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Catchwords: TRADE MARKS – infringement claim pursuant to s 120 of the Trade Marks Act 1995 (Cth) – whether primary judge erred in concluding that the respondents did not infringe the appellant’s BOTOX mark by using PROTOX as a trade mark – whether primary judge erred in concluding that PROTOX was not deceptively similar to BOTOX – held that PROTOX is deceptively similar to BOTOX mark – infringement established TRADE MARKS – infringement claim pursuant to s 120 of the Act – whether the respondents used the composite phrase “instant Botox® alternative” as a trade mark – whether “instant BOTOX® alternative” deceptively similar to appellant’s BOTOX marks – phrase was used as a trade mark – phrase was deceptively similar to BOTOX mark – whether comparative advertising “defence” under s 122(1)(d) of the Act available and established – meaning of “comparative advertising – whether “defences” under s 122(1)(b) and (c) and (e) of the Act available and established – discussion of the nature of s 122 “defences” – defences not made out – infringement established CONSUMER LAW – misleading or deceptive conduct – performance characteristics, uses or benefits – representations as to period of time effect of treatment would last – whether the use by the respondents of the phrase “instant Botox® alternative”, assessed in context, conveyed a representation that the respondents’ Inhibox product would provide results which would, after treatment has ceased, last about as long as treatment with Botox – contraventions of s 18, s 29(1)(a) and s 29(1)(g) Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth) established ...

Catchwords: TRADE MARKS – infringement claim pursuant to s 120 of the Trade Marks Act 1995 (Cth) – whether primary judge erred in concluding that the respondents did not infringe the appellant’s BOTOX mark by using PROTOX as a trade mark – whether primary judge erred in concluding that PROTOX was not deceptively similar to BOTOX – held that PROTOX is deceptively similar to BOTOX mark – infringement established TRADE MARKS – infringement claim pursuant to s 120 of the Act – whether the respondents used the composite phrase “instant Botox® alternative” as a trade mark – whether “instant BOTOX® alternative” deceptively similar to appellant’s BOTOX marks – phrase was used as a trade mark – phrase was deceptively similar to BOTOX mark – whether comparative advertising “defence” under s 122(1)(d) of the Act available and established – meaning of “comparative advertising – whether “defences” under s 122(1)(b) and (c) and (e) of the Act available and established – discussion of the nature of s 122 “defences” – defences not made out – infringement established CONSUMER LAW – misleading or deceptive conduct – performance characteristics, uses or benefits – representations as to period of time effect of treatment would last – whether the use by the respondents of the phrase “instant Botox® alternative”, assessed in context, conveyed a representation that the respondents’ Inhibox product would provide results which would, after treatment has ceased, last about as long as treatment with Botox – contraventions of s 18, s 29(1)(a) and s 29(1)(g) Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth) established ...

Catchwords: CORPORATIONS – continuous disclosure obligations under s 674 of Corporations Act 2001 (Cth) – application of ASX listing rules 3.1 and 3.1A – non-disclosure of material information – shareholders’ claims for damages under s 1317HA of Corporations Act – debts or claims provable in winding up – rejection of proofs of debt – appeals to the primary judge from rejection of proofs of debt – whether trial judge erred in making findings of non-contravention of s 674 – whether contraventions, if made, would have caused share price inflation – applicability of market based causation – no proof of contraventions – no proof of loss – appeals dismissed ...

Catchwords: EQUITY – presumption of advancement – purchase of property by husband and wife – title registered in wife’s name only – whether presumption of advancement is qualified by statements in Trustees of Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278 – whether presumption of advancement is rebutted – where property intended as matrimonial home – where both spouses contributed equally to purchase through joint loan accounts – where husband assumed significant liability under mortgage over the property – inference husband acquired 50% beneficial interest raised on the facts – inference supported by subsequent conduct – held: presumption of advancement rebutted ...

Catchwords: MIGRATION – appeal from decision of primary judge dismissing application made under s 476A of the Migration Act 1958 (Cth) (the Act) for judicial review of a migration decision – where Minister used his discretion under s 501BA of the Act to set aside a decision of the Administrative Appeals Tribunal (AAT) made under s 501CA of the Act – whether the Minister’s refusal to afford the appellant natural justice in the process of, or leading up to, the exercise of his power in s 501BA(2) was unreasonable – whether Federal Court has jurisdiction to review the process leading up to exercise of such power – whether the Minister’s disagreement with a comment by the AAT that the appellant is not a ‘threat to all women’ is a finding that is ‘illogical, irrational or unreasonable’ – whether the Minister failed to apply any ‘active intellectual process’ to certain matters affecting his decision – whether Minister failed to take into account materials before the AAT that were mandatory relevant considerations ...

Catchwords: INDUSTRIAL LAW – university – right of intellectual freedom – whether primary judge erred in construction of right of intellectual freedom in enterprise agreement – whether primary judge erred in finding that exercise of intellectual freedom can constitute “misconduct” or “serious misconduct” within meaning of enterprise agreement – whether conduct in posting photo to social media was sufficiently connected to his employment to constitute “misconduct” – whether University gave lawful and reasonable instruction to remove photo – whether failing to remove photo constituted “misconduct” – appeal allowed – matters remitted to primary judge for hearing and determination. ...

Catchwords: MIGRATION – application for extension of time to appeal against a migration decision – where applicant has been in immigration detention for more than 11 years – where applicant requires leave to argue a point on appeal which was not argued before the primary judge – whether proposed grounds of appeal are grounds which might have been met by evidence before the primary judge – whether the Minister would be deprived of the opportunity of adducing evidence on certain matters – application dismissed ...

Catchwords: ADMINISTRATIVE LAW - revocation of Australian citizenship under s 34(2) of the Australian Citizenship Act 2007 (Cth) - appeal from decision of primary judge dismissing appeal on a question of law from decision of Administrative Appeals Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – where the primary judge set aside the Tribunal’s reversal of the Minister’s decision to revoke the appellant’s citizenship – whether the Tribunal erred in its application of s 34(2) – whether residual discretion is enlivened in circumstances where the Tribunal was not satisfied of a jurisdictional fact on which the power is conditioned – whether materiality is such that the Court should refuse relief - Held: appeal dismissed. ...

Catchwords: MIGRATION – cancellation of visa – where Administrative Appeals Tribunal affirmed decision to cancel visa – where Tribunal found visa holder provided incorrect information in visa applications and contravened s 101 of the Migration Act 1958 (Cth) – where Tribunal found visa holder deliberately provided incorrect information – whether Tribunal took into account an irrelevant consideration when considering whether incorrect answer deliberate or inadvertent – whether Tribunal misunderstood statutory task under s 101 of the Act – no jurisdictional error MIGRATION – where visa holder and visa holder’s child subject to parenting orders made under Family Law Act 1975 (Cth) – where visa holder’s child prohibited from leaving Australia – where Tribunal weighed up best interests of child and noted that movement of child out of Australia would require further orders – whether Tribunal decision frustrated or was contrary to parenting orders – whether Tribunal decision illogical – no jurisdictional error ...

Catchwords: MIGRATION – appeals dealt with together – review of decisions refusing to revoke visa cancellation – Tribunal and Ministerial decisions – whether decision-makers correctly understood and considered the role of non-refoulement obligations in the revocation decisions – whether jurisdictional error – whether previous decisions of Full Courts correct – appeals dismissed PRACTICE AND PROCEDURE – previous decisions of Full Courts – when a previous decision should be departed from ...

Catchwords: MIGRATION – cancellation of visa and refusal to revoke cancellation of the appellant’s visa – where appellant resided in Australia for the majority of his life – where appellant issued a passport and entered onto the electoral roll – whether Commonwealth executive represented to the appellant that he was accepted as an Australian citizen – whether Minister estopped from treating the appellant as a non-citizen – principles relating to the availability of equitable estoppel in public law – whether appellant fell within the terms of the Immigration (Guardianship of Children) Act 1946 (Cth) (IGOC Act) – whether Minister breached any obligation owed to the appellant under the IGOC Act PRACTICE AND PROCEDURE – nature of the relief sought against the Minister – appropriate relief – whether quia timet injunction lay against the Minister preventing him from treating the appellant as a non-citizen – whether a writ ne exeat regno, or ne exeat colonia open to be issued to prevent Minister’s removal of the appellant ...

Catchwords: TAXATION – goods and services tax – gambling supplies – junkets – agreements between casino and junket tour operators – where commissions and rebates were payable by the casino to the junket tour operator or by the junket tour operator to the casino – where, at the conclusion of the junket, a total amount would be payable by the junket tour operator to the casino or by the casino to the junket tour operator – whether the commissions and rebates, or the total amount payable, were subject to the special rules for gambling supplies in Div 126 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or the ordinary GST rules ...

Catchwords: ADMINISTRATIVE LAW – judicial review – whether appellant afforded procedural fairness – whether the primary judge misconceived the appellant’s claim – whether the primary judge did not consider the appellant’s actual claim when making the decision to refuse the appellant’s act of grace payment, resulting in judicial error – appeal dismissed with costs ...

Catchwords: COPYRIGHT – consideration of copyright subsisting in photographs and floorplans – consideration of the terms of an oral licence conferred by the copyright owner and exclusive licensee on real estate agencies to use the works for the purposes of securing a sale or lease of the particular property – consideration of the principles governing whether a term is to be implied, in fact, into the oral informal agreements between the rights owners and each agency and the content and scope of such a term – consideration of the principles governing whether a term is to be inferred into the oral informal agreements from all the circumstances as a matter of the actual intention of the parties CONTRACTS - consideration of the terms of an oral licence conferred by the copyright owner and its exclusive licensee of photographs and floorplans, on real estate agencies to use the works for the purposes of securing a sale or lease of the particular property – consideration of the principles governing whether a term is to be implied, in fact, into the oral informal agreements between the rights owners and each agency and the content and scope of such a term – consideration of the principles governing whether a term is to be inferred into the oral informal agreements from all the circumstances, as a matter of the actual intention of the parties ...

Catchwords: COSTS - determination of costs in related appeals where appellants partially successful - consideration of appropriate exercise of court's discretion to order costs - where partial success in first appeal on ground relating to second appellant - where appellants submitted respondents engaged in disentitling conduct in rejecting offer of settlement preemptorally and in communication of rejection - whether appropriate for court to consider disentitling conduct in exercise of discretion - order in first appeal made for appellants to pay respondents' costs with liability of second appellant limited - order in second appeal made for appellant to pay substantial percentage of respondents' costs ...

Catchwords: CONSUMER LAW – misleading or deceptive conduct and making false or misleading representations by causing the publication of Google advertisements in contravention of ss 18(1), 29(1)(b) and 29(1)(h) of the Australian Consumer Law – use of keywords and dynamic keywords in relation to paid Google advertisements – relevant principles in relation to misleading or deceptive conduct and false or misleading representations – appropriate approach to appellate review in a case involving an evaluative decision – whether primary judge erred in the attribution of characteristics to the broad and diverse target audience of the advertisements – whether ordinary or reasonable class members taking care of their own interests were likely to have a range of reasonable reactions to the Google advertisements – whether the primary judge erred in conceiving of only one reasonable reaction – whether primary judge erred in finding the Google advertisements did not convey the alleged representations – whether primary judge erred in relying on the “not insignificant number” test – appeal upheld – matter remitted to primary judge on questions of pecuniary penalty and costs of the proceeding below ...

Catchwords: BANKRUPTCY AND INSOLVENCY - application by trustee for extension of time to seek leave to appeal from decision of Circuit Court - appeal by trustee from decision of Federal Circuit Court as to trustee's remuneration - where primary judge on review of registrar's decision made orders in terms of consent of petitioning creditor and debtors to set aside sequestration orders and dismiss creditor's petition - where primary judge dismissed trustee's application as intervener for order for annulment of bankruptcy and made limited orders for payment of trustee's costs properly and reasonably incurred - consideration of power of Circuit Court to make consequential orders as conferred by s 104(3) of Federal Circuit Court of Australia Act 1999 (Cth) - whether primary judge erred in declining to exercise discretion to order annulment - whether a discretionary power to order annulment upon review of exercise of delegated judicial power unconstitutional - consideration of general approach of Circuit Court for determination of appropriate consequential orders as to trustee's costs - whether primary judge erred in determining appropriate orders as to trustee's costs - application for extension of time allowed - leave to appeal granted - appeal dismissed ...

Catchwords: BANKRUPTCY AND INSOLVENCY - application by trustee for leave to appeal from decision of Federal Circuit Court - where Circuit Court set aside sequestration order and dismissed creditor's petition on review of registrar's decision - where Circuit Court dismissed trustee's application for orders for payment of remuneration, costs and expenses of trustee in administering former bankrupt estate - consideration of nature and extent of power pursuant to s 104(3) of Federal Circuit Court of Australia Act 1999 (Cth) - whether Circuit Court has discretionary power to both set aside sequestration order and annul bankruptcy on review of decision by registrar - whether other source of power to order remuneration of trustee when creditor's petition dismissed - whether Circuit Court had jurisdiction to hear interim application for remuneration orders after creditor's petition dismissed - application for leave to appeal allowed - appeal allowed PRACTICE AND PROCEDURE - consideration of nature of delegated federal judicial power exercised by registrar - consideration of nature of de novo review by judge of registrar's decision ...

Catchwords: MIGRATION – Migration Act 1958 (Cth) – appeal against decision of Federal Court of Australia – where mandatory cancellation of appellant’s visa under s 501(3A) – where Minister made a decision under s 501CA(4) to not revoke the cancellation decision – where primary judge affirmed the Minister’s non-revocation decision – whether Minister’s failure to put the appellant on notice that a decision may be made contrary to Australia’s international obligation under Art 12(4) of the International Covenant on Civil and Political Rights constitutes a denial of procedural fairness – whether Art 12(4) constitutes a mandatory relevant consideration – both grounds of appeal dismissed ...

Catchwords: MIGRATION – where second respondent affirmed decision of a delegate of first respondent refusing to grant appellant a visa – where primary judge rejected all grounds of review relied on by appellant at trial – whether appellant should be granted leave to rely on new grounds of review on appeal that were not relied on before the primary judge – whether those grounds lacked merit – whether appellant’s failure to raise them before primary judge was explained Held: leave to rely on new grounds refused – appeal dismissed with costs ...

Catchwords: PRACTICE AND PROCEDURE - adjournment of hearing - second occasion on which appeal was sought to be adjourned - where applicant sought to adjourn hearing on the morning of the hearing due to counsel unavailability - where application was unsupported by evidence - where non-compliance with obligations pursuant to s 37N of the Federal Court of Australia Act 1976 (Cth) ...

Catchwords: INDUSTRIAL LAW – adverse action – where primary judge found that respondent was dismissed in contravention of s 340(1) of the Fair Work Act 2009 (Cth) – appeal against order to that effect on the grounds that the judge failed to provide adequate reasons for his conclusion and did not answer the question whether the appellants had established that the adverse action was not taken for a reason proscribed by the Fair Work Act 2009 (Cth), or for reasons which included such a reason, by reference to all the evidence – appeal allowed – cross-appeal and notice of contention dismissed, new trial of adverse action claim ordered CONTRACT – where primary judge found that respondent was entitled to be paid an incentive payment pursuant to the respondent’s contract of employment – whether on its proper construction respondent so entitled – appeal allowed, cross-appeal dismissed – new trial of claim for breach of contract of employment and other claims for damages ordered ...

Catchwords: TAXATION – income tax – deductibility of borrowings and related fees – whether repayments of borrowings and fees were on revenue or capital account – where company is in the business of property development and property is the company’s trading stock – where original loans obtained for the purchase of the properties were repaid from a facility agreement – where liabilities under the facility agreement were then repaid from the proceeds of sale of the properties – whether a proportion of an excess amount of repayments under the facility agreement referrable to the drawdowns used to discharge the original loans is deductible as a ‘revenue borrowing’ TRUSTS AND TRUSTEES – construction of joint venture agreement – joint venture to develop and sell residential property – where the first joint venturer is the legal owner of the property and the second joint venturer provides finance – whether the joint venture agreement should be construed as granting a 50% beneficial interest in the property to the second joint venturer held on trust for it by the first joint venturer – in circumstances where the joint venture agreement made no express provision for the creation of a trust TRUSTS AND TRUSTEES – validity of notices of appointment and removal of trustees in accordance with trust deed – whether the power to appoint one or more trustees was predicated on the removal of one or more trustees – whether the objective intention of the deed of appointment was to effect both the removal and appointment of the trustees EVIDENCE – retirement of old corporate trustee and appointment of new corporate trustee by various deeds and notices – where only some documents produced in evidence and others only referred to in company minutes – where primary judge was not satisfied that the documents in evidence demonstrated a valid change of trustee – whether provisions of the Evidence Act 1995 (Cth) or the Corporations Act 2001 (Cth) concerning the prima facie proof of matters stated in company records compels a different conclusion – extent to which references to the operative documents in company minutes could be evidence of the efficacy of the underlying documents themselves ...

Orders: 1. The appeal be allowed. 2. The orders made by the primary judge on 11 November 2020 in proceeding VID41/2020 be set aside and in their place, the Court orders that: 2.1 by 4.00pm on 18 August 2021, the First Respondent provide written answers to the interrogatories annexed as Annexure NY1 to the affidavit of Natalie Young dated 9 September 2020; and 2.2 the First Respondent pay the Appellant’s costs of the interlocutory application filed on 10 September 2020. 3. The First Respondent pay the...

Catchwords: 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. ...

Catchwords: 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 ...

Catchwords: 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 ...

Catchwords: 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 ...

Orders: (1) The appeal be allowed. (2) Declaration 8 made on 26 October 2020 in VID781/2019 be set aside by consent. (3) Order 4 and declaration 7 made on 26 October 2020 in VID781/2019 be set aside and in lieu thereof it be ordered that: (a) the third further amended originating application by the applicant (Icon) as against the second respondent (QBE) be dismissed; and (b) Icon pay QBE’s costs of the proceeding to be agreed or assessed. (4) Icon pay QBE’s costs of the appeal as agreed or...

Catchwords: 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 ...

Catchwords: 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 ...

Catchwords: 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 ...

Catchwords: INSURANCE – third party liability claims by construction company for serious building defects occurring after practical completion but within 12 month defects liability period – two policies with separate insurers – cover denied by insurer of annual policy as outside period of insurance – whether proper construction of the policy, through the “run off” condition, can provide for “contracts commencing” cover, contract by contract, that includes defects liability period INSURANCE – cover denied by underwriter of later policy as outside scope of cover – proper construction of insuring clause: damage in connection with “Insured’s Products Liability and/or Completed Operations” – whether completed building and/or its component parts, including hobs, slabs, columns and walls, were a “product or thing” within the meaning of “Product” and whole policy – whether “Completed Operations” only covers damage occurring in policy period for completed projects for which defects liability period has expired – relevance of distinction between “Products Liability” and “Completed Operations” and “and/or” and exclusions – where “erected” included in definition of “Product” but not “built” or “constructed” EQUITY – rectification – whether parties held a common intention to effect contracts commencing cover – where parties represented by experienced insurance brokers – relevance of their intentions – actual and ostensible authority – weight to be given to trial judge’s advantage of assessing witness credibility ...

Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court of Australia – application for judicial review of a decision of the Administrative Appeals Tribunal – where Tribunal affirmed decision of delegate of Minister to refuse to grant protection visa – whether Tribunal committed jurisdictional error – where appellant claimed he would suffer social isolation on account of his mental illness – whether Tribunal considered appellant’s claim that he would be subjected to serious or significant harm by reason of social isolation – jurisdictional error established – appeal allowed ...

Catchwords: MIGRATION LAW – decision of the Administrative Appeals Tribunal not to revoke mandatory cancellation of visa under s 501CA(4) of the Migration Act 1958 (Cth) –whether Tribunal erred in formation of state of satisfaction for the purpose of s 501CA(4) – whether primary considerations stated in Ministerial Direction 79 were mandatory considerations in forming state of satisfaction – whether mandatory considerations included best interests of appellant’s child – whether best interests of child raised in representations pursuant to s 501CA(3) – whether best interests of child clearly arose during hearing before Tribunal – whether Tribunal considered the best interests of the appellant’s child – whether material before Tribunal on which consideration could occur – the migration status of the child consequent upon the cancellation of the appellant’s visa and the revocation of the cancellation –whether Minister advanced legally erroneous submissions to Tribunal as to migration status of the child – whether erroneous submissions material to the Tribunal’s decision –whether Tribunal failed to perform its statutory duty to consider the best interests of the appellant’s child as a primary consideration – appeal dismissed STAUTORY INTERPRETATION – meaning of s 140(3) of the Migration Act 1958 (Cth) – whether s 140(3) applicable to the cancellation of a visa pursuant to s 501 PRACTICE AND PROCEDURE – application for leave to raise new ground of review on appeal – whether adequate explanation provided for failure to raise ground of review before primary judge – whether proposed new ground has sufficient merit – leave granted ...

Catchwords: INDUSTRIAL LAW - appeal from decision on preliminary issue - primary judge found that swim coach appellant was not covered by Fitness Industry Award 2010 - principles of construction of industrial awards - appellant covered by award at Level 4 on proper construction - appeal allowed in respect of preliminary decision - balance of issues in proceeding remitted to primary judge for trial ...

Catchwords: PRIVATE INTERNATIONAL LAW — stay application — proceedings alleging contraventions of Pt IV of Competition and Consumer Act 2010 (Cth) and s 21 of the Australian Consumer Law — where exclusive jurisdiction clause requires litigation relating to app developer agreement to occur in Northern District of California — whether there are strong reasons to refuse to grant the stay — whether there is a public policy that the proceeding should be heard in the Federal Court of Australia — whether clearly inappropriate forum — stay refused ...

Catchwords: INSURANCE - appeal from decision determining separate questions - where primary judge found insurer not entitled to rely upon s 28(3) of Insurance Contracts Act 1984 (Cth) to reduce liability to nil - where insured notified claim under insurance policy following cyclone damage - where insurer agreed to indemnify despite non-disclosure of prior defects - where insurer took steps consistent with providing indemnity - where insurer subsequently sought to disclaim liability on basis of non-disclosure - whether primary judge erred in finding that insurer estopped from resiling from representation made to insured to indemnify - whether detrimental reliance - whether primary judge erred in finding insurer waived entitlement to assert right under s 28(3) - whether primary judge erred in finding insurer breached duty of utmost good faith - whether decision of primary judge should be upheld on further basis that doctrine of election applies - consideration of circumstances in which doctrine of election applies - whether relief granted by primary judge proper and appropriate - appeal dismissed PRACTICE AND PROCEDURE - whether decision of primary judge rested on estoppel case not advanced before primary judge - consideration of nature and purpose of concise statement - consideration of distinction between concise statements and pleadings ...

Catchwords: PATENTS – three patents relating to single serve coffee capsules for use in an espresso machine – appeal against primary judge’s findings on infringement and claim validity – whether certain claims of two patents invalid for lack of inventive step – whether certain claims of the third patent were invalid because the invention, as claimed, was not fully described in the complete specification ...

Catchwords: BANKRUPTCY AND INSOLVENCY - appeals from decision finding whole or part of interests in properties held on resulting trust for bankrupt - where properties registered in names of parties associated with bankrupt - whether bankrupt provided all or part of purchase price for properties - whether presumption of resulting trust rebutted by evidence of intention of bankrupt to contrary - whether reasoning of primary judge rested upon finding of express oral trust not advanced in hearing - whether interest in property formed part of bankrupt estate of bankrupt's earlier bankruptcy - whether primary judge erred in using content of file note of solicitor as admission by bankrupt's mother of a trust - whether primary judge erred in finding payments of purchase price by companies associated with bankrupt were contributions by bankrupt - whether primary judge reasoned by process of impermissible speculation and conjecture - whether principle in Jones v Dunkel should not be applied where witness subjected to compulsory examination - appeals allowed in part ...

Catchwords: CORPORATIONS - appeal from decision of primary judge dismissing application for judicial review - product intervention orders under Part 7.9A of Corporations Act 2001 (Cth) - where Australian Securities and Investments Commission may make product intervention order to reduce risk of significant detriment to retail clients resulting from class of financial product - product intervention order made where financial product used in conjunction with collateral agreement - statutory interpretation - whether significant detriment to be considered having regard to context in which financial product used - whether class must have more than one current member ADMINISTRATIVE LAW - whether ASIC's state of satisfaction of significant detriment resulting from financial product lawfully formed - whether ASIC's state of satisfaction related to class of financial product ...

Catchwords: MIGRATION – where delegate of Minister cancelled applicant’s visa under s 501(3A) of Migration Act 1958 (Cth) (Act) – where Minister decided not to revoke cancellation – whether Minister lacked power under s 501CA of the Act to decide to not revoke the cancellation because decision to cancel visa made by delegate – Minister did not lack power under s 501CA of the Act MIGRATION – whether Minister failed to properly consider whether applicant may be a citizen of Zambia and may therefore be returned to Zambia if visa cancellation decision not revoked – Minister not required to consider whether applicant was a citizen of Zambia MIGRATION – whether in circumstances where applicant was represented and where applicant claimed to have been prevented from participating in hearing by video link Minister contravened s 256 of the Act – no contravention of s 256 of the Act MIGRATION – where applicant required leave to file a notice of appeal out of time – leave refused – application dismissed ...

Catchwords: ARBITRATION – international arbitration – enforcement of award – where supervisory court appointed the arbitral tribunal – whether composition of the arbitral tribunal was in accordance with the agreement of the parties – comity – whether enforcing court should accept that the appointment of the tribunal by the supervisory court was in accordance with the agreement of the parties ARBITRATION – international arbitration – enforcement of award – nature of the burden of proving a ground for non-enforcement – whether discretion to enforce award should nevertheless be exercised – nature of the discretion PRACTICE AND PROCEDURE – settlement – where parties settled “in principle” – where judgment was complete subject to administrative matters prior to settlement – whether Court can hand down judgment notwithstanding settlement “in principle” – Court has a discretion to hand down judgment where it is in the public interest to do so ...

Catchwords: ARBITRATION – international arbitration – application for recognition of award of the International Centre for Settlement of Investment Disputes under s 35(4) of the International Arbitration Act 1974 (Cth) (‘Arbitration Act’) PUBLIC INTERNATIONAL LAW – foreign state immunity – interpretation of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (‘ICSID Convention’) and the Arbitration Act – whether parties entitled to an order made pursuant to s 35 of the Arbitration Act and Art 54 of the ICSID Convention in the nature of an exequatur – parties so entitled PRACTICE AND PROCEDURE – orders – appropriate form of orders to preserve the distinction between recognition and execution of arbitral awards – appropriate form of orders so as to avoid derogation from the law in force in relation to immunity from execution – award to be recognised as if it were a judgment of the Court COSTS – intervention – whether unsuccessful intervener liable for costs – intervention resulted in the increase in costs to a degree – intervener liable for costs referable to the application to intervene ...

Catchwords: PRACTICE AND PROCEDURE – costs – appeal and cross-appeal – where appeal allowed and cross-appeal dismissed – whether, in relation to the appeal and cross-appeal, any basis to depart from the ordinary rule that costs follow the event – whether, in relation to the proceeding at first instance, it was appropriate to discount costs on account of the parties’ success and failure on certain issues PRACTICE AND PROCEDURE – stay – application for stay pending determination of application for special leave and any appeal to the High Court of Australia – where stay largely unopposed – whether power to stay declaration of patent invalidity – whether appropriate to grant stay in circumstances of present case – stay granted ...

Catchwords: CORPORATIONS – voidable transactions – unfair preferences – commencement and end dates of single transaction under s 588FA of the Corporations Act 2001 (Cth) COSTS – where both parties had some success on appeal – general rule that costs follow the event – each party to bear own costs of appeal ...

Catchwords: INSOLVENCY – application for discharge of summons issued under s 596B of the Corporations Act 2001 (Cth) (the Act) – scope of ‘examinable affairs’ of a company – Court does not have to be satisfied that the subject of proposed examination is within the examinable affairs of a company before exercising discretion to issue a summons under s 596B – sufficient if known facts show a relationship between the examinee and the examinable affairs of the corporation – Court need only be satisfied the proposed examinee may be able to give information about the examinable affairs of a company – whether material non‑disclosure by liquidator in affidavit in support of application for summons under s 596B of the Act PRACTICE AND PROCEDURE – application for extension of time to apply for leave to appeal dismissal of application for discharge of summons – delay minimal and reason for delay satisfactorily explained – no merit in proposed grounds – application refused ...

Catchwords: CONSUMER LAW – appeal from a decision of the primary judge that the appellants were knowingly concerned in contraventions of s 18 of the Australian Consumer Law – where representations made to prospective franchisees created the overall impression that franchisor intended to charge in a particular way – where overall impression was false and misleading as to the franchisor’s intentions as to the way it would charge –whether evidence of six franchisees could be extrapolated so as to find that representation was made to all prospective franchisees – appeal dismissed CONSUMER LAW – appeal from a decision of the primary judge that the appellants were knowingly concerned in contraventions of s 21 of the Australian Consumer Law and contraventions of cl 6 of the Franchising Code of Conduct – where appellants were director and national franchising manager of company – whether company engaged in unconscionable conduct and did not act in good faith by its charging practices – where franchisees were charged in staged payments and told these payments would be for the set-up and fit-out of franchise – where payments were instead applied to meet general expenses of the company and pay commissions – whether evidence of six franchisees could be extrapolated to all prospective franchisees – whether primary judge could make findings of fact relied upon to find unconscionable conduct – whether a system of systematic dishonest conduct sufficient to establish unconscionability – whether finding of unconscionable conduct illogical – appeal dismissed CONSUMER LAW – appeal from a decision of the primary judge that the appellants were liable to pecuniary penalties, injunctions, disqualification and redress – where penalties imposed exceeded single statutory maximum – whether appellants engaged in one system of conduct or a series of dealings with consumers – whether penalties were manifestly excessive – where primary judge ordered that a trust fund be created for consumer redress to be administered by an accountant under Court supervision – whether redress orders beyond power – whether quantum of funds to be contributed to redress fund arbitrary, inappropriate or manifestly excessive – whether disqualification orders were manifestly excessive – appeal dismissed ...

Catchwords: PATENTS – standard patent claiming method for detection of presence of foetal DNA in maternal plasma or serum – validity – infringement PATENTS – validity – whether manner of manufacture within the meaning of s 18(1)(a) of the Patents Act 1990 (Cth) – whether patent claimed a mere discovery of a naturally occurring phenomenon or a method involving a practical application of that discovery – claims disclose a manner of manufacture PATENTS – validity – lack of sufficiency – whether claims directed to multiple methods – whether each method needs to be sufficiently described – whether specification enables skilled addressee to produce something within each claim – claims sufficiently described PATENTS – validity – lack of fair basis – construction of specification and claims – whether real and reasonably clear disclosure in specification of what is claimed – whether specification only discloses a method for detecting foetal DNA known in advance to be of maternal origin – where examples in specification are expressed to not limit the scope of the invention – claims fairly based PATENTS – infringement – where claimed method performed outside of jurisdiction – whether information resulting from use of claimed method can be characterised as a “product” within definition of “exploit” in Schedule 1 of the Patents Act 1990 (Cth) – appeal against infringement findings allowed in part ...

Catchwords: MIGRATION – continuation of pseudonym and non‑publication order – where appellant had been given a pseudonym in proceeding below without order for that to occur – where both primary judge and Administrative Appeals Tribunal made orders restricting publication of information in witness statement – where appellant indicated he might apply for protection visa in the future but where s 91X of the Migration Act 1958 (Cth) did not apply – where Tribunal made non-publication order of witness’ statement due to concerns about safety of a person – where appellant’s name and details of his case was available online in Tribunal’s published reasons – whether pseudonym and non-publication order necessary to prevent prejudice to the proper administration of justice or protect safety of a person pursuant to s 37AG(1) of the Federal Court of Australia Act 1976 (Cth) – held : pseudonym not justified; only part of witness statement warranted non-publication order pursuant to s 37AG(1)(c). ...

Catchwords: PRACTICE AND PROCEDURE – interlocutory application – single judge exercising appellate jurisdiction of Court under Federal Court of Australia Act 1976 (Cth) to dismiss appeal by way of final orders for failure on part of appellant to provide security for costs – appeal dismissed for failure to provide security for costs ...

Catchwords: COSTS – indemnity costs – claim for indemnity costs based on offers to compromise made under rule 25.01 of the Federal Court Rules 2011 (Cth) – whether costs should be awarded on an indemnity basis – where offerees made application a month after judgment – where rejections of offers were not unreasonable – indemnity costs not awarded ...

Catchwords: INDUSTRIAL LAW – claims made under ss 340 and 358 of the Fair Work Act 2009 (Cth) – whether primary judge erred in dismissing claims CORPORATIONS LAW - claim made under s 232 of the Corporations Act 2001 (Cth) - whether primary judge erred in dismissing claim APPEALS – findings of fact – not shown to be glaringly improbable – role of appellate court in reviewing findings of fact ...

Catchwords: BANKRUPTCY – appeal from decision of the Federal Court of Australia – whether a single joint creditor has standing under s 90-20 of the Insolvency Practice Schedule (Bankruptcy), Schedule 2 of the Bankruptcy Act 1966 (Cth) to apply for an order to remove and replace a trustee pursuant to s 90-15 – whether proof of debt capable of being lodged by one only of joint creditors – proper characterisation of “creditor” in the Insolvency Practice Schedule – meaning of “creditor” derived from nature of the creditor’s obligation and statutory context in which that expression is used – appeal dismissed ...

Catchwords: MIGRATION – appeal from decision of primary judge to dismiss application for judicial review of Minister’s decision to cancel the applicant’s visa under s 501(3) of the Migration Act 1958 (Cth) – whether s 501(3) can be “re-exercised” by the Minister – whether Minister for Immigration and Border Protection v Makasa (2021) 95 ALJR 117 (Makasa) can be applied by analogy – where the evidence showed that the Minister’s earlier decision was in reference to s 501(2) – whether s 501 ought to be construed as conferring but one visa cancellation power – held by the Court that there was no “re-exercise” of the power in s 501(3) – whether the Minister misunderstood the operation of s 501(3) by failing to appreciate that he was not precluded from giving effect to the rules of procedural fairness – where the primary judge did not have a special advantage at trial to make an evaluative decision – where Ministerial reasons and related submissions were neutral as to evidence of the misunderstanding – where the appellant bears the onus of establishing the factual premise – appeal dismissed PRACTICE AND PROCEDURE – application for leave to rely on grounds not raised in the original jurisdiction – where grounds raised as a result of the High Court Decision in Makasa handed down after final orders made in the original jurisdiction – leave granted ...

Catchwords: TAXATION – interaction between div 855 of the Income Tax Assessment Act 1997 (Cth) (1997 Act), sub-div 115-C of the 1997 Act and div 6 and div 6E of the Income Tax Assessment Act 1936 (Cth) (1936 Act) considered – where capital gains made by a resident trust estate from non‑taxable Australian property distributed to non-resident beneficiary – where trustee assessed in respect of those gains pursuant to s 115-220 of the 1997 Act and s 98 of the 1936 Act – where foreign resident beneficiary also assessed in respect of those gains pursuant to s 115-215(3) of the 1997 Act – whether s 855-10 of the 1997 Act applied to the foreign resident beneficiary to disregard the capital gains – whether s 855-10 has any operation in the calculation of the amounts required to be calculated under ss 115-215 and 115‑220 in sub‑div 115-C – construction of s 855-10 and sub-div 115-C – appeal dismissed ...

Catchwords: MIGRATION – appeal from Federal Court of Australia – application for judicial review of decision of the Administrative Appeals Tribunal affirming decision not to revoke mandatory cancellation of Appellant’s partner visa – whether the Tribunal failed to consider the impact on a victim of the cancellation of the visa – whether there was denial of procedural fairness to the Appellant – appeal dismissed ...

Catchwords: WORKERS’ COMPENSATION – appeal from Administrative Appeals Tribunal – whether employee suffered “disease” within meaning of s 4(1) of Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether employment must continue to contribute to ailment to a material degree – whether employee entitled to compensation pursuant to ss 14 or 16 in respect of injury that has resolved – whether entitlement to compensation pursuant to s 19 is dependent on entitlement to compensation pursuant to s 14 – appeal dismissed ...

Catchwords: MIGRATION – appeal from decision dismissing application for judicial review – decision by Minister not to revoke mandatory cancellation of appellant's visa under s 501CA of the Migration Act 1958 (Cth) – appellant made representations out of time – Minister accepted that representations were made within time but later said that they were not – held: proper construction of Migration Act does not permit Minister to issue a second invitation to a person to make representations under s 501CA – appeal dismissed ...

Catchwords: MIGRATION – where Administrative Appeals Tribunal (AAT) refused to revoke mandatory cancellation of visa – whether procedural unfairness and practical injustice in AAT’s treatment of expert evidence – failure to put adverse considerations not in evidence to the expert where he was not called to give evidence before Tribunal – whether considerations not in evidence were determinative of the decision on the issue said to be addressed by the expert ...

Catchwords: COSTS – discretion to award costs – costs of trial and appeal – where respondent succeeded at trial – where appellant’s success depended on one ground not squarely raised below – whether to depart from usual costs rule – consideration of ‘public interest litigation’ – where particular circumstances of the case justified departure from the usual costs rule ...

Catchwords: REPRESENTATIVE PROCEEDINGS – shareholder class action – claims brought on behalf of non-resident shareholders – dual listed company structure – whether provisions of Pt IVA of the Federal Court of Australia Act 1976 (Cth) capable of application to group members not resident in Australia – procedure under Pt IVA – consideration of the meaning of “claim” under s 33C – question of jurisdiction better defined as whether Pt IVA permits an applicant to define group membership as including claims of non-residents – statutory presumption against extraterritorial operation of legislation – s 33C directed to when a particular form of proceeding can be commenced in an Australian court – presumption has no work to do – consideration of class action regimes in different common law jurisdictions and the issue of non-resident group members – consideration of s 33KA of the Supreme Court Act 1986 (Vic) – whether the Court should exercise its discretion to exclude non-resident group members from the proceeding – order could be fashioned if and when appropriate – strike out application – whether the claims brought on behalf of the shareholders in the United Kingdom company were viable EQUITY – Pt IVA supplements powers Court always had and has as a court of equity to hear and determine in a single proceeding the multiple claims against a respondent – consideration of the powers the Court of Chancery had in relation to the conduct of a representative proceeding – concept of jurisdiction not based on mere presence and service, but upon a sufficient connexion being shown between the dispute and forum – purpose of Pt IVA not to narrow regimes that existed in equity’s exclusive or auxiliary jurisdiction – curious result if one could be a group member in a Chancery rule representative proceeding but not under Pt IVA procedures PRIVATE INTERNATIONAL LAW – authority of the Court to decide personal actions of non-residents – consideration of the jurisdictional “anchor” – Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; (2002) 211 CLR 1 – territorial nexus the capacity to exercise power over a respondent HIGH COURT AND FEDERAL COURT – federal jurisdiction – whether Pt IVA confers jurisdiction on the Court or establishes powers and procedures by which the Court can exercise jurisdiction ...

Catchwords: ADMINISTRATIVE LAW – challenge to validity of a determination made by the Health Minister under s 477(1) of the Biosecurity Act 2015 (Cth) – where determination prevented Australian citizens, permanent residents, or operators of outgoing aircraft or vessels from leaving Australian territory, unless an exemption applied – whether determination requires an individual to be subject to a biosecurity measure of a kind set out in Subdiv B of Div 3 of Pt 3 of Ch 2 of the Act and is therefore invalid by reason of s 477(6) – whether s 477(6) prevents a determination applying to a group or class of individuals STATUTORY INTERPRETATION – whether s 477(3)(b) of the Biosecurity Act 2015 (Cth) refers to “places” outside Australian territory – whether Act displaces presumption that references to the singular include the plural ...

Catchwords: BANKRUPTCY – application for leave to appeal and extension of time to appeal from orders of Federal Circuit Court refusing to set aside bankruptcy notice and dismiss proceedings – where appellant conceded that costs assessment underlying the bankruptcy notice was affected by error – where respondent had filed an application to set aside the bankruptcy notice – whether primary judge had a discretion to set aside bankruptcy notice and dismiss proceedings – where review process by specialist review panel to correct costs assessor’s determination available – sufficient doubt to warrant grant of leave – substantial injustice would result if leave not granted – leave to appeal and extension of time to appeal granted – appeal allowed ...

Catchwords: MIGRATION – appeal against declaration that the respondent is an “Australian citizen” within meaning of s 4(1)(b) of the Australian Citizenship Act 2007 (Cth) – where respondent born in the Australian external territory of Papua prior to Independence Day – where respondent’s parents both naturalised Australian citizens – whether the respondent became a citizen of Papua New Guinea (PNG) on Independence Day by virtue of s 64 and s 65 of the PNG Constitution and regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulation 1975 (Cth) – whether the respondent would have been an “immigrant” for the purpose of s 6(1) of the Migration Act 1958 (Cth) as at 16 September 1975 – consideration of “immigration” in s 51(xxvii) of the Constitution – where respondent’s parents held domicile of Australia – whether respondent held domicile in Australia – appeal dismissed PRACTICE AND PROCEDURE – where appeal required consideration of the unwritten law of PNG – where the law reports and legislation of PNG taken into account pursuant to s 174 and s 175 of the Evidence Act 1995 (Cth) – parties given opportunity to make further submissions on additional material considered by the Court ...

Catchwords: SOCIAL SECURITY – appeal from decision of primary judge to dismiss application for judicial review under Administration Decisions (Judicial Review) Act 1977 (Cth) – appellant’s Newstart allowance suspended for non-compliance with mutual obligation requirements under s 42AF of Social Security (Administration) Act 1999 (Cth) –legislative scheme of Pt 3, Div 3AA considered – where suspension decision made under s 42AF(1)(a) – where allowance reinstated and appellant repaid allowance without imposition of “reconnection requirement” – appellant sought review of respondent’s conduct in allegedly refusing to conduct internal review of suspension decision – where s 129 internal review decision provided to appellant after judicial review proceedings instigated – judicial review proceedings futile – adequate provision of merits review in Administrative Appeals Tribunal – no denial of procedural fairness – no appealable error established ...

Catchwords: INDUSTRIAL LAW — interpretation of enterprise agreement providing for wage increases after nominal expiry date — where primary judge had held that employer contravened the Fair Work Act 2009 (Cth) for failing to pay wage increases after nominal expiry date and before new agreement came into effect — where the condition for those increases was “the absence of re-negotiation”, whether properly construed the phrase referred to the absence of a re‑negotiated agreement, as the primary judge determined or the failure to begin the process of re-negotiation, as the employer contended — where the increases for which the agreement provided after the nominal expiry date were expressed as “the agreed increase of pay for each anniversary such date thereafter”, whether the date in question was the nominal expiry date of the agreement, as the employer contended, or the date of the last increase of pay detailed in the remuneration clause, as the primary judge found — where delay in complaining about contravention, whether primary judge erred in awarding interest on unpaid amounts ...

Catchwords: ADMINISTRATIVE LAW – citizenship – appeal from Administrative Appeals Tribunal on question of law under s 44 of Administrative Appeals Tribunal Act 1975 (Cth) – revocation of the applicant’s Australian citizenship under s 34(2) of the Australian Citizenship Act 2007 (Cth) – whether the Tribunal erred – whether discretion to revoke considered separately from public interest – whether the Tribunal considered an open offer made in the proceeding – whether the applicant was a dual citizen of Ireland – limited review of a state of satisfaction – whether if there was uncertainty in relation to the applicant’s dual citizenship that should have been considered in the exercise of the discretion – whether an earlier Tribunal decision was a thing in fact under the Australian Citizenship Act 2007 (Cth) despite being affected by jurisdictional error such as to make effective the applicant’s renunciation of Irish citizenship ...

Catchwords: CORPORATIONS - application for leave to appeal from interlocutory decision - appeal from interlocutory decision not to restrain arbitration in California - where parties entered into licence agreement to manufacture and sell almond milk products - where licence agreement provides for arbitration of any controversy between parties in California - where respondent commenced arbitration on basis of licence agreement - whether licence agreement is franchise agreement for purpose of Franchising Code of Conduct - whether arbitration clause of no effect due to contravention of Code - where Code provides that franchise agreement must not contain clause requiring arbitration in jurisdiction outside Australia - consideration of definition of franchise agreement in Code - leave to appeal granted - appeal dismissed ...

Catchwords: MIGRATION – application for non-publication order – whether the appellant’s name should be replaced with a pseudonym – where a pseudonym is sought to assist the appellant to re-establish himself and gain employment in the United Kingdom – whether the order is necessary to prevent prejudice to the proper administration of justice ...

Catchwords: BANKRUPTCY – appeal from orders made by the Federal ‍Circuit Court – where primary judge made a sequestration order against appellant’s estate – whether primary judge denied appellant procedural fairness – where appellant is self-represented – where primary judge did not advise appellant of his right to cross-examine – where appellant filed material with the Court – where material not before primary judge – where only single copy of material available between appellant and primary judge at hearing – where appellant required to make submissions without the benefit of his copy of the material – where no opportunity for trial judge to have fully read the appellant’s material – where appellant not informed at outset of hearing of time available to make submissions – where additional time to make submissions permitted on an ad hoc basis – appeal allowed BANKRUPTCY – sequestration orders – where sequestration order made by primary judge is to be set aside – whether creditor’s petition has lapsed by reason of s 52(4) of the Bankruptcy Act 1966 (Cth) – where more than 12‍months lapsed since presentation of creditor’s petition – where sequestration order made within 12 months of presentation of creditor’s petition – creditor’s petition has not lapsed BANKRUPTCY – application by trustees in bankruptcy for the Court to exercise its discretion to annul the appellant’s bankruptcy under s ‍B of the Bankruptcy Act 1966 (Cth) instead of setting aside the sequestration order – where trustees seek entitlement to remuneration and expenses to date under s 153B of the Bankruptcy Act 1966 (Cth) in administering the appellant’s bankrupt estate – where trustees chose to intervene in appeal to advance their case but did not participate in substance of appeal – where trustees proceeded to incur costs in administering the appellant’s bankrupt estate despite knowledge of this appeal – application dismissed ...

Catchwords: INDUSTRIAL LAW – statutory interpretation – construction of Live Performance Award 2010 – where employer in live performance industry employed disc jockey as a casual to work usually at private functions – whether “performance” as defined had to be open to general public for Award to apply – held: Award applied where employer of disc jockey received payment or benefit for performance. ...

Catchwords: BANKRUPTCY AND INSOLVENCY – appeal from Federal Circuit Court of Australia – where primary judge dismissed application for summary judgment to set aside notice issued pursuant to s 139ZQ of the Bankruptcy Act 1966 (Cth) by Official Receiver – where underlying basis for notice issued pursuant to s 139ZQ was to recover transfer at undervalue within meaning of s 120(1) of the Act – whether limitation period in s 127(3) of the Act requires a notice issued pursuant to s 139ZQ to be complied with or sought to be enforced within six years – appeal dismissed ...

Catchwords: TRADE MARKS – ownership of trade marks – vodka products – competing claims to ownership of trade marks between Russian Federation entities and Dutch company – permanent stay of cross-claim – failure to give proper discovery – extent of permanent stay – whether issues estoppel arising from Dutch litigation should have been permitted to be further litigated – relevance and application under Australian law of the principle in Arnold v National Westminster Bank plc [1991] 2 AC 93 – whether discretionary defences of laches, equitable estoppel and rectification under s 88 of the Trade Marks Act 1995 (Cth) should have been permitted to be further litigated – relevance of the discovery given in the US proceeding to the discharge of Australian discovery obligations – leave to adduce new evidence concerning US proceeding – leave refused – principles to apply in permanently staying a proceeding for want of discovery – exercise of discretion – discussion of Clifton (Liquidator) v Kerry J Investment Pty Ltd (2020) 379 ALR 593 – whether discretion miscarried – appeal allowed – limited remitter ...

Catchwords: MIGRATION – appeal from decision of Federal Circuit Court – where Federal Circuit Court affirmed decision of Immigration Assessment Authority – leave to raise new ground on appeal granted – where audio recording of interview unavailable – whether Authority erred by failing to exercise discretion under s 473CB to invite applicant to an interview to remedy non-provision of review material – non-provision of audio recording not material – appeal dismissed ...

Catchwords: TAXATION – income tax – deductibility – payments made upon entering into lease and license agreements of franchise restaurants – payments described as prepayments of rent – whether payments were capital in nature or on revenue account – characterisation of advantage sought – where the quantum of the prepayment was calculated without reference to the terms of the lease and license agreements ...

Catchwords: HUMAN RIGHTS – claim of sexual discrimination and disability discrimination by employer – where applicant claims loss and damage caused by exacerbation of anxiety and depression – where applicant refuses to undergo a psychiatric examination to allow the respondent to adduce expert evidence – where primary judge ordered a permanent stay of proceedings consequent upon the applicant’s refusal – whether the order for a permanent stay was a just determination of the proceedings HUMAN RIGHTS – appeal from orders for a permanent stay of proceedings – whether orders are interlocutory in nature – whether leave to appeal is required pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) – whether a permanent stay consequent upon a refusal to be medically examined is an interlocutory judgment that affects the liberty of an individual – consideration of the principles in Talacko v Talacko (2010) 183 FCR 297 EVIDENCE – admission into evidence of extracts of a psychiatric report contained in a pleading filed in separate proceedings brought by the applicant in a different court – where the respondent obtained the pleading by making an access request to the other court – where the respondent adduced extracts of the psychiatric report to demonstrate a proper basis for seeking its own medical examination of the applicant by its nominated expert – whether the primary judge misconstrued various provisions of the Evidence Act 1995 (Cth) in allowing the extracts to be adduced for this limited purpose only ...

Catchwords: INDUSTRIAL LAW – appeal and cross-appeal – claims arising from non-payment of employment entitlements – cross-claim arising from damage caused by breaches of employment obligations – secondment of employee to related foreign corporation – whether claims for unpaid entitlements inure as against Australian employer or foreign second employer – whether non-payment of certain entitlements contravened Fair Work Act 2009 (Cth) – whether primary judge erred in failing to make findings concerning alleged contraventions – whether primary judge erred by not imposing civil penalties for alleged contraventions – where limited power in proceedings in relation to a matter arising under the Fair Work Act to order that costs incurred by one party be paid by another, whether primary judge erred in awarding costs to respondents – whether cross-claim was a proceeding in relation to a matter arising under the Act – whether primary judge erred in calculating entitlement to long service leave – whether primary judge erred in finding that two payments made in settlement of third-party litigation were reasonably recoverable as damages for breach of employee’s duties – whether a third such payment ought also to have been recoverable – whether circumstances warranted a single, net judgment CONTRACT – termination of employment for misconduct – settlement of proceedings instituted by third parties in consequence of employee’s misconduct – whether settlement amount reasonably recoverable from employee as damages ...

Catchwords: CORPORATIONS – voidable transactions – unfair preferences – interpretation of s 588FA of the Corporations Act 2001 (Cth) – whether there was a continuing business relationship in the form of a running account – whether the peak indebtedness rule applies in the context of s 588FA(3) of the Act – meaning of “all transactions” – rule not applied – good faith defence under s 588FG(2) of the Act not made out – where defendant creditor had notice of insolvency – unnecessary to decide threshold question under s 553C of the Act of whether set-off is available in unfair preference claims ...

Catchwords: ENVIRONMENT LAW – statutory interpretation of exemption from Part 3 of the Environmental Protection Biodiversity Act 1999 (Cth) (EPBC Act) set out in s 38(1) the Act – whether conduct of forestry operations must be undertaken in accordance with any restrictions, limits, prescriptions, and contents of the Central Highlands Regional Forest Agreement (CH RFA) and the Code of Practice for Timber Production 2014 (Code) to secure the benefit of the exemption ENVIRONMENT LAW – alternative grounds of appeal relating to loss of exemption from Part 3 of the EPBC Act – whether failure to apply the precautionary principle as required by clause 2.2.2.2 of the Code resulted in the loss of the s 38(1) exemption – whether the preparation and promulgation of a Timber Release Plan is a ‘forestry operation’ as defined in the CH RFA – whether s 38(1) exemption is lost for every aspect of a forestry operation if the operation is not undertaken ‘in accordance with’ the Code in at least one respect – whether any of the impugned coupes are subject to the s 38(1) exemption ENVIRONMENT LAW – alternative grounds of appeal relating to construction and application of precautionary principle in the Code – whether precautionary principle is subject to two conditions precedent – whether precautionary principle requires that measures be taken to avoid all risks to threatened species – whether VicForests likely to comply with precautionary principle – whether error in the primary judge’s assessment of expert evidence ENVIRONMENT LAW – alternative grounds of appeal relating to miscellaneous alleged breaches of the Code and Management Standards and Procedures for Timber Harvesting Operations in Victoria’s State Forests – whether primary judge erred in finding that there was sufficient evidence to make findings relating to statutory prohibition against taking action likely to have significant impact on listed threatened species ...

Catchwords: PATENTS – standard and innovation patents for a method for detecting fluid injection in a patient – whether invalid for lack of novelty – working in public of the invention within the period of 12 months before the priority date – working for the purposes of “reasonable trial” – grace period exception under s 24(1)(a) of the Patents Act 1990 (Cth) – reg 2.2(2)(d) of the Patents Regulations 1991 (Cth) – infringement of patents – indirect infringement – s 117(2)(b) of the Act – application of objective standard – “reason to believe” – whether primary judge applied a subjective test – additional damages for infringement – s 122(1A) of the Act – exercise of discretion – appeal allowed ...

Catchwords: MIGRATION – protection visa – where the first respondent entered Australia by boat and was taken to what was then thought to be a “proclaimed port” – where the first respondent’s case was dealt with for several years on the assumption he was an “unauthorised maritime arrival” – where that assumption was incorrect – where, purportedly pursuant to s 195A of the Migration Act 1958 (Cth), the Minister granted the first respondent a temporary safe haven visa (for one week) and a bridging visa (for 12 months) – whether the grant of the temporary safe haven visa was valid – whether the first respondent’s application for a safe haven enterprise visa was valid – whether the Tribunal fell into jurisdictional error ...

Catchwords: PRACTICE AND PROCEDURE – application for release from implied Harman undertaking with respect to expert report borne out of mediation process in discontinued native title proceedings – report sought to be used by Glencore Coal for purpose of making representations regarding application under s 10 of Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (Heritage Act) by former applicants in the native title proceeding – where s 10 of Heritage Act concerns an exercise of executive power of a largely political character – consideration of circumstances in which a release from the implied Harman undertaking has been granted and applicable principles – whether primary judge erred in declining to exercise discretion to grant release from implied Harman undertaking – where strong public interest exists in ensuring Aboriginal peoples are not deterred from agreeing to the use of court processes in native title proceedings to assist in resolving their claims – appeal dismissed ...

Catchwords: MIGRATION – applicant brought to Australia under repealed s 198E of the Migration Act 1958 (Cth) for medical treatment – whether the applicant no longer needed to be in Australia for the temporary purpose pursuant to s 198AH(1A)(c) – appeal proceeding dismissed – in original jurisdiction proceeding whether the three preconditions in s 198AH(1A) met – whether the duty in s 198AD(2) engaged – the meaning of “reasonably practicable” pursuant to s 198AD(2) – declaratory relief granted ...

Catchwords: COSTS – application for indemnity costs – where appellant made a unilateral decision to remove certain pagination from the appeal book without notifying the first respondent – where costs incurred by first respondent updating submissions with references to new pagination – where decision was made in good faith – indemnity costs not awarded ...

Catchwords: TAXATION – research and development tax offset – where applicant held exploration permit for coal – where coal in the area had high level of ash content and the coal seams were banded – where applicant commenced a series of activities to investigate the nature and economic viability of mining the coal – where the Tribunal found that none of the registered activities were “core R&D activities” within the meaning of s 355-25(1) of the Income Tax Assessment Act 1997 (Cth) – where the Tribunal found that the exclusion in s 355-25(2)(b) applied – where the Tribunal found that the activities were not “supporting R&D activities” within s 355-30 – whether the Tribunal made findings for which there was ‘no evidence’ – whether the Tribunal applied the wrong legal test – held: appeal dismissed ...

Catchwords: CORPORATIONS – appeal from the order of the primary judge under s 70(3) of the Australian Securities and Investments Commission Act 2002 (Cth) that the appellant be required to comply with a notice to produce documents – where the primary judge found the appellant was in possession of documents for the purpose of production pursuant to the notice – where the documents were held by third party service providers – where the primary judge found the appellant lacked a reasonable excuse for failing to comply with the notice – whether the primary judge gave adequate consideration to the lack of cooperation by the third party service providers – whether the primary judge was compelled to accept certain documentary evidence in circumstances where it was not contradicted – whether the primary judge erred in finding it was necessary to lead evidence from the director of the appellant – whether the primary judge took irrelevant matters into account – appeal dismissed ...

Catchwords: MIGRATION – appeal from decision of Federal Circuit Court – where Federal Circuit Court found jurisdictional error in decision of Immigration Assessment Authority – whether Authority was not provided with all the “review material” – meaning of “review material”; “new information” – where audio recording or accurate transcript of interview unavailable – whether Authority had power to invite the applicant to an interview to remedy non-provision of review material – appeal allowed ...

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