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[1985] VR(91 results)

Cases reported in this volume of the Victorian Reports

CHELFCO NINETY-FOUR PTY LTD v ROAD TRAFFIC AUTHORITYVR 1

MURPHY J·17 Aug 1984·

Licensing - Passenger ferry licences - Determination of licensing authorities - "Authority" - "Appropriate authority" - Powers of licensing authorities - Delegation of powers - Transport Act 1983 (No. 9921), s2, s32, s86, s199, s201, s204.

Administrative law - Delegation - Dictation.

Administrative law - Locus standi - "Person affected" - Administrative Law Act 1978 (No. 9234), s2, s3.

Administrative law - Remedies - Discretion - Grounds for exercise.

THE SOUTH YARRA PROJECT PTY LTD v GENTSISVR 29

KAYE J·20 July 1984·

Trust and trustee - Constructive trust - Circumstances in which equity will impose a constructive trust - Equitable fraud - Sub-lease of premises and lease of business thereon with options to renew - Exercise by sub-lessee - of option to renew sub-lease but refusal by sub-lessee to renew business lease - Assertion by sub-lessee of right to remain in possession of business - Whether sub-lessee's conduct amounted to equitable fraud - Whether sub-lessee held premises upon trust for lessee.

Landlord and tenant - Sub-lease of premises and lease of business thereon with options to renew - Exercise by sub-lessee of option to renew sub-lease but refusal by sub-lessee to renew business lease - Assertion by sub-lessee of right to remain in possession of business - Whether sub-lessee's conduct amounted to equitable fraud - Whether sub-lessee held premises upon trust for lessee.

R v YATESVR 41

YOUNG CJ STARKE , CROCKETT , MURPHY and HAMPEL JJ·25 Sept 1984·

Criminal law - Sentence - Whether judge can take into account likelihood of early release - Community Welfare Services Act 1970 (No. 8089), s190 - Penalties and Sentences Act 1981 (No. 9554), s11A - Community Welfare Services (Pre-Release Programme) Act 1983 (No. 9968), s198A.

McLAUGHLIN v HALLIDAYVR 51

TADGELL J·16 Aug 1984·

Health - "Offensive matter" - Meaning of - "Waste matter" Meaning of - Cardboard, cartons and paper falling from trailer on to roadway - Whether offensive matter - Health Act 1958 (No. 6270), s3, s54(b).

WARNE v THOMAS BORTHWICK and SONS (AUSTRALASIA) LTDVR 55

TADGELL J·30 May 1984·

Negligence - Employer - Duty to provide a safe system of work - Regulation requiring factory floor to have a slip resistant surface - Floor becoming slippery as a result of trimmings being dropped on it - Employee slipping and suffering personal injury - Whether breach of the regulation committed - Whether plaintiff had a cause of action arising out of breach of the regulation - Labour and Industry (Factories) Regulations 1969, reg3(b).

WILLIAMSON v G J COLES and CO LTDVR 59

YOUNG CJ, MURRAY and O'BRYAN JJ·15 Sept 1983·

Negligence - Occupier's liability - Personal injuries - Invitee - Supermarket - Shampoo on floor - Slipping - Unusual danger - Knowledge - Reasonable care - Evidence - Sufficiency.

ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY LTD v COMPTROLLER OF STAMPSVR 70

TADGELL J·9 Dec 1983·

Deeds - Mortgage - Delivery - Absolute or conditional - Escrow - Instrument executed by mortgagor and sent to mortgagee for execution - When instrument became effective as mortgagor's deed.

Stamp duty - Mortgage - Instrument executed by mortgagor and sent to mortgagee for execution - When instrument became effective as mortgagor's deed - Whether instrument assessable to stamp duty - Stamps Act 1958 (No. 6875), s17(4), s30.

SEXTUS PTY LTD v McMILLANVR 81

O'BRYAN J·13 Aug 1984·

Practice and procedure - Commercial causes - Whether action against solicitors for professional negligence constitutes a commercial cause - Rules of the Supreme Court, Ch. II, O. 14, r2(1).

GRE INSURANCE LTD v QBE INSURANCE LTDVR 83

ANDERSON, MURRAY and MCGARVIE JJ·16 Aug 1984·

Insurance - Fire insurance - Double insurance - Contribution - Each policy containing rateable proportion clause - Condition in one policy that benefit thereunder forfeited if notice of other insurance not given - Effect upon liability of insurer - Effect of rateable proportion clause - Whether insurer who paid whole amount of loss although under no obligation to do so entitled to contribution - Method of apportionment - Measure of indemnity - Instruments Act 1958 (No. 6279), s27.

R v KEHAGIAS, LEONE and DURKICVR 107

STARKE , MURPHY and HAMPELL JJ·27 June 1984·

Criminal law - Rape - Corroboration - Previous statement of complainant - Use to be made of - Evidence - Identification - Crimes Act 1958 (No. 6231), s62(3).

VOWELL v STEELEVR 133

BEACH J·28 Aug 1984·

Administrative law - Judicial review - Decision of Committee of Victoria Racing Club - Whether "decision" to which the Administrative Law Act 1978 applies - Administrative Law Act 1978 (No. 9234), s2, s3.

TEA (1983) LTD (In Liquidation) v THE UNITING CHURCH (NSW) TRUST ASSOCIATIONVR 139

BROOKING J·25 Oct 1983·

Bills of exchange - Pledge of bills of exchange as security for loan - Redelivery of bills in exchange for cheque in payment of loan - Cheque dishonoured - Whether lender entitled to bills - Implied terms in contract of loan.

PRACTICE NOTEVR 146

NIEMANN v COMMISSIONER FOR CORPORATE AFFAIRSVR 147

CROCKETT, MURPHY and GRAY JJ·4 Oct 1984·

Companies - Liquidation - Costs of persons engaged by liquidator - Taxation - Whether bills exceeding $1000 must be taxed - Rules of the Supreme Court (Companies Rules) 1962, r110, r114, r117.

ABBOTT v COMMISSIONER OF LAND TAXVR 164

YOUNG CJ, CROCKETT and KING JJ·12 Sept 1979·

Land tax - Exemption - Parcel of land used for two purposes - One purpose exempt - Whether whole parcel primarily used for exempt purpose - Land Tax Act 1958 (No. 6289), s3(1), s9(1).

MOTOR ACCIDENTS BOARD v JOVICICVR 171

MCGARVIE J·19 Sept 1984·

Motor vehicles - Motor Accidents Board - Liability of Board to pay compensation - Accident victims who appear to be entitled to payments pursuant to Workers Compensation Act 1958 - Discretion of Board in making payment to such victims - Mode of exercise of discretion - Motor Accidents Act 1973 (No. 8429), s15 - Workers Compensation Act 1958 (No. 6419), s8(2A), s8(2B), s8(2C), s8(2D), s8(2E), s8(2F), s8(2G), s8(2H).

BROWN v BADEVR 182

MURPHY J·30 Nov 1983·

Liquor licensing - Sale of liquor - Permit to sell liquor for consumption with or ancillary to meals or substantial refreshments - Whether licensee who has substantial refreshment available but does not expect it to be consumed by drinkers is selling liquor in accordance with terms of permit - Liquor Control Act 1968 (No. 7695), s26.

PROTEAN (HOLDINGS) LTD (RECEIVERS AND MANAGERS APPOINTED) v AMERICAN HOME ASSURANCE COVR 187

MARKS J, FULL COURT: YOUNG CJ, FULLAGAR AND TADGELL JJ·24 May 1984·

Insurance - Fire insurance - Deliberate lighting of fire - Burden of proof.

Insurance - Fire insurance - Misrepresentations of material facts - Evidence of falsity - Inducement.

Insurance - Fire insurance - Non-disclosure of material facts - Materiality - Knowledge of insurer - Constructive knowledge - Waiver.

Practice and procedure - Submission of no case to answer - Whether party making submission should be put to election or not - Applicable principles - Functions of judge in ruling upon submission of no case to answer.

Practice and procedure - Action on insurance policy - Insurer raising defence of deliberate lighting by insured, misrepresentation and non-disclosure - Whether insured entitled to split case - Applicable principles.

CLEMENTS v SEBOVR 241

BEACH J·28 Aug 1984·

Administration and probate - Probate duty - Hardship Relief Board - Application for relief from duty - Power of Board to entertain application made after duty has been paid - Probate Duty Act 1962 (No. 6890), s38B.

Administrative law - Statutory tribunal - Hardship Relief Board - Natural justice - Form of "hearing" to which applicant is entitled before decision is made.

Administrative law - Statutory tribunal - Hardship Relief Board - Bias - Prejudgment - Expression of opinion by a tribunal member in advance of hearing.

INDRISIE v GENERAL CREDITS LTDVR 251

YOUNG CJ , CROCKETT and NICHOLSON JJ·22 Feb 1984·

Guarantee - Mortgage by guarantor to secure obligations under guarantee - Creditor claiming possession of mortgaged land - Cross-claim for unliquidated damages available to debtor against creditor - Whether available to guarantors as equitable set-off - Whether available to guarantors as defence.

Equity - Equitable set-off - Claim by creditor as mortgagee for possession of land mortgaged by guarantors to secure obligations under guarantee - Cross-claim for unliquidated damages available to debtor against creditor - Whether available to guarantors as an equitable set-off.

Mortgage - Demand for payment pursuant to mortgage agreement - Notice to pay - Identification of debt of which payment demanded.

R v KEAN and MILLSVR 255

YOUNG CJ , MURRAY and ORMISTON JJ·8 Aug 1984·

Criminal law - Appeal - Appeal from a ruling of Judge in course of trial - Supreme Court Act 1958 (No. 6387), s42 - Supreme Court (Amendment) Act 1984 (No. 10075) - Crimes Act 1958 (No. 6231), PtVI - Interpretation of Legislation Act 1984 (No. 10096), s35.

R v DAY and THOMSONVR 261

GOBBO J·13 June 1984·

Contempt of Court - Pending proceedings - Rape trial - Voir dire - Publication concerning exclusion of evidence upon voir dire during course of trial - Substantial tendency to prejudice trial - Relevant considerations - Whether s4 of Wrongs Act a bar to contempt proceedings - Whether fine appropriate - Wrongs Act 1958 (No. 6420), s4.

DAGE v BAPTIST UNION OF VICTORIAVR 270

STARKE J·31 Oct 1984·

Injunction - Interlocutory injunction - Senior student expelled from private school for unruly behaviour - Alleged wrongful expulsion contrary to natural justice - Question of law to be tried - Effect of expulsion upon performance in impending final examinations - Deprivation of use of school facilities and access to teachers - Balance of convenience.

BRINDS LTD v OFFSHORE OIL NLVR 277

STARKE, MURRAY and SOUTHWELL JJ·2 Feb 1984·

Appeal - Privy Council - Appeal from Full Court - Appeal as of right - Leave to appeal - Petition for winding up - Whether subject matter exceeded 1000 pds or 500 pds - Supreme Court Act 1958 (No. 6387), s218 - Order in Council of 23 January 1911 (UK).

HOY v AAA HOME LOANS PTY LTDVR 281

HAMPEL J·9 Oct 1984·

Real property - Transfer of land - Writ of fi. fa. - Service on Registrar of Titles - Period during which writ binds land - Whether protection may be extended by service of another copy of writ within initial period - Transfer of Land Act 1958 (No. 6399), s52.

CORTI v RODWELLVR 287

TADGELL J·2 Nov 1984·

Practice and procedure - Third party proceedings - Insurer under no obligation to indemnify until defendant is held liable to plaintiff - Right of defendant to issue third party notice against insurer - Rules of the Supreme Court, O.16A, r1.

MURRAGONG NOMINEES PTY LTD v PERMEWAN WRIGHT CONSOLIDATED PTY LTDVR 293

TADGELL J·22 Oct 1984·

Practice and procedure - Summary judgment for defendant - Whether application should be made by summons - Jurisdiction of Master to entertain application - Rules of the Supreme Court, O.14A, r1; O.40, r1; O.54, r14.

Practice and procedure - Masters - References of matter to a judge - Reference of an issue - Issue relating to jurisdiction of Master - Grounds upon which reference may be made - Rules of the Supreme Court, 0.54, r14, r15.

THE COMMISSIONERS OF THE STATE BANK OF VICTORIA v TRIPPVR 297

TADGELL J·25 Oct 1984·

Practice and procedure - Action for debt - Summons for final judgment - Sufficiency of affidavit in support - Whether deponent able to swear positively to transactions recorded in banking documents without personal knowledge - Rules of the Supreme Court, O.14, r1.

Contract - Illegality - Money advanced for purpose of starting price bookmaker's business - Whether contract of loan illegal - Evidence required.

Re ROLEX TRANSPORT PTY LTDVR 305

TADGELL J·1 Nov 1984·

Practice and procedure - Companies - Winding-up order - Petition - Affidavit verifying petition - Time at which affidavit should be sworn - Companies Rules 1962, r20 - Supreme Court (Companies and Securities) Rules 1982, O. 5, r2.

McNAIR ANDERSON ASSOCIATES PTY LTD v HINCH McNAIR ANDERSON ASSOCIATES PTY LTD v 3AW BROADCASTING CO PTY LTDVR 309

SOUTHWELL J·5 Oct 1984·

Contempt of court - Interlocutory injunctions - Breach - Injunction clear and unambiguous - Whether permissible to resort to reasons for judgment to aid construction of order - Intent to disobey - Honest belief that act did not constitute disobedience - Whether relevant.

R v EQUAL OPPORTUNITY BOARD; Ex parte BURNSVR 317

NATHAN J·4 May 1984·

Administrative law - Statutory tribunal - Equal Opportunity Board - Procedure - Natural justice - Duty to conciliate - Duty to inform respondent of allegations prior to hearing - Legal representation - Equal Opportunity Act 1977 (No. 9025), s35, s36.

Administrative law - Discrimination - Equal Opportunity Board - What constitutes "less favourable" treatment - Physical intrusions - What constitutes a benefit connected with employment - Right to quiet employment - Equal Opportunity Act 1977 (No. 9025), s16-s18.

WALLA v STATE TRANSPORT AUTHORITYVR 327

MURRAY J·16 Nov 1984·

Limitation of action - Application for extension of period during which action may be brought - Applicant ignorant of legal rights - Availability of respondent's witnesses - Exercise of court's discretion - Limitation of Actions Act 1958 (No. 6295), s23A.

PRACTICE NOTEVR 332

CRAWFORD v MURDOCHVR 333

HAMPEL J·8 Nov 1984·

Trust and Trustee - Trustee companies - Commission - Corpus - Calculation of commission - Whether on value of estate on date of distribution or commitment - Trustee Companies Act 1958 (No. 6402), s3, s17(5).

LUCIA HEIGHTS PTY LTD v THE COMPTROLLER OF STAMPSVR 338

MURRAY J·15 Feb 1985·

Mortgage - Equitable or legal - Loan agreement providing for execution of mortgage - Executory consideration - Executory agreement incapable of being specifically enforced. Stamp duty - Mortgage bond or covenant - Loan agreement providing for execution of mortgage - Executory consideration - Executory agreement incapable of being specifically enforced - Money secured wholly on property outside Victoria.

Re S (a Solicitor)VR 343

KAYE J·22 Feb 1985·

Legal practitioners - Application for readmission to practice by former practitioner who had been struck off the roll - Power of Court to readmit - Applicant struck off for pecuniary dishonesty - Matters for Court's consideration in determining application.

PRACTICE NOTE No 1 of 1985VR 350

R v VICTORIA TEACHING SERVICE CONCILIATION AND ARBITRATION COMMISSION; Ex parte BRIDESONVR 353

MURRAY J·14 Dec 1984·

Statute - Interpretation - Words importing the plural - Whether the singular included - Interpretation of Legislation Act 1984 (No. 10096), s39(d).

Industrial Law - Teaching service - Approved units and agents - Whether one unit permissible for entire teaching service - Teaching Service Act 1981 (No. 9714), s3, s5, s7, s30, s31.

SINN v NATIONAL WESTMINSTER FINANCE LTDVR 363

TADGELL J·24 Oct 1984·

Real property - Mortgagee - Caveat claiming interest under mortgage from joint proprietors - Caveat removed - Second caveat claiming interest under agreement to grant mortgage by one of joint proprietors - Whether same interest claimed in both caveats - Transfer of Land Act 1958 (No. 6399), s91(4).

MOULARAS v NANKERVISVR 369

ORMISTON J·8 Oct 1984·

Magistrates - Practice and procedure - Committal proceedings - Whether committal proceedings should be held in open or closed courts - Magistrates (Summary Proceedings) Act 1975 (No. 8731), s43(1).

STATE SUPERANNUATION BOARD OF VICTORIA v O'CONNORVR 380

YOUNG CJ , FULLAGAR and BEACH JJ·14 Nov 1984·

Appeal - Appeal from County Court to Supreme Court - Freedom of information - Appeal from judgment of County Court on appeal from principal officer of agency - "Matter" - County Court Act 1958 (No. 6230), s3, s74 - Freedom of Information Act 1982 (No. 9859), s50.

RWG MANAGEMENT LTD v COMMISSIONER FOR CORPORATE AFFAIRSVR 385

BROOKING J·18 Dec 1984·

Companies - Securities industry - Dealer's licence - Trading trustee - Liquidity conditions - Securities Industry (Victoria) Code, s51, s62, s134.

Trust and trustee - Trading trust - Trustee's right of indemnity out of trust assets - Rights of creditors in respect of trust assets.

WALLACE v HEALTH COMMISSION OF VICTORIAVR 403

STARKE , FULLAGAR and MARKS JJ·17 Dec 1984·

Administrative law - Freedom of information - Right of access to documents - Requirement of request in writing - Conscious voluntary act of person requesting - Request by person lacking mental capacity - Freedom of Information Act 1982 (No. 9859), s13, s17.

ROSENTHAL v PHILLIPSVR 409

MARKS J·14 Dec 1984·

Administrative law - Jurisdiction of Supreme Court - Documents seized pursuant to warrant issued under Commonwealth Act - Action for trespass and for declaration that warrants invalid - Whether Supreme Court has jurisdiction to grant relief - Administrative Decisions (Judicial Review) Act 1977 (No. 59) (Cth.), s9.

PRACTICE NOTE No 3 of 1985VR 417

VELJKOVIC v VRYBERGENVR 419

STARKE, FULLAGAR and MARKS JJ·17 Dec 1984·

Principal and agent - Ambiguous instructions - Duty of agent to clarify - Liability of agent acting on ambiguous instructions.

Insurance - Insurance agent - Ambiguous instructions from proposer - Duty of agent to clarify - Incorrect insurance effected - Circumstances in which agent liable.

GAUCI v DRISCOLLVR 428

O'BRYAN J·16 Apr 1984·

Criminal law - Drugs - Offer to sell - Whether essential to prove substance proffered was prohibited drug - Poisons Act 1962 (No. 6889), s3(1), s32.

THORNE v DOUG WADE CONSULTANTS PTY LTDVR 433

O'BRYAN J , FULL COURT: KAYE , MCGARVIE AND MARKS JJ·21 May 1985·

Town and country planning - Interim Development Order - Responsible authority - Planning permit - Notice of proposed works to other persons - Relevant considerations - Effect of regard to irrelevant considerations - Unreasonable exercise of discretionary power - Town and Country Planning Act 1961 (No. 6849), s18B. .

Town and country planning - Metropolitan Planning Scheme Ordinance - Responsible authority - Planning permit - Row houses - When permission required for building works - Building works involving increase to floor space - Metropolitan Planning Scheme Ordinance, CL7(1)(d)(iii). .

Administrative law - Locus standi - Declarations - Injunctions - Private rights _ Peculiar damage arising from interference with public rights - Whether s18B(1) of the Town and Country Planning Act 1961 creates private rights - Interests of neighbours in enforcing planning laws. .

Administrative law - Remedies - Declarations - Injunctions - Discretion - Considerations relevant to exercise. .

Costs - Appeal - Whether appeal as to costs may be entertained without leave of trial judge where appeal on merits fails - Supreme Court Act 1958 (No. 6387), s39 - Rules of the Supreme Court, O.65, r1. .

Costs - Discretion to award - Considerations relevant to exercise - Bullock orders Sanderson orders.

PRACTICE NOTE No 2 of 1985VR 504

R v TILLEYVR 505

BEACH J·19 Nov 1984·

Criminal law - Evidence - Expert opinion - Evidence of stylistic analysis.

R v ROFFELVR 511

YOUNG CJ, CROCKETT and BROOKING JJ·19 Dec 1984·

Criminal law - Theft - Appropriation - Director drawing cheques on company's account for own benefit - Consent - Whether appropriation - Crimes Act 1958 (No. 6231), s72, s73.

PRACTICE NOTE No. 4 of 1985VR 532

POYSER v COMMISSIONER FOR CORPORATE AFFAIRSVR 533

MURPHY J·20 Mar 1985·

Criminal law - Mens rea - Statutory offence - Acting as director of or taking part in management of corporation whilst undischarged bankrupt - Acting as director of or taking part in management of corporation whilst insolvent under administration - Whether mens rea ingredient of offences - Companies Act 1961 (No. 6839), s117 - Companies (Victoria) Code, s227.

Companies - Offences - Mens rea - Acting as director of or taking part in management of corporation whilst undischarged bankrupt - Acting as director of or taking part in management of corporation whilst insolvent under administration - Whether mens rea ingredient of offences - Companies Act 1961 (No. 6839), s117 - Companies (Victoria) Code, s227.

TUCKER v DUTYTOWN PTY LTD TUCKER v WOLSTENHOLMEVR 541

STARKE, CROCKETT and BEACH JJ·28 Sept 1984·

Shop - Hardware shops - Hours for closing - Whether shops "exempt" as "petrol shops" or Fifth Schedule shops - Test for classification of shops - Whether necessary to close shops for all purposes - Labour and Industry Act 1958 (No. 6283), s80(1), s82(7)(b), s91(1), s192(1)(p), Fifth Schedule and Sixth Schedule.

Industrial law - Shops - Hardware shops - Hours for closing - Whether shops "exempt" as "petrol shops" or Fifth Schedule shops - Test for classification of shops - Whether necessary to close shops for all purposes - Labour and Industry Act 1958 (No. 6283), s80(1), s82(7)(b), s91(1), s192(1)(p), Fifth Schedule and Sixth Schedule.

STATE SUPERANNUATION BOARD OF VICTORIA v WIBROWVR 555

KAYE, MCGARVIE and MARKS JJ·28 Mar 1985·

Practice and procedure - County Court - Appeals from Superannuation Board - Superannuation Act 1958 (No. 6386), s69, s70A(1), s70A(3) and s70A(4) - Rules of the County Court, O. 45, r1.

PRACTICE NOTE No 5 of 1985VR 560

DAJAK v RIEBEVR 561

GRAY J·19 Dec 1984·

Judgment - Action for personal injuries - Plaintiff received workers compensation payments - Portion of workers compensation payments refunded to employer by Motor Accidents Board - Whether total workers compensation payments deductible from verdict - Workers Compensation Act 1958 (No. 9683), s66, s68.

Practice and procedure - Payment into court - Defective notice - Rules of the Supreme Court, O. 22, r6, r6A.

VEDEJS v PUBLIC TRUSTEEVR 569

NICHOLSON J·10 Dec 1984·

Trust and trustee - Common law wife - Real property in name of common law husband - Whether held upon trust for husband and wife as joint tenants - Survivorship.

Real property - Legal ownership in name of common law husband - Common law wife contributing to purchase price - Whether wife has equitable interest.

BARRO GROUP PTY LTD v FRASERVR 577

KAYE , MCGARVIE and MARKS JJ·29 Mar 1985·

Employer and employee - Independent contractor - Servant - Factors relevant in distinguishing between independent contractors and servants - Conduct of business in partnership - Ratio of expenses to income - Representations by parties concerned as to the legal status of their relationship.

Contract - Termination - Implied term - Reasonable notice.

Practice and procedure - Appeal - Contents of appeal book - Alleged omissions - County Court Rules, O. 34, r10.

COMMONWEALTH OF AUSTRALIA v JENNINGS CONSTRUCTION LTDVR 586

KAYE, FULLAGAR and BEACH JJ·14 Mar 1985·

Building contracts - Provision requiring disputed claims to be submitted to director of works - Submitted claim rejected and not pursued - Another claim submitted - Whether two claims were one and the same.

Estoppel - Res judicata - Issue estoppel - Whether doctrines applicable to undecided disputes - Whether doctrines applicable to determination of director of works appointed by contract.

COMPTROLLER OF STAMPS v HUTCHINSVR 599

KAYE , BROOKING and BEACH JJ·8 Oct 1984·

Stamp duty - Transfer of marketable securities - Transfer of shares on trust pending outcome of negotiations for sale of shares by transferor to transferee - Whether instrument of transfer assessable to stamp duty - Stamps Act 1958 (No. 6375), Third Schedule, Heading IV(A), paras (a), (b), (bb), exemption (4).

Stamp duty - Appeal from Taxation Board of Review - Procedure - Circumstances in which court will make its own findings of fact - Whether witnesses should be called on appeal - Stamps Act 1958 (No. 6375), s33F.

BELL GROUP LTD v HERALD and WEEKLY TIMES LTDVR 613

KAYE J·23 Apr 1985·

Companies - Stock Exchange - Offer to sell securities on floor of exchange - Dispute as to identify of acceptor - Whether contract concluded - Whether contractual rights derived prior to resolution of dispute by committee of exchange.

Agency - Stock broker - Implied term in agency contract - Principal bound by Rules of Exchange - Broker authorized to contract in accordance with Rules of Exchange.

R v MACKAYVR 623

KAYE , FULLAGAR and BEACH JJ·2 Nov 1984·

Criminal law - Destroying or damaging property - Threatening to destroy or damage property - Evidence - Admissibility of threats as evidence of motive - Identification - Crimes Act 1958 (No. 6231), s197, s198.

CITY OF NUNAWADING v HARRINGTONVR 641

KAYE , MCGARVIE and MARKS JJ·29 Mar 1985·

Town and country planning - Rezoning - Prior lawful user - Whether land ceased to be used for prior lawful purpose for a period of 15 consecutive months - Town and Country Planning Act 1961 (No. 6849) - Melbourne Metropolitan Planning Scheme Ordinance, CL7, CL8, CL14, CL16.

CHALMERS v HUNTERVR 647

SOUTHWELL J·22 May 1985·

Liquor licensing - Offence - Sale to person under 18 years - Whether prohibition extends to sale by licensee's servants - Liquor Control Act 1968 (No. 7695), s3, s110(1), s112(1).

MATHRICK v MOTOR ACCIDENTS BOARDVR 651

GOBBO J·6 May 1985·

Motor vehicles - Motor Accidents Board - Claim for damages - Claim compromised - Whether liability of Board ceases - Claim for loss of earning capacity - Whether liability of Board limited to loss suffered up to time of compromise - Motor Accidents Act 1973 (No. 8429), s78(1), s79(1) and s79(4).

Re ELGAR HEIGHTS PTY LTDVR 657

ORMISTON J·29 Mar 1985·

Companies - Winding up - Notice under s364(2)(a) of Companies (Victoria) Code - Solicitors' bill of costs - Bill not satisfying s81 of Supreme Court Act 1958 - Whether company "indebted in a sum...then due".

Legal practitioners - Bill of costs - Contentious business - Contents of bill - Supreme Court Act 1958 (No. 6387), s81.

PIONEER CONCRETE SERVICES LTD v GALLIVR 675

Brooking J , CROCKETT , MURPHY and ORMISTON JJ·1 Mar 1985·

Contract - Restraint of trade - Covenant in restraint of trade - Applicable principles - Covenant against carrying on or conducting or being engaged in or being concerned or interested in business - Construction - Whether breached - Whether covenant unreasonable - Meaning of "business" - Whether business existed - Preparatory acts - Meaning of "carry on", "conduct", "engaged in", "concerned in" and "interested in" business.

Contract - Use of confidential information - Covenant against use of confidential information - Whether breached - Distinction between "use" and "disclosure" - Know-how - Distinction between use of confidential information and use of know-how - Scope of protection.

Equity - Confidential information - Breach of confidence - Know-how - Distinction between use of confidential information and use of know-how - Scope of protection.

Re JET CORPORATION OF AUSTRALIA PTY LTDVR 716

GOBBO J·19 Feb 1985·

Companies - Receivers - Right of inspection - "Books of corporation" - Photocopies of accounting records in possession of auditors - Auditors' lien - Companies (Victoria) Code, s5, s329A.

R v DOUGLASVR 721

STARKE, O'BRYAN and NARHAN JJ·19 Dec 1984·

Criminal law - Sexual penetration with a person aged between 10 and 16 - Mistake - Burden of proof - Crimes Act 1958 (No. 6231), s48.

BHP PETROLEUM PTY LTD v OIL BASINS LTDVR 725

MURRAY J·3 Apr 1985·

Private international law - Service of writ out of jurisdiction - Contract affecting land "situate within the jurisdiction" - Corporation "ordinarily resident within the jurisdiction" - Action brought in respect of breach of contract made within jurisdiction or through agent residing within jurisdiction or which is governed by law of Victoria - Action in which injunction is sought as to anything to be done within jurisdiction - Whether case is proper for service out of the jurisdiction - Rules of the Supreme Court, O. 11, r1(b), r1(c), r1(e)(i), r1(ii) and r1(iii), r1(ea) and r1(f), r2.

Practice and procedure - Service of writ on corporation - Corporation's registered office outside jurisdiction - Service of writ on solicitors and accountants acting for corporation within jurisdiction - Whether service on "head officer" or "manager" - Whether service effective - Rules of the Supreme Court, O. 9, r6.

BHP PETROLEUM PTY LTD v OIL BASINS LTDVR 756

YOUNG CJ, FULLAGAR and KING JJ·20 June 1985·

Practice and procedure - Interlocutory order - Application for leave to appeal from interlocutory order - Applicable principles - Supreme Court Act 1958 (No. 6387), s40(1)(b).

R v KELCEYVR 765

BEACH J·27 Nov 1984·

Evidence - Confession - Illegally or improperly obtained evidence - Voluntariness - Unfairness - Discretion to reject when public policy so requires - Relevant public policy considerations - Crimes Act 1958 (No. 6231), s460.

GIBBS v CLARK DALGETY FARMERS LTD v CHRYSTIEVR 778

MCGARVIE J·1 Mar 1985·

Agency - Auction and auctioneer - Receiving sheep - Selling sheep - Passing over proceeds of sale - Auction Sales Act 1958 (No. 6202), s38.

Statutory interpretation - "Person" - "Auctioneer" - Whether includes corporation.

EGAN v BOTT THOMAS v PATTERSON THOMAS v HOLDENVR 787

BEACH J·15 Feb 1985·

Practice and procedure - Magistrates' Court - Whether voir dire should be held to determine admissibility of contested confession. Evidence - Voir dire - Magistrates' Court - Whether admissibility of contested confession should be determined by voir dire in a summary hearing.

CUNNINGHAM v MOTOR ACCIDENTS BOARDVR 795

STARKE J·28 May 1985·

Motor vehicles - Motor Accidents Board - Bodily injury caused by or arising out of use of motor vehicle - Stabbing of driver after leaving motor vehicle - Motor Accidents Act 1973 (No. 8429), s13(2)(a).

ROUX v LANGTREEVR 799

BEACH J·31 May 1985·

Building contracts - Scott v Avery clause - Dispute submitted to arbitration - Guarantee of builder's obligations - Action commenced against guarantors before arbitration determined - Whether action competent.

Guarantee - Building contract - Scott v Avery clause - Dispute submitted to arbitration - Guarantee of builder's obligations - Action commenced against guarantors before arbitration determined - Whether action competent.

LEBDEH v SMITHVR 807

BEACH J·24 May 1985·

Sale of land - Statutory right to terminate contract before expiration of cooling off period - Time from which cooling off period commences - Sale of Land Act 1962 (No. 6975), s31.

NATIONAL MUTUAL FIRE INSURANCE COMPANY LTD v INSURANCE COMMISSIONER; COMMERCIAL UNION ASSURANCE COMPANY OF AUSTRALIA LTD v INSURANCE COMMISSIONERVR 811

STARKE, FULLAGAR and KING JJ·2 July 1985·

Insurance - Double insurance - Contribution - Injury to employee arising from use of motor vehicle during employment - Employer insured against workers compensation liability - Different compulsory motor vehicle insurer - Whether double insurance - Motor Car Act 1958 (No. 6325), s40(1).

STATE ELECTRICITY COMMISSION OF VICTORIA v PRESIDENT, COUNCILLORS AND RATEPAYERS OF THE SHIRE OF KOWREEVR 820

MURRAY J·17 June 1985·

Local government - Proposed subdivision of land - Plans submitted to shire council for approval and sealing - Consent of certain statutory authorities required - Plans sealed by council without requisite consent - Whether sealing of plans invalid - Local Government Act 1958 (No. 6299), s569, s569B(7), s569B(10).

R v KELLY; Ex Parte VICTORIAN PUBLIC SERVICE BOARDVR 825

KAYE, BROOKING and SOUTHWELL JJ·27 June 1985·

Administrative law - Freedom of information - Exempt documents - Certificate of Secretary of Department of Premier and Cabinet that document is exempt - Effect of certificate - Power of County Court on appeal from refusal to grant access to certified document - Power to determine whether document properly classified as exempt in certificate - Freedom of Information Act 1982 (No. 9859), s28(4), s50(5).

BELL v FEEHANVR 841

GOBBO J·29 May 1985·

Criminal law - Sentencing - Penalty - Second offence - Appeal - Appeal from Magistrates' Court - Appeal to County Court - Appeal by way of rehearing - Stay of execution - Lodging of appeal suspending conviction pending rehearing - Magistrates' Court Act 1971 (No. 8184), s75(1).

Motor vehicles - Driving whilst disqualified - Second offence of driving whilst disqualified - Motor Car Act 1958 (No. 6325), s28(1).

KEALL v SAVILLEVR 846

GOBBO J·26 Apr 1985·

Practice and procedure - County Court - Action for personal injuries - Failure of defendant to file notice of intention to defend - Interlocutory judgment for plaintiff - Whether proof of service on insurer is required before entering judgment - Whether judgment may be set aside in absence of affidavit of merits by defendant - Power of County Court Master to set aside judgment - County Court Act 1958 (No. 6230), s78(6) - Rules of the Supreme Court, O. 13, r10 - County Court Rules, O. 3, r2, O. 5, r1.

BREAVINGTON v GODLEMANVR 851

O'BRYAN J·7 June 1985·

Private international law - Tort - Choice of law - Rules in Phillips v Eyre - Lex loci restricting the extent of common law liability - Lex fori allowing full range of common law damages - Applicable law - Motor Accidents (Compensation) Act 1979 (NT).

Re MacGREGORVR 861

STARKE J·21 May 1985·

Trust and trustee - Public Trustee - Protected person - Infirm person - Person ceasing to be infirm - "Incapable of managing his affairs" - "No longer incapable of managing his affairs" - Public Trustee Act 1958 (No. 6350), s28, s39.

RYDER v BOOTH STATE SUPERANNUATION BOARD v O'CONNORVR 869

YOUNG CJ GRAY AND KING JJ·26 June 1985·

Administrative law - Freedom of information - Exempt documents - Information communicated in confidence to agency - Document disclosing opinion or advice for deliberative purposes of agency - Whether disclosure contrary to public interest - Whether disclosure likely to impair ability to obtain similar information in future - Freedom of Information Act 1982 (No. 9859), s30(1), s35(1).

McNICHOLAS v NEUBAUERVR 888

BROOKING J·24 July 1985·

Practice and procedure - County Court - Jurisdiction - Partnership - Monetary limit of jurisdiction - Value of partnership assets or value of capital contributions - County Court Act 1958 (No. 6230), s41(g).

JW BROOMHEAD (VIC) PTY LTD (In liquidation) v JW BROOMHEAD PTY LTDVR 891

MCGARVIE J·3 Aug 1985·

Trust and trustee - Unit trust - Company acting as trustee - Declaration of trust - Declaration by conduct - Effect of declaration - Addition to trust fund - Meaning of "moneys" in trust deed - Whether business included - Disclaimer and acceptance of beneficial interest - Tacit acceptance - Disclaimer by one beneficiary - Effect of disclaimer - Application of principle in Hardoon v Belilios to trust with several beneficiaries - Application of principle to holder of beneficial interest on trust for minors - Extent of liability to indemnify trustee - Whether liability joint or several.

Companies - Affixing of seal - Authority to affix - Express and implied authority - Evidence of director's conduct - Circumstantial evidence.

Companies - Powers - Power to transfer business without consideration.

INSURANCE COMMISSIONER OF THE STATE OF VICTORIA v ALBION INSURANCE CO LTDVR 942

BROOKING J·24 July 1985·

Practice and procedure - Order made by Master with consent of parties - Whether leave of Master is required before appeal may be instituted - Supreme Court Act 1958 (No. 6387), s39 - Constitution Act 1975 (No. 8750), s75.

R v ROSEMEYERVR 945

YOUNG CJ MURRAY AND ORMISTON JJ·19 Dec 1984·

Criminal law - Rape - Indecent assault - Corroboration - Whether warning required - Nature of warning if given - Evidence - Mutual corroboration - Crimes Act 1958 (No. 6231), s62(3).

R v AARONSVR 974

BROOKING J·25 Oct 1984·

Criminal law - Murder - Insanity - Whether "act" for purposes of M'Naghten rules is act of actual perpetrator - Whether accused lacking mental element for accessorial liability entitled to outright acquittal - Order in which jury should consider issues.