Town and country planning - Responsible authority - Powers - Contracts - Enforceability - Authority to enter into agreement under seal - Characterisation of agreement - Ambulatory operation - Fetter on exercise of authority's discretion - Agreement with land developer - Proposed residential subdivision - Developer providing covenants - Provision of road reserves and public open space - Authority purporting to accept provision - Agreement overtaken by 1987 legislative reform - Subsequent application for approval of development plan and subdivision permit in accordance with pre-existing agreement - Changes in authority's planning criteria - Authority refusing applications - Developer contending authority bound by agreement - Town and Country Planning Act 1961 (No 6849) s 52A - Planning and Environment Act 1987 (No 45) ss 180, 206, 207

Practice and procedure - Judicial review - Prerogative writs - Discretion - Victorian Civil and Administrative Tribunal - Availability of separate statutory right of appeal by leave on questions of law - Failure to exercise right - Discretion to refuse prerogative relief - Supreme Court (General Civil Procedure) Rules 1996 r 56 - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 148

Town and country planning - Planning scheme - Responsible authority - Urban growth corridor - Residential subdivision - Infrastructure costs - Development contributions plans - Road construction - Distributor road - Scheme requiring permit to be consistent with plan - Subdivision permit condition requiring road construction - Plan requiring road construction levy - Further permit condition requiring separate contribution to plan - Developer's appeal to Victorian Civil and Administrative Tribunal - Tribunal amending permit condition to allow set-off from levy payable under further condition - Condition obliging applicant to pay levy or agree with collecting agency for payment - Collecting agency's discretion to accept works in lieu of payment - Planning and Environment Act 1987 (No 45) ss 6, 46I, 46J, 46K, 46N, 46P, 46Q, 62(1), 62(5), 62(6)

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).

Conflict of laws - Applicable law - Tort - Law of place of tort - Ascertainment of place of tort - Negligence - Omissions - Personal injury - Asbestos-related disease - Employer and employee - Safe system of work - Duty to warn of workplace risks - Employer and employee situated in New Zealand - Employee exposed to asbestos dust in Belgium and Malaysia - Failure to provide protective clothing and equipment - Plaintiff resident in Victoria at commencement of proceeding - Defendant seeking permanent stay of proceeding - Forum non conveniens - Undesirability of Victorian court pronouncing on foreign legislation - Victoria clearly inappropriate forum.

Practice and procedure - Appeal - Court of Appeal - Leave - Order staying proceeding on ground of forum non conveniens - Leave to appeal required.

Negligence - Legal practitioners - Advocates' immunity - Scope - Public policy - Rationale - Finality of litigation - Out-of-court work - Settlement of proceedings without hearing on merits - Whether permanent stay should have been ordered - Whether triable issue raised.

Negligence - Workplace injury - Occupier's liability - Owner of premises engaging maintenance contractor - Contractor's employee injured - Safe system of work - Employer's non-delegable duty - Breaches of respective duties - Causation - Employee injured by backing into protruding metal hazard - Employee alleging specific origin of hazard - Occupier denying alleged origin of hazard - Alternative hypothesis for origin of hazard emerging during trial - Plaintiff not seeking to amend claim - Trial judge accepting fact of injury, rejecting plaintiff's pleaded origin of hazard and upholding claim on basis of alternative hypothesis - Whether procedural unfairness - Whether impermissible reversal of onus of proof - Apportionment of liability between occupier and employer - Comparative culpability - Whether error in finding of no contributory negligence - Wrongs Act 1958 (No 6420) ss 14B, 23B, 24(2)

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

Legal practitioners - Admission to practise - Fitness for practice - Applicant's duty of disclosure - Nature and extent - Anything which might reflect adversely on applicant's fitness and propriety to be admitted - Non-compliance - Non-disclosure of suspected collusion in preparation of university assignment - Deliberate or reckless misrepresentation to Board of Examiners - Revocation of admission order - Name struck off roll - Legal Practice (Admission) Rules 1999 r 4.03(1)(b) - Legal Profession Act 2004 (No 99) ss 2.3.7, 4.4.39

Criminal law - Murder - Statutory murder - Voluntary and deliberate act - Killing in course or furtherance of violent crime - Manslaughter - Unlawful and dangerous act - Dwelling occupant shot and killed during drug-related aggravated burglary - Whether possibility of accidental discharge of handgun excluded - Whether there should be a directed acquittal or retrial - "An act of violence done in the course or furtherance of a crime the necessary elements of which include violence" - Crimes Act 1958 (No 6231) s 3A.

Motor vehicles - Offences - Elements - Using overweight vehicles on highway - Combination vehicles - Prime mover and trailer - Proof of registration of trailer not necessary to establish offence - Evidence - Admissibility - Discretion to admit unlawfully obtained evidence - Criteria - Private weighbridge tickets provided to prosecution and adduced in evidence - Road Safety (Vehicles) Regulations 1999 rr 105, 106, 417(1)

Human rights - Privacy - Disclosure of information to prosecuting authority - Whether contravention of Commonwealth and State privacy principles - Privacy Act 1988 (Cth) ss 6, 6A, 6C, 16A, Sch 3, National Privacy Principle 2.1 - Information Privacy Act 2000 (No 98) ss 3, 9, 16, Schedule.

Criminal law - Sentencing - Mitigation - Murder - Retrial - Young offender - Sentencing principles - Gravity of crime - Murder of another youth - Effect of immaturity on moral culpability - Offender's changed circumstances in pre-sentence detention - Strong sense of remorse - Good prospects of rehabilitation - Scope for leniency - International human rights - When relevant to exercise of judicial power or discretion - Applicability of the Convention on the Rights of the Child.

Legal practitioners - Costs - Agreement between solicitor and client - Whether conditional costs agreement under which excessive premium payable - Whether contingency fee - Whether client precluded from challenging agreement because of election or estoppel by convention - Whether solicitor could claim on quantum meruit - Legal Practice Act 1996 (No 35) ss 97, 98, 99, 102.

Practice and procedure - Application to re-open case after trial and for leave to amend pleadings - Whether trial judge exercised discretion correctly - Supreme Court (General Civil Procedure) Rules 2005 r 36.01.

Legal practitioners - Costs - Agreement between solicitor and client - Conditional fees - Uplift fees - Whether conditional costs agreement which was an uplift agreement - Whether contingency fee - Entitlement to recover disbursements - Legal Practice Act 1996 (No 35) ss 97, 98, 99, 102.

Criminal law and procedure - Fair trial - Equality before the law - Committal - Hand-up brief - Commonwealth tax evasion charges - Accused's summons to produce - Issued to informant seeking production of unused material - Review of magistrate's ruling - Prosecutor's disclosure obligation - Applicable test - Whether reasonable possibility documents would materially assist defence - Principle of equality of arms - Accused obliged to identify specific legitimate forensic purpose - International Covenant on Civil and Political Rights Arts 14(1) 14(3)(b) - Magistrates' Court Act 1989 (No 51) s 43(2)

Resumption and acquisition of land - Compensation - Loss - Severance - Assessment - Appeal on question of law - What constitutes error of law - Whether judge's assessment of loss attributable to severance open - "Market value of the interest after the acquisition" - Land Acquisition and Compensation Act 1986 (No 121) ss 30, 40, 41

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

Criminal law - Manslaughter - Unlawful and dangerous act - Sado-masochistic sexual activity - Prostitute - Bondage session with prostitute's pimp and client - Prostitute and client playing submissive roles - Consent - Scope - Client agreeing to being restrained by ankles and wrists - Pimp placing gag around client's head and mouth - Client displaying signs of physical distress - Gag not removed - Client unable to dissent or abandon consent - Death of client in presence of pimp - Causation - Application of gag substantial cause of death - Judge not in error in leaving murder and manslaughter to jury - Whether trial judge should have given accomplice warning.

Criminal law - Sentencing - Manslaughter - Provocation - Manslaughter of gravest kind - Maximum penalty for manslaughter increased - Relevance - Sentencing Act 1991 (No 49) s 14(1).

Criminal law - Human rights - Trial - Fair trial - Public order offences - Terrorism-related conduct - Complex charges - Twelve accused - Accused in custody for two years prior to empanelling of jury - Prosecution estimating trial to last up to nine months - Accused incarcerated at maximum security prison 60 km from Supreme Court - Conditions of incarceration - Daily routine - Strip searching - Handcuffing and shackling - Transportation to and from court - Loading and unloading of prison vans - Van conditions - Accused kept in highly secured areas at all times - Effect on accuseds' psychological and physical health - Effect on accuseds' concentration, memory, ability to participate in trial and to instruct counsel - Application for stay of proceedings - Court specifying minimum amelioration of conditions - Conditional stay order made - Custodian ordered to file affidavit deposing as to proposed amelioration - Criminal Code 1995 (Cth) - Evidence Act 1958 (No 6246) Pt IIA - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (No 65).

Criminal law - Sentencing - Drug of dependence - Trafficking - Street level trafficking to satisfy addiction - Moral culpability - Rehabilitation - Parity - Reasons for sentence - Adequacy - Transparency of sentencing process.

Negligence - Duty of care - Breach of contract - Implied terms - Medical practitioner - Breast liposuction procedure - Plaintiff's suitability for procedure - Informed consent - Alleged negligent failure to advise as to surgical risks and results of pre-operative mammogram - Alleged negligent performance of procedure - Participation of second surgeon alluded to during defendant's cross-examination - Plaintiff given leave to amend statement of claim - Plaintiff denied leave to be recalled - Defendants not applying for plaintiff's recall - Defendants' application that trial be aborted only if plaintiff ordered to pay costs thrown away - Trial judge declining to abort trial - Whether judge erred in allowing amendment - Defendants' application at conclusion of evidence that certain issues not be left to jury - Whether judge erred in refusing to redirect jury concerning effect of certain evidence.

Practice and procedure - Pleadings - Amendment - Medical malpractice claim - Plaintiff given leave to amend statement of claim during trial - Relevant considerations - Fairness.

Trust and trustees - Trust property - Trustee's powers - Power of sale - Testamentary trust - Land - Settled land - Testator directing trustee to retain house and permit children and grandchildren to use, occupy and enjoy same free of charge and in remainder for charities - Testator's children dead - Balance of estate insufficient to pay outgoings on land - Surviving grandchildren unable to agree on sale of all or part of land - Parcels of land gradually sold off to meet outgoings - Land likely to be fully sold before death of last grandchild - Trustee seeking power of managed sale - Trustee proposing to create fund to pay outgoings with intent of prolonging ownership of property - Whether absence of power enlivening jurisdiction - Testamentary power of sale - Scope - Trustee's right of indemnity - Statutory expediency test - Whether order limited to immediate shortfall desirable - Surplus income from capital sum representing proceeds of sale - To whom surplus income payable - Whether proposed order as to income consistent with Settled Land Act 1958 - Whether direction to trustee to permit grandchildren to use occupy and enjoy the property carried right to income - Trustee Act 1958 (No 6401) s 63(1) - Settled Land Act 1958 (No 6367) ss 21, 38, 39, 41, 42, 47, 48(d), 73(1), 75(1), 75(5), 75(6), 81, 90, 106

Insurance - Third party liability - Indemnity - Claim arising from collapse of outdoor video screen - Insurer becoming insolvent - Discretionary government assistance scheme - Characterisation - Terms and conditions - Whether contract of insurance or otherwise for indemnification - Whether in respect of liability for event uncertain - Government reserving right to withdraw assistance - Assistance discharging policy holder's liability to third party - Whether in nature of merciful subvention - Policy holder also insured with another solvent insurer - Whether policy holder entitled to claim full indemnity from solvent insurer - Primary or coordinate liability of government scheme - Subrogation of rights of policy holder against solvent insurer - Contribution between scheme and solvent insurer.

Contracts - Construction - Insurance policy - Exclusion - No literal meaning possible - Common sense interpretation - Exclusion for damage before certificate of practical completion - "Practical completion".

Defamation - Libel - Book - Defences - Comment - Rolled-up plea - Comment required to meet sting of pleaded meanings - Whether pleaded substance of comment a permitted variant of plaintiff's meanings - Plaintiff lawyer pleading meanings of criminality and serious professional misconduct - Defendants pleading meanings that plaintiff's conduct revealed serious questions for investigation - Defendants' meanings ranging between non-criminal conduct and criminality - Defence struck out.

Defamation - Practice and procedure - Pleading - Comment - Rolled-up plea - Defendant confined to facts stated in publication - Rationale and status of Aga Khan's case (1924) - Particulars of facts supporting comment - May be ordered in appropriate circumstances - Utility - Book - Both parties relying on entire book - Interest in having issues clearly exposed before trial - Supreme Court Rules Ch I rr 13.07(1)(b), 13.10(1), 13.10(2)(c)

Courts and tribunals - Precedent - English Court of Appeal - Decisions deserving of careful attention.

Criminal law - Elements of offence - Actus reus - Mens rea - Reckless conduct endangering life - Contemplated future acts of accused not to be considered in determining whether offence committed - Risk of death must be appreciable - Foresight of probability of risk required - Crimes Act 1958 (No 6231) s 22.

Criminal law - Procedure - Summary offences - Summons - Service of copy summons on defendant - Need not be true copy of summons issued and filed - Legislative object and purpose - Extrinsic materials - "True copy of the summons" - Magistrates' Court Act 1989 (No 51) ss 30, 34(1)(b)(i).

Criminal law - Sexual offences - Complaint - Delay - Jury warning - Kilby direction - Longman warning - Commencement of proceedings - Crimes Act 1958 (No 6231) ss 61, 607 - Magistrates' Court Act 1989 (No 51) s 26(1) - Crimes (Criminal Trials) Act 1999 (No 35) s 4(4) - Public Prosecutions Act 1994 (No 43) s 22.

Criminal law - Manslaughter - Unlawful and dangerous act - Death of baby - Subdural haemorrhage - Allegation that father had shaken baby on day of death - Father acknowledging shaking baby one week before death - Expert medical evidence - Expert identifying three possible causes of haemorrhage - Verdict contrary to expert evidence - Verdict unsafe and unsatisfactory.

Criminal law - Juries - Use of expert evidence - Verdict - Unanimity - Jury required to be unanimous as to act founding conviction.

Criminal law - Sexual offences - Rape - Indecent assault - Girl under 16 - Alleged offences occurring between 27 and 30 years earlier - Delay in making complaint - Longman warning - Adequacy - Rationale - Verdict not unsafe and unsatisfactory.