Contract - Restraint of trade - Covenant - Validity - Construction - Breach - Hospital - Lease of space to pathology service provider - Hospital agreeing not to carry on similar business - Trading society exception - Reasonableness - Legitimate interest in entering restraint - Hospital establishing competitive service - Promotion of competitive service - Installation of mechanical delivery apparatus connected to off-site facility - "Similar to" - "Concerned" - Restraints of Trade Act 1976 (NSW) (No 67) s 4

Contract - Terms - Implied obligation of good faith - Constructive trust - Trust of a promise.

Landlord and tenant - Lease - Derogation from grant - No general prohibition on lessor competing - Obligation not to alter land materially - Whether restraint of trade doctrine applicable to covenants in lease.

Landlord and tenant - Lease - Assignment of reversionary interest - Whether assignee bound by restraint of trade covenant - Whether covenant touched and concerned land.

Contract - Construction - Franchise agreement - Video store - Franchisor granted option to purchase "all the assets used in the STORE" - Whether option required franchisor to purchase franchisee's freehold - Limitation - Duty of good faith - Implied term - Business efficacy - Whether power to purchase assets and close store conferred to enable franchisor to continue operating the franchise business on site.

Criminal law - Employer and employee - Occupational health and safety - Indictable offences - Victorian WorkCover Authority - Prosecution - Limitation period - Within two years of offence or at any time with authorisation of Director of Public Prosecutions - Whether two year limitation period applicable to prosecutions by Director of Public Prosecutions - Occupational Health and Safety Act 2004 (No 7) s 132 - Criminal Procedure Act 2009 (No 107) s 159(2)

Administrative law - Procedural fairness - Director of Public Prosecutions - Power to authorise prosecution after expiry of limitation period - Amenability to judicial review - Whether putative defendant entitled to hearing - Redundancy of legitimate expectation analysis - Fragmenting prosecutorial process - Undesirability.

Precedent - Intermediate appellate courts - Common law in Australia - Decisions binding unless "plainly wrong" - Obiter dicta - Whether binding - Conflicting decisions - Whether binding.

Accident compensation - Transport accident - Benefits - Entitlement - Ancillary services - Rehabilitation - Application for compensation by way of purchase of quad bike - Transport Accident Commission - Power to fund purchase of motor vehicle - Scope - Purchase of quad bike as provision of rehabilitative service - Whether service must be subject to structured programme - "Rehabilitative service" - "Aid" ... "appliance", or "apparatus" - "Motor vehicle" - Transport Accident Act 1986 (No 111) ss 60(3) (3A) - Road Safety Act 1986 (No 127)

Criminal law - Sentencing - Commonwealth offences - Director's appeal - Manifest inadequacy - White collar crime - Corporations - Employee - Falsification of books - Authorising the giving of misleading information to auditor - Giving false information to ASIC - No financial gain by offender - Total effective sentence - Imprisonment for 21 months - Release on recognisance of $1000 - Good behaviour bond for three years - Fine of $10,000 - Repeated instances of dishonesty over protracted period of time - Appeal allowed - Not reasonably open to sentencing judge to impose wholly suspended sentence - Offender to serve 60 days' imprisonment, pay fine of $10,000 and be of good behaviour for two years - Corporations Act 2001 (Cth) ss 1307(1) 1309(1) - Australian Securities and Investments Commission Act 2001 (Cth) s 64(1)

Criminal law - Sentencing - Commonwealth offences - No power to impose multiple recognisance release orders - Crimes Act 1914 (Cth) s 20(1)(b)

Criminal law - Sentencing - Discounts - Co-operation - Guilty plea - Need for separate identification by sentencing judge - Actual combined reduction to be identified - Crimes Act 1914 (Cth) s 21E - Sentencing Act 1991 (No 49) s 6AAA

Trade practices - Misleading or deceptive conduct - Purchase of land - Development potential as retail site - Prospective tenancy arrangements - Representations - Proof - Adequacy - Falsity - Materiality - Reliance - Whether purchaser misled - Finding that purchaser was an unreliable witness - Gould v Vaggelas inference - Whether open to be drawn - Whether error in trial judge's ultimate factual findings in favour of purchaser - Trade Practices Act 1974 (Cth) ss 52 82

Evidence - Rule in Browne v Dunn - Party seeking to draw inference from letter - Letter not referred to in witness statement nor put to witness in cross-examination - Evidence unfairly prejudicial - Evidence Act 2008 (No 47) s 136

Criminal law - Murder - Crown case based wholly on accused's admissions - Judge referring to unlikelihood of admissions against interest being untrue - Misdirection - Defence did not dispute truth of admissions if made - Rational forensic decision - No miscarriage of justice - Baini test - Conviction inevitable - Criminal Procedure Act 2009 (No 7) s 276.

Criminal law - Aggravated burglary - Indecent assault - Intention - Contemporaneity - Entry to house as trespasser - Trespass a continuing state - Entry to bedroom with intent to commit indecent assault - Whether capable of constituting burglary - Crimes Act 1958 (No 6231) ss 76 77

Criminal law - Sex offenders registration - Sentence - Aggravated burglary - Judge erred in taking account of earlier sexual offence charge discontinued - No different sentence - Order imposing reporting requirement set aside - Sex Offenders Registration Act 2004 (No 56) ss 8 (2) 11

Criminal law - Burglary - Indecent assault - Aggravation - Unnecessary duplication of aggravated charges.

Practice and procedure - Costs - Security for costs - Entitlement - Form - Sufficiency - Discretion - Plaintiffs resident abroad - Assets held in escrow accounts - Supreme Court (General Civil Procedure) Rules 2005 rr 62.02 62.03 77.06

Criminal law - Sexual offences - Sexual penetration of child under 16 - Indecent act with child under 16 - Two complainants - Whether evidence cross-admissible - Whether tendency evidence - Whether probative value substantially outweighs any prejudicial effect - Acquittal on two of four counts relating to first complainant - Whether verdicts inconsistent - Accused cross-examined about whether complainants were lying - Withdrawal and apology by prosecutor - Direction by judge - Jury discharge application refused - Whether miscarriage of justice - Appeal dismissed - Evidence Act 2008 (No 47) ss 97 101

Criminal law - Evidence - Tendency evidence - Sexual offences - Evidence of two complainants - Whether evidence of one complainant probative of tendency - Whether probative value substantially outweighed any prejudicial effect - Evidence Act 2008 (No 47) ss 97 101

Practice and procedure - Costs - Parties and legal practitioners - Overarching obligations - Practitioners' obligation to use reasonable endeavours to ensure that costs are reasonable and proportionate - Whether parties over represented by counsel - Whether application books unnecessarily voluminous - Whether indemnity costs order appropriate - Civil Procedure Act 2010 (No 47) ss 13 18 19 24 28 29

Criminal law - Interlocutory appeal - Terrorism offences - Possession of thing connected with assistance in terrorist act - Elements of offence - Reasoning in Benbrika not overruled by Khazaal - "Connected with ... assistance in a terrorist act" - Criminal Code Act 1995 (Cth) ss 101.4 101.5.

Criminal law - Complicity - Joint criminal enterprise - Murder - Three accused convicted of murder, defensive homicide and manslaughter respectively - Open to jury to find accused guilty of three different offences because of different intent or defence special to themselves - Whether any accused withdrew from enterprise - Verdicts not inconsistent - Verdicts not unsafe and unsatisfactory - Verdicts explained by each accused's involvement in the offence.

Criminal law - Sentencing - Defensive homicide - Sentence of 11 years' imprisonment with a non-parole period of eight years not manifestly excessive - Manslaughter - Sentence of eight years' imprisonment with a non-parole period of five years and six months not manifestly excessive.

Criminal law - Serious sex offenders - Supervision orders - Unacceptable risk - Test - Degree of real likelihood that offender will commit offence - Consequences if risk eventuates - Placement of offence within a continuum of seriousness inappropriate - Management of risk - Self-management - Conditions - Width - Uncertainty - Reasonableness - Evidence - Standard of proof - High degree of probability - Briginshaw principle - Acceptable and cogent evidence - "Unacceptable risk" - Evidence Act 2008 (No 47) s 140 - Serious Sex Offenders (Detention and Supervision) Act 2009 (No 91) ss 9 15(6)

Criminal law - Serious sex offenders - Detention and supervision orders - Discretionary decision - Appeal - Rehearing - Whether finding plainly wrong - House v R principles - Serious Sex Offenders (Detention and Supervision) Act 2009 (No 91) ss 84 88 96 100 101 102

Human Rights - Charter of Human Rights and Responsibilities - Applicability - Interpretive obligations - Application - Construction which least infringes human rights - Whether Charter requires judicial discretion under s 9(7) to be construed as subject to an implied limitation - Sex offenders - Risk assessment - Supervision order - Whether conditions charter compliant - Implied limitation inconsistent with text and purposes of Act - Whether conditions must constitute minimum interference with human rights - Condition restricting employment unreasonable measure to ameliorate risk of reoffending - Condition set aside - Charter of Human Rights and Responsibilities Act 2006 (No 43) ss 7(2) 32 - Serious Sex Offenders (Detention and Supervision) Act 2009 (No 91) ss 15 16

Criminal law - Procedure - Jury trial - Request by jury for map - Judge erred in providing map without first communicating that fact to counsel and inviting submissions - Irregularity - No miscarriage of justice.

Evidence - Admissibility - Real evidence - CCTV film footage - Judge not in error in not excluding secondary evidence of content of lost CCTV recording - "Photograph" - "Document" - Evidence Act 2008 (No 47) ss 48 137

Evidence - Circumstantial case - Identification of offender - Two robbery offences - Striking similarity of appearance of offender in each event - Convictions not unsafe and unsatisfactory.

Criminal law - Procedure - Severance - Armed robbery and attempted armed robbery - Judge not in error in refusing to order severance.

Companies - Liquidation - Voidable transactions - Unreasonable director-related transaction - Assumption by company of director's liability - Grant by company of mortgage over land as security - Payment or disposition of property - Avoidance of transaction - "On behalf of" - "For the benefit of" - Corporations Act 2001 (Cth) ss 588FDA(1)(b)(iii) 588FE

Criminal law - Conviction - Murder - Appeal - Delay - Application for extension of time - Five years since conviction - Refusal by Deputy Registrar - Renewal of application before court - Proposed ground - Verdict unsafe and unsatisfactory - No adequate explanation for delay - Whether jury must have entertained a reasonable doubt - Application refused - Criminal Procedure Act 2009 (No 7) s 313 - Court of Appeal Practice Direction No 2 of 2011.

Criminal law - Sentencing - Director's appeal - Drug trafficking - Drug of dependence - Large commercial quantity - Twenty multiples of quantity threshold - Sentence of eight years and six months' imprisonment with non-parole period of five years and nine months - Parity - Whether low co-offender sentences relevant - Culpability not affected by non-distribution of drugs - Sentencing error induced by conduct of prosecutor - Director's change of position on appeal - Residual discretion exercised.

Criminal law - Sentencing - Director's appeal - Prosecutor's duty - Failure to provide required assistance - Drug trafficking - Erroneous concession that culpability reduced by reason of non-distribution of drugs - Sentencing error induced by conduct of prosecutor.

Contract - Construction - Express terms - Implied terms - Financial investments - Damages claim by arbitrager - Unit-linked life insurance policy - Unit price changed according to movement in value of underlying assets - Categories - Stable cash portfolio and more volatile portfolio - Investors entitled to switch between categories - Notice requirement - Three working days' notice at unit price fixed on day of giving notice - Right to cancel switch without penalty - Benefit of contract - Whether breach of policy for life insurance company to liquidate volatile assets in response to switch notice before it expired - Whether implied term that life company would maintain asset classes in portfolio in original proportions - Whether implied term that life company would enable policyholder to reap benefit of upward movements in asset values after notice of intention to switch to cash portfolio - Good faith and fair dealing - Damages for repudiation - Damages for breach of contract for loss of opportunity - "Working day" - "Penalty" - Life Insurance Act 1995 (Cth) ss 32 46

Costs - Indemnity costs - Pre-action offer to settle on terms more favourable than those achieved after trial - Whether unreasonable to refuse offer.

Accident compensation - Workers compensation - Jury trial - Causation - Assessment of damages - Pain and suffering - Vicissitudes of life - Pre-existing medical condition - Aggravation - Risk of further injury - No direction concerning vicissitudes - Reliance on written medical report - Risk that jury would misuse written report to reason impermissibly - Appeal allowed.

Legal practitioners - Fair trial - Closing address - Personal injuries claim - Submissions to jury as to quantum of damages - Defendant's counsel alluding to his surprise as to what plaintiff's counsel would be submitting - Inappropriate personal observation.

Criminal law - Confiscation - Exclusion application - Entitlement - Proof that property lawfully acquired - Natural and ordinary meaning - Whether proof of lawfulness of acquisition transaction satisfied statutory requirement - Legislative history - Amendments to money laundering provisions - "Lawfully acquired" - Crimes Act 1958 (No 6231) Pt 1 Div 2A - Confiscation Act 1997 (No 108) s 22 - Interpretation of Legislation Act 1984 (No 10096) s 35

Criminal law - Fair trial - Gross or simple delay - Prejudice - Specific forensic disadvantage - Stay of prosecution - Sexual offences - Indecent assaults on children under 16 years of age - Most recent alleged offending more than three decades earlier - Accused charged in 2008 and committed for trial in 2009 - Director's application for leave to appeal against permanent stay - Availability of procedural steps short of permanent stay - Evidence Act 2008 (No 47) s 165B - Criminal Procedure Act 2009 (No 7) s 300(2).

Costs - Solicitor and client - Statutory review - Non-associated third party payer - Settlement of dispute between lender and borrower - Compromise of claim for costs - Agreement for repayment of loan by instalments - Final instalment including an amount towards legal fees owed by lender to her lawyers - Final instalment paid - Non-associated third party payer later seeking review - Costs Court jurisdiction - Review right precluded by settlement agreement - Legal Profession Act 2004 (No 99) Pt 3.4 Div 7 ss 3.4.38(2) (7) 3.4.48A

Criminal law - Obtaining financial advantage by deception - Multiple charges - Multiple particulars of misrepresentations - At least one representation required to be materially operative - Necessary unanimity direction - Whether trial judge failed to direct jury - Whether any error or irregularity productive of substantial miscarriage of justice.

Precedent - Court of Appeal - Crown submission to bench of three judges that court not follow previous decisions of court - Crimes Act 1958 (No 6231) ss 81(4) 82

Contract - Building contract - Standard form - Dispute - Owner taking over works for completion - Superintendent - Ascertainment of cost to complete - Certification of amount payable - Whether computation complied with contract - Whether open to builder to challenge certificate - Election - Waiver - "Ascertain".

Injunctions - Interim and interlocutory - Entitlement - Criteria - Victorian government regulatory agency - Relocation of Melbourne metropolitan wholesale fruit and vegetable market - Allocation of leased spaces to existing traders - Appeal from refusal of injunction - Balance of convenience - Lesser risk of injustice in grant of injunction - Appeal allowed.

Practice and procedure - Pleadings - Repetition - Prolixity - Civil Procedure Act 2010 (No 47) ss 7 24 - Supreme Court (General Civil Procedure) Rules 2005 r 13.02(1)(a)

Criminal law - Evidence - Admissibility - Kidnapping - Recklessly causing injury - Threatening to kill - False imprisonment - Blackmail - Motivation - No objection raised at trial to admission of evidence - Accused bound by rational forensic decision of counsel - Evidence of accused's participation in prior assault - Admission did not controvert accused's acquittal for that assault - Anti-propensity warning - No error in failure to give warning - Evidence Act 2008 (No 47) s 137.

Criminal law - Kidnapping - Nature and scope of offence - Complete on taking away against will of victim - Continuing nature of taking away - Participation in continuing offence.

Practice and procedure - Open justice principle - Exceptions - Prevention of prejudice to administration of justice - Protection of the safety of litigants - Discretion - Criteria - Suppression order - Intending plaintiff seeking to commence and continue proceeding using pseudonym - Proposed action by detained asylum seeker against Commonwealth - Claim for damages for personal injuries - Injury received at Manus Island Detention Centre - General reluctance to reveal identity - Fear for physical and psychological well-being - Cogent proof required - Open Courts Act 2013 (No 58) Pt 3