Stamp duty - Conveyance or transfer of real property - Exemptions - Transfers of land to special trustee - Unit trust - Land transferred by retiring trustee to new trustee appointed pursuant to agreement for subscription and redemption of units - Whether new trustee "special trustee" - Whether transfer "because of" retirement of trustee or appointment of new trustee - Duties Act 2000 (No 79) s 33(2)

Medical practitioners and services - Medical Practitioners Board - Complaints - Preliminary investigation - Public hospital - Female patient presenting at hospital in acute medical crisis - Termination of pregnancy at 32 weeks - Complaint made by third party - Patient, hospital and treating medical practitioners declining to divulge patient's medical records to board - Search warrant executed at hospital - Hospital applying for return of seized patient records - Claim of public interest immunity - Scope - Categories - Public interest in maintaining privacy of patients' medical records - Immunity only available to protect decision-making at highest government levels - Medical Practice Act 1994 (No 23) - Health Services Act 1988 (No 49) - Health Records Act 2001 (No 2)

Injunction - Interlocutory - Victorian Civil and Administrative Tribunal - Whether injunction prohibitory or mandatory - Test - High degree of assurance or lower risk of injustice - Grant of injunction tantamount to final relief - Serious question to be tried - Balance of convenience - Whether applicant must show higher degree of likelihood of success at trial.

Constitutional law - Crown - Crown in right of Victoria - Whether State of Victoria is Crown in right of Victoria - Interpretation of Legislation Act 1984 (No 10096) s 38 - Constitution Act 1975 (No 8750) ss 54, 55(a), 56(1)

Trusts and trustees - Superannuation fund - Regulated fund - Power of trustee to amend trust deed - Limits on power - Surplus of assets over vested benefits - Power to distribute - Contemplated exercise - Power of court to rule upon propriety - Classes of proposed recipients - Members - Former members - Principal employer - Superannuation Industry (Supervision) Act 1993 (Cth) (No 78) ss 52(2)(c) 62(1) 117(5)(c)(ii)

Criminal law - Incest - Indecent assault - Evidence - Evidence of uncharged acts - Propensity evidence - Relationship evidence - Evidence of acts subsequent in time to acts charged - Direction to jury - Edwards or Zoneff direction not called for - Course of trial following directed acquittals at conclusion of Crown case - Whether evidence in support of counts on which acquittal directed admissible on remaining counts - Whether plea of autrefois acquit available - Whether use of evidence controverts acquittals - Evidence on affirmation - Cross-examination as to failure of accused to take oath - Directions on indecent assault - Failure to summarise addresses by counsel in charge - Verdicts not unsafe and unsatisfactory - Sentence - Crimes Act 1958 (No 6231) s 398A - Evidence Act 1958 (No 6246) s 102

Tort - Malicious prosecution - Absence of reasonable and probable cause - Malice - Standard of proof - Inferences in civil case - Inferences as to defendant's state of mind - Trial judge directing jury by referring to "the only inference reasonably open" and inferences "necessarily following" proven facts - Jury returning verdict for defendant - Inference need only be more probable than not - New trial ordered.

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.

Practice and procedure - Appeal - Order reinstating company's registration - Whether interlocutory or final - Order obtained to enable proceedings to be brought against company - Order not merely ancillary to principal cause - Leave not required - Supreme Court Act 1986 (No 110) s 17A(4) - Corporations Act 2001 (Cth) s 601AH

Corporations - Reinstatement of deregistered company - Conditions precedent - Requirement that reinstatement be just - Whether residual discretion to refuse reinstatement if conditions satisfied - Reinstatement obtained to enable proceedings to be brought against company - Delay - Impaired recollection of witnesses - Corporations Act 2001 (Cth) s 601AH

Criminal law - Practice and procedure - Summary offence - Summons - Validity - Defendant attending on specified date and at specified court - Proceeding neither listed nor called on - Registrar at another court purporting to adjourn proceeding - Summons did not lapse - Registrars' administrative functions - Magistrates' Court Act 1989 (No 51) ss 3 26 28 33 34 41 61 128 131 Sch 2 cll 1 3 4

Discrimination - Religious vilification - Criticism of Islamic beliefs - Seminar presentation by Christian pastor - Publication of related articles in church newsletter and on website - Whether incitement of hatred, serious contempt for or revulsion or severe ridicule of Muslims - Criterion of liability - Tendency to incite or actual incitement - Causal connection - Distinction between hatred of beliefs and hatred of believers - Need to consider effect of impugned conduct on actual audience - "Incite" - "On the ground of religious belief" - Racial and Religious Tolerance Act 2001 (No 47) ss 8, 9, 11, 136.

Judgments, orders and declarations - Victorian Civil and Administrative Tribunal - Religious vilification - Complaint upheld - Power to order publication of corrective notice - Equal Opportunity Act 1995 (No 42) s 136(a)(iii).

Constitutional law - Implied freedoms - Communications about government and political matters - State legislation proscribing religious vilification - Whether capable of burdening implied freedom - Whether reasonably appropriate and adapted to serve legitimate end - Racial and Religious Tolerance Act 2001 (No 47) s 8.

Criminal law - Confiscation of property - Provision of legal assistance - Victoria Legal Aid (VLA) - Order that VLA provide assistance - Validity - Conditions - Assistance secured by charge over land already subject to restraining order under confiscation legislation - Restraining order operating in rem - Prohibition on dealing with restrained land - Whether VLA able to take charge over real property while it remained subject to restraint - Whether charge can be given or taken over other property while same remains subject to restraint - Confiscation Act 1997 (No 108) ss 14 143 - Legal Aid Act 1978 (No 9245) ss 27 47A 47B

Sale of land - Proposed plan of subdivision - Contract for sale of residential apartment "off-the-plan" - Contract providing for vendor to enter into contract with builder for construction of apartment - Whether contract "major domestic building contract" - Whether vendor arranged or managed carrying out of domestic building work - Domestic Building Contracts Act 1995 (No 91) ss 3, 5, 42 - Building Act 1993 (No 126) s 137H

Contract - Interpretation - Supply of beverage containers - Supplier granted provisional right of exclusivity - Customer required to purchase all its requirements for defined categories of products - Exclusivity subject to customer's right to accept "bona fide arm's length" third party offer not matched by supplier - Customer accepting and later repudiating third party offer - Customer instigating replacement third party transaction - Customer and third party sharing common interest in minimising damages due to customer's repudiation - Whether third party offer for "products substantially the same as or substitutable for" them - Whether third party offer made in good faith - Whether third party offer made at arm's length.

Criminal law - Sentencing - Obtaining property by deception, attempting to obtain property by deception and possession of amphetamine - Application for leave to appeal against sentence - Test to be applied where application heard by single judge of appeal - Crimes Act 1958 (No 6231) ss 567(d) 568(4) 582

Criminal law - Confiscation of property - Tainted property - Forfeiture - Exclusion order - Entitlement - Reasonable suspicion test - Reasonable person in applicant's circumstances - Husband and wife - Matrimonial home used for drug trafficking - Husband's transfer of half-interest to wife - Consideration expressed to be "natural love and affection" - Wife obtaining exclusion order - "Sufficient consideration" - Exclusion order not limited to applicant's interest in property but extends to entire subject property - Confiscation Act 1997 (No 108) ss 16, 51, 52(1), 142

Practice and procedure - Appeal - Confiscation of property - Forfeiture - Exclusion order - Director of Public Prosecutions not precluded from appealing - Confiscation Act 1997 (No 108) ss 52(1), 142 - County Court Act 1958 (No 6230)

Statutes interpretation - Extrinsic materials - Minister's explanatory memorandum - Clash between unambiguous statutory meaning and explanatory memorandum - Statute prevailing - Confiscation Act 1997 (No 108) ss 16, 51, 52(1), 142

Insurance - Medical benefits policy - Construction - Insured event - "Heart attack" - Policy definition requiring diagnosis based on ECG changes and cardiac enzyme abnormalities - Absence of evidence of ECG changes - Insurer reserving discretion to consider other diagnostic tests - Insured not seeking to invoke insurer's discretion - Claim rejected - Whether policy definition satisfied.

Practice and procedure - Appeal - Notice of appeal - Grounds - Amendment - Proposed additional ground raising point not pleaded or agitated at trial - Likely prejudice - Leave to amend refused.

Criminal law - Drug offences - Cultivation of not less than commercial quantity of cannabis L - Accused denying intention to cultivate commercial quantity - Directions - Wilful blindness - Drugs, Poisons and Controlled Substances Act 1981 (No 9719) ss 72A, 72B

Criminal law - Compensation - Order following conviction - Court precluded from hearing and determining application unless case not straightforward - Discretion - Offence need not be sole cause of injury - "Direct result of offence" - Sentencing Act 1991 (No 49) s 85B

Confidential information - Unauthorised disclosure - Defences - Whether confidential character lost - Whether information had passed into public domain - Allegations of illegal drug-taking by professional footballers - Australian Football League - Official drug-testing policy - Contractual confidentiality of identity of infringing players - Unauthorised mass media dissemination of information supposedly identifying players - Anonymous speculative gossip on internet - Iniquity rule - Revelation of alleged criminal conduct - Public interest - Alleged reprehensible drug-taking.

Injunction - Terms - Width - Confidential information - Threatened unauthorised publication - Whether declaration should be made - Whether permanent injunction should issue - Specification of protected confidential information.

Limitation of actions - Time for commencing proceeding - Extension - Negligence - Antenatal medical care - Ultrasound investigation - Hospital's alleged failure to act on detection of foetal abnormality - Continued pregnancy and childbirth - Child born with severe disabilities - Action by parents - Mother's lost opportunity of abortion - Pain and suffering - Economic loss - "Fault" - "Personal injury" - "Relate" - Limitation of Actions Act 1958 (No 6295) ss 3, 23A, 27B, 27D, 27F, 27L

Negligence - Damages - Recoverability - Continued pregnancy and childbirth - Child born with severe disabilities - Action by parents - Mother's lost opportunity of abortion - Pain and suffering - Economic loss.

Tort - Negligence - Personal injury - Motor vehicle - Driver releasing motor vehicle radiator cap - Burns caused to driver's companion by escape of radiator water - Not transport accident for purposes of statutory compensation scheme - Injuries not directly caused by driving of motor vehicle - Injury arising out of use of a motor vehicle - Transport Accident Commission - Indemnity - Whether commission liable to indemnify defendant - Whether liability excluded by 2002 and 2003 insurance reform legislation - "Claim" - "Award" - Transport Accident Act 1986 (No 111) ss 93, 94 - Wrongs Act 1958 (No 6420) ss 28C, 28LC, 28LE, 28LF - County Court Act 1958 (No 6230) s 76.

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

Criminal law - Sentencing - Procedure - Victim impact statements - Admissibility - Absence of statutory criteria - Inaccurate or inappropriately prejudicial material - Counsel's obligations - Sentencing Act 1991 (No 49) ss 95B, 95D

Criminal law - Sentencing - Appeal - Totality - Offence committed by parolee - Victorian offence - Totality principle applicable where parole revoked but not where Parole Board had not yet acted - Sentencing Act 1991 (No 49) ss 5(2AA), 16(3B)

Criminal law - Sentencing - Appeal - Totality - Offence committed by parolee - Commonwealth offence - Parole revoked by operation of law - Totality principle applicable - Sentencing Act 1991 (No 49) ss 5(2AA), 16(3B) - Crimes Act 1914 (Cth) s 19AQ(1)

Legal practitioners - Barrister - Alleged misconduct - Disciplinary proceedings - Victorian Civil and Administrative Tribunal - Recognised professional association (RPA) - Tribunal empowered to find lesser charge of unsatisfactory conduct proved - Multiple charges of misconduct not established - One outstanding charge - RPA intending to amend to charge of unsatisfactory conduct - Amendment refused - Tribunal ruling that it lacked power to stay proceeding permanently - RPA conceding that misconduct charge bound to fail - Abuse of process - Manifest oppression and injustice - Proceeding serving no useful purpose - Proceeding permanently stayed - Legal Practice Act 1996 (No 35) ss 137, 151, 159, 160, 161 - Victorian Bar Rules of Conduct rr 31, 35, 38, 42

Criminal law and procedure - Trial - Fair trial - Effective assistance of counsel - Open court - Jury - Secrecy - Jury questions - No impermissible imparting of jury deliberations - Trial judge answering questions and declining counsel's request for access to text of questions - Trial judge obliged to inform parties of precise terms of jury's questions - Substantial miscarriage of justice - New trial ordered.

Real property - Torrens system - Strata subdivision - Implied easements - Easement of support - Unit owner's application for declaration - Proposed extension to unit intruding into common property - Whether implied easement "necessary for the reasonable use and enjoyment of the lot" - Whether implied easement consistent with "reasonable use and enjoyment of other lots and common property" - Rule in Wheeldon v Burrows (1879) 12 Ch D 31 - Form of declaration - Subdivision Act 1988 (No 53) s 12

Criminal law - Murder - Causation - Victims pursued part of way to river - Victims escape and drown in river - Whether conduct of accused caused deaths - Intervening acts.

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

Criminal law - Common assault - Rape - Evidence - Crown case partly circumstantial - Jury - Inferential reasoning - Not necessary to give Hodge direction - Rule in Browne v Dunn - Failure to ask questions of complainant in cross-examination - Appropriate direction - Trial judge not entitled to withdraw issue from jury - Similar fact evidence - Innocent infection - Directions.

Criminal law - Sentencing - Co-offenders - Husband and wife - Parity - Intentionally causing serious injury - Common law kidnapping - Reckless conduct endangering life - Newborn baby snatched from mother in public place - "Motherhood" motivation - Baby abandoned in derelict house - Unjustifiable disparity - Significance of availability of less punitive statutory kidnapping offence - Crimes Act 1958 (No 6231) ss 63 63A 320

Criminal law - Practice and procedure - Appeal - Competence - Contempt of court - Criminal contempt - Contempt in face of court - Murder trial - Witness former de facto wife of murder victim - Refusal to answer prosecutor's questions - Witness asserting feared for safety - Trial judge referring matter to another judge - Contempt prosecution by Director of Public Prosecutions - Directions given for filing of initiating process - Summary conviction - No further penalty imposed - Director purporting to appeal against penalty - Common law presumption against all Crown appeals - Absence of express statutory conferral of right of appeal - Appeal incompetent - Supreme Court Act 1986 (No 110) s 17(2) - Public Prosecutions Act 1994 (No 43) s 22 - Supreme Court Rules Ch I O 75

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.

Criminal law - Practice and procedure - Trial - Fair trial - Bias - Apprehended bias - Sexual offences against children - Juries - Juror displaying emotional distress during prosecutor's closing address - Juror's distress attributable to experience as victim of sexual assault - Whether reasonable apprehension of bias - Discharge of juror - Whether remainder of jury should have been discharged as being tainted by discharged juror's apprehended bias - Whether trial judge's inquiry of jury through foreman appropriate - Juries Act 2000 (No 53) ss 43(a), 44(1)

Criminal law - Sexual offences against children - Evidence - Cross-admissibility of evidence of uncharged acts in relation to complainants - Collateral evidence rule.