Tort - Battery - Domestic disturbance - Attendance by police - Concert - Forcible entry to home - Family members assaulted - Proof of joint action with common purpose - Proof of breach of peace.

Tort - Battery - Nervous shock - Extent of liability - Test - Inapplicability of reasonable foreseeability - Secondary victim of battery - Plaintiff not witnessing assaults - Plaintiff arriving on scene in aftermath of battery directed at mother and brother - No direct physical contact with plaintiff - Wilkinson v Downton.

Damages - Aggravated damages - Exemplary damages - Whether matters relied upon were established by the evidence - Whether other matters relied upon were relevant.

Criminal law - Sexual offences - Child under 16 years - Evidence - Rule in Browne v Dunn - Applicability in criminal cases - Hostile witness - Background and reasons for declaring witness hostile - Record of police interview - Emphatic denial of complainant's allegations - Judge and prosecutor commenting on breach of rule in Browne v Dunn - Cross-examination of complainant - Significant and material denial of procedural fairness - Proviso inapplicable - Appeal allowed and new trial ordered.

Criminal law - Sentence - Guilty plea - Theft and armed robbery - Discretion - Renzella - Relevant considerations - Pre-sentence detention - Unrelated charge - Detention not doubly warranted - Subsequent entry of nolle prosequi on unrelated charge - Unrelated pre-sentence detention a relevant consideration - Appeal allowed - Offender resentenced - Sentencing Act 1991 (No 49) s 18.

Criminal law - Sexual offences - Maintaining sexual relationship with child under 16 years - Requirement that offence be committed on three separate occasions - Need for clear separation in time or circumstance - Alternative count of indecent act with child under 16 open - Acquittal on two alternative counts not inconsistent with conviction on another - Sentence - Sentence of six years' imprisonment outside range for attempting to pervert the course of justice - Offender resentenced to four years' imprisonment - "Occasions" - Crimes Act 1958 (No 6231) s 47A

Criminal law - Administration of justice - Attempting to pervert course of justice - Elements of offence - Police investigation - Curial process not then instituted - Conduct directed at deflecting police from prosecuting criminal offence - Conduct capable of constituting offence.

Town and country planning - Planning scheme - Permit - Telecommunications facility - Radio transmission masts - Failure to provide site analysis - Permit conditions varied - Structures not requiring permit under farming controls - Whether intrusion into acceptable setback by intrusion of underground radials - Net community benefit - Sustainable development considerations - Amenity - Minimal impact - Test - Potential alternative sites - Noise and electromagnetic interference - Cost effective provision of infrastructure - Code of Practice for Telecommunications Facilities in Victoria - "Minimal impact on the amenity of the area" - "Part of the structure" - Moyne Shire Planning Scheme cll 11, 52.19, 62.02 - Planning and Environment Act 1987 (No 45) ss 3 4(1)

Administrative law - Judicial review - Victorian Civil and Administrative Tribunal - Appeal on question of law - Planning scheme - Whether factual findings open on evidence - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 148

Practice and procedure - Injunction - Interim - Course appearing to carry lower risk of injustice if relief wrongly granted - Serious question to be tried - Medical treatment and procedures - Restraint - Hospital patient in irreversible coma - Hospital proposing to remove trachea tube inserted to maintain patient's airways - Parens patriae jurisdiction - Rule of caution - Best interests of health and welfare of patient - No basis for continuing interim relief.

Medical practitioners and services - Treatment of unconscious patient - Duty to carry out necessary and appropriate treatment.

Criminal law - Sentencing - Parity principle - Multiple robberies of single victim by brothers not acting as co-offenders.

Criminal law - Sentencing - Director's appeal - Federal drug offences - Border-controlled drugs - Importation - Marketable quantity - Gravity - Condign punishment - Participation as courier - Effect of incarceration on offender - Hardship to family members - Exceptional circumstances test - Undertaking to assist law enforcement agencies - Error of law - Manifest inadequacy - Double jeopardy - Residual discretion - Appeal upheld and offender resentenced - Crimes Act 1914 (Cth) s 16A.

Criminal law - Federal offences - Applicability of State law - Permissible modifications to common law - Crown appeals - Judiciary Act 1903 (Cth) s 80 - Criminal Procedure Act 2009 (No 7) ss 289(2) 290(3).

Constitutional law - Commonwealth and State legislation - Inconsistency - Criminal law - Drug offences - Sentencing - Double jeopardy - Criminal Procedure Act 2009 (No 7) s 289 - Crimes Act 1914 (Cth) s 16A.

Equity - Estoppel - Proprietary estoppel - Encouragement - Standing by - Municipal land - Land adjacent to Kororoit Creek - Public recreational use - Notional numbered sites occupied by users of boat sheds and other structures - Municipality encouraging construction of sheds 45 years before - Payment of annual site charges - Numerous subsequent transfers - Expectation - Occupiers refusing to vacate - Claims for conditional irrevocable licences - No equity established.

Local government - Municipal council - Powers - Dealings with land - Power to grant irrevocable licence to occupy municipal land precluded by statute - Local Government Act 1958 (No 6299) ss 3 8 236 237 238 239 240A - Local Government Act 1989 (No 11) ss 189 190 191 192.

Contempt of court - Contempt in face of court - Summary disposition - Fair trial - Specific minimum requirements - Magistrates' Court - Contemnor blowing bubble gum in presence of magistrate - Necessity - Magistrate the only witness to incident - Contemnor sentenced to one month's imprisonment - Contemnor held in custody for 12 hours until bail granted - Conviction quashed - Magistrates' Court Act 1989 (No 15) ss 133 134

Courts and judges - Supervision of inferior courts - Certiorari - Discretion - Magistrates' Court - Procedural fairness - Contempt in face of court - Peremptory conviction - Magistrate's decision quashed - No direction as to future disposition of proceeding below.

Costs - Order made against Magistrates' Court - Perverse decision.

Criminal law - Motor vehicle offences - Culpable driving causing death - Dangerous driving causing death - Elements of offences - Errors in directions on dangerous driving causing death did not affect jury's consideration of culpable driving causing death - Manifestly excessive sentence - Crimes Act 1958 (No 6231) ss 318 319.

Building contracts - Principals and sub-contractors - Security of payment - Progress payment claims - Statutory claim procedure - Party other than sub-contractor party carrying out works - Contracting party permitted to serve and enforce claim - Building and Construction Industry Security of Payment Act 2002 (No 15) s 14(1)

Appeal - Competence - Summary judgment - Building contract - Judgment obtained by sub-contractor - Leave to appeal required - Building and Construction Industry Security of Payment Act 2002 (No 15) s 14(1) - County Court Act 1958 (No 6230) s 74(2D)

Costs - Discretion - Special costs order - Appeal - Purported appeal discontinued - Appeal lacking merit - Leave to appeal would not have been granted - Order for indemnity costs - Supreme Court (General Civil Procedure) Rules 2005.

Contract - Construction - Billboard licensing agreement - Agreement first made in 1967 - Office building - Melbourne CBD - Large rooftop sign - Advertising and promotional displays - Express term - Licensee permitted to terminate agreement if site became unsuitable for permitted use - Visibility of sign from major arterial road - Construction of adjacent office tower in 2007 - Reduction in visibility of signboard - Site remaining suitable for permitted use - "Unsuitable".

Contract - Frustration - Test - Foreseeability - Changed circumstances - Risk - Assumptions of parties - Whether performance rendered radically different.

Courts and judges - Trial - Procedural fairness - Interpretation of legislation - Counsel not relying upon secondary material - Trial judge considering second reading speech after reserving judgment - Parties not notified - No opportunity to make supplementary submissions - Denial of procedural fairness - Not affecting outcome.

Evidence - State of mind - Land use - Change of ownership - Neither party calling previous owner - Inference to be drawn - Effect neutral.

Negligence - Duty - Breach - Foreseeability - Causation - Road traffic accident - Road construction authority - Need to anticipate driver carelessness - Road signs - Placement - Design and content - Directional signs - Road surface lines - Experienced truck driver - Driver confused by signs - Driving conditions - Poor visibility - Darkness - Thick fog - Driver acting impulsively - Erroneous interpretation of signs as indicating freeway entrance - Driver mistakenly entering secondary roadway and confronted with sharp bend in roadway - Collision with embankment - Multiple causes - Speed.

Criminal law - Sexual offences - Maintaining sexual relationship with child under 16 years - Second trial for offence - Complainant - Offender's daughter - Evidence - Medical history - Medical practitioner obtaining incomplete history - Failure of judge to direct jury about use of medical evidence - Crown conceding miscarriage of justice - Whether new trial should be ordered - Verdict unsafe and unsatisfactory - Judgment and verdict of acquittal entered - Crimes Act 1958 (No 6231) ss 47A 568(2)

Criminal law - Sentencing - General principles - Sexual offences against children under 16 years - Absolute prohibition - Protection of child victim from harm - Presumption of harm - Scope for rebuttal - Consent - Incapacity of child to give meaningful consent - Apparent or ostensible consent - Relevance - Never a mitigating factor - Examination of circumstances in which consent given - Showing relationship between offender and victim - Relevance of age difference, power imbalance, abuse of position of trust or authority, harm suffered or likely to be suffered.

Criminal law - Sentencing - Sexual penetration of child under 16 and indecent act with child under 16 - Sentence of seven years with non-parole period of four years not manifestly excessive - Sentence - Indecent act with child under 16 - Sentence of two and a half years with non-parole period of 18 months not manifestly excessive - Crimes Act 1958 (No 6231) ss 45 47 - Sentencing Act 1991 (No 49) s 5(2).

Criminal law - Fair trial - Apprehended bias - Test - Sentencing judge's injudicious remarks during trial and sentencing - No reasonable apprehension of bias - Acknowledgment of trial pressures - Leeway for comments made in heat of moment - Potential for misinterpretation - Care required to avoid gratuitous or intemperate remarks.

Criminal law - Fair trial - Interlocutory appeal - Application for permanent stay - Terrorism offences - Accused previously convicted of membership of terrorist organisation and other terrorism-related offences - Separate indictment - Conspiracy to act in preparation of terrorist act - Overlap between evidence relied upon in first trial and proposed to be relied upon in second trial - Autrefois convict - Elements of offence not identical - Double jeopardy - Abuse of process - Oppression - Approach to interlocutory appeal - Individual assessment of oppression in respect to each accused required - Relevant considerations - Delay - Custodial conditions - Effect on accused's health - Long trial - Stay application remitted to trial judge for further consideration - Criminal Code Act 1995 (Cth) ss 11.5 101.6(1).

Accident compensation - Workers compensation - Employer - Insurance - Premiums - Liability - Calculation - Workplace classification - Statutory premiums order - Construction - Natural and ordinary meaning - Predominant activity test - "Manufacturing of meat or meat products" - "Predominant activity" - WorkCover Industry Classification C2155L - WorkCover Industry Classification F4761T - WorkCover Insurance Premium Order (No 15) 2007/2008 - Accident Compensation (WorkCover Insurance) Act 1993 (No 50) s 26

Criminal law - Offences against the person - Infectious disease - HIV - Attempting to cause another person to be infected - Elements of offence - Accused's belief he/she was infectious - Nexus - Immediate and not remote - Crimes Act 1958 (No 6231) ss 19A 321N(1)(b)

Criminal law - Offences against the person - Infectious disease - HIV - Reckless conduct endangering person - Defences - Informed consent - Not a defence to intentional infection - Crimes Act 1958 (No 6231) s 36

Criminal law - Rape - Mens rea - Defence - Accused's awareness of absence of consent - Crimes Act 1958 (No 6231) ss 37AA 37AAA

Criminal law - Practice and procedure - Trial - Presentment - Severance - Crimes Act 1958 (No 6231) s 372(3) (3AA) (3AB)

Criminal law - Sentencing - Murder - Borderline intellectual disability - No reliance on Tsiaras/Verdins principles on plea - Circumstances in which appellate court will entertain arguments abandoned or eschewed on plea - No evidence of causal connection between intellectual limitations and offending - Sentence of 18 years' imprisonment with non-parole period of 15 years not manifestly excessive.

Criminal law - Sentencing - Non-parole period - Ratio to head sentence - Ratio in excess of 80% not unusual for murder.

Practice and procedure - Case management - Orders - Non-compliance - Sanctions - Delay - Fair trial - Application to strike out defence - Discretion - Criteria - Witness statements - Late delivery - Conduct not contumelious - Efficient, timely and cost-effective disposal of proceedings - Whether real risk of impossibility of fair trial or unsafe judgment or prevention of justice being done - Whether unwillingness or inability of party to co-operate in trial preparation - Achievement of object of contravened order - Non-compliance no longer continuing - Application denied - Supreme Court (General Civil Procedure) Rules 2005 rr 1.14 24.05 - Civil Procedure Act 2010 (No 47) s 7(1).

Practice and procedure - Discovery - Non-party - Discovery sought from solicitor for party - Possibility that non-party might have had documents relevant or material to issues in case or that might have led to train of inquiry - Possibility of privilege in documents likely to be discovered not to be considered at time of application - Summons not oppressive - Order granted - Supreme Court (General Civil Procedure) Rules 2005 r 32.07.

Restitution - Unjust enrichment - Purchase of business and land - Common vendor - Separate purchasers - Related companies - Payment in excess of purchase price of business - Claim for recovery of alleged benefit - Existing legal relationships between parties - Money paid at party's request - Benefit received irrelevant to simple money paid count.

Appeal - Claim pleaded and trial conducted on false premise - New material emerging during hearing of appeal - Appeal allowed - No assurance that complete picture of relevant transactions between parties provided on appeal - Proceeding remitted to trial court for determination.

Companies - Winding up - Insolvency - Set-off - Guarantee in personal capacity and as trustee of unit trust - Novation as trustee of discretionary trust - "Mutual dealings" - Corporations Act 2001 (Cth) s 553C.

Equity - Lien - Implied - Requirements - Sufficiency of evidence.

Evidence - Admissibility - Legal professional privilege - Claim - Waiver - Exceptions - Onus - Conduct inconsistent with privilege - Solicitor's letter of advice - Third party obtaining letter - Party asserting privilege and third party seeking legal advice regarding proposed transaction - Unnecessary for lawyer to be retained by person to whom privileged information disclosed - Evidence Act 2008 (No 47) ss 117 118 122.

Practice and procedure - Subpoena - Subpoena to produce documents issued to third party - Letter of legal advice - Documents delivered to solicitors for party - Improper for solicitors to examine documents produced on subpoena or make use of them in any way without first obtaining court order - Inclusion of advice in supplementary discovery - Contents of advice read out in counsel's opening - Party first asserting privilege when opposing party sought to tender letter during cross-examination of claimant - Privilege not lost - Supreme Court (General Civil Procedure) Rules 2005 r 42 - Evidence Act 2008 (No 47) s 122.

Evidence - Admissibility - Improperly obtained evidence - Exclusion - Document delivered to solicitors by third party to whom subpoena to produce documents had been issued - Solicitors examined document and sought to use it at trial - Document not admitted into evidence - Evidence Act 2008 (No 47) s 138.

Criminal law - Sentencing - Trafficking large commercial quantity and commercial quantity of drug of dependence - Total effective sentence of 17 years' imprisonment with non-parole period of 12 years - Judge erred in first grading level of offending and then fitting into band with predetermined sentencing range - Approach of judge amounted to two-tier sentencing - Judge erred in finding increased incidence of drug trafficking - Judge erred in finding offending worse because of previous drug use - Sentence manifestly excessive - Offender resentenced to total effective sentence of 11 years and three months' imprisonment with a non-parole period of eight years and three months.

Criminal law - Fair trial - Prosecutor - Duty of disclosure - Non-compliance - Sexual offences against children - Indecent act with or in presence of child under 16 - Evidence - Complainant's denial of text message acknowledging falsity of her allegations - Prosecutor's knowledge that complainant had lied on oath - Subsequent explanation - Whether judge restricted cross-examination of complainant - Trial unfair - Miscarriage of justice - Evidence Act 1958 (No 6246) ss 35 36.

Criminal law - Sentencing - Offences committed on parole - Parole cancelled - Offender's existing custodial sentence - Applicable principles - Prohibition on speculation - Cumulation - Totality - Aggravation - Director's appeal dismissed - Sentencing Act 1991 (No 49) ss 5(2AA)(a) 14(1) 16(3B)

Criminal law - Sentencing - General deterrence - Statutory exclusion as sentencing consideration - Child offender - Trial in Supreme Court - Attempted murder - Acquittal - Convictions for aggravated burglary, kidnapping, recklessly causing serious injury and reckless conduct endangering a person - Offender sentenced in Supreme Court with adult co-offenders - Three years' detention in youth justice centre - Sentencing judge rejecting submission that general deterrence excluded as sentencing consideration - Supreme Court bound by Children's Court sentencing limits - Offender resentenced to youth supervision order - "As far as practicable" - Children, Youth and Families Act 2005 (No 96) s 362(1).

Criminal law - Sentencing - Relevant considerations - Weight - Sufficiency - Mitigation - Domestic altercation leading to strangulation - Accused acquitted of murder and convicted of manslaughter - Unlawful and dangerous act - Accused's state of mind - Offender's offer to plead guilty to manslaughter - Utility - Abolition of partial defence of provocation not relevant to sentences for other kinds of manslaughter - Manifest excess - Sentencing discretion - Sentence of 14 years' imprisonment with non-parole period of 10 years within permissible range.

Criminal law - Sexual offences - Incest - Retrial on two counts - Accused acquitted on charge of indecent act in presence of child on earlier trial - Entitlement to benefit of acquittal - Ascertainment of benefit - Rational explanation of acquittal to be preferred - Child permitted to give evidence she was present on retrial - Denial of benefit of acquittal - Double jeopardy - Conviction on one count set aside and retrial ordered.

Criminal law - Sexual offences - Trial - Cross-examination - Complainant - Sexual activity - Evidence Act 1958 (No 6246) s 37A(5)

Criminal law - Sentencing - Judge not in error in imposing longer sentence than imposed on earlier trial - Sentence of six years' imprisonment on remaining count not manifestly excessive.