Browse Federal Court Judgments

Published in the last week

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


Social Security ; Practice and Procedure ; High Court and Federal Judiciary
Frugtniet v Secretary, Department of Social Services [2021] FCAFC 127
SOCIAL SECURITY - appeal from the primary judge's order dismissing an appeal from a decision of the Tribunal which affirmed a decision of a delegate of the Secretary to apply an amount of family tax benefit due to the appellant in partial discharge of the appellant's indebtedness to the Commonwealth - where the appellant's entitlement to family tax benefit arose from the Secretary's failure to give the required notice to the appellant prior to the recovery of overpayments of that benefit - where the appellant's indebtedness to the Commonwealth arose from his receipt of parenting payments to which he was not entitled under the Social Security Act 1991 (Cth) - whether s 84A of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (Administration Act) authorised the set off of the appellant's entitlement against his debt to the Commonwealth - whether the primary judge erred in failing to find that s 84A did not allow such set off - in the circumstances, s 84A does authorise such set off - no error by the primary judge was demonstrated. SOCIAL SECURITY - whether the Secretary's decision to set off the appellant's entitlement against the debt was made for an improper purpose, namely because it was prevented by s 86 of the Administration Act as previously in force or because the invalid recovery of overpayments giving rise to the entitlement was not recoverable - whether the primary judge erred in failing to find an improper purpose - the decision was not for an improper purpose - no error by the primary judge was demonstrated. PRACTICE AND PROCEDURE - where the appellant submitted to the court post-hearing submissions and a proposed further amended notice of appeal without leave - whether the court should entertain such submissions and proposed notice of appeal - the submissions and proposed further amended notice of appeal should not be entertained. HIGH COURT AND FEDERAL COURT - application for recusal of a judge on the basis of apprehended bias - where the judge heard two other matters involving the appellant or the appellant's former spouse - in the circumstances, no basis for recusal.
O'CALLAGHAN, WHEELAHAN AND SNADEN JJ - 30 July 2021


Practice and Procedure ; Defamation
Roberts-Smith v Fairfax Media Publications Pty Limited (No 21) [2021] FCA 893
PRACTICE AND PROCEDURE -- defamation proceedings -- adjournment of trial -- where respondents have commenced their case -- where an outbreak of COVID-19 has resulted in interstate border closures and major restrictions being imposed in New South Wales -- effects of COVID-19 pandemic on in-person hearings and witnesses' ability to travel -- trial adjourned
BESANKO J - 2 August 2021


Industrial Law ; Practice and Procedure
NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883
INDUSTRIAL LAW - enterprise agreement - continued operation after nominal expiry date - whether clause with operation "during the life of the agreement" refers to the nominal expiry date - or whether that clause continues to operate after nominal expiry INDUSTRIAL LAW - power of employer to give instructions - the making of extra claims PRACTICE AND PROCEDURE - attempt to re-litigate dispute resolved by Fair Work Commission - whether abuse of process PRACTICE AND PROCEDURE - declaratory relief - resolution of hypothetical questions - declaratory relief hypothetical both by reason of uncertainty as to regulatory framework and factual uncertainty - whether utility - form of declarations sought - relief refused
FLICK J - 3 August 2021


Evidence
Aravanis (Trustee) v Twin Investors Pty Ltd, in the matter of the Bankrupt Estate of Kapp (Admissibility Ruling) [2021] FCA 899
EVIDENCE - where evidence obtained by Official Receiver under Bankruptcy Act 1966 (Cth) s 77C - where Applicants tendered transcript of Official Receiver's examination - whether transcript admissible under Bankruptcy Act 1966 (Cth) s 77C(3) and s 255(2) despite Evidence Act 1995 (Cth)
PERRAM J - 3 August 2021


Corporations Law
Australian Securities and Investments Commission v RI Advice Group Pty Ltd (No 2) [2021] FCA 877
CORPORATIONS LAW - financial services and markets - best interests obligations - responsibilities of holder of Australian financial services licence - obligation of licensee to take reasonable steps to ensure that its representatives comply with the best interests obligations - obligation of licensee to do all things necessary to ensure that the financial services covered by the licence are provided efficiently, honestly and fairly - whether the first defendant, a licensee, contravened these obligations
MOSHINSKY J - 2 AUGUST 2021


Migration
Hillis v Minister for Home Affairs [2021] FCA 892
MIGRATION - where prerogative relief sought in respect of cancellation of applicant's visa - whether Minister's discretion to cancel visa was a lawful exercise of jurisdiction - whether serious errors made in Minister's reasoning - whether Minister's discretion was unlawful because it was unreasonable - where decision illogical and irrational - where decision based on factual findings not open on the evidence - writs of prohibition and mandamus granted - respondent to pay applicant's costs of the application
WIGNEY J - 3 aUGUST 2021


Practice and Procedure ; Intellectual Property
Skelin v Self Care Corporation Pty Ltd [2021] FCA 888
PRACTICE AND PROCEDURE - applications to stay hearing of Federal Circuit Court proceedings - where applicant seeks leave to appeal from decision of Federal Circuit Court judge granting leave to amend a pleading - where applicant seeks leave to appeal from decision of Federal Circuit Court judge rejecting application to recuse herself on the basis of an apprehension of bias - where Federal Circuit Court proceedings due to commence imminently - principles relevant to grant of a stay - balance of convenience - applications dismissed
BURLEY J - 29 JULY 2021


Costs ; Corporations Law
5G Developments Pty Ltd (in liq) v Massie, in the matter of 5G Developments Pty Ltd (in liq) (No 2) [2021] FCA 887
COSTS - interlocutory application - whether the costs should follow the event or be costs in the cause in the main case - whether taxation and payment of costs should await the outcome in the main case
STEWART J - 2 August 2021


Corporations Law
Chapel of Angels Pty Ltd v Hennessy [2021] FCA 875
CORPORATIONS LAW - winding up - applications to set aside statutory demands - whether existence of judgment debts capable of genuine dispute - genuine dispute not otherwise shown to exist - defect in demand would not cause substantial injustice - no other grounds for setting aside statutory demands - applications dismissed COSTS - indemnity costs - plaintiff continued applications after being made aware of absence of any relevantly sustainable grounds - prior history of abuse of process - application either high-handed or oppressive - order made for indemnity costs
DERRINGTON J - 2 August 2021


Corporations Law
Australian Securities and Investments Commission v Marco (No 8) [2021] FCA 885
CORPORATIONS - application by Court - appointed receivers for interim payment of remuneration pending determination by a registrar - fixing of an appropriate percentage for interim payment - whether interim payment is subject to appropriate safeguards
MCKERRACHER J - 14 July 2021


Practice and Procedure ; Discovery
BCI Media Group Pty Ltd v CoreLogic Australia Pty Ltd (No 3) [2021] FCA 884
PRACTICE AND PROCEDURE - application to extend time for prospective respondents to comply with preliminary discovery orders made pursuant to r 7.23 of the Federal Court Rules 2011 (Cth) - application to clarify scope of preliminary discovery orders - whether discovery that has been given is sufficient - whether the prospective respondents' list of documents complies with rr 20.17 and 20.22
YATES J - 2 August 2021


Bankruptcy
Yit (Trustee), in the matter of Lee (Bankrupt) v Lee [2021] FCA 886
BANKRUPTCY - application for recognition of foreign proceeding as a foreign main proceeding pursuant to Cross-Border Insolvency Act 2008 (Cth) and Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law - Singapore bankruptcy proceeding - foreign bankrupt identified as owning asset in Australia - centre of main interest in Singapore where bankrupt has habitual residence - application allowed BANKRUPTCY - ancillary relief sought under Art 21 of Model Law - order made that administration and realisation of bankrupt's assets located in Australia be entrusted to foreign representative - order made that all powers normally available to trustee in bankruptcy under Bankruptcy Act 1966 (Cth) be made available to foreign representative
DERRINGTON J - 9 July 2021


Practice and Procedure ; Corporations Law
Ambrose v Badcock [2021] FCA 881
PRACTICE AND PROCEDURE - application for an order that interim relief be granted on an ex parte basis - application requiring consideration to be given to likely cooperativeness of the absent respondent - presiding judge having prior dealings with the absent respondent in prior litigation - combination of facts and circumstances giving rise to an apprehension of bias
CHARLESWORTH J - 8 JULY 2021


Native Title
Dann on behalf of the Wajarri Yamatji People (Part D) v State of Western Australia [2021] FCA 867
NATIVE TITLE - consent determination, requirements of ss 87 and 94A of the Native Title Act 1993 (Cth) satisfied - appropriate to make orders
GRIFFITHS J - 29 July 2021


Native Title
Hamlett on behalf of the Wajarri Yamatji People v State of Western Australia (No 3) [2021] FCA 869
NATIVE TITLE - interlocutory application to amend conditional determinations of native title - addition of three apical ancestors - correction of typographical error - application granted
GRIFFITHS J - 29 July 2021


Native Title
Hamlett on behalf of the Wajarri Yamatji People (Part E) v State of Western Australia (No 2) [2021] FCA 868
NATIVE TITLE - consent determination - requirements of ss 87 and 94A of the Native Title Act 1993 (Cth) satisfied - appropriate to make orders
GRIFFITHS J - 29 July 2021


Patents
Thaler v Commissioner of Patents [2021] FCA 879
PATENTS - artificial intelligence - machine learning - artificial neural networks - invention produced by a computer - semi-autonomous systems - concept of inventor - whether a machine can be an inventor - whether only a human can invent - device for the autonomous boot-strapping of unified sentience (DABUS) - invention created by DABUS in the form of containers, devices and methods for attracting enhanced attention - patent application - nature of inventor as distinct from patent applicant - concept of "inventor" under Patents Act 1990 (Cth) - validity of patent application where inventor a machine - relevance of human-ness of inventor to patent grant - whether decision to reject patent application valid
BEACH J - 30 JULY 2021


Industrial Law ; Evidence
Transport Workers' Union of Australia v Qantas Airways Limited [2021] FCA 873
EMPLOYMENT LAW - adverse action - decision of Qantas to outsource ground handling operations at ten Australian airports in the midst of the COVID-19 pandemic - whether substantial and operative reason for outsourcing was for a prohibited reason - ss 340 and 346 of the Fair Work Act 2009 (Cth) - consideration of the "reverse onus" - consideration of the legal principles applicable to corporate decision making - failure of Qantas to discharge onus in relation to one prohibited reason - balance of relief either not pressed or dismissed - exact form of declaration to be determined EVIDENCE - consideration of the principle in Browne v Dunn (1893) 6 R. 67
LEE J - 30 July 2021


Migration
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
MIGRATION - appeal from order to set aside decision of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant the respondent a protection visa - Chinese national alleged to have defrauded banks or other monetary institutions of loans - Interpol red notice issued by Chinese government in relation to the respondent - whether primary judge erred in holding that the Minister misconstrued or misapplied s 501(6)(h) of the Migration Act 1958 (Cth) - whether it was reasonable to infer from the Interpol red notice that the respondent would present a risk to the Australian community or a segment of it - consideration of the meaning of "risk" - conflicting first instance authority - relevance of country information concerning Chinese criminal justice system - Minister's reasons unreasonable on both lines of authority - appeal dismissed
WIGNEY, LEE AND WHEELAHAN JJ - 30 July 2021


Migration
FUD18 v Minister for Home Affairs [2021] FCAFC 132
MIGRATION - appeal from orders of a single judge declining to make an order restraining the Minister from refusing to grant the appellant a visa on the basis of character grounds under s 501(6)(h) of the Migration Act 1958 (Cth) - Vietnamese national alleged to have deliberately acted against national regulations - Interpol red notice issued by the Vietnamese government in relation to appellant - where prohibition sought is pre-emptory in nature - consideration of the discretionary nature of constitutional writs - preferable that the administrative decision-making process run its natural course - relief sought refused in the exercise of discretion - appeal dismissed
WIGNEY, LEE AND WHEELAHAN JJ - 30 July 2021


Practice and Procedure ; Defamation
Roberts-Smith v Fairfax Media Publications Pty Limited (No 20) [2021] FCA 824
PRACTICE AND PROCEDURE - adjournment of trial on 29 June 2021 due to restrictions following an outbreak of COVID-19 - application by respondents for trial to be resumed for limited purpose of hearing evidence from Afghan witnesses due to give evidence by audio-visual link from Kabul, Afghanistan - deterioration in security situation in Afghanistan - conditions in Kabul - importance of evidence to respondents' case - effect of Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021 - substantial risk that evidence of Afghan witnesses will become unavailable if not taken soon - application granted
Besanko J - 19 July 2021


Practice and Procedure ; Defamation
Porter v Australian Broadcasting Corporation [2021] FCA 863
PRACTICE AND PROCEDURE - where parties settled proceeding - where interim suppression and non-publication orders were made - where parties proposed consent orders including order to permanently remove unredacted pleadings from Court file under r 16.21(2) of Federal Court Rules 2011 (Cth) (Court Rules) - where such order is important aspect of compromise between parties - where such order would prevent public from inspecting unredacted documents under r 2.32(2) - principle of public interest in open justice fundamental not absolute - Court to facilitate just resolution of disputes and give effect to contractual bargains between parties - unredacted documents to be removed from Court file on ground that it is necessary to prevent prejudice to proper administration of justice. PRACTICE AND PROCEDURE - interaction of Federal Court of Australia Act 1976 (Cth) (Court Act) and Court Rules - Court's powers to make suppression and non-publication orders under s 37AF (on grounds in s 37AG(1) and under limits imposed by ss 37AJ and 37AH) and to remove documents from Court file under rr 2.28 and 2.29 - operation of r 2.32 and timing of non-party inspection right. PRACTICE AND PROCEDURE - consent orders and orders made in chambers - when orders may be made in chambers and not in open court.
JAGOT J - 30 July 2021


Practice and Procedure ; Native Title
Quall v Native Title Registrar [2021] FCA 865
PRACTICE AND PROCEDURE - application for judicial review of registration decision by delegate of Native Title Registrar under s 24CK of the Native Title Act 1993 (Cth) - two interlocutory applications for summary judgment and/or strike out - where amended originating application discloses no grounds of review or orders sought - mere factual allegations going to merits of decision - self-represented litigant afforded opportunity to remedy deficiencies - summary judgment entered
GRIFFITHS J - 29 July 2021


Migration
FBF19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 864
MIGRATION - appeal from decision of Federal Circuit Court dismissing application for judicial review of a decision of the Immigration Assessment Authority (IAA) - whether IAA failed to determine application for Safe Haven Enterprise visa according to law - unparticularised ground of appeal - challenge to merits of decision - no appealable error
GRIFFITHS J - 29 July 2021


Insurance
Asteron Life & Superannuation Limited, in the Matter of Asteron Life & Superannuation Limited (No 2) [2021] FCA 880
INSURANCE - application for transfer of life insurance business - application for variation of dispensation orders due to COVID-19 restrictions
ALLSOP CJ - 29 JULY 2021


Corporations Law
Wameja Limited, in the matter of Wameja Limited [2021] FCA 878
CORPORATIONS - members' scheme of arrangement - application under ss 411(1) and 1319 of the Corporations Act 2001 (Cth) for orders convening a meeting of members to consider approving the scheme - where directors made unanimous recommendation to vote in favour of scheme - where two directors would receive consideration for options which would lapse before the effective date of the scheme - where bidder has no assets - where scheme implementation agreement and amending deeds removed from scheme booklet - application granted
FARRELL J - 27 July 2021


Practice and Procedure ; Industrial Law
Fair Work Ombudsman v Doll House Training Pty Ltd (r 4.01 Application) [2021] FCA 882
PRACTICE AND PROCEDURE - application for dispensation with Federal Court Rules 2011 (Cth) r 4.01(2) requiring corporation to be represented by lawyer - where proposed representative has been referred to Legal Services Commission for acting as 'litigation process consultant'
PERRAM J - 29 JULY 2021


Migration
EWV20 as litigation representative for AFF20 v Minister for Home Affairs (No 3) [2021] FCA 866
MIGRATION - visa cancellation decision under s 501(3)(b) of the Migration Act 1958 (Cth) - whether Minister failed to give proper, genuine and realistic consideration - fact-dependent enquiry - where Minister provided with relevant materials two days before making decision - whether Jones v Dunkel applies to Minister's failure to give evidence - where Minister answered interrogatories - application dismissed
GRIFFITHS J - 29 July 2021


Statutes
Electoral Commissioner of the Australian Electoral Commission v Futter [2021] FCA 876
STATUTES - civil penalty proceedings brought pursuant to the Commonwealth Electoral Act 1918 (Cth) - where respondent was a candidate in a federal election - where respondent failed to make disclosures as required by s 304(2) and s 309(2) of the Electoral Act - where respondent did not take any active steps in proceeding - penalties imposed
GRIFFITHS J - 29 July 2021


Migration
Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 130
MIGRATION - appeal from dismissal of judicial review application of two Administrative Appeals Tribunal (AAT) decisions affirming cancellation of first appellant's visa under s 109 of Migration Act 1958 (Cth) and second appellant's visa under s 140 - whether primary judge erred in holding no jurisdictional error in AAT finding that first appellant breached s 57 of Births, Deaths and Marriages Registration Act 1995 (NSW) (BDMR Act) - consideration of prescribed circumstance under s 109(1)(c) of Migration Act and reg 2.41(j) of Migration Regulations 1994 (Cth) - where non-biological parent of child recorded on birth certificate - meaning of "parent" in BDMR Act - where AAT failed to have regard to broad legal concept of parentage - whether error material - where prescribed circumstance is a mandatory relevant consideration for exercise of discretionary power - appealable error by primary judge in relation to both first and second AAT decisions - both AAT decisions set aside - review applications remitted to AAT for reconsideration MIGRATION - whether AAT made adverse credibility findings based on misunderstanding of s 104 of Migration Act - whether AAT had power to cancel second appellant's visa under s 140(2) of Migration Act
GRIFFITHS, LEE AND ABRAHAM JJ - 29 July 2021


Health Law ; Penalty
Secretary, Department of Health v Evolution Supplements Australia Pty Ltd (No 2) [2021] FCA 872
HEALTH LAW - where respondents have failed to participate in proceedings - where respondents advertised therapeutic goods that did not comply with the Therapeutic Goods Act 1989 (Cth) (TG Act) - where first respondent has contravened s 42DLB(1) of the TG Act - where the second respondent has contravened ss 42DX and 54B(3) of the TG Act PENALTY - amount of pecuniary penalty to be imposed pursuant to s 42Y of the TG Act - principles relevant to imposition of penalty
BURLEY J - 29 JULY 2021


Migration
FGS20 v Minister for Home Affairs [2021] FCA 874
MIGRATION - urgent application for interlocutory relief - application for summary dismissal - claim seeking order to provide administrative assistance and facilitation of evacuation of the second to sixth applicants from Afghanistan - first applicant was transferred from Christmas Island to Papua New Guinea then Australia for the temporary purpose of receiving medical treatment - first applicant remains in Australia - first applicant has made a written request for removal to Papua New Guinea - first applicant has sought in the Federal Circuit Court a declaration that his detention is unlawful and an order for his release - Federal Circuit Court judgment reserved and listed for delivery on 3 August 2021 - interlocutory relief refused - application for summary dismissal stood over
THAWLEY J - 23 JULY 2021


Consumer Law
Australian Competition and Consumer Commission v Lorna Jane Pty Ltd [2021] FCA 852
CONSUMER LAW - Australian Consumer Law -allegations of misleading or deceptive conduct under s 18 - allegations of false or misleading representations under s 29(1)(g) - allegations of conduct liable to mislead the public under s 33 - where company admitted liability - where knowledge of falsity not alleged - where declaratory, injunctive, penalty and other orders agreed between parties - where pecuniary penalty agreed - whether pecuniary penalty appropriate - orders made
RANGIAH J - 23 JULY 2021


Criminal Law
Booth v Biber [2021] FCA 871
CRIMINAL LAW - whether interim control should be made - whether requirements of s 104.4(1) of the schedule to the Criminal Code Act 1995 (Cth) satisfied - where proposed interim control order not opposed by respondent - interim control order made
NICHOLAS J - 29 July 2021


Corporations Law
Karellas Investments Pty Ltd v FW Projects Pty Limited (in liq) [2021] FCA 870
CORPORATIONS - Insolvency - Orders in relation to external administration - the plaintiff creditor seeks the appointment of a special purpose liquidator to conduct investigations into the examinable affairs of the defendant company - applicant / interested person seeks to be joined to the proceedings as a defendant under r 2.13(3) of the Federal Court (Corporations) Rules 2000 (Cth) - Alternatively, applicant / interested person seeks leave to be heard in the proceedings under r 2.13(1) of the Corporations Rules - whether leave ought to be granted - whether the joinder of the applicant / interested person is "necessary" - relationship between the power to join a party to a proceedings under r 2.13(3) and the power available to the Court under r 9.05 of the Federal Court Rules 2011 (Cth) - Held: successful in part - application for leave to be joined refused - interested person granted leave to be heard - reserve costs, leave to cross-examine and other procedural matters to the docket judge
CHEESEMAN J - 29 July 2021


Migration
BWY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 860
MIGRATION - appeal from Federal Circuit Court of Australia - where primary judge dismissed application for review of Immigration Assessment Authority ("Authority") decision - where Authority affirmed decision of delegate of Minister to refuse to grant protection visa - where new claims not before the delegate submitted to the Authority - whether Authority could consider new claims under s 473DD of the Migration Act 1958 (Cth) ("Act") - meaning of "consider" - where Authority not satisfied exceptional circumstances exist to justify considering new claims - whether Authority acted unreasonably by not seeking new information under s 473DC of the Act - whether alleged errors jurisdictional - jurisdictional error not established - appeal dismissed
SNADEN J - 29 JULY 2021


Trade Marks ; Competition Law ; Torts
PDP Capital Pty Ltd v Grasshopper Ventures Pty Ltd [2021] FCAFC 128
TRADE MARKS - infringement - whether Trade Marks Act 1995 (Cth) imposes liability for authorising infringement of a registered trade mark - no liability for authorising infringement TRADE MARKS - deceptive similarity - whether primary judge erred in evaluating deceptive similarity between trade marks - where primary judge considered circumstances of sale of goods bearing registered marks in deciding whether consumers would be caused to wonder whether alleged infringing goods emanated from the same source - whether error material - appeal against infringement findings dismissed TRADE MARKS - non-use applications - whether primary judge erred in removing trade marks from register with respect to certain goods for non-use - appeal allowed in part COMPETITION - misleading or deceptive conduct in contravention of Australian Consumer Law - whether consumers would be misled or deceived by respondent's conduct - whether primary judge erred in assessing reputation of appellants at the time of the impugned conduct - appeal dismissed TORTS - passing off - where appellants conceded that failure with respect to claims under Australian Consumer Law would lead to failure to establish passing off - appeal dismissed
JAGOT, NICHOLAS AND BURLEY JJ - 29 July 2021


Evidence
Commonwealth Director of Public Prosecutions v The Country Care Group Pty Ltd (Ruling No 9) [2021] FCA 366
EVIDENCE - objection to evidence sought to be adduced by prosecution to prove contravention of criminal cartel offence provisions upon a primary and an alternative basis - held: objection to primary basis rejected at the time of legal argument; adducing of evidence on alternative basis reserved and now disallowed.
BROMWICH J - 15 April 2021


Evidence
Commonwealth Director of Public Prosecutions v The Country Care Group Pty Ltd (Ruling No 10) [2021] FCA 841
EVIDENCE - no case applications by the first and second accused in respect of charges 4 and 5 in the indictment respectively - Court obliged under s 23FH of the Federal Court of Australia Act 1976 (Cth) to enter a judgment of acquittal and discharge the accused in relation to the charge if the Court finds the accused has no case to answer in relation to the charge - whether the first and second accused had a case to answer in relation to charges 4 and 5 - held: applications dismissed.
BROMWICH J - 5 May 2021


Criminal Law
Commonwealth Director of Public Prosecutions v The Country Care Group Pty Ltd (Ruling No 11) [2021] FCA 842
CRIMINAL LAW - competing directions to jury sought by prosecutor and accused pursuant to ss 14 and 15 of the Jury Directions Act 2015 (Vic) - argument by accused that direction sought by prosecutor reflected an impermissible change in the case against the accused as to the alleged "arrangement or understanding" - whether inclusion of words "between and amongst" in indictment created a different legal threshold for the prosecutor to meet than required for the purpose of cartel offence provisions within the Competition and Consumer Act 2010 (Cth) - whether the words "between and amongst" in the indictment required the prosecutor to demonstrate that a multilateral agreement existed between the relevant parties for charges 1-3 of the indictment - whether any other statements by the prosecution in opening or correspondence demonstrated that their case had changed to allege multilateral agreements between the relevant parties - held: there was no change in the prosecutor's case from what was stated in the indictment - held: no other statement by the prosecutor demonstrated a change in case - held: direction given to jury reflected terms of the indictment
BROMWICH J - 8 May 2021


Evidence
Commonwealth Director of Public Prosecutions v The Country Care Group Pty Ltd (Ruling No 12) [2021] FCA 843
EVIDENCE - direction sought to be made to the jury by first and second accused after the close of the prosecution case - whether request made under s 12 of the Jury Directions Act 2015 (Vic) - whether substantial and compelling reasons for giving direction sought under s 16 of the Jury Directions Act 2015 (Vic) - held: request not made in compliance with the Jury Directions Act 2015 (Vic), but substantial and compelling reasons to give a version of the direction sought.
BROMWICH J - 31 May 2021


Evidence
Commonwealth Director of Public Prosecutions v The Country Care Group Pty Ltd (Ruling No 6) [2021] FCA 206
EVIDENCE - objection to evidence to be adduced on the basis that probative value outweighed by the danger of unfair prejudice to the defendant pursuant to s 137 of the Evidence Act 1995 (Cth) - held: no real danger of unfair prejudice, evidence admissible
BROMWICH J - 11 March 2021


Evidence
Commonwealth Director of Public Prosecutions v The Country Care Group Pty Ltd (Ruling No 8) [2021] FCA 365
EVIDENCE - objection to admissibility of file note of meeting produced under s 155 of the Competition and Consumer Act 2010 (Cth) - file note originally ruled inadmissible during pre-trial hearing - evidence subsequently adduced during trial and on voir dire as to likely authorship of document amongst three people, without identifying the specific author - prosecutor sought to tender file note after this evidence adduced - all three accused object on the basis that file note does not satisfy the requirements of s 69 of the Evidence Act 1995 (Cth) because the person making the relevant representations in the file note could not be identified - further objection on the basis that the evidence should be inadmissible because of unfair prejudice exceeding probative value per s 137 of the Evidence Act - held: objection rejected as to admissibility under s 69 - held: no danger of unfair prejudice in admitting file note including relevant representations
BROMWICH J - 15 April 2021


Evidence
Commonwealth Director of Public Prosecutions v The Country Care Group Pty Ltd (Ruling No 7) [2021] CA 265
EVIDENCE - objection to proposed amendment to the third further amended notice of the prosecution case so that reliance is placed on an entity for the purpose of the effect condition in Competition and Consumer Act 2010 (Cth) s 4ZZRD(2) but no longer placed on that entity for the purpose of the competition condition in s 44ZZRD(4) - held: objection rejected, ss 4ZZRD(2) and (4) do not require exact identity of parties, only that there be an overlap.
BROMWICH J - 23 March 2021


Administrative Law ; Defence ; Superannuation
Bonser v Commonwealth Superannuation Corporation [2021] FCA 847
ADMINISTRATIVE LAW - application for judicial review of a decision of the Commonwealth Superannuation Corporation (CSC) - invalidity classification - where parties have jointly promoted that the Court make a declaration that the decision of the CSC was invalid and of no effect - where grant of relief requires the exercise of judicial discretion - where evidence supports the joint submissions - orders made in terms sought DEFENCE AND WAR - military superannuation and invalidity benefits - Military Superannuation and Benefits Act 1991 (Cth) - application for judicial review of a decision of the Commonwealth Superannuation Corporation (CSC) - invalidity classification - where parties have jointly promoted that the Court make a declaration that the decision of the CSC was invalid and of no effect - where grant of relief requires the exercise of judicial discretion - where evidence supports the joint submissions - orders made in terms sought
LOGAN J - 28 JULY 2021


Migration ; Practice and Procedure
DOM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 862
MIGRATION - judicial review of a decision of the Administrative Appeals Tribunal - where the applicant's partner not permitted to give evidence at the hearing before the Tribunal - whether s 500(6H) of the Migration Act 1958 (Cth) precludes the Tribunal from having regard to information presented orally in support of a person's case unless a written statement is provided to the Minister two days before the Tribunal holds a hearing - whether the written statement must notify the Minister of the identity of the person presenting information orally - whether the Tribunal misconstrued s 500(6H) of the Migration Act 1958 (Cth) - extent to which the obligation to afford procedural fairness ousted by s 500(6H) of the Migration Act 1958 (Cth) PRACTICE AND PROCEDURE - where applicant seeks an extension of time pursuant to s 477A(2) of the Migration Act 1958 (Cth) to file application for judicial review
BROMBERG J - 28 July 2021


Industrial Law
Australian Building and Construction Commissioner v Australian Workers' Union [2021] FCA 861
INDUSTRIAL LAW - civil penalties - admitted contravention of s 475(2) of the Fair Work Act 2009 (Cth) which prohibits an employee organisation or an officer or member thereof requesting an employer pay employees for a period in which employees undertook unprotected industrial action - admitted contraventions of s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) which provides that a person must not organise or engage in unlawful industrial action - principles in relation to the imposition of pecuniary penalties - seriousness of contraventions - relevance of prior contraventions of industrial law - relevance of individual factors including contrition and remorse, cooperation, a culture of compliance and capacity to pay - application of the course of conduct principle
BROMBERG J - 28 July 2021


Practice and Procedure ; Courts and Judges
PD v President, Australian Human Rights Commission (No 2) [2021] FCA 851
PRACTICE AND PROCEDURE - application for disqualification of judge - where judge had decided prior cases involving the applicant - whether apprehended bias - no apprehended bias established - application dismissed
RANGIAH J - 22 JULY 2021


Administrative Law ; Appeal and New Trial ; Evidence ; Migration
Makarov v Minister for Home Affairs [2021] FCAFC 129
ADMINISTRATIVE LAW - appellant emigrated from Ukraine to Australia, applied for Australian citizenship, and became an Australian citizen - appellant arrested and imprisoned in late 2004 - relevant Minister exercised power in s 34(2) of the Citizenship Act 2007 (Cth) to revoke appellant's Australian citizenship - appellant sought judicial review of that decision - primary judge dismissed the appellant's application for judicial review APPEAL AND NEW TRIAL - appellant contends that primary judge erred in finding appellant had not given evidence to the effect that he was never asked to provide information about the status of Ukrainian citizenship or evidence that appellant had never been asked as to whether he had applied to renounce his citizenship - Minister accepts that this statement by primary judge was erroneous - no relevant error - erroneous statement about the absence of evidence had no bearing upon primary judge's assessment of the substantive grounds or the way in which the primary judge exercised discretion to refuse relief APPEAL AND NEW TRIAL - alleged error in exercise of discretion - appellant contends primary judge erred in assessing the appellant's explanation for delay in seeking judicial review of the relevant decision - appellant contends primary judge failed to adequately take into account relevant matters - appellant contends primary judge misunderstood or did not adequately consider appellant's evidence - no error of principle in primary judge's exercise of discretion EVIDENCE - alleged error in exercise of discretion - appellant alleges that the primary judge erred in making an order under s 136 of the Evidence Act 1995 (Cth) limiting use of two expert reports addressing Ukrainian law - appellant contends primary judge failed to be properly satisfied of or consider relevant matters in s 136 - appellant contends there is an injustice in permitting Minister to adduce evidence regarding appellant's Ukrainian citizenship status while preventing appellant from doing so - primary judge did not err in making an order under s 136 of the Evidence Act 1995 (Cth) ADMINISTRATIVE LAW - respondents' notice of contention - respondents challenge primary judge's finding that relevant Minister did not give active intellectual consideration to appellant's prospective statelessness - in light of material before Minister, relevant Minister engaged in active intellectual consideration of whether revoking the appellant's Australian citizenship would render the appellant stateless - respondents' notice of contention upheld
LOGAN, BANKS-SMITH AND ANDERSON JJ - 28 July 2021


Workers' Compensation
Leach v Comcare [2021] FCAFC 134
WORKERS COMPENSATION - where primary Judge dismissed an appeal from the Administrative Appeals Tribunal (Tribunal) with respect to the operation of s 53(3)(c) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) - where appellant sought relief under SRC Act for mental injury claimed to have been suffered prior to 1997 - where workers' compensation claim in respect of injury not lodged until 2016 - whether appellant gave notice as soon as practicable after becoming aware of injury - whether Tribunal and primary Judge erred in findings concerning onus of proof - whether open to Tribunal to make factual findings concerning advice given to appellant in 1997 by appellant's psychologist - whether Tribunal ignored the operation of the rule in Jones v Dunkel (2016) 258 CLR 308; [2016] HCA 35 - whether primary Judge incorrectly applied principles of reasonableness - whether primary Judge conducted impermissible merits review
COLLIER, CHARLESWORTH, SNADEN JJ - 30 July 2021


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