Browse Federal Court Judgments

Practice and Procedure ; Administrative Law
McGinn v Australian Information Commissioner (No 2) [2024] FCA 1196
PRACTICE AND PROCEDURE - application for stay of proceeding pending outcome of an intended appeal PRACTICE AND PROCEDURE - application for disqualification for actual bias
YATES J - 14 October 2024

Practice and Procedure ; Administrative Law
Rainbow, in the matter of Rainbow [2024] FCA 1197
PRACTICE AND PROCEDURE - application for interim injunction restraining operation of administrative decision before start of proceeding - suspension of operation of decision under s 15(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) - serious question to be tried - balance of convenience
FEUTRILL J - 24 September 2024

Costs ; Administrative Law
Wilson v State of Victoria (Costs) [2024] FCA 1190
COSTS - whether costs should follow the event - where claim summarily dismissed - whether successful parties engaged in disentitling conduct - where unsuccessful parties experience financial difficulties
HESPE J - 15 October 2024

Conflict of Laws
Credit Suisse Virtuoso SICAV-SIF v Insurance Australia Limited [2024] FCA 1193
CONFLICT OF LAWS - anti-anti-suit-injunction - where there are ten proceedings (the Greensill Proceedings) before this Court in which the applicants seek judgment against Insurance Australia Limited in respect of amounts alleged to be payable under insurance policies - where Marsh Limited (an English company) and Marsh Pty Ltd (an Australian company) applied on an ex parte basis to the High Court of Justice of England and Wales for an anti-suit injunction to restrain GBAG and the insolvency administrator of GBAG from bringing a claim against them in the Greensill Proceedings - where the English Court granted on an interim basis the anti-suit relief sought by Marsh Limited but not Marsh Pty Ltd - where GBAG and the insolvency administrator seek interim anti-anti-suit relief to restrain Marsh Limited and Marsh Pty Ltd from taking further steps in the English proceeding on the basis that, in obtaining the interim order from the English Court, they used documents discovered in the Greensill Proceedings that had not gone into evidence, and thereby breached the implied undertaking - applicable principles relating to anti-anti-suit injunctions - whether the orders sought would be contrary to principles of comity - held: anti-anti-suit relief granted in respect of Marsh Pty Ltd but not Marsh Limited
MOSHINSKY J - 11 October 2024

Migration
Mariappan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1183
MIGRATION -- application for declaration that applicant holds an "absorbed person visa" within the meaning of s 34 of the Migration Act 1958 (Cth) (Migration Act) -- where sole issue was whether applicant had "ceased to be an immigrant" by 2 April 1984 within the meaning of s 34(2)(b) of the Migration Act -- where applicant was a "prohibited immigrant" within the meaning of the Migration Act in force at 2 April 1984 -- where court bound by authority in R v Forbes; Ex parte Kwok Kwan Lee (1971) 124 CLR 168, which held that a "prohibited immigrant" cannot be absorbed into the community or cease to be an immigrant -- where Minister accepted certain facts relied upon by the applicant to support contention that he had, in fact, been absorbed into the community -- application dismissed
O'CALLAGHAN J - 15 October 2024

Practice and Procedure ; Administrative Law
AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia (No 3) [2024] FCA 1191
PRACTICE AND PROCEDURE - interlocutory application that judge not preside on any matters in the proceeding pending determination of the appeal for the proper administration of justice - reasoning that judge made decision against her not sufficient - order 3 of interlocutory application dismissed
NEEDHAM J - 11 October 2024

Practice and Procedure ; Industrial Law
Farrell v Super Retail Group Limited (Cross-claim) [2024] FCA 1189
PRACTICE AND PROCEDURE - cross-claim - where cross-claimants seek to enjoin the solicitors for the first and second cross-respondent from representing them in the proceeding - where cross-claimants assert the solicitors have a financial and reputational interest in the proceeding - where solicitors issued media statement concerning allegations of bullying, victimisation and adverse treatment at Super Retail Group - where media statement was not an emergency disclosure within the meaning of the Corporations Act 2001 (Cth) - alleged failure of solicitors to give advice about exposure to defamation proceedings - where media statement relied on by SRG as repudiatory conduct - relevant principles - where relief sought of an exceptional nature - weight of being deprived of choice of legal representation - where proper administration of justice does not necessitate an order - cross-claim dismissed
LEE J - 8 October 2024

Practice and Procedure ; Administrative Law
McGinn v Australian Information Commissioner [2024] FCA 1185
PRACTICE AND PROCEDURE - application for order suppressing applicant's identity - where applicant seeks to be identified by a pseudonym PRACTICE AND PROCEDURE - application for unilateral maximum costs order in respect of party and party costs recoverable against applicant PRACTICE AND PROCEDURE - application for change of respondent's name
YATES J - 14 October 2024

Administrative Law
Gaynor v Minister for Communications [2024] FCA 1186
ADMINISTRATIVE LAW - application for judicial review of a decision of the Classifications Review Board -where publication entitled Gender Queer given an unrestricted classification - whether the Board ignored, overlooked or misunderstood relevant material - where applicant alleged that the publication depicts and promotes paedophilia - where the Board described public submissions as "overwhelmingly anti-LGBTQIA+" in circumstances where only about 11.5% of the submissions by number, and less than 1% of the individuals who made submissions, could possibly be so described - where Board did not refer to an allegation that the publication posed the further moral dilemma of a sexual relationship between a teacher and student - decision of the Board quashed
JACKMAN J - 14 October 2024

Bankruptcy ; Practice and Procedure
Sampson (Trustee) v Zaki, in the matter of Van Vlijmen (No 2) [2024] FCA 1175
BANKRUPTCY AND INSOLVENCY - application under s 100-5 of the Insolvency Practice Schedule (Bankruptcy), being Schedule 2 to the Bankruptcy Act 1966 (Cth) for the approval of the assignment of rights to sue - whether to rights to sue which vested in a trustee in bankruptcy under s 58 of the Act are rights to sue conferred on the trustee under the Act for the purposes of s 100-5 - whether one of the causes of action sought to be assigned had no prospects of success - application granted PRACTICE AND PROCEDURE - application to re-open - exercise of discretion - overarching purpose - no satisfactory explanation for failure to adduce evidence earlier - application refused, to the extent that it was opposed
GOODMAN J - 11 October 2024

Trusts and Trustees ; Contract ; Consumer Law ; Evidence
Amirbeaggi as trustee of the bankrupt estate of Hanna v Hanna (No 3) [2024] FCA 1171
TRUSTS AND TRUSTEES - volunteer recipient of transfer of interest in land received at the direction of another person - the other person, later on notice that the transfer was the product of fraudulent conduct, directed the recipient to transfer the property to a third party - whether the initial recipient held the interest in land on Black v S Freedman type trust - whether the knowledge of the other person concerning the fraudulent conduct is to be attributed to the initial recipient - held that the initial recipient held the interest in land on trust and is liable for the transfer out of that interest to the third party CONTRACTS - proof of entry into contract - where contract for sale and purchase of land is evidenced by one signed counterpart and secondary evidence of the signing and exchange of the other counterpart - inescapable inference that contract was signed and exchanged - purchaser liable under the contract CONTRACTS - whether contract came into existence which contained an implied term that one party would receive "indefeasible title" - no such contract - no such implied term CONSUMER LAW - alleged contravention of s 18 of the Australian Consumer Law, by reason of a failure to advise spouse's joint venture partner of spouse's impending entry into bankruptcy - alleged conduct was not in trade or commerce - alleged conduct not misleading or deceptive in circumstances where knowledge of the spouse's impending entry into bankruptcy not established and in the absence of any reasonable expectation that such information, if known, would have been shared
GOODMAN J - 11 October 2024

Migration
PHTP v Minister for Immigration and Multicultural Affairs [2024] FCA 1170
MIGRATION - application for judicial review of a decision of the Administrative Appeals Tribunal concerning a visa cancellation decision - Minister conceded jurisdictional error - proposed consent orders - jurisdictional error established to the satisfaction of the Court - relief granted
GOODMAN J - 11 October 2024

Practice and Procedure ; Corporations Law
Fisher v BT Funds Management Ltd [2024] FCA 1166
PRACTICE AND PROCEDURE - representative proceeding - interlocutory application under s 33X of the Federal Court of Australia Act 1976 (Cth) for leave to issue a notice to certain group members of an application to discontinue the proceeding
O'BRYAN J - 9 October 2024

Migration
Tran v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1178
MIGRATION - application for judicial review of decision of Administrative Appeals Tribunal affirming Minister's decision not to revoke visa cancellation - where applicant convicted of various drug offences - whether tribunal erred in consideration of applicant's continued unlawful presence in Australia - whether tribunal failed to afford proper weight to applicant's rehabilitation prospects - whether tribunal erred in drawing conclusions about applicant's English skills - whether tribunal failed to give proper consideration to evidence of applicant's family - whether tribunal failed to give proper consideration to applicant's fears of returning to Vietnam - application dismissed.
SNADEN J - 11 October 2024

Corporations Law
Specialised Welding Australia Pty Ltd v Disselkoen [2024] FCA 1184
CORPORATIONS - application for declaration that appointment of receivers by secured creditor is invalid and creditor's security interest unenforceable - whether debt relied upon by creditor is a contingent claim extinguished upon the creditor voting in favour of a deed of company arrangement
CHARLESWORTH J - 8 October 2024

Corporations Law
Albarran (Administrator), in the matter of Ashby Mining Limited (Receivers and Managers Appointed) (Administrators Appointed) [2024] FCA 1177
CORPORATIONS - application under s 439A(6) and s 447A of the Corporations Act 2001 (Cth) to extend convening period for second creditors' meeting of group companies in administration - Daisytek order -
FEUTRILL J - 18 September 2024

Practice and Procedure ; Corporations Law
Stolyar v Scott (Leave to appeal) [2024] FCA 1182
PRACTICE AND PROCEDURE - application for leave to appeal judgment determining distribution of proceeds from sale of property - where both parties claim the balance of the proceeds following payments to other creditors - whether applicant should be granted leave to appeal where she seeks to raise new grounds on appeal that were not put to the primary judge - whether orders below final or interlocutory
PERRAM J - 11 October 2024

Equity
Westpac Banking Corporation v Forum Finance Pty Limited (in liq) (Liability) [2024] FCA 1176
EQUITY -- audacious fraud perpetrated against four financiers - collective advance by financiers of about $500 million to companies in the consolidated Forum group and to a related company incorporated in New Zealand - advances made pursuant to fictitious and fraudulent equipment leasing finance arrangements - where comprehensive uncontested tracing evidence establishes that tainted proceeds channelled through myriad of corporate entities to wide range of property (including real and personal property) and on extravagant lifestyle - where principal fraudster, Mr Bill Papas, fled the jurisdiction and did not defend the proceedings - whether respondents liable under principles in Black v Freedman - whether respondents liable under first or second limb of Barnes v Addy - whether individual respondents had knowledge (actual or constructive) of the fraudulent scheme - Held: respondents liable, separate hearing on relief
CHEESEMAN J - 11 OCTOBER 2024

Practice and Procedure ; Corporation Law
Fortescue Limited v Element Zero Pty Limited (No 2) [2024] FCA 1157
PRACTICE AND PROCEDURE - application to set aside ex parte search orders made by the duty judge - whether the applicants overstated and misrepresented to the duty judge the strength of the applicant's prima facie case - whether, on the evidence, there was no real risk of destruction of documents - whether there was a material non-disclosure by the applicants in seeking the search orders - whether the Court should exercise its discretion to set aside the search orders where there has been a material non-disclosure - whether the applicants' surveillance of the respondents prior to obtaining the search orders was excessive - whether the form and scope of the search orders was inappropriately broad and resulted in excessive capture of the relevant respondents' information - application dismissed
MARKOVIC J - 4 October 2024

Migration
XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131
MIGRATION - appeal from decision of primary judge -judicial review of decision of Administrative Appeals Tribunal to affirm decision not to revoke mandatory visa cancellation - whether primary judge erred by failing to find that the Tribunal's decision was legally unreasonable -impugned statement by Tribunal about relative availability of drugs in detention and in the community - whether finding unsupported by any evidence or other material and without probative basis - where Tribunal's statement was based on matters commonly known or personal or specialised knowledge and not required to be supported by specific evidence - appeal dismissed with costs
MARKOVIC, CHEESEMAN and HORAN JJ - 11 October 2024

Bankruptcy
Corporation of the City of Adelaide v Cosenza (No 2) [2024] FCA 1174
BANKRUPTCY - Application to appoint a trustee to take control of the respondent's property pursuant to s 50 of the Bankruptcy Act 1966 (Cth) - Where service of the bankruptcy notice is disputed - Where it is in the interests of the creditors that the order be made - Application granted
MEAGHER J - 4 October 2024

Bankruptcy
Nicholls (Trustee) v Australian Securities and Investments Commission, in the matter of Lawson (No 2) [2024] FCA 1181
BANKRUPTCY AND INSOLVENCY - application by Court appointed receiver for discharge following payment of remuneration, costs and expenses - application granted - orders made
HALLEY J - 10 October 2024

Practice and Procedure ; Industrial Law
Singh v Kentucky Fried Chicken Pty Ltd [2024] FCA 1180
PRACTICE AND PROCEDURE - class action brought by current and former employees of Kentucky Fried Chicken franchisees - proposed adduction of contextual evidence in relation to construction of industrial instruments - orders made
LEE J - 30 September 2024

Corporations Law
Dopking, in the matter of CHM Trading Pty Ltd [2024] FCA 1173
CORPORATIONS - insolvency - right of indemnity - application by liquidator for orders concerning realisation of trust assets - where orders sought would enable liquidator to carry on business and sell trust property to satisfy debts owing to trust creditors - whether appropriate to grant the orders sought
SARAH C DERRINGTON J - 8 October 2024

Practice and Procedure ; Industrial Law
Mpinda v Fair Work Commission (No 3) [2024] FCA 1179
PRACTICE AND PROCEDURE - orders following determination of separate questions
FEUTRILL J - 11 September 2024

Practice and Procedure ; Corporations Law
Palmer v Australian Securities and Investments Commission [2024] FCA 1167
PRACTICE AND PROCEDURE - abuse of process - permanent stay or dismissal - fragmentation of criminal proceedings - where Applicants seek declaratory and other relief in relation to an examination of the First Applicant, and the transcripts thereof, conducted by ASIC pursuant to s 19 of the Australian Securities and Investments Commission Act 2001 (Cth) - where transcripts used to formulate criminal charges against Applicants - whether this proceeding would inappropriately fragment criminal proceedings - whether proceeding should be stayed or summarily dismissed - held: proceeding stayed pending determination of criminal proceedings
BUTTON J - 8 October 2024

Corporations Law
Starbelle Energy Pty Ltd as trustee for the Cronulla Coal Unit Trust v Louttit (Liquidator), in the matter of Coal Contractors Pty Limited (in liq) [2024] FCA 1172
CORPORATIONS - removal of liquidator - where plaintiff has lost confidence in liquidator because of apparent lack of investigation - where plaintiff propounds a funding proposal that is better than the status quo - where liquidation is in relative infancy
JACKMAN J - 27 September 2024