Criminal law - Evidence - Admissibility - Hearsay rule - Exceptions - Prior representations - Complaint - Sexual offences - Incest, sexual penetration of child under 16, threats to kill - Complainant under 18 - Evidence of one complaint relied on to prove asserted fact as well as to support credibility - Evidence of other complaints relied on only to support complainant's credibility - Whether admissibility governed by Evidence Act 2008 or Criminal Procedure Act 2009 - Latter provision extending scope of former - Latter provision applicable - No error in admitting evidence - "Sufficiently probative" - Evidence Act 2008 (No 47) s 66 - Criminal Procedure Act 2009 (No 7) s 377

Torts - Negligence - Duty of care - Scope - Psychiatric injury - Reasonable foreseeability - Employer and employee - Duties fixed at commencement of contract of employment - Risk of injury to particular employee - Law firm - Partner in charge of family law department - Alleged bullying and harassment by colleague - Inherently stressful work - Head of department taking leave of absence - Disputes emerging concerning interim arrangements for conduct of client files - Continuing deterioration in working relationship following partner's return from leave - Vicarious liability - Role of firm's managing partner - Alleged repeated unreasonable behaviour - Employee not obviously or inherently vulnerable to psychiatric injury - Substantial periods of time between incidents allegedly giving rise to liability - Lack of indication of effect on employee's mental health - Reasonableness of response to risk of psychiatric injury - Trial judge finding that psychiatric injury not reasonably foreseeable - Weight of evidence - Cumulative effect of individual incidents insufficient to give rise to liability - Appellate restraint - No basis for setting aside findings of fact.

Criminal law - Commonwealth offences - Sexual offences - Interlocutory appeal - Using carriage service to procure person under 16 years to engage in sexual activity - Using carriage service to "groom" person under 16 years - Elements of offences - Intent - Online conversations of a sexual nature between accused and police officer posing as 14 year old girl - Impossibility no defence - Offences not established where jury satisfied that accused purely fantasising when communicating with recipient or Crown could not exclude reasonable possibility that accused so fantasising - Unnecessary to prove fixed intent on part of sender to engage in sexual activity - Leave to appeal granted - Appeal dismissed - Criminal Code (Cth) ss 474.26 474.27 474.27A 474.28

Contract - Discharge - Abandonment - Accrued rights - Intention - Objective assessment.

Contract - Waiver, election and estoppel - Whether gratuitous forbearance to enforce accrued rights sufficient to constitute binding waiver or election.

Contract - Penalty - Relief against penalties - Provision for payment of fixed sum if agreed daily volumes not delivered - Whether provision for payment penal.

Criminal law - Sexual offences - Rape and indecent assault - Evidence - Admissibility - Tendency evidence - Eight complainants - Cross-admissibility - Similarity or commonality in sexual acts or surrounding circumstances - Sufficiency - Crown concession that evidence of two complainants not cross-admissible - Evidence of other complainants cross-admissible - Re-trial ordered - Evidence Act 2008 (No 47) ss 97 101.

Practice and procedure - Trial of preliminary questions - Factual basis - Sufficiency of identification - Facts admitted on pleadings - Major factual controversy - Plaintiff denied discovery of relevant documents - Whether trial of separate questions should take place before discovery complete - Procedural fairness - Cost minimisation - Parties' overarching obligation - Civil Procedure Act 2012 (No 47)

Courts and judges - Trial - Preliminary questions - Decision set aside - Remittal - Apprehended bias - Order for re-trial before another judge.

Trade practices - Misleading or deceptive conduct - Carrying on a business - Public statutory authority - Tollway construction project - "Business" - "In trade or commerce" - Competition and Consumer Act 2010 (Cth) - Australian Consumer Law s 18

Trade practices - Injunctive relief - Necessary nexus, performance of evaluative judgment and approach to exercise of injunctive power - Australian Consumer Law s 232 - Trade Practices Act 1974 (Cth) s 80

Criminal law - Serious sex offenders - Orders - Conditions - Breach - Failure to comply with case workers' directions not a breach - Conviction quashed - Aggregate sentence for breaches fixed - Resentencing on remaining breaches - Aggregate sentence of five months' imprisonment - Criminal Procedure Act 2009 (No 7) s 277 - Sentencing Act 1991 (No 49) s 5(2BD) - Serious Sex Offenders (Detention and Supervision) Act 2009 (No 91) ss 20 160(1)

Courts and judges - Serious sex offenders - Orders - Prohibition against publication - Court's reasons for decision - Handing down of reasons to public - Not a prohibited publication - "Person" - Serious Sex Offenders (Detention and Supervision) Act 2009 (No 91) ss 182 183

Criminal law - Sentencing - Crown Appeal - Competence - Error in sentence - Judge not making sex offender registration order - Registrable offences - Whether requirement of imposition of sentence - Aggravated burglary with intention to assault with intent to rape - Appeal dismissed - Sex Offenders Registration Act 2004 (No 56) ss 6 7 11 34 - Criminal Procedure Act 2009 (No 7) ss 287 288 289

Criminal law - Sentencing - Commonwealth offences - Drugs - Trafficking - Possession - Marketable quantity of unlawfully imported border-controlled drug - Total effective sentence of four years' imprisonment with non-parole period of two years and six months - Crown concession of vitiating error based on sentencing judge's misstatement of pure quantity of drug on one charge - Whether a different sentence should be imposed - Whether a Community Correction Order (CCO) combined with time served appropriate sentencing disposition.

Criminal law - Sentencing - Commonwealth offences - Desirability of national consistency - Applicability of state sentencing laws - Principles - CCO cannot be combined with a term of imprisonment for single Commonwealth offence - Whether combination sentence constitutes double punishment - Crimes Act 1914 (Cth) Pt 1B - Sentencing Act 1991 (No 49) ss 5(4C) 44

Criminal law - Sentencing - Commonwealth offences - Guideline judgment - Boulton inapplicable to Commonwealth offence sentencing - Judiciary Act 1903 (Cth) ss 68(1)(c), 80 - Inconsistency between guideline judgment and Crimes Act 1914 (Cth) Pt 1B - Sentencing Act 1991 (No 49) Pt 2AA - Judiciary Act 1903 s 68(1)(c)

Criminal law - Major crime offences - Investigation - Chief Examiner - Witness - Compelled evidence - Publication - Restriction - Prejudice to safety of witness - Order for release of restricted evidence - Challenge to release order - Test - Whether plainly wrong or wholly erroneous - Interests of justice - Attitude of future witnesses - Error in failing to accord procedural fairness of no consequence - Release also permitted for purpose of assisting prosecution of accused - No error in primary judge's approach to balancing interests of justice - Major Crime (Investigative Powers) Act 2004 (No 79) ss 43 43A 43B 67

Practice and procedure - Appeal - Competency - Leave to appeal - Major crime investigation - Compelled evidence given to Chief Examiner - Release order - Leave not required - Supreme Court Act 1986 (No 110) s 17A(3) - Major Crime (Investigative Powers) Act 2004 (No 79)

Guarantee and surety - Guarantor - Discharge of liability - Bank loans to related companies - Mortgage security - Sale - Proceeds - Notice of default - Validity - Construction - Whether demand under guarantee - Whether demand clear and unambiguous.

Criminal law - Sentencing - Drug and firearm offences - Youthful offender - Sentence of two years' imprisonment with 10 month non-parole period - Whether manifestly excessive - Whether imprisonment only sentence available - Appeal allowed - Community correction order substituted.

Criminal law - Serious sex offenders registration - Supervision orders - Gravity of non-compliance - Need for clarity and precision - Standard applicable to injunctions - Conditions - Reasonableness - Necessity - Reduction of risk of re-offending - Restriction on offender's activities as a magician - Prohibited from practising "magic tricks" on his own or in company - Too wide - Serious Sex Offenders (Detention and Supervision) Act 2009 (No 56) ss 15 16

Criminal law - Interlocutory appeal - Circumstances warranting leave - Common law principle - Non-fragmentation of criminal proceedings - No derogation - Trial - Judge ruling on admissibility of expert evidence - Trial judge refusing to certify appeal - Application for leave to appeal dismissed - Criminal Procedure Act 2009 (No 7) ss 295 296 297

Criminal law - Sentencing - Crown appeal - Mitigation - Foreign nationals - Drug offences - Controlled drug - Methamphetamine - Conspiracy to manufacture - Guilty pleas - Precise origins of conspirators' recruitment unresolved - Sentences of five years' imprisonment with non-parole period of three years - Synthesis - Excess weight given to single factor - Offenders' isolation from friends and family whilst imprisoned in Australia - Sentences manifestly inadequate.

Criminal law - Interlocutory appeal - Evidence of accused's good character to be adduced at trial - Good character direction sought by accused - Agreement between prosecution and defence - Refusal of trial judge to give direction - Reliance on separate pending indictment against accused - Prosecution application for leave to appeal against refusal - Leave to appeal granted - Evidence Act 2008 (No 47) s 110

Criminal law - Conviction - Aggravated burglary - Residential premises - Entry as trespasser - Limited right of entry granted by lessee - Exclusive possession - Premises also occupied by licensees - Licensees not entitled to revoke right of entry - Alternative basis upon which prosecution could be mounted - Dependent upon inference as to limited nature of lessee's permission - Conviction quashed and new trial, confined to alternative case - Crimes Act 1958 (No 6231) s 77

Administrative law - Judicial review - Certiorari - Error of law on face of record - Appeal from Magistrates' Court conviction to County Court - Possession of cannabis - Whether failure to provide adequate reasons - Administrative Law Act 1978 (No 9234) s 10 - Drugs, Poisons and Controlled Substances Act 1981 (No 9719) ss 5 73

Practice and procedure - Judicial review - Application for summary dismissal - No real prospect of success revealed - Civil Procedure Act 2010 (No 47) s 63

Criminal law - Sentencing - Current sentencing practices - Sentencing statistics and comparable cases - Worst case category of offence - Totality - Aggravation - Sexual offences against children under 16 - Incest - Indecent acts - Stepdaughter - Victim suffering severe psychiatric condition - Last incest offence occurred while victim on weekend leave from adolescent psychiatric facility - Total effective sentence of 13 years with non-parole period of 10 years - Sentence not manifestly excessive.

Criminal law - Interlocutory appeal - Theft - Elements of offence - Intention to permanently deprive - Pawning another person's property as security for loan - Sufficiency of evidence - Whether charges foredoomed to fail - Judge erring in granting permanent stay - Crimes Act 1958 (No 6231) ss 73(12) 73(13)

Accident compensation - Workplace injury - Breach of statutory duty - Negligence - Manual handling - School teacher - Removal of art exhibits pinned to classroom display wall - Unassisted use of two-step A-frame ladder - Both hands used to hold exhibits - Teacher descending backwards, losing step and falling on floor - Applicability of manual handling regulations - "Associated with" - "Hazardous manual handling" - "Musculoskeletal disorder" - "Use of force" - Occupational Health and Safety Regulations 2007 (No 54) regs 1.1.1 1.1.5 3.1.1 3.1.2 3.1.3 - Occupational Health and Safety Act 2004 (No 107) ss 2 4 20

Practice and procedure - Trial - Jury - Claim for damages for personal injury - Workplace accident - Breach of statutory duty - Negligence - Action based on Occupational Health and Safety Regulations withdrawn from jury's consideration before completion of evidence - Test - Excision of particular of negligence alleging breach of statutory duty - Ruling premature - No appellable error.

Practice and procedure - Trial - Jury verdict - Whether perverse - Whether reasonably open on the evidence.

Criminal law - Sexual offences - Child under 16 years - Evidence - Admissibility - Relevance - Character evidence - Prosecutor alluding to likely reliance on evidence of traffic offences - Judge in error in ruling such evidence admissible by way of rebuttal - New trial ordered - Evidence Act 2008 (No 47) s 110

Criminal law - Fair trial - Defence foreshadowing intention to lead character evidence - Prosecutor indicating that evidence of traffic offences would be led - Forensic judgment - Defence counsel mistakenly suggesting compromise approach - Defence electing not to lead character evidence - Adverse effect on presentation of accused's case - Prosecutor not justified in rejecting compromise that ought not to have been offered.

Criminal law - Trial - Verdict - Validity - Jury trial - Requirements - Deliberations - Sufficiency - Majority verdicts - Note from juror to judge - One juror said not to be participating in deliberations - Whether individual juror required to participate in collective deliberation - No miscarriage of justice - "Deliberating" - Juries Act 2000 (No 53) s 46(2).

Legal practitioners - Counsel - Duty to ensure trial conducted with reasonable expedition, consistent with fairness - Inordinate length (75 days, including 38 pre-trial) - For longer than reasonably necessary for fair trial.

Legal Practitioners - Legal practice - Lay associate - Practice manager - Trust account - Deficiency - Misappropriation and misuse of trust money - Serious misconduct - Complicity - Disqualification - Appeal against VCAT disqualification order - Tribunal not bound by rules of evidence - Sufficiency of evidence - Applicability of Briginshaw principles - Tribunal expressing reservations about solicitor's evidence - Victorian Civil and Administrative Tribunal Act 1998 (No 53) ss 98 148 - Legal Profession Act 2004 (No 99) ss 1.2.4(1)-(2) 2.2.5 2.2.6(1)(b) (2) (3) (4) (5) 2.2.7 2.2.8 3.3.21 4.4.2 - Evidence Act 2008 (No 47) s 140 - Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (No 110) rr 4.15 4.17

Legal Practitioners - Serious misconduct - Penalty - Discretion - Relevant considerations - Lay associate - Conduct of defence of disciplinary hearing - Failure to give evidence - No showing of acceptance of responsibility - Matters wholly within knowledge of lay associate - Indefinite disqualification.

Administrative law - Merits review - Victorian Civil and Administrative Tribunal - Appeal on question of law - Notice of appeal - Questions of law not properly specified.

Administrative law - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 98

Tort - Intentional torts - Intimidation - Whether part of common law of Australia Effect of emergence in English law of tort of unlawful interference with business Decision of intermediate appellate court - No reason to doubt correctness.

Practice and procedure - Reserved proceeding or question - Court of Appeal - Proceeding in Trial Division reserved for consideration by Court of Appeal - Leave required - Single question of law - General importance - Appeal inevitable - Leave granted - Supreme Court Act 1986 ss 17B(2) (3)

Practice and procedure - Stay - Abuse of process - Group proceeding - Predominant purpose rule - Vindication of legal rights or immunities by judgment or settlement - Assessment - Fairness - Maintenance of public confidence - Obtaining payment of legal costs a corollary, incident, or by-product of successful vindication of rights - Proceeding commenced predominantly to generate legal fees for plaintiff's solicitor - Permanent stay granted.

Prerogative writs - Habeas corpus - Plaintiff sentenced to death in Western Australia - Sentence commuted - Life imprisonment - Prisoner transferred to Victoria - Release on parole in Victoria - Further conditions imposed by Victorian Parole Board - Validity - Earlier proceedings in Victoria - Res judicata - Anshun estoppel - Issue estoppel - Sentencing Act 1991 (No 49) s 107 - Corrections Act 1986 (No 117) s 74 - Prisoners (Interstate Transfer) Act 1983 (No 9881) s 27(1)

Criminal law - Evidence - Admissibility - Discretion - Intentionally causing serious injury - Crown witness objecting to giving evidence - Witness excused from giving evidence - Witness's statement to police - Whether witness not available to give evidence - Tender of statement to police - Whether witness being required to give evidence contrary to Evidence Act - No error - "Not available" - "Required to give evidence" - Evidence Act 2008 (No 47) ss 18 65 135 137

Criminal law - Evidence - Admissibility - Evidence from accused's de facto partner regarding accused's bad character - Inadmissible as credibility evidence - Whether admission of evidence resulted in substantial miscarriage of justice - Conviction inevitable - Evidence Act 2008 (No 47) s 108A

Contract - Restraint of trade - Employer and employee - Public policy - Legitimate interest - Criteria - Reasonableness of restraint - Severance.

Appeal - Principles constraining new points on appeal.

Criminal law - Evidence - Admissibility - Tendency evidence - Applicable principle - Cross-admissibility - Evidence Act 2008 (No 47) ss 97 98 101

Criminal law - Trial - Failure to object to evidence - Deliberate decision for forensic reasons not to object - Waiver - Trial judge not under duty to intervene - Evidence Act 2008 (No 47) s 97

Criminal law - Trial - Direction to jury - Adequacy - Tendency reasoning - Re-trial ordered.

Evidence - Admissibility - Hearsay - Exceptions - Whether fact asserted in previous representation must be subject of evidence by person who makes assertion - Complainant recants previous assertion - Evidence should therefore have been excluded - Criminal Procedure Act 2009 (No 7) s 377(3)

Criminal law - Interlocutory appeal - Pre-trial rulings - Absence of detailed reasons - Whether rulings sufficiently clear - Use of transcript - Jury directions - Cultivating narcotic plant in quantity not less than commercial quantity (2 charges) - Severance - Evidence - Coincidence evidence - Whether evidence cross-admissible - Necessity of determining what evidence admissible for what purpose on each charge - Prejudice - Evidence Act 2008 (No 47) ss 98 101 - Criminal Procedure Act 2009 (No 7) ss 193 295 296 297 300

Contract - Collateral contract - Lease - Renewal - Tenants seeking a ten year term - Negotiations - Landlord only prepared to renew for five years - Expenditure by tenants on refurbishing leased premises - Representations that tenants "would be looked after at renewal time" - Expiry of lease - Landlord refusing grant of further lease - Whether collateral contract made - Whether inconsistent with lease.

Estoppel - Equitable estoppel - Lease - Renewal - Negotiations - Expenditure by tenants on refurbishing leased premises - Representations that tenants "would be looked after at renewal time" - Expenditure by tenants - Reliance on statements - Whether representation sufficiently certain to found estoppel - Representation susceptible of range of possible meanings - Reasonable for representees to understand it as extending at least to lower limit of range of meanings.

Appeal - Appeal from Victorian Civil and Administrative Tribunal - Question of law - Precise identification of question - Question of mixed fact and law - "Question of law" - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 148

Criminal law - Interlocutory appeal - Trial - Stay - Sexual offences - Sexual penetration of child aged 16 or 17 under care, supervision or authority - Application for permanent stay refused - Whether evidence sufficient to establish care, supervision or authority - Whether charges foredoomed to fail - Leave to appeal refused - "Care, supervision or authority" - Crimes Act 1958 (No 6231) s 48

Criminal law - Sentencing - Victim impact statements - Inadmissible material - Judge stated that regard had to victim impact statements only so far as they were relevant and admissible - Counsel's obligation to object - No objection taken by offender's counsel on plea - Whether judge had regard to inadmissible material - Whether sentencing discretion miscarried - No error established - Sentencing Act 1991 (No 49) ss 8L 8Q

Criminal law - Sentencing - Director's appeal - Youthful offender - Five armed robberies - First two at age 17 - Remainder at age 18 - Offender sentenced at age 20 - Sentencing judge excluding general deterrence as consideration in respect of all charges - Whether Director must establish manifest inadequacy in order to succeed on a ground alleging specific error - Whether sentence manifestly inadequate - Importance of rehabilitation for youthful offender - Sentence not outside range - Children, Youth and Families Act 2005 (No 96) s 362(1) - Criminal Procedure Act 2009 (No 7) s 289

Practice and procedure - Judgment and orders - Stay of execution of judgment - Test - Special or exceptional circumstances - Onus - No material provided as to basis for stay - No appeal against judgment on foot - Prospective appeal wholly speculative - Stay refused.