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Catchwords: MIGRATION – application for review of decision of the Minister to cancel visa under personal power under s 133C(3) of the Migration Act 1958 (Cth) – where Minister satisfied that a ground for cancelling the visa under s 116 of the Migration Act existed – where Minister satisfied that the presence of the applicant in Australia may be a risk to the health, safety or good order of the Australian community under s 116(1)(e)(i) of the Migration Act – where Minister satisfied under s 133C(3)(b) of the Migration Act that it would be in the public interest to cancel the visa – application dismissed ...

Catchwords: BANKRUPTCY AND INSOLVENCY - funds held in solicitor's trust account when sequestration order was made by registrar - funds transferred to petitioning creditor after sequestration order made - transferred funds less than debt owed to creditor - creditor did not accept tender of payment of debt - whether judge conducted de novo hearing - whether judge put to one side the fact that there had been a sequestration order - whether judge erred in approaching review on basis that sequestration order meant that funds in solicitor's trust account were not funds available to debtor for the purposes of the hearing de novo - consequence of payment not being accepted by creditor was that creditor's petition should not have been dismissed ...

Catchwords: MIGRATION – judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the responsible Minister made under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of a Resolution of Status visa – whether legally unreasonable for Tribunal not to have inquired or adjourned hearing to enable material to be put before it regarding non-refoulement, or to not have considered doing so - whether Tribunal failed to give real and genuine consideration to a claim or relevant evidence regarding non-refoulement– whether the Tribunal erred in its interpretation or application of s 500(6H) of the Act – appeal dismissed ...

Catchwords: TAXATION – appeal from decision of the Administrative Appeals Tribunal that bankrupt applicant had no standing to extend time to seek review of Commissioner’s objection decision because applicant not a person “dissatisfied” within the meaning of s 14ZZ(1) Taxation Administration Act 1953 (Cth) – where after bankruptcy, applicant charged with four criminal offences under State law related to the tax debt or administration of bankrupt estate – whether successful review of objection decision would have any relevance to charges or conduct of criminal trial so as to make the applicant a person “dissatisfied”, that is with an interest beyond the effect of bankruptcy – limited evidence to support that factual inquiry – no error in Tribunal’s reasoning or application of McCallum v Commissioner of Taxation [1997] FCA 533; 75 FCR 458 – appeal dismissed. PRACTICE AND PROCEDURE – primacy of Full Court authority, including in original jurisdiction – no argument advanced that long standing Full Court authority in McCallum v Commissioner of Taxation [1997] FCA 533; 75 FCR 458 plainly wrong – court declined to reconsider. CONSTITUTIONAL LAW – whether s 14ZZ imposes incontestable tax liability. ...

Catchwords: INDUSTRIAL LAW – appeal from orders of the Federal Circuit Court of Australia – where the primary judge dismissed the appellant’s application below for declarations, pecuniary penalties and injunctive relief based upon allegations of contraventions of ss 340, 343 and 345 of the Fair Work Act 2009 (Cth) – where the contraventions were alleged to arise from the contents of a letter sent by the respondent to cadets undertaking a training program. INDUSTRIAL LAW – adverse action – whether the primary judge erred in finding that the letter did not contain threats to take adverse action against the cadets by a threat that the respondent would not employ the cadets if they exercised a workplace right, and that they would be subject to disadvantageous terms of employment if they exercised a workplace right, in contravention of s 340 Fair Work Act – whether the presumption in s 361 of the Fair Work Act was engaged, and whether the respondent accordingly discharged its onus of proof – discussion of principles relevant to determining whether a threat was made – s 361 presumption engaged in relation to threats following Full Court’s decision in ABCC v Molina – properly construed, the letter conveyed the threats alleged and the primary judge erred in finding otherwise – remitted to the Federal Circuit and Family Court of Australia (Division 2) for re-hearing. INDUSTRIAL LAW – action with intent to coerce – whether the primary judge erred in finding that, by the letter, the respondent did not threaten to take action against the cadets with an intent to coerce in contravention of s 343 of the Fair Work Act – properly construed, the letter conveyed the threats alleged and the primary judge erred in finding otherwise – whether presumption is s 361 was engaged, and whether the respondent accordingly discharged its onus of proof with respect to the required intention to negate choice – discussion of principles relevant to determining whether there was an intent to coerce – remitted to the Federal Circuit and Family Court of Australia (Division 2) for re-hearing. INDUSTRIAL LAW – false or misleading representations – whether the primary judge erred in finding that the letter did not contain false or misleading representations – whether the letter contained representations “about” a workplace right – representations do not have to identify a workplace right in order to be “about” a workplace right – the relevant representations were not about a workplace right and accordingly were not false or misleading in contravention of s 345 of the Fair Work Act – primary judge’s decision in this respect affirmed. INDUSTRIAL LAW – whether the appellant had standing to bring the proceeding because of its entitlement to represent the industrial interests of cadets under s 560(4) of the Fair Work Act – whether, in the absence of a member of the appellant who was affected by the alleged contraventions, the appellant had standing to bring the proceeding – no dispute that the cadets were not members of the appellant, but were entitled to become members – entitlement of the appellant to represent cadets for standing under s 560(4) is distinct from the entitlement of the cadets, under the appellant’s rules, to representation by the appellant – appellant not required to “bring with it” a “person affected” by the alleged contraventions – entitlement to represent the cadets was sufficient, and accordingly the appellant had standing. PRACTICE AND PROCEDURE – whether the primary judge erred in permitting the appellant to present a case at trial which departed from that articulated in its “Form 4” and reply prior to trial – where the appellant’s “Form 4” and reply were in the style of pleadings – where the content of the appellant’s claims were relevant to whether and to what extent any statutory presumptions were engaged – in a proceeding not subject to pleadings, and where no order for pleadings has been made, the relevant question is whether the respondent was denied procedural fairness – in light of other findings, it was not necessary to decide the question with respect to the allegation of false or misleading representations – in the circumstances, there was otherwise no error in permitting the appellant to rely at trial on the terms of its opening. PRACTICE AND PROCEDURE – circumstances in which an appellate court must or should remit a proceeding for re-hearing to the court below – discussion of relevant principles, including where relevant viva voce evidence was given by a witness at trial – benefit enjoyed by primary judge not available to appellate court - whether the court on appeal was in as good a position as the primary judge to make relevant findings – in the circumstances, it was not appropriate for the court on appeal to make the relevant findings. ...

Catchwords: CORPORATIONS – question reserved for consideration of the Full Court pursuant to s 25(6) of the Federal Court of Australia Act 1976 (Cth) – whether set-off under s 553C(1) of the Corporations Act 2001 (Cth) (Act) available to the defendant against the plaintiff’s claim as liquidator for the recovery of an unfair preference under s 588FA of the Act – effect of a preference, nature of the preference action, and consequences of the success of such an action in Australian insolvency law – nature of mutuality – nature and history of set-off prior to and following the Harmer Report – set-off not available against the recovery of an unfair preference – requisite mutuality not present – right to the recovery of the preference is a right of the liquidator and not the company, in the liquidator’s own right for the benefit of all creditors and the administration of the estate under the terms of the relevant statutory regime ...

Catchwords: PATENTS – application for leave to appeal from a judgment of a single Judge of the Court – opposition to the grant of a standard patent – vehicle detection system – entitlement to the grant of a patent – whether the managing director of the applicant is a joint inventor – discussion of the notion of the “inventive concept” as applied to determining entitlement to the grant of a standard patent ...

Catchwords: PATENTS ­– manner of manufacture under s 18(1A) of Patents Act 1990 (Cth) – computer-implemented inventions – application for leave to appeal from decisions and orders of primary judge dismissing appeal against revocation of innovation patents ­– where invention involved use of GPS-enabled mobile devices for dealing with risk management information – whether patentable subject matter ...

Catchwords: CONSUMER LAW – appeal from three judgments of this Court – where appellant sought declaration that there is adequate foundation for certain statements in advertisement for analgesic drug – where appellant bound by previous order restraining them from making certain representations – where primary judge made declarations that appellant breached that order – where primary judge dismissed appellant’s application to re-open matter after judgment given – whether primary judge proceeded on the basis of misapprehension of the facts and/or the manner in which an argument was advanced – whether certain representations conveyed by appellant’s advertising, training and point of sale materials – where appellant provided table of unqualified “accepted representations” to primary judge – where trial conducted on the basis that those representations were not treated as unqualified – appeal allowed ...

Catchwords: MIGRATION – appeal from decision dismissing application for judicial review of decision of the Administrative Appeals Tribunal (Tribunal) – where delegate was not satisfied that the applicant was the spouse of the sponsor – where certificate issued pursuant to s 376 Migration Act 1958 (Cth) – where information disclosed to applicant pursuant to s 359AA – whether primary judge erred in failing to find that Tribunal misunderstood breadth of discretion in s 376 – appeal dismissed ...

Catchwords: INDUSTRIAL LAW – application for judicial review of a decision of the Full Bench of the Fair Work Commission quashing a Fair Work Commissioner’s decision to reinstate the applicant insofar as it required him to be reinstated to the first respondent’s brewery site – whether the Full Bench fell into jurisdictional error by reason of: (1) misunderstanding the nature of its jurisdiction, misconceiving its duty, failing to apply itself to the question which ss 390 and 391 of the Fair Work Act 2009 (Cth) prescribes and/or acting on a wrong principle; or (2) making only a portion of the order made by the Commissioner that it was not empowered by s 391 to make – held: application dismissed. ...

Catchwords: MIGRATION — appeal from decision of the Federal Circuit Court to dismiss an application for judicial review of a decision to refuse to grant a Safe Haven Enterprise visa — where Minister not satisfied that the grant of the visa was in the national interest under cl 790.227 of the Migration Regulations 1994 (Cth) — where appellant convicted of, and sentenced for, a people smuggling offence but recognised as a refugee at risk of serious harm in his country of nationality and where appellant satisfied all other visa criteria and there was no evidence that he was entitled to enter and reside in a country other than his country of nationality, whether Minister did not consider the prospect of refoulement and the potential breach by Australia of its non-refoulement treaty obligations — whether, if so, the Minister was bound to do so — whether primary judge erred by making a finding of fact in the absence of evidence — whether Minister’s decision legally unreasonable because appellant not found to be a person whom the Minister considered a danger to Australia’s security within s 36(1C) of the Migration Act 1958 (Cth) or because it was made for the purpose of further punishing the appellant ...

Catchwords: TORTS – tort of deceit – alleged representations about filing proposed proceeding – representations not made or, if made, not knowingly false – inferences – reliance not established – causation not established – tort of deceit not committed – loss/damage not established –– loss of opportunity – aggravated and exemplary damages –– appeal dismissed and cross-appeal allowed TORTS – tort of collateral abuse of process – whether proceeding brought for an improper purpose and to achieve object outside scope of legal remedy – no improper purpose – no object outside scope of legal remedy – difference between an abuse of process and tort of collateral abuse of process – tort of collateral abuse of process not committed – appeal dismissed and cross-appeal allowed ...

Catchwords: TORTS – tort of deceit – alleged representations about filing proposed proceeding – representations not made or, if made, not knowingly false – inferences – reliance not established – causation not established – tort of deceit not committed – loss/damage not established –– loss of opportunity – aggravated and exemplary damages –– appeal dismissed and cross-appeal allowed TORTS – tort of collateral abuse of process – whether proceeding brought for an improper purpose and to achieve object outside scope of legal remedy – no improper purpose – no object outside scope of legal remedy – difference between an abuse of process and tort of collateral abuse of process – tort of collateral abuse of process not committed – appeal dismissed and cross-appeal allowed ...

Catchwords: EXTRADITION – appeal against decision of the Federal Court of Australia dismissing application under s 21 of the Extradition Act 1988 (Cth) (Act) challenging the orders of a magistrate that the appellant was eligible for surrender to the Republic of Chile under s 19(9) of the Act – whether the primary judge mischaracterised the extradition offences contained in the extradition request – whether the primary judge failed to recognise the violation of a “principle of legality” under s 19(2) of Act – whether the primary judge erred in concluding that a dual criminality requirement under s 19(2)(c) of the Act could not have been made out – whether the primary judge erred in concluding that the prosecution was not a result of political pressure under s 7(b) and 7(c) of the Act –where the appellant challenges that dual criminality is satisfied – whether the primary judge erred in failing to find that the effect of the Amnesty Law is such that the appellant has been ‘pardoned’ within the meaning of s 7(e) of the Act – where the appellant has not established any of the grounds of appeal – appeal dismissed ...

Catchwords: EXTRADITION – appeal against decision of the Federal Court of Australia dismissing application under s 21 of the Extradition Act 1988 (Cth) (Act) challenging the orders of a magistrate that the appellant was eligible for surrender to the Republic of Chile under s 19(9) of the Act – whether the primary judge mischaracterised the extradition offences contained in the extradition request – whether the primary judge failed to recognise the violation of a “principle of legality” under s 19(2) of Act – whether the primary judge erred in concluding that a dual criminality requirement under s 19(2)(c) of the Act could not have been made out – whether the primary judge erred in concluding that the prosecution was not a result of political pressure under s 7(b) and 7(c) of the Act –where the appellant challenges that dual criminality is satisfied – whether the primary judge erred in failing to find that the effect of the Amnesty Law is such that the appellant has been ‘pardoned’ within the meaning of s 7(e) of the Act – where the appellant has not established any of the grounds of appeal – appeal dismissed ...

Catchwords: INDUSTRIAL LAW – whether industrial action was taken prior to other, protected industrial action – whether amounts deducted from remuneration were properly withheld on account of earlier industrial action – second appellant took steps to shut down machinery ahead of planned protected industrial action – direction to work “right up to” time of planned action – whether preparatory steps involved performance of work in a non-customary manner – whether preparatory steps were “authorised or agreed to by” respondent – preparatory steps amounted to industrial action – deductions properly made – appeal dismissed ...

Catchwords: PRACTICE AND PROCEDURE – costs – two proceedings heard together – costs not resolved at mediation – where appeal from Federal Circuit Court and original jurisdiction proceeding seeking declaratory and other relief raised substantively the same underlying issues – where original jurisdiction proceeding substantially successful – where applicant obtained declaratory relief that the preconditions in s 198AH(1A) of the Migration Act 1958 (Cth) were met – appropriate case to apportion costs in original jurisdiction proceeding – where appeal dismissed – no order as to costs in appeal proceeding ...

Catchwords: MIGRATION – appeals from orders dismissing applications for judicial review – where the appellants each made applications for Ministerial intervention under the Migration Act 1958 (Cth) – where the Minister had issued Guidelines to officers prescribing the circumstances in which such requests are to be brought to his attention – where officers concluded the requests for intervention did not satisfy the criteria for referral in the Guidelines and so refused to refer the requests to the Minister – nature of the officers’ decisions – whether the officers’ decisions were judicially reviewable by the Federal Court of Australia – whether the decisions were judicially reviewable on the ground of legal unreasonableness – whether the decisions were affected by legal unreasonableness – appeals dismissed ...

Catchwords: NATIVE TITLE – non-claimant application – appeal against determination that native title does not exist in respect of certain land in New South Wales – where land in question is contained within larger registered native title claim application (the South Coast People’s claim) which is yet to be determined – where non-claimant application was opposed by the applicants in respect of the South Coast People’s claim – consideration of s 67 of the Native Title Act 1993 (Cth) – whether the primary judge erred in making findings in respect of the South Coast People’s claim – whether the primary judge’s reasons should have been confined to a consideration of the question whether the evidence adduced by the appellants “cast doubt” on the claimed non-existence of native title – whether the primary judge erred in holding that s 223(1)(b) requires that the relevant land was “significant”, “sacred” or “important” to Aboriginal people – whether the primary judge erred in inferring that, when the Aboriginal witnesses were speaking of “significance” of the land to Aboriginal people, they were in fact referring to the existence or otherwise of connection with the land under s 223(1)(b) – whether the primary judge erred in concluding that the evidence adduced by the appellants was not evidence of an ongoing connection with the land under s 223(1)(b) – the need for caution in respect of non-claimant applications concerning parcels of land that are within larger registered native title claims that are not determined – appeal dismissed ...

Catchwords: PATENTS – manner of manufacture – electronic gaming machines (‘EGMs’) – innovation patent for EGMs and methods for providing feature games – application for leave to appeal from decision of primary judge concluding claims were to a manner of manufacture within the meaning of s 18 of Patents Act 1990 (Cth) – patentability of ‘computer-implemented inventions’ – where primary judge applied a two-stage inquiry for patentability – whether two-stage inquiry correct ...

Catchwords: PRACTICE AND PROCEDURE – costs – appeal – where the proceeding at first instance involved an application for directions and judicial advice – where a representative party unsuccessfully appealed the directions of the primary judge – whether costs of appeal should follow the event – whether costs should be payable on an indemnity basis ...

Catchwords: TAXATION – appeals under s 14ZZ of the Taxation Administration Act 1953 (Cth) – car parking fringe benefits at airports provided to flight crew and cabin crew – whether flight crew and cabin crew have a “primary place of employment” on a particular day – where flight crew and cabin crew have a “Home Base” – employees’ “Home Base” airport the relevant “primary place of employment” – appeal against primary judge’s decision allowed ...

Catchwords: CORPORATIONS - fiduciary duties - where first respondent invested in various companies with property and business interests - where appellant a shareholder of first respondent - whether duties of director of first respondent conflicted with personal interests - where contributions of share and debt capital varied for different impugned transactions - whether interests aligned - whether real or substantial possibility of conflict CORPORATIONS - members - oppression - whether conduct in effecting share transfer under mistaken apprehension oppressive - whether declaration confirming position at law as to shareholding sufficient relief - whether conduct said to amount to breach of fiduciary duty also oppressive - whether impugned transactions that do not separately constitute oppressive conduct were oppressive when considered collectively ...

Catchwords: MIGRATION – judicial review of decision of Administrative Appeals Tribunal holding that it did not have jurisdiction to review decision not to revoke visa cancellation decision under s 501CA(4) of Migration Act 1993 (Cth) – where representations were not “received” by Minister within 28 days under r 2.55 of Migration Regulations 1994 (Cth) – where Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 held “made representations” means “dispatched” – whether Stewart “plainly wrong” – consideration of “plainly wrong” where issue concerns matter of statutory construction by recent Full Court – Stewart not plainly wrong – where notification letter incorrectly stated representations must be “received” within 28 days – where letter analogous to Stewart – where Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 388 ALR 351 held notification letter must crystallise time period for making representations expressly or by reference to correct objective facts – notification letter did not meet requirements of s 501CA(3) – jurisdictional error by Tribunal – held: Tribunal’s decision quashed CONSTITUTIONAL LAW – s 116 of the Constitution –whether Part 9.2 of the Act invalid for prohibiting free exercise of religion – consideration of purpose of Part 9.2 – held: no invalidity CONSTITUTIONAL LAW – whether applicant not an “alien” and therefore not subject to operation of Act – applicant’s experience or perceptions of alienage irrelevant CONSTITUIONAL LAW – whether s 501CA of the Act infringes alleged implied Constitutional right to natural justice – natural justice arises from statutory implication or common law – argument patently weak – unnecessary to decide given success on non-Constitutional point MIGRATION – whether failure to establish evidence of service of enclosures to notification letter in breach of s 501CA(3)(a) of the Act – statutory requirement only to provide “particulars” of relevant information – claim rejected ...

Catchwords: PRACTICE AND PROCEDURE – costs – whether costs should be paid on an indemnity basis following rejection of offer of settlement – where offer of settlement made on without prejudice except as to costs basis – where offer not mention seeking indemnity costs if rejected – whether offer in accordance with Calderbank v Calderbank [1976] Fam 93 – whether rejection of offer was imprudent or unreasonable ...

Catchwords: COSTS - determination of costs in appeal where appeal allowed and matter remitted for re-hearing - whether costs discretion enlivened for Court to make costs order against respondents under Fair Work Act 2009 (Cth) - whether defence of appeal by respondents unreasonable - whether costs certificate should be granted to appellant and second and third respondents pursuant to s 8 of Federal Proceedings (Costs) Act 1981 (Cth) - no costs order made against respondents - appellant granted costs certificate ...

Catchwords: NATIVE TITLE – application for leave to appeal against interlocutory judgment rejecting an application to strike out the State’s Response to the Statement of Facts and Matters which the Applicants sought to have admitted – whether the judgment attended by sufficient doubt to warrant the attention of the Full Court – whether, assuming the judgment to be wrong, the Applicants would suffer substantial injustice by a refusal of leave – application for leave to appeal dismissed by the majority – minority would grant leave but dismiss the appeal. ...

Catchwords: MIGRATION – appeal from a decision of a single Judge of the Federal Court of Australia dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal – where Administrative Appeals Tribunal upheld a decision of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs under s 501CA(4) of the Migration Act 1958 (Cth) to refuse to revoke the cancellation of the appellant’s visa – meaning of the words “given the notice” in reg 2.52(2)(b) of the Migration Regulations 1994 (Cth) – whether invitation given to appellant under s 501CA(3)(b) of the Act inconsistent with the requirement of reg 2.52(2)(b) - whether reg 2.55 or reg 5.02 applied to the giving of the invitation – whether the appellant was in immigration detention at the time the invitation was given – whether the invitation was invalid in light of Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 338 ALR 351 and Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 – whether the appellant had “made” his representations to the Minister within 28 days ...

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 ...

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