O’REILLY v. EGAN1 VLR (Eq) 1
Administration — Creditor's Suit — Motion to dismiss — Lis pendens — Costs.
Catchwords are the way in which we classify reports into a consistent taxonomy.
Reports matching this catchword classification
Administration — Creditor's Suit — Motion to dismiss — Lis pendens — Costs.
Administration — Next of kin — Parties.
Appeal to Privy Council — Security — Receiver.
Appeal — Privy Council order giving costs — Motion to make judgment order of Supreme Court — Notice to respondent — Taxation of costs.
Administration — Order nisi — Withdrawal of caveat — Costs.
"Administration Act 1872" (No. 427) s. 25 — Executor — Commission.
Administration — Next-of-kin in England — Power of attorney — Substituted attorney.
Attorney — Undertaking to pay costs — Personal liability.
Articled Clerk — Death of Master — Fresh articles not to relate back to such death.
"Audit Act" (22 Vic. No. 86), sec. 9 — "Criminal Law and Practice Statute 1864" (No. 233), sec. 141 — Embezzlement — Government servant — Collector of Imposts.
Apprenticeship indentures — Deed inartificially drawn — Amendment — Substituted agreement.
Arbitration — Money claims — Award — General balance.
Attorney — Admission — Examination — Sup. Ct. Rules — Rule 18 of Dec. 3, 1872.
Administration suit — Unlimited company — Deceased shareholder — Distribution of assets — Liability of executors — "Statute of Trusts 1864" (No. 234), s. 60 — Advertisement.
Appeal to Privy Council — Security — Costs of Application — Discretion of the Court.
Administration — Creditor's suit — Decree — Second suit — Stay of proceedings.
Administration — Decree in ecclesiastical suit — Death in 1867 — Accounts of real and personal estate — Release — Statute of Limitations — Tasmanian law — Judicial notice.
Administration — Decree in ecclesiastical suit — Accounts of real and personal estate — Release — Statute of Limitations — Inquiry in Master's office.
Administration cum testamento annexo — "Extracted copy of Will" — Affidavit in Scotland before Chief Magistrate — Commissioner of Supreme Court within reach.
Award — Apparent inconsistency on its face — Bill of exchange given in pursuance thereof.
Appeal to Privy Council — Appealable amount — Orders in Council.
Attorney — Articled clerk, member of Parliament during articles.
Architect's commission — Plans prepared on too expensive a scale.
Attorney — Services rendered in obtaining Parliamentary inquiry — No delivery of signed bill of costs — Insolvency pending the result of such services.
"Abattoirs Statute" (No. 356) — Section 36 — Possession of skin with defaced brand — Surface brand on wool.
Appeal to Privy Council — Amount at issue — Interest on judgment.
Admission of attorneys — Rule 37 of 1865 — Certificate delivered before the time prescribed — Splitting examinations.
Appeal — Plaint for trespass — Priority of claim — Issues settled.
Administration suit — Accounts — Practice — Costs.
Appeal to Privy Council — Order for leave under 15 Vic., No. 10 — Security to satisfaction of Master — Second order.
"Administration Act" (No. 427), sec. 17 — Supreme Court Rules, June 23, 1873, r. 16 — Administrator — Statement insufficient.
Administrator — Accounts — Rule nisi complied with — Costs — Tender.
Administration — Real estate — Heir-at-law.
Administration de bonis non, durante minoritate — Nominee of sureties — Nominee of infants — Costs.
Attorney — Parliamentary agent — Bill of costs — Taxation — "Common Law Procedure Statute 1865" (No. 274), sec. 387.
Attorney — Lien for costs — Settlement between the parties.
Auctioneer — Deposit to be paid to auctioneer as agent for vendor.
Answer — Endorsement of name and address — Costs — Supreme Court Rules c. v., r. 32.
Attachment — Non-payment of costs — Power of attorney — Subpna.
Administration suit — Foreign assets — Receiver pending taking of accounts — Costs.
Appointment of new trustees — Trustee resident out of jurisdiction — Service.
Administration suit — Costs — Interest on balances uninvested by trustee — Practice in Equity — Hearing on further directions — Evidence taken before Master.
Act No. 557, sec. 13 — Bill of sale — Affidavit of renewal — Manager of banking corporation — Inspector.
Administration — Next of kin — Out of jurisdiction — Married woman.
Administration c. t. a. — Attorney of administrator in England.
Administration — Real estate — Heir-at-law — Title — Conveyancing difficulties.
Appeal to Privy Council — Costs of transcript of appeal case — Jurisdiction of Supreme Court.
Attorney — Appearance for borough council — Mode of appointment — Double appointment.
Arbitration — Referring back award — Affidavit of some arbitrators that they were misled — Service — Appeal to Privy Council — Amount at issue.
Act of God — Carriage 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.
Appeal — Privy Council — Application to make order of Privy Council an order of Supreme Court — Taxation of costs.
Attachment for non-payment of costs — Imprisonment for debt abolition — Act No. 292, sec. 2.
Attorney — Lien for costs — Insolvency of client — Proof of debt — Set-off.
Appeal — Privy Council — Lapse of appeal — Interest on judgment.
Appeal — County Court — Alteration of appeal case by judge — Appeal before moving for nonsuit pursuant to leave reserved.
Act No. 557, sec. 13 — Bill of sale — Affidavit of renewal — Independent covenant to pay.
Administration suit — Appointment of new trustees by executor of last acting trustee — Discretion — Interference by Court — Pleading — Parties — Executor not proving.
Administration — Payment of balance in Master's hands to one creditor.
Administration suit — Maintenance — Discretion of trustees — Charities — Liberty to trustees to contribute to — Appointment of new trustee — Defendant — Abatement — Order of revivor.
Administration — Attorney under power, of widow — Death of intestate in foreign country — Act of foreign court — Evidence of marriage.
Administration — Rule nisi for attachment — Omission to file accounts — Regularity of materials.
Attorney — Debt — Set-off — Bill of costs — Signed bill.
Accidental fire — Liability for its spread to neighbour's land.
Arbitration — Proviso for reference, in lease — No appointment in writing of arbitrator.
Award — Finding of two sums in the alternative, subject to question of law — Acceptance of smaller sum.
Appeal — County Court — Nonsuit in deference to opinion of judge.
Arbitration — Misconduct of umpire — Setting aside award — Communicating with witness in absence of opposite party — Affidavit of umpire as to what passed.
Attorney — Unlawful conveyancing — Agreement for sale of goodwill and lease of hotel — 11 Vict. (No. 33), sec. 13.
Attachment — Non-payment of costs under interlocutory order.
Attorney — Admission — Rules of 1872, r. 24 — Posting, at Prothonotary's office and at Supreme Court, of notice of intention to apply.
Administration suit — Will giving discretion to trustees to invest — Investment after decree.
Administration — Husband and wife — Loan by wife to husband — Separate estate.
Appeal from County Court — Decree for specific performance — Right to set off mortgage against purchase-money — Substantive proceedings necessary.
Attachment — Non-compliance with decree.
Appeal — Mortgage of mining lease — Forfeiture for non-payment of rent — Mortgagee in possession — Appeal to Privy Council — Statement of appealable amount — Interlocutory order.
Administrator — Mortgage of lands — Money expended in improvements — Redemption — Repayment of improved value — Bank — Mortgage — Illegality.
Administration c.t.a. — Will — No appointment of executor — Conditional grant.
Application to revoke probate — Evidence — Affidavits — Viv voce evidence — Incapacity of testator — Delusions.
Administration de bonis non — Executors of administratrix — Next-of-kin — Two administrators.
Appeal — Order transferring proceedings — Subsequent order directing no action to be taken thereon — Costs — Insolvency Statute 1871, sec. 10.
Appeal — Order refusing certificate — Dispensation with dividend of 7s. — Keeping reasonable accounts — Suspension of certificate.
Administration bond — Justifying sureties.
Administration c.t.a. — Will — No appointment of executor — Conditional grant.
Administration — Foreign Court — Exemplification.
Administration c.t.a. — Will — No appointment of executor — Conditional grant.
Administration c.t.a. — Will — No appointment of executor — Conditional grant.
Administration c.t.a. — Will — No appointment of executor — Conditional grant.
Administration c.t.a. — Will — No appointment of executor — Conditional grant.
Administration de bonis non — Executors of first administrator — Next of kin — Infants.
Attachment — How 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.
Attorney — Admission — Supreme Court Rules, 11th April, 1874 — Examinations at interval of one academic year.
Administrator — Promise to pay debt of intestate on day certain — Personal liability.
Attorney — Action brought on behalf of two plaintiffs — No authority from one — Inability of other to pay costs — Liability of attorney.
Attachment for contempt — Practice — Heading of Rule — Costs of Rule not endorsed on writ.
Appeal — County Court — Alteration of decision before it is recorded.
Attorney — Liability to pay costs — Unauthorised use of name of plaintiff.
Attorney — Bill of costs — Taxation — Reservation of dispute as to retainer — Balance in favour of client — Abandonment of reservation — Review of taxation — Lapse of time.
Attorney — Bills of costs — Taxation — Computation of one sixth struck off — Disputed retainer — Practice — Rule made absolute, pending judge's order for stay of proceedings.
Appeal — County Court — Time for transmission — County Court Rules — Order V., r. 4.
Act No. 557, sec. 13 — Bill of sale — Annual affidavit — Error in statement of amount due — Trespass — Leave and License.
Administrator — Tenant 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.
Administration suit — Costs — Plaintiff and defendant, each partly successful — Non-filing of accounts by administrator.
Administrator of personalty — Rents of realty — Accounts — Mixing funds — Constructive trustee — Remedy at Law.
"Administration Act" (No. 427), sec. 20 — Curator of estates of deceased persons — Intestate — Waste — Power of sale.
Agency — Philanthropic society — Liability of members of committee for overdraft on banker — Authority unrevoked.
Attorneys' bills of costs — "Common Law Procedure Statute 1865" (No. 274), secs. 388, 396 — Separate suit.
Agreement — Auriferous sand — Construction — Measure of damages.
Appeal — County Court — Question of fact — Negligent driving. — Evidence. — Statement of servant.
Attorney and client — Taxation — Costs.
Attorney and client — Bill of costs — Taxation — Break in suit.
Administrator — Mortgage — Notice — Improvements — Lien — Interest — Charge of fraud — Discovery — Costs.
Act No. 228 — No. 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.
Appeal for costs — Costs out of fund — Discretion — Administrator.
Act No. 571, s. 1 — Order to prohibit — Time for application.
Act No. 310, s. 47 — Board of Health — Formation of private streets — Apportionment of expense — Notice — Demand of payment.
Act No. 571, s. 4 — Justices of the Peace — Statutory order to quash — Determination under "The Master and Apprentice Statute 1864" (No. 193), s. 17.
Act No. 571, s. 1 — Order to prohibit — Time for application.
Arbitration — Damages — Costs — Referring back award.
Attorney — Bill of costs — Order to deliver several years after payment — Appeal to Privy Council — Practice at law — Summons under emergency clause — Right to begin.
Attorney — Right 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.
Act No. 571, s. 1 — Order to prohibit — Time for application.
Award — Amendment — 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.
Act No. 571, s. 1 — Order to prohibit — Time for application.
Act No. 446, secs. 3, 4 — Leasing Regulations, 1871 — Deposit — Survey of interior lines — Default.
Amalgamated claims — Registration — Trespass — Discretion of Warden — Appeal — Special case — Right to begin.
Attachment — Refusal to execute conveyance — Order nisi — Time to be fixed.
Administration — Creditor — Retainer of debt — Commission.
Administration — Undefended suit — Order for payment of balance due.
Administration — Bond — Surety resident out of jurisdiction.
Administration — Power of attorney — Limited to personal estate.
Administration — Remittances from abroad — Amount of bond.
Administration — Married woman — Application by husband — Affidavit of separate estate.
Administration to creditor — Deceased debtor dying testate — Practice.
Administration — Married woman — Statement of separate estate.
Administration — Advertisement — Misspelling of name of deceased — Search.
Auctioneer — Right to commission — Sale effected by owner.
Award — Building contract — Costs — Amount severable — Umpire — Authority to appoint — Misconduct — Partiality — Refusal to state case on point of law.
Act No. 557, sec. 15 — Bill of sale — Contract in writing of absolute sale — Contemporaneous parol understanding for redemption.
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."
Administration suit — Costs — General rule — Exception.
Administration — Annuity — Rabbit pest.
Administration suit — Costs as between solicitor and client.
Act of Parliament — Construction — "Passing" of Act — Act No. 787, s. 25.
Act of Parliament — Permissive words only — Authority to commit a nuisance — "Local Government Act 1874" (No. 506), s. 377.
Act No. 630, sec. 2 — Regulation prohibiting processions — Decision of Justices on facts.
Arbitration — Award 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.
Act No. 319, s. 2 — Affidavit "made and signed" — Form of jurat.
Agreement — Will — Doubtful points of law — Family compromise.
Administration — Next-of-kin — Proof of Marriage of deceased.
Agreement — Will — Doubtful points of law — Family compromise.
Act No. 532, s. 1 — "Pretended game of chance."
Appeal from County Court — Jurisdiction of County Court to entertain counter-claim — "The Judicature Act 1883" (No. 761), ss. 56, 71.
Act No.308 — Trust for A. or his "representatives" — Vested interest — Parties — Executor who has not proved.
Agreement — Will — Doubtful points of law — Family compromise.
Act No. 627, ss. 8, 9, 17, 22 — Curator of felon's estate — Assignment of property after completion of sentence — Trust property — Practice — Want of parties.
Act No. 319, s. 3 — Order or conviction by justices — Drawing-up — Pronounced in party's presence — Service not necessary.
Appeal from Justices — Mistake of fact involving mistaken application of principle.
Administration — Allowance to executors — Tombstone — Accountant's fees.
Agreement — Will — Doubtful points of law — Family compromise.
Act No. 284 — Imprisonment for debt — Intent to defeat a particular creditor — Insolvency of debtor.
Appeal — To 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.
Act No. 571 — Order to prohibit — Order to quash.
Act No. 571 — Order to quash — Order to prohibit — Want of jurisdiction.
Act No. 313, s. 6 — Stock mortgage — Stock subsequently brought on station.
Act No. 842, s. 2 — Trustees &c. Company — Appointment by executor of company to apply for administration c.t.a. — Will before Act.
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."
Appeal — From 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.
Appeal from judge in Chambers — Matters in discretion of judge — When appeal lies therefrom — Fresh materials.
Arbitration — Disqualification of arbitrator by reason of interest — Waiver of objection — Act 24 Vict., No. 102, ss. 28, 66, and 67 — "Terms and Conditions" — "Price."
Appeal — From justices — Act No. 565, ss. 25 and 26 — Notice of appeal — Verbal and written notices.
Administration Act 1872, s. 6 — Liability of administrator — Administration of Justice Act 1885, s. 8 — Practice — Grounds of appeal.
Appeal — County court — Nonsuit — Agent — Right to commission.
Administration — Act 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.
Appeal — Privy 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.
Appeal — County Court — Administration of Justice Act 1885, s. 8 — Practice — Notice to produce — Reasonable notice — Interference with discretion of judge — Form of order for rehearing.
Abortion — Criminal 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.
Appeal — To 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.
Action of ejectment — Defence 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.
Administration suit — Next 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.
Administration suit — Unauthorised purchase by executrix — Mortgage of estate to provide purchase money — Non-filing of accounts — Costs — Costs of husband, co-defendant.
Administration — Creditor's application — Will — Undue delay by executors in proving will — Costs of creditor — Form of order.
Act No. 808, s. 17 — Order XIX., r. 27 — Order XXV., r. 4 — Patent — Insufficiency of particulars of objections.
Act No. 521, s. 8 — By-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.
Appeal from County Court — Costs — Costs of rehearing — Further consideration — Specific performance — Discretion of Court.
Act No. 502, s. 23 — Felony or misdemeanour — Trial upon the record of the Supreme Court — New trial — Amending judgment.
Action of ejectment — Estoppel — Right of defendant to impeach the title of person who put him in possession.
Act No. 571, s. 4 — Justices of the Peace — Rule to quash decision of — Service of rule.
Agent — Del credere agency — Guarantee — Power of judge to vary or alter findings of referees.
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.
Act No. 557 — Instruments and Securities Statute (Bills of Sale 1876), ss. 15, 16 — Contract for letting and hiring — Signature of parties to the contract.
Act No. 557 — Instruments and Securities Statute (Bills of Sale 1876), ss. 15, 16 — Contract for letting and hiring — Signature of parties to the contract.
Articled clerk — Filing of articles — Duty of solicitor.
Action against executor — Devise of land subject to payment of all debts.
Act No. 78, s. 1 — Innkeepers, liability of — Inn, definition of — Coffee Palace — Loss of goods — "Package or parcel."
"Abattoirs Statute" (No. 356), s. 28 — Mandamus — Application for license for slaughter-house — Determination by municipal council.
Act No. 557 — Instruments and Securities Statute (Bills of Sale 1876), ss. 15, 16 — Contract for letting and hiring — Signature of parties to the contract.
Act No. 557 — Instruments and Securities Statute (Bills of Sale 1876), ss. 15, 16 — Contract for letting and hiring — Signature of parties to the contract.
Act No. 557 — Instruments and Securities Statute (Bills of Sale 1876), ss. 15, 16 — Contract for letting and hiring — Signature of parties to the contract.
Act No. 557 — Instruments and Securities Statute (Bills of Sale 1876), ss. 15, 16 — Contract for letting and hiring — Signature of parties to the contract.
Act No. 557 — Instruments and Securities Statute (Bills of Sale 1876), ss. 15, 16 — Contract for letting and hiring — Signature of parties to the contract.
"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.
Act No. 557 — Instruments and Securities Statute (Bills of Sale 1876), ss. 15, 16 — Contract for letting and hiring — Signature of parties to the contract.
Act No. 284, ss. 2, 3 — Debtor's summons — Second summons for same debt — Jurisdiction.
Act No. 284, ss. 2, 3 — Debtor's summons — Second summons for same debt — Jurisdiction.
Act No. 284, ss. 2, 3 — Debtor's summons — Second summons for same debt — Jurisdiction.
Act No. 284, ss. 2, 3 — Debtor's summons — Second summons for same debt — Jurisdiction.
Act No. 284, ss. 2, 3 — Debtor's summons — Second summons for same debt — Jurisdiction.
Agreement — Time payment system — Vendor and purchaser — Letting and hiring — Property in goods sold on time payment.
Act No. 557, ss. 15, 16 — Contract of sale — Contract of letting and hiring — Consideration, inaccuracy in statement of — Interpleader.
Act No. 160 — "The Public Service Act 1883" (No. 773) — Act No. 149 — State school teacher, dismissal of — Public Service Board.
Act No. 557, s. 14 — Production of affidavits — Practice in office of Registrar-General.
Act No. 313, ss. 5, 6, 7 — Stock mortgage — Registration — "Station," description of.
Appeal — Security 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.
Administration action — Co-trustee — Deceased trustee — Accounts — Misapplication of trust estate.
Appeal to Privy Council — Orders in Council — Costs — Matters in issue.
Act No. 284, ss. 2, 3 — Debtor's summons — Second summons for same debt — Jurisdiction.
Agreement — Promise to pay an annuity — On certain conditions — Consideration.
Administration action — Will construction — Costs — Fund out of which payable — Residuary devise.
Action for non-delivery of scrip — Measure of damages — Market value of shares — Time at which market value should be fixed.
Attachment of moneys found upon prisoner before conviction — Money in possession of police — Garnishee.
Arbitration — Award made by two out of three arbitrators — Reception of affidavit made by barrister who acted as arbitrator.
Administration action — Order XVI., r. 33 — Parties — Action by one next-of-kin, others not joined — Foreign administration — Foreign estate — Administrator within jurisdiction.
Administration and Probate Act 1890 (No. 1060), s. 23 — Application for a jury.
Administration and Probate Act 1890 (No. 1060), s. 23 — Application for a jury.
Administration and Probate Act 1890 (No. 1060), s. 23 — Application for a jury.
Administration and Probate Act 1890 (No. 1060), s. 23 — Application for a jury.
Appeal from County Court — County Court Act 1890 (No. 1078), ss. 96, 133 — Appeal from order for new trial made by County Court judge.
Auction Sales Act 1890 (No. 1065), ss. 3, 21 — Order to review conviction for selling by auction after sunset — Sale by auction.
Appeal from County Court — The County Court Act 1890 (No. 1078), s. 134 — Appeal from decision in Chambers — Summons, irregularity in — Practice.
Administration and Probate Act 1890 (No. 1060), s. 23 — Application for a jury.
Administration and Probate Act 1890 (No. 1060), s. 23 — Application for a jury.
Administration and Probate Act 1890 (No. 1060), ss. 19, 40, 41, 42, 45 — Sealing foreign probates — Caveat — Time within which caveat may be lodged.
Administration and Probate Act 1890 (No. 1060), s. 23 — Application for a jury.
Administration action — Claim 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.
Administration and Probate Act 1890 (No. 1060), s. 112 — Marriage settlement — Trusts for children of former marriage — Liability of settlement to duty — Voluntary settlement.
Arbitration — Award — Award a nullity — Admissibility of affidavits — Practice.
Assignment of chose in action — Notice 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.
Appeal to Privy Council — Practice — The Supreme Court Act. 1890 (No. 1142), s. 231 — Order in Council — Final determination of merits of case.
Administration action — Consent judgment — Dismissal of action by consent after judgment — Stay of proceedings — Costs.
Administration and Probate Act 1890 (No. 1060), s. 26 — Commission to trustee — Summary procedure as to.
Administration bond — Surety — Duty of surety — Duty of next of kin — Notice to surety — Damages.
Attachment for nonpayment of costs — Inability to pay.
Administration and Probate Act 1890 (No. 1060), s. 97 — Estate 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.
Arbitration — Award — Action upon award — Jurisdiction of arbitrators — Bulk sum award not severable — Award void for inclusion of non-referable item.
Assignment for benefit of creditors — Trustees 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.
Administration Act 1890 (No. 1060), s. 40 — Affixing 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.
Administration and Probate Act 1890 (No. 1060), s. 26 — Commission 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."
Administration and Probate Act 1890 (No. 1060), s. 99 — Appeal from decision of Master in Equity — Practice.
Administration and Probate Act 1890 (No. 1060), s. 97 — Statement of assets and liabilities — Probate duty — Promissory notes payable in Victoria.
Adulteration — Article of food or drug — Exemption of defendant — Written warranty — Health Act 1890 (No. 1098), ss. 43, 61, 71.
Adulteration — Article of food or drug — Analysis — Notification to Seller — Health Act 1890 (No. 1098), ss. 43, 61, 312 (6).
Articled clerk — "Office" — Leave to act as executor during articles — "Rules of Supreme Court, 26th November, 1892" — English practice.
Administration and Probate Act 1890 — Probate duty — Sale of land in New South Wales — Purchase money payable in Victoria — Vendor's lien — Victorian assets.
Administration and Probate Act 1890 (No. 1060), ss. 39, 40, 46 — Probate law — Letters of confirmation — Exemplification — Affixing seal of court to exemplification.
Assignment for benefit of creditors — Prior execution — Sale by trustee — County Court register — Extract — Evidence Act 1890 (No. 1105), s. 23.
Arrest and bail — Practice — 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.
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.
Administration and Probate Act 1890 (No. 1060), s. 17 — Administration — Surety — Bond — Assignment — Discretion of Court.
Arbitration — Railway contract — Action on award — Finding of arbitrators, conclusive in absence of fraud — Penalties, deduction of — Costs — Interest.
Arbitration — Bulk sum award — Non-referable items — Invalidity of award.
Advancement — Purchase of land by father in son's name — Rebuttal of presumption of advancement — Reservation of interest in land by purchaser.
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.
Arbitration — Railway contract — Penalties for delay, deduction of — Action on award — Award bad in part — Non-referable items, consideration of by arbitrators.
Administration and Probate Act 1890 (No. 1060), s. 115 — Duty 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.
Administration and Probate Act 1890 (No. 1060), s. 17 — Administration — Surety — Bond — Assignment — Discretion of Court.
Administration and Probate Act 1890 (No. 1060), s. 115 — Probate duty — Transference of property in alleged evasion of duty — Parties chargeable with duty — Liability of executors — Parties.
Administration — Rule to administer freehold land — Administration Act 1872 (No. 427) — 27 Vict., No. 230, s. 4.
Administration and Probate Act 1890 (No. 1060), s. 99 — Duty on estate of deceased person — Assessment of duty — Appeal from determination of Master in Equity — Evidence on appeal — Practice.
Administration — Regul Generales, 23rd June 1873 — Rr. 6, 19 — Company applicant for letters of administration — Affidavit of search for will made by applicant's manager.
Animals Protection Act 1890 (No. 1064), ss. 3, 9 — "Cruelly" — Overdriving.
Employers and Employs Act 1891 (No. 1219), ss. 3, 5 — Meaning 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.
Appeal from order giving leave to appeal to Privy Council — Jurisdiction — Costs.
Administration and Probate Act 1890 (No. 1060), ss. 97, 98 — Statements of assets and liabilities — Probate duty — "Lex loci" as applied to the personal assets of a testator.
Appeal to Privy Council — Practice — Procedure — Leave to appeal to Her Majesty in Council — Order in Council 9th June 1860 — Security — "Given" — "Entered into" — Supreme Court — Discretion.
Admission of barristers and solicitors — Articled 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.
Appeal to Privy Council — Security ordered to be lodged — Payment of money into bank — Abandonment of appeal — Payment out — Practice.
Action for malicious prosecution — Evidence, admissibility of — Precious transactions, evidence of — Wrongful rejection of evidence.
Arbitration — Enforcement of award — Submission made a rule of Court — Appointment of arbitrator.
Executor — Commission — 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-executor — a trustee company — having already received commission.
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.
Articled clerk — Service under articles — Continuous service — Supplementary articles — Legal Profession Practice Act 1891 (No. 1216), s. 15 (3).
Appeals — Special 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).
Appeal to General Sessions — Non-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.
Appeal to Privy Council — Order in Council — Appealable amount — Practice.
Appeal from nonsuit — Grant of new trial — Costs of former trial.
Articled clerk — Leave 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.
Administration and Probate Act 1890 (No. 1060) ss. 15, 16 — Administration bond — Application to dispense with sureties — Consent of persons interested — Requirements by Court before granting application.
Administration and Probate Act 1890 (No. 1060), Part V., ss.97, 98 — Probate 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.
Action for debt in Supreme Court which might have been brought in County Court — Application 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.
Appeals — Leave 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.
Administration and Probate Act 1890 (No. 1060), s. 112 — Duty payable on voluntary settlement — Trusts or dispositions to take effect after death of settlor — Settlor divesting himself of all interest in settled property.
Administration and Probate Act 1890 (No. 1060), s. 112 — Probate duty — Settlements.
Administration and Probate Act 1890 (No. 1060), s. 40 — Sealing probate in Victoria — "Executor and administrator therein named," meaning of.
Appeal to Privy Council — Order 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.
Action, cause of — Interference 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.
Assignment of debt — Equitable 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.
Administration and Probate Act 1890, ss. 39, 40 — Exemplification of probate — Probate granted in New South Wales to three executors — Application for re-sealing by one only.
Agreement for purchase and hire — Hirer to pay monthly rent till total sum paid — Absolute contract to purchase — Arrears of instalments — Use and hire — Form of action — Jurisdiction of justices.
Administration and Probate Acts, 1890 (No. 1060), Part V.; 1903 (No. 1815), ss. 3, 11 — Properties 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.
Appeal to Privy Council — Motion for leave to appeal — Order in Council of 9th June 1860 — "Final judgment decree or order" — Decision of Full Court on a reference.
Administration and Probate Act 1903 (No. 1815), s. 11 — Transfer in consideration of marriage — Gift — Covenant to transfer — Immediate gift.
Appeal to Privy Council — Order 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.
Attorney and solicitor — Work and labour done, right of solicitor to sue for — Justices, jurisdiction of in case of written agreement.
Administration and Probate Act 1890 (No. 1060), ss. 8, 9, 40, 44 — Attorney under power of English administrator — Victorian assets, right of Victorian administrator to distribute.
Administration bond — Rights 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.
Administration and Probate Act 1890 (No. 1060), s. 103 — Apportionment 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."
Appeal to Privy Council — Income 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.
Administration and Probate Act 1903 (No. 1815), s. 11 — Property chargeable with duty — Probate — Duty — Gifts — "Part of the estate of donor."
Administration and Probate Act 1890 (No. 1060), ss. 15, 40, 43 — Supreme 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.
Administration and Probate Act 1890 (No. 1060), ss. 15-17 — Bond — Sureties — Agreement by beneficiaries to release and indemnify sureties for loss arising from maladministration — Public policy.
Administration and Probate Act 1890 (No. 1060), s. 26 — Legacy to executors and trustees "as remuneration for acting as trustees" — Commission.
Administration and Probate Act 1890 (No. 1060), s. 40 — Intestate 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.
Administration and Probate Act 1890 (No. 1060), ss. 15-17 — Bond — 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.
Administration — Stale application for — Sole asset an interest in remainder in land — Application after death of life tenant.
Administration and Probate Act 1890 (No. 1060), ss. 15, 16 — Probate practice — Administration bond — Dispensing with bond — Jurisdiction.
Artificial Manures Act 1904 (No. 1930), ss. 11, 16, 17 — Artificial manure taken and collected by chemist for analysis — "Place where manure is stored," meaning of.
Attachment of debts — Trust 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.
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.
Administration and Probate Act 1890 (No. 1060), s. 112 — Administration 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.
Administration cum testamento annexo — Application 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.
Administration — Executor of executor — Right to renounce as to first testator's estate — Administration and Probate Act 1907 (No. 2120). s. 5.
Arbitration — Submission 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.
Administration and Probate — Intestate — 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.
Administration practice — Administration and Probate Act 1907 (No. 2120), s. 5 (1) (2) — Removal of executor — Parties to summons — Directions of Judge.
Arbitration — Award — 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.
Administration — Sureties — Transfer of assets to sureties, validity of — Breach of trust — Parties.
Administration — Probate and Administration Rules 1906, rr. 4, 15 — Grant of limited administration — "Peculiar circumstances" — Power to dispense with compliance with rules.
Administration and Probate Act 1890 (No. 1060), s. 112 — Administration 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.
Administration and Probate Act 1890 (No. 1060), s. 26 — Commission — Corpus — Time to apply.
Administration and Probate Act 1890 (No. 1060), s. 99 — Valuation of estate — Appointment of valuator by Commissioner — Valuation by Commissioner — Procedure by summons — Duties Collection Act 1910 (No. 2287), s. 2.
Administration and Probate Act 1903 (No. 1815), s. 11 — Probate duty — Immediate gift — Possession and enjoyment to exclusion of donor — Transfer subject to lease by donees to donor.
Administration and Probate Act 1907 (No. 2120), s. 7 — Authority to trustee company — Revocation — Form of authority — Form of application.
Action, cause of — Inducing employer not to engage workman — Interference — Just cause or excuse — Self-interest — Motive.
Administration and Probate Act 1911 (No. 2342), ss. 3, 4 — Executor — "Claim against estate" — Intention of person to apply to revoke probate — Application to bar, or for leave to disregard, unprosecuted claim against estate.
Administration — Practice — Person primarily entitled to administration out of the jurisdiction — Grant to trustee company nominated by only kin within the jurisdiction.
Administration and Probate — Attorney 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.
Administration and probate — Codicil — Validity of — Execution — Writing other than signature not seen by witnesses — Wills Act 1890 (No. 1159), s. 7.
Administration and Probate — Administration — 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.
Administration and Probate — Duty — 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.
Administration and probate — Probate duty — Statement for duty — Deductions — Debts due — Debt barred by Statute of Limitations — Administration and Probate Act 1890 (No. 1060), s. 97.
Administration and probate — Practice — Commission — Future commission — Executors and trustees — Passing accounts.
Administration and probate — Practice — Foreign will — Sealing exemplification — Power of attorney, sufficiency of — Administration and Probate Act 1890 (No. 1060), s. 40.
Administration and probate — Will — 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.
Administration and probate — Probate 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.
Administration and probate — Probate 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.
Administration and Probate — Executor 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.
Assignment — Chose 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.
Administration and probate — Probate 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.
Administration and probate — Administration 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.
Administration and Probate — Administration 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.
Administration and probate — Will, 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.
Administration and probate — Administration 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.
Administration and probate — Practice — Probate — Caveat — Discovery — Discretion of Court to order general discovery — Rules of the Supreme Court 1906, c. 111 (Probate and Administration), r. 32.
Administration and probate — Practice — 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.
Administration and Probate — Probate — Will — Solicitor and client — Gift to solicitor of testatrix — Onus probandi — Independent advice.
Administration and Probate — Authority 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.
Administration and probate — Administration 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.
Administration and probate — Administration — 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).
Administration and probate — Settlement 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).
Administration and probate — Grant of letters of administration — Sureties to bond — Secured creditors — Notice to — Dispensing with sureties — Practice — Administration and Probate Act 1915 (No. 2611), s. 18.
Administration and probate — Probate — Soldier's will — Testator under twenty-one years of age — "Being in actual military service" — Wills Act 1915 (No. 2749), ss. 6, 10.
Attachment of debt — Garnishors 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.
Administration and probate — Executor'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.
Administration and probate — English 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.
Administration and probate — Settlement — 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.
Administration and probate — Administration — 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).
Administration and probate — Settlement — 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.
Administration and probate — Letters 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.
Administration and probate — Practice — 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.
Administration and probate — Practice — 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.
Administration and probate — Grant 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.
Administration and probate — Executor 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.
Arbitration — Award — 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.
Attachment — Contempt — 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.
Administration and probate — Duty — 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.
Administration and probate — Duty — 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.
Administration and probate — Will — Probate — Mutilation — Specific bequest cut out by testatrix — Signature and part of attestation clause removed in so doing — Inadvertence — No intention to revoke — Restoration.
Administration and probate — Widows 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.
Administration and probate — Will — 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.
Administration and probate — Practice — 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.
Appeal — High 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.
Appeal — Practice — 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.
Administration and probate — Practice — Executors passing accounts — Order for commission — Beneficiary out of Commonwealth — Procedure by originating summons inapplicable — Ex parte application by executors — Costs.
Administration and probate — Administration 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.
Administration and probate — Duty — 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.
Auctioneer — Person 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.
Administration and Probate — Soldier's will — Will lost or destroyed — Evidence of making will — Declaration by testator as to making and contents.
Administration and probate — Probate — 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.
Administration and probate — Administration — Administrator out of jurisdiction — Bond — Execution — Attorney under power — Administration and Probate Act 1915 (No. 2611), s. 18.
Administration and probate — Probate 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.
Administration and probate — Maintenance 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.
Administration and probate — Probate — Resealing foreign probate — Executor of deceased executrix — Not entitled to apply — Administration and Probate Act 1915 (No. 2611), s. 51.
Administration and probate — Practice — 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.
Arrest — Mesne 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.
Administration and probate — Executors — 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.
Administration and probate — Administration — 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.
Administration and probate — Probate — 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.
Auctioneer — Words 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.
Administration and probate — Probate — 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.
Administration and probate — Probate — 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.
Administration and probate — Administration — 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).
Administration and probate — Probate 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.
Animals — Stallion — Dangerous disposition — Scienter — Duty to take-reasonable care — Injury to mare — Negligence — Damages.
Arbitration — Contract — Action on — Counterclaim based on prior contract — Arbitration clause — Application to stay counterclaim — Jurisdiction — Discretion — Arbitration Act 1915 (No. 2614), s. 5.
Administration and probate — Probate 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.
Administration and probate — Probate — 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.
Administration and probate — Practice — 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.
Admiralty — Prize — 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.
Administration and probate — Administration — 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.
Administration and probate — Administration — Emblements — Will — Growing crop at testator's death on land devised — Residuary gift — Share-farming agreement — Whether devisee or residuary beneficiaries entitled.
Admiralty — Practice — 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.
Administration and probate — Executor, 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).
Administration and probate — Probate 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.
Arbitration — Statement 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.
Administration and probate — Revocation 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.
Administration and probate — Administration — 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).
Administration and probate — Testator 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.
Arbitration — Statement 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.
Administration and probate — Will — 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.
Architect — Registration 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.
Administration and probate — Administration — 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.
Arbitration — Special 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.
Arbitration — Special 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.
Administration and probate — Administration — 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.
Architects — Register 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.
Administration and probate — Administration — 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.
Administration and probate — Administration — 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.
Administration and probate — Provision 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.
Administration and probate — Will — 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.
Arbitration — Submission — 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).
Administration and probate — Bond — Dispensing with sureties — Application for order — Consent of beneficiaries — Form of — Administration and Probate Act 1915 (No. 2611), s. 19.
Administration and probate — Practice — 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.
Administration and probate — Will — Execution — Signature by testator and two witnesses — No formal attestation clause — Presumption of due execution — Wills Act 1915 (No. 2749), s. 7.
Administration and probate — Probate — 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.
Admiralty — Practice — 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.
Administration and probate — Probate 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.
Arbitration — Award — 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.
Administration and prolate — Administration — 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.
Practice — Order nisi — By applicant for administration to remove caveat — Form of order — Counsel appearing to move and to show cause — Order of addresses.
Assignment — Validity — 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.
Stamps — Assignment — Notice of assignment — Admissibility in evidence — When must be stamped.
Administration and probate — Practice — Scandalous or defamatory words — Omission from probate.
Administration and probate — Failure 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.
Criminal law — Larceny 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.
Appeal — Disallowance — 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).
Administration and probate — Practice — Foreign will — Sealing exemplification — Power of attorney — Terms of — Whether sufficient authority — Administration and Probate Act 1915 (No. 2611), ss. 51, 54, 55.
Attachment — Writ 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.
Administration and Probate — Will — 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.
Administration and probate — Practice — 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.
Arbitration — Building 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.
Attachment — Debts — 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 debt — Assignment — 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.
Arbitration — Lease — 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.
Administration and probate — Executor — 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.
Practice — Proceedings 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.
Administration — Intestacy — Real estate — Nature of right of next of kin to estate — Act No. 230 (1864), sec. 4.
Administration and Probate — Administration — Power of administrator to concur in a partition — Trustee Act 1928 (No. 3792), sec. 57.
Administration and probate — Will — 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.
Administration and probate — Sealing of foreign probate — Revocation of foreign grant — Revocation of sealing — Administration and Probate Act 1928 (No. 3632), sec. 81.
Administration and probate — Will — Execution — Acknowledgment — Wills Act 1928 (No. 3808), sec. 7.
Administration and Probate — Executor 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.
Administration and Probate — Letters 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.
Administration and Probate — Probate 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.
Administration and probate — Will — 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.
Arbitration — Arbitrator — 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).
Administration and probate — Practice — Probate — Caveat — Order nisi for probate — Intervention by beneficiary.
Administration and Probate — Duties 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 insurance — Policy 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).
Principal and agent — Commission — 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-suit — New trial ordered — Costs of former trial.
Administration and probate — Will — Document containing no disposition of property and no appointment of an executor.
Arbitration — Contract — 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.
Administration and probate — Will — Execution — Signature at end of dispositive provisions and above appointment of executors — Wills Act 1928 (No. 3803), secs. 7, 8.
Attachment of debts — Judgment 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.
Administration and probate — Probate — Sealing of foreign probate — Grant by Court in United Kingdom — Northern Ireland — Administration and Probate Act 1928 (No. 3632), sec. 81.
Assignment — Legal 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.
Attachment of debts — Moneys deposited in State Savings Bank — Crown debt — Necessity for demand — Production of passbook and withdrawal form.
Administration and Probate — Will — Construction — Application of assets — Payment of legacies — Administration and Probate Act 1928 (No. 3632), Second Schedule, Part II., cl. 2.
Administration and probate — Insolvent 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).
Administration and probate — Will — Execution — First page alone executed — Incorporation of other pages — Wills Act 1928 (No. 3803), sec. 7.
Administration and probate — Widows and young children — Maintenance — Orders made — Jurisdiction to make further order — Administration and Probate Act 1928 (No. 3632), sec. 145.
Administration and probate — Removal of executor — "Unfit" to act — Default in paying beneficiaries — Administration and Probate Act 1928 (No. 3632), sec. 29 (1).
Administration and Probate — Duty on deceased persons' estates — Settlement by joint owners — Administration and Probate Act 1928 (No. 3632), sec. 177.
Administration and probate — Grant 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.
Charity — Gift by will to named institution — Institution closed — Remnant of assets held by trustees — Cy-prs — Lapse.
Administration and probate — Administration of assets — Partial intestacy — Lapse — Incidence of debts, legacies and testamentary expenses — Administration and Probate Act 1928 (No. 3632), sec. 33.
Administration and probate — Application for probate — Practice — Codicil not duly executed — Infant beneficiaries — Examination of attesting witnesses.
Administration and probate — Probate "granted" by Registrar — Caveat lodged subsequently, but before issue — Procedure — Administration and Probate Act 1928 (No. 3632), secs. 7, 52-55.
Administration and probate — Will — 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.
Administration and probate — Executors' commission — Legacy in lieu of — Failure of legacy — Allowance of commission — Special circumstances.
Administration and probate — Document propounded as a will — No description of subject of disposition — No appointment of executor.
Administration and probate — Will — Execution — Signature — Part of an initial letter only — Wills Act 1928 (No. 3803), sec. 7.
Administration and probate — Administration 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).
Administration and probate — Letters 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.
Arbitration — Submission — Stay of proceedings — Court of Petty Sessions — Arbitration Act 1928 (No. 3637), sec. 5.
Administration and Probate — Administration of assets — Life assurance policy — Policy moneys not assets for payment of debts — Equitable obligations — Companies Act 1928 (No. 3659), sec. 476 (3).
Administration and Probate — Executor — 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).
Administration and Probate — Expenses of administering will — Share of residue to bear — State probate duty — Administration and Probate Act 1928 (No. 3632), secs. 162, 163.
Arbitration — Action on building contract — Arbitration clause — Defendant unaware of clause when proceedings commenced — Application for stay — Arbitration Act 1928 (No. 3637), sec. 5.
Administration and probate — Application 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.
Administration and Probate — Summons 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).
Local Government — Elections — 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 Act — Intermediate 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.
Administration and probate — Executor'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.
Administration and probate — Will — 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).
Administration and Probate — Practice — Executor — Application for leave to pass accounts — Managing clerk of executor's solicitor acting as solicitor for beneficiaries — Costs.
Administration and probate — Caveat 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.
Administration and probate — Will — 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.
Administration and Probate — Duties 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.
Administration and Probate — Duties 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.
Administration and Probate — Duties 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.
Administration and probate — Will — 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.
Administration and Probate — Duties 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.
Administration and Probate — Statement 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.
Arbitration — Insurance 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.
Administration and probate — Notice 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.
Adoption of children — Illegitimate child — Mother's consent — Whether consent should be dispensed with — Adoption of Children Act 1928 (No. 3605), sec. 4 (3).
Administration and Probate — Probate 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.
Administration and Probate — Caveat — 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.
Administration and Probate — Family 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.
Arbitration — Building contract — Certificate of practical completion — Dispute — Reference to arbitration — Whether arbitrators may determine whether works practically completed.
Administration and Probate — Practice — Caveat — More than one lodged — Whether separate orders nisi should be granted — Administration and Probate Act 1928 (No. 3632), sec. 53.
Administration and probate — Duties 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.
Administration and probate — Probate 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.
Administration and Probate — Family 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.
Arbitration — Insurance policy containing arbitration clause — Whether policy extended — Whether difference "arising out of policy" — Stay of proceedings — Arbitration Act 1928 (No. 3637), sec. 5.
Administration and probate — Testator'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).
Arbitration — Insurance policy containing arbitration clause — Whether policy renewed — Whether difference concerning "subsistence" of policy — Stay of proceedings — Arbitration Act 1928 (No. 3637), sec. 5.
Action — Compromise 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).
Architect — Registration 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.
Administration and probate — Executors' 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.
Administration and probate — Estate 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.
Administration and probate — Estate 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.
Administration and probate — Administration 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.
Administration and probate — Summons 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.
Administration, and Probate — Caveat — 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.
Administration and probate — Summons 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.
Administration and probate — Administration bond — Dispensing with surety — Interest of infants — Dispensation refused — Limitation of amount of surety.
Administration and probate — Will 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.
Administration and Probate — Family 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.
Administration and probate — Abatement 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.
Administration and probate — Will — 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.
Administration and probate — Probate 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.
Administration and probate — Administration 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.
Administration and probate — Inquiries as to next of kin — Reference to chief clerk — Form of order where inquiries previously made.
Administration and Probate — Will — Appointment of general executors — Testator a trustee of an estate — Separate appointment of executors of the trust estate — Form of grant of probate.
Administration and probate — Practice — 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.
Administration and Probate — Executor's Commission — Trustee company's right to commission on income — Meaning of "income" — Trustee Companies Act 1928 (No. 3793), sec. 17.
Administration and probate — Maintenance — Order for support of children — Arrears owing at death of defendant — Whether a debt or liability executor under a duty to pay.
Administration and probate — Will — 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.
Administration and probate — Will — 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.
Administration and probate — Will 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.
Administration and probate — Administrator 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.
Administration and probate — Will 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.
Administration and Probate — Will — 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.
Administration and probate — Widow'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.
Administration and probate — Assets 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.
Administration and probate — Will — Construction — Printed form — Marginal instructions — Admitted to probate as part of will — Executors — Alternative appointment — Whether void for uncertainty.
Administration and probate — Will — 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.
Administration and probate — Limited 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.
Administration and probate — Intestacy — 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.
Administration and probate — Will — 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.
Administration and probate — Will — 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.
Administration and probate — Will 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.
Administration and probate — Will — 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.
Administration and Probate — Advancement of beneficiaries — Powers of trustee — Purchase of dwelling-house — Payment out of corpus — Trustee Act 1928 (No. 3792), secs. 32, 57.
Administration and probate — Limited 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.
Administration and probate — Will lost since death of testator — Application for probate — Whether notice to next-of-kin required.
Administration and probate — Will — 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.
Practice — Costs — 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.
Administration and probate — Will — 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.
Agency — Compromise of action — Authority of Counsel — Ostensible authority — Client bound by settlement.
Insurance — Motor 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.
Administration and Probate — Testator'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.
Administration and probate — Maintenance 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).
Animals — Dogs — 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.
Administration and Probate — Testator'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.
Administration and probate — Will — 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.
Administration and probate — Testator'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.
Administration and probate — Revocation of probate — Original grant obtained by fraud — Escheat to Crown — Application for revocation — Procedure.
Administration and probate — Testator'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).
Administration and probate — Passing 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.
Administration and probate — Testator'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.
Administration and probate — Will — Omission of words from probate copy — Jurisdiction — Deletion of scandalous words.
Administration and probate — Maintenance 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.
Arbitration — Application 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.
Administration and probate — Probate "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.
Administration and Probate — Will — Execution — Whether acknowledgment by testator of his signature "in the presence of" both witnesses required — Wills Act 1928 (No. 3803), sec. 7.
Administration and probate — Will — Revocation — Unauthorised act of destruction — Possibility of ratification — Wills Act 1928 (No. 3803), sec. 18.
Administration and probate — Appointment 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.
Administration and Probate — Family 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.
Assault — Action for damages — Defendant's plea of justification — Allegation, in plaintiff's reply, of use of excessive force — Onus and standard of proof.
Administration and probate — Maintenance — Order for support of wife and child — Arrears owing at death of defendant — Whether a debt or liability executor under a duty to pay.
Administration and probate — Will — Caveat — Practice — Particulars of objection — Whether further particulars may be ordered — Rules of Supreme Court 1938, ch. III, rr. 31, 32.
Administration and probate — Testator'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.
Practice — Time — Within which to make application — Application to be made within six months after date of grant of probate — What constitutes making of application.
Administration and probate — Will — 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.
Administration and probate — Will — 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.
Will — Construction — Gift to four named nephews — No contingency annexed to gift — Whether beneficiaries take as individuals — Or as a class.
Administration and probate — Will — Share of residue undisposed of — Whether pecuniary legacies to be paid thereout — Administration and Probate Act 1928 (No. 3632), secs. 33, 34.
Administration and probate — Testator'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.
Administration and probate — Testator'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).
Administration and probate — Grant 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.
Evidence — Ex 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 probate — Alleged 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.
Administration and probate — Testator'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.
Administration and probate — Testator'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.
Administration and probate — Practice — Proof of will in solemn form — After grant of probate — On application by executor.
Public Trustee — Advice to — Addition to advice — Public Trustee Act 1939 (No. 4654), sec. 63.
Assault — Threat of violence — Threat must create fear of violence — Jury to be so directed.
Justices — Appeal 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.
Animals — Dogs — 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.
Administration and probate — Payment 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.
Adoption of children — Consent 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.
Arbitration — Arbitration 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.
Administration and probate — Probate 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.
Administration and probate — Will — 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.
Adoption of children — Discharge 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.
Adoption of children — Application 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.
Arbitration — Building 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.
Contract — Building contract — Alteration to plans — Prior consent in writing of surveyor not obtained — Illegality — Uniform Building Regulations.
Administration and probate — Testator'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).
Administration and probate — Will — 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.
Administration and probate — Dispensation 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.
Administration and probate — Will — 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.
Administration and probate — Will — Disappearance of legatee more than seven years before testator's death — Distribution of estate — Whether legatee survived testator — Onus of proof — Form of order.
Appeal — Plaintiff 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.
Negligence — Liability to invitee — Res ipsa loquitur — Breach of statutory duty — Factories and Shops Act 1928 (No. 3677), sec. 59.
Arbitration — Reference 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.
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.
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.
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.
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.
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.
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).
Accession of title - Conversion - Accessories attached to motor vehicle - Whether property passes to owner of vehicle.
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.
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.
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.
Arbitration - Submission to two arbitrators - One refusing to act - No power in court to fill vacancy - Arbitration Act 1928 (No. 3637), s6(b).
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.
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).
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.
Administration and probate - Will - Incorporation for probate of document, a contract of sale, referred to in will.
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).
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.
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.
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.
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.
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.
Administration and probate - Renunciation of probate by executor - Deed of renunciation - Intermeddling by executor in the estate - Infant beneficiaries - Beneficiaries - Creditors.
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.
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).
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.
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.
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.
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.
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.
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).
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.
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).
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.
Administration and probate - Will not forthcoming at death - Application to prove copy - Presumption of destruction animo revocandi - Presumption of law - Rebuttal - Dependent relative revocation.
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.
Animals - Dog - Complainant bitten - Whether trespasser - Liability of owner - Dog Act 1958 (No. 6236), s26.
Administration - Application for probate - Doubts as to due execution of will - Application for administration by sole next of kin - Consent of executor.
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).
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).
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.
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.
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).
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.
Administration and probate - Common disaster - Uncertainty as to order of deaths - Presumption younger survived elder - Property Law Act 1958 (No. 6344), s184.
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).
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.
Administration and probate - Will - "The remainder of my money" - "All my personal effects".
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.
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.
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.
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)).
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.
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.
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.
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).
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.
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.
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).
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.
Appeal - Misdirection - Negligence - Employee's common law action for damages - Workers compensation as alternative remedy - Irrelevant to mention alternative remedy.
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.
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.
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.
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).
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).
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.
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.
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.
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.
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.
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).
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.
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).
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.
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.
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.
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.
Administration and probate - Presumption of legitimacy - Presumption of paternity - Presumption of parenthood - No presumption of maternity - Maternity a question of fact.
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.
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.
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).
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.
Administration and probate - Omission of phrase from will - Jurisdiction to grant probate of will textually different from that signed by testatrix.
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.
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).
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.
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.
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).
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).
Arbitration - Error on face of award - Application to set aside award - Reference to contract in award - Incorporation in award - Principles applicable.
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.
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.
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.
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.
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).
Appeal - Verdict of jury - Finding of no negligence - Verdict against party bearing onus of proof - Verdict not against weight of evidence - Principles applicable.
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.
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.
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).
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.
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).
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.
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).
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.
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.
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.
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).
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.
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.
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.
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.
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).
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.
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.
Arbitration - Costs - Right of successful party to costs - Arbitrator's discretion as to costs - Reasons must exist to justify departure from the general rule.
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.
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.
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.
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.
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).
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.
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.
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).
Acquisition of land - Compensation - Principles applicable in assessing compensation - "Market value", solatium", "direct pecuniary loss" - Lands Compensation Act 1958 (No. 6286), s11B.
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.
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.
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).
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.
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).
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.
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.
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.
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).
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.
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).
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).
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.
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).
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.
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).
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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).
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.
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.
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.
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.
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).
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).
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.
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.
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.
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.
Administrative law - Prerogative writs - Criminal trial - Whether writs available to review trial judge's ruling against reception of evidence.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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).
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).
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.
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.
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).
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.
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.
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.
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.
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.
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.
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 - 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.
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.
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.
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.
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.
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).
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.
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).
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.
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.
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.
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.
Arbitration - Award - Leave to appeal from arbitrator's award - Applicable principles - Commercial Arbitration Act 1984 (No. 10167), s38.
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.
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.
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.
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.
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.
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).
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.
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).
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.
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.
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).
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 - 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.
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.
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.
Appeal - Appeal by successful party - Regular judgment - Application by successful party to set aside judgment - Powers of court - When exercised - Injustice to successful party.
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.
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 - 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.
Accident compensation - Levy - Labour agency - Whether employer - Whether liable to pay levy - Accident Compensation Act 1985 (No 10191), s8, s9, s186, s187.
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.
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).
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.
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).
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.
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.
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.
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.
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).
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).
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.
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.
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.
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 - 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).
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.
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).
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.
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).
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.
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.
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).
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).
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).
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.
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.
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.
Arbitration - Consolidation of two arbitrations - Application of "all the parties" - Commercial Arbitration Act 1984 (No. 10167), s. 26.
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.
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 - "Injury" - Cerebral haemorrhage - Whether "physical injury" Accident Compensation Act 1985 (No. 10191), s5, s82(1), s83(2)(a)(ii).
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 - 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.
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.
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).
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.
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.
Accident compensation - "Serious injury" - What constitutes "serious injury" - "Whiplash" - Transport Accident Act 1986 (No 111), s93(17).
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.
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.
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).
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).
Administration and probate - Public policy - Manslaughter of testator by wife beneficiary - Whether wife's interest under testator's will forfeited.
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.
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).
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).
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.
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 - 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 - 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).
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.
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).
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).
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.
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.
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 - Gradual process injury - before and after appointed day - Entitlement to compensation for entire period - Accident Compensation Act 1985 (No 10191), s82(1), (6).
Arbitration - Award - Leave to appeal - Principles - "Nema" guidelines - Damages - Interest - Hungerford principle - Commercial Arbitration Act 1984 (No 10167), s31, s32, s38
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).
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.
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.
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 - 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 - 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).
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.
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 - 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).
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.
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).
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 - 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.
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).
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).
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).
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.
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).
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.
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.
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.
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.
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.
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.
Accident compensation - Transport accident - Leave to bring common law proceedings - Serious injury - Aggravation of pre existing condition - Transport Accident Act 1986 (No 111), s93.
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.
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).
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).
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.
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).
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.
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.
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.
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.
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).
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).
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).
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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).
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.
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.
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).
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).
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).
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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).
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).
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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).
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).
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).
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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).
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).
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.
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).
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).
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).
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).
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.
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).
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).
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.
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).
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).
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.
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).
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).
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.
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.
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).
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.
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.
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.
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).
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.
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.
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).
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).
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).
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).
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.
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).
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.
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.
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).
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).
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.
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.
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.
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.
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.
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.
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).
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).
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).
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
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)
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)
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)
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
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
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)
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.
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)
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
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)
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.
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)
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
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
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)
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
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
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).
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)
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.
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.
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.
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.
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)
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
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)
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.
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)
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.
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
Administration and probate - Duties of executors - Ashes of cremated body - Whether ashes should be divided - Jurisdiction of court to intervene.
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.
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.
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
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
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.
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
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
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
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.
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)
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
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)
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.
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
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.
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).
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
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)
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.
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
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).
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
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
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).
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.
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
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
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.
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
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
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.
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.
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.
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).
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
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
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.
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
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.
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.
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.
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).
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
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).
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).
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
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).
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.
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.
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)
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.
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.
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.
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).
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".
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.
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).
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.
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
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.
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).
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.
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.
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).
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.
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
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.
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.
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).
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)
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).
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.
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.
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).
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.
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)
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.
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).
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)
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.
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.
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.
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).
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.
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).
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.
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).
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).
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).
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.
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.
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.
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
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.
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).
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)
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.
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).
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.
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
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.
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.
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).
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
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.
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
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.
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.
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.
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.
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)
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.
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
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
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
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
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
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
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
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)
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.
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.
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)
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.
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.
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.
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
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)
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)
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.
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.
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 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)
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
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.
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.
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)
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
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
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
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
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.
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.
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
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)
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.
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)
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.
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
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)
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.
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
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
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)
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
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.
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)
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.
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
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.
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
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
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.
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
Contract - Restraint of trade - Employer and employee - Public policy - Legitimate interest - Criteria - Reasonableness of restraint - Severance.
Appeal - Principles constraining new points on appeal.
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
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.
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.
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.
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
Criminal law — Enforcement — 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 interpretation — Whether 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 law — Judicial 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
Administrative law — Judicial 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 contracts — Payment 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)
Prerogative writs — Mandamus — 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 law — Council 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
Administrative law — Judicial review — Privative clause — Police Integrity Act 2008 (Vic) ss 40(4)(b)(1), 52, 109(1)
Human rights — Charter 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)
Contract — Formation — 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
Contract — Implied 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
Negligence — Duty 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 actions — Building 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 procedure — Pleadings — 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 procedure — Material tendered in Court but not referred to in evidence or submissions — Whether Court obliged to examine or consider
Appeal — Claim 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
Costs — Costs 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
Human rights — Charter 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 rights — Charter 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 law — Statutory 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 interpretation — Whether a statutory right to smoke in outdoor areas of designated mental health service — Tobacco Act 1987 (Vic) s 5A
Administrative law — Judicial 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 Rights — Charter 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)
Arbitration — Stay 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'
Arbitration — Foreign 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)
Equity — Rescission — 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
Appeals — Court 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 interpretation — Interpretation of two State Acts – Whether inconsistency arises — Whether `real prospects of success' test inconsistent with `sufficient doubt' test
Building contract — Applicant'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 review — Whether Tribunal failed to provide adequate reasons for decision
Corporations — Directors 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)
Appeal — Leave to appeal — `Real prospect of success' — Supreme Court Act 1986 (Vic) ss 14A, 14C
Administrative law — Coercive 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)
Appeal — Judicial 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)
Appeal — Leave 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
Appeal — Appeal 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
Administrative law — Judicial 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
Associations and clubs — Horse 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
Administrative law — Ombudsman — 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
Statutes — Interpretation — Ordinary meaning of ‘any matter’ — Legislative intent, purpose and objects — Ombudsman Act 1973 (Vic) s 16
Administrative law — Judicial 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 rights — Charter 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)
Administrative law — Judicial 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
Arbitration — Arbitration 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)
Arbitration — Arbitration agreement — Application to stay court proceedings — Whether agreement inoperative or incapable of being performed — Commercial Arbitration Act 2011 (Vic) s 8(1)
Accident compensation — Serious 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
Arbitration — Subpoena — 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
Administrative law — Judicial 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 law — Judicial 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 rights — Charter 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)
Private international law — Choice 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 probate — Partial 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
Contract — Franchise 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 agents — Estate 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
Administration and probate — Forfeiture 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
Equity — Fiduciary obligations — Commercial relationship governed by contract — Factors relevant to existence of fiduciary relationship — Whether fiduciary relationship existed
Contract — Construction 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
Appeals — Issue 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
Administrative law — Appeal — 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 planning — Planning 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)
Appeal — Criminal 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)
Orders — Interlocutory order — Final order — Whether a charge dismissed other than on the merits is interlocutory or final
Administrative law — Admissibility 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)
Workers compensation — Action 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 compensation — Whether filing of generally indorsed writ constituted application under s 135BB(3) of Accident Compensation Act 1985 (Vic)
Administration and Probate — Worker’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
Agency — Manager 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
Administrative law — Plaintiffs 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 rights — Right 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)
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 law — Where 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
Administrative law — Judicial 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 rights — Charter 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 rights — Charter 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)
Administrative law — Judicial 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)
Australian consumer law — Misleading 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 procedure — Pleadings — 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
Administrative law — Judicial 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)
Coroners — Coroner’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
Coroners — Appeal — 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
Appeal — Admission 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
Evidence — Hearsay — 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 law — Judicial 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
Administrative law — Judicial 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)
Administrative law — Procedural 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)
Administrative law — Sex 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)
Courts — Anonymisation — 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
Administrative law — Judicial 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 clubs — Membership — Professional association of accountants created by Royal Charter — Refusal of readmission application — Whether decision amenable to judicial review
Arbitration — Jurisdiction — 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 contracts — Contract 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)
Administrative Law — Judicial 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
Administrative law — Delegation — 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 Government — Inspection — 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
Administrative law — Judicial 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 planning — Planning 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
Occupational Health and Safety — Duty 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)
Appeal — Magistrates’ 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
Administration and probate — Informal 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
Real property — Co-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 law — Victorian 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
Administrative Law — Procedural 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 environment — Compulsory 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
Appeal — Civil — Practice and procedure — Application to allow appeal by consent — Duty of Court to be satisfied of appellable error
Practice and procedure — Necessary parties — Omission of registered proprietor from proceeding challenging compulsory acquisition of land — Effect on rights
Administrative law — Freedom 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 procedure — Referral 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
Statutory interpretation — Statutory 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 Law — Implementation 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 Law — Unreasonableness — 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
Trusts and trustees — Superannuation — 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
Appeal — Practice 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)
Administrative Law — Judicial 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
Guardianship — Mandatory 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
Administrative law — Discretionary 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
Planning and environment — Planning 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 interpretation — Amendment 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)
Appeal — Civil — 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’
Administrative Law — Judicial 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 Law — Judicial 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
Administration and probate — Administration 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 procedure — Trusts 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
Administrative law — Judicial 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 law — Judicial 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)
Evidence — Admissibility — Opinion rule — Exception — Specialised knowledge — Evidence Act 2008 (Vic), s 79
Human rights — Charter 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
Agency and agents — Real 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 agents — Real 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)
Administrative law — Judicial 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
Building — Building Appeals Board — Pecuniary interest provisions — Whether conflict between Board membership and activities as building practitioner — Building Act 1993 (Vic), sch 3, cl 6
Arbitration — Award — 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
Costs — Arbitration — Challenge to award — Jurisdiction to award indemnity costs — Principles to be applied with respect to unmeritorious claims — Commercial Arbitration Act 2011 (Vic).
Administrative law — Victorian 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
Contract — Mutual Releases — Interpretation — Settlement of proceeding — Subsequent claim — Whether second claim within scope of release
Arbitration — Arbitration 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
Arbitration — Award — Reasons — Whether arbitrators failed to give reasons for arbitral award — Commercial Arbitration Act 2011 (Vic), s 31
Administrative law — Tribunals — 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 actions — Victorian 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
Administrative law — Tribunals — 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 government — Councillors — 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 interpretation — Local 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 Rights — Charter 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
Administrative law — Judicial 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 tenant — Public 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’
Administrative law — Judicial 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
Administrative law — Judicial 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 rights — Prisons 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 writs — Mandamus — 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
Administrative Law — Judicial 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)
Human rights — Charter 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 law — Judicial review — Whether strip searches authorised by regulations — Onus of proof — Corrections Regulations 2019 (Vic), reg 87(1)(d)
Accident compensation — Transport 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
Accident compensation — Motor 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’
Administration and probate — Will — 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
Bankruptcy and insolvency — Claim 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 probate — Claim 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)
Accident compensation — Truck 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’
Administrative law — Judicial 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 Responsibilities — Equality 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
Taxation — State 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 law — Judicial 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
Administrative law — Judicial 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 environment — Amendment 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
Planning and environment — Permit 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 law — Tribunals — Summary dismissal — Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 75
Administrative law — Freedom 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’
Administrative law — Tribunals — 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’
Administrative law — Judicial 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
Arbitration — Appeal 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’
Administrative law — Victorian 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 law — Victorian 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
Insurance — General 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 procedure — Judicial review — Resolution by consent — Agreement of parties to set aside decision — Independent consideration by Court of whether to make orders
Administrative law — Tribunals — Whether jurisdictional error in exercise of decision-making power — Conceptual considerations
Administrative law — Standing — Incorporated association — Association incorporated after impugned decision made — Whether objects of association sufficient to establish special interest
Planning and environment — Permit 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
Australian Consumer Law — Misleading 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
Negligence — Negligent 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 procedure — Pleadings — Negligent misstatement — Contributory negligence — Whether claim for contributory negligence raised on pleadings
Landlord and tenant — Retail 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 law — Victorian 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)
Administrative law — Judicial 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
Accident compensation — Transport 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
Administration and probate — Probate — 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
Australian consumer law — Misleading 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 law — Misleading 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
Administrative law — Judicial 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
Wills and codicils — Construction — 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 trustees — Breach 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 probate — Appointment 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
Limitation of actions — Negligence — 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 actions — Extension of limitation period — Whether extension just and reasonable — Limitation of Actions Act 1958 (Vic), ss 27K, 27L
Appeal — Appeal 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’
Administrative law — Tribunals — 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
Limitation of actions — Extension 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 law — Victorian Civil and Adminsitrative Tribunal — Matter in federal jurisdiction transferrable to Magistrates’ Court — Power to extend limitation period where fresh proceeding brought in Magistrates’ Court
Adminisitration and probate — Revocation 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
Administrative law — Judicial 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 judges — Bias — Reasonable apprehension of bias — Whether pledge of allegiance to the Crown and taking affirmation of office constituted reasonable apprehension of bias
Administrative law — Procedural 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 practitioners — Practitioner 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’
Arbitration — Application 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
Planning and environment — Planning 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 law — Planning and environment — Appeal — Revised plans — Repeat appeal
Landlord and tenant — Retail 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 law — Victorian 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
Administration and probate — Intestacy — 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’
Arbitration — Arbitration 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