Insurance — Total and permanent disability policy — Construction of `total and permanent disability' — Inability to do any work - Relevance of capacity to undertake some tasks of previous job — Inability to work in future - Relevance of availability of work in region — Unreasonable withholding of payment of claim — Interest on claim — Insurance Contracts Act 1984 (Cth) s 57(2)

Words and phrases — `any work'

Tort — Nuisance — Continuing nuisance — Date of accrual of cause of action — Concrete slab encroaching on neighbouring property, resting on footings of adjacent building — Origin of nuisance more than six years before action — Damage ongoing — Whether fresh cause of action in nuisance accrues as result of damage or aggravation of damage — Limitation of Actions Act 1958 (Vic)

Practice and procedure — Summary judgment — Claim for damages for continuing nuisance — Origin of nuisance more than six years before action — Whether no real prospect of overcoming limitations defence — Pleaded claims did not fall wholly outside the limitation period — Expert evidence at interlocutory hearing — Inconsistencies in expert’s opinion — Whether claim had ‘no real prospect of success’ — Civil Procedure Act 2010 (Vic) s 63 — County Court Civil Procedure Rules 2008 (Vic) r 23.03

Practice and procedure — Claim for repudiation of partnership agreement — Defence alleging unlawful or improper conduct — Protean Holdings order — Whether plaintiff entitled to split case, to oblige defendant firm to lead evidence in support of its defence first — Applicable principles

Evidence — Privilege against self-incrimination — Privilege against self-exposure to a penalty — Waiver — Civil claim — Allegations of unlawful or improper conduct of plaintiff raised as defence to contractual claims — Plaintiff excused from compliance with discovery and other rules of Court until closure of defendant's case at trial — Whether privilege available to a plaintiff — Whether waived by commencement of civil proceeding — Whether waived by voluntary participation in police interview — Whether real and appreciable risk of being subject to criminal or civil penalty proceedings — Evidence Act 2008 (Vic) s 128

Contract — Parol evidence rule — Oral agreement for sale of home by parent, proceeds applied to reduction of child's mortgage — Undertaking to accommodate and care for parent indefinitely — Written instrument subsequently prepared and executed — Breakdown of relationship — Claim for return of contribution — Whether written instrument sole repository of terms of agreement — Whether evidence of prior oral arrangement admissible — Collateral warranty

Equity — Constructive trust — Equitable lien or charge — Joint endeavour under which money laid out on property on faith of assurance of indefinite residence in that or any other property, free of charge — Written agreement recording some terms of arrangement — Whether evidence of prior oral arrangement admissible — Appropriate relief

Costs — Party and party costs — Indemnity principle - Conditional costs agreement — Pro bono representation — Liability of successful party to pay own solicitors only if costs order made in her favour — Whether such contingent liability sufficient for purposes of attracting award of costs — Legal Profession Act 2004 (Vic) s 3.4.27

Criminal law — Enforcement — Investigation — Independent Broad-based Anti-corruption Commission — Powers — Public examination of persons — Whether legislation authorises examination of persons under investigation with respect to matters the subject of the investigation

Statutory interpretation — Whether Independent Broad-based Anti-corruption Commission Act 2011 grants power to examine persons, under investigation for criminal offence, publicly or at all — Principle of legality — Effect of the abrogation of the privilege against self-incrimination — Power to conduct examination in public — Exceptional circumstances — Public interest — Independent Broad-based Anti-corruption Commission Act 2011 (Vic) ss 8, 15, 70, 115, 117 and 144

Administrative law — Judicial review — Jurisdictional error – Whether Commissioner's opinion that jurisdictional conditions satisfied was a reviewable error — Whether decision affected by irrelevant considerations, a failure to take into account relevant considerations or legal unreasonableness — Effect of an express statutory obligation of reasonableness

Administrative law — Judicial review — Jurisdictional fact — Fixing of reference date in adjudication under the Building and Construction Industry Security of Payment Act 2002 — Whether determination of reference date by arbitrator a jurisdictional fact — Nature of exercise involved

Building contracts — Payment claim under the Building and Construction Industry Security of Payment Act 2002 — Fixing of reference date — Review of adjudicator's determination — Building and Construction Industry Security of Payment Act 2002 (Vic) ss 9(2)(d), 14(4), 14(5)

Criminal law — Bail — Appeal against refusal — Conditions — Drug trafficking charges — Delay between arrest and trial — Unacceptable risk — Relevant considerations — Risk reduction — Strict conditions — Residential drug treatment — Severe restrictions on movement and association — Conditional bail granted — Bail Act 1977 (Vic) s 4(4)

Practice and Procedure — Costs — Protective costs order — Application to fix or cap recoverable costs in advance — Factors — Whether order should be mutual — Civil Procedure Act 2010 (Vic) ss 7, 65C(1), (2)(d) — Supreme Court Act 1986

Criminal law — Sentencing — Sexual offences — Children — ``Cybersex'' offending — Internet — ``Grooming'' or procuring child for sexual act — Procuring child for or producing child pornography — Harm to child — Nature — Persuasive presumption — Principles — Need not be immediate or manifest — Specific sexual acts — Pornography offences where victim under 18 years — Concession as to harm on plea — ``Engage in sexual activity'' — Criminal Code (Cth) ss 5(2)(daa), 474.26, 474.27, 474.27A — Crimes Act 1958 (Vic) ss 16A(2), 37A, 37B, 68, 69, 70, 87, 321

Banks and Banking — Guarantee — Code of Banking Practice — Relevant provisions of Code applied to guarantee — Exercise of care and skill of diligent and prudent banker to assess customer's ability to pay — Extent to which bank could consider resources of guarantors or others in assessing borrower's capacity to repay — Whether breach — Whether breach caused guarantors' loss and damage

Contract — Compromise — Guarantors' complaints to bank leading up to compromise did not refer to breach of Code of Banking Practice ` Whether breach of Code within scope of compromise

Confidential Information — Application for injunction to prevent disclosure - Identification of confidential information — Degree of specificity required for protection — Whether lies are information

Courts and Judges — Application for order prohibiting electronic communications — Existing order of Magistrates' Court to same effect — Whether Court should make order in same terms

Defamation — Injunction to restrain publication — Imputations involving alleged criminal activity — Justification defence — Contextual truth defence — Contested allegations — Importance of free speech

Prerogative writs — Mandamus — Clinic complained to Council of nuisance caused by protesters — Council advised Clinic to privately settle the matter through referral to Victoria Police — Clinic sought relief by mandamus and declaratory relief — Public Health and Wellbeing Act 2008 (Vic) ss 58, 60, 62.

Administrative law — Council conclusion that the only activity of protesters that constituted nuisance was blocking of entry to Clinic's premises — Whether Council failed to exercise jurisdiction by misconstruing the meaning of nuisance and misdirecting itself

Companies — Winding up — Voidable transactions — Liquidator's application pursuant to s 588FF(1) Corporations Act 2001 — Application to amend the name of the defendant outside statutory limitation period — Judiciary Act 1903 (Cth) s 79(1) — Corporations Act 2001 (Cth) ss 588FF(1), (3) — Supreme Court (General Civil Procedure) Rules 2005 (Vic) r.36.01.

Criminal law — Sentence — Murder — Arson — Impairment of mental functioning — Nature and severity — American Psychiatric Association (DSM–V) — Dependent personality disorder with prominent features of narcissistic personality disorder — Verdins principles — Rationale — General deterrence — Moral culpability — Need for moderation — Necessary evidentiary foundation — Principles inapplicable to offender's disorder

Criminal law — Sentencing — Crown appeal — One count of murder and one count of arson — Total effective sentence of 18 years' imprisonment with non-parole period of 13 years — Whether concealment of killing and burning of body necessarily aggravating factors — Crown precluded from pursuing arguments on appeal not raised below — Sentence not manifestly inadequate

Negligence — Workplace injury — Duty to take reasonable care to avoid risk of injury to employee — Worker with predisposition to degenerative condition — Worker undertaking common but undesirable work practices

Statutory duty — Whether worker had a private right of action for breach of regulations made under the Occupational Health and Safety Act — Occupational Health and Safety Act 2004 (Vic), s 2, 20, 21, 34 — Occupational Health and Safety Regulations 2007 (Vic), regs 3.1.1, 3.1.2, 3.1.3.

Evidence — Admissibility — Expert opinion — Prior representations to expert as to facts forming basis for opinion — Relevance of opposing party's adoption of facts upon which expert opinion based — Evidence Act 2008 (Vic)

Criminal law — Sentencing — ``White collar'' crime — Insider trading — Dealing in proceeds of crime — Use of carriage service — Abuse of public office — Foreign exchange — Derivatives market — Market characteristics conducive to large gains or losses — Highly sensitive official data — Main economic indicators — Co-offender's unauthorised release of embargoed information — Deliberate trading losses to conceal insider trading — Relevant considerations — Gravity — Motivation — Profits — Third party losses — Adverse effect on ABS reputation — General deterrence — Parity — Co-offender charged with different offences — Corporations Act 2001 (Cth) ss 1043A and 1311(1) — Criminal Code (Cth) ss 372 and 400.

Criminal law — Sexual offences — Incest — Accused in personal relationship with victim's mother — Nature of relationship — Relevance of parental relationship between accused and victims — Jury directions — Adequacy — ``De facto spouse'' — ``Living together as if they were married'' — Crimes Act 1958 (Vic) s 35(1) — Jury Directions Act 2013 (Vic) ss 8, 10, 11, 15

Criminal law — Procedure — Indictment — Amendment — Stay of previous indictment — Stay withdrawn — Whether court functus officio — Criminal Procedure Act 2009 (Vic) ss 164(4), 165(1), 412

Criminal law — Incest — Directed acquittals on certain charges — Whether trial on remaining charges prejudiced by evidence relevant only to acquittals — Rational forensic decision of defence counsel not to seek discharge of jury — No miscarriage of justice

Evidence — Uncharged acts — Tendency evidence — Sexual interest in complainant — Video and recorded evidence — Leading questions — Evidence Act 2008 (Vic) ss 37, 101, 137

CONTEMPT OF COURT — Pleadings — No requirement for `contumacy' to be specifically pleaded — Procedural fairness — Requirement for alleged contemnor to be on notice of potential criminal consequences

PRACTICE AND PROCEDURE — Discovery — Whether discovery available against alleged contemnor — Corporate defendant — Whether discovery unavailable by reason of contempt proceeding being `criminal' and `accusatorial' — Leave to appeal refused

PRACTICE AND PROCEDURE — Appeals — Jurisdiction to hear appeals by persons convicted of contempt — Criminal Procedure Act 2009 (Vic) s274

Criminal law — Evidence — Unreliable evidence warning — Complainant suffering cognitive disability recounting events alleged to have occurred 30 years previously when complainant a child — Evidence Act 2008 (Vic) ss 165(1)(c), (2)

Criminal law — Evidence — Admissibility — Previous representations — Whether occurrence of asserted fact fresh in the memory when previous representations made — `Fresh in the memory' — Evidence Act 2008 (Vic) s 66

Criminal law — Sentencing — Crown appeal — Manifest inadequacy — Occupational health and safety — Employer's failure to ensure that persons other than employees were not exposed to risks to health and safety — Three charges — Failure causal of death to user of plant — Employer company fined an aggregate of $250,000 — Case not suitable for aggregate fine — Residual discretion to dismiss Crown appeal despite inadequacy of sentence — Appeal dismissed — Sentencing Act 1991 (Vic) s 51 — Occupational Health and Safety Act 2004 (Vic) s 23

Criminal law — Reservation of questions of law — Occupational health and safety — Offences — Road construction works — Workplace accident — Death of employee of sub-contractor — Charges brought against head contractor and VicRoads as commissioning authority — Validity of charges — Statutory duties — Duty under road safety legislation to ensure works conducted safely — Employers' duties under occupational health and safety legislation — Defendants contending that one legislative regime displaced another — Defendants performing functions under road management legislation — RMA regime requiring compliance with RSA duty — Alleged inconsistency between RMA and OHSA regimes — Road Safety Act 1986 (Vic) ss 3, 99A, 99B — Road Management Act 2004 (Vic) ss 3, 4, 5(1), 20, 24–28, 33, 34, 39, 47, 48 — Occupational Health and Safety Act 2004 (Vic) ss 21(1), 23 — Transport Integration Act 2010 (Vic) ss 6, 8–13

Criminal law — Sentencing — Crown appeal — Reckless conduct endangering life — Blackmail — Attempting to pervert the course of justice — Sentence of six months' imprisonment — Cumulation — Whether sentence for attempting to pervert the course of justice and total effective sentence manifestly inadequate — Residual discretion not to interfere — Power to adjust manifestly inadequate individual sentence if total effective sentence unaffected — Criminal Procedure Act 2009 (Vic) s 289