Criminal law - Contempt of statutory tribunal - Limited sentencing powers of a tribunal for contempt - No power to impose a suspended sentence - Error in the imposition of a self-executing order resulting in imprisonment - Double jeopardy and sentence - Victorian Civil and Administrative Tribunal Act 1998 (No 53) ss 130 137(5) 138 - Sentencing Act 1991 (No 49) ss 27 29 31

Criminal law - Jury deliberating on a Sunday - Supreme Court Act 1986 (No 110) s 7

Criminal law - Being knowingly concerned in importation of heroin - Extradition - What persons may be surrendered and for what offences - Principle of speciality - Abuse of process - Double jeopardy - Voice identification - Sentence - Customs Act 1901 (Cth) s 233B(1)(b) 233B(1)(d) - Extradition Act 1988 (Cth) ss 10 42 - Crimes Act 1958 (No 6231) s 568(2).

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.

Criminal law - Sentencing - Possession of unregistered firearm by prohibited person - Appeal by Director of Public Prosecutions - Firearms Act 1996 (No 66) s 5(1A) - Sentencing Act 1991 (No 49) s 5(2).

Criminal law - Procedure - Empanelment of jury - Erroneous statement by associate and trial judge to accused that only one peremptory challenge remained - Error not corrected until after the next juror was selected - Juries Act 2000 (No 53) s 39(1)(a) - Crimes Act 1958 (No 6231) s 569

Companies - Statutory demand - Service - Statute requiring delivery of "copy" - Service of original constituted good service - Corporations Act 2001 (Cth) s 109X(1)(b)

Statutes - Interpretation - Construction productive of manifestly absurd or inexplicable result.

Criminal law - Murder - Standard of proof - Direction to jury - Inquiry by jury regarding definition of reasonable doubt - Response by judge insufficient - Crimes Act 1958 (No 6231) s 568(1).

Criminal law - Suborning perjury - Accused found guilty by jury though acquitted of armed robbery - Allegation that accused sought to threaten and persuade other armed robber to give false evidence of non-participation by accused - Verdicts inconsistent.

Criminal law - Sexual offences - Evidence - Cross-examination of accused as to motive of complainant to lie - Invitation to accused to comment on truthfulness of complainant - Incorrect categorisation of defence case, by prosecutor, as alleging complainant telling lies - Verdicts of acquittal not inconsistent with verdicts of guilty.

Criminal law - Procedure - Petition for mercy - Case referred to Court of Appeal by Attorney-General - Indecent act in presence of child under 16, indecent assault, incest and attempted incest - Fresh evidence - Complainant making statutory declaration recanting her evidence, but later recanting statutory declaration - Crimes Act 1958 (No 6231) s 584

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.

Criminal law - Appeal by Director of Public Prosecutions pursuant to s 18A of the Bail Act 1977 against decision of magistrate - Exceptional circumstances pursuant to s 4(2)(aa) of the Bail Act - Appeal dismissed.

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.

Real property - Restrictive covenant - Discharge or modification - When court's discretion enlivened - Robust approach to interpretation of statute preferred to traditional narrow approach - Whether covenant "ought to be deemed obsolete" - Functionally and visually separate land not part of "neighbourhood" - Whether covenant impeded reasonable user of land without securing practical benefits - Whether modification would cause substantial injury - Loss - Desirability of specific development plans to show no substantial injury caused by modification of covenant - Property Law Act 1958 (No 6344) s 84(1).

Statutes - Interpretation - Legislation permitting court to discharge or modify covenant restricting land use - Ordinary grammatical meaning - Casting provision in simplified form as an aid to construction - Preferable to interpret statute than to interpret earlier judicial decisions - Property Law Act 1958 (No 6344) s 84(1).

Criminal law - Culpable driving - Directions relating to causation for offence of culpable driving - Applicability of concept of consciousness of guilt to culpable driving.

Costs - Photocopying charges - Workers compensation claim - Hospital records - Court books - Taxing officer's discretion as to quantum reviewable - Multiple copies made by plaintiff's solicitor - Whether costs necessarily or properly incurred - Discretion - Formulaic application of scale rate - Cost of third and subsequent copies of court books allowed at lower commercial rate - County Court Rules rr 34A.29 63A.29

Practice and procedure - Appeal - Leave to appeal - Interlocutory orders - Costs - Appeal on question of law under Accident Compensation Act 1985 - Leave not required - Accident Compensation Act 1985 (No 10191) s 52 - County Court Act 1958 (No 6230) s 74

County Court - Jurisdiction - Service - Service out of the jurisdiction - Claim for damages for breach of contract - Whether contract made in Victoria - Offer and acceptance - Acceptance by instantaneous communication - Whether acceptance received in Victoria - Out-of-Victoria service endorsement omitted from writ - Whether writ a nullity or only affected by irregularity - Rules conferring general power of dispensation - Whether judge in error in refusing to stay or strike out action - County Court Rules Ch 1 rr 2.01 2.04 7.01(1) 7.02(1)

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)

Insurance - Professional indemnity policy - Construction - Real estate agent - Negligent failure to ensure premises safe for tenant - Tenant's personal injuries damages claim against owner and agent settled - Agent's third party claim against its professional indemnity insurer - Policy covering "breach of a professional duty" - Not limited to provision of services of a skilful character according to an established discipline - Residential property management services covered - Indemnity not limited to claims brought by agent's client - Agent entitled to indemnity.

Criminal law - Drug offences - Trafficking - Trafficking in not less than a large commercial quantity - Trafficking in not less than a commercial quantity - Mens rea - Knowledge of nature and quantity of substance required - Sufficient for Crown to prove knowledge of a significant or real chance that nature and quantity of substance were as proscribed - Directions to be given to jury - Drugs, Poisons and Controlled Substances Act 1981 (No 9719) ss 71 71AA

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

Landlord and tenant - Retail tenancies - Option to renew - Tenant's purported exercise - Tenant simultaneously in default under lease - Landlord re-entering premises in purported reliance upon expiry of lease by effluxion of time - Landlord failing to give tenant statutory notice or notice under lease - Tenant declining landlord's offer to re-enter premises on an overholding basis pending statutory arbitration - Tenant's claim for damages - Whether leasehold estate independently determined by landlord's acceptance of tenant's common law contractual repudiation - Property Law Act 1958 (No 6344) s 146 - Retail Tenancies Act 1986 (No 106) s 14.

International law - Foreign State immunity - Immunity from jurisdiction of Australian courts - Exceptions - Proceeding concerning a commercial transaction - Proceeding to recover possession of mortgage security - Claim by security trustee of foreign State against agency of another foreign State - Defence that obligations alleged by plaintiffs unenforceable because of alleged agreement between two States - Alleged agreement touching on diplomatic, governmental, intelligence and national security matters - Characterisation of agreement - Third party proceeding against first foreign State - Immunity not lost - Third party notice set aside - "Commercial, trading, business, professional or industrial or like transaction" - Foreign States Immunities Act 1985 (Cth) ss 9 11

Practice and procedure - Defendants not entitled to stay of principal proceeding.

Stamp duty - Conveyance or transfer of real property - Estate in fee simple - Assessment - Dutiable value - Hypothetical selling value - Land containing petroleum terminal storage tanks and associated facilities - Land leased - Removable tenant's fixtures - Affixed chattels - Equitable rights to detach and remove fixtures - Rights assigned to third party - Exceptions or reservations from estate - Proprietary interest - Whether fixtures to be taken into account in assessing land value - Stamps Act 1958 (No 6375) s 63(3)(b) Heading VI, Sch 3 - Landlord and Tenant Act 1958 (No 6285) s 28(2)

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)

Criminal law - Murder - Evidence - Consciousness of guilt - Lies told by accused equally consistent with murder and manslaughter - Lies of no probative effect with respect to particular offence - Directions to jury - Acting in concert - Co-accused found guilty of manslaughter - Verdicts not inconsistent.

Costs - Appeal - Corporations - Shares - Compulsory acquisition by 90% holder - Objection by minority shareholder - Statute requiring 90% holder to bear objector's costs of proceeding - Court approving acquisition - Unsuccessful appeal by minority shareholder - Objector's costs entitlement inapplicable to appeal - Corporations Act 2001 (Cth) s 664F(4).

Precedent - Appellate courts - Commonwealth legislation - Interpretation - Desirabilty of uniformity of decisions in absence of manifest error.

Criminal law - Sexual offences against children - Two separate trials - Evidence - Propensity evidence - Propensity warning omitted in relation to evidence of uncharged acts - Observation by judge, in relation to previous acquittal, that finding of not guilty not finding of innocence - Question asked of witness whether another witness lying - Aggregation of defects or errors, none of which on its own would justify new trial, caused first trial to miscarry - Convictions on first trial quashed and new trial ordered - Direction regarding innocent infection on second trial - No miscarriage of second trial - Sentence - Sentence imposed following second trial offended principle of totality - Crimes Act 1958 (No 6231) s 568(1).

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.

Town and country planning - Planning authority - Planning scheme - Amendment - Public notification - Minister - Powers - Self-exemption from notification requirements - Site-specific controls - Owner's dissatisfaction with adverse planning decisions - Owner seeking ministerial scheme amendment - Minister approving amendment after exercising power of self-exemption - Public announcement at odds with minister's decision - Whether decision unreasonable - Ascertainment of main purpose of amendment - Consideration of documents explaining minister's decision - Whether self-exemption affected by irrelevant considerations or improper purposes - Private economic consideration also amounting to public economic consideration - Procedural fairness - Minister not bound to consult affected parties before exercising self-exemption power - Scheme amendment drafted by owner and settled by departmental official - Whether minister "prepared" amendment - Whether minister had regard to prescribed statutory considerations - Planning and Environment Act 1987 (No 45) ss 3 4 7 12 17 18 19 20 21 39

Medical practitioners and services - Artificial human reproduction - Intracytoplasmic sperm injection - Accidental death of man - Widow's application for order authorising removal of spermatozoa and associated tissue from late husband's body - Urgency - Jurisdiction of Supreme Court - Preservation of subject matter of litigation - Limited removal and storage order made - No use of sperm without further order - Wife later seeking to use sperm to become pregnant - Legislative prohibition on formation of embryo from sperm of man known to be dead - Partial repeal of prohibition - Effect of repeal - Whether implied prohibition - Whether removal of sperm otherwise prohibited by law - Consent requirement - Lack of deceased man's consent - Whether urgent removal order ought to have been made - Whether common law permitted removal - Effect of urgent order - Utility of orders sought by widow - Discretion - "Inseminate" - Infertility Treatment Act 1995 (No 63) ss 3, 6, 8, 12, 20, 21, 36, 43 - "Any other act authorised by law" - "Medical procedure" - Human Tissue Act 1982 (No 9860) ss 25 26 27 44 - Constitution Act 1975 (No 8750) s 85

Courts and judges - Supreme Court - Jurisdiction - Parens patriae - Jurisdiction not exercisable in respect of body of deceased person.

Equity - Fiduciary duty - Breach - Joint venture agreement - Profit-sharing - Acquisition of golf course for leasing and resale - Project consultants subsequently admitted as joint venturers - Disputes between original and added joint venturers - Agreement terminated - Whether repudiation by original joint venturers or voluntary departure by added joint venturers - Whether conduct of original joint venturers a departure from what agreement contemplated - Continuing fiduciary duty - Use of commercially valuable information to form new joint venture - Departing joint venturers seizing commercial advantage secretly - Remedies - Account of profits unwarranted - Plaintiffs' delay - Equitable compensation - Measure - Defendants entitled to share of profit.

Real property - Caveat - Caveator seeking to protect alleged constructive trust - Caveator lacking caveatable interest - Whether caveat lodged "without reasonable cause" - Transfer of Land Act 1958 (No 6399) s 118

Criminal law - Murder - Reckless murder - Jury to be instructed as to distinction between inadvertent and advertent negligence - Evidence - Consciousness of guilt.

Criminal law - Incest - Act of penetration must be committed intentionally - Verdict unsafe and unsatisfactory - Insufficient evidence to establish guilt beyond reasonable doubt - Need for judge adequately to relate evidence to the law with respect to the issue of penetration - Evidence - Improper re-examination as to prior evidence given at committal - Evidence of complaint - Verdict for lesser offence not substituted - Crimes Act 1958 (No 6231) ss 44 568(1)

Criminal law - Dealing in property reasonably suspected of being stolen - Prosecution not required to prove beyond reasonable doubt that relevant property in fact proceeds of crime - Sentence - Whether exceptional circumstances existed so just not to restore suspended sentences - Whether charges of breach of suspended sentences should be remitted - Crimes Act 1958 (No 6231) ss 193 194 195 196 - Magistrates' Court Act 1989 (No 51) s 92(7) - Sentencing Act 1991 (No 49) s 31(5A)

Criminal law - Murder - Evidence - Propensity evidence - Similar fact evidence - Body of deceased mutilated - Murder and similar mutilation of another woman 18 months after offence alleged - Whether evidence of later murder and mutilation admissible - Whether just to admit - Probative value - Prejudicial effect - Balancing exercise - Whether discretion to reject available - Causation - Directions to jury - No miscarriage of justice - Crimes Act 1958 (No 6231) s 398A

Practice and procedure - Writ - Validity - Renewal -- Discretion -- Criteria - Plaintiff obliged to show good reason - Ex parte application - Duty of utmost good faith to disclose material facts - Extension granted by master - Action proceeding - Defendant later applying to set aside master's order - Plaintiff choosing not to serve writ to secure collateral litigious purpose - Plaintiff involved in pre-existing construction engineering dispute - Plaintiff party to pending arbitration - Plaintiff retaining expert witness for arbitration - Plaintiff bringing action against expert's company - Master's order set aside - Appeal - Whether plaintiff failed to disclose material facts to master - Whether judge's discretion miscarried in attributing "double dealing" to plaintiff - Supreme Court Rules Ch I rr 5.12 46.08

Constitutional law - Commonwealth and State laws - Inconsistency - Direct inconsistency - Co-operative Commonwealth-State legislative scheme - Commonwealth and State legislative provisions intended to avoid inconsistent operation of Commonwealth and State laws - State law providing for confiscation of proceeds of criminal activity - Power to declare that property of another available to satisfy confiscation order - Application re property of company in liquidation - Commonwealth law relating to manner and priority of distribution of property of company in liquidation - Whether laws directly inconsistent - Whether State law prevailed by operation of specific provisions of Commonwealth law - Whether State law "provided expressly" that it would have effect "despite" provisions of Commonwealth law - Whether State law could operate concurrently with Commonwealth law - Commonwealth Constitution, s 109 - Corporations Act 2001 (Cth) ss 5E 5F 5G - Confiscation Act 1997 (No 108) ss 70 72 - Corporations (Victoria) Act 1990 (No 80) s 5

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)