Real property - Easements - Implied statutory easement of way - Nature and extent of right - Contiguity to dominant tenement - No indication on title of access or concluding points - Ascertainment of point of entry - Interference - Driveway - Obstruction - Gate - Fence - User - Change - Driveway originally used for access to residence - Dominant tenement later occupied by kindergarten and school - Driveway used for vehicular access to school car park - Reasonable enjoyment - Whether excessive user - Transfer of Land Act 1958 (No 6399) s 98.

Injunction - Mandatory injunction - Interference with easement of way - Order for removal of gate and fence - Order that defendants pay a specified amount in the event of non-compliance - Not a grant of damages in lieu of injunction - Magistrates' Court Act 1989 (No 51) s 100 - Supreme Court Act 1986 (No 110) s 33.

Criminal law - Sentencing - Aggravation - Mitigation - Mental state - Drug-induced psychosis - Motor vehicle offences - Driving on wrong side of highway - Manslaughter - Reckless conduct endangering life - Offender with history of drug-taking - Recurrent admissions to psychiatric intensive care - Offender repeatedly warned to discontinue drug-taking - No underlying psychotic disorder - Whether drug-taking aggravated seriousness of offending - Whether psychosis induced by illegal drug-taking a mitigating factor - Degree of offender's foreknowledge of risk of drug-taking - Sentence manifestly excessive.

Building contracts - Domestic building - Defects - Proprietor and builder - Subcontract - Builder and architectural draftsman - Subsequent purchasers' claim - Victorian Civil and Administrative Tribunal - Appeal - Question of law - Tribunal fact-finding - Amenability to review - Error of law - Probative evidence - Inferences.

Damages - Concurrent wrongdoers - Proportionate liability - Apportionable claim - Wrongs Act 1958 (No 6420) Pt IVAA s 24AI(1).

Negligence - Duty of care - Pure economic loss - Construction of domestic building - Defects - Proprietor and builder - Subcontract - Builder and architectural draftsman - Whether draftsman owed duty of care to original or subsequent proprietor - Relationship - Salient features - Whether duty established or informed by building regulation - Building Regulations 1994 reg 15.2.

Criminal law - Sexual offences - Rape - Directions to jury - Counts left to jury on basis not canvassed by Crown - Accused giving evidence of complainant's alleged motive to lie - Cross-examination of accused as to complainant's motive - Cross-examination beyond proper bounds - Failure to direct on absence of complainant's motive to lie caused unfairness to accused - Conviction set aside - Crimes Act 1958 (No 6231) s 38

Criminal law - Rape - Assault and related offences - Evidence - Cross-examination - Complainant's credit - Complainant's sexual activities - Jury directions - Propensity evidence - Domestic relationship - Prosecution alleging accused was possessive, controlling and violent - Uncharged acts - Standard of proof for relationship evidence - Directions to jury - Evidence Act 1958 (No 6246) ss 37 37A - Crimes Act 1958 (No 6231) s 398A.

Criminal law - Procedure - Road safety offences - Blood alcohol - Driving with an excess concentration - Preliminary breath test - Breath analysis - Non-compliance with requirement to give certificate of reading - Not relevant to offence - Failure to inform driver of right to blood test - Discretion to reject certificate - Production of documents - Legitimate forensic purpose - Test - Whether production would materially assist raising sole statutory defence - Service and maintenance of breath analysing instrument - Road Safety Act 1986 (No 127) ss 49(1)(f) 49(4) 55

Criminal law - Procedure - Framing of counts - Particulars - Sexual offences - Alleged prolonged sexual assaults of daughters - Delay - Counts framed on "between dates" basis - Some counts using description "first occasion" - Sufficiency of identification of conduct - Uncharged acts - Contextual relevance - Longman warning - Adequacy - Standard of proof.

Contract - Building contract - Repudiation - Acceptance - Objective test - Conduct of party - Conduct evincing intention not to perform contract - Inference - Untenable contract interpretation - Unjustifiable breach - Building owner refusing to pay certified progress payment - Owner resorting to retention moneys without notice to builder - Australian Standard General Conditions of Contract AS 2124-1992 cll 5.5 23 35.6 36.5 42.1 42.3

Contract - Enforceability - Loan agreement - Proposed mortgage loan - Loan offer documents requiring borrower to pay fees for lender's preparatory work - Illusory consideration - No enforceable bilateral agreement - Whether unilateral contract.

Real property - Caveat - Mortgage loan offer - Land charged to secure repayment - Offeror reserving right not to advance loan - No enforceable agreement - No caveatable interest.

Criminal law - Investigation - Major crime - Coercive powers order - Revocation - Standing - Summons to witness - Witness entitled to apply for revocation - Major Crime (Investigative Powers) Act 2004 (No 79) ss 5 8 9 12 14.

Evidence - Privilege - Doctor and patient - Medical privilege - Scope - Waiver - Issue waiver - Institution of proceedings against doctor - Whether inconsistent with continuation of privilege - Evidence Act 1958 (No 6246) s 28(2)

Practice and procedure - Discovery and inspection - Medical privilege - Whether waiver by selective discovery - Whether waiver by disclosing records from related institution - No waiver in relation to ongoing treatment records if irrelevant to allegations.

Constitutional law - Governor in Council - Order in council - Validity - Flora and fauna - Protection - Potentially threatening processes - Listing - Nomination - Formal requirements - Whether power to amend - Consideration of nomination by consultative committee - Committee making recommendation to minister - Committee amending description of nominated process - Whether nomination stated a symptom or effect rather than a process - "Process" - Flora and Fauna Guarantee Act 1988 (No 47) Pt 3 - Flora and Fauna Guarantee Regulations 2001 Sch 1

Criminal law - Rape - Evidence - Admissibility - Record of police interview - Whether voluntary - Whether implied threat - Suspect inquiring whether he would be granted bail if he declined to answer questions - Sentence - Non-parole period too long in relation to head sentence.

Criminal law - Rape - Evidence - Complaints - Jury directions - Possible mistaken belief in consent.

Tort - False imprisonment - Elements - Total restraint - Anti-logging protest in state forest - Pro-logging group picketing at protest site - Picketers demanding that protestors leave site on picketers' terms - Police present to prevent breaches of the peace - Forms of egress - Whether reasonable - Criteria - Availability of police assistance - Effect of restraint - Whether plaintiffs' will overborne or they wished to remain.

Tort - Public nuisance - Elements - Obstruction - Public road - Degree of obstruction - Particular damage - Whether suffered - Plaintiffs wishing to remain.

Tort - Damages - Exemplary damages - Assessment - Discretion.

Costs - Discretion - Departure from normal rule that successful party entitled to costs - Plaintiffs unsuccessful on majority of claims - Plaintiffs denied their costs and ordered to pay part of defendants' costs - Whether appropriate - Whether errors established on appeal affected propriety of costs order.

Real property - Torrens system - Mortgage - Priority - Validity - Alteration of mortgage before registration - Whether alteration material - Rule in Pigot's case - Applicability of rule to registered documents - Holder of unregistered mortgagee seeking to restrain registered mortgagee from selling mortgaged property - Indefeasibility of title - Whether respondent precluded from raising new argument on appeal - Supreme Court (General Civil Procedure) Rules 2005 r 64.17(5)

Tort - Trespass - Airspace - Encroachment - Projection from building - Remedies - Prima facie entitlement to mandatory injunction - Equitable damages in lieu of injunction - Discretion - Oppression test - Disproportionate hardship to trespasser - Shelfer guiding rule - Office building - Wall cladding protruding into airspace of adjoining property - Potential interference with plaintiff's ordinary future use of land - Defendant proffering conditional undertakings to remove cladding - Adequacy of undertakings - Defendant failing to establish disproportionate hardship.

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).

Real property - Easements - Statutory implied easement - Strata subdivision - Sixteen-level city apartment building - Common property - Right of way - Body corporate - Statutory obligation to maintain building services - Maintenance workers - Access to roof-top plant and equipment - Pedestrian access via fire escape staircase - Body corporate asserting right of way via lifts and through upper level apartment - Whether easement "necessary for the reasonable use and enjoyment of" lot or common property - Whether easement "consistent with reasonable use and enjoyment of" other lots and common property - Subdivision Act 1988 (No 53) s 12(2)

Practice and procedure - Costs - Security for costs - Threshold jurisdictional question - Company - Plaintiff company trustee of a unit trust - Whether reason to believe company will be unable to pay costs - Low threshold - Whether onus shifts upon defendant satisfying threshold - Discretion - Relevant considerations - Company accounts - Statutory presumption of admissibility - Insurance irrelevant - "Reason to believe" - Corporations Act 2001 (Cth) ss 1305 1335 - Supreme Court (General Civil Procedure) Rules 2005 r 62.02(1)(b).

Practice and procedure - Appeal - Interlocutory appeal - Legislative policy against such appeals - Leave application and substantive appeal heard together by consent - Practice to be followed wherever practicable.

Criminal law - Sexual offences - Evidence - Jury directions - Propensity warning - Uncharged acts - Edwards direction - Longman warning - Warning exclusively concerned with forensic disadvantage to accused.

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

Practice and procedure - Appeal - Leave to appeal - Costs order - Non-acceptance of Calderbank offer - Discretion - Elaborate reasons not ordinarily required.

Practice and procedure - Appeal - Stay of execution of judgment - Solvency of respondent company - Significance of affidavit verifying solvency - Risk of asset-stripping - Exceptional circumstances not shown.

Practice and procedure - Appeal - Time - Extension - Inadvertent late service of notice - Futility - Whether appeal hopeless.

Contract - Formation - Offer and acceptance - Terms of agreement - Indicia of assent - Implied contract - Tender - Tender documents - Acceptance of tender for electrical works in accordance with tender documents - Special condition requiring parties to execute formal instrument confirming agreement - No instrument executed - Works commenced - Parties conducting themselves in accordance with contract documents - Dispute - Reference to arbitration in accordance with contract documents - Whether contract to be implied - When contract made - Estoppel by conduct - Promissory estoppel.

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.

Criminal law - Sentence - Guilty plea - Context of offending - Manslaughter - Unlawful and dangerous act - Related charges - Murder and aggravated burglary - Crown not leading evidence - Directed acquittals on related charges - Whether sentencing judge entitled to have regard to facts concerning related charges - Sentence manifestly excessive.

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

Criminal law - Offences against the person - Stalking - Elements of offence - Photographic surveillance - Requirement of continuity of purpose in relation to victim when stalking by surveillance - Crimes Act 1958 (No 6231) s 21A.

Evidence - Video-audio taped evidence - Availability - Stalking offence - Evidence properly adopted at trial - Similar fact evidence of other photography not admissible - Evidence Act 1958 (No 6246) s 37B.

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.

Courts and judges - Report of court proceedings - Children's Court - Limited statutory prohibition on reports - Child or other party or witness not to be identified - Particulars likely to lead to identification - Test - Newspaper - Live television broadcast - Publication of items about child-party - Publication of photograph and name of child - Publication of photograph of child's mother - Publications not expressly or impliedly referring to court - Mention of outcome of proceeding - "Report of a proceeding" - "Disseminate by telecast" - Children and Young Persons Act 1989 (No 56) s 26

Criminal law - Evidence - Common purpose - Inference - Whether agreement to engage in common purpose of performing acts - Live television broadcast - Producer - Presenter - Children and Young Persons Act 1989 (No 56) s 26

Criminal law - Sentencing - Consistency - Range - When appropriate for Crown prosecutor to make submission - Sentencing judge requesting assistance - Significant risk of error as to applicable range - Submission to reflect position of Crown not prosecutor - Submission to be as to range not particular sentence.

Criminal law - Trial - Bail - Exceptional circumstances - Unacceptable risk of flight - Restrictive bail conditions not removing unacceptable flight risk - Bail Act 1977 (No 9008) ss 4(2)(aa) 4(2)(d) 18A.

Human rights - Charter of Human Rights and Responsibilities - Fair trial - Bail - Delay - Right to be brought to trial without unreasonable delay - Charter not requiring modification of pre-existing approach - Bail Act 1977 (No 9008) - Charter of Human Rights and Responsibilities Act 2006 (No 43) ss 21(5) 25(2).