Practice and procedure - Trial - Re-opening of case - Exceptional circumstances test - Recognised classes of case - Interests of justice - Finality of litigation - Effect of re-opening of case on resumed trial - Claim for damages for breach of contract - Judgment reserved - Memorandum from judge to parties - Mention of possible findings on damages, if liability established - Invitation to plaintiff to apply to re-open case on damages - Application made, opposed and granted - Test not satisfied - Appeal allowed.

Courts and judges - Judicial review - Error of law on face of record - County Court - Appeal from conviction in Magistrates' Court - Reasons for decision - Adequacy - Possession of heroin - Statutory deemed possession - Evidentiary onus on accused to overcome deeming provision - Whether accused had satisfied the Court to the contrary - Conviction upheld upon appeal - Judge's finding on credibility of accused - Drugs, Poisons and Controlled Substances Act 1981 (No 9719) ss 5 73

Tort - Duty of care - Content - Breach - Occupier of land - Foreseeability of risk - Magnitude of risk - Insufficient consideration - Land adjacent to highway - Escape of horse from agistment - Paddock and main entrance gates left open - Horse colliding with motor vehicle - One passenger killed and another injured - Standard of care - Reasonable care in the circumstances - Prospective not retrospective assessment of risk - Very small risk of horse escaping - No additional precautions against escape of horse required from reasonable person - No breach of duty.

Tort - Duty of care - Horse agisted on land - Risk of escape - Tenant of neighbouring house - No control of horse or land - No duty of care.

Accident compensation - Transport accident - Payment of compensation - Indemnity claim by Transport Accident Commission against third parties - Occupier of land not in breach of duty of care to users of highway - Tenant owed no duty of care to users of highway to take precautions to prevent escape of horse.

Arbitration - Franchise agreement - Arbitration clause - Staying court proceedings - Action brought in Victorian Civil and Administrative Tribunal - Whether court includes tribunal - "Court before which an action is brought" - Commercial Arbitration Act 2011 (No 50) s 8.

Statutory interpretation - Legislative purpose - Statute implementing international agreement - UNCITRAL Model Law on International Commercial Arbitration - Definition in model law not re-enacted - Consistency with language and purpose of statute - Extrinsic materials.

Criminal law - Sexual offences - Sexual penetration of child under care, supervision or authority - School principal - Pupil - Sexual acts occurring after accused had resigned as principal - Whether evidence of former principal-pupil relationship admissible - Whether temporal proximity relevant - "Child ... under care, supervision or authority" - Crimes Act 1958 (No 6231) ss 48 49

Criminal law - Law enforcement - Major crime - Investigation - Coercive powers order - Chief Examiner - Contempt of Chief Examiner - Conviction - Refusal to answer questions - Sentence of imprisonment - Delivery of prisoner into police custody - Custody order - Amendment to substitute name of custody officer - Validity - Amendment power subject to same limitations applicable to making of order - Whether order directed to specified member of police may be executed by another member of police - Major Crime (Investigative Powers) Act 2004 (No 79) ss 15 18 49 - Police Regulation Act 1958 (No 6338) s 20 - Interpretation of Legislation Act 1984 (No 100961) s 41A.

Wills and codicils - Validity - Testamentary capacity - Test - Circumstances arousing suspicion - Onus on propounder of will - Elderly testator with cognitive impairment - Son actively seeking to have father redistribute his assets - Change of bequests from previous wills - Whether testator was capable of evaluating claims on his bounty - Significance of unchallenged evidence about instructions for and execution of will.

Wills and codicils - Validity - Testator's knowledge and approval of contents of will - Suspicious circumstances - Application of principles - Instructions given to solicitor about contents of will - Failure of solicitor to retain any file or notes of instructions - Preparations of wills by solicitors - Duties generally.

Criminal law - Sentencing - Manifest excess - False imprisonment - Prohibited person in possession of unregistered firearm - Relevant considerations - Pending reduction in maximum penalty for firearms offence - Sentencing judge erring in not having regard to reduction - Uncharged acts - Aggravation - Co-offenders - Prospect of extortion - General milieu of violence attending false imprisonment - Violence causing serious injury inflicted by co-offenders in absence of accused - Serious injury not direct result of false imprisonment - Cumulation - Total effective sentence of 10 years' imprisonment - Non-parole period of seven years and six months - Sentence manifestly excessive - Offender sentenced to total effective sentence of eight years and six months' imprisonment with non-parole period of six years and six months - Sentencing Act 1991 (No 49) ss 3 5(2)(daa) (db)

Trust and trustees - Breach of trust - Third party liability - Creation of trust - Intention - Quistclose trust - Joint venture - Queensland resort development - Parties involved in earlier joint ventures - One joint venturer previously providing funds for general purposes of joint venture - Deposit of further money into bank account - Parties intending that part of further money be used to pay bond to electricity supplier - Whether depositor intending to retain beneficial interest in money - Money partly used for nominated purpose - Purpose achieved - Joint venture terminated - Subsequent use of balance of money for general purposes of same development - Whether intention that money be used for exclusive purpose - Quistclose trust not established.

Contract - Construction - Surrounding circumstances - Agreement to terminate joint venture - Parties previously involved in other joint ventures - Respondent previously providing funds for purposes of joint ventures generally - Agreement limiting respondent's "liability" to contribute to joint venture - Expenditure exceeding that which respondent "liable" to make not constituting breach of agreement.

Appeal - Issue not raised at trial - No prejudice by reason of issue being first raised on appeal - Issue determined on appeal.

Courts and judges - Fair trial - Procedural fairness - Civil litigation - Self-represented defendants - Obligations of trial judge - Provision of reasonable advice necessary to ensure fair trial - Trial judge extensively informing defendants as to distinction between evidence and submissions - Trial judge not informing defendants of role of Jones v Dunkel inference - Defendants electing not to call evidence - Affidavit admitted by consent for limited purpose and used by plaintiff for another purpose - Judge upholding claim and relying on Jones v Dunkel inference - Appeal allowed.

Criminal law - Sentencing - Sentencing principles - Guideline judgment - Introduction of community correction order (CCO) - Underutilisation of CCOs - Guidelines for sentencing courts - Need for guidance to ensure CCOs used as intended - Need for sentencing consistency - Promotion of public confidence in criminal justice system - Sentencing Act 1991 (No 49) ss 5(1) 6AA-6AE 8A 36-48Q

Criminal law - Guideline judgment - Non-custodial sentence - Community correction order (CCO) - Purposes of sentencing - Proportionality and suitability - Punitive effect of CCO - Advantages of non-custodial disposition - Community protection - Rehabilitation - Reducing risk of re-offending - Disadvantages of imprisonment - Specific deterrence - General deterrence - Need for government to explain benefits of CCO - Flexibility - Combining imprisonment and CCO - Parsimony - Application to young offenders - Judicial monitoring - Variation and cancellation - Non-compliance - CCO or non-parole period - Pre-sentence reports - Offender's consent - Sentencing Act 1991 (No 49) ss 5(1) (4C) 36-48Q

Criminal law - Sentence - Armed robbery and recklessly causing injury - Total effective sentence of time served plus three months' imprisonment and CCO of eight years - Appeal allowed - Offender re-sentenced to three months' imprisonment together with CCO of two years and six months.

Criminal law - Sentence - Armed robbery and attempted armed robbery - Sentenced to CCO for 10 years and fined $4000 - Appeal allowed - Duration of CCO reduced to six years.

Criminal law - Sentence - Common assault - Sentenced to five year CCO - Eighteen months pre-sentence detention - Appeal allowed - Sentence reduced to time served in pre-sentence detention.

Criminal law - Fair trial - Permanent stay - Delay - Alleged offending between 1966 and 1998 - Sexual offences - Child complainants - Trial unacceptably unfair - Substantial miscarriage of justice.

Criminal law - Conduct of trial - Sexual offences - Child complainants - Cross-examination of complainant about prior sexual activities refused - No error - Criminal Procedure Act 2009 (No 7) s 342

Criminal law - Evidence - Tendency - Sexual offences - Child complainants - Cross-admissibility - Indictment - Severance - Some evidence not cross-admissible - Evidence Act 2008 (No 47) ss 97 98 101

Criminal law - Practice and procedure - Overloaded indictment - Sexual offences - Five child complainants - Thirty-seven charges - Dozens of uncharged acts - Whether substantial miscarriage of justice - Criminal Procedure Act 2009 (No 7) s 194

Criminal law - Sentencing - Manifest excess - Sexual offences - Indecent assault - Child complainants - Plea of guilty to two charges - Appellant 69 years old with no prior convictions - Sentences of ten months' imprisonment on each charge - Appeal allowed - Total effective sentence of eight months' imprisonment substituted.

Criminal law - Sentencing - Statutory purposes - Mandatory guidelines - Current sentencing practices - Practices at time of sentence - Equal justice - Practices at time of offending - Current community attitudes to offending of type in issue - Sexual offences against children - Indecent assault - Offences committed between 1974 and 1983 - No error in fixing sentencing - "Current sentencing practices" - Sentencing Act 1991 (No 49) s 5(2)

Landlord and tenant - Retail lease - Renewal - Executory contract for creation of new tenancy - Unregistered lease - Landlord and tenant estoppel - Assignment of equitable lease - Whether covenants run with equitable lease - Privity of estates - Privity of contract - Retail Leases Act 2003 (No 4) ss 8 9

Criminal law - Trial - Procedure - Special hearing - Mental impairment - Accused unfit to stand trial - Defence of mental impairment raised - In special hearing not open to judge alone to decide if defence made out - Empanelment of jury required - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (No 65) Pts 2 3 4 - Criminal Procedure Act 2009 (No 7) ss 302 305

Administrative law - Judicial review - Building control - Apartments - Classification - Building Code of Australia - Interpretation - Class 2 short term commercial stays - Municipal building surveyor reclassifying apartments as Class 3 and requiring compliance with requirements - Reclassification affirmed by Building Appeals Board - Application for judicial review dismissed - Interpretation - Length of occupation - Whether facilities provided within dwelling - Whether occupants of dwelling related persons or unrelated persons - Whether evidence of relevant danger - "Separate dwelling" - Building Code of Australia cl A3.2 - Building Act 1993 (No 126) s 106(d) - Building Regulations 2006 (No 68) reg 112

Criminal law - Sexual offences against children - Incest - Evidence - Video and Audio Recorded Evidence (VARE) interviews of complainant - Propriety of questioning - Whether impermissible leading questions - Power to exclude - Whether complainant understood meaning of truth - Whether verdicts unsafe - Reliability of child complainant - Verdicts of guilty not inconsistent with verdict of not guilty on one charge - Criminal Procedure Act 2009 (No 7) ss 368 374 381

Evidence - Child witness - Reliability - Whether particular circumstances of child complainant required reliability warning - Evidence Act 2008 (No 47) s 165A

Criminal law - Conviction - Appeal - Grounds - Fair trial - Alleged incompetence of defence counsel at trial - Exceptional case test - Need to establish profound and flagrantly indefensible error not residing in logic or forensic purpose and of such importance as to give rise to miscarriage of justice.

Criminal law - Sentence - Six charges of incest of child - Imprisonment for five years with non-parole period of three years and four months not manifestly excessive.

Criminal law - Sexual offences - Rape - Evidence - Admissibility - Relationship evidence - Complainant wife of accused - Evidence of past violent conduct against complainant wrongly admitted - Whether conviction inevitable - Substantial miscarriage of justice - New trial ordered - Criminal Procedure Act 2009 (No 7) s 276(1)(b) - Evidence Act 2008 (No 47) ss 135 137

Practice and procedure - Pleadings - Discovery - Privilege against self-incrimination and exposure to civil penalty - Direct use immunity - Action against former company directors for alleged failure to prevent insolvent trading by company - Directors' claim of privilege - Application for dispensation from compliance with discovery and pleading obligations - Liquidators' public examination - Use immunity not claimed - Whether privilege waived. - Supreme Court (General Civil Procedure) Rules 2005 - Corporations Act 2001 (Cth) s 597(12) (12A)

Courts and judges - Jurisdiction - Federal jurisdiction - Bankruptcy - Exclusive jurisdiction of Federal Court of Australia - Cross-vesting regime - Special federal matter - Supreme Court required to transfer proceeding to Federal Court unless it makes contrary order - Real property - Action by mortgagee against trustee in bankruptcy - Claim against registered title of trustee - Alleged common intention constructive trust - "Special federal matter" - Jurisdiction of Courts (Cross Vesting Act) 1987 (Cth) s 6 - Bankruptcy Act 1966 (Cth) s 27.

Criminal law - Evidence - Admissibility - Hearsay - Exceptions - Previous representations - Rape - Maker of representation unavailable - Deceased complainant - Statement to police - Transcript of committal evidence - Whether accused had reasonable opportunity to cross-examine - Probative value - Unfair prejudice - Common law fairness principle - Criminal Procedure Act 2009 (No 7) s 295(3)(a) - Evidence Act 2008 (No 47) ss 65(2)(b) 65(3) 137.

Criminal law - Interlocutory appeals - Discretion - Applicability of House v R principles.

Precedent - Court of Appeal - Departure from own previous decisions - General rule.

Prerogative writs - Habeas corpus - Prisoner - Serving sentence in South Australia - Plaintiff's parole cancelled due to sentence imposed in another state - Whether provision of Corrections Act had the effect of cancelling parole in Victoria - Corrections Act 1986 (No 117) s 77(6A)

Statutory interpretation - Extraterritoriality - "In and of Victoria" - Interpretation of Legislation Act 1984 (No 10096) s 48

Criminal law — Abduction for purpose of sexual penetration — Rape — Penetration — Presentment — Amendment — Penetration by part of appellants body, penile penetration or unknown object — Judge not in error in allowing amendment notwithstanding complainants evidence that penetration penile — Jury directions — Unanimity not required as to mode of penetration — Crimes Act 1958 (No 6231)ss 35, 38.

Criminal law — Sentencing — Double punishment — Appeal against sentence allowed and accused resentenced — Conditions of imprisonment — Protective custody — No basis for court to pass new sentence — Allowance for pre-sentence detention — Renzella discretion — Sentencing Act 1991 (No 49)s 18.

Discrimination — Services — Direct — Education — Special religious instruction in State primary schools — Alleged discrimination on ground of religious belief — Appeal on question of law — Test — Leave refused — Victorian Civil and Administrative Tribunal Act 1998 (No 53)s 148 — Equal Opportunity Act 1995 (No 42) — Equal Opportunity Act 2010 (No 16) — Education and Training Reform Act 2006 (No 24).

Costs — Protective costs order — Jurisdiction — Discretion — Supreme Court Act 1986 (No 110)s 24(1) — Supreme Court (General Civil Procedure Rules) 2005r 64.24(1) — Civil Procedure Act 2010 (No 47)s 65.

Contract — Terms and conditions — Construction — Principles — Objective intentions of parties — Drafting changes — Surrounding circumstances — Admissibility of evidence — Employment contract — Equity participation clause.

Companies — Winding up — Company trading as trustee — Trust property — Trustee going into liquidation — Funds in court — Litigation as to ownership of fund — Whether liquidator entitled to recover costs and remuneration from fund — Liquidators costs and remuneration not incurred for the purpose of administering the trust.

Costs — Company — Liquidator — Liquidator not a party — Liability for costs — Whether costs orders should be made against liquidator personally — No exceptional circumstances — Supreme Court Act 1986 (No 110)s 24 — Corporations Act 2001 (Cth)s 479(3).

Costs — Successful party — Liability for costs — No exceptional circumstances — Costs follow the event.

Costs — Trust property — Company trustee of trust — Funds in court — Litigation as to ownership of fund — Whether liquidator entitled to recover costs and remuneration from fund — Liquidators costs and remuneration not incurred for the purpose of administering the trust.

Criminal law — Sexual offences — Sexual penetration of child under 10 — Indecent assault — Trial — Evidence — Rule in Browne v Dunn — Non-compliance — Defence counsel — Final address — Mention of matters not put to complainant or other witnesses — Trial judge precluding defence counsel from making certain submissions — No error.

Criminal law — Trial — Juries — Role of jurykeeper — Oath — Jury deliberation at time when another court official remained in courtroom on temporary basis — No irregularity — Juries Act 2000 (No 53)s 49.

Criminal law — Jury verdicts — Whether inconsistency — Sexual offences against child — Guilty verdict on one charge — Acquittal on two charges — Guilty verdict not unsafe and unsatisfactory.

Criminal law — Sentencing — Sentence fixed taking account of sentence then being served — Sentence entered in court record — Prior conviction later quashed — Trial judge recalling sentence — Judge fixing new non-parole period — Validity — Sentencing judge functus officio — Slip rule not applicable — Procedural fairness — Power on appeal to fix new sentence — Criminal Procedure Act 2009 (No 7)ss 277(3), 412.

Criminal law — Drug offences — Attempt to possess commercial quantity of unlawfully imported border controlled drug — Elements of offence — Absolute liability — Trial judges directions — Law of possession and application to facts — Verdicts not unsafe and unsatisfactory — Trial not miscarrying as a result of trial counsel failing to lead evidence of good character — Criminal Code Act 1995 (Cth)ss 11.1, 300.2, 307.5.

Criminal law — Sentencing — Cumulation — Attempted importation of commercial quantities of three different border controlled drugs — One transaction — Whether sentence manifestly excessive — Totality — Proportionality.

Evidence — Criminal proceedings — Legal professional privilege — Evidence sought to be elicited by accused in cross-examination — Whether witness can refuse to answer on ground of legal professional privilege — Whether statutory provision abrogated common law right — Principle of legality — No indication that legislature intended to abrogate right — Witness not required to answer — Evidence Act 2008 (No 47)ss 118, 119, 123, 131A.

Statutory interpretation — Abrogation of common law rights — Principle of legality — Criminal proceedings — Legal professional privilege — Evidence sought to be elicited by accused in cross-examination — Whether witness can refuse to answer on ground of legal professional privilege — Whether statutory provision abrogated common law right — No indication that legislature intended to abrogate right — Witness not required to answer — Evidence Act 2008 (No 47)ss 118, 119, 123, 131A.

Criminal law — Commonwealth offences — Sentencing — Crown appeal — Use of carriage service to access child pornography — Use of carriage service to transmit child pornography — Total effective sentence of three years and three months community correction order — Sentence manifestly inadequate — Offender re-sentenced to three months imprisonment and community correction order of two years.

Criminal law — Commonwealth offences — Attempt — Joint criminal liability — Accused convicted of attempted possession of unlawfully imported drugs — Alleged agreement to possess — Attempt to possess failed because of police interception of drugs — Whether accused could be liable for joint attempt — Position at common law considered — Whether liability excluded by statute — No intention to depart from common law position — Crown not obliged to prove intention or knowledge as to quantity — Application refused — Criminal Code Act 1995 (Cth)ss 11.1, 11.2A, 307.5.