FCAFC

Catchwords: HUMAN RIGHTS – discrimination – allegations of sexual harassment – vicarious liability – whether employer took all reasonable steps to prevent sexual harassment – delay between trial and decision by primary judge – whether judgment is unsafe due to delay of six years – whether primary judge failed to give adequate reasons – appeal allowed ...

Catchwords: BANKRUPTCY AND INSOLVENCY – appeal from judgment holding appellant bankrupt was joint proprietor of residential property – appellant contends his deceased brother in fact proprietor of property – further evidence admitted on appeal requiring reconsideration by different primary judge – appeal allowed on limited question ...

Catchwords: COSTS – whether petitioners’ costs should be paid by the Commonwealth or the petitioners themselves – whether first respondents’ costs should be paid by the Commonwealth or the petitioners – public benefit and public importance of petitions – whether s 360(4) of the Commonwealth Electoral Act 1918 (Cth) engaged COURT OF DISPUTED RETURNS – whether Court should direct Chief Executive and Principal Registrar of Federal Court to act in compliance with s 363 of the Commonwealth Electoral Act 1918 (Cth) ...

Catchwords: INDUSTRIAL LAW – appeal from liability and penalty decisions of a judge of the Federal Court of Australia – quantification of penalties – identification of contract for services and prejudice for adverse action arising from a threat to take industrial action – application of the course of conduct principle to industrial action on consecutive days –– application of s 556 to separate contraventions – totality and whether a judge’s statement that it has been considered should be accepted – parity in relation to a respondent who is in a markedly different position to other respondents – whether loss and cost must be quantifiable on the evidence before it can be taken into account ...

Catchwords: TAXATION – interest on overpayments – GST – where supplies which were GST-free erroneously included in Business Activity Statement – where taxpayer sent correspondence to Commissioner notifying that net amount in period ought to have been less than zero – where Commissioner purported to amend BAS to refund overpaid GST – where Commissioner refunded overpaid amounts – where taxpayer asserts Commissioner is required to pay interest from 14 days after the “effective date” of Commissioner’s “amendment” – whether Commissioner had power to amend BAS – effect of allocating an amount to a Running Balance Account – meaning of “RBA interest day” – whether correspondence to Commissioner a “notification that is required for the refund” under s 8AAZLG of the Taxation Administration Act 1953 (Cth) ...

Catchwords: BANKRUPTCY AND INSOLVENCY — appeal — where primary judge dismissed application to set aside a bankruptcy notice — where bankruptcy notice founded on debts arising from costs orders made in three proceedings — where primary judge held that no fraud, abuse of process or miscarriage of justice had been established — where primary judge held that there were no special circumstances to warrant going behind the earlier judgments and consequential costs orders — where primary judge held that the grounds for setting aside the bankruptcy notice amounted to an attempt to re-litigate the same legal and factual issues tried in the previous proceedings on the same evidence — whether appealable error by primary judge ...

Catchwords: MIGRATION – application for extension of time to file notice of appeal – where applicant sought to appeal decision of Federal Court of Australia dismissing application for review of decision of Administrative Appeals Tribunal affirming delegate’s decision not to revoke the mandatory cancellation of applicant’s Special Category Temporary visa under section 501(3A) of the Migration Act 1958 (Cth) – whether Court should exercise discretion to grant extension of time to file notice of appeal – where appeal has no prospects of success – application dismissed ...

Catchwords: MIGRATION – partner visa – onshore application not made in time to comply with Schedule 3 criteria – Tribunal determined that no “compelling reasons” to waive criteria – appellant father of citizen child of sponsor – relevance of UN Convention on the Rights of the Child – whether rights of the child “as a primary consideration” is a mandatory relevant consideration – whether Peko-Wallsend test applied based on particular circumstances of particular case – appeal dismissed ...

Catchwords: MIGRATION – appeal from Federal Court of Australia – where primary judge upheld Tribunal decision not to revoke mandatory cancellation of the appellant’s visa under s 501 of Migration Act 1958 (Cth) – whether Tribunal incorrectly applied Ministerial Direction 65 – whether Tribunal took irrelevant fact into account when considering the appellant’s ties to Australia – appeal dismissed ...

Catchwords: MIGRATION – appeals of decisions to refuse appellants protection visas under complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth) – consideration of scope of s 36(2)(aa) and meaning of “significant harm” in s 36(2A) – whether Tribunal in each case erred in applying decision in SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 (SZRSN) – whether decision in SZRSN correct – whether Tribunal in each case misapplied decision in SZRSN to appellants’ individual circumstances MIGRATION – whether Tribunal in VID 835 of 2019 erred in concluding s 36(2A) “does not encompass harm arising from mental illness or harm” – whether Tribunal in VID 835 of 2019 erred in applying decisions in CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 (CSV15) and CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089 – whether decision in CSV15 correct MIGRATION – whether Tribunal in VID 1276 of 2019 erred in failing to “deal with” certain country information relevant to appellant’s protection claims ...

Catchwords: PRACTICE AND PROCEDURE - discovery - where adequacy of discovery questioned after trial of preliminary issue and prior to hearing of appeals - whether liquidators of company complied with discovery orders - where liquidators sourced documents by obtaining hard copy documents, electronic images from certain servers and computers and by obtaining production orders - where hard copy documents of company disorganised - whether reasonable searches undertaken - whether electronic search terms for image searching sufficiently broad - where no interrogation of electronic records in cloud storage - where amount or nature of material in cloud storage unknown - whether technical difficulties a reason not to interrogate material - discovery inadequate PRACTICE AND PROCEDURE - discovery - meaning of “reasonable search” for the purposes of r 20.14 of Federal Court Rules 2011 (Cth) - whether requirement of reasonable search applies to non-standard discovery under r 20.15 - whether requirement of r 20.14 that documents be “directly relevant” applies to non-standard discovery under r 20.15 unless excluded on application PRACTICE AND PROCEDURE - relief - where parties who failed to comply with discovery in first instance proceedings are appellants - consequences of such failure on an appeal and cross appeal - where extent and effect of inadequate discovery on matters before primary judge unknown - where failure to comply with discovery orders is ongoing - effect of ongoing failure to make proper discovery - s 28 of Federal Court of Australia Act 1976 (Cth) - assessment of what will serve interests of justice - whether appeals should be dismissed where but for the question of discovery there may have been merit in grounds - whether remittal should be ordered - whether terms of remittal should be limited CORPORATIONS - winding up - where unfair preference claims brought by liquidators against creditors under s 588FF of Corporations Act 2001 (Cth) - whether the company was insolvent when payments made - where primary judge made findings as to date of insolvency - s 95A of Corporations Act 2001 (Cth) and “forward looking test” of insolvency - whether forecast as to future cash flow ought to have been taken into account CORPORATIONS - winding up - security - whether renewable energy certificates (RECs) were an asset of the company able to be realised to meet debts in the ordinary course of business - where sale other than in the ordinary course of the company's ordinary business restricted by terms of loan facility and security in favour of bank by way of fixed and floating charge - whether scale of proposed sale of RECs such that outside the ordinary course of business - whether consent of bank to sale of RECs could be inferred CORPORATIONS - winding up - tax - liability of company to Commissioner of Taxation - whether established that payment arrangement was in place under s 255-15 of Schedule 1 to Taxation Administration Act 1953 (Cth) - meaning of “due and payable” where used in s 255‑15 of Schedule 1 - statutory construction - whether open to treat tax obligation as deferred for reasons of “commercial reality” CONTRACT - construction and interpretation - subordination deed - consideration of loan agreement in construing subordination deed - whether subordination deed abandoned - whether subordination continued such that liability under loan agreement not due and payable ...

Catchwords: CONTRACTS – express obligations of confidence allegedly preventing voluntary communications with the solicitors for opposing party in litigation – primary judge followed AS v Minister for Immigration and Border Protection (Ruling No 6) [2016] VSC 774; 53 VR 631 in exercising a discretion to relieve persons owing otherwise enforceable obligations of confidence to facilitate the overarching purpose of civil litigation rather than considering whether the provisions were void at law because they had a tendency to interfere adversely with the administration of justice or were enforceable by way of injunction in equity – held that the approach in AS v Minister for Immigration and Border Protection (Ruling No 6) is contrary to principle leading to error in the making of the primary judge’s order CONFIDENTIAL INFORMATION – consideration of the sources of obligations of confidence PRACTICE AND PROCEDURE – consideration of orthodox approaches to enforcing obligations of confidence and obtaining information from potential witnesses in advance of trial ...

Catchwords: PATENTS – construction – whether the primary judge failed to construe the claim in the context of the specification as a whole – meaning of “formed from sheet material” – infringement – meaning of “sheet” – construction and infringement grounds of appeal dismissed PATENTS – award of additional damages – exercise of discretion under s 122(1A) of the Patents Act 1990 (Cth) – threshold for “flagrant” infringement – existence of a reasonably arguable defence to infringement – requirement to consider all other relevant matters contemplated by s 122(1A) – appeal allowed in part ...

Catchwords: COURT OF DISPUTED RETURNS – electoral petitions filed – s 329(1) of the Commonwealth Electoral Act 1918 (Cth) – whether corflutes used likely to mislead or deceive an elector in relation to the casting of a vote – s 362(3) of the Commonwealth Electoral Act 1918 (Cth) – whether Court satisfied that the result of the election was likely to be affected STATUTORY INTERPRETATION – meaning of “likely to mislead or deceive” – “an elector” – “in relation to the casting of a vote” – “cause, permit or authorize” – “the result of the election was likely to be affected” ...

Catchwords: COSTS – where six appeals involving common substratum of fact were heard together and later dismissed, save for partial success by one appellant – whether a lump sum costs order should be made in favour of certain respondents – whether and how liability for the lump sum amount should be apportioned between the appellants – consideration of the overarching purpose in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) – lump sum costs orders made and apportioned by way of percentage breakup with quantification of lump sum amount to be determined by a single judge ...

Catchwords: ADMINISTRATIVE LAW - appeal from decision of the Federal Circuit Court quashing decision of a delegate of the Secretary relating to the payment of child care benefits - where respondent was a provider of child care services - consideration of the provisions of the A New Tax System (Family Assistance) Act 1999 (Cth) and the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) - where delegate found that there was no genuine liability to pay as required under s 43(1)(c) of the Act - where delegate calculated a zero rate and nil amount in fee reduction - whether delegate was required to consider the actual arrangements made by the provider with the eligible individuals - whether primary judge erred in finding that the delegate failed to undertake the statutory task in failing to consider a mandatory relevant consideration - whether primary judge erred in finding that the delegate's decision was unreasonable - where primary judge erred in undertaking the task entrusted to the delegate on review - appeal allowed ...

Catchwords: ADMINISTRATIVE LAW – judicial review of a decision of the Registrar to the National Native Title Tribunal – application to review the decision to register six indigenous land use agreements (ILUAs) – whether the Registrar erred in concluding that all the people identified as holding native title rights in respect of the settlement area had authorised the making of the ILUAs NATIVE TITLE – s 203BE of the Native Title Act 1993 (Cth) (NTA) – certification of applications for registration of ILUAs – s 251A of the NTA – authorising the making of ILUAs – objections under s 24CI(1) on the grounds that the requirements of paragraphs 203BE(5)(a) and (b) were not satisfied NATIVE TITLE – certifications under s 203BE(1)(b) of the NTA – where certifications made by the chief executive officer – consideration of Northern Land Council v Quall [2019] FCAFC 77 – where the Aboriginal and Torres Strait Islander corporation was incorporated under the Corporations (Aboriginal & Torres Strait Islander) Act 2006 (Cth) ...

Catchwords: PRACTICE AND PROCEDURE – leave to appeal from interlocutory decision granted – failure to file notice of appeal within time – application for extension of time – extension refused – delay on part of applicant – insufficient prospects of success – interests of justice – finality in litigation EVIDENCE – claim for legal professional privilege – discretion to inspect documents – discretion did not miscarry ...

Catchwords: NATIVE TITLE – non-claimant applications that native title does not exist in respect of certain land and waters in Queensland and New South Wales – applications opposed – whether applicants able to prove on balance of probabilities that native title does not exist in land and waters – consideration of nature of evidence required to discharge burden of proof in non-claimant applications – applications granted ...

Catchwords: MIGRATION – application for judicial review of a ministerial decision under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of a visa – appeal from a single judge of the Federal Court of Australia – whether permanent removal from Australia was a legal consequence of the minister’s decision – whether the minister was obliged to or did take account of that consequence – whether the primary judge erred by not accepting that the minister’s decision was the product of jurisdictional error – appeal dismissed ...

Catchwords: MIGRATION – appeal from a decision of the Federal Court of Australia – where appellant’s visa cancelled by delegate of the Minister for Home Affairs under mandatory cancellation provisions – where delegate of the Minister decided not to revoke mandatory cancellation – where Administrative Appeals Tribunal decided to revoke the cancellation of appellant’s visa – where Minister set aside Tribunal’s decision – where primary judge dismissed application for judicial review – where appellant sought leave to raise new grounds on appeal – whether leave to be granted to appellant to raise new grounds on appeal – whether Minister misdirected himself regarding the operation of s 501BA(3) of the Migration Act 1958 (Cth) – whether, if further representations were received by the appellant, those representations could realistically have produced a different result – held: leave granted to raise new grounds on appeal – appeal allowed ...

Catchwords: SUPERANNUATION – whether principal racing authority liable to pay superannuation guarantee charges – construction of s 12 of Superannuation Guarantee (Administration) Act 1992 (Cth) – whether principal racing authority is “employer” of jockeys – whether principal racing authority liable to pay riding fees to jockeys – where principal racing authority stated that it would pay jockeys – where principal racing authority in fact paid jockeys – where principal racing authority prepared recipient created tax invoices reflecting liability to pay – whether payments made “on behalf of” another person – where amounts paid not reimbursed by another person TAXATION – appeal from objection decision – onus of establishing that assessments excessive or otherwise incorrect – whether onus discharged CONTRACTS – nature of contractual relations in regulated industry of thoroughbred horse racing – relevance of statutory instruments and rules of sport to formation of contracts – engagement by third parties to participate in races APPEAL AND NEW TRIAL – whether appellable error in approach to evidence adduced on appeal from objection decision – where evidence of past events not adduced from contemporaneous witnesses – relevance of evidence relating to arrangements prior to the relevant period ...

Catchwords: SUPERANNUATION – whether respondent race club was liable to pay a superannuation guarantee charge in respect of riding fees paid to jockeys during the relevant period – whether jockeys engaged to ride in races or barrier trials were employees of the respondent race club within the extended definition in s 12(8)(a) of the Superannuation Guarantee (Administration) Act 1992 (Cth) – whether the primary judge erred in holding that the respondent race club discharged its burden to show it was not “liable” to pay riding fees to jockeys engaged by owners or trainers – appeal allowed TAXATION – appeal from objection decision in the Court’s original jurisdiction under s 14ZZ of the Tax Administration Act 1953 (Cth) – whether the primary judge impermissibly reversed the onus of proof under s 14ZZO(b)(i) ...

Catchwords: TAXATION – public trading trusts – whether a unit trust is a public trading trust – whether an exempt entity had the right to acquire or become the holder of units in the unit trust that entitled it to not less than 20% of the beneficial interests in the income or property of the unit trust – whether s 102P(10) of the Income Tax Assessment Act 1936 (Cth) on its proper construction provides for a proportionate tracing of units through one or more interposed trusts TAXATION – trust income – whether trustee of a trust exercised the power to accumulate income by crediting its accounting profit to a “Retained Profits Account” rather than distributing it to the unitholders – whether financial statements of the trustee were sufficient to prove that it had exercised a certain power under the trust deed – whether the taxpayer was presently entitled to a share of the net income of the trust TRUSTS – construction of trust deed – relevance of surrounding circumstances – ambiguity – mistake – where trust deed identified a named company “as trustee for” a specified superannuation fund as the “Second Absolute Beneficiary” of the trust – where the named company had in fact ceased to be the trustee of the superannuation fund – where a deed of rectification purported to rectify the trust deed as and from the establishment of the trust – whether the reference to the named company is a case of ambiguity or mistake – whether construction of the trust deed is to be undertaken having regard to evidence of surrounding circumstances ...

Catchwords: WORKERS’ COMPENSATION – appeal from single Judge of Federal Court – application under Seafarers Rehabilitation and Compensation Act 1992 (Cth) (‘Act’) s 128 for contribution by Appellant to payments made by Respondent in respect of injury of deceased former employee to his estate and widow under a ‘commercial settlement’ – where Respondent had not made administrative determination that compensation was payable – whether payments were ‘compensation’ under s 128 STATUTORY INTERPRETATION – meaning of ‘compensation’ in s 128 – whether ‘compensation’ means ‘compensation paid under the Act’ or to be given ordinary meaning – whether Act comprises two separate schemes concerning employer liability to employees and liability as shared amongst employers – whether Act a codification of employees’ entitlement to compensation ...

Catchwords: CORPORATIONS – whether primary judge erred in finding that a notice of disqualification from managing corporations was validly served on the appellant by ASIC under s 206F(4) of the Corporations Act 2001 (Cth) – whether s 206F required ASIC to serve the appellant directly rather than through an intermediary – application of “effective informal service rule” – appeal dismissed ...

Catchwords: MIGRATION – consideration of the scope of the conferral of jurisdiction upon the Federal Circuit Court of Australia by s 476 of the Migration Act 1958 (Cth) (the “Act”) – consideration of whether the contended failure on the part of the Minister’s delegate to discharge the obligations arising under s 501CA(3)(a) and (b) engages matters in relation to a decision under s 501(3A) notwithstanding no jurisdictional error challenge to the principal cancellation decision under s 501(3A) MIGRATION – consideration of whether the things required of the Minister (and his delegate) under s 501CA(3)(a) and (b) engage a “decision” for the purposes of s 474(2) and (3) of the Act and in particular s 474(3)(g) – consideration of whether the things required of the Minister (and his delegate) under s 501CA(3)(a) and (b) are merely steps along the way to a “decision” under s 501CA(4) – consideration of whether a “decision” for the purposes of s 501CA(3) is a decision of an “administrative character” for the purposes of s 474 of the Act MIGRATION – consideration of whether the reasoning in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 is necessarily inconsistent with the reasoning of the Full Court in SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207 MIGRATION – consideration of the content of the obligation arising under s 501CA(3) of the Act – consideration of whether the Minister’s delegate discharged the obligations arising under s 501CA(3) by causing documents to be handed to and signed for by an illiterate person in custody in the circumstances described in the reasons of the presiding judge – consideration of the irreducible minimum standard required by s 501CA(3)(a) and (b) – consideration of the extent to which s 497(2) of the Act operates to confer authority on a person to do those things required of the Minister by s 501CA(3) in circumstances where the person holds a delegation of the power to cancel a visa but not a delegation to do those things required of the Minister (and his delegate) under s 501CA(3) – consideration of the notion of the term “task” in s 497(2) of the Act – consideration of the Carltona principle ...

Catchwords: ADMINISTRATIVE LAW — appeal by leave from orders made by the Federal Circuit Court of Australia — where the respondent made an application for summary dismissal of the appellant’s claim — where the primary judge made orders dismissing the appellant’s application on the basis that the claim had no reasonable prospect of success — apprehended bias — whether a fair-minded lay observer might reasonably apprehend that the primary judge might not have brought an impartial and unprejudiced mind to the application — consideration of the difference between prejudgment and predisposition — whether it is necessary to consider the other grounds of appeal dealing with the merits ...

Catchwords: COSTS – application for respondents to pay costs of appeals on indemnity basis and the costs of trial – where respondent’s rejection of appellants’ Calderbank offer not unreasonable in all of the circumstances – where grounds of appeal were arguable but did not have good prospects of success – where appeals could not be allowed by consent unless Court satisfied that there was arguable appealable error by trial judge ...

Catchwords: STATUTORY INTERPRETATION - operation of fidelity fund scheme - where owners corporation made two claims under fidelity certificates issued by a fidelity fund approved under the Building Act 2004 (ACT) for loss flowing from alleged breaches of statutory warranties - where claims rejected by trustees of the fidelity fund on the basis the claims were made outside the period provided for under the fidelity fund scheme - whether trustees of the fidelity fund entitled to reject claims - appeal dismissed ...

Catchwords: INTELLECTUAL PROPERTY – copyright – appeal from orders dismissing an application for damages for infringement of copyright subsisting in a logo – whether first appellant was the sole owner of the copyright – whether, as co-owner, the first appellant could revoke a licence previously granted jointly by the co-owners to the respondents – whether the licence was revocable at will – whether licence previously granted to the respondents was revoked on the facts – no appealable error – appeal dismissed ...

Catchwords: MIGRATION - appeal from decision of the Federal Circuit Court dismissing application for judicial review of decision of the Administrative Appeals Tribunal affirming decision of a delegate of the Minister to refuse to grant the appellant a visa - where visa required satisfaction of the health criteria in cl 4007 of the Migration Regulations 1994 (Cth) - where delegate's refusal of the visa based on the appellant's son's failure to meet the health criteria by reason of his medical condition - where opinion prepared by Medical Officer as required by the Regulations - whether assessment undertaken by the Medical Officer sufficiently identified the nature and extent of the appellant's son's medical condition - whether opinion of Medical Officer was based on sufficiently current information - whether the Tribunal did not afford the appellant procedural fairness in failing to disclose a certificate issued under s 375A of the Migration Act 1958 (Cth) - where information covered by the certificate was used to determine the costs to the Australian community of medical and community services for the appellant's son - consideration of the primary judge's approach to materiality - appeal allowed ...

Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia – fast track review process – where the appellant provided to the Department certain documents relating to a complaint to the Human Rights Commission of Sri Lanka (the Human Rights Documents) – where the Human Rights Documents were not before the delegate of the first respondent at the time he made a decision to reject the appellant’s visa application – where the Secretary did not provide the Human Rights Documents to the Immigration Assessment Authority – where the appellant submitted the Human Rights Documents to the Authority but the Authority refused to consider them – where the Authority proceeded on the misapprehension that the Human Rights Documents had not been previously provided to the Department – whether the Secretary breached the obligation in s 473CB(1)(c) of the Migration Act 1958 (Cth) to give the Authority “any other material that is in the Secretary’s possession or control and is considered by the Secretary … to be relevant to the review” – whether the Authority failed to carry out the review required by Pt 7AA of the Migration Act ...

Catchwords: MIGRATION – appeal from the Federal Circuit Court – whether the primary judge erred in concluding that decisions of the Immigration Assessment Authority were vitiated due to fraudulent conduct of respondents’ representative –– primary judge’s characterisation of the representative’s conduct as ‘reckless indifference’ an implicit finding of fraud – respondents’ representative’s fraudulent conduct stultified the IAA’s function and vitiated the decisions – IAA was misled as to the factual nature of the respondents’ claims and did not seek alternative information from the respondents – primary judge’s reasoning adequately explained – appeals dismissed with costs. ...

Catchwords: DAMAGES – damages for wrongful repudiation of agreement – expectation damages – whether claim for expectation damages expressly abandoned in previous hearing – party is bound by forensic election – likelihood of attainment of a profit – whether evidence of projections of future earnings sufficient to prove a likelihood of attainment – where projections undermined by actual performance – projections rejected as reliable indicator of actual performance – whether losses arising naturally from the breach of the contract – claim for expectation damages rejected DAMAGES – reliance damages – whether reliance damages only available as an alternative to expectation damages – not bound to elect between types of damages – recoupment of reliance losses – whether trial judge included future operating expenses in calculation – onus fell on appellant to prove that the net value of the performed contract would not have covered the expenditure incurred prior to rescission – onus not met – where trial judge relied on a general percentage figure to calculate lost opportunity to recoup reliance losses – no error in approach – 30% of expenditure award maintained DAMAGES – additional mitigation damages awarded – whether sufficient basis to allow damages – whether mitigation losses can predate repudiation of the contract – losses do not logically relate to mitigation – award reduced TRADE MARKS – account of profits – where registered trade mark infringed by respondent by offering to supply and supplying applications for use on electronic devices – where trade mark used in relation to sales made both in Australia and other countries – whether profits recoverable by registered owner in respect of sales made in other countries – whether appellant clearly argued or sufficiently developed submissions with regard to applicability of s 228 of the Trade Marks Act 1995 (Cth) – matter not sufficiently raised – whether sales made in other countries shown to be based on offers to sell in Australia – ground dismissed – whether sales rightly attributed to the use of the trade mark – cross-appeal ground dismissed COPYRIGHT – infringement – whether cross-respondents jointly liable for copyright infringement – no evidence that infringement authorised by parent company – cross-appeal ground dismissed ...

Catchwords: INDUSTRIAL LAW — appeal from orders made by a judge of the Federal Circuit Court of Australia — where an employee of the first appellant engaged in protected industrial action — where the primary judge found that the first appellant took adverse action in contravention of s 340(1)(a) of the Fair Work Act 2009 (Cth) and that the second and third appellants were involved in those contraventions — where primary judge made orders with respect to compensation and pecuniary penalties INDUSTRIAL LAW — where primary judge found that each appellant had knowledge that the employee had engaged in protected industrial action — whether knowledge is a pre-condition to the engagement of the presumption in s 361 of the Act — consideration of the elements to be established in order to engage s 361 of the Act — whether the primary judge considered all of the evidence relevant to knowledge — whether this Court can assess and weigh the relevant evidence — whether it is appropriate in the circumstances to order a retrial ...

Catchwords: MIGRATION – protection visa – appeal from a decision of the Federal Circuit Court of Australia – application for judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) – decision of the first respondent refusing an application for a protection visa – whether the Tribunal committed jurisdictional error – whether the Tribunal failed to consider risks of harm cumulatively – whether the Tribunal misunderstood the definition of “degrading treatment or punishment” – appeal dismissed PRACTICE AND PROCEDURE – whether leave ought to be granted to permit reliance upon additional ground not argued before the primary judge – whether additional ground has merit – leave refused ...

Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal from interlocutory order – application granted PRACTICE AND PROCEDURE – appeal from decision to dismiss application for leave to file third further amended defence – where primary judge erred in finding that proposed amendments lacked coherence – where amendments are relevant to the determination of the respondent’s claim for additional damages arising from alleged flagrant infringements pursuant to the Patents Act 1990 (Cth) and Copyright Act 1968 (Cth) – appeal allowed ...

Catchwords: MIGRATION – Minister’s approval to bring relevant transitory person to Australia – whether the primary judge erred in construing s 198E of the Migration Act 1958 (Cth) and therefore erroneously found that two doctors were treating doctors for the respondent within the meaning of s 198E – meaning of “assessed the transitory person either remotely or in person” – where assessment on the papers STATUTORY INTERPRETATION – construction of definition of “treating doctor for a transitory person” – construction of “assessed the transitory person either remotely or in person” ...

Catchwords: MIGRATION – appeal from decision of Federal Circuit Court dismissing application for judicial review of decision of Immigration Assessment Authority (IAA) – where IAA affirmed decision of delegate of the first respondent not to grant appellants protection visas – whether second appellant’s personal claim raised before IAA was “new information” for purposes of s 473DD of the Migration Act 1958 (Cth) – whether IAA adopted unduly narrow approach to meaning of “exceptional circumstances” in s 473DD – whether Authority must consider criteria in subss (b)(i) or (ii) of s 473DD in reaching satisfaction in relation to “exceptional circumstances” in subs (a) – appeal dismissed ...

Catchwords: PRACTICE AND PROCEDURE – application for extension of time and leave to appeal – application from primary judge’s decision to strike out grounds of appeal – delay minor – whether the proposed grounds of appeal have sufficient merit BANKRUPTCY – appeal before the primary judge from a decision of the Administrative Appeals Tribunal dismissing applications to review decisions by Commissioner regarding objections to tax assessments – where applicant is bankrupt – where trustee did not elect to continue proceedings – where Tribunal found applicant lacked standing – where Tribunal failed to consider a claim that proceedings should be adjourned pending determination of the applicant’s application to review trustee’s decision not to prosecute applications in the Tribunal – where primary judge struck out grounds lacking competence – arguable that objection to trustee’s decision provided standing to seek adjournment – consideration of obiter comment by Lehane J in McCallum v Federal Commissioner of Taxation (1997) 75 FCR 458 ...

Catchwords: MIGRATION – where the appellant’s visa was cancelled on character grounds under s 501(3A) of the Migration Act 1958 (Cth) – decision not to revoke cancellation decision pursuant to s 501CA(4) of the Act – appeal from an application for judicial review of a decision of the Administrative Appeals Tribunal – whether the Tribunal’s decision affected by an error of law – discussion of authorities and principles relevant to whether the Tribunal may look behind or impugn the conviction or sentence – where the conviction or sentence is a precondition to the exercise of power – where the appellant’s evidence to the Tribunal was inconsistent with the essential findings of the sentencing judge – whether the Tribunal made findings of fact that were irrational or illogical – jurisdictional error not established Held: appeal dismissed ...

Catchwords: MIGRATION – visa cancelled on character grounds under s 501(2) of the Migration Act 1958 (Cth) – whether the Tribunal erred in its treatment of the best interests of the minor children and minor grandchildren – whether the Tribunal took into account a consideration which was not relevant – whether the Tribunal failed to take into account cl 9.2(4)(d) of Direction 65 in failing to consider the impact of separation on minor children in Australia – appeal allowed ...

Catchwords: PRACTICE AND PROCEDURE – application of “slip rule” (r 16.05(2)(h) of Federal Circuit Court Rules 2001 (Cth)) to extend life of creditor’s petitions – where 12 month period had expired and creditor’s petitions had lapsed – whether slip rule available to retrospectively extend life of creditor’s petitions – whether invocation of slip rule precluded where independent discretion required by s 52(5) Bankruptcy Act 1966 (Cth) not in fact exercised – whether there was a relevant accidental slip or omission – whether discretion could only be exercised one way PRACTICE AND PROCEDURE – whether Supreme Court had jurisdiction to hear and determine claims on which judgment debt in creditor’s petitions based – whether pleaded causes of action in statement of claim exceeded metes and bounds of indorsements in originating application – whether equitable jurisdiction of Supreme Court invoked – whether equitable claims liable to be struck out BANKRUPTCY – whether primary judge failed to consider separate ground on which sequestration order ought not to have been made – whether finding that payments illegal and void precluded liability under second limb of Barnes v Addy – whether there was in reality a debt owing to the Commonwealth Held: Appeal allowed – creditor’s petitions lapsed ...

Catchwords: MIGRATION – judicial review of decision of the Administrative Appeals Tribunal – where visa cancelled on character grounds – where a delegate of the Minister decided to refuse to revoke the cancellation decision – where the Tribunal affirmed the non-revocation decision – whether the Tribunal failed to respond to a substantial, clearly articulated argument relying upon established facts – application dismissed by primary judge – appeal dismissed ...

Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – protection visa refused under s 501 of the Migration Act (Cth) – whether jurisdictional error by Tribunal in failing to take into account appellant’s ethnicity and religion when considering impediments appellant may face if removed to Myanmar – whether argument advanced, or, if advanced, abandoned before the Tribunal – argument was advanced and not abandoned – result might have been different – appeal allowed MIGRATION – leave sought to present new ground of appeal – whether sufficient prospects of success – leave refused ...

Catchwords: ADMINISTRATIVE LAW – Appeal from Federal Court decision dismissing appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) against Administrative Appeals Tribunal (AAT) decision – where no further hearing held after reconstituting the AAT – where AAT affirmed Tax Practitioners Board decision terminating the appellant’s registration as a tax agent under ss 40-5(1)(b), Tax Agent Services Act 2009 (Cth), on the ground it was not satisfied he was a fit and proper person – whether AAT breached procedural fairness including by reason of delay or the failure by the reconstituted Tribunal to hold a further hearing – whether AAT erred in having regard to certain evidence of conduct in court and other tribunal proceedings – whether AAT erred in having regard to a witness statement where the witness was not called – whether AAT had jurisdiction to determine the validity of the Board’s decision – where only a court may authoritatively determine whether an administrative body has acted within jurisdiction – where AAT’s decision effectively overtook any jurisdictional error in the Board’s decision – appeal dismissed ...

Catchwords: PRACTICE AND PROCEDURE – application for an extension of time and for leave to appeal from a judgment given in the Federal Circuit Court of Australia – where application for judicial review of decision of Immigration Assessment Authority application dismissed by reason of non-appearance of the applicant – where primary judge refused application to reinstate applicant’s application for judicial review – whether sufficient doubt as to the judgment of the primary judge to warrant its reconsideration on appeal as to whether the primary judge failed to consider one or more relevant considerations or whether the primary judge failed to balance the relevant considerations ...

Catchwords: PRACTICE AND PROCEDURE – discovery – privilege against self-incrimination – privilege against exposure to penalties – search order – where orders made to the general effect that any claims for privilege in respect of documents taken pursuant to the search order could be made in the context of giving discovery – where two of the respondents below (a company and its sole director) made discovery of documents (including those taken pursuant to the search order) and objected to production of documents on the grounds of the privileges – where the company was a one-person company – where production of the documents had a real and appreciable tendency to incriminate the director – whether an order for production of the documents could be made against the company and the director as agent for the company ...

Catchwords: MIGRATION – two appeals from Federal Circuit Court – whether Court erred in dismissing applications for judicial review of decisions of Administrative Appeals Tribunal – where Tribunal found it had no jurisdiction to review applications made out of time – where letters notifying of refusal of visa by Minister sent either by prepaid post or email – whether refusal notifications ‘stated’ time in which applications for review may be made – consideration of principle in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 ...

Catchwords: MIGRATION – request for revocation of mandatory visa cancellation under s 501CA(4) of the Migration Act 1958 (Cth) – where the respondent claimed harm if he were returned to his country of origin on account of the treatment afforded to people with mental illness – Assistant Minister’s failure to engage in an active intellectual process with the representation – amended notice of contention upheld – appeal dismissed, with costs ...

Catchwords: CORPORATIONS – where Westpac conducted campaign to encourage customers to roll over funds held in external superannuation accounts into their existing Westpac accounts – whether Westpac’s campaign involved the provision of a “recommendation” or “statement of opinion” amounting to “financial product advice” – whether Westpac’s campaign involved the provision of “personal advice” or “general advice” within the meaning of s 766B of the Corporations Act 2001 (Cth) (the Act) – where primary judge found that Westpac provided general financial product advice – “personal advice” was given because a reasonable person might expect the callers to have considered the objectives of the customers in making the recommendation to accept the rollover service – consequent contraventions of ss 912A(1)(b) and (c), 946A, 961B(1) and 961K(1) of the Act – appeal allowed CORPORATIONS – whether Westpac failed to do all things necessary to ensure financial services provided “efficiently, honestly and fairly” – where primary judge found contraventions of s 912A(1)(a) of the Act – Westpac did not act efficiently, honestly, or fairly in conducting a campaign with the aim of getting its customers to make a decision after the provision of only “general advice” where that decision could only prudently be made having regard to information personal to the customers and the superannuation accounts – whether, if Westpac had been found to have given only “general advice”, an alternative case on s 912A(1)(a) was run before the primary judge – no alternative case articulated because the case before the primary judge was predicated on the likelihood or fact of “personal advice” – cross-appeal dismissed ...

Orders: 3. As to the affidavit of Mr Glen Kelly, sworn and filed on 28 June 2019: (a) Part of paragraph 7 be struck out such that the paragraph be admitted as amended as follows: 7. In addition to these Noongar Claims, which had been brought on behalf of separate and distinct native title claim groups, a commonality of traditional laws and customs that had been observed by these groups, and a common identity as Noongar People, led, in 2003, to 60 individuals (SNC Applicant), many of them applicants on...

Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 (Cth) s 351(1) – adverse action – mental disability – whether prolonged failure to attend work a manifestation of Appellant’s disability – consideration of Shizas v Commissioner of Police [2017] FCA 61; 268 IR 71 – not a manifestation – no adverse action because of Appellant’s disability INDUSTRIAL LAW – Fair Work Act 2009 (Cth) s 351(1) – adverse action – mental disability – mental process of decision-maker – where decision-maker did not know whether or not Appellant was ill and believed he was not– where decision maker did not perceive failure to attend work to be a manifestation of Appellant’s disability – no adverse action because of Appellant’s disability INDUSTRIAL LAW – Fair Work Act 2009 (Cth) s 351(2)(b) – adverse action – mental disability – whether employee could not perform inherent requirement of employment – Appellant unwilling or unable to perform duties – no adverse action because of Appellant’s disability INDUSTRIAL LAW – Fair Work Act 2009 (Cth) s 545 – adverse action – mental disability - compensation order – likelihood of return to work – refusal to attend independent medical examination an alternative and sufficient reason for termination – no economic loss sustained ...

Catchwords: MIGRATION – appeal from Federal Circuit Court dismissing application for judicial review of a decision by the Administrative Appeals Tribunal (AAT) – where AAT affirmed delegate’s decision refusing to grant the appellant a protection visa – whether AAT failed to comply with s 424(1) of the Migration Act 1958 (Cth) – where criteria for s 424(1) not engaged – where AAT did not fall into error in rejecting the appellant’s credibility and thereby giving no weight to corroborating material applying the “poisoned well” analysis – appeal dismissed ...

Catchwords: MIGRATION — appeal from an order made by a judge of the Federal Circuit Court of Australia dismissing the appellants’ application for judicial review — where the Administrative Appeals Tribunal affirmed a decision of the delegate of the Minister not to grant protection visas to the appellants MIGRATION — whether the primary judge erred in failing to find that the decision of the Tribunal was affected by jurisdictional error in that the failure to disclose the existence of a certificate issued pursuant to s 438(1)(b) of the Migration Act 1958 (Cth) to the appellants constituted a denial of procedural fairness — where the first respondent accepted that the Tribunal’s failure to disclose the existence of the certificate to the appellants amounted to a breach of its implied obligation of procedural fairness — where the first respondent filed a notice of contention asserting that the breach was not material because the Tribunal expressly gave no weight to the information the subject of the notification and because the Tribunal had a separate and independent basis for its decision MIGRATION — new ground of appeal — whether the primary judge erred or denied the appellants procedural fairness by failing to address the grounds of the appellants’ application — where the appellants contended that it was not reasonably open to the Tribunal to conclude that the provision of evidence within the time frame fixed by the Tribunal undermined the weight to be placed on that evidence ...

Catchwords: TAXATION – capital gains – discount capital gains – where trustees of various trusts sold shares and made capital gains – where various roll-overs had occurred prior to the sale of the shares – whether the appellants were entitled to a “discount capital gain” under Subdiv 115-A of the Income Tax Assessment Act 1997 (Cth) in relation to the disposal of the shares by the trustees of the trusts – whether the relevant provisions operated such that the trustees were taken or deemed to have held the relevant assets for a period of at least 12 months ...

Catchwords: NATIVE TITLE – abuse of process – potential inconsistency between determinations of native title – where primary judge recognised exclusive native title rights and interests held by claim group over area comprising part of Yindjibarndi country – where earlier determination in Moses v Western Australia [2007] FCAFC 78; (2007) 160 FCR 148 recognised only non-exclusive native title rights and interests over another part of Yindjibarndi country – s 13 of the Native Title Act 1993 (Cth) (NTA) – no abuse of process NATIVE TITLE – determination of exclusive native title rights – whether primary judge erred in relying on findings concerning adverse spiritual consequences for strangers entering onto the claim area without permission supported a determination of exclusive native title rights – whether the primary judge was correct to find that the Yindjibarndi had continued to observe the traditional law and custom concerning permission to enter country from sovereignty to the present day – whether Griffiths v Northern Territory [2007] FCAFC 178; 165 FCR 391 and Banjima People v Western Australia [2015] FCAFC 84; 231 FCR 456 were correctly decided NATIVE TITLE – the meaning of “occupy” in s 46B(1)(c) of the NTA – whether the primary judge erred in finding that at least one or more members of the claim group occupied two parts of the claim area at the time the application for determination of native title was lodged – appeal dismissed, with costs ...

Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court – where primary judge dismissed an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal – where second respondent affirmed a decision of a delegate of the Minister to cancel the appellant’s Class BS (Subclass 801) (Partner) visa – whether primary judge erred in finding that the appellant provided incorrect answers in visa application forms – whether primary judge erred in finding that there was no jurisdictional error by the second respondent considering documents to be subject to a valid s 375A certificate and thereby not providing those documents to the appellant pursuant to a request under s 362A of the Migration Act 1958 (Cth) – held: appeal dismissed with costs ...

Catchwords: MIGRATION – fast track review process under Pt 7AA of the Migration Act 1958 (Cth) – whether the Immigration Assessment Authority is obliged by obligations of procedural fairness to put to referral applicants for comment any matters it considers adverse to them – where the appellants’ procedural fairness cases did not particularise any adverse material which they say was not put to them – no practical injustice – appeals dismissed, with costs ...

Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia – protection claim – International Treaties Obligations Assessment – where appellant sought to rely on two new grounds that were not relied upon in the Federal Circuit Court – whether leave should be granted to the appellant to rely on the new grounds – whether the assessor denied the appellant procedural fairness by failing to deal with a claim – whether the assessor denied the appellant procedural fairness by failing to put certain country information ...

Catchwords: HEALTH LAW – proper interpretation and application of Medicare Benefits Schedule – claim by private health insurer under the Australian Consumer Law against ophthalmologist and his service company in respect of allegedly overpaid amounts – primary judge dismissed insurer’s claim – appeal dismissed CONTRACT – whether insurer formed a “reasonable opinion” that conduct of ophthalmologist “may adversely impact” insurer’s “goodwill, reputation or business” thus entitling it to “deregister” him from its “Gap Scheme” – primary judge made declaration that insurer had breached its contract with the ophthalmologist – appeal dismissed ...

Catchwords: MIGRATION – appeal from an order made by the primary judge dismissing the appellant’s application for judicial review of a decision made under s 501BA(2) of the Migration Act 1958 (Cth) to cancel the appellant’s Class WR subclass 070 Bridging (Removal Pending) visa – new ground of appeal – whether the Minister misunderstood s 501BA(2) of the Act by proceeding on the basis that it precluded him from giving effect to the rules of natural justice by inviting the appellant to make submissions or provide further material – whether the Minister’s misunderstanding was material so as to constitute jurisdictional error – consideration of Ibrahim v Minister for Home Affairs [2019] FCAFC 89 and Nguyen v Minister for Home Affairs [2019] FCAFC 128 – whether the Minister based conclusions with respect to the appellant’s likelihood of reoffending, the level of risk she posed to the national interest and the level of tolerable risk to the community on probative material ...

Catchwords: MIGRATION – protection visas – appeals from decisions of the Federal Circuit Court of Australia – applications for judicial review of decisions of the Immigration Assessment Authority (the “Authority”) – decision by the first respondent refusing application by a father and his son for protection visas – whether the Authority committed jurisdictional error – whether the Authority was reviewing one or two decisions – whether information supplied to Authority ahead of review was “new information” – whether Authority had regard to contentions advanced – whether it was legally unreasonable for the Authority to consider new information in respect of the father but not the son – whether Authority unreasonably failed to consider exercising its power to invite the father to an interview or to otherwise get new information – appeals dismissed ...

Catchwords: MIGRATION – whether the Minister’s exercise of his power under s 46A(2C) of the Migration Act 1958 (Cth) to revoke his determination to allow certain persons (including the appellant) to lodge an application for a Temporary Protection visa or Safe Haven Enterprise visa under s 46A(1) was subject to a requirement of procedural fairness, and if so, whether the appellant was afforded procedural fairness MIGRATION – whether the Minister ‘noting’ and commenting on a Departmental submission about the manner in which an Informed Referral to Status Resolution (IRSR) process would be undertaken by officers of the Department in relation to the appellant constituted a ‘personal procedural decision’ of the Minister – whether the possibility of detention being prolonged is a sufficient interest to engage a duty to afford procedural fairness in conducting the IRSR process – where Minister accepted that, if a duty were owed, the appellant was not afforded procedural fairness ...

Catchwords: CONSUMER LAW – misleading or deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth) – misleading representation that yacht would be suitable for ocean voyages – where yacht not constructed to be capable of ocean voyages DAMAGES – causation – assessment of loss and damage – construction of “loss or damage” under s 4K of Trade Practices Act – remedies under ss 82 and 87 of Trade Practices Act – rule in Potts v Miller (1940) 64 CLR 282 and approach in HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640 – “no transaction” case – where representee would not have purchased yacht if misrepresentation not made – where yacht not as represented – where misleading conduct was a cause of the loss or damage suffered – where representor claimed no damage caused because representee would have paid similar sums on another yacht – whether either party required or entitled to allege or prove other courses of action open – whether appropriate for the court to consider hypothetical counterfactual scenario DAMAGES – assessment of loss and damage – where asset was a non-income producing vessel – where appellants continued to use vessel after becoming aware of misrepresentation – whether court required to take account of benefit derived from use of the vessel – where claim is for economic loss and not loss of enjoyment – measure of damages for non-income producing vessel DAMAGES – assessment of loss or damage – costs incurred in owning and operating vessel – where appellants incurred significant costs repairing and upgrading vessel – whether appellants entitled to damages for consequential loss in a “no transaction” case ...

Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal from interlocutory judgment of primary judge in which orders were made, based on cultural and customary concerns of claimant groups, in relation to the evidence in proceedings for the determination of overlapping claims of native title – insufficient doubt in correctness of the orders and supporting reasons of the primary judge to warrant leave to appeal being granted – no arguable House v The King (1936) 55 CLR 499 error identified – no question of general principle identified to warrant appellate intervention on a matter of practice or procedure – leave to appeal refused. ...

Catchwords: CORPORATIONS – whether the appellant contravened cl 15(1)(b) of the Franchising Code (Schedule 1 to the Competition and Consumer (Industry Codes – Franchising) Regulation 2014) – ambiguity in cl 15(1)(b) – whether the disclosure documents provided sufficient detail regarding expenditure – no error found in appellant’s contravention of cl 15(1)(b) PENALTY – appeal against penalty – number of contraventions – course of conduct and grouping of contraventions– totality – seriousness of contraventions – penalty reduced ...

Catchwords: ADMINISTRATIVE LAW – appeal on a question of law from a decision of the Administrative Appeals Tribunal – whether the Tribunal exceeded its decision-making power in imposing conditions inconsistent with the essence of the application to the Great Barrier Reef Marine Park Authority, the primary decision-maker – whether the Tribunal misunderstood or erred in its application of the precautionary principle – whether the Tribunal proceeded on the basis of a false (and erroneous) dichotomy between scientific and non-scientific evidence – whether, in varying the permit to include certain conditions, the Tribunal denied the applicant procedural fairness or erred in failing to specify that its decision was not to come into operation until a later date under s 43(5B) of the Administrative Appeals Tribunal Act 1975 (Cth) ENVIRONMENT LAW – appeal on a question of law from a decision of the Administrative Appeals Tribunal – the decision under review by the Tribunal was the decision of the Great Barrier Reef Marine Park Authority to grant two permissions under the Great Barrier Reef Marine Park Regulations 1983 (Cth) to the applicant to use and enter the Marine Park: to conduct a program to take animals or plants that pose a threat to human life or safety, being the Queensland Shark Control Program; and to conduct a research program comprising certain specified studies – whether the Tribunal misunderstood or erred in applying the precautionary principle ...

Catchwords: PATENTS – validity – computer-implemented method and apparatus for displaying information – whether invention as claimed is a manner of manufacture within the meaning of section 6 of the Statute of Monopolies PATENTS – validity – innovative step – whether claimed invention supported by an innovative step – whether additional innovative steps established COSTS – whether error shown in an award of costs to the successful respondent at trial ...

Catchwords: PATENTS – construction – where claims in suit comprised method claims and system claims for core sample orientation – where the method in claim 1 involved two timers, one in the downhole device and one on the surface – whether the primary judge erred in his construction of the patent – whether, on the true construction of claim 1, it required both the downhole timer and the surface timer to count with reference to the same initial reference time – whether the word “beyond” meant no more than “after” or “later than” – appeal dismissed ...

Catchwords: MIGRATION - appeal from decision of Federal Circuit Court affirming decision of Immigration Assessment Authority to refuse a protection visa - where Authority possessed a written record of appellant's entry interview but incomplete audio recording of interview - where Authority rejected certain claims in part because they were not raised at the entry interview - whether Authority fulfilled its statutory task - no error disclosed in the reasons of the Authority or Federal Circuit Court MIGRATION - where Authority drew conclusions from news articles - where news articles not in evidence - whether Authority acted illogically or unreasonably in drawing conclusions - reading of reasons as a whole - no error disclosed - appeal dismissed with costs ...

Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court of Australia – protection visa – where visa was cancelled on the basis that the appellant provided incorrect answers in his visa application – whether the Tribunal failed to consider that, on cancellation of the visa, the appellant was at immediate and ongoing risk of being removed to Iran or taken to a regional processing country pursuant to s 198AD of the Migration Act 1958 (Cth) – whether the Tribunal failed to give reasons for concluding that the appellant was not at real risk of significant harm – whether the Tribunal’s decision was legally unreasonable insofar as it made adverse credibility assessments which were perfunctory, emphatic and unsustainable on their own terms – appeal dismissed ...

Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia – judicial review of decision of the Administrative Appeals Tribunal affirming refusal to grant a protection (class XA) visa – whether tribunal committed jurisdictional error – reasonableness of relocation – whether reasonableness assessed in respect of the appellant or her parents – whether clear particulars given of information that the tribunal considered would be dispositive – whether tribunal failed to consider a material contention – appeal allowed ...

Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court of Australia – whether primary judge erred in finding that a decision of the Immigration Assessment Authority (Authority) was not affected by jurisdictional error – where the Authority did not consider exercising its power under s 473DC of the Migration Act 1958 (Cth) to hear further from the appellant in relation to ethnic persecution claims – where there were difficulties in interpretation – whether the process lacked procedural fairness – whether the Authority failed to apply the test in s 473DD in respect of ‘new information’ – whether the Authority failed to complete the statutory task of review required by s 473CC – appeal dismissed ...

Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia – whether primary judge erred in construing s 48A of the Migration Act 1958 (Cth) – whether, in circumstances where an application for a protection visa had been made on behalf of the respondents in 2010 and had been refused, s 48A(1AA) of the Migration Act prevented the making in 2017 of a further application for a protection visa on behalf of the respondents which relied upon the complementary protection criterion in s 36(2)(aa) – Held: appeal allowed ...

Catchwords: COMPETITION – arrangement or understanding restricting dealings in respect of the application process for exploration licences for coal in the Mount Penny and Glendon Brook areas of New South Wales – whether arrangement or understanding contained an exclusionary provision – whether corporate respondents were competitors or likely competitors – whether the relevant provision was entered into for the purposes of preventing, restricting or limiting the supply or acquisition of specified services – joint venture defence – whether alleged exclusionary provision was for the purposes of a joint venture – whether other elements of s 76C defence made out ...

Catchwords: REPRESENTATIVE PROCEEDINGS – application for leave to appeal – where primary judge refused to make an order for security for costs in primary application – where applicant alleges error by primary judge in failing to undertake balancing exercise in Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153; 130 FCR 317 and Madgwick v Kelly [2013] FCAFC 61; 212 FCR 1 – no error found that went to basis of primary judge’s exercise of discretion – no basis for conclusion that primary judge failed to undertake appropriate balancing – application for leave to appeal refused with costs ...

Catchwords: MIGRATION – visa cancelled under s 501(3) of the Migration Act 1958 (Cth) – rules of natural justice inapplicable – whether Assistant Minister proceeded on an incorrect understanding that he was bound not to accord natural justice – whether Assistant Minister misunderstood the effect of an alternate cancellation power – whether any such error affected the exercise of the power under s 501(3) – whether it was open to the Assistant Minister to be satisfied that cancellation of the visa was in the national interest – whether the national interest criterion can only be fulfilled in circumstances warranting an urgent decision ...

Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority (IAA) – where IAA affirmed decision of delegate refusing application for temporary protection visa – meaning of “new information” in section 473DD Migration Act 1958 (Cth) – whether IAA erred in treating submission as “new information” for the purposes of section 473DD Migration Act 1958 (Cth) – whether IAA failed to consider a submission of substance – whether any failure by IAA to consider a submission of substance was material to its decision – appeal dismissed ...

Catchwords: MIGRATION - appeal from decision of the Federal Court of Australia - review by Administrative Appeals Tribunal of decision not to revoke mandatory cancellation of visa - Tribunal dismissed application for review for nonappearance - whether reinstatement of application for review futile because of 84 day period for Tribunal decision on review - meaning of 'decision' in s 500(6L)(c) of the Migration Act 1958 (Cth) - appeal allowed ...

Catchwords: MIGRATION - appeal from decision of Federal Court of Australia - review by Administrative Appeals Tribunal of decision to refuse visa application - application refused under s 501 of the Migration Act 1958 (Cth) - Tribunal presumed 84 day period for decision in s 500(6L)(c) of the Act applied - applicant's counsel withdrew representation immediately prior to review hearing - Tribunal under misapprehension that decision and reasons required within 84 day period - Tribunal fell into jurisdictional error in adjourning review hearing for 24 hours - appeal allowed ...

Catchwords: MIGRATION – refugees on Nauru – proceedings in negligence against Commonwealth parties commenced in the Federal Court of Australia by transitory persons – whether those proceedings required by s 494AB of the Migration Act 1958 (Cth) to be commenced in the High Court of Australia – s 494AB(1), so far as relevant, provides that the following proceedings against the Commonwealth may not be instituted or continued in any court except the High Court: (a) proceedings relating to the exercise of powers under s 198B; (ca) proceedings relating to the performance or exercise of a function, duty or power under Subdiv B of Div 8 of Pt 2 in relation to a transitory person; (d) proceedings relating to the removal of a transitory person from Australia under the Migration Act PRACTICE AND PROCEDURE – determination of separate questions in each of four proceedings in the nature of test cases, those questions being: (1) when the proceeding was commenced in the Federal Court of Australia, was the effect of s 494AB of the Migration Act that it could not be instituted?; and (2) is the effect of s 494AB of the Migration Act that the proceeding cannot be continued in the Federal Court? ...

Catchwords: BANKRUPTCY AND INSOLVENCY - appeal from decision of primary judge declaring that the appellant did not enter into possession or assume control validly under the terms of a security interest - whether primary judge was correct to refuse the appellant's application for leave to re‑open - whether primary judge was correct in failing to find that the appellant paid the relevant debt on the basis that there was an insufficiency of evidence - where appellant did not challenge the factual findings of the primary judge but challenged the inferences drawn from those findings - whether appellant could demonstrate that it had paid the respondent's debt and was subrogated to the rights under the charge - where payment of the debt was a matter capable of ready proof - where the appellant did not discharge the burden of proof - where findings of primary judge reasonably open - whether primary judge was correct to find that there was no valid assignment of the charge - where no separate basis for assignment other than to aid the right of subrogation - appeal dismissed with costs ...

Catchwords: MIGRATION – mandatory cancellation of visa under Migration Act 1958 (Cth) s 501(3A) – where applicant has substantial criminal record – whether consideration given to parental relationship with minor children – decision not to revoke cancellation of visa – whether decision of Minister was unreasonable – whether absence of procedural fairness – whether absence of procedural fairness arising from refusal to grant adjournment so applicant could seek legal assistance ...