Browse Federal Court Judgments

Published in the last week

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


Migration
CIS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 549
MIGRATION - appeal from Federal Circuit Court - whether the Immigration Assessment Authority incorrectly classified information as new information- whether information taken into account - appeal dismissed
KENNY J - 13 May 2022


Administrative Law
Roberts v Attorney-General (Cth) [2022] FCA 574
ADMINISTRATIVE LAW - application for judicial review of parole decision under s 19AL(1) of the Crimes Act 1914 (Cth) - survey of principles informing federal parole decisions - where applicant unable to access offence-specific treatment in custody - whether Attorney-General failed to consider arguments advanced by applicant - whether decision affected by procedural unfairness - whether decision lacked evident and intelligible justification - where Attorney-General balanced risks of release against risks of refusal of parole - where no material deficiencies in information before Attorney-General - application dismissed
LEE J - 18 May 2022


Bankruptcy
Whiteman v Deputy Commissioner of Taxation [2022] FCA 568
BANKRUPTCY - application for extension of time within which to seek leave to appeal made prior to sequestration order - where action was stayed by operation of s 60(2) of the Bankruptcy Act 1966 (Cth) - whether in the circumstances the action should be stayed or dismissed - question of costs.
WHEELAHAN J - 18 MAY 2022


Native Title
Williams on behalf of the Githabul People v State of Queensland [2022] FCA 569
NATIVE TITLE - Interlocutory Application seeking to remove Indigenous Respondents - whether Indigenous Respondents are in representative capacity - Section 84 Native Title Act - application granted
COLLIER J - 18 MAY 2022


Migration
DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 570
MIGRATION - review of decision of the Administrative Appeals Tribunal - applicant had held temporary protection visa, subsequently Class CD Subclass 851 Resolution of Status visa - where Tribunal affirmed decision not to revoke mandatory cancellation of applicant's visa - where visa cancelled mandatorily for applicant failing character test - s 501CA(4) Migration Act 1958 (Cth) - Ministerial Direction No. 79 - whether applicant had ongoing refugee status at the time of the Tribunal decision - International Treaties Obligations Assessment (ITOA) conducted - whether the Tribunal failed to consider the terms of Article 1C of the United Nationals 1951 Convention relating to the Status of Refugees - whether Australia had international non-refoulement obligations in respect of the applicant
COLLIER J - 18 May 2022


Practice and Procedure
Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (Further Conduct of Proceedings) (No 2) [2022] FCA 543
PRACTICE AND PROCEDURE - where parties unable to agree on a short minute of order - where timetable for the future conduct of proceedings.
PERRAM J - 11 May 2022


Migration
ANS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 559
MIGRATION - appeal from the Federal Circuit Court of Australia - where Immigration Assessment Authority (IAA) affirmed a decision of a delegate of the Minister refusing to grant a Temporary Protection visa - where ground of review not raised before primary judge - leave to advance ground on appeal refused in circumstances where no explanation provided for failure to raise the ground below and where ground had no substantive merit - whether IAA denied the appellant procedural fairness by limiting length of submissions in accordance with Practice Direction issued under s 473FB of the Migration Act 1958 (Cth) - no procedural unfairness - where the primary judge refused a request for leave to amend the appellant's application to raise a further ground of review - where appellant sought to agitate ground of review on appeal - appellant required to demonstrate error in primary judge's exercise of discretion - where no discernible error in primary judge's exercise of the discretion - appeal dismissed
O'BRYAN J - 18 MAY 2022


Practice and Procedure ; Bankruptcy
Amirbeaggi as Trustee for the Bankrupt Estate of Hanna v Hanna (No 2) [2022] FCA 562
PRACTICE AND PROCEDURE - application for leave to amend cross-claim - where application made after expert report concluded, contrary to the cross-claimant's pleaded position, that he had signed a dealing for the transfer of property - where consideration of the factors relevant to the discretion weighs in favour of allowing the amendment PRACTICE AND PROCEDURE - application for an order that this proceeding be heard with another proceeding and that evidence in one proceeding be evidence in the other - where some common issues and common witnesses whose credit will be in issue - where no objection by parties other than the cross-respondent - application granted
GOODMAN J - 18 May 2022


Consumer Law
viagogo AG v Australian Competition and Consumer Commission [2022] FCAFC 87
CONSUMER LAW - misleading or deceptive conduct - contravention of ss 18, 29(1) and/or 34 of the Australian Consumer Law - part price representations in contravention of s 48(1) of the Australian Consumer Law - where appellant contended that primary judge erred in finding three of four representations were conveyed - Held: appeal dismissed
YATES, ABRAHAM and CHEESEMAN J - 18 May 2022


Patents
Boehringer Ingelheim Animal Health USA Inc. v Intervet International B.V. [2022] FCAFC 88
PATENTS - where leave to appeal sought against primary judge's decision dismissing appeal from decision of delegate of the Commissioner of Patents rejecting opposition to patent application on ground that the invention as claimed did not involve an inventive step - whether primary judge erred in assessment of expert evidence - whether primary judge misapplied Cripps question - whether primary judge erred in having regard to characteristics or advantages of invention not referred to in the claims - whether in determining whether invention was obvious in light of common general knowledge and a patent specification published before the priority date the primary judge had insufficient regard to the common general knowledge - whether primary judge misunderstood oral evidence of appellant's expert witness in relation to patent specification Held: no relevant error established - application for leave to appeal dismissed
PERRAM, NICHOLAS AND BURLEY JJ - 18 May 2022


Migration
CGZ18 v Minister for Home Affairs [2022] FCA 571
MIGRATION - consideration of a contention that the Administrative Appeals Tribunal failed to consider a claim said to have been plainly articulated by the appellants
GREENWOOD J - 17 MAY 2022


High Court and Federal Judiciary
Praljak v State of Queensland [2022] FCA 572
HIGH COURT AND FEDERAL COURT - judges - disqualification - where applicant commences proceeding against docket judge alleging discrimination under Australian Human Rights Commission Act 1986 (Cth) - where claims were of ad hominem nature - where neither party objected to judge continuing to hear the matter - where justice could not be seen to be done in circumstances where proceeding heard by a judge who is a party to separately instituted proceedings - judge disqualified from further hearing of the proceeding
LOGAN J - 6 MAY 2022


Appeal and New Trial ; Defamation
Bazzi v Dutton [2022] FCAFC 84
APPEAL AND NEW TRIAL - test for determining whether primary judge erred in finding ordinary reasonable reader would understand defamatory publication conveyed imputation - whether appellant must demonstrate error in finding of fact or error in exercise of discretionary judgment - whether obiter dicta in Gatto v Australian Broadcasting Corporation [2022] VSCA 66 correct - Held: test is whether error of fact established DEFAMATION - where matter complained of was tweet - whether ordinary reasonable reader would understand tweet read as a whole and in way users of Twitter read tweets conveyed imputation - where primary judge used dictionaries to interpret imputations and matter complained of - Held: appeal allowed
RARES, RANGIAH AND WIGNEY JJ - 17 MAY 2022


Industrial Law
MGH Employment and Training Pty Ltd v Knott [2022] FCA 567
INDUSTRIAL LAW - application under s 39B of the Judiciary Act 1903 (Cth) for writs in the nature of certiorari and mandamus to the Full Bench of the Fair Work Commission - where Full Bench dismissed appeal against decision of Deputy President of the Fair Work Commission determining that the employee's application to the Commission to deal with a general protections dispute had been made within 21 days after the employee's dismissal took effect - where applicant alleged Full Bench had fallen into jurisdictional error in assessing date upon which dismissal took effect- where Full Bench declined to admit further evidence at hearing of the appeal -where Full Bench properly understood its task in exercising its jurisdiction under the Fair Work Act 2009 (Cth) - where any error by Full Bench was an error within jurisdiction - application dismissed INDUSTRIAL LAW - application under s 39B of the Judiciary Act 1903 (Cth) for writs in the nature of certiorari and mandamus to the Full Bench of the Fair Work Commission - where applicant alleged that Full Bench of the Fair Work Commission failed to address a serious submission advanced by the applicant in written and oral submissions - where grounds of appeal delineate relevant issues for determination - Full Bench addressed each of ground of appeal advanced - where any error by Full Bench was an error within jurisdiction - application dismissed
LOGAN J - 1 FEBRUARY 2022


Corporations Law
Australian Securities and Investments Commission v Ultiqa Lifestyle Promotions Limited (in liq) [2022] FCA 561
CORPORATIONS - whether contraventions of ss 961L and 912A Corporations Act 2001 (Cth) - whether holder of Australian financial services licence took reasonable steps to ensure that its representatives complied with ss 961B, 961G and 961J Corporations Act 2001 (Cth) - where representatives engaged in process of selling interests in managed investment scheme in time-share category - where representatives gave personal advice to consumers - where consumers were not told and were not aware that they were receiving financial advice - where only limited information was obtained from consumers prior to advice being given - where representatives were provided with template statement of advice document, training manual and sales script - where focus of documents provided to representatives was to make a sale of an interest in scheme - contraventions established - declaratory relief granted
DOWNES J - 17 May 2022


Corporations Law ; Practice and Procedure
Queensland Nickel Sales Pty Ltd v Queensland Nickel Pty Ltd (in liq) (No 3) [2022] FCA 564
CORPORATIONS - application for leave to proceed against company in liquidation pursuant to s 471B Corporations Act 2001 (Cth) - proposed proceeding relates to challenges to entitlement of former trustee to indemnity from trust assets - whether utility in granting leave to bring this proceeding where liquidators have sought directions in separate proceeding in relation to proposed payments from trust assets - where more efficient and cost-effective to have challenges sought to be raised in this proceeding addressed in the other proceeding - leave refused but with costs reserved PRACTICE AND PROCEDURE - application for interlocutory injunction restraining the company in liquidation from dealing with cash at bank until final determination of this proceeding - where parties negotiated and agreed upon consent order after hearing of application which enabled access to funds for certain purposes - where process proposed whereby parties can negotiate and agree upon further payments pending determination of separate proceedings - where parties raised no objection to that proposed process - application dismissed but with costs reserved
DOWNES J - 17 MAY 2022


Migration
ANA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 554
MIGRATION - appeal from the Federal Circuit Court of Australia - where Immigration Assessment Authority (IAA) affirmed a decision of a delegate of the Minister refusing to grant a Safe Haven Enterprise visa - where Federal Circuit Court dismissed the appellant's application for review of the IAA's decision but separately allowed the appellant's father's application for judicial review and remitted the appellant's father's visa application to the IAA for reconsideration - whether appellant had made a claim to be a member of the "same family unit" as his father such that the IAA's decision in respect of his application ought also to have been quashed and remitted so that the IAA could assess his application against the family unit criteria in subss 36(2)(b) and (c) of the Migration Act 1958 (Cth) - whether IAA had failed to consider a claim made by the appellant - appeal dismissed
O'BRYAN J - 17 May 2022


Representative Proceedings ; Admiralty
Owners of Cargo laden on board the MV "APL England" v CMB Ocean 13 Leasing Company Pte Ltd [2022] FCA 565
REPRESENTATIVE PROCEEDINGS - application for approval of class action settlement - where settlement agreement made between subrogated insurers and respondents - where insurers have indemnified group members in respect of the claims sought to be settled - where group members largely unaffected by settlement - where settlement amount constitutes more than 80% of the total claim amount - where settlement amount is to be distributed to the insurers pro-rata in respect of each group member's claim - where legal costs not deducted from settlement amount and to be paid separately - approval granted ADMIRALTY - maritime casualty involving scores of lost and damaged containers - representative proceeding by cargo insurers against vessel owner and demise charterer - where group members are numerous cargo owners or receivers - where defence relies on defences available to intervening contractual carriers - circular indemnities and Himalaya clauses - numerous cross claims - whether settlement of proceeding between insurers and defendants should be approved - complex and costly litigation for modest sums - settlement at more than 80% of claimed amount - approval granted
STEWART J - 2 May 2022


Administrative Law ; Migration
Heiner v Minister for Home Affairs [2022] FCAFC 81
ADMINISTRATIVE LAW -- appeal from dismissal of application for judicial review of a decision of the Australian Human Rights Commission to cease inquiring into appellant's complaint -- where appellant's Australian citizenship ceased in 1999 by operation of s 17 of the Australian Citizenship Act 1948 (Cth) -- where Minister refused to grant appellant a visitor visa in 2019 for non-compliance with Public Interest Criterion 4004 of Migration Regulations 1994 (Cth) -- where appellant complained to Commission that Minister had breached his human right to enter "his own country Australia" contrary to Art 12(4) of the International Covenant on Civil and Political Rights -- where Commission decided to cease inquiring into the complaint under s 20(2) of the Australian Human Rights Commission Act 1986 (Cth) because continuation of the inquiry was not warranted, the complaint lacked substance, other remedies were available, and practical outcomes and remedies were unlikely to be achieved through conciliation -- whether primary judge erred in failing to find that the Commission failed to consider the appellant's complaint relating to Art 12(4)
KATZMANN, BEACH AND GOODMAN JJ - 17 MAY 2022


Patents
Jusand Nominees Pty Ltd v Rattlejack Innovations Pty Ltd [2022] FCA 540
PATENTS - where invention claimed is a safety system for protecting against the hazard of drill rod failure - construction of patent - meaning of "anchor member" - meaning of "a proximal end region of the bore adjacent to a rock-face - whether third respondent's provision of the safety system product was for "experimental purposes" and therefore exempt under s 119C of the Patents Act 1990 (Cth) - conduct found not to be for "experimental purposes" - whether respondents infringed patents in suit - held: no infringement by respondents' product PATENTS - validity - lack of support and sufficient description - whether patent meets disclosure requirement of s 40(2)(a) of the Patents Act 1990 (Cth) - whether claims of patent meet support requirement of s 40(3) of the Patents Act 1990 (Cth) - grounds of invalidity established
ROFE J - 16 May 2022


Practice and Procedure ; Native Title
Nona of behalf of the Badulgal, Mualgal and Kaurareg Peoples (Warral & Ului) v State of Queensland (No 4) [2022] FCA 566
PRACTICE AND PROCEDURE - application to vacate hearing of expert evidence in contested native title claim - where the expert witness of the moving party affected by catastrophic flooding - relevance of the present proceeding to the resolution of native title claims in neighbouring areas - application granted
MORTIMER J - 13 May 2022


Industrial Law ; Costs
Stephen v Seahill Enterprises Pty Ltd [2022] FCAFC 85
INDUSTRIAL LAW - application under s 39B of the Judiciary Act 1903 (Cth) for writs in the nature of certiorari and mandamus to the Full Bench of the Fair Work Commission - where Full Bench upheld appeal against decision of Commissioner of the Fair Work Commission determining certain documents were subject to legal professional privilege - where applicant contended that finding of legal professional privilege and that there had been no waiver of privilege was irrational, illogical or unreasonable - where any error by Full Bench was an error within jurisdiction - application dismissed COSTS - costs in proceedings relating to a matter arising under the Fair Work Act 2009 (Cth) - unreasonable acts or omissions causing the other party to incur costs - where lapse by applicant in complying with timetable for filing and service of appeal book - where case management hearing convened to ascertain date for filing of overdue application book - where applicant abandoned grounds of application during course of hearing - application for costs granted
LOGAN, ANDERSON AND DOWNES JJ - 14 FEBRUARY 2022


Corporations Law
Palladium Holdings Pty Limited, in the matter of Palladium Holdings Pty Limited (No 2) [2022] FCA 563
CORPORATIONS - scheme of arrangement - second court hearing - order sought under s 411(4)(b) of the Corporations Act 2001 (Cth) to approve scheme of arrangement - scheme approved
YATES J - 16 MAY 2022


Migration
Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 83
MIGRATION - appeal from decision of primary judge dismissing Mr Bethell's application for habeas corpus -unlawful non-citizen - detention pending removal from Australia - where s 189 of Migration Act 1958 (Cth) requires unlawful non-citizen be detained - where s 196 requires unlawful non-citizen detained under s 189 be kept in immigration detention - where primary judge determined that detention was "not unlawful" - whether primary judge erred in failing to consider the lawfulness of the Minister's decision to cancel the appellant's visa - consideration of Commonwealth of Australia v AJL20 [2021] HCA 21; (2021) 95 ALJR 567 - whether delay in hearing application prevented fair hearing - whether costs can be awarded in a habeas corpus matter - allegation that remote hearing resulted in an "unfair hearing" - where appellant overseas - appeal dismissed
BROMWICH, LEE AND STEWART JJ - 16 May 2022


Administrative Law
Ferdinands v Registrar Cridland [2022] FCAFC 80
ADMINISTRATIVE LAW -- concurrent appeals - appellant lodging documents for filing - Registrars rejecting the documents under r 2.26 of the Federal Court Rules 2011 (Cth) - primary judge dismissing applications for judicial review of the Registrars' decisions --primary judge concluding that the Registrars did not err in characterising the documents as an abuse of process, vexatious or frivolous--primary judge concluding that r 2.26 did not confer judicial power--primary judge concluding that the litigation sought to be commenced by the appellant was beyond the jurisdiction of the Court and foredoomed to fail -- no appealable error - appeals - appeals dismissed
CHARLESWORTH, BURLEY AND CHEESEMAN JJ - 16 May 2022


Migration
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 82
MIGRATION - appeal from Federal Court of Australia dismissing application for judicial review of decision of Administrative Appeals Tribunal to affirm delegate's decision not to revoke mandatory cancellation of visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) - whether Tribunal failed to actively consider appellant's representations - whether Tribunal failed to fully consider real risk of harm in relation to claim of generalised violence and deteriorating living conditions in Iraq - whether Tribunal relied on South Australian Police (SAPOL) records of uncharged criminal conduct - whether prejudicial nature of the records could be cured by procedural fairness
SC DERRINGTON, O'BRYAN AND ABRAHAM JJ - 16 May 2022


Practice and Procedure ; Evidence
Roberts-Smith v Roberts [2022] FCA 524
PRACTICE AND PROCEDURE - application for leave to appeal - consideration of cumulative and related criteria in Re Decor Corporation Pty Ltd and Rian Tooling Industries Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 - whether failure to consider or give sufficient weight to matters undermining first respondent's affidavit evidence - whether arguable case existed for injunctive relief to join other parties - no determination of substantive right or practical effect of finally determining rights - no substantial injustice established - decision not attended with sufficient doubt - application dismissed
WIGNEY J - 16 May 2022


Practice and Procedure ; Discovery
Holland v BT Securities Limited [2022] FCA 539
PRACTICE AND PROCEDURE - interlocutory application - application for discovery pursuant to r 20.13 of the Federal Court Rules 2011 (Cth) - whether the making of the order sought will facilitate the just resolution of the proceedings as quickly, inexpensively and efficiently as possible - whether the order sought will require a party to discover documents that are directly relevant - where the respondent discovered documents understood to be in use at the relevant time - where the remaining documents were unable to be located and/or do not exist - application dismissed PRACTICE AND PROCEDURE - interlocutory application - application seeking leave of the Court to amend the statement of claim pursuant to r 16.53 of the Federal Court Rules 2011 (Cth) - where some amendments were not opposed - where some amendments failed to disclose a reasonable cause of action - leave granted for amendments in the terms of paragraphs 4 to 6 and 12 - leave to amend remaining paragraphs refused
O'SULLIVAN J - 13 May 2022


Practice and Procedure ; Discovery
McMahon Services Australia Pty Ltd v Howmet Systems Australia Pty Ltd, formerly Alcoa Australia Rolled Products Pty Ltd (No 2) [2022] FCA 545
PRACTICE AND PROCEDURE - interlocutory application - application for production and non-standard discovery of categories of documents pursuant to the Redfern Discovery Procedure set out in [8.4] to [8.7] of the Commercial and Corporations Practice Note and rr 20.14 and 20.15 of the Federal Court Rules 2011 (Cth) - whether the making of the order sought will facilitate the just resolution of the proceedings as quickly, inexpensively and efficiently as possible - whether the order will require a party to discover documents that are directly relevant - whether the time period sought by the applicant is excessive - whether settlement privilege is available to the respondent to prevent production of the documents sought - request for production stood over - application granted for discovery of a limited categories of documents
O'SULLIVAN J - 13 May 2022


Intellectual Property
Vald Performance Pty Ltd v Kangatech Pty Ltd (No 4) [2022] FCA 557
INTELLECTUAL PROPERTY - consideration of an application to amend particulars of invalidity - consideration of the approach in determining whether the claims defining the invention are supported by matter disclosed in the specification for the purposes of s 40(3) of the Patents Act 1990 (Cth)
GREENWOOD J - 13 May 2022


Practice and Procedure ; Discrimination
BSL22 v BSM22 [2022] FCA 558
PRACTICE AND PROCEDURE - interlocutory applications for orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) - orders sought to prevent prejudice to the proper administration of justice and to protect the safety of the parties by whom the applications made - necessity of relief sought - medical evidence as to consequences of disclosure for applicant's safety - imbalance as between parties in the event that both interlocutory applications not granted productive of prejudice to the proper administration of justice - applications granted
SNADEN J - 13 May 2022


Migration
CVC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 556
MIGRATION - application for extension of time to appeal from decision of the Federal Circuit Court of Australia - where the Federal Circuit Court of Australia dismissed the applicant's application for judicial review of a decision of the Administrative Appeals Tribunal - whether extension of time to appeal should be granted - application to extend time refused
YATES J - 13 MAY 2022


Practice and Procedure ; Discovery
Davis v Quintis Ltd (Subject to Deed of Company Arrangement) [2022] FCA 553
PRACTICE AND PROCEDURE - discovery - application for non-standard discovery pursuant to rr 20.15 or 20.20 of the Federal Court Rules 2011 (Cth) (FCR) - where standard discovery already ordered pursuant to FCR 20.14 - where no evidence that standard discovery had not been given conscientiously - application dismissed
LEE J - 5 MAY 2022


Corporations Law
One Corporate Trust Services Ltd v MLSP Assets Pty Ltd in its capacity as trustee for the MLSP Assets Trust [2022] FCA 555
CORPORATIONS - securities - general security deed - collateral being all present and after acquired property- grantor acting in capacity as trustee - security under general security deed - securing of obligations under loan note subscription agreement - registration under the Personal Property Securities Act 2009 (Cth) - incomplete registration requirements - failure to perfect security interest - financing statement failing to disclose the identity of the grantor by reference to the ABN of the trust - grantor now in voluntary administration - extension of time applied for under s 588FM of the Corporations Act 2001 (Cth) - triggering of "later time" under s 588FL(2)(b)(iv) - extension sought for a time prior to critical time - orders made
BEACH J - 12 May 2022


Practice and Procedure ; Bankruptcy
Frigger v Trenfield (No 5) [2022] FCA 531
PRACTICE AND PROCEDURE - application for leave to amend originating application - where application seeks to re-agitate previously adjourned or abandoned applications for interlocutory relief - where proceeding adjourned pending determination of proceedings in Supreme Court of Western Australia - where interests of justice still favour adjournment - application adjourned to a date a to be fixed
LOGAN J - 5 APRIL 2022


Practice and Procedure ; Corporations Law
Shepherd v Watt [2022] FCAFC 78
PRACTICE AND PROCEDURE - application for leave to appeal and appeal from orders made dismissing an application for leave to file an amended cross-claim and to extend the time to file evidence - whether sufficient doubt to warrant reconsideration of the discretion to make the orders - whether primary judge's exercise of his discretion fell within the scope of House v The King (1936) 55 CLR 499 - whether the primary judge failed to give weight or sufficient weight to relevant considerations, being the timely, efficient and cost-effective resolution of proceedings and potential prejudice to the parties - whether the exercise of discretion was unreasonable or plainly unjust - whether the primary judge erred in his application of r 5.23 of the Federal Court Rules 2011 (Cth) in the absence of any application by the respondents - whether procedural fairness was afforded to the applicants - leave to appeal granted - appeal allowed
GREENWOOD, BURLEY AND HALLEY JJ - 13 May 2022


Insurance
Sharma v H.E.S.T. Australia Ltd [2022] FCA 536
INSURANCE - appeal against Australian Financial Complaints Authority Limited (AFCA) determination affirming decision of Trustee and insurer to deny payment of additional death and income protection benefits of deceased policy holder on the basis of fraudulent misrepresentation - whether AFCA erred in interpreting ss 29 and 33 of Insurance Contracts Act 1984 (Cth) - whether AFCA erred in concluding that common law or equitable principles may operate in cases of fraudulent misrepresentation in group life policies where there is a change of insurer despite s 33 - whether conclusion that decision of insurer to avoid individual group life policy and of trustee to affirm avoidance were each fair and reasonable in operation was reached on a correct understanding of the law - AFCA materially erred in law - appeal allowed - matter remitted for redetermination
MCELWAINE J - 13 May 2022


Migration
BDF21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 547
MIGRATION - protection visa - appeal from the Federal Circuit and Family Court of Australia - where the primary judge found that the appellant had not established any error in the decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision of the delegate of the first respondent to reject the appellant's claim for a protection visa - where the appellant alleged that the Tribunal had erred in failing to consider a claim arising on the evidence before it that if the appellant were to resume his drug addiction on return to Vietnam he would face police harassment and forced incarceration - no error established in the primary judge's or Tribunal's reasons - appeal dismissed
ABRAHAM J - 13 May 2022


Practice and Procedure ; Discovery
Pleash (Liquidator), in the matter of SFG Relocations Pty Ltd v Fourie [2022] FCA 552
PRACTICE AND PROCEDURE - interlocutory application for two main questions at trial to be determined separately - where questions are discrete and involve different defendants - order for separation of questions granted PRACTICE AND PROCEDURE - interlocutory application for discovery in relation to books of company in liquidation - where application seeks 'standard discovery' with categories - contradictory - where discovery orders sought overlap with final orders sought - where plaintiff has exercised statutory power to call for books of company from defendants - whether discovery would be consistent with overarching purpose - discovery application dismissed
STEWART J - 13 May 2022


Administrative Law
Mosaic Brands Ltd v Australian Communications and Media Authority [2022] FCAFC 79
ADMINISTRATIVE LAW - whether primary judge erred in finding that a notice issued under s 522 of the Telecommunications Act 1997 (Cth) is subject to an implied entitlement disclosure condition - whether primary judge erred in finding that the notice issued by the Australian Communications and Media Authority (ACMA) complied with the implied entitlement disclosure condition - where s 155 of the Trade Practices Act 1974 (Cth) is not analogous - where s 522, read in context and given its purpose, implies an entitlement disclosure condition - where the Notice did not need to identify each matter the subject of a complaint nor state a reason for suspecting a contravention of the Spam Act 2003 (Cth) - where the Notice made apparent that the information and documents sought were relevant to the performance of the ACMA's telecommunications functions or the exercise of the ACMA's telecommunication powers - notice of contention dismissed - appeal dismissed
COLLIER, ABRAHAM AND CHEESEMAN JJ - 13 May 2022


Migration
DVJ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 550
MIGRATION - appeal from decision refusing judicial review of IAA's decision - appeal dismissed
O'CALLAGHAN J - 12 MAY 2022


Practice and Procedure
Australian Communications and Media Authority v Jones [2022] FCA 546
PRACTICE AND PROCEDURE - interlocutory application to dispense with personal service of originating process on the first respondent - application for substituted service on first respondent - Federal Court Rules 2011 (Cth) r 10.24 - where personal service on first respondent not practicable - where reasonably probable the applicant's identified methods of substituted service will inform the first respondent - orders made for substituted service
THOMAS J - 10 MAY 2022


Practice and Procedure ; Corporations Law
Umberto Pty Ltd (in liq) v Candelori, in the matter of Umberto Pty Ltd (in liq) [2022] FCA 551
PRACTICE AND PROCEDURE - application for leave to rely on a cross-claim filed out of time - where there has been a significant delay in the filing of the cross-claim - where the cross-defendant does not consent to leave being granted to the cross-claimants to rely on the cross-claim - where the cross-claimants contend that there is substantial prejudice to them by reason of the claims the subject of the cross-claim being at risk of being statute-barred if now commenced separately - where the cross-defendant submits that if leave were granted it will be necessary to undertake further investigations and to revisit existing evidence, resulting in significant additional costs being incurred - whether the circumstances warrant leave being granted - Held: leave granted on conditions.
CHEESEMAN J - 12 MAY 2022


Practice and Procedure ; Corporations Law
Saffari v Amazon.com Inc [2022] FCA 535
PRACTICE AND PROCEDURE - service - where the application for leave to appeal in respect of two interlocutory decisions of the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia) - where applicant is self-represented - where the first respondent (Amazon) is a foreign company based in the United States of America - where the second respondent, Jeffrey Bezos, one of 17 governors of Amazon, is outside the jurisdiction - where the applicant contends that service on the legal representatives of the fourth respondent in Australia, Amazon Commercial Services Pty Ltd, an Australian subsidiary of Amazon, is effective service on Amazon and Mr Bezos - whether service may be deemed pursuant to r 10.48(b) of the Federal Court Rules 2011 (Cth) - whether service has been effected - whether service may be deemed - Held: application dismissed. PRACTICE AND PROCEDURE - where applicant seeks an order for default judgment against Amazon and Mr Bezos for the relief in the statement of claim filed in the Circuit Court - where applicant contends that Amazon and Mr Bezos are in default as they are aware of the proceedings by reason of having the relevant Court documents in their possession - whether orders entering default judgment should be made - Held: application dismissed.
CHEESEMAN J - 12 May 2022


Migration
FSKY v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2022] FCA 541
MIGRATION - application for judicial review - protection visa - where applicant satisfies refugee criterion in s 36(2)(a) - where visa refused because criterion in s 36(1C)(b) not met - whether applicant is a danger to the Australian community - whether Tribunal erred in its assessment of danger - whether Tribunal erred by failing to consider length of time since applicant's offending and heroin use - whether Tribunal erred by failing to give appropriate consideration to the link between the applicant's heroin use and his risk of reoffending - application dismissed
ROFE J - 12 May 2022


Corporations Law
CBS Commercial Canberra Pty Ltd v Axis Commercial (ACT) Pty Ltd, in the matter of CBS Commercial Canberra Pty Ltd [2022] FCA 544
CORPORATIONS - application to set aside statutory demand - adjudication determination pursuant to the Building and Construction (Security of Payment) Act 2009 (ACT) (SOPA) - whether offsetting claims that have been rejected by adjudicator can be relied upon for purposes of Corporations Act 2001 (Cth) s 459H - whether in truth offsetting claims - whether offsetting claims genuine - where offsetting claims available to plaintiff - statutory demand set aside - Corporations Act 2001 (Cth) ss 459G, 459H
HALLEY J - 12 May 2022


Migration
Shoaib v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 548
MIGRATION - student visa - application for leave to appeal from a decision of the Federal Circuit Court of Australia - where the appellant failed to attend - where the appellant was given sufficient notice of the hearing - application dismissed for non-appearance
ABRAHAM J - 3 May 2022


Administrative Law ; Practice and Procedure ; Industrial Law
Ashby v Commonwealth of Australia [2022] FCAFC 77
ADMINISTRATIVE LAW - where s 65(1) of the Public Governance Performance and Accountability Act 1913 (Cth) (PGPA Act) permits the Finance Minister on behalf of the Commonwealth to authorise acts of grace payments if the Minister considers it appropriate to do so because of special circumstances -- where appellant applied under the PGPA Act for an act of grace payment of more than $4.5 million to compensate him for legal costs he incurred in prosecuting an application for relief under the Fair Work Act 2009 (Cth) (FW Act) for adverse action allegedly taken against him by the then Speaker of the House of Representatives for whom he had previously worked and the Commonwealth of Australia who was his then employer - where appellant discontinued the proceeding before trial and entered into a deed of release with the Commonwealth in which he agreed to release the Commonwealth from "all his claims against it" in consideration of the Commonwealth paying him $50,000 in settlement of those claims - where delegate considered there were no special circumstances and decided not to authorise an act of grace payment and appellant applied for judicial review of delegate's decision - whether primary judge erred in dismissing judicial review application and upholding the Commonwealth's application for summary judgment - where instrument of delegation gave delegate the power to consider all applications for act of grace payments but not the power to authorise applications in excess of $50,000, whether delegate lacked jurisdiction to refuse the act of grace payment PRACTICE AND PROCEDURE - application for extension of time and leave to appeal from judgment on judicial review application and for leave to appeal from judgment on FW Act application, whether leave to appeal required and whether it should be granted PRACTICE AND PROCEDURE - where the Commonwealth applied for summary dismissal of the adverse action claim, whether primary judge erred by finding that the claim enjoyed no reasonable prospects of success INDUSTRIAL LAW - where delegate took into account the choices made by the appellant, which primary judge assumed for the purpose of the summary dismissal application could otherwise constitute adverse action within the meaning of s 340 of the FW Act and where s 342(3)(a) provides that "adverse action" does not include action that is "authorised by or under ... [a] law of the Commonwealth", whether primary judge erred by finding that s 65 of the PGPA Act was a law of the Commonwealth within the meaning of s 342(3)(a) and the decision of the delegate was authorised by or under the PGPA
KATZMANN, ABRAHAM AND GOODMAN JJ - 12 May 2022


Administrative Law
Darnell v Stonehealth Pty Ltd [2022] FCAFC 76
ADMINISTRATIVE LAW - appeal from Federal Court of Australia - where primary judge dismissed an application for judicial review brought under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B(1A) of the Judiciary Act 1903 (Cth) - where appellant seeks to quash the decisions of the Australian Community Pharmacy Authority (Authority) and the Secretary of the Department of Health to approve the first respondent's application under the National Health Act 1953 (Cth)(Act) to supply pharmaceutical benefits at certain premises - whether the primary judge erred in finding that the premises occupied by Coles at Flagstone Village Shopping Centre, Flagstone, Queensland (Coles Flagstone) was on 20 March 2020 operating as a "supermarket" for the purposes of s 5 and Item 130 of Sch 2 to the National Health (Australian Community Pharmacy Authority Rules) Determination 2018 (Rules) - where Coles Flagstone was operating as a supermarket as required by the Rules - where the role played by "primary" in the definition of "supermarket" is only to identify the primary business of the retail store in question, namely selling groceries as opposed to selling other goods or providing services - whether the primary judge erred in failing to hold that the decision of the Authority was affected by materially false or misleading information - whether the primary judge's finding that the Authority's decision was not affected by misleading or false statements made by the first respondent was "glaringly improbable" or contrary to compelling inferences to be drawn having regard to the underlying facts - where primary judge's findings were open on the evidence - whether the opening of Coles Flagstone was a sham - where strategy devised by the first respondent was permitted under s 90 of the Act and did not "cross the line" - whether the primary judge erred in finding that the Authority was entitled to take into account information provided to it on 11 November 2020 (11 November Letter), despite the operation of s 9 of the Rules - where it was open to find that the 11 November Letter was provided to the Authority at the request of the first respondent rather than on its behalf or as its agent - appeal dismissed
MARKOVIC, THOMAS AND STEWART JJ - 11 May 2022


Practice and Procedure ; Defamation
Roberts-Smith v Fairfax Media Publications Pty Limited (No 34) [2022] FCA 532
PRACTICE AND PROCEDURE -- oral application by Commonwealth of Australia for variation of orders made on 28 March 2022 with respect to conduct of trial -- where existing orders made pursuant to ss 19(3A) and 38B of National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (s 38B Orders) contain provisions designed to protect identity of Sensitive Witnesses including Special Operations Command (SOCOMD) members -- where orders made on 28 March 2022 provide for recording of proceedings being made available on Federal Court's YouTube channel -- evidence suggesting information obtained by viewing and listening to YouTube recordings used by persons located outside of Australia to publish information identifying or tending to identify Sensitive Witnesses including SOCOMD members -- whether integrity of s 38B Orders placed at risk by use of YouTube facility -- whether requirements of open justice satisfied without YouTube facility -- application granted
Besanko J - 11 MAY 2022


Practice and Procedure ; Discovery
B&P Group Pty Ltd v Google LLC [2022] FCA 538
PRACTICE AND PROCEDURE - application for leave to serve originating application seeking preliminary discovery outside Australia pursuant to Div 10.4 of the Federal Court Rules 2011 (Cth) - effective application for leave for substituted service - leave to serve outside Australia granted
ANDERSON J - 6 MAY 2022


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