retrospective operation - Procedural amendment - Interpretation of Legislation Act 1984 (No 10096), s14(2).

Practice and procedure - Case stated - Costs.

HUMPHRIES and Another v POLJAK2 VR 129

CROCKETT , MCGARVIE and SOUTHWELL JJ·30 Aug 1991·52p·

Accident compensation - Transport accident - Statutory compensation scheme - Threshold test to common law proceedings - Meaning of "serious injury" - Transport Accident Act 1986 (No. 111), s93(4), s93(6) and s93(17).

Practice and procedure - Appeal to Full Count from County Court - Function of Full Court on appeal - County Court Act 1958 (No. 6230), s74.

Statutes - Interpretation - Use of extrinsic materials - Parliamentary debates - Intention of legislature - Interpretation of Legislation Act 1984 (No. 10096), s35(b).

KOMESAROFF v LAW INSTITUTE OF VICTORIA and Another2 VR 257

MURPHY , MARKS and GOBBO JJ·10 Mar 1992·4p·

Legal practitioners - Solicitor - Practising certificate - Cancellation by Law Institute - Appeal to Supreme Court - Finality of judge's decision - Legal Profession Practice Act 1958 (No. 6291), s87.

Appeal - Appeal to Full Court - Decision of first instance court final and conclusive - Whether express words excluding appeal - Supreme Court Act 1986 (No. 110), s10(2) - Legal Profession Practice Act 1958 (No. 6291), s87(4).

BRYARLEY PTY LTD v FLETCHER and Another2 VR 272

TADGELL J·13 Feb 1992·7p·

Arbitration - Costs - Whether arbitrator has discretion as to applicable scale of costs - Arbitrator awarding costs to be taxed - Whether Supreme Court has jurisdiction to intercept order for taxed costs - Taxation of costs - Whether Taxing Master has discretion as to applicable scale of costs - Commercial Arbitration Act 1984 (No. 10167), s34, s47, s49.

Practice and procedure - Costs - Jurisdictional limits - Costs penalty rules for inappropriate jurisdiction - Applicability of costs penalty rules to arbitration proceedings - Supreme Court Rules, r63.24, r63.25.

BRICK AND PIPE INDUSTRIES LTD v OCCIDENTAL LIFE NOMINEES PTY LTD and Others2 VR 279

ORMISTON J , MCGARVIE , MARKS and BEACH JJ·20 Dec 1991·93p·

Companies - Powers - Assumptions of person dealing with company - Actual knowledge that assumption not correct - Effect of knowledge - Memorandum and articles of association - Assumption that memorandum and articles complied with - "Duomatic rule" - Seal - Affixing - Attesting signatures - Assumption of due sealing - Directors - Secretary - Holding out by company - Powers of directors - Authority - Directors' meetings - Resolution - Evidence - Minutes - Companies (Victoria) Code, s68, s68A - Property Law Act 1958 (No. 6344), s74.

Contract - Bill facility - Loan - Sham - Illegality - Back dating of documents - Stamp duty evasion - Attempt to mislead creditors - Companies (Victoria) Code, s230.

Indemnity - Whether "guarantee" or "security" - Companies (Victoria) Code, s230.

Practice and procedure - Pleading - Failure to plead allegation - Failure to lead evidence in accordance with pleading.

Appeal - Argument abandoned at trial - No findings of fact by trial judge.

Evidence - Certificate - Conclusive proof - Manifest error.

Re SHAW, Deceased2 VR 457

TADGELL J·13 Feb 1992·4p·

Administration and probate - Intestacy - Application for letters of administration - Mental incapacity of only person entitled to distribution - To whom grant should be made - English practice - Victorian practice - Administration and Probate Act 1958 (No.6191), s50 - Supreme Court (Probate and Administration) Rules 1985, O.1, r41.

ACCIDENT COMPENSATION COMMISSION v TILLEY AND OTHER2 VR 499

MARKS, SOUTHWELL and HEDIGAN JJ·29 May 1992·6p·

Accident compensation - Gradual process injury - before and after appointed day - Entitlement to compensation for entire period - Accident Compensation Act 1985 (No 10191), s82(1), (6).

LEIGHTON CONTRACTORS PTY PTD v KILPATRICK GREEN PTY LTD2 VR 505

FULLAGAR, MCGARVIE and ASHLEY JJ·22 Oct 1991·17p·

Arbitration - Award - Leave to appeal - Principles - "Nema" guidelines - Damages - Interest - Hungerford principle - Commercial Arbitration Act 1984 (No 10167), s31, s32, s38

ACCIDENT COMPENSATION COMMISSION v STATE INSURANCE OFFICE2 VR 522

MARKS, SOUTHWELL and HEDIGAN JJ·12 Jun 1992·9p·

Accident compensation - Contribution injury - Industrial deafness - Attributable to exposure before and after appointed day - Amount of contribution - Period in respect of which contribution liability relates - Accident Compensation Act 1985 (No 10191), s88(4), s126A, s129B(7) and s129B(8).

Re LA TROBE UNIVERSITY; Ex parte HAZAN1 VR 7

VISITOR TO LA TROBE UNIVERSITY, HIS EXCELLENCY, THE GOVERNOR, REVEREND, DOCTOR JD MCCAUGHEY·30 Mar 1992·8p·

Administrative law - La Trobe University - Petition seeking visitation, declarations and directions by Visitor - Powers of Visitor - Review of decisions and actions of university officers - Test to be applied - Degree obtained by fraud - Whether university has inherent power to revoke.

STATE BANK OF SOUTH AUSTRALIA v NICHOLLS AND OTHERS1 VR 259

ORMISTON J·7 Aug 1992·23p·

Contract - Credit - Regulated loan contract - Mortgage over fishing boat - "Farm machinery' - "Term loan" - "Pre determined credit charge" - "Fixed amount" - Whether exempt term loan may be re-opened - Regulated mortgage - Guarantee and indemnity - Whether guarantee and indemnity a regulated loan contract - Credit Act 1984 (No. 10097), s5, s11, s19, s30, s36, s89, s146 - Credit Regulations 1984, Reg5 - Credit Order No 15.

Administrative law - Injunction to restrain proceedings in inferior court or tribunal - Principles guiding exercise of court's jurisdiction to grant injunction.

DIX and Another v CRIMES COMPENSATION TRIBUNAL1 VR 297

FULLAGAR, BROOKING, and TADGELL JJ·12 Aug 1992·7p·

Administrative law - Administrative Appeals Tribunal - Appeal to Supreme Court - Question of law - Power of tribunal to extend time to apply for review - Whether acceptable explanation of delay in making application a condition precedent to exercise of power - (CTH) Administrative Appeals Tribunal Act 1984 (No 10155), s31(2).

ACCIDENT COMPENSATION COMMISSION v BOTEZATU1 VR 304

MARKS, SMITH AND ASHLEY, JJ·1 Oct 1992·11p·

Accident compensation - Disease due to nature of any employment - "Employment" - What is encompassed in employment - Classification of worker's employment - Whether employment may be defined in terms of increased risk - Accident Compensation Act 1985 (No 10191), s86.

Appeal - Appeal on question of law - Whether question of law identified in appeal - Accident Compensation Act 1985 (No. 10191), s61.

ACCIDENT COMPENSATION COMMISSION v ALGER1 VR 379

MARKS, SMITH AND ASHLEY JJ·28 Sept 1992·12p·

Accident compensation - Worker's "current weekly earnings" - "Actual earnings during the week" - Whether net profits of business conducted by worker constitute worker's "actual earnings" - Redemption of weekly benefits - Accident Compensation Act 1985 (No 10191), s5B(1), s93A, s115(2), and s115(6).

MARRINGTON and Others v MILLAR and Others1 VR 391

BROOKING, NATHAN, and BYRNE JJ·16 Sept 1992·15p·

Practice and procedure - Children's Court - Protection applications - Joint hearing of applications relating to different children - Jurisdiction to order - Whether denial of natural justice if ordered - Children and Young Persons Act 1989 (No 56), s3, s15, s24(1) and s24(2), s25, s63(e) and s63(f), s70(4), s82.

Administrative law - Judicial review - Prohibition - Lack of jurisdiction - Jurisdiction of Children's Court to order joint hearing - Natural justice - Whether possible risk of future injustice constitutes denial of natural justice - Supreme Court Rules, O.56

Administrative law - Judicial review - Evidence - Extraneous evidence - Evidence not before Children's Court - Admissibility and weight on application for judicial review.

TRANSPORT ACCIDENT COMMISSION v JONES1 VR 417

SOUTHWELL and TADGELL JJ·27 Oct 1992·6p·

Accident compensation - Transport accident - Period of entitlement to compensation of injured earner - Whether five days to be excluded from period must be earning days - Transport Accident Act 1986 (No 111), s43(1)(a), s44(1).

ACCIDENT COMPENSATION COMMISSION and Another v BALTICA GENERAL INSURANCE Co Ltd and Others1 VR 467

MARKS , ASHLEY , and HAYNE JJ·2 Nov 1992·35p·

Accident compensation - Workers' compensation - Statutory benefits increased - Increase applicable to pre-amendment injury - Employer's liability increased by "additional amount" - "Additional amount" payable by insurer on behalf of employer - Recompense from statutory fund for insurer - Contribution agreement between successive insurers - Whether relevant date is date of earliest or latest compensable injury - Whether recompense available to insurer only if payment made other than by virtue of contribution agreement or common law claim - Whether recompense available to insurer only if all injuries are pre-amendment injuries - Workers' Compensation Act 1958 (No 6419), s2A(3), s2C(5), s2C(7), s2D(1), s2D(2), s2G(1), s2G(3).

McDONALD v GUARDIANSHIP and ADMINISTRATION BOARD and Another1 VR 521

FULLAGAR , TADGELL and JD PHILLIPS JJ·5 Oct 1992·16p·

Administrative law - Review by Administrative Appeals Tribunal - Decision of Guardianship and Administration Board appointing administrator - Application for review by Administrative Appeals Tribunal - Nature of review - Functions of tribunal - Whether decision under review presumptively correct - Guardianship and Administration Act 1986 (No. 58), s4(2), s13, s19, s22, s24, s43, s46, s48, s61, s67 - Administrative Appeals Tribunal Act 1984 (No 10155), s25, s31, s32, s35, s36, s49, and s52.

HAZAN v LA TROBE UNIVERSITY [No 2]1 VR 568

TADGELL J·17 Nov 1992·5p·

Administrative law - Judicial renew - Review of judgment of visitor of university on petition - Grounds on which judgment may be renewed under Administrative Law Act - Administrative Law Act 1978 (No 9234), s14(2).

CHANDLERS PERSONNEL GROUP Ltd v ACCIDENT COMPENSATION COMMISSION2 VR 1

MARKS , SMITH , and ASHLEY , JJ·22 Sept 1992·9p·

Accident compensation - Employer's levy - Classification of employer's industry - "Activity" and "predominant activity" at establishment - Predominant activity determined by reference to work of employees at that establishment - Whether temporary staff deemed to work at establishment - Accident Compensation Act 1985 (No 10191), s181(3), and s182(1).

ACCIDENT COMPENSATION COMMISSION v JOHN VALVES PTY LTD2 VR 10

CROCKETT , SMITH , and ASHLEY , JJ·22 Sept 1992·18p·

Accident compensation - Workers' compensation scheme - Employer's levy - Classification of employer's industry - Contiguous areas - Separation of establishments at commission's discretion - Degree of separateness needed - "Predominant activity" in operations at establishment - Predominant activity determined by reference to work of employees at that establishment - Accident Compensation Act 1985 (No 10191), s181(1), s181(2), s182(1), s182(2), s187(2), s187(3) - Accident Compensation Regulations 1990, Sch 6.

THE UNIVERSITY OF MELBOURNE v ROBINSON2 VR 177

BROOKING and EAMES JJ·31 Mar 1993·15p·

Administrative law - Freedom of information - Request for access to documents - Exemption from disclosure - Documents containing information relating to "the personal affairs of any person" - Whether corporation can have "personal affairs" - Freedom of Information Act 1982 (No 9859), s33(1).

McDONALD v PACIFIC WASTE MANAGEMENT PTY LTD and Another2 VR 443

BROOKING , NATHAN and EAMES JJ·25 Mar 1993·15p·

Accident compensation - Transport accident - Injury in course of employment - Statutory compensation scheme - Damages in respect of "serious" injury - Whether damages confined to "journey" transport accident and not "workplace" transport accident - Accident Compensation Act 1985 (No. 10191), s135(1)(ac)(i) - Transport Accident Act 1986 (No. 111), s38(2), s93(10).

McDONALD v COMMISSIONER OF BUSINESS FRANCHISES; WAIN and HARRIS v COMMISSIONER OF BUSINESS FRANCHISES2 VR 632

FULLAGAR, J D PHILLIPS and ASHLEY JJ·28 May 1993·34p·

Statutes - Interpretation - Amending Act - Removal of prohibition on wholesale of tobacco by unlicensed persons - Power to recover amount of licence fee for prohibition period after prohibition removed - Whether power to assess survives amendment - Business Franchise (Tobacco) Act 1974 (No 8597), s19A(1)(d) - Interpretation of Legislation Act 1984 (No 1009C), s14(2)(e).

Administrative law - Assessment under Business Franchise (Tobacco) Act 1974 - Power to make assessment - Business Franchise (Tobacco) Act 1974 (No 8597), s19A(1)(d).

ESSO AUSTRALIA RESOURCES LTD and ORS v PLOWMAN and ORS1 VR 1

BROOKING , TADGELL and SMITH JJ·17 May 1993·40p·

Arbitration - Contract - Implied terms - Whether implied term that hearing be in private - Legal incident to particular class of contract - Custom of country - Broad equitable considerations - Whether implied term that information disclosed in arbitration is confidential - Difficulty in formulating general rule and exceptions - Declaration - Whether declaration appropriate - Declaration in vague or general terms - Declaration based on hypothetical facts - Stay of proceedings - Commercial Arbitration Act 1984 (No 10167), s14, s26, s47, s53.

SOBH v POLICE FORCE OF VICTORIA1 VR 41

BROOKING , NATHAN , and ASHLEY , JJ·25 Mar 1993·33p·

Administrative law - Freedom of information - Request for access to documents - Exemption from disclosure - Documents which, if disclosed, would "prejudice the ... proper administration of the law in a particular instance's - Whether "police briefs" exempt from disclosure - Freedom of Information Act 1982 (No 9859), s31(1)(a).

TRANSPORT ACCIDENT COMMISSION v CLARKE, TRANSPORT ACCIDENT COMMISSION v SMITH1 VR 117

FULLAGAR , MARKS , and JD PHILLIPS , JJ·18 Mar 1993·6p·

Accident compensation - Transport accident - Injury in course of employment - Statutory compensation scheme - Threshold test to common law proceedings - Whether particular decisions of Transport Accident Commission in relation to threshold test reviewable by Administrative Appeals Tribunal - Transport Accident Act 1986 (No 111), s34, s38, s47, s63, s77, and s93 - Accident Compensation Act 1985 (No 10191), s135.

Statutes - Interpretation - Use of amending Act in interpreting unamended sections of principal Act - Use of extrinsic materials - Parliamentary debates.

CITY OF CAMBERWELL v CAMBERWELL SHOPPING CENTRE PTY LTD1 VR 163

FULLAGAR , MARKS , and GOBBO , JJ·31 Mar 1992·31p·

Appeal - Full Court - Leave to appeal - Decision on issues of liability - No order pronounced - Whether a "determination" - Whether final or interlocutory - Supreme Court Act 1986 (No 110), s10, and s14(4)(b).

Local Government - Council - Powers - Contract - Whether contract an unlawful fetter on exercise of council's power - Withdrawal of development proposal - Local Government Act 1958 (No 6299), s811G, s811H, and s811J.

Contract - Best endeavours clause - Breach - Repudiation - Damages.

J AND C CABOT and ANOR v CITY OF KEILOR and ANOR1 VR 220

GOBBO J·2 Jul 1993·9p·

Administrative law - Costs - Administrative Appeals Tribunal - Appeal against issue of planning permit - Power of tribunal to award costs - Proceedings brought vexatiously or frivolously - Meaning of "proceedings" - Costs order against person who brought the proceedings - Costs order against non party who sponsored the bringing of the proceedings - Meaning of "sponsored" - Planning Appeals Board Act 1980 (No 9512), s34(2)(e), s58 - Planning and Environment Act 1987 (No 45), s150 - Administrative Appeals Tribunal Act 1984 (No 10155), s52.

PATERSON v PUBLIC SERVICE DISCIPLINARY APPEALS TRIBUNAL and ANOR1 VR 229

GOBBO J·20 Apr 1993·8p·

Administrative law - Public service - Public servant - Offence - Disciplinary proceedings - Appeal - Whether resignation is waiver or abandonment of right or appeal Public Service Act 1974 (No 8656), s59, s60, and s63.

SHIRE OF GISBORNE v KING and Another1 VR 364

NATHAN J·29 Jul 1993·7p·

Administrative law - Planning scheme - Alleged inconsistency between State and local sections - Destruction of native vegetation without permit - Alteration of topography without permit - Meaning of "track" - Planning and Environment Act 1987 (No 45), s7 - Gisborne Planning Scheme, State Section, CL3.8, CL5, CL7.2.3, CL7.4; Local Section, CL5D(v)(iii) and CL5D(vi), 38, 50, 90A.

CLANCY v DIRECTOR GENERAL OF THE DEPARTMENT OF COMMUNITY SERVICES VICTORIA1 VR 425

HARPER J·17 Sept 1993·7p·

Administrative law - Order to review - Intellectual Disability Review Panel - Intellectual disability - Assessment of "general intellectual functioning" - Material to be considered by panel - IQ tests - Standards of personal independence and social responsibility - "Wednesbury" unreasonableness - Intellectually Disabled Persons' Services Act 1986 (No 53), s3, and s8.

PETKOVSKI v GALLETTI1 VR 436

BROOKING , SOUTHWELL and TEAGUE JJ·20 Oct 1993·10p·

Accident compensation - Transport accident - Leave to bring common law proceedings - Serious injury - Aggravation of pre existing condition - Transport Accident Act 1986 (No 111), s93.

CURMI v McLENNAN1 VR 513

FULLAGAR , MARKS and GOBBO , JJ·15 Dec 1993·15p·

Negligence - Duty of care - Statutory duty - Whether breach of statute could constitute breach of common law dub of care - Dangerous article - Airgun left with unsupervised boys - Causation - Novus actus interveniens - Damages - Whether excessive - Firearms Act 1958 (No 6251), s29(2).

Appeal - Procedure - Proposed amendments to grounds of appeal - Alleged misdirections to jury - Transcript of judge's charge deficient.

SICILIANO v ACME KNITTERS AND DYERS PTY LTD1 VR 632

SOUTHWELL and O'BRYAN , JJ·9 Dec 1993·11p·

Accident compensation - Transport accident - Motor vehicle - Fork-lift - Whether intended to be used on a highway or in a public place - Objective test - Evidence of user - Accident Compensation Act 1985 (No 10191), s135(1)(ac) - Transport Accident Act 1986 (No 111), s3(1) - Road Safety Act 1986 (No 127), s3(1).

STATE ELECTRICITY COMMISSION OF VICTORIA v CASEY2 VR 216

GOBBO J·23 Dec 1993·16p·

Administrative law - Equal opportunity - Discrimination - Indirect discrimination - Impairment - Employment - Voluntary departure package - Exclusion of employees on WorkCare - Reasonableness of requirement - Onus of proof - Appeal from Equal Opportunity Board - Questions of law - Equal Opportunity Act 1984 (No. 10095), s17(1), s17(5), s49(4).

SCHWERIN v EQUAL OPPORTUNITY BOARD and Others2 VR 279

MCDONALD J·17 Nov 1993·11p·

Appeal - Administrative Tribunals - Equal Opportunity Board - Appeal to Supreme Court - Procedure - Leave to appeal out of time - Exceptional circumstances - Appeal from master - Equal Opportunity Act 1984 (No. 10095), s49(4) - Magistrates' Court Act 1989 (No. 51), s109 - Supreme Court Rules, O.58, Pt3, r77.05.

DORNAUF v THE STEWARDS OF THE HARNESS RACING BOARD2 VR 302

TADGELL J·1 Nov 1993·11p·

Administrative law - Judicial review - Ultra vires - Defective exercise of power - Rules of Harness Racing - Rule providing for levels of prohibited substances to be determined by controlling body - Whether impermissible sub-delegation of rule-making power - Uncertainty and unreasonableness - Whether purported determination under rules effective - Racing Act 1958 (No. 6353), s49, s83L(3).

METROPOLITAN FIRE BRIGADES BOARD v SCHIAVELLO BROS IMPORTS PTY LTD and Another2 VR 328

BEACH J·9 Feb 1994·5p·

Administrative law - Practice and procedure - Jurisdiction of Magistrates' Court - Metropolitan Fire Brigades Board - Fees for false fire alarm - Determination by Metropolitan Fire Brigades' Board of whether reasonable excuse for alarm - Appeal to Administrative Appeals Tribunal - Fees recoverable in Magistrates' Court - Whether Magistrates' Court had jurisdiction to determine question of reasonable excuse - Metropolitan Fire Brigades Act 1958 (No. 6315), s32D, s66A.

NAURU PHOSPHATE ROYALTIES TRUST v MATTHEW HALL MECHANICAL AND ELECTRICAL ENGINEERS PTY LTD and ANOR2 VR 386

SMITH J·5 Aug 1992·25p·

Arbitration - Removal of arbitrator - Misconduct - Denial of natural justice - Refusal of arbitrator to order further and better particulars - Total loss claim - Particulars of nexus between events and time/money consequences - Abuse of process - Court's power to order further and better particulars - Relevant considerations - Commercial Arbitration Act 1984 (No. 10167), s4, s44, s47.

AVCO FINANCIAL SERVICES LTD v ABSCHINSKI and ORS; AVCO FINANCIAL SERVICES LTD v ADONIS and ORS2 VR 659

FULLAGAR , SOUTHWELL and ORMISTON , JJ·1 Feb 1994·59p·

Consumer credit - Regulated loan contract - Statement of amount financed - Inclusion of valuation fee in amount financed - Whether a contravention of s16(1)(b) of the Credit Act 1984 - Failure to disclose commission charge - Debtor not liable to pay credit charge - Application by credit provider for reinstatement of credit charge - Credit Act 1984 (No 10097), s36(1), s42(1), s75, s85, s86, Sch 4 - Credit Regulations 1984 (No 449), Reg27.

Appeal - Appeal from discretionary decision of Credit Tribunal - Whether rehearing de novo - Whether to Full Court or to single judge - Credit (Administration) Act 1984 (No 10091), s85J - County Court Act 1958 (No 6230) - Supreme Court Rules, R58.01(2), R64.15(2).

Precedents - Stare decisis - Circumstances in which Full Court may depart from earlier Full Court decision.

LAGARNA PTY LTD and Others v BRIDGE WHOLESALE ACCEPTANCE CORPORATION (AUSTRALIA) LTD1 VR 150

TADGELL and CUMMINS , JJ·4 Mar 1994·6p·

Appeal - Procedure - Abandonment - Order that appeal not be taken to be abandoned - Discretion - Stay of execution - Security for costs - Trustee company - Supreme Court Rules Ch 1, R64.12, R64.17(2), and R64.18.

COPUR v ALCAN AUSTRALIA LTD1 VR 238

BROOKING , TADGELL and VINCENT , JJ·4 Jul 1994·9p·

Accident compensation - Worker - Damages - Non-pecuniary loss - Statutory limit on damages - Contributory negligence - Whether apportionment made to initial assessment or to statutory maximum - Accident Compensation Act 1985 (No 10191) s135, s135A - Wrongs Act 1958 (No 6420) s26(1).

TRANSPORT ACCIDENT COMMISSION v LOCASTRO1 VR 289

ORMISTON , JD PHILLIPS and FULLAGAR , JJ·19 Apr 1994·11p·

Accident compensation - Transport accident - Damages - Serious injury - Common law claim - Compensation claim statute-barred - Whether common law claim barred - s93 certificate - Impairment assessment - Transport Accident Act 1986 (No 111) s46A, s47, s68, and s93 - Transport Accident Amendment Act 1988 (No 32).

TRANSPORT ACCIDENT COMMISSION v JEWELL1 VR 300

TADGELL , ORMISTON and SMITH , JJ·7 Jul 1994·18p·

Accident compensation - "Transport accident" - Whether incident directly arose out of driving a motor vehicle - Meaning of "directly arising out of" - Transport Accident Act 1986 (No 111) s3(1).

CORNALL v AB (A Solicitor)1 VR 372

ORMISTON , COLDREY and O'BRYAN , JJ·28 Jun 1994·37p·

Legal practitioners - Solicitor - Misconduct - Grossly excessive fees Investigation by Secretary of Law Institute - Reference of matter by Secretary for hearing by Registrar or Solicitors' Board - Secretary's opinion that there "appears to have been misconduct" - Prima facie case to be established - Legal Profession Practice Act 1958 (No 6291) s38Q, s84.

Administrative law - Natural justice - Whether procedural fairness required in investigation - Whether opinion formed without taking into account relevant factors - Whether opinion reasonable.

BOWLES v COLES MYER LTD1 VR 480

ASHLEY J·15 Jun 1994·9p·

Accident compensation - Worker - Serious injury - Common law proceeding for damages - Whether determination of serious injury a precondition to commencement of common law proceeding - What constitutes a determination of degree of impairment - Accident Compensation Act 1985 (No 10191) s135A.

TRANSPORT ACCIDENT COMMISSION v HIPWELL1 VR 582

SMITH J·15 Aug 1994·17p·

Accident compensation - Transport accident - Death benefit - Meaning of "earner" - Eligibility for age pension - Substantive and procedural requirements - Transport Accident Act 1986 (No 111) s3(1), s57 - Social Security Act 1947 (Cth) s42, s43, s44, s47.

ALTMANN v DUNNING2 VR 1

FULLAGAR , MARKS and HEDIGAN JJ·26 Jun 1992·31p·

Practice and procedure - Trial - Jury - Power of trial judge to discharge jury and continue trial - Discretion - Supreme Court Rules - R1.14, R47.02.

Appeal - Finding of fact by trial judge - Circumstances in which finding can be disturbed on appeal.

Damages - Assessment - Personal injury - Home care services voluntarily provided to plaintiff - Whether assessment on gross or after-tax basis - Lost earning capacity - Pre-accident marriage prospects - Transport Accident Act 1986 (No. 111) - s172, s173, s174, s175.

VICTORIAN WORKCOVER AUTHORITY v GRE INSURANCE LTD2 VR 86

ORMISTON , JD PHILLIPS and O'BRYAN JJ·28 Jun 1994·26p·

Accident compensation - Contribution injury - Contribution by insurer - Assessment by commission of amount of contribution - Review by tribunal - Application for information about worker's medical treatment - Absence of consent from worker - Report by Recoveries Review Committee - Tribunal's power to release report - Tribunal's power to order medical practitoner to give evidence - Whether information of treatment after the ''appointed day'' may be obtained - Accident Compensation Act 1985 (No. 10191) s129i.

THE STATE OF VICTORIA v THE MASTER BUILDERS' ASSOCIATION OF VICTORIA2 VR 121

TADGELL , ORMISTON and EAMES , JJ·30 Sept 1994·55p·

Administrative law - Prerogative powers - Judicial review - Procedural fairness - Government task force - Scheme for elimination of collusive practices in building industry - Whether task force acted in performance of a public duty - Publication of "black list of building contractors debarred from tendering for government contracts - Whether legitimate expectation of entitlement to tender for and be awarded government contracts - Legitimate expectation as to business reputation - Whether contractors entitled to procedural fairness before publication of "black list - Collusive Practices Act 1965 (No. 7353) s5(3).

GREEN v JOHNSTONE2 VR 176

BEACH J·22 Feb 1995·5p·

Aborigines - Coroners - Autopsy - Application for an order that no autopsy be performed - Court's discretion - Relevance of Aboriginal cultural and religious law Coroners Act 1985 (No 10257) s29.

CORNALL v NAGLE2 VR 188

JD PHILLIPS J·25 Mar 1994·45p·

Legal practitioners - Solicitors - Unqualified person - Holding out as qualified to practise as a solicitor - Whether description 'attorney' implies legal qualification - Meaning of 'acting or practising as a solicitor' - Writing letters - Drawing, filling up and preparing instruments - Filing and serving court documents - Taking a step in litigation - Tasks which are 'purely ministerial' - Giving legal advice - Seeking to gain audience in court - Legal Profession Practice Act 1958 (No 6291) s90, s93, s110, s111 - Magistrates' Court Act 1989 (No 51) s100(6).

Agency and agents - Power of attorney - Authority of attorney - Instruments Act 1958 (No 6279) s104.

R v NGUYEN2 VR 277

CROCKETT ACJ , NATHAN and ASHLEY , JJ·25 May 1995·6p·

Appeal - Criminal law - Sentence by County Court for breach of community-based order - Whether right of appeal against sentence to Supreme Court - Crimes Act 1958 (No 6231) s567, s568(4) - Sentencing Act 1991 (No 49) s47, s105, s117(2) - Magistrates' Court Act 1989 (No 51) s83, s85, s86, s91.

Re BARKER2 VR 439

TADGELL J·21 Apr 1995·18p·

Administration and probate - Probate - Will made in Australia - Later foreign will - Whether later will revoked will made in Australia - Administration - Letters of administration annexing foreign will - Assets - Assets in Australia and overseas.

Wills and codicils - Revocation - Conflict of laws - Testator having foreign domicile - Whether Australian will revoked by later foreign will- Whether intention to revoke determined by lex domicilii or lex fori - Evidence - Extrinsic evidence of testator's intention - Whether admissible - Statements before and after execution of will.

ROADS CORPORATION v DACAKIS and ANOR; ROADS CORPORTATION v DACAKIS2 VR 508

BATT J·24 Feb 1995·40p·

Appeal - Appeal from determination of Land Valuation Board of Review - Appeal on question of law - Findings and inferences of fact - "Self-denying principle" - Land Acquisition and Compensation Act 1986 (No 121) s102(3).

Resumption and acquisition of land - Compulsory acquisition - Compensation - Market value - Value of residual land before and after acquisition - Solatium - Valuation expenses - Costs - Land Acquisition and Compensation Act 1986 (No 121) s41, s44, s90(1), s91, s95, s102(3).

TRANSPORT COMMISSION v NUGENT and ANOR1 VR 37

TADGELL , ORMISTON and SMITH JJ·7 Jul 1994·12p·

Arbitration and awards - Award - When made - Appeal - Time limit for appeal Seaman's compensation - Arbitration by County Court judge - Whether County Court proceeding Seamen's Compensation Act 1911 (Cth) s5, Sch 2 - Seamen's Compensation Regulations 1926 (Cth) Reg30, Reg31, Reg36 - County Court Act 1958 (No 62300) s74.

PETER ISAACSON PUBLICATIONS PTY LTD v VICTORIAN WORKCOVER AUTHORITY1 VR 49

BROOKING , SMITH and ASHLEY JJ·29 Jun 1995·16p·

Accident compensation - Accident Compensation Commission - Reclassification of establishment - Date of commencement of reclassification - Accident Compensation Tribunal - Power to review commission's decisions - Power to fix date of operation of reclassification - Meaning of "arising out of Accident Compensation Act 1985 (No 10191) s51, s53, s61(3), s181, s182, s187, s217, s218.

MONTY FINANCIAL SERVICES LTD and ANOR v DELMO1 VR 65

ASHLEY J·11 Sept 1995·21p·

Administration and probate - Executor - Removal of Unfit to act - Conflict of interest and duty - Whether conflict of interest a ground for removal - Administration and Probate Act 1958 (No 6191) s34(1)(c).

Trust and trustees - Trustee Removal of - Conflict of interest and duty - Whether conflict of interest a ground for removal - Trustee Act 1958 (No 6401) s41(1), 48(1).

KIDMAN v SEFA1 VR 86

BROOKING , ORMISTON and NATHAN JJ·20 Sept 1994·9p·

Accident compensation - Workers compensation - Injury arising out of or in the course of employment - Injury worsened by medical negligence - Damages - Damages for pecuniary loss - Statutory prohibition on damages for pecuniary loss - Exceptions to statutory prohibition - Accident Compensation Act 1985 (No 10191) s135(1).

PROJECT DEVELOPMENTS PTY LTD v MITCHELL1 VR 213

TADGELL , ORMISTON and CHARLES JJA·2 Oct 1995·7p·

Accident compensation - Damages - Non-pecuniary loss - Whether damages excessive - Whether determination by reference to jury assessment or amount reduced by statute - Principles for assessment of general damages for personal injury - Assessment of general damages by appeal court - Accident Compensation Act 1985 (No 10191) s135(3A).

KELLER and ANOR v BAYSIDE CITY COUNCIL1 VR 356

BATT J·21 Jul 1995·31p·

Administrative law - Order for review - Time for applying for order nisi - Time for requesting reasons for decision - Whether statutory provisions mandatory - Application made outside statutory time limit - Whether order for review a nullity - Grant of building permit by surveyor - Whether surveyor a "tribunal" - Whether surveyor required to accord natural justice to adjoining owners Administrative Law Act 1978 (No 9234) s2, s3, s4, s8 Building Act 1993 (No 126) s19.

Local government - Building permit - Permit granted by surveyor employed by council - Whether council or surveyor was the decision-maker Building Act 1993 (No 126) s19.

Practice and procedure - Amendment of parties - Mistake in name - Mistake in description - Slip rule - Order for review under Administrative Law Act - Whether declaratory relief available in same proceeding - Whether relief under O.56 of the Supreme Court Rules available in same proceeding Administrative Law Act 1978 (No 9234) s3 Supreme Court Rules Ch 1, R36.01, R36.07, O.56.

ANDRICCIOLA v ITALIAN COMMUNITY OF KEILOR ASSOCIATION INCORPORATED1 VR 421

BATT J·29 Sept 1995·15p·

Administrative law - Natural justice - Domestic tribunal - Right to a hearing - Bias - Association - Expulsion of member - Committee of management - Quorum - Doctrine of necessity - Validity of committee election - Whether court should exercise supervisory jurisdiction - Associations Incorporation Act 1981 (No 9713) s14A, s21.

CASSAR v VICTORIAN WORKCOVER AUTHORITY and ANOR1 VR 490

HANSEN J·18 May 1995·9p·

Accident compensation - Worker - Redundancy payment - Weekly payments - Period of entitlement - Period of non-entitlement - Whether period of entitlement to weekly payments suspended during period of non-entitlement - Whether period of entitlement co-terminous with period of non-entitlement - Accident Compensation Act 1985 (No 10191) s82, s93, s93A, s93B, s96.

GODFREY STEWART and ANOR v VICTORIAN WORKCOVER AUTHORITY1 VR 518

ASHLEY J·20 Feb 1995·20p·

Accident compensation - Workers' compensation - Workers' compensation insurer - "Responsibility costs" under statutory insurance policy - Victorian Workcover Authority - Liability of Victorian Workcover Authority for failed insurer's responsibility costs - Meaning of "claim" - Solicitors' fees incurred by insurer - Whether responsibility costs act Workers Compensation Act 1958 (No 6419) s98, s101, s102.

MASTERS v McCUBBERY and ORS1 VR 635

WINNEKE P , ORMISTON and CALLAWAY JJA·27 Oct 1995·27p·

Administrative law - Natural justice - Medical panel - Opinion adopted as determination of court - Opinion affecting rights of a person - Whether panel required to accord procedural fairness - Whether panel a "tribunal" - Whether medical opinion a "decision" - Whether panel required to give reasons for opinion - Public policy considerations - Accident Compensation Act 1985 (No 10191) s45, s63, s125 - Administrative Law Act 1978 (No 9234) s2, s8.

MUNE v CENTRO ARGENTINO INC2 VR 82

WINNEKE P, ORMISTON and HAYNE JJA·5 Oct 1995·15p·

Associations and clubs - Evidence - Unincorporated associations - Incorporation - Certificate of incorporation - Whether conclusive evidence that incorporated body is successor to unincorporated association - Vesting of property in incorporated association - Associations Incorporation Act 1981 (No 9713) s4, s7, s8, s42, s44.

VICTORIAN WORKCOVER AUTHORITY v GILBERT2 VR 106

BROOKING, SMITH and ASHLEY JJ·8 May 1995·11p·

Accident compensation - Injury occurring between 31 August 1985 and 30 June 1993 - Statutory "transfer" of liability from Victorian WorkCover Authority to authorised insurer - Whether authority remains liable to pay compensation - Accident Compensation (WorkCover Insurance) Act 1993 (No 50) s1, s5, s7, s34, s46(a), s63, s75 - Accident Compensation Act 1985 (No 10191) s125.

ELIAS NOMINEES PTY LTD v COMMISSIONER OF BUSINESS FRANCHISES2 VR 226

BEACH J·9 Jan 1996·9p·

Administrative law - Business franchises - Tobacco licence - Licensee's failure to provide information - Licensee suspected of involvement in revenue avoidance scheme - Suspension of licence - Whether suspension justified - Order staying suspension - Ex parte application - Business Franchise (Tobacco) Act 1974 (No 8597) s7AI, s9B Administrative Law Act 1978 (No 9234) s3, s4(1), s6.

ANM TRADING PTY LTD v COMMISSIONER OF BUSINESS FRANCHISES2 VR 312

BATT J·5 Mar 1996·23p·

Administrative law - Business franchises - Tobacco licence - Refusal to grant - Review - Grounds for review - Whether commissioner satisfied or not satisfied of certain matters - Business Franchise (Tobacco) Act 1974 (No 8597) s7AB, s7AE, s7AH, s7AI, s10(1)(a), s13, s13A.

Sale of goods - Sale - Where made - Delivery outside Victoria - Contract - Condition precedent to performance - Transfer of property in goods - Whether in Victoria or outside Victoria - Intention - Sham - Meaning of "sell" - Meaning of "contemplate" - Goods Act 1958 (No 6265) s6, s21, s23, s24, s25 Sale of Goods Act 1895 (SA) s1, s16, s18, s20 Business Franchise (Tobacco) Act 1974 (No 8597) s2(1), s(6AA), s(6AB).

INGRAM v INGRAM and ANOR2 VR 435

BROOKING, CHARLES and CALLAWAY JJA·7 Dec 1995·7p·

Accident compensation - Transport accident - Leave to bring common law proceedings - "Serious injury" - "Permanent serious disfigurement" - Abdominal scarring - Subjective response to disfigurement - Transport Accident Act 1986 (No 111) s93.

DOHERTY v MURPHY2 VR 553

TADGELL, NATHAN and HANSEN JJ·24 Mar 1995·14p·

Appeal - Appeal on point not raised below - Discretion to allow argument on new point - Appeal from summary judgment - Extension of time to bring appeal granted - New point based on evidence received below.

Set-off - Equitable set-off - Guarantee - Exemption clause in guarantee - Principal debtor's damages claim against lender - Whether guarantors can set-off damages claim against guarantee liability - Lender replaced as trustee - Arguable defence.

MURPHY v OBST and ORS2 VR 613

TADGELL, PHILLIPS AND CALLAWAY JJA·25 Mar 1996·25p·

Appeal - Costs - Criminal trial - New trial ordered after conviction quashed - Proceedings discontinued - Whether accused entitled to costs indemnity - Extent of indemnity - Whether indemnity for costs of first trial - Whether indemnity limited to costs of first trial thrown away - Appeal Costs Act 1964 (No 7117) s18(1).

Statutes - Interpretation - Legislative intention - Purposive approach - Use of extrinsic materials - Interpretation of Legislation Act 1984 (No 10096) s35.

PUBLIC TRANSPORT CORPORATION v SARTORI1 VR 168

Brooking, Charles and Callaway JJA·29 Apr 1996·14p·

Negligence - Duty of care - Foreseeability - Proximity - Causation - Employer's duty to provide proper system of work - Employee injured by intruder in carpark - Carpark left unlocked.

Appeal - Costs - Indemnity certificate - Appeal allowed on ground that jury's award of damages was excessive - Whether question of fact - Whether respondent entitled to costs indemnity - Appeal Costs Act 1964 (No. 7117) s. 13.

HANRAHAN v DAVIS1 VR 285

Winneke P, Phillips and Charles JJA·10 May 1996·10p·

Accident compensation - Worker - Serious injury - Common law proceeding for damages - Whether determination of serious injury a precondition to commencement of common law proceeding - What constitutes a determination of degree of impairment - Accident Compensation Act 1985 (No. 10191) ss. 93B 135A.

GASCOR v ELLICOTT and Others1 VR 332

Brooking, Tadgell and Ormiston JJA·15 Apr 1996·32p·

Arbitration and awards - Arbitrator - Removal of - Misconduct - Unsuitability - Bias - Participation in earlier arbitrations - Similar issues - Common witnesses - Test of disqualification - Failure to disclose possible disqualifying events - Whether ground for removal - Commercial Arbitration Act 1984 (No. 10167) ss. 16 44 Sch. 2 - UNCITRAL Model Law on International Commercial Arbitration art. 12.

GREEN v VICTORIAN WORKCOVER AUTHORITY1 VR 364

Tadgell, Phillips and Charles JJA·28 Jun 1996·22p·

Accident compensation - Worker - Whether claimant a "worker" - Decision of appeals board - Application to County Court - Onus of proof - Appeal - Appeal to Court of Appeal - Question of law - Accident Compensation Act 1985 (No. 10191) ss. 52 118 119 121.

Employer and employee - Independent contractor - Servant - Factors relevant in distinguishing between servant and independent contractor.

BAKER v TRANSPORT ACCIDENT COMMISSION and Another1 VR 662

Brooking and Phillips JJA·19 Jun 1996·5p·

Accident compensation - Transport accident - Leave to bring common law proceedings - "Serious injury" - "Permanent serious disfigurement" - Scarring - Transport Accident Act 1986 (No. 111) s. 93.

Limitation of actions - Extension of time within which to bring action - Application for leave to bring common law action - Claim within time when application instituted - Claim statute-barred when application finally determined - Limitation of Actions Act 1958 (No. 6295) s. 23A.

ACN 006 397 413 PTY LTD v INTERNATIONAL MOVIE GROUP (CANADA) INC and Another2 VR 31

Brooking, Hayne and Charles JJA·2 Sept 1996·18p·

Arbitration and awards - Award - Foreign award - Enforcement as judgment or order in Victoria - Award bad in part for uncertainty - Severance - Partial enforcement of award - Commercial Arbitration Act 1984 (No. 10167) s. 33.

P v CRIMES COMPENSATION TRIBUNAL2 VR 63

Hampel J·2 Aug 1996·5p·

Administrative law - Natural justice - Procedural fairness - Crimes compensation - Notification of application to alleged offender - Whether applicant entitled to be heard to oppose notification - Criminal Injuries Compensation Act 1983 (No. 9992) s. 7(7).

TRANSPORT ACCIDENT COMMISSION v DAFOPOULOS2 VR 232

Tadgell, Ormiston and Phillips JJA·24 Oct 1996·15p·

Accident compensation - Transport accident - Limitation of actions - Commencement of limitation period - First manifestation of injury for which compensation sought - First manifestation of any injury caused by accident which caused injury for which compensation sought - Transport Accident Act 1986 (No. 111) s. 68(1).

OPTUS NETWORKS PTY LTD v CITY OF BOROONDARA2 VR 318

Ormiston, Charles and Callaway JJA·12 Dec 1996·24p·

Injunction - Interlocutory - Town and country planning - Local government - Council seeking to enforce planning scheme - Telecommunications carrier installing cables - Reliance on overriding Commonwealth legislation - Validity of legislation - Compliance by carrier with National Telecommunications Code - Undertaking as to damages - Whether public authority seeking to enforce law exempted from undertaking - Telecommunications Act 1991 (Cth) ss. 116 118 - Telecommunications (Exempt Activities) Regulations (Cth) - Local Government Act 1989 (No. 11) ss. 6 7 8 Sch. 1 - Planning and Environment Act 1987 (No. 45) s. 14 - Acts Interpretation Act 1901 (Cth) s. 46(2).

Appeal - Leave - Interlocutory injunction - Variation - Whether leave required to appeal from grant or refusal of variation of interlocutory injunction - Supreme Court Act 1986 (No. 110) s. 17A(4)(b)(ii).

STUBBE v JENSEN and Another2 VR 439

Winneke P, Ormiston and Callaway JJA·28 Nov 1996·7p·

Contract - Contract of employment - Implied term - Negligence - Employer's duty not to expose servant to unnecessary risk of injury - Whether contractual duty co-extensive with tortious duty - Crown Proceedings Act 1958 (No. 6232) s. 23(1)(b).

Appeal - Notice of appeal - Amendment - Adding point not decided below - Point not abandoned - Whether departure from common basis of trial - Prejudice to respondent.

BARTON v ESTATE AGENTS LICENSING AUTHORITY1 VR 164

Brooking, Tadgell and Hayne JJA·5 Feb 1997·9p·

Administrative law - Procedural fairness - Failure to allow calling of evidence - Appeal - Judicial review - Estate Agents Act 1980 (No. 9428) s. 91Y - Supreme Court Rules Ch. I O. 56.

EDWARDS v JEPSON1 VR 197

Winneke P, Brooking and Hayne JJA·14 Feb 1997·10p·

Accident compensation - Transport accident - Damages - Medical and hospital expenses - Payable by plaintiff's employer subject to reimbursement out of damages - Whether damages should include compensation for medical and hospital expenses - Transport Accident Act 1986 (No. 111) ss. 37(g) 60(1)(a) 93(10)(b).

SCOTT v BOWYER1 VR 207

Winneke P, Brooking and Hayne JJA·21 Feb 1997·17p·

Accident compensation - Workers compensation - Negligence - Duty of care - Proximity - Cyclist injured in accident caused by negligence of motorist - Cyclist's employer liable to pay workers compensation - Whether motorist owed employer a duty of care - Employer's statutory right of indemnity - Contributory negligence - Apportionment - Workers Compensation Act 1958 (No. 6419) ss. 63(2) 67.

K L DOWLING & CO v EMPLOYEE RELATIONS COMMISSION and Another1 VR 251

Brooking, Tadgell and Phillips JJA·19 Feb 1997·27p·

Industrial law - Employer and employee - Unfair dismissal - Procedural unfairness - Redundancy - Statutory remedies - Re-instatement - Compensation - Compensation payable only where re-instatement ordered - Whether re-instatement may be ordered to ensure compensation - Relevant considerations for re-instatement order - Whether re-instatement practicable - Industrial Relations Act 1979 (No. 9365) - Employee Relations Act 1992 (No. 83) ss. 38(1) 42.

Administrative law - Judicial review - Mandamus - Judgments, orders and declarations - Whether court may re-exercise inferior tribunal's discretion - Whether court may direct inferior tribunal on exercise of discretion - Administrative Law Act 1978 (No. 9234) s. 7.

TRANSPORT ACCIDENT COMMISSION v ODEY1 VR 278

Winneke P, Brooking and Charles JJA·24 Feb 1997·7p·

Accident compensation - Transport accident - Whether Transport Accident Commission liable to pay compensation - Accident outside Victoria - Vehicle registered interstate - Vehicle usually kept in Victoria - Whether vehicle "exempt from registration" in Victoria - Statutes - Interpretation - Constitutional law - Extraterritorial effect of legislation - Meaning of "exempt" - Transport Accident Act 1986 (No. 111) ss. 3 35(1) - Road Safety Act 1986 (No. 127) ss. 7 95 Sch. 2.

FLYNN v DIRECTOR OF PUBLIC PROSECUTIONS and Another1 VR 322

McDonald J·13 Dec 1996·37p·

Administrative law - Judicial review - Certiorari - County Court - Appeal to County Court from Magistrates' Court in criminal proceeding - Whether County Court order may be quashed - Error on face of record - Procedural unfairness - Forests - Licence to remove forest produce - Failure to specify in licence area to be logged - Whether licence valid - Criminal law - Whether validity of licence could be challenged in criminal proceeding - Appeal - Sentence - Sentence increased on appeal - Failure by judge to indicate intention to increase sentence - Whether procedural unfairness - Forests Act 1958 (No. 6254) ss. 3(1) 5 22 52 52A 52B 52C - Conservation, Forests and Lands Act 1987 (No. 41) s. 95A - Magistrates' Court Act 1989 (No. 51) s. 83 - Administrative Law Act 1978 (No. 9234) ss. 10 11 12.

PERRI v DEPARTMENT OF SCHOOL EDUCATION VICTORIA1 VR 591

Winneke P, Callaway JA and Hedigan AJA·5 Mar 1997·10p·

Accident compensation - Worker - Damages - Assessment - Multiple claims - Global sum apportioned among separate claims - Whether permissible method of assessment - Contributory negligence - Plaintiff's inadvertence, inattention or misjudgment - Plaintiff's status as leading hand - Accident Compensation Act 1985 (No. 10191) s. 135.

LAKE v TRANSPORT ACCIDENT COMMISSION1 VR 616

Brooking, Phillips and Callaway JJA·2 May 1997·14p·

Accident compensation - Transport accident - Brain damage - Level of permanent impairment - Guides to the Evaluation of Permanent Impairment - Disturbance of complex integrated cerebral function - Fourfold classification - Ability to carry out "daily activities" - Whether applicant could carry out daily activities without supervision and/or direction - Transport Accident Act 1986 (No. 111) ss. 46A 53.

TRANSPORT ACCIDENT COMMISSION and Another v DENNIS1 VR 702

Brooking, Phillips and Callaway JJA·15 Apr 1997·6p·

Accident compensation - Transport accident - "Serious injury" - "Severe long-term behavioural disturbance" - Whether symptoms consciously or unconsciously motivated - Transport Accident Act 1986 (No. 111) s. 93.

SANTAMARIA v SECRETARY OF THE DEPARTMENT OF HUMAN SERVICES2 VR 296

Tadgell, Ormiston and Charles JJA·12 May 1997·8p·

Administrative law - Protection of children - Administrative Appeals Tribunal - Application for review of decision not to take action to protect a child - Whether Administrative Appeals Tribunal had jurisdiction to review - Children and Young Persons Act 1989 (No. 56) ss. 85 120 121 122.

SERBAN v VICTORIA LEGAL AID2 VR 326

Hansen J·1 Oct 1997·14p·

Administrative law - Order for review - Legal aid - Decision to allocate matter - Reconsideration of decision - Review of decision by legal aid review committee - Refusal to review decision - Whether decision reviewable - Victoria Legal Aid - Whether a "tribunal" - Whether obliged to accord procedural fairness - Practice and procedure - Order by master for review - Application to strike out proceeding - Whether application must be made to master before return of order for review - Limitation of actions - Administrative Law Act 1978 (No. 9234) ss. 2 3 4(1) - Legal Aid Act 1978 (No. 9245) ss. 27 28 29 34 35 36.

VICTORIAN WORKCOVER AUTHORITY v CE HEATH UNDERWRITING & INSURANCE (AUSTRALIA) PTY LTD2 VR 427

Brooking and Callaway JJA and Ashley AJA·13 May 1997·12p·

Accident compensation - Apportionment of liability between authority and insurer - Proceeding brought in County Court - Appeal - Whether normal rights of appeal from County Court excluded - Whether appeal only on question of law - Accident Compensation Act 1985 (No. 10191) ss. 52 129P 129S 134 - County Court Act 1958 (No. 6230) s. 74.

AUSTRALIAN FOOTBALL LEAGUE and Others v CARLTON FOOTBALL CLUB LTD and Another2 VR 546

Tadgell and Hayne JJA and Ashley AJA·25 Jul 1997·43p·

Associations and clubs - Domestic disciplinary tribunal - Courts and judges - Jurisdiction - Jurisdiction to interfere in decision of domestic tribunal - Question of law - Question of fact - Laws of Australian Football - Construction of laws - Player charged with unduly interfering with umpire - Proceedings before tribunal - Material on which tribunal may act - Onus of proof - Standard of proof.

BELL v TRANSPORT ACCIDENT COMMISSION3 VR 288

Tadgell, Phillips and Callaway JJA·28 Mar 1996·14p·

Accident compensation - Transport accident - Limitation of actions - Application for review of decision of Transport Accident Commission - Extension of time within which to bring application - Transport Accident Act 1986 (No. 111) ss. 77 83 - Administrative Appeals Tribunal Act 1984 (No. 10155) s. 31.

CROPP v TRANSPORT ACCIDENT COMMISSION and Another3 VR 357

Ormiston, Hayne and Charles JJA·3 Jun 1997·23p·

Accident compensation - Transport accident - Meaning of "serious injury" - Whether injury must be "very considerable" - Significance of inability to pursue former occupation - Transport Accident Act 1986 (No. 111) s. 93(4) 93(6) 93(17).

McKINNON v VOIGT and Another3 VR 543

Tadgell, Ormiston and Phillips JJA·14 Nov 1997·23p·

Administration and probate - Wills and codicils - Validity of will - Hand-written will - Suspicious circumstances - Delay in producing will - Onus of proof - Interested witnesses - Failure to dispel suspicious circumstances - Whether re-trial should be ordered.

MOBILIO v BALLIOTIS and Others3 VR 833

Winneke P, Brooking, Ormiston, Phillips and Charles JJA·10 Nov 1997·29p·

Accident compensation - Transport accident - Leave to bring common law proceedings - Serious injury - Meaning of "serious" - Guidance of "very considerable" test - Severe long-term mental or severe long-term behavioural disturbance or disorder - Meaning of "severe" - Whether stronger than "serious" - Appeal - Principles applicable to appeal from determination regarding serious injury - Whether same principles as for appeals from discretionary judgments - Fresh evidence - Whether admissible - Transport Accident Act 1986 (No. 111) s. 93(4) 93(17) - Supreme Court Rules Ch. I r. 64.22(3).

TRANSPORT ACCIDENT COMMISSION v BAUSCH4 VR 249

Tadgell, Batt and Buchanan JJA·10 Mar 1998·20p·

Accident compensation - Transport accident - Claim for impairment benefit - Transport Accident Commission - Administrative law - Administrative Appeals Tribunal - Review by tribunal of commission's decision - Statutory obligation on commission to disclose relevant material to tribunal - Failure by commission to disclose relevant material - Failure by claimant to disclose material - Tribunal upholding commission's decision - Appeal to Supreme Court - Relevant material withheld from tribunal disclosed to court - Administrative Appeals Tribunal Act 1984 (No. 10155) s. 36(1) - Transport Accident Act 1986 (No. 111) s. 38(2).

PALMER TUBE MILLS (AUST) PTY LTD and Another v SEMI4 VR 439

Brooking, Tadgell and Buchanan JJA·6 Mar 1998·16p·

Accident compensation - "Serious injury" applications - Practice and procedure - Procedure for dealing with applications "on the papers" - No hearing - No right of cross-examination - Natural justice - Procedural fairness - Accident Compensation Act 1985 (No. 10191) s. 135A - Transport Accident Act 1986 (No. 111) s. 93 - County Court Rules Ch. I r. 40.04(2).

CICHELLO v ESTATE AGENTS LICENSING AUTHORITY4 VR 477

Callaway, Kenny and Buchanan JJA·19 May 1998·7p·

Administrative law - Estate Agents Disciplinary and Licensing Appeals Tribunal - Estate agent - Licence - Eligibility - Conviction for serious offence of violence - Applicant for licence convicted of intentionally causing injury - Characterisation of offence - Legal incidents of offence - Circumstances of offence or offender - Estate Agents Act 1980 (No. 9428) ss. 14(5)(e) 31C 91Y - Crimes Act 1958 (No. 6231) s. 18.

VICTORIAN CASINO AND GAMING AUTHORITY v HULLS4 VR 718

Brooking, Phillips and Batt JJA·3 Apr 1998·10p·

Administrative law - Freedom of information - Exempt documents - Exemption apparent from nature of document - Agency not required to identify documents or specify exemption - Review of agency's decision - Administrative Appeals Tribunal - Whether tribunal may direct agency to identify documents and specify exemption - Whether tribunal may call for documents - Freedom of Information Act 1982 (No. 9859) ss. 3 25A(5) 38 50(2) 50(4) 52(1) 56(1) - Casino Control Act 1991 (No. 47) s. 151.

TRANSPORT ACCIDENT COMMISSION v BALL1 VR 64

Callaway, Batt and Buchanan JJA·30 Apr 1998·5p·

Accident compensation - Transport accident - Motor vehicle - Motor cycle - Not used on a highway for many years - Whether "intended to be used on a highway" - Meaning of "intended" - Objective test - Transport Accident Act 1986 (No. 111) ss. 3(1) 35 - Road Safety Act 1986 (No. 127) s. 3(1).

BOURKE v HASSETT and Others1 VR 189

Winneke P, Brooking and Buchanan JJA·14 Aug 1998·15p·

Accident compensation - Sporting contestants - Statutory deemed employment - Stable-hand employed by racehorse trainer - Injury suffered in riding accident - Deterioration following return to work as stable-hand - Claim for damages against trainer and racecourse occupier - Third party claims by occupier against insurers - Whether stable-hand a deemed employee of occupier - Whether licensed to ride by occupier - Compensation paid by insurer to stable-hand for incapacity - Claim by insurers against occupier for indemnity in respect of compensation - Whether injury attributable to act, default or negligence of third party - Identification of injury in respect of which compensation was paid - Negligence - Employer and employee - Whether trainer liable for condition of track - Accident Compensation Act 1985 (No. 10191) ss. 16(4)(b) 98 138.

STATE OF VICTORIA v COLLINS1 VR 215

Winneke P, Brooking and Chernov JJA·4 Dec 1998·9p·

Accident compensation - Workers compensation - Serious injury - Damages - Pecuniary loss - Serious injury suffered before 1 December 1992 - Incapacity not known until after 1 December 1992 - Meaning of "incapacity" - Accident Compensation Act 1985 (No. 10191) ss. 135 135A(2)(b) 135A(19) - Accident Compensation (WorkCover) Act 1992 (No. 67) s. 46.

FARRAR v WESTERN METROPOLITAN COLLEGE OF TAFE1 VR 224

Winneke P, Charles and Batt JJA·20 Aug 1998·8p·

Accident compensation - Workers compensation - Injury arising out of or in the course of employment - Apprentice worker - Injury occurring while the worker attended a school as an apprentice - Damages - Damages for pecuniary loss - Statutory prohibition on damages for pecuniary loss - Exceptions to statutory prohibition - Accident Compensation Act 1985 (No. 10191) ss. 83(2) 135(1).

Precedent - Court of Appeal - Full Court - Whether Court of Appeal is bound by a decision of its own or the Full Court.

SWANNELL and Another v FARMER1 VR 299

Callaway, Batt and Buchanan JJA·11 Nov 1998·14p·

Accident compensation - Transport accident - Leave to bring common law proceedings - Serious injury - Death of injured person from other causes - No steps taken to establish "serious injury" before death - Whether cause of action vested in injured person at death - Application for leave to bring proceedings made by personal representative - Whether maintainable - Whether application maintainable after tortfeasor's death - Meaning of "serious injury" - Transport Accident Act 1986 (No. 111) ss. 3(5)(c) 93 94(7) - Administration and Probate Act 1958 (No. 6191) s. 29.

RIZZA v FLUOR DANIEL GTI (AUSTRALIA) PTY LTD1 VR 405

Winneke P, Brooking and Chernov JJA·4 Dec 1998·13p·

Accident compensation - Workers compensation - Serious injury - Damages - Injury occurring before 1 December 1992 - Proceedings not commenced before 30 June 1994 - Statutory exclusion of damages - Whether exclusion applies to "serious injury" cases - Accident Compensation Act 1985 (No. 10191) ss. 135A(2)(b) 135B - Accident Compensation (Amendment) Act 1994 (No. 50) s. 64.

KIBBY v REGISTRAR OF TITLES and Another1 VR 861

Mandie J·25 Nov 1998·14p·

Associations and clubs - Unincorporated association - Essential characteristics - Real property - Land held by trustees for fluctuating group of individuals - Later establishment of unincorporated association - Whether land held on behalf of unincorporated association - Incorporation of association - Vesting of property in incorporated association - Associations Incorporation Act 1981 (No. 9713) ss. 3 8 9 - Transfer of Land Act 1958 (No. 6399) s. 59.

THE RETURNED & SERVICES LEAGUE OF AUSTRALIA (VICTORIA BRANCH) INC v LIQUOR LICENSING COMMISSION and Another2 VR 203

Phillips, Charles and Buchanan JJA·15 Apr 1999·25p·

Administrative law - Judicial review - Certiorari - Jurisdictional error - Error of law on the face of the record - What constitutes the record - Liquor and licensing law - Liquor Licensing Commission - Licence - Application - Notice of application - Irregularities in notice - Notice of objection - Statutory time limit for notice of objection - Refusal to hear late objector - Primary purpose of the business - Relevance of gambling - Community interest - Adverse effects of gambling on community - Liquor Control Act 1987 (No. 97) ss. 28(1) 48(2)(a) 48(4) 72 74 105 - Administrative Law Act 1978 (No. 9234) s. 10.

KUEK v VICTORIA LEGAL AID and Others2 VR 331

Winneke P, Tadgell and Ormiston JJA·27 Apr 1999·11p·

Administrative law - Order to review - Time for applying for order nisi - Time for requesting reasons for decision - Whether statutory provisions mandatory - Application made outside statutory time limit - Failure of tribunal to give reasons - Limitation of actions - Equitable tolling - Administrative Law Act 1978 (No. 9234) ss. 3 4(1) 8.

MOND v LIPSHUT2 VR 342

Ashley J·8 Apr 1999·11p·

Banks and banking - Cheque - Undated - Authority to fill up cheque - Statutory presumption that person in possession of cheque has authority - Whether presumption displaced - Whether cheque filled up within a reasonable time - Holder in due course - Whether person coming into possession of cheque has title to sue on it - Cheques Act 1986 (Cth) ss. 18 49.

Appeal - Appeal from Magistrates' Court - Question of law - New point not argued below - Not raised in questions for appeal - Magistrates' Court Act 1989 (No. 51) s. 109.

ETNA and Another v ARIF and Others2 VR 353

Charles, Callaway and Batt JJA·1 Jul 1999·34p·

Contract - Construction - Implied term - Best endeavours - Sale of land - Subdivision - Sale conditional on registration of plan of subdivision by agreed date - Express term requiring vendor to use best endeavours to procure registration of plan by agreed date - Whether implied term requiring vendor to procure registration after agreed date - Rescission - Whether vendor entitled to rescind if in breach of implied term.

Practice and procedure - Pleadings - Statement of claim - Amendment - Late - Amendment at judge's suggestion in final addresses - Whether leave to amend granted within power under Rules - Whether discretion miscarried - Supreme Court Rules Ch. I r. 36.01(1).

Appeal - Leave to appeal - Costs - Appeal against costs order below - Whether leave required - Legal practitioners - Solicitors - Order for costs against solicitors because of negligence - Meaning of "negligence" - Supreme Court Act 1986 (No. 110) s. 17A(1)(b) - Supreme Court Rules Ch. I r. 63.23.

VIDOVICH v MILDURA RURAL CITY COUNCIL and Others2 VR 399

Brooking, Phillips and Buchanan JJA·15 Apr 1999·13p·

Administrative law - Natural justice - Bias - Reasonable apprehension of bias - Administrative Appeals Tribunal - Directions hearing in absence of respondents - Appeal - Question of law - Whether reasonable apprehension of bias a question of law - Town and country planning - Planning permit - Endorsed plans - Construction of plans - Whether permit conditional on keeping walkway open - Administrative Appeals Tribunal Act 1984 (No. 10155) s. 52 - Planning and Environment Act 1987 (No. 45) s. 149A - Planning Appeals Act 1980 (No. 9512) s. 30A.

TRANSPORT ACCIDENT COMMISSION v O'REILLY2 VR 436

Tadgell, Ormiston and Callaway JJA·13 Nov 1998·25p·

Administrative law - Administrative Appeals Tribunal - Costs - Accident compensation - Transport accident - Transport Accident Commission - Application to review decision of commission - Application unsuccessful - Whether commission entitled to costs - Application withdrawn - Whether applicant entitled to costs - Appeal - Appeal against tribunal decisions as to costs - Administrative Appeals Tribunal Act 1984 (No. 10155) ss. 50 52 - Transport Accident Act 1986 (No. 111) s. 79(2).

GARDINER v STATE OF VICTORIA2 VR 461

Winneke P, Phillips and Callaway JJA·2 Jul 1999·19p·

Accident compensation - Workers compensation - Weekly payments - Recovery from injury within 12 months of commencement of weekly payments - Statutory requirement that employer re-employ worker - Tort - Breach of statutory duty - Whether employer liable to worker for failing to re-employ - Whether obligation to re-employ only arises when employer aware of worker's recovery within the 12 month period - Accident Compensation Act 1985 (No. 10191) s. 122.

MANNINGHAM CITY COUNCIL v DURA (AUSTRALIA) CONSTRUCTIONS PTY LTD3 VR 13

Winneke P, Phillips and Buchanan JJA·1 Oct 1999·14p·

Arbitration and awards - Building contract - Staying proceedings - Clause providing for arbitration or litigation - Whether an "arbitration agreement" - Election by one party of litigation - Whether arbitration agreement brought to an end - Discretion to order stay of proceedings - Whether predisposition in favour of arbitration - Commercial Arbitration Act 1984 (No. 10167) ss. 4 53(1).

RABEL v EASTERN ENERGY LTD3 VR 45

Winneke P, Phillips and Buchanan JJA·2 Jul 1999·10p·

Appeal - Competence - Victorian Civil and Administrative Tribunal - Appeal to Trial Division of Supreme Court with leave - Leave refused by Trial Division - Whether right of appeal exists to Court of Appeal from refusal of leave by Trial Division - Victorian Civil and Administrative Tribunal Act 1998 (No. 53) s. 148(1) - Supreme Court Act 1986 (No. 110) s. 17(2).

BENTLEY v FURLAN3 VR 63

Ashley J·30 Nov 1999·25p·

Accident compensation - Transport accident - Criminal injuries compensation - Criminal law - Sentencing - Power of sentencing court to order compensation for victim - Whether precluded in transport accidents - Sentencing Act 1991 (No. 49) s. 86 - Transport Accident Act 1986 (No. 111) ss. 27 37 93 94.

ANGELETOS v MUSEUM OF VICTORIA3 VR 157

Winneke P, Charles and Batt JJA·27 Aug 1999·12p·

Accident compensation - Workers' compensation - "Serious injury" - Aggravation of pre-existing condition - Proceeding commenced after 30 June 1994 - Case confined to injury suffered after 1 December 1992 - Aggravation by a single incident - No accumulation of repetitive injuries - Accident Compensation Act 1985 (No. 10191) ss. 5 135A(2)(a) 135A(2)(b) 135B(2) 135B(4).

SHIRE OF CORANGAMITE v TRANSPORT ACCIDENT COMMISSION3 VR 304

Ormiston, Charles and Buchanan JJA·22 Dec 1999·9p·

Negligence - Highways, streets and roads - Nonfeasance - Misfeasance - Liability of local council.

Accident compensation - Transport accident - Benefits - Loss of earning capacity - Statutory indemnity in favour of Transport Accident Commission against wrongdoer - Amendment extending indemnity - Whether applicable to payments made in respect of accident occurring before amendment - Statutes - Interpretation - Amendment - Whether retrospective - Transport Accident Act 1986 (No. 111) ss. 49 104 - Transport Accident (General Amendment) Act 1994 (No. 84) s. 11 - Interpretation of Legislation Act 1984 (No. 10096) s. 14(2)(e).

SECRETARY TO THE DEPARTMENT OF PREMIER AND CABINET v HULLS3 VR 331

Tadgell, Phillips and Batt JJA·11 Aug 1999·24p·

Administrative law - Freedom of information - Exempt document - Exemption based on secrecy provision in another statute - Public interest override - Whether applicable - Meaning of "requires" - Freedom of Information Act 1982 (No. 9859) ss. 3 20 30 38 50(4) 55 - Casino Control Act 1991 (No. 47) s. 151.

Appeal - Appeal from Victorian Civil and Administrative Tribunal - Leave to appeal - Guidelines for granting of leave - Victorian Civil and Administrative Tribunal Act 1998 (No. 53) s. 148(1).

QBE WORKERS COMPENSATION (VIC) LTD v FREISLEBEN and Another3 VR 401

Tadgell, Phillips and Buchanan JJA·17 Dec 1999·16p·

Accident compensation - Workers' compensation - Authorised insurer - Medical panel - Reference of medical question to medical panel - Panel's opinion conclusive - Power of authorised insurer to make referral - Statutes - Interpretation - Accident Compensation Act 1985 (No. 10191) ss. 67 68 93CD(4)(b) 104B(9).

FLINN v FLINN and Another3 VR 712

Brooking, Charles and Batt JJA·25 Aug 1999·52p·

Estoppel - Proprietary estoppel - Contract - Promise to leave interest in property by will - Condition of payment of reasonable sum to third party - Contractual uncertainty - Whether equity can arise despite contractual uncertainty - Detriment - Reliance - Relief - Constructive trust.

Costs - Non-party - Appeal - Application for costs against non-party - Made after decision on appeal given - Practice and procedure - Evidence - Whether applicant for non-party costs can rely on evidence and findings in the litigation - Supreme Court Act 1986 (No. 110) s. 24.

Administration and probate - Executor - Removal - Mental incompetence - Administration and Probate Act 1958 (No. 6191) s. 34.

Richards and Another v Wylie1 VR 79

[2000] VSCA 50·(Court of Appeal) Winneke P, Buchanan and Chernov JJA·19 Apr 2000·13p·

Accident compensation - Transport accident - Leave to bring common law proceedings - "Serious injury" - Serious long-term impairment or loss of a body function - Severe long-term mental or severe long-term behavioural disturbance or disorder - Minor physical injury - Psychological reaction - Impairment of body function produced by mental disturbance or disorder - Transport Accident Act 1986 (No 111) s 93(17).

Esso Australia Ltd v Victorian WorkCover Authority and Another1 VR 246

[2000] VSCA 74·(Court of Appeal) Winneke P, Tadgell and Chernov JJA·19 Apr 2000·14p·

Accident compensation - Workers compensation - Indemnity for employer or insurer paying compensation - Payable by third party otherwise liable for damages - Assessment of indemnity - Based on compensation paid or damages otherwise payable by third party - Interest - Whether included in calculation of indemnity amounts - Negligence - Joint tortfeasors - Contribution - Apportionment - Accident Compensation Act 1985 (No 10191) s 138 - Supreme Court Act 1986 (No 110) s 60(1).

Ericsson Pty Ltd v Popovski1 VR 260

[2000] VSCA 52·(Court of Appeal) Brooking, Ormiston and Charles JJA·11 Apr 2000·14p·

Accident compensation - Workers compensation - Injury arising out of employment - Whether employment a significant contributing factor - Morbid grief reaction following death of child - Mistaken belief that foetus had been exposed to dangerous levels of lead - Appeal - Magistrates' Court - Question of law - Question of fact - Finding by magistrate that injury would probably not have been suffered if the employment had not taken place - Whether magistrate constrained to find the employment was a significant contributing factor - Accident Compensation Act 1985 (No 10191) ss 5(1B) 82(1) - Magistrates' Court Act 1989 (No 51) s 109.

Royal Society for the Prevention of Cruelty to Animals (Victoria) Inc v Marson Constructions Pty Ltd1 VR 274

[2000] VSCA 38·(Court of Appeal) Tadgell, Ormiston and Callaway JJA·29 Mar 2000·16p·

Arbitration and awards - Reference - Notice of dispute - Notice to be given "as soon as reasonably practicable" - Building contracts - Builder sued owner for outstanding progress claim - Owner counterclaimed for liquidated damages - Summary judgment for builder on claim - Builder giving notice of dispute regarding subject matter of counterclaim - Whether builder entitled to stay of counterclaim - Whether notice given "as soon as reasonably practicable" - Whether builder ready and willing to do all things necessary for proper conduct of arbitration - Commercial Arbitration Act 1984 (No 10167) s 53(1)(b).

Greeves v HIH Winterthur Workers' Compensation (Vic) Ltd1 VR 344

[2000] VSCA 68·(Court of Appeal) Phillips, Batt and Buchanan JJA·5 May 2000·12p·

Accident compensation - Workers compensation - Magistrates' Court - Medical panel - Reference of medical question to medical panel - Request for referral by a party - Whether magistrate required to refer - Poorly worded question - - Accident Compensation Act 1985 (No 10191) ss 5 43(3) 45(1)(b).

State of Victoria v Robertson and Another1 VR 465

[2000] VSCA 113·(Court of Appeal) Callaway, Batt and Buchanan JJA·23 Jun 2000·11p·

Accident compensation - Workers compensation - Serious injury - Common law proceeding for damages - Proceeding commenced after 11 November 1997 - Amendments to legislation with retrospective effect to 12 November 1997 - Whether proceeding affected by amendments - Statutes - Interpretation - Retrospective operation - Application to pending proceedings - Accident Compensation Act 1985 (No 10191) ss 135A(2DE) 135A(6A) 138A - Accident Compensation (Miscellaneous Amendments) Act 1997 (No 107) ss 2(2) 47 51.

Lu v Mediterranean Shoes Pty Ltd and Others1 VR 511

[2000] VSCA 65·(Court of Appeal) Winneke P, Buchanan and Chernov JJA·4 May 2000·12p·

Accident compensation - Workers compensation - Serious injury - Serious long-term impairment of body function - Identification of body function - Injuries to elbow and shoulder - Whether causing impairment to a single body function - Aggregation of injuries - Separate injuries causing impairment - Injuries arising out of separate and unrelated incidents - Whether aggregation of injuries permissible - Accident Compensation Act 1985 (No 10191) ss 5 135A(19)(a).

Civic Workers Plus Pty Ltd v Hill1 VR 640

[2000] VSCA 61·(Court of Appeal) Ormiston, Phillips and Buchanan JJA·28 Apr 2000·14p·

Accident compensation - Workers compensation - Claim for lump sum compensation - Statutory requirement for conciliation - Statutory offer and counter-offer - Deemed offer when no actual offer made - Costs - Statutory regime for costs - Based on comparison between judgment amount and amounts of offer and counter-offer - Whether applicable to deemed statutory offer of nothing - Statutes - Interpretation - Retrospective operation - Accident Compensation Act 1985 (No 10191) ss 50(2A) 98 104 - Accident Compensation (Miscellaneous Amendment) Act 1997 (No 107) s 2(2).

Isuzu General Motors Australia Ltd and Another v Jordon2 VR 212

[2000] VSCA 63·(Court of Appeal) Brooking, Phillips and Chernov JJA·11 May 2000·21p·

Accident compensation - Workers compensation - County Court - Medical panel - Reference of medical question to medical panel - Request for referral by a party - Refusal of party's request for referral - Definition of "medical question" - Definition of "injury" - Whether injury could be subject of a "medical question" when it was no longer an "injury" under the legislation - Aggravation injury - Injury in primary sense - Poorly worded question - Table of maims - Assessment of level of impairment - Evidence - Admissibility - Medical report obtained during trial - Accident Compensation Act 1985 (No 10191) ss 5 45 67 98 104.

TGT Transport v Zammit2 VR 312

[2000] VSCA 162·(Court of Appeal) Winneke P, Phillips and Charles JJA·20 Sept 2000·33p·

Accident compensation - Workers compensation - Death - Injury arising out of or in the course of employment - Deemed employment - Whether worker "temporarily absent ... during any authorised recess" - Meaning of "authorised recess" - Whether employment was "a significant contributing factor" - Injury arising from underlying cause - Accident Compensation Act 1985 (No 10191) ss 82(2) 83 92.

Denton v Transport Accident Commission2 VR 374

[2000] VSCA 221·(Court of Appeal) Winneke P, Phillips and Charles JJA·23 Nov 2000·11p·

Accident compensation - Transport accident - Compensation - Medical services - In vitro fertilisation - Injured person and wife receiving IVF treatment - Whether compensation payable for costs of wife's treatment - Transport Accident Act 1986 (No 111) ss 3 35(3) 60(1)(a).

Paterson v Stanmorr Pty Ltd and Another2 VR 460

[2000] VSCA 220·(Court of Appeal) Winneke P, Phillips and Batt JJA·23 Nov 2000·27p·

Accident compensation - Workers compensation - Weekly payments - Calculation - Pre-injury average weekly earnings - Meaning of "earnings" - Whether non-pecuniary benefits included - "Ordinary time rate of pay" - Whether fixed by employment contract - Accident Compensation Act 1985 (No 10191) ss 5(1) 5A 5B 93A 93B.

Victorian WorkCover Authority v Brewster3 VR 72

[2001] VSCA 30·(Court of Appeal) Winneke P, Phillips and Charles JJA·30 Mar 2001·21p·

Accident compensation - Workers compensation - Weekly payments - Notice of rejection of claim - Validity of notice - No valid notice of rejection given - Deemed acceptance of claim - Entitlement to interim weekly payments - Whether dependent on establishing general entitlement to compensation - Appeal - Question of law - Accident Compensation Act 1985 (No 10191) ss 99 109 114.

Lianos v Inner & Eastern Health Care Network3 VR 136

[2001] VSCA 53·(Court of Appeal) Tadgell, Batt and Chernov JJA·2 May 2001·11p·

Accident compensation - Workers compensation - Medical panel - Magistrates' Court - Reference of medical question to medical panel - Evidence - Report of medical panel - Reasons for panel's opinion - Admissibility of reasons - Accident Compensation Act 1985 (No 10191) ss 45 48 68 - Administrative Law Act 1978 (No 9234) s 10.

Transport Accident Commission v Lanson and Another3 VR 250

[2001] VSCA 84·(Court of Appeal) Winneke ACJ, Phillips and Charles JJA·6 Jun 2001·29p·

Accident compensation - Transport accident - Benefits - Death benefits - Statutory indemnity in favour of Transport Accident Commission against wrongdoer - Whether indemnity applicable to payments of death benefits for deaths occurring before 19 May 1998 - Statutes - Interpretation - Amendment - Whether retrospective - Transport Accident Act 1986 (No 111) ss 93 104 - Transport Accident (General Amendment) Act 1994 (No 84) ss 10 42 - Transport Accident (Amendment) Act 1998 (No 34) s 15 - Interpretation of Legislation Act 1984 (No 10096) s 14(2).

Transport Accident Commission v Coyle3 VR 589

[2001] VSCA 236·(Court of Appeal) Brooking, Phillips and Batt JJA·19 Dec 2001·12p·

Accident compensation - Transport accident - Costs - Offer to settle - Costs penalty if outcome not more favourable than offer - Administrative law - Victorian Civil and Administrative Tribunal - Review of decision of Transport Accident Commission - Proposal by commission to end proceeding - Whether an offer to settle - Whether proposal must contain element of compromise to be an offer to settle - Meaning of "settle" and "settlement" - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 112 Sch 1 item 93 - Transport Accident Act 1986 (No 111) ss 77 79.

Ajinvan Pty Ltd v Fry3 VR 644

[2001] VSCA 148·(Court of Appeal) Ormiston, Phillips and Batt JA·7 Sept 2001·11p·

Accident compensation - Workers compensation - Weekly payments - Serious injury - Total and permanent incapacity - Medical panel - Opinion - Panel opinion that worker partially and permanently incapacitated - Court ordering compensation on basis of total incapacity up to date of panel's opinion - Whether order inconsistent with panel's opinion - Meaning of "totally and permanently incapacitated" - Accident Compensation Act 1985 (No 10191) ss 45 68(4) 93A 93B.

Gao v Zhang4 VR 245

[2002] VSCA 19·(Court of Appeal) Phillips and Batt JJA·4 Mar 2002·7p·

Appeal - County Court - Magistrates' Court - Intervention order - Order by County Court dismissing appeal from order of Magistrates' Court - Whether appeal lies to Court of Appeal from County Court order - County Court Act 1958 (No 6230) s 74(1) - Crimes (Family Violence) Act 1987 (No 19) ss 20 21(4) - Magistrates' Court Act 1989 (No 8184) s 86(2).

Hegedis v Carlton & United Breweries Ltd and Another4 VR 296

[2000] VSC 380·Ashley J·27 Sept 2000·18p·

Accident compensation - Workers compensation - Benefits - Entitlement - Injury - Meaning - Statutory requirement that employment "a significant contributing factor" - Whether applicable to all injuries - Injury in the primary sense of the statutory definition - Nature of causal nexus to satisfy test of "a significant contributing factor" - Accident Compensation Act 1985 (No 10191) ss 5(1) 5(1B) 82(1) 86 98(1) 99 135A(2) - Accident Compensation (WorkCover) Act 1992 (No 67).

Keon-Cohen v Victorian Workcover Authority and Another4 VR 367

[2002] VSCA 22·(Court of Appeal) Callaway, Buchanan and Chernov JJA·14 Mar 2002·5p·

Accident compensation - Workers compensation - Appeal - County Court - Uninsured Employers and Indemnity Scheme - Determination of liability by County Court - Appeal limited to question of law raised in the proceedings below - County Court Act 1958 (No 6230) s 74 - Accident Compensation Act 1985 (No 10191) s 52 - Accident Compensation (WorkCover Insurance) Act 1993 (No 50) ss 5 61(3).

Secretary, Department of Treasury and Finance v Kelly4 VR 595

[2001] VSCA 246·(Court of Appeal) Ormiston, Callaway and Chernov JJA·21 Dec 2001·24p·

Administrative law - Freedom of information - Access - Request for access to documents - Multiple requests - Aggregation of requests - Agency entitled to refuse request if oppressive - Whether entitled to aggregate requests to determine whether oppressive - Statutes - Interpretation - Purposive - Interpretation promoting purpose and effect - Transaction broken up to avoid statutory provision - No other reason for breaking up transaction - Appeal - Leave to appeal - No substantial injustice - No issue estoppel - Freedom of Information Act 1982 (No 9859) ss 3 5(1) 13 17 18 21 25A 53 - Interpretation of Legislation Act 1984 (No 10096) s 37 - Victorian and Civil Administrative Tribunal Act 1998 (No 53) s 148(2).

Brambles Ltd v Wail5 VR 169

[2002] VSCA 150·(Court of Appeal) (2002) Winneke P, Charles and Batt JJA·27 Sept 2002·24p·

Accident compensation - Workers compensation - Employer and employee - Negligence - Safe system of work - Worker's services provided to employer by company incorporated and controlled by worker - Worker injured at work - Employer liable to worker for damages - Damages reduced for contributory negligence - Employer's third party claim against company - Contribution and indemnity - Whether company's liability co-extensive or co-terminous with worker's - Wrongs Act 1958 (No 6420) s 23B.

Contract - Termination by effluxion of time - Parties continuing to perform contract - Whether contract renewed or extended - Indemnity clause - Construction - Whether applicable where negligence by proferens.

Dolling v National Australia Bank Ltd5 VR 234

[2002] VSCA 127·(Court of Appeal) (2002) Phillips, Buchanan and Vincent JJA·7 Aug 2002·9p·

Accident compensation - Workers compensation - Serious injury - Common law proceeding for damages - Right to institute proceeding accrued on 26 October 1997 - Proceeding commenced after 11 November 1997 - Amendments to legislation with retrospective effect to 12 November 1997 - Amendment to formal pre-conditions to bringing common law proceeding - Whether proceeding affected by amendments - Statutes - Interpretation - Retrospective operation - Presumption against retrospectivity - Application to pending proceedings - Accident Compensation Act 1985 (No 10191) ss 135A 138 - Accident Compensation (Miscellaneous Amendment) Act 1997 (No 107) ss 47 51 - Interpretation of Legislation Act 1984 (No 10096) s 14(2)(e).

Energy Brix Australia Corporation Pty Ltd v National Logistics Coordinators (Morwell) Pty Ltd and Others5 VR 353

[2002] VSCA 113·(Court of Appeal) (2002) Winneke P, Ormiston, Phillips, Buchanan and Vincent JJA·8 Aug 2002·21p·

Arbitration and awards - Appeal - Appeal from decision of arbitrator - To judge of the Supreme Court - Appeal by leave - Upon demonstrating "manifest error of law on the face of the award" - Whether judge should state reasons for granting or refusing leave - Appeal from decision of judge refusing leave - Whether appeal lies to Court of Appeal - Whether right of appeal expressly excluded by statute - Commercial Arbitration Act 1984 (No 10167) s 38 - Supreme Court Act 1986 (No 110) ss 17(2) 17A.

Contract - Deeds - Whether deed may be discharged by simple contract.

Gennimatas v Transport Accident Commission5 VR 547

[2002] VSC 552·Ashley J·18 Dec 2002·18p·

Accident compensation - Transport accident - Serious injury - Impairment - Successive accidents - Causation - Concurrent causes - Connection between accident and injury - Connection between injury and impairment - Pre-existing degenerative condition - Delayed impairment assessment - Apportionment of impairment as between different injuries - Transport Accident Compensation Act 1986 (No 111) s 46A.

Transport Accident Commission v Lincoln6 VR 199

[2003] VSCA 67·(Court of Appeal) (2003) Winneke P, Batt JA and Warren AJA·5 Jun 2003·14p·

Accident compensation - Transport accident - Serious injury - Impairment - Assessment - American Medical Association Guides - Interpretation - Physical impairment - Extremities, spine and pelvis - Whether "genuine functionally-driven physical impairment" capable of constituting impairment - Episodic neurological disorders - Migraine headaches attributable to neck disorder - No brain injury - Whether capable of assessment as "episodic neurological disorder" - AMA Guides Chs 1 2 - Transport Accident Act 1986 (No 111) ss 46A 46B(1).

Transport Accident Commission v Woods6 VR 213

[2003] VSCA 57·(Court of Appeal) (2003) Phillips, Buchanan and Chernov JJA·10 Apr 2003·4p·

Accident compensation - Transport accident - Transport Accident Commission - Unregistered motor vehicle - Transport accident charge - Non-payment - Consequential non-existence of owner's right of indemnity - Judgment entered against commission in respect of third party claim for damages arising from use of unregistered vehicle - Vehicle being used on private property - Commission's right to indemnity - Claim against vehicle's owner - Defence - Whether non-existence of owner's indemnity due to owner's default - "Registered motor vehicle" - Whether charge only applicable at time when the vehicle is being used on a highway - Transport Accident Act 1986 (No 111) ss 94 97 109 - Road Safety Act 1986 (No 127).

State Trustees Ltd v Transport Accident Commission6 VR 359

[2002] VSCA 428·Bongiorno J·9 Oct 2002·13p·

Accident compensation - Transport accident - Serious injury - Impairment - Assessment - American Medical Association Guides - Interpretation - Nervous system - Disturbances of complex, integrated cerebral functions - Impairment limiting daily activities to directed care under confinement at home or in other domicile - "Confinement" - Whether restricted to a legally imposed restraint - Person living in special accommodation home - AMA Guides Ch 2 - Transport Accident Act 1986 (No 111) s 46A.

Administrative law - Victorian Civil and Administrative Tribunal - Reasons for decision - Judicial review - Accident compensation - Transport accident - Serious injury - Impairment - Assessment - American Medical Association Guides - Interpretation - Overlapping types of impairment - Disturbances of complex, integrated cerebral functions - Mental and behavioural disorders - AMA Guides Chs 2, 12 - Statutory prohibition on double counting - Failure to consider evidence for either type of impairment - Whether merely a failure to comply with statutory obligation to provide reasons - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 117(2) 117(5) - Transport Accident Act 1986 (No 111) ss 46A 46B.

XD v Johnson and Others6 VR 372

[2002] VSC 329·Bongiorno J·14 Aug 2002·9p·

Administrative law - Tribunals - Judicial review - Medical Practitioners Board - Jurisdiction - Disciplinary proceeding - Hearing panel - Professional misconduct - Procedural fairness - Whether implied jurisdiction to order permanent stay of proceeding - Alleged abuse of process - Investigatory nature of hearing process - Medical Practice Act 1994 (No 23) ss 46 47 49(a) 50(1) 52 53 54.

Practice and procedure - Trial of preliminary question - Inutility - Supreme Court Rules Ch I r 47.04.

XD v Johnson and Others (No 2)6 VR 381

[2002] VSC 351·Bongiorno J·23 Aug 2002·12p·

Administrative law - Tribunals - Supervisory jurisdiction of the Supreme Court - Medical Practitioners Board - Jurisdiction - Disciplinary proceeding - Hearing panel - Professional misconduct - Procedural fairness - Whether tribunal proceeding should be stayed - Alleged abuse of process - Investigatory nature of proceeding - Age and particularity of complaints - Balancing competing interests - Prejudice to practitioner - Public interest in having serious allegations investigated - Severance of complaints - Inapplicability of criminal law principles - Constitution Act 1975 (No 8750) s 85 - Medical Practice Act 1994 (No 23) ss 1 46 50.

Connelly v MMI Workers Compensation (Vic) Ltd and Others6 VR 555

[2003] VSCA 60·(Court of Appeal) (2003) Callaway, Batt and Chernov JJA·27 May 2003·14p·

Accident compensation - Workers compensation - Serious injury - Impairment - Assessment - American Medical Association Guides - Interpretation - Rounding off provisions - Medical panels - Whether panel entitled to round off degree of impairment - Discretion - Whether rounding off provision confined to medical assessors - "May" - Accident Compensation Act 1985 (No 10191) s 91.

Tavares and Another v Tavares6 VR 577

[2003] VSCA 12·(Court of Appeal) (2003) Phillips and Batt JJA and O'Bryan AJA·28 Feb 2003·29p·

Accident compensation - Transport accident - Serious injury - Severe long-term mental or severe long-term behavioural disturbance or disorder - Post-traumatic stress disorder - Impairment - Pre-existing psychological disorder - Impairment determination by Transport Accident Commission - Review by Administrative Appeals Tribunal - Tribunal finding that stress disorder resulted from traffic accident - Subsequent application for leave to bring common law proceedings - Causation - Whether injury limited to aggravation of pre-existing disorder - Extent to which expert evidence required - Whether administrative review decision gave rise to an issue estoppel - Whether parties or their privies identical - Inconsequential erroneous legal ruling - Judges - Reasons for decision - Sufficiency - Interlocutory proceeding - Transport Accident Act 1986 (No 111) ss 46A 93.

B (A solicitor) v Victorian Lawyers RPA Ltd and Another6 VR 642

[2002] VSCA 404·(Court of Appeal) (2002) Ormiston, Charles and Batt JJA·13 Dec 2002·24p·

Legal practitioners - Solicitors - Disciplinary proceedings - Recognised professional association - Powers - Delegation - Complaint - Investigation - Legal Profession Tribunal - Jurisdiction - Laying of disciplinary charges - Purported delegation of power to lay charge - No formal instrument - Record in minute of meeting - Confirmation of minute - Whether charges validly laid by delegate - Requirement that delegation be "in writing" - Whether requirement satisfied by minute - Legal Practice Act 1996 (No 35) ss 151 313.

Administrative law - Natural justice - Procedural fairness - Bias - Right to be heard - Disciplinary proceedings - Legal practitioners - Solicitors - Complaint - Investigation - Practitioner given seven days to respond - History of detailed communications - Whether substance of allegations already well known - Legal Profession Tribunal - Spirited exchange concerning best way to conduct hearing - No objection - Attempt to raise bias on appeal - Waiver of objection.

Victorian WorkCover Authority v Kenman Kandy Pty Ltd6 VR 666

[2002] VSCA 190·(Court of Appeal) (2002) Ormiston, Batt and Vincent JJA·29 Nov 2002·16p·

Accident compensation - Workers compensation - Indemnity - Injury - Payment of compensation - Injury caused under circumstances creating legal liability in third party - Authority entitled to indemnity from third party - Assessment of indemnity - Statute amended between date of injury and date when compensation paid - Ascertainment of date when entitlement to indemnity arose - Ascertainment of date for quantification of indemnity - Accident Compensation Act 1985 (No 10191) s 138(1) 138(3).

McLennan v Radford7 VR 1

[2003] VSCA 114·(Court of Appeal) (2003) Phillips and Eames JJA and Warren AJA·22 Aug 2003·12p·

Accident compensation - Transport accident - Serious injury - Damages - Trial by judge and jury - Judgment - Interest - Calculation of interest by trial judge - Past losses - Jury verdict not differentiating between past and future losses - Trial judge relying on evidence of earnings of comparable employee - Plaintiff's situation not truly comparable - Failure to make allowance for post-accident earnings and statutory payments for lost earning capacity - Ascertainment of amount taken to have been allowed by jury for past loss - Preferable for counsel to agree - Transport Accident Act 1986 (No 111) ss 49 93(11) 93(15).

De Angelis v De Angelis7 VR 331

[2003] VSC 83·Mandie J·7 Mar 2003·4p·

Administration and probate - Family provision - Commencement of proceeding - Time limitation - No application to be heard unless made within fixed period or within further time allowed by court - Fixed time expiring on a holiday - Application made the following day - Defendant seeking declaration that plaintiff was obliged to apply for leave to enlarge time - Interpretation of legislation - General provision relating to time limits expiring on a holiday - Extension of time to next day not a holiday - Remedial provision - Whether specific fixed time period extended by operation of general interpretation provision - Administration and Probate Act 1958 (No 6191) s 99 - Interpretation of Legislation Act 1984 (No 10096) s 44(3) 44(4).

Transport Accident Commission v Salcedo8 VR 276

[2003] VSCA 226·(Court of Appeal) (2003) Phillips, Batt and Buchanan JJA·23 Dec 2003·12p·

Accident compensation - Transport accident - Benefits - Disability service - Attendant care - Hospital in-patient - Care provided by parent - Overlap with "hospital service" - Whether compensable - Transport Accident Act 1986 (No 111) ss 3 23 60

Accident compensation - Transport accident - Benefits - Rehabilitation service - Long-term accommodation - Paraplegic victim - Special needs - Additional bedroom - Increased rental costs - Whether compensable - Whether "accommodation support" - Transport Accident Act 1986 (No 111) ss 3 23 60

Alcoa of Australia Ltd v McKenna8 VR 452

[2003] VSCA 182·(Court of Appeal) (2003) Buchanan and Chernov JJA and Ashley AJA·20 Nov 2003·23p·

Accident compensation - Workers compensation - Serious injury - Common law proceeding for damages - Application for leave to bring proceeding - Entitlement to damages conditional upon date of injury - Injuries occurring on or after 1 December 1992 - Whether precondition to grant of leave to bring proceeding - Accident Compensation Act 1985 (No 10191) s 135A(2) 135A(4)(b) 135A(6) 135A(19)

Evidence - Admissibility - Discretion - Manner of giving of evidence - Personal injuries litigation - Surveillance film of plaintiff - Cross-examination of plaintiff - Defendant seeking to show film to plaintiff - Defendant declining to provide dates on which plaintiff was subjected to surveillance - Defendant declining to provide film maker for cross-examination - Ruling refusing showing of film to plaintiff - Whether trial judge's discretion miscarried - Whether person depicted in film or person who made film was "maker of the statement" - Evidence Act 1958 (No 6246) s 55(1)(a)

Dunin v Harrison8 VR 596

[2002] VSCA 125·(Court of Appeal) (2002) Phillips, Buchanan and Vincent JJA·15 Aug 2002·6p·

Accident compensation - Transport accident - Entitlement to bring common law action for damages - Pre-conditions - Requirement that there be an impairment assessment - Requirement that injury be a serious injury - Pre-conditions not satisfied - Injury resulting from transport accident - Injury exacerbated by subsequent surgical treatment - Action against surgeon for alleged negligence - Whether action barred - Whether further injury "a result of a transport accident" - No break in chain of causation - Transport Accident Act 1986 (No 111) ss 3(1) 3(3)(c) 93(1) 93(2)

Tamas v Victorian Civil and Administrative Tribunal and Others9 VR 154

[2003] VSCA 113·(Court of Appeal) (2003) Ormiston, Callaway and Eames JJA·21 Aug 2003·17p·

Administrative law - Victorian Civil and Administrative Tribunal - Practice and procedure - Costs - Order against non-party - Conduct disadvantaging a party - Conduct unreasonably prolonging proceeding - Building owner's claim for damages against company - Company represented by professional advocate - Company director's perjury - False denial that company or director was the builder - Owner succeeding against company - Tribunal ordering director personally to pay costs - Whether power to make order - Whether director was "the representative of a party" - Victorian Civil and Administrative Tribunal Act 1998 (No 53) ss 62 84 89 109(4)

Bayliss v Transport Accident Commission9 VR 267

[2004] VSC 102·Balmford J·1 Apr 2004·8p·

Accident compensation - Transport accident - Serious injury - Impairment - Assessment - American Medical Association Guides - Interpretation - Internal inconsistency - Inconsistency with Act - Time for assessment of impairment - Spinal injury - Successful surgery - Whether impairment to be assessed prior to surgery or treatment - Transport Accident Act 1986 (No 111) ss 8 46A

Re Applications by Chief Commissioner of Police (Vic) for Leave to Appeal9 VR 275

[2004] VSCA 3·(Court of Appeal) (2004) Winneke P, Ormiston and Vincent JJA·12 Feb 2004·20p·

Appeal - Criminal procedure - Jurisdiction of Court of Appeal - Limited suppression orders made by judges of Trial Division - Jurisdiction of Court of Appeal to entertain applications for leave by Chief Commissioner of Police (Vic) - Criminal law - Suppression orders banning publication of police evidence relating to techniques employed to obtain confessions - Power of court to make unlimited orders consistently with open justice - Supreme Court Act 1986 (No 110) ss 17(1) 17(2) 17A(3) 18 19

Victorian WorkCover Authority v Del Borgo and Others9 VR 470

[2004] VSCA 108·(Court of Appeal) (2004) Winneke P, Ormiston and Eames JJA·11 Jun 2004·25p·

Accident compensation - Workers compensation - Industrial deafness - Cumulative injuries - Award of compensation under 1958 Act table of maims - Continuing employment in same environment - Amendment of legislation in 1994 - New compensation entitlement based on whole-person impairment - Imposition of threshold requirement of 7% binaural loss - Threshold increased to 10% in 1997 - Further industrial deafness - Subsequent claim for compensation - Assessment of whole-person impairment arising from consecutive injuries - Roles of medical panel and Victorian WorkCover Authority in decision-making process - Whether threshold applicable to each subsequent compensation claim or confined to initial claim - Strong competing arguments as to proper construction of legislation - Anomalies on both sides of construction dispute - Worker's construction preferred - Extraneous material used as aid to resolving construction dispute - Accident Compensation Act 1985 (No 10191) ss 5 82 88 89 90 91 98 98C 104B(9)

Dimos v Skaftouros and Others9 VR 584

[2004] VSCA 141·(Court of Appeal) (2004) Winneke P, Batt JA and Dodds-Streeton AJA·20 Aug 2004·36p·

Administration and probate - Executor - Fitness - Removal - Nature and scope of discretion to remove - Legislative purpose - Welfare of beneficiaries - Protection of interests in estate - Jurisdiction not limited to disqualification arising by reason of some legal status - Neglect and breach of duty - Conflict of interest and duty - Antagonism displayed to beneficiaries - Delays in administration of estate - Failure to provide accounts and information - Failure to pay creditors - Exaggerated or unjustified demands for commission and legal costs - "Unfit to act" - Administration and Probate Act 1958 (No 6191) s 34(1)(c).

Courts and judges - Trial - Procedural fairness - Trial judge finding that executor had acted in bad faith in exercise of fiduciary discretion - Not tantamount to finding fraud - Bad faith in exercise of discretion for improper purpose - Standard of proof - Whether findings of fact could be made - Bad faith not expressly pleaded - Relevant evidence admitted without objection - No surprise - Opportunity given to meet allegation.

Statutory interpretation - Presumptions - Judicial construction of words - Subsequent re-enactment in same form - Presumption of parliamentary endorsement - Presumption rebutted.

Gubbins v Wyndham City Council9 VR 620

[2004] VSC 238·Hansen J·2 Jul 2004·20p·

Administrative law - Judicial review - Procedural fairness - Animals and livestock - Dogs - Nuisance - Statutory offences - Discretionary power in municipal council to order destruction of dog - Pit bull chasing and attacking horses with riders - Dog seized by municipal officer - Owner subsequently registering dog - Owner wrongly identifying dog's breed - Municipal officer charging owner with statutory offences - Provisional order for destruction of dog made prior to hearing of charges - Municipality adopting policy guidelines for exercise of power - Owner pleading guilty to charges - Municipality confirming destruction decision relying on policy guidelines - Municipality creating informal appeal process - Power to create appeal not precluded by Act - No legislative exclusion of procedural fairness - Owner exercising right of appeal to panel - Denial of right to make oral submissions - Appeal panel upholding decision - Reliance on matter not previously articulated - Whether appeal panel had denied owner procedural fairness - Domestic (Feral and Nuisance) Animals Act 1994 (No 81) ss 29(1AA) 29(5) 77(1)(d)(ii) 80(4)(b)

Transport Accident Commission v Sweedman10 VR 31

[2004] VSCA 162·(Court of Appeal) (2004) Winneke P, Callaway and Nettle JJA·10 Sept 2004·38p·

Accident compensation - Transport accident - Transport Accident Commission - Payment of benefits - Commission's entitlement to indemnity against tortfeasor - Out-of-State accident - Whether indemnity restricted to accidents occurring in Victoria - Transport Accident Act 1986 s 104

Constitutional law - Federal jurisdiction - Applicable law - Claim by State instrumentality against resident of another State - Statutory claim for indemnity - Characterisation - Whether a claim in tort - Judiciary Act 1903 (Cth) ss 64 79 80

Constitutional law - State statute - Validity - Extra-territorial question of statutes - Whether invalid as purporting to apply outside Victoria - Whether invalid as being inconsistent with laws of another State - Prohibition on imposition of disability or discrimination on basis of residence interstate - Nature and extent of prohibition - Statute conferring right on State instrumentality - Whether subjecting interstate resident to disability or discrimination in Victoria on the ground of residence in another State - Commonwealth Constitution ss 117 118

Key v Payne10 VR 162

[2004] VSCA 197·(Court of Appeal) (2004) Ormiston and Charles JJA and Hansen AJA·4 Nov 2004·17p·

Accident compensation - Workers compensation - Serious injury - Common law proceeding for damages - Preconditions for bringing common law proceeding - Proceeding commenced after 12 November 1997 - Amendments to preconditions with retrospective effect to 12 November 1997 - Whether proceeding affected by amendments - Determination by Victorian WorkCover Authority prior to 12 November 1997 that claimant's degree of impairment less than 30% - Statutes - Interpretation - Retrospective operation - Application to pending proceeding - Authority's determination insufficient to entitle claimant to issue proceeding - No accrued right to sue - Failure to issue proceeding within prescribed time - Action barred - Accident Compensation Act 1985 (No 10191) s 135A(2DE) 135A(4) - County Court Act 1958 (No 6230) s 74(2D)

Victorian WorkCover Authority and Another v Wilson10 VR 298

[2004] VSCA 161·(Court of Appeal) (2004) Winneke P, Callaway and Nettle JJA·10 Sept 2004·14p·

Accident compensation - Workers compensation - Spinal injury - Whole person permanent impairment - Assessment - Table of maims injury - Total loss determination - Victorian WorkCover Authority - Obligation to advise worker "of the assessments and the entitlement to compensation" - Independent medical examination - Purpose - Statutory specification - To "obtain assessment ... and ... determination" - Medical examiner's assessment that worker had total impairment - Whether examiner's determination binding on authority - Worker entitled to be advised only of relevant assessment - Accident Compensation Act 1985 (No 10191) ss 39 52 98C 98E 104B

Statutes - Interpretation - Frequently amended statute - Complex legislative scheme - Words read into statute to effect Parliament's presumed intention - Conditions to be satisfied.

Wilson v State of Victoria10 VR 361

[2004] VSCA 55·(Court of Appeal) (2004) Callaway, Buchanan and Chernov JJA·15 Apr 2004·8p·

Accident compensation - Workers compensation - Serious injury - Common law proceeding for damages - Application for leave to bring proceeding - Criteria for grant of leave - Requirement of employment-related compensable injury occurring between 31 August 1985 and 12 November 1997 - Judge refusing leave - Whether judge posed the wrong question for determination - Accident Compensation Act 1985 (No 10191) ss 4(1) 135A(1) 135A(2) 135A(4)(b) 135A(6) 135A(19)

Winslow Constructors Pty Ltd v Mt Holden Estates Pty Ltd10 VR 435

[2004] VSCA 159·(Court of Appeal) (2004) Callaway and Buchanan JJA and Hansen AJA·8 Sept 2004·31p·

Administrative law - Victorian Civil and Administrative Tribunal - Jurisdiction - Building dispute - Large scale staged residential subdivision of land - Civil engineering and infrastructural works - No titles issued - No homes constructed - No contracts for construction of homes - No certificate of compliance issued under subdivision legislation - Disputes between developer and engineering contractors - Developer claiming damages under Domestic Building Contracts Act 1995 - Whether dispute a "domestic building dispute" - "Associated work" - Nexus - Contemporaneity - Inter-related legislative controls - Whether land zoned for residential purposes under subdivision legislation - Domestic Building Contracts Act 1995 (No 91) ss 3 5(1)(a) 5(1)(e) 5(1)(f) 54(1) - Subdivision Act 1988 (No 53) ss 1 21(1) 22(1) - Building Act 1993 (No 126) ss 16 135

Statutes - Interpretation - Guides to interpretation - Number - Words in the singular include the plural - Meaning of "plural" - Context - Guide not to be used if effect is to change operation or effect of legislation - Interpretation of Legislation Act 1984 (No 10096) s 37

Mond and Another v Berger and Others10 VR 534

[2004] VSC 45·Dodds-Streeton J·23 Feb 2004·62p·

Arbitration and awards - Enforcement - Application to set aside partial award - Arbitrators - Conduct - Misconduct - Arbitration agreement referring dispute to rabbinical court - Governing law - Misconduct determined by Victorian law - Alleged collusion between arbitrators and witness - Procedural fairness - Cross-examination - Reasonable opportunity - Witness leaving jurisdiction before cross-examination completed - Arbitrators offering to arrange for witness to give evidence by video link or otherwise - Offer not taken up - Arbitrators not obliged to ensure attendance of witness - Bias - Award evidencing a basis for suspicion of impartiality - Arbitrators' conduct evidencing prejudgment - One side to dispute abandoning participation in arbitration - Effect of breach of procedural fairness - Conduct said to be permissible under Jewish law - Whether divergence from common law - Public policy requiring common law to prevail - Misconduct by determination of matter not within arbitral reference - Reservation in final award of matters for future determination invalid - Misconduct by failure to determine a matter referred - Misconduct by delegation of arbitrators' power - Commercial Arbitration Act 1984 (No 10167) ss 4 36 42 43 44

Nolan v Nolan and Another10 VR 626

[2003] VSC 121·Dodds-Streeton J·28 Apr 2003·75p·

Personal property - Chose in possession - Gifts inter vivos - Art works - Disputed ownership - Alleged gift by delivery - Artist giving paintings to his wife - Wife closely involved in promoting husband's artistic career - Wife lending paintings by artist for public exhibitions - Exhibition catalogues attributing ownership of some paintings to wife - Artist's wife predeceasing artist - Artist's adopted daughter sole beneficiary of mother's will - Artist aware of distribution of paintings by late wife's estate - Remarriage of artist - Disputed paintings coming into artist's possession - Artist dying leaving all his chattels to widow - Daughter belatedly locating circumstantial evidence said to support prior inter vivos gift to her mother - Daughter's claim as sole beneficiary of mother's will - Whether artist made a gift - Donative intention - Whether necessary to establish words of gift - Whether claim statute-barred - Whether constructive trust - Limitation of Actions Act 1958 (No 6295) ss 6 21

Administration and probate - Claim against deceased estate - Alleged gift inter vivos - Alleged donor and donee both dead - Claim based on circumstantial evidence - Need to approach putative donee's account with caution.

Administration and probate - Beneficiary - Claim against third party - Disputed ownership of paintings - Standing - Plaintiff life tenant only - Only trustees having legal title and right to possession - Estate fully administered - Beneficiary's right to enforce trustees' rights - Need for exceptional circumstances - Beneficiary not entitled to any relief or remedy in own right - Failure to join trustees in claim - Proceeding irregularly constituted.

Evidence - Documents - Admissibility - Art exhibition catalogues - Ancient documents - Hearsay - Statutory exception - Business records - "Person interested" - Evidence Act 1958 (No 6246) ss 3 55(1) 55(4) 55(9)

Body Corporate No 1/PS40911511E St James Apartments v Renaissance Assets Pty Ltd11 VR 41

[2004] VSC 438·Mandie J·9 Nov 2004·13p·

Administrative law - Victorian Civil and Administrative Tribunal - Jurisdiction - Standing - Domestic building dispute - Building works - Defects - Subdivision - Common property - Title - Body corporate - Registered proprietor - Claim by body corporate in respect of works carried out on common property - Tribunal summarily dismissing claim as incompetent - Whether body corporate had any estate or interest in the common property - Interest of unit holders in common property - Inter-locking legislative provisions - Whether inconsistency - "Owner for the time being" - Domestic Building Contracts Act 1995 (No 91) ss 3 53 54(1) 54(3) - Subdivision Act 1988 (No 53) s 28(d) 28(e) - Transfer of Land Act 1958 (No 6399) ss 3(1) 27(7) 97

The Herald & Weekly Times Ltd v The Victorian Civil and Administrative Tribunal11 VR 422

[2005] VSC 44·Bongiorno J·4 Mar 2005·10p·

Administrative law - Public access to information - Tribunal proceeding files - Victorian Civil and Administrative Tribunal - Statutory right of access - Right qualified by conditions specified in tribunal rules - Tribunal rules made denying access unless favourable discretion exercised by tribunal - Validity - Whether rules abridged statutory right - "In respect of" - "For" - "Practice and procedure" - "Condition" - Victorian Civil and Administrative Tribunal Act 1998 (No 53) ss 146 157 Sch 2 - Victorian Civil and Administrative Tribunal Rules 1998 rr 5.04 5.10 6.08 6.17(2) 6.24

The Herald & Weekly Times Ltd v The Victorian Civil and Administrative Tribunal and Others11 VR 431

[2005] VSC 188·Hansen J·1 Jun 2005·18p·

Administrative law - Public access to information - Tribunal proceeding files - Victorian Civil and Administrative Tribunal - Statutory right of access - Right qualified by tribunal power to give contrary direction - Unfettered discretion - Tribunal denying access request by direction given after making of request - Validity - Whether direction could be given in absence of request by party to relevant proceeding - Victorian Civil and Administrative Tribunal Act 1998 (No 53) ss 80(1) 80(2) 146(4)(b).

Williams v Oataway11 VR 529

[2005] VSCA 137·(Court of Appeal) (2005) Batt, Buchanan and Vincent JJA·31 May 2005·15p·

Accident compensation - Transport accident - Workers compensation - Fatal accidents - Dependants' claims - Damages - Interest - Statutory prohibition subject to exception - Date on which permissible interest became payable - Whether date of death or date of commencement of proceeding - Whether interest payable on all or some of damages awarded - "Damages referable to loss actually suffered before the date of the award" - Accident Compensation Act 1985 (No 10191) ss 134AB(34) 135A(16) 135A(17) 135C(5) 135C(6) - Transport Accident Act 1986 (No 111) ss 93(15) 93(16) 175(1) 175(2).

Statutes - Interpretation - Presumptions - Ranking - Presumption against surplusage - Higher order than presumption from re-enactment after judicial interpretation.

Statutes - Interpretation - Presumptions - Presumption from re-enactment after judicial interpretation - Status of County Court decisions - Presumption limited to decisions of superior courts.

Statutes - Interpretation - Presumptions - Presumption against taking away accrued and common law rights - No application to a right created by statute - Interest on judgments.

Statutes - Interpretation - Punctuation - Permissible consideration - Interpretation of Legislation Act 1984 (No 10096) ss 35 36(3B)

DSouza v Royal Australian and New Zealand College of Psychiatrists and Others12 VR 42

[2005] VSC 161·Ashley J·18 May 2005·37p·

Administrative law - Remedies - Certiorari - Domestic tribunal - Amenability to judicial review - Specialist medical professional association - Membership - Candidate for fellowship - Consensual contractual relationship - Fellowship recognised as conferring entitlements under Commonwealth and State legislation - Examiners' decision to fail candidate - Internal review panel upholding decision - Whether examination process involved exercise of public functions - Refusal of relief on discretionary grounds - Availability of contract-based remedy - No utility in granting declaration.

Administrative law - Judicial review - Procedural fairness - Domestic tribunal - Bias - Ground inapplicable to domestic tribunal - Internal merits review process - Aggrieved party not challenging soundness of primary decision - Review tribunal not bound to exercise full extent of jurisdiction.

Contract - Restraint of trade - Scope of doctrine - Medical profession - Psychiatry - Specialist professional college - Candidate for fellowship - Candidate failed by examiners - Effect of decision - Substantial restriction on ability to practise in specialist area - Causation - Existing investigation which would have precluded candidate's election as fellow - Whether examiners' decision unreasonable - Whether continuing non-election of plaintiff to fellowship unreasonable.

Financial Wisdom Ltd v Newman and Others12 VR 79

[2005] VSCA 110·(Court of Appeal) (2005) Eames and Nettle JJA and Williams AJA·10 May 2005·36p·

Companies - Securities industry - Licensed dealers and advisers - Investors' remedies - Defective investment advice - Claims for damages - Statutory liability of indemnifying principal for representative - Representative's conduct engaged in for one of several principals - Investor's belief that representative acting on behalf of assumed principal whether or not identified or identifiable - Statutory presumption that conduct engaged in as representative of some person among indemnifying principals - Whether third party a "party" to a proceeding - Corporations Law ss 819 820 - Supreme Court Act 1986 (No 110) s 3

Appeal - Parties - Joinder - Whether non-party at trial might be joined or treated as defendant on appeal - Amendment - Defence and notice of appeal - Points not raised below.

Practice and procedure - Case management - Parties - Joinder - Defendants removed as parties - Leave to institute separate proceeding against those defendants - Two proceedings heard together - Defendant choosing not to join party - Inability of defendant to rely on statutory defence - Whether justice required removed defendants to be treated as if they were defendants to first proceeding.

Kamener and Others v Griffin and Others12 VR 192

[2005] VSC 202·Ashley J·21 Jun 2005·19p·

Administrative law - Reasons for decision - Adequacy - Accident compensation - Workers compensation - Aggravation injury - Medical panel - Jurisdiction - Referral of questions - Opinion - Panel deciding employment was a significant contributing factor to part of worker's alleged injuries - Panel opinion set aside because of inadequacy of reasons - Panel re-examining plaintiff and forming same opinion - Whether basis of second opinion exposed - Accident Compensation Act 1985 (No 10191) s 5.

Re Petta; Mercuri and Another v Petta and Another12 VR 219

[2005] VSC 199·Byrne J·17 Jun 2005·5p·

Administration and probate - Summons to executor to prove will - Will brought into court - No extant application for probate - Court asked forthwith to grant probate subject to compliance with requirements of Registrar of Probates - Purported reliance on practice - Order refused and suggested practice disapproved - Administration and Probate Act 1958 (No 6191) s 15.

Smith v Transport Accident Commission12 VR 277

[2005] VSCA 251·(Court of Appeal) (2005) Warren CJ, Maxwell P and Nettle JA·6 Oct 2005·13p·

Accident compensation - Transport accident - Transport Accident Commission - Claim for benefits - Refusal - Motor vehicle - Bulldozer - Used in State forest logging operations - Some use on "C" class roads - Accident in forest logging coupe - Whether vehicle "used ... on a highway" - Commission applying actual use test - Departure from decade-long commission practice of applying normal or repeated use test - Commission determination approved on administrative review - Merits review tribunal applying wrong test - Conflicting authorities - Whether court should entertain challenge to more recent established line of authority - Court of Appeal deciding underlying matter instead of remitting it - Transport Accident Act 1986 (No 111) s 3 - Road Safety Act 1986 (No 127) s 3(1)

Transport Accident Commission v Murray12 VR 314

[2005] VSCA 174·(Court of Appeal) (2005) Charles and Buchanan JJA and Osborn AJA·27 Jul 2005·5p·

Accident compensation - Transport accident - Transport Accident Commission - Payment of benefits - Extinguishment of common law right of action - Commission's statutory entitlement to indemnity against tortfeasor - Tortfeasor settling separate action brought by transport accident victim - Judgment entered for tortfeasor - Commission's entitlement to indemnity not extinguished - "Regardless of section 93" - "But for this Act" - Transport Accident Act 1986 (No 111) ss 93 104

R J Gilbertsons Pty Ltd v Skorsis12 VR 386

[2000] VSCA 51·(Court of Appeal) (2000) Winneke P, Buchanan and Chernov JJA·19 Apr 2000·15p·

Accident compensation - Workers compensation - Serious injury - Pre-existing condition - Instability likely to result in incapacity - Worker's exposure to unsafe system of work - Aggravation or acceleration of pre-existing instability - Assessment of damages - Ascertainment of additional incapacity attributable to aggravation - Accident Compensation Act 1985 (No 10191) s 135A(19)(a)

Victorian Workcover Authority v Vitoratos12 VR 437

[2005] VSCA 261·(Court of Appeal) (2005) Callaway, Buchanan and Nettle JJA·16 Nov 2005·11p·

Accident compensation - Workers compensation - Weekly payments - Successful claim for arrears - Interest - Calculation - Whether interest calculated on each weekly payment from date of accrual or on entirety of outstanding payments from date of incapacity - Whether interest to be calculated on gross or after tax amount - Whether deductions for income tax and Centrelink allowances - "The amount of outstanding weekly payments" - "In respect of the period specified" - Accident Compensation Act 1985 (No 10191) s 114E(1)(b)

Statutes - Interpretation - Whether choice between competing interpretations - Whether rewriting of statute required - Conditions for reading words into statute - Whether satisfied.

Paget v JLT Workers Compensation Services Pty Ltd12 VR 692

[2005] VSCA 144·(Court of Appeal) (2005) Winneke ACJ, Charles and Callaway JJA·9 Jun 2005·9p·

Accident compensation - Workers' compensation - Leave to bring common law proceedings - Serious injury - Cause of action arising before 12 November 1997 - Incapacity arising from injury not known until after 12 November 1997 - Leave application not to be commenced unless specified steps taken by worker before expiration of three years after date incapacity "became known" - Onus of proof on worker - Proof of absence of actual subjective knowledge sufficient - Whether discharged - Accident Compensation Act 1985 (No 10191) ss 135A(4)(b) 135AC(b)

Swintons Pty Ltd v Age Old Builders Pty Ltd13 VR 381

[2005] VSCA 217·(Court of Appeal) (2005) Charles, Callaway and Chernov JJA·2 Sept 2005·10p·

Building contracts - Domestic building works - Disputes - Legislative prohibition on reference of disputes to arbitration - Future and existing disputes - Voluntary ad hoc reference of existing dispute to building consultant for binding determination - Parties not prohibited from adopting alternative dispute resolution - Domestic Building Contracts Act 1995 (No 91) ss 1 57 132

Appeal - Court of Appeal - Practice and procedure - Outline of submissions - Procedure to be followed by party when detailed written argument required because of complexity or other reason - Practice Statement CA1 of 1995.

Serdzeff v Victorian Workcover Authority14 VR 43

[2005] VSCA 320·(Court of Appeal) (2005) Maxwell P, Charles and Chernov JJA·21 Dec 2005·12p·

Accident compensation - Workers compensation - Work-related death - Dependency claim - Domestic partner - Deceased workers earnings very small - Claimants earnings substantially greater than those of deceased worker - Claimant partly dependent on deceased workers earnings - Two-stage test for entitlement - Statutory fiction calling for claimants earnings to be disregarded - Claimant mainly dependent on workers earnings by application of statutory fiction - Overlapping definitions of "dependant" and "dependent partner" - Accident Compensation Act 1985 (No 10191) ss 82(2) 92A

Leeburn v Derndorfer and Another14 VR 100

[2004] VSC 172·Byrne J·4 Jun 2004·9p·

Administration and probate - Duties of executors - Ashes of cremated body - Whether ashes should be divided - Jurisdiction of court to intervene.

Lafranchi v Transport Accident Act14 VR 359

[2006] VSCA 81·(Court of Appeal) (2006) Maxwell P, Neave JA and Mandie AJA·12 Apr 2006·16p·

Accident compensation - Transport accident - Transport Accident Commission - Claim for indemnity - Single motor vehicle accident - Negligence - Res ipsa loquitur - Applicability - Requirements - Whether absence of explanation of accident - Trial judge rejecting defendant's explanation - Relevance of expert evidence.

Practice and procedure - Appeal - Party permitted to withdraw concession made at trial.

Pope v WS Walker & Sons Pty Ltd and Another14 VR 435

[2006] VSCA 227·(Court of Appeal) (2006) Eames and Neave JJA and Bell AJA·25 Oct 2006·12p·

Accident compensation - Workers compensation - Entitlement - Medical panels - Binding opinions - Abolition and restoration of common law right to sue for damages - Effect of restoration on amended medical panels scheme - Prior panel opinion concerning statutory benefits claim - Later application to institute common law claim - Whether County Court bound by panel opinion - Accident Compensation Act 1985 (No 10191) ss 45(1A) 68(4) 134AB

Statutory interpretation - Purposive interpretation - Context - History - Literal interpretation productive of manifest absurdity.

Grech v Orica Australia Pty Ltd and Another14 VR 602

[2006] VSCA 172·(Court of Appeal) (2006) Buchanan, Chernov and Ashley JJA·31 Aug 2006·20p·

Accident compensation - Workers compensation - Proscription on recovering damages for injury suffered between 12 November 1997 and before 20 October 1999 - Prescribed circumstances for recovering damages for injury suffered after 20 October 1999 - Necessary preliminary step for plaintiff to show he or she suffered a compensable injury after 20 October 1999 - Principles to be applied to plaintiff's claim - Employment before and after 20 October 1999 - Nature of appeal - Accident Compensation Act 1985 (No 10191) ss 134AB 134AD 134A

Barwon Spinners Pty Ltd and Others v Podolak14 VR 622

[2005] VSCA 33·(Court of Appeal) (2005) Ormiston, Chernov and Phillips JJA·25 Feb 2005·51p·

Accident compensation - Workers compensation - Leave to bring common law proceedings - Serious injury - Physiological change - Impairment to body function not sufficient - Serious injury arising on or after 20 October 1999 - Necessary for injury to be linked to employment on or after that date - Permanent serious impairment - Necessary to demonstrate likelihood that impairment would last for foreseeable future - Loss of earning capacity - Suitable alternative employment - Whether concerned with practicalities of worker's employability - Onus of proof - Accident Compensation Act 1985 (No 10191) ss 5 134AB(1) 134AB(2) 134AB(16) 134AB(37) 134AB(38) 134AD

Courts - Appeals - Court of Appeal - Appeal from County Court - Accident compensation - Workers compensation - Appeal from determination regarding serious injury - Principles and constraints - Court directed to "decide for itself" - Meaning and effect - Accident Compensation Act 1985 (No 10191) ss 134AC s 134AD

NIML Ltd v Man Financial Australia Ltd15 VR 156

[2006] VSCA 128·(Court of Appeal) (2006) Buchanan and Nettle JJA and Bongiorno AJA·19 Jun 2006·19p·

Tort - Conversion - Cheques drawn by fraudulent employee of appellant in pretended exercise of authority to draw cheques on account - Cheques deposited for credit to account of respondent - Collecting bank also paying bank - Bank's authority to pay cheques amounted to authority to collect proceeds for account of respondent - Whether conversion by collecting bank - Knowledge of irregularities by agents of respondent - Whether conversion by respondent.

Agency and agents - Ostensible authority - Ostensible authority of fraudster to draw cheques included authority to deposit cheques for collection - Notice - Collecting bank as respondent's agent - Notice to collecting bank notice to respondent - Notice to other agents of respondent - Aggregation of notice to different agents.

ABC Developmental Learning Centres Pty Ltd v Secretary, the Department of Human Services15 VR 489

[2007] VSC 37·Hollingworth J·14 Mar 2007·8p·

Administrative law - Occupational licensing - Enforcement - Investigation - Regulator's power to request information and production of documents - Request - Validity - Children's Services Act 1996 (No 53) ss 3, 36(1), 41, 46

Infants and juveniles - Child care centres - Licensed operators - Investigation of alleged incidents at two centres - Purported statutory request for information and documents - Validity - Request not directed to any person present at specific licensed centres at time of request - Operator declining to comply - Threatened prosecution - Children's Services Act 1996 (No 53) ss 3, 36(1), 41, 46

Schierholter v County Court of Victoria and Another15 VR 583

[2006] VSCA 262·(Court of Appeal) (2006) Warren CJ, Chernov and Nettle JJA·16 Nov 2006·9p·

Administrative law - Delegated authority - Victorian WorkCover Authority - Authority delegating powers including power of delegation to Chief Executive Officer ("CEO") - Prosecution - CEO delegating power to prosecute to Director of Legal Services - Director authorising inspector to commence specific prosecution - Director not acting as delegate of authority - Accident Compensation Act 1985 (No 10191) ss 21, 245

Employer and employee - Occupational health and safety - Offences - Prosecution - Authorisation - Validity - Evidence - Occupational Health and Safety Act 1985 (No 10190) s 48

Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis15 VR 649

[2007] VSCA 46·(Court of Appeal) (2007) Maxwell P, Neave JA and Kellam AJA·22 Mar 2007·18p·

Accident compensation - Workers compensation - Leave to bring common law proceedings - Serious injury - Chronic pain condition - Psychological embellishment of physical symptoms - Differentiation of psychological and physical consequences of injury - Appeal against grant of leave - Trial judge's reasons inadequate - Appeal allowed - Court of Appeal authorised to decide serious injury issue for itself - Credibility issue necessitating retrial - Accident Compensation Act 1985 (No 10191) ss 134AB(16), 134AB(37), 134AB(38)(h), 134AD

Keller v Keller15 VR 667

[2007] VSC 118·Hargrave J·30 Mar 2007·6p·

Administration and probate - Executors - Rights and duties - Funeral arrangements - Disposal of deceased's body - Irreconcilable family dispute between beneficiaries as to method of disposal - Sole independent executor unwilling to select method - Exercise of discretion by court - Selection of party with stronger moral claim - Respect for deceased necessitating urgent resolution - Impossibility of court deciding merits of complex factual disputes - Reliance on uncontradicted and independent evidence.

Raeburn v Tenix Defence Systems Pty Ltd16 VR 290

[2007] VSCA 90·(Court of Appeal) (2007) Maxwell ACJ, Nettle and Ashley JJA·11 May 2007·6p·

Accident compensation - Workers compensation - Damages - Costs - Statutory scheme of compulsory pre-trial settlement offers - Costs consequences of refusing offer - Plaintiff's liability to bear own costs of trial - Costs liability reckoned according to amount of judgment for plaintiff - Ascertainment of amount - Reduction for statutory compensation payments made prior to trial - Time for effecting reduction - Whether relevant judgment equated to jury verdict or net amount after reduction - "If judgment is obtained ... in an amount" - Accident Compensation Act 1985 (No 10191) s 134AB(12), 134AB(25), 134AB(28)

Nisselle v Brouwer16 VR 296

[2007] VSC 147·Gillard J·15 May 2007·22p·

Administrative law - Ombudsman - Jurisdiction - Proposed investigation - Administrative action - Accident compensation - Workers compensation - Medical panels - Convenor - Complaint about convening of panels - Whether convening of panels administrative action - Ombudsman not permitted to investigate administrative action taken by judge or court - Convenor enjoying immunity from suit - "Administrative action" - "In respect of" - Ombudsman Act 1973 (No 8414) ss 13(1), 16(3) - Accident Compensation Act 1985 (No 10191) s 65

Victorian Workcover Authority and Another v Game16 VR 393

[2007] VSCA 86·(Court of Appeal) (2007) Maxwell ACJ, Nettle and Ashley JJA·11 May 2007·16p·

Accident compensation - Workers compensation - Widow's claim for work-related death - Whether deceased person worker or independent contractor - Competing indicia - Deceased conducting bricklaying partnership - Partnership engaged to undertake work on construction site - Temporary halt to bricklaying work - Deceased separately engaged on hourly rate to dig trench - Contemporaneous contract for services and contract of service - Accident Compensation Act 1985 (No 10191) ss 5(1), 8(1)

Footscray City College v Ruzicka16 VR 498

[2007] VSCA 136·Warren CJ, Maxwell P and Chernov JA·27 Jun 2007·10p·

Accident compensation - Workers compensation - Lump sum compensation - Costs - Worker succeeding on weekly payments claim and failing on lump sum claim - Order that employer pay costs solely attributable to weekly payments claim - No order for costs of unsuccessful claim - "Otherwise" - Accident Compensation Act 1985 (No 10191) ss 50(1), 50(2A), 98, 98A, 104.

Melbourne Water Corporation v Domus Design Pty Ltd and Another16 VR 539

[2007] VSC 114·Gillard J·9 May 2007·24p·

Administrative law - Judicial review - Planning and environment controls - Planning scheme - Responsible authority - Referral authority - Subdivision - Permit - Conditions - Validity - Test - Flood-prone land - Floodplain management - Referral authority requiring additional permit condition - Creation of drainage easement in favour of referral authority - Merits review application - Victorian Civil and Administrative Tribunal - Tribunal directing issue of permit omitting referral authority's condition - Tribunal failing to formulate and apply correct test of validity of condition - Tribunal failing to consider merits properly - Planning and Environment Act 1987 (No 45) ss 55, 56, 80(1), 84B, 85 - Water Act 1989 (No 80) s 136 - Victorian Civil and Administrative Tribunal Act 1998 (No 53) ss 40, 42, 148

Applicants A1 and A2 v Brouwer and Another16 VR 612

[2007] VSCA 139·(Court of Appeal) (2007) Maxwell P, Neave and Redlich JJA·28 Jun 2007·25p·

Administrative law - Judicial review - Jurisdictional error - Witness protection scheme - Chief Commissioner of Police - Termination of protection - Confirmation on internal review - External review - Appeal to Director, Police Integrity - Legislation not specifying nature of appeal - Recognised categories of appeal - 72-hour time limit for determination of appeal - Chief Commissioner's specialist expertise not indicative of nature of appeal - Director erroneously defining appeal - Hearing de novo required - Witness Protection Act 1991 (No 15) ss 16(2), 17(3), 17(5), 17(6), 18(1), 18(2)

Administrative law - Judicial review - Privative clause - Principle of construction - Whether judicial review precluded - "Action or proceeding ... against any person" - Witness Protection Act 1991 (No 15) 12(3).

Practice and procedure - Appeal - Leave to appeal - Judicial review - Refusal of certiorari - Whether final.

Mountain Pine Furniture Pty Ltd v Taylor and Others16 VR 659

[2007] VSCA 146·(Court of Appeal) (2007) Vincent, Nettle and Ashley JJA·6 Jul 2007·14p·

Accident compensation - Workers compensation - Serious injury - Permanent impairment - Assessment - American Medical Association Guides to the Evaluation of Permanent Impairment (4th ed) - Interpretation - Internal inconsistency - Falso demonstratio non nocet cum de corpore constat - Spinal injury - Beneficial effect of surgery to be disregarded - Accident Compensation Act 1985 (No 10191) ss 67, 91, 98C, 104B(9).

Wills v A C Nielsen Pty Ltd and Another17 VR 53

[2007] VSCA 159·(Court of Appeal) (2007) Warren CJ, Nettle and Neave JJA·23 Aug 2007·12p·

Accident compensation - Workers compensation - Serious injury - Leave to commence common law proceedings - Injury suffered on or after 20 October 1999 - Onus of proof - Proof of compensable injury amounting to serious injury after relevant date - Inconsistencies in plaintiff's statements - Pre-existing injury to lower back - Exacerbation basis for claim impermissible on appeal - Accident Compensation Act 1985 (No 10191) ss 134AB(1), 134AB(16)(b), 134AB(38), 134AD, 134AE

AEP Industries Australia Pty Ltd v Mahmoud17 VR 144

[2007] VSCA 203·(Court of Appeal) (2007) Maxwell P, Chernov and Redlich JJA·21 Sept 2007·9p·

Accident compensation - Workers compensation - Leave to commence common law proceedings - Time bar - Serious injury - Cause of action arising before 12 November 1997 - Injury - Consequences of injury - Redundancy - Worker unable to obtain substitute employment - Worker's state of relevant knowledge - Whether knowledge first acquired before relevant date - Knowledge of severity of injury and incapacity - Knowledge of pecuniary disadvantage - Knowledge of consequential incapacity - "Incapacity arising from the injury" - Accident Compensation Act 1985 (No 10191) s 135AC(b)

State of Victoria v Turner17 VR 217

[2007] VSC 362·Warren CJ·25 Sept 2007·5p·

Administrative law - Victorian Civil and Administrative Tribunal - Discrimination complaint - School student - Learning disability - Tribunal finding complaint proved in part - Tribunal scheduling directions hearing for remedy stage and dismissing remainder of complaint - Appeal to Supreme Court - Appeal against master's grant of leave to appeal - Preliminary issue - Whether VCAT decision appellable - "Order" - Equal Opportunity Act 1995 (No 42) s 136(1) - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 148(1)(b) - Supreme Court (General Civil Procedure) Rules 2005 r 77.05.

Kelso v Tatiara Meat Co Pty Ltd17 VR 592

[2007] VSCA 267·(Court of Appeal) (2007) Buchanan, Nettle, Ashley, Kellam and Dodds-Streeton JJA·28 Nov 2007·40p·

Accident compensation - Workers compensation - Leave to bring common law proceedings - Serious injury - County Court - Leave refused - Reasons - Adequacy - Impression and value judgment - Status of County Court hearing serious injury applications - Not specialist tribunal for purpose of such applications - "Decide for itself" - Accident Compensation Act 1985 (No 10191) ss 134AB(16), 134AB(37), 134AC, 134AD - County Court Act 1958 (No 6230) s 74.

Courts and judges - Appeals - Court of Appeal - Appeal from County Court - Accident compensation - Workers compensation - Serious injury - Appeal from refusal of leave to bring common law proceedings - Nature of appeal - Conventional rehearing - Onus of persuasion - Court of Appeal directed to decide for itself - Record not equipping Court of Appeal to do so - Proceeding remitted to County Court - Accident Compensation Act 1985 (No 10191) ss 134AB(16), 134AB(37), 134AC, 134AD, 134AE

Myers v Medical Practitioners Board of Victoria18 VR 48

[2007] VSCA 163·(Court of Appeal) (2007) Warren CJ, Chernov JA and Bell AJA·23 Aug 2007·22p·

Administrative law - Victorian Civil and Administrative Tribunal - Appeal to Supreme Court - Leave to appeal - Question of law - Discretion - Appeal grounds impermissibly impugning findings of fact - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 148(1).

Medical practitioners and services - Discipline - Medical Practitioners Board - Procedural fairness - Unprofessional conduct - Particulars of allegations - Medical Practice Act 1994 (No 23) s 3(1)(a), 3(1)(b).

Alcoa Portland Aluminium Pty Ltd v Victorian WorkCover Authority18 VR 146

[2007] VSCA 210·(Court of Appeal) (2007) Maxwell ACJ, Chernov and Neave JJA·11 Oct 2007·18p·

Accident compensation - Workers compensation - Employer - Liability to pay compensation - Victorian WorkCover Authority (VWA) - Indemnity claim against third party - Hypothetical assessment - Formula - Reasonable costs of medical services - Cost of medical reports obtained by VWA - Whether Pt VB of Wrongs Act 1958 applicable to hypothetical assessment - Gratuitous services - Prohibition on damages for gratuitous services - "Amount of compensation paid or payable" - Accident Compensation Act 1985 (No 10191) ss 5, 99, 138(1), 138(3) - Wrongs Act 1958 (No 6420) ss 28B, 28C(2)(c), 28IA

Oil Basins Ltd v BHP Billiton Ltd and Others18 VR 346

[2007] VSCA 255·(Court of Appeal) (2007) Buchanan, Nettle and Dodds-Streeton JJA·16 Nov 2007·30p·

Arbitration and awards - Interim award - Judicial review - Error of law on face of award - Form of award - Requirements - Reasons - Adequacy - Complex commercial arbitration - Petroleum royalty agreement - Interpretation - Foreign law - Expert evidence - Conflict in evidence - Majority award - Majority's failure to explain preference for one expert over others - Substantial effect on party's rights - Arbitrator's misconduct - Technical misconduct - Award set aside - Commercial Arbitration Act 1984 (No 10167) ss 20, 29(1)(c), 38, 42, 43

Secretary to the Department of Infrastructure v Asher19 VR 17

[2007] VSCA 272·(Court of Appeal) (2007) Buchanan, Vincent and Redlich JJA·4 Dec 2007·16p·

Administrative law - Freedom of information - Exemptions - Cabinet documents - Consideration by Cabinet - Copy drafts and excerpts of Cabinet documents - Disclosure of Cabinet deliberations or decisions - Rationale of exemption - One agency instructing another agency to prepare reports - Reports having dual purposes - Use by instructing agency to advise its ministers - Use by instructing agency as raw material which might be submitted to Cabinet - Reporting agency instructed to mark reports Cabinet-in-confidence - Content of reports transposed and included in full or summary form in submission to Cabinet committee - Documents not exempt - "Deliberation" - Freedom of Information Act 1982 (No 9859) ss 3, 28(1)(b), 28(1)(c), 28(1)(d).

Shields v Chief Commissioner of Police19 VR 33

[2008] VSC 2·Bell J·30 Jan 2008·35p·

Administrative law - Judicial review - Non-discretionary disciplinary power - Procedural fairness - Content of obligation - Victoria Police - Chief Commissioner - Power to dismiss member - Assessment of member's integrity - Assessment of potential loss of community confidence in force if person were to remain member - Extent of Commissioner's disclosure obligation - Relevant considerations - Alleged improper purpose - Commissioner's onus of satisfaction - Availability of alternative disciplinary procedures - No evidence challenge - "May" - Police Regulation Act 1958 (No 6338) s 68.

Statutes - Interpretation - Principal Act - Amending Act - Interpretation of amending Act - Common law principle - Principal and amending Acts to be read together - Whether amending Act conferred discretion - Principal Act passed before Interpretation of Legislation Act 1984 - Interpretation Act providing that statute using "may" to be interpreted as conferring discretion - Amending Act passed after 1984 Act - Whether common law principle or Interpretation Act direction applied - "May" - "Contrary intention" - Police Regulation Act 1958 (No 6338) s 68 - Interpretation of Legislation Act 1984 (No 10096) s 45.

Winky Pop Pty Ltd and Another v Hobsons Bay City Council19 VR 312

[2007] VSC 468·Kaye J·16 Nov 2007·23p·

Administrative law - Judicial review - Procedural fairness - Bias - Pre-judgment - Step in decision-making process - Amenability to review - Discretion - Town planning - Municipal council decision - Final decision in process made by minister - Councillor's vote determinative of resolutions - Potential effect on landowner's legal rights or liabilities - Planning and Environment Act 1987 (No 45) ss 21 22 24 27 29 31 35 39

Local government - Councillors - Conflict of interest - Proposed planning scheme amendment - Submission by councillor in personal capacity - Referral to statutory panel - Councillor declaring interest and not participating in referral decision - Councillor making submissions to panel - Panel report - Council consideration of opposing resolutions regarding report - Councillor voting on resolutions - Validity of resolutions - "Interest" - "Of the opinion" - Local Government Act 1989 (No 11) ss 77A(2) 77B 79

State of Victoria v Subramanian19 VR 335

[2008] VSC 9·Cavanough J·5 Feb 2008·23p·

Tort - Negligence - Personal injury - Breach of duty - Risk calculus - Causation - Schoolyard accident - Student attempting to lift heavy drainage grille - Claim based on failure to supervise students failing - Claim based on failure to warn of hazard succeeding - Reasonableness of school's response to foreseeable hazard - Causation - Efficacy of proposed warning not considered.

Appeal - Magistrates' Court - Appeal to Supreme Court on question of law - Challenge to factual determinations - Common law negligence - Failure to consider relevant matters - No evidence ground - Test - Case remitted for further hearing - "Question of law" - Magistrates' Court Act 1989 (No 51) s 109

Garde-Wilson v Legal Services Board19 VR 398

[2008] VSCA 43·(Court of Appeal) (2008) Buchanan, Nettle and Dodds-Streeton JJA·19 Mar 2008·24p·

Administrative law - Judicial review - Jurisdiction - Legal Practice Board - Solicitor - Practising certificate - Renewal - Refusal - Board satisfied solicitor not fit and proper person - Statutory maximum period for disposing of renewal application - Delay in making decision - Whether decision void - "Until the application has been finally determined" - Legal Profession Act 2004 (No 99) ss 2.4.5(3), 2.4.12(2)

Administrative law - Judicial review - Remedies - Discretion to refuse - Adequate alternative remedy - Merits review - Victorian Civil and Administrative Tribunal - Pending application - Nature and scope - Alleged lack of natural justice by decision maker - Judicial review not precluded by availability of merits review.

Macedon Ranges Shire Council v Romsey Hotel Pty Ltd and Another19 VR 422

[2008] VSCA 45·(Court of Appeal) (2008) Warren CJ, Maxwell P and Osborn AJA·19 Mar 2008·27p·

Administrative law - Judicial review - Error of law - Relevant considerations - Failure to take into account - Gambling regulation - Electronic gaming machines - Approval of premises - Hotel - Victorian Civil and Administrative Tribunal - Review of decision of Victorian Commission for Gambling Regulation - Commission refusing approval - Statutory no net detriment test - Commission's duty to inquire - Public participation in primary decision-making - Survey evidence of local community opposition to approval - Tribunal setting decision aside and granting approval - Tribunal failing to take community opposition into account - "Net economic and social impact of approval" - "Detrimental to the wellbeing of the community" - Gambling Regulation Act 2003 (No 114) s 3.3.7.

Administrative law - Merits review - Victorian Civil and Administrative Tribunal - Primary decision-maker - Misapprehension of role - Entitlement to support own decision - Participation in tribunal review - Obligations - Duty to assist in review proceedings - Victorian Civil and Administrative Tribunal Act 1998 (No 53) ss 49(1) 59

Owens v University of Melbourne and Another19 VR 449

[2008] VSC 174·Judd J·27 May 2008·9p·

Accident compensation - Workers compensation - Injury arising out of or in the course of employment - Serious injury - Common law damages entitlement - Procedural restrictions enacted in 2000 - Whether restrictions applicable to whistleblower's statutory reprisal action against employer - Accident Compensation Act 1985 (No 10191) s 134AB - Whistleblowers Protection Act 2001 (No 36) s 19

Tort - Whistleblowers protection - Protected notification - Detrimental action - Employer and employee - Alleged reprisal - Statutory reprisal action against employer and fellow employee - Whistleblowers Protection Act 2001 (No 36) s 19

Groser v Equity Trustees Ltd19 VR 598

[2008] VSC 163·Habersberger J·15 May 2008·14p·

Administration and probate - Testator's family maintenance - Widow's claim - Compromise - Enforceability - Conditions subsequent - Conditional on Attorney-General not opposing and on making of consent orders - Death of claimant before conditions satisfied - Attorney-General indicating non-opposition to compromise - Whether Attorney-General's decision invalid and nullity - Whether consent order could be made - Administration and Probate Act 1958 (No 6191) Pt IV

Administration and probate - Survival of actions - Testator's family maintenance - Death of claimant before compromise unconditional.

Judgments, orders and declarations - Consent order - Discretion to refuse.

Costs - Administration and probate - Novel point - Attorney-General intervening - Whether costs to be paid out of estate.

Byrne v Marles and Another19 VR 612

[2008] VSCA 78·(Court of Appeal) (2008) Nettle and Dodds-Streeton JJA and Coghlan AJA·16 May 2008·28p·

Legal practitioners - Solicitors - Complaint - Characterisation - Disciplinary complaint - Validity - Legal Services Commissioner - Complaint made to Law Institute of Victoria - Institute referring complaint to commissioner - Delegate of commissioner referring complaint back to institute for investigation - Delegation effective - Legal Profession Act 2004 (No 99) ss 4.2.5 4.2.8 4.4.7 4.4.9 6.3.12 6.4.1

Legal practitioners - Solicitors - Disciplinary complaint - Notification of complaint to practitioner - Validity - Provision of copy complaint effective - Legal Profession Act 2004 (No 99) s 4.2.8

Legal practitioners - Solicitors - Disciplinary complaint - Discretion to investigate complaint - Wednesbury test applicable - Legal Profession Act 2004 (No 99) ss 4.4.7 4.4.9

Administrative law - Judicial review - Remedies - Certiorari - Availability - Decision affecting legal rights - Legal Services Commissioner - Decision referring complaint to investigatory body - Procedural fairness - Characterisation of complaint as disciplinary - Procedural or substantive - Right to be heard prior to referral.

Towie v State of Victoria19 VR 640

[2008] VSC 177·Kyrou J·28 May 2008·22p·

Administrative law - Procedural fairness - Victorian Civil and Administrative Tribunal - Whether tribunal entitled to act on own motion - Reliance on case not raised by applicant for summary relief - Applicant's right to be informed - Victorian Civil and Administrative Tribunal Act 1998 (No 53) ss 75 98(1)(a).

Administrative law - Victorian Civil and Administrative Tribunal - Summary dismissal power - Two legislative sources - Availability of one procedure not precluding availability of other - Victorian Civil and Administrative Tribunal Act 1998 (No 53) - Equal Opportunity Act 1995 (No 42) s 109.

Administrative law - Victorian Civil and Administrative Tribunal - Whether denial of natural justice is an error of law for purposes of an appeal - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 148.

Discrimination - Impairment discrimination - Litigant - High frequency deafness - Court staff refusing request for supply of equipment to facilitate hearing of court proceeding - "Services" - Equal Opportunity Act 1995 (No 42) ss 4(1) 102 - Magistrates' Court Act 1989 (No 51) s 24.

Constitutional law - Judiciary - Immunity - Magistrates' Court - Litigant - Hearing impairment - Court staff refusing request to supply equipment for court hearing - Impairment discrimination - Whether Magistrates' Court registry staff immune from liability - Whether State of Victoria vicariously or directly liable if contravention by registry staff.

Geelong Community for Good Life Inc v Environment Protection Authority and Another20 VR 338

[2008] VSC 185·Cavanough J·3 Jun 2008·24p·

Administrative law - Judicial review - Procedural fairness - Entitlement to a hearing - Legitimate expectation doctrine - Scope - Statutory decision-maker's right to terminate expectation - Environment protection - Environment Protection Authority ("EPA") - Waste discharge licence - Oil refinery - Refiner seeking amendment of licence conditions - Third party objector - Local environment group - Participation in earlier public consultation process about licensee's operations - Non-legally binding environmental improvement plan - Breakdown in group's relationship with refiner and EPA - Group not provided with full details of refiner's licence amendment application - Licence conditions amended - Whether established public consultation process entitled group to hearing - No presumption - Whether failure to grant hearing - Environment Protection Act 1970 (No 8056) s 20C(2).

Sabet v Medical Practitioners Board of Victoria20 VR 414

[2008] VSC 346·Hollingworth J·12 Sept 2008·33p·

Administrative law - Judicial review - Review grounds - Disproportionality not a discrete ground - Occupational regulation - Medical practitioner - Misconduct - Suspension - Medical Practitioners Board - Application of statutory necessity test - Public health and safety - Risk of endangerment - Relevant considerations - Administrative Law Act 1978 (No 9234) ss 7 10 - Health Professions Registration Act 2005 (No 97) ss 3 40 59

Human rights - Presumption of innocence - Public authority - Medical Practitioners Board - Protective powers - Suspension of practitioner's registration - Whether exercising administrative or judicial power - Limitation on right - Reasonableness - "Necessary" - "Public authority" - Charter of Human Rights and Responsibilities Act 2006 (No 43) ss 4 7 25 34 35 38 39

ISPT Pty Ltd v Melbourne City Council and Another20 VR 447

[2008] VSCA 180·(Court of Appeal) (2008) Warren CJ, Kellam JA and Osborn AJA·19 Sept 2008·34p·

Valuation of land - Municipal valuation - Site value - Highest and best use - Range of potential uses - Evidence of sales - Valuation of Land Act 1960 (No 6653) ss 2 5A

Administrative law - Merits review - Victorian Civil and Administrative Tribunal - Valuation of land - Whether tribunal acting as expert tribunal - Whether factual finding open - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 64 - Victorian Civil and Administrative Tribunal Rules 1998 r 2.06

Administrative law - Merits review - Victorian Civil and Administrative Tribunal - Leave to appeal - Question of law - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 148

DSG Pty Ltd v Victorian WorkCover Authority20 VR 514

[2008] VSCA 42·(Court of Appeal) (2008) Ashley and Dodds-Streeton JJA and Pagone AJA·3 Apr 2008·25p·

Accident compensation - Workers compensation - Victorian WorkCover Authority (VWA) - Entitlement to indemnity - Third party liability - Employer - Labour hire company - Hiring out of employee - Employee injured at host employer's premises - VWA reimbursing employer for weekly compensation - VWA indemnity claim against host employer - Nature of labour hire contract - "Circumstances creating a legal liability in a third party" - Accident Compensation Act 1985 (No 10191) ss 9 138.

Church v Echuca Regional Health20 VR 566

[2008] VSCA 153·(Court of Appeal) (2008) Buchanan and Ashley JJA and Pagone AJA·29 Aug 2008·30p·

Accident compensation - Workers compensation - Serious injury - Leave to bring common law proceedings - Application refused - Reasons - Inadequate - Appeal - Principles governing remitter for rehearing - Whether Court of Appeal as well-placed as the trial judge to decide the application - Accident Compensation Act 1985 (No 10191) ss 134AB(16)(b) 134AB(37) 134AC 134AE

Courts and judges - Appeals - Court of Appeal - Appeal from County Court - Principles and constraints - Accident compensation - Workers compensation - Serious injury - Appeal from dismissal of application for leave to bring proceeding for damages - Court of Appeal directed to "decide for itself" - Reliance upon evidence and other material before trial judge - Permissible use of trial judge's reasons - Accident Compensation Act 1985 (No 10191) ss 134C 134AD - County Court Act 1958 (No 6230) s 74

Jayatilake v Toyota Motor Corporation Australia Ltd20 VR 605

[2008] VSCA 167·(Court of Appeal) (2008) Ashley and Neave JJA and Pagone AJA·2 Sept 2008·33p·

Accident compensation - Workers compensation - Leave to bring common law proceedings - Appeal against refusal of leave - Serious injury - Chronic low back pain condition - Possible pre-existing degenerative condition - Disentangling of psychological and psychiatric consequences of compensable physical injury - Consideration of all evidence - Accident Compensation Act 1985 (No 10191) ss 134AB(16)(b) 134AB(19) 134AB(37) 134AB(38)(h) 134AD.

Courts and judges - Appeals - Appeal from County Court - Accident compensation - Workers compensation - Serious injury application - Court of Appeal to decide serious injury question for itself - Conflicting expert medical opinion - Determination according to entirety of evidence.

Weinstein v Medical Practitioners Board of Victoria21 VR 29

[2008] VSCA 193·(Court of Appeal) (2008) Maxwell P, Neave and Weinberg JJA·13 Nov 2008·14p·

Administrative law - Judicial review - Tribunals - Occupational regulation - Medical practitioner - Professional conduct - Investigation - Medical Practitioners Board - Board power to inform itself in any way thought fit - Witness examined about qualifications of overseas expert - Board making independent on-line Google search - Whether ultra vires - Whether investigation process inquisitorial or adversarial - "May inform itself in any way it thinks fit" - "Not bound by the rules of evidence" - Medical Practice Act 1994 (No 23) s 52

Administrative law - Judicial review - Procedural fairness - Ostensible bias - Notional fair-minded observer - Imputed knowledge of decision-making context.

Practice and procedure - Costs - Appeal dismissed - Whether departure from usual costs order - Whether successful argument raised before judge at first instance - Whether appeal initiated in public interest - Appellant ordered to pay respondent's costs of appeal.

Leeks v XY21 VR 118

[2008] VSCA 21·(Court of Appeal) (2008) Buchanan, Vincent and Redlich JJA·20 Feb 2008·17p·

Evidence - Standard of proof - Burden of proof - Civil proceeding - Damages - Sexual assault - Claim by patient against psychiatrist - Gravity of allegations - Strength of evidence - Clear and cogent proof required - Defendant's denials - Credibility of parties - Whether open to trial judge to find plaintiff had discharged burden.

Evidence - Admissibility - Recent invention - Prior consistent statement - Permissible use - Statement used to re-establish the party's credit.

Appeal - Evidence - Witness - Credit - When trial judge's conclusions as to credit may be overturned.

Smorgon Steel Tube Mills Pty Ltd v Majkic21 VR 193

[2008] VSCA 230·(Court of Appeal) (2008) Buchanan and Kellam JJA and Robson AJA·25 Nov 2008·10p·

Accident compensation - Workers compensation - Leave to bring common law proceedings - Serious injury - Foot fracture - Chronic regional pain syndrome - Physical origin - Loss of earning capacity - Regard to be had to the realities of the labour market - "Suitable employment" - Accident Compensation Act 1985 (No 10191) ss 5 134AB(38)(f).

Azzopardi Haulage Pty Ltd and Another v Azzopardi21 VR 211

[2008] VSCA 241·(Court of Appeal) (2008) Ashley, Redlich and Dodds-Streeton JJA·5 Dec 2008·30p·

Accident compensation - Workers compensation - Widow's claim arising from work-related death - Dependency - Earnings - Worker and wife employed by corporate trustee of family trust - Remuneration comprising wages and trust distributions - Whether evidence that distributions were earnings - Whether no evidence ground a question of law - Accident Compensation Act 1985 (No 10191) ss 5A 52 82(2) 92A 92B

Rodwell v Building Practitioners Board21 VR 683

[2009] VSC 146·Hollingworth J·17 Apr 2009·9p·

Administrative law - Occupational licensing - Building practitioners - Registration - Building Practitioners Board - Inquiry - Notice - Validity - Nature of inquiry - Whether time for commencement of proceeding for offence applicable - Exercise of inherent jurisdiction - "Proceeding for an offence" - Interpretation of Legislation Act 1984 (No 10096) s 35(a) - Building Act 1993 (No 126) ss 16(1) 177 178 179 241(7).

Kovacic v Henley Arch Pty Ltd22 VR 21

[2009] VSCA 56·(Court of Appeal) (2009) Warren CJ, Buchanan and Ashley JJA·27 Mar 2009·20p·

Accident compensation - Workers compensation - Compensable injury - Worker - Contract of service - Contractors as deemed workers - Serious injury application - Dismissal - Appeal - Whether appellant regularly carried on trade or business in his name or under firm or business name - Whether work incidental to appellant's trade or business - Accident Compensation Act 1985 (No 10191) ss 5 8(1) 134AB(16) - County Court Act 1958 (No 6230) s 74(3).

Secretary to the Department of Justice v Western Suburbs Legal Service Inc22 VR 66

[2009] VSC 68·Beach J·3 Mar 2009·14p·

Administrative law - Freedom of information - Exempt documents - Secrecy provision in another statute - Scope of exemption - Whether other statute must prohibit disclosure by person in possession of document - Freedom of Information Act 1982 (No 9859) s 38 - Corrections Act 1986 (No 117) ss 17 30(1)(f) 30(2) - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 148

Austwide Institute of Training Pty Ltd v Dalman (in his capacity as a delegate of the Director of Public Transport)23 VR 45

[2009] VSCA 25·(Court of Appeal) (2009) Warren CJ, Redlich JA and Forrest AJA·2 Mar 2009·21p·

Administrative law - Judicial review - Occupational regulation - Power - Scope - Interaction of statutory schemes - Taxi driver's certificate - Taxi authority - Power to require applicant for certificate to pass any test and hold any qualification specified by authority - Specification of training course approved by another statutory authority - Taxi authority conducting unannounced inspection of training organisation premises - Taxi authority withdrawing recognition of training organisation's assessment unless specific conditions met - Whether decision ultra vires - Unreasonableness - Procedural fairness - Transport Act 1983 (No 9921) ss 156 162 - Transport (Taxi-Cabs) Regulations 2005 reg 6(1)(d) - Victorian Qualifications Authority Act 2000 (No 97).

Director of Public Prosecutions v Nguyen and Another23 VR 66

[2009] VSCA 147·(Court of Appeal) (2009) Maxwell P, Weinberg JA and Kyrou AJA·25 Jun 2009·25p·

Criminal law - Confiscation of property - Restraining order - Automatic forfeiture - Application for exclusion - DPP contending application out of time - Whether application made within 60 days of conviction - When conviction occurs - Arraignment, plea of guilty, allocutus - Plea taken at listing hearing - Matter adjourned for plea and sentence - Whether unequivocal acceptance of plea - "Conviction" - Confiscation Act 1997 (No 108) ss 4 22 35.

Appeal - Appeal to Court of Appeal - Final decision - Leave not required - Refusal to grant prerogative writ.

State of Victoria v Turner23 VR 110

[2009] VSC 66·Kyrou J·4 Mar 2009·72p·

Discrimination - Equal opportunity - Indirect discrimination - Impairment - Public education - Student - Learning disability - Condition imposed for access to education - Failure to provide full-time teacher's aide - Whether tribunal impermissibly reformulated condition - Whether condition not reasonable - Whether tribunal impermissibly extended claim period - Loss - Causation - Multiple contributing causes - Commonsense approach - Orders - Validity - Prevention of further contraventions - Equal Opportunity Act 1995 (No 42) ss 4 9 37 136.

Administrative law - Victorian Civil and Administrative Tribunal - Appeal - Error of law - Relevant considerations - Government policy - Procedural fairness - Failure to give notice of scope of directions hearing - Reasons for decision - Inadequacy - Whether tribunal's order involved impermissible delegation to third party - Victorian Civil and Administrative Tribunal Act 1998 (No 53) ss 97 98 117 148.

Human rights - Victorian Civil and Administrative Tribunal - Whether court can apply Charter principles not applicable to proceeding before tribunal - No retrospective operation - Charter of Human Rights and Responsibilities Act 2006 (No 43) ss 8 32 49.

Victoria Police v Marke23 VR 223

[2008] VSCA 218·(Court of Appeal) (2008) Maxwell P, Weinberg JA and Pagone AJA·5 Nov 2008·30p·

Administrative law - Freedom of information - Exempt documents - Personal affairs of any person - Unreasonable disclosure - Test - Relevant considerations - Effect of disclosure of document - Extent of possible or likely disclosure of information - Whether statutory disclosure of document necessarily disclosure to world at large - "Would" - "Involve" - "Unreasonable disclosure of information" - Freedom of Information Act 1982 (No 9859) ss 3 13 29 29A 31(1) 33(1) 33(2A)

East Melbourne Group Inc v Minister for Planning and Another23 VR 605

[2008] VSCA 217·(Court of Appeal) (2008) Warren CJ, Ashley and Redlich JJA·31 Oct 2008·87p·

Town and country planning - Planning authority - Planning scheme - Amendment - Validity - Proposed site-specific amendment - Notification requirements - Minister acting as planning authority - Powers - Discretion - Self-exemption from notification requirements - Minister's opinion that compliance with notification requirements not warranted - Minister's opinion as to interests of Victoria or any part of Victoria making exemption appropriate - Approval of amendment after self-exemption - Distinction between antecedent opinion favouring exemption and opinion favouring amendment - "Public interest" - Planning and Environment Act 1987 (No 45) ss 8 12 17 18 19 20 39.

Administrative law - Judicial review - Grounds - Discretionary ministerial decision - Unreasonableness - Planning scheme amendment devoid of any plausible justification.

Administrative law - Judicial review - Reasons for decision - Discretionary ministerial decision - No statutory duty to give reasons - Minister providing reasons in keeping with administrative protocol - Minister bound by reasons - Limited scope for admission of other elucidatory material - Public release of supporting documents - Dispute as to ascertainment of minister's reasons.

Fifteenth Eestin Nominees Pty Ltd and Others v Rosenberg (as Executor to the Estate of Emanuel Rosenberg) and Another24 VR 155

[2009] VSCA 112·(Court of Appeal) (2009) Maxwell P, Neave and Redlich JJA·13 Aug 2009·42p·

Equity - Estoppel - Promissory estoppel - Detriment - Reliance - Discretionary trust - Family dispute - Failure to make good promise unsupported by consideration not per se detriment.

Practice and procedure - Parties - Substitution - Appeal - Death of respondent before appeal heard - Deceased party's will not yet proved - Allegations against deceased party that will affected by estoppel or constructive trust - Validity of will and title of executor not affected by possible finding of estoppel or constructive trust - Executor substituted as party - Supreme Court (General Civil Procedure) Rules 2005 rr 9.09 16.03.

Appeal - Attack on trial judge's factual findings - Witnesses - Credit - Family dispute - Evidence about family finances and inheritance - Alleged promissory representations - Passage of time - Advantages of trial judge - Inherent limitations of appellate court - No basis established for disturbing findings.

Costs - Costs of and incidental to proceeding - Supreme Court Act 1986 (No 110) s 24.

In the Will of Orloff (Deceased)24 VR 603

[2010] VSC 48·Robson J·22 Mar 2010·14p·

Administration and probate - Executor - Renunciation of probate - Whether court should accept renunciation - Proper course - Form of renunciation - Requirements - Disclosure of intermeddling with estate.

Administration and probate - Renunciation of probate - Administration with will annexed - Entitlement - Person with greatest interest under will - Preference for universal residuary legatee - Notification to persons entitled to apply for administration - Departure from preference - Where will requires impartial person - Power to appoint amicus curiae.

Papadopoulos v MC Labour Hire Services Pty Ltd and Another (No 4)24 VR 665

[2009] VSC 193·Beach J·21 May 2009·30p·

Accident compensation - Workers compensation - Contribution between defendants - Breach of statutory duty - Contract between defendants - Breach of contract - Damages - Hadley v Baxendale - Remoteness - Negligence - Pure economic loss - Vulnerability - Perre v Apand - Causes of action statute-barred - Limitation of Actions Act 1958 (No 6295) s 5(1) - Accident Compensation Act 1985 (No 10191) s 156 - Wrongs Act 1958 (No 6420) ss 23B 24(2).

Contract - Implied terms - Statutory warranties - Trade practices - Trade Practices Act 1974 (Cth) s 74.

Trade practices - Misleading and deceptive conduct - Representation with respect to any future matter - Trade Practices Act 1974 (Cth) ss 51A 52 53(aa) 55A.

Limitation of actions - Causes of actions - Accrual - Contract - Negligence - Misleading and deceptive conduct - Limitation of Actions Act 1958 (No 6295) s 5(1) - Trade Practices Act 1974 (Cth) s 82(2).

Victorian WorkCover Authority v Concept Hire Ltd and Others24 VR 695

[2009] VSC 194·Beach J·21 May 2009·10p·

Accident compensation - Workers compensation - Victorian WorkCover Authority - Indemnity rights - Recovery proceeding - Proper plaintiff - Whether authority entitled to sue in own name - Accident Compensation Act 1985 (No 10191) s 138 - Accident Compensation (WorkCover Insurance) Act 1993 (No 50) ss 7 9.

Insurance - Statutory policy - Construction - WorkCover compensation - Indemnity - "Liable to pay by force of the Accident Compensation Act" - "The employer's liability at common law or otherwise".

De Simone v Bevnol Constructions & Developments Pty Ltd25 VR 237

[2009] VSCA 199·(Court of Appeal) (2009) Neave JA and Williams AJA·3 Apr 2009·14p·

Appeal - Leave to appeal - Arguable error below - No substantial injustice - Leave refused.

Human rights - Charter of Human Rights and Responsibilities - Civil proceeding - Fair and public hearing - Party in civil litigation awaiting trial on criminal charges - Common substratum of facts - Privilege against self-incrimination - Referral of Charter question to Supreme Court - Criteria - Charter of Human Rights and Responsibilities Act 2006 (No 43) ss 4 6 24 25 32 33 38.

Practice and procedure - Stay of civil proceeding - Potential criminal charges arising out of common substratum of facts - Discretion - McMahon guidelines.

Dura (Australia) Constructions Pty Ltd v Victorian Managed Insurance Authority and Another25 VR 290

[2009] VSCA 171·(Court of Appeal) (2009) Warren CJ, Nettle and Redlich JJA·29 Jul 2009·12p·

Administrative law - Judicial review - Procedural fairness - Hearing rule - Applicability - Variable content - Preliminary decision part of broader process - Victorian Civil and Administrative Tribunal - Parties - Joinder - Permissible without notice - Tribunal practice note - Discretionary departure - Reasons - "Interim order" - Victorian Civil and Administrative Tribunal Act 1998 (No 53) ss 60(1) 117.

Appeal - Leave to appeal - Appeal from Trial Division order refusing leave to appeal - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 148 - Supreme Court Act 1986 (No 110) s 17A(4)(b).

Filipovski v Ogemi Services Pty Ltd and Another25 VR 316

[2009] VSCA 230·(Court of Appeal) (2009) Buchanan and Neave JJA and Robson AJA·9 Oct 2009·50p·

Accident compensation - Workers compensation - Entitlement - Common law damages - Reintroduction for injury suffered on or after 20 October 1999 - Compensable injury - Aggravation of pre-existing condition - Credibility of worker - Appeal - Adequacy of reasons - Accident Compensation Act 1985 (No 10191) ss 5 134AB(1) 134AB(16)(b) 134AB(19)(c) 134AB(38) 134AE - County Court Act 1958 (No 6230) s 74(1) 74(3)

Practice and procedure - Appeal - Fresh evidence - Leave - Workers compensation - Medical report relevant to date injury suffered - Finality of litigation - Application refused.

von Risefer v Mainfreight International Pty Ltd25 VR 366

[2009] VSCA 179·(Court of Appeal) (2009) Ashley JA and Beach AJA·13 Aug 2009·16p·

Appeal - Leave to appeal - Company - Winding-up order - Contributory - Appeal from dismissal of application to terminate or stay order permanently - Defective service of statutory demand - Winding-up order made on notice but in absence of defendant company - Importance of public reliance on company's registered office - Discretionary order - House v R test - Criteria - Solvency - Commercial morality - Public interest - Corporations Act 2001 (Cth) ss 109X 482

MH6 v Mental Health Review Board and Another25 VR 382

[2009] VSCA 184·(Court of Appeal) (2009) Redlich JA and Hargrave AJA·20 Aug 2009·16p·

Administrative law - Tribunal - Merits review - Procedural fairness - Waiver - Hearing rule - Mental health - Involuntary patient - Treatment order - Continuation - Rehearing - Victorian Civil and Administrative Tribunal - Applicant required to present case and give evidence first - Mental Health Act 1986 (No 59) ss 4 8 29 36 120.

Secretary to the Department of Justice v Osland (No 2)25 VR 490

[2009] VSCA 69·(Court of Appeal) (2009) Maxwell ACJ, Ashley JA and Bongiorno AJA·7 Apr 2009·17p·

Administrative law - Freedom of information - Exempt documents - Override power to order release of exempt document where public interest required release - Stringent test - Court's inspection of disputed documents - Legal professional privilege - Legal advice to Attorney-General - Petition for mercy - Attorney issuing press release announcing refusal of petition - Press release reference to senior counsel's advice to government - No reference to other legal advices - Whether press release misleading - Scope of legislative concept of public interest - Policy considerations - Political and ministerial accountability - "Requires" - Freedom of Information Act 1982 (No 9859) ss 32 50(4).

Leon Holdings Pty Ltd v ODonnell and Another25 VR 569

[2009] VSC 430·Habersberger J·28 Sept 2009·24p·

Administrative law - Judicial review - Appeal from Victorian Civil and Administrative Tribunal - Civil claim - Contract - Award of damages - Error of law - Factual findings unwarranted on evidence - Procedural fairness - Apprehended bias - Allowing hearsay evidence from one party only - Pre-judgment - Expressing concluded view before hearing all the evidence - Curtailment of oral evidence and tendering of documents - Curtailment of cross-examination - Building Act 1993 (No 126) ss 3 16 25A 106 112 169 170 - Building Regulations 2006 rr 304 318 1503 Sch 7 - Fair Trading Act 1999 (No 16) ss 107A 108 109 - Victorian Civil and Administrative Tribunal Act 1998 (No 53) ss 97 98 102 148.

Contract - Consideration - Variation of contract - No consideration where alleged promise was to do no more than what promisor bound to do under pre-existing contract.

Vukovic v Transport Accident Commission26 VR 22

[2009] VSC 497·Cavanough J·9 Nov 2009·25p·

Accident compensation - Transport accident - Entitlements - Transport Accident Commission - Decision-making obligations - Impairment determination - Conditions for effective and timely application - Exchange of correspondence - Interpretation - Judicial review - Mandamus - Discretion - Adequate alternative remedy - "Date of the application" - Transport Accident Act 1986 (No 111) s 46A(1) 46A(1A) 46A(1B) - Supreme Court (General Civil Procedure) Rules 2005 O 56.

Victorian WorkCover Authority v Michaels26 VR 88

[2009] VSCA 261·(Court of Appeal) (2009) Neave and Mandie JJA and Byrne AJA·17 Nov 2009·8p·

Accident compensation - Workers compensation - Entitlement - Injury - Course of employment - Successive short-term contracts of employment - Injury suffered prior to commencement of next contract - University lecturer injured in bookshop inspection of teaching texts - Whether activity sufficiently incidental to performance of forthcoming work - "Arising out of or in the course of any employment" - Accident Compensation Act 1985 (No 10191) s 82(1).

Hickory Developments Pty Ltd v Schiavello (Vic) Pty Ltd and Another26 VR 112

[2009] VSC 156·Vickery J·24 Apr 2009·36p·

Building contracts - Principals and sub-contractors - Progress payments - Entitlements - Claim - Dispute - Statutory adjudication process - Need to avoid excessive technicality - Determination - Validity - Procedures - Application for adjudication - Time limit - Electronic initiation of claim permissible - Deference to adjudicator's authority - Single lodgment of two claims - Whether two payment claims were made - Whether payment claim could be made despite previous claim - "Made" - Building and Construction Industry Security of Payment Act 2002 (No 15) ss 14 16 18 23 28O 28Q 28R 51.

Administrative law - Judicial review - Remedies - Availability - Certiorari - Privative clause - Hickman principle - Construction progress payment disputes - Statutory adjudication process - Amenability to review - "Adjudication determination" - Building and Construction Industry Security of Payment Act 2002 (No 15) - Constitution Act 1975 (No 8750) s 85

Practice and procedure - Electronic service of documents - Time - Ascertainment - Arrival at recipient's server - Availability for retrieval.

Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture and Others (No 2)26 VR 172

[2009] VSC 426·Vickery J·25 Sept 2009·47p·

Building contracts - Principals and sub-contractors - Progress payments - Entitlements - Disputes - Statutory adjudication process - Adjudicator's determination - Whether amenable to certiorari - Procedural fairness - Content - Express statutory prescriptions - Building and Construction Industry Security of Payment Act 2002 (No 15) ss 22 23

Administrative law - Judicial review - Public and private bodies - Datafin - Construction contract disputes - Statutory adjudication mechanism for progress payment claims - Certiorari - Availability - Grounds - Jurisdictional error - Error of law on face of record - Contents of record.

Constitutional law - Supreme Court of Victoria - Powers and jurisdiction - Unlimited jurisdiction - Indirect repeal, alteration or variation - Manner and form requirements - No implied ouster of judicial review - Constitution Act 1975 (No 8750) s 85

Martin v Bailey26 VR 270

[2009] VSCA 263·(Court of Appeal) (2009) Maxwell P, Redlich JA and Robson AJA·20 Nov 2009·33p·

Accident compensation - Workers compensation - Common law proceedings - Competence - Statutory bar - Farm worker - Neighbouring landowner objecting to farm activity - Altercation - Worker directing racist remark at neighbour - Worker punched by neighbour - Worker's claim for damages for assault - Whether barred - Whether dispute related to employer's business - Whether worker abandoned employment - Whether private quarrel - "Arising out of employment" - "Arising in the course of employment" - Accident Compensation Act 1985 (No 10191) ss 82 134AB.

Shields v Overland and Another26 VR 303

[2009] VSC 550·Kyrou J·3 Dec 2009·32p·

Administrative law - Judicial review - Jurisdictional error - Police Appeals Board - Review function - Characterisation - Unique features - Limited merits review - Chief Commissioner of Police - Dismissal of member of force - Review of dismissal order - Whether commissioner's decision not sound, defensible or well-founded - Appeals Board misconstruing its function - Failure to perform statutory duty - Decision quashed - Police Regulation Act 1958 (No 6338) ss 68B 68C 68D 68E 68F.

Administrative law - Judicial review - Error of law - Procedural fairness - Police Appeals Board - Review function - Refusal of leave to adduce new evidence - Receipt of ex parte communications - Police Regulation Act 1958 (No 6338) Pt V, Div 3.

Police - Employment and discipline - Integrity of members - Prevention of loss of community confidence - Chief Commissioner's power to dismiss member of force - Police Regulation Act 1958 (No 6338) Pt IV, Div 1.

Spotless Services Australia Ltd v Herbath and Another26 VR 373

[2009] VSCA 285·(Court of Appeal) (2009) Buchanan and Mandie JJA and Byrne AJA·9 Dec 2009·14p·

Tort - Negligence - Concurrent tortfeasors causing same damage - Comparative fault as between plaintiff and each tortfeasor - Personal injury - Employee injured in fall - Action against employer and occupier of premises - Employer abandoning contributory negligence plea - Employee succeeding against both defendants - Claim against occupier reduced due to contributory negligence - Employer precluded from relying on verdict against occupier - Wrongs Act 1958 (No 6420) s 26(1)(b).

Accident compensation - Workers compensation - Costs - Statutory regime of offer and counter-offer - Costs consequences of quantum of verdict - Worker's action against employer and occupier of premises - Occupier ordered to pay plaintiff's costs - Whether plaintiff prevented by statutory regime from obtaining costs order - Whether expression "each party" included third party - Accident Compensation Act 1985 (No 10191) s 134AB(12) 134AB(28)(d) - Wrongs Act 1958 (No 6420) s 26(1)(b).

1144 Nepean Highway Pty Ltd v Abnote Australasia Pty Ltd (formerly known as Leigh Mardon Australasia Pty Ltd)26 VR 551

[2009] VSCA 308·(Court of Appeal) (2009) Warren CJ, Nettle and Bongiorno JJA·18 Dec 2009·12p·

Contract - Construction - Implied term - Dispute resolution clause providing for third party to appoint independent expert to resolve dispute - Contract silent as to terms of appointment - Whether terms proffered by expert reasonable - Whether parties to contract bound to accept appointment - Whether parties obliged to execute agreement with independent expert - Implied obligation to co-operate - Further assurance clause - "Appoint".

Appeal - Leave to appeal - Appeal against order granting injunction - Leave unnecessary - Supreme Court Act 1986 (No 110) ss 17(2) 17A(4)

Kozma Engineering Pty Ltd and Another v Pupic26 VR 574

[2009] VSCA 313·(Court of Appeal) (2009) Nettle and Neave JJA and Hollingworth AJA·22 Dec 2009·5p·

Accident compensation - Workers compensation - Entitlement - Medical panels - Binding opinions - Application for leave to institute proceedings for common law damages - Earlier medical panel opinion obtained for purpose of establishing worker's entitlement to weekly compensation - Whether binding on court in subsequent application for leave to bring proceedings for damages - Accident Compensation Act 1985 (No 10191) ss 39 45(1A) 68(4) 82 134AB(16)(b).

Worldwide Enterprises Pty Ltd v Silberman and Another26 VR 595

[2010] VSCA 17·(Court of Appeal) (2010) Weinberg and Bongiorno JJA·23 Feb 2010·14p·

Practice and procedure - Parties - Companies - Requirement to be represented by a solicitor - Stay of proceedings where corporation unrepresented - Exception for contrary statutory provision - Statutory scheme for derivative actions on behalf of companies - Whether scheme relevantly abrogated court rules - General power to depart from rules - Criteria - Supreme Court (General Civil Procedure) Rules 2005 Ch I rr 1.17(1) 2.04 - Corporations Act 2001 (Cth) ss 236 237.

Appeal - Leave to appeal - Order staying proceeding until corporation represented by solicitor - Whether interlocutory or final.

Victoria Legal Aid v Kuek and Another26 VR 700

[2010] VSCA 29·(Court of Appeal) (2010) Buchanan and Weinberg JJA and Ross AJA·26 Feb 2010·8p·

Administrative law - Judicial review - Victoria Legal Aid - Application lodged by solicitor on behalf of client - Aid granted - Case not assigned to lodging solicitor - Decision affirmed on internal review - Review by independent reviewer - Standing of lodging solicitor to challenge independent review - Error of law on face of record - Changed circumstances since primary decision - Characteristics of merits review - Reliance on best and most current information available - Discretion to refuse relief not enlivened - "Person affected" - "Reconsideration" - "Review" - Legal Aid Act 1978 (No 9245) ss 4 34, 35.

AED Oil Ltd and Another v Puffin FPSO Ltd27 VR 22

[2010] VSCA 37·(Court of Appeal) (2010) Buchanan and Bongiorno JJA and Croft AJA·5 Mar 2010·9p·

Arbitration - Agreement - Construction - Dispute resolution clause - Submission to arbitration - Exceptions - Urgent relief - Counterclaim - Stay - "Urgent interlocutory or declaratory relief" - International Arbitration Act 1974 (Cth) ss 7 8 - Commercial Arbitration Act 1984 (No 10167).

Mastwyk v Director of Public Prosecutions27 VR 92

[2010] VSCA 111·(Court of Appeal) (2010) Maxwell P, Nettle and Redlich JJA·11 May 2010·24p·

Motor vehicles - Road safety - Criminal law - Driving offences - Blood alcohol levels - Requirement that driver furnish breath sample for analysis - Requirement that driver accompany police for purpose of furnishing breath sample - Driver directed to travel in lockable police motor vehicle - Driver refusing to comply - Requirement to accompany to be objectively reasonable - Road Safety Act 1986 (No 127) ss 49(1)(e) 55(1).

Administrative law - Judicial review - Power - Amplitude - Presumed parliamentary intention that power be exercised reasonably - Wednesbury unreasonableness.

Victorian WorkCover Authority and Another v Hartley27 VR 116

[2010] VSCA 74·(Court of Appeal) (2010) Mandie and Harper JJA and Emerton AJA·14 Apr 2010·11p·

Accident compensation - Workers compensation - Lump sum - Entitlement - One claim only per compensable event - Knee injury - Claim made and settled - Delayed surgery - Complications from surgery - No medical negligence - No new intervening act - Further claim - "Same event or circumstance" - Accident Compensation Act 1985 (No 10191) ss 82(1) 83(1)(d) 104B(5A) 104B(5AA) 104B(5AB)

Sherlock v Lloyd and Others27 VR 434

[2010] VSCA 122·(Court of Appeal) (2010) Maxwell P, Ashley JA and Byrne AJA·28 May 2010·18p·

Accident compensation - Workers compensation - Medical panel - Opinion - Statement of reasons - Alleged inadequacy - No error of law - Administrative Law Act 1978 (No 9234) s 8 - Accident Compensation Act 1985 (No 10191) s 45(1)

Administrative law - Judicial review - Administrative tribunal - Reasons - Adequacy - No common law obligation to provide reasons.

Doughty v Martino Developments Pty Ltd27 VR 499

[2010] VSCA 121·(Court of Appeal) (2010) Nettle and Mandie JJA and Emerton AJA·2 Jun 2010·14p·

Accident compensation - Transport accident - Entitlements - Employee injured - Employer's loss of employee's services - Action per quod servitium amisit extinguished in relation to transport accidents - "In respect of" - Transport Accident Act 1986 (No 111) s 93(1).

Priceline Pty Ltd v JHY Nominees Pty Ltd and Others27 VR 513

[2010] VSCA 129·(Court of Appeal) (2010) Mandie JA and Hansen AJA·9 Jun 2010·9p·

Appeal - Leave to appeal - Substantial injustice test - Mere risk of substantial injustice insufficient.

Practice and procedure - Discovery - Inspection of documents - Client legal privilege - Mention of legal advice supporting other party's stance - Waiver - Substance of advice not disclosed - Evidence Act 2008 (No 47) s 122(3)

Watkins v State of Victoria and Others27 VR 543

[2010] VSCA 138·(Court of Appeal) (2010) Ashley and Mandie JJA and Beach AJA·11 Jun 2010·34p·

Tort - Intentional torts - Assault - Defences - Statutory authority - Self-defence - Defence of others - Police - Fingerprints obtained forcibly - Statutory authority to use reasonable force - Proportionality - Reasonable belief - Crimes Act 1958 (No 6231) s 464K(7).

Police - Powers - Fingerprinting - Arrested person - Rights - Refusal to give fingerprints voluntarily - Fingerprints obtained forcibly - Disclosure obligations of police - Crimes Act 1958 (No 6231) s 464K(2).

Appeal - Facts - Findings at trial - Power of appellate court to set aside findings - Credit-based findings - Judges not to be constrained where evidence demands contrary findings.

Damages - Assessment - Assaults - Physical injuries - Psychiatric sequelae - Aggravated damages - Apportionment - "Intentional act that is done with intent to cause death or injury" - Wrongs Act 1958 (No 6420) ss 28LC 28LE - Police Regulation Act 1958 (No 6338) s 123.

Page and Another v Manningham City Council27 VR 643

[2010] VSC 267·Warren CJ·17 Jun 2010·15p·

Planning and environment - Contravention of statutory planning controls - Responsible authority - Enforcement powers - Penalty infringement notice (PIN) - Payment of fine - Expiation of offence - Separate civil enforcement proceedings - Differing legislative rationales - Service of PIN not precluding bringing of enforcement proceedings - "In respect of offence" - Planning and Environment Act 1987 (No 45) ss 114 119 122 126 130 - Infringements Act 2006 (No 12) ss 32 33.

Administrative law - Estoppel - Planning and environment - Contravention of statutory planning controls - PIN stating that upon timely compliance no further enforcement action would occur - PIN statement not a bar to separate enforcement proceedings - Public interest - Infringements (Reporting and Prescribed Details and Forms) Regulations 2006 reg 8.

Byrne v Legal Services Commissioner27 VR 674

[2010] VSCA 162·(Court of Appeal) (2010) Ashley JA, Hansen and Emerton AJJA·25 Jun 2010·31p·

Legal practitioners - Solicitors - Legal Services Commissioner - Amenability to judicial review - Complaints - Characterisation - Disciplinary - Civil - Treated as disciplinary complaint - Investigation - Refusal of summary dismissal of complaint - Legal Profession Act 2004 (No 99) ss 4.2.2 4.2.3 4.2.8 4.2.10 4.4.7 4.4.9.

Administrative law - Judicial review - Procedural fairness - Hearing rule - Apprehended bias - Reasons - Sufficiency - Criteria - Order for further reasons - Discretion to decline remitter to primary decision-maker - Administrative Law Act 1978 (No 9234) s 8.

Pravidur v Scental Pacific Pty Ltd28 VR 60

[2010] VSCA 144·(Court of Appeal) (2010) Neave and Redlich JJA and Habersberger AJA·22 Jun 2010·24p·

Accident compensation - Workers compensation - Leave to bring common law proceedings - Serious injury - Trial - Evidence - Admissibility - Victorian WorkCover Authority ("VWA") - Pre-trial disclosure obligations - Compliance - Prohibition on admission of undisclosed evidentiary material - Scope of prohibition - Prohibition expressly applicable to claim in respect of deemed serious injury - Whether prohibition applied to common law proceedings brought with leave of the court or the authority's consent - Co-worker - Viva voce evidence - Denial that injury-causing incident occurred - Non-disclosure of witness statement in possession of VWA - Trial judge ruling that worker had waived reliance on statutory prohibition - Ministerial direction affecting question of construction - No residual discretion in trial judge to admit or exclude evidence - "Other material" - Ministerial directions 3, 7.1, 7.4 - Accident Compensation Act 1985 (No 10191) s 134AB(4) (5) (7) (8) (11).

Ariss v Building Practitioners Board28 VR 92

[2010] VSC 295·Bell J·25 Jun 2010·9p·

Administrative law - Occupational registration - Building practitioners - Building Practitioners Board - Jurisdiction - Disciplinary action - Inquiry - Limitation period - Registration suspended after inquiry commenced - Board precluded from continuing inquiry - Building Act 1993 (No 126) ss 175 177 178 179 179A.

American International Assurance Company (Australia) Ltd v Skewes28 VR 111

[2010] VSC 307·Cavanough J·7 Jul 2010·16p·

Administrative law - Victorian Civil and Administrative Tribunal - Jurisdiction - Civil Claims List - Consumer and trader disputes - Excluded disputes - Personal injury claims exceeding $10,000 - Disability benefits insurance policy - Stress and anxiety condition - Cessation of payment of benefit - Claim against insurer - Whether claim excluded - Self-represented party - "Related to personal injury" - Fair Trading Act 1999 (No 16) s 107(3).

Roads Corporation v Schembri and Others28 VR 229

[2009] VSC 369·Osborn J·31 Aug 2009·21p·

Resumption and acquisition of land - Compensation - Entitlement - Pecuniary loss - Disturbance - Opportunity costs - Costs associated with purchase of replacement properties - Loss of use of money - Delayed statutory compensation offer - Statutory interpretation - Ordinary English language usage - "Natural, direct and reasonable consequence" - Land Acquisition and Compensation Act 1986 (No 121) ss 31 40 41.

Appeal - Victorian and Civil Administrative Tribunal - Appeal on question of law - Whether findings open - Whether failure to have regard to relevant considerations - Victorian and Civil Administrative Tribunal Act 1998 (No 53) s 148.

Racovalis and Others v Rescom Mortgages Pty Ltd and Others28 VR 250

[2010] VSCA 55·(Court of Appeal) (2010) Harper JA and Emerton AJA·5 Mar 2010·7p·

Appeal - Leave to appeal - County Court - Judgment - Default of appearance - Judgment set aside on second application - Abuse of process - Principles - Interests of justice - "Final and conclusive" - County Court Act 1958 (No 6230) s 73(1).

Friends of Mallacoota Inc v Minister of Planning and Another28 VR 257

[2010] VSC 222·Osborn J·27 May 2010·31p·

Administrative law - Judicial review - Ministerial assessment as part of decision-making process - Validity - Environment protection - Proposed replacement ocean access boat ramp - Environmental effects - Whether minister failed to exercise jurisdiction - Minister expressing preference for particular proposal - Ministerial media release misstating nature of requested statutory assessment - Whether irrelevant considerations taken into account - Procedural fairness - Scope - Statutory entitlement to hearing - Expectation - Whether implied entitlement to further hearing - "Assessment" - "Environment" - Environment Effects Act 1978 (No 9135) s 8(1) (2).

Brumar (Vic) Pty Ltd v Norris28 VR 665

[2010] VSCA 206·(Court of Appeal) (2010) Ashley and Mandie JJA and Ross AJA·25 Aug 2010·49p·

Accident compensation - Workers compensation - Psychiatric injury - Common law claim - Damages - Assessment - Leave to commence proceedings - Consequences in later proceeding - Whether employer precluded from contending worker did not suffer serious injury - Issue estoppel - Degree of impairment in excess of 30% - Deemed serious injury - Medical panel opinion that degree of impairment exceeded 30% - Special case stated - "Serious injury" - Accident Compensation Act 1985 (No 10191) ss 67 68(4) 104B(9) 134AB(15) 134AB(16)(b) 134AB(19) - County Court Act 1958 (No 6230) s 76(1).

Thirteenth Beach Coast Watch Inc v Environment Protection Authority and Another29 VR 1

[2009] VSC 53·Cavanough J·23 Feb 2009·19p·

Administrative law - Judicial review - Victorian Civil and Administrative Tribunal - Appeal on question of law - Environment Protection Agency - Issue of works approval - Merits review - Scope - Grounds - Third parties - Incorporated association - Concern with protection of coastal environment - No relevant financial, physical or other like interests - Intellectual, philosophical or emotional interests not meeting statutory requirement - Legislative history - "Unreasonably and adversely affect the interests" - Environment Protection Act 1970 (No 8056) ss 19A, 20C 33B 37 37A - Victorian Civil and Administrative Tribunal Act 1998 (No 53) ss 5 51 148.

Holcim (Australia) Holdings Pty Ltd v Victorian WorkCover Authority29 VR 550

[2010] VSC 424·J Forrest J·13 Oct 2010·10p·

Accident compensation - Workers compensation - Employer - Self-insurer - Approval - Conditions - Expiration of approval - Each subsequent application for approval a fresh application not a renewal - Accident Compensation Act 1985 (No 10191) ss 141 142 148.

Environment East Gippsland Inc v VicForests30 VR 1

[2010] VSC 335·Osborn J·14 Sept 2010·102p·

Administrative law - Environment protection and conservation - Old growth forest - Proposed logging in State forest - Controlled harvesting and selling - Obligations - Timber allocation order - Forest management plan - Risk assessment and management - Presence of endangered fauna species - Habitat reserves - Precautionary principle - Flora and fauna protection - Action statements - Code of Practice for Timber Production - Forests Act 1958 (No 6254) ss 3 4 22 - Conservation, Forests and Lands Act 1987 (No 41) ss 4 5 6 7 10 31 - Sustainable Forests (Timber) Act 2004 (No 48) ss 1 4 5 6 13 14 15 16 17 18 19 37 38 39 40 43 44 45 - Flora and Fauna Guarantee Act 1988 (No 47) ss 1 3 4 7 8 11 17 19 20.

Administrative law - Judicial review - Remedies - Injunction - Standing - Special interest in subject matter of litigation - Public interest - Threatened illegal logging in State forest - Conservation group.

Injunctions - Terms - Conditional - Finality - Transparency - Undertaking - Statutory authority - State forest - Threatened unlawful logging - Public interest - Restraint from logging until conditions met.

Animals - Endangered fauna species - Protection - Long-footed potoroo - Orbost spiny crayfish - Giant burrowing frog - Large brown tree frog - Powerful owl - Sooty owl - Spot-tailed quoll - Greater glider - Yellow-bellied glider - Square-tailed kite - Flora and Fauna Guarantee Act 1988 (No 47).

Costs - Discretion - Costs following the event - Party partially successful - Relevant considerations - Public interest - Proportional order.

National Trust of Victoria v Victorian Civil and Administrative Tribunal and Others30 VR 103

[2010] VSC 430·Osborn J·22 Sept 2010·12p·

Town and country planning - Planning scheme - Permit - Construction - Purpose - Plain meaning - Exemption - Heritage control - Site-specific control and precinct control - Victorian Heritage Register - Planning scheme overlay - Permit required under overlay subject to exemption in case of place on register - Primacy of heritage authority over planning authority - Permit for redevelopment of site partially included on register - Review confined to portion of land not on register - Exemption covering both bases of permit requirement under overlay - "Develop" - "Development" - Melbourne Planning Scheme cll 15 43 71 - Planning and Environment Act 1987 (No 45) ss 3 4(2)(f) - Interpretation of Legislation Act 1984 (No 10096) ss 35(a) 39 - Heritage Act 1995 (No 93) ss 1 32 42 48 69 71 73(1) 73(1A)

Administrative law - Judicial review - Remedies - Victorian Civil and Administrative Tribunal - Appeal on question of law - Order nisi to review - Inappropriateness of resorting to other remedy - Administrative Law Act 1978 (No 9234) - Victorian Civil and Administrative Tribunal Act 1998 (No 53) ss 3 148

Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd and Others30 VR 141

[2010] VSC 199·Vickery J·17 Jun 2010·59p·

Building contracts - Progress payment - Statutory entitlement - Claim - Validity - Referral to adjudicator - Whether delivered prematurely - Time for response - Whether taking of work out of hands of contractor affected entitlement to payment for previous work - Building and Construction Industry Security of Payment Act 2002 (No 15) ss 14(1) 15(4) 18(1)(a) 21(2B) 22(5)(a)

Building contracts - Construction - Practice and procedure - Service on superintendent - Service by email - Building and Construction Industry Security of Payment Act 2002 (No 15) s 50 - Amended Australian Standard General Conditions of Contract AS2124-1992 cll 2 7 9 14 15 18 21 22 23 42 43 44 50

Administrative law - Judicial review - Jurisdiction - Onus to establish excess of jurisdiction - Reception of new material - Procedural fairness - Content - Adjudicator not permitting further submissions by principal to new material filed by contractor - Supreme Court (General Civil Procedure) Rules 2005 O 56.

Clarke v National Mutual Life Assurance Ltd and Others30 VR 230

[2010] VSCA 43·(Court of Appeal) (2010) Neave and Mandie JJA and Hansen AJA·15 Mar 2010·18p·

Accident compensation - Workers compensation - Weekly payments - Pleadings - Statement of claim - Refusal of amendment application - Refusal of application to refer questions to statutory medical panel - Earlier adverse panel opinion - Discretion miscarrying - Not open to determine applications while judicial review proceeding of adverse panel opinion pending - No utility in remitting proceeding to County Court - Accident Compensation Act 1985 (No 10191) ss 5(3)(a) 52 - County Court Act 1958 (No 6230) s 74(2D).

Practice and procedure - Appeal - Interlocutory order - Workers compensation - Pleadings - Refusal of amendment application - Whether appeal as of right or by leave - Accident Compensation Act 1985 (No 10191) ss 5(3)(a) 52 - County Court Act 1958 (No 6230) s 74(2D).

Director of Public Prosecutions (on behalf of Davey) and Another v Dale and Others30 VR 282

[2010] VSC 88·Beach J·26 Mar 2010·14p·

Administrative law - Judicial review - Certiorari - Jurisdictional error - Procedural fairness - Magistrates' Court - Suppression orders - Standing - Chief Commissioner of Police - Statutory necessity test - Non-publication of material identifying participant in witness protection program - Relevant considerations - Maintenance of integrity of witness protection program - Magistrates' Court Act 1989 (No 51) s 126 - Witness Protection Act 1991 (No 15) s 10(5)

Stonnington City Council and Another v Roads Corporation and Another30 VR 303

[2010] VSC 454·Osborn J·7 Oct 2010·52p·

Administrative law - Judicial review - High-level policy decisions - Public interest - Ministerial direction - Validity - Justiciability - Road traffic management - Roads Corporation - Arterial roads - Clearway zones - Proposal to extend and standardise times - Minister directing corporation to implement proposal - Effect of direction on earlier decisions of corporation - "All things necessary or convenient" - "Manage" - "Management" - Road Management Act 2004 (No 12) ss 22 39(1) 39(6) 44 Sch 4 cl 2(2) - Road Safety Act 1986 (No 127) s 95 - Transport Act 1983 (No 9921) - Road Safety (Traffic Management) Regulations 2009 (No 129) regs 8 10 20 22.

Local government - Road and traffic management - Clearway zones - State government policy - Municipal councils - Statutory consultation process - Procedural fairness - Statutory dispute resolution process - Minister's determination of dispute - Binding effect - Road Management Act 2004 (No 12) ss 22 125.

M & J Rawlings Builders and Contractors v Rawlings30 VR 444

[2010] VSCA 306·(Court of Appeal) (2010) Warren CJ, Buchanan, Nettle, Mandie JJA and Beach AJA·18 Nov 2010·29p·

Accident compensation - Workers compensation - Leave to bring common law proceedings - Serious injury - Severe mental or permanent severe behavioural disturbance or disorder - Cause of action arising before 12 November 1997 - Limitation period - Expiration of three years after incapacity became known - Proof - Onus - Worker - Sufficiency - Absence of subjective knowledge of facts which, viewed objectively, constituted serious injury - "Became known" - Accident Compensation Act 1985 (No 10191) ss 135A(4)(b) 135AC(b).

CECA Institute Pty Ltd and Another v Australian Council for Private Education and Training30 VR 555

[2010] VSC 552·Kyrou J·3 Dec 2010·34p·

Administrative law - Judicial review - Domestic body - Refusal of membership - Amenability to judicial review - Datafin principle - Applicability in Australia - Company limited by guarantee - Administrator of overseas student tuition assurance scheme - Statutory approval by Commonwealth Minister for Education - Membership of company a precondition to scheme membership - Whether company exercising governmental powers - Education Services for Overseas Students Act 2000 (Cth) - Education Services for Overseas Students Regulations 2001 (Cth)

Administrative law - Domestic body - Procedural fairness - Hearing rule - Applicability - Anonymous allegations of misconduct - Reputation - Sufficiency of interest to attract hearing rule.

Administrative law - Reasons for decision - No special circumstances warranting imposition of duty to provide reasons.

Haden Engineering Pty Ltd v McKinnon31 VR 1

[2010] VSCA 69·(Court of Appeal) (2010) Maxwell P, Buchanan and Nettle JJA·31 Mar 2010·11p·

Accident compensation - Workers compensation - Leave to bring common law proceedings - Damages - Serious injury - Impairment - Evaluation - Fact, degree and value judgment - Imprecise adjectival criteria - Utility of check lists of relevant criteria - Need for consistency of application - Like cases to be treated alike - Utility of comparisons with earlier cases - Worker's stoicism - "Pain and suffering consequence" - "More than significant or marked and ... at least very considerable" - Accident Compensation Act 1985 (No 10191) ss 134AB(16)(b) 134AB(38)(b) 134AD

Wood and Another v McLean and Another31 VR 12

[2010] VSC 550·Sifris J·8 Dec 2010·8p·

Administration and probate - Proceeding on behalf of estate - Executor unwilling to take action - Testator leaving estate to one child - Testator's inter vivos transfer of largest asset to sole beneficiary - Claim by other children for provision from estate - Claimants alleging testator subject to special disability at time of transfer - Executor failing to act to set aside transfer on equitable grounds - Whether Pt IV claimants had standing to commence separate proceeding against executor on behalf of estate - Whether real financial or other interest - No standing as contingent beneficiaries - Summary judgment for the executor - Administration and Probate Act 1958 (No 6191) Pt IV.

Sutton v Laminex Group Pty Ltd31 VR 100

[2011] VSCA 52·(Court of Appeal) (2011) Ashley and Tate JJA and Hargrave AJA·3 Mar 2011·23p·

Accident compensation - Workers compensation - Leave to bring common law proceedings - Damages - Serious injury - Impairment - Evaluation - Fact, degree and value judgment - Worker's stoicism - Aggravation of pre-existing asymptomatic degenerative cervical spine condition and consequences of soft tissue shoulder injury - Consideration of consequences of impairment as a whole - Adverse credit findings when credit not in issue - "Pain and suffering consequence" - "More than significant or marked and ... at least very considerable" - Accident Compensation Act 1985 (No 10191) ss 134AB(16)(b) 134AB(19)(a) 134AB(37) 134AB(38)(c) 134AD.

Roleff v Chubb Insurance Co of Australia Pty Ltd31 VR 235

[2011] VSCA 21·(Court of Appeal) (2011) Ashley and Tate JJA and Hargrave AJA·9 Feb 2011·14p·

Accident compensation - Workers compensation - Serious injury - Leave to bring common law claim - Loss of earning capacity - Pain and suffering - Comparator - Whether appellant permitted to index "without injury" earnings to time of hearing of application - Possible relevance of earnings of comparable workers outside "window" period - Accident Compensation Act 1985 (No 10191) s 134AB(16)(b) (38)(e) (f).

Howard v Ace Radio Broadcasters Pty Ltd and Another32 VR 117

[2010] VSC 248·Osborn J·9 Jun 2010·12p·

Town and country planning - Planning scheme - Permit - Telecommunications facility - Radio transmission masts - Failure to provide site analysis - Permit conditions varied - Structures not requiring permit under farming controls - Whether intrusion into acceptable setback by intrusion of underground radials - Net community benefit - Sustainable development considerations - Amenity - Minimal impact - Test - Potential alternative sites - Noise and electromagnetic interference - Cost effective provision of infrastructure - Code of Practice for Telecommunications Facilities in Victoria - "Minimal impact on the amenity of the area" - "Part of the structure" - Moyne Shire Planning Scheme cll 11, 52.19, 62.02 - Planning and Environment Act 1987 (No 45) ss 3 4(1)

Administrative law - Judicial review - Victorian Civil and Administrative Tribunal - Appeal on question of law - Planning scheme - Whether factual findings open on evidence - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 148

Pearl Hill Pty Ltd v Concorp Construction Group (Vic) Pty Ltd32 VR 247

[2011] VSCA 99·(Court of Appeal) (2011) Tate JA and Hargrave AJA·8 Apr 2011·8p·

Building contracts - Principals and sub-contractors - Security of payment - Progress payment claims - Statutory claim procedure - Party other than sub-contractor party carrying out works - Contracting party permitted to serve and enforce claim - Building and Construction Industry Security of Payment Act 2002 (No 15) s 14(1)

Appeal - Competence - Summary judgment - Building contract - Judgment obtained by sub-contractor - Leave to appeal required - Building and Construction Industry Security of Payment Act 2002 (No 15) s 14(1) - County Court Act 1958 (No 6230) s 74(2D)

Costs - Discretion - Special costs order - Appeal - Purported appeal discontinued - Appeal lacking merit - Leave to appeal would not have been granted - Order for indemnity costs - Supreme Court (General Civil Procedure) Rules 2005.

Somerville Retail Services Pty Ltd v Victorian WorkCover Authority32 VR 446

[2011] VSCA 166·(Court of Appeal) (2011) Neave, Mandie and Harper JJA·14 Jun 2011·8p·

Accident compensation - Workers compensation - Employer - Insurance - Premiums - Liability - Calculation - Workplace classification - Statutory premiums order - Construction - Natural and ordinary meaning - Predominant activity test - "Manufacturing of meat or meat products" - "Predominant activity" - WorkCover Industry Classification C2155L - WorkCover Industry Classification F4761T - WorkCover Insurance Premium Order (No 15) 2007/2008 - Accident Compensation (WorkCover Insurance) Act 1993 (No 50) s 26

Hendersons Automotive Technologies Pty Ltd (In liq) v Flaton Management Pty Ltd32 VR 539

[2011] VSCA 167·(Court of Appeal) (2011) Ashley, Neave and Tate JJA·10 Jun 2011·29p·

Restitution - Unjust enrichment - Purchase of business and land - Common vendor - Separate purchasers - Related companies - Payment in excess of purchase price of business - Claim for recovery of alleged benefit - Existing legal relationships between parties - Money paid at party's request - Benefit received irrelevant to simple money paid count.

Appeal - Claim pleaded and trial conducted on false premise - New material emerging during hearing of appeal - Appeal allowed - No assurance that complete picture of relevant transactions between parties provided on appeal - Proceeding remitted to trial court for determination.

Companies - Winding up - Insolvency - Set-off - Guarantee in personal capacity and as trustee of unit trust - Novation as trustee of discretionary trust - "Mutual dealings" - Corporations Act 2001 (Cth) s 553C.

Equity - Lien - Implied - Requirements - Sufficiency of evidence.

Christian Youth Camps Ltd and Another v Cobaw Community Health Services Ltd and Another33 VR 60

[2011] VSCA 284·(Court of Appeal) (2011) Mandie JA and Vickery AJA·21 Sept 2011·7p·

Appeal - Leave to appeal - Application - Competence - Supporting affidavit - Failure to exhibit proposed notice of appeal - Effect of non-compliance with rules - Irregularity - Court rule specifically providing for correction of non-compliance - General discretion to dispense with compliance - Affidavit accounting for absence of exhibit - Supreme Court (General Civil Procedure) Rules 2005 rr 2.01 2.04 65.07 - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 148.

Director of Housing v Sudi33 VR 559

[2011] VSCA 266·(Court of Appeal) (2011) Warren CJ, Maxwell P and Weinberg JA·6 Sept 2011·53p·

Administrative law - Victorian Civil and Administrative Tribunal - Jurisdiction - Review of administrative decisions - Director of Housing - Tenancy - Decision to apply for eviction order - Validity - Compliance with Charter of Human Rights and Responsibilities - Tribunal lacking jurisdiction to undertake collateral judicial review - Victorian Civil and Administrative Tribunal Act 1998 (No 53) - Residential Tenancies Act 1997 (No 109) ss 1(d) 344 345 446(c) - Charter of Human Rights and Responsibilities Act 2006 (No 43) ss 13(a) 32 38 39.

Human rights - Right to home and family - Freedom from unlawful or arbitrary interference - Public housing - Eviction - Charter of Human Rights and Responsibilities Act 2006 (No 43) ss 7(2) 13(a) 36 39.

Landlord and tenant - Public housing - Director of Housing - Power - Application for possession order - Validity - Housing Act 1983 (No 10020) s 14(1)(g) - Residential Tenancies Act 1997 (No 109) ss 1(d) 344 345 - Charter of Human Rights and Responsibilities Act 2006 (No 43) ss 13(a) 38 39.

Director of Public Transport v XFJ33 VR 612

[2011] VSCA 302·(Court of Appeal) (2011) Maxwell P, Mandie and Harper JJA·11 Oct 2011·20p·

Administrative law - Victorian Civil and Administrative Tribunal - Merits review - Occupational licensing - Public transport - Taxi-cab driver licence - Accreditation - Statutory criteria - Suitability - Public care objective - Relevant considerations - Director of Public Transport refusing accreditation - Applicant acquitted of murder on grounds of insanity 18 years earlier - Community expectations - Decision-maker's reliance on fact that applicant was a person who caused death of another person - Decision-maker not bound to consider effect of accreditation on public confidence - Decision-maker posing wrong question - Decision set aside by tribunal - No error of law by tribunal - "Suitable in other respects to provide the service" - Transport Act 1983 (No 9921) Pt VI, Div 6.

Maleckas (LKQ) v Secretary, Department of Justice34 VR 23

[2011] VSC 227·Kyrou J·31 May 2011·18p·

Administrative law - Judicial review - Victorian Civil and Administrative Tribunal - Error of law - Misconstruction of statute - Relevant and irrelevant considerations - Children - Safety - Occupational regulation - Child-related work - Assessment of individuals working with children - Negative assessment notice - Merits review - Category 2 application - Whether applicant bore an onus of proof - Public interest considerations - Whether applicant planned to engage in specific child-related work - Failure to adduce evidence of positive influence on children - "Unjustifiable risk" - Working with Children Act 2005 (No 57) s 13(2)

Giankos v SPC Ardmona Operations Ltd34 VR 120

[2011] VSCA 121·(Court of Appeal) (2011) Warren CJ, Neave JA and Hargrave AJA·5 May 2011·29p·

Accident compensation - Workers compensation - Leave to bring common law proceedings - Serious injury - Loss of earning capacity - Assessment - Pre-injury capacity - Suitable employment - Criteria - Worker's place of residence - Employer - Evidentiary burden of proof - Accident Compensation Act 1985 (No 10191) ss 5 134AB(19) 134AB(38)(f).

Costs - Statutory direction - Workers compensation - Leave granted to commence common law proceedings - Pain and suffering claim only - Lapse of Calderbank offer - Judge not entitled to take account of Calderbank offer - Accident Compensation Act 1985 (No 10191) s 134AB(27)(a).

Evidence - Expert evidence - Limits of medico-legal expertise - Workers compensation - Suitability of particular employment - Analysis of necessary physical capacity and individual impairment.

Fiorelli Properties Pty Ltd v Professional Fencemakers Pty Ltd and Another34 VR 257

[2011] VSC 661·Kaye J·16 Dec 2011·20p·

Contract - Manufacture and installation of fence - Payment of deposit - Purchaser failing to complete - Seller rescinding contract and retaining deposit - Purchaser's action for return of deposit - Seller's forfeiture rights not limited to sales of real property - No claim made for relief against forfeiture.

Appeal - Appeal from Magistrates' Court - Whether question of law - Whether competent to raise issue not raised below - Magistrates' Court Act 1989 (No 51) s 109

AG Staff Pty Ltd v Filipowicz34 VR 309

[2012] VSCA 60·(Court of Appeal) (2012) Mandie and Bongiorno JJA and Kyrou AJA·4 Apr 2012·9p·

Accident compensation - Serious injury - Applications for leave to bring proceedings - Subsequent injury aggravating existing injury - Test - Grech - Petkovski - Accident Compensation Act 1985 (No 10191) ss 134AB(16) (17) (37) 134AD - County Court Act 1958 (No 6230) s 74

Kocak v Wingfoot Australia Partners Pty Ltd and Others35 VR 324

[2012] VSCA 259·(Court of Appeal) (2012) Nettle and Osborn JJA and Davies AJA·23 Oct 2012·31p·

Administrative law - Judicial review - Reasons - Adequacy - Statutory obligation - Path of reasoning from evidence to facts to conclusion - Conflicting medical opinions - Accident Compensation Act 1985 (No 10191) s 68

Administrative law - Judicial review - Remedies - Availability - Certiorari - Error of law on face of record - Mandamus - Accident compensation - Medical panel opinion - Accident Compensation Act 1985 (No 10191) s 45

Estoppel - Issue estoppel - Workers compensation - Entitlement - Medical or like expenses - Claim for declarations - Medical panel - Opinion - Accident Compensation Act 1985 (No 10191) ss 45(1) 99

Harvey and Another v Mutsaers and Others35 VR 389

[2012] VSCA 69·(Court of Appeal) (2012) Nettle, Redlich and Hansen JJA·19 Apr 2012·10p·

Town and country planning - Planning permit - Period of operation - Extension of time - Time for making application for extension - Expiry of permit - Planning authority refusing to accept application made after expiry of permit - "May ask" - Planning and Environment Act 1987 (No 45) s 69(1)

Administrative law - Victorian Civil and Administrative Tribunal - Jurisdiction to disregard non-compliance with time limit - Victorian Civil and Administrative Tribunal Act 1998 (No 53) Sch 1 cl 62

Aluthgamage v Select Care Personnel Pty Ltd35 VR 494

[2012] VSCA 111·(Court of Appeal) (2012) Redlich and Osborn JJA and Cavanough AJA·7 Jun 2012·18p·

Accident compensation - Workers compensation - Injuries suffered in 2003 - Serious injury - Leave application dismissed - Loss of earning capacity - 40% requirement - Pain and suffering consequences - Fitness for work - Medical evidence - Conflict - Trial judge misapplying evidence - Former nurse aged 69 at time of trial - Qualified to continue working - Precluded from successful retraining - Court of Appeal deciding leave application for itself - No fresh evidence adduced on appeal - Very considerable loss of earning capacity established - "Suitable employment" - Accident Compensation Act 1985 (No 10191) ss 134AB(37) 134AB(38)(b) 134AB(38)(c) 134AD

Collier v Austin Health and Others36 VR 1

[2011] VSC 344·Bell J·27 Jul 2011·24p·

Administrative law - Judicial review - Appeal on question of law - Victorian Civil and Administrative Tribunal - Summary dismissal of review application - Error of law - Misinterpretation of statute - Disability discrimination claim - Direct discrimination - Attribute - Impairment - Employee - Recovery from work-related illness - Employee ready, willing and able to resume work on gradual basis - Employer declining request - Employee dismissed - Whether prohibited discrimination - Applicable comparator - "Without that attribute" - Equal Opportunity Act 1995 (No 42) ss 4(1) 8(1) 14

Statutory interpretation - Human rights legislation - Liberal construction - Anti-discrimination legislation.

Human rights - Charter - Applicability - Transitional provisions - Facts and circumstances happening before Charter came into force - Charter of Human Rights and Responsibilities Act 2006 (No 43) ss 2 32(1) 49

Szaintop Homes Pty Ltd and Others v Krok and Another36 VR 56

[2012] VSCA 176·(Court of Appeal) (2012) Weinberg JA and Davies AJA·6 Aug 2012·10p·

Appeal - Leave - Test - Directions hearing - Trial of action scheduled to commence two days later - Comments by judge concerning issues and possible outcomes - Refusal of disqualification application - No lower leave threshold applicable to apprehended bias disputes.

Courts and judges - Alleged apprehended bias - Test - Hypothetical fair-minded observer - Attributes - Awareness of modern case management considerations - Civil Procedure Act 2010 (No 47) s 7 8 23 47 48

DFJ v Secretary to the Department of Justice36 VR 66

[2012] VSCA 177·(Court of Appeal) (2012) Weinberg, Harper and Osborn JJA·14 Aug 2012·18p·

Administrative law - Discretion - Relevant considerations - Working with children assessment - Secretary to Department of Justice - Refusal to give assessment notice - Decision affirmed by Victorian Civil and Administrative Tribunal - Appeal on question of law - Preconditions to exercise of discretion - Criminal conviction - Leaving children unattended - Whether significant link between offending and risk to safety of children - Whether tribunal impermissibly restricted regard to circumstances surrounding appellant's offending - Residual discretion not enlivened - Appeal allowed - Working with Children Act 2005 (No 57) s 17

Statutes - Interpretation - Purposive approach - Requirement to interpret statutes so as to avoid manifestly absurd or unreasonable result - Interpretation of Legislation Act 1984 (No 10096) s 35(a)

Kermani v Westpac Banking Corporation36 VR 130

[2012] VSCA 42·(Court of Appeal) (2012) Neave and Harper JJA and Robson AJA·9 Mar 2012·37p·

Practice and procedure - Abuse of process - Categories not closed - Multiple proceedings - Re-litigation of matters determined in previous proceeding - Whether issues raised in new proceeding substantially the same as those determined in earlier proceeding - Plaintiff not party to earlier proceeding - Plaintiff sufficiently connected through control of corporate party in earlier proceeding - Open to the plaintiff to advance complaint in earlier proceeding - Availability of joinder application - Supreme Court (General Civil Procedure) Rules 2005 r 23.01(1)(c)

Appeal - Whether leave to appeal required - Permanent stay of proceedings - Whether interlocutory or final - Reality - Final disposition of parties' rights.

Mulholland v Victorian Electoral Commission and Another36 VR 167

[2012] VSCA 104·(Court of Appeal) (2012) Redlich and Hansen JJA and Kyrou AJA·14 Jun 2012·26p·

Administrative law - Judicial review - Victorian Civil and Administrative Tribunal - Victorian Electoral Commission - Register of political parties - Amendment - Application to amend register to be in writing signed by party secretary - Election of party office-bearers - Validity of election of secretary - Party constitution and rules - Party membership eligibility linked to eligibility to vote in Commonwealth elections - "Eligible to vote in Commonwealth elections" - Electoral Act 2002 (No 23) ss 51 60 - Commonwealth Electoral Act 1918 (Cth) ss 93(2) 221 229 235 266 Sch 3, paras 10 17 19

Associations and clubs - Constitution and rules - Construction - Political party - Democratic Labor Party - Membership eligibility - Link with Commonwealth electoral legislation.

Transport Accident Commission v Kymantas36 VR 193

[2012] VSCA 135·(Court of Appeal) (2012) Nettle and Hansen JJA and Kyrou AJA·29 Jun 2012·28p·

Accident compensation - Transport accident - Loss of earnings claim - Driver - Disentitlement - Driver's licence cancelled - Person in charge of motor vehicle - Vehicle running out of fuel - Driver alighting from vehicle and pushing vehicle - Driver injured when struck by another vehicle - Injured driver's licence cancelled - Causation - Whether necessary that driver be person driving - "Driver of a motor vehicle" - "In charge of" - "Injured as a result of a transport accident" - Transport Accident Act 1986 (No 111) s 40(1)(c)(ii)

Barro Group Pty Ltd v Brimbank City Council and Others36 VR 281

[2012] VSC 154·Emerton J·14 May 2012·27p·

Town and country planning - Planning permit - Proposed landfill on former quarry site for solid inert waste - Legislative and policy framework for siting and developing landfills - Municipal council refusal of permit - Review by Victorian Civil and Administrative Tribunal - Tribunal's consideration of need for further landfill capacity inconsistent with legislative and policy framework - Waste Management Policy (Siting, Design and Management of Landfills) 2004 - Towards Zero Waste Strategy 2005 - Best Practice Environmental Management Guideline (Siting, Design, Operation and Rehabilitation of Landfills) 2010 - Metropolitan Waste and Resource Recovery Strategic Plan 2009 - Environment Protection Act 1970 (No 8056) ss 16A 19B 50B 50BA 50BC - Planning and Environment Act 1987 (No 45) ss 77 84B(2) 84B(2)(e) - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 148.

Administrative law - Judicial review - Grounds - Irrationality and illogicality - Decision-making power not requiring the decision-maker to reach a state of satisfaction about a specified matter - Failure to give proper, genuine and realistic consideration to the merits of the case.

Administrative law - Merits review - Constitution of tribunal - Remitter following judicial review - Differently constituted tribunal for rehearing - Guiding principle.

Regent Holdings Pty Ltd v State of Victoria and Another36 VR 424

[2012] VSCA 221·(Court of Appeal) (2012) Nettle, Redlich and Osborn JJA·12 Sept 2012·11p·

Appeal - Leave - Interlocutory points of practice - Appeals not to be encouraged - Managed proceeding.

Practice and procedure - Group proceeding - Small, closed class of plaintiffs - Particulars and discovery by group members - Common questions of liability - Disclosure concerning quantum of group members' claims - Supreme Court Act 1986 (No 110) s 33ZF - Civil Procedure Act 2010 (No 41) s 9.

Practice and procedure - Mediation - Promotion of rational settlements - Propriety of discovery to facilitate mediation.

Mickovski v Financial Ombudsman Service Ltd and Another36 VR 456

[2012] VSCA 185·(Court of Appeal) (2012) Buchanan and Nettle JJA and Beach AJA·17 Aug 2012·16p·

Administrative law - Judicial review - Amenability to review - Datafin principle - Applicability - Insurance - Disablement benefit - Entitlement - Alternative dispute resolution scheme - Statutory approval - Financial Ombudsman Service (FOS) - Contract-based process - Complaint - Dismissal - Decision - Finality - No exercise of public duty or function - Corporations Act 2001 (Cth) s 912A

Contract - Dispute resolution - Time limit for making complaint - Provision for finality - Decision - Whether final decision susceptible to contractual review.

Kozanoglu v Pharmacy Board of Australia36 VR 656

[2012] VSCA 295·(Court of Appeal) (2012) Weinberg and Harper JJA and Hargrave AJA·12 Dec 2012·23p·

Administrative law - Victorian Civil and Administrative Tribunal ("VCAT") - Merits review - Health practitioners - Pharmacist - Improper conduct - Discovery of commercial quantities of illicit precursor drugs at pharmacy - Pharmacy Board of Australia - Imposition of conditions on pharmacist's registration - Appeal to VCAT neither appeal stricto sensu nor rehearing de novo - Hybrid review - VCAT power to receive further evidence - VCAT decision not vitiated by error of law - Health Practitioner Regulation National Law (Victoria) Act 2009 (No 79) ss 144 156 157 199(1)(e) 202 - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 148

Georgopoulos v Silaforts Painting Pty Ltd and Others37 VR 232

[2012] VSCA 179·(Court of Appeal) (2012) Osborn JA and J Forrest and Beach AJJA·8 Aug 2012·25p·

Accident compensation - Workers compensation - Serious injury - Physical and psychological injuries - Statutory certificate for psychological injuries only - Whether worker confined in damages claim to certified injury - Whether once a serious injury established total injury compensable - Accident Compensation Act 1985 (No 10191) ss 5 82 91 98C 104B 134AB(1) (2) (37)

McVey (by his litigation guardian Bullard) v G J & L J Smith Pty Ltd and Another37 VR 433

[2012] VSCA 312·(Court of Appeal) (2012) Maxwell P and Tate JA and Davies AJA·17 Dec 2012·19p·

Accident compensation - Workers compensation - Entitlement - One claim only per compensable event - Physical injuries - Permanent disability - Claim for lump sum compensation - Later claim for psychiatric injury arising from same event - First claim vitiated by claimant's mental incapacity - Appellant incapable of recognising own psychiatric impairment - Second claim not barred - Accident Compensation Act 1985 (No 10191) ss 45 98C 104B(5A) 104B(5AA)

Appeal - Question of law - Whether open to challenge primary decision as not open on evidence - Whether open to contend that primary judge bound to reach different conclusion - "Raised during those proceedings" - Accident Compensation Act 1985 (No 10191) s 52(1)

Patient Review Panel v ABY and Another37 VR 634

[2012] VSCA 264·(Court of Appeal) (2012) Warren CJ, Tate JA and Beach AJA·26 Oct 2012·24p·

Medical practitioners and services - Patient - Entitlement to undergo treatment - Assisted reproduction (IVF) - Married couple - Barriers to treatment - Statutory presumption against treatment - Criteria - Husband's convictions for sex offences against minor - Guiding statutory principles - Paramount interest of person born or to be born - Patient Review Panel deciding there was barrier to treatment - Relevant considerations - Not limited to matters giving rise to presumption - Not limited to whether matter giving rise to presumption created a risk of harm to child to be born - Risk factors to be identifiable and established - Requirement of real risk of harm - "Welfare and interests of persons born" - "Best interests of a child" - Assisted Reproductive Treatment Act 2008 (No 76) ss 5(a) 10(1)(a) 10(1)(b)(i) (ii) 10(2) 14(1)(a) 15(1) 15(3)(b)(ii) 85(b) 91(3)

Administrative law - Merits review - Victorian Civil and Administrative Tribunal (VCAT) - Review of decision of Patient Review Panel - VCAT majority setting aside panel decision - VCAT requiring appellant to complete counselling course.

Administrative law - Merits review - Procedure - Original decision-maker seeking to uphold its decision and overturn review - Preference for true contradictor to bring any review or appeal.

Gamble v Emerald Hill Electrical Pty Ltd38 VR 45

[2012] VSCA 322·(Court of Appeal) (2012) Maxwell P and Cavanough AJA·20 Dec 2012·21p·

Accident compensation - Workers compensation - Impairment benefit - Assessment - Medical question - AMA Guides to the Evaluation of Permanent Impairment - Referral to medical panel - Panel function - Provision of opinion - Non-judicial - Engagement of consultants by panel - Whether panel assessed impairment - "In accordance with" - Accident Compensation Act 1985 (No 10191) ss 63 65 66 67 68 91(1)(a) 104B(9) (12)

Administrative law - Judicial review - Non-adjudicative body - Medical panel - Expert opinion - Reasons - Standard of scrutiny.

Morris v Riverwild Management Pty Ltd38 VR 103

[2011] VSCA 283·( Full Court) (2011) Nettle, Redlich and Weinberg JJA·22 Sept 2011·20p·

Administrative law - Judicial review - Jurisdictional error - Statutory tribunal - Determination of claims abandoned during hearing - Whether decision made in excess of jurisdiction a nullity.

Administrative law - Victorian Civil and Administrative Tribunal - Jurisdiction - Costs - Enforcement or restraint of order - Declaration in respect of such an order - Victorian Civil and Administrative Tribunal Act 1998 (No 53) ss 121 123 124

Costs - Rule against double recovery - Several defendants severally liable - Settlement of claims against all but one defendant - Single settlement amount in respect of all claims and costs - Settlement of claim against remaining defendant - One settlement amount for claims and further amount for party-party costs to be assessed - Whether costs to be paid by sole remaining defendant to be reduced by settlement amounts paid by other defendants - Partial satisfaction - Indemnity rule - Apportionment.

Estoppel - Administrative decision-makers - Applicability - Victorian Civil and Administrative Tribunal - Res judicata - Issue estoppel.

Legal Services Commissioner v Rushford38 VR 141

[2012] VSC 632·Bell J·20 Dec 2012·13p·

Legal practitioners - Roll of practitioners - Removal of name - Jurisdiction - Purpose - Protection of public, legal profession, courts, justice system and community confidence in legal system - Fitness to practise - Fit and proper person test - Present and future - Professional misconduct - Contributing factors - Criminal behaviour not necessarily requiring removal of name - Legal Profession Act 2004 (No 99) ss 2.4.42 4.4.17(a)

Administrative law - Victorian Civil and Administrative Tribunal - Regulation of legal profession - Roll of practitioners - Tribunal's limited power to recommend removal of name - Show cause procedure - Principles - Legal Profession Act 2004 (No 99) ss 2.4.42 4.4.17(a)

Primary Health Care Ltd v Giakalis38 VR 165

[2013] VSCA 75·(Court of Appeal) (2013) Weinberg JA and Kaye and Vickery AJJA·12 Apr 2013·21p·

Accident compensation - Workers compensation - Indemnity - Entitlement - Third party liability - Worker injured in transport accident in course of employment - Self-insured employer paying compensation to worker - Employer's claim for indemnity from third party vehicle driver - Transport accident compensation scheme extinguishing right to common law damages - Statutory compensation dependent on satisfying impairment threshold - No application by injured employee for impairment assessment - Employer not entitled to indemnity - Accident Compensation Act 1985 (No 10191) ss 134AA 134AB 134A 135 138 - Transport Accident Act 1986 (No 111) s 93

Muto v Secretary to the Department of Planning38 VR 293

[2013] VSCA 85·(Court of Appeal) (2013) Nettle AP and Neave JA·12 Apr 2013·10p·

Administrative law - Victorian Civil and Administrative Tribunal - Jurisdiction - Composition of tribunal - Local government - Exception for orders giving effect to settlement - "Necessary to give effect to" - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 93 Sch 1, cl 46E(1)

Appeal - Leave to appeal - Substantial injustice where lack of jurisdiction below alleged - Public interest in ensuring that administrative tribunals act within jurisdiction.

IMC Aviation Solutions Pty Ltd v Altain Khuder LLC38 VR 303

[2011] VSCA 248·(Court of Appeal) (2011) Warren CJ, Hansen JA and Kyrou AJA·22 Aug 2011·91p·

Arbitration and awards - Foreign arbitral award - Enforcement application - Prima facie entitlement - Applicant's evidential onus - Respondent not named as party to either arbitration agreement or award - Mere provision of agreement and award insufficient to discharge evidential onus - Once evidential onus discharged respondent having legal onus of satisfying court that application should be refused - Standard of proof - Balance of probabilities - Grounds - "Pro-enforcement policy" - International Arbitration Act 1974 (Cth) ss 2D 3 8(2) (5) (7) 9(1) 39.

Arbitration and awards - Foreign arbitral award - Enforcement - Respondent denying it was proper party to arbitration agreement - Whole of evidence indicating respondent not a party - Defences - International Arbitration Act 1974 (Cth) ss 7(b) 8(5)(b) (c).

Arbitration and awards - Foreign arbitral award - Enforcement - Foreign law - Findings of arbitral tribunal or foreign court - Identity of party to arbitration agreement or award - Giving of proper notice of arbitration - Not binding on Australian court.

Estoppel - Foreign arbitral award - Enforcement - Whether respondent failing to challenge jurisdiction of arbitral tribunal or to resist award in supervisory jurisdiction estopped from resisting enforcement in Australia - Respondent denying being party to arbitration agreement not obliged to participate in arbitration or take any steps in supervisory jurisdiction.

Evidence - Admissibility - Objections to admissibility to be ruled on at time made.

Practice and procedure - Foreign arbitral award - Enforcement - Application - Should proceed inter partes when extrinsic evidence required to establish respondent a party to arbitration agreement.

Costs - Indemnity costs - Special circumstances - Foreign arbitral awards - Enforcement - Ordinary principles applicable - Unsuccessful attempt to resist enforcement order by award debtor not of itself justifying award of indemnity costs.

Yesodei Hatorah College Inc v Trustees of the Elwood Talmud Torah Congregation38 VR 394

[2011] VSC 622·Croft J·22 Dec 2011·52p·

Arbitration and awards - Award - Setting aside - Judicial review - Leave to appeal - Procedure - Manifest error on the face of award - Applicable law - Contract - Enforceability - Common law principles - Statutory provision for agreement for arbitrator to determine dispute by reference to considerations of general justice and fairness - Arbitrator concluding that statutory provision had no application - Misconduct - "Considerations of general justice and fairness" - "Manifest error of law on the face of the award" - "May" - ss 22 38 42

Arbitration and awards - Arbitrator - Applicable law - "Amiable compositeur" - "Ex aequo et bono" - UNCITRAL Arbitration Rules Art 33 - s 22(2)

Statutes - Interpretation - Extrinsic material - Implementation of international convention - Second reading speech - Marginal note - ss 35 36(3)

Lederberger (as executors of the Decd estate of Lederberger) v Mediterranean Olives Financial Pty Ltd and Others38 VR 509

[2012] VSCA 262·(Court of Appeal) (2012) Nettle and Redlich JJA and Beach AJA·17 Oct 2012·35p·

Contracts - Parties - Identification - Objective theory of contract - Parties' conduct - Evidence - Admissibility - Distinction between relevance of conduct to identification issue and to interpretation of contract - Post-contractual conduct - Contracting parties' tax returns - Deductions.

Agency - Partnership - Authority - Ostensible - Actual - Partnership business dealing in goods - Business name - Contracts for agricultural investment - Use of business name - Ratification.

Negligence - Solicitors - Executrix - Advice relating to proposed application for probate - Duty to warn client of risk - Testamentary trust of estate's interest in partnership - Personal liability for debts of partnership business - Failure to advise - Causation - Wrongs Act 1958 (No 6420) ss 51 52

Office of the Premier v Herald and Weekly Times Pty Ltd38 VR 684

[2013] VSCA 79·(Court of Appeal) (2013) Tate and Whelan JJA and Kaye AJA·12 Apr 2013·22p·

Administrative law - Freedom of information - Access - Entitlement - Agency - Ministerial documents - Possession - Actual - Constructive - Affairs of an agency - Connection with agency - Premier of State of Victoria - Electronic private diary of Premier's Chief of Staff - "Official document of a Minister" - "Relates to the affairs of an agency" - Freedom of Information Act 1982 (No 9859) ss 3(1) 5(1) 13(b) 25

Kordister Pty Ltd v Director of Liquor Licensing and Another39 VR 92

[2012] VSCA 325·(Court of Appeal) (2012) Warren CJ and Tate and Osborn JJA·19 Dec 2012·57p·

Administrative law - Victorian Civil and Administrative Tribunal - Findings about impact of variation of licence on viability of licensee's business and liquor industry - Absence of evidence or material to support findings - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 98

Liquor and licensing law - Legislative purpose - Harm minimisation - Licence - Variation - Evidence of violence and alcohol abuse - Whether proof of causal link to licensed premises required - Distinction between general evidence, locality evidence and evidence of specific incidents - Liquor Control Reform Act 1998 (No 94) ss 4 29 47

Statutes - Interpretation - Legislative purpose - Primary purpose - Harm minimisation - Liquor Control Reform Act 1998 (No 94) ss 4 44

Colquhoun v Capitol Radiology Pty Ltd39 VR 296

[2013] VSCA 58·(Court of Appeal) (2013) Maxwell P and Weinberg JA and Ferguson AJA·20 Mar 2013·15p·

Administrative law - Judicial review - Error of law on face of record - Reasons for decision - Medical questions - Personal injury litigation - Damages - Entitlement - Threshold - Limited to claimants who had suffered significant injury - Assessment of impairment - Referral to medical panel - Provision of conclusive opinion - Adverse determination - Characterisation of panel function - Panel not deciding question of legal right nor determining any issue inter partes - Panel not obliged to provide reasons - Wrongs Act 1958 (No 6420) Pt VBA

Administrative law - Judicial review - Administrative decision - Validity - Medical questions - Expert panel - Power of panel convenor to give procedural directions - Legal effect of direction - Administrative convenience only - Direction that panels give reasons for decisions invalid - Wrongs Act 1958 (No 6420) s 28LZ

McKenzie and Another v Magistrates Court of Victoria and Another39 VR 311

[2013] VSCA 81·(Court of Appeal) (2013) Harper, Tate and Coghlan JJA·18 Apr 2013·16p·

Courts and judges - Magistrates' Court - Committal proceedings - Executive function - Stay application - Witness summons - Whether power to dismiss charges in interests of justice - Criminal Procedure Act 2009 (No 7) s 141(4) - Criminal Code Act 1995 (Cth) s 11.5(6)

Appeal - Whether application for leave to appeal required - Judicial review - Magistrates' Court - Committal proceedings - Order dismissing challenge to magistrate's decision refusing to set aside witness summons - Order below finally determining rights.

Appeal - Grounds - Case on appeal not raised below - Supreme Court supervisory jurisdiction - Need to ensure inferior court acted within its limited powers.

PJB v Melbourne Health39 VR 373

[2011] VSC 327·Bell J·19 Jul 2011·84p·

Administrative law - Victorian Civil and Administrative Tribunal - Original jurisdiction - Guardianship and administration - Appointment of administrator - Preconditions - Person with disability - Inability to make reasonable judgments about estate - Involuntary psychiatric patient - Numerous admissions over many years - Hospital assessing person as suitable for supported accommodation placement - Patient wanting to return to reside in own home - Likelihood that administrator would decide to sell patient's home - Patient having limited capacity to manage own affairs unsupported - Whether tribunal erred in interpreting appointment provisions - Best interests of disabled person - Least interference principle - Whether appointment of administrator incompatible with human rights and therefore unlawful - Guardianship and Administration Act 1986 (No 58) ss 4(2) 46(1) 46(2) 46(3) 46(4) - Charter of Human Rights and Responsibilities Act 2006 (No 43) ss 7(2) 32(1) 32(2) 38(1) 38(2) 39(1)

Human rights - Charter - Applicability - Public authority - Victorian Civil and Administrative Tribunal - Administrative decision-making - Charter of Human Rights and Responsibilities Act 2006 (No 43) s 38

Human rights - Charter - Principle of legality - Right to equality - Right to choose where to live - Right to privacy free from arbitrary interference - Right not to be deprived of property - Deprivation of property not in accordance with law - Challenging discretionary decisions for human rights unlawfulness in error of law appeals - Proportionality - Nature and standard of review - Intensity of review - Victorian Civil and Administrative Tribunal - Tribunal - Deference - Scope of permitted interference with rights and freedoms - Weight and latitude in proportionality analysis - "Arbitrarily" - Charter of Human Rights and Responsibilities Act 2006 (No 43) ss 7(2) 32(1) 32(2) 38(1) 38(2) 39(1)

Human rights - Charter - Interpretation - Jurisprudential value of decisions of UN Human Rights Committee - Relevance of Convention on the Rights of People with Disabilities.

Lingenberg v Gallichio and others40 VR 60

[2013] VSCA 143·(Court of Appeal) (2013) Nettle and Neave JJA·14 Jun 2013·11p·

Accident compensation - Workers compensation - Impairment benefits - Assessment - Medical panel - American Medical Association Guides to the Evaluation of Permanent Impairment - Relationship between statute and Guides - Cervicothoracic spine - Aggravation of pre-existing anchylosing spondylitis - Total restriction of neck mobility - Assessment of nil impairment - Panel approach precluded by statute - Guides (4th Ed) s 3.3e, 3.3f(5), 3.3f(9) - Accident Compensation Act 1985 (No 10191) ss 91(1) 91(7)(c)

Administrative law - Judicial review - Certiorari - Jurisdictional error - Error of law on face of record - Whether leave to appeal from refusal of order required - Competing authorities - Supreme Court (General Civil Procedure) Rules 2005 O 56

Priest v West (in his capacity as Deputy State Coroner of Victoria and Another)40 VR 521

[2012] VSCA 327·(Court of Appeal) (2012) Maxwell P, Harper and Tate JJA·20 Dec 2012·43p·

Administrative law - Judicial review - Coroner - Obligations - Inquest - Reportable death - Cause and circumstances of death - Possible findings - Relevant considerations - Disappearance and death of small child in 1968 - Contemporaneous abductions and deaths of four other children - Evidence - Admissibility - Relevance - Coroner excluding statements concerning circumstances of deaths of other children - Person found not guilty by reason of insanity of murdering one of those other children - Coroner's finding that same person was in vicinity of last sighting of missing child on day she disappeared - Excluded statements not relevant as evidence of striking similarities between murders - Relevant as evidence of propensity to violent crime - Relevant as going to identity of person - "Must find, if possible" - Coroners Act 2008 (No 77) s 67(1)(b) (c)

Coroners - Inquest - Characteristics - Inquisitorial court with duty to investigate - Evidence - Admissibility - Witness - Compellability - Incrimination - Propensity evidence - Reliability of evidence relevant to objection - Distinction between salient facts and mere pieces of evidence - Whether coroner obliged to inform witness that certificate of immunity would issue if witness gave evidence - "Interests of justice" - Coroners Act 2008 (No 77) s 57(3) (4)

Director of Public Prosecutions v Patrick Stevedores Holdings Pty Ltd41 VR 81

[2012] VSCA 300·(Court of Appeal) (2012) Maxwell P and Weinberg JA and Ferguson AJA·14 Dec 2012·31p·

Criminal law - Employer and employee - Occupational health and safety - Indictable offences - Victorian WorkCover Authority - Prosecution - Limitation period - Within two years of offence or at any time with authorisation of Director of Public Prosecutions - Whether two year limitation period applicable to prosecutions by Director of Public Prosecutions - Occupational Health and Safety Act 2004 (No 7) s 132 - Criminal Procedure Act 2009 (No 107) s 159(2)

Administrative law - Procedural fairness - Director of Public Prosecutions - Power to authorise prosecution after expiry of limitation period - Amenability to judicial review - Whether putative defendant entitled to hearing - Redundancy of legitimate expectation analysis - Fragmenting prosecutorial process - Undesirability.

Precedent - Intermediate appellate courts - Common law in Australia - Decisions binding unless "plainly wrong" - Obiter dicta - Whether binding - Conflicting decisions - Whether binding.

Transport Accident Commission v Hogan41 VR 112

[2013] VSCA 335·(Court of Appeal) (2013) Redlich and Priest JJA and Macaulay AJA·27 Nov 2013·16p·

Accident compensation - Transport accident - Benefits - Entitlement - Ancillary services - Rehabilitation - Application for compensation by way of purchase of quad bike - Transport Accident Commission - Power to fund purchase of motor vehicle - Scope - Purchase of quad bike as provision of rehabilitative service - Whether service must be subject to structured programme - "Rehabilitative service" - "Aid" ... "appliance", or "apparatus" - "Motor vehicle" - Transport Accident Act 1986 (No 111) ss 60(3) (3A) - Road Safety Act 1986 (No 127)

Wilson v Collingwood Store Pty Ltd41 VR 531

[2014] VSCA 20·(Court of Appeal) (2014) Osborn and Beach JJA and McMillan AJA·25 Feb 2014·17p·

Accident compensation - Workers compensation - Jury trial - Causation - Assessment of damages - Pain and suffering - Vicissitudes of life - Pre-existing medical condition - Aggravation - Risk of further injury - No direction concerning vicissitudes - Reliance on written medical report - Risk that jury would misuse written report to reason impermissibly - Appeal allowed.

Legal practitioners - Fair trial - Closing address - Personal injuries claim - Submissions to jury as to quantum of damages - Defendant's counsel alluding to his surprise as to what plaintiff's counsel would be submitting - Inappropriate personal observation.

Victoria Police Special Operations Group Operators 16, 34, 41 and 64 v Coroners Court of Victoria42 VR 1

[2013] VSC 246·Kyrou J·16 May 2013·26p·

Administrative law - Coroners Court - Powers - Notification of Director of Public Prosecutions if coroner investigating death believed indictable offence may have been committed - Objection to giving evidence on ground of self-incrimination - Power to issue protective certificate to witness - Natural justice - Apprehended bias - Prejudgment - Exercise of referral power prior to witness giving evidence - Coroner's inappropriate statements concerning proposed witness - Coroner declining to recuse herself - No reasonable apprehension of bias - No logical connection between exercise of referral power and statements and feared prejudgment - Errors of law not warranting relief - Coroners Act 2008 (No 77) ss 49(1) 57 Pt 6

Karakatsanis and Another v Racing Victoria Ltd42 VR 176

[2013] VSCA 305·(Court of Appeal) (2013) Osborn and Beach JJA·29 Oct 2013·21p·

Administrative law - Merits review - Victorian Civil and Administrative Tribunal - Thoroughbred horse racing - Disciplinary controls - Review of decisions of Racing Appeals and Disciplinary Board - Australian Rules of Racing - Offences - Elements - Proof - Inferences - Intended stomach-tubing of horse prior to commencement of race - Australian Rules of Racing Rules 64G(1) 175(k) 175(l)

Smith v Gellibrand Support Services Inc42 VR 197

[2013] VSCA 368·(Court of Appeal) (2013) Osborn and Beach JJA·13 Dec 2013·25p·

Accident compensation - Workers compensation - Support care worker for disabled persons - Back injury - Aggravation and acceleration - Jury trial - Judge's charge - Adequacy - Principle in Watts v Rake - Vicissitudes of life - Adequacy of pain and suffering damages - Adequacy of pecuniary loss damages - Contributory negligence - Whether contributory negligence open - Whether jury's apportionment open.

Veljanovska v Verduci42 VR 222

[2014] VSCA 15·(Court of Appeal) (2014) Osborn, Beach JJA and Sifris AJA·19 Feb 2014·14p·

Accident compensation - Workers compensation - Jury trial - Negligence - Breach of statutory duty - Whether jury's finding of breach of statutory duty mandated a finding of negligence - Jury assessment - Contributory negligence - Damages - Pecuniary loss damages - Occupational Health and Safety (Manual Handling) Regulations 1999 (No 84) regs 14 15 16 - Occupational Health and Safety Regulations 2007 (No 54) regs 3.1.1 3.1.2

Victorian WorkCover Authority v Elsdon and Others42 VR 434

[2013] VSCA 235·(Court of Appeal) (2013) Maxwell P, Bongiorno JA and Dixon AJA·6 Sept 2013·22p·

Accident compensation - Workers compensation - Impairment - Assessment - Medical panel - American Medical Association Guides to the Evaluation of Permanent Impairment - Interpretation - Spinal impairment categories - Multilevel fractures of spinal segments - Whether constituted multilevel spine segment structural compromise - Whether panel decision vitiated by jurisdictional error - Whether expert evidence admissible on question of construction of Guides - Accident Compensation Act 1985 (No 10191) s 91(1) - "As with fracture" - "Fractures" - American Medical Association Guides to the Evaluation of Permanent Impairment (4th ed) ss 3.3f 3.3g Tables 70 72

Evidence - Admissibility - Expert evidence - Personal injuries - Impairment assessment - Whether technical terminology - Use of expert medical evidence in aid of construction - Evidence Act 2008 (No 47) ss 55(1) 76(1) 79

MyEnvironment Inc v VicForests42 VR 456

[2013] VSCA 356·(Court of Appeal) (2013) Warren CJ, Tate JA and Garde AJA·10 Dec 2013·57p·

Administrative law - Environment protection and conservation - Proposed timber harvesting in State forests - Legality - Presence of endangered fauna species - Leadbeater's Possum - Action statement - Forest management plan - Exclusion of harvesting in habitat zone - Construction of zone criteria - "Mature and senescing" - Forests Act 1958 (No 6254) ss 3 22 - Conservation Forests and Lands Act 1987 (No 41) ss 4 6 10 35 39 - Sustainable Forests (Timber) Act 2004 (No 48) ss 1 5 37 39 40 46 - Flora and Fauna Guarantee Act 1988 (No 47) ss 1 3 4 11 19

Statutory interpretation - Purposive approach - Statutory scheme - Multiple statutory instruments - No single purpose - Multiple and competing purposes - Interpretation of Legislation Act 1984 (No 10096) s 35(a)

Lillas & Loel Lawyers Pty Ltd v Celona and Others43 VR 1

[2014] VSCA 19·(Court of Appeal) (2014) Neave and Priest JJA and Robson AJA·25 Feb 2014·25p·

Administrative law - Tribunals - Victorian Civil and Administrative Tribunal - Practice and procedure - Powers - Compulsory conference - Notice requiring personal attendance - Non-attendance - Reasonable excuse - Explanation - Claim against solicitor and counterclaim - Solicitor electing to appear at interstate hearing on day appointed for conference - Orders made in favour of claimant - Power to reopen order - Tribunal refusing rehearing application - Status of compulsory conference - "Hearing" - "Proceeding" - Victorian Civil and Administrative Tribunal Act 1998 (No 53) ss 3 83 84 87 89 100 120

Jew v Holloway and Another43 VR 243

[2013] VSCA 260·(Court of Appeal) (2013) Redlich and Coghlan JJA and T Forrest AJA·20 Sept 2013·18p·

Real property - Voidable transactions - Motivation - Intent to defraud - Indicia of fraud - Inference - Property transferred to thwart enforcement of prospective civil liability - Civil claim for damages arising from alleged sexual assaults - Defendant facing criminal trial arising from same conduct - Transfer to transferor's wife - Adequacy of consideration - Natural love and affection - Wife's payment of transferor's legal expenses of defence of criminal charges - Property Law Act 1958 (No 6344) s 172(1)

Appeals - Appellate intervention in face of credibility findings by trial judge - Need for assessment of all relevant evidence - Trial judge's failure to properly evaluate evidence and give reasons.

Flint Ink NZ Ltd v Huhtamaki Australia Pty Ltd and Another44 VR 64

[2014] VSCA 166·(Court of Appeal) (2014) Warren CJ, Nettle and Mandie JJA·6 Aug 2014·50p·

Arbitration - Agreement - Applicability of arbitration clause - Third party proceeding - Claimant not party to arbitration agreement - Related company - Refusal of stay application - Whether dispute capable of settlement by arbitration - Appeal allowed - Conditions - "Claiming through or under a party" - International Arbitration Act 1974 (Cth) ss 7(2) 7(4)

Director of Public Prosecutions v Edwards44 VR 114

[2012] VSCA 293·(Court of Appeal) (2012) Warren CJ, Weinberg JA and Williams AJA·7 Dec 2012·50p·

Criminal law - Sentencing - Director's appeal - Suspended sentence - Power - Partial abolition - Recklessly causing serious injury - County Court judge purporting to impose wholly suspended sentence - Judge later becoming aware of statutory change - Judge recalling and purporting to vacate sentence - Judge functus officio notwithstanding jurisdictional error - Substituted sentence of three year community correction order - Whether manifestly inadequate - Whether irrespective of validity of second sentence community correction order an appropriate sentencing disposition - Criminal Procedure Act 2009 (No 7) ss 289 412 - Sentencing Amendment (Community Correction Reform) Act 2011 (No 65)

Administrative law - Inferior court - Supervision - County Court - Sentencing order - Validity - Doctrine of functus officio - Applicability - County Court lacking general power to recall sentence - County Court Act 1958 (No 6230) s 36A - Sentencing Act 1991 (No 49) ss 104 104A - Criminal Procedure Act 2009 (No 7) s 412

Judgments, orders and declarations - Finality - Inferior court - County Court - Sentence - Order entered in court record - No general power to recall and reconsider sentencing orders.

Walsh v Department of Human Services and Others44 VR 244

[2014] VSCA 244·(Court of Appeal) (2014) Nettle, Hansen and Tate JJA·3 Oct 2014·36p·

Accident compensation - Workers compensation - Entitlement - Work capacity - Medical panel - Review of decision - Workplace injury to knee - Diminished capacity for work - Later unrelated unconnected non-workplace injury to shoulder with low back pain - Impermissible aggregation of injuries - Logic and policy - "No current work capacity" - "Arising from" - "Single incapacity" - Accident Compensation Act 1985 (No 10191) ss 5(1) 45 93 93C - Supreme Court (General Civil Procedure) Rules 2005 O 56

Gild v Magistrates Court of Victoria and Others44 VR 446

[2015] VSC 84·John Dixon J·20 Mar 2015·15p·

Criminal law - Procedure - Indictable offence triable summarily - Theft - Defendant seeking to have charge determined summarily but only after a committal hearing - Magistrate ruling that defendant not entitled to committal hearing ahead of summary trial - Defendant committed for trial in County Court - Judicial review - "Commit for trial" - Supreme Court (General Civil Procedure) Rules 2005 O 56 - Criminal Procedure Act 2009 (No 7) ss 29 30 97 128 141 168 - Magistrates' Court Act 1989 (No 51) ss 54 56

Administrative law - Judicial review - Orders of Magistrates' Court committing or refusing to commit defendant for trial on indictment - Amenability to review.

Chief Examiner v Brown (A Pseudonym)44 VR 741

[2013] VSCA 167·(Court of Appeal) (2013) Harper and Tate JJA and Garde AJA·27 Jun 2013·39p·

Administrative law - Judicial review - Law enforcement - Major crime investigation - Chief Examiner - Coercive powers - Witness - Compelled evidence - Protection of personal safety and reputation - Non-publication order - Power to provide for exceptions - Requirement of specificity - Scheme for disclosure to court - Disclosure to law enforcement agencies - Information sharing - "Specifies" - Major Crime (Investigative Powers) Act 2004 (No 79) ss 1 20 29 43 67 68

Gurappaji v Tonkin and Another45 VR 324

[2015] VSC 177·Derham AsJ·1 May 2015·17p·

Administrative law - Judicial review - Certiorari - Error of law on face of record - Appeal from Magistrates' Court conviction to County Court - Possession of cannabis - Whether failure to provide adequate reasons - Administrative Law Act 1978 (No 9234) s 10 - Drugs, Poisons and Controlled Substances Act 1981 (No 9719) ss 5 73

Practice and procedure - Judicial review - Application for summary dismissal - No real prospect of success revealed - Civil Procedure Act 2010 (No 47) s 63

Deal v Kodakkathanath45 VR 372

[2015] VSCA 191·(Court of Appeal) (2015) Warren CJ and Ashley JA and Digby AJA·24 Jul 2015·68p·

Accident compensation - Workplace injury - Breach of statutory duty - Negligence - Manual handling - School teacher - Removal of art exhibits pinned to classroom display wall - Unassisted use of two-step A-frame ladder - Both hands used to hold exhibits - Teacher descending backwards, losing step and falling on floor - Applicability of manual handling regulations - "Associated with" - "Hazardous manual handling" - "Musculoskeletal disorder" - "Use of force" - Occupational Health and Safety Regulations 2007 (No 54) regs 1.1.1 1.1.5 3.1.1 3.1.2 3.1.3 - Occupational Health and Safety Act 2004 (No 107) ss 2 4 20

Practice and procedure - Trial - Jury - Claim for damages for personal injury - Workplace accident - Breach of statutory duty - Negligence - Action based on Occupational Health and Safety Regulations withdrawn from jury's consideration before completion of evidence - Test - Excision of particular of negligence alleging breach of statutory duty - Ruling premature - No appellable error.

Practice and procedure - Trial - Jury verdict - Whether perverse - Whether reasonably open on the evidence.

Kyriackou v Law Institute of Victoria Ltd45 VR 540

[2014] VSCA 322·(Court of Appeal) (2014) Warren CJ and Osborn JA and Ginnane AJA·11 Dec 2014·31p·

Legal Practitioners - Legal practice - Lay associate - Practice manager - Trust account - Deficiency - Misappropriation and misuse of trust money - Serious misconduct - Complicity - Disqualification - Appeal against VCAT disqualification order - Tribunal not bound by rules of evidence - Sufficiency of evidence - Applicability of Briginshaw principles - Tribunal expressing reservations about solicitor's evidence - Victorian Civil and Administrative Tribunal Act 1998 (No 53) ss 98 148 - Legal Profession Act 2004 (No 99) ss 1.2.4(1)-(2) 2.2.5 2.2.6(1)(b) (2) (3) (4) (5) 2.2.7 2.2.8 3.3.21 4.4.2 - Evidence Act 2008 (No 47) s 140 - Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (No 110) rr 4.15 4.17

Legal Practitioners - Serious misconduct - Penalty - Discretion - Relevant considerations - Lay associate - Conduct of defence of disciplinary hearing - Failure to give evidence - No showing of acceptance of responsibility - Matters wholly within knowledge of lay associate - Indefinite disqualification.

Administrative law - Merits review - Victorian Civil and Administrative Tribunal - Appeal on question of law - Notice of appeal - Questions of law not properly specified.

Administrative law - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 98

Wallis Nominees (Computing) Pty Ltd v Pickett45 VR 657

[2013] VSCA 24·(Court of Appeal) (2013) Warren CJ and Redlich JA and Davies AJA·20 Feb 2013·23p·

Contract - Restraint of trade - Employer and employee - Public policy - Legitimate interest - Criteria - Reasonableness of restraint - Severance.

Appeal - Principles constraining new points on appeal.

Cosmopolitan Hotel (Vic) Pty Ltd and Another v Crown Melbourne Ltd45 VR 771

[2014] VSCA 353·(Court of Appeal) (2014) Warren CJ, Whelan and Santamaria JJA·22 Dec 2014·45p·

Contract - Collateral contract - Lease - Renewal - Tenants seeking a ten year term - Negotiations - Landlord only prepared to renew for five years - Expenditure by tenants on refurbishing leased premises - Representations that tenants "would be looked after at renewal time" - Expiry of lease - Landlord refusing grant of further lease - Whether collateral contract made - Whether inconsistent with lease.

Estoppel - Equitable estoppel - Lease - Renewal - Negotiations - Expenditure by tenants on refurbishing leased premises - Representations that tenants "would be looked after at renewal time" - Expenditure by tenants - Reliance on statements - Whether representation sufficiently certain to found estoppel - Representation susceptible of range of possible meanings - Reasonable for representees to understand it as extending at least to lower limit of range of meanings.

Appeal - Appeal from Victorian Civil and Administrative Tribunal - Question of law - Precise identification of question - Question of mixed fact and law - "Question of law" - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 148

A Woodley Osteopathic Services Pty Ltd v Transport Accident Commission and Another46 VR 28

[2013] VSCA 350·(Court of Appeal) (2013) Maxwell P, Tate and Priest JJA·6 Dec 2013·21p·

Tort - Duty of care - Content - Breach - Occupier of land - Foreseeability of risk - Magnitude of risk - Insufficient consideration - Land adjacent to highway - Escape of horse from agistment - Paddock and main entrance gates left open - Horse colliding with motor vehicle - One passenger killed and another injured - Standard of care - Reasonable care in the circumstances - Prospective not retrospective assessment of risk - Very small risk of horse escaping - No additional precautions against escape of horse required from reasonable person - No breach of duty.

Tort - Duty of care - Horse agisted on land - Risk of escape - Tenant of neighbouring house - No control of horse or land - No duty of care.

Accident compensation - Transport accident - Payment of compensation - Indemnity claim by Transport Accident Commission against third parties - Occupier of land not in breach of duty of care to users of highway - Tenant owed no duty of care to users of highway to take precautions to prevent escape of horse.

Subway Systems Australia Pty Ltd v Ireland and Another46 VR 49

[2014] VSCA 142·(Court of Appeal) (2014) Maxwell P, Beach JA and Kyrou AJA·1 Jul 2014·29p·

Arbitration - Franchise agreement - Arbitration clause - Staying court proceedings - Action brought in Victorian Civil and Administrative Tribunal - Whether court includes tribunal - "Court before which an action is brought" - Commercial Arbitration Act 2011 (No 50) s 8.

Statutory interpretation - Legislative purpose - Statute implementing international agreement - UNCITRAL Model Law on International Commercial Arbitration - Definition in model law not re-enacted - Consistency with language and purpose of statute - Extrinsic materials.

Marriner and Others v Australian Super Developments Pty Ltd and Others46 VR 213

[2012] VSCA 171·(Court of Appeal) (2012) Neave and Mandie JJA and Judd AJA·3 Aug 2012·70p·

Trust and trustees - Breach of trust - Third party liability - Creation of trust - Intention - Quistclose trust - Joint venture - Queensland resort development - Parties involved in earlier joint ventures - One joint venturer previously providing funds for general purposes of joint venture - Deposit of further money into bank account - Parties intending that part of further money be used to pay bond to electricity supplier - Whether depositor intending to retain beneficial interest in money - Money partly used for nominated purpose - Purpose achieved - Joint venture terminated - Subsequent use of balance of money for general purposes of same development - Whether intention that money be used for exclusive purpose - Quistclose trust not established.

Contract - Construction - Surrounding circumstances - Agreement to terminate joint venture - Parties previously involved in other joint ventures - Respondent previously providing funds for purposes of joint ventures generally - Agreement limiting respondent's "liability" to contribute to joint venture - Expenditure exceeding that which respondent "liable" to make not constituting breach of agreement.

Appeal - Issue not raised at trial - No prejudice by reason of issue being first raised on appeal - Issue determined on appeal.

Genco and Another v Salter and Another46 VR 507

[2013] VSCA 365·(Court of Appeal) (2013) Nettle and Osborn JJA·12 Dec 2013·30p·

Administrative law - Judicial review - Building control - Apartments - Classification - Building Code of Australia - Interpretation - Class 2 short term commercial stays - Municipal building surveyor reclassifying apartments as Class 3 and requiring compliance with requirements - Reclassification affirmed by Building Appeals Board - Application for judicial review dismissed - Interpretation - Length of occupation - Whether facilities provided within dwelling - Whether occupants of dwelling related persons or unrelated persons - Whether evidence of relevant danger - "Separate dwelling" - Building Code of Australia cl A3.2 - Building Act 1993 (No 126) s 106(d) - Building Regulations 2006 (No 68) reg 112

R and M v Independent Broad-Based Anti-Corruption Commissioner47 VR 148

[2015] VSCA 271·Priest, Beach and Kaye JJA·30 Sept 2015·Court of Appeal29p·Vol 47 VR Pt 2

Criminal lawEnforcement — Investigation — Independent Broad-based Anti-corruption Commission — Powers — Public examination of persons — Whether legislation authorises examination of persons under investigation with respect to matters the subject of the investigation

Statutory interpretationWhether Independent Broad-based Anti-corruption Commission Act 2011 grants power to examine persons, under investigation for criminal offence, publicly or at all — Principle of legality — Effect of the abrogation of the privilege against self-incrimination — Power to conduct examination in public — Exceptional circumstances — Public interest — Independent Broad-based Anti-corruption Commission Act 2011 (Vic) ss 8, 15, 70, 115, 117 and 144

Administrative lawJudicial review — Jurisdictional error – Whether Commissioner's opinion that jurisdictional conditions satisfied was a reviewable error — Whether decision affected by irrelevant considerations, a failure to take into account relevant considerations or legal unreasonableness — Effect of an express statutory obligation of reasonableness

Saville v Hallmarc Construction47 VR 177

[2015] VSCA 318·Warren CJ, Tate and Kaye JJA·27 Nov 2015·Court of Appeal49p·Vol 47 VR Pt 2

Administrative lawJudicial review — Jurisdictional fact — Fixing of reference date in adjudication under the Building and Construction Industry Security of Payment Act 2002 — Whether determination of reference date by arbitrator a jurisdictional fact — Nature of exercise involved

Building contractsPayment claim under the Building and Construction Industry Security of Payment Act 2002 — Fixing of reference date — Review of adjudicator's determination — Building and Construction Industry Security of Payment Act 2002 (Vic) ss 9(2)(d), 14(4), 14(5)

Fertility Control Clinic v Melbourne City Council47 VR 368

[2015] VSC 424·McDonald J·26 Aug 2015·Supreme Court of Victoria15p·Vol 47 VR Pt 3

Prerogative writsMandamus — Clinic complained to Council of nuisance caused by protesters — Council advised Clinic to privately settle the matter through referral to Victoria Police — Clinic sought relief by mandamus and declaratory relief — Public Health and Wellbeing Act 2008 (Vic) ss 58, 60, 62.

Administrative lawCouncil conclusion that the only activity of protesters that constituted nuisance was blocking of entry to Clinic's premises — Whether Council failed to exercise jurisdiction by misconstruing the meaning of nuisance and misdirecting itself

Bare v IBAC48 VR 129

[2015] VSCA 197·Warren CJ, Tate and Santamaria JJA·29 Jul 2015·Court of Appeal220p·Vol 48 VR Pt 2

Administrative lawJudicial review — Privative clause — Police Integrity Act 2008 (Vic) ss 40(4)(b)(1), 52, 109(1)

Human rightsCharter of Human Rights and Responsibilities — Equality before law — Equal protection of law without discrimination — Freedom from cruel, inhuman or degrading treatment — Complaint of assault by police — Whether implied procedural right to effective investigation of complaint — Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 8(3), 10(b), 32, 38(1)

Brirek Industries v McKenzie Group Consulting (Vic)48 VR 558

[2014] VSCA 165·Redlich, Whelan and Santamaria JJA·6 Aug 2014·Court of Appeal74p·Vol 48 VR Pt 5

ContractFormation — Building owner and building surveyor — Statutory scheme for issue of building permits — Provision for permit application to be made by or on behalf of owner of building or of land — Building surveyor appointed by builder — Whether contract between owner and surveyor created or imputed by statute — Building Act 1993 (Vic) ss 17, 24, 70, 78 — Building Regulations 1994 (Vic) reg 2.6

ContractImplied terms — Building contract — Contract between owner and building surveyor — Issue of building permits by building surveyor under Building Act 1993 — Whether implied obligation to inform owner that planning permit had expired

NegligenceDuty of care — Economic loss — Vulnerability — Building surveyor and owner — Delay in completion of commercial project — Loss of owner in the form of financial loss — Liability of building surveyor to owner

Limitation of actionsBuilding actions — Whether ‘long-stop’ or ‘absolute cap’ — Building Act 1993 (Vic) ss 129, 130, 134 — Limitation of Actions Act 1958 (Vic) ss 5, 33

Practice and procedurePleadings — Amendment — Whether amendment relates back to date of writ — Whether court had discretion to order that amendment operate from date of amendment — Rule in Weldon v Neal — Limitation of Actions Act 1958 (Vic) s 34 — Supreme Court (General Civil Procedure) Rules 2005 r 36.01(6)

Practice and procedureMaterial tendered in Court but not referred to in evidence or submissions — Whether Court obliged to examine or consider

AppealClaim for breach of contract reformulated on appeal — Damages for breach — Whether order for remittal should be made — Reformulation a significant departure from case as pleaded and run — Fairness

CostsCosts of trial — Solicitor/client costs — Calderbank offer rejected — Reasonableness — Further cause of action added during the trial — Whether added cause of action should be taken into account in assessing reasonableness of rejection of offer — Time at which reasonableness to be assessed

De Bruyn v Victorian Institute of Forensic Mental Health48 VR 647

[2016] VSC 111·Riordan J·22 Mar 2016·Supreme Court of Victoria67p·Vol 48 VR Pt 6

Human rightsCharter of Human Rights and Responsibilities — Inherent dignity of human person — Involuntary forensic patient — Smoke Free Policy — Right not to be subjected to compulsory medical treatment — Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 10(c), 20, 22(1), 22(3)

Human rightsCharter of Human Rights and Responsibilities — Introduction of new policy — Obligation on public authorities to give proper consideration to relevant human rights — Charter of Human Rights and Responsibilities Act 2006 (Vic) s 38(1)

Administrative lawStatutory corporation — Power to do all things necessary or convenient in connection with the performance of functions — Whether power extends to introduction of Smoke Free Policy — Mental Health Act 2014 (Vic) s 331(1)

Statutory interpretationWhether a statutory right to smoke in outdoor areas of designated mental health service — Tobacco Act 1987 (Vic) s 5A

Victoria Police Toll Enforcement and Others v Taha and Others49 VR 1

[2013] VSCA 37·Nettle, Tate and Osborn JJA·4 Mar 2013·Court of Appeal84p·Vol 49 VR Pt 1

Administrative lawJudicial review — Supervision of inferior courts — Magistrates’ Court — Jurisdictional error — Infringement penalty notice scheme (PERIN) — Power to relieve fine if satisfied of mental or intellectual impairment of offender or other special circumstances — Power to relieve imprisonment if excessive, disproportionate and unduly harsh, having regard to the offender’s situation — Default in payment of instalments of fines — Need for consideration of alternatives as pre-condition to exercise of imprisonment power — Whether Court obliged to make own inquiries — Magistrate declining to consider alternatives in absence of written evidence of impairment — Infringements Act 2006 (Vic) ss 160(2), (3)

Human RightsCharter of Human Rights and Responsibilities — Statutory interpretation — Interpretation compatible with human rights — Liberty — Fair hearing — Equal protection of law — Infringement penalty notice scheme (PERIN) — Default in payment of penalty — Imprisonment — Alternative non-custodial dispositions available — Interpretation requiring consideration of alternative non-custodial disposition — Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 6, 21, 24, 32 — Infringements Act 2006 (Vic) ss 160(1), (2), (3)

Robotunits Pty Ltd v Mennel49 VR 323

[2015] VSC 268·Croft J·22 Jun 2015·Supreme Court of Victoria33p·Vol 49 VR Pt 3

ArbitrationStay of Court proceedings — Referral to arbitration – Partial referral — Matters for determination in Court proceeding within scope of arbitration agreement — Determination of a `matter' — Whether `matter' for determination must be sustainable or have reasonable prospects of success — Whether `matter' within scope of arbitration agreement — Whether matters under Corporations Act 2001 (Cth) capable of settlement by arbitration — International Arbitration Act 1974 (Cth) s 7(2)(b)

Words and Phrases`Capable of settlement by arbitration'

Gutnick v Indian Farmers Fertiliser Cooperative Ltd49 VR 732

[2016] VSCA 5·Warren CJ, Santamaria and Beach JJA·9 Feb 2016·Court of Appeal14p·Vol 49 VR Pt 6

ArbitrationForeign award — Application to enforce foreign award — Public policy — Whether enforcement of award would give rise to double recovery — Court's inherent and equitable powers in aid of proper execution — International Commercial Arbitration Act 1974 (Cth) ss 8(2), (7)(b)

EquityRescission — Agreements for purchase of shares — Arbitral award declaring agreements rescinded and ordering repayment of purchase price — No orders requiring retransfer of purchased shares — Whether purchasers' rescission effective to reconvey equitable title to shares — Whether necessary that arbitral award required rescinding purchasers to reconvey legal title

Metricon Homes v Softley49 VR 746

[2016] VSCA 60·Warren CJ, Tate JA and Robson AJA·6 Apr 2016·Court of Appeal67p·Vol 49 VR Pt 6

AppealsCourt of Appeal — Civil appeal — Application for leave to appeal against decision of Victorian Civil and Administrative Tribunal constituted by presidential member — Supreme Court Act 1986 ss 14A–14D — Victorian Civil and Administrative Tribunal Act 1998 s 148

Statutory interpretationInterpretation of two State Acts – Whether inconsistency arises — Whether `real prospects of success' test inconsistent with `sufficient doubt' test

Building contractApplicant's breach of contract resulted in slab heave and structural distress in respondents' house — Damages — Whether Tribunal erred in assessing damages as cost of demolishing and rebuilding house

Judicial reviewWhether Tribunal failed to provide adequate reasons for decision

Note Printing Australia v Leckenby50 VR 44

[2015] VSCA 105·Tate, Whelan and Ferguson JJA·20 May 2015·Court of Appeal29p·Vol 50 VR Pt 1

CorporationsDirectors and officers — Company officer indemnified for legal costs and expenses — Whether indemnity arises before verdict or only at conclusion of proceedings — Effect of obligation to refund if officer found guilty — Whether indemnity for costs and expenses of criminal proceedings breaches statutory prohibition — Corporations Act 2001 (Cth) s 199A(3)

AppealLeave to appeal — `Real prospect of success' — Supreme Court Act 1986 (Vic) ss 14A, 14C

Glass (a pseudonym) v Chief Examiner50 VR 577

[2015] VSCA 127·Santamaria, Ferguson and McLeish JJA·29 May 2015·Court of Appeal23p·Vol 50 VR Pt 5

Administrative lawCoercive powers order for examination under Major Crime (Investigative Powers) Act 2004 — Non-publication direction made by delegate — Direction later rescinded — Instrument of delegation ‘in respect of’ coercive powers order — Whether delegation extended to revocation of non-publication direction — Interpretation of Legislation Act 1984 (Vic) s 41A — Major Crime (Investigative Powers) Act 2004 (Vic) ss 4, 43, 65(4)

AppealJudicial review — Application for extension of time to commence — Special circumstances — Factors — Strength of merits — Assessment by associate judge — Supreme Court (General Civil Procedure) Rules 2005 (Vic)ch I, r 56.02(3)

AppealLeave to appeal to Court of Appeal — Real prospects of success — Argument on appeal not raised below — Discretion to refuse leave — Supreme Court Act 1986 (Vic) s 14C

Weber v Deakin University [No 1]50 VR 645

[2015] VSC 703·Derham AsJ·11 Dec 2015·Supreme Court of Victoria36p·Vol 50 VR Pt 5

AppealAppeal from Victorian Civil and Administrative Tribunal — Application for leave to appeal on a question of law — Summary dismissal power — Whether summary dismissal available at conclusion of applicant’s case — Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 75, 148

Richter v Driscoll51 VR 95

[2016] VSCA 142·Ashley, Osborn and Kaye JJA·17 Jun 2016·Court of Appeal42p·Vol 51 VR Pt 1

Administrative lawJudicial review — Reasons — Adequacy — Statutory obligation — Path of reasoning — Medical panel opinion — Accident Compensation Act 1985 (Vic) s 68

Accident compensation‘No current work capacity’ — ‘Current work capacity’ — ‘Suitable employment’ — Accident Compensation Act 1985 (Vic) ss 5, 93C

Racing Victoria Ltd v Riley51 VR 261

[2016] VSCA 230·Maxwell ACJ, Hansen and Osborn JJA·21 Sept 2016·Court Of Appeal11p·Vol 51 VR Pt 2

Associations and clubsHorse racing — Rules of racing — Interpretation of rules — Licensed horse trainer bound by rules by agreement — Prohibitions on performance enhancing substances — Substance prohibited unless present at or below specified concentration — Limit expressed to one decimal place — Accredited laboratory reported substance present at above specified concentration — Reading ‘rounded up’ to nearest single decimal place — Rounding up in accordance with scientific conventions — Readings previously rounded down to take account of possibility of error — Change in scientific opinion as to whether rounding down necessary for that purpose

Attorney-General (Vic) v Glass51 VR 381

[2016] VSCA 306·Warren CJ, Beach and Ferguson JJA·9 Dec 2016·Court of Appeal27p·Vol 51 VR Pt 3

Administrative lawOmbudsman — Jurisdiction — Investigatory powers — Investigation of matter referred by Legislative Council — Absent referral, matter not within Ombudsman’s jurisdiction — Whether matter referred by Legislative Council in Ombudsman’s jurisdiction — Ombudsman Act 1973 (Vic) s 16

StatutesInterpretation — Ordinary meaning of ‘any matter’ — Legislative intent, purpose and objects — Ombudsman Act 1973 (Vic) s 16

Certain Children v Minister for Families and Children51 VR 473

[2016] VSC 796·Garde J·21 Dec 2016·Supreme Court of Victoria66p·Vol 51 VR Pt 4

Administrative lawJudicial review — Habeas corpus — Certiorari — Validity of Orders in Council — Improper or extraneous purpose — Failure to take into account relevant considerations — Power to establish centres for detention of young persons — Use of power to establish remand centre and youth justice centre within adult jail for the purpose of ‘emergency accommodation’ — Children, Youth and Families Act 2005 (Vic) ss 478, 482, 484

Human rightsCharter of Human Rights and Responsibilities — Children — Protection from cruel, inhuman or degrading treatment — Protection of child in their best interests – Humane treatment when deprived of liberty — Public authorities — Obligation to give proper consideration to human rights — Effect of failure to give proper consideration — Declarations — Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 10(b), 17(1), (2), 22(1), 38(1)

Minister for Families and Children v Certain Children51 VR 597

[2016] VSCA 343·Warren CJ, Maxwell P and Weinberg JA·29 Dec 2016·Court of Appeal27p·Vol 51 VR Pt 5

Administrative lawJudicial review — Jurisdictional error — Power to establish centres for detention of young persons — Failure to take into account relevant considerations — Whether power exercised for improper purpose — Children, Youth and Families Act 2005 (Vic) ss 362, 478, 482.1

Blanalko Pty Ltd v Lysaght Building Solutions Pty Ltd52 VR 198

[2017] VSC 97·Croft J·10 Mar 2017·Supreme Court of Victoria27p·Vol 52 VR Pt 2

ArbitrationArbitration award — Award failing to determine all issues — Whether a final award — Whether arbitrator’s mandate terminated — Whether award may be set aside — Commercial Arbitration Act 2011 (Vic) ss 32, 34(2)(a)(iii)

ArbitrationArbitration agreement — Application to stay court proceedings — Whether agreement inoperative or incapable of being performed — Commercial Arbitration Act 2011 (Vic) s 8(1)

Sednaoui v Amac Corrosion Protection Pty Ltd52 VR 247

[2017] VSCA 66·Priest and Beach JJA and Cameron AJA·29 Mar 2017·Court of Appeal20p·Vol 52 VR Pt 2

Accident compensationSerious injury application — Whether injury occurred in compensable circumstances — Payment of statutory benefits by insurer — Whether admission against interest by employer — Nature and significance of admission — Worker’s credibility in issue — Accident Compensation Act 1985 (Vic) s 134AB

Aurecon Australasia Pty Ltd v BMD Constructions Pty Ltd52 VR 267

[2017] VSC 382·Croft J·30 Jun 2017·Supreme Court of Victoria5p·Vol 52 VR Pt 2

ArbitrationSubpoena — Domestic arbitration — Application for subpoena to non-party to attend for examination before an arbitral tribunal — Whether reasonable grounds required for the issue of subpoena — Commercial Arbitration Act 2011 (Vic), ss 27, 27A

Certain Children v Minister (No 2)52 VR 441

[2017] VSC 251·John Dixon J·10 Apr 2017·Supreme Court of Victoria168p·Vol 52 VR Pt 4

Administrative lawJudicial review — Habeas corpus — Jurisdictional error — Validity of Orders in Council — Jurisdictional fact — Power to establish centres for detention of young persons — Children, Youth and Families Act 2005 (Vic), ss 1, 3, 8, 9, 10, 11, 478, 482, 484, 487, 488

Administrative lawJudicial review — Jurisdictional fact — Power to exempt class of persons from prohibitions on possession and use of controlled weapons — Control of Weapons Act 1990 (Vic), ss 5A, 8B

Human rightsCharter of Human Rights and Responsibilities — Children — Protection of child in their best interests — Humane treatment when deprived of liberty — Public authorities — Obligation to act compatibly with human rights — Obligation to give proper consideration to human rights — Effect of failure to act compatibly with human rights or give proper consideration to human rights — Declarations — Injunctions — Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 10(b), 17(1), 17(2), 22(1), 38(1), 39(1)

Re Tang52 VR 786

[2017] VSCA 171·Kyrou and McLeish JJA·30 Jun 2017·Court of Appeal24p·Vol 52 VR Pt 6

Private international lawChoice of law — Wills and codicils — Deceased Australian citizen domiciled in China — Testamentary note made in China — Note disposed of part of Victorian personal estate — Whether will — Whether validity of note as a will governed by Victorian law or Chinese law — Whether Victoria appropriate forum — Proof of foreign law — Evidence Act 2008 (Vic) s 174 — Wills Act 1997 (Vic) s 17

Administration and probatePartial intestacy — Assets in Victoria and China — Whether intestacy provisions of Victorian law or Chinese law apply — Effect of order of Supreme Court of Victoria granting letters of administration for a will disposing of only part of deceased’s personal estate in Victoria

Secretary DOJR v Century 21 Aust Pty Ltd53 VR 234

[2017] VSCA 205·Whelan, Beach and Ferguson JJA·15 Aug 2017·Court of Appeal17p·Vol 53 VR Pt 2

ContractFranchise agreement — Construction — Whether agreement a ‘franchising agreement’ within the meaning of Estate Agents Act 1980 (Vic) s 43(5) — Whether franchisee authorised to carry on business under same ‘name’ as franchisor — Estate Agents Act 1980 (Vic) s 43(5)

Agency and agentsEstate agent — Franchise agreement — Whether ‘franchise agreement’ within statutory definition — Carrying on business under ‘name’ — Interpretation of Legislation Act 1984 (Vic) ss 35(a), 35(b) — Estate Agents Act 1980 (Vic) ss 43(5), 72, 73, 75, 79, 84

Edwards v State Trustees Ltd54 VR 1

[2016] VSCA 28·Whelan, Santamaria and Kyrou JJA·10 Mar 2016·Court of Appeal66p·Vol 54 VR Pt 1

Administration and probateForfeiture rule — Beneficiary guilty of defensive homicide of testator — Scope of application of forfeiture rule to manslaughter and analogous homicides — Public policy — Whether rule equitable in nature — Whether rule applied to prevent beneficiary taking benefit of will

Adventure Golf Systems Aust PL v Belgravia Health & Leisure Grp PL54 VR 625

[2017] VSCA 326·Santamaria, Kaye and Ashley JJA·8 Nov 2017·Court of Appeal50p·Vol 54 VR Pt 4

EquityFiduciary obligations — Commercial relationship governed by contract — Factors relevant to existence of fiduciary relationship — Whether fiduciary relationship existed

ContractConstruction and interpretation — Agreement governing construction and operation of adventure golf course between manager and developer — Where separate management agreement between landowner and manager — Where agreement duration depended upon occupation of site ‘in accordance with’ management agreement — Whether agreement duration extended to renewal or ‘holding over’ of management agreement

AppealsIssue not raised at trial — Where conduct at trial reveals departure from pleaded claim — Issue as to construction and interpretation of contract — Whether applicant permitted to raise issue on application for leave to appeal

Stanley Rural Community Inc v Stanley Pastoral Pty Ltd54 VR 676

[2017] VSCA 385·Osborn, Santamaria and Ashley JJA·20 Dec 2017·Court of Appeal29p·Vol 54 VR Pt 4

Administrative lawAppeal — Questions of law — Decision of the Victorian Civil and Administrative Tribunal — Whether rights conferred upon holder of a ‘take and use’ licence under the Water Act 1989 limited by the Planning and Environment Act 1987 or by planning scheme — Water Act 1989 (Vic) ss 8(4), 8(6), 51, 55, 67, 69 — Planning and Environment Act 1987 (Vic) s 6(2)(b)

Town and country planningPlanning permit granted for a ‘utility installation’ to holder of a ‘take and use’ licence under the Water Act 1989 — Whether rights conferred upon holder of a ‘take and use’ licence under the Water Act limited by the Planning and Environment Act 1987 or by planning scheme — Water Act 1989 (Vic) ss 8(4)(a), 8(6), 51, 55,67(1)(b), 69 — Planning and Environment Act 1987 (Vic) s 6(2)(b)

Keech v County Court of Victoria55 VR 32

[2017] VSC 525·Riordan J·4 Sept 2017·Supreme Court of Victoria29p·Vol 55 VR Pt 1

AppealCriminal law — Appeal from Magistrates’ Court to County Court — Jurisdiction and powers of County Court — Alternative charges — Plaintiff convicted and sentenced by Magistrates’ Court on one charge — Alternative charge dismissed — Appeal against conviction and sentence — Nature of criminal appeal to County Court — Whether County Court on appeal has jurisdiction to convict on charge ‘dismissed’ in Magistrates’ Court — Whether County Court has power to correct an unintended error by Magistrate — Criminal Procedure Act 2009 (Vic) ss 3, 254, 256(2)(b), 256(2)(c) and 412 — Interpretation of Legislation Act 1984 (Vic) s 51(1)

OrdersInterlocutory order — Final order — Whether a charge dismissed other than on the merits is interlocutory or final

Administrative lawAdmissibility of transcript of Magistrates’ Court proceeding to determine whether there was an error on the face of the record — Administrative Law Act 1978 (Vic) s 10 — Evidence Act 2008 (Vic) s 178(6)

Perakis v Secretary to the Department of Transport, Planning and Local Infrastructure55 VR 367

[2017] VSCA 265·Warren CJ, Osborn and Kaye JJA·22 Sept 2017·Court of Appeal28p·Vol 55 VR Pt 3

Workers compensationAction for damages — Asbestos-related condition — Leave to proceed — Claimant died before taking additional steps to apply for order for leave to proceed — Whether worker had a valid cause of action at the time of death — Accident Compensation Act 1985 (Vic) ss 135A, 135BB

Workers compensationWhether filing of generally indorsed writ constituted application under s 135BB(3) of Accident Compensation Act 1985 (Vic)

Administration and ProbateWorker’s common law claim in respect of employment injury — Statutory requirement for leave to proceed — Claimant died after filing writ and before leave applied for — Whether cause of action survived for the benefit of the estate — Administration and Probate Act 1958 (Vic) s 29

Re Victoria Station Corp Ltd56 VR 26

[2018] VSC 163·Robson J·11 Apr 2018·Supreme Court of Victoria25p·Vol 56 VR Pt 1

AgencyManager of partnership of group of companies — Administrators appointed to partners and manager — Whether manager as agent held assets on trust for partnership — Nature of any trust — Agent’s right of indemnity — Whether agent held possessory lien over partnership assets in its possession — Whether possessory lien lost by administrators’ later sale of assets — Whether possessory lien extended to sale moneys deposited in bank account later established by administrators — Whether leases entered into by sub-agent of the agent were partnership assets held on trust for partnership

PBU & NJE v Mental Health Tribunal and Others56 VR 141

[2018] VSC 564·Bell J·1 Nov 2018·Supreme Court of Victoria88p·Vol 56 VR Pt 1

Administrative lawPlaintiffs with mental illness refusing electroconvulsive therapy (ECT) — Whether plaintiffs had capacity to consent to, and refuse, treatment — Test for determining capacity — Whether ECT was least restrictive treatment — Mental Health Act 2014 (Vic) ss 5(b), 68(1), 68(2), 69, 93, 96(1), 96(2)

Human rightsRight to freedom from non-consensual medical treatment — Right to privacy — Right to equality before the law — Assessment of compatibility with the plaintiffs’ human rights — Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 8(3), 10(c), 13(a), 38(1)

Reardon v Magistrates’ Court of Victoria56 VR 266

[2018] VSCA 76·Weinberg, Beach and Kyrou JJA·28 Mar 2018·Court of Appeal40p·Vol 56 VR Pt 2

Statutory interpretation‘Criminal proceedings do not lie against a person by reason only’ — Whether immunity from criminal prosecution — Industrial action — Secondary boycott — Allegation against union officials of blackmail — Competition and Consumer Act 2010 (Cth) ss 45D, 45E, 76 and 78

Administrative lawWhere judge relied on documents obtained after hearing concluded without informing parties — Whether applicants denied procedural fairness — Whether outcome would have been different in absence of denial of procedural fairness

Cemino v Cannan and Others56 VR 480

[2018] VSC 535·Ginnane J·17 Sept 2018·Supreme Court of Victoria46p·Vol 56 VR Pt 3

Administrative lawJudicial review — Jurisdictional error — Magistrates’ Court — ‘Proper venue’ — Application for transfer of criminal sentencing to Koori Court Division sitting at other location — Exercise of discretion — Relevant considerations — Relevance of Charter of Human Rights and Responsibilities — Magistrates' Court Act 1989 (Vic) ss 4D, 4E, 4F, 4G — Administrative Law Act 1978 (Vic) s 10

Human rightsCharter of Human Rights and Responsibilities — Equal and effective protection against discrimination — Application for transfer to Koori Court Division — Whether Magistrates’ Court acting in administrative or judicial capacity — Whether Magistrates’ Court a public authority — Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 4(1)(j), 38(1)

Human rightsCharter of Human Rights and Responsibilities — Application of Charter to judicial functions — Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 6(2)(b), 8(3), 19(2)(a)

Secretary to the Department of Justice and Regulation v McIntyre56 VR 526

[2019] VSC 105·Garde J·28 Feb 2019·Supreme Court of Victoria31p·Vol 56 VR Pt 3

Administrative lawJudicial review — Victorian Civil and Administrative Tribunal — Error of law — Occupational regulation — Child-related work — Negative assessment notice — Category A application — Protection of children from sexual and physical harm — Whether paramount consideration determinative and overriding consideration — Whether paramount consideration given effect to — ‘Likelihood of future threat’ — ‘Unjustifiable risk’ — ‘Paramount consideration’ — Working with Children Act 2005 (Vic) ss 1A, 26A(3)(h), 26A(4), 26A(5)

Brighton Australia Pty Ltd v Multiplex Constructions Pty Ltd56 VR 557

[2018] VSC 246·Riordan J·17 May 2018·Supreme Court of Victoria49p·Vol 56 VR Pt 3

Australian consumer lawMisleading or deceptive conduct — Contract — Exclusion clause — Whether possible to limit the time in which a claim can be brought under the Australian Consumer Law pursuant to contract — Whether limitation contrary to public policy — Australian Consumer Law ss 18, 236(2)

Practice and procedurePleadings — Misleading or deceptive conduct — Continuing misrepresentation — Misrepresentation by silence — Whether misleading or deceptive conduct claim properly pleaded as continuing representation — Whether claim based on continuing representation outside the ambit of the pleadings

Mortimer v West56 VR 608

[2018] VSCA 188·Tate and McLeish JJA and McDonald AJA·2 Aug 2018·Court of Appeal41p·Vol 56 VR Pt 4

Administrative lawJudicial review — Coroner — Inquests — Re-opening of coronial investigation — Inquest finding death from medical condition — Applicant alleging Coroner misinterpreted expert medical opinion obtained for purposes of investigation — Whether ‘unsustainability test’ to be satisfied for re-opening — ‘New facts and circumstances’ — Coroners Act 2008 (Vic) s 77(2), 77(3)(a), 77(3)(b)

CoronersCoroner’s power to ‘comment on any matter connected with death’ — Alleged denial of natural justice or procedural fairness regarding Coroner’s comment — Whether ground for seeking to have coronial investigation re-opened — Coroners Act 2008 (Vic) ss 67(1), 67(3), 87

CoronersAppeal — Relief on appeal — Whether relief limited to directing application of correct legal test — Whether power to order new coronial investigation — Coroners Act 2008 (Vic) ss 77, 84, 87(4), 87A

AppealAdmission of further evidence on appeal — Document before original decision-maker — Document not adduced on appeal to primary judge — Self-represented litigant — Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 64.13

Tait v Rehabilitation Care Solutions Pty Ltd56 VR 649

[2018] VSC 657·Cavanough J·31 Oct 2018·Supreme Court of Victoria25p·Vol 56 VR Pt 4

EvidenceHearsay — Exception — Business records — Medical panel notes — Notes provided by ‘voluntary informal discovery’ — Admissibility — Whether exception inapplicable on the basis of notes prepared in connection with a proceeding — Provenance of panel notes — Evidence Act 2008 (Vic) ss 63, 69(1), 69(3)(a)

Administrative lawJudicial review — Jurisdictional error — Failure to take into account a mandatory relevant consideration — Denial of natural justice — Whether medical panel mistook or misunderstood plaintiff’s history of incident alleged to have caused injury

Durney v Unison Housing Ltd57 VR 158

[2019] VSC 6·Garde J·8 Feb 2019·Supreme Court of Victoria11p·Vol 57 VR Pt 2

Administrative lawJudicial review — Domestic bodies — Registered Housing Association — Decision to give notice to vacate for no reason — Decision to restrict tenant’s contact with landlord’s staff — Whether decisions amenable to judicial review — Application of Datafin principle — Housing Act 1983 (Vic) — Residential Tenancies Act 1997 (Vic)

Roberts v Harkness57 VR 334

[2018] VSCA 215·Maxwell P, Beach and Niall JJA·29 Aug 2018·Court of Appeal26p·Vol 57 VR Pt 3

Administrative lawProcedural fairness — Practical content of fairness — Unrepresented litigant in person — Respondent charged on summons with road traffic offences — Respondent filed written objections to jurisdiction of Magistrates’ Court — Magistrate dismissed jurisdictional objection without hearing oral submissions from respondent — Whether respondent denied procedural fairness — Magistrates’ Court Act 1989, s 1 — Magistrates’ Court Criminal Procedure Rules 2009 (Vic), r 5 — Charter of Human Rights and Responsibilities Act 2006 (Vic), s 24(1)

MSB (a pseudonym) v Chief Commissioner of Police57 VR 360

[2018] VSCA 345·Maxwell P, McLeish JA and Almond AJA·18 Dec 2018·Court of Appeal15p·Vol 57 VR Pt 3

Administrative lawSex offenders registration — Possession of child pornography — Possession by applicant as child continued as adult — Whether registrable offender — Particulars of charge included date of possession as adult — Whether guilty plea an admission to date in particulars — Whether offence durative — Sex Offenders Registration Act 2004 (Vic), s 6(3)(a)

CourtsAnonymisation — Applicant sought to have name anonymised in published reasons — Pseudonym used in trial reasons — Legislative policy to restrict disclosure of register — Risk of chilling effect on review of registration — Sex Offenders Registration Act 2004 (Vic), s 63

Vergara v CA ANZ57 VR 526

[2018] VSC 811·Ierodiaconou AsJ·20 Dec 2018·Supreme Court of Victoria19p·Vol 57 VR Pt 4

Administrative lawJudicial review — Domestic body — Professional association created by Royal Charter — Refusal of readmission to membership — Whether decision amenable to judicial review — Whether Datafin principle applicable in Victoria — Civil Procedure Act 2010 (Vic), ss 62, 63, 64

Associations and clubsMembership — Professional association of accountants created by Royal Charter — Refusal of readmission application — Whether decision amenable to judicial review

Lin Tiger v Platinum Construction57 VR 576

[2018] VSC 221·Croft J·10 May 2018·Supreme Court of Victoria19p·Vol 57 VR Pt 4

ArbitrationJurisdiction — Competence — Review of arbitrator’s ruling on jurisdiction — Whether rehearing de novo or judicial review of arbitrator’s ruling — Commercial Arbitration Act 2011 (Vic), ss 16(9), 16(11)

Building contractsContract for plastering work — Dispute resolution — Whether arbitration prohibited — Whether domestic building work — Domestic Building Contracts Act 1995 (Vic), ss 3, 5, 6(2), 14, 54(1)(b) — Domestic Building Contracts Regulations 2017 (Vic), regs 7(e), (g)

Neoen Australia Pty Ltd v Minister for Planning58 VR 278

[2019] VSC 162·Ierodiaconou AsJ·14 Mar 2019·Supreme Court of Victoria10p·Vol 58 VR Pt 2

Administrative LawJudicial review — Decision — Minister deferred decision on planning permit application — Review of Minister’s deferral determination — Whether Minister is a ‘tribunal’ — Whether deferral determination a ‘decision’ — Whether deferral determination ultra vires — Whether deferral determination unreasonable — Administrative Law Act 1978 (Vic), s 2 — Planning and Environment Act 1987 (Vic), s 97F

Wolf v Zakula58 VR 508

[2019] VSC 214·Keogh J·3 Apr 2019·Supreme Court of Victoria16p·Vol 58 VR Pt 3

Administrative lawDelegation — Validity — General delegation — Whether notice issued by delegate needed to recite fact of delegation — Whether notice issued by delegate needed to specify delegated powers — Validity of delegation in advance of occasion for exercise of delegated power

Local GovernmentInspection — Compulsory powers of investigation — Delegation — Notice to produce documents — Notice to appear for examination — Notices issued by delegates of the Chief Municipal Officer — Refusal to comply with notices — Whether notices invalid — Whether delegation invalid — Local Government Act 1989 (Vic), ss 223A, 223B

Kinchington Estate Pty Ltd v Wodonga City Council59 VR 443

[2019] VSC 745·Quigley J·18 Nov 2019·Supreme Court of Victoria19p·Vol 59 VR Pt 3

Administrative lawJudicial review — Decisions of municipal council – Nature of council’s decisions — Whether decisions made in exercise of statutory power — Whether council acting as a tribunal when decisions made — Meaning of tribunal — Administrative Law Act 1978 (Vic), ss 2, 8(1)

Town and country planningPlanning scheme — Agreement between responsible authority and land owner — Application to amend agreement — Refusal of application — Refusal to furnish reasons — Whether requirement to furnish reasons — Whether rules of natural justice apply — Planning and Environment Act 1987 (Vic), ss 173, 178, 178A

Muscat v Magistrates' Court of Victoria59 VR 570

[2018] VSC 650·Richards J·31 Oct 2018·Supreme Court of Victoria14p·Vol 59 VR Pt 4

Occupational Health and SafetyDuty of employer — Independent contractors — Whether duty of employer to ensure safety of ‘persons other than employees of the employer’ applied to employees of independent contractors of the employer — Overlap of offences — Occupational Health and Safety Act 2004 (Vic), s 21, s 23(1)

AppealMagistrates’ Court — Charge dismissed — Whether dismissal of charge a ‘final order’ — Whether appropriateness of charge a ground for dismissal — Whether respondent deprived of a defence by prosecution choice of charge — Whether abuse of process — Criminal Procedure Act 2009 (Vic), s 272

Re Martin (Deceased)59 VR 584

[2019] VSC 424·McMillan J·25 Jun 2019·Supreme Court of Victoria23p·Vol 59 VR Pt 4

Administration and probateInformal will — Deceased made both formal will and informal document purporting to express different testamentary intentions — Requirements for entering informal will into probate — Whether informal document intended by deceased to be her will — Whether common law requirements of testamentary capacity and knowledge and approval met — Wills Act 1997 (Vic), ss 9(1),12–15

Stewart v Owen60 VR 341

[2020] VSC 175·Forbes J·15 Apr 2020·Supreme Court of Victoria20p·Vol 60 VR Pt 3

Real propertyCo-ownership — Dispute between tenants in common — Application to Victorian Civil and Administrative Tribunal for orders for sale of property and distribution of proceeds of sale — Whether pt IV of the Property Law Act 1958 confers jurisdiction on the Tribunal to make declaration and order a co-owner to transfer interest in land to a co-owner — Whether correct legal test for imposition of constructive trust applied — Property Law Act 1958 (Vic), ss 225, 228, 232, 233 — Victorian Civil and Administrative Tribunal Act 1998, s 124

Administrative lawVictorian Civil and Administrative Tribunal — Jurisdiction — Original jurisdiction — Sale or division of co-owned land or goods — Orders — Declaration — Whether authority to determine equitable interests in land — Whether authority to order transfer of interest between co-owners — Property Law Act 1958 (Vic), ss 225, 228, 232, 233 — Victorian Civil and Administrative Tribunal Act 1998, s 124

Melbourne Water Corporation and Yarra Valley Water Corporation v Caligiuri60 VR 462

[2020] VSCA 16·Whelan, Niall and Emerton JJA·13 Feb 2020·Court of Appeal24p·Vol 60 VR Pt 4

Administrative LawProcedural fairness — Exclusion of procedural fairness — Compulsory acquisition of land — Decision to acquire unreserved private land — Steps in statutory process — Issue of notice of acquisition — Purchaser of land not given opportunity to be heard — Whether publication of notice of acquisition conditioned by obligation to accord procedural fairness — Exclusion of procedural fairness — Land Acquisition and Compensation Act 1986 (Vic), ss 5(3), 6, 7, 8, 19, 20

Planning and environmentCompulsory acquisition of land — Procedural fairness — Decision to acquire unreserved private land under statutory process — Issue of notice of acquisition — Purchaser of affected land not given opportunity to be heard — Whether publication of notice of acquisition conditioned by obligation to accord procedural fairness — Land Acquisition and Compensation Act 1986 (Vic), ss 5(1), 5(3), 6, 7, 8, 19, 22

AppealCivil — Practice and procedure — Application to allow appeal by consent — Duty of Court to be satisfied of appellable error

Practice and procedureNecessary parties — Omission of registered proprietor from proceeding challenging compulsory acquisition of land — Effect on rights

Chopra v Department of Education and Training60 VR 505

[2019] VSCA 298·Tate, Whelan and Kyrou JJA·13 Dec 2019·Court of Appeal34p·Vol 60 VR Pt 4

Administrative lawFreedom of Information — Request — Whether documents sufficiently identified — Whether invalidity of part of request invalidated entire request — Freedom of Information Act 1982 (Vic), s 17

Practice and procedureReferral of questions of law by Victorian Civil and Administrative Tribunal to Court — Whether President of Tribunal must consent to final form of referred questions — Whether referral valid — Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 75 and 96

Mirboo Ridge v Minister for Resources61 VR 219

[2018] VSC 557·Macaulay J·21 Sept 2018·Supreme Court of Victoria43p·Vol 61 VR Pt 2

Statutory interpretationStatutory moratorium prohibiting onshore petroleum activities — Impact on existing authorities — Provision that moratorium did not affect existing ‘requirements or obligations imposed’ under existing authorities — Meaning of ‘requirement’ and ‘obligation’ — Whether statutory moratorium should be read down — Whether plaintiffs permitted under authorities to conduct any onshore petroleum activities during the moratorium — Resources Legislation Amendment (Fracking Ban) Act 2017 (Vic) — Petroleum Act 1998 (Vic), s 17A(1), (2)

Administrative LawImplementation of executive policy — Non-statutory moratorium prohibiting onshore petroleum activities — Plaintiffs held existing authorities for activities prohibited by non-statutory moratorium — Whether Minister’s implementation of non-statutory moratorium unlawful — Whether utility in granting relief

Administrative LawUnreasonableness — Whether purported ministerial variations to authorities invalid — Discretionary variation power of Minister — Variations required holders of authorities to carry out work at future, unspecified time by which time authorities would have expired — Petroleum Act 1998 (Vic), s 102

Wareham & Anor as trustees of the Swanson Superannuation Fund v Marsella61 VR 262

[2020] VSCA 92·Tate, McLeish and Hargrave JJA·20 Apr 2020·Court of Appeal31p·Vol 61 VR Pt 2

Trusts and trusteesSuperannuation — Self-managed superannuation fund — Death benefit — Dependant — Trustees resolved to pay death benefit to self — Whether trustees exercised discretion upon real and genuine consideration — Bad faith — Evidence from which trustee’s decision-making process to be deduced

AppealPractice and procedure — Application for leave to appeal — Determination not embodied in order — Order and reasons to be read together — Supreme Court Act 1986 (Vic), s 17(2)

AA v Secretary DHHS61 VR 436

[2020] VSC 400·Incerti J·4 Jul 2020·Supreme Court of Victoria54p·Vol 61 VR Pt 3

Administrative LawJudicial review — Jurisdictional error — Failure to afford procedural fairness — Multiple decisions conceded to be affected by jurisdictional error — ‘Direction’ notice given by official under statute — Notice having effect of a court order — Whether erroneous direction notice could be reconsidered, corrected or revoked by decision-maker — Children, Youth and Families Act 2005 (Vic), ss 8, 9, 10, 11, 280, 281, 289A, 300, 301, 304, 305, 309, 331, 332, 333

GuardianshipMandatory considerations – Care by Secretary order — Family preservation order — Direction notice — Power of Secretary to revoke direction notice under s 289A — Children, Youth and Families Act 2005 (Vic), ss 8, 9, 10, 11, 280, 281, 289A, 300, 301, 304, 305, 309, 331, 332, 333

CZG v VOCAT & Anor61 VR 644

[2020] VSCA 120·Maxwell P and Priest JA·13 May 2020·Court of Appeal23p·Vol 61 VR Pt 4

Administrative lawDiscretionary power — Assistance for victims of crime — Applicant was victim of act of violence — Power to refuse or reduce award — Tribunal refused award — Whether tribunal required to consider eligibility before considering whether to refuse award — Whether refusal unreasonable — Distinction between jurisdiction and power — Victims of Crime Assistance Act 1996 (Vic), ss 1(2), 7, 8, 8A, 32(1), 50(1), 52, 54, 59 — Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 42, 51, 148

Anderson v Stonnington City Council62 VR 147

[2020] VSCA 229·Maxwell P, Tate and McLeish JJA·7 Sept 2020·Court of Appeal26p·Vol 62 VR Pt 2

Planning and environmentPlanning scheme — Heritage overlay — Building permit — Planning permit — Accrued rights — Building permits issued prior to introduction of heritage overlay planning control — Whether building permits created accrued right — Lawfulness of development works without planning permit — Whether development works a ‘use’ — Stonnington Planning Scheme, cl 61.05 (now cl 72.06) — Interpretation of Legislation Act 1984 (Vic), s 28(2)(e) — Planning and Environment Act 1987 (Vic), s 6(3)(d)

Statutory interpretationAmendment of subordinate instrument to extend heritage overlay over property while development works in progress — Whether absence of prior planning control constituted an accrued right — Whether development works a ‘use’ — Stonnington Planning Scheme, cl 61.05 (now cl 72.06) — Interpretation of Legislation Act 1984 (Vic), s 28(2)(e) — Planning and Environment Act 1987 (Vic), s 6(3)(d)

AppealCivil — Practice and procedure — Application for leave to appeal from a decision of judge of Trial Division to dismiss appeal on question of law — Application for leave to amend grounds to introduce an issue withdrawn before Tribunal

Words and Phrases‘development’, ‘right’, ‘use’, ‘work’, ‘works’

Chang v Neill62 VR 174

[2019] VSCA 151·Maxwell ACJ, Beach and Kyrou JJA·27 Jun 2019·Court of Appeal39p·Vol 62 VR Pt 2

Administrative LawJudicial review — Duty to inquire — Procedural fairness — Whether by not making inquiries medical panel failed to discharge statutory function or to accord procedural fairness — Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), div 3 of pt 6

Administrative LawJudicial review — Factual error — When factual error constitutes jurisdictional error — Whether primary judge applied correct principles — Whether no evidence for medical panel’s conclusions — Whether Medical Panel made factual error

Avery v Manno62 VR 281

[2020] VSC 605·Derham AsJ·21 Sept 2020·Supreme Court of Victoria26p·Vol 62 VR Pt 2

Administration and probateAdministration of estate — Application for judicial advice by executor — Prospective proceedings — Joint tenancy — Severance — Unregistered transfers of land — Where executor intended to lead further evidence in support of application — Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 54.02

Practice and procedureTrusts and trustees — Application for judicial advice — Disputed facts — Application for summary dismissal — Whether application for advice lacked real prospect of success — Whether application for advice an abuse of process — Civil Procedure Act 2010 (Vic), ss 7, 8, 62, 64 — Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 23.01, 54.02

Loielo v Giles63 VR 1

[2020] VSC 722·Ginnane J·2 Nov 2020·Supreme Court of Victoria71p·Vol 63 VR Pt 1

Administrative lawJudicial review — State of emergency — Public health — Directions by authorised officer — Stay at Home Directions — Challenge by affected resident and business owner — Standing — Whether power to impose curfew — Whether authorised officer acted at the direction or behest of the Premier — Whether curfew decision unreasonable, irrational or illogical — Public Health and Wellbeing Act 2008 (Vic), ss 4, 5, 6, 7, 8, 9, 10, 11, 111, 197, 198, 199, 200

Administrative lawJudicial review — State of emergency — Directions by authorised officer — Stay at Home Directions — Basis of decision — Protection of public health — Whether public health direction unreasonable, illogical and irrational — Whether erroneous finding of jurisdictional fact — Public Health and Wellbeing Act 2008 (Vic)

EvidenceAdmissibility — Opinion rule — Exception — Specialised knowledge — Evidence Act 2008 (Vic), s 79

Human rightsCharter of Human Rights and Responsibilities — Freedom of movement — Right to liberty — Duty to give proper consideration to human rights — Substantive and procedural limbs — Restrictions on movement in response to threat to public health — Curfew in relation to large population groups — Power to order curfew — Whether measures proportionate — Public Health and Wellbeing Act 2008 (Vic) , s 200 — Charter of Human Rights and Responsibilities Act 2006, ss 7(2), 12, 21, 38, 39

Funston v CCSS Pty Ltd63 VR 427

[2021] VSC 24·Quigley J·29 Jan 2021·Supreme Court of Victoria22p·Vol 63 VR Pt 3

Agency and agentsReal estate agent — Reimbursement of outgoings — Statutory requirements — Whether agent entitled to seek reimbursement for total amount of outgoings where claim included amounts for which agent not entitled to be reimbursed at common law — Requirement for agent to inform client that outgoings subject to negotiation — Whether satisfied — Estate Agents Act 1980 (Vic), ss 4, 48B(1), 49A(1)(b), 49A(1)(c)(ii)

Agency and agentsReal estate agent — Commission — Requirement for agent to inform client that commission subject to negotiation — Whether satisfied — Provision of information about commission prior to engagement of agent — Provision of indicative calculation of commission — Whether commission must be calculated by reference to a reserve price — Estate Agents Act 1980 (Vic), ss 49A(1)(b), 49A(1)(c)(ii)

Owners Corp PS419696X v Goh63 VR 497

[2021] VSC 126·Garde J·24 Mar 2021·Supreme Court of Victoria28p·Vol 63 VR Pt 4

Administrative lawJudicial review — Natural justice — Bias — Tribunals — Specialist tribunal — Sessional member of Building Appeals Board retained as expert witness in case before that Board — Resignation before hearing — Doctrine of necessity — Whether reasonable apprehension of bias — Whether evidence of expert witness to be excluded

BuildingBuilding Appeals Board — Pecuniary interest provisions — Whether conflict between Board membership and activities as building practitioner — Building Act 1993 (Vic), sch 3, cl 6

Winslow Constructors Pty Ltd v Head, Transport for Victoria64 VR 200

[2021] VSC 74·Riordan J·26 Feb 2021·Supreme Court of Victoria18p·Vol 64 VR Pt 2

ArbitrationAward — Challenge — Costs — Appropriate test to be applied for unmeritorious challenges to arbitral awards — Whether indemnity costs should be the default order in unsuccessful challenges to arbitral awards — Whether a different approach should be adopted by reason of the objects of the Commercial Arbitration Act 2011 (Vic) or the International Arbitration Act 1974 (Cth) — UNCITRAL Model Law on International Commercial Arbitration, art 34(2) — Commercial Arbitration Act 2011 (Vic), ss 1AA, 1AC, 34 — International Arbitration Act 1974 (Cth), ss 2D, 16

CostsArbitration — Challenge to award — Jurisdiction to award indemnity costs — Principles to be applied with respect to unmeritorious claims — Commercial Arbitration Act 2011 (Vic).

Lucic v Henry64 VR 252

[2021] VSC 548·Richards J·3 Sept 2021·Supreme Court of Victoria18p·Vol 64 VR Pt 2

Administrative lawVictorian Civil and Administrative Tribunal — Domestic building dispute — First proceeding resolved by terms of settlement — Mutual release — Owners commenced second proceeding against builder for defective work — Tribunal found claimed defects not covered by release — Construction of release — Whether Tribunal failed to consider whether owners ought reasonably to have known of claimed defects when terms of settlement signed — Domestic Building Contracts Act 1995 (Vic), ss 8, 10 — Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 117, 148

ContractMutual Releases — Interpretation — Settlement of proceeding — Subsequent claim — Whether second claim within scope of release

Feldman v Tayar64 VR 429

[2021] VSCA 185·McLeish, Sifris and Kennedy JJA·24 Jun 2021·Court of Appeal21p·Vol 64 VR Pt 3

ArbitrationArbitration agreement — Agreement in writing — Whether arbitration agreement specified ‘in writing’ which disputes to be arbitrated — Where arbitration agreement provided clear mechanism for precise identification of disputes — Commercial Arbitration Act 2011 (Vic), ss 1(3)(b), 4, 7, 35, 36

ArbitrationAward — Reasons — Whether arbitrators failed to give reasons for arbitral award — Commercial Arbitration Act 2011 (Vic), s 31

Lanigan v Circus Oz65 VR 371

[2022] VSC 35·McDonald J·9 Feb 2022·Supreme Court of Victoria14p·Vol 65 VR Pt 3

Administrative lawTribunals — Victorian Civil and Administrative Tribunal — Claims of sexual harassment and victimisation contrary to Equal Opportunity Act 2010 — Whether subject to Limitation of Actions Act 1958 — Whether the Tribunal a ‘court’ for purposes of Limitation of Actions Act 1958 — Equal Opportunity Act 2010 (Vic), ss 92, 103, 104, 188 — Limitation of Actions Act 1958 (Vic), ss 3, 5

Limitation of actionsVictorian Civil and Administrative Tribunal — Claim for sexual harassment and victimisation contrary to Equal Opportunity Act 2010 — Events more than six years prior to filing of proceeding in Tribunal — Whether limitation period applicable — Whether the Tribunal a ‘court’ for purposes of Limitation of Actions Act 1958 — Whether claim for contravention of the Equal Opportunity Act 2010 an action founded on tort — Equal Opportunity Act 2010 (Vic), ss 92, 103, 104, 188 — Limitation of Actions Act 1958 (Vic), ss 3, 5

Chief Municipal Inspector, Local Government v Mohamud66 VR 1

[2021] VSC 787·Quigley J·29 Nov 2021·Supreme Court of Victoria29p·Vol 66 VR Pt 1

Administrative lawTribunals — Victorian Civil and Administrative Tribunal — Jurisdiction — Local government — Application to stand down Councillor under s 229 Local Government Act 2020 (Vic) — Whether jurisdictional precondition for application — Local Government Act 2020 (Vic), ss 224, 229

Local governmentCouncillors — Misconduct — Councillor charged with serious offences — Application to Tribunal stand down Councillor — Jurisdiction of Tribunal — Local Government Act 2020 (Vic), ss 171, 224, 229

Statutory interpretationLocal Government Act 2020 (Vic) — Victorian Civil and Administrative Tribunal — Jurisdiction of Tribunal — Whether inconsistency between sections of Local Government Act — Whether to depart from literal meaning — Whether obvious drafting error — Whether applying literal meaning of legislation would lead to absurd or unintended result — Whether clear identification of words omitted or to be added to meet identified legislative intent — Local Government Act 2020 (Vic), ss 224, 229

Human RightsCharter of Human Rights and Responsibilities — Participation in public affairs — Presumption of innocence — Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 18, 25, 32

Keasey v Director of Housing66 VR 45

[2022] VSCA 7·Niall, Emerton and Whelan JJA·2 Feb 2022·Court of Appeal11p·Vol 66 VR Pt 1

Administrative lawJudicial review — Director of Housing — Decision to apply for orders terminating tenancy and granting possession to landlord — Request for reasons — Whether decision to apply for termination and possession orders a ‘decision’ for the purposes of the Administrative Law Act 1978 (Vic) — Administrative Law Act 1978 (Vic), ss 2,8(1), 8(4) — Residential Tenancies Act 1997 (Vic), ss 538, 548, 549(1), 549(4) — Charter of Human Rights and Responsibilities Act 2006 (Vic), s 38(1)

Landlord and tenantPublic housing — Residential tenancy — Director of Housing — Application for termination and possession orders — Effect on tenant’s rights of decision to apply for possession order — Residential Tenancies Act 1997 (Vic), ss 538, 548, 549(1), 549(4)

Words and phrases‘decision’

VicForests v Kinglake Friends of the Forest Inc66 VR 143

[2021] VSCA 195·Niall, Emerton and Kennedy JJA·9 Jul 2021·Court of Appeal27p·Vol 66 VR Pt 2

Administrative lawJudicial review — Standing — Timber harvesting regulation — Community-based incorporated association — Association sought injunctive and declaratory relief to enforce constraints alleged to have been imposed by regulatory scheme — Whether association had standing to seek relief

Dudley v Secretary to the Department of Justice and Community Safety66 VR 403

[2021] VSC 567·Cavanough J·15 Sept 2021·Supreme Court of Victoria38p·Vol 66 VR Pt 3

Administrative lawJudicial review — Prisons and prisoners — Power to reduce sentence being served — Nature of power — ‘Emergency management days’ — Application for review of decision not to grant emergency management days to prisoner — Whether delegate imposed a threshold level of significance of disruption or deprivation suffered in prison as pre-condition to exercise of statutory power — Whether statutory power discretionary — Whether duty to consider exercise of statutory power — Corrections Act 1986 (Vic), s 58E — Corrections Regulations 2019 (Vic)

Human rightsPrisons and prisoners — Right to liberty — Right to humane treatment when deprived of liberty — Emergency management days — Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 21, 22

Prerogative writsMandamus — Whether duty to consider exercise of statutory power to reduce sentence — Whether legal duty capable of enforcement by way of mandamus — Corrections Act 1986 (Vic), s 58E

Patton v Mareangareu66 VR 577

[2021] VSCA 295·Priest, McLeish and Kennedy JJA·3 Nov 2021·Court of Appeal20p·Vol 66 VR Pt 4

Administrative LawJudicial Review — Police officer dismissed on basis of convictions — Convictions quashed on appeal — Effect of quashing conviction — Presumption that statutory consequences of conviction cease when conviction set aside — Whether presumption applicable — Chief Commissioner of Police declined to reappoint police officer — Whether Chief Commissioner erred by considering subject matter of convictions in declining to reappoint — Nature of power to reappoint — Whether right of reappointment — Victoria Police Act 2013 (Vic), ss 27, 136(3) — Victoria Police Regulations 2014 (Vic), r 5 — Interpretation of Legislation Act 1984 (Vic), s 45(1)

Thompson v Minogue67 VR 301

[2021] VSCA 358·Kyrou, McLeish and Niall JJA·17 Dec 2021·Court of Appeal102p·Vol 67 VR Pt 3

Human rightsCharter of Human Rights and Responsibilities — Privacy — Inherent dignity of human person — Prisoners — Random urine tests and strip searches — Whether proper consideration given to respondent ‘s rights — Whether arbitrary interference with privacy — Whether dignity right limited — Whether limitations to rights demonstrably justified — Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2), 13(a), 22(1), 38(1)

Administrative lawJudicial review — Whether strip searches authorised by regulations — Onus of proof — Corrections Regulations 2019 (Vic), reg 87(1)(d)

Transport Accident Commission v Burns67 VR 403

[2022] VSC 294·Richards J·3 Jun 2022·Supreme Court of Victoria23p·Vol 67 VR Pt 3

Accident compensationTransport accident — Claim for compensation — Time limit for claim — Respondent’s partner died as a result of a transport accident — Respondent made claim for funeral and dependency benefits — Respondent later sought to claim impairment benefit — Commission declined to determine respondent’s degree of impairment — Whether Transport Accident Act distinguishes between claims for compensation by persons injured as a result of transport accidents, and claims by dependants of persons who die as a result of transport accidents — Whether time limit in s 68 applies separately to each category of claim — Transport Accident Act 1986 (Vic), ss 35, 46A, 47, 68

RBK v Montague67 VR 545

[2022] VSCA 183·Beach, Niall and Macaulay JJA·31 Aug 2022·Court of Appeal16p·Vol 67 VR Pt 4

Accident compensationMotor vehicle — Injury arising from use of motor vehicle — Applicant left unconscious in parked motor vehicle — Applicant unconscious from drug overdose — Heatstroke and consequential injuries caused by prolonged heat exposure in parked vehicle — Whether injury arose out of the ‘use’ of a motor vehicle — Whether Transport Accident Commission liable to indemnify driver of motor vehicle in respect of applicant’s claim for damages — Transport Accident Act 1986 (Vic), ss 3(1), 3(3)(a), 94(1)(a)

Words and phrases‘caused by or arising out of’ — ‘use of motor vehicle’

Re Curtis68 VR 40

[2022] VSC 621·McMillan J·17 Oct 2022·Supreme Court of Victoria36p·Vol 68 VR Pt 1

Administration and probateWill — Remote execution procedure — Testator made will with witnesses attending remotely via audio-visual link — Requirements for satisfying remote execution procedure — Whether witnesses clearly saw testator’s signature being made — Whether testator clearly saw witnesses’ signatures being made — Wills Act 1997 (Vic), ss 3(1), 8A, 8D, 9

Maher v Burden68 VR 402

[2022] VSC 617·Moore J·19 Oct 2022·Supreme Court of Victoria13p·Vol 68 VR Pt 3

Bankruptcy and insolvencyClaim for further provision from deceased estate — Plaintiff declared bankrupt — Whether proceeding stayed automatically — Whether plaintiff’s claim a cause of action in respect of ‘any personal injury or wrong’ — Whether trustee elected to discontinue proceeding — Whether plaintiff entitled to continue proceeding upon discharge — Administration and Probate Act 1958 (Vic), pt IV — Bankruptcy Act 1966 (Cth), ss 60(2), 60(3), 60(4)

Administration and probateClaim for further provision from deceased estate — Plaintiff declared bankrupt — Whether proceeding stayed automatically — Administration and Probate Act 1958 (Vic), pt IV — Bankruptcy Act 1966 (Cth), ss 60(2), 60(3), 60(4)

Foursquare Construction Management Pty Ltd v Victorian WorkCover Authority68 VR 415

[2022] VSCA 237·McLeish and T Forrest JJA and J Forrest AJA·28 Oct 2022·Court of Appeal18p·Vol 68 VR Pt 3

Accident compensationTruck driver sustained injury after alighting from truck — Intention to inspect drop off point for delivery — Truck stationary — Whether incident a transport accident — Whether injury ‘directly caused by’ the driving of a motor vehicle — Transport Accident Act 1986 (Vic), s 3

Words and phrases‘transport accident’ — ‘directly caused by’

Vallianos v Coroners Court of Victoria69 VR 276

[2023] VSC 48·Forbes J·14 Feb 2023·Supreme Court of Victoria23p·Vol 69 VR Pt 3

Administrative lawJudicial review — Coroner — Where deceased died without a valid will — Test to be applied by Coroner to decide whether a person has a claim for release of the deceased’s body as executor — Whether Coroner has discretion in determining who has better claim to release of the body — Coroners Act 2008 (Vic), ss 3, 48 — Wills Act 1997 (Vic), ss 7, 9

Charter of Human Rights and ResponsibilitiesEquality before the law — Privacy — Freedom of association — Inconsistency of law with human rights — Claim for custody of body of deceased person — Whether s 48 of the Coroners Act 2008 (Vic) and definition of ‘senior next of kin’ inconsistent with human rights protected under the Charter of Human Rights and Responsibilities Act 2006 (Vic) — Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7, 8, 13, 16

Vicinity Funds RE Ltd v Csser SR (No 3)70 VR 441

[2023] VSC 278·Nichols J·29 May 2023·Supreme Court of Victoria27p·Vol 70 VR Pt 4

TaxationState taxes — Duty on transfer of dutiable property — Estate or interest in land — Appeal from determinations of Commissioner of State Revenue — Whether taxpayers entitled to discovery and particulars — Whether taxpayers entitled to impugn Commissioner’s state of mind at time of making assessments — Taxation Administration Act 1997 (Vic), pt 10 — Duties Act 2000 (Vic), ss 20, 22

Administrative lawJudicial review — Appeal from determinations of Commissioner of State Revenue — State of mind of decision-maker — Provision of reasons for decision — Whether taxpayers entitled to discovery and particulars — Whether taxpayers entitled to impugn Commissioner’s state of mind at time of making assessments

Environment Victoria v AGL Loy Yang71 VR 1

[2022] VSC 814·Gorton J·21 Dec 2022·Supreme Court of Victoria44p·Vol 71 VR Pt 1

Administrative lawJudicial review — Legislation referring to considerations decision-maker ‘should’ take into account — Whether reference to ‘should’ obligatory — Environment Protection Act 1970 (Vic), ss 1B–1L

Planning and environmentAmendment of licences by Environment Protection Authority on own motion — Whether failure by decision-maker to take into account mandatory considerations — Whether identified matters must be considered by decision-maker — Environment Protection Act 1970 (Vic), ss 1B–1L, 20(9), 20B, 20C — Climate Change Act 2017 (Vic), s 17

Mondib Group PL v Moonee Valley Council71 VR 45

[2021] VSC 722·Niall JA·5 Nov 2021·Supreme Court of Victoria23p·Vol 71 VR Pt 1

Planning and environmentPermit for development — Amendment — Permit granted for commercial development of dwellings — Proposed amendment to permit to construct residential hotel — Whether proposed amendment lawful — Whether proposed amendment impermissible as a transformation of permitted development — Meaning of ‘amendment’ — Planning and Environment Act 1987 (Vic), ss 3, 72

Administrative lawTribunals — Summary dismissal — Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 75

Monash University v EBT71 VR 68

[2022] VSC 651·Cavanough J·3 Nov 2022·Supreme Court of Victoria52p·Vol 71 VR Pt 1

Administrative lawFreedom of information — Access — Records of information stored electronically only — Whether ‘documents of an agency’ — Whether ordinary access provisions apply — Whether provisions relating to use of computers apply — Higher access charges for access under computer provisions — Freedom of Information Act 1982 (Vic), ss 17, 19

Words and phrases‘document’ — ‘document of an agency’

Secretary, DEECA v Hanson Construction Materials71 VR 137

[2023] VSC 353·Gorton J·26 Jun 2023·Supreme Court of Victoria23p·Vol 71 VR Pt 1

Administrative lawTribunals — Merits review — Power of tribunal to amend documents in the proceeding — Application to review refusal to approve work plan variation — Applicant seeking to substitute work plan variation — Whether tribunal’s power to amend engaged — Whether in substance Tribunal would be reviewing original decision or making original decision — Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 127

Words and phrases‘amend’ — ‘document in a proceeding’ — ‘decision’

Trist v Glenelg Shire Council71 VR 380

[2023] VSC 128·Gorton J·22 Mar 2023·Supreme Court of Victoria23p·Vol 71 VR Pt 3

Administrative lawJudicial review — Local government — Resolution of municipal council — Whether resolution affected by apprehended bias — Whether council’s resolution a ‘decision’ giving rise to right to request reasons — Whether council obliged to give reasons — Whether council’s resolution affected legal rights of the plaintiffs — Public Health and Wellbeing Act 2008 (Vic), s 62 — Administrative Law Act 1978 (Vic), ss 2, 8

Factory X v Gorman Services71 VR 403

[2023] VSC 247·Croft J·12 May 2023·Supreme Court of Victoria22p·Vol 71 VR Pt 3

ArbitrationAppeal from decision of arbitrator — Appeal on a question of law — Approach to appeal where arbitrator’s decision turns on question of construction — Commercial Arbitration Act 2011 (Vic), s 34A(3)(c)(i)

Words and phrases‘obviously wrong’

Zhang v Oakmont Properties Pty Ltd71 VR 425

[2023] VSC 248·Gorton J·12 May 2023·Supreme Court of Victoria17p·Vol 71 VR Pt 3

Administrative lawVictorian Civil and Administrative Tribunal — Jurisdiction and powers of tribunal — Joinder of party — Costs — Whether VCAT can join a person as a party to a proceeding for the sole purpose of making a costs order against that person — Factors relevant to exercise of power to join — Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 60(1)(c), 109

Administrative lawVictorian Civil and Administrative Tribunal — Jurisdiction and powers of tribunal — Costs — Costs against third party — Application for costs against director of insolvent respondent — Factors relevant to making costs order against joined party — Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 60, 109

Hronopoulos v Building Appeals Board71 VR 505

[2022] VSC 376·Mukhtar AsJ·4 Jul 2022·Supreme Court of Victoria37p·Vol 71 VR Pt 4

InsuranceGeneral insurance — Third party beneficiary — Builder required to obtain insurance against damage to adjoining property — Whether insurance for building party’s liability for damage to adjoining property satisfied statutory obligation — Distinction between property damage insurance and liability insurance — Building Act 1993 (Vic), s 93(1)(a) — Insurance Contracts Act 1984 (Cth), ss 11, 20, 48

Practice and procedureJudicial review — Resolution by consent — Agreement of parties to set aside decision — Independent consideration by Court of whether to make orders

Administrative lawTribunals — Whether jurisdictional error in exercise of decision-making power — Conceptual considerations

The People of the Small Town of Hawkesdale Inc v Minister for Planning71 VR 550

[2022] VSCA 167·Emerton P, Niall and Kennedy JJA·18 Aug 2022·Court of Appeal31p·Vol 71 VR Pt 4

Administrative lawStanding — Incorporated association — Association incorporated after impugned decision made — Whether objects of association sufficient to establish special interest

Planning and environmentPermit for development — Extension of permit — Extension under condition of permit — Validity of condition — Validity of extension — Specific power to extend permits contained in legislation — Whether s 69(2) of Planning and Environment Act 1987 (Vic) exclusive source of power to extend permits — Planning and Environment Act 1987 (Vic), ss 62, 69

Mikkelsen v Li [No 2]72 VR 325

[2023] VSCA 255·Ferguson CJ, Beach and McLeish JJA·26 Oct 2023·Court of Appeal32p·Vol 72 VR Pt 3

Australian Consumer LawMisleading or deceptive conduct — Misrepresentations — Loss and damage — Causation — Share sale agreement — Claim against sellers — Whether apportionment of damage for contributory negligence available — Statutory basis for claim — Whether claim brought under the Australian Consumer Law as applied by federal law or by state law — Australian Consumer Law and Fair Trading Act 2012 (Vic) — Competition and Consumer Act 2010 (Cth), ss 131A, 137B

NegligenceNegligent misstatement — Loss and damage — Causation — Contributory negligence — Share sale — Misrepresentations by seller regarding net profit of business — Whether failure to conduct due diligence or obtain advice caused buyers’ loss and damage

Practice and procedurePleadings — Negligent misstatement — Contributory negligence — Whether claim for contributory negligence raised on pleadings

Koronczyk v Victorian Small Business Commissioner73 VR 1

[2023] VSC 431·Croft J·28 Jul 2023·Supreme Court of Victoria20p·Vol 73 VR Pt 1

Landlord and tenantRetail leases — Retail tenancy dispute — Alternative dispute resolution — Corporate tenant — Director guarantor — Duty of Victorian Small Business Commission to arrange mediation or other appropriate form of alternative dispute resolution — Failed mediation with tenant — Director as guarantor claiming further dispute — Commission issued certificate certifying failure of mediation encompassing director without further mediation — Whether different dispute — Whether failure by Commission to comply with duty — Effect of any failure to comply with statutory provisions with respect to issuing of certificates — Retail Leases Act 2003 (Vic), ss 1, 85, 86(3), 87(1), 87(3), 91(1)(c) — Small Business Commission Act 2017 (Vic), ss 3, 10(1)

Administrative lawVictorian Small Business Commission — Role of Commission — Small Business Commission Act 2017 (Vic), ss 3, 10(1) — Retail Leases Act 2003 (Vic), ss 85, 86(3), 87(1), 87(3), 91(1)(c)

Myers v Satheeskumar73 VR 111

[2024] VSC 12·Gray J·31 Jan 2024·Supreme Court of Victoria21p·Vol 73 VR Pt 1

Administrative lawJudicial review — Personal Safety Intervention Orders — Interim order — Application for order — Whether supporting oral evidence or affidavit required for interim orders — Whether interim orders invalid where written applications supported only by declarations of truth — Personal Safety Intervention Orders Act 2010 (Vic), ss 13(1)(c), 35(2), 38(1), 38(1A), 86

Connelly v TAC73 VR 257

[2024] VSCA 20·Beach and Niall JJA and J Forrest AJA·6 Mar 2024·Court of Appeal18p·Vol 73 VR Pt 2

Accident compensationTransport accident — Serious injury — Application for leave to commence common law proceeding — Standard of appellate review — Whether judge erred in failing to be satisfied that consequences were collectively very considerable — Transport Accident Act 1986 (Vic), s 93

Re Sampson73 VR 509

[2024] VSC 351·Moore J·24 Jun 2024·Supreme Court of Victoria12p·Vol 73 VR Pt 4

Administration and probateProbate — Will appointing spouse of testator as executor — Divorce of executor and testator subsequent to final will — Statutory presumption that appointment of executor revoked upon divorce — Intention of testator — Whether testator intended appointment of executor not to be revoked upon divorce — Whether intention capable of being established solely by reference to evidence extrinsic to will — Wills Act 1997 (Vic), s 14

Viterra Malt Pty Ltd v Cargill Australia Ltd74 VR 1

[2023] VSCA 157·Sifris, Walker and Whelan JJA·23 Jun 2023·Court of Appeal211p·Vol 74 VR Pt 1

Australian consumer lawMisleading or deceptive conduct — Contract — Purchased business engaged in previously undisclosed, dishonest practices bearing on true value — Contractual representations — Sale documents disclaimed liability for representations made — No representation clause — No reliance clause — Contract excluding or releasing future liability — Whether disclaimers defeated claim of misleading or deceptive conduct — Whether disclaimers defeated claim in tort for deceit — Australian Consumer Law, s 18

Australian consumer lawMisleading or deceptive conduct — Loss or damage — Measure of damages in ‘no transaction case’ — Whether Potts v Miller approach appropriate — Exclusion of proportionate liability for fraud — Australian Consumer Law, s 236

Roberts Construction Group PL v Drummond Carpentry Services Pty Ltd74 VR 346

[2024] VSC 246·Niall JA·16 May 2024·Supreme Court of Victoria25p·Vol 74 VR Pt 3

Administrative lawJudicial review — Jurisdiction — Building contract — Payment claim — Adjudication determination — Whether question of services provided under contract a jurisdictional fact — Response to payment claim without substantive reason for withholding payment — Whether response constituted a payment schedule — Whether notice of intention to apply for adjudication given — Whether requirement that notice advise of rights — Building and Construction Industry Security of Payment Act 2002 (Vic), ss 14, 15, 18

Re Haliem74 VR 547

[2024] VSC 400·Moore J·10 Jul 2024·Supreme Court of Victoria16p·Vol 74 VR Pt 4

Wills and codicilsConstruction — Contingent gifts to beneficiaries in father’s will transferred to family trust — Gifts to beneficiaries in mother’s will transferred to family trust — Gifts in mother’s will made pursuant to ‘Islamic law of distribution as outlined in the Quran in compliance with Sunni tradition’ — Whether transfers in accordance with wills — Meaning of ‘Islamic law of distribution in Sunni tradition’

Trust and trusteesBreach of trust — Discretionary trust — Assets of deceased estates transferred to family trust contrary to terms of testators’ wills — Whether transfers beyond power — Whether transfers void

Administration and probateAppointment of independent administrator and trustee — Indemnity for future services — Whether remuneration of independent administrator should be borne by former trustee’s share of the estates — Whether such order just and appropriate

Waldron v O'Callaghan75 VR 138

[2024] VSCA 196·Ferguson CJ, Macaulay JA and Tsalamandris AJA·10 Sept 2024·Court of Appeal26p·Vol 75 VR Pt 1

Limitation of actionsNegligence — Personal injury — Doctor and patient — Whether personal injury claim statute-barred — Point in time at which cause of action ‘discoverable’ — Whether patient had knowledge, or ought to have known, that injury was caused by ‘fault’ of doctor — Limitation of Actions Act 1958 (Vic), ss 27D, 27F

Limitation of actionsExtension of limitation period — Whether extension just and reasonable — Limitation of Actions Act 1958 (Vic), ss 27K, 27L

AppealAppeal from exercise of judicial discretion — Extension of limitation period — Standard of review on appeal — Whether subject to correctness standard

Words and phrases‘date of discoverability’ — ‘fault’

Djordjevich v Peter Djeka Pty Ltd75 VR 446

[2024] VSCA 60·McLeish, Walker and Macaulay JJA·11 Apr 2024·Court of Appeal35p·Vol 75 VR Pt 4

Administrative lawTribunals — Victorian Civil and Administrative Tribunal — Powers — Functions of Principal Registrar of Tribunal — Co-owned property dispute — Tribunal made orders for sale of co-owned property — Orders empowering Principal Registrar to appoint real estate agent or solicitor if parties could not agree — Orders empowering Principal Registrar to execute any necessary document in the sale where party refused — Whether Tribunal had power to make orders — Whether Principal Registrar permitted to exercise functions conferred by such orders — Property Law Act 1958 (Vic), ss 228, 232 — Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 32

McIntyre v Van Der Sluys76 VR 189

[2024] VSC 484·Daly AsJ·19 Aug 2024·Supreme Court of Victoria43p·Vol 76 VR Pt 2

Limitation of actionsExtension to statutory limitation period for action — Power to extend limitation period where fresh proceeding brought in Magistrates’ Court in place of VCAT for proceeding involving federal matter for which VCAT had no jurisdiction — Extension refused — Whether error of law — Whether late making of application attributable to steps required to be taken to have matter determined by Magistrates’ Court in place of VCAT — Whether fair and reasonable to grant extension application — Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 57B, 57D

Administrative lawVictorian Civil and Adminsitrative Tribunal — Matter in federal jurisdiction transferrable to Magistrates’ Court — Power to extend limitation period where fresh proceeding brought in Magistrates’ Court

Re Ramos77 VR 122

[2025] VSC 19·Gray J·31 Jan 2025·Supreme Court of Victoria4p·Vol 77 VR Pt 1

Adminisitration and probateRevocation of probate — Fraudulent impersonation of executors — Application to revoke grant — Power to revoke a grant obtained by fraud — Adminstration and Probate Act 1958 (Vic), s 67

Thorpe v Magistrates' Court78 VR 83

[2025] VSC 22·Richards J·5 Feb 2025·Supreme Court of Victoria17p·Vol 78 VR Pt 1

Administrative lawJudicial review — Plaintiff sought to file charge-sheet and summons in the Magistrates’ Court of Victoria to commence private prosecution against monarch for crimes of genocide under First Peoples’ sovereign laws, common law, and Commonwealth Criminal Code — Magistrates’ Court refused to issue proceeding — Whether charge-sheet capable of engaging criminal jurisdiction of Magistrates’ Court — Criminal Procedure Act 2009 (Vic), ss 6, 12 — Criminal Code Act 1995 (Cth), div 268 — Magistrates' Court Criminal Procedure Rules 2019 (Vic), r 13(c)

Courts and judgesBias — Reasonable apprehension of bias — Whether pledge of allegiance to the Crown and taking affirmation of office constituted reasonable apprehension of bias

Tricarico v Victorian Legal Services Board (No 2)78 VR 131

[2025] VSC 242·Gray J·7 May 2025·Supreme Court of Victoria28p·Vol 78 VR Pt 1

Administrative lawProcedural fairness — Australian legal practitioner — Suspension of practising certificate of practitioner charged with offence — Decision made without notice to practitioner — Whether suspension decision made in material breach of requirements of procedural fairness — Whether suspension power conditioned on requirement of reasonableness or rationality — Legal Profession Uniform Law (Victoria), s 77

Legal practitionersPractitioner charged with offence — Suspension of practising certificate — Decision made without notice — Whether suspension decision made in material breach of requirements of procedural fairness — Whether suspension power conditioned on requirement of reasonableness or rationality — Legal Profession Uniform Law (Victoria), s 77

Words and phrases‘immediately’

Oil Basins Ltd vs Esso Australia Resources Pty Ltd78 VR 388

[2025] VSC 34·Croft J·13 Feb 2025·Supreme Court of Victoria40p·Vol 78 VR Pt 3

ArbitrationApplication to stay court proceedings — Kompetenz-Kompetenz doctrine — UNCITRAL Model Law on International Commercial Arbitration arts 2, 5, 7, 8, 16, 28, 34, 35, 36 — International Arbitration Act 1974 (Cth), ss 7, 16, 39

Denali Nominees v Banyule City Council78 VR 470

[2025] VSC 579·Finanzio J·17 Sept 2025·Supreme Court of Victoria18p·Vol 78 VR Pt 4

Planning and environmentPlanning scheme — Non-residential use in neighbourhood residential zone — Repeat appeal — Whether wrong statutory test applied — Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148 — Planning and Environment Act 1997 (Vic) — Banyule Planning Scheme, cl 32.09

Administrative lawPlanning and environment — Appeal — Revised plans — Repeat appeal

Paramount Invest Grp PL vs Club Fogolar Furlan Melb79 VR 146

[2025] VSC 90·Croft J·12 Mar 2025·Supreme Court of Victoria36p·Vol 79 VR Pt 1

Landlord and tenantRetail premises lease — Forfeiture for non-payment of rent — Relief against forfeiture — Equitable jurisdiction of the Tribunal — Discretion of VCAT to extend time for compliance with prior self-executing order — Whether Tribunal functus officio — Retail Leases Act 2003 (Vic), s 89 — Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 98(3), 119, 126, 130, 131

Administrative lawVictorian Civil and Administrative Tribunal — Original jurisidiction — General procedure — Self-executing orders — Extension of time for compliance with prior order — Whether Tribunal functus officio — Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 98(3), 119, 126(2)(a), 130, 131

Nicholson v Sheils79 VR 560

[2026] VSC 18·Moore J·2 Feb 2026·Supreme Court of Victoria12p·Vol 79 VR Pt 3

Administration and probateIntestacy — Application for distribution order — Multiple partners of deceased — Deceased survived by estranged spouse and unregistered domestic partner — Claim for entirety of estate — Whether claimant an unregistered domestic partner of deceased at time of death — Whether just and equitable to allocate whole of residuary estate to one partner to exclusion of other — Administration and Probate Act 1958 (Vic), ss 3(1), 70ZA, 70ZD, 70ZE

Words and phrases‘just and equitable’

Downer Utilities Australia v Murra Warra Asset Co79 VR 619

[2026] VSC 48·Croft J·18 Feb 2026·Supreme Court of Victoria39p·Vol 79 VR Pt 4

ArbitrationArbitration agreement — Construction — Parties to contract commencing separate arbitrations before different tribunals — Hybrid arbitration clause providing for arbitration to be ‘conducted by the Resolution Institute in accordance with the ICC Rules of Arbitration’ — Workability of hybrid arbitration clauses — Jurisdiction of arbitral tribunal — Whether arbitrator entitled to apply Kompetenz-Kompetenz principle to determine authority to arbitrate — Which of two arbitration proceedings should continue