Administrative law — Judicial review — Legislation referring to considerations decision-maker ‘should’ take into account — Whether reference to ‘should’ obligatory — Environment Protection Act 1970 (Vic), ss 1B–1L

Planning and environment — Amendment of licences by Environment Protection Authority on own motion — Whether failure by decision-maker to take into account mandatory considerations — Whether identified matters must be considered by decision-maker — Environment Protection Act 1970 (Vic), ss 1B–1L, 20(9), 20B, 20C — Climate Change Act 2017 (Vic), s 17

Planning and environment — Permit for development — Amendment — Permit granted for commercial development of dwellings — Proposed amendment to permit to construct residential hotel — Whether proposed amendment lawful — Whether proposed amendment impermissible as a transformation of permitted development — Meaning of ‘amendment’ — Planning and Environment Act 1987 (Vic), ss 3, 72

Administrative law — Tribunals — Summary dismissal — Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 75

Administrative law — Freedom of information — Access — Records of information stored electronically only — Whether ‘documents of an agency’ — Whether ordinary access provisions apply — Whether provisions relating to use of computers apply — Higher access charges for access under computer provisions — Freedom of Information Act 1982 (Vic), ss 17, 19

Words and phrases — ‘document’ — ‘document of an agency’

Planning and environment — Easement — Restrictive covenant — Prohibition of planning permit in breach of registered restrictive covenant — Implied easement in owners corporation rules — Definition of ‘restriction’ in Subdivision Act 1988 — Whether inhibitions on works in owners corporations rules constituted restriction as defined — Whether grant of permit futile in absence of consent of owners corporation — Planning and Environment Act 1997 (Vic), s 61(4) — Subdivision Act 1988, ss 3, 12(2)

Words and phrases — ‘restriction’ — ‘registered restrictive covenant’

Administrative law — Tribunals — Merits review — Power of tribunal to amend documents in the proceeding — Application to review refusal to approve work plan variation — Applicant seeking to substitute work plan variation — Whether tribunal’s power to amend engaged — Whether in substance Tribunal would be reviewing original decision or making original decision — Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 127

Words and phrases — ‘amend’ — ‘document in a proceeding’ — ‘decision’

Practice and procedure — Appeal — Nature of appeal from Associate Judge to a Judge of the Trial Division — Admission of fresh evidence on appeal — Relevant considerations — Civil Procedure Act 2010 (Vic) — Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 64.13, 64.36(3), 77.06.9

Evidence — Appeal — Appeal from Associate Judge — Further evidence — Requirements for admission — Civil Procedure Act 2010 (Vic) — Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 64.13, 64.36(3), 77.06.9

Tort — False imprisonment — Whether plaintiff imprisoned without lawful authority — Plaintiff released on parole — Cancellation of parole — Plaintiff re-imprisoned — Cancellation subsequently quashed on judicial review — Whether arrest warrant valid despite unlawful parole cancellation — Corrections Act 1986 (Vic), ss 61, 68, 69, 71K, 73A, 77

Companies — Members — Register — Inspection of register of members — Member’s ‘address’ in register of members — Whether ‘address’ includes any email address nominated by member — Whether email addresses nominated by members available for inspection — Corporations Act 2001 (Cth), ss 169(1), 173

Words and phrases — ‘address’

Criminal law — Mandatory sentencing — Whether ‘substantial and compelling circumstances’ which were ‘exceptional and rare’ — Sentencing Act 1991 (Vic), s 10AD

Criminal law — Sentencing principles — Mandatory sentencing contrary to contemporary sentencing jurisprudence — Community interest — Injustice — Need for reform

Practice and procedure — Appeal — Security for costs — Application for security made against natural person applicants for leave to appeal — Factors — Impecuniosity — Whether finding of impecuniosity required to establish magnitude of risk that applicants would not be able to meet a costs order — Whether judgment debt subject to appeal should be taken into account in assessing risk that applicants would not be able to meet a costs order — Relevance of cross-appeal — Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 64.38(4)

Practice and procedure — Magistrates’ Court — Family Violence Intervention Order proceedings — Substitution of complainant — Whether application to substitute complainant was withdrawal of application — Whether statutory power to order substitution of another party in place of police officer as applicant — Family Violence Protection Act 2008 (Vic), ss 4, 60(e), 100, 108,170, 209 — Magistrates' Court (Family Violence Protection) Rules 2018 (Vic), rr 4.05, 4.08, 15.03, 15.04

Trusts and trustees — Retirement of trustee — Prohibition of secret commission — Superannuation fund — Application by trustee for Supreme Court assent and consent to receive and give benefit for retirement of existing trustee and appointment of new trustee — Crimes Act 1958 (Vic), s 180 — Crimes Act 1900 (NSW), s 249E — Criminal Code Act Compilation Act 1913 (WA), s 535 — Criminal Code Act 1899 (Qld), s 44F, sch 1

Civil procedure — Cross-vesting — Jurisdiction to grant consent under legislation of other states — Exclusion of criminal matters — Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), ss 4(5), 9 — Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld), s 4 — Jurisdiction of Courts (Cross-vesting) Act 1987 (WA), s 4

Trust and trustee — Judicial advice — Charitable trust — Breach of trust — Liability of trustee — Withdrawals of trust capital — Whether trustee liable to restore withdrawn capital — Whether rules of equitable accounting apply to charitable trust — Whether perpetuity an object of a charitable trust — The Uniting Church in Australia Act 1977 (Vic), ss 13(2), 29(1)(b), (3)(c), 35

Trust and trustee — Defaulting trustee — Relief for actual or potential breaches — Whether trustee of charitable trust personally liable for actual or potential breaches of trust — Formulation of relief — Trustee Act 1958 (Vic), s 67

Interest — Judgment sum — Further provision under Administration and Probate Act 1958 (Vic) — Whether a debt or ‘sum certain’ that was ‘recovered’ in the proceeding — Whether successful claimant a creditor of estate or executor — Whether plaintiff entitled to interest on amount ordered — Supreme Court Act 1986 (Vic), s 58(1) — Administration and Probate Act 1958 (Vic), s 91

Words and phrases — ‘sum certain’

Criminal law — Sentence — Family violence — Purpose of sentencing — Sentencing principles — Objective gravity of offending — Requirements of just punishment, public denunciation, general deterrence and community protection — Community corrections order and combination sentence — Current sentencing practices — Presumption of concurrency — Presumption of cumulation — Application of the principle of totality — Whether sentence manifestly inadequate — Sentencing Act 1991 (Vic), s 6E

Criminal law — Case stated — Murder — Joint commission — Necessary elements to establish complicity — Involvement of accused in the commission of an offence — State of mind of secondary party — Acts of secondary party — Whether secondary party must share intention of primary offender — Crimes Act 1958 (Vic), ss 323(1)(a), (c), 324

Administrative law — Judicial review — Local government — Resolution of municipal council — Whether resolution affected by apprehended bias — Whether council’s resolution a ‘decision’ giving rise to right to request reasons — Whether council obliged to give reasons — Whether council’s resolution affected legal rights of the plaintiffs — Public Health and Wellbeing Act 2008 (Vic), s 62 — Administrative Law Act 1978 (Vic), ss 2, 8

Arbitration — Appeal from decision of arbitrator — Appeal on a question of law — Approach to appeal where arbitrator’s decision turns on question of construction — Commercial Arbitration Act 2011 (Vic), s 34A(3)(c)(i)

Words and phrases — ‘obviously wrong’

Administrative law — Victorian Civil and Administrative Tribunal — Jurisdiction and powers of tribunal — Joinder of party — Costs — Whether VCAT can join a person as a party to a proceeding for the sole purpose of making a costs order against that person — Factors relevant to exercise of power to join — Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 60(1)(c), 109

Administrative law — Victorian Civil and Administrative Tribunal — Jurisdiction and powers of tribunal — Costs — Costs against third party — Application for costs against director of insolvent respondent — Factors relevant to making costs order against joined party — Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 60, 109

Contract — Policy of insurance — Settlement — Whether accord and satisfaction or accord executory — Whether binding contract or whether settlement arose in course of insurer’s business — Consideration moving from promisee — Unilateral contract

Contract — Election — Whether rights inconsistent — Whether claim abandoned

Insurance — Claims preparation costs — Claims advocacy costs

Equity — Securities — Marshalling — Apportionment — First-ranking mortgagee exercised rights over one property and discharged first mortgage over another — Discharge rendered interest of second-ranking mortgagee valueless — Whether second-ranking mortgagee entitled to marshalling by apportionment

Insurance — General insurance — Third party beneficiary — Builder required to obtain insurance against damage to adjoining property — Whether insurance for building party’s liability for damage to adjoining property satisfied statutory obligation — Distinction between property damage insurance and liability insurance — Building Act 1993 (Vic), s 93(1)(a) — Insurance Contracts Act 1984 (Cth), ss 11, 20, 48

Practice and procedure — Judicial review — Resolution by consent — Agreement of parties to set aside decision — Independent consideration by Court of whether to make orders

Administrative law — Tribunals — Whether jurisdictional error in exercise of decision-making power — Conceptual considerations

Administrative law — Standing — Incorporated association — Association incorporated after impugned decision made — Whether objects of association sufficient to establish special interest

Planning and environment — Permit for development — Extension of permit — Extension under condition of permit — Validity of condition — Validity of extension — Specific power to extend permits contained in legislation — Whether s 69(2) of Planning and Environment Act 1987 (Vic) exclusive source of power to extend permits — Planning and Environment Act 1987 (Vic), ss 62, 69

Real property — Crown land — Lease — Invalid lease — Grant in contravention of Land Act 1958 — Failure to observe procedural fairness to affected persons — Lease registered under Transfer of Land Act — Indefeasibility of title — Whether conduct of registered proprietor unconscientious — Whether affected persons had in personam cause of action against registered proprietor — Land Act 1958 (Vic), ss 12, 134, 137 — Transfer of Land Act 1958 (Vic), ss 8, 26, 40, 41, 42

Constitutional law — Commonwealth — Victoria — State boundaries — Offshore Constitutional Settlement — Land vested in State outside boundary of State — Whether sea-bed vested in State within purview of Land Act 1958 — Land Act 1958 (Vic), s 4 — Coastal Waters (State Powers) Act 1980 (Cth), s 5 — Coastal Waters (State Title) Act 1980 (Cth), s 4(1)