Browse Federal Court Judgments

Practice and Procedure ; Human Rights
EIY20 v State of Western Australia [2022] FCA 1410
PRACTICE AND PROCEDURE - application to strike out pleadings pursuant to r 16.21(1) of the Federal Court Rules 2011 (Cth) - matter related to EIX20 v State of Western Australia [2022] FCA 1357 - applicable principles - applicant detained in Banksia Hill Detention Centre - allegations against the respondent include direct and indirect discrimination under the Disability Discrimination Act 1992 (Cth), negligence, unlawful assault and battery and unlawful imprisonment - whether claims are properly articulated - requirement that material facts be stated - particular paragraphs struck out - leave granted to re-plead
BANKS-SMITH J - 25 November 2022

Consumer Law
Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2022] FCA 1399
CONSUMER LAW - misleading or deceptive conduct - internet broadband - where the respondent provided internet broadband plans using the NBN to residential customers - where the respondent represented that it would check and confirm a customer's line's maximum attainable speed (MAS) within a reasonable time - where the respondent represented that it would inform a customer of their line's MAS within a reasonable time - where the respondent represented that it would provide a customer whose line was incapable of supporting the underlying NBN Speed Tier with alternative options within a reasonable time - where the respondent represented to certain customers that their TPG plans were able to be supported by their NBN lines - where the respondent admitted that it contravened ss 18 and 29 of the Australian Consumer Law - where the parties jointly proposed declarations and pecuniary penalties
MOSHINSKY J - 11 November 2022

Consumer Law
Australian Competition and Consumer Commission v Telstra Corporation Limited [2022] FCA 1398
CONSUMER LAW - misleading or deceptive conduct - internet broadband - where the respondent provided internet broadband plans using the NBN to residential customers - where the respondent represented that it would test the maximum attainable speed (MAS) of each customer's NBN line within a reasonable period following 21 days after connection - where the respondent represented that it would notify and provide alternative options to a customer whose line had a MAS that was incapable of supporting the underlying NBN Speed Tier - where the respondent represented to certain customers that their lines were capable of supporting the underlying NBN Speed Tier of their Telstra plan - where the respondent admitted that it contravened ss 18 and 29 of the Australian Consumer Law - where the parties jointly proposed declarations and pecuniary penalties
MOSHINSKY J - 11 November 2022

Consumer Law
Australian Competition and Consumer Commission v Optus Internet Pty Limited [2022] FCA 1397
CONSUMER LAW - misleading or deceptive conduct - internet broadband - where the respondent provided internet broadband plans using the NBN to residential customers - where the respondent represented that it would check and confirm the maximum attainable speed of each customer's NBN line - where the respondent represented that it would notify customers if their plan could not be supported by their NBN line and provide them with alternative options if their plan could not be supported by their NBN line - where the respondent represented to certain customers that their plans were able to be supported by their NBN lines - where the respondent admitted that it contravened ss 18 and 29 of the Australian Consumer Law - where the parties jointly proposed declarations and pecuniary penalties
MOSHINSKY J - 11 November 2022

Practice and Procedure ; Industrial Law
Hot Wok Food Makers Pty Ltd v United Workers Union [2022] FCA 1417
PRACTICE AND PROCEDURE - interlocutory injunctions - where applicant seeks to restrain proceedings in the Fair Work Commission - where Full Bench of the Fair Work Commission issued attendance notices as a result of "concerns" identified by it during hearing of an appeal - where applicant alleges Full Bench had misconceived its appellate jurisdiction and conduct itself in a manner which gave rise to a reasonable apprehension of bias - where no serious question to be tried in relation whether a reasonable apprehension of bias exists - where prima facie Full Bench has power under s 509 of the Fair Work Act 2009 (Cth) to proceed with issuing attendance notices - where balance of convenience favours allowing the Full Bench to proceed to determine balance of appeal - injunction refused INDUSTRIAL LAW - injunction to restrain proceedings in the Fair Work Commission - where Full Bench of the Fair Work Commission issued attendance notices as a result of "concerns" identified by it during hearing of an appeal - where applicant alleges Full Bench had misconceived its appellate jurisdiction and conducted itself in a manner which gave rise to a reasonable apprehension of bias - where prima facie there was no reasonable apprehension of bias and Full Bench has power under s 509 of the Fair Work Act 2009 (Cth) to proceed with issuing attendance notices - injunction refused
LOGAN J - 15 November 2022

Copyright
Roadshow Films Pty Ltd v Telstra Corporation Limited [2022] FCA 1413
Copyright - application for "site blocking" orders under s 115A of the Copyright Act 1968 (Cth) in respect of "cyberlocker" known as Mixdrop - whether online location infringes or facilitates the infringement of copyright in applicants' and other copyright owners' films - whether online location has primary purpose or primary effect of infringing or facilitating copyright infringement - consideration of discretionary matters relevant to grant of relief
NICHOLAS J - 25 November 2022

Migration
Va'a v Minister for Immigration, Citizenship, Multicultural Affairs and Migration Services [2022] FCA 1412
MIGRATION - application for judicial review of decision of the Administrative Appeals Tribunal - Tribunal affirmed decision of Minister's delegate not to revoke a mandatory cancellation of a special category (subclass 444) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) - no illogicality or irrationality in the Tribunal's reasons - no jurisdictional error - application dismissed
MCEVOY J - 25 November 2022

Migration
Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1416
MIGRATION - Held: appeal dismissed
RARES J - 11 November 2022

Migration
FEO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1415
MIGRATION - Held: appeal dismissed
RARES J - 11 November 2022

Corporations Law
ThinkSmart Limited, in the matter of ThinkSmart Limited (No 2) [2022] FCA 1414
CORPORATIONS - application to approve scheme of arrangement pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth) - transfer of shares of company to takeover vehicle, paid for by sale of company's share assets on market - consideration of procedural matters - consideration of exercise of discretion - scheme approved - orders made
JACKSON J - 22 November 2022

Corporations Law
3Q Holdings Limited, in the matter of 3Q Holdings Limited (No 2) [2022] FCA 1359
CORPORATIONS - scheme of arrangement - second court hearing - where approval of scheme sought pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth) - where communications sent to shareholders without Court approval - where there was low shareholder turnout at one of the two scheme meetings - whether scheme involved the issue of debentures for the purposes of the Act - whether scheme ought be approved - Held: orders made.
CHEESEMAN J - 9 November 2022

Taxation
Philip Morris Ltd v Comptroller-General of Customs [2022] FCAFC 185
TAXATION - where applicant made applications for drawbacks pursuant to the Customs Act 1901 (Cth) and Customs (International Obligations) Regulation 2015 (Cth) - whether applicant gave notice in writing of intention to claim drawbacks as required by items 7(a) of s 37 of the Regulation - where applicant had made export declaration notices - whether notice of intention to claim drawbacks could be inferred from export declaration notices and surrounding circumstances - applicant did not comply with item 7(a) of s 37, substantially or at all - whether respondent had discretion to pay drawback notwithstanding non-compliance with items 7(a) of s 37 - no discretion to pay drawbacks - application dismissed
LOGAN, THAWLEY AND HESPE JJ - 24 November 2022

Practice and Procedure ; Industrial Law
Bellou v Victoria University (No 5) [2022] FCA 1408
PRACTICE AND PROCEDURE - interlocutory application to vacate pending trial - where applicant relies on medical incapacity - whether medical evidence sufficient to demonstrate incapacity to prosecute proceeding - where multiple trial dates previously vacated - orders made
SNADEN J - 24 November 2022

Practice and Procedure ; Corporations Law
Sanda v PTTEP Australasia (Ashmore Cartier) Pty Limited (Opt Out Obligations) [2022] FCA 1409
PRACTICE AND PROCEDURE - representative proceedings under Pt IVA of Federal Court of Australia Act 1976 (Cth) ('the Act') - whether the Court has power under s 33ZF of the Act to dispense with requirement to set opt out date and send opt out notice - where trial has occurred and judgment handed down but no opt out date has been set
PERRAM J - 21 November 2022

Corporations Law
Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd (No 8) [2022] FCA 1404
CORPORATIONS - fiduciary relationship - contractual relationship - South Korean manufacturer and supplier of audio-visual units - supply to Australian entity - on-supply by Australian entity to original equipment vehicle manufacturers (OEMs) - employees of Australian entity assisting South Korean manufacturer to set up Australian rival to supply OEMs - diversion of business opportunities - misappropriation of business providing in-vehicle electronic products - audio-visual units - telematic devices and telemetry services - breach of contract - exclusivity in distribution arrangements - breach of fiduciary duties - misuse of confidential information - infringement of copyright - former employees' fiduciary and contractual obligations - breaches of ss 182 and 183 of Corporations Act 2001 (Cth) - accessorial liability - knowing involvement in breach of statutory duties - claims under second limb of Barnes v Addy - dishonest conduct by former employees - participation of other entities - constructive knowledge - secret commissions
BEACH J - 24 November 2022

Practice and Procedure
Kaplan v State of Victoria (No 7) [2022] FCA 1405
PRACTICE AND PROCEDURE - application by respondents to adjourn trial - where senior counsel for the respondents has contracted COVID-19 and is unable to participate in trial - application refused PRACTICE AND PROCEDURE - application by respondents to call witness by remote access technology - application allowed
MORTIMER J - 22 November 2022

Industrial Law ; Practice and Procedure
Australian Nursing and Midwifery Federation v Kitaya Holdings Pty Ltd [2022] FCA 1394
INDUSTRIAL LAW - alleged contravention or proposed contravention of s 50 of the Fair Work Act 2009 (Cth) (Fair Work Act) - whether interim injunction pursuant to ss 545(1) and (2)(a) of the Fair Work Act and s 23 of the Federal Court of Australia Act 1976 (Cth) should issue PRACTICE AND PROCEDURE - application for interim injunction - whether prima facie case that respondent has contravened or proposes to contravene s 50 of the Fair Work Act - whether balance of convenience favours the grant of injunctive relief
HESPE J - 24 November 2022

Practice and Procedure ; Corporations Law
Four Air Leitchville Pty Ltd v Hurlad Pty Ltd [2022] FCA 1372
PRACTICE AND PROCEDURE - application for further security for costs - where costs incurred exceed those anticipated when security ordered by consent - whether conduct of the third and fourth respondents tends against the exercise of discretion to award further security - "broad brush" assessment - orders for security for costs made
LEE J - 10 November 2022

Migration
JFJF v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1401
MIGRATION - application for judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent to refuse to grant the applicant a Protection visa - where the applicant has been convicted by final judgment of a particularly serious crime - where Tribunal found that the applicant is a danger to the Australian community - where the Tribunal gave a psychologist's report limited weight - whether it was unreasonable or irrational for the Tribunal to discount the psychologist's evidence - application dismissed
MARKOVIC J - 24 November 2022

Practice and Procedure
Ogawa v President of the Australian Human Rights Commission [2022] FCA 1396
PRACTICE AND PROCEDURE - application for leave to appeal from an order dismissing an application for an interim suppression order pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth) - whether the decision to be appealed is attended with sufficient doubt to warrant its reconsideration on appeal - whether substantial injustice would result if leave were refused - application dismissed
MARKOVIC J - 24 November 2022

Practice and Procedure ; Corporations Law
SMBC Leasing and Finance, Inc v Flexirent Capital Pty Ltd [2022] FCA 1393
PRACTICE AND PROCEDURE - application for preliminary discovery - r 7.23 of the Federal Court Rules 2011 (Cth) - where two proceedings already commenced - whether appropriate to consolidate proceedings
LEE J - 31 October 2022

Migration
CBR19 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1392
MIGRATION - appeal from Federal Circuit Court orders dismissing application for judicial review of Immigration Assessment Authority decision affirming refusal of appellant's Temporary Protection Visa application - whether primary judge erred in not finding that the Immigration Assessment Authority committed jurisdictional error by failing to consider the appellant's claim to fear harm in Pakistan as a member of the Shi'a Hazara community - no error established - appeal dismissed with costs
THAWLEY J - 24 November 2022

Practice and Procedure ; Industrial Law
Woodside Energy Limited v Australian Workers' Union [2022] FCA 1391
PRACTICE AND PROCEDURE - application for interlocutory injunction to restrain Fair Work Commission from taking any further steps in an application for a majority support determination pending hearing and determination of application for judicial review under s 39B of Judiciary Act 1903 (Cth) - where application is in the nature of a stay of proceedings, what is the appropriate test - whether applicant has a strong case -- whether exceptional circumstances have been shown
KATZMANN J - 23 November 2022

Practice and Procedure ; Native Title
Booth on behalf the Gunaikurnai People Claim Group v State of Victoria [2022] FCA 1395
PRACTICE AND PROCEDURE - application for variation of suppression orders - application for release from Harman undertaking - where materials and information produced in Court-ordered experts' conferences and joint experts' reports arising from the conferences in a now discontinued proceeding are subject to suppression and non-publication orders - where the suppressed material is likely to be relevant in a subsequent proceeding which involves many of the same parties as the proceeding in which the suppression orders were made- where some of the parties, their legal representatives and expert witnesses in the subsequent proceeding are privy to the suppressed materials and others are not - consideration of procedural fairness and the interests of justice - applications allowed.
MURPHY J - 23 NOVEMBER 2022

Practice and Procedure ; Taxation
Deputy Commissioner of Taxation v Widdup [2022] FCA 1403
PRACTICE AND PROCEDURE - respondents' interlocutory application for stay of operation of notices issued under s 353-10 of sch 1 of the Taxation Administration Act 1953 (Cth) - relevant principles regarding validity of notices considered - where notices issued in good faith and not for an improper purpose - where operation of notices not overly impractical or unreasonable - notices valid and within scope of Commissioner's power - whether application urgent - where balance of convenience favours Commissioner - application dismissed
WIGNEY J - 16 November 2022

Taxation
Hedges v Commissioner of Taxation [2022] FCA 1389
INCOME TAX - capital gains tax - appeal from decision of the Administrative Appeals Tribunal - where Tribunal affirmed decision of the Commissioner of Taxation to disallow the taxpayer's objection to an assessment of discounted capital gain from disposal of goodwill in a partnership - where taxpayer is a retired partner of a law firm - where terms of partnership deed provided for the offsetting of moneys payable to and due from the retiring partner upon retirement - whether the relevant capital gain crystallised before or after amounts offset - Held: appeal dismissed with costs.
CHEESEMAN J - 23 November 2022

Migration
Kandel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1385
MIGRATION - Administrative Appeals Tribunal refused to grant appellant a student visa on basis not a genuine temporary entrant - appeal from dismissal of application for judicial review of Tribunal's decision by Federal Circuit Court - whether Tribunal misinterpreted and misapplied cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) - whether criteria met provided applicant enrolled in a registered course and absent finding of intention to apply for a permanent visa or fraud
SARAH C DERRINGTON J - 23 November 2022

Migration
MZZXN v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1386
MIGRATION - application for extension of time and leave to appeal - appeal from decision of Federal Circuit Court of Australia not to set aside order of Registrar dismissing proceedings - merits of underlying judicial review application ultimately determinative - proposed grounds of appeal of no merit - certain submissions in respect of alleged error outside scope of proposed grounds of appeal - application dismissed
MIDDLETON J - 23 November 2022

Administrative Law
Jaworski v Australian Information Commissioner [2022] FCA 1400
ADMINISTRATIVE LAW - consideration of an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) concerning a decision of the delegate of the Commissioner in exercising a statutory discretion to cease further investigation of a complaint made by the applicant under the provisions of the Privacy Act 1988 (Cth)
ROFE J - 23 November 2022

Consumer Law ; Evidence
Abbott v Zoetis Australia Pty Ltd [2022] FCA 1390
CONSUMER LAW - whether manufacturer engaged in misleading or deceptive conduct in contravention of s 18 of Australian Consumer Law in promotion of equine Hendra virus vaccine - whether manufacturer's publications conveyed representations as to the necessity for, or side effects of, vaccination - whether representor had reasonable grounds for making alleged representations as to future matters in compliance with s 4(1) of ACL EVIDENCE - proof on balance of probabilities under s 140(2) of Evidence Act 1995 (Cth) of causation of adverse reaction from administration of vaccine - whether sufficient for applicant to prove clinical sign is side effect caused by vaccine if its contemporaneous presentation is biologically plausible - proof of causation as matter of fact - degree of satisfaction on balance of probabilities CONSUMER LAW - whether manufacturer of equine vaccine contravened consumer guarantee of acceptable quality under s 54(1) and (2) of Australian Consumer Law - whether vaccine was of acceptable quality - where vaccine did not cause serious side effects - whether vaccine supplied to consumers - where manufacturer supplied to veterinarians for resupply to horse owner - held: application dismissed
RARES J - 23 November 2022

Consumer Law
Australian Competition and Consumer Commission v NQCranes Pty Ltd [2022] FCA 1383
COMPETITION - proceeding for civil contraventions of cartel provisions in Div 1 in Pt IV of the Competition and Consumer Act 2010 (Cth) - whether appropriate for court to make declarations of contraventions, impose civil penalties and order respondent to implement a compliance plan - where conduct serious - where mitigating factors present, including that conduct was isolated, that senior management did not know that conduct was illegal and respondent has not previously contravened the Act - where pecuniary penalty has sufficient sting to achieve deterrence - where desirable to make agreed penalty when court satisfied that agreed penalty is an appropriate remedy
ABRAHAM J - 23 November 2022

Native Title ; Practice and Procedure
Tucker v State of Western Australia [2022] FCA 1379
NATIVE TITLE - compensation application - application for strike out or summary dismissal - applicant unable to demonstrate authorisation for purposes of s 61 of the Native Title Act 1993 (Cth) - no compensable acts identified - proceeding summarily dismissed PRACTICE AND PROCEDURE - application for document to be removed from Court file - whether compensation application should have been rejected for filing - summary dismissal more appropriate process
MORTIMER J - 22 November 2022

Native Title
Lockyer for and on behalf of the Robe River Kuruma People v Citic Pacific Mining Management Pty Ltd [2022] FCA 1381
NATIVE TITLE - application to set aside originating application on the basis that the Court lacks jurisdiction over the controversy or alternatively to transfer originating application to Supreme Court of Western Australia - where originating application seeks compensation under the provisions of a deed - where deed records the consent of the applicants to the respondents undertaking acts on land the subject of the deed and releases the respondents from any claim arising under the Native Title Act 1993 (Cth) - whether controversy forms a matter arising under a law made by Parliament - whether jurisdiction is invoked by reason of applicant being a corporation owing its legal capacity to federal legislation - whether in the interests of justice the matter should be transferred to Supreme Court of Western Australia - application dismissed
COLVIN J - 22 November 2022

Corporations Law
Concept Commercial Interiors Pty Ltd v Baxter [2022] FCA 1388
CORPORATIONS - ex parte application for freezing order over assets of director of a company in liquidation - where there is a prima facie case made out for insolvent trading under s 588M of the Corporations Act 2001 (Cth) (Act) - contravention of s 588G of the Act - where there is a risk of the dissipation of assets - freezing order granted
ANDERSON J - 11 NOVEMBER 2022

Appeal and New Trial ; Migration
AWO21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1387
APPEAL - appeal from a decision of the Federal Circuit Court dismissing the appellant's application for judicial review - appellant sought judicial review of a decision of the Administrative Appeals Tribunal affirming the decision of the first respondent not to grant a protection visa - whereas the appellant contends he was not afforded procedural fairness and failure of the primary Judge to deal with all submissions - appellant was afforded procedural fairness- primary Judge addressed all the appellant's oral submissions - appeal dismissed
COLLIER J - 22 NOVEMBER 2022

Migration
Devanesan v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1366
MIGRATION - application for extension of time and leave to appeal from interlocutory decision in Federal Circuit Court of Australia - primary judge dismissed application to reinstate applicant's judicial review application - applicant provides no evidence or sufficient explanation for the delay in bringing application - applicant fails to demonstrate sufficiently any error of the primary judge to warrant the grant of leave to appeal -proposed grounds of appeal lack sufficient merit to warrant an order extending time for the making of leave application or grant of leave to appeal - application dismissed.
MCEVOY J - 15 NOVEMBER 2022

Corporations Law
AEI Insurance Group Pty Ltd v Martin [2022] FCA 1384
CORPORATIONS - application for interlocutory injunction - employment contract - restraint, termination and confidentiality clauses - breach of restraint - where clients of the plaintiff were provided with the defendant's phone number and subsequently became clients of the defendant's new employer - prima facie case established - where damages inadequate compensation for continuing breaches and loss of clientele - balance of convenience favours granting of injunction - injunction granted for 12 months from date of termination of defendant's employment or until further order
WIGNEY J - 9 November 2022

Migration
CWRG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1382
MIGRATION - application for judicial review of decision by Administrative Appeals Tribunal to affirm delegate's decision to refuse application for a resident return visa under s 501(1) of the Migration Act 1958 (Cth) - where applicant is the visa applicant's mother - where applicant alleges that Tribunal's decision was unreasonable 'from the cumulative effect of numerous flaws' - where Tribunal required to apply Direction 90 - where applicant alleges that the Tribunal acted unreasonably in its reasoning, application of the Direction and fact finding - whether the whole of the Tribunal's reasoning is so affected by unreasonableness as to lead to jurisdictional error - consideration of the ground of unreasonableness - where Tribunal assigned applicant a pseudonym - application dismissed - orders made requiring further submissions regarding any basis for a pseudonym under s 37AF of the Federal Court of Australia Act 1976 (Cth)
COLVIN J - 21 November 2022

Native Title
Gilla on behalf of the Yugunga-Nya People v State of Western Australia (No 4) [2022] FCA 1377
NATIVE TITLE - practice and procedure - mediation deferred for sorry business - where mediation otherwise re-scheduled to occur after closing submissions - adjournment of hearing of closing submissions pending mediation opposed - matters taken into account - orders made vacating balance of hearing dates pending outcome of mediation
BANKS-SMITH J - 11 November 2022