Administrative law - Judicial review - Appeal on question of law - Victorian Civil and Administrative Tribunal - Summary dismissal of review application - Error of law - Misinterpretation of statute - Disability discrimination claim - Direct discrimination - Attribute - Impairment - Employee - Recovery from work-related illness - Employee ready, willing and able to resume work on gradual basis - Employer declining request - Employee dismissed - Whether prohibited discrimination - Applicable comparator - "Without that attribute" - Equal Opportunity Act 1995 (No 42) ss 4(1) 8(1) 14

Statutory interpretation - Human rights legislation - Liberal construction - Anti-discrimination legislation.

Human rights - Charter - Applicability - Transitional provisions - Facts and circumstances happening before Charter came into force - Charter of Human Rights and Responsibilities Act 2006 (No 43) ss 2 32(1) 49

Practice and procedure - Appeal - Leave - Order - Final or interlocutory - Order refusing extension of time for service of writ - Leave required - Overarching obligation - Delay in serving writ - Prejudice suffered by defendant - Order not attended by sufficient doubt to justify grant of leave - Supreme Court (General Civil Procedure) Rules 2005 r 5.12(2) (3) - Civil Procedure Act 2010 (No 47) s 7(1)

Criminal law - Interlocutory appeal - Evidence - Admissibility - Identification - Photo board evidence - Probative value - Unfair prejudice - "Rogues gallery" effect - Judge erring in finding probative value outweighed by prejudice - Statutory provision - Whether rule of law or conferral of discretion - Evidence Act 2008 (No 47) s 137 - Criminal Procedure Act 2009 (No 7)

Criminal law - Sentencing - Aggravating features - Sexual offences - Offences involving child aged 16 or 17 under care, supervision or authority - Indecent acts - Sexual penetration - Ejaculation without use of condom - Total effective sentence of five years and seven months with non-parole period of three years - Individual sentences not inconsistent - Erroneous order for cumulation - Total effective sentence reduced to five years with non-parole period of two and a half years.

Appeal - Leave - Test - Directions hearing - Trial of action scheduled to commence two days later - Comments by judge concerning issues and possible outcomes - Refusal of disqualification application - No lower leave threshold applicable to apprehended bias disputes.

Courts and judges - Alleged apprehended bias - Test - Hypothetical fair-minded observer - Attributes - Awareness of modern case management considerations - Civil Procedure Act 2010 (No 47) s 7 8 23 47 48

Administrative law - Discretion - Relevant considerations - Working with children assessment - Secretary to Department of Justice - Refusal to give assessment notice - Decision affirmed by Victorian Civil and Administrative Tribunal - Appeal on question of law - Preconditions to exercise of discretion - Criminal conviction - Leaving children unattended - Whether significant link between offending and risk to safety of children - Whether tribunal impermissibly restricted regard to circumstances surrounding appellant's offending - Residual discretion not enlivened - Appeal allowed - Working with Children Act 2005 (No 57) s 17

Statutes - Interpretation - Purposive approach - Requirement to interpret statutes so as to avoid manifestly absurd or unreasonable result - Interpretation of Legislation Act 1984 (No 10096) s 35(a)

Criminal law - Murder - Circumstantial evidence - Post-offence conduct - Consciousness of guilt - Accused's claim that deceased committed suicide - Jury directions - Judge permitting jury to use claim as evidence of consciousness of guilt if found to be a lie - Jury not to use lie for establishing that accused was the killer - Totality of evidence - Lie not intractably neutral as to murder or manslaughter.

Practice and procedure - Discovery - Production - Objection - Whistleblower's action - Information from protected disclosure - Statutory prohibition against production - Functions of Chief Commissioner of Police - "For the purposes of... the exercise of functions under this Act of... the Chief Commissioner of Police" - Whistleblowers Protection Act 2001 (No 36) ss 19 22(1) 108(2)(b)

Bailment - Bailee for reward - Bailee's obligations to take reasonable care of goods - Boat and trailer left at workshop for modification works - Goods destroyed by fire - No negligence by bailee - No unusual risks or hazards - Bailee not insured for loss of goods - No duty to warn bailor of absence of insurance.

Practice and procedure - Abuse of process - Categories not closed - Multiple proceedings - Re-litigation of matters determined in previous proceeding - Whether issues raised in new proceeding substantially the same as those determined in earlier proceeding - Plaintiff not party to earlier proceeding - Plaintiff sufficiently connected through control of corporate party in earlier proceeding - Open to the plaintiff to advance complaint in earlier proceeding - Availability of joinder application - Supreme Court (General Civil Procedure) Rules 2005 r 23.01(1)(c)

Appeal - Whether leave to appeal required - Permanent stay of proceedings - Whether interlocutory or final - Reality - Final disposition of parties' rights.

Administrative law - Judicial review - Victorian Civil and Administrative Tribunal - Victorian Electoral Commission - Register of political parties - Amendment - Application to amend register to be in writing signed by party secretary - Election of party office-bearers - Validity of election of secretary - Party constitution and rules - Party membership eligibility linked to eligibility to vote in Commonwealth elections - "Eligible to vote in Commonwealth elections" - Electoral Act 2002 (No 23) ss 51 60 - Commonwealth Electoral Act 1918 (Cth) ss 93(2) 221 229 235 266 Sch 3, paras 10 17 19

Associations and clubs - Constitution and rules - Construction - Political party - Democratic Labor Party - Membership eligibility - Link with Commonwealth electoral legislation.

Accident compensation - Transport accident - Loss of earnings claim - Driver - Disentitlement - Driver's licence cancelled - Person in charge of motor vehicle - Vehicle running out of fuel - Driver alighting from vehicle and pushing vehicle - Driver injured when struck by another vehicle - Injured driver's licence cancelled - Causation - Whether necessary that driver be person driving - "Driver of a motor vehicle" - "In charge of" - "Injured as a result of a transport accident" - Transport Accident Act 1986 (No 111) s 40(1)(c)(ii)

Courts and judges - Conduct of proceedings by specialist tribunals - Parties - Children's Court - Judicial review - Degree of deference accorded to specialist tribunals - Child protection - Submissions contest hearing - Natural justice - Not excluded by plain statutory intendment - Content within lower court's procedural discretion - Adjournment - Whether evidentiary hearing required - "Inform itself on a matter in such manner as it thinks fit" - Children, Youth and Families Act 2005 (No 96) ss 215(1) 329

Infants and juveniles - Child protection - Paramountcy principle - Best interests of the child - Operating principles - Secretary, Department of Human Services - Order granting custody of children to secretary - Revocation - Children, Youth and Families Act 2005 (No 96) ss 10(1) 10(3) 174 308 530(10)

Infants and juveniles - Child protection - Best interests of the child - Aboriginal children - Specific decision-making principles for Aboriginal children - Aboriginal siblings placed separately in non-Aboriginal out of home care - Children, Youth and Families Act 2005 (No 96) ss 12 13 14

Human rights - Children - Right to protection of family - Right to fair hearing - Children's Court specified human rights function - Children, Youth and Families Act 2005 (No 96) ss 6(2)(b) 17(1) (2) 24(1) 38(1) 52

Town and country planning - Planning permit - Proposed landfill on former quarry site for solid inert waste - Legislative and policy framework for siting and developing landfills - Municipal council refusal of permit - Review by Victorian Civil and Administrative Tribunal - Tribunal's consideration of need for further landfill capacity inconsistent with legislative and policy framework - Waste Management Policy (Siting, Design and Management of Landfills) 2004 - Towards Zero Waste Strategy 2005 - Best Practice Environmental Management Guideline (Siting, Design, Operation and Rehabilitation of Landfills) 2010 - Metropolitan Waste and Resource Recovery Strategic Plan 2009 - Environment Protection Act 1970 (No 8056) ss 16A 19B 50B 50BA 50BC - Planning and Environment Act 1987 (No 45) ss 77 84B(2) 84B(2)(e) - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 148.

Administrative law - Judicial review - Grounds - Irrationality and illogicality - Decision-making power not requiring the decision-maker to reach a state of satisfaction about a specified matter - Failure to give proper, genuine and realistic consideration to the merits of the case.

Administrative law - Merits review - Constitution of tribunal - Remitter following judicial review - Differently constituted tribunal for rehearing - Guiding principle.

Evidence - Client legal privilege - Loss of privilege - Separate group proceedings - Joint clients - Joint privilege - Jointly retained lawyers - Managed investment schemes - Investors - Actions against responsible entities - Multiple parties - Disclosure requirement - Evidence Act 2008 (No 47) ss 124 131A.

Bankruptcy - Bankrupt - Standing to maintain legal proceedings - Statutory stay - Exceptions - Wrong done to bankrupt - Action against bankrupt prior to bankruptcy - Appeal by bankrupt - Appeal instituted prior to bankruptcy - Victorian WorkCover Authority (VWA) - Reimbursement claim by VWA against bankrupt - Counterclaim for alleged underpayment of compensation, cessation of medical expenses and suspension of payments - Action successful and counterclaim dismissed - Judgment for reimbursement stayed - Bankrupt entitled to continue appeal against dismissal of counterclaim - "In respect of ... any personal injury or wrong done to the bankrupt" - Bankruptcy Act 1966 (Cth) s 60(2) 60(4) - Accident Compensation Act 1985 (No 10191) s 85(6)

Criminal law - Costs - Case stated from County Court on questions of law - Questions rendered moot by passage of retrospective Commonwealth legislation - No power to order costs against Crown on case stated - Supreme Court Act 1986 (No 110) s 24 - Criminal Procedure Act 2009 (No 7) s 302

Employer and employee - Post-employment restraint of trade clause - Construction - Trainee/para-professional employee of accounting firm - Restraint limited to particular clients of firm - Three year restraint - Whether employee provided professional accounting services to employer's clients - Nature of employer's interests sought to be protected - Restraint reasonable - Liquidated damages clause not a penalty.

Criminal law - Sentence - Crown appeal - Occupational health and safety - Fatal workplace accident - Loading heavy equipment onto semitrailer tilt truck - Employer's duty to employees of contractor to provide and maintain safe working environment - Failure to provide and maintain safe system of work - Failure to provide necessary information, instruction, training and supervision - Whether rolled-up count - Management aware of non-compliance with safety procedures - Company aware of risks associated with non-compliance - Relevance of prior enforcement action and prior convictions - Fact that company let down by manager not a mitigating factor - Specific deterrence - General deterrence - Company's culpability very high - Appeal allowed - Fine increased from $250,000 to $500,000 - Occupational Health and Safety Act 2004 (No 107) ss 21(1) 21(2)(a) 21(2)(e) 21(3) 33 144.

Criminal law - Trial - Double prosecution and conviction - Sex offenders - Monitoring - Extended Supervision Order (ESO) - Condition - Non-compliance - Failure consisting of commission of sexual offence - Not abuse of process to prosecute for offence of failure to comply with condition of ESO as well as for sexual offence - Not double punishment to record both convictions - Serious Sex Offenders Monitoring Act 2005 (No 1) s 40(1)

Criminal law - Appeal - Sentence - Possession of child pornography - Failure to comply with condition of Extended Supervision Order (ESO) - Not double punishment to impose individual sentence on offence of failure to comply with ESO as well as on child pornography offence - Crimes Act 1958 (No 6231) s 70(1) - Interpretation of Legislation Act 1984 (No 10096) s 51(1) - Serious Sex Offenders Monitoring Act 2005 (No 1) s 40(1)

Criminal law - Interlocutory appeal - Commonwealth offences - Elements - Aggravated people smuggling (at least five people) - Facilitating the bringing of non-citizens to Australia - Physical element - Conduct - Fault element - Intention - Required knowledge that intended destination was Australia - Legal status of destination as part of Australia - "Australia" - "Facilitates the bringing or coming to Australia of a group of at least five persons" - Migration Act 1958 (Cth) ss 228B 233C - Criminal Code Act 1995 (Cth) Pt 2.2 - Criminal Procedure Act 2009 (No 7) s 295

Appeal - Leave - Interlocutory points of practice - Appeals not to be encouraged - Managed proceeding.

Practice and procedure - Group proceeding - Small, closed class of plaintiffs - Particulars and discovery by group members - Common questions of liability - Disclosure concerning quantum of group members' claims - Supreme Court Act 1986 (No 110) s 33ZF - Civil Procedure Act 2010 (No 41) s 9.

Practice and procedure - Mediation - Promotion of rational settlements - Propriety of discovery to facilitate mediation.

Criminal law - Interlocutory appeal - Using position as director dishonestly with intention of gaining advantage for someone else - Dishonesty - Peters objective test applicable - No requirement to prove subjective awareness of dishonesty - "Dishonestly" - Corporations Act 2001 (Cth) s 184(2)(a)

Administrative law - Judicial review - Amenability to review - Datafin principle - Applicability - Insurance - Disablement benefit - Entitlement - Alternative dispute resolution scheme - Statutory approval - Financial Ombudsman Service (FOS) - Contract-based process - Complaint - Dismissal - Decision - Finality - No exercise of public duty or function - Corporations Act 2001 (Cth) s 912A

Contract - Dispute resolution - Time limit for making complaint - Provision for finality - Decision - Whether final decision susceptible to contractual review.

Companies - Winding up - Liquidator - Powers - Disclaimer of onerous property - Lease - Obligation to provide possession and quiet enjoyment not fully accrued - Commercial context - Tax-driven managed investment scheme - Lease forming scheme embodied in collection of interrelated documents - Description of investor as lessee artificial - Corporations Act 2001 (Cth) ss 568 568D

Practice and procedure - Appeal from Associate Judge to judge - Applicant seeking to rely on additional affidavit not before Associate Judge - Special leave - Whether circumstances must be "special" in procedural sense or whether evidence required of special circumstances - Supreme Court (General Civil Procedure) Rules 2005 r 77.06(7)

Practice and procedure - Orders - Self-executing order - Non-compliance - Defence struck out - Unsuccessful application to set aside or vary self-executing order - Discretion - Interests of justice - Overarching obligations of parties and legal practitioners - No satisfactory explanation provided for knowing non-compliance of parties and solicitor - Civil Procedure Act 2010 (No 47) ss 25 26 28

Companies - Managed investment scheme - Constitution - Amendment - Validity - Issue of units and options - Members' rights - Proposed removal or amendment of provisions precluding issue of units at less than $1 per unit and issue of options - Restriction on ability of members to convene and conduct meetings - Whether members' rights adversely affected - "Members' rights" - Corporations Act 2001 (Cth) s 601GC(1)(b)

Companies - Managed investment scheme - Directors - Rights and duties - Proposed amendments to constitution - Whether board gave consideration to whether proposed changes adversely affected rights of members - Board relying upon legal advice - Corporations Act 2001 (Cth) s 601GC

Criminal law - Sexual offences - Rape - Consent - Elements - Jury directions - Intoxication - Mens rea - Belief in consent - Admission of evidence of complainant's injuries - Possible explanation for injuries being sexual intercourse with another person - Forensic decision by trial counsel not to lead evidence - Agreements between trial counsel - Desirability - Policy - No substantial miscarriage of justice - Appeal against conviction dismissed - Sentence - Total effective sentence and minimum term manifestly excessive - Crimes Act 1958 (No 6231) s 38

Criminal law - Trial - Sexual offences - Jury directions - Need to avoid adding unnecessary complexity to already labyrinthine directions.

Criminal law - Murder - Circumstantial evidence - Father accused of murdering his three young children by drowning - Children travelling in motor vehicle driven by father - Vehicle leaving highway and proceeding into dam - Father claiming loss of consciousness and control due to cough syncope - Father's conduct after drowning - Crown not required to prove motive - Jury not required to be satisfied of particular facts beyond reasonable doubt - Defence of accident excluded - Verdict not unsafe and unsatisfactory - Alternative verdict of manslaughter by criminal negligence not open - No element of circumstantial case relevant to case for criminal negligence.

Criminal law - Sentence - Relevant considerations - Administration of justice - Contempt in face of court - Criminal trial - Witness - Refusal to give evidence - Prosecution case substantially weakened - Sentence of eight months' imprisonment not manifestly excessive.

Criminal law - Practice and procedure - Contempt of court - County Court - Crown proper respondent - Whether summary adjudication appropriate - Power to be exercised sparingly - County Court Civil Procedure Rules 2008 r 75

Courts and judges - Supreme Court - Inherent jurisdiction - Parens patriae jurisdiction - Cessation - Whether person continuing to be under disability - Criteria - Acquired brain injury - Plaintiff by litigation guardian settling personal injuries claim - Settlement approved - Order that funds be invested in court - Funds not to be paid out without further order - Income from invested funds insufficient to meet beneficiary's modest needs - Beneficiary asserting no longer person under disability - Beneficiary applying for order that funds be paid out to him - Onus and standard of proof - Senior Master refusing application - Appeal allowed - "Person under disability" - Supreme Court (General Civil Procedure) Rules 2005 Os 15 79 - Guardianship and Administration Act 1986 (No 58) s 66 - Evidence Act 2008 (No 47) s 140

Trust and trustees - Trustee - Powers and duties - Formation of opinion - Duty to make properly informed decision - Standard - Trust deed - Construction - Review of trustee's decision - Employer's superannuation retirement plan - Ill-health - Total and permanent disablement - Entitlement - Dispute - Conflicting medical evidence - Applicant requested to supply further information - Benefit application denied - Whether onus on plan member to persuade trustee.

Criminal injuries compensation - Entitlement - Application - Timeliness - Delay - Offender thought to be impecunious at date of conviction - Changed circumstances - Application for compensation more than two and a half years after sentencing of offender - "As soon as practicable" - Sentencing Act 1991 (No 49) s 86

Legal practitioners - Solicitor - Theft of clients' trust money - Legal Services Board - Subrogation to rights and remedies of clients - Compensation - Breach of trust claim against former solicitor - Unrepresented litigant - Trial judge's obligations - Procedural fairness - Judge alerting defendant to gaps in evidence - Litigant deciding not to adduce further evidence - Whether judge failed to give adequate assistance to unrepresented litigant - Whether the board breached an undertaking not to adduce certain evidence - Legal Practice Act 1996 (No 35) s 217.

Limitation of actions - Applicability - Trust - Beneficiary - Legal Services Board - Subrogation of rights and remedies - Whether subrogated claim statute-barred - No limitation period - Limitation of Actions Act 1958 (No 6295) s 21.

Administrative law - Victorian Civil and Administrative Tribunal ("VCAT") - Merits review - Health practitioners - Pharmacist - Improper conduct - Discovery of commercial quantities of illicit precursor drugs at pharmacy - Pharmacy Board of Australia - Imposition of conditions on pharmacist's registration - Appeal to VCAT neither appeal stricto sensu nor rehearing de novo - Hybrid review - VCAT power to receive further evidence - VCAT decision not vitiated by error of law - Health Practitioner Regulation National Law (Victoria) Act 2009 (No 79) ss 144 156 157 199(1)(e) 202 - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 148

Criminal law - Sentencing - Application for leave to appeal - Conspiring to import a border controlled drug and trafficking in a drug of dependence - Guilty plea - Contested plea hearing - Fact finding - Principles - Standard of proof - Crown opening as factual basis - Use of depositions and exhibits - Reliance on additional material - Proof of contested material - Principles as to fact finding on contested plea hearing - Sentence of nine years' imprisonment with non-parole period of six years and six months not manifestly excessive.