Administrative law - Coroners Court - Powers - Notification of Director of Public Prosecutions if coroner investigating death believed indictable offence may have been committed - Objection to giving evidence on ground of self-incrimination - Power to issue protective certificate to witness - Natural justice - Apprehended bias - Prejudgment - Exercise of referral power prior to witness giving evidence - Coroner's inappropriate statements concerning proposed witness - Coroner declining to recuse herself - No reasonable apprehension of bias - No logical connection between exercise of referral power and statements and feared prejudgment - Errors of law not warranting relief - Coroners Act 2008 (No 77) ss 49(1) 57 Pt 6

Practice and procedure - Summary judgment - Test - Civil Procedure Act 2010 - Whether "real" as opposed to "fanciful" chance of success - Whether test to some degree more liberal than General Steel "hopeless" or "bound to fail" test - Civil Procedure Act 2010 (No 47) ss 1(2)(e) 8 63 65 - Interpretation of Legislation Act 1984 (No 10096) s 35 - Federal Court of Australia Act 1976 (No 156) s 31A - Supreme Court (General Civil Procedure) Rules 2005 Ch 1 Os 22 23 - Uniform Civil Procedure Rules 1999 rr 292 293 - Civil Procedure Rules 1998 (UK) r 24.2.

Practice and procedure - County Court - Judgment in default of appearance - Unsuccessful application to set aside - Test for leave to defend - Merits of proposed defence - Reasons for default - Timeliness of application - Prejudice - Claim for damages for assault and battery arising from street brawl - Defendant convicted of affray - Whether trial judge erred in finding conviction precluded defence on merits - Appeal allowed - Discretionary conditions imposed on judgment being set aside - County Court Act 1958 (No 6230) s 74 - Supreme Court (General Civil Procedure) Rules 2005 O 64 - County Court Civil Procedure Rules 2008 O 64A

Criminal law - Appeal - Interlocutory appeal - Statutory limitation - Need for rigorous compliance - Rare case requiring unusually large amount of court's time - Successful challenge to trial judge's factual findings - Admissibility of novel evidence - Reception of evidence pressed in lower court abandoned on appeal - Criminal Procedure Act 2009 (No 7) s 295

Criminal law - Appeal - Interlocutory appeal - Sexual offences against children - Refusal of permanent stay - Delay - Loss of evidence - Limited ability to produce alibi evidence - Voir dire - Judge confining evidence of complainants - Appeal allowed - Decision set aside - Remittal for re-hearing.

Criminal law - Appeal - Interlocutory appeal - Sexual offences against children - Evidence - Admissibility - Cross-admissibility - Complainants - Whether reasonable possibility of collusion or contamination - Judge failing to address facts inexorably leading to conclusion that reasonable possibility could not be excluded.

Criminal law - Appeal - Interlocutory appeal - Sexual offences against children - Evidence - Admissibility - Tendency evidence - Propensity evidence - Evidence Act 2008 (No 47) s 97

Criminal law - Appeal - Interlocutory appeal - Sexual offences against children - Expert evidence - Admissibility - Psychological assessment of sex offenders - "Grooming" of child victims - Whether matter for expert evidence - Concession by Crown on appeal that evidence inadmissible - Concession rightly made - Evidence Act 2008 (No 47) ss 79 97 101 108C 135 137

Criminal law - Appeal - Interlocutory appeal - Sexual offences against children - Evidence - Admissibility - Confidential communications - Cross-examination - Information imparted by complainant to school counsellor - Evidence (Miscellaneous Provisions) Act 1958 (No 6246) ss 32C 32D

Criminal law - Appeal - Interlocutory appeal - Sexual offences against children - Evidence - Admissibility - Accused's pleas of guilty to sexual offences committed between 2003-2005 - Agreed summary of circumstances read to Magistrates' Court.

Criminal law - Appeal - Interlocutory appeal - Sexual offences against children - Evidence - Trial - Requirement that prosecution present entirety of case - Limited scope for rebuttal - Anticipated challenge to credibility of prosecution witness in cross-examination.

Courts and judges - Parens patriae jurisdiction - Protective character - Whether excluded by statute - Infants and juveniles - Care and protection - Best interests - Independent legal representation - Teenage child - Intellectual disability - History of physical ill-health and of being subjected to sexual assaults - Multiple residential placements - Ongoing behavioural deterioration - Serious risk of violence to others - Proposed managed ongoing residential detention - Monitoring and review - Order made in exercise of jurisdiction - Children, Youth and Families Act 2005 (No 96) ss 172 173 - Disability Act 2006 (No 23) Pts 7 8.

Guardianship - Child - Intellectual disability - Secretary to Department of Human Services - Statutory detention authority - Sufficiency - Time limitation time - Extension - Best interests of child - Paramountcy - Role of Public Advocate - Role of community visitors - Case and stability plans - Whether inconsistency between statutory schemes - Children, Youth and Families Act 2005 (No 96) - Disability Act 2006 (No 23).

Human rights - Charter of Human Rights and Responsibilities - Liberty - Privacy - Freedom of movement - Freedom from medical treatment without consent - Intellectual disability - Child - Serious risk of violence to others - Proposed ongoing managed detention - Least restrictive means - Charter of Human Rights and Responsibilities Act 2006 (No 43) ss 7(2) 10(c) 12 13(a) 21 32 38.

Administrative law - Merits review - Victorian Civil and Administrative Tribunal - Thoroughbred horse racing - Disciplinary controls - Review of decisions of Racing Appeals and Disciplinary Board - Australian Rules of Racing - Offences - Elements - Proof - Inferences - Intended stomach-tubing of horse prior to commencement of race - Australian Rules of Racing Rules 64G(1) 175(k) 175(l)

Accident compensation - Workers compensation - Support care worker for disabled persons - Back injury - Aggravation and acceleration - Jury trial - Judge's charge - Adequacy - Principle in Watts v Rake - Vicissitudes of life - Adequacy of pain and suffering damages - Adequacy of pecuniary loss damages - Contributory negligence - Whether contributory negligence open - Whether jury's apportionment open.

Accident compensation - Workers compensation - Jury trial - Negligence - Breach of statutory duty - Whether jury's finding of breach of statutory duty mandated a finding of negligence - Jury assessment - Contributory negligence - Damages - Pecuniary loss damages - Occupational Health and Safety (Manual Handling) Regulations 1999 (No 84) regs 14 15 16 - Occupational Health and Safety Regulations 2007 (No 54) regs 3.1.1 3.1.2

Courts and judges - Fair trial - Personal injuries claim - Jury trial - Closing address by counsel - Remarks concerning conduct of trial by plaintiff's lawyers - Allegation of attempted deception - Expert witness - Amendment of expert's report - Alleged inconsistencies between plaintiff's evidence and facts - Factual basis of expert's opinion - Trial judge declining to discharge jury - Judge's duty to assess seriousness of prejudice to fair trial - Jury directed to disregard counsel's remarks - Adequacy - Judge's discretion miscarried - Outcome inimical to interests of justice - New trial ordered.

Evidence - Expert evidence - Facts to be assumed in giving opinion - Circumstances in which expert can be asked to alter assumed facts - Test of honesty - Disclosure in expert's report.

Legal practitioners - Professional conduct - Obligations - Conduct of trial - Jury trial - Conduct calculated to influence jury improperly - Closing address - Inflammatory, irrelevant or prejudicial material - Counsel's statement that expert witness had been prevailed upon by party's legal practitioners to alter evidence to accord with party's evidence-in-chief - No justification for statement.

Criminal law - Sexual offences - Rape - Child complainant - Delay in making complaint - Trial judge's charge to jury - Comment about experience of judges - Mention of emotional responses of victims of sexual assault - Inappropriate - Comment ought to have been confined to patterns of general human behaviour - Province of jury to determine - No substantial miscarriage of justice - Conviction not unsafe and unsatisfactory - Crimes Act 1958 (No 6231) s 61

Criminal law - Sentencing - Consistency - Current sentencing practices - Plea of guilty on first day of committal hearing - Sexual offences - Incest - Indecent act with child under care, supervision or authority - Producing child pornography - Extremely serious prolonged offending - Victim was offender's adolescent step-daughter - Humiliating and degrading treatment - Degrading photographs of victim posted on internet - Lingering accessibility - Total effective sentence of 18 years and eight months' imprisonment with non-parole period of 14 years and eight months - Sentence manifestly excessive - Sentences outside range reasonably open - Appeal allowed - Offender resentenced to 14 years' imprisonment with non-parole period of ten years.

Trusts - Discretionary family trust - Beneficiary - Access to information - Trustee - Exercise of absolute discretion - Immunity from disclosing reasons - Scope - Information available to trustee for decision-making - No principle that beneficiaries entitled to such information - No breach of trust alleged - Voluntary disclosure of some information - No right of access to entirety of material.

Tort - Breach of statutory duty - Scope of duty - Risk - Assessment - Elimination or reduction of risk - Practicability - Employer and employee - Risk of musculoskeletal injury - Manual handling - Mechanical maintenance work - Employee required to adopt cramped and awkward posture - Causation - Whether verdict that breach of statutory duties did not cause injury open on the evidence - Occupational Health and Safety (Manual Handling) Regulations 1999 regs 13 14 15

Sale of land - Plan of subdivision - Unregistered - Sale of lot - Purchaser's statutory right to rescind if plan not registered within specified period - Period specified by legislation or by contract - Contract purporting to specify a fixed period or further time not exceeding six months as notified by vendor - Purchaser entitled to rescind at end of fixed period despite vendor's purported extension - "Specifies" - Sale of Land Act 1962 (No 6975) s 9AE(2)

Tort - Negligence - Standard of care - Solicitors - Reasonably prudent solicitor - Settlement of personal injury claim - Loss of chance - Advice not to pursue claim for loss of earnings.

Tort - Negligence - Damages - Assessment - Prospects of success in personal injuries claim - Substantial likelihood of success - No specific identifiable deficiency in plaintiff's case - Contributory negligence plea close to untenable - Contingencies foreclosed in plaintiff's favour - Discount to reflect possibility of claim not being fully successful - Pre- and post-injury employment - Alternative less physically demanding employment available - Inadequate award of damages - Substantial costs incurred by plaintiff in course of pursuing professional negligence claim - No reduction in damages for loss of chance to pursue personal injuries claim to reflect costs of pursuing that claim - Appeal allowed - Substitution of new award of damages on appeal.

Local government - Municipal council - Powers - Local law - Validity - Subject matter - Municipal legislative functions and powers - Alleged inconsistency with planning scheme - Keeping of livestock - Pet sheep - Prohibition on land of half a hectare or less - Costs - Discretion - Whether proceeding challenging validity in public interest - "Peace order and good government of the municipal district" - Local Government Act 1989 (No 11) ss 3C 3E 3F 111(1) 123 Sch 8

Accident compensation - Workers compensation - Impairment - Assessment - Medical panel - American Medical Association Guides to the Evaluation of Permanent Impairment - Interpretation - Spinal impairment categories - Multilevel fractures of spinal segments - Whether constituted multilevel spine segment structural compromise - Whether panel decision vitiated by jurisdictional error - Whether expert evidence admissible on question of construction of Guides - Accident Compensation Act 1985 (No 10191) s 91(1) - "As with fracture" - "Fractures" - American Medical Association Guides to the Evaluation of Permanent Impairment (4th ed) ss 3.3f 3.3g Tables 70 72

Evidence - Admissibility - Expert evidence - Personal injuries - Impairment assessment - Whether technical terminology - Use of expert medical evidence in aid of construction - Evidence Act 2008 (No 47) ss 55(1) 76(1) 79

Administrative law - Environment protection and conservation - Proposed timber harvesting in State forests - Legality - Presence of endangered fauna species - Leadbeater's Possum - Action statement - Forest management plan - Exclusion of harvesting in habitat zone - Construction of zone criteria - "Mature and senescing" - Forests Act 1958 (No 6254) ss 3 22 - Conservation Forests and Lands Act 1987 (No 41) ss 4 6 10 35 39 - Sustainable Forests (Timber) Act 2004 (No 48) ss 1 5 37 39 40 46 - Flora and Fauna Guarantee Act 1988 (No 47) ss 1 3 4 11 19

Statutory interpretation - Purposive approach - Statutory scheme - Multiple statutory instruments - No single purpose - Multiple and competing purposes - Interpretation of Legislation Act 1984 (No 10096) s 35(a)

Evidence - Admissibility - Unlawful or improperly obtained evidence - Discretion to exclude - Black Saturday (2009) bushfires - Carrying out of field test in preparatory phase of litigation - Entry onto private land - Limited statutory right of ingress and egress - Unlawful entry - Desirability of admitting evidence - Assessment of probative value - Legality principle - Fundamental property rights - Evidence admitted - Evidence Act 2008 (No 47) s 138 - Civil Procedure Act 2010 (No 47) Pt 2.3.

Real property - Trespass - Entry onto private land - Consent - Implied consent - Acquiescence - Absence of objection - Level of understanding required - Electricity Industry Act 2000 (No 68) s 93.

Negligence - Damages - Assessment - Causation - Sufficiency of proof - Personal injuries - Pain and suffering and loss of enjoyment of life - Psychiatric injury suffered in course of employment - Workplace bullying and harassment - Major depressive illness of mild to moderate severity - Obligation of employer to take employee as found - Total and permanent incapacitation from pre-injury employment - Member of Victoria Police - History of successful and happy career before injury - Ongoing treatment - Extensive medication - Plaintiff attempting suicide in lead up to trial - Award of $108,000 - Manifest inadequacy - View of evidence most favourable to respondent - Surveillance film not contradicting claimant's case - Need for finality - Damages re-assessed by Court of Appeal at $250,000.

Negligence - Contributory negligence - Employer and employee - Bullying, harassment and ostracism by fellow employee - Availability of complaint process - No evidence complaint by employee would have caused employer to take steps to avoid or alleviate her psychiatric injury - Jury's finding of contributory negligence set aside.

Criminal law - Blackmail - Multiple counts - Admission of inadmissible evidence - Whether substantial miscarriage of justice - Criterion - Whether conviction inevitable - Reconsideration on remitter by High Court of Australia - Criminal Procedure Act 2009 (No 7) s 276

Criminal law - Sexual offences - Rape - Supplying drug of dependence to child - Evidence - Admissions - Text message containing alleged admission of guilt - Whether Burns direction required - Whether judge failed to direct jury properly about how text message could be used - Retrial ordered.

Practice and procedure - Adjournment - Discretion - Trial - Personal injuries claim - Expert evidence - Directions for filing of expert reports prior to trial - Non-compliance by plaintiff - Plaintiff obtaining expert report shortly prior to scheduled trial date - Plaintiff's expert suggesting a specific test be conducted - Trial judge ruling that plaintiff's late-served report inadmissible - Refusal of adjournment to enable plaintiff to have expert conduct tests and supply report - Trial judge's discretion not miscarrying - Overarching obligations - Civil Procedure Act 2010 (No 47) ss 7 8 9

Criminal law - Evidence - Admissibility - Sexual offences - Indecent assault - Gross indecency - Accused's apology to complainant - Relevance - Opinion evidence - Complainant's perception of what accused meant - Direction to jury as to limited reliance - Evidence of admission of sexual abuse - Judge wrongly admitting evidence - No miscarriage of justice - Evidence Act 2008 (No 47) ss 55 76 78

Criminal law - Sentencing - Drug offences - Trafficking in drug of dependence in commercial quantity - Total effective sentence of two years and nine months' imprisonment with a non-parole period of one year and six months - Parity - Co-offender's sentence very lenient or manifestly inadequate - No justified sense of grievance on part of offender in trial judge's application of parity principle - Sentence not manifestly excessive.

Criminal law - Magistrates' Court - Conviction and sentence - Appeal to County Court - Hearing - Non-attendance by appellant - Judge requiring appellant to attend - Adjournment refused - Appeal struck out - Appearance by counsel sufficient - "Fails to appear" - Criminal Procedure Act 2009 (No 7) ss 3 254 255 256 267 268 328 329 330 - County Court Criminal Procedure Rules 2009 r 3.02 Form 3A.