Browse Federal Court Judgments

Defamation
Gould v Jordan (No 2) [2021] FCA 1289
DEFAMATION - hearing and determination of certain issues in advance of other issues - impugned statements found to convey the imputations pleaded by the applicant and found to be defamatory - whether the impugned statements were made on an occasion of qualified privilege as a reply to attacks - whether the impugned statements were a fair report of proceedings or a fair summary of a public document pursuant to ss 28 and 29 of the Uniform Defamation Acts - whether a contextual imputation was conveyed - defence of qualified privilege upheld - fair report and fair summary defences rejected - the pleaded contextual imputation found to have been conveyed.
WHITE J - 22 October 2021

Defamation ; Damages
Nassif v Seven Network (Operations) Ltd [2021] FCA 1286
DEFAMATION - where numerous defamatory imputations alleged - where publication complained of was a news story broadcast by Channel Seven on "Seven News" in Sydney - consideration of whether the alleged imputations were conveyed by the publications - whether the imputations carried a defamatory meaning - where defence of contextual truth pleaded pursuant to s 26 of the Defamation Act 2005 (NSW) - where defence of fair summary of a public document pleaded pursuant to s 28 of the Defamation Act - where defence of honest opinion pleaded pursuant to s 31 of the Defamation Act Held: application granted - imputations carried a defamatory meaning - defamatory imputations conveyed by the publications - no pleaded defence made out DAMAGES - where first applicant claims for damage to reputation and hurt feelings - where first applicant claims aggravated damages - where second applicant claims for damages for vindication of and harm to business reputation - where second applicant a not-for-profit charity - where second applicant has not shown any economic loss or probability of economic loss
ABRAHAM J - 22 October 2021

Corporations Law
1300 Smiles Limited, in the matter of 1300 Smiles Limited [2021] FCA 1287
CORPORATIONS - members' scheme of arrangement - application under ss 411 and 1319 of the Corporations Act 2001 (Cth) for orders convening a meeting of members to consider approving the scheme - where directors of target company may declare and pay a special dividend before the scheme implementation date - where separate scheme meetings for two shareholder classes - where scheme is conditional on founder shareholders making election to retain a portion of shares in target company - where holding company of bidder may acquire the retained portion of target shares within a specified time period in consideration for shares in holding company - where break fee slightly greater than 1% guidance - application granted
FARRELL J - 12 October 2021

Migration
Doves v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1281
MIGRATION - where applicant's visa mandatorily cancelled under s 501 of the Migration Act 1958 (Cth) - where applicant has lengthy criminal history in Australia - risk to the Australian community posed by applicant should applicant reoffend - whether in considering the risk the Tribunal was required to have regard to, cumulatively, the nature of the harm to the Australia community - whether Tribunal required to make specific findings, rather than general findings, about nature of harm and likelihood of reoffending for each different type of offence
COLLIER J - 22 OCTOBER 2021

Consumer Law
Australian Competition and Consumer Commission v AA Machinery Pty Ltd [2021] FCA 1293
CONSUMER LAW - admitted misleading or deceptive conduct and false or misleading representations in contravention of ss 18 and 29(1)(j) and (m) of the Australian Consumer Law - application for a pecuniary penalty, consumer redress orders, injunctions and adverse publicity order - principles relevant to assessment of appropriate penalty and granting of consumer redress orders, injunctions and adverse publicity order
MURPHY J - 22 OCTOBER 2021

Migration
RJFB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1284
MIGRATION - application for judicial review of the decision of the Administrative Appeals Tribunal to affirm the Minister's delegate's decision not to revoke the cancellation of the applicant's visa - whether the Tribunal was bound to conform with the findings made by the District Court of Queensland in sentencing and re-sentencing the applicant - consideration of HZCP v Minister for Immigration and Border Protection (2018) 78 AAR 325 Held: the Tribunal was not bound by the assessment of the District Court MIGRATION - application for judicial review - where the Tribunal determined the applicant was owed non-refoulement obligations by Australia - whether paragraph 14.1 of Ministerial Direction No. 79 is inconsistent with s 197C of the Migration Act 1958 (Cth) - consideration of WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 - consideration of Commonwealth v AJL20 (2021) 95 ALJR 567 - held: no inconsistency between the Ministerial Direction and Migration Act - application dismissed
LOGAN J - 22 OCTOBER 2021

Practice and Procedure ; Industrial Law
Australian Building and Construction Commissioner v O'Halloran [2021] FCAFC 185
PRACTICE AND PROCEDURE - application for leave to appeal - civil penalty proceedings - where decision of primary judge is interlocutory in nature - where grant of leave would result in delay of the proceedings - where applicant Commissioner could have raised issue in respect of which leave to appeal was sought at earlier case management hearing - where issue raised by Commissioner only at commencement of trail Held: application for leave to appeal dismissed PRACTICE AND PROCEDURE - application for leave to appeal - civil penalty proceedings - whether the appeal has merit - where individual respondents claimed and reserved in defence right to claim privilege against self-exposure to civil penalties and denied each allegation in the Commissioner's statement of claim - where primary judge ordered that individual respondents electing to waive the privilege were at liberty to file and serve amended defence at close of the Commissioner's case - consideration of Australian Securities and Investments Commission v Mining Projects Group Limited (2007) 164 FCR 32 - consideration of Inland Revenue Commissioners v Jackson [1960] 2 WLR 873
LOGAN, KERR AND WIGNEY JJ - 22 October 2021

Corporations Law
Youfoodz Holdings Limited, in the matter of Youfoodz Holdings Limited (No 2) [2021] FCA 1288
CORPORATIONS - scheme of arrangement - second Court hearing - orders sought under ss 411(4)(b) of the Corporations Act 2001 (Cth) for approval of scheme - orders sought under s 411(12) for exemption from compliance with s 411(11) - orders made
MIDDLETON J - 13 October 2021

Human Rights
Joy v UGL Operations and Maintenance Pty Limited [2021] FCA 1282
HUMAN RIGHTS - application for summary dismissal and strike out of parts of statement of claim - claim of racial discrimination pursuant to ss 9, 15 and 18A of the Racial Discrimination Act 1975 (Cth) - whether certain allegations disclose no reasonable cause of action - whether certain allegations are scandalous, evasive or ambiguous
MCKERRACHER J - 21 OCTOBER 2021

Costs ; Private International Law
Karpik v Carnival plc (The Ruby Princess) (Stay Application Costs) [2021] FCA 1290
COSTS - application for costs of interlocutory application to be payable forthwith - general rule that costs of an interlocutory application should not be taxed until the proceeding is finished - whether any reason to depart from the general rule - application refused
STEWART J - 21 OCTOBER 2021

Practice and Procedure ; Corporations Law
Lanzer v Australian Broadcasting Corporation [2021] FCA 1283
PRACTICE AND PROCEDURE - application for interlocutory injunction - allegation that first respondent has contravened or threatens to contravene s 182(2) or s 183(2) of the Corporations Act 2001 (Cth) by knowingly inducing a contravention of s 182(1) or s 183(1) by the applicants' former employees - whether first respondent has induced or procured or threatens to induce or procure a breach of contract by such employees - whether applicants have demonstrated prima facie case for relief sought - no prima facie case made out - application for interlocutory relief dismissed
NICHOLAS J - 21 October 2021

Costs ; Insurance
AAI Limited trading as Vero Insurance v Technology Swiss Pty Ltd (No 2) [2021] FCAFC 183
COSTS - appeal and cross-appeal indivisible - appeal and cross-appeal dismissed - offer of compromise -- offer not made by respondent/cross-appellant in capacity only of respondent - offer made by respondent/cross-appellant also in capacity of cross-appellant in cross-appeal - offer ambiguous - not unreasonable for appellant/cross-respondent not to accept offer - no order as to costs of appeal and cross-appeal
PERRAM, JAGOT AND DERRINGTON JJ - 21 OCTOBER 2021

Practice and Procedure ; Industrial Law
National Tertiary Education Industry Union v University of Sydney (No 2) [2021] FCAFC 184
PRACTICE AND PROCEDURE -- remittal of matter -- identification of remaining issues for determination of liability -- basis of remittal
ALLSOP CJ, JAGOT AND RANGIAH JJ - 21 OCTOBER 2021

Migration
RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1273
MIGRATION - applicant convicted of many offences over significant period - cancellation of visa on character grounds - application to delegate of minister for revocation of cancellation decision - application to Administrative Appeals Tribunal for review of delegate's decision - judicial review of AAT decision - application for an extension of time to apply for judicial review - extension of time granted - whether AAT required to consider the prospect of the applicant facing prolonged or indefinite detention - application dismissed
SNADEN J - 21 OCTOBER 2021

Migration
AJN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1277
MIGRATION - appeal from Federal Circuit Court dismissing an application for judicial review of the Immigration Assessment Authority's (Authority) decision - where Minister admits breach of s 473CD(1)(c) of the Migration Act 1958 (Cth) - where primary judge found breach was not material - jurisdictional error established - appeal allowed
ABRAHAM J - 20 October 2021

Practice and Procedure ; Consumer Law
Australian Competition and Consumer Commission v NQCranes Pty Ltd [2021] FCA 1270
PRACTICE AND PROCEDURE - application to strike out pleadings under r 16.21 of the Federal Court Rules 2011 (Cth) and/or s 37P of the Federal Court of Australia Act 1976 (Cth) - whether pleadings fail to disclose a reasonable cause of action - whether pleadings likely to cause prejudice, embarrassment or delay - whether pleadings are otherwise an abuse or process - application dismissed COMPETITION - alleged contravention of cartel provisions of the Competition and Consumer Act 2010 (Cth) (CCA) - consideration of meaning of "give effect to" under s 4 of the CCA and whether certain conduct, as pleaded, is capable of constituting "giving effect to" a "contract, arrangement or understanding" containing a cartel provision - consideration of whether a "contract, arrangement or understanding" is capable of being established on the facts as pleaded - Trade Practices Commission v Allied Mills Industries Pty Ltd (1980) 32 ALR 570
ABRAHAM J - 20 October 2021

Native Title
Lewis on behalf of the Warrabinga-Wiradjuri People #7 v Attorney General of New South Wales (No 2) [2021] FCA 1269
NATIVE TITLE - interlocutory application by two Indigenous respondents seeking removal of another Indigenous respondent in s 61 proceeding - interlocutory application disputes apical ancestry of Indigenous respondent - whether Indigenous respondent has prima facie native title rights and interests in claim area - whether in interests of justice to remove Indigenous respondent - native title determination an order in rem - where Indigenous respondent played active role in proceedings and mediation and has not caused delay - interlocutory application dismissed NATIVE TITLE - interlocutory application by two Indigenous respondents to be joined to Court ordered mediation - where Indigenous respondents were previously parties to Court ordered mediation but voluntarily withdrew - whether joinder to mediation would be inimical to purpose of mediation under s 86B(5) of the Native Title Act 1993 (Cth) - interlocutory application upheld
GRIFFITHS J - 20 October 2021

Practice and Procedure ; Legal Practitioners
Hillier v Martin (No 8) [2021] FCA 1272
PRACTICE AND PROCEDURE - party in default of orders requiring the filing of a defence -defaulting party failing to apply for extensions of time before previous deadlines passed - defaulting party subject to a self-executing order limiting defaulting party's participation in the trial if no application for an extension of time made in accordance with an order of the Court - no adequate explanation for past defaults - application of s 37M(3) of the Federal Court of Australia Act 1976 (Cth) - consideration of the outcome that best promotes the overarching purpose of the Court's civil practice and procedure provisions - consideration of the interests affected by the Court's orders in circumstances where the defaulting party is a trustee company - defaulting party denied relief PRACTICE AND PROCEDURE - application for an order restraining a person from acting as a company's lawyer in a proceeding - person enrolled as a practitioner of a court of a State - person not holding a current practising certificate - meaning of the word "lawyer" as defined in s 4 of the Federal Court of Australia Act 1976 (Cth) - person having personal pecuniary interest in the outcome of the proceedings - person having conflict of professional duties and personal interests - application allowed
CHARLESWORTH J - 19 OCTOBER 2021

Migration
Babajee v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1280
MIGRATION - application for extension of time and leave to appeal from Federal Circuit Court - refusal to grant Skilled (Provisional) (Class VC) visa - application for extension of time and leave to appeal refused
O'CALLAGHAN J - 20 OCTOBER 2021

Bankruptcy
Westpac Banking Corporation v State of Western Australia [2021] FCA 1264
BANKRUPTCY - application by mortgagee for order vesting bankrupts' property in mortgagee - property disclaimed by trustee in bankruptcy - mortgagee seeks to utilise powers as if mortgagee in possession - just and equitable that property be vested in mortgagee
JACKSON J - 20 OCTOBER 2021

Practice and Procedure ; Representative proceedings
Francis (Trustee) v Oculus Accounting Pty Ltd (No 2) [2021] FCA 1275
PRACTICE AND PROCEDURE - application under s 33V of Federal Court of Australia Act 1976 (Cth) for approval to discontinue representative proceeding - discontinuance to apparent benefit of representative parties and legal representatives only - terms on which proceedings to be discontinued adverse to interests of other group members - application dismissed PRACTICE AND PROCEDURE - application under s 33N for order that proceeding no longer continue as representative proceeding under Pt IVA - whether Court should move on its own motion - no reason identified why inappropriate that claims be pursued by means of representative proceeding - application dismissed
DERRINGTON J - 20 October 2021

Corporations Law
Giraud v Albarran (liquidator), in the matter of Digital Infrastructure Pty Ltd (in liq) [2021] FCA 1274
CORPORATIONS - public examinations - order to produce documents pursuant to r 30.34 of the Federal Court Rules 2011 (Cth) otherwise than at hearing - operation of r 30.34 together with s 597(9) of the Corporations Act 2001 (Cth)
DERRINGTON J - 20 October 2021

Migration
CLM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1276
MIGRATION - application for protection visa - citizen of Bangladesh - no relevant political association - no error in decision of Federal Circuit Court - appeal dismissed
DERRINGTON J - 20 October 2021

Corporations Law
Crafted Furniture Pty Ltd v Rugged Luxe Pty Ltd (Administrators Appointed) [2021] FCA 1278
CORPORATIONS - appointment of provisional liquidators pending winding-up - where voluntary administrators already appointed to the company - only eight days until the winding-up application hearing - where the company has limited assets - where administrators control the assets - application dismissed
STEWART J - 19 October 2021

Corporations Law
Mercedes-Benz Financial Services Australia Pty Limited v Daimler Truck Financial Services Australia Pty Limited, in the matter of Mercedes-Benz Financial Services Australia Pty Limited [2021] FCA 1279
CORPORATIONS - scheme of arrangement - first court hearing - application under s 411(1) of the Corporations Act 2001 (Cth) to convene a meeting to consider a proposed scheme of arrangement - proposed reconstruction of Pt 5.1 bodies under s 413 Corporations Act - whether the scheme is fair and reasonable in light of the impact on external creditors and employees of the transferor company
MCKERRACHER J - 14 OCTOBER 2021

Corporations Law
Mainstream Group Holdings Limited, in the matter of Mainstream Group Holdings Limited (Scheme Approval) [2021] FCA 1271
CORPORATIONS - members' scheme of arrangement - second court hearing - application under Corporations Act 2001 (Cth) s 411 for orders approving scheme
PERRAM J - 15 October 2021

Consumer Law
Australian Securities and Investments Commission v Colonial First State Investments Limited [2021] FCA 1268
CONSUMER LAW - admitted false or misleading representations in contravention of ss 12DB(1)(h) and (i) of the Australian Securities and Investment Commission Act 2001 (Cth) - application for pecuniary penalties and adverse publicity order - principles relevant to assessment of appropriate penalty - substantial penalty appropriate - adverse publicity order made
MURPHY J - 19 OCTOBER 2021

Practice and Procedure ; Consumer Law
Australian Competition and Consumer Commission v IVF Finance Pty Limited [2021] FCA 1266
PRACTICE AND PROCEDURE - interim injunction - application by the Australian Competition and Consumer Commission for interim injunction (until the hearing and determination of application for interlocutory injunction) to restrain the first respondent from acquiring an IVF business from the second respondent - where the Commission contended that the acquisition would contravene s 50 of the Competition and Consumer Act 2010 (Cth) - whether prima facie case established - whether balance of convenience favoured grant of injunction - interim injunction granted
MOSHINSKY J - 14 OCTOBER 2021

Practice and Procedure ; Criminal Law
Mentink v Commissioner for Northern Territory Police [2021] FCA 1257
PRACTICE AND PROCEDURE - interlocutory application for disqualification of judge - where judge had decided prior cases involving the applicant - whether apprehended bias - no apprehended bias established - application dismissed
LOGAN J - 27 AUGUST 2021

Costs ; Industrial Law
Parker v HG Innovations Pty Ltd (No 2) [2021] FCA 1258
COSTS - application for costs by respondents - where s 570 of the Fair Work Act 2009 (Cth) applies - whether the proceedings were instituted vexatiously or without reasonable cause - where substantive appeal filed prior to delivery of WorkPac Pty Ltd v Rossato (2021) 95 ALJR 681 - whether respondents made an offer to compromise during proceedings - where the offer did not reflect the appellant's prospects of success - application dismissed
LOGAN J - 10 SEPTEMBER 2021

Migration
Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1256
MIGRATION - appeal from the decision of the Federal Circuit Court to affirm the decision of the Administrative Appeals Tribunal (Tribunal) - where Tribunal had made certain credibility findings of the appellant - where decision of Tribunal was based on a state of satisfaction - whether the findings of the Tribunal were irrational, illogical or unreasonable - where Tribunal had made an error in misstating the relevant year that the appellant had attended a college with a named individual - held: the error was not material and other factors were capable of supporting the Tribunal's conclusion - whether s 359A of the Migration Act 1958 (Cth) had been complied with -where transcript reveals allegations were put to appellant - held: non-compliance was not demonstrated - appeal dismissed
LOGAN J - 25 AUGUST 2021

Practice and Procedure ; Industrial Law
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) (No 3) [2021] FCA 1267
PRACTICE AND PROCEDURE - relief in the form of pecuniary penalties granted - application for stay in respect of order pending appeal - notice of appeal contemplates partial challenge of court's judgment - portion of pecuniary penalties to remain payable irrespective of outcome of appeal - whether or two what extent orders might be stayed - applicant consents to partial stay - partial stay granted
SNADEN J - 18 OCTOBER 2021

Practice and Procedure ; Corporations Law
Frigger v Trenfield (No 2) [2021] FCA 1255
PRACTICE AND PROCEDURE - application for adjournment of the applicants' summary judgment application and substantive annulment application - were proceedings concerned whether s 477(2B) of the Corporations Act 2001 (Cth) had been complied with - where West Australian Supreme Court already seized with application relevant to that issue - where adjournment not opposed by parties - application granted
LOGAN J - 18 AUGUST 2021

Costs ; Health
Karmakar v Minister for Health (No 3) [2021] FCA 1254
COSTS - application for costs by active party respondents - where respondents entitled to costs by virtue of s 64 of the Judiciary Act 1903 (Cth) - whether unsuccessful substantive application concerned public interest - where there is no evidence that the applicant acted in a representative capacity - where applicant had made submission on a constitutional issue - held that public interest in case did not merit a departure from usual costs order COSTS - where respondents had brought a summary judgment and related strikeout application - where applications were withdrawn after further amendment to the statement of claim - held that no order as to costs in respect of the summary judgment and related strikeout application was appropriate
LOGAN J - 18 AUGUST 2021

Industrial Law ; High Court and Federal Judiciary
Menon, in the matter of an election for offices of the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2021] FCA 1263
INDUSTRIAL LAW - Inquiry into an election for offices in an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth) - election for offices in the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union which concluded in July 2021 - where the applicant alleges irregularities - whether the exclusion of certain members from the roll of members eligible to vote in the elections constituted an irregularity - whether the rejection of certain candidates' nominations for office constituted an irregularity - construction of the Rules of the Union and Rules of the Manufacturing Division of the Union - effect of purported resignations from a District of the Manufacturing Division - effect of purported resignation from the Manufacturing Division - no irregularity found. HIGH COURT AND FEDERAL COURT - application and effect of a declaration made in another proceeding -whether reasons for judgment are available in the construction of a court's declaration - in the circumstances of this case reasons for judgment so available.
WHEELAHAN J - 18 October 2021

Migration
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
MIGRATION - application for review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the Minister to cancel the Applicant's visa - where decision to cancel Applicant's visa was a mandatory cancellation resulting from a criminal conviction and sentence of imprisonment - whether the terms of cl 14.4 of Direction No 79, properly construed, exclude the decision maker from having to take into account under that clause the "impact" on a victim of a decision to revoke a visa cancellation where the evidence of the victim is that the impact of such a decision on the victim will be positive - DKN20 v Minister for Immigration, Citizenship and Migrant Services and Multicultural Affairs [2021] FCAFC distinguished - considerations to be taken into account by a decision maker pursuant to cl 14.4 of Direction No 79 may weigh either in favour of, or against whether to revoke a mandatory cancellation of a visa - information provided by a victim must be taken into account whether adverse to or consistent with the interest of the offender - application granted and review remitted
KERR J - 18 OCTOBER 2021

Intellectual Property
Vald Performance Pty Ltd v Kangatech Pty Ltd (No 3) [2021] FCA 1265
INTELLECTUAL PROPERTY - consideration of procedural orders in relation to patent proceedings having regard to the earlier procedural history of the matter
GREENWOOD J - 18 October 2021

Native Title ; Practice and Procedure
District Council of Streaky Bay v Wilson [2021] FCAFC 181
NATIVE TITLE - appeal from determination of native title - whether the construction of public works in the nature of major earthworks - whether construction in time or by validation sufficient to extinguish native title in relevant parts of the land - in the alternative whether a lease had been granted which constituted a previous exclusive possession act which extinguished native title in the land PRACTICE AND PROCEDURE - whether Court could receive fresh evidence on appeal - whether new evidence would have led to a different result at trial - whether appellant exercised reasonable diligence to be made aware of evidence before trial - futher, where leave sought to raise new ground on appeal - where question live at trial - whether inadvertence can explain a failure at trial to nominate the correct provision
MORTIMER, PERRY AND SC DERRINGTON JJ - 18 October 2021

Practice and Procedure ; Corporations Law
Oberix Group Pty Ltd v Atkinson [2021] FCA 1259
PRACTICE AND PROCEDURE - application to transfer proceedings from the Western Australian Registry to the Queensland Registry - application made prematurely - relevance of national character of Federal Court of Australia - application dismissed
JACKSON J - 14 OCTOBER 2021