Criminal law - Sentencing - Appeal by Director of Public Prosecutions - Trafficking in amphetamines - Sentence of 12 months, suspended as to eight months, together with a fine of $10,000 not manifestly inadequate - Autrefois convict - Presentment alleging greater and lesser offences arising out of same circumstances - Plea of guilty to lesser offence does not bar trial for greater offence - Practice and procedure - Procedure to be followed where plea of not guilty entered to more serious offence, but guilty to lesser offence - Crimes Act 1958 (No 6231) s 567A

Criminal law - Evidence - Armed robbery and theft - Evidence of alleged motive based on addiction to and craving for drugs - Relevance of evidence of motive - Propensity evidence - Whether probative value outweighed by prejudicial effect - Warning as to unreliable witness - Lack of balance in charge - Crimes Act 1958 (No 6231) s 398A

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

Testator's maintenance - Application by adult son - Jurisdictional requirements of Pt IV of Administration and Probate Act 1958 - Principles applicable after legislative amendments - Testator's moral duty - Whether testator had responsibility to provide for claimant's proper maintenance and support - Whether provision in will inadequate - Relevance of failure by testator to treat children equally during his life - Appellate review of trial judge's decision on jurisdictional questions - Principles applicable to such appellate review - Administration and Probate Act 1958 (No 6191) Pt IV s 91

Costs - Offer compromise - Whether offer more favourable than judgment - Administration and Probate Act 1958 (No 6191) Pt IV s 91

Criminal law - Sentencing - Appeal by Director of Public Prosecutions - Principles applicable to appeals by director - Industrial dispute - Affray - Common assault - Intentionally and unlawfully causing damage to property - Total effective sentence of 12 months' imprisonment wholly suspended and fine of $10,000 manifestly inadequate - Total effective sentence of two years and nine months' imprisonment with two years suspended for a period of two and a half years substituted.

Negligence - Highways, streets and roads - Occupier's liability - Liability of local council - Footpath - Pedestrians and other users - Cracked and uneven footpath - Plaintiff jogging with dogs on lead - Tripping accident - Scope of council's duty to repair footpath - Whether hazard obvious to ordinary reasonable user - Whether plaintiff keeping a proper lookout - Whether plaintiff had discharged burden of proof of hazard - Trial conducted without view of accident scene - Appellate court's capacity to make substitute factual findings - Assessment of photographic and other evidence tendered at trial.

Criminal law - Sentencing - Appeal by Director of Public Prosecutions - Intentionally causing serious injury - Youth of offender not to outweigh specific and general deterrence - Sentence of 20 months' imprisonment with 14 month non-parole period manifestly inadequate - Sentence of five years' imprisonment with three year non-parole period substituted.

Criminal law - Road safety offences - Application under s 50(4) of the Road Safety Act 1986 (No 127) - Chief Commissioner's standing in an application - Imposition of alcohol interlock condition - Duration - Road Safety Act 1986 (No 127) s 50AAB(3)

Taxation - Financial institutions duty - Credit providers - Credit contracts - Continuing credit contracts - Taxpayer providing charge card and credit card services - Three separate bilateral contracts - Contract between card company and participating merchant - Contract between card company and cardholder - Contract between cardholder and merchant - "Provision of credit" - "Deferring the obligation" - "Repayment" - Payment of amount "in accordance with the instructions of" another person - Financial Institutions Duty Act 1982 (No 9850) ss 3(1) 18(1) 18(3)

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)

Criminal law - Road safety offences - Furnishing of sample of breath for analysis the result indicating more than the prescribed blood alcohol level - Defence that breath analysing instrument not in proper working order or properly operated - Admissibility of expert evidence in support of defence - Road Safety Act 1986 (No 127) s 49(1)(f) 49(4) 49(6)

Criminal law - Aggravated burglary - Entering part of a building as trespasser with intent to commit assault to a person - Whether limited or unlimited authority to enter - Whether accused knew or reckless as to whether authority exceeded - Whether entry with an illegal purpose or intention vitiates permission - Failure of judge adequately to relate evidence to issues.

Criminal law - Sexual offences against children - Evidence - Cross-examination by prosecutor as to motives of other witnesses - Propensity evidence - Confession - Need to direct jury that words alleged to have been used were intended as an admission - Criminal procedure - Joinder of counts - Circumstances in which presentment should be severed - Similar fact evidence - Crimes Act 1958 (No 6231) ss 372(3AA) 372(3AB) 398A

Criminal law - Sentencing - Appeal by Director of Public Prosecutions - Incest - Possession of child pornography - Total effective sentence of seven years' imprisonment with non-parole period of five years set aside - Double jeopardy - Total effective sentence of nine years' imprisonment with non-parole period of seven years substituted.

Criminal law - Obtaining property by deception - Obtaining a financial advantage by deception - Meaning of "dishonestly" - Duty of judge in charging jury - Failure to relate facts and issues raised to charges - Sentence - Imposition of aggregate sentence in error - Whether judge functus officio - Crimes Act 1958 (No 6231) ss 81(1) 82(1) - Sentencing Act 1991 (No 49) s 104A.

Criminal law - Recklessly causing serious injury - Self-defence - Defence of another - Charge to jury - Conventional test qualified by reference to proportionality - Whether balance of test changed - Evidence of earlier fight admissible - Crimes Act 1958 (No 6231) s 398A

Practice and procedure - Appeal - Court of Appeal - Leave - Accident compensation - Transport accident - Serious injury - Application for leave to bring common law proceedings for damages - County Court judge refusing leave - Whether order refusing leave final or interlocutory - Leave to appeal required - Court's practice to give only general reasons for refusing leave to appeal - Order not attended by sufficient doubt to warrant grant of leave - Transport Accident Act 1986 (No 111) s 93(4)(d) - County Court Act 1958 (No 6230) s 74(2D) - Supreme Court Act 1986 (No 127) s 17A(4)(d)

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.

Carriers - Liability - Civil aviation - Joy-flight - Glider - Passenger - Personal injuries - Claim for damages for negligence - Commonwealth statutory scheme of no-fault liability - Intrastate flight - Enactment of complementary State legislation - Whether State legislation applicable to claim - If applicable, claim barred by two-year limitation period - Flight commencing and ending at same Victorian airstrip - Whether carriage "between a place in Victoria and another place in Victoria" - Whether glider an "aircraft" - Ascertainment of legislative purpose - Application of international treaty to domestic aviation - Limited legislative competence of Commonwealth Parliament - Civil Aviation (Carriers' Liability) Act 1961 (No 6808) s 4 - Civil Aviation (Carriers' Liability) Act 1959 (Cth) s 27(1)(c)

Criminal law - Sentencing - Crown appeal - Rape - Armed robbery - Aggravated burglary - Total effective sentence of nine years with non-parole period of seven years increased to eleven years with non-parole period of nine years - Crimes Act 1958 (No 6231) s 567A

Practice and procedure - Defendant - Legal representation - Accident compensation - Transport accident - Transport Accident Commission - Motor cycle hitting roadway - Action for damages for bodily injury by person claiming to be pillion passenger - Commission conducting defence of action in defendant's name - Pleading filed admitting defendant was the rider - Conflict of instructions between defendant and commission - Hospital records indicating that plaintiff was the rider - Trial - Defence amended to deny defendant was rider and allege plaintiff was rider - Trial judge ruling that jury would be confused were counsel to announce appearance for named defendant and not for commission - Whether commission entitled to pursue own interests contrary to defendant's instructions - Counsel announcing appearance for commission - Whether permissible - Defendant not called - Rule in Jones v Dunkel - Explanation of failure to call witness - Hostile witness - Whether adverse inference to be drawn - Whether jury's finding of no negligence open on the evidence.

Criminal law - Application for prohibition of publication of material - Inherent power of court to secure a fair trial - Consideration of the relevant principles - Application for prohibition refused.

Criminal law - Trial - Arson causing death - Trial ordered in district in which offence alleged to have occurred - Prejudice - Fair trial - Application for change of venue - Discretion - Evidence - Logistical difficulties of witnesses - Vacating trial date - Crimes Act 1958 (No 6231) s 359

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)

Companies - Directors - Insolvent trading - Directors' liability for debts - Directors' duty to prevent insolvent trading - Requisite state of directors' awareness - Liability not dependent on a showing that a particular debt was to be incurred - Discharge of directors' duty - Liability not dependent on a showing that taking a specific step would have prevented particular debt being incurred - Defences - Taking all reasonable steps to prevent debt being incurred - Corporations Law ss 588G 588H

Companies - Directors - Insolvent trading - Remedies - Civil penalties - Compensation order - Scope - Jurisdiction not confined to circumstances of liquidation - Assessment - Execution of deed of company arrangement no bar to making compensation order - Order prohibiting person being involved in management of a corporation - Relevant principles for exercise of discretion - Pecuniary penalty - Discretion to excuse contraventions - Corporations Law ss 588G 588J 1317DA 1317EA 1317JA

Practice and procedure - Procedural fairness - Civil penalty proceeding - Companies - Directors - Unrepresented director - Whether denial of fair trial - Whether power to stay proceeding - Principle in Dietrich v R(1992) 177 CLR 292inapplicable to proceeding.

Stamp duty - Declaration of trust - Assessment - Characterisation - Declaration by registered proprietor of real estate held as trustee - Trust deed empowering trustee to set aside whole or any part of trust fund for any one or more described beneficiaries - Declaration subjecting part of trust fund to different trusts - Whether person declaring trust must have beneficial interest in the subject of the declaration - Power of appointment - Whether power of appointment an independent method of creating trust or one means by which declaration of trust may be made - "Where ... real property becomes subject to a trust for another by reason of a declaration of trust" - Stamps Act 1958 (No 6375) s 64A(3)

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

Criminal law - Murder - Provocation - Ordinary person test - Gravity of provocation - Ethnicity - Self-induced provocation - Whether issue to be left to jury.

Stamp duty - Assessment - Insurance - Life policies - Whole of life - Endowment - Term - Investment - Superannuation - General insurance - Different dutiability regimes - General insurance business subject to duty on ongoing premiums - Life insurance policies subject to single imposition of ad valorem duty - Life policies combined with optional benefits - Whether separate and distinct matters - Whether optional benefits were insurance - Whether optional benefits dutiable separately as general insurance business - Whether optional benefits dutiable as separate policies of life insurance - Disaggregation and apportionment of premiums to or among different types of insurance - Characterisation of optional benefits - Waiver of premium benefit not independently available - Sickness and accident benefit payable upon survival of insured for stipulated period - Benefit conferring option to effect further life policy - Benefit ancillary to life policy - "Top-up" payment benefit - Whether benefit correctly assessed as payment of a premium - "Assurance or insurance business" - "Cover" - Stamps Act 1958 (No 6375) ss 22 95 97 110A 111A Third Schedule, Heading XIA

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

Companies - Receivers and managers - Liability for company debts - Manufacturing business - Purchase of electricity - Company's pre-existing agreement with electricity retailer - Interpretation - Nature of company's obligation - Receiver instructing electricity retailer to continue supply - Pre-existing supply agreement not thereby terminated - Whether electricity supply debt arose by continued operation of agreement or by receiver's decision to use electricity to conduct company's business - Whether a debt for goods purchased, services rendered or property used - Corporations Act 2001 (Cth) s 419(1)

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)