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Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal and appeal from orders made dismissing an application for leave to file an amended cross-claim and to extend the time to file evidence – whether sufficient doubt to warrant reconsideration of the discretion to make the orders – whether primary judge’s exercise of his discretion fell within the scope of House v The King (1936) 55 CLR 499 – whether the primary judge failed to give weight or sufficient weight to relevant considerations, being the timely, efficient and cost-effective resolution of proceedings and potential prejudice to the parties – whether the exercise of discretion was unreasonable or plainly unjust – whether the primary judge erred in his application of r 5.23 of the Federal Court Rules 2011 (Cth) in the absence of any application by the respondents – whether procedural fairness was afforded to the applicants – leave to appeal granted – appeal allowed ...

Catchwords: ADMINISTRATIVE LAW – whether primary judge erred in finding that a notice issued under s 522 of the Telecommunications Act 1997 (Cth) is subject to an implied entitlement disclosure condition – whether primary judge erred in finding that the notice issued by the Australian Communications and Media Authority (ACMA) complied with the implied entitlement disclosure condition – where s 155 of the Trade Practices Act 1974 (Cth) is not analogous – where s 522, read in context and given its purpose, implies an entitlement disclosure condition – where the Notice did not need to identify each matter the subject of a complaint nor state a reason for suspecting a contravention of the Spam Act 2003 (Cth) – where the Notice made apparent that the information and documents sought were relevant to the performance of the ACMA’s telecommunications functions or the exercise of the ACMA’s telecommunication powers – notice of contention dismissed – appeal dismissed ...

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

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

Catchwords: MIGRATION – Appeal from application for judicial review of decision of the Administrative Appeals Tribunal affirming delegate’s decision to not revoke the cancellation of the appellant’s visa – where visa cancelled because of appellant’s criminal record – where visa mandatorily cancelled under s 501(3A) Migration Act 1958 (Cth) – whether “another reason” for revocation under s 501CA(4) – whether the Tribunal misdirected itself as to the operation of paragraph 13.2(4)(a) of Direction No 79 – whether, where immediate family members are also victims of the appellant’s crimes, the Tribunal must consider the effect of non-revocation in both capacities – whether there was a failure to so consider. ...

Catchwords: Family law – De facto financial cause – Alteration of property interests – Meaning of "breakdown of de facto relationship" – Where appellant and respondent had been in de facto relationship and resided in appellant's home – Where appellant and respondent agreed to keep assets strictly separate – Where appellant subsequently suffered rapid cognitive decline and diagnosed with dementia – Where NSW Trustee and Guardian ("Trustee") appointed to manage appellant's financial affairs – Where Trustee moved appellant into aged care facility permanently and resolved to sell appellant's home to fund aged care facility costs – Where respondent opposed proposed sale of home – Where Trustee sought property settlement orders pursuant to s 90SM of Family Law Act 1975 (Cth) – Whether de facto relationship had broken down within meaning of s 90SM. Words and phrases – "assets strictly separate", "breakdown of a de facto relationship", "cognitive decline", "cohabitation", "de facto relationship", "financial manager", "living together on a genuine domestic basis", "mutual commitment to a shared life", "necessary or desirable adjustments", "NSW Trustee and Guardian", "property settlement orders", "sharing life as a couple". ...

Catchwords: Immigration – Visas – Cancellation of visa – Revocation of cancellation – Where plaintiff's visa cancelled under s 501(3A) of Migration Act 1958 (Cth) – Where plaintiff made representations seeking revocation of cancellation decision under s 501CA(4) – Where representations raised potential breach of Australia's international non‑refoulement obligations – Where delegate of Minister decided there was not "another reason" to revoke cancellation decision under s 501CA(4)(b)(ii) – Where delegate considered it unnecessary to determine whether non-refoulement obligations owed because plaintiff could make valid application for protection visa – Where delegate considered existence or otherwise of non-refoulement obligations would be fully assessed in course of processing protection visa application – Whether, in deciding whether there was "another reason" to revoke cancellation decision, delegate required to consider plaintiff's representations raising potential breach of Australia's non-refoulement obligations – Whether delegate failed to exercise jurisdiction conferred by s 501CA(4) – Whether delegate denied plaintiff procedural fairness – Whether delegate misunderstood Migration Act and its operation. Words and phrases – "another reason", "domestic law", "due process", "international non‑refoulement obligations", "mandatory relevant consideration", "procedural fairness", "protection visa", "read, identify, understand and evaluate", "reasonable consideration", "representations concerning non-refoulement", "requisite level of engagement". ...

Catchwords: INDUSTRIAL LAW – appeal from a decision of the Federal Circuit Court of Australia – where primary judge held that the first and second respondents contravened s 535 of the Fair Work Act 2009 (Cth) and otherwise dismissed the application with no order imposing pecuniary penalties – whether the primary judge erred by not providing procedural fairness – whether the primary judge erred in concluding that applicant was a casual employee – whether the primary judge erred in finding that s 15A Fair Work Act 2009 (Cth) did not apply – where primary judge accepted evidence of witness but failed to address material evidence and arguments which, if accepted, could have led to rejection of that evidence – appeal allowed ...

Catchwords: INDUSTRIAL LAW – award coverage – appellant employed respondent as cleaner in abattoir under the terms of the Meat Industry Award 2010 (“MIA”) – respondent applied to South Australian Employment Court (“SAEC”) alleging failure by appellant to comply with the Cleaning Services Award 2010 (“CSA”) – SAEC held respondent’s employment covered by the CSA – whether the MIA or the CSA covered the respondent’s employment – whether appellant employer “in the meat industry” – whether MIA or CSA provided classification “most appropriate” to respondent’s employment – appellant not employer “in the meat industry” – “most appropriate” classification contained in the CSA – appeal dismissed ...

Catchwords: CONTRACTS – construction and interpretation –partnership agreement – whether interest on funds provided to the partnership by one partner to be treated as a partnership expense or as an independent debt to be paid by the other partner – whether inconsistency between agreement’s recitals and operative provisions and how any such inconsistency to be resolved ...

Catchwords: MIGRATION – appeal – refusal to revoke mandatory cancellation of appellant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) – where appellant made representations about risk of harm if returned to country of nationality – representations made within the prescribed period but after receipt of a notice under s 501CA(3) that misrepresented the prescribed period – where Minister concluded that he was unable to make a finding about the appellant’s claim to fear harm due to a lack of detail and supporting evidence – whether primary judge erred in not finding that failure to consider the appellant’s claims was a breach of procedural fairness – whether primary judge erred in not finding that failure to notify appellant of the lack of detail and supporting evidence was a breach of procedural fairness – whether erroneous invitation for representations meant that Minister lacked power to refuse to revoke the mandatory cancellation decision – appeal dismissed ...

Catchwords: MIGRATION – decision of the Minister not to revoke mandatory cancellation of visa under s 501CA(4) of the Migration Act 1958 (Cth) – whether decision of the Minister affected by jurisdictional error – where Minister made a finding that “Australia has a low tolerance of criminal conduct for people… who have been participating in, and contributing to, the community only for a short period” – whether Minister erred in making this finding without a probative basis – where Minister made findings about the appellant’s future risk of reoffending – whether in so finding the Minister erred by making irrational findings of fact, or made findings that were legally unreasonable – whether the Minister misunderstood the law applicable to the detention and/or removal of the appellant from Australia – appeal allowed ...

Catchwords: EQUITY – Fiduciary duties – Breach – Where director of corporate trustee caused trust funds to be distributed to himself – Whether written resolutions effecting valid distribution were adopted by relevant date – Whether director had been delegated authority to make distributions alone – Whether trust monies held on constructive trust EQUITY – Trusts and Trustees – Constructive Trusts – Whether director liable for breach of trust as trustee de son tort – Pre-requisite that one must assume the trust by purporting to act as trustee – Finding that acting in capacity as director of corporate trustee, even without authority and in breach of fiduciary duties, does not alone constitute assumption of the trust – Holding that director not liable as trustee de son tort EQUITY – Trusts and Trustees – Whether director acted “dishonestly” in the context of postponement of the statutory limitation period or equitable equivalent – Where director of corporate trustee was entrusted by other director to manage most company affairs alone – Whether director held honest belief that he was entitled to deal with trust proceeds as he did – Finding that director deliberately withheld information from other director that may have caused her to object to his decisions regarding trust assets – Finding that director’s conduct involved dishonesty in the form of conscious wrongdoing and active concealment EQUITY – Defences – Laches – Knowledge of ability to bring claim – Whether means of knowledge is as good as knowledge – Requirement of knowledge of the relevant facts, although not necessarily of the rights to which they give rise EQUITY – Tracing – Whether property and its commercial proceeds were traceable – Extent to which property was purchased with proceeds of sale of trust assets in breach of trust – Where trust monies were loaned by constructive trustee to purchaser of property and repaid before property was purchased – Where purchaser was alter ego of constructive trustee – Finding that property was effectively purchased by constructive trustee and was therefore traceable property, along with its proceeds LIMITATION OF ACTIONS – Equity – Application of Limitation of Actions Act 1958 (Vic) – Section 21(2) does not apply to actions for breach of fiduciary duty in respect of remedial constructive trusts imposed by Court – Section 5 does not apply to claims for an account in equity, except by analogy LIMITATION OF ACTIONS – Equity – Application of limitation periods by analogy – Claims for proprietary relief and equitable compensation – Claims determined to be within analogy of Limitation of Actions Act 1958 (Vic), s 5, for application of equivalent equitable limitation period ...

Catchwords: INDUSTRIAL LAW – employer appeal – adverse action – decision of Qantas to outsource ground handling operations during COVID-19 pandemic – appeal from the decision of the primary judge finding that Qantas Airways Ltd contravened s 340(1)(b) of the Fair Work Act 2009 (Cth) (FW Act) – construction of s 340(1)(b) of the FW Act – whether s 340(1)(b) requires a person to have presently existing workplace right – consideration of the reverse onus under s 360(1) of the FW Act – whether the primary judge erred in finding that Qantas Airways had not discharged the onus under s 360(1) of the FW Act – consideration of corporate decision-making – whether the primary judge erred in finding that a substantial and operative reason of a person who was not the decision-maker was to prevent the exercise of workplace rights by the affected employees – notice of contention – whether the primary judge should have found that the reasons of the decision-maker were infected by persons who had a substantial influence on the decision-maker – whether the primary judge erred by making the declaration in respect of non-union employees – appeal dismissed INDUSTRIAL LAW – union appeal – reinstatement – appeal from the decision of the primary judge not to make an order granting “global” reinstatement – whether primary judge erred in considering or affording determinative weight to the cost and inconvenience of reinstatement to Qantas Airways – whether the primary judge impermissibly concluded that s 545 of the FW Act required a comparison between compensation and reinstatement or whether the primary judge failed to undertake such a task – whether the primary judge erred by taking into account the absence of clarity as to the quantum of prospective compensation – whether the primary judge erred in finding or taking into account that the affected employees would be reinstated to little or no work – whether the primary judge erred in relation to the difficulties with Qantas Airways complying with a reinstatement order or further disputation – whether the primary judge erred in finding or taking into account that Qantas Airways intended to retrench the affected employees if reinstatement were ordered – appeal dismissed ...

Catchwords: PATENTS – alleged infringement by supply of products – s 117 of the Patents Act 1990 (Cth) – staple commercial product – whether essential oil derived from the shrub Kunzea ambigua was a staple commercial product – where the primary judge found that the oil was a staple commercial product – whether the primary judge erred in so finding – held: no error in primary judge’s conclusion PATENTS – inventive step – method of treatment claims – where primary judge found that the claims did not lack an inventive step – whether the primary judge erred in so finding – held: no error in primary judge’s conclusion CONSUMER LAW – misleading or deceptive conduct – where the respondent’s website conveyed that the goods offered for sale were registered or listed on the Australian Register of Therapeutic Goods – where the website was not owned or maintained by the respondent – whether the primary judge erred in concluding that the respondent had engaged in misleading or deceptive conduct – held: primary judge erred PRACTICE AND PROCEDURE – costs – where the primary judge ordered each respondent to pay a fixed portion of the applicant’s costs of the cross-claims – whether the primary judge erred in making such a costs order – held: no error in primary judge’s costs order ...

Catchwords: Constitutional law (Cth) – Chapter III – Where respondent's complaint made under Anti‑Discrimination Act 1998 (Tas) ("State Act") was referred to Anti-Discrimination Tribunal ("Tribunal") – Where appellants in defence asserted provisions in State Act inconsistent with Disability Discrimination Act 1992 (Cth) and Disability (Access to Premises – Buildings) Standards 2010 (Cth) – Where Tribunal dismissed complaint for want of jurisdiction without addressing merits of defence – Where Full Court of Supreme Court of Tasmania on appeal considered merits of, and rejected, defence – Where Tribunal not "court of a State" within meaning of ss 77(ii) and 77(iii) of Constitution – Where Chapter III implication recognised in Burns v Corbett (2018) 265 CLR 304 prevents State Parliament conferring on State tribunal that is not "court of a State" judicial power with respect to any matter of kind described in ss 75 and 76 of Constitution – Whether Tribunal exercised judicial power when determining complaint under State Act – Whether Tribunal had jurisdiction to hear and determine complaint – Whether defence needed to meet some threshold of arguability to give rise to matter of kind described in ss 76(i) and 76(ii) of Constitution. Words and phrases – "abuse of process", "claim or defence that amounts to 'constitutional nonsense'", "colourable", "genuinely in controversy", "involving no 'real question'", "issue capable of judicial determination", "judicial power", "justiciable controversy", "limits of jurisdiction", "manifestly hopeless", "matter", "no reasonable prospects of success", "not incapable on its face of legal argument", "single justiciable controversy", "State jurisdiction", "State tribunal", "summarily dismissed", "threshold of arguability". ...

Catchwords: RESTITUTION – illegal contract – contract involving “investment” in local company in return for employing foreign national to fulfil visa criteria – agreement rendered unlawful by Migration Act 1958 – recovery of amounts “invested” in restitution – amount paid to Director on behalf of counter party company – whether restitution permissible – whether Director can rely on “defence” of payment over to company where not expressly pleaded – whether primary judge erred in dismissing claim against Director without expressly finding had no notice of illegality – form of notice required for agent who pays funds to principal received under illegal contract – HELD: claim rejected – manner in which case conducted meant that “defence” was available – primary judge’s findings inconsistent with Director having relevant notice AUSTRALIAN CONSUMER LAW – representation that visa “would be” granted – whether such a representation made – whether “illegality” of representation or underlying transaction meant no conduct in trade or commerce or recovery impermissible – HELD: representation not made – if it was made was in trade or commerce and recovery permissible ...

Catchwords: NATIVE TITLE – where the first respondent intends to grant a mineral lease (ML 29881) to the third respondent under the Mineral Titles Act 2010 (NT) – where land subject to the proposed lease would be used for the construction of a “dredge spoil emplacement area” to deposit dredged material from a loading facility located on adjacent land subject to a mineral lease already held by the third respondent – where loading facility is used to load ore concentrate from the McArthur River Mine for transhipment to ocean going vessels for export – whether the proposed grant of ML 29881 is a future act within s 24MD(6B)(b) of the Native Title Act 1993 (Cth), being the “creation of a right to mine for the sole purpose of the construction of an infrastructure facility associated with mining” STATUTORY INTERPRETATION – interpretation of s 24MD(6B)(b) of the Native Title Act – meaning of “a right to mine” in the context of the Native Title Act – meaning of “infrastructure facility” as defined by s 253 of the Native Title Act ...

Catchwords: CONTRACT – breach of contract – land sale contract – nature of breach – failure to complete by fixed date – where time not of the essence – whether failure to complete on time a continuing breach – substantive and temporal nature of obligation to complete CONTRACT – remedies – damages – causation – where delay in completion – claim for consequential loss – expenditure incurred in mitigating action – interplay between causation and mitigation – whether causative link between breach and action to mitigate loss – where purchaser agreed to pay mortgagee up to $500,000 if shortfall on recovery of mortgagee’s loan from second security CONTRACT – remedies – damages – mitigation of loss – vendor unable to obtain discharge of mortgage – expenditure incurred by purchaser to obtain discharge of mortgage – whether reasonable action to mitigate loss – where available alternatives would have exposed purchaser to potentially greater loss CONTRACT – remedies – damages – remoteness – whether in contemplation of parties that purchaser would need to pay off part of mortgagee’s loan to obtain discharge of mortgage – where vendor had not obtained mortgagee’s consent to contract for sale or the release of deposit or prepayment to the vendor – where vendor failed to complete on fixed date ...

Catchwords: INDUSTRIAL LAW – appeal from decision of primary judge that judgment and verdict be entered in favour of respondents in respect of 36 customers lost due to actions of appellant – whether primary judge wrongly departed from the case pleaded by the appellant – whether primary judge erred in finding that respondents established loss or damage – whether primary judge made erroneous findings as to the taking or removal of confidential information by the appellant – whether primary judge made erroneous findings as to the credibility of the evidence given by the appellant – whether primary judge made erroneous findings in assessing the alleged loss or damage – reflective loss principles – principles relevant to breach of fiduciary duties – where no material non-compliance with the rule in Browne v Dunn – appeal dismissed ...

Catchwords: Immigration – Refugees – Application for protection visa – Where plaintiff invited to attend protection visa interview in Melbourne – Where delegate of Minister sent plaintiff letters under ss 56 and 57 of Migration Act 1958 (Cth) requesting further information and inviting plaintiff to comment on information – Where plaintiff lived in Sydney, suffered from mental health issues, was experiencing homelessness and was not fluent in English – Where plaintiff failed to attend interview and failed to respond substantively to letters – Where delegate offered to reschedule interview in Sydney – Where plaintiff did not understand interview offered in Sydney and did not attend – Where delegate exercised discretion under s 62 of Migration Act to refuse to grant visa without taking further action to obtain additional information from plaintiff – Where delegate found plaintiff's claims not credible for reasons including plaintiff's failure to attend interview and respond to letters – Whether delegate acted unreasonably in exercising discretion under s 62 – Whether delegate reasoned illogically, irrationally or unreasonably in rejecting plaintiff's claims – Whether delegate failed to comply with requirements of s 57 to give particulars of relevant information to plaintiff and to ensure as far as reasonably practicable that plaintiff understood why information was relevant – Whether delegate failed to comply with s 499(2A) of Migration Act by failing to take into account relevant country information as required by direction given under s 499(1). Words and phrases – "adverse credibility findings", "country information", "credibility", "further information", "interview", "outcome and process", "relevant information", "s 56 letter", "s 57 letter", "unreasonableness". ...

Catchwords: COPYRIGHT – carry-all bag designed by director of appellant – whether copyright subsists in carry-all bag as a work of artistic craftsmanship – meaning of “work of artistic craftsmanship” – relevance of functionality and aesthetics – consideration of the extent to which any artistic expression in the form of the carry-all bag is constrained by functional considerations – whether primary judge’s assessment of evidence was affected by error – whether primary judge gave excessive weight to evidence given by respondents’ expert witness – whether primary judge failed to consider carry-all bag as a whole – no error disclosed – appeal dismissed ...

Catchwords: ADMINISTRATIVE LAW – application for judicial review of a decision of the primary judge dismissing an application for review of a decision of the Registrar to refuse to accept documents for filing pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) – whether the primary judge erred in finding that the Court could not grant prerogative relief against itself applying Bird v Free (1994) 126 ALR 475 – whether the primary judge erred in concluding that a breach of the rules of natural justice had not occurred – no grounds made out – appeal dismissed ...

Catchwords: APPEALS – from findings of fact – primary judge assessed credibility and reliability of two witnesses – findings not expressed to be based on demeanour – applicable test for appellate intervention – whether primary judge gave sufficient weight to combined effect of relevant circumstances EVIDENCE – tendency evidence – whether evidence relating to a separate building project was significantly probative of the issue concerning the alleged builder’s role in the building project the subject of the proceedings – s 97 of the Evidence Act considered EVIDENCE – whether the primary judge erroneously failed to draw a Jones v Dunkel inference CONSUMER LAW – misleading and deceptive conduct – causation – whether, absent the misleading and deceptive conduct, the property developer would have obtained a valid contract of insurance by honest means ...

Catchwords: COSTS – party/party – award in favour of jointly represented active defendants against unsuccessful plaintiff – claim by non-active defendants in same interest – principle favouring single award where parties in same interest – claim by proposed defendants on joinder motion which lapsed with rejection of primary claim – whether plaintiff should pay costs of motion – Local Democracy Matters Inc v Infrastructure NSW (No 2) [2019] NSWCA 118 applied ...

Catchwords: ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal – appeal against decision of Medical Council of NSW to suspend the registration of a medical practitioner – construction of s 150 of the Health Practitioner Regulation National Law (NSW) – where no complaint had been made about the practice of the medical practitioner – whether the circumstances were urgent enough to warrant the exercise of the emergency power contained in s 150 – whether suspension of registration was in the public interest ...

Catchwords: CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – where alleged that primary judge had overlooked and or not dealt with a particular argument in relation to costs – where it had been open to the applicant for leave to have approached the primary judge pursuant to UCPR 36.16 to vary or set aside her order by reference to the argument not addressed – where that course not taken – where it was not possible for the Court of Appeal finally to dispose of the issue without remitting proceedings to the District Court – where the interests of justice did not warrant the grant of leave to appeal ...

Catchwords: PATENTS – artificial intelligence – where Patents Regulations 1991 (Cth) require name of the inventor to be provided in application under the Patent Cooperation Treaty – where patent application named DABUS, an artificial intelligence machine, as inventor – where parties agreed that the invention described in the patent application was the output of the process undertaken by DABUS – where Deputy Commissioner of Patents determined that patent application did not comply with Patents Regulations – where primary judge set aside decision of Deputy Commissioner – concept of “inventor” under the Patents Act 1990 (Cth) – whether inventor must be a natural person – relationship between inventor and person entitled to be granted a patent – appeal allowed ...

Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal – whether decision of primary judge attended by sufficient doubt to warrant grant of leave – whether substantial injustice would result from a refusal of leave – where interlocutory orders have practical effect of finally determining the rights of a party to proceeding – whether claim involves speculation or conjecture, obviating any purported substantial injustice – leave to appeal granted PRACTICE AND PROCEDURE – application for leave to file and serve proposed further amended statement of claim – where proceeding involves numerous corporate entities and multiple complex commercial transactions – where proceeding raises questions of fact and law in relation to pleading of a dishonest and fraudulent design under the second limb of so-called rule in Barnes v Addy – relevant principles concerning the amendment and striking out of pleadings and summary dismissal – whether primary judge erred in concluding that claim of knowing assistance in dishonest and fraudulent design was not maintainable – appeal dismissed ...

Catchwords: Criminal practice – Jury trial – Where s 53A(1)(c) of Jury Act 1977 (NSW) provided for mandatory discharge of juror where juror engaged in misconduct in relation to trial – Where misconduct included conduct constituting offence against Jury Act – Where offence against s 68C(1) of Jury Act for juror to make inquiry for purpose of obtaining information about any matters relevant to trial – Where evidence led as to Working with Children Check – Where evidence subject of submissions and referred to in summing up – Where jury note disclosed juror had searched internet for requirements of Working with Children Check – Where trial judge took verdicts which jury indicated they had reached unanimous verdict on before discharging juror – Whether information subject of inquiry about matter relevant to trial – Whether inquiry made for purpose of obtaining information about that matter – Whether mandatory discharge of juror required. Words and phrases – "constitution and authority of the jury", "discharge of jurors", "jury deliberations", "making an inquiry", "mandatory discharge", "matters relevant to the trial", "misconduct in relation to the trial", "purpose of obtaining information", "true verdict according to the evidence". ...

Catchwords: Industrial law (Cth) – Pecuniary penalties – Determination of appropriate penalty – Where s 349(1) of Fair Work Act 2009 (Cth) ("Act") relevantly provided that person must not knowingly or recklessly make false or misleading representation about another person's obligation to engage in industrial activity – Where s 546 of Act empowered Federal Court of Australia to order person to pay pecuniary penalty that court considered "appropriate" in respect of contravention of civil remedy provision – Where first respondent union officer and second respondent union each contravened s 349(1) of Act twice – Where second respondent had longstanding history of contraventions of Act – Whether discretion under s 546 of Act constrained by notion of proportionality drawn from criminal law – Whether statutory maximum penalty for civil remedy provision may be imposed only for worst category of contravening conduct. Words and phrases – "appropriate penalty", "civil penalty regime", "civil remedy provision", "deterrence", "discretion", "maximum penalty", "pecuniary penalty", "proportionality", "retribution". ...

Catchwords: Negligence – Causation – Workplace injury – Psychiatric injury – Where appellant employed in Specialist Sexual Offences Unit of Victorian Office of Public Prosecutions ("OPP") – Where appellant found to have suffered psychiatric injury resulting from vicarious trauma suffered in employment – Whether respondent failed to take reasonable measures in response to evident signs of psychiatric injury – Whether respondent's failure caused exacerbation of psychiatric injury. Negligence – Duty of care – Content of employer's duty to employee to take reasonable care to avoid psychiatric injury – Where OPP adopted Vicarious Trauma Policy to protect psychiatric health of employees – Whether appellant needed to show evident signs warning of possibility of psychiatric injury – Effect of decision in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44. Words and phrases – "duty of care", "evident signs", "psychiatric injury", "real review", "safe system of work", "sentinel event", "tort", "vicarious trauma". ...

Catchwords: APPEAL – interlocutory decision – joinder of additional defendants back-dated to commencement of proceedings – challenge to decision to back-date joinder – consequent upon potential contractual limitation defence – where outcome of appeal would not prevent trial – variety of ways in which issue might not arise – absence of full argument on construction of defence and underlying power – where point available to be taken as of right after trial, if it were material to any judgment – leave refused ...

Catchwords: CRIME — appeal and review — appeal from Local Court to District Court — privative clause precludes judicial review unless jurisdictional error — whether refusal by a District Court judge to state a case to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW) amounted to a jurisdictional error APPEALS — procedural fairness — bias or apprehension of bias — District Court judge after correction on appeal declined for a second time to state a case because an answer by the Court of Criminal Appeal to the question of law in favour of the applicant would not have affected the outcome of the appeal to the District Court ...

Catchwords: LIMITATION PERIODS – plaintiffs were parent company and wholly owned subsidiary – parent company entered into option to acquire land following receipt of valuation – valuation negligent and misleading and deceptive – parent company nominated subsidiary to hold the land – parent company paid $11.1m towards purchase price – sale never proceeded – both companies sued valuers 8 years later – trial judge held that subsidiary’s causes of action in negligence and for misleading and deceptive conduct were statute barred, but parent’s causes of action in negligence and for misleading and deceptive conduct were not statute-barred – trial judge found parent implicitly lent to its subsidiary the funds which were transferred to vendor, such that cause of action only accrued when loan became unable to be repaid – significance of corporate relationship between parent company and wholly owned subsidiary – circumstances when implicit loan and obligation to repay may be inferred – significance of contemporaneous documents – appeal allowed and judgment entered in favour of valuers MISLEADING AND DECEPTIVE CONDUCT – significance of disclaimers in valuations – significance of clause permitting use of valuation only by vendor – significance of plaintiffs’ failure to adduce testimonial evidence of reliance on valuation – documents suggesting transaction entered into for extraneous reasons – documents suggesting flaws in valuation appreciated at time – whether requisite causal relation between valuation and payments made out – if necessary, appeal also allowed on basis that causation not established ...

Catchwords: INDUSTRIAL LAW – appeal from judgment and orders based on a finding of contravention of s 500 of the Fair Work Act 2009 (Cth) – permit holder found to have acted in an improper manner in the exercise of powers – permit holder found to have physically pushed past a project manager at a construction site with deliberate intent – whether finding of contravention was based to any extent on the advantage of the trial judge in seeing and hearing the witnesses give their evidence at the trial – role of the Full Court on an appeal by way of rehearing in relation to an alleged error of fact – whether applicant’s allegation of contravention proved to the requisite standard under s 140 of the Evidence Act 1995 (Cth) – appeal allowed – orders imposing pecuniary penalties varied ...

Catchwords: INTELLECTUAL PROPERTY — copyright and trademark infringement, statutory and tortious claims arising from use of statue in gender equality campaign — where primary judge correctly found that statue had broader reputation in Australia distinct from original use by American financial institution — where primary judge erred by ordering permanent injunction despite dismissing appellants’ claims — cross-appeal allowed in part, appeal otherwise dismissed ...

Catchwords: MIGRATION – appeal of a decision of a single Judge of this Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal – where the appellant’s Subclass 444 Special Category (Temporary) visa was cancelled pursuant to s 501(6) of the Migration Act 1958 (Cth) – where the appellant was convicted of multiple offences and served terms of imprisonment – whether the Tribunal sufficiently considered the interests of the appellant’s niece and nephews as minor children in accordance with Ministerial Direction 79 on review – where the appellant only made passing reference to the minor niece and nephews in submissions before the Tribunal – brief consideration of those interests is sufficient in those circumstances – the Tribunal therefore engaged in an active intellectual engagement with those interests – grounds of appeal 1 and 3 are not substantiated – appeal dismissed PRACTICE AND PROCEDURE – application for leave to advance a fresh ground of appeal not before the primary Judge on appeal – whether the fresh ground of appeal has merit – where there was genuine participation in the courses on which the appellant relied – whether the explanation for non-inclusion in the primary proceedings is justified in the circumstances – the fresh ground lacks merit in any event – appeal dismissed ...

Catchwords: TORTS – trespass to the person – false imprisonment – wrongful arrest – reasonable grounds to suspect –genuine belief of arresting officer – appellant named and described by victim – statement by co-accused placed appellant at scene – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99 TORTS – malicious prosecution – laying of charge – reasonable and probable cause – detective mis-represented contents of statements in interview with appellant – whether malice established – whether belief in guilt of person charged TORTS – malicious prosecution – allegation against appellant withdrawn by victim – whether mis-representations made by detective to appellant’s barrister – maintaining of charge in changed circumstances – whether malice established – whether lack of reasonable and probable cause ...

Catchwords: INDUSTRIAL LAW – enterprise agreements – greenfields agreements – Fair Work Commission approved greenfields agreement between respondents and Transport Workers’ Union – rival union appealed approval decision – Fair Work Commission Full Bench upheld approval – application for review of both Fair Work Commission decisions – whether Fair Work Commission had jurisdiction to approve proposed greenfields agreement – meaning of “genuine new enterprise” – whether respondents’ business “genuine new enterprise” – respondents’ enterprise not a “genuine new” enterprise – Fair Work Commission therefore lacked jurisdiction to approve agreement – appropriateness of prerogative relief – relief granted ...

Catchwords: CORPORATIONS – appeal from decision of primary judge refusing to terminate deeds of company arrangement pursuant to s 445D(1) of the Corporations Act 2001 (Cth) – where primary judge made evaluative determinations in relation to ss 445D(1)(c), 445D(1)(e), 445D(1)(f)(i), 445D(1)(f)(ii) and 445D(1)(g) of the Corporations Act 2001 (Cth) – whether House v The King (1936) 55 CLR 499 error established – appeal dismissed ...

Catchwords: Tort – Negligence – Breach of duty of care – Causation – Obvious risk of dangerous recreational activity – Where appellant competing in campdraft competition – Where campdrafting a dangerous recreational activity – Where appellant's horse slipped and fell causing serious injury to appellant – Where four other contestants had falls prior to appellant's fall – Where experienced contestant warned organisers about condition of arena surface – Where organisers twice refused to stop competition – Whether respondent breached duty of care – Whether breach of duty of care caused appellant's injuries – Whether harm suffered by appellant result of materialisation of obvious risk of dangerous recreational activity. Words and phrases – "breach of duty", "causation", "dangerous recreational activity", "liability for harm", "obvious risk", "precautions against a risk of harm", "reasonable person", "significant risk of physical harm". ...

Catchwords: Income Tax (Cth) – Trusts – Where s 97(1) of Income Tax Assessment Act 1936 (Cth) provides that where beneficiary of trust estate not under any legal disability is presently entitled to share of income of trust estate, assessable income of beneficiary shall include so much of that share of net income of trust estate as is attributable to period when beneficiary was resident – Where trust deed provided that, if trustee made no effective determination to pay, apply, set aside or accumulate any part of trust income in given accounting period, income held on trust for specified beneficiaries – Where trustee failed to pay, apply, set aside or accumulate income in income year – Where share of trust income in income year held on trust for beneficiaries – Where Commissioner of Taxation assessed each beneficiary on basis that beneficiaries "presently entitled" to share of income within meaning of s 97(1) – Where beneficiaries subsequently disclaimed interest in share of income – Whether present entitlement under s 97(1) determined immediately prior to end of income year – Whether disclaimers operated retrospectively so as to disapply s 97(1) in respect of income year. Words and phrases – "default distribution", "disclaimer", "end of the year of income", "presently entitled", "presumption of assent", "retrospectively disapply", "right to demand and receive payment", "trust estate", "vested in interest and vested in possession". ...

Catchwords: ASSOCIATIONS AND CLUBS – jurisdiction of courts – justiciability – whether party pre-selection process justiciable – application of Cameron v Hogan (1934) 51 CLR 358; [1934] HCA 24 – whether statutory provisions create an interest in members allowing Court to enforce procedures under Party Constitution ASSOCIATIONS AND CLUBS – unincorporated political party – pre-selection dispute – where constitution of a party authorises Federal Executive to intervene in the management of a State Division – whether “management” includes “management and control” – whether power to endorse candidates for election is exercise of management function – whether power to endorse candidate subject to Constitution of State Division ...

Catchwords: MIGRATION – appeal from a decision of the Federal Court of Australia – where primary judge granted declaratory relief regarding the application of 198AD(2) to the respondent – where primary judge compelled Secretary of Department of Home Affairs to remove respondent as soon as reasonably practicable from Australia – where primary judge ordered detention of respondent occur at property of members of the public – whether orders were interlocutory in character – whether detention orders related to being “in the company of, and restrained by” an officer or other authorised person – whether Migration Act 1958 (Cth) s 198AD(2) applied to person subject to favourable decision under s 46A(2) – appeal allowed ...

Catchwords: INDUSTRIAL LAW - appeal from decision of Western Australian Industrial Magistrates Court - where enterprise agreement was approved by the Fair Work Commission - where following approval it was discovered that approximately 40% of employees to be covered by the enterprise agreement were not given an opportunity to vote for the enterprise agreement as part of the pre-approval process - whether magistrate erred in failing to conclude that the question of whether an agreement has been 'made' in accordance with s 182(1) is a jurisdictional fact the existence of which is necessary to enliven the Commission's power to approve an enterprise agreement - appeal dismissed ...

Catchwords: INDUSTRIAL LAW — appeal from declarations made by Federal Court of Australia — where following onset of COVID-19 pandemic, respondent airlines each stood down number of Licensed Aircraft Maintenance Engineers (Aircraft Engineers) — where enterprise agreement with respect to each respondent contained stand down clause providing that respondents had right to deduct payment for any day employee cannot be usefully employed because of stoppage of work, in case of Qantas, through any cause for which Qantas cannot reasonably be held responsible and, in case of Jetstar, by any cause which Jetstar cannot reasonably prevent — where appellant applied to Fair Work Commission (FWC) for it to deal with dispute on basis there was no “stoppage” of work and Aircraft Engineers stood down could be “usefully employed” — where respondents issued Originating application in Federal Court of Australia seeking declarations that circumstances fell within stand down clause in each case — Statement of Agreed Facts and Admissions and Supplementary Statement of Agreed Facts and Admissions as to, among other things, almost total reduction in travelling passengers on respondents’ airlines as result of COVID-19 pandemic, cancellation of or decision not to schedule certain flights by respondents and other cost-saving measures implemented by respondents prior to standing down Aircraft Engineers and financial significance of stand downs — where primary judge made declarations sought by respondents — whether primary judge erred in construction of stand down clauses — consideration of proper approach to causation — whether stand down clauses direct attention only to immediate or direct cause of stoppage of work or admit of consideration of other or underlying factors or real, substantial or effective cause(s) — whether appropriate to consider reasonableness of employer’s conduct where employer identified in chain of causation, including by reference to economic considerations — appeal dismissed INDUSTRIAL LAW — appeal from declaration made by Federal Court of Australia — where enterprise agreement with respect to Jetstar contained “status quo” clause providing for continuation of work in certain circumstances while dispute resolution procedure being followed — where primary judge made declaration that Jetstar not required by reason of status quo clause to lift, withdraw or otherwise not impose stand down of Aircraft Engineers — whether primary judge erred in concluding status quo clause does not apply where very dispute is or includes dispute about whether there is useful employment or work for employee — appeal dismissed INDUSTRIAL LAW — cross-appeal from order made by Federal Court of Australia that Originating application issued by respondents otherwise be dismissed — where enterprise agreement with respect to each respondent contained clause setting dispute resolution procedure — where two pre-conditions in dispute resolution procedure required to be met before dispute able to be referred to FWC — where first pre-condition a meeting involving employee and supervisor or manager (stage one meeting) — where evidence that following announcement by Qantas of proposed stand downs, Duty Maintenance Manager and Aircraft Engineer employed by Qantas discussed proposed stand downs with Aircraft Engineers one of whom questioned if Qantas could stand him down and indicated he did not accept it could — where evidence that following announcement by Jetstar of proposed stand downs, Aircraft Engineer employed by Jetstar approached Duty Operations Manager and Base Maintenance Manager to discuss proposed stand downs — where respondents in Originating application sought injunction or writ of prohibition directed to FWC restraining it from hearing or determining dispute subject of appellant’s applications to FWC on basis that discussions in each case did not constitute stage one meeting — whether primary judge erred in concluding stage one meeting had taken place in case of both Qantas and Jetstar — consideration of “minimum content” of dispute resolution clause in respect of stage one meeting — whether requirement that parties to stage one meeting knew or on facts it can be inferred they knew engaging in dispute resolution procedure — cross-appeal dismissed ...

Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court of Australia – where FCCA Judge allowed an application for judicial review of a decision of the Administrative Appeals Tribunal – where AAT found that no spousal relationship of the kind described in s 5F of the Migration Act 1958 (Cth) ever existed so that a claim of family violence did not arise for consideration at the time of decision on an application for a Partner (Migrant) (Class BC) (subclass 100) visa – whether AAT correctly construed cl 100.221(4) of Sch 2 to Migration Regulations 1994 (Cth) – appeal allowed ...

Catchwords: MIGRATION – application for issue of writ of certiorari and mandamus to Federal Circuit Court – where Federal Circuit Court declined application to extend the time to apply for relief pursuant to s 476 of the Migration Act 1958 (Cth) – where application made 10 months and 29 days outside period prescribed in s 477(1) of the Migration Act 1958 (Cth) – where Federal Circuit Court did not adopt impermissibly restrictive understanding of what may constitute “in the interests of the administration of justice” for the purposes of s 477(2) of the Migration Act 1958 (Cth) – where primary judge found no jurisdictional error in decision of the Federal Circuit Court – appeal dismissed ...

Catchwords: APPEALS – leave to appeal – principles governing – public importance – regulation of legal practitioners’ dealings with clients – where costs two-thirds of judgment amount LEGAL PRACTITIONERS – costs – personal injury claims – statutory cap on costs – removal of cap on solicitor/client costs – removal by entering into costs agreement – disclosure requirements – disclosures to give effect to statutory purpose – client to be informed of statutory protection and effect of costs agreement – disclosures to be read in context of documents provided – importance of independent legal advice – Legal Profession Act 2004 (NSW), ss 338, 339 – Legal Profession Regulation 2005 (NSW), cl 116 ...

Catchwords: INSURANCE — whether lawyers retained by insurer to act for insured had authority to give notice of facts that might give rise to claim on behalf of insured — whether lawyers retained by insurer for insured did give notice of facts that might give rise to claim against insured to insurer — whether insurer’s reliance on insured not having given notice of facts that might give rise to claim against insured contravened insurer’s duty of utmost good faith — whether primary judge erred with respect to scope of declaratory order made — appeal dismissed — part of cross-appeal upheld ...

Catchwords: SUCCESSION — contested probate application —whether the deceased had testamentary capacity at the time she gave instructions for and executed the will — whether the deceased knew and approved of the terms of the will — whether deceased’s statement that she was not agreeable to one of her daughters getting any money was a reference to a testamentary gift — whether any “suspicious circumstances” ...

Catchwords: PRACTICE AND PROCEDURE – vexatious proceedings order – prohibition on commencement of fresh proceedings in specified matters – judicial review application dismissed in a specified matter – fresh claim for damages based on unlawfulness of same conduct – claim dismissed under vexatious proceedings order – notice of appeal dismissed as incompetent under vexatious proceedings order ...

Catchwords: COSTS – where appeal allowed – where appellant only successful on one of three grounds of appeal – appropriate case to apportion costs of appeal and proceeding below – whether all respondents should be liable for costs – where second to sixth respondents did not take active role concerning successful ground of appeal – first respondent should bear 50% of appellant’s costs ...

Catchwords: STATUTORY INTERPRETATION – the meaning of the terms “decision”, “decide”, “decides” and “decided” in the context of the Health Insurance Act 1973 (Cth) – whether primary judge erred in her construction of ss 88A and 94(1) – where the Chief Executive Medicare requested the Director of Professional Services Review to review the provision of services by Dr Amir pursuant to s 86(1) – whether Director made a decision on 4 April 2019 or 16 April 2019 to undertake the review in accordance with s 88A(1) which set time running for the purpose of s 94(1) – where Director subsequently decided to refer Dr Amir to a Committee pursuant to s 93(1) on 14 April 2020 to determine if inappropriate practice had occurred in providing the services – where primary judge found that the decision to refer Dr Amir to a Committee was made within time and was valid – where primary judge held that a decision under s 88A(1) must be an externally manifested communication of an irrevocable commitment – where the words “decide” and “decision” do not focus on the Director’s mental state but on the external manifestation of that mental state in an irrevocable or firm way – where primary judge was correct to construe a decision under s 88A as being of a firm, committed or final character – where other grounds of appeal alleging errors in fact finding must fail because Dr Amir’s primary construction argument fails – appeal dismissed ...

Catchwords: REPRESENTATIVE PROCEEDINGS – class closure orders – two questions reserved for determination – first question as to whether Court has power under s 33ZF of the Federal Court of Australia Act 1976 (Cth) to order that unless group members register or opt out by a certain date they will remain a group member but will not be able to seek any benefit pursuant to any settlement (subject to Court approval) that occurs before final judgment – second question as to whether Court has power under s 33X(5) to order that group members register or opt out by a certain date and that group members be given notice that, if a settlement is reached, the applicant then intends to seek an order that those group members who neither opted out nor registered will remain a group member but will not be able to seek any benefit pursuant to any settlement (subject to Court approval) that occurs before final judgment – consideration of the origins of class closure orders – distinction between “hard closure” and “soft closure” orders – consideration of the reasoning of the Court of Appeal of New South Wales in Haselhurst v Toyota [2020] [2020] NSWCA 66; 101 NSWLR 890 and Wigmans v AMP Ltd [2020] NSWCA 104; 102 NSWLR 199 – fact specific inquiry – no extinguishment of group member rights upon the making of an order in terms of the second question – order in terms of second question merely gives notice that at the time of settlement the Court may exercise its powers to distribute any settlement to those group members who have registered their interest – settlement still subject to court approval pursuant to s 33V – claims of group members determined at the time of settlement approval or judgment and the making of s 33ZB order – order within power ...

Catchwords: Constitutional Law (Cth) – Parliament – Elections – Senate and House of Representatives – Senators and members of House of Representatives to be "directly chosen by the people" – Where amendments to Commonwealth Electoral Act 1918 (Cth) ("2021 Amendments") constrained political party applying for registration from using name, abbreviation or logo which had word in common with name or abbreviation of prior registered party without that party's consent – Where 2021 Amendments provided that existing party could not remain registered if earlier registered party objected to existing party's name or logo and that name or logo had word in common with name or abbreviation of earlier registered party – Whether 2021 Amendments precluded direct choice by the people of senators and members of House of Representatives. Constitutional Law (Cth) – Implied freedom of communication on government or political matters – Whether 2021 Amendments infringed implied freedom. Words and phrases – "ballot paper", "directly chosen by the people", "implied freedom", "informed choice", "legitimate purpose", "registered political parties", "voter confusion". ...

Catchwords: COSTS – Security for costs – moneys paid into court by appellant – appellant succeeded on appeal – whether certain sums should not be released because of costs orders in favour of respondent in relation to application for security for costs and unsuccessful variation and adjournment application – moneys ordered to be released without any retention ...

Catchwords: MIGRATION – application for an extension of time and leave to appeal from a decision of Federal Circuit Court of Australia (FCC) – primary judge held the FCC did not have jurisdiction under s 476 of the Migration Act 1958 (Cth) – where applicant an unlawful non-citizen brought to Australia for temporary purpose – applicant formerly in immigration detention in Australia but currently holds a bridging visa – applicant seeks declaratory relief concerning former detention in Australia with respect to ss 198AD and 198AH of the Migration Act and brings related claim for common law damages in negligence – whether declaratory relief sought “in relation to” a migration decision: s 476 – declaratory relief is properly characterised as “direct judicial review” of a migration decision – whether declaratory relief hypothetical or inutile and therefore does not give rise to a “matter” under s 75(v) of the Constitution – appeal allowed ...

Catchwords: WORKERS’ COMPENSATION – appeal from a decision of the Administrative Appeals Tribunal heard by the Full Court in the court’s original jurisdiction – where the Tribunal determined that the applicant did not suffer an “injury” for the purposes of s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) and therefore that Comcare was not liable to pay her compensation – where the Tribunal found that the applicant suffered from chronic daily headaches which were materially contributed to by her former employment, but which were not supported by identifiable physiological change – whether an identifiable physiological change is required to establish a “disease” as a criteria of an “injury” – consideration of Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468 – identifiable physiological change not required to establish a “disease” – on the facts found by the Tribunal, the applicant suffered a “disease”. ADMINISTRATIVE LAW – appeal from the Tribunal’s decision to affirm Comcare’s calculation of normal weekly earnings pursuant to s 8(5) of the Act – where the Tribunal approached the review by reference to previous judgments in proceedings between the parties given by a single judge and by the Full Court concerning s 8(1) of the Act, and reached its conclusion based upon speculation as to how that single judge and Full Court would have addressed the relevant questions under s 8(5) – the Tribunal failed to direct itself to the correct questions, failed to engage with the parties’ submissions, and misapplied the relevant judgments – application remitted for rehearing. ...

Catchwords: COSTS – whether costs should be paid on an indemnity rather than a party/party basis – where Chief Executive of the Australian Skills Quality Authority (ASQA) made an offer of compromise – where ASQA seeks costs of and incidental to appeal on an indemnity basis under r 25.14(2) of the Federal Court Rules 2011 (Cth), or alternatively costs paid on an indemnity basis consistent with the principles in Calderbank v Calderbank – where ultimate question is whether the failure to accept an offer in all the circumstances warrants departure from the ordinary rules as to costs – whether an offer of compromise on the basis simply that there be no order as to costs is a genuine compromise for the purposes of rule 25.01(1) or the Calderbank principle – where applicant’s rejection of the offer of compromise was not unreasonable in the circumstances – application for indemnity costs dismissed ...

Catchwords: COSTS – application for specified gross sum costs order under Civil Procedure Act 2005 (NSW), s 98(4)(c) – where history of delay and aggravation in litigation between parties – where unchallenged evidence as to actual costs incurred – where expert costs assessor’s evidence challenged – whether appropriate to make order – quantification of gross sum to be awarded – appropriate discount ...

Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court of Australia – where appellant disclosed a criminal conviction in a visa application but had failed to do so in an earlier visa application – whether apprehended bias on the part of the Administrative Appeals Tribunal established – applicable test for apprehended bias – applicable standard of appellate review – apprehended bias made out – appeal allowed ...

Catchwords: NATIVE TITLE – extinguishment – appeal from orders of primary judge in relation to separate questions – whether statutory leases conferred exclusive possession over the lease areas within the meaning of s 23B(2)(c)(viii) of the Native Title Act 1993 (Cth) – whether certain statutory leases consisted of a grant of a “Scheduled interest” within the meaning of s 23B(2)(c)(i) of the Native Title Act 1993 (Cth) – challenge to primary judge’s characterisation of statutory leases – meaning of exclusive possession in s 23B – comparison of statutory leases with pastoral leases – consideration of size of statutory leases – consideration of legislative references to lessee’s rights to bring an action in trespass – consideration of conditions, reservations, restrictions and other limitations on the rights of lessees – consideration of the language used in governing statutes – appeal dismissed ...

Catchwords: HUMAN RIGHTS – Disability discrimination in employment – Disability Discrimination Act 1992 (Cth) – appeal from a single judge of the Federal Court of Australia – whether revocation of appellant’s position in NSW Police Force constituted direct discrimination – whether primary judge erred in finding there was no decision by first respondent to revoke appellant’s position – whether revocation of appellant’s position constituted indirect discrimination – where primary judge erred in finding the first respondent did not require appellant to comply with a requirement or condition – where appellant was an “employee” within s 15(2) of the Disability Discrimination Act. INDUSTRIAL LAW – Industrial Relations Act 1996 (NSW) – where revocation of appellant’s position was governed under industrial award – whether primary judge erred in finding that revocation was compelled by the Award – where decision to revoke appointment was not so compelled. STATUTORY INTERPRETATION – Disability Discrimination Act 1992 (Cth) – construction of the terms “employee” and “employer” in s 15(2) of the Disability Discrimination Act – Interpretation Act 1987 (NSW) – interpretation of industrial award – whether agreement was made under s 87 of the Police Act 1990 (NSW) – where Guidelines were not made under s 87 of the Police Act – whether discretion to revoke appointment was conferred by Award and Guidelines – where primary judge erred in finding Award compelled revocation of the appellant’s appointment. ...

Catchwords: Industrial law (NSW) – Jurisdiction – Unfair dismissal – Industrial Relations Commission of New South Wales ("IR Commission") – Where first respondent had been retired as non‑executive police officer by NSW Commissioner of Police ("Police Commissioner") under s 72A of Police Act 1990 (NSW) on medical grounds – Where dismissal claimed by first respondent to be harsh, unreasonable or unjust under s 84 of Industrial Relations Act 1996 (NSW) ("IR Act") – Where Pt 6 of Ch 2 of IR Act confers jurisdiction on IR Commission to review dismissal of "any public sector employee", including any member of NSW Police Force – Where s 72A of Police Act does not expressly exclude or modify reach of Pt 6 of Ch 2 of IR Act – Where s 85 of Police Act states Police Commissioner is employer of non‑executive police officers for proceedings dealing with industrial matters – Whether Police Act excludes application of IR Act to decisions made under s 72A of Police Act – Whether IR Commission had jurisdiction to hear and determine application under s 84 of IR Act. Words and phrases – "harsh, unreasonable or unjust", "indication of parliamentary intent", "Industrial Relations Commission", "jurisdiction to hear and determine", "non‑executive police officer", "objective criteria", "overlapping statutes", "Police Commissioner", "police officer", "power to dismiss", "public sector employee", "retirement on medical grounds", "statutory construction", "unfair dismissal", "unique functions of the NSW Police Force". ...

Catchwords: Equity – Unconscionable conduct – Where respondents engaged in business of asset‑based lending – Where system of lending involved law firm, acting through intermediary, facilitating secured loans by respondents – Where law firm acted as agent of respondents – Where respondents' agent never dealt directly with appellant – Where appellant unemployed with no regular income and poor financial literacy – Where appellant guaranteed loan made by respondents to company owned and controlled by appellant – Where company had no assets and never traded – Where loan and guarantee secured by mortgages over appellant's three properties – Where appellant provided signed certificates of independent financial advice and independent legal advice drafted by law firm – Where company defaulted on loan and respondents sought to enforce rights against appellant – Whether respondents acted unconscionably in seeking to enforce rights – Whether respondents' agent had knowledge of appellant's circumstances – Whether respondents entitled to rely on certificates of independent advice – Whether unconscientious exploitation of appellant's special disadvantage. Words and phrases – "agent", "asset‑based lending", "certificates of independent advice", "knowledge of that special disadvantage", "special disadvantage", "system of conduct", "unconscientious", "unconscientious exploitation", "unconscionable conduct", "vulnerability", "wilfully blind". ...

Catchwords: Aviation – Aircraft leasing – Where first appellant leased aircraft engines to lessee company – Where administrators appointed to lessee company – Where lease agreements specified obligations for redelivery of aircraft engines – Where Protocol to Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment ("Protocol") required administrators to "give possession" of aircraft engines upon insolvency-related event – Where specific redelivery obligations under lease agreements preserved by Convention on International Interests in Mobile Equipment but constrained by s 440B of Corporations Act 2001 (Cth) – Whether obligation to give possession under Art XI(2) of Protocol fulfilled by administrators providing opportunity to take possession of aircraft engines in Australia – Meaning of "give possession" in Art XI(2) of Protocol. Words and phrases – "aircraft engines", "aircraft objects", "give possession", "insolvency-related event", "lease agreements", "obligation to give possession", "opportunity to take control", "provide an opportunity for the exercise of the right to take possession", "right to take possession", "rules of insolvency procedure". ...

Catchwords: NEGLIGENCE – workplace injury – plaintiff employee sustained injury following years of operating machine requiring him to drive tractor while turning his head – plaintiff gave divergent accounts of how frequently and how long he turned his head – primary judge dismissed claim on basis that injury not foreseeable – reasons for judgment very concise – whether primary judge made finding concerning plaintiff turning his head – whether if finding made, it accorded with evidence – whether reasons inadequate – whether proceedings needed to be remitted for further trial – causation and damages not in issue – finding of breach made and judgment for plaintiff entered ...

Catchwords: NEGLIGENCE – representative proceeding on behalf of Australian children under 18 against the Minister for the Environment – threat of global warming and climate change to the world and mankind – novel duty of care – declaration that Minister owed Children duty of care when exercising power under ss 130 and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to approve or not approve extension of a coal mine to take reasonable care to avoid causing personal injury or death arising from emissions of carbon dioxide and subsequent global warming – declaration of duty disaggregated from breach and damage – nature of and correct approach to salient features analysis – whether sufficient relationship of neighbourhood between Minister and Children under the EPBC Act – duty of care analysis must begin with relevant statute – purpose and scope of EPBC Act and nature of statutory power in context of the inter-governmental arrangements for protection of environment in Australia – whether duty of care throws up for consideration at breach matters unsuitable for judicial determination – whether duty concerns matters of “core policy” – operational/policy distinction – nature of coherence within the law of negligence –whether duty is incoherent with the Minister’s statutory discretion under the EPBC Act – whether relevant harm reasonably foreseeable – nature of relationship between reasonable foreseeability and causation – consideration of law of causation in Australia – whether sufficient closeness and directness between Minister’s statutory power and the likely risk of harm to respondents and members of class – consideration of Minister’s control, responsibility and knowledge in relation to foreseeable harm – extent of children’s legal vulnerability to feared harm from exercise of Minister’s statutory power – parens patrie jurisdiction – whether potential liability indeterminate NEGLIGENCE – challenge to five findings of fact by primary judge concerning catastrophic risks of global warming caused by greenhouse gas emissions – where findings based on unchallenged expert evidence led on a final basis – where Minister made forensic decision not to cross-examine expert or lead responsive evidence – factual findings open on unchallenged evidence STATUTORY INTERPRETATION – whether human safety is an implied relevant mandatory consideration for exercise of power under ss 130 and 133 of the EPBC Act – mandatory consideration not supported by text, context or purpose of EPBC Act ...

Catchwords: STATUTORY INTERPRETATION — whether limitation on isolating detainee in cell under Youth Justice Regulations 2006 (NT) applied to detainee transferred to a prison under Youth Justice Act 2005 (NT) — application of statutory limitations period to commence proceedings for acts or omissions of officials — appeal dismissed PRACTICE AND PROCEDURE — application for leave to file notice of contention — whether appellant precluded from instituting appeal by virtue of releases in deed of settlement — doctrine of merger — leave to file notice of contention refused ...

Catchwords: ADMINISTRATIVE LAW – decisions of Legal Services Commissioner – judicial review – whether decisions reviewable – whether decisions perverse or legally unreasonable APPEALS – judicial review – proceeding summarily dismissed – order interlocutory – leave to appeal –grant of leave where judgment effectively a final determination of proceeding – whether reasonable cause of action disclosed LEGAL PRACTITIONERS – complaints to Legal Services Commissioner about conduct of own lawyers – complaints dismissed – application to review decisions not entertained – scope of Commissioner’s discretion ...

Catchwords: COURTS AND JUDGES – jurisdictional error – District Court – crime – appeal from Local Court – offence of knowingly giving false evidence before the Independent Commission against Corruption – failure to consider substantial component of defendant’s case – significance to defendant of subject-matter of false statement – significance first raised by prosecutor COURTS AND JUDGES – jurisdictional error – District Court – crime – appeal from Local Court – offence of giving false evidence before the Independent Commission against Corruption – defendant called expert evidence of cognitive impairment and memory loss – whether judge failed to apply criminal burden and standard of proof – whether burden cast on defence – judgment to be read as a whole ...

Catchwords: APPEALS – leave to appeal – interlocutory order in Land and Environment Court – refusal to join new party – strongly arguable case of error – need to identify proper parties – amount in issue sufficient to justify court proceedings ENERGY AND RESOURCES – mining – subsidence – compensation claimed from proprietor of active mine – appeal by claimants from Secretary’s decision on review – Mine Subsidence Compensation Act 2017 (NSW), s 16 CIVIL PROCEDURE – joinder of parties – whether proprietor of active mine a “necessary party” –proprietor liable to pay compensation – whether direct affectation satisfies test of necessity – Uniform Civil Procedure Rules 2005 (NSW), rr 6.24, 6.27 – Ross v Lane Cove Council 86 NSWLR 34; [2014] NSWCA 50 applied CIVIL PROCEDURE – appeal from administrative determination of compensation – Secretary of Department identified as decision-maker – naming of party – government department not a person –joinder of Secretary ...

Catchwords: CORPORATIONS – representative proceedings – whether primary judge erred in not finding that respondent engaged in misleading and deceptive conduct –whether primary judge erred in not finding that respondent contravened its continuous disclosure obligations – relevant representor was the corporation and not the board of the corporation – knowledge of the board not determinative – inferences from facts as found – failure to call officers and employees – attribution of knowledge to a corporation – officer – meaning of “aware” – meaning of “information” – opinions are information – opinions that ought reasonable to have been formed are information – appeal allowed – remittal required ...

Catchwords: BANKRUPTCY – appeal from judgment by which the appellant and his wife were found to be joint registered proprietors of a property – appellant contended that ownership in the property rested with his wife and his now-deceased brother – appellant and brother alleged to share similar names – existence of brother disputed – whether primary judge erred by concluding that the appellant had an interest in the property – whether primary judge’s finding contrary to incontrovertible facts, glaringly improbable, or contrary to compelling inferences – appeal dismissed ...

Catchwords: Contract – Construction – Where clause in settlement agreement entered into between appellants and respondent prior to expiry of original term of patent granted respondent non-exclusive licence to exploit patent – Where clause in settlement agreement did not specify end date of non-exclusive licence – Whether non-exclusive licence applied to acts during extended term of patent. Patents – Infringement – Where term of patent extended under Patents Act 1990 (Cth) ("Act") – Where patentee and exclusive licensee brought infringement proceedings for acts done during extended term of patent – Whether exclusive licensee had rights to bring infringement proceedings under s 79 of Act for acts done during extended term of patent – Whether respondent engaged in misleading or deceptive conduct by not disclosing to customers possibility that term of patent might be extended – Construction and effect of s 79 of Act – When patentee's cause of action accrued under s 79 of Act for the purposes of s 51A(1)(a) of Federal Court of Australia Act 1976 (Cth). Words and phrases – "acts of infringement", "cause of action accrued", "commercial benefit", "exclusive licensee", "extension", "extension of the term of the patent", "grant of an extension", "infringement proceedings", "irrevocable non-exclusive licence", "misleading or deceptive conduct", "patent", "patentee's rights", "pharmaceutical substance", "term of the patent". ...

Catchwords: Constitutional Law (Cth) – Judicial power of Commonwealth – Meaning of "matter" – Where Commonwealth entered leases ("Leases") with operators of Hobart Airport and Launceston Airport ("Lessees") for Hobart Airport site and Launceston Airport site ("Airports") – Where Clarence City Council and Northern Midlands Council ("Councils") administer municipal area covering Airports – Where Airports not amenable to council rates or State land tax because located on Commonwealth land – Where cl 26.2(a) of Leases requires that, in lieu of rates, Lessees pay Councils amount that would have been payable if Airports not on Commonwealth land, but relevantly only in respect of parts of Airports on which "trading or financial operations are undertaken" – Where Lessees required to use "all reasonable endeavours" to enter agreements with Councils to make such payments – Where Commonwealth and Lessees not in dispute about meaning of cl 26.2(a) or Lessees' compliance with it – Where Councils not parties to Leases – Where Councils sought declaratory relief regarding proper construction of cl 26.2(a) and Lessees' obligations to make payments – Whether dispute involves "matter" for purposes of Ch III of Constitution – Whether dispute involves justiciable controversy – Whether Councils have standing to have dispute determined. Words and phrases – "all reasonable endeavours", "declaratory relief", "doctrine of privity", "federal jurisdiction", "heads of jurisdiction", "immediate right, duty or liability to be established", "judicial power of the Commonwealth", "justiciable controversy", "legally enforceable remedy", "material interest", "matter", "outsider to a contract", "private rights", "public rights", "real commercial interest", "real interest", "real practical importance", "special interest", "standing", "subject matter requirement", "sufficient interest", "third party", "trading or financial operations". ...

Catchwords: MIGRATION – appeal from dismissal of application for judicial review of Administrative Appeals Tribunal’s decision to affirm decision not to revoke mandatory cancellation of visa on character grounds – whether Tribunal under duty to inquire as to the best interests of any minor children affected by the cancellation decision – whether any such failure to inquire was material ...

Catchwords: PRACTICE AND PROCEDURE – interlocutory application to set aside orders by consent – where Court made erroneous finding – appropriate to make orders pursuant to r 39.05(f) of the Federal Court Rules 2011 (Cth) ADMINISTRATIVE LAW – procedural fairness – whether Anti-Dumping Review Panel failed to comply with procedural fairness requirements in failing adequately to disclose to the appellant the substance of a confidential conference – where non-confidential summary of conference not published until after Panel’s review complete – whether Subdiv C of Div 9 of Pt XVB of Customs Act 1901 (Cth) exhaustive of procedural fairness requirements – whether appellant suffered practical injustice – appellant deprived of opportunity to be heard – held: procedural unfairness ...

Catchwords: ADMINISTRATIVE LAW – judicial review – jurisdictional error – Motor Accidents Compensation Act 1999 (NSW), s 63(3) – power requiring decision maker to consider whether there was reasonable cause to suspect material error in medical assessment – whether decision maker exceeded statutory role by determining asserted error on the merits ADMINISTRATIVE LAW – judicial review – jurisdictional error – Motor Accidents Compensation Act 1999 (NSW), s 63(3) – power requiring decision maker to consider whether there was reasonable cause to suspect material error in medical assessment – whether decision maker exceeded his bounds of authority by declining to refer a matter to a review panel where there was significant differences of opinion among medical practitioners ADMINISTRATIVE LAW – judicial review – jurisdictional error – Motor Accidents Compensation Act 1999 (NSW), s 63(3) – power requiring decision maker to consider whether there was reasonable cause to suspect material error in medical assessment – whether the inevitable result of the presence of conflicting medical opinions is that there must be reasonable cause to suspect that the medical assessment is incorrect in a material respect ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 (NSW), s 63(3) –– whether primary judge erred in ordering that the medical assessment be referred to a review panel rather than referring the matter back to a proper officer ...

Catchwords: MIGRATION – appeal against order dismissing application for judicial review of a decision of the Administrative Appeals Tribunal not to revoke a decision to cancel appellant’s visa – where appellant made representation concerning the prospect that he would experience indefinite detention – whether Tribunal failed to consider representation made by the appellant – whether Tribunal engaged in active intellectual process in considering representation ...

Catchwords: MIGRATION — appeal from a decision of a single judge — where the primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Minister to refuse to grant the appellant a visa under s 501(1) of the Migration Act 1958 (Cth) — whether primary judge erred in finding no error in the Tribunal’s rejection of expert evidence concerning the appellant’s prospects of reoffending — whether the Tribunal erred in failing to consider the evidence of the expert concerning the effect on the appellant’s young children of refusing to grant the visa — whether Tribunal failed to consider evidence concerning children’s and their mother’s susceptibility to Huntington’s disease — whether, if so, the failure was material to the decision PRACTICE AND PROCEDURE — application for leave to raise new ground of appeal not before primary judge — where appellant’s sole basis for raising new grounds was a change of counsel, whether explanation sufficient to justify grant of leave — whether proposed new ground has sufficient merit ...

Catchwords: JUDGMENT AND ORDERS – costs – costs payable by party entitled to judgment debt – joint and several liability for costs – entitlement to set-off – stay of payment of judgment debt pending assessment of costs – payment into court CIVIL PROCEDURE – slip rule – failure to address issue raised by a notice of motion – no time limit on exercise of power – application of Uniform Civil Procedure Rules 2005 (NSW), r 36.17 ...

Catchwords: APPEAL – leave to appeal – whether statutory threshold met – no affidavit supporting right to appeal – no objection to competency – matter deemed to be leave application APPEAL – motion to adduce further evidence – where appellant sought to examine opponent’s lawyers as to conduct of trial – full transcript of trial available APPEAL – challenge to finding as to credibility of police informant – finding not inconsistent with objective evidence nor glaringly improbable – allegation not put to police officer in cross-examination CIVIL PROCEDURE – hearings – application to vacate hearing – challenge to covid-19 protocol requiring persons entering court to be vaccinated – matter not fixed for live hearing – hearing by audio-visual link or telephone available – applicant homeless – inconvenience where no live hearing CIVIL PROCEDURE – application for trial by jury – application for appeal to be heard by jury – no jury available on appeal COURT AND JUDGES – procedural fairness – reasonable apprehension of bias – plaintiff wrongly accused State of concealing documents - judge told plaintiff he owed the State an apology – whether lay observer might think judge might be biased TORTS – malicious prosecution – evidence of improper purpose – whether prosecutor concealed evidence – improper motive said to be revenge for prior successful claim by appellant ...

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