Unlimited digital access from $45/mo. Print subscriptions with bound volumes available.Shop Now

Browse

View Victorian Reports and Victorian Law Reports by volume number

[1987] VR(87 results)

Cases reported in this volume of the Victorian Reports

ELDERS IXL LTD v NATIONAL COMPANIES AND SECURITIES COMMISSIONVR 1

MARKS J·10 June 1986·

Companies - Acquisition of shares - Unacceptable acquisition - Unacceptable conduct - Declaration by National Companies and Securities Commission - Applications and appeal to Court - Nature of hearing - Hearing de novo - Companies (Acquisition of Shares) (Victoria) Code, s60(5) - Companies (Victoria) Code, s537.

Companies - Acquisition of shares - Unacceptable acquisition - Unacceptable conduct - Declaration by National Companies and Securities Commission - Association - Bilateral - Unilateral - Substantial interest in shares - Companies (Acquisition of Shares) (Victoria) Code, s7, s11, s45, s60.

KING v ROWLINGSVR 20

MCGARVIE J·6 Mar 1986·

Property - Money - Ownership - Money reasonably suspected of being stolen seized by police - Person in possession convicted - Disposition to Consolidated Fund if rightful owner not discovered within six months of conviction - Whether court order required - Whether person claiming to be rightful owner entitled to be heard by court before order made - Summary Offences Act 1966 (No. 7405), s33(4).

Statute - Interpretation - Literal reading creating irrational result - Construction to give effect to Parliamentary intention - Summary Offences Act 1966 (No. 7405), s33(4).

Magistrates - Power to order rehearing - "Order" - "Party" - Standing to apply for rehearing - Magistrates (Summary Proceedings) Act 1975 (No. 8731), s152.

CARDEN v ALLEN INSULATIONS PTY LTDVR 29

NICHOLSON J·22 Sept 1986·

Limitation of action - Application for extension of period within which action may be brought - Action issued before application to extend - Both proceedings issued within one year of relevant material fact becoming known - Whether grant of extension condition precedent to action - Power of court to extend period nunc pro tunc - Limitation of Actions Act 1958 (No. 6295), s23A.

PAROUKAS v KATSARISVR 39

MCGARVIE J·5 June 1986·

Magistrates - Civil proceedings - Power to adjourn matter on ground of inconvenient forum - Applicable principles - Adjournment to allow proceedings to be commenced in another State - Magistrates (Summary Proceedings) Act 1975 (No. 8731), s76, s79(1)(b).

Conflict of laws - Inconvenient forum - Applicable principles where another State is more convenient forum - Whether same principle applicable to Magistrates' Court.

Magistrates - Decision orally pronounced - Whether Magistrate can alter decision prior to entry in court register - When entry in register complete.

MAYOR, COUNCILLORS AND CITIZEN OF THE CITY OF BRIGHTON v SELPAM PTY LTDVR 54

VINCENT J·14 Aug 1986·

Town and country planning - Planning Appeals Board - Procedure - Duty to accord natural justice - Party requesting to cross-examine author of letter submitted by another party - Whether refusal by Board constitutes denial of natural justice - Relevant considerations.

Administrative law - Statutory tribunal - Planning Appeals Board - Duty to accord natural justice - Party requesting to cross-examine author of letter submitted by another party - Whether refusal by Board constitutes denial of natural justice - Relevant considerations.

FALKENBERG v CITY OF HAMILTONVR 65

MURPHY, FULLAGAR and NATHAN JJ·12 Mar 1986·

Local government - Rates - Fixing of rates - General rate - Farm rate - Urban farm rate - Minimum rate - Powers and functions of municipality in fixing rates - Appeal to County Court - Power of County Court to relieve against rates or part of rates - Fairness and equity - Classes of ratepayers - Power of Supreme Court upon case stated - Local Government Act 1958 (No. 6299), s266, s269, s304, s306.

Rating - Local government - Rates - Fixing of rates - General rate - Farm rate - Urban farm rate - Minimum rate - Powers and functions of municipality in fixing rates - Appeal to County Court - Power of County Court to relieve against rates or part of rates - Fairness and equity - Classes of ratepayers - Power of Supreme Court upon case stated - Local Government Act 1958 (No. 6299), s266, s269, s304, s306.

PRACTICE NOTE No 6 of 1986VR 112

PALMDALE INSURANCE LTD (In liquidation) v L GROLLO AND CO PTY LTDVR 113

MARKS J·27 June 1986·

Practice and procedure - Commercial cause - Discovery - Action by insurer to recover premium - Premium calculated by reference to wages paid by insured - Payroll and income tax returns furnished to taxation authorities by insured - Whether insured obliged to seek access to and discover returns - Rules of the Supreme Court, Ch I, O.31; Ch II, O.14, r5, r6.

CROSLEY LTD v NORTH BROKEN HILL HOLDINGS LTDVR 119

CROCKETT J, MCGARVIE J and SOUTHWELL J·24 June 1986·

Companies - Shares - Beneficial ownership - Notice requiring information of relevant interests - Prescribed form - Strict compliance with substance of form - Whether strict compliance imperative - Effect of non-compliance - Failure to include direction as to recipient's rights - Companies (Victoria) Code, s261, s261A - Companies Act 1981 (Cth.), s577 - Companies and Securities (Interpretation and Miscellaneous Provisions) (Victoria) Code, s14(2), s40 - Companies (Application of Laws) Act 1981 (No. 9712), s6, s7, s10, s11 - Companies (Victoria) Regulations, reg2, reg3, reg4, Form 65C.

Regulations - Regulation prescribing form and requiring strict compliance - Whether regulation within power - Whether necessary or convenient for carrying out enabling Act - Whether imperative or directory - Companies Act 1981 (Cth.), s577 - Companies (Victoria) Regulations, reg2, reg3, reg4, Form 65C.

INCORPORATED NOMINAL DEFENDANT v KNOWLESVR 138

MCGARVIE, MARKS and SOUTHWELL JJ·14 Aug 1986·

Negligence - Evidence - Inferences - Piece of timber lying on roadway - Whether inference of negligence by driver of vehicle open.

MONTANA HOTELS PTY LTD v FASSON PTY LTDVR 147

VINCENT J·17 Oct 1985·

Nuisance - Adjoining premises - Rule in Rylands v Fletcher - Broken pipe - Escaping water - No knowledge of nuisance - Failure to repair - Scope of duty of care - Damage to adjoining premises - Drainage of Land Act 1975 (No. 8811), s4.

Administrative Law - Tribunals - Planning Appeals Board - Jurisdiction under Drainage of Land Act 1975 (No. 8811), s4.

Local government - Building control - Duty imposed by regulation - Extent of duty - Whether private right of action created - Uniform Building Regulations, reg301, reg1703.

PRACTICE NOTE No 7 of 1986VR 160

PRACTICE NOTE No 8 of 1986VR 162

PRACTICE NOTE No 9 of 1986VR 163

GJERGJA v COOPERVR 167

MURRAY, MCGARVIE and ORMISTON JJ·2 May 1986·

Contract - formation of contract - Offer and acceptance - Communication of offer - Communication of acceptance - Acceptance by conduct - Acts necessary to constitute acceptance - Agreement imposing obligations on both parties - Document signed by one party - Whether concluded agreement.

Companies - Acquisition of shares - Acquisition of more than 20 per centum of voting shares - Contravention of s11 of Companies (Acquisition of Shares) (Victoria) Code - Innocent contravention - Court's discretion to order disposal of shares - Unfair prejudice - Matters for Court's consideration - Objects of Code - Application of equitable principles - Companies (Acquisition of Shares) (Victoria) Code, s11, s45, s49.

DONOVAN v MILLERVR 221

YOUNG CJ, KING J and BEACH J·18 Aug 1986·

Costs - Taxation - Action compromised before trial - Whether counsel's fees on brief and conference allowable - Whether brief delivered prematurely - Test to be applied.

R v JUDGE BLAND; Ex parte DIRECTOR OF PUBLIC PROSECUTIONSVR 225

NATHAN J·31 July 1986·

Criminal law - Sentence - Sentence pronounced and court record signed - Whether trial Judge functus officio - Probation - Mandamus - Discretion - Penalties and Sentences Act 1985 (No. 10152), s9.

Precedent - Decision of Full Court in conflict with advice of Privy Council - Single Judge bound to follow Full Court - Australia Acts (Request) Act 1985 (No. 10203) - Australia Act 1985 (Cth.), s11.

RE ESPERALTAVR 236

GOBBO J·17 May 1984·

Habeas corpus - Writ issued by Magistrate acting on material emanating from Spain - Whether material before Magistrate was sufficient evidence - Extradition (Foreign States) Act 1966 (Cth.), s17, s18, s26.

COMMISSIONER OF PAY-ROLL TAX v RESERVE BANK OF AUSTRALIAVR 241

MURRAY, BROOKING and NATHAN JJ·20 May 1986·

Pay-roll tax - Tax on wages - Meaning of "wages" - Low interest loans made by Reserve Bank to certain employees - Pay-roll Tax (State Taxation of Commonwealth Authorities) Act 1971 (Cth.), s3.

KADISSI v JANKOVICVR 255

CROCKETT J·1 Sept 1986·

Sale of land - Contract - Non-disclosure of defects in building - Effect - Whether purchaser can avoid contract - Return of deposit - Property Law Act 1958 (No. 6344), s49(2).

SCANLON v AMERICAN CIGARETTE COMPANY (OVERSEAS) PTY LTD (No 1)VR 261

NICHOLSON J·21 Aug 1986·

Limitation of actions - Application for extension of period during which action may be brought - When cause of action accrues - Whether applicant must adduce evidence to establish cause of action - Whether interlocutory application - Limitation of Actions Act 1958 (No. 6295), s23A.

Practice and procedure - Application for extension of period during which action may be brought - Establishment of cause of action - Affidavits in support - Whether deponents may be cross-examined - Relevant considerations - Whether subpoenae to produce documents relevant to issues to be tried but not to application may issue to third parties - Whether order for inspection of documents relevant to issues to be tried but not to application may be made - Limitation of Actions Act 1958 (No. 6295), s23A - Evidence Act 1958 (No. 6246), s13.

R v BVR 276

MURPHY, FULLAGAR and GOBBO JJ·6 Oct 1986·

Evidence - Criminal law - Incest - Corroboration - Crimes Act 1958 (No. 6231), s62(3).

SCANLON v AMERICAN CIGARETTE COMPANY (OVERSEAS) PTY LTD (No 2)VR 281

NICHOLSON J·26 Aug 1986·

Negligence - Duty of care - Advertising of cigarettes - Duty of care by advertiser to consumers - Whether duty breached by advertising harmful products.

SCANLON v AMERICAN CIGARETTE COMPANY (OVERSEAS) PTY LTD (No 3)VR 289

NICHOLSON J·15 Sept 1986·

Negligence - Defence - Volenti non fit injuria - Knowledge of risk - Actual or presumed - Plea alleging that plaintiff "knew or ought to have known" of risk - Whether pleading maintainable.

PETERSVILLE SLEIGH LTD v SUGARMANVR 295

MURPHY J·19 Aug 1986·

Passing off - Trade name - Use of name "Sleigh" - Plaintiff and defendant not rival traders - No deceit or intentional misrepresentation - Confusion - Whether actual or probable damage required.

HYSLOP v AUSTRALIAN PAPER MANUFACTURERS LTD (No 1)VR 306

NICHOLSON J·17 Sept 1986·

Practice and procedure - Medical reports - Exchange of reports - Whether exchange required in cases set down for hearing by Judge - Rules of the Supreme Court, O.31A, r7, r8.

HYSLOP v AUSTRALIAN PAPER MANUFACTURERS LTD (No 2)VR 309

NICHOLSON J·17 Sept 1986·

Evidence - Examination de bene esse - Examination videotaped - Examination transcribed and otherwise complying with Rules - Whether videotape should be shown to jury - Admissibility - Evidence Act 1958 (No. 6246), s4, s5, s6, s7, s8, s9 - Rules of the Supreme Court, O.37, r5, r11, r12, r16, r18.

Practice and procedure - Examination de bene esse - Examination videotaped - Power of Judge to order that videotape be shown to jury - Rules of the Supreme Court, O.37, r5, r11, r12, r16, r18.

THE SHELL COMPANY OF AUSTRALIA LTD v ESSO AUSTRALIA LTDVR 317

MURPHY, BROOKING and NATHAN JJ·22 July 1986·

Practice and procedure - Indorsement on writ - Delivery of statement of claim - Statement of claim departing from indorsement - Whether permissible - Whether statement of claim curing deficiency in indorsement - Rules of the Supreme Court, O.3, r1, O.20, r2.

Pleading - Statement of claim - Striking out - Causes of action based upon implied terms, money paid and unjust enrichment - Whether obviously unsustainable.

SHIRE OF SHERBROOKE v FL BYRNE PTY LTDVR 353

SOUTHWELL J·19 Aug 1986·

Town and country planning - Planning Appeals Board - "Preliminary determinations" on matters of law - Board constituted by member not holding legal qualifications - Reference of question of law to Chief Chairman - Chief Chairman's opinion on matter of law - Form of references and opinions - Right of parties to be heard by Chief Chairman before opinion given - Whether "preliminary determination" a determination of appeal - Planning Appeals Board Act 1980 (No. 9512), s3, s20, s66.

Town and country planning - Scheme requiring plan to be in existence before permit issued - Whether provision consistent with Town and Country Planning Act 1961 - Town and Country Planning Act 1961 (No. 6849), s9, Sch. 3.

Administrative Law - Judicial review - Whether "preliminary determination" of Planning Appeals Board is "decision" to which Administrative Law Act 1978 applies - Administrative Law Act 1978 (No. 9234), s2, s3.

Re BARNETTVR 367

HAMPEL J·8 Oct 1986·

Criminal law - Appeal - Application to be released from custody pending appeal - Recognisance - Magistrates' Courts Act 1971 (No. 8184), s17, s75.

R v PRIDEAUXVR 375

MURRAY J, O'BRYAN J and VINCENT J·1 Oct 1986·

Criminal law - Entry upon land in manner likely to cause breach of peace - Whether intention to take possession of land element of offence - Meaning of "entry" - Crimes Act 1958 (No. 6231), s207(1).

McKAY v TANKARDVR 381

SOUTHWELL J·10 Sept 1986·

Criminal law - Orders to review - Indictable offences triable summarily - Adjournment for committal hearing - Whether summary hearing available to defendant - S70(a) of Magistrates' Courts Act 1971 not complied with - Interpretation - Jurisdiction to hear summarily - Magistrates' Court Act 1971 (No. 8184), s70(a).

McDONALD v BOJKOVICVR 387

TADGELL J·15 Sept 1986·

Statutory interpretation - Penal statute - Bribery of Commonwealth officer - extraterritoriality - Relevant principles for determining whether statute has extraterritorial application - Meaning of "beyond the Commonwealth" - Crimes Act 1914 (Cth.), s3A, s73(3).

PALMDALE INSURANCE LTD (In liquidation) v L GROLLO and CO PTY LTDVR 396

MARKS J·9 Sept 1986·

Practice and procedure - Application to set aside order - Order drawn up and signed following hearing at which party seeking to have order set aside present and able to make submissions - Whether Court has inherent power to set aside order - Relevant considerations - Rules of the Supreme Court, Ch. II, O.14.

Practice and procedure - Commercial list - Removal of actions from list - relevant considerations - Rules of the Supreme Court, Ch. II, O.14.

Practice and procedure - Action originally ordered to be included in commercial causes list - Effect of change of name of list - Preservation of rights - Interpretation of Legislation Act 1984 (No. 10096), s28(2) - Rules of the Supreme Court, O.49, Ch. II, O.14.

ARNOLD v BACO FOODS PTY LTDVR 401

BROOKING J·11 Dec 1986·

Limitation of action - Negligence - Application for extension of period within which action may be brought - Whether availability of prima facie evidence of cause of action must be shown - Limitation of Actions Act 1958 (No. 6295), s23A(2)(b).

NATIONAL COMPANIES AND SECURITIES COMMISSION v SIM (No 1)VR 411

NICHOLSON J·29 Oct 1986·

Companies - Investigation by National Companies and Securities Commission - Hearing before Commission - Reasonable grounds to suspect that offence may have been committed - Whether particular offence or offender should be nominated - Whether grounds for suspicion should be stated - Examinability of suspicion - Companies (Victoria) Code, s16A - National Companies and Securities Commission Act 1979 (Cth.), s36, s39.

NATIONAL COMPANIES AND SECURITIES COMMISSION v SIM (No 2)VR 421

NICHOLSON J·28 Jan 1987·

Companies - Investigation by National Companies and Securities Commission - Hearing before Commission - Privilege against self-incrimination - Obligation to answer questions - Whether witness can claim privilege on behalf of company - Whether company can claim privilege - National Companies and Securities Commission Act 1979 (Cth.), s5, s36, s39.

NINETTE TRADING PTY LTD v BATESVR 431

BEACH J·4 Dec 1986·

Customs and excise - Customs duty - Transaction value of goods - Licence fees - "Generally accepted accounting principles" - Whether licence fees should be added to determine transaction price - Whether licence fees paid "in respect of" goods - Customs Act 1901 (Cth.), s159.

FITZGERALD v AINSBY RUBBER COVR 437

CROCKETT, O'BRYAN and TADGELL JJ·10 Dec 1986·

Workers compensation - Injury - Whether injury arose in course of employment - Worker finishing normal shift and staying to help fellow worker in another part of plant - Two areas geographically separate but connected in production process - Employer aware of worker's presence and not objecting - Worker injured - Workers Compensation Act 1958 (No. 6419) s5, s8.

Re LA TROBE UNIVERSITY; Ex parte WILDVR 447

VISITOR TO LA TROBE UNIVERSITY, HIS EXCELLENCY, THE GOVERNOR, THE REVEREND DOCTOR JD MCCAUGHEY·30 Apr 1986·

La Trobe University - Petition seeking visitation and declaration by Visitor - Alleged plagiarism by professor - Whether plagiarism can constitute "gross misconduct" if resulting from carelessness or negligence - No moral culpability or intention to deceive - Form of charge - Whether necessary to state very element of charge in notice to professor - Statutes of La Trobe University, Statute 5.1.3 - La Trobe University Regulations, reg5.1(1).

Administrative Law - Natural justice - Disciplinary charge against professor - Form of charge - Whether necessary to state every element of charge in notice to professor - Statutes of La Trobe University, Statute 5.1.3 - La Trobe University Regulations, reg5.1(1).

COMMISSIONER FOR CORPORATE AFFAIRS v X and YVR 460

MURPHY J, MCGARVIE J and MARKS J·4 Dec 1986·

Companies - Power to order examination of persons in connection with affairs of company - Occurrence of relevant events prior to commencement of legislation - Whether power to order examination is procedural in nature - Retrospectivity - Companies (Victoria) Code, s541(3).

Statute - Interpretation - Retrospective operation of legislation - Power to order examination of persons in connection with affairs of company - Occurrence of relevant events prior to commencement of legislation - Whether power to order examination is procedural in nature - Companies (Victoria) Code, s541(3).

Practice and procedure - Interlocutory order - Order under s541(3) of Companies (Victoria) Code - Whether leave to appeal should be granted.

HUMES LTD v UNITY APA LTD (No 1)VR 467

BEACH J·28 Nov 1986·

Companies - Powers - Minority shareholders' right to requisition general meeting - Whether right must be exercised bona fide and for proper purposes - Minority shareholders' right to convene general meeting - Whether right exercised by minority shareholders as quasi-officials of company - Whether interests of company as a whole must be regarded - Companies (Victoria) Code, s241.

UNITY APA LTD v HUMES LTD (No 2)VR 474

BEACH J·11 Dec 1986·

Companies - Application to inspect company books - Purpose of application - Primary or dominant purpose - Collateral purposes - Companies (Victoria) Code, s265B.

Statute - Interpretation - "a registered company auditor or a duly qualified legal practitioner" - Whether "or" disjunctive - Companies (Victoria) Code, s265B.

EQUITICORP INDUSTRIES LTD v ACI INTERNATIONAL LTDVR 485

MURPHY J, FULLAGAR J and GOBBO J·18 Dec 1986·

Companies - Foreign takeovers - Registration of transfer of shares - Power in articles of association to refuse registration - Foreign person in a position to control 15 per centum of voting power or holding interests in 15 per centum of issued shares - "Control of voting power" - When control exists or exercisable - "Interests in issued shares" - Whether includes interests in shares yet to be issued - Substantial interest by association with another - When aggregation permissible - Foreign Takeovers Act 1975 (Cth.), s5(1), s8, s9(1)(a), s9(3), s11.

R v O'CONNORVR 496

YOUNG CJ, MURPHY J and FULLAGAR J·27 Oct 1986·

Criminal law - Sentence - When custodial sentence appropriate - Obtaining property by deception - No prior convictions - Penalties and Sentences Act 1958 (No. 10260), s11.

McCOLL v LEHMANNVR 503

KAYE J·16 Oct 1986·

Criminal law - Application for adjournment of trial - Grounds for refusal - Circumstances in which appellate court will interfere with trial judge's discretion - Inability properly to present defence.

Criminal law - Evidence - Subpoena for production of documents - Degree of particularity required.

Criminal law - Wilful damage to property - Defence of fair and reasonable supposition of right - Right to enter - Onus of proof - Summary Offences Act 1966 (No. 7405), s9 - Magistrates (Summary Proceedings) Act 1975 (No. 8731), s168.

REDFERN v MINERAL ENGINEERS PTY LTDVR 518

TADGELL J·19 Dec 1986·

Costs - Taxation - Solicitor-client costs - Estimate of costs given when action settled - Delivery of lump sum bill corresponding to estimate - Subsequent delivery of itemized bill for taxation - Itemized bill justifying earlier lump sum bill - Omissions in itemized bill - Application to withdraw bill and substitute fresh bill - Circumstances in which leave may be granted.

ACCIDENT TOWING AND ADVISORY COMMITTEE v COMBINED MOTOR INDUSTRIES PTY LTDVR 529

MCGARVIE, MARKS and SOUTHWELL JJ·29 Sept 1986·

Statute - Regulations - Interpretation - Ambiguous or equivocal provision - Purpose of legislative scheme as aid to interpretation - Licensing of tow trucks - Meaning of "address shown on the licence" and "address shown on his licence" - Whether different meanings should be attributed - Lack of care by draftsman in choice of words - Whether Court may adopt construction not argued - Whether regulations within power - Transport Act 1983 (No. 9921), s56, s174, s185, s254, s256 - Transport (Tow Truck) Regulations 1983, reg16, reg61, reg65.

UNIVERSITY OF MELBOURNE; Ex parte McGURKVR 586

VISITOR TO THE UNIVERSITY OF MELBOURNE, HIS EXCELLENCY, THE GOVERNOR, THE REVEREND DOCTOR JD MCCAUGHEY·22 July 1986·

University of Melbourne - Petition seeking visitation and declaration by Visitor - Resolution of University Council that Statute be repealed - Whether adequate notice of proposal given to members of Council - Contents of notice - Statutes of the University of Melbourne, Statutes 2.1.4, 2.31. .

Administrative law - Natural justice - University Council - Resolution of Council that union board be abolished - Whether members of board given adequate hearing before abolition effected - Address by representative of board to Council - Circulation by board members of written submission before decision.

INDEPENDENT MANAGEMENT RESOURCES PTY LTD v BROWNVR 605

MARKS J·16 Oct 1986·

Confidential information - Employer and employee - Use of information gained while in employment - Necessary quality of confidence - Employee subsequently competing with former employer - Breach of confidence.

Employer and employee - Duty of fidelity - Conduct required to constitute breach of duty - Use of information acquired during employment.

MUIRFIELD PROPERTIES PTY LTD v HANSEN and YUNCKEN PTY LTDVR 615

NATHAN J·11 Nov 1986·

Arbitration - Building contract - Scott v Avery clause - Contract entered into and proceedings for its breach instituted prior to commencement of Commercial Arbitration Act 1984 - Dispute not referred to arbitration - Defence invoking Scott v Avery clause - Whether defence should be struck out - Commercial Arbitration Act 1984 (No. 10167), s3,s55.

Statute - Interpretation - Statute prohibiting invocation of Scott v Avery clause - Retrospective operation of statute - Whether party to contract containing Scott v Avery clause retrospectively divested of contractual right to rely on clause - Commercial Arbitration Act 1984 (No. 10167), s3, s55.

COOKE v COOKEVR 625

SOUTHWELL J·8 Oct 1986·

Trust and trustee - Constructive trust - Creation of trust - Equitable principles - Common intention to hold beneficial interest in property on trust - Detriment - Whether detriment required - Nature of detriment - Parties not in permanent de facto marriage - Absence of express or implied agreement.

LINES v TANA PTY LTDVR 641

CROCKETT J, O'BRYAN J and TADGELL J·12 Dec 1986·

Costs - Security for costs - Considerations relevant to making of order - Whether non-payment of costs or delay in prosecution of action grounds for ordering security.

GODLEMAN v BREAVINGTONVR 645

YOUNG CJ, KING and BEACH JJ·27 Oct 1986·

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

R v NARULAVR 661

YOUNG CJ, MURRAY and VINCENT JJ·27 Oct 1986·

Evidence - Criminal law - Tape recordings - Admissibility of transcripts of recordings - Best evidence rule.

R v NARULAVR 670

BROOKING J·21 Mar 1985·

PRACTICE NOTE No 1 of 1987VR 680

GILL v DEPARTMENT OF INDUSTRY, TECHNOLOGY AND RESOURCESVR 681

MURRAY, MCGARVIE and MARKS JJ·26 Nov 1986·

Statute - Interpretation - Whether "or" should be read "and" - Freedom of Information Act 1982 (No. 9859), s34.

Administrative law - Freedom of information - Exempt documents - Documents disclosing information relating to trade secrets or matters of business, commercial or financial nature - Whether phrase "other matters of a business, commercial or financial nature" should be read restrictively - Documents relating to Portland aluminium smelter - Whether exemption extends to documents created before proclamation of enabling Act relating to other sites or to construction of different smelter - "Smelters" - "Smelter site" - Freedom of Information Act 1982 (No. 9859), s34 - Alcoa (Portland Aluminium Smelter) (Amendment) Act 1984 (No. 10115), s14.

HIGGINS v WINGFIELDVR 689

MURRAY, MCGARVIE and MARKS JJ·23 Dec 1986·

Trust and trustee - Constructive trust - Detriment - Unmarried couple - De facto relationship - Unit purchased in sole name - Whether detriment essential element to imposition of trust - Whether acts of claimant sufficient to constitute detriment.

KOMESAROFF v MICKLEVR 703

KING J·24 Nov 1986·

Trade practices - Misleading and deceptive conduct - Passing off - Product novel because of functional features - Whether features distinctive of proprietary origin - No registered design - Competing goods labelled to indicate origin - Whether interlocutory injunction restraining sale of competing labelled goods would lie - Fair Trading Act 1985 (No. 10201), s11.

Copyright - Infringement - Whether product work of artistic craftsmanship - Whether craftsmanship in performance of skilled act - Copyright Act 1968 (Cth.), s10.

OLDAKER v CURRINGTONVR 712

MURRAY J, MCGARVIE J and MARKS J·19 Dec 1986·

Practice and procedure - Retention of two counsel - County Court - Allowance of fees to senior counsel - When appropriate - Whether retention of senior counsel reasonably necessary for attainment of justice or enforcement of rights - Junior counsel - Whether fees for junior counsel should be allowed at two-thirds of senior counsel's fees - Rules of the Supreme Court, O.65, r12, r27 - County Court Rules, O.52, r5, Schedule of scale of costs, Item 29.

HINCH v ATTORNEY-GENERALVR 721

YOUNG CJ, KAYE and NICHOLSON JJ·11 Dec 1986·

Contempt of court - Pending trial - Radio broadcasts referring to accused's prior charges and convictions - Tendency to interfere with administration of justice - Discussion of matters of public interest - Time at which contemptuous conduct is committed - Whether contempt proceedings should be adjourned pending hearing of principal proceeding - Applicable sentencing principles.

WRIGHT v WEST AUSTRALIAN TRUSTEE AND AGENCY CO LTDVR 771

MURPHY, GRAY and KING JJ·24 Oct 1986·

Damages - Assessment - Fatal accident - Action pursuant to PtIII of Wrongs Act 1958 - Pecuniary loss to widow and children - Date at which damages to be assessed - Effect of assessment at wrong date - Matters to be taken into account - Wrongs Act 1958 (No. 6420), PtIII, s17.

Interest - Award of damages - Fatal accident claim - Amount on which interest awarded - Supreme Court Act 1958 (No. 6387), s79A.

Appeal - Unsuccessful party seeking to argue question of law not originally argued - Party bound by conduct of case below.

LITTLE v LEWISVR 798

KAYE, O'BRYAN and KING JJ·10 Apr 1987·

Legal practitioners - Solicitor - Practising certificate - Professional indemnity - insurance - Amount of contribution prescribed by regulations - Regulations to be made on recommendation of three bodies - Whether regulations validly made - Legal Profession Practice Act 1958 (No. 9427) - Professional Indemnity Insurance Regulations 1985 (SR No. 429).

Contempt of court - Solicitor - Irregular order - No application to adjourn contempt proceedings - Whether order must be obeyed.

D'ALOIA v COLONIAL MUTUAL GENERAL INSURANCE CO LTDVR 807

NICHOLSON J·23 Dec 1986·

Insurance - Fire - Buildings - Reinstatement - Extra costs of reinstatement - Compliance with building regulations and municipal by-laws - Replacement building larger and better than destroyed building - Whether replacement costs recoverable.

McMAHON v AMBROSEVR 817

MURRAY, MCGARVIE and MARKS JJ·13 Feb 1987·

Equity - Specific performance - Equitable damages - Oral assignment of lease - Expiration of lease before commencement of proceedings - Whether equitable remedies available - Exercise of discretion - Delay - Prejudice - Clean hands - Part performance - Sufficiency of acts of plaintiff - Instruments Act 1958 (No. 6279), s126.

Contract - Lease - Oral agreement to assign lease - Part performance - Sufficiency of acts of part performance - Instruments Act 1958 (No. 6279), s126.

PRACTICE NOTE No 2 of 1987VR 854

R v McNAMARAVR 855

YOUNG CJ , NEWTON and KAYE JJ·18 Nov 1976·

Criminal law - Evidence - Admissions - Evidence of interrogation - Selective refusal to answer questions - Whether evidence of consciousness of guilt - Cross-examination - Cross-examination of accused as to reasons for not advancing his defence earlier - Crimes Act 1958 (No. 6231), s568(1).

PRACTICE NOTE No 3 of 1987VR 873

Re a FORMER OFFICER OF THE AUSTRALIAN SECURITY INTELLIGENCE ORGANISATIONVR 875

BROOKING J·17 Dec 1986·

Practice and procedure - Naming of plaintiff on writ - Application to bring action anonymously - Inherent power - Rules of the Supreme Court, O.2, O.4, r1, r2.

R v ABEDSAMADVR 881

CROCKETT, BROOKING and KING JJ·4 Mar 1987·

Criminal law - Appeal - Good behaviour bond - Whether bond a sentence - No appeal possible - Crimes Act 1958 (No. 6231), s566, s567, s567A.

REARDON v BAKERVR 887

PHILLIPS J·4 May 1987·

Criminal law - Trafficking in heroin - Possession of heroin - Admission by defendant that substance in her possession was heroin - Circumstances in which such admissions may be relied upon - Whether contemplation of particular sale required to constitute trafficking - Whether defendant may be convicted of possession and trafficking on identical facts - Drugs, Poisons and Controlled Substances Act 1981 (No. 9719), s4(1), s71, s73.

COMMISSIONER FOR CORPORATE AFFAIRS v LIGHTBODYVR 900

TADGELL J·4 Mar 1987·

Companies - Prosecutions - Failure to keep accounting records of company - Former officer failing to take reasonable steps to secure compliance - Whether informations may be laid after dissolution of company - Companies (Victoria) Code, s267, s555.

R v SMITHVR 907

VINCENT J·24 Feb 1987·

Criminal - Evidence - Identification - Expert evidence - Whether evidence of psychologist as to unreliability of identification evidence admissible.

HORNE v CHESTER AND FEIN PROPERTY DEVELOPMENTS PTY LTDVR 913

SOUTHWELL J·4 Sept 1986·

Companies - Winding up - Payment of debts - Agreement between creditors - Whether agreement alters statutory scheme for payment of debts - Companies (Victoria) Code, s440.

ROY v BRIGGSVR 924

CROCKETT J·2 Apr 1987·

Criminal law - Obstruction of road - What constitutes obstruction - Summary Offences Act 1966 (No. 7405), s4(e).

BRITTEN v ALPOGUTVR 929

MURPHY, FULLAGAR and GOBBO JJ·18 Dec 1986·

Criminal law - Criminal attempts - Impossibility - Attempted importation of cannabis - Customs Act 1901 (Cth.), s233B.

NATIONAL COMPANIES AND SECURITIES COMMISSION v ALEXANDERS LAING AND CRUICKSHANK LTD (No 1)VR 940

BEACH J·17 Feb 1987·

Companies - Take-overs - Acquisition of shares - Declaration by National Companies and Securities Commission that acquisition unacceptable - Application by Commission for orders under s45 of Companies (Acquisition of Shares) (Victoria) Code - Application by person aggrieved under s60(5) of Code - Appeal by person aggrieved under s537 of Companies (Victoria) Code - Whether appeal under Companies Code available - Procedure for hearing application and appeal - Nature of application and appeal - Companies (Acquisition of Shares) (Victoria) Code, s45, s60 - Companies (Victoria) Code, s537.

ALEXANDERS LAING AND CRUICKSHANK LTD v NATIONAL COMPANIES AND SECURITIES COMMISSION (No 2)VR 956

BEACH J·27 Feb 1987·

Companies - Acquisition of shares - National Companies and Securities Commission - Declaration that acquisition unacceptable - Publication of reasons for declaration - Power to publish reasons - Whether publication constitutes contempt of court - Companies (Acquisition of Shares) (Victoria) Code, s60.

R v CLARKSONVR 962

CROCKETT J, O'BRYAN J, and GOBBO J·12 May 1987·

Criminal law - Wilfully making false statement - Theft - Obtaining property by deception - Abuse of process - Double jeopardy - Consent to prosecutions given pursuant to s381 of Companies Act 1961 - Sentence - Companies Act 1961 (No. 6839), s375, s381 - Crimes Act 1958 (No. 6231), s72, s81 - Director of Public Prosecutions Act 1982 (No. 9848), s18 - Penalties and Sentences Act 1985 (No. 10260), s16.

ASHWICK (VIC) No 4 PTY LTD v COMPTROLLER OF STAMPSVR 986

KAYE J, MURPHY J and TADGELL J·6 Mar 1987·

Stamp duty - Exemptions - Instrument of conveyance - Transfer of land to shareholder "in course of distribution of assets in consequence of reduction of capital" - Redemption of cumulative redeemable preference shares - Whether reduction of capital - Whether exemption applicable to reduction of capital not requiring Court approval - Transaction designed to obtain exemption from stamp duty - Whether fiscal nullity doctrine applicable - Stamps Act 1958 (No. 6375), Third Schedule, heading VI, exemption (19).

Companies - Capital - Redemption of cumulative redeemable preference shares - Whether reduction of capital - Companies (Victoria) Code, s120.

COLLA v COOPERVR 1007

GRAY J·6 Mar 1987·

Statute - Construction - Purpose of statute - "Place" - "Poultry farm" - Egg Industry Stabilization Act 1983 (No. 10024), s3, s12, s20, s21, s33.

R v WESCOMBEVR 1012

MURRAY, MCGARVIE and NICHOLSON JJ·14 May 1987·

Criminal law - Imposing on Commonwealth by means of untrue representation - Intent to cheat or defraud not required - Meaning of "imposes or endeavours to impose upon" - Crimes Act 1914 (Cth.), s29B.

DOWDLE v COPPELVR 1024

ORMISTON J·23 Dec 1986·

Wills - Construction - Power of appointment - General power - Fraud on power - Whether doctrine applies to general power - Whether doctrine applies where improper purpose not achieved - Onus of proving improper purpose.

FELLOWS v FELLOWSVR 1035

NATHAN J·10 Feb 1987·

Family law - Agreement by husband and wife to dispose of matrimonial property - Agreement registered pursuant to Family Law Act 1975 (Cth.) - Agreement providing for sale at specified price - Property not fetching that price - Whether Supreme Court has jurisdiction to order that property be sold - Family Law Act 1975 (Cth.), s40(4), s87(8)(d) - Property Law Act 1958 (No. 6344), s222.

R v NICOLAVR 1040

MURRAY, MCGARVIE and NICHOLSON JJ·14 May 1987·

Criminal law - Procedure - Whether Commonwealth and State counts can be tried simultaneously - Whether single document comprising "Indictment/Presentment" valid - Presentment rules - Customs Act 1901 (Cth.), s233B - Judiciary Act 1903 (Cth.), s69 - Acts Interpretation Act 1901 (Cth.), s42 - Commonwealth of Australia Constitution Act, s80 - Crimes Act 1958 (No. 6231), s351-s354, s365, s366, s370, s371, Third Schedule, Sixth Schedule - Drugs Poisons and Controlled Substances Act 1981 (No. 9719), s71.

R v JUDGE DYETT; Ex parte ALLENVR 1049

TADGELL J·17 Nov 1986·

Criminal law - Procedure - Presentment - Time limit - Crimes Act 1958 (No. 6231), s353.