Browse Federal Court Judgments

Administrative Law
Pegasus Supply Solutions Pty Ltd v Collector of Customs [2024] FCA 450
ADMINISTRATIVE LAW - appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal remitting a decision concerning the amount payable under a demand issued under s 35A of the Customs Act 1901 (Cth) after a failure to satisfactorily account to the Collector of Customs under s 37 of the Customs Act - proper construction of ss 35A and 37 of the Customs Act - s 37 provides the recipient of a request to account with two methods of avoiding a debt and exposure to penalties, one of which is to have the Collector sight the goods the subject of the request to account - Tribunal (standing in the shoes of the Collector) declined a request by the appellant to sight goods - denial of procedural fairness and failure to comply with s 39 of the AAT Act - appeal allowed - remittal to the Tribunal
GOODMAN J - 1 May 2024

Practice and Procedure ; Administrative Law
Saffari v Amazon Commercial Services Pty Ltd [2024] FCA 436
PRACTICE AND PROCEDURE - application for disqualification on the basis of actual and apprehended bias - no evidence adduced capable of establishing actual bias - no matters raised capable of providing a logical connection to an apprehension that the proceeding will be determined otherwise than on its merits - application dismissed PRACTICE AND PROCEDURE - application for orders recognising service - service under s 601CX of the Corporations Act 2001 (Cth) upon a registered body - absence of proof as to registered office and as to appointment of local agent - service on foreign corporations - proof of service not established - application dismissed PRACTICE AND PROCEDURE - application for order under r 20.31 of the Federal Court Rules 2011 (Cth) - no identification of a document mentioned in a pleading or affidavit - a document mentioned in an exhibit is not a document mentioned in an affidavit - procedural fairness rationale of r 20.31 - application dismissed PRACTICE AND PROCEDURE - application to stay the proceeding until costs of an earlier proceeding have been paid - no final determination of the merits - no vexation or abuse of process - application dismissed PRACTICE AND PROCEDURE - security for costs - natural person - substantial risk of non-payment of adverse costs order - no claim of stultification if order made - application granted PRACTICE AND PROCEDURE - application to strike out statement of claim - self-represented litigant - case propounded in statement of claim sufficiently clear - further clarification to be provided by way of particulars - application dismissed
GOODMAN J - 1 May 2024

Migration
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 435
MIGRATION - aged dependent relative visa - appeal from decision of the (then) Federal Circuit Court of Australia on judicial review of a decision of the Administrative Appeals Tribunal - whether the Tribunal failed to consider evidence advanced by the appellant - whether such a failure was material - appeal allowed
GOODMAN J - 1 May2024

Corporations Law
Woodhouse, in the matter of Panoramic Resources Limited [2024] FCA 449
CORPORATIONS - application under s 21 of the Federal Court of Australia Act 1976 (Cth), s 418A of the Corporations Act 2001 (Cth) and s 90-15 of Schedule 2 - Insolvency Practice Schedule (Corporations) of the Corporations Act for declaratory relief - where administrators appointed under s 436A of the Corporations Act - where receivers and managers appointed to secured property of company - whether funds in administrators' account established under s 65-5 of the Insolvency Practice Schedule are secured property under receivers and managers' control - proper construction of security agreement - meaning of secured property as defined - consideration of words and phrases 'relating to', 'in respect of' and 'arising from'
FEUTRILL J - 1 May 2024

Patents
SARB Management Group Pty Ltd trading as Database Consultants Australia v Vehicle Monitoring Systems Pty Limited (No 2) [2024] FCAFC 53
PATENTS - form of orders following hearing of appeal -whether injunctions granted by trial judge should be set aside - utility of injunctions - patents lapsed on day of hearing of appeal - application for extension of time filed to pay renewal fees - impact on final orders - whether costs should be awarded against litigation funder - orders in relation to stay and case management
BURLEY, JACKSON AND DOWNES JJ - 1 May 2024

Migration
DGYT v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 438
MIGRATION - application under s 476A of the Migration Act 1958 (Cth) to quash a decision of the Administrative Appeals Tribunal - whether there were serious reasons for considering the applicant had committed serious non-political crimes under ss 5H(2)(b) and 36(2C)(a)(ii) - whether the Tribunal erred in construing or applying the "serious reasons for considering" threshold or alternatively such a finding was not open on the materials before the Tribunal - whether the Tribunal erred by failing to identify the alleged crime and consider the elements of the alleged crime - whether the Tribunal erred in exercise of its jurisdiction or failed to take into account a relevant consideration namely the applicant's employment claims - whether the Tribunal erred when construing the "serious reasons for considering" the generally serious consequences of refoulement - whether the Tribunal failed to perform its function by relying on findings made by the delegate - application allowed
RAPER J - 30 April 2024

Industrial Law
Construction, Forestry and Maritime Employees Union v Richard Crookes Constructions Pty Ltd [2024] FCA 437
INDUSTRIAL LAW - the respondent was the principal contractor on a construction site - the applicant's employee attended the site to investigate suspected work health and safety contraventions - where the employee held a permit to enter sites under s 117 of the Work Health and Safety Act 2011 (NSW) and ss 501 of the Fair Work Act 2009 (Cth) - the respondent unduly delayed entry - the applicant alleged one contravention of s 501 of the Fair Work Act 2009 (Cth) - the contravention was admitted by the respondent INDUSTRIAL LAW - consideration of the principles for fixing appropriate pecuniary penalties - consideration of whether to endorse the agreed penalty - consideration of the absence of evidence regarding remediation - declaratory relief granted
RAPER J - 30 April 2024

Practice and Procedure ; Intellectual Property
Aristocrat Technologies Australia Pty Ltd v Light & Wonder, Inc. [2024] FCA 439
PRACTICE AND PROCEDURE - preliminary discovery - whether order for preliminary discovery should be made - whether documents sought by prospective applicant reasonably required to enable it to decide whether to commence proceeding in the Court against prospective respondents for (inter alia) misuse of confidential information and copyright infringement - significance of proceeding commenced by prospective applicant in United States District Court Held: order for preliminary discovery made
NICHOLAS J - 30 April 2024

Industrial Law
Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd [2024] FCA 443
EMPLOYMENT AND INDUSTRIAL RELATIONS - failure to comply with two protected action ballot order by failure to provide information by the required time - where failure to comply has caused delay in holding one of those ballots for protected industrial action - where respondent has admitted contravention - where parties have proposed agreed orders as to penalties - principles as to acceptance of proposed agreed penalties - agreed declarations made and agreed penalties imposed - no order made as to costs
BROMWICH J - 30 April 2024

Migration
AUP21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 442
MIGRATION - application for judicial review of a non-revocation decision of the Administrative Appeal Tribunal - whether the Tribunal misapplied para 8.2 of Direction 99 with respect to family violence - whether the Tribunal misunderstood the evidence regarding family violence - consideration of materiality following LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 - interpretation of para 8.2(2)(b) of Direction 99 - application dismissed
ROFE J - 30 April 2024

NativeTitle
Blucher on behalf of the Gaangalu Nation People v State of Queensland (No 4) [2024] FCA 425
NATIVE TITLE - appropriate orders where native title found not to exist - whether a negative determination should be made - where Court satisfied that native title does not exist in part of the claim area - where possibility of another claim in that area merely speculative - declaration that native title does not exist in relation to part of the claim area - proceeding dismissed
RANGIAH J - 30 April 2024

Costs ; Migration
FJS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 433
COSTS - appeal from orders awarding costs fixed by reference to the scale in Division 1 of Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) - whether "good reason" required to depart from scale amount - where primary judge relied on incomplete version of costs affidavit - principles applicable to discretion to award costs - discretion re-exercised.
BURLEY J - 30 April 2024

Bankruptcy
Kirkalocka Gold SPV Pty Ltd (Receivers and Managers Appointed) v Zenith Pacific (KLK) Pty Ltd, in the matter of Kirkalocka Gold SPV Pty Ltd [2024] FCA 428
INSOLVENCY -- application seeking declaration that the applicant is the legal and beneficial owner of the Zenith Power Plant -- where Notice of cross-claim seeks declaration that the respondent is the legal and beneficial owner of the Zenith Power Plant -- where the parties are parties to a Power Purchase Agreement -- where respondent found to have actual possession of the Zenith Power Plant -- whether the respondent had a "security interest" in the Zenith Power Plant by reason of s 12(1) of the Personal Property Securities Act 2009 (Cth) (PPSA)-- whether there is interest in personal property provided for by a transaction -- whether the interest in personal property secures payment or performance of an obligation -- whether the respondent had a "security interest" by reasons of s 12(3) of the PPSA -- whether, if there is a security interest, it was perfected before the applicant went into administration -- consideration of "apparent possession" -- held: the cross-claim is upheld
BESANKO J - 29 April 2024

Practice and Procedure ; Corporations Law
L'Aqua Property Investments Pty Ltd v PCS Finance Pty Ltd [2024] FCA 440
PRACTICE AND PROCEDURE - application for substitution of party under r 9.09 of the Federal Court Rules 2011 (Cth) - where application was not brought by a "party or person" contemplated in r 9.09(2) - power to make an order for substitution - substitution order made
DERRINGTON J - 16 April 2024

Insurance
Commens t/as Subsonic Music v Certain Lloyd's Underwriters subscribing to Policy No ALTCNX1900332 (Trial Judgment) [2024] FCA 434
INSURANCE - separate questions on liability - where insured's music festival cancelled - whether cancellation was necessary and sole and direct result of cause not otherwise excluded - where insured suggested cancellation was because of bushfires - where no objective inability to commence festival - where real reason for cancellation was onerous and late imposition of conditions by council - insurer not liable
JACKMAN J - 29 April 2024

Costs ; Administrative Law
Save Our Strathbogie Forest Inc v Secretary to the Department of Energy, Environment and Climate Action (No 2) [2024] FCA 430
COSTS - dismissal of proceedings under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) - whether appropriate to depart from usual rule that costs follow the event - where applicant seeks proportional reduction of respondent's costs to account for unsuccessful defences - whether appropriate to make "issues based" costs order - where no reason to reduce respondent's costs - held that costs should follow the event
HORAN J - 29 April 2024

Practice and Procedure ; Administrative Law
Kyle-Sailor v Heinke [2024] FCA 431
PRACTICE AND PROCEDURE - representative proceeding - notice of settlement pursuant to s 33X of the Federal Court of Australia Act 1976 (Cth) - interlocutory application seeking non-publication order in respect of quantum of settlement sum - where parties agree that the quantum of the settlement sum should remain confidential -group members to be informed orally of settlement sum - whether non-publication order is necessary to prevent prejudice to the proper administration of justice and/or to protect the safety of any person - application dismissed
HORAN J - 29 April 2024

Corporations Law
Australian Securities and Investments Commission v Macquarie Bank Limited [2024] FCA 416
CORPORATIONS - provision of financial services - regulatory proceedings - where defendant holds an Australian financial services licence - whether financial services provider ensured that the financial services covered by the licence were provided "efficiently, honestly and fairly" - lack of adequate systems to prevent or detect fraudulent transactions by third parties in respect of client cash management accounts - admitted contravention of s 912A of the Corporations Act 2001 (Cth) - declaration of contravention - agreed penalty - consideration of whether agreed penalty appropriate
WIGNEY J - 19 April 2024

Taxation
Satterley Property Group Pty Ltd v Federal Commissioner of Taxation [2024] FCA 421
TAXATION -- two appeals under s 14ZZ of the Taxation Administration Act 1953 (Cth) -- where applicant lodged two objections to its income tax assessment for the 2020 income year and where the respondent did not allow the objections -- whether pursuant to s 8-1(1) or, in the alternative, s 40-880 of the Income Tax Assessment Act 1997 (Cth) the applicant may deduct Top-Up Payments which it paid to investors -- whether the Top-Up Payments are on capital account or revenue account -- whether the Top-Up Payments formed part of the consideration paid by the applicant for shares -- consideration of the share sale agreement -- whether extrinsic evidence may be considered to resolve alleged ambiguity in a contract -- consideration of the applicant's business model -- whether the Top-Up Payments were made for the sole purpose of preserving goodwill
BESANKO J - 26 April 2024

Practice and Procedure ; Industrial Law
Grow MF Pty Ltd v Parthy (No 2) [2024] FCA 432
PRACTICE AND PROCEDURE - leave to discontinue - leave to discontinue opposed by respondent - leave to issue cross-claim - leave to discontinue granted with costs to be paid to respondent
DOWLING J - 22 April 2024

Defamation ; Damages
Edwards v Nine Network Australia Pty Limited (No 5) [2024] FCA 422
DEFAMATION - where defamatory imputations allegedly conveyed by a television program called "A Current Affair" and accompanying articles about dispute concerning the ownership of a supposedly Instagram famous dog named Oscar - the wondrous life and times of Oscar the cavoodle - where alleged imputations included theft and financial exploitation of Oscar and delay of related court proceedings - whether alleged imputations carried or conveyed by the publications - held that most of the imputations were conveyed DEFAMATION - defence of justification - whether substantially true that the applicant "stole" Oscar - where the applicant obtained possession of the dog by a deception - whether applicant had an honest claim of right - defence not established - defence of contextual truth - contextual imputations not substantially true and any damage caused by them would not have "swamped" the damage caused by other imputations DAMAGES - extent of damages for non-economic loss - whether aggravated damages should be awarded - whether pre-publication conduct can be considered for aggravated damages - where defamatory publications damaged applicant's reputation and caused hurt to feelings and distress to applicant - mitigation or reduction of damages as a result of disreputable conduct on the part of the applicant - applicant awarded compensatory and aggravated damages
WIGNEY J - 26 April 2024

Practice and Procedure
AZO24 v Commonwealth of Australia (No 2) [2024] FCA 426
PRACTICE AND PROCEDURE - where Court has ordered that no document be accepted for filing in this proceeding without leave granted by a Judge - refusal to grant leave to file interlocutory application and accompanying affidavit
KENNETT J - 20 March 2024

Admiralty
Burrows v The Ship 'Merlion' (No 2) [2024] FCA 429
ADMIRALTY PROCEDURE - application for judgment in default of appearance - where defendant entered conditional appearance to challenge jurisdiction - where challenge largely failed - effect of failure on conditional appearance - where defendant also brought application for summary judgment - whether defendant taken to have waived objection to jurisdiction
SARAH C DERRINGTON J - 26 April 2024

Administrative Law
Wiseway Logistics Pty Ltd v Secretary, Department of Home Affairs [2024] FCA 427
ADMINISTRATIVE LAW - application for judicial review of Administrative Appeals Tribunal (Tribunal) decision refusing stay of respondent's decision not to renew applicant's designation as a registered air cargo agent - whether Tribunal was required to give weight to reg 4.43F of the Aviation Transport Security Regulations 2005 (Cth) when considering whether a stay should be granted - whether the Tribunal exceeded its jurisdiction by reasoning that the public interest weighed against a stay ADMINISTRATIVE LAW - where applicant seeks to appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from Tribunal's decision not to grant a stay under s 41 of the AAT Act - whether appeal under s 44 competent
KENNETT J - 26 April 2024

Corporations Law
Frigger v Professional Services of Australia Pty Ltd (No 5) [2024] FCA 420
CORPORATIONS - application to remove a company from the register under s 1322(4)(b) of the Corporations Act 2001 (Cth) - determination of separate questions on agreed and assumed facts - where company registered on 5 June 1998 under Pt 2.2 of the Corporations Law (WA) 1990 - where assumed that memorandum not signed by the subscribers - whether registration void ab initio - whether certificate of registration conclusive evidence that all the requirements of the Corporations Law for the company's registration were complied with and the company was duly registered as a company under that law under s 1389(1) - whether Court has power to remove company from the register under s 1322(4)(b) - whether Court has power under s 1322(4)(b) to deprive a company of its corporate existence retrospectively
FEUTRILL J - 26 April 202

Costs ; Intellectual Property
Cantarella Bros Pty Ltd v Lavazza Australia Pty Ltd (No 4) [2024] FCA 419
COSTS - unsuccessful action for trade mark infringement - whether costs should be assessed on an indemnity basis following the unsuccessful applicant's non-acceptance of a Calderbank offer or because the unsuccessful applicant ought to have recognised from a given date that its case on infringement could not succeed - whether costs should be apportioned depending on the parties' mixed success in respect of the issues raised at trial - where the questions of whether costs should be awarded on a lump sum basis and the quantum of such costs are referred to a Registrar acting as a referee for inquiry and report
YATES J - 26 April 2024

Costs ; Intellectual Property
MSA 4x4 Accessories Pty Ltd v Clearview Towing Mirrors Pty Ltd (No 2) [2024] FCA 417
COSTS - where the respondent was successful in defending patent infringement proceedings - where applicants were successful in defending invalidity case - where respondent advanced aspects of invalidity case on premise that applicants' construction of claims was correct - where respondent was only party to have any success in proceeding - whether global costs order should be made and if so, the amount of any discount to be applied
DOWNES J - 26 April 2024

Migration
Azimitabar v Commonwealth of Australia [2024] FCAFC 52
MIGRATION - appeal from a decision of a single judge of the Federal Court of Australia dismissing an application for damages arising from the alleged unlawful detention of the appellant at the Mantra Bell City Hotel and the Park Hotel (the Hotels) - whether subpara (b)(v) of the definition of "immigration detention" in s 5(1) of the Migration Act 1958 (Cth) (the Act) impliedly confers a power on the Minister to approve "another place" of immigration detention - whether the Hotels were validly approved by the Minister as "another place" of immigration detention - whether the construction of subpara (b)(v) is limited by s 273 of the Act which contains an express power to establish detention centres - where appellant sought leave to rely on an argument not raised before the primary judge - leave refused as new ground lacks sufficient prospects of success to warrant leave being granted - whether lawfulness of immigration detention is conditional upon proper authorisation of the expenditure on the place of detention - where authorisation of the Hotels as "another place" of immigration detention did not depend on lawfulness of associated expenditure - appeal dismissed
RANGIAH, ANDERSON AND BUTTON JJ - 26 April 2024

Practice and Procedure ; Administrative Law
Munkara v Santos NA Barossa Pty Ltd (No 4) [2024] FCA 414
PRACTICE AND PROCEDURE - respondent in action wholly successful in defending applicants' claims - respondent party requesting and serving subpoenas following judgment on the primary claims - subpoenas requested for the purpose of assisting the respondent to decide whether to make an application for costs against non-parties including four addressees - addressees' application to set aside subpoenas in part - whether a subpoena may issue for the purpose disclosed by the respondent - where the addressees alleged there is no reasonable basis to expect that the documents described could support an application for costs against them - consideration of the breadth of the Court's power to issue a subpoena - consideration of evidence disclosing a reasonable basis to expect that the addressees are in possession of documents that may assist the respondent to decide whether to bring a costs application - prior authorities not determinative of the questions arising on the applications
CHARLESWORTH J - 24 April 2024

Representative Proceedings
Alford v AMP Superannuation Limited [2024] FCA 332
REPRESENTATIVE PROCEEDINGS - Application for approval to discontinue a representative proceeding - principles relevant to approval of discontinuance - whether not unfair, unreasonable or adverse to the interests of group members as a whole - discontinuance approved
ANDERSON J - 4 April 2024