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[1995] 2 VR(42 results)

Cases reported in this volume of the Victorian Reports

ALTMANN v DUNNING2 VR 1

FULLAGAR , MARKS and HEDIGAN JJ·26 June 1992·

Practice and procedure - Trial - Jury - Power of trial judge to discharge jury and continue trial - Discretion - Supreme Court Rules - R1.14, R47.02.

Appeal - Finding of fact by trial judge - Circumstances in which finding can be disturbed on appeal.

Damages - Assessment - Personal injury - Home care services voluntarily provided to plaintiff - Whether assessment on gross or after-tax basis - Lost earning capacity - Pre-accident marriage prospects - Transport Accident Act 1986 (No. 111) - s172, s173, s174, s175.

PEZZIMENTI v SEAMER2 VR 32

BROOKING , TADGELL and TEAGUE JJ·11 Aug 1994·

Jury - Civil case - County Court - Trial judge refuses jury's verdict - Jury discharged - Whether trial judge may continue trial and give final judgment - County Court Act 1958 (No. 6230) s65, s67, s70 - County Court Rules - r47.02(3).

DEEMCOPE PTY LTD v CANTOWN PTY LTD2 VR 44

COLDREY J·23 Sept 1994·

Sale of land - Contract - Economic duress - Implied term - Whether purchaser acted honestly and reasonably - Terms contract - Land subject to a mortgage relating also to other land - Purchaser's statutory right to avoid the contract - Whether vendor entitled to relief from avoidability - Whether vendor acted reasonably - Conduct of vendor's solicitor - Sale of Land Act 1962 (No. 6975) - s6, s14(1).

THE SECRETARY TO THE DEPARTMENT OF HEALTH AND COMMUNITY SERVICES and ORS v GURVICH2 VR 69

SOUTHWELL J·19 July 1994·

Coroners - Inquest - Appeal from coroner's decision - Finding that nurses contributed to the death of a person - Whether ``against the evidence and weight of evidence'' - Standard of proof - Briginshaw test - Whether counsel appearing for the coroner should make full submissions - Coroners Act 1985 (No. 10257) s19, s59.

VICTORIAN WORKCOVER AUTHORITY v GRE INSURANCE LTD2 VR 86

ORMISTON , JD PHILLIPS and O'BRYAN JJ·28 June 1994·

Accident compensation - Contribution injury - Contribution by insurer - Assessment by commission of amount of contribution - Review by tribunal - Application for information about worker's medical treatment - Absence of consent from worker - Report by Recoveries Review Committee - Tribunal's power to release report - Tribunal's power to order medical practitoner to give evidence - Whether information of treatment after the ''appointed day'' may be obtained - Accident Compensation Act 1985 (No. 10191) s129i.

LOVE v GEELONG BUILDING SOCIETY (In liq)2 VR 112

ORMISTON , CUMMINS and JD PHILLIPS , JJ·10 Feb 1994·

Building societies - Mortgage - Loan for commercial purposes - Whether mortgage enforceable - Deferment and capitalisation of interest - Whether an "advance" - Whether statement of interest and charges required - Consequences of non-compliance - Summary judgment for possession - Building Societies Act 1976 (No. 8966) s7(7)(d), s54, s56, s104 - Building Societies Act 1986 (No. 8) s1(c), s38(1)(e), s52, s55.

THE STATE OF VICTORIA v THE MASTER BUILDERS' ASSOCIATION OF VICTORIA2 VR 121

TADGELL , ORMISTON and EAMES , JJ·30 Sept 1994·

Administrative law - Prerogative powers - Judicial review - Procedural fairness - Government task force - Scheme for elimination of collusive practices in building industry - Whether task force acted in performance of a public duty - Publication of "black list of building contractors debarred from tendering for government contracts - Whether legitimate expectation of entitlement to tender for and be awarded government contracts - Legitimate expectation as to business reputation - Whether contractors entitled to procedural fairness before publication of "black list - Collusive Practices Act 1965 (No. 7353) s5(3).

GREEN v JOHNSTONE2 VR 176

BEACH J·22 Feb 1995·

Aborigines - Coroners - Autopsy - Application for an order that no autopsy be performed - Court's discretion - Relevance of Aboriginal cultural and religious law Coroners Act 1985 (No 10257) s29.

ROCKLEA SPINNING MILLS PTY LTD v CONSOLIDATED TRADING CORPORATION2 VR 181

TADGELL , NATHAN and HANSEN , JJ·3 Feb 1995·

Practice and procedure - Forum non conveniens - Stay of Victorian proceeding sought by foreign defendant - Proceedings pending in foreign court largely covering same subject matter - Whether Victorian court a clearly inappropriate forum.

CORNALL v NAGLE2 VR 188

JD PHILLIPS J·25 Mar 1994·

Legal practitioners - Solicitors - Unqualified person - Holding out as qualified to practise as a solicitor - Whether description 'attorney' implies legal qualification - Meaning of 'acting or practising as a solicitor' - Writing letters - Drawing, filling up and preparing instruments - Filing and serving court documents - Taking a step in litigation - Tasks which are 'purely ministerial' - Giving legal advice - Seeking to gain audience in court - Legal Profession Practice Act 1958 (No 6291) s90, s93, s110, s111 - Magistrates' Court Act 1989 (No 51) s100(6).

Agency and agents - Power of attorney - Authority of attorney - Instruments Act 1958 (No 6279) s104.

HANSFORD v HIS HONOUR JUDGE NEESHAM and ORS2 VR 233

BROOKING , HAMPEL and SMITH , JJ·8 Mar 1995·

Criminal law - Sentencing - Appeal - Indictable offence - Summary trial - Meaning of "maximum penalty prescribed for the offence" - Whether limited to maximum penalty for summary trial - Sentencing Act 1991 (No 49) s5(2)(a), s113 - Crimes Act 1958 (No 6231) s75 - Magistrates' Court Act 1989 (No 51) s53, s84, s85, s86.

STATE OF VICTORIA v SINNAPPAN and Others2 VR 242

BROOKING , JD PHILLIPS and HANSEN , JJ·17 Feb 1995·

Discrimination - Equal opportunity - Public education - College offering "whole school approach" - Specially suited to Aboriginal students - Decision by minister to close college - Equal Opportunity Board - Power to make orders - Order to prevent further discrimination - Order to redress loss, damage or injury - Power to order re-opening of school - Order of indefinite duration - Order based on "forecasts" of future events - Refusal to join persons as additional complainants - Appeals from orders of Equal Opportunity Board - Equal Opportunity Act 1984 (No 10095) s4, s17, s29(1), s44, s46(2), s49(4) - Education Act 1958 (No 6240) s13.

R v NGUYEN2 VR 277

CROCKETT ACJ , NATHAN and ASHLEY , JJ·25 May 1995·

Appeal - Criminal law - Sentence by County Court for breach of community-based order - Whether right of appeal against sentence to Supreme Court - Crimes Act 1958 (No 6231) s567, s568(4) - Sentencing Act 1991 (No 49) s47, s105, s117(2) - Magistrates' Court Act 1989 (No 51) s83, s85, s86, s91.

LITTRAS and Another v LITTRAS and Others2 VR 283

BEACH J·15 May 1995·

Wills and codicils - Condition - Name and arms clause - Devise to testator's children conditional on use of testator's surname - Whether condition void.

CHRISTINA v BROWNS VALVE SERVICE PTY LTD2 VR 288

BEACH J·27 Mar 1995·

Practice and procedure - County Court - Appeal - Stay of proceedings on making deposit or giving security - County Court Act 1958 (No 6230)

HODGSON v STATE OF VICTORIA and Others2 VR 292

TADGELL , NATHAN and ASHLEY JJ·18 Oct 1994·

Practice and procedure - Reservation of question in a proceeding for consideration by Full Court - Whether there was a request - Whether there was a "question in a proceeding" - No pleadings or evidence - Whether question raised issue bearing upon a party's entitlement to relief - Whether abstract question which could be answered without reference to facts - Primary role of the Full Court as an appellate court Supreme Court Act 1986 (No 110) s15(2).

BEATTY v AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD and Another2 VR 301

MANDIE J·3 Mar 1995·

Real property - Torrens system - Indefeasibility of title - Fraud - Forged signature on mortgage - Alteration to mortgage after execution - Transfer of Land Act 1958 (No 6399) s42(1), s44(1), s74(1)(a), s121(1).

KINEX EXPLORATION PTY LTD v TASCO PTY LTD and Another2 VR 318

BATT J·3 Aug 1994·

Judgments, orders and declarations - Orders - Final order - Order refusing application to set aside order - Whether a final order - Order sought to be set aside made after hearing on the merits - Appeal - Appeal to Supreme Court from final order of Magistrates' Court - Magistrates' Court Act 1989 (No 51) s109, s110.

MASEL and Others v TRANSPORT INDUSTRIES INSURANCE CO LTD and Others2 VR 328

BROOKING , TEAGUE and HEDIGAN JJ·28 Apr 1995·

Practice and procedure - Want of prosecution - Dismissal of action - Delay - Prejudice - Discretion - Guidelines for exercise of discretion - Role of guidelines.

R v MILLER2 VR 348

SOUTHWELL , ORMISTON and MCDONALD JJ·9 June 1995·

Criminal law - Murder - Sentence - Evidence of distress of victim's family - Whether relevant and admissible - Victim impact statement - Sentencing Act 1991 (No.49) s4, s5(2)(da), s5(2)(db), s95A, s95B.

NIEHOFF v NIEHOFF2 VR 356

EAMES J·29 Mar 1995·

Testator's family maintenance - Insufficient provision - Adult son - Special need or special claim - Moral claim - Administration and Probate Act 1958 (No 6191) PtIV.

KULCZYCKI v METALEX PTY LTD2 VR 377

TADGELL , NATHAN and ASHLEY JJ·10 Feb 1995·

Negligence - Employer - Safe system of work - Readily foreseeable risk of injury to employee from employee's own carelessness - Contributory negligence - Whether finding of contributory negligence open - Apportionment - When appellate court will interfere - Apportionment which no reasonable jury could have made.

UNIVERSITY OF BALLARAT v BRIDGES and ANOR2 VR 418

TADGELL , ORMISTON and TEAGUE JJ·4 Apr 1995·

Discrimination - Equal opportunity - Parental status - Direct discrimination - Refusal or omission to offer employment - Applicant for employment asked questions about children - Meaning of "on the ground of" and "by reason of" - Whether causal relationship between alleged discriminatory act and impugned decision sufficient - Equal Opportunity Act 1984 (No 10095) s4(2), s4(7), s17, s21(1), s44, s49.

Re BARKER2 VR 439

TADGELL J·21 Apr 1995·

Administration and probate - Probate - Will made in Australia - Later foreign will - Whether later will revoked will made in Australia - Administration - Letters of administration annexing foreign will - Assets - Assets in Australia and overseas.

Wills and codicils - Revocation - Conflict of laws - Testator having foreign domicile - Whether Australian will revoked by later foreign will- Whether intention to revoke determined by lex domicilii or lex fori - Evidence - Extrinsic evidence of testator's intention - Whether admissible - Statements before and after execution of will.

OLD STYLE CONFECTIONS PTY LTD v MICROBYTE INVESTMENTS PTY LTD (In liq)2 VR 457

HAYNE J·24 Oct 1994·

Companies - Winding-up - Set-off - Mutual dealings - Claim accruing after date of winding-up under contract made before winding-up - Whether capable of set-off - Unprofitable contracts - Disclaimer - Corporations Law s553C, s568 - Bankruptcy Act 1966 (Cth) s86.

R v ALLAN2 VR 468

HAYNE JA , CROCKETT and SOUTHWELL AJJA·22 Sept 1995·

Criminal law - Attempting to pervert the course of justice - Whether offence may be committed before commencement of legal proceedings - Whether the relevant act without more must have a tendency to pervert the course of justice.

THOMAS BORTHWICK AND SONS (AUSTRALASIA) LTD and ANOR v SAMCO MEATS PTY LTD2 VR 474

BROOKING , HAYNE and CHARLES JJA·11 July 1995·

Practice and procedure - Contribution between tortfeasors - Action by employee against successive employers for damages for personal injury - Meaning of "damage" - Whether damage from later negligence a reasonably foreseeable consequence of earlier negligence - Wrongs Act 1958 (No 6420) s24(1)(c).

ECCLES v TAYLOR2 VR 482

ASHLEY J·14 July 1995·

Damages - Interest - Accident compensation - Transport accident - Whether interest payable on damages for pain and suffering and loss of enjoyment of life - Transport Accident Act 1986 (No 111) s93(15), s93(16), s175(1), s175(2) - Supreme Court Act 1958 (No 6387) s79A - Supreme Court Act 1986 (No 110) s60.

DAVID GRANT & CO PTY LTD v WESTPAC BANKING CORPORATION2 VR 495

BROOKING , SMITH and JD PHILLIPS JJ·10 Feb 1995·

Companies - Winding up - Statutory demand - Setting aside - Application to extend time - Corporations Law s459E, s459F, s459G, s467A, s1322(4)(d).

Statutes - Interpretation - Interpretation of uniform legislation by another appellate court.

ROADS CORPORATION v DACAKIS and ANOR; ROADS CORPORTATION v DACAKIS2 VR 508

BATT J·24 Feb 1995·

Appeal - Appeal from determination of Land Valuation Board of Review - Appeal on question of law - Findings and inferences of fact - "Self-denying principle" - Land Acquisition and Compensation Act 1986 (No 121) s102(3).

Resumption and acquisition of land - Compulsory acquisition - Compensation - Market value - Value of residual land before and after acquisition - Solatium - Valuation expenses - Costs - Land Acquisition and Compensation Act 1986 (No 121) s41, s44, s90(1), s91, s95, s102(3).

PRACTICE NOTE NO 1 OF 19952 VR 548

PRACTICE NOTE NO 2 OF 19952 VR 549

PRACTICE NOTE NO 3 OF 19952 VR 550

PRACTICE NOTE NO 4 OF 19952 VR 555

PRACTICE NOTE NO 5 OF 19952 VR 560

ZALEWSKI and ANOR v TURCAROLO2 VR 562

BROOKING , JD PHILLIPS and HANSEN JJ·1 July 1994·

Negligence - Police - Shooting by police officers in course of duty - Public policy immunity - Foreseeability - Causation - Novus actus interveniens - Plaintiff's illegal conduct - Lawful excuse.

COMMISSIONER OF STATE REVENUE v PRICE BRENT SERVICES PTY LTD2 VR 582

BROOKING , ORMISTON and NATHAN JJ·22 Sept 1994·

Landlord and tenant - Rent - Outgoings - Rent in strict common law sense ("true rent") - Modern conception of rent ("contractual rent") - Whether lessee's liability to pay a proportion of outgoings is true rent - Construction of lease - Stamp duty - Stamps Act 1958 (No. 6375) Third Schedule, Heading VIII.

MINCHILLO and ANOR v FORD MOTOR CO OF AUSTRALIA LTD2 VR 594

FULLAGER , BROOKING and ORMISTON JJ·10 Feb 1994·

Contract - Manufacturer's warranty - Interpretation - Meaning of "defective in factory materials or workmanship" - Whether manufacturer liable for design defects.

Negligence - Duty of care - Product liability - Defect in manufacture - Claim by consumer for economic loss - Whether manufacturer liable.

Consumer protection - Implied terms - Implied representations - Merchantability - Fitness for purpose - Prime mover vehicle used in transport business - Whether "goods of a kind ordinarily acquired for personal . . . use or consumption" - Trade Practices Act 1974 (Cth) s52, s53(a), s74A(2)(a), s74B, s74D.

X v DIRECTOR OF PUBLIC PROSECUTIONS2 VR 622

BROOKING , CHARLES and CALLAWAY JJA·8 Sept 1995·

Criminal law - Evidence - Evidence by videolink - Judgments and orders - Order for witness to give evidence by videolink - Whether order interlocutory - Appeal - Leave to appeal - Evidence Act 1958 (No 6246) s9H, s9I - Supreme Court Act 1986 (No 110) s14, s17A - Constitution (Court of Appeal) Act 1994 (No 109).

WILSON and ORS v GRIMWADE2 VR 628

TADGELL , PHILLIPS and CALLAWAY JJA·11 Sept 1995·

Practice and procedure - Pleading - Amendment - Application to amend defence to plead Limitation of Actions Act - Discretion - Prejudice to plaintiff - Limitation of Actions Act 1958 (No 6295).

WIGHTMAN v JOHNSTON2 VR 637

BROOKING , PHILLIPS and CHARLES , JJA·8 Sept 1995·

Costs - Judgments and orders - Order for costs - Sufficiency of reasons - Allowances for specific items of costs - Counsel's fees - Two counsel - Scale fees - Whether bias towards scale fees - Onus on respondent to costs application to object to application - Appeal - Appeal from costs order - Principles applicable to appeal from costs order - County Court Act 1958 (No 6230) s33, s78A - County Court Rules O.63A, App A, Item 29(h).

CAMPBELL v DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH OF AUSTRALIA2 VR 654

ORMISTON , MCDONALD and ASHLEY JJ·21 Dec 1994·

Criminal law - Forgery - Statutory declaration - Signature of commissioner for taking affidavits - Affixing signature to document knowing document to be untrue - Evidence Act 1958 (No 6246) s107, s142.

Statutes - Interpretation - Meaning of "affixes" - Meaning of "signature" - Meaning of "document" - Evidence Act 1958 (No 6246) s142.