Browse Federal Court Judgments

Published in the last week

In order of publication date with most recent additions at the top.


Migration
Paszkiewicz v Minister for Home Affairs [2019] FCA 390
MIGRATION - application for judicial review of decision of the Administrative Appeals Tribunal - where visa cancelled on character grounds - where a delegate of the Minister decided to refuse to revoke the cancellation decision - where the Tribunal affirmed the non-revocation decision - whether the Tribunal failed to respond to a substantial, clearly articulated argument relying upon established facts - application dismissed
MOSHINSKY J - 22 MARCH 2019


Social Security
Zavrski v Department of Social Services [2019] FCA 381
SOCIAL SECURITY - appeal against decision of the Administrative Appeals Tribunal to refuse Disability Support Pension - residency requirements - claim that hearing inadequate - whether applicant had right to legal representation - claim of failure to provide relevant document - no error of law - application dismissed
RANGIAH J - 21 MARCH 2019


Migration
ACN16 v Minister for Home Affairs [2019] FCA 399

MIDDLETON J - 28 FEBRUARY 2019


Practice and Procedure ; Estoppel
Coshott v Official Trustee in Bankruptcy, in the matter of Bankrupt Estate of Michael Petrovic Lenin (deceased) [2019] FCA 401
PRACTICE AND PROCEDURE - whether the applicant had reasonable prospect of successfully prosecuting the proceeding - whether there was an issue estoppel - whether there was an Anshun estoppel - whether there was an abuse of process - proceedings dismissed.
THAWLEY J - 22 MARCH 2019


Practice and Procedure ; Costs
Carlos v Secretary, Department of Social Services (No 2) [2019] FCA 402
PRACTICE AND PROCEDURE - costs - unsuccessful appeal from a decision of the Administrative Appeals Tribunal in relation to social security entitlements - whether costs order in a fixed sum should be varied or revoked - whether litigation was pursued in the public interest
CHARLESWORTH J - 21 MARCH 2019


Migration
Valencia v Minister for Immigration and Border Protection [2019] FCA 397
MIGRATION - appeal from Federal Circuit Court - whether Court erred in dismissing appeal from Administrative Appeals Tribunal - whether Tribunal misconstrued requirements of reg 1.15AA(1)(e) of Migration Regulations 1994 (Cth) - whether Tribunal failed to consider evidence - where visa applicant applied for carer visa - where Tribunal considered that Appellant's relatives in Australia could contribute to cost of assistance services
PERRAM J - 22 MARCH 2019


Migration ; Practice and Procedure
CQX18 v Minister for Home Affairs [2019] FCA 386
MIGRATION - application for review of decision of Federal Circuit Court - where Federal Circuit Court Judge dismissed application for review of decision of Minister for Home Affairs - where reasons given ex tempore and written version not published until 54 days after expiry of appeal period - consideration of whether late publication constituted jurisdictional error - whether writs should issue where applicant could apply for leave to appeal out of time PRACTICE AND PROCEDURE - where individual Federal Circuit Court Judge named as Respondent - where 'The Judges of Federal Circuit Court of Australia' named as Respondent - consideration of proper respondents -directions made to remove and substitute respondents
PERRAM J - 22 March 2019


Corporations Law
Jahani, in the matter of Northern Energy Corporation Ltd (Administrators Appointed (No 2) [2019] FCA 382
CORPORATIONS - further application to extend the convening period for the second meeting of creditors under s 447A(1) of the Corporations Act 2001 (Cth) - where companies are in administration - where proceedings commenced by parent company in Supreme Court of NSW regarding ability of creditors of the companies to rely on a Deed of Cross Guarantee made to obtain relief from reporting requirements under ASIC class orders - where parent company and sole secured creditor proposed a deed of company arrangement conditional on further extension being granted and outcome of Supreme Court of NSW proceedings - further extension opposed by an unsecured creditor of the companies - if further extension granted, unsecured creditor pressed for appointment of special purpose administrators to investigate antecedent transaction involving in specie transfer of assets to parent company - application for immediate liquidation of the companies not pressed by creditor after Court expressed view at hearing that there was no reason to deprive creditors of opportunity to consider the proposed deed of company arrangement or any other which might emerge - application for further extension granted and special purpose administrators appointed
FARRELL J - 15 March 2019


Contempt of Court
Re.Group Pty Ltd v Kazal (No 7) [2019] FCA 387
CONTEMPT OF COURT - imposition of fine - whether counts arose from single episode of offending - where counts did not involve contumacious flouting of Court's orders
PERRAM J - 22 MARCH 2019


Migration
Alam v Minister for Home Affairs [2019] FCA 389

MARKOVIC J - 11 March 2019


Migration
BNV18 v Minister for Home Affairs (No 2) [2019] FCA 378
MIGRATION - appeal from orders of the Federal Circuit Court dismissing the appellants' application for judicial review of a decision by the Immigration Assessment Authority under Part 7AA of the Migration Act 1958 (Cth) - where IAA affirmed delegate's decision refusing to grant the appellants a protection visa - whether Authority made a jurisdictional error by misunderstanding or misapplying s 473DD in relation to new information provided - whether Authority made a jurisdictional error by making an adverse credibility finding based on a misunderstanding of evidence
MURPHY J - 21 March 2019


Migration
Kwiatkowska v Minister for Home Affairs [2019] FCA 388
MIGRATION - student visa - whether jurisdictional error arose by denying the First Appellant's elder son the opportunity to translate - where no error identified - where any error, as alleged, would be immaterial Held: appeal dismissed
MCKERRACHER J - 21 MARCH 2019


Migration
Saeed v Minister for Home Affairs [2019] FCA 172

NICHOLAS J - 7 February 2019


Corporations Law
Owen, as liquidator of Cockatoo Crane Trucks Pty Ltd (in liq) v Hazlewood [2018] FCA 2123
CORPORATIONS - application for an extension of time for the respondents to file a notice of cross-claim - whether there was an "acceptable explanation" for the delay in filing - whether there was any prejudice to the respondent - whether the application had merit - where leave was granted
REEVES J - 13 DECEMBER 2018


Workers' Compensation ; Administrative Law
Comcare v Stewart [2019] FCA 365
WORKERS' COMPENSATION - Safety, Rehabilitation and Compensation Act 1988 (Cth) - appeal on questions of law from a decision of the Administrative Appeals Tribunal - statutory construction - where injury "does not include a disease... suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment" - whether Tribunal misconstrued or misapplied this statutory provision - whether error in respect of one integer infected the Tribunal's conclusion in relation to another ADMINISTRATIVE LAW - appeal on questions of law from a decision of the Administrative Appeals Tribunal - Commonwealth workers' compensation - statutory construction - where injury "does not include a disease... suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment" - whether Tribunal misconstrued or misapplied this statutory provision - whether error in respect of one integer infected the Tribunal's conclusion in relation to another
ROBERTSON J - 21 MARCH 2019


Practice and Procedure ; Industrial Law
Sawtell v P. J. Clarke Investments (Qld) Pty Ltd [2019] FCA 385
PRACTICE AND PROCEDURE - notice of appeal - failure to state grounds of appeal - decision not attendant with arguable appellable error - appeal dismissed PRACTICE AND PROCEDURE - respondent corporation not represented by a lawyer - compliance with rule dispensed with - compliance would be an unnecessary formality
FLICK J - 21 MARCH 2019


Corporations Law
Australian Securities and Investments Commission v Linchpin Capital Group Ltd (No 2) [2019] FCA 398
CORPORATIONS - regulatory action - companies operating managed investment schemes contrary to Corporations Act 2001 (Cth) - numerous breaches - consent orders winding up company and schemes
DERRINGTON J - 15 MARCH 2019


Native Title
Clancy on behalf of the Wulli Wulli People #2 v State of Queensland [2019] FCA 351
NATIVE TITLE - application to remove party from proceedings - where applicant is a member of the claim group - where respondent identifies as a member of another group - whether applicant adequately represents respondent's interests - respondent removed from proceedings
RANGIAH J - 4 MARCH 2019


Practice and Procedure ; Discovery
Hanson-Young v Leyonhjelm (No 2) [2019] FCA 393
PRACTICE AND PROCEDURE - application pursuant to r 21.01 of the Federal Court Rules 2011 (Cth) for an order that the Applicant provide written answers to interrogatories - whether such an order is necessary for the fair disposition of the proceeding or to save costs - application refused. PRACTICE AND PROCEDURE - application by interlocutory application for leave to issue two subpoenas for two persons to attend trial to give evidence - consideration of circumstances in which the Court grants leave - leave granted.
WHITE J - 21 MARCH 2019


Practice and Procedure
Connor v State of Queensland (Department of Education and Training) (No 2) [2019] FCA 366
PRACTICE AND PROCEDURE - application for stay of proceedings - allegation that all judges of this Court have a conflict of interest - application dismissed
RANGIAH J - 13 MARCH 2019


Practice and Procedure ; Migration
BOR16 v Minister for Immigration and Border Protection [2019] FCA 396
PRACTICE AND PROCEDURE - dismissal of appeal for want of appearance by appellant
BROMBERG J - 19 FEBRUARY 2019


Migration
CCI17 v Minister for Home Affairs [2019] FCA 392
MIGRATION - Protection (Class XA) visa - appeal from the Federal Circuit Court of Australia ("FCC") - whether FCC erred in failing to find jurisdictional error in the decision of the Administrative Appeals Tribunal ("Tribunal") - exercise of power under s 426A of the Migration Act 1958 (Cth) - whether Tribunal should have offered the appellant an opportunity to make comments or provide more detailed information before making its decision - where the appellant had notice of, and opportunity to present further evidence and information to the Tribunal - appeal dismissed
BROMBERG J - 19 FEBRUARY 2019


Migration
BZW16 v Minister for Immigration and Border Protection [2019] FCA 395
MIGRATION - Protection (Class XA) visa - appeal from the Federal Circuit Court of Australia ("FCC") - whether FCC erred in failing to find jurisdictional error in the decision of the Administrative Appeals Tribunal ("Tribunal") - whether the Tribunal took into account an irrelevant consideration - whether it was appropriate for the Tribunal to take into account the interactions of the appellant with Malaysian authorities in obtaining identity documents in considering whether the appellant held a well-founded fear of being persecuted by the Malaysian authorities - appeal dismissed
BROMBERG J - 18 FEBRUARY 2019


Corporations Law
Australian Securities and Investment Commission v Aviation 3030 Pty Ltd (No 2) [2019] FCA 391
CORPORATIONS - application for interim stay of winding up orders
O'CALLAGHAN J - 20 MARCH 2019


Migration
Devi v Minister for Home Affairs [2019] FCA 380
MIGRATION - student visa - application for extension of time within which to appeal a decision of the Federal Circuit Court - where the Federal Circuit Court found no jurisdictional error in the decision of the Tribunal - impermissible merits review - insufficient merit to warrant the grant of leave for an extension of time
MCKERRACHER J - 20 MARCH 2019


Migration
CDV16 v Minister for Immigration and Border Protection [2019] FCA 371
MIGRATION - appeal from the Federal Circuit Court of Australia dismissing an application for judicial review of the respondent's decision not to waive visa condition 8503 ('no further stay condition') - where the appellant made two unsuccessful requests to the respondent in March 2015 for a waiver of visa condition 8503 on the basis that his circumstances had changed by marrying an Australian citizen, assuming responsibility as her carer and becoming a father figure for her children - where the court below made orders by consent on 27 April 2016 quashing the first waiver request and requiring it to be reconsidered according to law - where the appellant subsequently officially separated from his wife on 29 May 2016 - where on reconsideration the respondent rejected the waiver request by decision dated 17 July 2016 but incorrectly identified the decision being reconsidered as the second request rather than the first request - whether any jurisdictional error in the respondent's incorrect identification of the decision being reconsidered - no material error - appeal dismissed
GRIFFITHS J - 20 March 2019


Evidence
Quaker Chemical (Australasia) Pty Ltd v Fuchs Lubricants (Australasia) Pty Ltd [2019] FCA 370
EVIDENCE - admissibility of documents produced by a third party in answer to a subpoena - whether representation was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian proceeding - whether authenticity a ground of admissibility
ROBERTSON J - 18 MARCH 2019


Corporations Law
Mansfield v Thousand Angeles Island Pty Ltd, in the matter of Thousand Angeles Island Pty Ltd [2019] FCA 376
CORPORATIONS - application for winding up of company pursuant to s 461(1)(a) of the Corporations Act 2001 (Cth) - shareholder of company had by deed assigned shares to plaintiff - Court previously ordered that company's register of members be corrected to record plaintiff as owner of the shares pursuant to s 175 of the Corporations Act - no copy of the register of members was in evidence and a company search did not indicate a change of ownership of shares - application amended at hearing to include alternative ground of winding up pursuant to s 461(1)(k) - Taylor (trustee), in the matter of Kwok v Goldana Investments Pty Limited (receivers and managers appointed) (No 2) [2015] FCA 947; 236 FCR 298 considered - amended application granted
FARRELL J - 15 March 2019


Corporations Law
Kirman v RWE Robinson & Sons Pty Ltd (in liq), in the matter of RWE Robinson and Sons Pty Ltd (in liq) [2019] FCA 372
CORPORATIONS - insolvency - receivers' application for directions as to distribution of proceeds of realisation - where liquidators also appointed - where s 561 of the Corporations Act 2001 (Cth) applies - where s 561 permits payment to certain priority creditors from property the subject of a circulating security interest - whether payment is to be made by receivers or liquidators - whether receivers justified in making payments - where s 433 of the Corporations Act 2001 (Cth) does not apply CORPORATIONS - whether s 561 excludes claim for equitable salvage lien over property the subject of a circulating security interest
BANKS-SMITH J - 19 MARCH 2019


Migration
AON15 v Minister for Immigration and Border Protection [2019] FCAFC 48
MIGRATION - judicial review of decision to affirm decision of Minister to refuse grant of a protection visa - application of objective element of "well-founded fear" test - relevance of generalised, indiscriminate violence to whether there is a "real chance" that visa applicant will suffer harm upon return to home area - relevance of prior Tribunal decisions relating to similar factual circumstances to determination of Tribunal
BESANKO, MIDDLETON AND MORTIMER JJ - 18 March 2019


Migration
AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47
MIGRATION - judicial review of decision to affirm decision of Minister to refuse grant of a protection visa - application of objective element of "well-founded fear" test - speculation as to future factual matters different from speculation as to whether there is a "real chance" that visa applicant will be harmed upon return to home area
BESANKO, MIDDLETON AND MORTIMER JJ - 18 March 2019


Migration
Singh v Minister for Home Affairs [2019] FCA 379

RARES J - 27 February 2019


Migration
BYH16 v Minister for Immigration and Border Protection [2019] FCA 357
MIGRATION - appeal from the Federal Circuit Court of Australia which dismissed a judicial review application relating to a decision of the Immigration Assessment Authority not to grant a protection visa - whether Authority was required to consider unarticulated claim - test for whether an unarticulated claim must be considered by decision-maker - whether test differs when applied in context of Pt 7AA review - whether test is more stringent than 'fairly arises on the material' - appeal dismissed
LEE J - 28 February 2019


Migration
ASA17 v Minister for Home Affairs [2019] FCA 375

RARES J - 19 February 2019


Migration
Thlork v Minister for Immigration and Border Protection [2019] FCA 333
MIGRATION - appeal from orders of the Federal Circuit Court dismissing application for judicial review - English language test not passed within specified time; application of judicial review could not succeed; no error by primary judge - held: appeal dismissed
BROMWICH J - 14 March 2019


Migration
Jiang v Minister for Home Affairs [2019] FCA 369
MIGRATION - appeal from orders of the Federal Circuit Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal - where "bogus" document given in relation to visa application - where primary judge held that s 359A of the Migration Act 1958 (Cth) did not arise - where primary judge held that delegate's decision to refuse visa had not been vitiated by fraudulent conduct of third parties - whether jurisdictional error - held: no jurisdictional error - appeal dismissed
BROMWICH J - 19 march 2019


Migration
BDB18 v Minister for Home Affairs [2019] FCA 373
MIGRATION - application for leave to appeal - application to show cause dismissed by the Federal Circuit Court of Australia - protection visa - medical practitioner involved in protest against government - Tribunal not satisfied as to claim of risk of serious or significant harm - where proposed grounds have no reasonable prospect of success
BANKS-SMITH J - 19 MARCH 2019


Migration
CRG16 v Minister for Home Affairs [2019] FCA 374
MIGRATION - appeal from the Federal Circuit Court - where the primary judge dismissed the application for judicial review of a decision of the Immigration Assessment Authority - nature of the Pt 7AA regime - consideration of new information - where the Authority made adverse credibility findings - where the Authority made a finding open to it based on the country information
MCKERRACHER J - 19 MARCH 2019


Privilege ; Legal Practitioners
JWR Productions Australia Pty Ltd v Duncan-Watt [2019] FCA 367
PRIVILEGE - legal professional privilege - implied waiver - whether alleged unrestricted communications to a third party are inconsistent with the maintenance of privilege - relevance of fairness in determining whether privilege has been waived
PERRY J - 15 March 2019


Practice and Procedure
Croker, in the matter of Croker [2019] FCA 359
PRACTICE AND PROCEDURE - vexatious litigant - application for leave by person subject to a vexatious proceedings order to commence a new proceeding - applicant required to file an affidavit which identifies all other proceedings the applicant has instituted in any Australian court or tribunal - whether substantial compliance established - Court may receive as evidence any record of evidence given in another proceeding involving the applicant - failure to substantially comply with s 37AR(3) of the Federal Court of Australia Act 1976 (Cth) - application dismissed
LEE J - 18 March 2019


Corporations Law
Australian Securities and Investment Commission v Aviation 3030 Pty Ltd [2019] FCA 377
CORPORATIONS - application by ASIC to wind up solvent companies on the just and equitable ground - s 461(1)(k) of the Corporations Act 2001 (Cth) - where company is solvent - where private proceeding also on foot - where pattern of unlawful and misleading behaviour - application to wind up managed investment scheme pursuant to s 601EE(2) of the Corporations Act - applications granted
O'CALLAGHAN J - 19 March 2019


Practice and Procedure ; Discovery
Coverforce Insurance Broking Pty Ltd v Duthie [2019] FCA 368
PRACTICE AND PROCEDURE - discovery - whether discovery will facilitate just resolution of proceeding quickly, inexpensively and efficiently under r 20.11 of the Federal Court Rules 2011 - where objections to relevance - discovery allowed
GLEESON J - 15 March 2019


Corporations Law
Termite Resources NL (in liq) v Meadows, in the matter of Termite Resources NL (in liq) (No 2) [2019] FCA 354
CORPORATIONS - directors' duties - Defendants were directors and/or officers of a mining company (Termite) operating a mine with a life of about five years - Termite conducted the mining and associated activities through contractors pursuant to contracts for terms closely corresponding to the estimated life of the mine - Defendants caused Termite to adopt and implement a distributions policy by which, subject to the retention of a reserve of $3 million, all the proceeds from the mining were distributed to the joint venturer shareholders - part way through the expected life of the mine, the iron ore price dropped and Termite went into voluntary administration and subsequently into liquidation - claim that several of the Defendants breached their common law duties to act with care, skill, diligence and good faith for the company as a whole - claim that the Defendants breached ss 180 and 181 of the Corporations Act 2001 (Cth) - claim that the reserve of $3 million was inadequate - claim that a reserve of at least $10 million was necessary for Termite to survive even a short term downturn in the iron ore price. CORPORATIONS - claim for damages pursuant to s 1317H of the Corporations Act or at common law for the deficiency in Termite's liquidation - in the alternative, claim that the distributions would not have been made and that Termite would have repaid its creditors and reduced a loan from its parent company - in the further alternative, claim for the aggregate of the distributions paid pursuant to the Distributions Policy. Held: 1.A cash reserve of at least $10 million should have been retained - each of the Defendants, acting as either directors or de facto directors, breached their duties under ss 180 and 181 in respect of the adoption and implementation of the distributions policy and in failing to review and revise it during the period that distributions were made - three of the defendants breached their common law duties. 2.An additional $7 million would have been available in mid-2014 when the administration occurred if a $10 million cash reserve had been retained - damages of $7 million awarded. CORPORATIONS - consideration of claim for damages and review of deficiency in the liquidation - liquidators have admitted proofs of debt - whether the amount for which a debt has been admitted to proof by the liquidators was a cap on the Defendants' liability - assessment of creditors' claims.
WHITE J - 15 March 2019


Corporations Law
Scott, in the matter of ACN 129 328 490 Pty Ltd (in liquidation) (formerly Solar Australia Pty Ltd) [2019] FCA 314
CORPORATIONS - application for reappointment of liquidator - where company deregistered in error and reinstated by ASIC - application for validation of acts done by liquidator and company CORPORATIONS - liquidator's powers - application for appointment of liquidator as receiver and manager of trust assets - where company in liquidation is disqualified from holding office as trustee and holds assets as a bare trustee
YATES J - 14 MARCH 2019


Copyright ; Trade Marks ; Intellectual Property
Hells Angels Motorcycle Corporation (Australia) Pty Limited v Redbubble Limited [2019] FCA 355
COPYRIGHT - consideration of whether copyright continues to subsist in an artistic work described as the "Membership Card image" authored by a United States citizen in the United States of America in 1954 COPYRIGHT - consideration of whether the 1954 work authored by a man by the name of "Sundown" is an anonymous work or a pseudonymous work - consideration of whether the relevant corporation in the United States of America is the owner of the copyright subsisting in the work in suit - consideration of the evidence and statutory provisions going to the question of whether that corporation is the owner of the copyright work in suit having regard to the application of the domestic copyright law of Australia COPYRIGHT - consideration of whether the applicant is an exclusive licensee of the contended grantor of the exclusive licence having regard to the integers of the term "exclusive licensee" in s 10(1) of the Copyright Act 1968 (Cth) COPYRIGHT - consideration of whether a work described as the "Fuki current Death Head design" is a derivative work and whether copyright subsists in it independently of the "Membership Card image" COPYRIGHT - consideration of whether the first respondent has exercised any one of the relevant exclusive rights of the copyright owner on the assumption that ownership of the copyright as contended is made out TRADE MARKS - consideration of whether the applicant is an authorised user of the trade marks in suit having regard to the integers of s 8 of the Trade Marks Act 1995 (Cth) TRADE MARKS - consideration of whether the first respondent has infringed the registered trade marks in suit having regard to the elements of s 120(1) and s 120(2) of the Trade Marks Act - consideration of the question of damages and exemplary damages TRADE MARKS - consideration of a cross claim by the first respondent for an order directing the Registrar of Trade Marks to remove the registered trade marks of Hells Angels Motorcycle Corporation of the United States from the Register INTELLECTUAL PROPERTY - consideration of whether the applicant has standing to bring the proceedings
GREENWOOD J - 15 March 2019


Practice and Procedure
Wavetrain Systems AS v Next Generation Rail Technologies SL [2019] FCA 350
PRACTICE AND PROCEDURE -where interlocutory orders made by the Court - where affidavit evidence filed on behalf of the applicant was later identified by applicant's solicitors as untruthful -whether the untruthful affidavit evidence should be removed from the Court file - whether non-publication orders should be continued - whether the papers should be referred to the Commonwealth Attorney-General to investigate and determine whether criminal proceedings should be brought in respect of the giving of false testimony
ROBERTSON J - 15 March 2019


Practice and Procedure ; Migration
Ninsiri v Minister for Home Affairs [2019] FCA 363
PRACTICE AND PROCEDURE - where applicant seeks judicial review after visa cancellation under s 501(3A) of the Migration Act 1958 (Cth) - objection to competency - decision made by the Department of Home Affairs, not the Minister - Federal Court of Australia lacks jurisdiction - application dismissed
GLEESON J - 18 March 2019


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