Re Hodgetts [2024] VSC 21 (7 February 2024)

1 The applicant applies for bail in respect of a large number of charges he faces which have been laid by several members of Victoria Police. The charges and respective police informants are as follows:

Senior Constable Matthew Keays

• Possess drug of dependence

• Criminal damage

• Drive a motor vehicle when directed to stop

• Proceed through a red traffic arrow

• Drive over the speed limit

• Contravene conduct condition of bail (3 charges)

• Commit an indictable offence whilst on bail (4 charges)

• Theft

Detective Senior Constable Paul Follett

• Theft (5 charges)

• Drive while disqualified (5 charges)

• Dangerous driving (4 charges)

• Handle stolen goods

• Impersonating police

• Obtain property by deception (2 charges)

Constable Karan Vinod

• Threat to inflict serious injury
• Criminal damage.

2 I will refer to these charges as the Keays charges, the Follett charges and the Vinod charges.

3 The Court was informed that the Follett charges have now settled, and that the applicant will plead guilty to an agreed selection of charges at Frankston Magistrates' Court on 23 February 2024. The charges which will not be proceeded with are two charges of driving at a speed dangerous which seemingly were laid in the alternative to two charges of driving in a manner dangerous.

4 In addition to the above charges, the applicant also faces charges for which he is currently on summons. They are as follows:

Informant Nicholson

• Contravene family violence intervention order

Informant Armstead

• Contravene community correction order.

5 By way of further important background, the applicant is on a 12-month community correction order ('CCO') imposed in the Frankston Magistrates' Court on 11 July 2023, for offences of handle stolen goods (two charges); burglary; unlicensed driving (two charges); use unregistered motor vehicle; theft of a motor vehicle; commit indictable offence on bail (two charges); aggravated burglary; careless driving of a motor vehicle; contravene conduct condition of bail; fail to answer bail; and possess 1,4 butanediol. The conditions of the CCO include supervision and engagement with assessment and treatment for drug abuse and offending behaviour programs as directed. On 31 August 2023, the applicant was charged on summons with contravening the CCO by failing to be supervised, monitored and managed on three occasions (informant Armstead matter).

6 There is agreement between the parties that the exceptional circumstances test applies to the applicant. Therefore, I must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.

7 The application for bail is opposed. It was asserted on behalf of the respondent that exceptional circumstances have not been established, and that in any event, the applicant poses an unacceptable risk of three of the four eventualities set out in s 4E(1)(a) of the Bail Act 1977 ('the Act').

Applicant charged - Informant Armstead (breach CCO)

Applicant arrested, charged and remanded in custody (Vinod and Follett charges)

Applicant granted bail in Frankston Magistrates' Court subject to conditions including a curfew, non-association with co-accused, prohibition on driving a car, requirement to comply with Youth Justice directions, and requirement to abstain from drug use

Applicant arrested, charged and remanded - Keays charges

Application for bail refused (Keays charges), and bail revoked in respect of Vinod and Follett charges in Frankston Magistrates' Court

8 The applicant is currently the respondent to two family violence intervention orders ('FVIOs') made on 31 October 2023 in Sunshine Magistrates' Court (sitting in Frankston):

• a 12-month final FVIO naming the applicant's mother, Danielle Butterworth, and his three siblings as the protected persons. The FVIO has limited conditions which prohibit the applicant from committing family violence against the protected persons, intentionally damaging or threatening to damage their property, or being within 200 metres of their home without written consent from Danielle Butterworth.

• a two-year final FVIO naming the applicant's ex-partner, Chelsea Maloney, as the protected person. The FVIO has full no-contact conditions, with limited exceptions.

Contest mention in Frankston Magistrates' Court - Vinod charges

Breach hearing in Sunshine Magistrates' Court - Armstead charge

Mention in Frankston Magistrates' Court - Keays charges

Plea in Frankston Magistrates' Court - Follett and Nicholson charges

9 On 13 August 2023, the applicant attended the home of his mother ('the complainant') to collect personal belongings. He began banging on the front door and yelling to be let in for several minutes, and when the complainant opened the door he continued yelling at her about his belongings before kicking her car and causing damage to the front passenger door. The complainant called triple zero on loud speaker. In response to a question from the operator as to whether the applicant had any weapons, it is alleged the applicant responded 'tell them I have a Roscoe[1] and I'm going to shoot my mum'. The applicant took his belongings and left the house before police arrived. The incident was witnessed by one of the applicant's siblings and their partner.

10 Between June and September 2023, four cars were stolen from various residential properties. Number plates were also stolen from a fifth car, and later found on one of the stolen cars.

11 On 20 August 2023, a male was involved in a collision in one of the stolen cars. He was arrested and his personal items, including a mobile phone, were seized. Police examined the phone and identified a number of videos featuring the applicant, including:

• on 30 July 2023, the applicant driving one of the stolen cars on a road.

• on 2 August 2023, the applicant driving one of the stolen cars on a road and performing donuts in it; the applicant driving one of the stolen cars in a park and performing donuts in it; and the applicant driving one of the stolen cars on a freeway at 160 km/h, at times dangerously overtaking other cars and at times driving in the emergency lane.

• on 9 August 2023, the applicant driving one of the stolen cars on a freeway at 159 km/h, at times dangerously overtaking other cars and at times driving in the emergency lane. The applicant was described by police as appearing drug affected and very erratic in the video.

• on 15 August 2023, the applicant driving one of the stolen cars on a freeway and tailgating another car while holding up a blue and red flashing light and yelling 'pull over ya dickhead'.

• on 16 August 2023, the applicant driving one of the stolen cars on a freeway at 198 km/h; and driving one of the stolen cars on an unknown road.

12 On 27 September 2023, the applicant and two others (including the applicant's girlfriend, Emma Murphy) allegedly stole a wallet from an unlocked car and used a credit card from the wallet to purchase food and other items to a total value of $151.65

13 Later that morning, police observed one of the stolen cars driving erratically, allegedly with the applicant as the driver. The car was followed by a police air wing unit, and abandoned in an undercover car park. The applicant was subsequently observed in the company of two others, including his girlfriend, entering an Uber in the vicinity of the scene.

14 On 1 January 2024, police observed a white Mercedes van driving through a red traffic light and speeding. Police attempted to intercept the vehicle, but after briefly stopping to let a passenger out, the driver sped off. Police later spoke to the owner of the car, who had been observed getting out of the passenger side, as mentioned above. He nominated the applicant as person to be spoken to in response to a requirement to identify the driver. At the time, the applicant was on bail with a condition not to drive a car.

15 On 14 January 2024, police attended a residential property in Frankston following reports of a stolen car, a red Mercedes sedan, being tracked to that address. The applicant's girlfriend was standing in the driveway of the property, but went inside and shortly afterwards four people were seen jumping over the fence into a neighbouring property, causing damage to the fence in the process. Three people, including the applicant, then emerged from the neighbouring driveway. The applicant was arrested and searched and found to have a small amount of a substance he admitted to be GHB on him. CCTV from the property was reviewed and depicted a person alleged to be the applicant driving the stolen car into the garage of the property on 8 January 2024.

16 The applicant is 20 years old. He is one of six children and was exposed to violence and drugs from a young age. He completed high school up to Year 10 and then commenced an apprenticeship as a mechanic with his father. He did not complete the apprenticeship due to his father being imprisoned, but has otherwise engaged in some labouring work as a concreter. The applicant is a regular user of methamphetamine ('ice') and GHB. Prior to his remand he was living with his girlfriend, Emma Murphy, and her mother, Sharon Cooper, in Seaford.

17 The applicant has a reasonably significant criminal history comprising six court appearances on a wide array of charges resulting on a range of dispositions short of imprisonment. It is not necessary for present purposes to outline his criminal history.

18 Section 1B of the Act sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty.

19 Section 4 of the Act provides:

A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.

20 Section 4AA outlines situations in which the exceptional circumstances test applies to a decision whether to grant bail. One of those situations is where the applicant for bail is accused of a Schedule 2 offence alleged to have been committed during the period of a CCO for another Schedule 2 offence, as is the case here.[2] Section 4A(1A) dictates that the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of exceptional circumstances.[3] In determining whether exceptional circumstances exist, the Court must take into account the surrounding circumstances,[4] including, but not limited to, those prescribed in s 3AAA(1) of the Act.

21 If satisfied that exceptional circumstances exist, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk.

22 In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable, pursuant to s 4E(3) of the Act.

23 The phrase 'exceptional circumstances' is not defined in the Act, but its meaning has been considered in many decisions of this Court. Kaye J (as he then was) in DPP v Muhaidat[5] stated the relevant principle as follows:

Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[6]

24 It is plain from the cases that the threshold of exceptional circumstances is a high one, but not an impossible one to reach. It may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[7]

25 Senior Constable Matthew Keays, the informant, who is stationed at Somerville Highway Patrol, gave evidence before me which was principally made up of cross-examination by Ms Conwell for the applicant. Ms Conwell explored the strength of the evidence in support of the prosecution contention that the applicant was the driver of the white Mercedes van which police unsuccessfully sought to intercept on 1 January 2024. In short, the evidence in proof of that contention was limited to what the police were told some time after the event by Jack Bath, the owner of the vehicle who was seen alighting from the front passenger seat of the vehicle before it drove off. He was asked pursuant to s 60 of the Road Safety Act 1986 to provide information as to the identity of the driver of the vehicle. He said to the informant, 'You'll need to speak to Zane Hodgetts. I'm not sure if he was the driver. I'm not nominating him, he's got all the information, you need to speak to him'.

26 The informant indicated that the link between the applicant and the stolen red Mercedes vehicle on 14 January 2024 was that the applicant could be seen on CCTV footage emerging from the garage some minutes after the vehicle was driven in.

27 The informant elaborated on his concerns about the risk posed by the applicant, and did not accept that Youth Justice involvement in bail would ameliorate the risk.

28 Sharon Cooper, the mother of the girlfriend of the applicant, Emma Cooper, gave evidence of her ownership of 15 Taldra Crescent, Seaford, her long-term employment at Centrelink, the relationship between the applicant and her daughter, the applicant's level of compliance with bail when previously bailed to her premises, her willingness to have the applicant reside with her again if he is granted bail, her willingness to supervise him within her capacity to do so in light of her full-time employment, and her preparedness to inform the police should he breach any conditions of bail. In her evidence before me, she attested to having on occasions driven the applicant to his mother's home and to the police station to report on bail in the period leading up to his remand into custody, and of her willingness to again drive him to locations he is required to attend should bail be granted. The Court was informed on the second day of the hearing that Ms Cooper's licence to drive a motor vehicle was suspended on 4 October 2023 for six months due to the accrual of demerit points. Therefore, she could not lawfully drive the applicant on the occasions to which she referred in the past, and cannot lawfully drive the applicant anywhere until the suspension lapses.

29 Ms Conwell for the applicant, in her written and oral submissions, relied upon a combination of matters in proof of the existence of exceptional circumstances, and in resisting the respondent's contention of unacceptable risk. These were:

(a) The strength of the prosecution case. On this score, Ms Conwell focused on the charges in connection with the white Mercedes van and the stolen red Mercedes sedan. She pointed out that the case in respect of the events on 1 January 2024 will depend entirely on the evidence of Jack Bath, whose credibility will be subject to strong attack. In respect of the theft of the red Mercedes, she relied on the concession of the informant, Senior Constable Keays, to contend that the prosecution will be unable to prove the charge of theft because there is no proof that the applicant was seen driving that vehicle. In relation to the Vinod charges, Ms Conwell pointed out that no one other than the applicant's mother, Ms Butterworth, has made a statement about the events. Ms Butterworth is now supportive of the applicant and may seek to be excused from giving evidence. The alleged threat concerning a firearm is not audible on the 000 call. Ms Conwell questioned whether the evidence would be able to establish the requisite intention on the part of the applicant.

(b) The relatively limited criminal history of the applicant. The applicant's criminal history is not as extensive as a superficial consideration might suggest. The main matter of concern would be the CCO received by the applicant on 11 July 2023. The convictions of the applicant reflect a young man whose life tends to spiral due to drug use. He is by no means beyond redemption.

(c) The applicant's youth. His young age of 20 is a very important consideration in this case.

(d) The likely sentence to be received by the applicant. Should the applicant remain in custody until the resolution of all charges, his time on remand is likely to exceed any sentence he would receive, in light of the time he has already spent in custody on these matters, and some other time available to him pursuant to the principle in R v Renzella.[8]

(e) The onerous nature of any time the applicant spends in custody. It has apparently been necessary for the applicant to be housed in protection, due to concerns about his safety which arise in connection with his father, who is currently in prison. Ms Conwell indicated that not only has the incarceration of the applicant's father left him feeling bereft at the lack of contact with him, but it has had a deleterious effect on the applicant's position in custody. In protection, the applicant has not had the same access to treatment and courses as would a prisoner in mainstream.

(f) Concerns about the applicant's mental health. It was submitted that the applicant suffers from mental health concerns in custody. The Youth Justice Bail Service Report dated 1 February 2024 and filed in this matter, outlined these as being feelings of depression and suicidal ideation. There has apparently been a decline in the applicant's mental health in custody. No supporting evidence was led during the hearing in relation to these concerns. In the report just referred to, the author indicated that a referral had been made to Head Space Youth Mental Health Centre in Frankston. If granted bail, the applicant would have a preliminary screening phone appointment. Further, Youth Justice would develop a mental health safety plan with the applicant.

(g) The availability of supervision in the community from Ms Cooper and Youth Justice. Ms Conwell relied strongly on the supervision which Ms Cooper would be able to provide, which she submitted would be greater than her previous supervision in the lead-up to the applicant's incarceration, because not only is Ms Cooper now fully aware of the importance of her role in supervision, but she has given an undertaking to the Court to carry out that role, and to report any breaches of bail to the police. As for Youth Justice, they are now squarely focusing on the need for the applicant to receive treatment for his drug problem. An appointment has been made for the applicant to be assessed for drug treatment should he be released on bail.

(h) The availability of stable accommodation. Ms Cooper's home in Seaford represents stable accommodation for the applicant.

(i) The applicant's ties to the community. In respect of the question of unacceptable risk, Ms Conwell urged the Court to pay particular attention to the applicant's youth and the supports available to him when considering the unacceptable risk alleged. She highlighted what she submitted was the difference between the level of support available now compared with that available in the past. In particular, she relied on the fact that various appointments have actually been made for the applicant should he be released on bail. In respect of the risk of the applicant committing a further offence on bail, Ms Conwell submitted that the applicant had been largely compliant with Youth Justice on the previous grant of bail. All-in-all, she submitted that any risk posed by the applicant could be ameliorated so as not to be unacceptable by the imposition of stringent conditions.

30 Mr Singh for the respondent, in his written and oral submissions, challenged the existence of exceptional circumstances in this case, and submitted in the alternative that there would be an unacceptable risk of the applicant endangering the safety of the public, committing an offence while on bail, and failing to surrender into custody.

31 In respect of the seriousness of the alleged offending, Mr Singh highlighted that, in connection with the most recent alleged offending, contrary to a specific condition of bail that he not drive, the applicant was observed driving a motor vehicle in excess of the permitted speed, disobeying traffic control signals, and failing to stop when requested to do so. These allegations would suggest that he continued to drive, steal motor vehicles, associate with co-accused, and use drugs, contrary to conditions of bail. The earlier Follett offending to which the applicant is pleading guilty comprised the driving of vehicles by the applicant on a number of occasions in dangerous fashion, and sometimes at very excessive speed. On one occasion, for example, he is alleged to have driven at a high speed, dangerously overtaking and tailgating other vehicles while appearing to be erratic and drug-affected. Mr Singh submitted that the offending alleged is serious, raising the real prospect of injury or death to members of the public.

32 In respect of the strength of the case, Mr Singh noted the proposed pleas of guilty to the bulk of the Follett offending. He conceded that the evidence concerning the applicant's alleged driving of the white Mercedes van does depend on the account of the owner, but that is not to say that the case is weak. The owner named the applicant, having been required to do so pursuant to statute. The case on the Vinod charges is a strong one. The complainant and others observed the offending, and the call to 000 was recorded.

33 Mr Singh submitted that the criminal history of the applicant is significant. He was placed on a CCO for offences including aggravated burglary, theft of a motor vehicle, driving offences and failing to answer bail. He has since failed to comply with the order. Only a couple of weeks after being placed on the CCO, the applicant was dealt with in the Bail and Remand Court for possession of GHB and methylamphetamine and possessing a knife. The Vinod charges followed within two days and the Nicholson charge a day later.

34 In respect of the applicant's performance on previous grants of bail, Mr Singh drew a number of issues to the attention of the Court. Not only has the applicant failed to abide by conditions, but importantly, he has continued to offend while on bail. The applicant was on bail for the Follett and Vinod charges at the time of the alleged Keays offending.

35 Mr Singh questioned the level of support able to be provided by Ms Cooper, and expressed concerns about the recent revelation that at the time of previously driving the applicant to appointments and the like, and furthermore, at the time of promising this Court that she would be able to drive the applicant in future, Ms Cooper was a suspended driver.

36 Mr Singh submitted that were the applicant to be granted bail with the conditions contemplated, there would be no real change from the position in which he previously found himself, when he repeatedly breached bail and re-offended.

37 Furthermore, based on his history of driving offences, the applicant would pose a significant danger to the community. No conditions would be able to sufficiently mitigate that risk.

38 I note at the outset that in considering the surrounding circumstances of this case, I have had regard to the fact that the applicant faces two active FVIOs.[9] I have also had regard to s 5AAAA(2) of the Act.

39 These charges being in the summary jurisdiction, it is clear that the offending alleged is not of the same order as would often be the case in bail applications before this Court. Having said that, there are some concerning aspects to the applicant's admitted and alleged offending. Considering the Follett charges alone, to which the applicant will plead guilty, but also the context in which those charges arose, commencing from a time early on in the operation of the CCO made in respect of numerous driving, dishonesty and bail charges, the applicant repeatedly drove stolen motor vehicles in very dangerous fashion whilst disqualified, imperilling the safety of other road users. In the circumstances, the offending of the applicant is quite serious and persistent.

40 Whilst issues have been raised as to the strength of the prosecution case on some of the Keays charges, it is notable that the applicant admits the drug possession charge laid against him. And the bulk of the Follett charges are admitted. As for the Vinod charges, the mother of the applicant made an immediate report of the applicant's offending in the 000 call she made, and then made a police statement implicating the applicant. The case is of reasonable strength.

41 In terms of the applicant's criminal history, I accept that it is not as extensive as the number of pages of the criminal record would suggest, but that said, the history contains no fewer than six appearances on a wide array of charges including violence, dishonesty, drugs, and driving. A number of dispositions required the applicant to submit to drug assessment and treatment. The indications are that he has not sought to avail himself of this. Furthermore, he comprehensively breached the CCO he received on 11 July 2023, by non-attendance and further offending. All of the charges presently before the Court were committed, or allegedly committed, in breach of that CCO.

42 Things become particularly difficult for the applicant when s 3AAA(1)(d) and (e) are considered. The applicant's performance on previous grants of bail has been quite poor. He has accrued repeated convictions for committing indictable offences whilst on bail and contravening conduct conditions of bail. He also has a conviction for failing to answer bail, and on other occasions, warrants have been issued when he has failed to appear in court.

43 Looking at the most recent grant of bail, on 30 November 2023, the applicant was released on bail in Frankston Magistrates' Court with strict conditions including a curfew, and conditions that he not drive a motor vehicle, not use drugs of dependence, and attend and comply with all directives of the Youth Justice Bail Program including engaging in substance use counselling with the Youth Support and Advocacy Service. He was also required to engage in judicial monitoring.

44 The Supervised Bail Progress Report dated 10 January 2024 and prepared for the judicial monitoring appearance of the applicant on 12 January 2024, spoke in glowing terms of the applicant having shown 'a comprehensive understanding of the consequences of his actions, remorse, and a strong motivation to change his behaviours'. It was indicated that 'he has made significant positive changes to his peer network, employment status and it is noted he has ceased substance use.' The report went on, '[t]o the knowledge of Youth Justice, there have been no instances where Mr Hodgetts' bail conditions have been breached. Further, Youth Justice have no information advising of any new alleged offending'. It was stated further on in the report that the applicant was working full time as a labourer and team leader with Peninsula Slabs, a concreting company. In summary, the report described the applicant as remaining 'consistently engaged, respectful and motivated during supervision appointments with the writer'.

45 This was the glowing report provided by Youth Justice to the Frankston Magistrates' Court for the judicial monitoring hearing on 12 January 2024. It was a report largely based on the self-report of the applicant. As previous and subsequent reports would suggest, the impression gained by Youth Justice of the progress and status of the applicant was not correct. The very day before that report was written, the applicant, in breach of two bail conditions, drove a motor vehicle in the early hours of the morning. He had fallen back into contact with previous undesirable contacts, assuming he ever ceased such contact. He had relapsed to drug use. I was told in the written submissions of Ms Conwell that prior to being remanded, the applicant was using ½ gram of ice per day and approximately 70ml of GHB. On 14 January 2024, he was found in possession of a quantity of GHB and admitted he had recommenced using drugs. He also faces charges arising from early January 2024 which are yet to be determined. As for the claim of full-time employment as a team leader with Peninsula Slabs, there was nothing advanced before me in support of that claim, which clearly was made by the applicant to his Youth Justice worker.

46 Nothing I have said is intended to be critical of Youth Justice, who have continued to support the applicant, to the extent of providing a further report for the Court dated 2 February 2024. They have sought to assist the applicant, and have no doubt accepted at face value the things he has told them.

47 Having been extended an opportunity for liberty by the magistrate on 30 November 2023, with the support of Youth Justice and judicial monitoring, and residing at the same address and in similar circumstances as those currently proposed, the applicant was unwilling or unable to abide by the conditions of bail, and unable to abide by the law.

48 The overall picture presented is of a young man who has serious issues which he has been unwilling to confront and who, in spite of his knowledge of what incarceration entails for him, has been quite unprepared to abide by the law. He has shown a lack of regard for court orders, and in particular, a disregard for the strictures of bail.

49 I agree with the respondent that the supports and supervision on offer for the applicant should he again be granted bail would not differ markedly from those previously on offer. The reality is that these were not sufficient to ensure his compliance with bail.

50 Unfortunately, the Court could have little confidence that were the applicant to again be granted bail, he would abide by its terms. Of particular concern is his ongoing drug use and his inclination to steal motor vehicles and to drive them dangerously, exposing the community to the real risk of disaster, notwithstanding his understanding that he is not permitted to drive at all.

51 It is no small thing for a person of the age of the applicant to be detained in custody for the length of time which might occur in this case. I note also that his time in custody is particularly onerous in view of his status as a protected prisoner. I also accept that there is a prospect that the time he spends on remand awaiting resolution of the charges may exceed any sentence he receives. Having said that, there is no question, and it is not challenged on his behalf, that a custodial sentence will eventually be called for.

52 Having considered all of the surrounding circumstances, I am not satisfied that the applicant has discharged the burden resting on him of proving the existence of exceptional circumstances that justify the grant of bail. For that reason, it is necessary that bail be refused.

53 For completeness, I can indicate that even had I been of a different view, I would have concluded that there is an unacceptable risk of the applicant endangering the community or reoffending, which would have required a refusal of bail in any event.

54 For the reasons I have stated, this application for bail must be refused.

55 I make it clear that the Court fully accepts the contention of Ms Conwell that the applicant is a 20-year-old man who is not beyond redemption. For what it is worth, and in the knowledge that the manner of resolution of the remaining charges is entirely a matter for the parties, the Court expresses the hope that a speedy resolution may be possible.

[5] [2004] VSC 17.

[6] Ibid [13]; See also Re Sipser [2019] VSC 362 [43] and Re Reker [2019] VSC 81 [39].

[7] See, for example, Re Brown [2019] VSC 751 (Lasry J).

[8] [1997] 2 VR 88.