Trade practices - Consumer protection - Remedies - Cease trading injunctions - Width - Criteria - Product safety standards - Children's toys - Court order restraining supply of goods - Flagrant non-compliance - Further contraventions of statute - Injunction preventing defendant from carrying on whole or part of its business - Nexus between contravening conduct and terms of injunction - No time limit - "Manufactured and designed, labelled or marketed" - Fair Trading Act 1999 (No 16) s 151A - Trade Practices Act 1974 (Cth) s 80

Evidence - Admissibility - Expert evidence - Proof of qualification - Consumer product safety - Supreme Court (General Civil Procedure) Rules 2005 r 44.01

Wills and codicils - Construction - Guiding principles - Ut res magis valet quam pereat - Anomalous gifts - Testator's intention - Ascertainment - Evidence - Ademption - Specific and general legacies - Income on legacies - Applicable interest rate - Wills Act 1997 (No 88) s 34.

Wills and codicils - Validity - Application for probate - Opposition by caveator - Testamentary capacity - Will executed when testator was subject of guardianship order - Will not void - "Dealing" - Guardianship and Administration Act 1986 (No 58) ss 22 50 52(2) - Wills Act 1997 (No 88) Pt 2 Div 3.

Guardianship - Represented person - Rights - Right to make a will - Administrator - Powers - Interpretation - Least restrictive effect on wishes of disabled person - Statutory exclusion of power of administrator to execute a will in name of represented person - Guardianship and Administration Act 1986 (No 58) s 4.

Land tax - Exemption - Land vested in body corporate providing for out-door sporting recreation or cultural purposes or similar out-door activities - Golf course under construction - Legislative purpose - Fulfilment of purpose - Exemption applicable only to current activities - Land Tax Act 1958 (No 6289) s 9(1)(g).

Criminal law - Factories, shops and industrial safety - Failure to take reasonable care for safety of other employees - Ingredients of offence - Fatal workplace accident - Crown not required to prove gross negligence - Failure of judge to fairly summarise the arguments of both counsel - Faure warning not required in respect of fellow employee - Appeal allowed and acquittal directed - Occupational Health and Safety Act 1985 (No 10190) s 25(1)(a) - Crimes Act 1958 (No 6231) s 568

Criminal law - Sentence - Director's appeal - Factories, shops and industrial safety - Failure to provide and maintain a safe working environment - General deterrence - Double jeopardy principle applicable - Delayed hearing of appeal - Occupational Health and Safety Act 1985 (No 10190) s 21

Criminal law - Perjury - Elements of offence - Lawful authority to administer oath and receive evidence - Office of Police Integrity - Director of Police Integrity - Delegate of director - Hearing conducted by delegate - Witness - Answers given on oath - Delegation invalid - Hearing not properly constituted - Evidence Act 1958 (No 6246) ss 110 111 151 - Police Regulation Act 1958 (No 6338) ss 86D 102D 102F.

Practice and procedure - Orders - Reference of questions to special referee for inquiry and report - Report - Adoption by court - Discretion - Principles - Parties' credit - Assessment - Referee's obligations - Reasons - Adequacy - Reference before liability issue determined - Forensic choice - Risk - Supreme Court (General Civil Procedure) Rules 2005 rr 50.01 50.04.

Restitution - Unjust enrichment - Bank - Cheques drawn by customer's employee - Bank's mandate - Notice - Duty to question transactions - Causation - Evidence - Weight - Circumstantial evidence.

Practice and procedure - Fair trial - Permanent stay - Cross-examination - Limitation - Witness invoking privilege against self-incrimination in declining to answer questions - Unsuccessful stay application made early in trial and not renewed.

Practice and procedure - Parties - Person under disability - Litigation guardian - Appointment - Criteria - Self-represented plaintiff with mental illness - Incapable of managing affairs in relation to proceeding - Spouse acting as McKenzie friend - Litigant's threatening, abusive and disobedient behaviour - Judge acting of own motion - Litigant's spouse only person willing to act as litigation guardian - Spouse appointed as litigation guardian - Supreme Court (General Civil Procedure) Rules 2005 r 15.02.

Practice and procedure - General dispensation power - Parties - Person under disability - Appointment of litigation guardian during long trial - Requirement that litigation guardian act through solicitor - Litigant unable to obtain legal representation - Litigation guardian hitherto acting as McKenzie friend - Dispensation granted - Supreme Court (General Civil Procedure) Rules 2005 r 2.04.

Legal practitioners - Duty to court - Preparation and presentation of case - Public interest - Overarching responsibility to assist court in efficient use of limited resources.

Practice and procedure - Appeal - Leave to appeal - Hearing - Constitution of court - President's determination - Applicant objecting to bench of two judges hearing substantive appeal should leave be granted - Supreme Court Act 1986 (No 110) s 11(1A)

Practice and procedure - Appeal - Leave to appeal - Interlocutory costs orders - Strong reasons test for grant of leave.

Practice and procedure - Appeal - Leave to appeal - Notice of appeal - Draft - Amendment - New arguments raised on appeal - Failure to comply with the rule in Browne v Dunn on impugned interlocutory application - Supreme Court (General Civil Procedure) Rules 2005 r 65.07

Criminal law - Procedure - Interlocutory decision - Special leave to appeal - Evidence - Applicability of Evidence Act 2008 - Commencement date - "Proceeding" - "Hearing in the proceeding" - Evidence Act 2008 (No 47) s 65(1) 65(3) - Criminal Procedure Act 2009 (No 7) s 295 - Statute Law Amendment (Evidence Consequential Provisions) Act 2009 (No 69) s 53 Sch 2, cl 2.

Criminal law - Procedure - Evidence - Admissibility - Hearsay - Unavailability of witness - Witness refusing to give evidence - Application to admit evidence given at committal hearing - Notice - Non-compliance - Probative value of evidence - Unfair prejudice to accused - "Not available to give evidence" - Evidence Act 2008 (No 47) ss 65(1) 65(3) 67(1) 67(4) 137 192 Dictionary cl 4(1)(f).

Criminal law - Procedure - Trial according to law - Jury - Integrity of verdict - Constitution of jury - Power to discharge jurors - Discretion - Nature - Public perception - Necessity test - Jury deliberations - Contact between juror and members of accused's family - Contact minor and innocent - Apprehension of bias - Discharge of two jurors - Explanation to remainder of jury inappropriate - Miscarriage of justice - New trial ordered - Juries Act 2000 (No 53) s 43.

Appeal - Leave to appeal - Arguable error below - No substantial injustice - Leave refused.

Human rights - Charter of Human Rights and Responsibilities - Civil proceeding - Fair and public hearing - Party in civil litigation awaiting trial on criminal charges - Common substratum of facts - Privilege against self-incrimination - Referral of Charter question to Supreme Court - Criteria - Charter of Human Rights and Responsibilities Act 2006 (No 43) ss 4 6 24 25 32 33 38.

Practice and procedure - Stay of civil proceeding - Potential criminal charges arising out of common substratum of facts - Discretion - McMahon guidelines.

Contract - Construction - Ambiguity - Surrounding circumstances - Parties' intentions - Objective ascertainment - Milk products distribution agreement - Licence to use supplier's distribution and marketing system - Distributor's territorial exclusivity - Nature and scope of exclusivity - Whether distributor had exclusive right to sell milk in defined territory - Implied term - Benefit of agreement - Business efficacy - Collateral contract.

Contract - Restraint of trade clause - Breach - Exclusive distribution contract - Non-competition covenant - Term of contract and six months thereafter - Applicability to conduct preparatory to commencement of competitive business - Whether binding on director of corporate covenantor.

Guarantee and surety - Discharge of guarantor - Substitution of principal debtor by novations - Creation of new guarantee - Inference - Statute of Frauds.

Administrative law - Judicial review - Procedural fairness - Hearing rule - Applicability - Variable content - Preliminary decision part of broader process - Victorian Civil and Administrative Tribunal - Parties - Joinder - Permissible without notice - Tribunal practice note - Discretionary departure - Reasons - "Interim order" - Victorian Civil and Administrative Tribunal Act 1998 (No 53) ss 60(1) 117.

Appeal - Leave to appeal - Appeal from Trial Division order refusing leave to appeal - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 148 - Supreme Court Act 1986 (No 110) s 17A(4)(b).

Negligence - Occupier's liability - Duty of care - Content - Breach - Risk - Characterisation - Calculus - Magnitude - Obviousness - Hidden danger - Frequency of risk-taking behaviour - Practicability of guarding against risk - Inaction - Whether reasonable response to foreseeable risk - Prospective assessment.

Accident compensation - Workers compensation - Entitlement - Common law damages - Reintroduction for injury suffered on or after 20 October 1999 - Compensable injury - Aggravation of pre-existing condition - Credibility of worker - Appeal - Adequacy of reasons - Accident Compensation Act 1985 (No 10191) ss 5 134AB(1) 134AB(16)(b) 134AB(19)(c) 134AB(38) 134AE - County Court Act 1958 (No 6230) s 74(1) 74(3)

Practice and procedure - Appeal - Fresh evidence - Leave - Workers compensation - Medical report relevant to date injury suffered - Finality of litigation - Application refused.

Appeal - Leave to appeal - Company - Winding-up order - Contributory - Appeal from dismissal of application to terminate or stay order permanently - Defective service of statutory demand - Winding-up order made on notice but in absence of defendant company - Importance of public reliance on company's registered office - Discretionary order - House v R test - Criteria - Solvency - Commercial morality - Public interest - Corporations Act 2001 (Cth) ss 109X 482

Administrative law - Tribunal - Merits review - Procedural fairness - Waiver - Hearing rule - Mental health - Involuntary patient - Treatment order - Continuation - Rehearing - Victorian Civil and Administrative Tribunal - Applicant required to present case and give evidence first - Mental Health Act 1986 (No 59) ss 4 8 29 36 120.

Companies - Civil penalty proceedings - Discovery - Documents obtained by regulatory agency from non-party - Legal professional privilege - Non-party's right to opportunity to assert privilege - Order requiring party to produce discovered documents to non-party - Privilege lost once in possession of another party - Public interest immunity - Australian Securities and Investments Commission Act 2001 (Cth) ss 13 19.

Contract - Commercial arrangement - Whether legally binding - Formation - Inference - Conduct - Objective test - Intention to create legal relations - Absence of good consideration - Parent company's loans to subsidiary - Parent company's letters of comfort and support to subsidiary's auditors - Assurance not to call up loans to detriment of other unsecured creditors - Subsidiary providing parent company with debenture - Subsidiary found liable to unsecured creditor - Parent calling up loans - Subsidiary's action against parent - Letters of comfort and support not legally binding - "Current trading obligations".

Criminal law - Drug offences - Drug of dependence - Trafficking - Possession for sale - Ownership of premises where drugs found - Onus on accused - Proof of lack of knowledge of presence of drugs - Lack of knowledge sole issue at trial - Alternative possession verdict not open - Sentence - "Unless the person satisfies the Court to the contrary" - Drugs, Poisons and Controlled Substances Act 1981 (No 9719) ss 5 73(1) 73(2).

Human rights - Charter of Human Rights - Criminal law - Fair trial - Presumption of innocence - Drug offences - Burden of proof - Statutory reversal of burden - Incompatibility with presumption of innocence - No reasonable justification - Limit on presumption not demonstrably justified - Declaration of inconsistent interpretation - "Possible" - Charter of Human Rights and Responsibilities Act 2006 (No 43) ss 7(2) 25(1) 32(1) 36.

Statutes - Charter of Human Rights - Interpretation - Court not authorised to depart from meaning intended by Parliament - "So far as it is possible to do so consistently with their purpose ... in a way that is compatible with human rights" - Interpretation of Legislation Act 1984 (No 10096) s 35(a) - Charter of Human Rights and Responsibilities Act 2006 (No 43) s 32(1).

Administrative law - Freedom of information - Exempt documents - Override power to order release of exempt document where public interest required release - Stringent test - Court's inspection of disputed documents - Legal professional privilege - Legal advice to Attorney-General - Petition for mercy - Attorney issuing press release announcing refusal of petition - Press release reference to senior counsel's advice to government - No reference to other legal advices - Whether press release misleading - Scope of legislative concept of public interest - Policy considerations - Political and ministerial accountability - "Requires" - Freedom of Information Act 1982 (No 9859) ss 32 50(4).

Real property - Easements - Plan of subdivision - Express easement of way - Nature and extent of right - Obstruction - Clear and substantial - Dam pre-dating creation of easement - Whether dominant tenement easement subject to or free of obstruction - Right of dominant tenement owner to effect access improvement works - Notice of works - Rights of servient tenement owner - Fence - Common boundary - Servient tenement owner not obliged to maintain full width of easement - Gate - Whether implied easement of necessity - Whether right to deviate on to another part of servient tenement - Remedies - Injunctions - Declarations - "Way".

Legal practitioners - Defalcation - Fidelity fund - Compensation - Entitlement - Exception - Money provided to practitioner for investment secured by real property mortgages - Nexus between legal practice and provision of money - Investment or re-investment not merely incidental to legal practice - "In the course of or in connection with legal practice" - "For the purpose of investment or re-investment by the practitioner" - "Incidental" - Legal Practice Act 1996 (No 35) s 208

Practice and procedure - Appeal - Summary dismissal - Availability - Appeal as of right - Refusal of interlocutory injunction to halt demolition works - Demolition completed following institution of appeal - Inutility of appeal - No subsisting controversy of practical significance - Unjustified use of court resources - Appeal dismissed - Supreme Court Act 1986 (No 110) s 17A(4)(b)(ii).

Administrative law - Judicial review - Appeal from Victorian Civil and Administrative Tribunal - Civil claim - Contract - Award of damages - Error of law - Factual findings unwarranted on evidence - Procedural fairness - Apprehended bias - Allowing hearsay evidence from one party only - Pre-judgment - Expressing concluded view before hearing all the evidence - Curtailment of oral evidence and tendering of documents - Curtailment of cross-examination - Building Act 1993 (No 126) ss 3 16 25A 106 112 169 170 - Building Regulations 2006 rr 304 318 1503 Sch 7 - Fair Trading Act 1999 (No 16) ss 107A 108 109 - Victorian Civil and Administrative Tribunal Act 1998 (No 53) ss 97 98 102 148.

Contract - Consideration - Variation of contract - No consideration where alleged promise was to do no more than what promisor bound to do under pre-existing contract.

Criminal law - Homicide - Manslaughter - Unlawful and dangerous act - Pedestrian abusing occupants of motor vehicle - Vehicle occupants pursuing and confronting pedestrian - Ensuing fist fight on roadway - Pedestrian struck and killed by another vehicle - Two accused convicted of manslaughter and co-accused of assault - Whether verdicts inconsistent - Causation - Deceased's intoxication - Direction - Verdicts not unsafe and unsatisfactory.

Injunction - Restraining defendant from leaving the jurisdiction - Writ of ne exeat colonia - When writ will issue - Statutory power of arrest - Inherent jurisdiction to make a no departure injunction - Serious interference with party's right to travel freely and to choose place of residence - Defendant restrained until judgment or payment into court of moneys equal to the value of real estate subject to freezing order - Supreme Court Act 1986 (No 110) ss 3(6) 37 Pt 6 Div 6 - Supreme Court (General Civil Procedure) Rules 2005 rr 37A.03 57.10

Practice and procedure - Interlocutory application - Evidence - Affidavit - Cross-examination of deponent - Supreme Court (General Civil Procedure) Rules 2005 r 40.04

Damages - Remoteness - Tort - Negligence - Foreseeability - Kind of loss - Categorisation - Collision between motor vehicle and tram - Delayed operation of trams - Economic loss - Tram operator's contractual performance penalties recoverable.

Costs - Appeal - Entitlement - Confiscation Act proceedings - Application for restraining order - Successful director's appeal - Whether director entitled to costs - Whether appeal a test case - Confiscation Act 1997 (No 108) s 133A

Contract - Breach - Damages - Professional negligence - Valuation of real property - Proposed bank mortgage loan - Loan based on valuation - Negligent over-valuation - Bank lending too much against security of mortgaged premises - Breach of valuer's retainer - Measure of damages - Whether lender would have entered into alternative transaction at true valuation - Lost opportunity damages - Proof required - Contributory negligence - Proportionate liability - Apportionable claims - Concurrent wrongdoer - Wrongs Act 1958 (No 6420) Pt IVAA ss 23B 24 24AH 24AI - Trade Practices Act 1974 (Cth) Pt VIA.

Criminal law - Driving offences - Culpable driving causing death - Dangerous driving causing death - Alternative offence to culpable driving - Distinction between offences - Directions as to dangerous driving - Levels of negligence - Differentiation - Ordinary risks of road use - Extent and nature of potential harm - Crimes Act 1958 (No 6231) ss 318 319 - Road Safety Act 1986 (No 127) ss 64 65

Criminal law - Fair trial - Jury - Majority verdict - Communication by juror to defence counsel between conviction and sentence - Comment on counsel's conduct of defence - Whether bias by juror - Juries Act 2000 (No 53) s 78

Contract - Construction - Objective determination of rights and liabilities - Context - Purpose and object of transaction - Guarantee - Past indebtedness - Future indebtedness - No question of ambiguity - "Owed".