Browse Federal Court Judgments

Published in the last week

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


Migration
BKX16 v Minister for Immigration and Border Protection [2019] FCA 991
MIGRATION - application for extension of time and leave to appeal - application filed out of time - proposed application for leave to appeal not reasonably arguable - application dismissed
JACKSON J - 26 June 2019


Practice and Procedure ; Corporations Law
Gibson v Malaysian Airline System Berhad (Settlement Approval) [2019] FCA 1007
PRACTICE AND PROCEDURE - representative proceeding - application for settlement under s 33V of Federal Court of Australia Act 1976 (Cth) - where all class members represented
PERRAM J - 26 June 2019


Migration ; Practice and Procedure
DHW17 v Minister for Home Affairs [2019] FCA 985
MIGRATION – appeal from decision of Federal Circuit Court affirming decision of Immigration Assessment Authority to refuse Safe Haven Enterprise (Subclass 790) visa – whether Authority was obliged but failed to consider all relevant country information – whether Authority was obliged but failed to consider whether country information relied on was “reliable” – no error in Authority’s reasoning– appeal dismissed PRACTICE AND PROCEDURE – application for leave to amend notice of appeal – where ground not pressed before Federal Circuit Court – where new ground has insufficient merit – leave refused
MORTIMER J - 26 June 2019


Consumer Law
Australian Competition and Consumer Commission v Birubi Art Pty Ltd (in liq) (No 3) [2019] FCA 996
CONSUMER LAW - contraventions of ss 29(1)(a), 33, Australian Consumer Law (ACL) - where respondent wholesaler engaged in conduct likely or liable to mislead or deceive potential purchasers by implying that five product lines were hand-painted by Australian Aboriginal persons and were made in Australia - consideration of principles for assessing appropriate pecuniary penalties where respondent engaged in a multitude of overlapping contraventions - consideration of the primacy of deterrence in setting an appropriate penalty - where penalties still have general deterrent effect despite the respondent being in liquidation - where public importance in sending a strong message of deterrence is heightened given the economic, social and cultural harms to Indigenous Australians which may flow from misrepresentations regarding the provenance of art and souvenirs as Australian Indigenous art and artefacts - total pecuniary penalties of $2.3 million imposed
PERRY J - 26 June 2019


Practice and Procedure, Bankruptcy
Lindsay v Meissner [2019] FCA 987
PRACTICE AND PROCEDURE - Costs - whether costs should be awarded against respondent - whether costs should follow the event - respondent to bear costs on party-party basis
STEWART J - 21 June 2019


Corporations Law
BMW Australia Finance Limited v @Civic Park Medical Centre Pty Ltd as trustee for @Civic Park Medical Centre Unit Trust [2019] FCA 999
CORPORATIONS - application for extension of time to lodge financing statements on the PPSR - extension of time granted
JAGOT J - 25 June 2019


Migration
Vo v Minister for Home Affairs [2019] FCAFC 108
MIGRATION - appeal from decision of the Federal Circuit Court dismissing application for review of decision of the Administrative Appeals Tribunal affirming delegate's decision to refuse the appellant's application for a Regional Employer Nomination (Permanent) (Class RN) visa - consideration of the proper interpretation of reg 1.05A of the Migration Regulations 1994 (Cth) - whether the primary judge was in error in not finding jurisdictional error by the Tribunal - whether the Tribunal misconstrued the statutory provisions - whether the Tribunal failed to have regard to evidence of the appellant's dependence on her son - whether the Tribunal's adverse findings lacked an evident and intelligible justification - whether the Tribunal's decision was legally unreasonable - where the Tribunal failed to discharge the statutory task - appeal allowed
DERRINGTON, BANKS-SMITH AND COLVIN JJ - 25 June 2019


Administrative Law
Lim v Comcare [2019] FCAFC 104
ADMINISTRATIVE LAW - claim for compensation for psychological condition - performance appraisal - whether condition was suffered a result of reasonable administrative action taken in a reasonable manner - whether condition would have arisen absent performance appraisal - Administrative Appeals Tribunal - scope of matter remitted for redetermination - whether tribunal provided adequate reasons for decision - whether reasons disclosed errors of law - appeal dismissed
MCKERRACHER, MARKOVIC AND SNADEN JJ - 25 June 2019


Migration
FRO17 v Minister for Immigration and Border Protection [2019] FCA 969
MIGRATION - appeal against judgment of Federal Circuit Court - application for protection visa - whether Immigration Assessment Authority considered appellant's UNHCR refugee status - whether failure to consider integer of claim - whether any error is material - appeal dismissed
RANGIAH J - 25 June 2019


Migration
Russell v Minister for Home Affairs [2019] FCAFC 110
MIGRATION - appeal from the Federal Court of Australia - where the primary judge dismissed an application for judicial review of a "no jurisdiction" decision of the Administrative Appeals Tribunal - whether the primary judge erred in finding the appellant failed to lodge her application for a merits review to the Tribunal in accordance with s 500(6B) Migration Act 1958 (Cth) - whether, pursuant to s 14A Electronic Transactions Act 1999 (Cth), an electronic communication is "capable of being retrieved" by the Tribunal "at an electronic address designated" by the Tribunal once it enters the Tribunal's information system - appeal dismissed
NICHOLAS, BROMWICH AND BURLEY JJ - 25 June 2019


Practice and Procedure ; Industrial Law
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 998
PRACTICE AND PROCEDURE - where individual respondents claimed privilege against self-exposure to penalty - where union pleaded it did not know and could not admit allegations in statement of claim because individual respondents who were its officers or members claimed such privilege - where union likely to have other information available to it to answer allegations - whether defence embarrassing and liable to be struck out PRACTICE AND PROCEDURE - application to allow a cross-claim to be filed - where primary claim brought by Australian Building and Construction Commissioner alleging contraventions of Building Construction Industry (Improving Productivity) Act 2016 (Cth) by union and its officers or members engaging in industrial activity - where union seeks cross-claim be filed against employer subject of industrial activity, its director and another officer - whether relief in cross-claim related or sufficiently related to subject of the principal proceedings - where witnesses in both claims likely to claim privilege against self-exposure to penalty - whether case management issues would arise if cross-claim heard together with primary claim
RARES J - 14 June 2019


Contract
Hill v Forteng Pty Ltd [2019] FCAFC 105
CONTRACTS - where directors of company, including the appellant, agreed to receive reduced remuneration as employees - whether company gave consideration - whether agreements to vary the original contract were void for uncertainty - held: appeal against orders on breach of contract dismissed COSTS - where primary judge did not separate costs on issues and ordered the appellant pay the respondents' costs on an indemnity basis from date of first Calderbank offer - held: appeal against costs orders allowed in part
KERR, BROMWICH and WHEELAHAN JJ - 21 June 2019


Migration
EEZ18 v Minister for Home Affairs [2019] FCA 959
MIGRATION – appeal from the Federal Circuit Court of Australia – where primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority by which it affirmed a decision of a delegate of the Minister not to grant the appellant a Safe Haven Enterprise visa – whether Authority properly considered s 473DD in respect of a letter constituting “new information” – held: appeal dismissed.
BROMWICH J - 21 June 2019


Practice and Procedure ; Discrimination
Von Schoeler v Allen Taylor and Co trading as Boral Timber [2019] FCA 941
PRACTICE & PROCEDURE - application for security for costs of appeal - appellant impecunious - prospects of success in appeal - where Federal Circuit Court took six years to deliver judgment - where reasonably arguable appeal would be stifled by order for security for costs
RANGIAH J - 17 June 2019


Migration ; Practice and Procedure
FER17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCAFC 106
MIGRATION - whether the meaning of "a national" as appears in the definition of "receiving country" in s 5 of the Migration Act 1958 (Cth) applies to a person who does not have a present status of a citizen of another country but is capable of acquiring that status - meaning does not apply in such a circumstance PRACTICE AND PROCEDURE - discretion of judge not to grant relief notwithstanding jurisdictional error being established - whether appeal governed by principles in House v The King [1936] HCA 40; 55 CLR 499 - error of principle established
KERR, WHITE AND CHARLESWORTH JJ - 24 June 2019


Corporations
Coeur De Lion Investments Pty Limited v The President's Club Limited, in the matter of The President's Club Limited [2019] FCA 994
CORPORATIONS - consideration of whether the application for the winding up of the company ("TPC") filed by the applicant ("CDLI") ought to be heard separately from TPC's cross-claim - consideration of whether separating out the two proceedings and testing whether, on the basis of particular assumptions, those assumed matters would be a basis upon which the Court would refuse to make a winding-up order PRACTICE AND PROCEDURE - consideration of whether the application for the winding up of the company ("TPC") filed by the applicant ("CDLI") ought to be heard separately from TPC's cross-claim
GREENWOOD J - 24 June 2019


Migration
DNT17 v Minister for Home Affairs [2019] FCA 978
MIGRATION - application for leave to appeal and extension of time - where Federal Circuit Court of Australia dismissed application in a case seeking reinstatement of an application for judicial review - where Immigration Assessment Authority had affirmed the decision of a delegate to refuse to grant the applicant a Safe Haven Enterprise visa - whether proposed grounds of appeal have sufficient merit - application dismissed
MARKOVIC J - 24 June 2019


Corporations Law
Banks v Galea [2019] FCA 986
CORPORATIONS - claim of misleading or deceptive conduct - where the claim relating to the corporation is sought to be struck out - whether the Court has jurisdiction to entertain the claim as pleaded - whether 'loss or damage' is pleaded - whether any oral agreement has been adequately pleaded - where the contract was pleaded to have been entered into prior to the registration of the company - s 131 of the Corporation Act 2001 (Cth) considered PRACTICE AND PROCEDURE - application to strike out paragraphs of the pleadings - amended statement of claim struck out - leave given to re-plead
MCKERRACHER J - 24 June 2019


Industrial Law
Australian Licensed Aircraft Engineers' Association v Qantas Airways Limited [2019] FCA 989
INDUSTRIAL LAW - principles of construction of enterprise agreement - tenth agreement in series of enterprise and analogous agreements - role of industrial context and history - where context and history mutually known - where longstanding clause included in current and past enterprise agreements provided for recognition of new qualifications gained externally in specific circumstances only - where new clause added to current enterprise agreement allowed employer to recognise new qualifications gained externally in circumstances contrary to longstanding clause - whether employer contravened enterprise agreement by recognising employee's new qualifications under new clause
RARES J - 24 May 2019


Corporations Law
Deputy Commissioner of Taxation v Melking Holdings Pty Ltd [2019] FCA 988
CORPORATIONS - application for review of decision of Registrar to wind up company on the basis of presumed insolvency - where application brought by director of company - where liquidators appointed - where company alleged abuse of process by reason that service of the statutory demand was not effected - consideration of the nature of the review of a Registrar's decision to wind up a company - consideration of s 459C and s 459Q of the Corporations Act 2001 (Cth) - where evidence that after alleged failure to comply particularised in the originating process the company failed to comply with the statutory demand - where presumption of insolvency applied - decision of Registrar affirmed PRACTICE AND PROCEDURE - application for leave to amend originating application to include evidence of service by other means and allege actual insolvency of the company - allowed in part
COLVIN J - 21 June 2019


Contracts
Eckford v Six Mile Creek Pty Ltd [2019] FCA 982
CONTRACTS - interlocutory application - whether the parties entered into a binding contract to settle the proceedings on certain terms - consideration of whether the facts fall under the first or third class of Masters v Cameron (1954) 91 CLR 353 - facts of the case considered as being within the third class of Masters v Cameron - no binding contract exists - interlocutory application dismissed
JAGOT J - 21 June 2019


Contempt of Court
Anderson v GPY18 [2019] FCA 954
CONTEMPT OF COURT - sentencing - contempt of the Australian Criminal Intelligence Commission - contempt punishable as contempt of Federal Court - respondent in contempt by refusing to take oath or make affirmation in examination - where respondent pleaded guilty - where respondent facing lengthy term of imprisonment for other offences - fixed term of imprisonment imposed
BANKS-SMITH J - 21 June 2019


Corporations Law
Klemweb Nominees Pty Ltd (as trustee for the Klemweb Superannuation Fund) v BHP Group Limited [2019] FCAFC 107
REPRESENTATIVE PROCEEDINGS - leave to appeal - permanent stay of proceedings - three overlapping open securities class actions against the same respondent - substantially the same claim and substantially the same causes of action - applicable principles - primary judge stayed two of the three proceedings - comparability of common fund orders proposed - whether common fund order could indirectly incorporate a contingency fee - scope and relevance of prohibition in s 183 of Legal Profession Uniform Law - no win/no fee model - comparison between no win/no fee model and external funder model - leave to appeal granted - appeal partly allowed - consequential orders
MIDDLETON, BEACH AND LEE JJ - 28 MAY 2019


Practice and Procedure ; Bankruptcy ; Legal Practitioners
Nash v Timbercorp Finance Pty Ltd (in liq), in the matter of the bankrupt estate of Nash [2019] FCA 957
PRACTICE AND PROCEDURE - application by examinee in public examination under s 81 of the Bankruptcy Act 1966 (Cth) (Act) to restrain law firm acting for and advising the examination applicants - where law firm previously acted for examinee - whether examinee in examination has standing to seek injunctive relief to restrain law firm - inherent jurisdiction to control conduct of solicitors as officers of the court LEGAL PRACTITIONERS - whether real and sensible risk of misuse by the law firm of confidential information of former client - whether breach of duty of loyalty owed by law firm to former client - whether a perception of conflict contrary to the proper administration of justice - delay of examinee in seeking restraint of law firm BANKRUPTCY AND INSOLVENCY - application by examinee for access to affidavit in support of application for issue of examination summons (supporting affidavit) - whether arguable case for setting aside the examination - whether material breach of obligation to make full and frank disclosure upon seeking issue of summons - whether disclosure of supporting affidavit would frustrate examination process Held: examinee has standing to seek injunctive relief to restrain law firm - law firm may continue acting for examination application for remainder of examination on conditions - restraint of five members of law firm - information barrier and undertakings - application for access to supporting affidavit rejected
ANDERSON J - 21 June 2019


Patents
InterPharma Pty Ltd v Hospira, Inc (No 5) [2019] FCA 960
PATENTS - dexmedetomidine in intensive care unit sedation - construction of claims - alleged invalidity of patent on grounds of lack of clarity, manner of manufacture, novelty, inventive step and fair basis - challenge to validity of patent rejected - whether proposed conduct threatened to infringe claims of patent prior to expiry - threatened infringement established
KENNY J - 20 June 2019


Intellectual Proeprty ; Practice And Procdeure ;
Pilkin v Sony Australia Limited (No 2) [2019] FCA 980
INTELLECTUAL PROPERTY - patents - whether patent had deferred priority date under Patents Act 1990 (Cth) ss 102, 114 and Patents Regulation 1991 (Cth) reg 3.14 - where result of amending complete specification disclosed matter that extended beyond that disclosed in complete specification as filed - whether patent lacked novelty - where prior art disclosed all integers of invention in patent in suit PRACTICE AND PROCEDURE - application for leave to serve outside the jurisdiction under r 10.43 of the Federal Court Rules 2011 - whether prima facie case for relief established under r 10.43(4) - where foreign respondent did not exist at the time of alleged patent infringement - where new foreign respondent did not assume pre-incorporation liabilities for another entity's alleged patent infringement PRACTICE AND PROCEDURE - summary dismissal of the proceeding under Federal Court of Australia Act 1976 (Cth) s 31A(2) - where applicant has no reasonable prospect of successfully prosecuting the proceeding
RARES J - 3 June 2019


Practice and Procedure ; Corporations Law
Smart Corporation Pty Ltd as Trustee for Investment Trust No 3 T/As Australian 4WD Hire v Peng [2019] FCA 984
PRACTICE AND PROCEDURE - no appearances - failure to prosecute - no steps taken for over one year - otherwise discontinued - not served on remaining respondent - proceeding dismissed
DERRINGTON J - 20 June 2019


Migration
DZF17 v Minister for Home Affairs [2019] FCA 979
MIGRATION - appeal from orders of Federal Circuit Court of Australia affirming decision of Immigration Assessment Authority to refuse protection visa - leave granted to advance new grounds of appeal - leave granted to adduce further evidence - Authority failed to give real consideration to the appellant's claims and evidence - whether the Authority unreasonably failed to consider exercising the discretion to get new information under s 473DC(1)
THAWLEY J - 21 June 2019


Corporations
Space Touring Pty Ltd v Duxton Entertainment Pty Ltd [2019] FCA 983
CORPORATIONS - application to set aside a statutory demand for the payment of a debt - Registrar dismissing application - review of Registrar's decision - whether there exists a genuine dispute about the existence of the debt within the meaning of s 459H of the Corporations Act 2001 (Cth) - debt having the character of a promise to pay sum ascertainable under two contracts - sum in fact ascertained in accordance with the contracts - whether supporting affidavit supports a plausible contention that the creditor failed to perform its obligations under the contracts - whether debt inarguably payable notwithstanding apparent breach of contract by creditor - whether contract affirmed notwithstanding breach - whether the supporting affidavit supports a plausible contention that the contracts were novated - whether the existence of an alternative dispute resolution clause is enlivened - whether the existence of an alternative dispute resolution clause constitutes another reason to set the statutory demand aside in accordance with s 459J of the Corporations Act 2001 (Cth) - Registrar's decision affirmed
CHARLESWORTH J - 18 June 2019


Corporations Law
DuluxGroup Ltd, in the matter of DuluxGroup Ltd [2019] FCA 961
CORPORATIONS - scheme of arrangement - first court hearing - order sought under s 411(1) of the Corporations Act 2001 (Cth) - exercise of discretion - performance risk - deemed warranty - break fee - exclusivity arrangements - employee incentive arrangements - financial assistance - orders made for convening of shareholders' meeting
O'BRYAN J - 14 June 2019


Trade Marks ; Evidence
Rodney Jane Racing Pty Ltd v Monster Energy Company [2019] FCA 923
TRADE MARKS - registration - opposition - appeal from decision of Registrar of Trade Marks refusing registration - whether appellant had valid claim to ownership of marks at priority date - whether appellant intended to use or authorise use of marks at priority date - whether marks likely to deceive or cause confusion - appeal allowed EVIDENCE - admissibility of documents downloaded from websites, the Wayback Machine, Facebook and Instagram and data generated by Google Analytics - whether documents constitute business records under section 69 of the Evidence Act 1995 (Cth) - whether Court should exercise its discretion under section 135 of the Evidence Act 1995 (Cth) to exclude the evidence
O'BRYAN J - 21 June 2019


Practice and Procedure ; Corporations Law
Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2019] FCA 964
PRACTICE AND PROCEDURE - stay of proceedings - whether civil proceeding should be stayed pending determination of criminal proceedings relating to the same subject matter - whether the interests of justice require the civil proceeding to be stayed - where the civil proceeding and the criminal proceedings both relate to an institutional share placement that took place on 6 August 2015 - where Australia and New Zealand Banking Group Limited (ANZ) is a defendant to both the civil proceeding and the criminal proceedings - where the key individual at ANZ who was involved in the placement, and whose evidence and assistance would be required by ANZ to defend the civil proceeding, is also a defendant to the criminal proceedings - stay granted
MOSHINSKY J - 21 June 2019


Industrial Law
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973
INDUSTRIAL LAW - admitted contraventions of s 500 of the Fair Work Act 2009 (Cth) ("Act") which provides that a permit holder "exercising, or seeking to exercise, rights...must not...act in an improper manner" - admitted contravention of s 340(1) of the Act which provides that a person "must not take adverse action against another person...because the other person...has, or has not exercised a workplace right" - making of declarations - principles relating to imposition of pecuniary penalties -- relevance of previous contraventions by the respondents of industrial legislation to the penalty to be imposed - proportionality of penalty to contravening conduct - general deterrence - specific deterrence - whether a single course or multiple courses of conduct - principle of totality - whether pecuniary penalties should be imposed on the second and third respondents personally - principles relating to personal payment orders.
BROMBERG J - 21 June 2019


Corporations ; Evidence ; Practice And Procedure
Oztech Pty Ltd v Public Trustee of Queensland [2019] FCAFC 102
CORPORATIONS - whether respondent trustee in breach of duties owed to noteholders due to failure to appoint investigative accountant EVIDENCE - correctness of ruling excluding line of questioning in cross-examination on 'alternative causal thesis' for lack of relevance - whether alternative causal thesis pleaded - whether case confined by particulars to expert evidence - whether even if exclusion incorrect, 'alternative causal thesis' would have been independently causal vis-à-vis the primary causal thesis - appeal dismissed PRACTICE AND PROCEDURE - parties' obligation to plead all causes of action or defences explicitly
MIDDLETON, PERRAM AND ANASTASSIOU JJ - 21 June 2019


Evidence
Deputy Commissioner of Taxation v Shi (No 3) [2019] FCA 945
EVIDENCE - privilege against self-incrimination - where disclosure order in connection with a freezing order required respondent to disclose information concerning his worldwide assets - where information disclosed in a privilege affidavit may tend to prove the person has committed a criminal offence against or arising under an Australian law - whether the party seeking access to a privilege affidavit bears the onus of proof with respect to s 128A(6) of the Evidence Act 1995 (Cth) - where no evidence led as to the content of foreign law - whether information disclosed does not tend to prove the commission of a foreign offence - where the Commissioner of Taxation has the power to compulsorily obtain information contained in the privilege affidavit pursuant to s 353-10 of Sch 1 to the Taxation Administration Act 1953 (Cth) - whether the interests of justice require the information to be disclosed
STEWARD J - 21 June 2019


Equity
Howden Australia Pty Ltd v Minetek Pty Ltd [2019] FCA 981
EQUITY - interlocutory application -breach of confidence - whether the applicant has shown a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial - balance of convenience - the interlocutory application, insofar as it remains undetermined, be dismissed
JAGOT J - 21 June 2019


Industrial Law ; Corporations ; Contract ; Copyright
The Environmental Group Ltd v Bowd [2019] FCA 951
INDUSTRIAL LAW - termination of employment - where employee reported in a CEO report financial irregularities to the board - where employee made a complaint to the Australian Securities and Investments Commission alleging serious fraud within the company before completion of an audit - where employee took personal leave - where employee's lawyers prepared a letter to the company recording grievances - whether employee exercised a workplace right - whether a "complaint" for the purposes of s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) must be made in good faith - whether a complaint "in relation to" an employee's employment must be directed at or concerned with that person's employment in a substantive way - whether Pt 9.4AAA of the Corporations Act 2001 (Cth) is a "workplace law" - whether adverse action was taken - whether an investigation into an employee's conduct constituted adverse action - where employee's dismissal was purportedly a product of the breakdown of the relationship between the board and employee - whether adverse action was taken "because" of the exercise of a workplace right CORPORATIONS - protection for whistleblowers - whether employee had reasonable grounds to suspect contraventions of the Corporations Act 2001 (Cth) - whether disclosure was made in good faith - whether complaint was made for a secondary purpose CONTRACTS - breach of contract - whether employee breached contract by retaining company property after termination COPYRIGHT - acts not constituting copyright infringement - whether copying was done for the purposes of a judicial proceeding - whether the possibility of a future proceeding is sufficient for the purposes of s 43 of the Copyright Act 1968 (Cth)
STEWARD J - 21 June 2019


Industrial Law
CPSU, the Community and Public Sector Union v Commonwealth of Australia [2019] FCA 975
INDUSTRIAL LAW - where employees paid a "sea-going allowance" under Australian Customs and Border Protection Enterprise Agreement 2011-2014 - whether ss 470 and 471 of the Fair Work Act 2009 (Cth) required employer not to pay or reduce payments of sea-going allowances during time employees took protected industrial action
O'CALLAGHAN J - 21 June 2019


Industrial Law
Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972
INDUSTRIAL LAW - admitted contraventions of s 494(1) of the Fair Work Act 2009 (Cth) - an official of an organisation exercised a "State ... OHS right without being a permit holder - making of declarations - principles relating to imposition of pecuniary penalties - whether no penalty should be made where a person contravenes a civil penalty provision on a genuine but mistaken view of the law - relevance of previous contraventions by the respondent of industrial legislation to the penalty to be imposed - proportionality of penalty to contravening conduct - general deterrence - specific deterrence- whether a single course or multiple courses of conduct - principle of totality.
BROMBERG J - 21 June 2019


Superannuation
Scone Race Club Limited v Commissioner of Taxation [2019] FCA 976
SUPERANNUATION - liability for superannuation guarantee charge - whether jockeys are to be taken to be employed by the applicant - Superannuation Guarantee (Administration) Act 1992 (Cth) s 12(8) - whether applicant is liable to make the payment of riding fees to jockeys - where centralised payment system was established by the applicant to control race-related payments - where racing industry is heavily regulated by statute and national and local rules - where jockeys and trainers are required to be licenced by the applicant - where local rule of racing, Rule 72 provided that the race club such as the applicant was liable to pay riding fees to jockeys - whether applicant subject to any obligation in equity to make payment for riding fees to jockeys - where Local Rule 72 did not constitute a representation by the applicant - where riding fees paid by industry regulator directly to jockeys under its centralised payment system - where general industry practice was that jockeys were engaged by trainers on behalf of owners and that race clubs paid riding fees on behalf of owners. HELD - no obligation in equity for applicant to make payment - applicant not deemed to be an employer by s 12(8)(b) Superannuation Guarantee (Administration) Act 1992 (Cth).
LOGAN J - 21 June 2019


Industrial Law
Tran v Kodari Securities Pty Ltd [2019] FCA 968
INDUSTRIAL LAW - whether employee sought to obtain legal advice in respect of a new contract of employment - whether respondents took adverse action against employee because he proposed to exercise a workplace right - whether respondents coerced employee not to exercise that workplace right - application of principles to civil penalties - consideration of reasonable notice period - held: application granted
BROMWICH J - 21 June 2019


Industrial Law
Dutta v Telstra Corporation Limited [2019] FCAFC 103
INDUSTRIAL LAW - appeal from the Federal Court - where appellant is a litigant in person - where appellant was made involuntarily redundant - where appellant claims employer took adverse action against him because he exercised a workplace right - where appellant also sought a remedy in the Court for unfair dismissal - where appellant commenced proceedings in the Federal Court rather than in the Fair Work Commission - whether Federal Court can grant relief for unfair dismissal in the Federal Court - primary judge was correct in finding it did not have jurisdiction to entertain unfair dismissal claims - where, if the employer's witnesses were believed, the appellant's termination had nothing to do with his exercising workplace rights - where primary judge made findings about the credibility of witnesses - whether credibility findings should be displaced by an appellate court - where appellant claimed his employer's witnesses gave untruthful evidence - where there was no evidence supporting this claim - appeal dismissed
LOGAN, FLICK AND REEVES JJ - 21 June 2019


Administrative Law
Comcare v ZZRP [2019] FCA 952
COMPENSATION - Administrative Appeals Tribunal sets aside decision refusing compensation ADMINISTRATIVE LAW - adequacy of reasons of Administrative Appeals Tribunal - no necessity to refer to all evidence - necessity to address evidence going to basis of decision made - failure to provide adequate reasons - appeal allowed
FLICK J - 21 June 2019


Migration
Gohil v Minister for Home Affairs [2019] FCA 977
MIGRATION - appeal from Federal Circuit Court - where Court dismissed application for judicial review of decision of Administrative Appeals Tribunal - where Tribunal found it had no jurisdiction - where appellant was not subject to approved nomination at time of Tribunal decision - whether Tribunal erred in finding it had no jurisdiction
PERRAM J - 21 June 2019


Migration ; Practice and Procedure
Song v Minister for Home Affairs [2019] FCA 970
MIGRATION - appeals from Federal Circuit Court - application for nomination of proposed occupation and related application for Temporary Business Entry (Class UC) ('457') visa - where Minister and Tribunal found nomination of occupation not genuine - where Tribunal found Migration Regulations 1994 (Cth) reg 2.72 required nomination to refer to six digit ANZSCO code and not four digit code as appellants submitted - whether Federal Circuit Court erred in not finding that Tribunal fell into jurisdictional error MIGRATION - consideration of submission by first respondent that, if appeal on nomination of proposed occupation allowed, visa appeal would still need to be dismissed PRACTICE AND PROCEDURE - where application made during hearing for leave to amend grounds of appeal to include jurisdictional error in respect of Tribunal's comments as to truthfulness of appellants - where grounds not raised in Federal Circuit Court - leave refused at appeal hearing - reasons for refusal
PERRAM J - 21 June 2019


Migration
DFS16 v Minister for Home Affairs [2019] FCA 944
MIGRATION - appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority (Authority) - where the Authority had affirmed a decision of a delegate of the First Respondent not to grant the Appellant a Safe Haven Enterprise (subclass 790) visa - dispositive issue in appeal whether an English translation of a Tamil document is "new information" for the purposes of Pt 7AA of the Migration Act 1958 (Cth) - where the Authority found translation was not "new information" and had regard to it - where the Authority made adverse credibility findings about the Appellant on the basis of the translation - translation of document already before the delegate not new information where submission that decision in ABJ17 v Minister for Immigration and Border Protection [2018] FCA 950; 260 FCR 295 is inconsistent with considered obiter reasoning of the plurality in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600 - appeal dismissed
KERR J - 20 June 2019


Migration
DYK17 v Minister for Home Affairs [2019] FCA 943
MIGRATION - appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority (Authority) - where Authority had affirmed a decision of a delegate of the first Respondent refusing the Appellants' applications for Safe Haven Enterprise (subclass 790) visas - whether Authority erred in taking an unduly narrow view of "exceptional circumstances" for the purposes of s 473DD(a) - where it may be inferred Authority gave consideration exclusively to whether information could have been provided to the Minister's delegate - whether it was legally unreasonable for Authority not to exercise its discretion to obtain further information under s 473DC - where Appellant had advised she did not feel comfortable with a male interpreter during interview conducted by Minister's delegate - appeal allowed
KERR J - 20 June 2019


Migration
DGS17 v Minister for Home Affairs [2019] FCA 962
MIGRATION - appeal from the Federal Circuit Court of Australia - where primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority by which it affirmed a decision of a delegate of the Minister not to grant the appellant a Safe Haven Enterprise visa - where Authority found that the "new information" had no apparent relevance to the appellant's claims - whether there were "exceptional circumstances" under s 473DD of the Migration Act 1958 (Cth) which justified the Authority's consideration of the "new information"- appeal dismissed.
FARRELL J - 20 June 2019


Pratice and Procedure ; Administrative Law
Malu Lamar (Torres Strait Islander Corporation) RNTBC v The Protected Zone Joint Authority (2019) FCA 974
PRACTICE AND PROCEDURE - failure of applicant to attend Court hearings - application by second respondent to dismiss the proceeding - failure by applicant to prosecute the proceeding with due diligence - applicant in default - proceeding dismissed.
WHEELAHAN J - 20 June 2019


Migration
ENE17 v Minister for Immigration and Border Protection [2019] FCA 942
MIGRATION - appeal from the Federal Circuit Court of Australia - where the primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority to affirm a decision of a delegate of the Minister to refuse the appellant a Safe Haven Enterprise (subclass 790) visa - whether Authority erred by failing to engage in an active intellectual process with the material referred to it by the Secretary and other country information - where leave granted to raise new ground alleging error by Authority in making assumptions as to grant of bail on appellant's return to Sri Lanka - DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 followed - appeal dismissed
FARRELL J - 20 June 2019


Migration
Hoang v Minister for Home Affairs [2019] FCA 956

NICHOLAS J - 20 June 2019


Migration
BCY17 v Minister for Immigration and Border Protection [2019] FCA 948
MIGRATION - appeal from the Federal Circuit Court dismissing an application for judicial review of a decision of the Immigration Assessment Authority (IAA) - where the appellant formerly resided in Sri Lanka and is of Tamil ethnicity - whether the IAA failed to take into account a relevant matter - whether the IAA made an unreasonable finding - appeal dismissed
GLEESON J - 20 June 2019


Migration
FCA17 v Minister for Immigration and Border Protection [2019] FCA 947
MIGRATION - application for leave to appeal from an interlocutory decision of the Federal Circuit Court - where the applicant fears harm in Malaysia because of his political opinions - whether the Tribunal's decision was attended by sufficient doubt to warrant asking the "what if I am wrong?" question - where no sufficient doubt found - application refused
GLEESON J - 20 June 2019


Industrial law
Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd [2019] FCAFC 99
INDUSTRIAL LAW - protected action ballot - application for the extension of time under s 443(5) of the Fair Work Act for the giving of notice of the taking of industrial action - was the decision of the Full Bench of the Fair Work Commission subject to jurisdictional error -whether the Deputy President had exercised discretion upon finding exceptional circumstances - whether the Deputy President considered if the extended notice period would diminish the employees' bargaining power - whether sufficient evidence was put before the Deputy President -application be dismissed.
RARES, JAGOT AND BROMWICH JJ - 20 June 2019


Trade Marks
Trident Seafoods Corporation v Trident Foods Pty Ltd [2019] FCAFC 100
TRADE MARKS - application for leave to appeal - leave to appeal granted - exercise of discretion under s 101(3) - statutory purpose of Pt 9 of the Trade Marks Act 1955 (Cth) - evidentiary basis for there being relevant prospect of confusion in the minds of consumers - whether the use of the mark after the non-use period "did not lack good faith" and was not "colourable" - weight put to the use of the mark on products after the non-use application was made - categorisation of "fish" and "fish products" as including mussels and oysters (molluscs) - whether use of trade mark by parent company was also use by the subsidiary - appeal dismissed TRADE MARKS - application for extension of time - extension of time granted - application for leave to appeal - leave to appeal granted - exercise of discretion under s 44(3)(b) of the Trade Marks Act 1955 (Cth) - appeal allowed
REEVES, JAGOT AND RANGIAH JJ - 20 June 2019


Practice and Procedure ; Corporations Law
QC Resource Investments Pty Ltd (In Liq) v Naicker [2019] FCA 963
PRACTICE AND PROCEDURE – consideration of an application to strike out paragraphs of the originating application and 16 paragraphs of the statement of claim
GREENWOOD J - 19 June 2019


Migration
Boutros v Minister for Immigration and Border Protection [2019] FCA 851
MIGRATION - where visitor visa holder applied under reg 2.05(4), Migration Regulations 1994, for waiver of "no further stay condition" to care for his pregnant sister who had medical complications - whether leave should be granted to raise new grounds on the appeal from the Federal Circuit Court - where delegate refused application for waiver - whether independent ground of delegate's decision not challenged - consideration of the meaning of "compelling" circumstances - where any error in considering whether the circumstances were outside the appellant's control was not material - appeal dismissed
PERRY J - 7 June 2019


Industrial Law
Zaghloul v Woodside Energy Limited (No 8) [2019] FCA 971

MCKERRACHER J - 20 June 2019


Native Title
Turner on behalf of the Nukunu People v State of South Australia [2019] FCA 863
NATIVE TITLE - Determination as to whether or not native title exists in an area - determination by consent pursuant to s 87A of the Native Title Act 1993 (Cth)
CHARLESWORTH J - 17 JUNE 2019


Corporations Law ; Trusts and Trustees
Staatz v Berry, in the matter of Wollumbin Horizons Pty Ltd (in liq) (No 3) [2019] FCA 924
CORPORATIONS - liquidation - court orders or directions in winding up as to manner in which trust property is to be applied - company holding land on constructive trust TRUSTS - constructive trusts - company promoted scheme to establish commune - subscribers to have beneficial interest in land by unit in unit trust - unit trust fails and commune fails - directions as to beneficial interest in land - more subscribers in value than value in land CORPORATIONS - winding up - costs expenses and remuneration of liquidator of corporate trustee where trust not sole activity of company - where limited right of indemnity
DERRINGTON J - 20 June 2019


Costs ; Corporations Law
B& K Holdings (Qld) Pty Ltd v Garmin Australasia Pty Ltd (No 2) [2019] FCA 925
COSTS - costs of summary judgment application - whether "usual rule" ought be that costs be in the cause
DERRINGTON J - 20 June 2019


Costs ; Intellectual Property
Key Logic Pty Ltd v Blue Groper Investments Pty Ltd (No 3) [2019] FCA 926
COSTS - whether lump sum costs order should be made - whether any reason demonstrated that order should not be made - good reasons established - lump sum costs orders to be assessed by District Registrar
DERRINGTON J - 20 June 2019


Migaration
BAO18 v Minister for Home Affairs [2019] FCA 965
MIGRATION - appeal from decision of Federal Circuit Court dismissing application for review of Immigration Assessment Authority's decision not to grant appellant a protection visa - credibility findings - whether made on rational and logical basis - appeal upheld
MURPHY J - 20 June 2019


Migration
DJV17 v Minister for Home Affairs [2019] FCA 955
MIGRATION - Appeal from Federal Circuit Court - whether primary Judge erred in finding that it was not legally unreasonable for Authority to conclude that errors in interpretation could have been brought to delegate's attention before the delegate's decision or was credible personal information that was not previously known - Construction of Migration Act 1958 (Cth) s 473DD
COLLIER J - 19 June 2019


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