Equity — Fiduciary duties — Breach of fiduciary duties — Partnership — Former partners used partnership property in conduct of new business — Account of profits — Whether order to account for ‘benefit’ includes capital value of business — Partnership Act 1958 (Vic), s 33

Equity — Defences — Lack of clean hands — Whether party seeking relief engaged in misconduct with immediate and necessary relation to relief sought

Criminal law — Appeal — Conviction — Rape by compelling sexual penetration — Causation — Whether necessary for accused to compel or force complainant to engage in conduct — Whether accused’s acts must be the ‘immediate’ cause of complainant’s act — Whether complainant’s act was required to be the ‘natural consequence’ of accused’s conduct — Whether trial judge failed to direct jury as to elements of offence — Whether substantial miscarriage of justice — Crimes Act 1958 (Vic), s 39

Words and phrases — ‘intentionally cause’

Practice and procedure — Group proceedings — Multiplicity dispute between consolidated proceedings and other group proceedings — Applicable standard of appellate review — Relevant considerations in multiplicity dispute — Whether judge entitled to take into account cooperative behaviour between proponents — Whether selection of consolidated group proceeding likely to affect interests of group members through reduction of competitive behaviour — Inter-relationship of Supreme Court Act 1986 (Vic) and Civil Procedure Act 2010 (Vic) — Supreme Court Act 1986 (Vic), s 33ZF — Civil Procedure Act 2010 (Vic), ss 7, 8, 9

Evidence — Admissibility — Forensic gait analysis — CCTV footage of subjects — Asserted close similarities of spatio-temporal gait features of subjects — Expert evidence — Test of relevance — Exclusionary opinion rule — Tendency evidence — Probative value of evidence — Danger of unfair prejudice to the accused — Evidence Act 2008 (Vic), ss 55, 56, 76, 79, 97, 137

Practice and procedure — Victorian Civil and Administrative Tribunal — Orders — Application to reopen decision of Tribunal on ground of problem with enforcing or complying with the order — Standing to bring application — Identification of ‘person in whose favour’ order made by Tribunal — Identification of ‘problem’ with Tribunal order as precondition to reopening decision — Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 120A

Judgments, orders and declarations — Victorian Civil and Administrative Tribunal — Orders — Application to reopen decision of Tribunal on ground of problem with enforcing or complying with the order — Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 120A

Words and phrases — ‘person in whose favour’ — ‘problem with enforcing or complying with the order’

Wills and codicils — Application for judicial advice — Forfeiture rule — Defendant convicted at special hearing of offence of manslaughter of deceased — Whether rule applied to prevent defendant taking benefit under will — Necessity of determining level of defendant’s culpability — Whether reference could be made to evidence of reasons for conviction — Evidence Act 2008 (Vic), ss 91, 92

Wills and estates — Statutory will — Court authorised making of will in respect of person lacking testamentary capacity — Will signed and sealed by Registrar of Probates after death of that person — Whether will valid — Wills Act 1997 (Vic), ss 21, 25

Limitation of actions — Extension to statutory limitation period for action — Power to extend limitation period where fresh proceeding brought in Magistrates’ Court in place of VCAT for proceeding involving federal matter for which VCAT had no jurisdiction — Extension refused — Whether error of law — Whether late making of application attributable to steps required to be taken to have matter determined by Magistrates’ Court in place of VCAT — Whether fair and reasonable to grant extension application — Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 57B, 57D

Administrative law — Victorian Civil and Adminsitrative Tribunal — Matter in federal jurisdiction transferrable to Magistrates’ Court — Power to extend limitation period where fresh proceeding brought in Magistrates’ Court

Criminal law — Interlocutory appeal — Evidence — Disclosure of location information — Whether authorised by law — Whether evidence improperly or illegally obtained — Telecommunications (Interception and Access) Act 1979 (Cth), s 180 — Telecommunications Act 1997 (Cth), s 276

Words and phrases — ‘in connection with its business’

Landlord and tenant — Lease of commercial premises — Landlord’s covenant to ‘maintain building in structurally sound condition’ — Scope of covenant — Whether landlord obliged to investigate concerns regarding structural soundness of premises – Whether duty to maintain only enlivened following disrepair

Contract — Repudiation — Breach by landlord of covenant in lease to ‘maintain building in a structurally sound condition’ — Whether serious breach of an intermediate term — Termination for repudiation — Whether continued payment of rent affected tenant’s right to terminate

Restitution — Total failure of consideration — Lease of commercial premises — Landlord’s covenant to ensure tenant’s quiet enjoyment of premises — Claim by tenant for restitution of rent paid during period of non-occupation of premises following alleged breach of covenant — Whether breach capable of giving rise to claim for restitution

Courts and judges — Bias — Apprehended bias — Application for disqualification — Disqualification by association — Disqualification by conduct — Disqualification by extraneous information — First instance hearing — Whether evidence admissible

Practice and procedure — Subpoena — Production of documents – Objections to subpoenae — Documents sought ‘for evidence’ in aid of application for disqualification of judge for apprehended bias — Whether legitimate forensic purpose — Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 42A.01 — Civil Procedure Act 2010 (Vic), ss 9, 19, 23, 24

Practice and procedure — Group proceeding — Discontinuance — Application for leave to discontinue group proceeding — Whether discontinuance should be approved — Whether discontinuance unfair, unreasonable or adverse to group members — Whether notice to group members of application for discontinuance required — Supreme Court Act 1986 (Vic), ss 33V, 33X, 33Y

Limitation of actions — Group proceeding — Discontinuance — Whether discontinuance ended suspension of limitation periods — Whether discontinuance a ‘determination’ of proceeding — Whether order for recommencement of limitation periods necessary — Supreme Court Act 1986 (Vic), ss 33ZE, 33ZF

Words and phrases — ‘determined’

Trust and trustees — Variation of trust — Arrangement — Application for approval of proposed arrangement to vary terms of family trust — Extension of vesting date — Substitution of statutory perpetuity period for common law perpetuity period — Enlargement of class of beneficiaries — Variations to avoid adverse taxation outcomes — Whether variations would constitute trust resettlement — Whether variation to trust deed to introduce general power of amendment for trustee allowed — Whether proposed arrangement for benefit of relevant beneficiaries — Whether proposed arrangement fair and proper — Trustee Act 1958 (Vic), ss 63, 63A — Perpetuities and Accumulations Act 1968 (Vic), s 5

Companies — Winding up — Insolvency — Statutory demand — Application to set aside demand — Company entered agreement for payment of unpaid amounts — Terms in agreement permitting service of statutory demand on company upon default — Covenant not to apply to set aside demand — Whether possible to waive right to apply to set aside statutory demand — Whether exclusion by contract effective — Corporations Act 2001 (Cth), s 459G

Companies — Winding up — Insolvency — Statutory demand — Application to set aside demand — Whether genuine dispute about existence or amount of debt — Company sought declaration that amount not owing — Whether offsetting claim — Purported contractual exclusion of right to apply to set aside demand — Relevance of exclusion to assessment of genuineness of dispute or offsetting claim — Corporations Act 2001 (Cth), ss 459G, 459H

Professions — Teachers — Disciplinary proceedings — Suspension — Whether ‘preliminary assessment’ statutory precondition to interim suspension of teacher — Whether teacher denied procedural fairness in respect of preliminary assessment and suspensions – Whether disciplinary body could form reasonable belief that teacher continued to pose an unacceptable risk of harm to children and that suspension necessary to protect children — Education and Training Reform Act 2006 (Vic), pt 2.6, div 8A, ss 2.6.28, 2.6.28A, 2.6.28D, 2.6.28E, 2.6.28F and 2.6.28G, div 10, ss 2.6.30 and 2.6.30A, div 10A, ss 2.6.31 and 2.6.32 and divs 12–14

Tort — Threshold for claim for non-economic loss — Significant injury — Determination of significant injury by medical panel in cases involving more than one defendant — Whether medical panel determination made after referral by one defendant binds other defendants not parties to the referral — Whether Wrongs Act 1958 (Vic) pt VBA permits multiple medical panel determinations in cases involving more than one defendant — Whether pt VBA permits issue of significant injury to be determined differently in respect of different defendants against whom same claim is made — Wrongs Act 1958 (Vic), pt VBA

Evidence — Tendency — Negative tendency — Tendency evidence proposed to be led by defendant — Whether negative tendency amounted to tendency evidence within the meaning of s 97 Evidence Act 2008 — Whether evidence possessed significant probative value — Evidence Act 2008 (Vic), s 97

Practice and procedure — Defamation — Spent criminal convictions — Subpoena to Victoria Police — Application to set aside subpoena — Defence pleading prior convictions of plaintiff — Application to strike out part of defence — Whether reliance on spent conviction in pleaded defence contravened statute — Whether reliance on spent conviction in pleaded defence abuse of process — Spent Convictions Act 2021 (Vic), ss 20, 21

Evidence — Expert evidence — Law — Plaintiffs sought to adduce expert evidence of domestic law and public international law — Evidence Act 2008 (Vic), s 192A — Civil Procedure Act 2010 (Vic), ss 47, 49, 65F, 65G, 65H

Criminal law — Appeal — Conviction — Jury directions — Standard of proof — Whether prosecutor reversed onus of proof — Whether direction that ‘unrealistic possibility’ was not reasonable doubt diminished the criminal standard of proof — Jury Directions Act 2015 (Vic), ss 63, 64

Personal property — Cryptocurrency — Whether interest in cryptocurrency is ‘property’ — Bailment — Whether bailment in respect of interest in cryptocurrency — Whether capable of bailment

Criminal law — Appeal — Conviction — Practice and Procedure — Jury empanelment — Judge excused jury panel member after commencement of procedure for selecting juror — Whether statutory power to excuse jury panel member — Whether common law power to excuse jury panel member — Juries Act 2000 (Vic), ss 12, 32, 36

Practice and procedure — Group proceeding — Application by plaintiff for leave to discontinue group proceeding — Whether discontinuance should be approved — Whether discontinuance unfair, unreasonable or adverse to group members — Supreme Court Act 1986 (Vic), s 33V

Limitation of actions — Discontinuance of group proceeding — Whether discontinuance ended suspension of limitation periods — Whether discontinuance a ‘determination’ of proceeding — Whether order for recommencement of limitation periods necessary — Whether notice to group members of application for discontinuance required — Supreme Court Act 1986 (Vic), ss 33X, 33ZE, 33ZF

Words and phrases — ‘determined’

Criminal law — Interlocutory appeal — Trafficking in persons — Statutory interpretation — Respondent charged with organising or facilitating exit of another person from Australia by deception — Elements of offence — Whether prosecution required to prove accused’s use of deception involved a risk of exploitation of the person deceived — Criminal Code (Cth), div 271, s 271.2(1A)