Criminal law — Charge — Particulars — Validity of charge — Occupational health and safety — Obligation so far as reasonably practicable to provide safe working environment — Alleged failure to give employees ‘such instruction and training as was necessary’ — Whether particulars required to specify why instruction and training was necessary — Occupational Health and Safety Act 2004 (Vic) s 21(1) and (2)(e) — Criminal Procedure Act 2009 (Vic) s 6(3)(c), sch 1, cl 1

Criminal law — Trial — Case management — Obligations of counsel — Challenge to validity of charge — Adequacy of particulars — Objection to be raised at earliest opportunity — Criminal Procedure Act 2009 (Vic) ss 199, 200

Contract — Successive facility agreements in respect of same loan facility — Whether second facility agreement replaced or merely amended first facility agreement

Contract — Construction — Whether facility agreement came within meaning of ‘mortgage documents’

Contract — Borrowers’ contractual obligation to pay costs — No entitlement to costs where nothing in fact owed

Statutes — Interest — What constitutes a ‘demand’ — Supreme Court Act 1986 (Vic) s 58

Practice and procedure — Open justice — Suppression orders — Pseudonym order — Applicant previously granted pseudonym order — News media organisation independently ascertained applicant’s identity — ‘Proceeding suppression order’ sought preserving anonymity of applicant and family — Whether existing pseudonym order prevented use of applicant’s real name in publications where identity independently ascertained — Whether use of real name in publications would constitute contempt of court — Open Courts Act 2013 (Vic) ss 4, 13, 17, 18

Criminal law — Judicial review — Road traffic offence — Probationary driver — Failure to display P plate — Conviction set aside on appeal to County Court — Whether error on face of the record — Whether honest and reasonable mistake as to presence of P plate relevant to proof of offence — Road Safety (Drivers) Regulations 2009 (Vic) reg 55(1)

Words and phrases — ‘Proudman v Dayman defence’ — ‘Absolute liability’ — ‘Strict liability’

Town and country planning — Appeal — Objection to grant of planning permit — Whether ‘objection’ must contain a positive statement of opposition to the grant of the permit — Minimum requirements for a valid objection — Planning and Environment Act 1987 (Vic)s 57(1), (2)

Practice and procedure — Discovery — Document discovered in earlier proceeding — Implied undertaking not to use document except for purposes of that proceeding — Contents of document referred to in open court in interlocutory hearing — Reference to contents asserted to be alternative source of information — Different proceeding commenced relying upon document — Tender of document at subsequent interlocutory hearing in original proceeding — Whether implied undertaking brought to end — Whether commencement of proceeding abuse of process of the Court — Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 23.01

Companies — Financial assistance — Company constitution — Pre-emptive rights over disposition of issued shares — Company seeking enforcement against shareholder of rights in company’s constitution — Whether assistance to other shareholders — Corporations Act 2001 (Cth) s 260A

Companies — Constitution — Contract — Standing — Whether company has standing to enforce provision of constitution regulating pre-emptive rights among shareholders — Corporations Act 2001 (Cth) s 254D

Practice and procedure — Discovery — Implied undertaking as to use of discovered document — Release of undertaking

Contempt of court — Purging contempt — Failure to obtain leave to use document discovered in other proceedings — Application for retrospective leave to use document — Whether application for leave required to purge contempt — Nature of application for leave

Practice and procedure — Service by post — Proof of service — Whether final notice issued by the Commissioner of Taxation proved as served by post

Pleadings — Application to strike out pleadings — Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 — Legal Profession Uniform Laws 366

Professions — Legal profession — Receiver — Immunity for act or omission of receiver of law practice done in good faith and purported exercise of functions — Legal Profession Uniform Law ss 341, 366

Practice and procedure — Parties — Death of defendant — Application for substitution of defendant — Court ‘may order’ — Whether power of Court to order substitution discretionary — Whether obligation to make order in absence of disentitling circumstances — Nature of disentitling circumstances — Relevance of ‘overarching purpose’ — Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 9.09 — Civil Procedure Act 2010 (Vic) ss 7 , 8, 9 — Administration and Probate Act 1958 (Vic) s 29

Contract — Franchise agreement — Construction — Whether agreement a ‘franchising agreement’ within the meaning of Estate Agents Act 1980 (Vic) s 43(5) — Whether franchisee authorised to carry on business under same ‘name’ as franchisor — Estate Agents Act 1980 (Vic) s 43(5)

Agency and agents — Estate agent — Franchise agreement — Whether ‘franchise agreement’ within statutory definition — Carrying on business under ‘name’ — Interpretation of Legislation Act 1984 (Vic) ss 35(a), 35(b) — Estate Agents Act 1980 (Vic) ss 43(5), 72, 73, 75, 79, 84

Real property — Possession — Mortgagee’s judgment for possession of land — Enforcement by execution of warrant of possession — Subsequent re-entry by mortgagor — Whether Court has power to give leave for application for fresh warrant — Whether Court has ancillary power to restrain mortgagor from attempting a further re-entry — Court’s inherent jurisdiction to protect its processes — Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 66.15, 1.15

Criminal law — Murder — Conviction — Several possible acts causing death — Whether trial judge erred by improperly directing jury regarding need for unanimity as regards act or acts causing death — Whether failure to provide jury with complete transcript of charge resulted in substantial miscarriage of justice — Whether failure of trial counsel to put rarity of injury to expert resulted in substantial miscarriage of justice — Whether verdict unsafe or unsatisfactory

Practice and procedure — Accident compensation — Asbestosis claim — Inspection of property — Application by defendant for an order requiring submission of plaintiff’s explanted lung for testing — Production of a thing — Whether lung ‘property’ — Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 34.01, 37.01, 40.12 — Civil Procedure Act 2010 (Vic) ss 9, 47

Estoppel — Proprietary estoppel — Remedies — Constructive trust — Promise to transfer on death — Deceased granting only life interest — Whether court obliged to consider a lesser equitable remedy than imposition of a constructive trust — Whether third parties in need of protection

Limitation of actions — Action to recover land — Proprietary estoppel — Claim for constructive trust — Delay of more than 15 years in bringing action — Whether proceeding ‘to recover from the trustee trust property’ — Limitation of Actions Act 1958 (Vic) ss 8, 11, 21, 22 — Trustee Act 1958 (Vic) s 3

Trust and trustees — Constructive trust — Proprietary estoppel — Creation of trust — Whether a constructive trust arises at the time of a court’s declaration or at the time of the conduct giving rise to that trust

Contract — Breach — Penalties — Contract for sale of land — Liquidated amount exceeding paid deposit claimed from purchaser on termination for fault — Right to sue for damages retained — Whether obligation to pay further amount unenforceable as a penalty

Sale of land — Deposit — Default by purchaser — Return of purchaser’s deposit — Principles applied in the exercise of judicial discretion to return — Property Law Act 1958 (Vic) s 49(2)

Legal Practitioners — Unqualified persons — Designated local regulatory authority — Investigator — Action against unqualified entity — Immunity for act or omission done in good faith and purported exercise of functions — ‘Good faith’ — Legal Profession Uniform Law ss 467(1), (2)

Banks and banking — Mortgages and securities — Unconscionability — Appeal from summary judgment in favour of mortgagees — Asset-based lending — Whether defence had no real prospect of success — Whether unconscionability required moral obloquy — Australian Consumer Law s 21 — Australian Securities and Investments Commission Act 2001 (Cth) s 12CB — Civil Procedure Act 2010 (Vic) ss 61, 63, 64

Criminal law — Practice and procedure — Application by prosecution to withdraw charge — Contested hearing previously commenced before another Magistrate — Application granted without according accused opportunity to make submissions — Procedural fairness — Court’s power to reject application to withdraw charge

Contract — Release — Construction — Whether right to marshal released

Equity — Anshun estoppel — Whether creditor reasonable not to have brought marshalling claim in earlier proceeding

Equity — Marshalling — Whether equity should assist where debtor refused request to grant security over other property — Whether equity should assist if creditor solicitor did not comply with disclosure obligations in Legal Practice Act 1996 (Vic) owed to debtor client

Mortgages — Marshalling — Whether binding agreement as to order of sale of mortgaged properties — Whether debt arose after sale of common property — Whether variation to second mortgage created new mortgage not the subject of claimed right to marshal — Whether creditor would receive more than bargained for

Trusts — Declaration of trust — Whether debtor capable of declaring trust after bankruptcy — Property Law Act 1958 (Vic) s 53(1)(c)

Trusts — Constructive trust — Whether claimant made financial or non-financial contributions — Whether non-financial contributions contributed to acquisition, maintenance or improvement of property

Compulsory acquisition — Compensation — Partial acquisition of land — Claim for loss of market value — Applicable principles — Whether claim was in substance a claim for injurious affection — Whether ‘before and after’ assessment of market value of land undertaken correctly — Whether events subsequent to date of acquisition relevant to assessment of market value — Whether cap on solatium assessed correctly — Land Acquisition and Compensation Act 1986 (Vic) ss 41(1)(a), 41(1)(e), 41(3), 44

Companies — Oppression — Deadlock — Equal shareholders and managers of private company — Whether conduct contrary to interests of members as a whole — Whether conduct unfairly prejudicial to or unfairly discriminatory against a member — Whether conduct giving rise to oppression must be continuing at time of hearing — Whether winding up on just and equitable ground justified — Whether ‘some other remedy’ available — Whether other remedy must be a legal remedy — Corporations Act 2001 (Cth) ss 232(d), 232(e), 233, 461(1)(k), 467(4)

Criminal law — Appeal — Sentence — Commonwealth offence — Guilty plea — Whether person who pleads guilty to Commonwealth offence entitled to discount for utilitarian benefit of plea — Common law and State provisions concerning discount to be allowed for a plea of guilty — Crimes Act 1914 (Cth) s 16A(2)(g)

Precedent — Comity — Decision of intermediate appellate court explaining reasoning of High Court — Whether other courts obliged to follow unless plainly wrong

Criminal law — Sentence — Comparable cases — Utility of schedule of comparable cases — Use of contrasting cases — Whether sentencing judge restricted to consideration of sentences in cases referred to by parties

Criminal law — Appeal — Sentence — Manifest inadequacy

Practice and procedure — Group proceedings — Witnesses — Contractual confidentiality obligations — Public interest — Application to interview potential witnesses without risk of civil sanction — Whether confidentiality clause in employment contract prevented witnesses from conferring with party’s solicitors pre-trial — Civil Procedure Act 2010 (Vic) s 48

Contract — Damages for breach — Damages for distress, anxiety and depression — Whether damages recoverable — Whether damages for ‘non-economic loss’ — Whether damages awarded ‘in respect of an injury’ — Damages for inconvenience — Damages for loss of income and loss of opportunity — Remoteness — Whether loss of income from existing business foreseeable — Where compensatory damages less than admitted amount of restitution — Whether unjust to recover the lesser amount — Wrongs Act 1958 (Vic) ss 28LB, 28LC, 28LE, 28LF

Estoppel — Issue estoppel — Single proceeding against two defendants conducted as separate trials — Whether necessary to show privity of interest between defendants — Whether second trial raised issues resolved in first trial

Practice and procedure — Abuse of process — Single proceeding against two defendants conducted as separate trials — Procedure adopted to accommodate one defendant’s illness — Whether claims in first trial relitigated in second trial — Whether oppression or unfairness to defendant in second trial

Criminal law — Pardon — Effect — Removal of consequences of conviction — Settlement of claim for damages suffered by plaintiff while imprisoned — Whether Court’s approval required for settlement of pardoned plaintiff’s claim against State for negligence while a prisoner — Corrections Act 2006 (Vic) pt 9C, s 109P(1)

Crown — Royal prerogative — Mercy — Whether displaced by statute — Presumption against displacement — Sentencing Act 1991 (Vic) s 106

Trespass — Trespass to property — Incursion into airspace over residential property — ‘Weathervaning’ by crane — Whether incursion trivial or de minimus — Nature of relief to be granted

Remedies — Injunction — Whether prima facie entitlement to injunction against trespass by incursion into airspace — Discretionary considerations relevant to grant of injunction

Stamp duty — Assessment — Transfer of dutiable property — Exception — ‘Goods held or used in connection with primary production’ — Whether wine-making equipment within exception — Meaning of ‘in connection with’ — Duties Act 2000 (Vic) s 10

Practice and procedure — Abuse of process — Stay of proceedings — Class action — Investor claiming against public listed company — Applicant created as vehicle for bringing class actions against listed corporations — Predominant purpose of proceeding to gain from ancillary orders recompensing applicant as lead plaintiff and other consequential gains of associates — Whether improper collateral purpose

Companies — Directors — Liability for insolvent trading — Adviser providing services to client through management consulting company — Adviser appointed as director of client — Whether management consulting company was ‘shadow director’ or ‘de facto director’ of client company — Corporations Act 2001 (Cth) s 9

Insolvency — Insolvent trading — Claim by liquidators against director — Whether standing to seek declaration against director’s insurer — Whether justiciable controversy — Effect of deed of settlement — Bankruptcy Act 1966 (Cth) s 117 — Corporations Act 2001 (Cth) s 562

Insurance — Professional indemnity policy — Claim by liquidators against director — Whether standing to seek declaration against director’s insurer — Whether justiciable controversy — Construction of terms — Whether liability incurred in the course of the insured’s provision of ‘professional services’ — Non-disclosure and misrepresentation — Failure to disclose insured’s directorship of client company — Deed of settlement — Settlement between insured and liquidators of client company — Whether settlement limited loss recoverable under insurance policy — Insurance Contracts Act 1984 (Cth) ss 21, 26, 28